FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


GEORGE O. MITCHELL,                      No. 13-36217
              Plaintiff-Appellant,
                                            DC No.
                v.                       3:12 cv-05403
                                              BHS
STATE OF WASHINGTON; KELLY
CUNNINGHAM, SCC Superintendent;
DR. THOMAS BELL,                           OPINION
            Defendants-Appellees.


     Appeal from the United States District Court
       for the Western District of Washington
     Benjamin H. Settle, District Judge, Presiding

                Argued and Submitted
         April 6, 2015—Pasadena, California

                Filed March 14, 2016

   Before: Dorothy W. Nelson, A. Wallace Tashima,
        and Richard R. Clifton, Circuit Judges.

             Opinion by Judge Tashima;
            Concurrence by Judge Clifton
2            MITCHELL V. STATE OF WASHINGTON

                           SUMMARY*


                      Prisoner Civil Rights

    The panel affirmed the district court’s summary judgment
in an action brought pursuant to 42 U.S.C. § 1983 in which
plaintiff, who is civilly committed as a sexually violent
predator, alleged that defendants’ refusal to treat his Hepatitis
C with interferon and ribavirin violated his right to reasonable
medical care and that the consideration of race in the denial
of this treatment violated the Equal Protection Clause.

    The panel first held the district court erred by finding that
the damages claims against the state defendants were barred
by the Eleventh Amendment. The panel held that even
though plaintiff testified in his deposition that he was suing
defendants only in their official capacities, his amended
complaint clearly stated that he was suing defendants in both
their official and personal capacities for damages and
injunctive relief and the record demonstrated that plaintiff,
acting pro se, did not understand the legal significance of
bringing claims against defendants in their official versus
personal capacities.

    The panel held that plaintiff’s claims for injunctive and
declaratory relief were moot because he received the
requested treatment. The panel next found that plaintiff had
failed to show any evidence that defendants’ decision not to
administer interferon and ribavirin was unreasonable and
failed to meet the appropriate standard of care.

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
            MITCHELL V. STATE OF WASHINGTON                    3

    Addressing plaintiff’s equal protection claim, the panel
held that plaintiff set forth specific facts plausibly suggesting
that defendant Dr. Bell employed an explicit racial
classification sufficient to trigger strict scrutiny when he
determined not to recommend plaintiff for interferon and
ribavirin treatment. The panel held that Dr. Bell failed to
meet his burden under the strict scrutiny because he failed to
offer any compelling justification for the racial classification,
let alone a justification that was narrowly tailored; instead,
arguing only that plaintiff’s equal protection claim failed
because race was not the “primary” consideration in denying
treatment. The panel nevertheless held that Dr. Bell was
entitled to qualified immunity because it was not clearly
established that a reasonable official would understand that
the use of race-related success-of-treatment data as a factor in
a medical treatment decision would be unconstitutional.

    Concurring in part and concurring in the judgment, Judge
Clifton agreed with most of the specific conclusions of the
majority opinion, including that the claims were not barred by
the Eleventh Amendment, that the claims for injunctive and
declaratory relief were moot, and that Dr. Bell was entitled to
qualified immunity. Judge Clifton would not take up the
question of whether the Constitution forbids a doctor from
considering credible scientific evidence that individuals of a
certain race respond poorly to a particular treatment.
Nevertheless if required to do so, he would conclude that,
under the circumstance, plaintiff’s rights were not violated.
4          MITCHELL V. STATE OF WASHINGTON

                        COUNSEL

Erwin Chemerinsky, Peter Afrasiabi, Kathryn Marie Davis,
Appellate Litigation Clinic, University of California, Irvine
School of Law; Tommy Du (argued), Catriona Lavery
(argued), Law Students, Irvine, California, for Plaintiff-
Appellant.

Robert W. Ferguson, Attorney General of Washington, Grace
C.S. O’Connor (argued) and Christopher Lanese, Assistant
Attorneys General, Olympia, Washington, for Defendants-
Appellees.


                        OPINION

TASHIMA, Circuit Judge:

    Plaintiff-Appellant George Mitchell brought this action
against Defendants-Appellees (“Defendants”) for injunctive
relief and damages under 42 U.S.C. § 1983, alleging
constitutionally inadequate medical care and a violation of
the Equal Protection Clause. The district court granted
summary judgment in favor of Defendants, and Mitchell
timely appealed. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.

                             I.

                     BACKGROUND

   George Mitchell, a fifty-nine year old African-American
male, has been civilly committed as a sexually violent
predator to the Special Commitment Center (“SCC”) by the
           MITCHELL V. STATE OF WASHINGTON                    5

State of Washington since June 27, 2003. See In re Det. of
Mitchell, 

(Wash. Ct. App. 2011).

     On approximately December 14, 2000, prior to his arrival
at the SCC, Mitchell was diagnosed with Hepatitis C. From
approximately 2003 to 2005, Mitchell met with one of SCC’s
consulting physicians, Dr. W. Michael Priebe, of the Tacoma
Disease Center. As a consulting specialist, Dr. Priebe was
limited to recommending certain courses of treatment, and
did not have the authority to order treatment. In mid-2005,
Dr. Priebe discussed treatment options with Mitchell. One of
the treatment options discussed was the administration of
interferon and ribavirin. Because interferon and ribavirin are
weight-based medications (meaning dosage depends on the
patient’s weight), Mitchell agreed to postpone this type of
treatment until he could lose weight.

