John Colwell v. Robert Bannister, et al

Filing

FILED OPINION (BARRY G. SILVERMAN, WILLIAM A. FLETCHER and JAY S. BYBEE) REVERSED AND REMANDED. Judge: BGS Authoring, Judge: JSB Dissenting. FILED AND ENTERED JUDGMENT. [9204655]

Case: 12-15844

08/14/2014

ID: 9204655

DktEntry: 47-1

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JOHN COLWELL,

No. 12-15844
Plaintiff-Appellant,
v.

D.C. No.
3:10-cv-00669LRH-WGC

ROBERT BANNISTER and HOWARD
SKOLNIK,
Defendants-Appellees.

OPINION

Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted
April 7, 2014—San Francisco, California
Filed August 14, 2014
Before: Barry G. Silverman, William A. Fletcher,
and Jay S. Bybee, Circuit Judges.
Opinion by Judge Silverman;
Dissent by Judge Bybee

Page: 1 of 54

Case: 12-15844

08/14/2014

2

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER
SUMMARY*

Prisoner Civil Rights
The panel reversed the district court’s summary judgment
and remanded for trial in an action brought pursuant to 42
U.S.C. § 1983 by a Nevada state prisoner who was denied
cataract surgery because of a Nevada Department of
Corrections policy under which cataract surgery is refused if
an inmate can manage to function in prison with one eye.
The panel held that blindness in one eye caused by a
cataract is a serious medical condition. The panel further
held that the blanket, categorical denial of medically
indicated surgery solely on the basis of an administrative
policy that “one eye is good enough for prison inmates” is the
paradigm of deliberate indifference.
Dissenting, Judge Bybee stated that he would hold that
the respondents were not deliberately indifferent to plaintiff’s
alleged serious medical needs because plaintiff did not meet
the difficult legal burden of showing a purposeful act or
failure to respond to a prisoner’s pain or possible medical
need and harm caused by the indifference.

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

Page: 2 of 54

Case: 12-15844

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

Page: 3 of 54

3

COUNSEL
Mason Boling (argued) and Lauren Murphy (argued),
Certified Law Student Representatives, and Dustin E.
Buehler, Supervising Attorney, University of Arkansas
Federal Appellate Litigation Project, Fayetteville, Arkansas;
Michelle King and Joy Nissen, Certified Law Student
Representatives, and Gregory C. Sisk, Supervising Attorney,
University of St. Thomas School of Law Appellate Clinic,
Minneapolis, Minnesota, for Plaintiff-Appellant.
Catherine Cortez Masto, Attorney General, and Clark G.
Leslie (argued), Senior Deputy Attorney General, Office of
the Nevada Attorney General, Carson City, Nevada, for
Defendants-Appellees.

OPINION
SILVERMAN, Circuit Judge:
Plaintiff John Colwell, an inmate in the Nevada
Department of Corrections, is blind in one eye due to a
cataract.
It is undisputed that his treating doctors
recommended cataract surgery and that the surgery would
restore his vision. However, the surgery was denied by
NDOC supervisory medical personnel because of the
NDOC’s “one eye policy” – cataract surgery is refused if an
inmate can manage to function in prison with one eye.
We hold today, as numerous other courts considering the
question have, that blindness in one eye caused by a cataract
is a serious medical condition. We also hold that the blanket,
categorical denial of medically indicated surgery solely on

Case: 12-15844

4

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

the basis of an administrative policy that “one eye is good
enough for prison inmates” is the paradigm of deliberate
indifference. We reverse the grant of summary judgment in
favor of the prison officials and remand for trial.
BACKGROUND
Because this case was resolved at summary judgment, we
present the facts in the light most favorable to Colwell, the
non-moving party. See Snow v. McDaniel, 681 F.3d 978, 982
(9th Cir. 2012), overruled in part on other grounds by Peralta
v. Dillard, 744 F.3d 1076 (9th Cir. 2014) (en banc).
Colwell is a 67-year-old man serving multiple criminal
sentences, including life without the possibility of parole. He
did not have eye problems when he was incarcerated in 1991,
but he subsequently developed cataracts in both eyes and
underwent cataract-removal surgery on his left eye in 2001.
By October 2001, a cataract had developed in Colwell’s right
eye that rendered him totally blind in that eye by 2002. That
cataract has never been treated and is the medical condition
at issue in this case.
According to R. Bruce Bannister, D.O., the NDOC
Medical Director, a cataract is “cloudiness (opacity) of the
lens of the eye” which “does no damage to the eye and can be
removed at any time.” Dr. Bannister, who is not an
optometrist or ophthalmologist, declared that a cataract does
not cause pain, require urgent attention, or lead to permanent
vision loss. He declared further that a delay in removing a
cataract causes no harm. The NDOC has a formal written
policy for cataract treatment, Medical Directive 106, which
states in part:

Page: 4 of 54

Case: 12-15844

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

Page: 5 of 54

5

PURPOSE:
...
It is the policy of the Department that inmates
with cataracts will be evaluated on a case by
case basis, taking into consideration their
ability to function within their current living
environment.
...
PROCEDURES:
106.01 Surgical Removal of Cataracts
1. Patients with visual impairment
incompatible with the ability to perform the
required tasks of daily living in their current
living environment may be considered for
removal of a cataract.
2. All cataracts extraction requests must be
approved by the Utilization Review Panel and
the Medical Director.
At least three medical providers – Drs. Snider, Fischer
(ophthalmologist), and Fisher (optometrist) – recommended
that Colwell’s right-eye cataract be treated. Colwell first
informed the NDOC of blindness in his right eye during an
October 2001 physical with prison physician Dr. Snider. In
July 2002, Dr. Snider noted the presence of the cataract and
that Colwell “need[ed] two functioning eyes” because he

Case: 12-15844

6

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

worked sewing mattresses.1 Dr. Snider referred Colwell to
Michael J. Fischer, M.D., an outside ophthalmologist. Dr.
Fischer examined Colwell in September 2002, observed that
Colwell’s “visual acuity was correctable to 20/20 in the left
eye,” found “a mature cataract in the right eye,” and
concluded that right-eye cataract surgery was indicated.
Based on Dr. Fischer’s recommendation, Dr. Snider
submitted three requests for surgery to the Utilization Review
Panel.2 The Panel denied Dr. Snider’s requests, first
indicating that Colwell was on a waiting list but then denying
the two subsequent requests without explanation. Colwell
filed several written grievances between October and
December 2003, complaining that although Dr. Fischer had
recommended surgery, Dr. Snider told him that the
“department policy is ‘one eye only’ is needed” and the
surgery would not be approved. All of Colwell’s grievances
were denied.
Colwell refused his annual physical every year from 2004
to 2008 and did not receive further vision care until
September 2009, when he requested a cataract consultation.
A prison optometrist, a different Dr. Fisher, examined
Colwell and noted that he was “having trouble working” and
that his right eye was “eligible for cataract surgery.”

1

Colwell’s medical records filed under seal remain under seal except as
to facts discussed herein.
2

The record in this case does not explain the role or composition of the
Utilization Review Panel, but we have previously explained that “[t]he
URP is composed of six NDOC physicians who are board-certified in
family medicine or other similar disciplines, and includes the NDOC
Medical Director. The URP reviews requests for significant medical
procedures by outside providers, such as surgery for an inmate.” Snow,
681 F.3d at 983.

Page: 6 of 54

Case: 12-15844

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

Page: 7 of 54

7

Following up on Dr. Fisher’s findings, Dr. John Scott, an
NDOC senior physician, requested an ophthalmology
consultation. The consultation report indicates that Colwell’s
condition was not life-threatening but did “significantly
affect” his quality of life.
The next week, however, Dr. Scott discontinued the
request. His handwritten notes state:
I had originally submitted request for consult
on 10-6-09 based purely on optometrists [sic]
opinion. But pt has 20/20 vision OS [left
eye]. So can actually qualify to drive a car in
many states of . . . U.S. As well this issue has
no implications of damage to [right] eye if
cataract goes unrepaired. Therefor[e] on
further reflection I am [discontinuing] the
original request for ophthalogic consultation.
There is no indication Colwell was informed of the
discontinuation, and he filed at least one written request
inquiring about the status of the referral. He also spoke with
Dr. Gedney, another prison physician, about the issue during
an appointment on February 18, 2010. Dr. Gedney’s notes
reflect that Colwell did not meet the criteria for surgery
because he has sight out of his left eye, and she told Colwell
that he did not qualify for cataract removal due to a “one eye
only” policy.
Colwell again filed a series of grievances. He complained
that the optometrist who had examined him recommended a
cataract consult for possible surgery, but that Dr. Scott had
discontinued the consult because he has one “good” eye. His
informal grievance was denied with the following response:

Case: 12-15844

8

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER
Administrative Regulation 618 defines your
req u es t for cat aract s u r ge r y as
cosmetic/elective surgery. One is corrected to
20/20 vision now. This places this, the 2nd
cataract surgery[,] in a non-essential
category, despite recommendation from
Dr[.]Fisher [the prison optometrist]. I cannot
predict when this may be considered for
repair, but at this time, it is not considered for
repair by Utilization Review.

(Emphasis added.) Colwell’s first-level grievance was denied
for the same reason. Dr. Bannister personally denied his
second-level grievance on March 9, 2010, stating:
I have reviewed your written grievance and
the answers provided at the informal and first
level. I agree with these responses. In almost
cases [sic] cataract surgery is not an
emergency.
You should be evaluated
periodically to determine the degree of
impairment caused by your cataract with
regard to your ability to perform the activities
required in your current living situation.
Based on the practitioner[’]s evaluation the
request can be re-considered.
Colwell filed this lawsuit under 42 U.S.C. § 1983 alleging
a violation of his Eighth Amendment rights. Specifically, he
claims that the prison officials were deliberately indifferent
to his serious medical needs in refusing him surgery to restore
his vision. On the defendants’ motion for summary
judgment, the district court ruled, first, that Colwell’s
cataract-induced blindness was a serious medical need.

