FERNANDEZ, Circuit Judge:
Cion Adonis Peralta appeals the district court's judgment as a matter of law in favor of Dr. Thaddeus Dillard and Dr. Junaid Fitter and its judgment following a jury verdict in favor of Dr. Sheldon Brooks, in Peralta's 42 U.S.C. § 1983 action claiming that they were deliberately indifferent to his medical needs related to dental care. In this opinion, we decide whether the district court erred when it instructed the jury on the question of whether Dr. Brooks could be held responsible for failing to provide services when he lacked resources.
Peralta was incarcerated at various California state prisons, prior to January 24, 2004, when he arrived at California State Prison, Los Angeles County ("Lancaster"). He remained in Lancaster until February 7, 2006. While he was there, Dr. Brooks was a staff dentist.
Within three days of his arrival at Lancaster, Peralta submitted oral and written requests for dental care. He asserted that he had cavities and bleeding gums and that he needed to receive treatment for pain. Having received no immediate response, Peralta filed a Form 602 Inmate Appeal on July 15, 2004. He stated that he had infected teeth, cavities, and severe pain, but he had not been seen by a dentist despite having submitted requests. The initial informal response by the medical appeals analyst, dated August 13, 2004, indicated that the appeal was partially granted; he was placed on a waiting list to see a dentist.
The wait for routine care could take up to twelve months, but emergency dental cases were given a higher priority. The length of the waiting list, as well as the limited amount of time that staff dentists could ultimately spend with patients, was
On August 23, 2004, Peralta formally appealed the decision by the medical appeals analyst and stated that waiting for a number of months was inadequate. In response and pursuant to the procedure for Form 602 appeals, Dr. Brooks interviewed Peralta on October 15, 2004. The dental progress notes indicate that Dr. Brooks had one x-ray taken, reviewed Peralta's Form 602 and his health history form, and performed a clinical examination of tooth # 2. He found severe bone loss and mobility and assessed the tooth as a candidate for extraction; he also prescribed twelve ibuprofen tablets and planned to extract tooth # 2 on the next visit. He did not, however, examine Peralta further for other cavities or infections.
After that interview, Dr. Brooks prepared and signed a first-level appeal response. It stated that the appeal was partially granted. It also stated that Dr. Brooks had prescribed pain medication and that Peralta would be scheduled for an extraction. It noted that there was a waiting list for dental procedures. A second staff dentist, Dr. Kumar, also signed the Form 602 and the first level appeal response.
On October 21, 2004, Peralta sought a second level review of his Form 602 Appeal. He stated that he was not examined, but only asked which tooth hurt most and was given four days' worth of Motrin although he had existing dental needs or pain. On January 25, 2005, while the review was still pending, Peralta saw Dr. Brooks a second time in order to have tooth # 2 extracted. During the appointment, Dr. Brooks explained that the tooth had no cavity and did not need to be extracted, but that he could have it extracted if it was causing him pain. Peralta decided not to have the tooth pulled at that time. Dr. Brooks did obtain x-rays, reviewed Peralta's health history form, and performed an examination, assessment and consultation. He also prescribed twelve ibuprofen tablets and, prophylactically, tetracycline for infection.
Peralta saw Dr. Brooks the third and last time on December 23, 2005. At that time, Dr. Brooks cleaned Peralta's teeth; Dr. Brooks testified that the time for cleaning teeth of a patient with the amount of plaque and calculus build up that Peralta had would take twenty to thirty minutes. In February 2006, Peralta was transferred to Mule Creek State Prison.
This case proceeded to trial on May 5, 2009. After judgment as a matter of law was granted in favor of Dr. Dillard and Dr. Fitter, the case continued as to Dr. Brooks alone and was presented to the jury, which returned a special verdict in his favor. The jury determined that Dr. Brooks did not act with deliberate indifference to Peralta's severe dental needs and thereby cause him harm. The district court issued judgment in accordance with that special verdict on May 26, 2009. This appeal followed.
