John Snow v. E.K. McDaniel

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN OLIVER SNOW, 

Plaintiff-Appellant,

v.

E. K. MCDANIEL, in his official

capacity as Warden at ELY STATE

PRISON (ESP); DEBRA BROOKS, in No. 10-16951

her official capacity as Associate D.C. No.

Warden for Operations at ESP;  3:08-cv-00046-RCJ-

ADAM ENDEL, in his official VPC

capacity as Associate Warden for

OPINION

Programs at ESP; ROBERT

BANNISTER, M.D. Medical Director

for Nevada Department of

Corrections; STEVEN MACARTHUR;

MAX CARTER,

Defendants-Appellees.



Appeal from the United States District Court

for the District of Nevada

Robert Clive Jones, Chief District Judge, Presiding

Argued and Submitted October 13, 2011

Submission Withdrawn October 24, 2011

Resubmitted May 25, 2012

San Francisco, California

Filed May 25, 2012

Before: Betty B. Fletcher, Stephen Reinhardt, and

A. Wallace Tashima, Circuit Judges.

Opinion by Judge B. Fletcher

5747

SNOW v. MCDANIEL 5751

COUNSEL

Marc Picker (argued), Angela Lightner, Marc Picker, Esq.,

Ltd., Reno, Nevada, for the appellant.

Clark G. Leslie, Senior Deputy Attorney General, Carson

City, Nevada, for the appellees.

OPINION

B. FLETCHER, Circuit Judge:

John Snow, a 69-year-old death-row inmate, appeals the

grant of summary judgment denying his claims for violations

of his rights under the Eighth Amendment. Snow claims that

the doctors and wardens in the Nevada Department of Correc-

tions were deliberately indifferent to his medical needs; spe-

cifically, the diagnosis by more than one orthopedic surgeon

that Snow needed surgery to replace both of his hips, which

have degenerated so severely that Snow has excruciating pain

and can barely walk. Snow’s medical records and statements

by physicians and specialists in the records, and all reasonable

interferences in favor of Snow drawn from the records, sug-

gest that the defendants’ actions violated Snow’s Eighth

5752 SNOW v. MCDANIEL

Amendment rights. We have jurisdiction under 28 U.S.C.

§ 1291. We reverse in part, affirm in part, and remand.

I

Because this case was resolved at summary judgment, we

present the facts in the light most favorable to Snow as the

non-moving party. RK Ventures, Inc. v. City of Seattle, 307

F.3d 1045, 1051 n.1 (9th Cir. 2002).

Snow is a prisoner in the custody of the Nevada Depart-

ment of Corrections (“NDOC”). Before he began experienc-

ing chronic hip pain in 2004, Snow was able to walk and

exercise normally. Today, Snow cannot exercise and he needs

assistance just to get up off of his bunk. Even with help, Snow

can barely walk because of the pain caused by his degenera-

tive hip disease.

Snow first complained to NDOC medical staff about his

hip and leg pain in 2005. Steven MacArthur, M.D., a NDOC

staff physician, examined Snow in late 2005. He told Snow

that he would schedule an appointment for Snow to see an

orthopedic surgeon about his hip and leg pain. Dr. MacArthur

never put anything into Snow’s chart about a referral, how-

ever, and never scheduled an appointment. In January 2006,

in response to a medical kite (i.e., a written request) submitted

by Snow, NDOC medical staff prescribed ibuprofen and

ordered hip x-rays. Eric Goldberg, M.D., examined the x-rays

in March 2006. The x-rays showed that Snow had three pins

in his left hip. Investigation suggested this had been done as

a child to stabilize a slipped capital epiphysis. Dr. Goldberg

diagnosed Snow as having severe degenerative changes in

both of his hips. A staff nurse saw the x-rays and told Snow

that the amount of degeneration and arthritis shown by the x-

rays was “very impressive.” To address the hip pain and

degeneration, NDOC medical staff prescribed Neurontin, a

neuropathic pain reliever, and Tums.

SNOW v. MCDANIEL 5753

An orthopedic surgeon finally examined Snow in Septem-

ber 2006. Mark Rhodes, M.D., an independent medical con-

sultant, confirmed that Snow’s hips exhibited severe

degeneration. Based on his observations, Dr. Rhodes guessed

that Snow was in distressing pain due to the condition of his

hips. Based on his clinical findings, Dr. Rhodes expected

Snow to suffer from excruciating and unbearable pain. He

was surprised Snow was able to walk at all. Dr. Rhodes pre-

scribed pain relievers, and stated that in the long term Snow

needed a bilateral total hip arthroplasty (“THA”) to replace

both hip joints. Mark Bishop, M.D., Snow’s NDOC treating

physician, reviewed Dr. Rhodes’s notes and ordered pain

relievers for Snow.

