*1 3553(а), § U.S.C. forth at 18 factors set history of firearm prior
including Scott’s inef- and the offenses
possession other prior punishments of the
fectiveness cannot find we As received.
had within-Guidelines court's
that the district of discretion. abuse was an
sentence
II. court judgment district.
affirmed. MITCHELL, Plaintiff-
George O.
Appellant, WASHINGTON; Kelly Cun
State Superintendent; Dr.
ningham, SCC Defendants-Appellees. Bell,
Thomas
No. 13-36217. Appeals, Court of
United States
Ninth Circuit. 6, 2015. April
Argued Submitted 14, 2016. March
Filed
OPINION TASHIMA, Judge: Circuit Plaintiff-Appellant George Mitchell brought action Defendants- (“Defendants”) for re- Appellees injunctive § damages under 42 lief U.S.C. constitutionally medi- alleging inadequate Equal cal and a violation of Pro- care granted district tection court Clause. Defendants, in favor of summary judgment timely appealed. have We § jurisdiction under U.S.C. we affirm.
I.
BACKGROUND Mitchell, old George fifty-nine year male, civilly has been African-American sexually predator as a violent committed (“SCC”) Special Commitment Center 27, Washington by the State of since June Afrasiabi, Chemerinsky, Erwin Peter Mitchell, 160 re Det. 2003. See In Davis, of Kathryn Litigation Appellate Marie (2011). Wash.App. P.3d Clinic, California, University of Irvine Law; Tommy Ca- (argued), of Du School approximately On December Students, Ir- Lavery (argued), triona Law SCC, to his prior arrival at Mitchell vine, CA,. Plaintiff-Appellant. ap- diagnоsed From was with C. Ferguson, Attorney Robert W. General met proximately 2003 to Mitchell (ar- Washington, O’Connor Grace C.S. one of consulting physicians, SCC’s Lanese, gued) Christopher Assistant Priebe, of the Tacoma Dr. W. Michael General, WA, Attorneys De- Olympia, consulting special- Disease Center. As a fendants-Appellees. ist, Dr. limited to Priebe was recommend- treatment, did ing certain courses Appeal District from the United States authority to not have the order treatment. Court for District Wash- the Western mid-2005, treat- In Dr. Priebe discussed Settle, Judge, ington, H. District Benjamin options with Mitchell. One Presiding. BHS. DC No. 3:12 cv-05403 discussed the ad- options was ministration of interferon ribavirin. NELSON, A. Before: DOROTHY W. Because interferon and ribavirin TASHIMA, WALLACE and RICHARD dosage weight-based (meaning medications CLIFTON, Judges. R. Circuit (cid:127) patient’s on Mitchell depends weight), TASHIMA; agreed postpone type this of treatment Opinion by Judge weight. by Judge until-he lose Concurrence CLIFTON. could Mаy (cid:127)In Mitchell met-with Dr. that all claims against the State of Wash- Bell, Thomas Supervisor then the Medical ington by were -barred Eleventh SCO, his liver biopsy discuss results Second, Amendment. she ruled that be- options. review treatment During cause Mitchell testified in his deposition that meeting, based on belief that that is suing Cunningham and Dr. Bell condition deteriorating, re- Mitchell in their capacities, official all claims for quested ribavirin interferon and treatment. damages against them are barred Dr. Bell Mitchell that informed the inter- Eleventh The Magistrate Amendment. feron and ribavirin geno- treatment for his Judge then excluded a prof- declaration type had largely unsuccessful Af- on fered Mitchell because it was unsigned rican-American addition, males. In after because declarant lacked sufficient reviewing results, Mitchell’s biopsy liver qualifications and personal knowledge. Dr. Bell told Mitchell that his Hepatitis C She next ruled that Defendants are enti- progressed not had to a level that would to qualified tled immunity because Mitchell justify the harsh side effects of the re- failed assert a constitutional violation. quested treatment. on Based these fac- Specifically, the Magistrate Judge ruled tors, Dr. Bell not did recommend Mitchell presented Mitchell no evidence that for interferon ‘and ribavirin treatment. Dr. Bell’s treatment of Mitchell did November of placed Mitchell was meet the appropriate standard care for interferon and ribavirin. The treatment a' provider, and that Mitchell’s ultimately unsuccessful. equal protection claim failed because he commenced action’on Au- had shown that Defendants acted with gust Bell, Defendants Dr. or intent purpose to discriminate. Kelly Cunningham, Superintendent The District adopted Magis- SCC, and the State Washington.1 *6 Judge’s trate R & R judgment and entered Mitсhell sued Dr. Bell Cunningham and against Mitchell. their individual and official capacities. Mitchell alleged that Dr. Bell’s refusal to II. him