The district court had jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343. We have jurisdiction pursuant to 28 U.S.C. § 1291.
We review the issue of whether a jury instruction misstates the law de novo. See Clem v. Lomeli, 566 F.3d 1177, 1180-81 (9th Cir.2009).
Peralta's sole attack on the judgment in favor of Dr. Brooks is based upon Peralta's assertion that the district court erred when it gave the following instruction to the jury:
Peralta does not complain about the precise wording of the instruction; rather, he asserts that our cases preclude consideration of available resources when an individual is sued for violating a prisoner's Eighth Amendment
Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.2006) (citations and internal quotation marks omitted); see also Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir.2004). Even when officials "actually knew of a substantial risk to inmate health or safety [they] may be found free from liability if they responded reasonably to the risk...." Farmer v. Brennan, 511 U.S. 825, 844, 114 S.Ct. 1970, 1982-83, 128 L.Ed.2d 811 (1994). But what is (and should be) the law when those in charge of funding refuse to give the providers of prisoner care sufficient funds to allow them to afford the level of care that prisoners need? For example, suppose, as here, the established standard is 1 dentist for every 950 inmates, but the dentist must work at a 1 dentist for every 4200-4500 inmates ratio. Is the individual dentist to be held responsible because he cannot give proper care to the inmates, that is, he cannot reasonably respond to the risk of harm that those underserved inmates face when dental problems occur or are about to occur? We think not. As we noted over two decades ago in the context of a prisoner's stabbing, it is one thing to seek injunctive relief against state officials for the general conditions at a facility, and an entirely different thing when a prisoner seeks to mulct an individual prison employee with damages. See Leer v. Murphy, 844 F.2d 628, 633 (9th Cir.1988). In the latter instance, we cannot simply react to deplorable conditions at the prison, but
In Williams, a prison had been run in a manner that placed prisoners at a severe risk of violence. Id. at 1375. A prisoner brought an action against a number of prison officials, who had not given him reasonable protection; he accused them of deliberate indifference. Id. at 1374-75. However, the problems at the prison were said to be largely caused by a lack of funding. Id. at 1387. The trial court had instructed the jury in a manner similar to the instruction here. Id. The court of appeals recognized that lack of funds will not generally defeat claims for constitutional violations. Id. However, its response to the attack on the instruction was:
Id. at 1388 (citations omitted); see also Lopez v. LeMaster, 172 F.3d 756, 762 & n. 4 (10th Cir.1999); Anderson v. City of Atlanta, 778 F.2d 678, 680, 686-87 (11th Cir.1985). Just so.
The above does not, of course, suggest that a governmental entity cannot be held liable in damages for its own wrongdoing when it incarcerates individuals, but refuses to provide the proper funds. That is not the issue before us. Nor do we suggest that injunctive or declaratory relief can be turned aside simply because necessary resources have not been made available. See, e.g., Jones v. Johnson, 781 F.2d 769, 770, 772 (9th Cir.1986) (dismissal of a complaint for damages and injunctive relief was overturned on the basis that a cause of action had been stated; however, the question of individual responsibility and of damages as such was not taken up); Spain v. Procunier, 600 F.2d 189, 200 (9th Cir.1979) (holding injunctive relief proper despite assertions about the cost of proper facilities). Leer, 844 F.2d at 633 (distinguishing between injunctive relief and damages); Williams, 689 F.2d at 1388 (same).
Thus, a proper standard must take account of the "duties, discretion and means" available. Leer, 844 F.2d at 633. The instruction in question here did just
We see no reason to impose an injustice upon employees of prison systems in an attempt to avoid injustices to inmates. Nor do we see any reason to drive prison employees out of positions where they can at least try to ameliorate afflictions, even though they have no apotropaion that will effect cures in the absence of sufficient resources. To do so would be to provide an iatrogenic remedy. Thus, we hold that the principle contained in the instruction given in this case was a proper one.
