Elizabeth Carley v. Romeo Aranas

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELIZABETH CARLEY, No. 23-15271

Plaintiff-Appellee, D.C. No.

v. 2:17-cv-02346-

MMD-CLB

ROMEO ARANAS,

Defendant-Appellant, OPINION

and

NEVEN, Warden; GENTRY, Warden;

DZURENDA, Director; COX,

Director; CLARK, B.B.; FLORES,

L.V.,

Defendants.

Appeal from the United States District Court

for the District of Nevada

Miranda M. Du, Chief District Judge, Presiding

Argued and Submitted April 2, 2024

Phoenix, Arizona

Filed June 3, 2024

2 CARLEY V. ARANAS

Before: Richard R. Clifton, Jay S. Bybee, and Bridget S.

Bade, Circuit Judges.

Opinion by Judge Bybee

SUMMARY *

Prisoner Civil Rights

The panel reversed the district court’s denial, on

summary judgment, of qualified immunity to Dr. Romeo

Aranas, the former Medical Director of the Nevada

Department of Corrections (“NDOC”) in a 42 U.S.C. § 1983

action brought by Elizabeth Carley, an inmate in the custody

of the NDOC, who alleged that Aranas was deliberately

indifferent to her medical needs when he denied her request

for certain Hepatitis C (“HCV”) treatment.

The panel held that Dr. Aranas was entitled to qualified

immunity because no clearly established law rendered the

HCV policies unconstitutional at the time of the alleged

violation.

The panel determined that the appropriately narrow

inquiry asks whether a prison medical director between

August 2013 and May 2018 would have been on notice that

the NDOC HCV policy pertaining to treatment priorities for

inmates was unconstitutional at the time. The appropriate

inquiry is not whether evolving medical standards prescribed

*

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

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

CARLEY V. ARANAS 3

a course of best treatment and practice but whether the

medical standard was so well established that the failure to

prescribe the course of treatment could only be considered

deliberate indifference within the meaning of the Eighth

Amendment.

The panel concluded that no decision of the Supreme

Court, this court, or a “consensus of courts” would have put

Dr. Aranas on notice that the relevant inmate treatment

prioritization schemes violated the Eighth Amendment

during his time as the NDOC Medical

Director. Accordingly, the panel reversed the district court’s

order and remanded with instructions to grant summary

judgment for Dr. Aranas.

COUNSEL

Chris Davis (argued), Senior Deputy Attorney General; D.

Randall Gilmer, Chief Deputy Attorney General; Aaron D.

Ford, Nevada Attorney General; Nevada Office of the

Attorney General, Las Vegas, Nevada; Douglas R. Rands,

Deputy Assistant Attorney General, Nevada Office of the

Attorney General, Carson City, Nevada; for Defendant-

Appellant.

Lisa A. Rasmussen (argued), The Law Offices of Kristina

Wildeveld & Associates, Las Vegas, Nevada, for Plaintiff-

Appellee.

4 CARLEY V. ARANAS

OPINION

BYBEE, Circuit Judge:

Elizabeth Carley is an inmate in the custody of Nevada

Department of Corrections (“NDOC”). She filed a suit

under 42 U.S.C. § 1983 alleging that Dr. Romeo Aranas, the

former Medical Director of NDOC, was deliberately

indifferent under the Eighth Amendment for denying her

request for certain Hepatitis C (“HCV”) treatment. The

district court denied summary judgment, concluding that he

was not entitled to qualified immunity at that time.

Dr. Aranas appeals the district court’s denial of his

motion for summary judgment, arguing that he is entitled to

qualified immunity. We have jurisdiction pursuant to 28

U.S.C. § 1291. See Andrews v. City of Henderson, 35 F.4th

710, 715 (9th Cir. 2022). Because no clearly established law

rendered the HCV treatment policies unconstitutional at the

time of the alleged violation, we reverse.