refer for interferon and ribavirin violated Fourteenth Amend- OF STANDARD REVIEW ment for two reasons:2 the denial of interferon and ribavirin treatment violated This reviews a district right his care; reasonable medical and grant court’s summary judgment de (2) the' consideration of race in the denial L.A., novo. Vasquez Cty. v. 349 F.3d of treatment violated Equal Protection (9th Cir.2003). The Court must Clause. whether, “determine viewing the evidence On light referral for most favorable to the report nonmov- and this.case - (“R R”), ing party, recommendation any & there genuine are Magis- issues Judge trate fact material and recommended Defen- whether the district dants’ for summary motion judgment correctly. court applied the relevant sub- granted. Magistrate Judge first Smith, ruled Lopez stantive law.” v. 203 F.3d Griffith, 1. Mitchell also sued Randall Paul 2. Mitchell аlso alleged that the decision not to Temposky, requested and Christine Haueter. These his in- authorize C diet vio- longer dividuals Fourteenth are no lated-the Amendment. The dis- defendants in this granted summary trict judgment court action. in fa- n vor of Defendapts on this claint and Mitchell
n appealed not this issue. (en Cir.2000) banc) and (9th deposition testimony not (citing by bound against Defen- damages claims Mitchell’s City, F.3d v. Balint Carson banc)). capacities Cir.1999) (en individual (9th dants their To by
barred the Eleventh Amendment.3 ens- “threaten]]:to would' otherwise HI. hold parties simply have nare who DISCUSSION deposition testimony during their confused may encourage gamesmanship by op- and Immunity Amendment A. Eleventh attorneys.” Asdale v. Int’l Van posing bars The Eleventh Amendment (9th Tech., Cir. 577 F.3d Game official damages against a state for claims 2009). Pena capacity. in his or her official acting (9th Gardner, F.2d Cir. B. Mootness however, curiam). not, 1992) It (per does Although par not briefed against offi damages bar for state claims ties, reaching the merits of Mitch before personal capacities. in their Id. cials claims,, consider whether we ell’s Moreover, when a defen plaintiff sues injunctive for Mitchell’s claims declar is damages, presumption there dant for atory are moot. See relief Gator.com damages against seeking is that he Bean, Inc., Corp. v. 398 F.3d personal capacity. in his Roma L.L. defendant (9th Cir.2005) (stating 1128-29 that be (9th Bible, Cir. F.3d is a jurisdictional cause mootness issue 1999). III sponte). sua Article be raised should First- Com Amended Mitchell’s requires that “federal Constitution suing plaint clearly is Cun states deciding actu courts confine themselves Dr. Bell in both their ningham official cases and controversies.” al “ damages personal capacities enough may have there ‘[I]t court, injunctive relief. district how controversy or been a livе case when ever, deposition testi relying Mitchell’s judg court whose case was decided suing Cunningham mony that he Rather, reviewing.’ Article we áre only capacities, in their official Dr. Bell controversy requires persist live III damages that all claims held throughout stages of the litigation.” all *7 Cunningham Bell be dis Dr. should Barnes, Burke v. Id. at 1128-29 (quoting clearly But demon missed. the.record 734, 361, 93 479 U.S. S.Ct. Mitchell, acting pro who was strates (citation (1987) omitted)). L.Ed.2d 732 se, legal signifi the not understand did longer plaintiff no bringing a wishes against between claims Dr. When cance engage activity Cunningham in their official ver which Further, declaratory injunctive ques or capacities. initially sought personal sus relief, Mitchell, controversy or requisite case attorney Defendants’ tioning absent, signifi 1129. months after adequately éxplain id. at .Several failed action, difference, this SCC be even Mitchell Mitchell commenced cance after gan Mitсhell with interferon and signified treating that he did not understand the ineffective. ribavirin. The legal jargon and would need assistance. requested treat- failure of the As a we conclude that Mitchell is Given the Washington by the Eleventh contest are barred does not the district court's Mitchell Amendment, against holding State of that all claims
443 administrators____ ment, longer any hospital Mitchell- need for [W]hether a hospital the treatment and is no there administrator has pa reasonable a violated expectation request rights will tient’s Mitchell constitutional is determined -result, again. by same failed treatment .As a whether the administrator’s conduct di verges we from conclude claims in- that of a profes Mitchell’s reasonable junctive declaratory and- sional.” Dep’t. Ammons v. relief moot. Wash. Soc. Servs., (9th & Health 648 F.3d 1027 Damages § C. under 42 U.S.C. 1983 and Cir.2011). words, decision, In other “if Qualified Immunity professional, made is рresumptively valid; liability may imposed only when remaining
