Fleet Hamby v. Steven Hammond , 821 F.3d 1085 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FLEET C. HAMBY, No. 15-35283
Plaintiff-Appellant,
D.C. No.
v. 3:14-cv-05065-
RBL
M.D. STEVEN HAMMOND, Chief
Medical Officer, Washington
Department of Corrections, in his OPINION
individual and official capacities;
M.D. SARA SMITH, Former Facility
Medical Director, Stafford Creek
Corrections Center, in her individual
capacity; BERNARD WARNER,
Secretary, Washington Department
of Corrections, in his individual and
official capacities,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted
February 2, 2016—Seattle, Washington
Filed May 2, 2016
2 HAMBY V. HAMMOND
Before: Alex Kozinski, Diarmuid F. O’Scannlain,
and Ronald M. Gould, Circuit Judges.
Opinion by Judge O’Scannlain;
Partial Concurrence and Partial Dissent by Judge Gould
SUMMARY*
Civil Rights
The panel affirmed the district court’s summary judgment
in favor of prison officials in an action brought by a prison
inmate pursuant to 42 U.S.C. § 1983 alleging that officials
were deliberately indifferent to his serious medical needs
when they refused to grant his request for hernia surgery.
Plaintiff received surgery for his umbilical hernia after the
district court granted his motion for a preliminary injunction
and ordered prison officials to refer him to a surgeon for
evaluation and possible surgical treatment. After receiving
surgery, plaintiff sought damages for the pain he allegedly
suffered because of the officials’ refusal to authorize surgery
prior to litigation. The panel held that the officials were
entitled to qualified immunity because in light of existing
precedent and the specific facts of this case, it was at least
debatable that they complied with the Eighth Amendment.
The panel determined that to the extent that the officials
played any role in the decision to deny surgery, the record
made clear that they did so based on legitimate medical
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
HAMBY V. HAMMOND 3
opinions that have often been held reasonable under the
Eighth Amendment.
The panel held that the district court properly denied
injunctive relief relating to plaintiff’s potential inguinal
hernia. The panel determined that plaintiff had not pointed to
evidence which suggested that defendants’ decision to forgo
surgery for the potential inguinal hernia was medically
unacceptable under the circumstances and made in conscious
disregard of an excessive risk to plaintiff’s health.
Concurring in part and dissenting in part, Judge Gould
concurred only with the majority opinion’s result regarding
the denial of injunctive relief pertaining to plaintiff’s
potential inguinal hernia, and dissented from the rest of the
majority opinion. Judge Gould stated that there was a
genuine issue of material fact on whether the course of
treatment the doctors chose in treating plaintiff’s umbilical
hernia was medically unacceptable under the circumstances,
and whether they chose this course in conscious disregard of
an excessive risk to plaintiff’s health.
COUNSEL
Hank Balson, Public Interest Law Group, PLLC, Seattle,
Washington argued the cause and filed the briefs for the
plaintiff-appellant.
Timothy J. Feulner, Assistant Attorney General for the State
of Washington, Olympia, Washington, argued the cause and
filed the brief for the defendants-appellees. With him on the
brief was Robert W. Ferguson, Attorney General for the State
of Washington, Olympia, Washington.
4 HAMBY V. HAMMOND
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether state prison officials can be
made to pay damages to a prisoner who claims that they
violated his Eighth Amendment rights when they refused to
grant his request for hernia surgery.
I
Fleet C. Hamby is an inmate at the Stafford Creek
Corrections Center in Aberdeen, Washington. In April 2012,
Hamby fell off of a ladder while working his prison job as an
electrician’s assistant. A prison medical professional
diagnosed him as having an umbilical hernia, meaning that a
part of his intestine or abdominal fat had pushed through a
weak spot in his abdominal wall, causing a bulge in his belly.
Hamby’s umbilical hernia was described as “small” and
“easily reducible,” which means that Hamby could push the
hernia back into his abdomen by applying manual pressure or
by lying down. Hamby was counseled on how to push the
hernia back in if it popped out, and was also given a rib belt
designed to keep the hernia in.
About two weeks later, Hamby saw another prison
medical professional who noted that Hamby was in pain and
had some abdominal tenderness and swelling, but could walk
around without difficulty. Hamby was prescribed
medication—which he was unable to take due to his other
medical conditions—and was advised to continue using the
rib belt for support.