Page: 8 of 54

Case: 12-15844

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

Page: 9 of 54

9

However, it also held that Colwell failed to establish that the
defendants were deliberately indifferent to that need. It
reasoned that Colwell had not shown that the Utilization
Review Panel’s denial or delay in approving surgery led to
further injury to his eye, and explained that “medical
providers have determined that surgery is not medically
warranted in light of Plaintiff’s overall visual acuity and
ability to adequately function.” The court also held that the
Panel’s decision to refuse surgery amounted to a difference
of opinion over the best course of treatment, and that Colwell
had not shown that the NDOC’s course of action was
“medically unacceptable” or “made in conscious disregard of
an excessive risk to his health.”
DISCUSSION
1. Legal Standards
We have jurisdiction pursuant to 28 U.S.C. § 1291, and
review de novo the district court’s grant of summary
judgment. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir.
2004). “We must determine, viewing the evidence in the
light most favorable to the nonmoving party, whether there
are any genuine issues of material fact and whether the
district court correctly applied the relevant substantive law.”
Prison Legal News v. Lehman, 397 F.3d 692, 698 (9th Cir.
2005).
The government has an “obligation to provide medical
care for those whom it is punishing by incarceration,” and
failure to meet that obligation can constitute an Eighth
Amendment violation cognizable under § 1983. Estelle v.
Gamble, 429 U.S. 97, 103–05 (1976). In order to prevail on
an Eighth Amendment claim for inadequate medical care, a

Case: 12-15844

10

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

plaintiff must show “deliberate indifference” to his “serious
medical needs.” Id. at 104. This includes “both an objective
standard—that the deprivation was serious enough to
constitute cruel and unusual punishment—and a subjective
standard—deliberate indifference.” Snow, 681 F.3d at 985.
To meet the objective element of the standard, a plaintiff
must demonstrate the existence of a serious medical need.
Estelle, 429 U.S. at 104. Such a need exists if failure to treat
the injury or condition “could result in further significant
injury” or cause “the unnecessary and wanton infliction of
pain.” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006)
(quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.
1992), overruled in part on other grounds by WMX Techs.,
Inc. v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc))
(internal quotation marks omitted). Indications that a plaintiff
has a serious medical need include “[t]he existence of an
injury that a reasonable doctor or patient would find
important and worthy of comment or treatment; the presence
of a medical condition that significantly affects an
individual’s daily activities; or the existence of chronic and
substantial pain.” McGuckin, 974 F.2d at 1059–60.
A prison official is deliberately indifferent under the
subjective element of the test only if the official “knows of
and disregards an excessive risk to inmate health and safety.”
Toguchi, 391 F.3d at 1057 (quoting Gibson v. Cnty. of
Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002)) (internal
quotation mark omitted). This “requires more than ordinary
lack of due care.” Farmer v. Brennan, 511 U.S. 825, 835
(1994) (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986))
(internal quotation mark omitted). “[T]he official must both
be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also

Page: 10 of 54

Case: 12-15844

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

Page: 11 of 54

11

draw the inference.” Id. at 837. Deliberate indifference “may
appear when prison officials deny, delay or intentionally
interfere with medical treatment, or it may be shown by the
way in which prison physicians provide medical care.”
Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir.
1988). “In deciding whether there has been deliberate
indifference to an inmate’s serious medical needs, we need
not defer to the judgment of prison doctors or
administrators.” Hunt v. Dental Dep’t, 865 F.2d 198, 200
(9th Cir. 1989).
2.

Serious Medical Need

We agree with the district court that monocular blindness
is a serious medical need. Although blindness in one eye is
not life-threatening, it is no trifling matter either. It is not a
bump or scrape or tummy ache. Monocular blindness is the
loss of the function of an organ. Other courts have held that
similar and even less severe losses of vision are serious
medical needs. For example, in Koehl v. Dalsheim, the
Second Circuit held that an inmate who needed eyeglasses for
double vision and loss of depth perception had a serious
medical need. 85 F.3d 86, 88 (2d Cir. 1996). Although the
inmate’s condition did not “inevitably entail pain,” he alleged
he suffered injuries caused by falling or walking into objects.
Id. The court ruled these consequences “adequately meet the
test of ‘suffering’” the Supreme Court “recognized is
inconsistent with ‘contemporary standards of decency.’” Id.
(quoting Estelle, 429 U.S. at 103).3

3

Several courts have reached conclusions consistent with Koehl. See
Cobbs v. Pramstallar, 475 F. App’x 575, 580 (6th Cir. 2012)
(unpublished) (cataract causing an inmate to struggle with depth
perception and walk into objects was a serious medical need where delay

Case: 12-15844

12

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

Nevada district courts addressing claims similar to
Colwell’s have found cataracts to be serious medical needs.
The district court in White v. Snider concluded that a cataract
causing complete blindness in one eye was a serious medical
need where doctors recommended cataract removal and the
plaintiff experienced headaches and had difficulty seeing in
the prison yard. No. 3:08-CV-252-RCJ(VPC), 2010 WL
331742, at *5 (D. Nev. Jan. 26, 2010). The court in Michaud
v. Bannister likewise held that a plaintiff’s “advanced
cataract” was “squarely within the ambit of ‘serious medical
needs’” where the plaintiff testified that “he had lost almost
all of his ability to see in his right eye,” and “blindness and
irreparable injury could result from his untreated cataract.”
No. 2:08-cv-01371-MMD-PAL, 2012 WL 6720602, at *5 (D.
Nev. Dec. 26, 2012). Most recently, the court in Layton v.
Bannister held that a right-eye cataract was a serious medical
need despite the plaintiff’s high visual acuity in his left eye,
because his affected eye was blind and the condition was
significant enough that an examining optometry consultant
referred him to the Utilization Review Panel for surgery. No.
3:10-CV-00443-LRH-WGC, 2012 WL 6969758, at *6 (D.
in cataract-removal surgery necessitated a riskier procedure and resulted
in complications); compare Garcia v. Nev. Bd. of Prison Comm’rs, No.
3:06-CV-0118 JCM (VPC), 2008 WL 818981, at *17 (D. Nev. Mar. 24,
2008) (“[T]here is no question that losing sight in one eye constitutes a
‘serious’ medical need.”), with Canell v. Multnomah Cnty., 141 F. Supp.
2d 1046, 1057 (D. Or. 2001) (“While severe eye injuries or legal blindness
may constitute a serious medical need, that is not the case with reading
glasses.”). In a different context, the Supreme Court has indicated that
monocular vision is likely to be a disability within the meaning of the
Americans with Disabilities Act. Albertson’s, Inc. v. Kirkingburg,
527 U.S. 555, 566–67 (1999) (explaining that “monocularity inevitably
leads to some loss of horizontal field of vision and depth perception” and
that “people with monocular vision ‘ordinarily’ will meet the Act’s
definition of disability”).

Page: 12 of 54

Case: 12-15844

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

Page: 13 of 54

13

Nev. Sept. 28, 2012), report and recommendation adopted,
No. 3:10-CV-00443-LRH-WGC, 2013 WL 420427 (D. Nev.
Jan. 31, 2013).
Like the medical conditions in White, Michaud, and
Layton, Colwell’s cataract is severe. “[I]t is clear that this is
not a situation of a minor cataract with little impact on an
inmate’s vision.” Michaud, 2012 WL 6720602, at *5.
Colwell’s right eye has been blind for more than a decade,
and his condition affects his perception and renders him
unable to see if he turns to the left. Several doctors, including
an ophthalmologist and an optometrist, have found the
cataract and resulting vision loss “important and worthy of
comment or treatment.” McGuckin, 974 F.2d at 1059.
Furthermore, the evidence showed that Colwell was not
“merely blind” in one eye, but that his monocular blindness
caused him physical injury: He ran his hand through a sewing
machine on two occasions while working in the prison
mattress factory; he ran into a concrete block, splitting open
his forehead; he regularly hits his head on the upper bunk of
his cell; and he bumps into other inmates who are not goodnatured about such encounters, triggering fights on two
occasions.
To reiterate, we agree with the district court that
Colwell’s total blindness in one eye is a serious medical need.
3. Deliberate Indifference
We now turn to the second prong of the inquiry, whether
the defendants were deliberately indifferent. This is not a
case in which there is a difference of medical opinion about
which treatment is best for a particular patient. Nor is this a

Case: 12-15844

14

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

case of ordinary medical mistake or negligence. Rather, the
evidence is undisputed that Colwell was denied treatment for
his monocular blindness solely because of an administrative
policy, even in the face of medical recommendations to the
contrary. A reasonable jury could find that Colwell was
denied surgery, not because it wasn’t medically indicated, not
because his condition was misdiagnosed, not because the
surgery wouldn’t have helped him, but because the policy of
the NDOC is to require an inmate to endure reversible
blindness in one eye if he can still see out of the other. This
is the very definition of deliberate indifference.
The district court held that Colwell did not show the
NDOC’s decision to delay or deny treatment caused him
harm. This ignores the plain fact that as long as the eye
remains untreated, Colwell continues to suffer blindness in
his right eye, which is harm in and of itself, along with all of
the other harms and dangers that flow from that. The record
is sufficient to create a triable issue of fact regarding whether
Colwell has been harmed by the refusal of treatment. See
Michaud, 2012 WL 6720602, at *8–9 (plaintiff showed harm
from delay of cataract surgery where his impairment resulted
in fights with other inmates, causing “missing teeth and black
eyes”).
Contra Layton, 2012 WL 6969758, at *9
(disregarding collateral injury and holding that the visual
acuity in plaintiff’s good eye was the best measure of further
injury since his cataract-affected eye was already totally
blind).
In the district court’s view, this is case about a difference
of opinion over whether treatment is medically warranted.
We disagree. “A difference of opinion between a physician
and the prisoner—or between medical professionals—
concerning what medical care is appropriate does not amount

Page: 14 of 54

Case: 12-15844

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

Page: 15 of 54

15

to deliberate indifference.” Snow, 681 F.3d at 987. Rather,
“[t]o show deliberate indifference, the plaintiff ‘must show
that the course of treatment the doctors chose was medically
unacceptable under the circumstances’ and that the
defendants ‘chose this course in conscious disregard of an
excessive risk to plaintiff’s health.’” Id. at 988 (quoting
Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)).
In Snow v. McDaniel, which was decided shortly after the
district court issued its decision in this case, an NDOC death
row inmate brought an Eighth Amendment claim after the
Utilization Review Panel repeatedly refused to authorize hip
replacement surgery recommended by outside specialists and
a treating physician. 681 F.3d at 983–84. The Panel denied
surgery for approximately two years, concluding that the
condition could be treated with pain medication even though
it was an “emergency” and “potentially life threatening.” Id.
The Snow court held that “the circumstances . . . raise[d] an
inference that the defendants were unreasonably relying on
their own non-specialized conclusions” instead of the
recommendations of the plaintiff’s treating specialists. Id. at
986. Therefore, “a reasonable jury could conclude that the
decision of the non-treating, non-specialist physicians to
repeatedly deny the recommendations for surgery was
medically unacceptable under all of the circumstances.” Id.
at 988; see also Hamilton v. Endell, 981 F.2d 1062, 1067 (9th
Cir. 1992) (“By choosing to rely upon a medical opinion
which a reasonable person would likely determine to be
inferior, the prison officials took actions which may have
amounted to the denial of medical treatment, and the
‘unnecessary and wanton infliction of pain.’”), overruled in
part on other grounds as recognized in Snow, 681 F.3d at
986.