Snow saw Dr. Rhodes again in January 2007. Dr. Rhodes

wrote in his notes that Snow “can barely walk” due to his

degenerated hips and that “[t]here is no option here other than

surgery for relief (THA Bilateral).” Dr. Rhodes indicated that

Snow’s condition was an “emergency,” and that although it

significantly affected Snow’s quality of life, it was not life-

threatening. As a short-term measure to offer Snow relief until

he was able to get hip surgery, Dr. Rhodes prescribed a non-

steroidal anti-inflammatory drug (“NSAID”) called Indocin.

Dr. Bishop ordered the Indocin and referred the recommen-

dation for surgery to the NDOC Utilization Review Panel

(“URP”). The URP is composed of six NDOC physicians who

are board-certified in family medicine or other similar disci-

plines, and includes the NDOC Medical Director. The URP

reviews requests for significant medical procedures by outside

providers, such as surgery for an inmate. The URP denied the

“emergency” recommendation for Snow to undergo hip sur-

gery because “it was not a life[-]threatening situation.” The

URP stated only that it was “[o]kay to treat pain” but that

there would be “[n]o joint replacements.”

Snow continued to have significant hip pain, and sporadi-

cally received the pain medication and Indocin that had been

5754 SNOW v. MCDANIEL

prescribed for him. In March 2007, Warden E.K. McDaniel

approved a request from the medical staff to prohibit correc-

tions officers from using ankle restraints on Snow or from

ordering Snow to kneel. The request states that Snow “has

frozen hips [and] joints” and that he “needs hip replacement.”

In July, Dr. Bishop referred Snow to NDOC’s Regional

Medical Facility, a facility that provides full-time medical

care for inmates, because Snow’s creatinine levels were very

high. Dr. Bishop concluded that Snow’s creatinine levels were

going up because of the NSAIDs he was taking to manage his

severely degenerated hips. Dr. Bishop submitted an “urgent”

request to the URP for Snow to receive hip surgery, writing

that Snow “[n]eeds hip surgery[;] creatinine rapidly rising on

needed pain meds.” In contrast to the request for surgery in

January, Dr. Bishop changed his mind and stated that Snow’s

medical problem was “potentially life threatening.”

David Mar, M.D., another NDOC physician, examined

Snow two weeks later and prescribed Tylenol and an analge-

sic balm for his pain. Dr. Mar decided that nothing else was

needed. The URP reviewed and rejected the recommendation

for hip surgery.

Robert Bannister, M.D., the NDOC Medical Director,

noted in Snow’s medical chart that NSAIDs can be nephro-

toxic when combined with other medications taken regularly

by Snow. Dr. Bannister ordered an increase in the dosage of

Tylenol Snow received each morning and additionally pre-

scribed Tylenol with codeine to take every night. Although

Snow could not kneel or exercise outside and had to use a

wheelchair to go to the visiting area, Dr. Bannister concluded

that Snow was “functioning satisfactorily in his current living

situation and in performance of any required activities.” Later,

because the NDOC could not provide Snow with enough of

the analgesic balm prescribed by Dr. Mar, NDOC medical

staff supplemented Snow’s medication regimen with oxyco-

done, a powerful narcotic. NDOC medical staff subsequently

SNOW v. MCDANIEL 5755

prescribed a regular dose of oxycodone to allow Snow to be

able to get through the day.

In 2008, Snow filed a complaint alleging several 42 U.S.C.

§ 1983 claims. In his first amended complaint, Snow alleges

that prison officials, acting in their individual and official

capacities, violated his rights under the Fourth, Eighth, and

Fourteenth Amendments. Count I of the first amended com-

plaint requests declaratory and injunctive relief to remedy a

custom or policy of inappropriate treatment of serious medical

conditions, such as his hip condition. Count II requests dam-

ages for the defendants’ deliberate indifference to Snow’s

medical needs and their deliberate interference with recom-

mended medical treatment. Count III requests damages under

the same cause of action as Count I. The rest of Snow’s

claims were dismissed by the district court after the defen-

dants filed a motion to dismiss.