    In May of 2009, Mitchell met with Dr. Thomas Bell, then
the Medical Supervisor of SCC, to discuss his liver biopsy
results and review treatment options. During that meeting,
based on a belief that his condition was deteriorating,
Mitchell requested interferon and ribavirin treatment. Dr.
Bell informed Mitchell that the interferon and ribavirin
treatment for his genotype had been largely unsuccessful on
African-American males. In addition, after reviewing
Mitchell’s liver biopsy results, Dr. Bell told Mitchell that his
Hepatitis C had not progressed to a level that would justify
the harsh side effects of the requested treatment. Based on
these factors, Dr. Bell did not recommend Mitchell for
interferon and ribavirin treatment. In November of 2012,
Mitchell was placed on interferon and ribavirin. The
treatment was ultimately unsuccessful.
6            MITCHELL V. STATE OF WASHINGTON

    Mitchell commenced this action on August 23, 2012,
against Defendants Dr. Bell, Kelly Cunningham,
Superintendent of SCC, and the State of Washington.1
Mitchell sued Dr. Bell and Cunningham in their individual
and official capacities. Mitchell alleged that Dr. Bell’s
refusal to refer him for interferon and ribavirin treatment
violated the Fourteenth Amendment for two reasons:2 (1) the
denial of interferon and ribavirin treatment violated his right
to reasonable medical care; and (2) the consideration of race
in the denial of treatment violated the Equal Protection
Clause.

    On referral of this case for a report and recommendation
(“R&R”), the Magistrate Judge recommended that
Defendants’ motion for summary judgment be granted. The
Magistrate Judge first ruled that all claims against the State
of Washington were barred by the Eleventh Amendment.
Second, she ruled that because Mitchell testified in his
deposition that is he suing Cunningham and Dr. Bell in their
official capacities, all claims for damages against them are
barred by the Eleventh Amendment. The Magistrate Judge
then excluded a declaration proffered by Mitchell because it
was unsigned and because the declarant lacked sufficient
qualifications and personal knowledge. She next ruled that
Defendants are entitled to qualified immunity because
Mitchell failed to assert a constitutional violation.


    1
   Mitchell also sued Randall Griffith, Paul Temposky, and Christine
Haueter. These individuals are no longer defendants in this action.
    2
   Mitchell also alleged that the decision not to authorize his requested
Hepatitis C diet violated the Fourteenth Amendment. The district court
granted summary judgment in favor of Defendants on this claim and
Mitchell has not appealed this issue.
           MITCHELL V. STATE OF WASHINGTON                    7

Specifically, the Magistrate Judge ruled that Mitchell
presented no evidence that Dr. Bell’s treatment of Mitchell
did not meet the appropriate standard of care for a medical
provider, and that Mitchell’s equal protection claim failed
because he had not shown that Defendants acted with the
intent or purpose to discriminate.

   The District Court adopted the Magistrate Judge’s R&R
and entered judgment against Mitchell.

                              II.

                STANDARD OF REVIEW

    This Court reviews a district court’s grant of summary
judgment de novo. Vasquez v. Cty. of L.A., 

, 639
(9th Cir. 2003). The Court must “determine whether, viewing
the evidence in the light most favorable to the nonmoving
party, there are any genuine issues of material fact and
whether the district court correctly applied the relevant
substantive law.” Lopez v. Smith, 

, 1131 (9th
Cir. 2000) (en banc) (citing Balint v. Carson City, 

, 1050 (9th Cir. 1999) (en banc)).

                              III.

                       DISCUSSION

A. Eleventh Amendment Immunity

    The Eleventh Amendment bars claims for damages
against a state official acting in his or her official capacity.
Pena v. Gardner, 

, 472 (9th Cir. 1992) (per
curiam). It does not, however, bar claims for damages
8            MITCHELL V. STATE OF WASHINGTON

against state officials in their personal capacities. 

a plaintiff sues a defendant for damages,
there is a presumption that he is seeking damages against the
defendant in his personal capacity. Romano v. Bible,

, 1186 (9th Cir. 1999).

    Mitchell’s First Amended Complaint clearly states that he
is suing Cunningham and Dr. Bell in both their official and
personal capacities for damages and injunctive relief. The
district court, however, relying on Mitchell’s deposition
testimony that he is suing Cunningham and Dr. Bell only in
their official capacities, held that all claims for damages
against Cunningham and Dr. Bell should be dismissed. But
the record clearly demonstrates that Mitchell, who was acting
pro se, did not understand the legal significance between
bringing claims against Dr. Bell and Cunningham in their
official versus personal capacities. Further, in questioning
Mitchell, Defendants’ attorney failed adequately to explain
the significance of the difference, even after Mitchell
signified that he did not understand the legal jargon and
would need assistance. As a result, we conclude that Mitchell
is not bound by his deposition testimony and Mitchell’s
damages claims against Defendants in their individual
capacities are not barred by the Eleventh Amendment.3 To
hold otherwise would “threaten[] to ensnare parties who may
have simply been confused during their deposition testimony
and may encourage gamesmanship by opposing attorneys.”
Van Asdale v. Int’l Game Tech., 

, 998 (9th Cir.
2009).




  3
    Mitchell does not contest the district court’s holding that all claims
against the State of Washington are barred by the Eleventh Amendment.
            MITCHELL V. STATE OF WASHINGTON                    9

B. Mootness

    Although not briefed by the parties, before reaching the
merits of Mitchell’s claims, we must consider whether
Mitchell’s claims for injunctive and declaratory relief are
moot. See Gator.com Corp. v. L.L. Bean, Inc., 

, 1128–29 (9th Cir. 2005) (stating that because mootness
is a jurisdictional issue it should be raised sua sponte).
Article III of the Constitution requires that “federal courts
confine themselves to deciding actual cases and
controversies.” 

“‘[I]t is not enough that there
may have been a live case or controversy when the case was
decided by the court whose judgment we are reviewing.’
Rather, Article III requires that a live controversy persist
throughout all stages of the litigation.” 

(quoting Burke v. Barnes, 

, 363 (1987) (citation
omitted)).

    When a plaintiff no longer wishes to engage in the
activity for which he initially sought declaratory or injunctive
relief, the requisite case or controversy is absent. 