HAMBY V. HAMMOND 5
By the end of 2012, Hamby was seen at least ten times by
a handful of prison medical personnel. Hamby reported that
he experienced sharp pains while sleeping, using the
bathroom, and when he tried to sit for long periods. In June
of that year, Hamby formally requested surgical repair for his
hernia. But on July 19, Hamby rated his pain a three out of
ten, and when he renewed his request for surgery in August
his request was denied, with prison medical officials telling
him that his “condition [would] continue to be monitored as
needed by Health Services.” Hamby was examined again on
November 16, and his hernia was confirmed to be still “easily
reducible.” Hamby continued using the hernia belt in
addition to a variety of prostate medications.
In March 2013, Hamby was seen by a doctor at a different
prison. This doctor reported that Hamby was able to “make
it to chow hall and back,” and that he could use the bathroom.
Hamby advised the doctor that his umbilical hernia
“interfered with [his] sleep,” made “sitting down . . .
difficult,” and generated “random pain.” This doctor advised
that surgery was not medically necessary at that time.
In late August 2013, Hamby’s attorney sent a letter to Dr.
G. Steven Hammond, the Chief Medical Officer for the
Washington State Department of Corrections; Dr. Sara S.
Smith, the Facility Medical Director at the Stafford Creek
Corrections Center; and Bernard Warner, the Secretary of the
Washington Department of Corrections (“prison officials”),
asking them to reconsider Hamby’s need for surgical
treatment. Shortly thereafter, prison medical personnel
presented Hamby’s case to the prison’s Care Review
Committee (“CRC”), a group of medical professionals that
decides whether proposed health care treatments are
medically necessary under the prison’s Offender Health
6 HAMBY V. HAMMOND
Plan.1 Drs. Hammond and Smith were voting members, with
Dr. Hammond also serving as committee chair. The CRC
considered whether to authorize a surgical consultation, and
possible surgical repair, for Hamby’s umbilical hernia. The
physician’s assistant who presented the request for Hamby’s
surgery described Hamby’s hernia as “easily reducible” and
noted that although Hamby was in pain, he had been going to
meals and his activities of daily living were not impaired.2
The CRC denied the request, deeming surgery not medically
necessary at that time, and recommended continued
monitoring of Hamby’s condition.
Hamby was subsequently examined by a physician’s
assistant who had treated him several times in the past. The
physician’s assistant noted that Hamby was attending classes
and that his “activities of daily living were unaffected,” and
described his hernia as “minimal,” and recommended
monitoring. Hamby was later seen by a Department of
Corrections urologist, who likewise opined that surgery was
not medically necessary because Hamby “did not have
continual pain and was still performing his ADLs without
incident.”
1
The Offender Health Plan defines “medically necessary care” as care
that meets one of several criteria, including “[r]educ[ing] intractable pain”
or “[p]revent[ing] significant deterioration of [activities of daily living].”
2
“Activities of daily living” (“ADLs”) are “activities related to personal
care and include bathing or showering, dressing, getting in or out of bed
or a chair, using the toilet, eating, and walking or assisted mobility
sufficient to accomplish these activities.”
HAMBY V. HAMMOND 7
A
Hamby filed this lawsuit under 42 U.S.C. § 1983 in
January 2014, against Dr. Hammond, Dr. Smith, and
Secretary Warner. Hamby sued each in his personal capacity,
and he sued Dr. Hammond and Secretary Warner in their
official capacities as well. He claimed that the prison
officials exhibited deliberate indifference to his serious
medical needs, thereby violating his Eighth Amendment right
to be free from cruel and unusual punishment. As of May
2014, when he moved for a preliminary injunction, Hamby
rated the pain from his umbilical hernia “as a 5 on a scale of
1–10.” In August 2014, the district court granted Hamby’s
motion for a preliminary injunction, ordering the prison
officials to refer him to a surgeon for evaluation and to
authorize surgical treatment if the surgeon so advised.
Hamby received his hoped-for surgery, and his umbilical
hernia was repaired on October 13, 2014.
B
After receiving surgery on his umbilical hernia, Hamby
continued to press his case, seeking damages for the pain he
allegedly suffered because of the prison officials’ refusal to
authorize surgery prior to litigation. On cross-motions for
summary judgment, the district court ruled for the prison
officials, holding that they had not in fact been deliberately
indifferent to Hamby’s serious medical needs—and so they
had not violated Hamby’s Eighth Amendment rights, after
all—but that even if they had, qualified immunity would
shield them from having to pay damages.
