The Ninth Circuit Court of appeals recently looked at whether it is a violation of the Eighth Amendment when 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.
Mr. Colwell is an inmate at the Nevada Department of Corrections serving a life sentenced without possibility of parole. Colwell v. Bannister, No. 12-15844, at *4 (9th Cir. Aug. 14, 2014). After incarceration Mr. Colwell developed cataracts in both eyes and underwent cataract-removal surgery on his left eye in 2001. Id. “By October 2001, a cataract had developed in Colwell’s right eye that rendered him totally blind in that eye by 2002.” Id. That cataract has never been treated and is the issue here.
The Nevada Department of Corrections (NDOC) Medical Director, Dr. Bruce Bannister, stated a cataract does no damage to the eye and can be removed at any time. Id.
The NDOC has a written policy on cataract removals.
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
— Id. at *5.
There are also written procedures for the 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.
Three other medical providers recommended Mr. Colwell’s cataract be treated. Id. One medical provider noted Mr. Colwell needed the surgery to perform his job sewing mattresses at the NDOC. Id. A medical panel denied the request for cataract surgery, as per NDOC policies (see above). Id.
A follow-up medical report indicated that “Colwell’s condition was not life-threatening but did ‘significantly affect’ his quality of life.” Id. at *7. However, the same doctor next week backtracked and noted that Colwell with 20/20 eyesight out of his right eye, could qualify to drive a motor vehicle in many states. Id.
1. Whether the NDOC’s decision not to grant surgery for an inmate suffering from a cataract in a single eye violates the Eighth Amendment.
The court voted 2-1 to overturn the summary judgment verdict and remand it back to district court for trial.
Serious Medical Need
The government has an obligation to provide medical care for those whom it incarcerates. A violation to provide medical care can constitute an Eighth Amendment violation. Id. at *9. To prove an Eighth Amendment violation an inmate needs to prove “deliberate indifference” to serious medical needs. Id. at *10.
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…Indications that a plaintiff has a serious medical need include 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.
— Id. (internal quotations omitted).
The 10th Cir. held the cataract to be a serious medical need. Although it did not jeopardize his life, he lost the use of an organ for a decade. He cannot turn to the left. Also his depth perception is affected. “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.” Id. at *13.
There are two parts to deliberate indifference, a subject and objective test. The subjective test is violated when a prison official knows of and disregards an excessive risk to inmate health or safety.
The 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 draw the inference.
— Id. at *10-11.
The deliberate indifference claim is rather unique. This case is not about a medical opinion, a medical decision or indecision, or even medical mistake or negligence. This is about a medical policy expressly written by the NDOC.
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.
— Id. at *14.
The dissent starts off by saying it sympathizes with Colwell and would have granted the surgery if it had power to do so. The dissent says that the cataract would fall short of the Eighth Amendments prohibition against cruel and unusual punishment.
The dissent notes the United States Supreme Court has cautioned courts should have a limited role in the Eighth Amendment. “Courts are not representative bodies… a decision that a given punishment is impermissible under the Eighth Amendment cannot be reversed short of a constitutional amendment.” Id. at *24.
Serious Medical Issue / Pain
It is understandable that the majority bases much of its serious medical need analysis on McGuckin’s comment worthiness standard because Colwell’s cataract does not cause the wanton infliction of pain.
— Id. at 31.
The dissent also points out that Mr. Colwell was not in any pain from the cataracts.
The dissent also questions all of the injuries which resulted from cataract, implying that it either did not occur, or that it resulted from other circumstances. Id. at *32-35.
Disability / Serious Medical Condition
The dissent also contends that not every disability rises to the level of a serious medical condition. “But if the bare fact of being blind in one eye may be considered a disability, it is not crippling.” Id. at *36.
The dissent says there is not as clear of a consensus for cataracts being a serious medical condition. Id. at *37.