Several months after Mitchell commenced this action, SCC
began treating Mitchell with interferon and ribavirin. The
treatment was ineffective. Given the failure of the requested
treatment, Mitchell no longer has any need for the treatment
and there is no reasonable expectation that Mitchell will
request the same failed treatment again. As a result, we
conclude that Mitchell’s claims for injunctive and declaratory
relief are moot.
10         MITCHELL V. STATE OF WASHINGTON

C. Damages under 42 U.S.C. § 1983 and Qualified
   Immunity

    Mitchell’s remaining claims are claims for damages under
42 U.S.C. § 1983 against individual Defendants, Dr. Bell and
Cunningham, in their personal capacities. Government
officials enjoy qualified immunity from civil damages unless
their conduct violates “clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 

, 818 (1982).
Thus, in determining whether qualified immunity applies to
Defendants, we must determine whether: (1) the facts
adduced constitute the violation of a constitutional right; and
(2) the constitutional right was clearly established at the time
of the alleged violation. Pearson v. Callahan, 

,
232 (2009).

    Mitchell asserts two constitutional violations. First, he
contends that Dr. Bell and Cunningham denied him
constitutionally adequate medical care in violation of the
Fourteenth Amendment. Second, he contends that Dr. Bell
and Cunningham violated his right to equal protection under
the Fourteenth Amendment by making a medical treatment
decision based on race.

     1. Constitutionally Adequate Medical Care Under
        the Fourteenth Amendment

    “Involuntarily committed patients in state mental health
hospitals have a Fourteenth Amendment due process right to
be provided safe conditions by the hospital administrators
. . . . [W]hether a hospital administrator has violated a
patient’s constitutional rights is determined by whether the
administrator’s conduct diverges from that of a reasonable
           MITCHELL V. STATE OF WASHINGTON                  11

professional.” Ammons v. Wash. Dep’t. of Soc. & Health
Servs., 

, 1027 (9th Cir. 2011). In other words,
a decision, “if made by a professional, is presumptively valid;
liability may be imposed only when the decision by the
professional is such a substantial departure from accepted
professional judgment, practice, or standards as to
demonstrate that the person responsible actually did not base
the decision on such a judgment.” Youngberg v. Romeo,

, 323 (1982). This standard has been referred to
as the “Youngberg professional judgment standard.”

. The Youngberg standard differs
from the “deliberate indifference” standard used in Eighth
Amendment cruel and unusual punishment cases, in that
“[p]ersons who have been involuntarily committed are
entitled to more considerate treatment and conditions of
confinement than criminals whose conditions of confinement
are designed to punish.” 

457 U.S.
at 321–22) (internal quotation marks omitted).

    Mitchell argues that Dr. Bell’s decision not to administer
interferon and ribavirin treatment violates the Youngberg
professional judgment standard.         In support of this
argument, Mitchell presents several excerpts from
medical texts suggesting that administration of interferon
and ribavirin is the preferred treatment course for
Hepatitis C. These documents, however, contain guidelines
and recommendations, rather than specific standards of care.
None of the documents submitted by Mitchell suggests that
Dr. Bell’s treatment decision, based on the individualized
circumstances of Mitchell’s health, was unreasonable.
Furthermore, the fact that Dr. Priebe suggested, in 2005, that
future interferon and ribavirin treatment may be appropriate
is not sufficient to demonstrate that Dr. Bell’s decision
concluding otherwise in 2009 was unreasonable. As a result,
12           MITCHELL V. STATE OF WASHINGTON

we conclude that Mitchell has failed to present evidence
sufficient to rebut the Youngsberg professional judgment
standard. Consequently, we affirm the district court’s grant
of summary judgment in favor of Defendants on this claim.

      2. Equal Protection

     “[A]ny official action that treats a person differently on
account of his race or ethnic origin is inherently suspect.”
Fisher v. Univ. of Tex., 

, 2419 (2013)
(quoting Fullilove v. Klutznick, 

, 523 (1980)
(Stewart, J., dissenting) (internal quotation marks omitted)).
Consequently, the general rule is that when a state actor
explicitly treats an individual differently on the basis of race,
strict scrutiny is applied. Id.; Johnson v. California, 

, 505 (2005); Adarand Constructors, Inc. v. Pena,

, 227 (1995). Under strict scrutiny, all racial
classifications imposed by the government must be “narrowly
tailored to further compelling government interests.” 

(quoting Grutter v. Bollinger, 

,
326 (2003) (internal quotation marks omitted)).

    The Supreme Court has never considered whether strict
scrutiny applies to the use of race by a state actor in making
a medical treatment decision.4 Nor have we. First, we note
that the Supreme Court has “insisted on strict scrutiny in
every context, even for so-called ‘benign’ racial
classifications, such as race-conscious university admissions
policies, race-based preferences in government contracts, and


  4
   Although the Supreme Court has never directly addressed this issue,
members of the Court have in the past indicated that they believe strict
scrutiny should apply to race-targeted medical outreach programs. See
Bush v. Vera, 

, 984 (1996).
           MITCHELL V. STATE OF WASHINGTON                   13

race-based districting intended to improve minority
representation.” 

(citations omitted).
The question is whether these reasons for applying strict
scrutiny should be applied in the medical context. We
conclude that they should because even medical and scientific
decisions are not immune from invidious and illegitimate
race-based motivations and purposes. Indeed, the lens under
which we examine the constitutionality of race-based medical
and scientific decisions becomes especially critical in light of
documented instances in which the federal government has
pursued reprehensible race-based actions in the name of
science and medicine. See, e.g., U.S. Public Health Service
Syphilis Study at Tuskegee, CENTERS FOR DISEASE CONTROL
AND PREVENTION, www.cdc.gov/tuskegee/index.html (last
visited July 22, 2015) (describing the government’s role in
the Tuskegee syphilis study withholding adequate treatment
from poor black men); Secret World War II Chemical
Experiments Tested Troops Based on Race, NPR,
www.npr.org/2015/06/22/415194765/u-s-troops-tested-by-
race-in-secret-world-war-ii-chemical-experiments (last
visited July 22, 2015) (describing government funded
program studying the effects of mustard gas and other
chemical agents on African-American, Japanese-American,
and Puerto Rican soldiers during World War II).