Case: 12-15844

16

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

The record in this case indicates that the NDOC similarly
ignored the recommendations of treating specialists and
instead relied on the opinions of non-specialist and nontreating medical officials who made decisions based on an
administrative policy. Colwell was seen by eye specialists on
at least two occasions, first by ophthalmologist Dr. Fischer in
2002 and then by a prison optometrist in 2009. Both
specialists recommended cataract surgery after personally
examining the cataract, yet the NDOC disregarded these
recommendations.
The record supports a conclusion that the specialists’
recommendations for surgery were overridden not because of
conflicting medical opinions about the proper course of
treatment, but because officials enforced the “one eye only”
policy. The NDOC’s formal cataract-treatment policy,
Medical Directive 106, mandates “case by case”
consideration of cataract treatment requests taking into
account an inmate’s “ability to function,” but the evidence
here shows that the NDOC denies cataract surgery as long as
a prisoner has one “good” eye. Colwell was told on multiple
occasions that he would not receive treatment because he had
a healthy left eye, which made surgery unnecessary despite
the examining specialists’ opinions.
Facing similar facts, Nevada district courts have refused
to grant summary judgment in favor of prison officials. In
Michaud, the district court held that there was a genuine issue
of fact whether the Utilization Review Panel was deliberately
indifferent when it knew that the prisoner faced permanent
blindness but denied the recommendation for cataract surgery
and instead ordered an eye patch and headache pills. 2012
WL 6720602, at *7. The court explained that the facts
indicated that every physician who reviewed the inmate’s

Page: 16 of 54

Case: 12-15844

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

Page: 17 of 54

17

vision concluded surgery was necessary, and that “the only
difference of opinion existed between these physicians and
the URP.” Id. at *8.
Similarly, the White court held that there were triable
issues of fact where there was a difference of opinion
between “the optometric specialists at the eye clinic who
recommended cataract removal and the defendants who claim
the procedure is not necessary.” 2010 WL 331742, at *5.
The court reasoned that “a factual issue remain[ed] as to
whether defendants surrendered professional judgment and
dismissed complaints based on the mere categorization of
cataract removal as ‘not medically necessary.’” Id. at *6.4
The defendants ask us to disregard these cases and instead
rely on Cobbs, an unpublished Sixth Circuit decision in which
the court held that the Michigan Department of Correction’s
Chief Medical Officer was not deliberately indifferent when
his Medical Committee denied a request for cataract surgery
and refused a subsequent request for an ophthalmology
consultation, despite specialist recommendations. 475 F.
App’x at 581–84. Our case is distinguishable from this nonprecedential, 2-to-1 Sixth Circuit case in at least one very
important respect. Cobbs actually received the cataract

4

The defendants want us to follow Layton, in which a Nevada district
court found that there was no deliberate indifference based on facts and
allegations very similar to those in the case. See 2012 WL 6969758, at
*11. The report and recommendation in Layton relies in part on the
district court’s earlier grant of summary judgment in the instant case, see
id. at *10, and the report and recommendations in both cases were
prepared by the same magistrate judge. We find Layton’s deliberate
indifference analysis unpersuasive for many of the same reasons detailed
in this opinion, but we agree with its conclusion that a cataract can amount
to a serious medical need. See id. at *6.

Case: 12-15844

18

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

surgery he needed after he filed his lawsuit. Id. at 579. He
continued his suit afterward to recover damages for the delay
in treatment. Id. at 576. Colwell, on the other hand, has been
and continues to be denied the surgery that three different
doctors say he currently needs. In any event, to whatever
extent Cobbs can be read to condone the refusal to treat
treatable cataracts solely because the inmate can still see out
of one eye, we reject that view, as did Sixth Circuit Judge
Cole. Id. at 584–85 (Cole, J., dissenting).
A reasonable jury could find that NDOC officials denied
treatment because Colwell’s medical need conflicted with a
prison policy, not because non-treatment was a medically
acceptable option. See Hamilton, 981 F.2d at 1066 (holding
that summary judgment was inappropriate “where prison
officials and doctors deliberately ignored the express orders
of a prisoner’s prior physician for reasons unrelated to the
medical needs of the prisoner”).
4. Personal Participation
The defendants urge us to uphold summary judgment
because, they argue, neither Dr. Bannister nor former and
now-retired NDOC Director Howard Skolnik was personally
involved in any constitutional deprivation. See Jones v.
Williams, 297 F.3d 930, 934 (9th Cir. 2002) (“In order for a
person acting under color of state law to be liable under
section 1983 there must be a showing of personal
participation in the alleged rights deprivation . . . .”). The
defendants never argued before the district court that Dr.
Bannister lacked personal involvement, and the district court
did not reach their arguments concerning Director Skolnik.

Page: 18 of 54

Case: 12-15844

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

Page: 19 of 54

19

Although many of the events in this case occurred before
Dr. Bannister became NDOC Medical Director in 2005, he
personally denied Colwell’s second-level grievance even
though he was aware that an optometrist had recommended
surgery and that Colwell’s lower-level grievances had been
denied despite that recommendation. Accordingly, a
reasonable jury could find that Dr. Bannister, pursuant to a
policy rather than a considered medical judgment, contributed
to the decision to refuse treatment in conscious disregard of
an excessive risk to Colwell’s health. See Snow, 681 F.3d at
989–90.
There are no facts indicating Director Skolnik was
personally involved in Colwell’s medical care, but the current
NDOC Director is still a proper defendant in Colwell’s claim
for injunctive relief “because he would be responsible for
ensuring that injunctive relief was carried out, even if he was
not personally involved in the decision giving rise to [the
plaintiff’s] claims.” Pouncil v. Tilton, 704 F.3d 568, 576 (9th
Cir. 2012). We have held that a corrections department
secretary and prison warden were proper defendants in a
§ 1983 case because “[a] plaintiff seeking injunctive relief
against the State is not required to allege a named official’s
personal involvement in the acts or omissions constituting the
alleged constitutional violation. Rather, a plaintiff need only
identify the law or policy challenged as a constitutional
violation and name the official within the entity who can
appropriately respond to injunctive relief.” Hartmann v. Cal.
Dep’t of Corr. & Rehab., 707 F.3d 1114, 1127 (9th Cir. 2013)
(citations omitted). Colwell contends that the NDOC
Director would be responsible for implementing any
injunctive relief and the defendants do not disagree.

Case: 12-15844

08/14/2014

20

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER
CONCLUSION

We therefore REVERSE the district court’s grant of
summary judgment in favor of the defendants and REMAND
for further proceedings consistent with this opinion.5

BYBEE, Circuit Judge, dissenting:
Since 2002, John Colwell has been blind in his right eye
as a result of a cataract. Prison doctors recommended that his
condition be corrected by surgery, a request the Nevada
Department of Corrections (“NDOC”) denied in 2003. For
the next five years, from 2004 to 2009, Colwell refused
additional medical treatment by failing to show up for his
annual physical. Not until 2010 did Colwell file grievances
over the State’s refusal to provide him with cataract surgery.
Colwell is one of the 20.5 million Americans over the age
of 40 who suffer from cataracts.1 Like many others who have

5

We express no opinion regarding whether the defendants are entitled
to qualified immunity on Colwell’s claim for damages, leaving the district
court to address that issue in the first instance. See Richardson v. Runnels,
594 F.3d 666, 672 (9th Cir. 2010) (“Here, we do not reach qualified
immunity because the issue has never been addressed by the district
court.”); Schneider v. Cnty. of San Diego, 28 F.3d 89, 93 (9th Cir. 1994)
(“The district court granted summary judgment without reaching the
immunity issues. These issues should be addressed in the first instance by
the district court.”).
1

Centers for Disease Control and Prevention, Common Eye
Disorders, (Apr. 23, 2013) www.cdc.gov/visionhealth/basic_information/
eye_disorders.htm.

Page: 20 of 54

Case: 12-15844

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

Page: 21 of 54

21

cataracts, he is in no pain and in no danger of suffering
permanent loss of vision. In the nine years after he developed
the cataract, Colwell worked in prison industries sewing
mattresses, doing yard work, training dogs, and serving in the
culinary unit. He routinely participates in religious activities,
plays cards, attends a computer class, exercises, and watches
television; he is also a “voracious reader.” His only
complaint relative to the blindness in his right eye is that,
since he developed the cataract in 2002, he ran his hand
through a sewing machine (twice), gashed his head on a
concrete block, bonks his head on the upper bunk, and
occasionally bumps into other inmates.
If I were the warden, and if I had the resources at my
disposal, I would make sure that Colwell got his elective
surgery. But that is not the question before us. The question
is whether the State’s refusal to obtain surgery for Colwell’s
eye constitutes “cruel and unusual punishment” in violation
of the Eighth Amendment. The majority answers with a
resounding “yes,” but I fear that the answer is not as facile as
the majority makes it out to be. It turns out that we, district
courts in our circuit, and courts around the United States have
struggled with this question. And with good reason. We
have a growing—and, more importantly, an aging—prison
population, and we are going to face these kinds of problems
more and more frequently. The big question for us as courts
is the extent to which the Eighth Amendment dictates the
answers to these problems.
In Estelle v. Gamble, 429 U.S. 97 (1976), the Supreme
Court applied the Eighth Amendment’s prohibition against
“cruel and unusual punishments” to “the government’s
obligation to provide medical care for those whom it is
punishing by incarceration.” Id. at 103. Although “not . . .

Case: 12-15844

22

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

every claim by a prisoner that he has not received adequate
medical treatment states a violation of the Eighth
Amendment,” the Constitution proscribes “‘unnecessary and
wanton infliction of pain’” through “deliberate indifference
to serious medical needs of prisoners.” Id. at 104–05
(quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)).
Judged by this standard, NDOC has not violated the Eighth
Amendment, because Colwell is not suffering any pain from
his cataract and he is fully functioning in the ordinary tasks
of prison life. His mishaps are not unexpected given the
vicissitudes of life, the aging process, and his incarceration.
Our court has construed the “serious medical needs”
standard in Estelle to go well beyond medical conditions that
cause pain. In McGuckin v. Smith, we held that a “serious
medical need” encompassed any “injury that reasonable
doctor or patient would find important and worthy of
comment or treatment.” 974 F.2d 1050, 1059–60 (9th Cir.
1992), overruled on other grounds by WMX Techs., Inc. v.
Miller, 104 F.3d 1133 (9th Cir. 1997). Relying on this
standard—a standard better suited for counseling doctors how
to avoid malpractice claims—the majority has little difficulty
concluding that the State has violated the Eighth Amendment.
Maj. Op. at 9–10, 13. But McGuckin cannot be a correct
reading of the Court’s Eighth Amendment cases, and unless
we overturn it en banc, we will make ourselves the authors of
a “National Code of Prison Regulation,” Hudson v.
McMillian, 503 U.S. 1, 28 (1992) (Thomas, J., dissenting),
the ombudsmen for the circuit’s prisons, and the arbiters of
acceptable medical standards. These problems, however, are
much too complicated to be addressed through the blunt force
of the Eighth Amendment.
I respectfully dissent.