I. BACKGROUND

A. Factual Background

1. Hepatitis C

Hepatitis C is a “blood borne pathogen transmitted

primarily by way of percutaneous exposure to blood.” HCV

can cause liver fibrosis—or scarring to the liver—which may

“lead to cirrhosis of the liver, a liver disease that forestalls

common liver function.” A common, non-invasive method

used to measure the disease’s progression is the Aspartate

Aminotransferase Platelet Ratio Index (“APRI”). A patient’s

APRI score, along with clinical symptoms, are “reliable

indicator[s] of liver fibrosis,” although not definitive.

CARLEY V. ARANAS 5

Over the past several years, the landscape of HCV

treatment has changed dramatically. In 2013, the FDA began

approving direct acting antivirals (“DAAs”) as a new

treatment, which were shown to cure HCV in 95–99% of

cases. Previous treatments had significant side effects and

were much less effective. However, the new DAA

treatments were often costly and were not recommended for

all HCV patients until 2015. See, e.g., Atkins v. Parker, 972

F.3d 734, 736 (6th Cir. 2020) (“In 2015, the cost of a single

course of treatment using direct-acting antivirals was

between $80,000 and $189,000. By the time of trial [in

2019], those prices had dropped to between $13,000 and

$32,000 per course of treatment.”).

2. National HCV Recommendations

The American Association for the Study of Liver

Diseases (“AASLD”) and the Infectious Diseases Society of

America (“IDSA”) develop and publish “Recommendations

for Testing, Managing, and Treating Hepatitis C” to “provide

healthcare professionals with timely guidance as new

therapies are available and integrated into HCV regimens.”

These Recommendations are updated frequently to reflect

the evolving information related to HCV treatment. For

example, the 2014 Recommendations provided the

following guidance:

Immediate treatment is assigned the highest

priority for those patients with advanced

fibrosis . . . , those with compensated

cirrhosis . . . , liver transplant recipients, and

patients with severe extrahepatic hepatitis C.

Based on available resources, immediate

treatment should be prioritized as necessary

6 CARLEY V. ARANAS

so that patients at high risk for liver-related

complications and severe extrahepatic

hepatitis C complications are given high

priority.

(Emphasis added). By December 2015, though,

AASLD/IDSA began recommending treatment for all

patients with chronic HCV, except for those with a short life

expectancy. Even then, the 2015 Recommendations noted

that “[o]ngoing assessment of liver disease is recommended

for persons in whom therapy is deferred.” Additionally, it

recognized that “[s]tate prisons and jails are usually

excluded from Medicaid-related rebates and often do not

have the negotiating leverage of larger organizations and

may end up paying higher prices than most other

organizations.” According to Carley’s expert, the

AASLD/IDSA Recommendations set the standard of care

for HCV treatment, and by 2015 “DAAs [we]re the standard

of medical care for ‘all patients.’”

3. Federal Bureau of Prisons HCV Policies

The Federal Bureau of Prisons (“BOP”) provided

guidelines for the treatment of inmates with HCV as well,

which were updated as information regarding DAAs

developed. The 2014 BOP Guidelines “established

treatment priorities for inmates who have a more urgent need

for intervention” because “the most recently published

guidance on HCV treatment . . . indicate[d] that it [wa]s

reasonable to postpone treatment for cases with less

advanced fibrosis.” Federal Bureau of Prisons, Interim

Guidance for the Management of Chronic Hepatitis C, 1

(June 2014). Specifically, “[t]he BOP . . . prioritize[d] for

treatment inmates who ha[d] an APRI score ≥ 1.0, or whose

APRI score [was] between 0.7 and 1.0 along with other

CARLEY V. ARANAS 7

findings suggestive of advanced fibrosis (low albumin or

platelets, elevated bilirubin or INR).” Id.

