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Jackson v. McIntosh

United States Court of Appeals, Ninth Circuit
Apr 11, 1996
90 F.3d 330 (9th Cir. 1996)

Summary

holding that interfering with medical treatment "not because of an honest medical judgment, but on account of personal animosity" can constitute deliberate indifference

Summary of this case from Chandler v. Guttierrez

Opinion

No. 94-16741.

Argued and Submitted August 17, 1995.

Decided April 11, 1996. As amended on Denial of Rehearing and Rehearing En Banc July 18, 1996.

Judges Kozinski and Noonan have voted to reject the suggestion for rehearing en banc and Judge Brewster so recommends.

Kathleen E. Gnekow and William V. Cashdollar, Deputy Attorney Generals, Sacramento, California, for defendants-appellants.

Amitai Schwartz and Antonio Ponvert, III, San Francisco, California, for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of California Edward J. Garcia, District Judge, Presiding. No. CV 90-0760-EJG.

Before: KOZINSKI and JOHN T. NOONAN, Jr., Circuit Judges, and BREWSTER, District Judge.

The Honorable Rudi M. Brewster, United States District Judge for the Southern District of California, sitting by designation.



OPINION


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.

ANALYSIS

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 1096, 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, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (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, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (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).

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, 97 S.Ct. at 292), 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, 97 S.Ct. at 292-93. 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, 97 S.Ct. at 291), 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, ___-___, 114 S.Ct. 1970, 1978-79, 128 L.Ed.2d 811 (1994).

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.

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, ___ U.S. ___, ___, 115 S.Ct. 2151, 2156, 132 L.Ed.2d 238 (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, 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).

Accordingly, the appeal is DISMISSED for lack of jurisdiction.


Summaries of

Jackson v. McIntosh

United States Court of Appeals, Ninth Circuit
Apr 11, 1996
90 F.3d 330 (9th Cir. 1996)

holding that interfering with medical treatment "not because of an honest medical judgment, but on account of personal animosity" can constitute deliberate indifference

Summary of this case from Chandler v. Guttierrez

holding "personal animosity" may establish deliberate indifference

Summary of this case from Pride v. Correa

holding that mere differences of opinion between medical professionals, or between the physician and the prisoner, concerning the appropriate course of treatment does not amount to deliberate indifference

Summary of this case from Cox v. Clark

holding that a difference in opinion over proper medical treatment does not amount to deliberate indifference

Summary of this case from Davis v. Alameida

holding that a difference of medical opinion concerning the appropriate course of treatment does not amount to deliberate indifference to serious medical needs

Summary of this case from Hampton v. Ryan

holding that a difference in opinion over proper medical treatment does not establish deliberate indifference

Summary of this case from Hancock v. Garcia

holding that deliberate indifference can be shown where "the course of treatment the doctors chose was medically unacceptable under the circumstances"

Summary of this case from Allen v. Diaz

holding that to establish a difference in opinion rising to the level of deliberate indifference, a "plaintiff must show that the course of treatment the doctors chose was medically unacceptable under the circumstances"

Summary of this case from Jercich v. Cal. Dep't of Corr. & Rehab.

holding to prevail on a claim involving choices between alternative courses of treatment, a prisoner must show that the chosen course of treatment "was medically unacceptable under the circumstances," and was chosen "in conscious disregard of an excessive risk to [the prisoner's] health"

Summary of this case from Bradford v. Khamooshian

holding 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."

Summary of this case from Giraldes v. Bobbala

holding 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."

Summary of this case from Merriman v. Telander

Holding that a mere difference of opinion between the prisoner and his doctors does not constitute deliberate indifference.

Summary of this case from Sims v. Casian

holding that to prevail where a defendant has based his actions on medical judgment, a plaintiff must show that the course of treatment chosen was medically unacceptable under the circumstances and that it was chosen in conscious disregard of an excessive risk to plaintiff's health

Summary of this case from Jennings v. Moreland

holding 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."

Summary of this case from Rios v. CDC Director

finding that to establish that a difference of opinion amounted to deliberate indifference, a prisoner must show that the defendant's chosen course of treatment was medical unacceptable and in conscious disregard of an excessive risk to the prisoner's health

Summary of this case from Warner v. Velardi

finding that in a matter of two alternative courses of medically acceptable courses of treatment, deliberate indifference requires a showing that the one chosen was medically unacceptable under the circumstances and that it was chosen "in conscious disregard of an excessive risk to plaintiff's health"

Summary of this case from Roberts v. Hensley

finding that deliberate indifference requires that the doctor's chosen course of treatment was medically unacceptable under the circumstances and in conscious disregard of an excessive risk to plaintiff's health

Summary of this case from Zepeda v. Tate

finding difference of opinion between a physician and prisoner concerning the appropriate course of treatment does not amount to deliberate indifference

Summary of this case from Hancock v. Garcia

concluding that allegations that doctors denied plaintiff a kidney transplant, "not because of an honest medical judgment, but on account of personal animosity" stated a claim for deliberate indifference to serious medical needs

Summary of this case from Williams v. Black

concluding that one way to show a doctor was deliberately indifferent is to show that the treatment was "medically unacceptable"

Summary of this case from Arellano v. Milton

rejecting defendants' claim for qualified immunity based on plaintiff's allegation that "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"

Summary of this case from Abbott v. Tootell

rejecting defendants' claim for qualified immunity based on plaintiff's allegation that "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"

Summary of this case from Sunnergren v. Tootell

rejecting defendants' claim for qualified immunity based on plaintiff's allegation that "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"

Summary of this case from Brown v. Runnels

recognizing that a mere "difference of medical opinion . . . [is] insufficient, as a matter of law, to establish deliberate indifference."

Summary of this case from Peasley v. Spearman

setting forth elements of a medical deliberate indifference claim

Summary of this case from Gaines v. Sherman
Case details for

Jackson v. McIntosh

Case Details

Full title:Ramond D. JACKSON, Plaintiff-Appellee, v. Duncan A. McINTOSH; David…

Court:United States Court of Appeals, Ninth Circuit

Date published: Apr 11, 1996

Citations

90 F.3d 330 (9th Cir. 1996)

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