Page: 22 of 54

Case: 12-15844

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

Page: 23 of 54

23

I
A
The Supreme Court first addressed the Eighth
Amendment in Wilkerson v. Utah, 99 U.S. 130 (1878), a
challenge to the Utah Territory’s plan to execute Wilkerson
by firing squad.2 The Court held that capital punishment did
not violate the Eighth Amendment, but observed that drawing
and quartering, public dissection, burning alive,
disembowelment, and all other punishments “in the same line
of unnecessary cruelty,” are forbidden by the Constitution.
Id. at 135–37. Later Court decisions described cruel and
unusual punishments as those that “involve torture or a
lingering death,” Weems v. United States, 217 U.S. 349, 370
(1910), or the “wanton infliction of pain.” Gregg, 428 U.S. at
173 (discussing Furman v. Georgia, 408 U.S. 238, 392–93
(1972) (Burger, C.J., dissenting)); see also Baze v. Rees,
553 U.S. 35, 48–49 (2008) (plurality opinion); In re
Kemmler, 136 U.S. 436 (1890).
Over the course of these early cases, the Court shifted
from a focus on historically prohibited punishments to a
broader recognition that the Eighth Amendment is not a
“static concept.” Gregg, 428 U.S. at 173. Although this shift
expanded the breadth of the Eighth Amendment, the Court
cautioned that “the requirements of the Eighth Amendment
must be applied with an awareness of the limited role to be

2
The Supreme Court did not even mention the Eighth Amendment until
the middle of the Nineteenth Century. See Pervear v. Massachusetts,
72 U.S. 475, 479–80 (1866) (acknowledging Pervear’s Eighth
Amendment argument, but declining to address the issue because the
Eighth Amendment did not apply to the states).

Case: 12-15844

24

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

played by the courts.” Id. at 174. After all, “[c]ourts are not
representative bodies,” id. at 176 (internal quotation marks
omitted), and “[a] decision that a given punishment is
impermissible under the Eighth Amendment cannot be
reversed short of a constitutional amendment.” Id. at 175.
Cognizant of these warnings, the Court nevertheless
expanded the reach of the Eighth Amendment beyond
punishments themselves, and into conditions of
imprisonment, beginning with inmate health care.
The government’s obligation to provide inmates with
medical care follows from Gregg’s holding that the Eighth
Amendment prohibits the “wanton infliction of pain.” Id. at
173. During the same Term it decided Gregg, the Court in
Estelle considered for the first time whether the Eighth
Amendment applied to prison conditions. 429 U.S. 97. The
Court held that the government has an obligation to provide
medical care for incarcerated people because failure to do so
“may actually produce physical ‘torture or a lingering
death,’” or “pain and suffering” without “any penological
purpose.” Id. at 103 (quoting Kemmler, 136 U.S. at 447, and
discussing Gregg, 428 U.S. at 173). Cautioning that “every
claim by a prisoner that he has not received adequate medical
treatment [does not] state[ ] a violation of the Eighth
Amendment,” the Court held that the Eighth Amendment
prohibits “deliberate indifference to serious medical needs of
prisoners.” Id. at 105.
Since then, the Court has repeated that “‘deliberate
indifference to serious medical needs of prisoners’ violates
the [Eighth] Amendment because it constitutes the
unnecessary and wanton infliction of pain contrary to
contemporary standards of decency.” Helling v. McKinney,
509 U.S. 25, 32 (1993) (quoting Estelle, 429 U.S. at 104).

Page: 24 of 54

Case: 12-15844

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

Page: 25 of 54

25

Thus, “only the unnecessary and wanton infliction of pain
implicates the Eighth Amendment.” Wilson v. Seiter,
501 U.S. 294, 297 (1991) (internal quotation marks omitted);
see also Hope v. Pelzer, 536 U.S. 730, 737–38 (2002);
Farmer v. Brennan, 511 U.S. 825, 834 (1994); Hudson,
503 U.S. at 5 (referring to “the settled rule that the
unnecessary and wanton infliction of pain . . . constitutes
cruel and unusual punishment forbidden by the Eighth
Amendment.” (omission in original) (internal quotation
marks omitted)); Whitley v. Albers, 475 U.S. 312, 320 (1986)
(“After incarceration, only the unnecessary and wanton
infliction of pain . . . constitutes cruel and unusual
punishment forbidden by the Eighth Amendment” (omission
in original) (internal quotation marks omitted)). In Rhodes v.
Chapman, 452 U.S. 337 (1981), the Court considered whether
“conditions of confinement”—in that case, double
celling—were cruel and unusual punishment. The Court
again emphasized that the wanton and unnecessary infliction
of pain was the touchstone of the Eighth Amendment:
The double celling made necessary by the
unanticipated increase in prison population
did not lead to deprivations of essential food,
medical care, or sanitation. Nor did it
increase violence among inmates or create
other conditions intolerable for prison
confinement. Although job and education
opportunities diminished marginally as a
result of double celling, limited work hours
and delay before receiving education do not
inflict pain, much less unnecessary and
wanton pain; deprivations of this kind simply
are not punishments. We would have to
wrench the Eighth Amendment from its

Case: 12-15844

26

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER
language and history to hold that delay of
these desirable aids to rehabilitation violates
the Constitution.

Id. at 348 (internal citation omitted) (emphasis added). The
Court concluded that the complaints “f[e]ll far short in
themselves of proving cruel and unusual punishment, for
there is no evidence that double celling under these
circumstances either inflicts unnecessary or wanton pain or is
grossly disproportionate to the severity of crimes warranting
imprisonment. . . . [T]he Constitution does not mandate
comfortable prisons,” or that prisoners “be free of
discomfort.” Id. at 348–49.
B
Our own foray into the Eighth Amendment has departed
significantly from the Court’s formulation. Initially, we
followed Estelle and held that prisoners “can establish an
eighth amendment violation with respect to medical care if
they can prove there has been deliberate indifference to their
serious medical needs” such that it caused “unnecessary and
wanton infliction of pain.” Hunt v. Dental Dep’t., 865 F.2d
198, 200–01 (9th Cir. 1989) (internal quotation marks and
citation omitted); see also Vaughn v. Ricketts, 859 F.2d 736,
741 (9th Cir. 1988); Anthony v. Dowdle, 853 F.2d 741,
742–43 (9th Cir. 1988); Wood v. Sunn, 852 F.2d 1205, 1210
(9th Cir. 1988); May v. Enomoto, 633 F.2d 164, 167 (9th Cir.
1980). In 1992, however, we grafted a different formulation
on the Supreme Court’s holding in Estelle. McGuckin, was
a case involving a prisoner who endured “a significant
amount of pain and anguish” caused by a hernia because
prison officials failed to diagnose his condition. 974 F.2d at
1061–62. There, as in Hunt, we correctly observed that the

Page: 26 of 54

Case: 12-15844

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

Page: 27 of 54

27

“‘[u]nnecessary and wanton infliction of pain’ upon
incarcerated individuals under color of law constitutes a
violation of the Eighth Amendment.” Id. at 1059 (quoting
Hudson, 503 U.S. at 5) (alteration in original). We explained
that “a prisoner must allege acts or omissions sufficiently
harmful to evidence deliberate indifference to serious medical
needs” in order to state a cognizable Eight Amendment claim,
and that “[a] ‘serious’ medical need exists if the failure to
treat a prisoner’s condition could result in further significant
injury or the ‘unnecessary and wanton infliction of pain.’” Id.
(quoting Estelle, 429 U.S. at 104). We then expanded upon
Estelle as follows:
The existence of an injury that a reasonable
doctor or patient would find important and
worthy of comment or treatment; the presence
of a medical condition that significantly
affects an individual’s daily activities; or the
existence of chronic and substantial pain are
examples of indications that a prisoner has a
“serious” need for medical treatment.
Id. at 1059–60 (emphasis added).
We have since relied on McGuckin’s “worthy of
comment” standard, but have done so in just two published
cases,3 and it is not clear that either case depended on such a
3

It appears in a dozen or so of our unpublished opinions. See, e.g.,
Padilla v. Crawford, 288 Fed. App’x. 389, 391 (9th Cir. 2008). Many
district courts within our circuit have cited to McGuckin as well. At least
four circuits have cited McGuckin’s comment-worthiness standard,
although it is unclear whether those circuits require proof of pain as well.
See, e.g., Blackmore v. Kalamazoo Cnty, 390 F.3d 890, 897 (6th Cir.
2004) (“Most other circuits hold that a medical need is objectively serious

Case: 12-15844

28

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

broad rephrasing of the Supreme Court’s standard. See
Wilhelm v. Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012)
(citing McGuckin for the proposition that a hernia is “‘an
injury that reasonable doctor or patient would find important
and worthy of comment or treatment,’” 974 F.2d at 1059–60;
but also citing Jones v. Johnson, 781 F.2d 769, 771 (9th Cir.
1986) (“He alleges suffering and pain from his herniated
condition . . . .”)); see also Lopez v. Smith, 203 F.3d 1122,
1131–32 (9th Cir. 2000) (en banc) (concluding that postoperative care for jaw that was broken and wired shut was
“the kind of injury a doctor would find noteworthy” and was
“likely painful”). But more frequently, we have resorted to
the standard statement that “the plaintiff must show a serious
medical need by demonstrating that failure to treat a
prisoner’s condition could result in further significant injury
or the unnecessary and wanton infliction of pain.” Jett v.
Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal
quotation marks omitted); see also Snow v. McDaniel,
681 F.3d 978, 985 (9th Cir. 2012) (“To meet the objective
standard, the denial of a plaintiff’s serious medical need must
result in the ‘unnecessary and wanton infliction of pain.’”
(quoting Estelle, 429 U.S. at 104)), overruled on other
grounds by Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir.
2014) (en banc); Hallett v. Morgan, 296 F.3d 732, 744–45
(9th Cir. 2002); Wakefield v. Thompson, 177 F.3d 1160,
1164–65 (9th Cir. 1999). Most recently, we stated that “[a]
medical need is serious if failure to treat it will result in
if it is one that has been diagnosed by a physician . . . or one that is so
obvious that even a lay person would easily recognize the necessity for a
doctor’s attention.”) (internal quotation marks omitted); Chance v.
Armstrong, 143 F.3d 698, 702 (2d Cir. 1998) (describing commentworthiness as a “highly relevant” consideration); Gutierrez v. Peters,
111 F.3d 1364, 1374 (7th Cir. 1997) (describing McGuckin as “sensible”);
Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996).