Mitchell’s claims are professional decision- such damages claims for 42 U.S.C. under departure substantial fi-om accepted pro § Defendants, 1983 individual judgment, fessional practice, or standards Cunningham, Bell- and in. personal their person demonstrate that the respon capacities. enjoy Government officials actually sible did not base the decision on qualified -from civil immunity damages un judgment.” such a Youngberg Romeo, “clearly less their conduct violates estab 457 U.S. 102 S.Ct. statutory lished rights or constitutional (1982). L.Ed.2d 28 This standard has which a person reasonable would have to as “Youngberg profes referred Fitzgerald, known.” Harlow Ammons, judgment sional standard.” 800, 818, 73 L.Ed.2d F.3d Youngberg 1027. The standard (1982). Thus, in determining whether differs from the “deliberate indifference” Defendants, qualified immunity applies to Eighth used in standard cruel Amendment (1) we must determine whether: the facts cases, punishment and unusual in that adduced constitute the violation aof con “[p]ersons who have been involuntarily right; stitutional constitutional committed are entitled more consider right clearly at the established time of ate treatment and conditions alleged violation. Pearson v. Calla of confine ment than criminals whose conditions han, designed confinement are to punish.” Id. (2009). L.Ed.2d (quoting Youngberg, 321-22, Mitchell asserts two constitutional viola- 2452) (internal quotation marks First, tions. he contends that Dr. Bell and omitted). Cunningham constitutionally denied him adequate medical care violation of the argues Mitchell that Dr. Bell’s de Second, Fourteenth Amendment. he con- cision not to ri- administer interferon and Cunningham tends that Dr. Bell and vio- Youngberg bavirin violates right equal protection lated his under professional judgment sup standard. by making Fourteenth Amendment port argument, presents medical treatment decisiоn based race. *8 excerpts several from sug medical texts gesting that administration of interferon Constitutionally
1. Adequate Medi- ribavirin is preferred and treatment cal Care Under the Fourteenth documents, for Hepatitis course These C. Amendment however, guidelines contain and recom mendations, “Involuntarily pa committed specific rather than standards tients state health hospitals mental of. in. have care. None the documents submitted a Fourteenth process Amendment due suggests that Dr. Bell’s treat right provided decision, be safe conditions on based the individualized
444 in actor by a state health, of race to the was un- use of Mitchell’s
circumstances decision.4 making-a medical Furthermore, fact that reasonable. First, Dr, note that 2005, we have in Nor we. suggested, Priebe future strict on may be has “insisted Supreme and ribavirin interferon context, for so-called even every to demon- in scrutiny not sufficient appropriate classifications, concluding such nign decision racial ‘be Dr..Bell’s strate that As poli university unreasonable. admissions in 2009 was race-conscious otherwise has failed in cies, government that Mitchell preferences conclude we race-based to rebut the districting in contracts, sufficient evidence present race-based and stan- judgment- professional representa Youngberg minority improve tended to the district affirm Consequently, 505, Johnson, 125 S.Ct. we dard. 543 U.S. at tion.” in . fa- summary judgment grant omitted). (citations question court’s 1141 on claim. this vor of Defendants strict applying reasons these whether medical applied in the scrutiny be should 2. -Equal Protection they should conclude context. We action official- “[A]ny deci and scientific medical because even on account differently person treats and from invidious nоt immune sions are inherently sus origin is or ethnic his race race-based motivations illegitimate —Tex., U.S. v. Univ. Fisher pect.” Indeed, which under the. lens purposes. 2419, 186 2411, 474 L.Ed.2d -, 133 S.Ct. constitutionality of race- we examine Klutznick, 448 (2013) Fullilove v. (quoting be and scientific decisions based 2758, 65 L.Ed.2d 100 S.Ct. U.S. light of docu especially critical comes (inter J., dissenting) (Stewart, gov federal instances which mented Conseq omitted)). marks quotation nal reprehensible race- pursued has ernment rule is that when general uently, of science the name actions based an individual treats explicitly actor state See, Health Ser e.g., U.S. Public medicine. scrutiny race, basis strict differently on the Tuskegee,- Centers Study at Syphilis vice Id.; Johnson applied. s Califor i Prevention, For Disease- Control 499, 505, nia, S.Ct. (last vis www.cdc.gov/tuskegee/index.html (2005); Constru Adarand L.Ed.2d 949 2015) govern (describing July ited Pena, 515 U.S. ctors,Inc. v. study Tuskegee syphilis role ment’s (1995). Under 2097, 132 L.Ed.2d poor from withholding adequate treаtment im all classifications scrutiny, strict men); II Chemi World Secret War black “nar government posed by on Troops Based Experiments cal Tested government compelling to further rowly tailored Race,. NPR, www.npr.org/2015/06/22/ Fisher, 133 S.Ct. at int erests” 415194765/u-s-troops-tested-by-race-in- Bollinger, 539 (quoting Grutter v. secret-world-war-ii-chemical-experiments 306, 326, L.Ed.2d 22,.2015) gov (describing (last July visited marks omit (2003) (internal quotation the ef studying program funded ernment ted)). chemical gas other of mustard fects African-American, Puerto agents never has Supreme Court II). during War Rican World soldiers applies strict whether considered See programs. targeted medical outreach never di- Supreme Court Although the Vera, issue, Bush v. members of the rectly addressed *9 (1996). they that past indicated 248 in the 135 L.Ed.2d Court have apply to scrutiny race- should believe strict