After Snow filed his lawsuit, the defendants sent Snow to

see another orthopedic surgeon. Richard Long, M.D.,

described Snow’s condition from 2004 to 2008:

He has progressively worsened to where at this time

he is able to walk only a few feet unsupported. He

has not left his building to go outside in the yard to

exercise for two years. He can get down a flight of

stairs, hanging on to the banister. He can walk prob-

ably 50 feet, to a shower and back unsupported, but

with difficulty. He is able to sleep only on his side.

He has extreme difficulty getting any socks on and

his pants on.

Dr. Long recommended a bilateral THA for Snow. The URP

again rejected surgery.

More than a year later, in September 2009, the URP finally

approved Snow for bilateral THA surgery.

5756 SNOW v. MCDANIEL

In 2010, the defendants filed a motion for summary judg-

ment. The magistrate judge submitted a report and recommen-

dation to the district court, in which he concluded that there

was a material issue of fact as to whether the defendants’

treatment of Snow was medically acceptable. The magistrate

judge also recommended that five of the six defendants

named in the lawsuit were not entitled to summary judgment

because there were material issues of fact as to whether they

had been deliberately indifferent to Snow’s serious hip condi-

tion. Next, the magistrate judge concluded that Snow’s claim

for injunctive relief was moot based on the 2009 URP

approval of bilateral THA surgery for Snow and a scheduled

date for the surgery that had already passed.

Snow filed objections to the magistrate judge’s report and

recommendation. Snow objected that he did not have hip sur-

gery in 2009 and that hip surgery had never been scheduled

by the NDOC.

The district court rejected the report and recommendation,

and granted the defendants’ motion for summary judgment.

The district court concluded that there was merely a disagree-

ment of opinion about the treatment of Snow with pain medi-

cations until surgery was approved in 2009. The district court

stated that “[p]laintiff has provided no evidence to support

that the use of pain medications, as prescribed by the treating

medical officials, was medically unacceptable under the cir-

cumstances as required by the Ninth Circuit.” The district

court did not discuss the magistrate judge’s recommendations

on Snow’s policy and practice claims and did not reach the

issue of personal liability for each defendant.

II

A

Snow contends that the district court erred by granting

summary judgment on Count II—his claim that the defen-

SNOW v. MCDANIEL 5757

dants were deliberately indifferent to his serious medical

needs and that they deliberately interfered with the recom-

mendation that he undergo a bilateral THA. We review a

grant of summary judgment de novo and must determine,

viewing the facts in the light most favorable to the nonmoving

party, whether there are any genuine issues of material fact

and whether the district court correctly applied the relevant

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

2000) (en banc).

[1] The Eighth Amendment prohibits the imposition of

cruel and unusual punishment and “embodies broad and ideal-

istic concepts of dignity, civilized standards, humanity, and

decency.” Estelle v. Gamble, 429 U.S. 97, 102 (1976) (quota-

tion marks removed). A prison official violates the Eighth

Amendment when he acts with “deliberate indifference” to

the serious medical needs of an inmate. Farmer v. Brennan,

511 U.S. 825, 828 (1994). To establish an Eighth Amendment

violation, a plaintiff must satisfy both an objective standard—

that the deprivation was serious enough to constitute cruel and

unusual punishment—and a subjective standard—deliberate

indifference.

[2] To meet the objective standard, the denial of a plain-

tiff ’s serious medical need must result in the “unnecessary

and wanton infliction of pain.” Estelle, 429 U.S. at 104. The

State concedes that Snow’s hip condition presents a serious

medical need and meets the objective standard.

The subjective standard of deliberate indifference requires

“more than ordinary lack of due care for the prisoner’s inter-

ests or safety.” Farmer, 511 U.S. at 835 (quoting Whitley v.

Albers, 475 U.S. 312, 319 (1986)). The state of mind for

deliberate indifference is subjective recklessness. See id. at

835-41. But the standard is “less stringent in cases involving

a prisoner’s medical needs . . . because ‘the State’s responsi-

bility to provide inmates with medical care ordinarily does not

conflict with competing administrative concerns.’ ”

5758 SNOW v. MCDANIEL

McGuckin v. Smith, 974 F.2d 1050, 1060 (9th Cir. 1992) (par-

tially overruled on other grounds) (quoting Hudson v. McMil-

lian, 503 U.S. 1, 6 (1992)) (alterations omitted). Similarly,

“[i]n deciding whether there has been deliberate indifference

to an inmate’s serious medical needs, we need not defer to the

judgment of prison doctors or administrators.” Hunt v. Dental

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

[3] The record shows that the defendants provided medical

care, medications, and specialist referrals to Snow during the

period in question. Even so, “[a] prisoner need not prove that

he was completely denied medical care” in order to prevail.