BERZON, Circuit Judge, dissenting:
The majority upholds a jury instruction absolving a prison dentist of liability for providing constitutionally deficient care, even though under our case law, he was not entitled to be so exonerated.
A reasonable juror could conclude that the record in this case establishes the following facts regarding Dr. Sheldon Brooks's deliberate indifference to Cion Peralta's serious medical needs:
Shortly after arriving at Lancaster prison in June 2004, Peralta made a formal request for dental care to address his bleeding gums and pain in his teeth. After receiving no response for about a month, he filed a written appeal seeking dental attention to his "severe pain." The prison responded by placing him on the "routine" dental care waiting list. Patients on that list could expect to wait about twelve months to receive care.
Dr. Brooks initially saw Peralta on October 15, 2004. At the appointment, Peralta complained of bleeding gums and pain throughout his mouth. Brooks responded to Peralta's complaints by explaining: "We're not going to worry about that today." Brooks did not examine Peralta for cavities, periodontal disease, or infection. Nor did Brooks prescribe a treatment plan for periodontal disease. Instead, Brooks asked Peralta which one tooth hurt the most. Brooks x-rayed the tooth that Peralta identified, scheduled Peralta to have that tooth extracted, and gave Peralta a few-day supply of ibuprofen. Although he did not examine Peralta for cavities or infection, or address the cause of Peralta's pain, Brooks signed a form noting that Peralta's appeal was "partially granted in that [Peralta] was examined by the dentist."
In January 2005, at his next appointment, Brooks took another x-ray. Peralta decided against having the earlier-identified tooth extracted, after Brooks informed him that the tooth did not need extraction, and because the pain throughout the rest of his mouth remained unaddressed. Brooks gave Peralta antibiotics and twelve ibuprofen but did not otherwise address his bleeding gums or pain. Brooks did not prescribe a course of treatment for periodontal disease or check Peralta for cavities. The appointment lasted about five minutes.
Peralta waited almost a year to see Brooks again. At a December 2005 appointment, Brooks finally cleaned Peralta's teeth. Brooks again did not check Peralta for cavities or prescribe an ongoing course of treatment for periodontal disease other than recommendations for improved oral hygiene.
Before directly addressing the jury instruction at issue, I first note what is not at issue in this appeal: There is no question that a reasonable jury could have found that Brooks was deliberately indifferent to Peralta's serious medical need in the sense described in Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). Indeed, the district court denied Brooks's Rule 50 motion, stating: "I can't say that a reasonable dentist would perform the duties in the same way that Dr. Brooks performed the duties." Nor does the majority assume otherwise.
To establish Brooks's liability for an Eighth Amendment claim based on inadequate prison medical treatment, Peralta needed to demonstrate three elements: (1) a "serious medical need," such that "failure to treat [the] 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); (2)
A reasonable juror could have concluded that Peralta satisfied each of these elements. First, Peralta's chronic dental pain and bleeding gums were a serious medical need. See Hunt v. Dental Dep't, 865 F.2d 198, 200 (9th Cir.1989). Second, Brooks was plainly aware of Peralta's complaints; Peralta explained his symptoms at each of his appointments and in the appeal form that Brooks reviewed. Third, Brooks provided only scant attention to Peralta's complaint of serious pain, prescribing no ongoing course of treatment for periodontal disease and offering only to extract one tooth, which neither Brooks nor Peralta considered the cause of Peralta's primary symptoms and which Brooks determined was not diseased.
In short, Brooks knew that Peralta needed care for a serious medical need but did not provide the care. Under Farmer, that combination of factors is all that is required to establish deliberate indifference.
The case cited by the majority, Leer v. Murphy, 844 F.2d 628 (9th Cir.1988), decided before Farmer, does not hold otherwise. Leer determined that when a prisoner seeks to impose Eighth Amendment liability on a prison official in his individual capacity, "[t]he prisoner must set forth specific facts as to each individual defendant's deliberate indifference." Id. at 634. That is just what Peralta has done. In Leer, the plaintiffs did not establish a "causal connection" between the officials' failure to implement security procedures, and the third-party, prisoner-on-prisoner violence that caused the plaintiffs' injuries. Id. at 631, 633-34.