8 HAMBY V. HAMMOND
C
In addition to the ordeal surrounding his umbilical hernia,
Hamby complains of ailments triggered by a particularly
harsh sneeze that left him reeling in October 2012. This
sneeze may or may not have caused an inguinal
hernia—which occurs in the groin area, when fatty or
intestinal tissue pushes through a weak spot in the abdominal
wall—but Hamby was never diagnosed as having an inguinal
hernia. Nonetheless, in response, prison medical personnel
gave him a jockstrap to reduce the pain.
In May 2014, Hamby declared that “[t]he pain from the
inguinal hernia had subsided for several months,” although it
had “recently reappeared” and was “intermittent, ranging
between 0 and 5.” In September 2014—at the time Hamby
moved for summary judgment—he declared that “the pain
related to [his] possible inguinal hernia [had] subsided,” and
was “currently at a level he can tolerate.” Still, Hamby
requested a permanent injunction requiring the prison
officials “to diagnose and treat his possible inguinal hernia
should the pain associated with that condition once again
become intolerable.”
The district court denied Hamby’s request for a
permanent injunction and granted summary judgment to the
prison officials, ruling that their conduct in response to
Hamby’s possible inguinal hernia did not violate Hamby’s
rights under the Eighth Amendment. Hamby timely appealed
the district court’s decision.
HAMBY V. HAMMOND 9
II
We review de novo the district court’s ruling on cross-
motions for summary judgment. Trunk v. City of San Diego,
629 F.3d 1099, 1105 (9th Cir. 2011). We must view the
evidence in the light most favorable to the non-moving party,
and then ask whether there is any “genuine dispute as to any
material fact” under the governing substantive law. Fed. R.
Civ. P. 56(a). “As to materiality,” the Supreme Court has
held that “[o]nly disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
III
Hamby wants to hold the prison officials personally liable
in damages because they refused to refer his umbilical hernia
for surgery until they were ordered to do so by a preliminary
injunction entered earlier in this litigation. To prevail,
Hamby must defeat the officials’ defense of qualified
immunity. And to do that, he must show, “first, [that he]
suffered a deprivation of a constitutional or statutory right;
and second [that such] right was clearly established at the
time of the alleged misconduct.” Taylor v. Barkes, 135 S. Ct.
2042, 2044 (2015) (per curiam) (internal quotation marks
omitted). We may decide for ourselves which step of the
analysis to undertake first. Pearson v. Callahan, 555 U.S.
223, 236 (2009). Failing at either one will negate Hamby’s
eligibility to recover damages.
10 HAMBY V. HAMMOND
A
We take up the “clearly established” prong of the
qualified-immunity analysis first. The Supreme Court has
repeatedly emphasized that, to determine whether a given
right was “clearly established” at the relevant time, the key
question is whether the defendants should have known that
their specific actions were unconstitutional given the specific
facts under review. We flesh out this standard at some
length, in no small part because our circuit has been
repeatedly chastised for conducting the clearly established
inquiry at too high a level of generality. See, e.g., City &
County of San Francisco v. Sheehan, 135 S. Ct. 1765,
1775–76 (2015) (“We have repeatedly told courts—and the
Ninth Circuit in particular—not to define clearly established
law at a high level of generality.” (quoting Ashcroft v. al-
Kidd, 131 S. Ct. 2074, 2084 (2011))).
1
“To be clearly established, a right must be sufficiently
clear that every reasonable official would have understood
that what he is doing violates that right.” Taylor, 135 S. Ct.
at 2044 (emphasis added) (quoting Reichle v. Howards,
132 S. Ct. 2088, 2093 (2012)). Although a plaintiff need not
find “a case directly on point, . . . existing precedent must
have placed the . . . constitutional question beyond debate.”
al-Kidd, 131 S. Ct. at 2083. That is, existing precedent must
have “placed beyond debate the unconstitutionality of” the
officials’ actions, as those actions unfolded in the specific
context of the case at hand. Taylor, 135 S. Ct. at 2044.
Hence, a plaintiff must prove that “precedent on the books”
at the time the officials acted “would have made clear to
HAMBY V. HAMMOND 11
[them] that [their actions] violated the Constitution.” Id. at
2045.
As the Supreme Court again stressed recently, “[t]he
dispositive question is ‘whether the violative nature of [the
defendants’] particular conduct is clearly established.’”