    We also recognize that there are likely numerous
instances where the use of race as a factor in a medical
decision is benign and may even be beneficial. However,
“there is simply no way of determining what classifications
are ‘benign’ or ‘remedial’ and what classifications are in fact
motivated by illegitimate notions of racial inferiority or
simple racial politics.” Shaw v. Reno, 

, 642–43
(1993) (quoting Richmond v. J.A. Croson Co., 

,
493 (1989) (internal quotation marks omitted)). Indeed,
14           MITCHELL V. STATE OF WASHINGTON

“[t]he point of carefully examining the interest asserted by the
government in support of a racial classification, and the
evidence offered to show that the classification is needed, is
precisely to distinguish legitimate from illegitimate uses of
race in governmental decisionmaking.” 

. As a result, courts apply strict scrutiny “in order to
‘smoke out’ illegitimate uses of race by assuring that
[government] is pursuing a goal important enough to warrant
[such] a highly suspect tool.” 

(quoting J.A. Croson 

).

      Turning to the facts of this case, we conclude that
Mitchell has set forth specific facts plausibly suggesting that
Dr. Bell5 employed an explicit racial classification sufficient
to trigger strict scrutiny. Mitchell states that when he
requested interferon and ribavirin treatment from Dr. Bell he
was told that treatment did not work on African Americans.
Dr. Szeibert’s declaration corroborates this allegation, stating
that “Dr. Bell rejected Mitchell’s request [for interferon and
ribavirin treatment], explaining to Mr. Mitchell that interferon
& ribavirin treatments for plaintiff’s Hepatitis C genotype . . .
had been largely unsuccessful on African American males
. . . .” Indeed, on appeal, Defendants concede that race was
a factor in Dr. Bell’s decision to deny Mitchell’s medication
request. Accepting these facts as true, as we must on
summary judgment, under strict scrutiny, Mitchell has
adduced sufficient facts to establish that Dr. Bell employed a
racial classification when he determined not to recommend
Mitchell for interferon and ribavirin treatment.


  5
   Because Mitchell has alleged no facts suggesting that Cunningham
knew of the potential equal protection violations, we affirm the grant of
summary judgment for this claim as to Cunningham. As a result, the
remainder of our analysis focuses solely on the claim against Dr. Bell.
           MITCHELL V. STATE OF WASHINGTON                   15

     Defendants suggest that strict scrutiny should not apply
for two reasons: (1) Dr. Bell’s consideration of the race-
related success rate of interferon and ribavirin treatment “is
not synonymous with a distinction based solely on race,”
because there may be a different genotype of the disease that
would be responsive to treatment in the African-American
male population; (2) race-related success of the treatment was
not the only factor considered by Dr. Bell, and thus was not
necessarily determinative of the treatment decision. Under
strict scrutiny, these arguments are unavailing. First, the fact
that race is a factor in a government decision is sufficient to
trigger strict scrutiny. See 

. As a
result, the hypothetical presented by Defendants suggesting
that if Mitchell had a different genotype of Hepatitis C, race
may not have factored into the decision, is irrelevant.
Second, because Mitchell has shown that Dr. Bell explicitly
factored Mitchell’s race into his treatment decision, it was not
necessary to show that “but for” Dr. Bell’s consideration of
race, the decision to withhold the requested drugs would have
occurred. “When the government expressly classifies persons
on the bases of race or national origin . . . its action is
‘immediately suspect’ . . . . A plaintiff in such a lawsuit need
not make an extrinsic showing of discriminatory animus or a
discriminatory effect to trigger strict scrutiny.” Jana-Rock
Constr., Inc. v. N.Y. State Dep’t of Econ. Dev., 

,
204–05 (2d Cir. 2006); see also Walker v. Gomez, 

, 974 (9th Cir. 2004) (stating that the plaintiff was not
required to show discriminatory intent because the state
admitted it considered race when it assigned inmates to a
cell).

   Because we hold that strict scrutiny applies, Dr. Bell is
required to demonstrate that the use of race in his medical
decision was narrowly tailored to achieve a compelling
16           MITCHELL V. STATE OF WASHINGTON

government interest. 

. It is not
difficult to imagine the existence of a compelling justification
in the context of medical treatment. See Erik Lillquist &
Charles A. Sullivan, The Law and Genetics of Racial
Profiling in Medicine, 39 HARV. C.R.-C.L.L. REV. 391, 445
(2004) (suggesting that sufficient empirical data to treat
African-Americans differently than whites may constitute a
compelling government interest); Scarlett S. Lin & Jennifer
L. Kelsey, Use of Race and Ethnicity in Epidemiologic
Research: Concepts, Methodological Issues, and Suggestions
for Research, 22 EPIDEMIOLOGIC REV. 187, 187 (2000)
(emphasizing the importance of the use of race and ethnicity
in medical research). Because, however, Dr. Bell failed to
offer any compelling justification for the racial classification,
let alone a justification that was narrowly tailored; instead,
arguing only that Mitchell’s equal protection claim fails
because race was not the “primary” consideration in denying
treatment, Dr. Bell failed to meet his burden under the strict
scrutiny standard. Thus, the district court erred in concluding
that no constitutional violation occurred. See Guru Nanak
Sikh Soc’y of Yuba City v. Cnty. of Sutter, 

, 981
(9th Cir. 2006); Krislov v. Rednour, 

, 866 n.7
(7th Cir. 2000).6




  6
    The concurring opinion agrees that strict scrutiny should be applied,
Concur. Op. at 24, but argues that this standard was met because “Dr. Bell
successfully articulated a compelling State interest in the health of his
patient when he explained that he refused to prescribe treatment because
he thought it would do more harm than good.” 