At the outset, I observe that the rule enunciated by the majority would deny relief in cases of a medical practitioner's deliberate indifference to a prisoner's medical needs even as egregious as in Snow, 681 F.3d at 987.
Brooks was entitled to a jury instruction that "correctly state[d] the law" and was "not ... misleading." See Clem v. Lomeli, 566 F.3d 1177, 1181 (9th Cir.2009). In addition to instructing the jury on the deliberate indifference standard, the district court gave the following instruction:
This instruction does not accurately state our case law. Our cases have made crystal clear — including when plaintiffs have sought damages — that "[b]udgetary constraints ... do not justify cruel and unusual punishment." Jones v. Johnson, 781 F.2d 769, 771 (9th Cir.1986). We recently reiterated that holding, see Snow, 681 F.3d at 987, and until now, have not deviated from that clear principle.
The majority says of Jones only that "the question of individual responsibility and of damages as such was not taken up," Maj. Op. at 1128, and does not mention Snow at all. Binding precedent cannot be treated so cavalierly. Jones was a case against individual defendants for damages in circumstances parallel to those here, and that claim for relief, as well as the claim for injunctive relief, was allowed to proceed. Jones, 781 F.2d at 770, 772. And Snow dealt at length with the liability of individuals for damages for unconstitutional denial of medical care, relying on Jones's "holding that budgetary constraints do not justify cruel and unusual punishment" in the course of doing so. Snow, 681 F.3d at 987 (citing Jones, 781 F.2d at 771).
Nor has the Supreme Court stated otherwise. More than twenty years ago, the Court declined to decide whether prison officials could interpose a "`cost' defense" and rely on the argument that "fiscal constraints beyond [the officials'] control prevent[ed] the elimination of inhumane conditions." Wilson v. Seiter, 501 U.S. 294, 301-02, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991). The Court "note [d that] there [was not] any indication that other officials have sought to use such a defense." Id. I am aware of no case in which the Court has revisited the issue, and Brooks has cited none.
Under binding Ninth Circuit case law, then, in no way inconsistent with the Supreme Court's rulings, Brooks was not entitled to have the jury instructed on a cost defense. Brooks therefore relies on out-of-circuit cases, principally the inapposite Williams case, see supra n. 5. For the reasons explained below, those cases not only contradict our holdings but, even if considered ab initio, do not correctly state the applicable rule.
The majority seems to understand the instruction as stating a causation principle. See Maj. Op. at 1127-29. But the jury was
What's more, the instruction at issue misstates the causation requirement. We look to the "common law of torts" for the "necessary causation factor" under § 1983. Stevenson v. Koskey, 877 F.2d 1435, 1438-1439 (9th Cir.1989) (citing Restatement (Second) of Torts ("Restatement")); see also Staub v. Proctor Hosp., ___ U.S. ___, 131 S.Ct. 1186, 1192 n. 2, 1194 n. 3, 179 L.Ed.2d 144 (2011) (consulting the Restatement to determine principles underlying federal tort law). Applying tort law principles, an actor's reckless conduct is a "legal cause of harm" if the conduct "is a substantial factor in bringing about the harm," and the actor is not otherwise relieved of liability. Restatement §§ 431, 501. If two independent "forces are actively operating," and each "is sufficient to bring about harm," then the first actor's recklessness "may be found to be a substantial factor in bringing about" the harm. Id. §§ 432, 501.