The 2015 BOP Guidelines altered its prioritization

scheme, relying on the AASLD/IDSA Recommendations

from June 2015 that “indicate[d] that it [wa]s reasonable

during this time of transition to prioritize for treatment those

HCV cases with the most urgent need.” Federal Bureau of

Prisons, Evaluation and Management of Chronic Hepatitis C

Virus Infection, i, 7 (July 2015). It provided “Priority

Criteria” that divided patients into four priority levels “to

ensure that those with the greatest need are identified and

treated first.” Id. at 7. Priority Level 1, which received

highest priority for treatment, included patients with

cirrhosis, liver transplant candidates or recipients, patients

with hepatocellular carcinoma, patients with comorbid

medical conditions associated with HCV, patients on

immunosuppressant medication for a comorbid medical

condition, and patients needing to continue treatment if they

had already started it. Id. Priority Level 2, which received

high priority for treatment, included patients with an APRI

score ≥ 2, advanced fibrosis, HBV coinfection, HIV

coinfection, and comorbid liver diseases. Id. at 8. Priority

Level 3, which received intermediate priority for treatment,

included patients with stage 2 fibrosis, an APRI score of 1.5

to < 2, diabetes mellitus, and porphyria cutanea tarda. Id.

Lastly, Priority Level 4, which received routine priority for

treatment, included patients with stage 0 to stage 1 fibrosis

and all other patients with HCV. Id.

The October 2016 BOP Guidelines again adjusted the

prioritization scheme, providing three updated priority

levels. Federal Bureau of Prisons, Evaluation and

Management of Chronic Hepatitis C Virus Infection, 8

(October 2016). Level 1 (high priority for treatment)

8 CARLEY V. ARANAS

included patients with the same clinical characteristics from

the 2015 Guidelines, while also including patients with an

APRI score of ≥ 2.0. Id. However, Levels 2 and 3 contained

changes, and Level 4 was eliminated. Id. Level 2 included

patients with evidence of progressive fibrosis (APRI score

≥ 1.0 and stage 2 fibrosis), those with comorbid medical

conditions, and chronic kidney disease. Id. Level 2 patients

were to be given intermediate priority for treatment. Id.

Level 3 included patients with stage 0 to stage 1 fibrosis and

those with an APRI score of < 1, and these patients were

given low priority for treatment. Id. The 2017 and 2018

BOP Guidelines maintained a similar three-level

prioritization scheme. See Federal Bureau of Prisons,

Evaluation and Management of Chronic HCV Infection

(May 2017); Federal Bureau of Prisons, Evaluation and

Management of Chronic HCV Infection (January 2018).

4. NDOC HCV Policies

Medical Directive 219 is the policy that guides the

monitoring and treatment of NDOC inmates diagnosed with

HCV. During Dr. Aranas’ time as Medical Director, MD 219

was updated regularly and frequently reflected the updates

to the BOP Guidelines. Notably, the 2014 version of

MD 219, which was the first version signed by Dr. Aranas,

mirrored the BOP prioritization of patients with APRI scores

≥ 1.0, advanced hepatic fibrosis or cirrhosis, liver transplant

recipients, HIV co-infection, comorbid medical conditions

associated with HCV, and patients who were being treated at

the time of incarceration. The 2014 MD 219 excluded from

treatment patients with an “APRI score < 1.0 (score of < 0.7

if there [were] other findings suggestive of advanced

fibrosis/cirrhosis.[)]”

CARLEY V. ARANAS 9

Similarly, NDOC altered the 2015 MD 219 in response

to the updated BOP Guidelines. The 2015 MD 219 changed

the “exclusion criteria for treatment” to exclude patients with

an “APRI score of < 2.0 (score of < 1.5 if there [were] other

findings suggestive of advanced fibrosis/cirrhosis[)].” This

APRI score exclusion criteria remained the same through the

final MD 219 signed by Dr. Aranas in March 2018.

B. Procedural Background

1. Carley’s Grievances

Carley was diagnosed with HCV in April 2013 and

enrolled in the Chronic Disease Center based on that

diagnosis in June 2014. Carley’s APRI scores fluctuated

while Dr. Aranas was the Medical Director, ranging from 0.7

to 1.9 between 2013 and 2018. It is undisputed, though, that

her scores never reached the minimum score needed to

qualify for DAA treatment under NDOC’s policies.

However, after learning her APRI score rose to 1.9 in

May 2016, Carley filed an informal grievance requesting she

receive DAA treatment immediately. Both her informal

grievance and subsequent first-level grievance were denied

because her APRI scores—which had dropped to 1.3 upon

further testing—did not qualify her for further treatment.