Page: 28 of 54

Case: 12-15844

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

Page: 29 of 54

29

‘significant injury or the unnecessary and wanton infliction of
pain.’” Peralta, 744 F.3d at 1081(quoting Jett, 439 F.3d at
1096).
The majority relies on the “worthy of comment”
statement from McGuckin.4 The majority first recites our
statement from McGuckin, Maj. Op. at 10, and then applies
it: “Several doctors, including an ophthalmologist and an
optometrist, have found the cataract and resulting vision loss
‘important and worthy of comment or treatment.’” Maj. Op.
at 13 (quoting McGuckin, 974 F.2d at 1059). From this, and
the anecdotal evidence that he has injured himself because of
his monocular blindness, the majority concludes that
“Colwell’s total blindness in one eye is a serious medical
need.” Maj. Op. at 13. The majority makes no claim that
Colwell suffers from any pain attributable to his medical
condition.
Our assertion in McGuckin, 974 F.2d at 1059, relied on by
the majority here, that “an injury that a reasonable doctor or
patient would find important and worthy of comment or
treatment” is a “serious medical need” covered by the Eighth
Amendment has no provenance in any case that I can find.
And the comment-worthiness standard is untethered from the
Supreme Court’s insistence that the Cruel and Unusual
Punishments Clause has at its core the infliction of
“unnecessary and wanton pain.” Moreover, so far as I can
determine, this is the first time we have a case in which the
comment-worthiness standard really matters.

4

The majority does not, and could not, rely on the other examples of
serious medical needs cited in McGuckin: a medical condition that
“significantly affects” an inmate’s daily activities or “chronic and
substantial pain.” McGuckin, 974 F.2d at 1060.

Case: 12-15844

30

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

We have adopted the wrong standard. In the end,
McGuckin’s comment-worthiness standard does not follow
from the Supreme Court’s jurisprudence. The touchstone for
Eighth Amendment violations has always depended on some
showing that the punishment, the conduct of prison and
medical officials, or the conditions of confinement have
resulted in the “the unnecessary and wanton infliction of
pain.” See Wilson, 501 U.S. at 297 (internal quotation marks
and emphasis omitted) (emphasis added); Hudson, 503 U.S.
at 5; Whitley, 475 U.S. at 320; Rhodes, 452 U.S. at 348;
Estelle, 429 U.S. at 104; see also Estelle, 429 U.S. at 106
(“Medical malpractice does not become a constitutional
violation merely because the victim is a prisoner.”).
Making the Eighth Amendment turn on a doctor’s notes
does not approach this touchstone. Doctors may comment on
patient’s conditions for many reasons unrelated to pain.
Doctors have an obligation to diagnose symptoms of physical
and mental illnesses. Sometimes the body sends imperfect or
mixed signals. Doctors will frequently tell us that a condition
“bears watching.” Sometimes we go to doctors for matters
that are inconvenient or cosmetic. Sometimes we will have
complaints—real or imagined—that the doctor cannot verify.
Our complaints may be medically noteworthy even if they
fall well short of threatening our lives or causing us
temporary or persistent pain.
Our McGuckin comment-worthiness standard is all the
more troubling because it does not even depend on a doctor
thinking the matter is worthy of comment. Under McGuckin,
it is sufficient if the “patient would find [the injury] important
and worthy of comment or treatment.” McGuckin, 974 F.2d
at 1059 (emphasis added). After McGuckin, a patient may
self-report an Eighth Amendment violation based on his own

Page: 30 of 54

Case: 12-15844

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

Page: 31 of 54

31

perception of what is “important and worthy of comment or
treatment.” No medical diagnosis is required.
II
It is understandable that the majority bases much of its
serious medical need analysis on McGuckin’s commentworthiness standard because Colwell’s cataract does not
cause the “wanton infliction of pain.” Gregg, 428 U.S. at
173. But I cannot agree with the majority that Colwell has
endured “cruel and unusual punishment” simply because the
doctors commented on his cataract and recommended that it
be corrected surgically. Given the importance of medical
records, it would be surprising if the medical professionals
had failed to document his cataract or monocular blindness.
Although Colwell’s doctors noted his cataract, no one
documented that the cataract caused Colwell any pain or
discomfort. Nor did anyone suggest that Colwell was
significantly limited in his life’s activities. Nor does the
record support such a conclusion. In his deposition, Colwell
does not complain of any pain or discomfort from his
cataract. The State’s doctors confirmed that cataracts do not
generally cause pain. Dr. Scott wrote that “[a] cataract does
not cause pain. Plaintiff did not complain of any pain due to
his cataract.” Dr. Bannister confirmed that “[a] cataract does
not cause pain.” Nor does the cataract pose any direct threat
to Colwell’s physical well-being. Dr. Bannister’s declaration
states “a cataract is not a condition that constitutes a medical
emergency, nor does a cataract require urgent medical
attention. . . . A cataract does not lead to permanent vision
loss.” Dr. Scott stated that Colwell “had documented normal
vis[ion] in his left eye. Non-intervention to the right eye
cataract presented no further health risks to the Plaintiff.” He

Case: 12-15844

08/14/2014

32

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

further observed that “[w]hile any cataract can be removed
surgically, the removal of a cataract is not medically
necessary in many cases because the cataract does not
structurally damage the eye.”
Even though Colwell is not in any physical pain, the
untreated cataract and his resulting blindness may create a
condition of his confinement that causes unnecessary pain
and suffering. The majority so concludes:
[T]he evidence showed that Colwell was not
“merely blind” in one eye, but that his
monocular blindness caused him physical
injury: He ran his hand through a sewing
machine on two occasions while working in
the prison mattress factory; he ran into a
concrete block, splitting open his forehead; he
regularly hits his head on the upper bunk of
his cell; and he bumps into other inmates who
are not good-natured about such encounters,
triggering fights on two occasions.
Maj. Op. at 13.
None of these incidents withstands scrutiny. Let’s start
with the sewing machine incidents. The evidence that
Colwell ran his hand through a sewing machine comes from
a 2003 medical consultation report.5 It reads: “P[atient] has
run his hand through sewing machine twice this past 10
months.” Colwell sewed mattresses in a prison workshop

5

As the majority states, Colwell’s medical records filed under seal
remain under seal except as to facts discussed herein, in the majority’s
opinion, or in the parties’ briefs. Maj. Op. at 6 n.1.

Page: 32 of 54

Case: 12-15844

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

Page: 33 of 54

33

from 2000 to 2009, except for 2004. At no time in his
deposition (or in his complaint) did Colwell mention running
his hands through a sewing machine. In his deposition,
Colwell generally complained that he “was having trouble
with [his] sewing ability,” and could not continue “working
in a mattress factory where [he was] required to do very fine
work.” When the mattress operation was moved to another
correctional facility, Colwell decided to quit and leave that
facility. “Well, my work was being adversely affected, on
top of I didn’t like it there. So I exercised my right to be
transferred.” If there was a problem in 2003, it was not of
sufficient concern to Colwell to seek medical attention.
Colwell refused his annual medical examinations for the next
five years, from 2004 to 2008, because he “[didn’t] like the
medical department in general.” There is nothing in
Colwell’s allegations or deposition that would connect these
incidents to his cataract.
The evidence of Colwell “splitting open his forehead”
does not tell us much either. Colwell testified that in 2011 he
was bending over and “split [his] eye open, [his] left
eyebrow, on a cement block.”
Of course, as he
acknowledged, the left side was “on the side that [he could]
see,” but he thought “something [wa]s out of whack.” He
reported the incident to an officer, who told him to report to
the medical unit. Colwell thought the medical unit was going
to charge him for the visit, so he refused. By the time he got
to the medical unit, within ten minutes of the incident, he was
not bleeding:
Q: Did you require any stitches?
A: No.

Case: 12-15844

08/14/2014

34

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER
Q: Did you get a Band-Aid?
A: No.

The majority also relies on the fact that Colwell regularly
hits his head on the upper bunk. Colwell, by the way, is 6'6"
and weighs 270 lbs. And as Colwell recognizes, he has “a
lower bunk and the upper bunk is probably four and a half
feet high.” There are “always scratches and breaks on the
back of [his] head,” but he has never required treatment for
bumping his head. This is unfortunate, but ask any tallerthan-average person who has had to sit on a bus or an airplane
or cram into desks or beds that are too short and they will
testify that these are the natural consequences of being tall.
Additionally, Colwell himself candidly recognized that it
might be a consequence of getting older: “I don’t know how
much of it is just being senile and old, you know, but it
happens.”
Finally, the majority points to the claim that Colwell
bumps into other inmates and that this has resulted in at least
two fights. Here is what Colwell said: “I have had two
fistfights and numerous occasions where I have had to
apologize.” However, Colwell has no disciplinary history of
fighting. As Colwell explains, “[they]’re in very crowded
spaces. There’s a limited amount of area that [they] can
walk, that [they] can live.” One of the incidents was in 2007
or 2008, and Colwell and his antagonist each threw a punch
and then engaged in some shoving. Neither suffered any
injuries, and the incident was not reported. The second
incident occurred in 2009. Colwell walked into another
prisoner on his right side. The man later confronted Colwell
and, because Colwell was bigger and stronger, he just “took
care of it,” later apologizing to the man. Again, there were no

Page: 34 of 54

Case: 12-15844

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

Page: 35 of 54

35

injuries and no reports filed. Aside from these two fights,
Colwell testified that he “probably run[s] into somebody two
or three times a month, and probably one in five or one in six
requires an explanation.” He attributes these run-ins to his
cataract because they always occur on his right side. By
Colwell’s own estimate, he has to apologize to someone he
runs into about once every other month. Given the confined
space in which prisons operate and Colwell’s physical size,
having to apologize once every two months for bumping into
to someone doesn’t seem the stuff of cruel and unusual
punishment.
In other respects, Colwell’s activities demonstrate that he
is relatively unrestricted in his life. He testified that he
meditates and participates in religious services. He plays
cards and attends a computer class. He describes himself as
“a voracious reader. [He] reads a book a day very often when
[he’s] doing well.” He says that he exercises regularly by
walking, but cannot participate in sports because he can no
longer shoot baskets, play pool, or catch a baseball.
Taken together, these incidents do not amount to the kind
of pain and suffering necessary to challenge the conditions of
his confinement under the Eighth Amendment.
III
Because Colwell does not suffer any physical pain from
his cataract and does not suffer generally from his monocular
blindness, the majority’s decision is only supportable if
monocular blindness is per se a serious medical need.
Although the majority does not say as much, that is the
undeniable take-away from its opinion, and prisons within the
circuit will refuse elective cataract surgery at their peril. See

Case: 12-15844

08/14/2014

36

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

Maj. Op. at 11 (“[M]onocular blindness is a serous medical
need.”); id. at 14 (“Colwell continues to suffer blindness in
his right eye, which is harm in and of itself, along with all of
the other harms and dangers that flow from that.”).
Let there be no question that I believe that monocular
blindness is a serious condition. And if I had monocular
blindness and the means to cure it, I would surely do so. But
if the bare fact of being blind in one eye may be considered
a disability,6 it is not crippling. There are many Americans
who have monocular vision and are perfectly functional.
They hold jobs, drive cars,7 play sports, watch movies, and
6