While this may
be sufficient as a Hippocratic oath-like aspirational goal, it simply does
not pass muster as a sufficiently particularized showing under the strict
scrutiny standard.
              MITCHELL V. STATE OF WASHINGTON                             17

     3. Qualified Immunity – Clearly Established

    Despite the fact that we hold that the violation of a
constitutional right occurred, Dr. Bell is entitled to qualified
immunity if it was not “clearly established” that his actions
would violate Mitchell’s constitutional rights. 7 

. At the time of Dr. Bell’s actions, it was
clear that the Fourteenth Amendment requires all racial
classifications to survive strict scrutiny. Smith v. Univ. of
Wash., Law School, 

, 1196–97 (9th Cir. 2000);
Rudebusch v. Hughes, 

, 518 (9th Cir. 2002).
Furthermore, the right of a ward of the state to be free from
racial discrimination was clearly established. 

.

     However, “[i]t is insufficient that the broad principle
underlying a right is well-established.” 

. “The relevant, dispositive inquiry in determining
whether a right is clearly established is whether it would be
clear to a reasonable officer that his conduct was unlawful in
the situation he confronted.” 

v. Katz,

, 202 (2001) (internal quotation marks omitted)).


 7
   The concurring opinion notes that, under Pearson, “we are not required
to consider the question of” a constitutional violation. Concur. Op. at 20.
But Pearson clearly authorized us to address either inquiry first. See

(“[W]e conclude that, while the sequence set
forth [in Saucier v. Katz, 

(2001)] is often appropriate, it
should no longer be regarded as mandatory. The judges of the district
courts and courts of appeals should be permitted to exercise their sound
discretion in deciding which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances in the
particular case at hand.”). We first address the constitutional violation
question for clarity, particularly because the district court addressed it and
held that there was no constitutional violation.
18         MITCHELL V. STATE OF WASHINGTON

“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 v. Barkes, 135 S.
Ct. 2042, 2044 (2015) (quoting Reichle v. Howards, 132 S.
Ct. 2088, 2093 (2012) (internal quotation marks omitted));
see also Anderson v. Creighton, 

, 640 (1987)
(“The contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing
violates that right.”). Mitchell “has not brought to our
attention, and our independent research does not reveal, case
law involving the particular circumstances presented by this
case.” 

–78. Here, the “particular
circumstances” are the use of race-related success-of-
treatment data as a factor in making a medical treatment
decision. As a result, it was not clearly established that a
reasonable official would understand that the use of race-
related success-of-treatment data as a factor in a medical
treatment decision would be unconstitutional. Dr. Bell is
therefore entitled to qualified immunity.

                             IV.

                      CONCLUSION

   For the reasons set forth above, the district court’s grant
of summary judgment in favor of Defendants is
AFFIRMED.
           MITCHELL V. STATE OF WASHINGTON                  19

CLIFTON, Circuit Judge, concurring in part and concurring
in the judgment:

    One of the primary teachings of the Hippocratic School
is embodied in the maxim “first do no harm.” The phrase
serves as a guiding principle for physicians who are debating
the use of an intervention that carries an obvious risk of harm
but a less certain chance of benefit. In this case, Dr. Thomas
Bell refused to prescribe a course of interferon and ribavirin
therapy to treat George Mitchell’s Hepatitis C because he
determined that the treatment was more likely to harm
Mitchell than cure him. The primary basis for Dr. Bell’s
treatment decision was that the progression of Mitchell’s
Hepatitis C had not advanced to the point where the toxicities
of the treatment were justified. But Dr. Bell also considered
that, because of Mitchell’s race, he was far less likely to be
cured.

    This court has never addressed whether the Constitution
forbids a doctor from considering credible scientific evidence
that individuals of a certain race respond poorly to a
particular treatment. Nor have we addressed what standard
of scrutiny would be used to evaluate such a claim. We do
not need to address those questions in order to resolve this
case, and I would not do so.

    I agree with the conclusions of the majority opinion that
the Eleventh Amendment does not bar Mitchell’s claim for
damages against the Defendants in their individual capacities,
that his claims for injunctive and declaratory relief are moot,
and that the summary judgment dismissing his claims for
damages against Kelly Cunningham was appropriate and
should be affirmed. I join the portions of the majority
opinion that state and explain those conclusions. I also agree
20          MITCHELL V. STATE OF WASHINGTON

that Dr. Bell is entitled to qualified immunity on the claim for
damages against him and join the portion of the majority
opinion that affirms the summary judgment in his favor. That
is enough to conclude the case.

    The majority opinion goes on to discuss the question of
whether Dr. Bell violated Mitchell’s constitutional rights and
concludes that on that question summary judgment was not
appropriate. It is that portion of the case that raises the
difficult issues identified above. The Supreme Court has
made clear that we are not required to consider the question
of whether there has been a violation of plaintiff’s
constitutional rights if the case can be resolved, as this one
has been, on the ground that the constitutional right at issue
was not clearly established at the time. Pearson v. Callahan,

, 236 (2009).

    Taking up that question, as the majority opinion does, I
ultimately agree with the majority’s determination that strict
scrutiny should be applied in these circumstances, though not
without some hesitation. I would, however, hold that Dr.
Bell’s limited consideration of Mitchell’s race was narrowly
tailored to further the State’s compelling interest in
preserving the health of the patient committed to its custody,
and thus, I would conclude that Mitchell’s constitutional
rights were not violated. I acknowledge that the argument
presented by the Defendants’ counsel devoted little attention
to that issue. The majority opinion supports its conclusion
with the observation, at 16, that Dr. Bell failed to offer any
compelling or narrowly tailored justification for the racial
classification at issue here, and that is an accurate assessment.
The justification for the treatment is apparent, however, and
our failure to recognize it may do mischief when a similar
case arises in the future. The strict scrutiny standard
               MITCHELL V. STATE OF WASHINGTON               21

intentionally sets a very high bar, and the majority opinion
may leave the impression that medical judgment does not
provide sufficient justification.

    Because insufficient attention has been given to this issue
by the parties, I would prefer that we resolve this case without
getting into the issue of whether Mitchell’s constitutional
right was violated. We should follow the example of the
physicians’ maxim – do no harm – by leaving that question
for another day. As the majority has elected to address that
question, though, I must note my disagreement with its
conclusion that Dr. Bell’s treatment was not sufficiently
justified.