In stating that if Brooks "could not reasonably obtain" resources necessary to provide care, then he "[was] not responsible," the instruction departed from the generally applicable causation rule. It relieved Brooks of liability for deliberately indifferent care because the ratio of dentists to prisoners encouraged rationing the care available. But Brooks could have provided constitutionally acceptable care to those patients to whom he rendered care, at the cost of not assisting others who remained on the waiting list. And "[a] person deprives another of a constitutional right, within the meaning of section 1983, if he does an affirmative act, participates in another's affirmative acts, or omits to perform an act which he is legally required to do that causes the deprivation of which [the plaintiff complains]." Redman v. Cnty. of San Diego, 942 F.2d 1435, 1439-40 (9th Cir.1991) (en banc) (emphasis added) (internal quotation marks omitted), abrogated on other grounds by Farmer, 511 U.S. at 837, 114 S.Ct. 1970.
A medical professional "is under no legal obligation to render professional services to everyone who applies to him or her," absent a "statute providing otherwise." See 61 Am.Jur.2d Physicians, Surgeons, and Other Healers § 121 (2012). Similarly, under the common law rule, "a physician could with legal impunity refuse to aid a stranger in need of immediate medical care." Colby v. Schwartz, 78 Cal.App.3d 885, 890, 144 Cal.Rptr. 624 (1978). Nor do medical ethics ordinarily require a provider to care for a person absent a pre-existing doctor-patient relationship. See Agnew v. Parks, 172 Cal.App.2d 756, 763-64, 343 P.2d 118 (1959) (discussing the Hippocratic Oath). Although professional ethics may require medical professionals to provide some pro bono services to the indigent, there is no ethical obligation to provide care to any particular individual. See Am. Med. Ass'n, Current Opinions of the Council on Ethical & Judicial Affairs, Code of Medical Ethics ("Code of Medical Ethics") § 9.065 (1994); id. § 10.05 (2008); Am. Coll. of Dentists, Ethics Handbook for Dentists 14 (2012).
But "[a] patient-physician relationship exists when a physician serves a patient's medical needs." Code of Medical Ethics § 10.015 (2001); see Am. Dental Ass'n, Principles of Ethics and Code of Professional Conduct § 2.F (2012). So once a patient-provider relationship is established, the provider "is bound by law to exercise a high standard of skill and care, to continue the treatment until the relation... is legally terminated, and not to abandon the case." 61 Am.Jur.2d Physicians, Surgeons, and Other Healers § 121 (2012).
Here, Brooks was assigned to treat Peralta and first examined him on October 15, 2004, thereby creating a provider-patient relationship. Peralta claims — and a reasonable juror could find, see supra Part II — that Brooks failed to provide constitutionally adequate care in the subsequent fourteen months, during which time Brooks saw Peralta for two additional appointments and signed off on a form effectively denying Peralta's request for more thorough or timely care.
In sum, under basic principles of tort law, even if prison budget constraints were an independent and sufficient cause of the extraordinary delays in providing Peralta with basic dental care, that fact alone would not exonerate Brooks, if his own acts or omissions were also sufficient to cause Peralta — Brooks's assigned patient — harm.
By stating the opposite rule, the instruction allowed Brooks to point to inadequacies in California's prison system to preclude the jury's consideration of his own actions. But deficiencies and delays in California's provision of health care to prisoners are long-standing and endemic, see Plata v. Schwarzenegger, No. C01-1351-THE, 2009 WL 799392 (N.D.Cal. Mar. 24, 2009), aff'd in part, 603 F.3d 1088 (9th Cir.2010), and "[n]eedless suffering and death have been the well-documented result." Brown v. Plata, ___ U.S. ___, 131 S.Ct. 1910, 1923, 179 L.Ed.2d 969 (2011). The instruction that the majority upholds will now allow prison officials sued for damages to flaunt our longstanding holding in Jones that "[b]udgetary constraints... do not justify cruel and unusual punishment." Jones, 781 F.2d at 771.
Nor does the instruction accurately state any immunity principle.