Lopez, 203 F.3d at 1132. Here, Snow may prove deliberate

indifference by showing that prison administrators or physi-

cians denied, delayed, or intentionally interfered with surgery

for his hip condition, or that the way prison staff delivered

medical care indicated deliberate indifference. See id. (citing

Estelle, 429 U.S. at 105).

We are specifically concerned with the URP’s repeated

denials of bilateral THA surgery, which had been recom-

mended by specialists and by Snow’s treating physician.

According to the URP policies, when deciding whether to

approve a significant medical procedure, such as surgery for

an inmate, the URP considers factors such as the length of the

inmate’s remaining sentence, how well the inmate is able to

perform activities of daily living, the available resources, and

the risks and benefits of the proposal. The URP policy offi-

cially classifies joint replacement surgery as “not always nec-

essary.” Stated differently, the URP policy supports

approving joint replacement surgery when the inmate’s condi-

tion significantly interferes with his or her ability to function

in prison.

But instead of approving the needed hip surgery when

Snow’s treating physician and a specialist considered the

request an “emergency” and when the hip condition began to

significantly interfere with Snow’s ability to function—the

SNOW v. MCDANIEL 5759

medical staff and warden had to prohibit corrections officers

from using ankle restraints on Snow or ordering him to kneel,

among other limitations—the URP repeatedly refused to

authorize the procedure. The URP gave no medical reason for

the denials. Instead, the URP either gave no reason at all, or

flatly told Snow that they would not approve any requests for

joint replacement surgery.

The case of Hamilton v. Endell, 981 F.2d 1062 (9th Cir.

1992) (overruled in part on other grounds), is instructive. In

Hamilton, the prison officials referred the plaintiff to a sur-

geon to treat a chronic ear problem. At the same time, the

prison officials tried to arrange a flight to transport the plain-

tiff from the state prison in Alaska to a federal facility in

Oklahoma. The surgeon, who operated on the plaintiff ’s ear

several times, instructed that the plaintiff ’s “ear had not yet

healed and the [the plaintiff] should . . . not fly anywhere for

about six months.” Id. at 1064. Despite these instructions, the

defendants solicited a second medical opinion from another

physician. The second physician stated, based on his own per-

sonal experience and based upon consultation with another

specialist—but not based on examination of the plaintiff or

discussion with the surgeon—that the plaintiff could fly

immediately. The plaintiff alleged that he suffered severe

damage to his ear as a result of the flight. Analogizing to

cases that found deliberate indifference where prison officials

and doctors deliberately ignored a prior physician’s instruc-

tions for reasons unrelated to the medical needs of the pris-

oner, the court held that “choosing to rely upon a medical

opinion which a reasonable person would likely determine to

be inferior” and forcing the plaintiff to fly “may have

amounted to the denial of medical treatment” and could have

constituted deliberate indifference. Id. at 1067.

[4] As in Hamilton, the circumstances here raise an infer-

ence that the defendants were unreasonably relying on their

own non-specialized conclusions with deliberate indifference

to Snow’s medical needs. Both orthopedic surgeons hired by

5760 SNOW v. MCDANIEL

NDOC to consult on this case recommended a bilateral THA,

and did not recommend indefinite maintenance on NSAIDs,

steroids, and narcotics as a solution. The NDOC physician

who treated Snow and who submitted the two 2007 requests

for surgery to the URP described the requests as an “emergen-

cy” and as “urgent.” Conversely, the NDOC physicians on the

URP are not board-certified in orthopedic surgery or in

related disciplines, and with isolated exceptions none of them

ever directly examined or treated Snow. Only the July 2007

denial by the URP purported to rely on a contrary medical

opinion by a non-specialist physician who examined Snow.

[5] Further, evidence in the record suggests that the URP

ignored the recommendations of specialists and treating phy-

sicians for reasons unrelated to Snow’s medical needs. During

his deposition, Theodore D’Amico, M.D., who was the previ-

ous NDOC medical director, testified that he did not recall

any hip replacement surgeries at all during his tenure. And a

former NDOC nurse testified that around this time there was

an official policy against treating chronic pain, and Warden

McDaniel told the medical staff that “[i]f one of these [death

row] inmates gets deathly ill, don’t knock yourself out to save

their life. There’s plenty more to take their place.” This depo-

sition testimony supports the inference that the defendants had

improper motives when applying the URP policy to deny joint

replacement surgery and medical services to death row

inmates. A reasonable jury could conclude that the defendants

refused to authorize surgery in order to avoid eventually pay-

ing for it, relying on the possibility that Snow could die of

natural causes or be executed by the State in the near future.

