×
You have 2 more free articles available this month. Subscribe today.
No Immunity for Kidney Transplant Denial
The court of appeals for the ninth circuit held it lacked jurisdiction to hear prison doctors' interlocutory appeal that they were entitled to qualified immunity for denying a prisoner on dialysis a kidney transplant. Raymond Jackson, a California state prisoner, filed suit claiming prison doctors violated his eighth amendment rights when they refused him a kidney transplant. The doctors moved for summary judgment claiming they were entitled to qualified immunity. The district court denied the motion and the doctors appealed.
The appeals court disagreed with the notion that there was no clearly established law requiring doctors to provide a kidney transplant to a prisoner on dialysis. "It is settled law that deliberate indifference to serious medical needs of prisoners violates the Eighth Amendment.... Prison officials are indifferent to prisoners' serious medical needs when they deny, delay, or intentionally interfere with medical treatment.... For a right to be clearly established it is not necessary that the very action in question have previously been held unlawful.... To define the law in question too narrowly would be to allow the defendants to 'define away all potential claims.'"
Prisoners fail to state a claim for deliberate indifference if a defendant bases his medical judgment on alternative courses of treatment that are medically acceptable under the circumstances. "To prevail under these principles, Jackson must show that the course of treatment the doctors chose was medically unacceptable under the circumstances..., and the plaintiff must show that they chose this course in conscious disregard of an excessive risk to plaintiff's health."
"The doctors may well find solace in these principles when they are applied by the trier of fact, or on appeal from a final judgment. They are of no avail to the doctors on this interlocutory appeal, however, as Jackson has alleged the doctors chose to deny him the opportunity for a kidney transplant, not because of an honest medical judgment, but on account of personal animosity. If Jackson proves that claim at trial and has shown that the delay was medically unacceptable, he will have shown that the doctors were deliberately indifferent to his medical needs."
The court held it lacked jurisdiction to review the factual disputes in this case because such disputes are not reviewable on qualified immunity interlocutory appeals. "Given the district court's determination that there is a triable issue As to deliberate indifference, the doctors were not entitled to summary judgment on the ground that they could reasonably have believed their conduct did not violate clearly established law." See: Jackson v. McIntosh, 90 F.3d 330 (9th Cir. 1996). This ruling supersedes that published at 81 F.3d 112 (9th Cir. 1996).
The appeals court disagreed with the notion that there was no clearly established law requiring doctors to provide a kidney transplant to a prisoner on dialysis. "It is settled law that deliberate indifference to serious medical needs of prisoners violates the Eighth Amendment.... Prison officials are indifferent to prisoners' serious medical needs when they deny, delay, or intentionally interfere with medical treatment.... For a right to be clearly established it is not necessary that the very action in question have previously been held unlawful.... To define the law in question too narrowly would be to allow the defendants to 'define away all potential claims.'"
Prisoners fail to state a claim for deliberate indifference if a defendant bases his medical judgment on alternative courses of treatment that are medically acceptable under the circumstances. "To prevail under these principles, Jackson must show that the course of treatment the doctors chose was medically unacceptable under the circumstances..., and the plaintiff must show that they chose this course in conscious disregard of an excessive risk to plaintiff's health."
"The doctors may well find solace in these principles when they are applied by the trier of fact, or on appeal from a final judgment. They are of no avail to the doctors on this interlocutory appeal, however, as Jackson has alleged the doctors chose to deny him the opportunity for a kidney transplant, not because of an honest medical judgment, but on account of personal animosity. If Jackson proves that claim at trial and has shown that the delay was medically unacceptable, he will have shown that the doctors were deliberately indifferent to his medical needs."
The court held it lacked jurisdiction to review the factual disputes in this case because such disputes are not reviewable on qualified immunity interlocutory appeals. "Given the district court's determination that there is a triable issue As to deliberate indifference, the doctors were not entitled to summary judgment on the ground that they could reasonably have believed their conduct did not violate clearly established law." See: Jackson v. McIntosh, 90 F.3d 330 (9th Cir. 1996). This ruling supersedes that published at 81 F.3d 112 (9th Cir. 1996).