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam)
(quoting al-Kidd, 131 S. Ct. at 2084). Moreover, “[t]his
inquiry ‘must be undertaken in light of the specific context of
the case, not as a broad general proposition.’” Id. (emphasis
added) (quoting Brosseau v. Haugen, 543 U.S. 194, 198
(2004) (per curiam)).
In a nutshell, according to the Supreme Court, state
officials are entitled to qualified immunity so long as “none
of our precedents ‘squarely governs’ the facts here,” meaning
that “we cannot say that only someone ‘plainly incompetent’
or who ‘knowingly violate[s] the law’ would have . . . acted
as [the officials] did.” Id. at 310 (quoting Malley v. Briggs,
475 U.S. 335, 341 (1986)).3
3
In recent years, the Supreme Court has repeatedly stated that the
“clearly established” inquiry demands that courts train their attention on
the particular facts under review. See, e.g., Sheehan, 135 S. Ct. at 1777
(holding that “qualified immunity necessarily applies here because . . .
competent officers could have believed” their actions were constitutional);
id. at 1778 (“Considering the specific situation confronting [the officers],
they had sufficient reason to believe that their conduct was justified.”);
Wood v. Moss, 134 S. Ct. 2056, 2067 (2014) (“[W]e address the key
question: Should it have been clear to the agents that the security
perimeter they established violated the First Amendment?”).
12 HAMBY V. HAMMOND
2
Before applying the above principles to Hamby’s case, we
must emphasize that the fact-specific, highly contextualized
nature of the inquiry does not depend on which particular
constitutional right a given plaintiff claims the officials have
violated.
In particular, Hamby—drawing on some recent
statements from our court—suggests that the qualified-
immunity inquiry in Eighth Amendment cases differs from
the inquiry in other types of cases, such as those involving
excessive force, where analogies to prior cases supposedly
play a stronger role.
That proposition is demonstrably untrue. Not only has the
Supreme Court never suggested any such distinction, but
several cases affirmatively repudiate it. Indeed, Taylor v.
Barkes was an Eighth Amendment case—just like the present
one—in which an inmate’s estate alleged that prison officials
were deliberately indifferent to the inmate’s serious medical
needs. Barkes v. First Corr. Med., Inc., 766 F.3d 307, 314
(3d Cir. 2014), rev’d sub nom. Taylor v. Barkes, 135 S. Ct.
2042 (2015) (per curiam). Specifically, the estate argued that
the prison officials violated the Eighth Amendment by failing
to implement adequate suicide-prevention protocols. Taylor,
135 S. Ct. at 2044. Reversing the Third Circuit, the Supreme
Court granted the officials qualified immunity, citing Fourth
Amendment cases and following the exact same analysis
applicable in that context. That is, the Court surveyed “the
weight of . . . authority [existing] at the time of [the inmate’s]
death,” and granted qualified immunity because no cases
“placed beyond debate the unconstitutionality of the
Institution’s procedures, as implemented by the medical
HAMBY V. HAMMOND 13
contractor,” as no prior cases clearly “specif[ied] what
procedures would suffice” under the Eighth Amendment. Id.
at 2044–45. Precisely because analogies to prior cases failed,
the Court concluded that “no precedent on the books in
November 2004 would have made clear to petitioners that
they were overseeing a system that violated the Constitution.
Because, at the very least, petitioners were not contravening
clearly established law, they are entitled to qualified
immunity.” Id. at 2045.
Likewise, Wood v. Moss and Reichle v. Howards were
First Amendment cases rather than Fourth Amendment ones.
Wood, 134 S. Ct. at 2061; Reichle, 132 S. Ct. at 2092–93.
And yet the Supreme Court’s analysis proceeded along the
same lines. These cases make clear that the particular right
at issue in no way changes the fact-specific, highly
contextualized nature of the “clearly established” analysis.
See Wood, 134 S. Ct. at 2067; Reichle, 132 S. Ct. at 2096 &
n.6.
B
Given the foregoing doctrine, the question in this case
must be: viewing the evidence in the light most favorable to
Hamby, was it “beyond debate,” at the time the prison
officials acted, that their conduct violated the Constitution?
If the answer is no—if the officials’ actions did not clearly
violate Hamby’s rights under the Eighth Amendment—then
the officials are entitled to qualified immunity, and summary
judgment must be entered in their favor.
14 HAMBY V. HAMMOND
1
Hamby’s theory of the case is that the non-surgical
treatment prescribed by the prison officials fell short of what
the Eighth Amendment requires. On the merits, Eighth
Amendment doctrine makes clear that “[a] difference of
opinion between a physician and the prisoner—or between
medical professionals—concerning what medical care is
appropriate does not amount to deliberate indifference.”
Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012),
overruled in part on other grounds by Peralta v. Dillard,
744 F.3d 1076, 1083 (9th Cir. 2014) (en banc). Rather, “[t]o
show deliberate indifference, the plaintiff ‘must show that the
course of treatment the doctors chose was medically
unacceptable under the circumstances’ and that the
defendants ‘chose this course in conscious disregard of an
excessive risk to the plaintiff’s health.’” Id. at 988 (quoting
Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996)).
“Deliberate indifference is a high legal standard. A showing
of medical malpractice or negligence is insufficient to
establish a constitutional deprivation under the Eighth
Amendment.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th
Cir. 2004).
For purposes of determining qualified immunity,
therefore, we must ask the narrower question: viewing the
evidence most favorably to Hamby, and given existing case
law at that time, was it “beyond debate” that the prison
officials pursued a medically unreasonable course of
treatment by declining to refer Hamby for a surgical
evaluation? Cf. Mullenix, 136 S. Ct. at 309 (holding that
where the merits question asks if the officials acted
reasonably, the qualified-immunity question “is whether
existing precedent placed the conclusion that [the officials]
HAMBY V. HAMMOND 15
acted unreasonably in these circumstances ‘beyond debate’”
(quoting al-Kidd, 131 S. Ct. at 2083)).
2
Here, the answer is no, even if we assume that each of the
officials Hamby sued was aware of his chronic pain.4 See
Farmer v. Brennan, 511 U.S. 825, 837–38 (1994). That is, in
light of existing precedent and the specific facts of Hamby’s
case, it is at least debatable that the officials complied with
the Eighth Amendment, because—to the extent they played
any role in the decision to deny Hamby surgery for his
umbilical hernia—the record makes clear that they did so
based on legitimate medical opinions that have often been
held reasonable under the Eighth Amendment.
a
Dr. Hammond testified that in his medical opinion,
hernias “typically” merit surgical treatment, but “[s]ometimes
a condition can be monitored clinically without treatment.”
“Medical evidence and experience,” he explained, “show that
some reducible hernias can be clinically monitored and
surgical repair is not required. Under those circumstances,
monitoring or ‘watchful waiting’ is medically appropriate.
Watchful waiting is . . . medically acceptable for clinical
management of both inguinal and umbilical hernias in many
cases.” Such monitoring can be done “more or less
intensively,” and will often involve behavior changes on the
part of the patient and repeated examinations by medical
4
We note that Secretary Warner cannot be held vicariously liable under
§ 1983 for any violations committed by prison medical personnel. E.g.,
Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989).
16 HAMBY V. HAMMOND
personnel. Accordingly, Dr. Hammond testified, prison
policy provides that surgery for reducible—otherwise known
as non-incarcerated—hernias is deemed to be only
“potentially medically necessary,” and surgery in such cases
must be specially approved on a case-by-case basis.
Dr. Hammond declared that the CRC turned down
Hamby’s request for surgery because “there was no evidence
that his hernia was incarcerated and [because] he was
managing his activities of daily living.” In addition, Dr.
Hammond declared that at the time this litigation began,
Hamby had “not presented symptoms of intractable pain,”
and that, in Dr. Hammond’s judgment, forgoing surgery at
that time would “not present Mr. Hamby with risk of serious
medical harm. While his umbilical hernia may cause him
discomfort or pain from time-to-time,” Dr. Hammond
concluded, it was capable of being “managed without surgical
intervention.”
b
Similarly, Dr. Smith testified that, in her opinion,
Hamby’s requested surgical evaluation was “not medically
necessary” because “his hernia was not incarcerated and did
not impair his daily activities.”
In addition, as recounted above, Hamby was not merely
being monitored; he was treated with a hernia belt and a
regimen of medications, and was taught how to alleviate pain
through behavioral changes.
HAMBY V. HAMMOND 17
c
Hamby’s expert, Dr. Bradley Roter, agreed with Drs.
Hammond and Smith that “watchful waiting may be a
reasonable alternative to surgery for patients who present
with umbilical hernias that are not incarcerated (i.e.,
reducible) and that are not causing pain or other significant
symptoms.” But “[m]y personal practice,” he declared, “is to
recommend surgical evaluation to almost all of my patients
who present with umbilical hernias.” “In my opinion,” he
went on, “the benefits of surgical repair outweigh the
relatively small risks associated with the procedure.” In
Hamby’s case, Dr. Roter concluded, “[t]he standard of care”
would be “to refer [him] for a surgical consultation.”