445 that recognize plain- also are interferon & ribavirin treatments for We there Hepatitis where the likely genotype numerous instances tiffs C .hаd use is on largely race a factor in a medical decision as unsuccessful African American .’’-Indeed, benign may appeal, be How on even ‘beneficial. males..: Defendants ever, way is no that a factor simply “there determin concede race was in Dr. Bell’s to ing deny what classifications are ‘re decision ‘benign’ or Mitchell’s medication re- true, quest. medial’ and what fact Accepting classifications in these facts as as by illegitimate summary notions judgment, motivated of racial we on under politics.” inferiority simple scrutiny,- or racial Shaw strict Mitchell has adduced suffi- Reno, 630, 642-43, cient to 509 U.S. 113 S.Ct. facts establish that Bell em- Dr. (1993) 2816, a (quoting ployed L.Ed.2d racial-classification he when de- Co., v. J.A. Richmond Croson 488 U.S. not to termined recommend Mitchell S.Ct. L.Ed.2d interferon and ribavirin treatment. (internal omitted)). (1989) quotation marks suggest that strict Defendants Indeed, point carefully examining “[t]he aрply not scrutiny two reasons: should by government the interest asserted (1) Dr. Bell’s consideration of. the race- classification, support of a racial success rate interferon ri- related that evidence to show offered classifi “is not synonymous bavirin treatment needed, to precisely distinguish cation is is race,” awith solely distinction based legitimate illegitimate- from uses of race5 geno there a because be different Adarand, governmental decisionmaking.” type of the that respon disease would at 2097. As a S.Ct. treatment the African-American sive result, apply “in or courts strict population; male success race-related illegitimate out’ der ‘smoke uses of race not factor only .was [government] pursuing that is assuring Bell, by Dr. considered and thus was not goal enough important warrant [such] necessarily determinative Johnson, tool.” highly suspect scrutiny, decision. Under ar strict these 506, 125 (quoting J.A. Croson First, unavailing. guments are the fact Co., 706). government race deci factor case, Turning to facts of this trigger sion is sufficient to scrutiny. strict Fisher, we conclude that forth at 2419. Mitchell set See As a re sult, specific plausibly suggesting hypothetical presented facts Dr. Defen Bell5 an employed explicit suggesting dants that Mitchell had a classifica if scrutiny. C, tion to trigger genotype strict sufficient different race decision, requested may states not have factored into the when Second, interferon and ribavirin treatment from irrelevant. Mitchell has because explicitly Bell told he was that treatment did that Dr. Bell factored shown decision, work on African Americans. Dr. race into his treatment Szei- Mitchell’s allega necessary bert’s declaration corroborates this “but show that tion, race, rejected stating “Dr. for” Dr. Bell’s Mitch consideration requеst requested drugs [for ell’s interferon and decision ribavirin to.withhold .the .treatment], explaining govern- to Mr. Mitchell that have occurred. “When the would - alleged sug- Cunningham, 5. Because Mitchell has facts As a the remainder of gesting Cunningham -poten- analysis knew of the solely our focuses on the claim violations, equal protection tial we affirm against Dr. Bell. grant summary judgment for this claim *10 446 persons nicity Epidemiologic in Con- on the Research: expressly classifies Issues, Methodological Sugges- cepts, origin or national its race
bases of
....
Epibemiologic
Research, 22
tions
‘immediately suspect’
action is
— A
Rev.
for
(2000)
187,
impor-
(emphasizing
187
in such a lawsuit need not make
plaintiff
ethnicity in
of
of
tance
the use
race
discriminatory ani
of
showing
extrinsic
an
research). Because, however, Dr.
trigger
discriminatory effect to
mus or a
justifi-
any compelling
Bell
to offer
Constr., Inc.
failed
sсrutiny.” Jana-Rock
strict
classification,
cation
let alone
Dev.,
Econ.
Dep’t
v. N.Y. State
438
tailored;
justification
narrowly
that was
(2d Cir.2006);
195, 204-05
see also
F.3d
instead, arguing only
equal
that Mitchell’s
Gomez,
(9th
969,
F.3d
Walker v.
370
974
not
protection claim fails because race was
Cir.2004) (stating
plaintiff
that
denying
in
“primary”
consideration
discriminatory
not
intent
required
show
treatment, Dr. Bell
his bur-
failed meet
it
because
state admitted
considered
scrutiny
under the strict
den
standard.
cell).
assigned
it
inmates to
race when
Thus,
concluding
court
erred
district
strict
Because we hold that
no
that
constitutional violation occurred.
required
Bell is
scrutiny applies, Dr.
Soc’y
City
Nanak Sikh
See Guru
Yuba
the use
race
his
demonstrate
Sutter,
(9th
978,
Cnty.
v.
F.3d
981
456
narrowly tailored to
medical decision was
Rednour,
Cir.2006); Krislov
226 F.3d
government
compelling
interest.
achieve
851,
(7th Cir.2000).6
866 n. 7
Adarand,
227,
at
2097.
S.Ct.
Qualified Immunity Clearly Es-
3.
—
imagine
It
not
the existence
difficult
tablished
justification in
compelling
of a
context
Lillquist
See Erik
medical treatment.
Despite
fact that
hold
we
Sullivan, The
Charles A.
Law
Ge
&
right
of a
violation
constitutional
Medicine,
Profiling in
netics Racial
occurred,
qualified
is entitled to
Harv. C.R.-C.L.L.
“clearly
if it
immunity
established”
Rev.