Evidence of an improper motive can support a conclusion that

a defendant acted with deliberate indifference. George v.

Sonoma Cnty. Sheriff’s Dep’t, 732 F. Supp. 2d 922, 937 (N.D.

Cal. 2010) (citing Jackson v. McIntosh, 90 F.3d 330, 332 (9th

Cir. 1996)); see also Jones v. Johnson, 781 F.2d 769, 771 (9th

Cir. 1986) (holding that budgetary constraints do not justify

cruel and unusual punishment).

SNOW v. MCDANIEL 5761

[6] We conclude that a reasonable jury could find that the

defendants acted with deliberate indifference to Snow’s medi-

cal needs when they refused to authorize the recommended

joint-replacement surgery. The record also shows that Snow

presented sufficient evidence to support a finding that he was

substantially harmed by the defendants’ refusal to treat his hip

condition as recommended. See McGuckin, 974 F.2d at 1060

(requiring plaintiffs to show that delay led to further injury in

cases of deliberate indifference based on the delay of medical

care).

B

The defendants argue and the district court ruled at sum-

mary judgment that the decision by NDOC physicians to treat

Snow pharmacologically rather than surgically was medically

acceptable, and that Snow cannot base his claimed Eighth

Amendment violation on a mere difference of opinion over

the course of treatment. Even if it is possible to characterize

the treatment decisions of the URP this way, we disagree with

the conclusion that the defendants are entitled to summary

judgment on these grounds.

A difference of opinion between a physician and the

prisoner—or between medical professionals—concerning

what medical care is appropriate does not amount to deliber-

ate indifference. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir

1989). Even proof that a physician has committed medical

malpractice does not necessarily violate the Eighth Amend-

ment. See Estelle, 429 U.S. at 106. To show deliberate indif-

ference, the plaintiff “must show that the course of treatment

the doctors chose was medically unacceptable under the cir-

cumstances” and that the defendants “chose this course in

conscious disregard of an excessive risk to plaintiff ’s health.”

Jackson, 90 F.3d at 332 (internal citations removed).

There is clearly a difference of medical opinion here. On

the one hand, physicians often attempt non-surgical interven-

5762 SNOW v. MCDANIEL

tions to address hip pain.1 The NDOC physicians on the URP,

who are all board-certified in family medicine or other similar

disciplines, decided to treat Snow’s hip pain and immobility

with medication instead of surgery. This persisted for several

years. The NDOC physicians adjusted the medications to

increasingly rely on narcotics when Snow’s creatinine levels

rose to dangerous levels. On the other hand, from 2007

through 2009 two orthopedic specialists and Snow’s NDOC

treating physician recommended bilateral THA surgery.

[7] The defendants argue that this was merely a difference

of opinion that cannot amount to deliberate indifference. We

disagree. Based on the unchallenged medical records and

inferences drawn in favor of Snow, a reasonable jury could

conclude that the decision of the non-treating, non-specialist

physicians to repeatedly deny the recommendations for sur-

gery was medically unacceptable under all of the circum-

stances.

[8] After Snow developed severe hip pain, the defendants

eventually sent him for evaluation by orthopedic surgeons.

Both specialists hired by the NDOC recommended bilateral

THA surgery. One of the specialists, Dr. Rhodes, testified at

his deposition that Snow’s likelihood of success after a THA

was very high, and that surgery would help improve Snow’s

health and mobility. And Dr. Rhodes testified that after sur-

gery Snow’s hip pain would probably disappear, and that

Snow would no longer require any painkillers for his hips.

Conversely, neither specialist recommended indefinite main-

tenance on NSAIDs, steroids, or narcotics. The record also

shows that medications may have harmed Snow’s kidneys,

and that the narcotics did not alleviate Snow’s significant

mobility issues. In fact, Dr. Rhodes stated in January 2007

1

See Questions and Answers about Hip Replacement, National Institute

of Arthritis and Musculoskeletal and Skin Diseases, available at

http://www.niams.nih.gov/Health_Info/Hip_Replacement/default.asp (last

visited May 17, 2012).

SNOW v. MCDANIEL 5763

that there “is no option here other than surgery for relief.”