Carely filed a second-level grievance. Although Dr. Aranas

had not examined or treated her previously, he denied her

second-level grievance under the 2015 MD 219, stating that

“our Hep C treatment is based on the Bureau of Prison

guidelines that we are following. Your APRI is 1.3 and does

not require treatment as of this time but you are being

monitored thru [sic] our chronic clinic.”

10 CARLEY V. ARANAS

2. Federal Proceedings

After exhausting the prison’s formal grievance process,

Carley filed a pro se complaint under 42 U.S.C. § 1983

against Dr. Aranas and several other prison officials alleging

violations of her Eighth Amendment rights for failing to treat

her HCV. Several other NDOC inmates filed similar actions,

resulting in the consolidation of the cases and an eventual

settlement of their prospective claims. See In re HCV Prison

Litigation, No. 19-CV-00577, 2020 WL 6363842 (D. Nev.

Oct. 29, 2020). A Consent Decree was entered in that

litigation on October 29, 2020, which resulted in Carley

receiving DAA treatment in 2021. 1

In 2022, Defendants filed a motion for summary

judgment for the claims left unresolved by the Consent

Decree. In a Report and Recommendation (“R&R”), the

magistrate judge recommended that Defendants’ motion be

granted. The district court rejected the R&R, reasoning that

“there is a genuine dispute of material fact as to whether

Defendants were deliberately indifferent to [Carley’s]

serious medical needs by delaying her Hepatitis

C . . . treatment.” The district court then dismissed most of

the Defendants because they had not personally participated

in Carley’s treatment.

The district court concluded, however, that Dr. Aranas

had personally participated in the alleged violation because

he was “responsible for the formulation of health policy

which included developing and monitoring standards and

procedures for health care services for all NDOC inmates.”

1

The settlement included a new version of MD 219 that provided for

HCV testing for all incoming NDOC and guaranteed DAA treatment for

all inmates with HCV within a prescribed time period.

CARLEY V. ARANAS 11

In addressing Aranas’ remaining qualified immunity

arguments, the district court concluded that “there is still a

genuine dispute of material fact as to whether Aranas was

deliberately indifferent to [Carley’s] serious medical needs.”

Thus, the court determined Dr. Aranas was “not entitled to

qualified immunity at this time,” and denied the motion as to

Dr. Aranas.

II. STANDARD OF REVIEW

“We review whether the officials are entitled to qualified

immunity de novo . . . .” Hines v. Youseff, 914 F.3d 1218,

1227 (9th Cir. 2019). “Where there are disputed issues of

material fact, our review is limited to whether the defendant

would be entitled to qualified immunity as a matter of law,

assuming all factual disputes are resolved, and all reasonable

inferences are drawn, in plaintiff's favor.” Karl v. City of

Mountlake Terrace, 678 F.3d 1062, 1068 (9th Cir. 2012)

(citation omitted).

III. ANALYSIS

Section 1983 of Title 42 provides a cause of action in tort

against any person who, under color of law, “deprive[s any

person] of any rights, privileges, or immunities secured by

the Constitution.” See Whalen v. McMullen, 907 F.3d 1139,

1145 (9th Cir. 2018). The Supreme Court has “consistently

. . . held that government officials are entitled to some form

of immunity from suits for damages.” Harlow v. Fitzgerald,

457 U.S. 800, 806 (1982). “For officials whose special

functions or constitutional status requires complete

protection from suit”—such as legislators and judges acting

within their respective functions—the immunity from suit is

absolute. Id. at 807. For most executive branch officials,

however, “qualified immunity represents the norm.” Id.

“Qualified immunity balances two important interests—the

12 CARLEY V. ARANAS

need to hold public officials accountable when they exercise

power irresponsibly and the need to shield officials from

harassment, distraction, and liability when they perform

their duties reasonably.” Pearson v. Callahan, 555 U.S. 223,

231 (2009).