(suggesting
empirical
that sufficient
data
his
actions would violate Mitchell’s
Pearson,
differently
rights.7
African-Americans
to treat
constitutional
may
compelling
than
constitute a
At the
whites
at
S.Ct. 808.
time Dr.
interest);
actions,
Lin
it
Four
government
Scarlett S.
& Bell’s
was clear
all
requires
L.
Race
Eth-
Amendment
racial clas-
Kelsey,
Jennifer
Use
teenth
concurring
inquiry
opinion agrees
See
that strict
ized us to address either
first.’
6.
Concur,
Pearson,
Qp.
scrutiny
applied,
555 U.S. at
should be
at
("[W]e
that,
argues
sequence
while the
set
this standard was met
conclude
but
Katz,
successfully
forth
[in
because "Dr. Bell
articulated a
Saucier
(2001)]
compelling State
in the health of
is often
interеst
busch v. 313 F.3d
Cir.2002). Furthermore, right of a IV.
ward the state to be free from racial CONCLUSION clearly discrimination was established. For above, the reasons forth set
Johnson,
512,
ment does'
in their
supports
conclu-
damages against
Defendants
its
majority
his claims for
cаpacities,
observation,
individual
that Dr.
sion with the
moot,
declaratory
injunctive
relief
any
or nar-
compelling
Bell failed to offer
*12
summary judgment dismiss-
that
the
justification
rowly
for the racial
tailored
Kelly
damages against
ing his claims for
here,
is an
classification at issue
and that
Cunningham
appropriate and should
was
justification
for
accurate assessment.
join the portions
be affirmed.
I
the
however,
apparent,
the treatment
explain
opinion that state and
majority
recognize
mischief
our
to
it
do
failure
I also
that Dr.
agree
those conclusions.
in the future.
when
case arises
similar
qualified immunity
to
on
entitled
intentionally
scrutiny.
The strict
standard
join
against him and
damages
the
claim
bar,
very
majority
the
high
sets
portion
majority opinion
that
the
the
may leave
that
opinion
impression
the
fa-
summary judgment
his
affirms the
judgment
provide
does not
suffi-
enough to
the
vor. That is
conclude
case.
justification.
cient
goes
to
majority opinion
on
discuss
insufficient
has
Because
attention
question of
Dr. Bell
violated
whether
to
I would
given
parties,
this issue
rights and con-
Mitchell’s constitutional
that
without
prefer
we resolve this case
question summary
on that
cludes that
into
getting
the issue whether Mitchell’s
It is
appropriate.
that
judgment was
right was
that
difficult
constitutional'
violated. We
portion
the case
raises the
Supreme
example
physi-
issues
above. The
follow the
should
identified
has made clear that we are not
by leaving
cians’ maxim—do
harm —
question of
required to
wheth-
consider
question
day.
that
for another
As the
plaintiffs
a violation of
er
has been
there
majority
ques-
elected
has
address
rights if the case can
constitutional
tion, though,
disagreement
I
note my
resolved,
been, on
one
as this
treat-
with its conclusion that Dr. Bell’s
right at is-
ground that the constitutional
sufficiently justified.
ment
clearly
at the time.
sue was not
established
Callahan,
Pearson v.
Background
L
(2009).
probability
B„
History
Mitchell’s Treatment
Ge,
al.,
ancestry.” Dongliang
African
et
sexually
Mitchell is a
violent predator
Hep-
Genetic Variation in IL28B Predicts
who
a special
resides at
commitment cen-
atitis C Treatment-Induced Viral Clear-
ter in''Washington.
diag-
He was first
ance,
(2009).
461 Nature 399
Part1
years prior
nosed with
C two
divergence
reason for the
is that African
'
civil commitment.
likely
are.much
Americans
less
inherit a
*13
Dr.
regarding
consulted
Michаel Priebe
polymorphism near the IL28B
that
gene
Hepatitis
options,
C treatment
including
helps
liver
the
C
Hepatitis
eliminate
and
therapy.
ribavirin
Mitchell
As
physicians
virus. See id.
a
interferon
weight
understood that
treatment
disparity
must
this ethnic
to
consider
accu-
based,
agreed
postpone
and
to
treatment
rately
potential efficacy
assess the
of the
weight.
until he could lose
in African
patients.
treatment
American
determining
for
The standard
care
In
met with Dr. Bell
Mitchell
and
whether to prescribe interferon and ribavi-
requested a
for
referral
interferon and
rin is
It
individualized and multi-factoral.
therapy
that
ribavirin
because he believed
“(1)
requires balancing
severity of
liver he
lost
to
necessary
begin
had
the weight
(2)
disease,
potential of
serious side
explained
also
that
treatment. Mitchell
he
(3)
effects,
re-
likelihood
treatment
recently
had
remarriеd and that he did not
(4)
sponse,
presence
of comorbid
Bejl
to infect
want
wife.
his
informed
Dr.
al.,
Strader,
See
conditions.”
Doris B.
et
that
Mitchell
a fractional
ojily had
Diagnosis, Management, and Treatment
of achieving
chance
remission-like state
a
C,
Hepatitis
Hepatology
39.
of
(2004)
geno-
because of his
from the treatment
added).