The majority advises that the Supreme Court considers monocular
vision to be a disability under the Americans with Disabilities Act. Maj.
Op. at 12 n.3 (citing Albertsons, Inc. v. Kirkingburg, 527 U.S. 555,
566–67 (1999)); see also EEOC v. United Parcel Serv., Inc., 424 F.3d
1060, 1064–65 (9th Cir. 2005).
The majority’s reference to the ADA is odd because the ADA serves
a very different purpose from the Eighth Amendment. The ADA is a
broad law designed “to provide a clear and comprehensive national
mandate for the elimination of discrimination against individuals with
disabilities.” 42 U.S.C. § 12101(b)(1). In addition to eliminating
discrimination, the ADA seeks to improve quality of life for disabled
individuals by improving accessibility. See Chapman v. Pier 1 Imps.
(U.S.) Inc., 631 F.3d 939, 945 (9th Cir. 2011) (“[T]he ADA proscribes
more subtle forms of discrimination . . . that interfere with disabled
individuals’ full and equal enjoyment of places of public accommodation.”
(internal quotation marks omitted)). By contrast, the Eighth Amendment
is not “an aspiration toward an ideal environment for long-term
confinement.” Rhodes, 452 U.S. at 349.
7
The vast majority of states grant drivers licenses to individuals with
monocular vision. See Paul G. Steinkuller, MD, Legal Vision
Requirements for Drivers in the United States, 12 Am. Med. Ass’n J. of
Ethics 911, 938 (Dec. 2010), available at virtualmentor.amaassn.org/2010/12/pdf/hlaw1-1012.pdf. Furthermore, a study of individuals

Page: 36 of 54

Case: 12-15844

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

Page: 37 of 54

37

move among the binocular population without us even being
aware of their condition.8
This same question, whether a cataract resulting in partial
or total blindness constitutes a serious medical condition, has
vexed the courts that have considered it. The majority cites
to several courts who have found that cataracts are a serious
medical need and that the prisons are obligated to treat it. See
Maj. Op. at 11–13 & n.3. The record is more mixed than the
majority admits. As the majority points out, a number of
courts, including district courts in our circuit (largely in
Nevada), have held that cataracts are a “serious medical
condition” for purposes of the Eighth Amendment. See, e.g.,
Cobbs v. Pramstaller, 475 F. App’x 575 (6th Cir. 2012);
Michaud v. Bannister, No. 2:08-CV-01371-MMD-PAL, 2012
WL 6720602 at *4–6 (D. Nev. Dec. 26, 2012); Morris v.
Corr. Med. Servs., No. 2:07-CV-10578, 2012 WL 5874477
at *3 (E.D. Mich. Nov. 20, 2012) (“[A] lay person would
easily recognize the necessity for a doctor to extract a
cataract.”); Layton v. Bannister, No. 3:10-CV-00443-LRHWGC, 2012 WL 6969758 at *6 (D. Nev. Sept. 28, 2012)
who suffered sudden monocular blindness adjusted to driving, working,
recreation, home activities, and walking within one month of the sudden
loss. John V. Linberg, M.D., et al., Recovery After Loss of an Eye,
3 Ophthalmic Plastic & Reconstructive Surgery, 135, 135–38 (1988). Of
those studied, 93% were fully adjusted within a year. Id. In a study of
125 monocular patients, 85 out of 125 said that loss of vision had not
changed their lives in any permanent way. Id.
8

A list of well known monocular persons might include leaders such as
Moshe Dyan, Theodore Roosevelt, and Mo Udall; writers such as James
Joyce, William Shirer, and Alice Walker; and entertainers such as Sandy
Duncan, Peter Falk, Rex Harrison, Claude Rains, Sammy Davis Jr., and
Johnny Depp. See, e.g., LostEye, Success After the Loss of an Eye,
www.losteye.com/oneeyers.htm (last visited Aug. 1, 2014).

Case: 12-15844

08/14/2014

38

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

(finding that the referral for surgery was “evidence of an
injury that a reasonable doctor would find important and
worthy of comment or treatment” while relying on
McGuckin); Hunt v. Mohr, No. 2:11-CV-00653, 2012 WL
1537294 at *4 (S.D. Ohio May 1, 2012) (cataracts constitute
a serious medical need); White v. Snider, No. 3:08-CV-252RCJ (VPC), 2010 WL 331742 (D. Nev. Jan. 26, 2010);
Garcia v. Nev. Bd. of Prison Comm’rs, No. 3:06-CV-0118JCM (VPC), 2008 WL 818981 (D. Nev. Mar. 24, 2008).9
On the other hand, a comparable number of
courts—including our court—have held that cataracts may
not be a serious medical condition. See, e.g., Hummer v.
Schriro, 407 F. App’x 112, 113 (9th Cir. 2010) (“Hummer
failed to present evidence showing that the defendant’s denial
of cataract surgery in his right eye has caused or will cause
further injury, or that the defendants knew of other serious
pain or medical problems caused by Hummer’s cataract”);
Thomas v. Stephens, No.7:10-CV-00090, 2011 WL 1532150,
at *4 (W.D. Va. Apr. 4, 2011) (“Plaintiff fails to establish that
his cataract constitutes a serious medical need under the
Eighth Amendment because the record does not demonstrate
a ‘substantial risk’ of serious harm or permanent disability.”);
Dupuis v. Caskey, No. 4:08CV63-LRA, 2009 WL 3156527,
at *4 (S.D. Miss. Sept. 28, 2009) (finding no deliberate
indifference because cataract surgeries are considered
9

Some of these cases have facts that present a much stronger case for an
Eighth Amendment violation than Colwell’s. For example, in Cobbs, the
inmate’s treating doctor advised that cataract surgery was necessary “to
prevent secondary glaucoma,” and that delayed cataract removal would
make surgery more complicated. 475 F. App’x at 578, 582. Similarly, the
inmate in Michaud suffered from a cataract that caused him severe
headaches, and doctors advised that the cataract could cause glaucoma or
permanent blindness. Michaud, 2012 WL 6720602, at *1, 4.

Page: 38 of 54

Case: 12-15844

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

Page: 39 of 54

39

elective (citing the American Optometric Association's
Optometric Clinical Practice Guidelines)); Hurt v. Mahon,
No. 1:09CV958(LO/JFA), 2009 WL 2877001, at * 2 (E.D.
Va. Aug. 31, 2009) (“[I]t is doubtful that a cataract is a
sufficiently serious medical need to support an Eighth
Amendment violation.”); Wilson v. Turner, No. 6:08-CV06056, 2009 WL 1634894, at * 6 (W.D. Ark. June 10, 2009)
(holding that cataract surgery was neither an emergency nor
a medical necessity); Rylee v. Bureau of Prisons, No. 8:08CV-1643-PMD-BHH, 2009 WL 633000 at *4 (D.S.C. Mar.
9, 2009) (BOP decision not to secure cataract surgery until
the remaining eye deteriorated further was not deliberate
indifference); Williams v. Shelton, No. 06-95-KI, 2008 WL
2789031, at *3 (D. Or. July 16, 2008) (delay in providing
cataract surgery on second eye was not deliberate
indifference); see also Samonte v. Bauman, 264 F. App’x
634, 635 & n.1 (9th Cir. 2008) (finding that delay before
conducting cataract surgery was not deliberate indifference
and declining to reach the issue whether there was “a serious
medical need”); United States v. Schuett, No. 2:-LO-CR-118RLH-RJJ, 2014 WL 289433 (D. Nev. Jan. 27, 2014)
(declining to order the early release of the inmate so he could
have cataract surgery in both eyes); Phillips v. Lindamood,
No. 3:09-1187, 2009 WL 5205379 (M.D. Tenn. Dec. 23,
2009) (doctor who declined to perform cataract surgery on a
second eye was not deliberately indifferent); Espinosa v.
Saladin, No. 1:08-CV-736, 2009 WL 3102483, at *3 (W.D.
Mich. Sept. 23, 2009) (denial of cataract surgery where
inmate had acceptable vision in his remaining eye was not
deliberate indifference); Stevenson v. Pramstaller, 2009 WL
804748 (E.D. Mich. Mar. 24, 2009).
What these cases demonstrate is that the question of
whether a cataract constitutes a “serious medical condition”

Case: 12-15844

40

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

has been a difficult and controversial one. The courts have
divided, and they have examined each case on its own facts.
No court has taken the step that ours takes today of
pronouncing that a cataract resulting in monocular blindness
is, categorically, a serious medical condition that the states
must correct under the Eighth Amendment. These cases,
from courts in the Fourth, Fifth, Sixth, Eighth, and Ninth
Circuits also tell us something about how the nation’s prisons
have addressed the problem: Nevada is not alone in its
decision to address cataracts on a case-by-case basis, rather
than categorically. That should also tell us, as I explain in the
next section, that our court has gotten well in front of our
“evolving standards of decency.” Rhodes, 452 U.S. at 346
(internal quotation marks omitted); see also id. (“[N]o static
‘test’ can exist by which courts determine whether conditions
of confinement are cruel and unusual.”).
IV
“Deliberate indifference is a high legal standard,” Toguchi
v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004), that is only
“satisfied by showing (a) a purposeful act or failure to
respond to a prisoner’s pain or possible medical need and
(b) harm caused by the indifference.” Jett, 439 F.3d at 1096.
Deliberate indifference does not include failure to treat a
condition that is not serious. See Estelle, 429 U.S. at 104–05;
see also Farmer, 511 U.S. at 837 (Deliberate indifference
requires that a prison official “knows of and disregards an
excessive risk to inmate health or safety.” (emphasis added));
Peralta, 744 F.3d at 1081–82. It also does not include “mere
negligence in diagnosing or treating a medical condition,”
Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir.
1988), or a difference of medical opinion, Jackson v.
McIntosh, 90 F.3d 330, 332 (9th Cir. 1996). Nor does

Page: 40 of 54

Case: 12-15844

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

Page: 41 of 54

41

deliberate indifference include a “mere delay of surgery . . .
unless the denial was harmful.” Shapley v. Nev. Bd. of State
Prison Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985). In sum,
“the offending conduct must be wanton.” Wilson, 501 U.S.
at 302.
Colwell cannot satisfy either of these conditions. He does
not “allege acts or omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs,” Estelle,
429 U.S. at 106, and he cannot show that the denial of
cataract surgery caused any harm. NDOC’s decision was a
reasonable one.
A
The majority holds that “the blanket, categorical denial”
of cataract surgery solely on the basis of an administrative
policy is “the paradigm of deliberate indifference.” Maj. Op.
3–4. I agree with the majority that “blanket policies” may run
afoul of the Eighth Amendment. Even the State “agrees that
a medical policy that is divorced from an inmate-patient’s
medical needs would be constitutionally defective.” But here,
the majority’s description of Medical Directive 106 is
erroneous because it is not a blanket “one good eye policy.”
Although Colwell and the majority repeatedly refer to
Medical Directive 106 as a “one good eye policy,” that phrase
appears nowhere in the Directive or in the official responses
that Colwell received. The evidence for such an explicit
policy is all hearsay. It was Colwell who first complained
that doctors and a nurse told him there is a “one good eye
policy.” That claim is belied by the record, both the official
published policy and the way in which NDOC treated
Colwell’s request. NDOC has published protocols for

Case: 12-15844

42

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

medical conditions and a directive specifically for cataracts.
Medical Directive 106, entitled “Cataracts” states as follows:
“It is the policy of the Department that inmates with cataracts
will be evaluated on a case by case basis, taking into
consideration their ability to function within their current
living environment.”10 With respect to “[s]urgical removal of
cataracts,” Medical Directive 106 provides that “[p]atients
with visual impairment incompatible with the ability to
perform the required tasks of daily living in their current
living environment may be considered for removal of a
cataract.”
Moreover, Colwell’s experience demonstrates that
Nevada has not categorically refused Colwell treatment. In
fact, Nevada provided Colwell with corrective cataract
surgery on his left eye in 2001. In response to his grievances
filed in 2010 (the latest for which we have a record), he was
denied his request for surgery at the informal level of review
because his remaining eye was “corrected to 20/20 vision,”
which put any surgery in a “non-essential category.” At the
first level of review, NDOC repeated that his surgery was “at
present non-essential. Your one eye is corrected to 20/20.”
At the second, and final level of review, NDOC stated that
“[i]n almost [all] cases cataract surgery is not an emergency.
You should be evaluated periodically to determine the degree
of impairment caused by your cataract with regard to your
ability to perform the activities required in your current living

10
Ironically, Medical Directive 106 is quite consistent with McGuckin’s
alternative description of a serious medical condition as “a medical
condition that significantly affects an individual’s daily activities.”
McGuckin, 974 F.2d at 1060. The majority, of course, makes no claim
that Colwell’s condition significantly affects his daily activities.

