Opinion · Court of Appeals for the Ninth Circuit
Raymond D. Jackson v. Duncan A. McIntosh David Victorino
90 F.3d 330
- Type
- Opinion
- Court
- Court of Appeals for the Ninth Circuit
- Jurisdiction
- Federal
- Date
- 1996-07-18
- Topic
- litigation
How later courts describe this case
- holding that interfering with medical treatment “not because of an honest medical judgment, but on account of personal animosity” can constitute deliberate indifference
- holding that deliberate 6 indifference can be shown where “the course of treatment the doctors chose was medically 7 unacceptable under the circumstances”
- holding that deliberate indifference can be shown where 20 “the course of treatment the doctors chose was medically unacceptable under the 21 circumstances”
- stating that prisoner may demonstrate deliberate indifference if prison officials relied on 1 the contrary opinion of a non-treating physician
- holding a difference in opinion between the physician and the prisoner concerning the appropriate course of treatment does not amount to deliberate indifference to serious medical needs
- explaining that a difference of opinion regarding medical treatment does not amount to deliberate indifference, and to prevail on such a claim the prisoner would have to show the course of treatment chosen was medically unacceptable
- finding the 13 plaintiffs’ argument that one medication was superior to another and therefore should not have been discontinued was a mere difference of medical opinion
- a plaintiff “must show that the course of treatment the doctors chose was medically unacceptable under the circumstances”
Citator
UpLaw has not yet analyzed Raymond D. Jackson v. Duncan A. McIntosh David Victorino. The absence of a flag is not a finding that it is good law.
- Authority status
- pending
- Cited by
- 1107 opinions
JACKSON v. McINTOSH,90 F.3d 330(9th Cir. 1996)
Ramond D. JACKSON, Plaintiff-Appellee, v. Duncan A. McINTOSH; David
Victorino, Defendants-Appellants.
No. 94-16741.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted August 17, 1995.
Decided April 11, 1996.
As amended on Denial of Rehearing and Rehearing En Banc July 18, 1996.fn*
Amitai Schwartz and Antonio Ponvert, III, San Francisco, California, for plaintiff-appellee.
Before: KOZINSKI and JOHN T. NOONAN, Jr., Circuit Judges, and BREWSTERfn**, District Judge.
[1] OPINION
[3] ANALYSIS
[4] The doctors contend that they are entitled to qualified immunity because there was no clearly established law requiringPage 332them 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 OwnersAss'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.Estellev. 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).
[5] 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 inSanchez v. Vild,891 F.2d 240,242(9th Cir. 1989) (citingEstelle,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 inEstelle,429 U.S. at 104n. 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).
[6] 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.
[7] 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.Johnsonv. Jones,___ U.S. ___, ___,115 S.Ct. 2151,2156,132 L.Ed.2d 238(1995).Johnsondictates 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 104,106n. 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).
[8] Accordingly, the appeal isDISMISSEDfor lack of jurisdiction.Page 333