.(numbering
respect
With.
type
Hepatitis
his
C and because
disease,
theseverity
to
of the
“treatment is
Dr,
ancestry..
African
further ex-
.Bell
more-than-portal
indicated
those with
plained
if the
were
that even
fibrosis,”
damage
means that liver
which
Mitchell,-would
successful,
Hepa-
still have
to
progressed
grade..
has
Id.
moderate
,C and
still
titis
infect
wife.
could
response
The
of a
Is
likelihood
Mitchell’s
reviewed
most recent
then
C
genotype
Hepatitis
indicated
biopsy, which showed
fibrotic
liver
minimal
patient
with and
infected
advancement.
concluded that Mitch-
He
(stat-
patient’s
Id.
viral
at 1153
load..
“Hepatitis
to
progressed
C
ell’s
had not
ing
geno-
C
individuals
justify
physically
that would
de-
level
type
with-high,
1 and
viral loads
individuals
treatment,
manding side
of the
effects”
likely
substantially less
to
are
achieve
Mitchell
treat-
and refused
refer
addition,
virologic
response),
sustained
ment.
weight influences outcomes because heavi-
thereafter,
Sometime
require
higher dosages
er individuals
medicine,
placed on
ribavirin
interferon and
thus,
likely
more
to ex-
notes,
therapy."
majority opinion
As the
prohibitive
Finally,
perience
effects.
side
success, 441,
predictor-of
race is a
treatment was
significant
unsuccessful.
responded poorly
did not
complicates
for Mitchell
treatment decisions
virologic
African
high
response.
Americans because the
toxici-
achieve Sustained
applies
scrutiny standard
strict
.
II. Discussion
here.
(cid:127)
Scrutiny Standard
A. The Strict
scrutiny
the strict
apply
A
decision
“all
has held
Supreme
as the end
viewed
is sometimes
standard
classifications,
imposed whatever
high
too
set
bar is
because the
actor,
the case
federal, state,
governmental
or local
surmount,
is not how
doc
but that
reviewing court
by a
analyzed
“Strict
applied.
to be
supposed
trine is
Con
scrutiny.” Adarand
under strict
fatal
theory,
but
Pena,
scrutiny is not strict
structors,
Inc.
Bollinger, 539 U.S.
(internal
(1995)
quota
Grutter
fact.”
(internal
quota
omitted). That is 326,
tion marks omitted). Indeed, so seldom citation marks and racial characteristics tion “[b]ecause nothing the ulti disparate about “says basis application a relevant its provide law; that particular treatment, any classifications validity because mate apply harmful job so court race are is the potentially based determination Adarand, 515 U.S. at body politic.” scrutiny.” the entire ing strict strict applied previously never We have treatment decisions scrutiny the medical is better strict standard *14 classifica- Though racial doctors. prison carefully for “a framework as understood a provide “seldom” on race
tions based the sinceri importance and examining the treatment, disparate for basis relevant govern by the the reasons advanced ty of It mean “never.” not does “seldom” for race the use decisionmaker mental (cid:127) on the based indisputable, me to seems Grutter, 539 context.” particular in that above, that referenced evidence scientific mat “Context 2325. at S.Ct. U.S. the “seldom” place is a where medicine govern reviewing race-based when ters ’ history scarred is Oür occurs. sometimes the Equal Protection action under mental actions, in- race-based reprehensible purpose” The “fundamental Clause.” scientific decisions and cluding the medical dif scrutiny ‘relevant is “take of strict 444- opinion, at majority to in the referred Adarand, 515 account.” into ferences’ actions, I do but 45, condemn those and I 228, “Prisons are 2097. 115 S.Ct. at U.S. in this decision not see the medical how special circum the dangerous places, those. analogized to fairly be can case may justify they present stances from those withheld Treatment John contexts.” in some classifications judgment, professional aon based victims 515, son, 125 S.Ct. 543 U.S. science, treat- that'the on medical based a relevant might danger prisons good. than do more harm ment would setting here, the institutional but factor Nonetheless, Court Supreme the of cor nuanced context might be. the con- every in on strict “insistéd perform medicine, court must rectional clas- ‘benign’ racial text, for so-cаlled even that takes analysis searching careful a 543 California, v. See Johnson sifications.” into account. differences relevant (2005). 505, 1141 499, U.S. a case may encounter Someday the Interest Compelling B. Defendants’ “sel- presents science medical where interest a State’s situations some “[I]n opportunity have dom” situation health, of its citizens care facilitating in the. ap- scrutiny should strict consider whether support circumstance.,. compelling sufficiently is Unless and until ply Regents suspect classification.” of a I, majority opinion use does, agree with Bakke, legal they v. sanctions if make University substandard California 2733, equally L.Ed.2d decisions. It compel- Wade, (1978); State, ling see also Roe which has an obligation quality physicians 35 L.Ed.2d to retain who capa- may (stating providing adequate have com ble medical If State care. health, safeguarding pelling state-employed required interests “in doctors are to de- standards”). maintaining medical or to prescribe [and] liver substandard care Indeed,. well-being they individual health treatments that are inappro- believe recognized compelling gov have priate, those doctors either refuse to variety contexts, exposed profes- interest in a work the State or be ernmental e.g., including prisons. See, legal As Warsoldier v. sional and liabilities. (9th