Because, on this record, it is a controverted issue of fact, it

should be for the jury to decide whether any option other than

surgery was medically acceptable.

The defendants ignored outside expert advice, relying

solely on their own medical judgment for three years before

eventually approving surgery. They claim that the specialists

did not explicitly recommend “immediate” surgery. While a

medication-only course of treatment may have been medically

acceptable for a certain period of time, the question remains

whether it was medically unacceptable and subjectively reck-

less to ignore a “long term” recommendation for three years,

or to ignore “emergency” and “urgent” requests for more than

two years. These are jury questions.

The cases relied upon by the defendants are distinguish-

able. The plaintiff in Toguchi v. Chung, 391 F.3d 1051 (9th

Cir. 2004), argued that the defendant physician should not

have discontinued the use of a “superior” type of anti-

psychotic medication. Plaintiff ’s expert did not address that

specific claim, and the defendant submitted expert testimony

that her actions met the standard of care. Id. at 1055-56. Here,

conversely, specific statements by physicians in the record

raise triable issues of fact whether refusing to authorize sur-

gery was medically unacceptable. And unlike in Sanchez v.

Vild, where only one prison doctor told the inmate that sur-

gery would be necessary, here the consistent recommendation

by two outside specialists over the course of three years was

that Snow needed hip surgery to alleviate his severe pain and

mobility issues. See Sanchez, 891 F.2d at 242.

III

In his lawsuit, Snow named the following defendants, act-

ing in their individual and official capacities: (a) E.K.

McDaniel, ESP Warden; (b) Adam Endel, ESP Associate

Warden of Programs; (c) Robert Bannister, M.D., NDOC

5764 SNOW v. MCDANIEL

Medical Director; (d) Steven MacArthur, M.D., an ESP staff

physician; (e) Max Carter, a physician’s assistant employed

by NDOC; and (f) Debra Brooks, ESP Associate Warden of

Operations. Snow argues that summary judgment should have

been denied as to all of the defendants except Brooks, whom

he concedes is entitled to summary judgment.

A. Warden McDaniel and Associate Warden Endel

Snow argues that the prison administrators are liable for the

medical staff’s Eighth Amendment violations because the

administrators were aware of Snow’s hip condition and of the

medical staff’s inadequate treatment and yet failed to act or

order changes to customs and policies. The defendants argue

that there is no evidence in the record that Warden McDaniel

or other administrators were personally involved in any of the

medical treatment decisions.

[9] “Under Section 1983, supervisory officials are not lia-

ble for actions of subordinates on any theory of vicarious lia-

bility.” Hansen v. Black, 885 F.2d 642, 645-46 (9th Cir.

1989). A supervisor may be liable only if (1) he or she is per-

sonally involved in the constitutional deprivation, or (2) there

is “a sufficient causal connection between the supervisor’s

wrongful conduct and the constitutional violation.” Id. at 646.

A supervisor may be liable if the supervisor knew of the vio-

lations and failed to act to prevent them. Taylor v. List, 880

F.2d 1040, 1045 (9th Cir. 1989).

[10] During her deposition, a former NDOC nurse testified

that the warden and his assistants were aware of all grievances

regarding inappropriate medical treatment. The record shows

that Snow submitted several grievances about the denial of

the recommended hip surgery. Also, Warden McDaniel and

Associate Warden Endel personally reviewed the “no-kneel”

order—which explicitly states that Snow “needs hip

replacement”—and other accommodations made on behalf of

Snow for his hip condition. Through these orders and griev-

SNOW v. MCDANIEL 5765

ances, Snow has sufficiently demonstrated that Warden

McDaniel and Associate Warden Endel were aware of his

serious hip condition. Because they were aware Snow needed

surgery and failed to act to prevent further harm, Warden

McDaniel and Associate Warden Endel are not entitled to

summary judgment.

Further, the former nurse also testified that Warden

McDaniel told medical staff: “If one of these [death row]

inmates gets deathly ill, don’t knock yourself out to save their

life. There’s plenty more to take their place.” Thus, there is

also a material issue of fact as to whether Warden McDaniel

failed to act to prevent the medically unacceptable care in

Snow’s case because of animus towards death row inmates.

B. NDOC Medical Director Robert Bannister, M.D.

[11] Dr. Bannister was the head of the URP during the rel-

evant period. Consequently, he was directly involved with the

decision to deny surgery recommended by specialists and

treating physicians in favor of a plan to treat Snow with medi-

cation alone. Because there is a material issue of fact as to

whether those decisions were deliberately indifferent to

Snow’s medical needs, Dr. Bannister is not entitled to sum-

mary judgment.