3
Crucially for purposes of determining qualified immunity,
an examination of existing case law demonstrates that the
non-surgical treatment the defendants selected is not
indisputably unconstitutional in circumstances like these. In
fact, there are many cases, both reported and unreported,
holding that prison medical personnel did not violate the
Eighth Amendment even though they denied surgical
treatment to an inmate with a reducible hernia comparable to
Hamby’s. See, e.g., Johnson v. Doughty, 433 F.3d 1001,
1003–04, 1013–14 (7th Cir. 2006) (holding prison medical
personnel did not act with deliberate indifference when they
opted for non-surgical treatment—a hernia belt, Tylenol,
Metamucil, and monitoring—in response to prisoner’s
reducible inguinal hernia); Brown v. Beard, 445 F. App’x
453, 455–56 (3rd Cir. 2011) (per curiam) (holding prison
medical personnel did not violate Eighth Amendment when
they refused to authorize surgery for prisoner’s reducible
18 HAMBY V. HAMMOND
hernia, instead prescribing pain medication and abdominal
belt, plus monitoring, and despite another doctor’s opinion
that surgery was warranted); Webb v. Hamidullah, 281 F.
App’x 159, 166–67 (4th Cir. 2008) (per curiam) (similar);
Anderson v. Bales, No. 12-2244, 2013 WL 1278122, at *1
(7th Cir. Mar. 29, 2013) (similar); Rossi v. Nev. Dep’t of
Corrections, 390 F. App’x 719, 720 (9th Cir. 2010) (similar).
These cases—combined with a lack of overwhelming
contrary authority—are dispositive for purposes of
determining qualified immunity, because they demonstrate
that existing precedent does not “place[] beyond debate the
unconstitutionality of” the course of non-surgical treatment
pursued by the prison officials in Hamby’s case. Taylor,
135 S. Ct. at 2044; see also Sheehan, 135 S. Ct. at 1778
(“[T]o the extent that a ‘robust consensus of cases of
persuasive authority’ could itself clearly establish the federal
right respondent alleges, no such consensus exists here.”
(quoting al-Kidd, 131 S. Ct. at 2084) (citation omitted)). At
worst, the evidence in the record shows a difference of
medical opinion amounting to possible negligence on the part
of Drs. Hammond and Smith. As such, even when the
evidence is viewed in the light most favorable to Hamby, “we
cannot say that only someone ‘plainly incompetent’ or who
‘knowingly violate[s] the law’ would have . . . acted as [the
officials here] did.” Mullenix, 136 S. Ct. at 310 (quoting
Malley, 475 U.S. at 341). For that reason alone, they did not
violate a “clearly established” right, and so they must be
entitled to qualified immunity.
C
Hamby raises two basic objections to such analysis. We
are not persuaded.
HAMBY V. HAMMOND 19
1
First, he insists that his “clearly established” right should
be defined at a higher level of generality, namely, as the right
not to be treated “with deliberate indifference to a serious
medical need,” a constitutional right “that has been clearly
established for years.” Likewise, he argues that a right to
specific treatment—in this case, hernia repair surgery—need
not be clearly established by case law.
Hamby’s argument misunderstands the sort of clarity a
plaintiff must demonstrate in order to overcome a defense of
qualified immunity. For starters, defining the relevant right
as simply the right to be free from deliberate indifference “is
far too general a proposition to control this case.” Sheehan,
135 S. Ct. at 1775. To proceed in that manner is to neglect
the dispositive question: whether these officials, on these
facts, should have known that what they did violated the
Eighth Amendment. In short, Hamby would have us repeat
the same error the Supreme Court has time and again felt
compelled to correct.
Of course, it is true (as far as it goes) that a plaintiff need
not find a case with identical facts in order to survive a
defense of qualified immunity; obviously, one can imagine a
situation where the officials’ conduct is so egregious that no
one would defend it, even if there were no prior holding
directly on point. See, e.g., Hope v. Pelzer, 536 U.S. 730, 741
(2002) (“[A] general constitutional rule already identified in
the decisional law may apply with obvious clarity to the
specific conduct in question, even though the very action in
question has [not] previously been held unlawful.” (internal
quotation marks omitted)). But it should be equally obvious
that the farther afield existing precedent lies from the case
20 HAMBY V. HAMMOND
under review, the more likely it will be that the officials’ acts
will fall within that vast zone of conduct that is perhaps
regrettable but is at least arguably constitutional. So long as
even that much can be said for the officials, they are entitled
to qualified immunity.