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login
Related legal case
Jackson v. McIntosh
| Year | 1996 |
|---|---|
| Cite | 90 F.3d 330 (9th Cir. 1996) |
| Level | Court of Appeals |
Jackson v. McIntosh, 90 F.3d 330 (9th Cir. 04/11/1996)
[1] UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[2] No. 94-16741
[4] filed: April 11, 1996.
[5] RAYMOND D. JACKSON, PLAINTIFF-APPELLEE,
v.
DUNCAN A. MCINTOSH; DAVID VICTORINO, DEFENDANTS-APPELLANTS.
[6] Appeal from the United States District Court for the Eastern District of California. D.C. No. CV 90-00760-EJG. Edward J. Garcia, District Judge, Presiding. Original Opinion Previously Reported at:,.
[7] Kathleen E. Gnekow, William V. Cashdollar, Deputy Attorney Generals, Sacramento, California, for the defendants-appellants.
[8] Amitai Schwartz, Antonio Ponvert, III, San Francisco, California, for the plaintiff-appellee.
[9] Before: Alex Kozinski and John T. Noonan, Jr., Circuit Judges, Rudi M. Brewster,*fn* District Judge. Opinion by Judge Noonan.
[10] Author: Noonan
[11] none
[12] [EDIT ]
[13] Order AND AMENDED OPINION
[14] Order
[15] The opinion filed on April 11, 1996 is amended as follows:
[16] At slip op. page 4552 at line 7 of the first full paragraph, the sentence beginning "If Jackson . . ." and ending "medical needs." is hereby amended to read "If Jackson proves that claim at trial, and he has shown that the delay in performing the kidney transplant was medically unacceptable, he will have shown that the doctors were deliberately indifferent to his serious medical needs."
[17] With this amendment, the panel as constituted in the above case has voted to deny the petition for rehearing. Judges Kozinski and Noonan have voted to reject the suggestion for rehearing en banc and Judge Brewster so recommends.
[18] The full court has been advised of the suggestion for en banc rehearing, and no Judge of the court has requested a vote on the suggestion for rehearing en banc. Fed. R. App. P. 35(b).
[19] The petition for rehearing is denied, and the suggestion for a rehearing en banc is rejected.
[20] NOONAN, Circuit Judge:
[21] Raymond D. Jackson, a state prisoner on dialysis, brought suit under 42 U.S.C. § 1983 contending that Dr. Duncan McIntosh and Dr. David Victorino had violated his rights under the Eighth Amendment by refusing him a kidney transplant. The doctors moved for summary judgment on the ground of qualified immunity. The district court denied the motion. The doctors appeal.
[22] ANALYSIS
[23] The doctors contend that they are entitled to qualified immunity because there was no clearly established law requiring them to provide a kidney transplant to a prisoner on dialysis. The doctors state the issue too narrowly. "The right the official is alleged to have violated must be made specific in regard to the kind of action complained of for the constitutional right at issue to have been clearly established." Sinaloa Lake Owners Ass'n v. City of Simi Valley, 70 F.3d 1095, 1100-01 (9th Cir. 1995). It is settled law that deliberate indifference to serious medical needs of prisoners violates the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). "Prison officials are indifferent to prisoners' serious medical needs when they deny, delay, or intentionally interfere with medical treatment." Hamilton v. Endell, 981 F.2d 1062, 1066 (9th Cir. 1992). For a right to be clearly established it is not necessary that the very action in question have previously been held unlawful. Anderson v. Creighton, 483 U.S. 635, 640, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987). To define the law in question too narrowly would be to allow defendants "to define away all potential claims." Kelley v. Borg, 60 F.3d 664, 667 (9th Cir. 1995).
[24] Certain principles follow necessarily from the deliberate indifference standard and facilitate its application to cases such as this one which involves choices between alternative courses of treatment. We held in Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989) (citing Estelle, 429 U.S. at 107), for example, that a plaintiff's showing of nothing more than "a difference of medical opinion" as to the need to pursue one course of treatment over another was insufficient, as a matter of law, to establish deliberate indifference. In other words, where 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 Estelle, 429 U.S. at 107-08. To prevail under these principles, Jackson must show that the course of treatment the doctors chose was medically unacceptable under the circumstances, Williams v. Vincent, 508 F.2d 541, 543-44 (2d Cir. 1974) (cited with approval in Estelle, 429 U.S. at 104 n.10), and the plaintiff must show that they chose this course in conscious disregard of an excessive risk to plaintiff's health, Farmer v. Brennan, 511 U.S. 825, 128 L. Ed. 2d 811, 114 S. Ct. 1970, 1978-79 (1994).