I. Background

      A. Hepatitis C Treatment Standards

    Hepatitis C is a viral liver disease with effects that range
in severity from short-term illness to cirrhosis and liver
cancer. “Until recently, hepatitis C treatment was based on
therapy with interferon and ribavirin, which required weekly
injections for 48 weeks.” See World Health Organization,
Hepatitis C (2015).1 However, the treatment “caused
frequent and sometimes life-threatening adverse reactions”
that deterred many patients from completing therapy. 

rigors, it “is well known that many patients
will not be cured by the treatment, and that patients of
European ancestry have a significantly higher probability of
being cured than patients of African ancestry.” Dongliang
Ge, et al., Genetic Variation in IL28B Predicts Hepatitis C

 1
     http://who.int/mediacentre/factsheets/fs164/en.
22          MITCHELL V. STATE OF WASHINGTON

Treatment-Induced Viral Clearance, 461 Nature 399 (2009).
Part of the reason for the divergence is that African
Americans are much less likely to inherit a polymorphism
near the IL28B gene that helps the liver eliminate the
Hepatitis C virus. See 

result, physicians must
consider this ethnic disparity to accurately assess the potential
efficacy of the treatment in African American patients.

     The standard of care for determining whether to prescribe
interferon and ribavirin is individualized and multi-factoral.
It requires balancing “(1) the severity of liver disease, (2) the
potential of serious side effects, (3) the likelihood of
treatment response, and (4) the presence of comorbid
conditions.” See Doris B. Strader, et al., Diagnosis,
Management, and Treatment of Hepatitis C, 39 Hepatology
1147, 1155 (2004) (numbering added). With respect to the
severity of the disease, “treatment is indicated in those with
more-than-portal fibrosis,” which means that liver damage
has progressed to a moderate grade. 

of a
treatment response is indicated by the genotype of Hepatitis
C that the patient has been infected with and the patient’s
viral load. 

(stating that individuals with Hepatitis
C genotype 1 and individuals with high viral loads are
substantially less likely to achieve a sustained virologic
response). In addition, weight influences outcomes because
heavier individuals require higher dosages of medicine, and
thus, are more likely to experience prohibitive side effects.
Finally, race is a significant predictor of success, and it
complicates treatment decisions for African Americans
because the high toxicities of the treatment must be weighed
against a more fractional chance of a sustained virologic
response.
           MITCHELL V. STATE OF WASHINGTON                  23

   B. Mitchell’s Treatment History

    Mitchell is a sexually violent predator who resides at a
special commitment center in Washington. He was first
diagnosed with Hepatitis C two years prior to his civil
commitment. In 2005, Mitchell consulted Dr. Michael Priebe
regarding Hepatitis C treatment options, including interferon
and ribavirin therapy. Mitchell understood that the treatment
was weight based, and agreed to postpone treatment until he
could lose weight.

    In 2009, Mitchell met with Dr. Bell and requested a
referral for interferon and ribavirin therapy because he
believed that he had lost the weight necessary to begin
treatment. Mitchell also explained that he had recently
remarried and that he did not want to infect his wife. Dr. Bell
informed Mitchell that he only had a fractional chance of
achieving a remission-like state from the treatment because
of his genotype of Hepatitis C and because of his African
ancestry. Dr. Bell further explained that even if the treatment
were successful, Mitchell would still have Hepatitis C and
could still infect his wife. Dr. Bell then reviewed Mitchell’s
most recent liver biopsy, which showed minimal fibrotic
advancement. He concluded that Mitchell’s “Hepatitis C had
not progressed to a level that would justify the physically
demanding side effects” of the treatment, and refused to refer
Mitchell for treatment.

    Sometime thereafter, in 2012, Mitchell was placed on
interferon and ribavirin therapy. As the majority opinion
notes, at 5, that treatment was unsuccessful. Mitchell
responded poorly and did not achieve a sustained virologic
response.
24          MITCHELL V. STATE OF WASHINGTON

II. Discussion

     A. The Strict Scrutiny Standard

    The Supreme Court has held that “all racial
classifications, imposed by whatever federal, state, or local
governmental actor, must be analyzed by a reviewing court
under strict scrutiny.” Adarand Constructors, Inc. v. Pena,

, 227, 236 (1995) (internal quotation marks and
citation omitted). That is “[b]ecause racial characteristics so
seldom provide a relevant basis for disparate treatment, and
because classifications based on race are potentially so
harmful to the entire body politic.” 

never previously applied strict scrutiny to the
medical treatment decisions of prison doctors. Though racial
classifications based on race “seldom” provide a relevant
basis for disparate treatment, “seldom” does not mean
“never.” It seems to me indisputable, based on the scientific
evidence referenced above, that medicine is a place where the
“seldom” sometimes occurs. Our history is scarred with
reprehensible race-based actions, including the medical and
scientific decisions referred to in the majority opinion, at 13,
and I condemn those actions, but I do not see how the
medical decision in this case can fairly be analogized to
those. Treatment was not withheld from those victims based
on a professional judgment, based on medical science, that
the treatment would do more harm than good.

     Nonetheless, the Supreme Court has “insisted on strict
scrutiny in every context, even for so-called ‘benign’ racial
classifications.” See Johnson v. California, 

,
505 (2005). Someday the Court may encounter a case where
medical science presents the “seldom” situation and have the
            MITCHELL V. STATE OF WASHINGTON                   25

opportunity to consider whether strict scrutiny should apply
in that circumstance. Unless and until it does, I agree with
the majority opinion that the strict scrutiny standard applies
here.

    A decision to apply the strict scrutiny standard is
sometimes viewed as the end of the case because the bar is set
too high to surmount, but that is not how the doctrine is
supposed to be applied. “Strict scrutiny is not strict in theory,
but fatal in fact.” Grutter v. Bollinger, 

, 326
(2003) (internal quotation marks and citation omitted).
Indeed, its application “says nothing about the ultimate
validity of any particular law; that determination is the job of
the court applying strict scrutiny.” 