C. Staff Physician Steven MacArthur, M.D.

[12] Snow argues that Dr. MacArthur is not entitled to

summary judgment because he refused to make an appoint-

ment in January 2006 for Snow to see an orthopedic surgeon

about his chronic severe hip pain. Snow also points to evi-

dence in the record that suggests that Dr. McArthur disliked

him and purposefully refused to treat him. In order to prove

deliberate indifference through delay of medical care, then,

Snow must show that Dr. McArthur’s failure to schedule an

appointment for him led to further injury. See McGuckin, 974

F.2d at 1060. And “[a] finding that the defendant’s neglect of

5766 SNOW v. MCDANIEL

a prisoner’s condition was an ‘isolated occurrence’ or an ‘iso-

lated exception’ to the defendant’s overall treatment of the

prisoner ordinarily militates against a finding of deliberate

indifference.” Id. (internal citations removed). Although it is

unlikely that Dr. McArthur’s failure to schedule a consulta-

tion for Snow had a substantial effect on the timing of Snow’s

treatment, any delay in treatment that was potentially moti-

vated by animus creates a material issue of fact for the jury.

We reverse the grant of summary judgment to Dr. MacArthur.

D. Physician’s Assistant Max Carter

Snow alleged that he received his pain medications incon-

sistently and in doses that were not sufficient. In July 2007,

Snow sent a medical kite that asked: “If I can only have and

take Indocin for 10 days a month, are you prescribing some-

thing in its place to ease my pain the other 20 days?” In

response, Carter wrote: “[N]ope — gonna let you suffer until

you tell me its [sic] working or not — not much need in tak-

ing something that doesn’t work.” Dr. Bishop reviewed Car-

ter’s response a week later and overruled it. Dr. Bishop wrote:

“Mr. Snow, I reviewed this kite response and totally disagree.

Pain meds are appropriate and I am ordering them today for

your needed well being.” Carter testified at deposition that his

“gonna let you suffer” comment to Snow was a “tongue-and-

cheek” attempt at humor.

[13] Carter’s “gonna let you suffer” statement is a textbook

example of the state of mind required to violate the Eighth

Amendment. Whether or not he made the statement in an

attempt at humor is an issue for the jury. We reverse the grant

of summary judgment to Carter.

IV

In entering judgment dismissing Snow’s lawsuit, the dis-

trict court granted summary judgment on Counts I and III,

Snow’s two “custom and policy” claims against the State of

SNOW v. MCDANIEL 5767

Nevada and the NDOC. The magistrate judge recommended

granting summary judgment on Count III, Snow’s claim for

damages. The magistrate judge concluded that Count I,

Snow’s claim for injunctive relief, was moot because the date

defendants had scheduled for Snow’s hip surgery had passed.

[14] The district court properly granted summary judgment

on Count III. That claim seeks damages from the State and the

NDOC for the custom or policy of refusing to provide certain

types of medical care to inmates. See Kentucky v. Graham,

473 U.S. 159, 165-67 (1985) (discussing official capacity

suits as a way to sue the governmental entity by alleging a

custom or policy claim). Because federal courts are barred by

the Eleventh Amendment from awarding damages against

state officials acting in their official capacities, this claim is

dismissed. See Bank of Lake Tahoe v. Bank of Am., 318 F.3d

914, 918 (9th Cir. 2003).

The district court improperly granted summary judgment

on Count I, Snow’s claim for injunctive relief. After the mag-

istrate judge dismissed the claim as moot, Snow objected that

he had not yet received hip surgery and that it was no longer

scheduled or approved. Snow’s objection preserved this claim

for review by the district court, and created a factual dispute

as to whether the claim was moot.

Snow argues that he is entitled to injunctive relief based on

the defendants’ policy or custom of deliberate indifference to

the medical needs of inmates. Specifically, Snow alleges that

NDOC medical staff and prison administrators have a policy

or custom of acting without adequate medical justification and

in deliberate indifference to the serious medical needs of

inmates when they refuse to treat non-life-threatening medical

conditions, such as the need for joint replacement surgery. In

order to survive summary judgment on this claim, Snow must

come forward with evidence from which it can be

inferred that the defendant-officials were at the time

5768 SNOW v. MCDANIEL

suit was filed, and are at the time of summary judg-

ment, knowingly and unreasonably disregarding an

objectively intolerable risk of harm, and that they

will continue to do so.