Woodford, 418 996-98 Cir. State’s interest in maintaining, F.3d 2005) (stating officials have a standards has a on its prison compel- direct effect compelling preserving ling inmate interest in preserving interest inmate health. health); Goehring Brophy, 94 F.3d holds, majority opinion (9th Cir.1996) (holding that a “Uni Bell violated Mitchell’s constitutional Drv versity’s interest in the health well- rights any because he offer com failed being of ... is compelling”). its students justification pelling for his statement implicates
This State’s compel- case interferon and ribavirin treatment is less ling safeguarding interest in in African Americans. health effective But this civilly As Dr. committed individual. the first instance which our explained, applied .scrutiny he did eourt has not recommend Mitchell strict to the treating for interferon and ribavirin be- decision of a physician. correctional damage case, pro- novelty cause Mitchell’s liver had not Gi ven I *15 gressed to a would justify successfully level that believe that Dr. Bell articulat physically demanding compelling side effects of the State interest in the ed a health explained his patient treatment. Bell also noted that Mitch- of that Dr. when he he a achieving prescribe had fractional of a refused to ell chance because he treatment mpre thought To the it harm good. remission-like state. extent that would do than race, presented Dr. Bell that was Mitchell no evidence Dr. considered Mitchell’s it only to inform his any assessment likeli- Bell acted on racial or based animus of hood successful That nar- with an intent to discriminate treatment. fully consideration to a Mitchell based Dr. Bell’s necessary on race. attor
row was uttered, decision, ney might magic treatment informed there- have fore, interest,” necessary “compelling was to further the words State’s state but we compelling preserving enough know to that Dr. interest Mitch- Bell conclude did rights. ell’s health. not violate Mitchell’s constitutional This case also implicates majority opinion disagree the State’s does not compelling explanation or maintaining appro- my interest either Dr. Bell’s with because, priate no medical standards noted that there was evidence of observation above, states, a of fully simply assessment racial It at n. informed animus. potential efficacy and ribavi- that Dr. is not explanation enough interferon Bell’s satisfy rin requires the 'to the strict consideration standard. Maintaining Why race. not? majority is a does not medical standards say. compelling way in a physicians Applying interest- that standard that because they may subject professional requires to more doctor to do harm than nearly spond by “a to interferon Hippocratic than ribavirin more
good violates gave great 2:1 goal.” Id. It violates Dr. Bell also aspirational ratio. oath-like weight biop- to Mitchell’s- recent good sense. most liver
sy, which showed minimal fibrotic advance- Race C. Dr: Bell’s Consideration that explain ment. Dr. did Narrowly Tailored ancestry his reduced his chance of African virologic response, achieving sustained necessary is race-based action “When prescribe he treat- but did not refuse interest, action compelling such further Rather, on Dr. that basis. Bell indi- if it sat constraints is within constitutional that if Mitchell’s liver had cated condition tailoring’ Ada test.” isfies the ‘narrow worse, he have rand, would recommended 2097. at tailoring re narrow Mitchell for treatment. Mitchell acknowl- “The purpose in- quirement edged that the means other African 'is ensure American compelling goal closely so chosen ‘fit’ genotype th[e] C mates with possibility no that the is little or there receiving were interferon ribavirin illegiti motive for the classification was- suggests therapy, treatment de- which stereotype.” prejudice or mate racial typically on cisions were made an individu- Grutter, at 123 S.Ct. sum, nothing record alized basis. In n (internal quotation' marks and citation suggests was based Bell’s decision omitted). e'arefully ana The court must illegitimate or invidious discrimination sincerity lyze impоrtance “the and the 'And, motive. benefit of hind- governmental reasons advanced sight, profes- we now know that Dr. Bell’s for the use race decisionmaker judgment Mitch- sional was correct —when Id. at particular context.” it sought, ell received case, Dr. Bell’s 2325. In consideration unsuccessful. narrowly race was tailored. of Dr. Grutter, The narrowness Bell’s decision or “there little words of closely further how for the classifi possibility that motive demonstrated illegitimate prejudice or to the used cation was adheres standard care stereotype.” patient potential evaluate a interferon above, As therapy. *16 and noted ribavirin matter, As an initial Dr. decision Bell’s 449, physicians supposed are to balance deny request to was Mitchell’s treatment disease, severity potential liver the of the general policy not made based on a of effеcts, of of the serious side likelihood African from inter- excluding Americans of response, presence treatment and Rather, therapy. feron Dr. and ribavirin is exactly comorbid conditions. That what mul- Bell an and performed individualized Dr. Dr. of Bell Bell’s consideration did. objec- of ti-factoraT assessment Mitchell’s credible, peer-reviewed race was based Grutter, 539 profile. tive See U.S. studies, helped fully and it him a make (holding that a race-sensi- S.Ct. of a of “the likelihood informed assessment program narrowly tai- tive admissions Strader, response.” supra, at lored the consideration race because Indeed, Dr. to had failed con- Bell merely the