.

    The strict scrutiny standard is better understood as “a
framework for carefully examining the importance and the
sincerity of the reasons advanced by the governmental
decisionmaker for the use of race in that particular context.”

. “Context matters when reviewing
race-based governmental action under the Equal Protection
Clause.” 

purpose” of strict scrutiny is
to “take ‘relevant differences’ into account.” 

. “Prisons are dangerous places, and the
special circumstances they present may justify racial
classifications in some contexts.” 

.
The danger of prisons might not be a relevant factor here, but
the institutional setting might be. In the nuanced context of
correctional medicine, the court must perform a searching and
careful analysis that takes the relevant differences into
account.
26          MITCHELL V. STATE OF WASHINGTON

     B. Defendants’ Compelling Interest

    “[I]n some situations a State’s interest in facilitating the
health care of its citizens is sufficiently compelling to support
the use of a suspect classification.” Regents of the University
of California, v. Bakke, 

, 310 (1978); see also
Roe v. Wade, 

, 154 (1973) (stating that a State
may have compelling interests “in safeguarding health, [and]
in maintaining medical standards”). Indeed, individual health
and well-being have been recognized as a compelling
governmental interest in a variety of contexts, including
prisons. See, e.g., Warsoldier v. Woodford, 

,
996–98 (9th Cir. 2005) (stating that prison officials have a
compelling interest in preserving inmate health); Goehring v.
Brophy, 

, 1300 (9th Cir. 1996) (holding that a
“University’s interest in the health and well-being of its
students . . . is compelling”).

    This case implicates the State’s compelling interest in
safeguarding the health of a civilly committed individual. As
Dr. Bell explained, he did not recommend Mitchell for
interferon and ribavirin treatment because Mitchell’s liver
damage had not progressed to a level that would justify the
physically demanding side effects of the treatment. Dr. Bell
also noted that Mitchell had a fractional chance of achieving
a remission-like state. To the extent that Dr. Bell considered
Mitchell’s race, it was only to inform his assessment of the
likelihood of successful treatment. That narrow consideration
was necessary to a fully informed treatment decision, and
therefore, was necessary to further the State’s compelling
interest in preserving Mitchell’s health.

   This case also implicates the State’s compelling interest
in maintaining appropriate medical standards because, as
            MITCHELL V. STATE OF WASHINGTON                    27

noted above, a fully informed assessment of the potential
efficacy of interferon and ribavirin treatment requires the
consideration of race. Maintaining medical standards is a
compelling interest for physicians because they may be
subject to professional and legal sanctions if they make
substandard treatment decisions. It is equally compelling for
the State, which has an obligation to retain quality physicians
who are capable of providing adequate medical care. If state-
employed doctors are required to deliver substandard care or
to prescribe treatments that they believe are inappropriate,
those doctors may either refuse to work for the State or be
exposed to professional and legal liabilities. As a result, the
State’s interest in maintaining medical standards has a direct
effect on its compelling interest in preserving inmate health.

    The majority opinion holds, at 16, that Dr. Bell violated
Mitchell’s constitutional rights because he failed to offer any
compelling justification for his statement that interferon and
ribavirin treatment is less effective in African Americans.
But this opinion is the first instance in which our court has
applied strict scrutiny to the treating decision of a correctional
physician. Given the novelty of this case, I believe that Dr.
Bell successfully articulated a compelling State interest in the
health of his patient when he explained that he refused to
prescribe treatment because he thought it would do more
harm than good. Mitchell presented no evidence that Dr. Bell
acted based on any racial animus or with an intent to
discriminate against Mitchell based on race. Dr. Bell’s
attorney might not have uttered the magic words “compelling
state interest,” but we know enough to conclude that Dr. Bell
did not violate Mitchell’s constitutional rights.

   The majority opinion does not disagree with either Dr.
Bell’s explanation or my observation that there was no
28          MITCHELL V. STATE OF WASHINGTON

evidence of racial animus. It simply states, at 16 n. 6, that Dr.
Bell’s explanation is not enough to satisfy the strict scrutiny
standard. Why not? The majority opinion does not say.
Applying that standard in a way that requires a doctor to do
more harm than good violates more than “a Hippocratic oath-
like aspirational goal.” 

good sense.

     C. Dr. Bell’s Consideration of Race was Narrowly
        Tailored

    “When race-based action is necessary to further a
compelling interest, such action is within constitutional
constraints if it satisfies the ‘narrow tailoring’ test.”

. “The purpose of the narrow
tailoring requirement is to ensure that the means chosen ‘fit’
th[e] compelling goal so closely that there is little or no
possibility that the motive for the classification was
illegitimate racial prejudice or stereotype.” 

(internal quotation marks and citation omitted). The
court must carefully analyze “the importance and the
sincerity of the reasons advanced by the governmental
decisionmaker for the use of race in that particular context.”

In this case, Dr. Bell’s consideration of race was
narrowly tailored. In the words of Grutter, “there is little or
no possibility that the motive for the classification was
illegitimate racial prejudice or stereotype.” 

    As an initial matter, Dr. Bell’s decision to deny Mitchell’s
treatment request was not made based on a general policy of
excluding African Americans from interferon and ribavirin
therapy. Rather, Dr. Bell performed an individualized and
multi-factoral assessment of Mitchell’s objective profile. See

(holding that a race-sensitive
admissions program was narrowly tailored because the
           MITCHELL V. STATE OF WASHINGTON                   29

consideration of race was merely one factor in the decision-
making process and individualized consideration was given
to each applicant). Dr. Bell considered that Mitchell had a
strain of Hepatitis C that was less likely to respond to
interferon and ribavirin by nearly a 2:1 ratio. Dr. Bell also
gave great weight to Mitchell’s most recent liver biopsy,
which showed minimal fibrotic advancement. Dr. Bell did
explain to Mitchell that his African ancestry reduced his
chance of achieving a sustained virologic response, but he did
not refuse to prescribe treatment on that basis. Rather, Dr.
Bell indicated that if Mitchell’s liver condition had been
worse, he would have recommended Mitchell for treatment.
Mitchell acknowledged that other African American inmates
with his genotype of Hepatitis C were receiving interferon
and ribavirin therapy, which suggests that treatment decisions
were typically made on an individualized basis. In sum,
nothing in the record suggests that Dr. Bell’s decision was
based on invidious discrimination or illegitimate motive.
And, with the benefit of hindsight, we now know that Dr.
Bell’s professional judgment was correct – when Mitchell
received the treatment he sought, it was unsuccessful.