Farmer, 511 U.S. at 846.

[15] On the record at summary judgment, the court could

infer that the defendants were acting with deliberate indiffer-

ence and were likely to continue to refuse to authorize hip

surgery for Snow. See Gibson v. Cnty. of Washoe, 290 F.3d

1175, 1191 (9th Cir. 2002) (holding that summary judgment

is not appropriate if a jury could infer that policymakers knew

that their policies would pose a risk of substantial injury). We

conclude that summary judgment on this claim was prema-

ture. Snow’s claim for an injunction to start the pre-operative

process for hip surgery may proceed. When considering this

claim on remand, however, the district court may consider

supplemental medical records and filings by both parties. Far-

mer, 511 U.S. at 846 (“[T]he inmate may rely, in the district

court’s discretion, on developments that postdate the plead-

ings and pretrial motions, as the defendants may rely on such

developments to establish that the inmate is not entitled to an

injunction.”).

V

During this appeal, the defendants filed a motion to request

permission to supplement the record with medical records

generated, for the most part, after the defendants filed the

motion for summary judgment. At oral argument, plaintiff ’s

counsel stated that Snow had not had hip surgery because of

a cardiac issue. Counsel stated that the cardiac issue prevented

Snow from undergoing surgery until at least November 2011,

and potentially beyond that date.

On appeal of summary judgment, courts generally consider

only the record that was before the district court. United

SNOW v. MCDANIEL 5769

States v. W.R. Grace, 504 F.3d 745, 766 (9th Cir. 2007); see

Lippi v. City Bank, 955 F.2d 599, 604 (9th Cir. 1992) (“Our

review is limited to the record presented to the district court

at the time of summary judgment.”). This rule has three

exceptions: “(1) to correct inadvertent omissions from the

record, (2) to take judicial notice, and (3) to exercise inherent

authority . . . in extraordinary cases. Considerations of institu-

tional expertise and notice support our limitation of these

exceptions to unusual circumstances.” W.R. Grace, 504 F.3d

at 766 (citations and internal quotation marks removed).

The State concedes that the motion to supplement the

record does not fall within one of the three recognized excep-

tions. Instead, the State claims that the supplemental medical

records show good cause for delaying Snow’s hip replace-

ment surgery. The State also claims that Snow’s need for

injunctive relief is moot because pre-operative procedures had

previously been initiated for a hip replacement in 2009.

[16] We deny the State’s motion to supplement the sum-

mary judgment record. The supplemental medical records do

not “establish beyond any doubt the proper resolution” of the

order granting summary judgment. Colbert v. Potter, 471 F.3d

158, 165-66 (D.C. Cir. 2006) (quoting CSX Transp., Inc. v.

Garden City, 235 F.3d 1325, 1330 (11th Cir. 2000)).

Although Snow’s cardiac issue could eventually affect his

claim for injunctive relief, the supplemental medical records

demonstrate only that Snow may not have been a candidate

for surgery until November 2011 because of a cardiac condi-

tion from some undetermined time. And the supplemental

medical records do not, on their own, demonstrate that Snow

could not have obtained surgery at an earlier date. In fact, if

the defendants are not able to prove that Snow was ineligible

for surgery in 2007 and 2008, Snow may be able to show that

the decision not to authorize surgery before the onset of the

cardiac problem has left him crippled for life. New evidence

should be presented to the district court on remand.

5770 SNOW v. MCDANIEL

VI

The district court improperly concluded that there is a mere

disagreement of medical opinion in this case. By treating the

record here as a mere disagreement of opinion, the district

court did not identify the triable issues of fact whether the

defendants denied, delayed, or intentionally interfered with

appropriate medical treatment, or whether the defendants’

course of treatment was medically unacceptable. And because

Snow has not yet had hip surgery, and may or may not be eli-

gible for surgery, his claim for injunctive relief is not moot

and should be addressed on remand.

For these reasons, we reverse: (1) the denial at summary

judgment of Snow’s claim for injunctive relief against the

defendants in their official capacities; and (2) the denial at

summary judgment of Snow’s claim for damages against the

defendants in their individual capacities, other than Brooks.

We affirm the grant of summary judgment to Brooks and the

denial at summary judgment of Snow’s claim for damages

against the defendants in their official capacities. We deny the

defendants’ motion to supplement the record on appeal, and

remand for further proceedings.

REVERSED in part, AFFIRMED in part, and

REMANDED for further proceedings consistent with this

opinion. Snow is awarded costs on appeal.