First, courts have widely held that a party's purported defense that he was "`just following orders'" does "`not occup[y] a respected position in our jurisprudence.'" Kennedy v. City of Cincinnati, 595 F.3d 327, 337 (6th Cir.2010) (quoting O'Rourke v. Hayes, 378 F.3d 1201, 1210 n. 5 (11th Cir.2004)); Thaddeus-X v. Blatter, 175 F.3d 378, 393 (6th Cir.1999) (en banc) (collecting cases). Instead, "officials have an obligation to follow the Constitution even in the midst of a contrary directive from a superior or in a policy." Kennedy, 595 F.3d at 337 (internal quotation marks omitted). The principle is so longstanding that in an 1804 opinion by Chief Justice Marshall, the Supreme Court upheld a damages award against the commander of an American warship for unlawfully seizing a Danish vessel, even though the seizure was made pursuant to a superior's instructions. See Little v. Barreme, 6 U.S. (2 Cranch) 170, 178-79, 2 L.Ed. 243 (1804) (Marshall, C.J.); Busche v. Burkee, 649 F.2d 509, 517 (7th Cir.1981) (discussing
Second, officials are not immunized from liability for constitutional violations if they act pursuant to an unconstitutional statute. Even before the Supreme Court breathed new life into § 1983 through its interpretation of that statute in Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), federal courts interpreted § 1983 to provide a damages remedy for "state-approved constitutional deprivations." See id. at 198, 81 S.Ct. 473 (Harlan, J., concurring).
Finally, police are not shielded from liability for unconstitutional searches or seizures simply because a neutral magistrate has issued the warrant on which the police rely. See Messerschmidt v. Millender, ___ U.S. ___, 132 S.Ct. 1235, 1245, 182 L.Ed.2d 47 (2012). Rather, if "`it is obvious that no reasonably competent officer would have concluded that a warrant should issue,'" liability will attach. Id. (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986)).
In sum, under a host of doctrines, we do not permit state actors to escape liability under § 1983 simply by pointing to some freestanding or intervening constitutional violation, or to unconstitutional directives from superiors. The rule should be no different where a doctor invokes a material constraint on his ability to discharge his duties under the Constitution to an assigned patient.
As I can find no support in § 1983 case law, the law of torts, or immunity doctrines for the instruction that the majority sanctions, I would hold that the instruction was a misstatement of the applicable law.
"An error in instructing the jury in a civil case requires reversal unless the error is more probably than not harmless." Clem, 566 F.3d at 1182 (internal quotation marks omitted). "Because we presume prejudice where civil trial error is concerned, the burden shifts to the defendant to demonstrate that it is more probable than not that the jury would have reached the same verdict had it been properly instructed." Id. (internal quotation marks omitted). "When the trial court erroneously adds an extra element to the plaintiff's burden of proof, it is unlikely that the error would be harmless." Id. (internal quotation marks and alterations omitted).
It was more probable than not that the district court's instructional error prejudiced Peralta. The instruction allowed the jury to decide the case on the impermissible ground that the prison's medical budget was inadequate — as to which evidence and argument was presented — and without regard to whether Brooks discharged his Eighth Amendment duties to Peralta. See Jones, 781 F.2d at 771; Snow, 681 F.3d at 986. As Peralta presented sufficient evidence for a reasonable juror to find that Brooks was a moving force behind the denial of care for Peralta's serious medical needs, the error could not have been harmless.
Finally, I must respond to the majority's suggestion that the novel instruction it approves is necessary on policy grounds — in particular, to avoid discouraging prison employees from continuing in their positions because budget constraints impact their ability to avoid committing constitutional violations. See Maj. Op. at 1128-29.