Because “qualified immunity is immunity from suit, not

just a defense to liability, and the immunity is effectively lost

if a case is erroneously permitted to go to trial,” officials are

entitled to an early determination whether they must proceed

to trial. Andrews, 35 F.4th at 715 (internal quotation marks,

alterations, and citation omitted). “To determine whether an

official is entitled to qualified immunity, we ask two

questions: (1) whether the official’s conduct violated a

constitutional right; and (2) whether that right was ‘clearly

established’ at the time of the violation.” Hines, 914 F.3d at

1228 (citation omitted). The Supreme Court has said that we

have discretion to determine which of these questions

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

particular case at hand.” Pearson, 555 U.S. at 236.

If we answer the first of the two inquires in

the negative, then the officer’s conduct was

constitutional, and there can be no violation

of § 1983. The officer has no need for

immunity; he is innocent of the alleged

infractions. If the answer to the first question

is “yes” and the second question “no,” then

the officer’s conduct is protected by qualified

immunity. Only when an officer’s conduct

violates a clearly established constitutional

right—when the officer should have known

CARLEY V. ARANAS 13

he was violating the Constitution—does he

forfeit qualified immunity.

Lacey v. Maricopa County, 693 F.3d 896, 915 (9th Cir. 2012)

(en banc); see Plumhoff v. Rickard, 572 U.S. 765, 768 (2014)

(reversing the Sixth Circuit’s affirmance of a denial of

summary judgment because “the officers did not violate the

Fourth Amendment” or, alternatively, because “the officers

were entitled to qualified immunity because they violated no

clearly established law”). To state the proposition

differently: It is not sufficient for the district court to

conclude that the plaintiff has proven a constitutional injury,

or that there are material facts in dispute that, if proven,

would establish a constitutional violation. The court must

proceed to the second step to decide whether the violation

was “clearly established at the time of the violation.” Hines,

914 F.3d at 1228 (internal quotation marks and citation

omitted).

The district court here concluded that “there is still a

genuine dispute of material fact as to whether Aranas was

deliberately indifferent to [Carley’s] serious medical needs.”

The district court, however, did not proceed to the second

step of the qualified immunity inquiry. Instead, it concluded

that “Aranas is not entitled to qualified immunity at this

time.” This was error. Even assuming that Dr. Aranas

violated Carley’s constitutional rights (the step one inquiry),

Dr. Aranas is entitled to qualified immunity unless Carley

can demonstrate that Dr. Aranas knew or should have known

that he was violating Carley’s Eighth Amendment rights (the

step two inquiry). The burden of proof rests with Carley.

See Simmons v. G. Arnett, 47 F.4th 927, 934–35 (9th Cir.

2022).

14 CARLEY V. ARANAS

For a right to be clearly established, it must be

“sufficiently clear that every reasonable official would have

understood that what he is doing violates that right.” Rivas-

Villegas v. Cortesluna, 595 U.S. 1, 5 (2021) (per curiam)

(quoting Mullenix v. Luna, 577 U.S. 7, 11 (2015) (per

curiam)). We have emphasized that “the constitutional

question [must have been] beyond debate.” Hamby v.

Hammond, 821 F.3d 1085, 1091 (citation omitted); see

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

that “in the light of pre-existing law the unlawfulness [of the

challenged action] must be apparent” (citation omitted));

Malley v. Briggs, 475 U.S. 335, 341 (1986) (stating that

qualified immunity protects “all but the plainly incompetent

or those who knowingly violate the law”).

Carley primarily relies on Farmer v. Brennan for the

proposition that prison officials are deliberately indifferent

when “the official knows of and disregards an excessive risk

to inmate health.” 511 U.S. 825, 837 (1994). That

proposition is far too broad to put public officials on “fair

notice” of their constitutional obligations. See Brosseau v.