Page: 42 of 54

Case: 12-15844

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

Page: 43 of 54

43

situation. Based on the practitioner[’]s evaluation the request
can be re-considered.”
Case-by-case policies such as Nevada’s are fully
consistent with accepted medical and prison practices.
Indeed, Nevada’s policy appears to be more generous than the
comparable federal policies. The Federal Bureau of Prison’s
“Opthalmology Guidance” provides that “emergent or urgent
ophthalmologic surgeries should never be delayed” and that
“all elective ophthalmologic surgery, including surgery for
cataracts” must be approved by the Regional Medical
Director. Federal Bureau of Prisons, Ophthalmology
Guidance 5 (Feb. 2008), available at www.bop.gov/resources/
pdfs/opthamology_guidance_2008.pdf. The criteria for that
decision are:
Cataract Surgery: There must be
documentation of a best-corrected visual
acuity of less than 20/60 in both eyes with
current (less than six months old) refraction.
Second eye surgery requires a documented,
best-corrected visual acuity of 20/100 or less.
Id. BOP will consider special circumstances, such as the
need for “retinal visualization (i.e., not for improvement in
vision).” Id. at 6.11 Similarly, the United States Marshals
11

These guidelines were at issue in Rylee v. Bureau of Prisons, 2009
WL 633000. In Rylee, the inmate had a cataract in his right eye that was
rapidly progressing. Id. at *2. His optometrists recommended that he
receive cataract surgery, but Rylee did not come within BOP’s guidelines
because his good left eye had visual acuity of 20/60 or better. Id. Rylee
was not in pain, and the doctors stated that delaying any surgery would not
cause any irreparable damage to the eye. Id. at *4. They also stated that
when Rylee’s vision was less than 20/60 for six months “and his condition

Case: 12-15844

44

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

Service classifies cataract surgery as elective and a “nonauthorized medical intervention/procedure.” Cataract surgery
will not be authorized payment unless ordered by a court or
pre-authorized by the Office of Interagency Medical Services.
U.S. Marshals Service, Prisoner Health Care Standards 2,
13, 16 (Nov. 2007), available at www.usmarshals.gov/foia/
Reading_Room_Information/Publications/prisoner_health_
care_standards.pdf
The states within our circuit have similar policies.
Washington, for example, has a policy quite close to the
BOP’s. It authorizes care for an inmate’s “[w]orst one eye if
both eyes have best corrected [visual acuity] <20/60” or
“[e]ither or both eyes if inadequate visualization of retina for
screening, management, or monitoring of another disease, e.g.
diabetic retinopathy.” Washington Dep’t of Corrs., Offender
Health Plan 17. Like Nevada, Oregon provides that the
treatment of cataracts is classified as “[m]edically
[a]cceptable but not [m]edically [n]ecessary” and that
treatment “[w]ill be authorized on an individual-by-individual
basis or a problem-by-problem basis.” The factors Oregon
will consider include “[w]hether the surgery/procedure could
be or could not be reasonably delayed without causing a
significant progression, complication, or deterioration of the
condition,” the “[m]edical necessity – the overall morbidity
and mortality of the condition if left untreated,” and the
“[p]ain [c]omplaints/[p]ain [b]ehaviors.” Oregon Dep’t of
interferes with his activities of daily living, Mr. Rylee [would] be
considered for cataract surgery.” Id. The district court granted judgment
for the defendants because “the record, in no way, reflect[ed] that
Defendants exhibited deliberate indifference to Plaintiff’s condition
Defendants’ decision to adhere to federal prison guidelines rather than
follow the optometrist’s recommendation of cataract surgery constitute[d]
a difference of medical opinion.” Id.

Page: 44 of 54

Case: 12-15844

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

Page: 45 of 54

45

Corrs., Health Servs. Section Policy and Procedure #P-A02.1.B.3.C). Alaska likewise describes corneal transplants
for cataracts as “[m]edically [a]cceptable but not [m]edically
[n]ecessary.” Alaska Dep’t of Corrs., Prisoner Health Plan
7 (June 26, 2002).12 California does not mention cataracts
specifically but has a general policy of “only provid[ing]
medical services for inmates, which are based on medical
necessity.” Cal. Code Regs. tit. 15, § 3350(a) (2014).
“Medically [n]ecessary means health care services that
are determined by the attending physician to be
reasonable and necessary to protect life, prevent significant
illness or disability, or alleviate severe pain.” Id. at tit. 15,
§ 3350(b)(1). “Significant illness and disability” means “any
medical condition that causes or may cause if left untreated
a severe limitation of function or ability to perform the daily
activities of life or that may cause premature death.” Id. at tit.
15, § 3350(b)(5).13
12

Alaska’s general policy provides that prisoners have “the right to
receive essential health care services.” These services include medical
services when a healthcare provider concludes that (1) the prisoner’s
symptoms indicate “a serious disease or injury” (2)that “treatment could
cure or substantially alleviate” and (3) there is either “potential for harm
if treatment is delay or denied” or “[s]ervices are needed to alleviate pain
and suffering.” Alaska Dep’t of Corrs., Policies and Procedures 807.02,
VII.B.1 (June 18, 2008).
13

I have not been able to locate exact rules for Hawaii, Idaho and
Montana. Idaho has a general rule that “[a]ny extraordinary treatment
shall be approved by the health authority prior to treatment.” Idaho
Admin. Code 06.01.01.302.05.c (2014). Montana has different approach:
“All residents [at community correctional centers] shall pay for their own
. . . medical and dental expenses.” Mont. Admin. R. 20.7.204(1) (1982).
Similarly, inmates incarcerated Hawaii are responsible for a medical copayment for many types of treatment, and must pay the full cost of
elective procedures. Hawaii Dep’t of Public Safety, Policy No.
COR.10.1A.13 (2010).

Case: 12-15844

08/14/2014

46

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

Colwell’s case evidences the fact that NDOC makes
individualized, case-by-case assessments, as required by
Medical Directive 106, because Colwell received cataract
removal surgery on his left eye in 2000 despite the fact that
he had vision in both eyes. Nevada’s policy,14 which is
consistent with that of other jurisdictions, both federal and
state, is not a blanket “one good eye” policy.
B
If NDOC does not have a policy of not treating cataracts,
then we need to consider the facts of Colwell’s case. In
Estelle, the Supreme Court held that “a prisoner must allege
acts or omissions sufficiently harmful to evidence deliberate
indifference.” 429 U.S. at 106. We have held that deliberate
indifference requires a showing that failure to treat an
inmate’s condition “could result in further significant injury
or the unnecessary and wanton infliction of pain.” Jett,
439 F.3d at 1096 (internal quotation marks omitted).
Judged by that standard, prison officials have not been
deliberately indifferent to Colwell’s condition. Colwell has
been blind in his right eye since 2002, and his condition has
not worsened since then. During the time that he had the
cataract, Colwell declined medical treatment—that is, he
decided to live with the condition—for five years. It is
undisputed that Colwell’s cataract is not painful and that the
cataract has not—and will not—cause irreversible damage.
His monocular vision can be corrected by surgery in the

14

Nevada urges us to adopt a test for “overall visual acuity” to
determine who has a “serious medical need” and is entitled to cataract
surgery. That standard, although not articulated in Medical Directive 106,
is closest to the BOP’s and the State of Washington’s guidelines.

Page: 46 of 54

Case: 12-15844

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

Page: 47 of 54

47

future, and NDOC has said that it will revisit the question of
surgery should anything change in Colwell’s condition.15
Alternatively, the majority cites “the other harms and dangers
that flow from” monocular blindness as evidence of
deliberate indifference. Maj. Op. at 14. But as I discussed
above, these harms and dangers cannot support a finding of
deliberate indifference.
To the extent that there are future dangers that may be
caused by monocular blindness, there is no evidence that such
unidentified dangers pose an “unreasonable risk of serious
damage to his future health.” Helling, 509 U.S. at 35. Given
Colwell’s history, it is probable that these future “dangers”
include unfortunate, but minimally harmful, cuts and scrapes.
Such potential injuries are not enough to show that NDOC’s
denial of surgery poses an unreasonable risk of serious
damage to Colwell’s future health. Accordingly, I would
hold that Colwell cannot prove “harm caused by the
indifference,” as required by Jett. See 439 F.3d at 1096.
NDOC, like all prisons, must make difficult decisions
about inmate medical care and control costs wherever
possible, consistent with the Eighth Amendment. See
Peralta, 744 F.3d at 1084 (“A prison medical official who
fails to provide needed treatment because he lacks the
necessary resources can hardly be said to have intended to
punish the inmate.”). I assume that NDOC would prefer to
treat Colwell’s cataract.
But, given his individual
circumstances, NDOC made a reasonable medical decision

15

The majority states that monocular blindness “is harm in and of
itself.” Maj. Op. at 14. This reasoning begs the question. Were the
majority’s reasoning correct, any injury or condition would qualify
because the injury would be harm in and of itself.