As an initial matter, such a policy consideration is an improper basis "for departing
Moreover, as I have noted, under longstanding principles, absent a basis for qualified or absolute immunity, a governmental employee's unconstitutional actions are not excused because committed under the directive of a superior or compelled by an unconstitutional statute. An employee directed by a supervisor to commit an unconstitutional act might well lose her job if she refuses to comply, but we have not regarded that as a reason to absolve her of liability if she obeys the directive. The dilemma for state employees is no different under the present circumstances. The policy choice underlying the established principles I have discussed is that individuals of free will are obligated not to treat their fellow citizens unconstitutionally, even if it costs them their jobs and fewer government services are provided, at least in the short term. If the services are then not provided, the fault will be laid, politically if not legally, where it belongs — with the appointed superiors, or even more appropriately, with the elected officials who have created a system in which more people are imprisoned than can be accorded constitutionally adequate medical care with available funds. See Plata, 131 S.Ct. at 1947 (upholding a prisoner release order to remedy the California legislature's delay in ameliorating a prison system unable to provide constitutional care). The alternative — that the only recourse for constitutional violations created by inadequate resources is institutional reform litigation, leaving those already injured to absorb their own losses — is not the model we have adopted, as I have explained, nor the one best designed to impel elected officials to operate constitutionally adequate prisons.
In any event, the majority's fear of an exodus of medical providers from prisons is unfounded. It is a practical certainty that a prison employee sued in his individual capacity will not himself be on the hook for any damages. California indemnifies any public employee for a judgment arising from acts or omissions "within the scope of his or her employment as an employee of the public entity," Cal. Gov't Code §§ 825(a), 825.2(b), and may even indemnify employees for punitive damages under certain circumstances, id. § 825(b). Indemnification is "near[ly] universal" among state and local entities, either as a matter of official policy or practice. Margo Schlanger, Inmate Litigation, 116 Harv. L.Rev. 1555, 1676 n.391 (2003); see Arar v. Ashcroft, 585 F.3d 559, 636 (2d Cir.2009)(en banc) (Calabresi, J., dissenting); Lawrence Rosenthal, A Theory of Governmental Damages Liability: Torts, Constitutional Torts, and Takings, 9 U. Pa. J. Const. L. 797, 812 & n.51, 819 (2007) (noting the "ubiquity of public employee indemnification" and collecting statutes); John C. Jeffries, Jr., In Praise of the Eleventh Amendment and Section 1983, 84 Va. L.Rev. 47, 50 (1998) (describing "constitutional tort actions against government officers" as "functional substitutes for direct access to government treasuries"). And in many states — including California — a damages award is paid not from the state's general appropriations fund, but from the prison agency budget. Joshua J. Fougere, Paying for Prisoner Suits: How the Source of Damages Impacts State Correctional Agencies' Behavior, 43 Colum. J.L. & Soc. Probs. 283, 301 & n.101 (2010). A damages judgment against a prison dentist can therefore be expected to provide incentives to the California Department of Corrections and Rehabilitation (CDCR) to reallocate its sources of funding to provide constitutionally sufficient medical care.
Cortes-Quinones, 842 F.2d at 562.
Permitting prisoners to obtain redress in suits against individual defendants also comports with traditional principles underlying equitable relief, as well as the Prison Litigation Reform Act, under which a prospective injunction is only appropriate when it is narrowly drawn and is "the least intrusive means necessary" to vindicate a constitutional violation. See 18 U.S.C. § 3626; Califano v. Yamasaki, 442 U.S. 682, 702, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979). When a jury awards damages against a state employee or official, and the award is paid from the state's fisc or the agency's budget, the legislative or executive branches can use cost-benefit analyses to choose whether to reallocate resources to limit future liability or continue to bear the costs of their unconstitutional practices. Damages actions are thus less intrusive into the operation of prisons by elected and appointed officials than structural injunctions, which require ongoing judicial oversight of prison management.
Unlike the majority, I see no basis in our caselaw for allowing Brooks to rely on the CDCR's budget constraints to immunize himself from liability for his own failure to give basic attention to Peralta's serious dental needs. The rule that the majority sanctions not only erects yet another barrier for prisoner plaintiffs to obtain redress for deprivations of fundamental rights, but also eliminates one incentive for California policymakers to address systemic inadequacies in providing prisoners with the most basic level of medical attention. Because I would hold that the jury instruction at issue was not harmless error, I would remand for a new trial.