Such is the case here. Even when the facts are viewed
most favorably to Hamby, they demonstrate that the prison
officials acted on a bona fide medical opinion, and opted for
a course of treatment held to be constitutional on numerous
prior occasions. “Considering the specific situation
confronting” them, “they had sufficient reason to believe that
their conduct was justified.” Sheehan, 135 S. Ct. at 1778.
That is enough to shield them from damages liability.
2
Second, Hamby cites four district court opinions which,
he claims, “denied qualified immunity to prison officials who
refused to provide surgical treatment to patients with
reducible hernias.” These citations do not establish that the
prison officials violated any clearly established law.
Of course, “district court decisions—unlike those from
the courts of appeals—do not necessarily settle constitutional
standards or prevent repeated claims of qualified immunity.”
Camreta v. Greene, 131 S. Ct. 2020, 2033 n.7 (2011). Even
if district court decisions could clearly establish the law for
purposes of qualified immunity, the cases on which Hamby
relies cannot do the work he asks of them.
HAMBY V. HAMMOND 21
a
One of the cases Hamby cites denied qualified immunity
only after committing the same analytical error that Hamby
would have us repeat. McCabe v. Gibbons, No. 3:09-cv-
00244-LRH-WGC, 2013 WL 5437645, at *31 (D. Nev. Sept.
27, 2013) (holding, without further analysis, that “it was
clearly established during the relevant time frame that denial,
delay of, or interference with medical care of a prisoner
constitutes an Eighth Amendment violation if it amounts to
deliberate indifference to a serious medical need”).
b
The remaining cases are distinguishable on their facts.
E.g., Woodroffe v. Oregon Dep’t of Corr., No. CV 05-977-
MO, 2008 WL 2234583, at *6 (D. Or. May 27, 2008)
(denying qualified immunity on motion for summary
judgment where prisoner put in sufficient evidence to create
a factual dispute as to whether prison had “a de facto policy
of never, or almost never, paying for elective surgery to repair
a hernia”); Delker v. Maass, 843 F. Supp. 1390, 1397–98 (D.
Or. 1994) (same); Torrez v. Richter, No. CV-03-770-HU,
2004 WL 1253374, at *9 (D. Or. June 7, 2004) findings and
recommendation adopted, 2004 WL 2397201 (D. Or. Oct. 25,
2004) (denying qualified immunity where evidence showed
“the hernia belt originally prescribed was not working,
2) [prisoner] was in nearly constant and increasing pain . . . ,
3) the pain radiated into his leg and caused him difficulty
with walking and climbing stairs, 4) he was required to push
the hernia back into place several times a day, and 5) the
hernia had grown larger over time”).
22 HAMBY V. HAMMOND
In sum, even when the facts are viewed most favorably to
Hamby, it is at least debatable that the prison officials here
complied with the Eighth Amendment. They are therefore
entitled to qualified immunity.5
IV
Hamby also claims that the district court erred in denying
injunctive relief relating to his potential inguinal hernia. This
claim fails.
In his motion for summary judgment, Hamby expressly
stated that “the pain related to [his] possible inguinal hernia
has subsided” and “is currently at a level he can tolerate.”
Hamby acknowledges that he has received treatment for the
inguinal hernia. Hamby’s medical expert, Dr. Roter,
explained in general terms that “[s]ometimes inguinal hernias
cause pain; sometimes they do not.” Hamby has pointed to
no evidence suggesting that the prison officials’ decision to
forgo surgery at this time is “‘medically unacceptable under
the circumstances’ and that the [officials] ‘chose this course
in conscious disregard of an excessive risk to [Hamby’s]
health.’” Snow, 681 F.3d at 988 (quoting Jackson, 90 F.3d at
332). At worst, we have here another difference of bona fide
5
Hamby also argues that Secretary Warner was deliberately indifferent
because he “ignor[ed] systemic deficiencies in [the Department of
Corrections’s] healthcare approval process.” The only evidence Hamby
cites are three lawsuits other inmates had filed in the past, at least one of
which was subsequently dismissed, see Francis v. Hammond, No. C12-
6023-RBL-JRC, 2015 WL 1650309 (W.D. Wash. Apr. 14, 2015). These
arguments are totally insubstantial and devoid of all context. They do not
come close to showing that Secretary Warner oversaw or implemented a
system that indisputably flouted the Eighth Amendment.