    The narrowness of Dr. Bell’s decision is further
demonstrated by how closely it adheres to the standard of
care used to evaluate a patient for potential interferon and
ribavirin therapy. As noted above, at 22, physicians are
supposed to balance the severity of liver disease, the potential
of serious side effects, the likelihood of treatment response,
and the presence of comorbid conditions. That is exactly
what Dr. Bell did. Dr. Bell’s consideration of race was based
on credible, peer-reviewed studies, and it helped him make a
fully informed assessment of “the likelihood of a treatment
response.” 

. Indeed, had Dr. Bell
failed to consider Michell’s race, his medical assessment
30         MITCHELL V. STATE OF WASHINGTON

would have been under-informed and would have fallen
below an acceptable standard of care.

    The relevant standard of care is a unique characteristic of
the medical context that must be taken into account for
purposes of narrow tailoring. See 

(“Context matters when reviewing race-based governmental
action.”). Physicians are constrained by professional and
legal regimes that require them to meet or exceed the relevant
standard of care, and they may suffer significant sanctions if
they do not. See Pickup v. Brown, 

, 1228 (9th
Cir. 2013) (“[D]octors are routinely held liable for giving
negligent medical advice to their patients, without serious
suggestion that the First Amendment protects their right to
give advice that is not consistent with the accepted standard
of care.”). The Equal Protection Clause should not be
interpreted in a manner that compels or motivates a physician
to prescribe a course of treatment that he or she believes is
not medically warranted. In this instance, Dr. Bell’s
compliance with a scientifically justified standard of care was
a narrowly tailored means of making an informed treatment
decision regarding an individual whose health had become
the state’s responsibility.

     The institutional context presents additional challenges
that must also be taken into account. Most significantly, the
prevalence of Hepatitis C infection in prison is far higher than
it is in the general population, and approximately 30% of
individuals with Hepatitis C pass through the correctional
system in a given year. See Kara Chew, et al., Treatment
Outcomes with Pegylated Interferon and Ribavirin for Male
Prisoners with Chronic Hepatitis C, 43 J. Clinical
Gastroenterology 686 (2009). The high rate of Hepatitis C
coupled with the astronomical cost of therapy has forced state
           MITCHELL V. STATE OF WASHINGTON                   31

institutions to prioritize treating those individuals whose
condition has advanced to the point of medical necessity. See
Lara Strick, Treatment of Hepatitis C in a Correctional
Setting, Hepatitis C Online (Dec. 11, 2015). As a result,
physicians in those institutions must respond to the challenge
of dealing with inmates who want to be treated but fail to
meet the guidelines. Adhering to guidelines that prioritize
treatment for individuals with significant disease progression
is a narrowly tailored way to meet that challenge. Cf. Peralta
v. Dillard, 

, 1083 (9th Cir. 2014) (en banc)
(stating that it is appropriate to consider the resources
available to a prison official who lacks authority over
budgeting decisions when determining whether the official is
liable for money damages for deliberate indifference to the
serious medical needs of a prisoner).

    The majority opinion disputes none of this, yet
nonetheless concludes that Dr. Bell violated Mitchell’s
constitutional rights. Grutter instructs us to “carefully
examin[e] the importance and the sincerity of the reasons” for
considering race in making a decision. 

. The majority opinion does not. Its conclusion – that Dr.
Bell’s exercise of professional judgment based on scientific
evidence, without racial animus, nonetheless constituted
racial discrimination in violation of the Constitution – is both
inconsistent with precedent and detached from reality.

   D. Implications of the Majority Opinion

      I fear that the majority opinion creates significant
uncertainty regarding the extent to which doctors can
consider ethnic and racial differences in making judgments as
to medical treatment. Is a doctor who is treating an
institutionalized African American patient with Hepatitis C
32         MITCHELL V. STATE OF WASHINGTON

genotype 1 required to pretend that the likelihood of success
with interferon and ribavirin therapy is a race-blind 50
percent if in actuality it is only 20 percent?

    The majority opinion also creates uncertainty regarding
the extent to which doctors may adhere to recommended
medication dosages that vary based on race. For example,
ethnic differences in cardiovascular drug response require
physicians to base their dosage determinations on race to
minimize dangerous side effects. See, e.g, Julie Johnson,
Ethnic Differences in Cardiovascular Drug Response,
118 Circulation 1383 (2008). Are cardiologists supposed to
prescribe dosages in a race-blind manner and at potential risk
to their patients?

    Doctors are put in an unenviable position if they must
ignore critical “risk of harm” information when treating their
patients. We should not require a physician “to perform a
prefrontal lobotomy on himself.” Fleming Sales Co., Inc. v.
Bailey, 

, 514 (D. Ill. 1985).

III.   Conclusion

    I concur in the judgment affirming the district court’s
summary judgment in favor of Defendants. I agree with the
specific conclusions of the majority opinion that the Eleventh
Amendment does not bar Mitchell’s claim for damages
against the Defendants in their individual capacities, that his
claims for injunctive and declaratory relief are moot, that the
summary judgment dismissing his claims for damages against
Kelly Cunningham was appropriate, and that Dr. Bell is
entitled to qualified immunity on the claim for damages
against him. I would not take up the question of whether
Mitchell’s constitutional rights were violated, but if required
           MITCHELL V. STATE OF WASHINGTON               33

to do so, conclude that they were not. I thus concur in part
with the majority opinion and concur in full with its
judgment.