Case: 12-15844

48

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

that Colwell would receive regular evaluations to monitor his
condition, and if it worsens, would consider a new medical
request. Although NDOC’s administrators and physicians
may have a different perspective from that of Colwell’s
treating physicians, monitoring a cataract, rather than
performing surgery, is a legitimate medical decision. See
Am. Optometric Ass’n, Care of the Adult Patient with
Cataract 17 (2010), available at www.aoa.org/documents/
optometrists/CPG-8.pdf (“If the patient has few functional
limitations as a result of the cataract and surgery is not
indicated, it may be appropriate to follow the patient at 4 to
12-month intervals to evaluate eye health and vision.”). And
such differences of opinion do not evidence deliberate
indifference. Jackson, 90 F.3d at 332 (“[W]here a defendant
has based his actions on a medical judgment that either of two
alternative courses of treatment would be medically
acceptable under the circumstances, plaintiff has failed to
show deliberate indifference, as a matter of law.”); see also
Cobbs, 475 F. App’x at 582–83 (finding that a directive to
monitor an inmate’s cataract closely was “the product of
considered medical judgment”); Samonte, 264 F. App’x at
636 (holding that refusal to authorize cataract surgery after a
doctor recommended surgery was a difference of medical
opinion). Indeed, this is not a case where “an individual sat
idly by as another human being was seriously injured,”
McGuckin, 974 F.2d at 1060, because NDOC provided
Colwell with regular eye care. As the majority states,
Colwell received cataract surgery on his left eye, yearly
physicals, and consultations with an opthamologist and an
optometrist. See Maj. Op. at 5–7. Such routine eye care
“belies the notion that [NDOC] acted with deliberate
indifference.” Cobbs, 475 F. App’x at 583; see also Estelle,
429 U.S. at 107 (finding inmate’s claim noncognizable where
he received medical treatment on seventeen occasions.);

Page: 48 of 54

Case: 12-15844

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

Page: 49 of 54

49

Hummer, 407 F. App’x at 113 (upholding summary judgment
where inmate “failed to present evidence showing that the
defendants’ denial of cataract surgery in his right eye has
caused or will cause further injury”).16
NDOC’s treatment was reasonable. Colwell is not in any
pain and he is able to engage in many activities. The
alternative course of treatment that NDOC selected—wait
and see—did not cause life-threatening injury. Because of
Colwell’s functionality, NDOC’s decision not to authorize
cataract removal surgery was consistent with Medical
Directive 106. Instead, this case is most like Samonte and
Layton, where this court and the District of Nevada found that
NDOC’s refusal to authorize cataract removal surgery did not
violate the Eighth Amendment. See Samonte, 264 F. App’x
at 636 (“Dr. Bauman’s refusal to authorize cataract surgery
after another doctor determined that such surgery was an
option was a difference of medical opinion, insufficient by

16

The panel cites Snow, 681 F.3d 978, as an example where prison
officials rejected the recommendations of outside specialists and
unreasonably denied the inmate surgery for two years. Maj. Op. at 15.
The majority’s reliance on Snow is misplaced. In Snow, the inmate was
in “excruciating and unbearable pain.” 681 F.3d at 983. Snow’s hips had
degenerated to the point where he was barely able to walk, could not
kneel, and required assistance with everyday activities such as getting out
of bed and putting on his socks. Id. at 982–83. The state even conceded
that Snow had a serious medical need. Id. at 985. But after Snow’s
treating physicians indicated that he needed bilateral hip replacement
surgery, NDOC authorized only pain relievers and anti-inflammatories.
Id. at 983. In turn, the medications made Snow’s creatinine levels
skyrocket, causing a potentially life-threatening situation. Id. at 984. We
observed that the inmate’s medical condition interfered with his ability to
function. Id. And we questioned whether it was a reasonable medical
decision to adopt a medication only approach, where doing so long-term
caused additional serious medical problems. Id. at 988.

Case: 12-15844

50

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

itself to raise a triable issue of deliberate indifference.”)
(internal quotation marks omitted); Layton, 2012 WL
6969758 at *10 (finding no deliberate indifference where
“[d]efendant’s decision to deny Layton’s request for cataract
surgery on the grounds that Layton’s condition did not meet
the prison’s medical criteria amounts to a difference of
opinion regarding the appropriate course of treatment.”).
Finally, NDOC could not have been deliberately
indifferent to Colwell’s serious medical needs if it did not
know why Colwell required cataract removal surgery or
whether surgery was necessary for Colwell to complete the
required activities of daily living. Farmer, 511 U.S. at
837–38 (clarifying that deliberate indifference is comparable
to a reckless mens rea in that recklessness is the disregard of
a known risk of harm). His annual physicals—at least those
to which Colwell consented—ask the physician to report
whether he had any “functional limitation/disability.” There
are no comments in these sections. In a 2009 Consultation
Report, Dr. Scott checked “yes” to the question “[d]oes this
condition significantly affect qualify of life?”, but he did not
explain how the condition affected Colwell, and he wrote on
the front of the report that he had discontinued the report
altogether. In sum, neither Colwell’s requests nor the
discontinued consultation report provided information that
put prison officials on notice that Colwell’s cataract rendered
him unable to perform the required tasks of daily living.
I would hold that the respondents were not deliberately
indifferent to Colwell’s alleged “serious medical needs,”
because Colwell did not meet the difficult legal burden of
showing “a purposeful act or failure to respond to a prisoner’s
pain or possible medical need and [ ] harm caused by the
indifference.” Jett, 439 F.3d at 1096.

Page: 50 of 54

Case: 12-15844

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

Page: 51 of 54

51

V
The realities of an overcrowded prison system force
difficult choices about the appropriate treatment for inmates’
medical needs. The growing number of elderly inmates
makes this problem all the more difficult because physical
and mental functions often decline with age.17 Between 2007
and 2010, the number of prisoners over the age of 65 grew 94
times faster than the general prison population; it is estimated
that one third of prisoners will be over the age of 50 by
2030.18 Nationally, it costs $16 billion to incarcerate 246,600
elderly inmates. American Civil Liberties Union, The Mass
Incarceration of the Elderly 28 (June 2012), available at
https://www.aclu.org/files/assets/elderlyprisonreport_2012
0613_1.pdf. According to the State, in Nevada, elderly
inmates constitute 5.8% of the state’s prison population, but
they account for 20% of the prison’s annual budget.19
Cataracts are a particularly common—and costly—
problem. In the general population, 20.5 million Americans
over the age of 40 have cataracts. See, Centers for Disease
17

See Nadine Curran, Blue Hairs in the Bighouse: The Rise in the
Elderly Inmate Population, Its Effect on the Overcrowding Dilmma and
Solutions to Correct It, 26 New. Eng. J. on Crim. & Civ. Confinement
225, 239–40 (2000) (describing changes caused by aging); Timothy
Curtin, The Continuing Problem of America’s Aging Prison Population
and the Search for a Cost-Effective and Socially Acceptable Means of
Addressing it, 15 Elder L.J. 473, 481 (2007).
18
Casey N. Ferri, A Stuck Safety Valve: The Inadequacy of
Compassionate Release for Elderly Inmates, 43 Stetson L. Rev. 197,
197–98 (2013).
19

Nevada has the sixth largest elderly inmate population in the nation.
See ACLU, The Mass Incarceration of the Elderly at Figure 2A.

Case: 12-15844

52

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

Control and Prevention, Common Eye Disorders. The CDC
predicts that 30.1 million Americans will have at least one
cataract by 2020. Id. On average, 3 million Americans have
cataract surgery each year at an estimated cost of $3,279 per
surgery, and in 2013 alone the federal government spent $3.4
billion to treat cataracts through Medicare. See Statistic
Brain Research Institute, Cataract Statistics (verified July 28,
2013), www.statisticbrain.com/cataract-statistics.
If we are going to assume responsibility for prescribing
the level of health care for the nation’s inmates, we need to
consider the potential consequences of our choices. At some
point, the states may decide not to treat aging prisoners but
simply release them.20 The former inmates will still have
whatever serious medical conditions we identified, but some
may not have the benefit of the state’s care. Whether aging
prisoners will have the resources then to attend to their own
medical needs remains to be seen. See, e.g., Christine M.
Hummert, Middle of the Road, 32 J. Legal Med. 295, 295–96
(2011) (discussing mentally disabled inmates and expressing
concern that “many of those released from prison are literally
standing ‘in the middle of the road’ with nowhere to turn and
no one to turn to.”); Ronald H. Aday, Jennifer J. Krabill,
Aging Offenders in the Criminal Justice System, 7 Marq.
Elder’s Advisor, 237, 258 (“[I]nmates who have spent a
greater portion of their lives incarcerated will need intensive
discharge planning and community placement orientation.”);
Nancy B. Mahon, Symposium: Death and Dying Behind

20
Many jurisdictions already allow for compassionate release of
terminally ill inmates and those who suffer from chronic conditions. See
Brie A. Williams, M.D., et al., Balancing Punishment and Compassion for
Seriously Ill Prisoners, 155(2) Annals of Internal Medicine 122–26
(2011).

Page: 52 of 54

Case: 12-15844

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

Page: 53 of 54

53

Bars—Cross-Cutting Themes and Policy Imperatives, 27 J. L.
Med. & Ethics 213, 214 (1999) (“[M]ost prison systems do
not have the funds or the institutional impetus to provide
adequate discharge planning for ill prisoners.”).
I repeat myself: If I were the warden and had the
resources, I would treat Colwell’s cataract, just as I would
treat my own cataract, if I had the resources. And there is the
rub—the question of resources. I suspect that for a
significant number of Americans afflicted with cataracts,
surgery is beyond their means. Yet they function quite
normally among us, holding jobs and driving cars and
carrying on the ordinary activities of life. For most of them,
cataract surgery remains elective surgery. See Cleveland
Clinic, Cole Eye Institute, Cataracts and Cataract Surgery,
http://my.clevelandclinic.org/cole-eye/diseases-conditions/
hic-cataracts-cataract-surgery.aspx (last visited Aug. 1, 2014)
(“[T]he patient can decide if and when he or she wants to
have surgery (elective surgery).”); American College of Eye
Surgeons, Guidelines for Cataract Practice 7.2,
http://www.aces-abes.org/guidelines_for_cataract_practice.
htm (last visited Aug. 1, 2014) (“In most circumstances,
cataract surgery is elective.”). I do not understand the Eighth
Amendment to compel Nevada to provide surgery for John
Colwell that he might or might not seek for himself if he were
free to do so.
VI
“Caution is necessary lest this [c]ourt become, ‘under the
aegis of the Cruel and Unusual Punishment Clause, the
ultimate arbiter of the standards of criminal responsibility . . .
throughout the [Circuit].’” Gregg, 428 U.S. at 176 (quoting
Powell v. Texas, 392 U.S. 514, 533 (1968) (omission in

Case: 12-15844

54

08/14/2014

ID: 9204655

DktEntry: 47-1

COLWELL V. BANNISTER

original); see also Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th
Cir. 1982) (“The Eighth Amendment is not a basis for broad
prison reform.”). Although I sympathize with Colwell’s
plight, he was not denied medical treatment in violation of the
Eighth Amendment’s prohibition against cruel and unusual
punishment because the respondents were not deliberately
indifferent to Colwell’s condition. Accordingly, I would
affirm the judgment of the district court in favor of the
respondents.
I respectfully dissent.

Page: 54 of 54