decision- one factor race, his sider Mitchell’s medical assess- consid- making process individualized ment would have been under-informed and given Dr.’ applicant). eration was to each acceрtable an would have fallen below Mitchell had a strain considered that likely less C to re- care. Hepatitis that was standard is standard of a in '-a Setting, The relevant care Correctional Hepatitis C On (Dec. 11, 2015). unique characteristic con medical physi line As a taken text that must be into account respond cians in those institutions to Grutter, tailoring. purposes See narrow challenge dealing with inmates who (“Context at 327, want to be to treated-but fail meet the when, reviewing gov matters race-based guidelines. Adhering guidelines to action.”). Physicians ernmental con are prioritize treatment for individuals with professional legal regimes strained significant disease is a progression narrow require or them meet exceed the ly way challenge. to meet tailored Cf. care, relevant they standard Dillard, Peralta v. 744 F.3d significant if they sanctions not. suffer do (9th band)' Cir.2014) (en (stating that it is Brоwn, Pickup v. See 740 F.3d 1228 appropriate consider resources (9th Cir.2013) (“[D]octors routinely prison available-to a who lacks official au .negligent giving held liable for medical thority budgeting over decisions when de patients, advice to their without serious termining whether the official is liable for suggestion First pro that the Améndment damages for money deliberate indifference give right tects their advice is not that' of prisoner). needs serious accepted consistent with the standard majority opinion The disputes-none of care.”). Equal Protection Clause n - this, yet nonetheless concludes that Dr. interpreted should not in a manner Bell violated Mitchell’s constitutional compels or physician pre motivates a to, rights. Grutter instructs us “carefully scribe course of treatment that he or she importance examin[e] sincerity medically believes warranted. considering reаsons” race in instance, Bell’s compliance Dr. awith Grutter, making decision. scientifically justified standard of care was majority opinion 2325. The narrowly making means of an tailored n Its does not. conclusion—that Bell’s regarding-an informed decision professional judgment exercise-of based on health individual whose had become' the evidence, animus, scientific without racial responsibility. state’s nonetheless constituted discrimina presents institutional addi context tion in violation of the Constitution —is tional that must also challenges be taken precedent both- inconsistent with and de prev into account. significantly, Most . reality tached from Hepatitis alence of C infection prison higher far than it is in general popula D, Majority Implications Opin- ’of tion, approximately 30% of individuals ion through with C pass the correc majority I fear creates system given year. tional in a Kara See significant' uncertainty regarding the ex- Chew, al., et Outcomes Treatment *17 to which doctors can consider tent ethnic Pegylated and Ribavirin Interferon making judgments differences in C, and racial Male Hepatitis Prisoners with Chronic as to (2009). treatment. Is a doctor who Gastroenterology. 43 J. Clinical treating is' an high Hepatitis institutionalized coupled African rate C with Hepatitis geno- C patient cost of American with therapy astronomical has forced type pretend prioritize required to the likeli- treating state institutions that those individuals whose condition ad hood success with interferon ribavi- point vanced to the of medical rin is a if necessity. therapy percent race-blind Strick, only Lara Treatment actuality percent? See C opinion creates uncer- majority also DAIRE, Petitioner-Appellant, Sophia to which doc- tainty regarding еxtent medi- tors adhere recommended based on race. dosages vary that cation in cardio-
For differences example, ethnic LATTIMORE, Mary Warden response require physicians drug vascular Respondent-Appellee. dosage on determinations
to base their No. 12-55667. dangerous to minimize side effects. race See, Johnson, e.g., Ethnic Julie Differences of Appeals, United States Drug Response, 118 in Cardiovascular Ninth Circuit. (2008). cardiologists Are Circulation 1383 dosages in race- supposed prescribe 10, 2014. July and Submitted Argued potential risk to their manner and blind Filed March patients? posi put an unenviable Doctors are ignore they if critical “risk
tion treating pa their
harm” information when require physician
tients. We should him prefrontal lobotomy perform
“to Co., Fleming Bailey, Sales Inc.
self.” (D.Ill.1985). F.Supp.
III. Conclusion judgment affirming
I concur in favor summary judgment
district court’s agree specific I with the
of Defendants. majority opinion
conclusions bar
the Eleventh Amendment does not for damages claim
Mitchell’s capacities, in their
Defendants individual injunctive his claims declara- moot,
tory summary relief are dismissing claims for dam-
judgment
ages against Kelly Cunningham ap- Bell is
propriate, and entitled immunity on claim for dam-
qualified I
ages against up him. not take would
question of whether Mitchell’s constitution- violated, if rights required
al but were so, I were not. thus they
do conclude majority part
concur in with the judgment.
and concur full its 7. The notes under Pearson, particularly because district ad required court "we to consider the held was no constitu question Con- dressed it and that there of” a constitutional violation. Op. clearly cur. But Pearson author- tional violation.