[25] The doctors may well find solace in these principles when they are applied by the trier of fact, or on appeal from a final judgment. They are of no avail to the doctors on this interlocutory appeal, however, as Jackson has alleged the doctors chose to deny him the opportunity for a kidney transplant, not because of an honest medical judgment, but on account of personal animosity. If Jackson proves that claim at trial, and he has shown that the delay in performing the kidney transplant was medically unacceptable, he will have shown that the doctors were deliberately indifferent to his serious medical needs.
[26] The doctors further argue that Jackson failed to show a genuine issue of material fact as to whether they were deliberately indifferent, in fact, to his medical needs. As to that question we lack jurisdiction. It is a question that cannot be separated from the merits of Jackson's case. It is a question reviewable after trial. We are instructed by the Supreme Court that for these reasons appellate jurisdiction is lacking. Johnson v. Jones, 132 L. Ed. 2d 238, 115 S. Ct. 2151, 2156 (1995). Johnson dictates that we must refrain from considering this question, a departure from our prior approach to qualified immunity appeals from a denial of summary judgment. See, e.g., Burgess v. Pierce County, 918 F.2d 104, 106 n.3 (9th Cir. 1990). Given the district court's determination that there is a triable issue as to deliberate indifference, the doctors were not entitled to summary judgment on the ground that they could reasonably have believed their conduct did not violate clearly-established law. Hamilton v. Endell, 981 F.2d 1062, 1066 (9th Cir. 1992).
[27] Accordingly, the appeal is DISMISSED for lack of jurisdiction.
[28] Disposition
[29] DISMISSED for lack of jurisdiction.
--------------------------------------------------------------------------------
Judges Footnotes
--------------------------------------------------------------------------------
[30] *fn* The Honorable Rudi M. Brewster, United States District Judge for the Southern District of California, sitting by designation.
--------------------------------------------------------------------------------
[1] UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[2] No. 94-16741
[4] filed: April 11, 1996.
[5] RAYMOND D. JACKSON, PLAINTIFF-APPELLEE,
v.
DUNCAN A. MCINTOSH; DAVID VICTORINO, DEFENDANTS-APPELLANTS.
[6] Appeal from the United States District Court for the Eastern District of California. D.C. No. CV 90-00760-EJG. Edward J. Garcia, District Judge, Presiding. Original Opinion Previously Reported at:,.
[7] Kathleen E. Gnekow, William V. Cashdollar, Deputy Attorney Generals, Sacramento, California, for the defendants-appellants.
[8] Amitai Schwartz, Antonio Ponvert, III, San Francisco, California, for the plaintiff-appellee.
[9] Before: Alex Kozinski and John T. Noonan, Jr., Circuit Judges, Rudi M. Brewster,*fn* District Judge. Opinion by Judge Noonan.
[10] Author: Noonan
[11] none
[12] [EDIT ]
[13] Order AND AMENDED OPINION
[14] Order
[15] The opinion filed on April 11, 1996 is amended as follows:
[16] At slip op. page 4552 at line 7 of the first full paragraph, the sentence beginning "If Jackson . . ." and ending "medical needs." is hereby amended to read "If Jackson proves that claim at trial, and he has shown that the delay in performing the kidney transplant was medically unacceptable, he will have shown that the doctors were deliberately indifferent to his serious medical needs."
[17] With this amendment, the panel as constituted in the above case has voted to deny the petition for rehearing. Judges Kozinski and Noonan have voted to reject the suggestion for rehearing en banc and Judge Brewster so recommends.
[18] The full court has been advised of the suggestion for en banc rehearing, and no Judge of the court has requested a vote on the suggestion for rehearing en banc. Fed. R. App. P. 35(b).
[19] The petition for rehearing is denied, and the suggestion for a rehearing en banc is rejected.