HAMBY V. HAMMOND 23
medical opinion. There are no material facts in dispute, and
therefore the district court properly denied injunctive relief.
V
The judgment of the district court is AFFIRMED.
GOULD, Circuit Judge, concurring in part and dissenting in
part:
I concur only in the result reached by the majority in Part
IV. I respectfully dissent from the rest of the majority’s
opinion. We have long recognized: “It is settled law that
deliberate indifference to serious medical needs of prisoners
violates the Eighth Amendment.” Jackson v. McIntosh,
90 F.3d 330, 332 (9th Cir. 1996) (citing Estelle v. Gamble,
429 U.S. 97, 104 (1976)). And it has been clearly established
in this Circuit for decades that prison officials are deliberately
indifferent when they “deny, delay, or intentionally interfere
with medical treatment.” Id. (quoting Hamilton v. Endell,
981 F.2d 1062, 1066 (9th Cir. 1992)). This principle makes
good sense when we recognize that a prisoner is totally at the
mercy of prison officials for medical care. If the prison does
not act responsibly to correct a medical problem, the prisoner
has nowhere else to go. As the Second Circuit explained
persuasively in Brock v. Wright, 315 F.3d 158, 163 (2d Cir.
2003): “We will no more tolerate prison officials’ deliberate
indifference to the chronic pain of an inmate than we would
a sentence that required the inmate to submit to such pain.”
I do not disagree with the majority that the concept of
deliberate indifference requires more than simple negligence
24 HAMBY V. HAMMOND
and a difference of medical opinion. See, e.g., Toguchi v.
Chung, 391 F.3d 1051, 1057–61 (9th Cir. 2004). However,
a difference of medical opinion does not preclude a finding of
deliberate indifference. See, e.g., Snow v. McDaniel,
681 F.3d 978, 988 (9th Cir. 2012), overruled in part on other
grounds by Peralta v. Dillard, 744 F.3d 1076 (9th Cir. 2014)
(en banc). Here, Fleet Hamby reported pain from an
umbilical hernia over the course of several years, saw medical
staff more than a dozen times, and filed numerous “kites” and
grievances in a futile attempt to have his pain effectively
addressed. But he could not get out of the starting gate
because the Care Review Committee determined—likely
without reviewing Hamby’s medical files, as this was the
Committee’s general policy1—that an umbilical hernia that
was not incarcerated could be dealt with through “watchful
waiting” and did not require surgery. This was despite the
fact that Dr. Hammond admitted there was a “good chance”
that surgery would alleviate Hamby’s pain. The Committee’s
decision to deny the surgery may have comported with the
prison system’s internal policies and contributed to reducing
the costs of medical care for prisoners. However, it is not a
foregone conclusion that prison officials’ actions here
pursuant to prison policies complied with the Eighth
Amendment. See Colwell v. Bannister, 763 F.3d 1060, 1063
(9th Cir. 2014) (“the blanket, categorical denial of medically
1
Dr. Hammond testified in his deposition that the Care Review
Committee receives an Excel spreadsheet before meeting, which includes
information about each case (including birth date, inmate number, and “a
synopsis of the case and a statement of the proposed interventions.”).
When asked if the Committee is provided with the inmates’ medical
records, he replied, “Not—well, typically not. It’s simply a synopsis,
although it’s also possible with the current system to submit photographs
and sometimes there are photocopies of things like diagnostic reports.”
HAMBY V. HAMMOND 25
indicated surgery solely on the basis of an administrative
policy . . . is the paradigm of deliberate indifference”).
I do not say that Hamby showed deliberate indifference
as a matter of law and could receive summary relief himself.
But his evidence was sufficient to raise a genuine issue of
material fact on whether “the course of treatment the doctors
chose was medically unacceptable under the circumstances,”
and whether they “chose this course in conscious disregard of
an excessive risk” to Hamby’s health. Jackson, 90 F.3d at
332. This case should have gone to a jury as the trier of fact,
with the guidance of correct jury instructions on deliberate
indifference. It should not have been resolved by summary
judgment of the district court. See Snow, 681 F.3d at 987.
Nor should that summary judgment be affirmed by us. And
so I dissent in the hope that a future court may correct the
majority’s error.