Haugen, 543 U.S. 194, 198 (2004) (per curiam). We recently

stated that “it is not sufficient that Farmer clearly states the

general rule that prison officials cannot deliberately

disregard a substantial risk of serious harm to an inmate. To

be clearly established, the relevant right must have been

defined more narrowly.” Hampton v. California, 83 F.4th

754, 769 (9th Cir. 2023) (internal quotation marks and

citation omitted). Although Farmer provided needed

clarification for the deliberate-indifference-to-serious-

medical-needs standard first set forth in Estelle v. Gamble,

429 U.S. 97 (1976), the Supreme Court “has repeatedly told

courts—and the Ninth Circuit in particular—not to define

clearly established law at a high level of generality.” Kisela

CARLEY V. ARANAS 15

v. Hughes, 584 U.S. 100, 104 (2018) (per curiam) (internal

quotation marks and citations omitted); see also Hamby, 821

F.3d at 1090 (“[O]ur circuit has been repeatedly chastised

for conducting the clearly established inquiry at too high a

level of generality.” (citation omitted)).

It is true that we have held that prison doctors are

deliberately indifferent when they fail to provide or delay

providing necessary medical treatment. See, e.g., Hallett v.

Morgan, 296 F.3d 732, 744 (9th Cir. 2002); Hutchinson v.

United States, 838 F.2d 390, 394 (9th Cir. 1988). But again,

we believe this defines the right too broadly in light of our

precedents that require us to “look at the law ‘in light of the

specific context of the case, not as a broad general

proposition.’” Hines, 914 F.3d at 1229 (quoting Mullenix,

577 U.S. at 12). Instead, “a plaintiff must prove that

‘precedent on the books’ at the time the officials acted

‘would have made clear to [them] that [their actions]

violated the Constitution.’” Hamby, 821 F.3d at 1091

(alterations in original) (quoting Taylor v. Barkes, 575 U.S.

822, 827 (2015) (per curiam)).

Applying these principles, we conclude that the

appropriately narrow inquiry asks whether a prison medical

director between August 2013 and May 2018 would have

been on notice that the NDOC HCV policy was

unconstitutional at the time. The appropriate inquiry is not

whether evolving medical standards prescribed a course of

best treatment and practice, but whether the medical

standard was so well established that the failure to prescribe

the course of treatment could only be considered deliberate

indifference within the meaning of the Eighth Amendment.

Cf. Hamby, 821 F.3d at 1092 (“For purposes of determining

qualified immunity, therefore, we must ask the narrower

questions: . . . given existing case law at the time, was it

16 CARLEY V. ARANAS

‘beyond debate’ that the prison officials pursued a medically

unreasonable course of treatment by declining to refer [an

inmate] for a surgical evaluation?”).

Carley fails to point to any precedent from the Supreme

Court, our court, or “a robust consensus of cases of

persuasive authority,” Tuuamalemalo v. Greene, 946 F.3d

471, 477 (9th Cir. 2019) (per curiam) (citation omitted), that

governs the facts here. Instead, she argues that MD 219

“contravened national and community guidelines” and

“directly violated the [national] standard of care.” Although

“[t]he community standard of care outside the prison context

is highly relevant in determining what care is medically

acceptable and unacceptable” in relation to whether Dr.

Aranas was deliberately indifferent to Carley’s serious

medical needs, Balla v. Idaho, 29 F.4th 1019, 1026 (9th Cir.

2022) (internal quotation marks and citations omitted), the

standard of care is not the same as “clearly established law.”

Our own search reveals no case that would have put Dr.

Aranas on notice that MD 219 was unconstitutional. Indeed,

the Eleventh Circuit reached a contrary conclusion in Hoffer

v. Sec’y, Florida Dept. of Corrections, 973 F.3d 1263 (11th

Cir. 2020). Addressing “whether the Eighth Amendment

requires Florida prison officials to treat all inmates with

chronic Hepatitis C . . . with expensive, state-of-the-art

‘direct acting antiviral’ (DAA) drugs,” id. at 1266, it found

that the Secretary of the Florida DOC, who set procedures

for HCV treatment similar to MD 219, “isn’t refusing or

denying medical care to any HCV-positive inmate. He may

not be providing . . . inmates the particular course of

treatment that they and their experts want—or as quicky as

they want it—but he isn’t turning a blind eye, either,” id. at

1272. It concluded that the prisoner’s § 1983 claim failed at

step one because modest care, “even where a complete cure

CARLEY V. ARANAS 17

may be available,” often meets “the minimally adequate

medical care standard that the Eighth Amendment imposes.”