[20] NOONAN, Circuit Judge:
[21] Raymond D. Jackson, a state prisoner on dialysis, brought suit under 42 U.S.C. § 1983 contending that Dr. Duncan McIntosh and Dr. David Victorino had violated his rights under the Eighth Amendment by refusing him a kidney transplant. The doctors moved for summary judgment on the ground of qualified immunity. The district court denied the motion. The doctors appeal.
[22] ANALYSIS
[23] The doctors contend that they are entitled to qualified immunity because there was no clearly established law requiring them to provide a kidney transplant to a prisoner on dialysis. The doctors state the issue too narrowly. "The right the official is alleged to have violated must be made specific in regard to the kind of action complained of for the constitutional right at issue to have been clearly established." Sinaloa Lake Owners Ass'n v. City of Simi Valley, 70 F.3d 1095, 1100-01 (9th Cir. 1995). It is settled law that deliberate indifference to serious medical needs of prisoners violates the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104, 50 L. Ed. 2d 251, 97 S. Ct. 285 (1976). "Prison officials are indifferent to prisoners' serious medical needs when they deny, delay, or intentionally interfere with medical treatment." Hamilton v. Endell, 981 F.2d 1062, 1066 (9th Cir. 1992). For a right to be clearly established it is not necessary that the very action in question have previously been held unlawful. Anderson v. Creighton, 483 U.S. 635, 640, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987). To define the law in question too narrowly would be to allow defendants "to define away all potential claims." Kelley v. Borg, 60 F.3d 664, 667 (9th Cir. 1995).
[24] Certain principles follow necessarily from the deliberate indifference standard and facilitate its application to cases such as this one which involves choices between alternative courses of treatment. We held in Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989) (citing Estelle, 429 U.S. at 107), for example, that a plaintiff's showing of nothing more than "a difference of medical opinion" as to the need to pursue one course of treatment over another was insufficient, as a matter of law, to establish deliberate indifference. In other words, where 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 Estelle, 429 U.S. at 107-08. To prevail under these principles, Jackson must show that the course of treatment the doctors chose was medically unacceptable under the circumstances, Williams v. Vincent, 508 F.2d 541, 543-44 (2d Cir. 1974) (cited with approval in Estelle, 429 U.S. at 104 n.10), and the plaintiff must show that they chose this course in conscious disregard of an excessive risk to plaintiff's health, Farmer v. Brennan, 511 U.S. 825, 128 L. Ed. 2d 811, 114 S. Ct. 1970, 1978-79 (1994).
[25] The doctors may well find solace in these principles when they are applied by the trier of fact, or on appeal from a final judgment. They are of no avail to the doctors on this interlocutory appeal, however, as Jackson has alleged the doctors chose to deny him the opportunity for a kidney transplant, not because of an honest medical judgment, but on account of personal animosity. If Jackson proves that claim at trial, and he has shown that the delay in performing the kidney transplant was medically unacceptable, he will have shown that the doctors were deliberately indifferent to his serious medical needs.
[26] The doctors further argue that Jackson failed to show a genuine issue of material fact as to whether they were deliberately indifferent, in fact, to his medical needs. As to that question we lack jurisdiction. It is a question that cannot be separated from the merits of Jackson's case. It is a question reviewable after trial. We are instructed by the Supreme Court that for these reasons appellate jurisdiction is lacking. Johnson v. Jones, 132 L. Ed. 2d 238, 115 S. Ct. 2151, 2156 (1995). Johnson dictates that we must refrain from considering this question, a departure from our prior approach to qualified immunity appeals from a denial of summary judgment. See, e.g., Burgess v. Pierce County, 918 F.2d 104, 106 n.3 (9th Cir. 1990). Given the district court's determination that there is a triable issue as to deliberate indifference, the doctors were not entitled to summary judgment on the ground that they could reasonably have believed their conduct did not violate clearly-established law. Hamilton v. Endell, 981 F.2d 1062, 1066 (9th Cir. 1992).
[27] Accordingly, the appeal is DISMISSED for lack of jurisdiction.
[28] Disposition
[29] DISMISSED for lack of jurisdiction.
--------------------------------------------------------------------------------
Judges Footnotes
--------------------------------------------------------------------------------
[30] *fn* The Honorable Rudi M. Brewster, United States District Judge for the Southern District of California, sitting by designation.
--------------------------------------------------------------------------------