Id. at 1273 (internal quotation marks and citation omitted).

Ultimately, the court reversed the district court’s

injunction mandating DAA treatment for all HCV-positive

inmates. Id. at 1279. Two other circuits reached the same

conclusion, albeit in unpublished decisions. Woodcock v.

Correct Care Sols., 861 F. App’x 654, 656, 659–61 (6th Cir.

2021) (unpublished) (holding that a 2018 HCV treatment

prioritization scheme that “mostly mimic[ked]” the BOP

Guidelines did not constitute deliberate indifference); Roy v.

Lawson, 739 F. App’x 266, 267 (5th Cir. 2018) (per curiam)

(unpublished) (“To the extent Roy specifically complains

that he has been denied access to the optimum drug therapies

for Hepatitis C because they are too expensive, he similarly

fails to show any resulting constitutional violation.”). Only

the Third Circuit, also in an unpublished opinion, has

reached a contrary conclusion. Abu-Jamal v. Kerestes, 779

F. App’x 893, 900 (3d Cir. 2019) (unpublished) (“[I]t was

clearly established that denying particular treatment to an

inmate who indisputably warranted that treatment for

nonmedical reasons would violate the Eighth

Amendment.”); see also Woodcock, 861 F. App’x at 666

(Stranch, J., concurring in part and dissenting in part)

(concluding that “[a] reasonable jury could find [the

Kentucky HCV treatment policy] to be evidence of

deliberate indifference to a substantial risk to inmate health,

in violation of the Eighth Amendment”).

We need not go so far. The Eighth Amendment standard

for treating HCV-positive inmates cannot be “beyond

debate,” Hamby, 821 F.3d at 1092, if the courts that have

addressed the issue on the merits (step one) have reached

conflicting conclusions. We thus join the D.C. and Fourth

18 CARLEY V. ARANAS

Circuits in concluding that prison officials are entitled to

qualified immunity at step two because any constitutional

violation was not clearly established at the time. In the most

recent decision, the Fourth Circuit concluded that “no

precedent on the books . . . would have made clear to [prison

Medical Directors] that [their HCV prioritization policies]

violated the Constitution.” Pfaller v. Amonette, 55 F.4th 436,

455 (4th Cir. 2022) (citation omitted). In Pfaller, the Fourth

Circuit reversed a denial of qualified immunity grounds for

the doctor that designed an HCV policy similar to the

prioritization system at issue here. Id. at 442. The court

assumed without deciding that the policy was deliberately

indifferent but held that the case law at the time did not give

the medical director “fair warning that his system-wide

treatment Guidelines . . . were constitutionally deficient.”

Id. at 454.

The court emphasized that we “must remember qualified

immunity’s purpose: it ‘gives government officials

breathing room to make reasonable but mistaken judgments

about open legal questions.’” Id. (quoting Ashcroft v. al-

Kidd, 563 U.S. 731, 743 (2011)). The court noted, “there

was—and remains—an open question as to what kind of

treatment protocol for administering direct-acting antivirals

is constitutionally sufficient in a prison system.” Id. at 454–

55 (emphasis added). The D.C. Circuit reached a similar

conclusion. See Bernier v. Allen, 38 F.4th 1145, 1157 (D.C.

Cir. 2022) (concluding that no case “recognize[d] a clearly

established right of a patient under medical management of

a serious disease, monitored and apparently stable,

immediately to receive the most recently recommended

treatment”); see also id. at 1158 (Silberman, J., concurring

in the judgment) (concluding that there was no Eighth

Amendment violation).

CARLEY V. ARANAS 19

For our purposes, it is sufficient to observe that no

decision of the Supreme Court, our court, or a “consensus of

courts” would have put Dr. Aranas on notice that treatment

prioritization schemes like MD 219 violated the Eighth

Amendment during his time as NDOC Medical Director.

Dr. Aranas is entitled to qualified immunity.

IV. CONCLUSION

We reverse the district court’s order and remand with

instructions to grant summary judgment for Dr. Aranas.

REVERSED AND REMANDED.