Thursday, March 06, 2014

Peralta v. Dillard (9th Cir. - March 6, 2014)

This is a biggie.

It's essentially a 6-5 en banc decision.  With a lineup that's not at all traditional.

You've got Chief Judge Kozinski writing the majority opinion.  Joined by Judges Silverman, Graber, Tallman, Clifton and Nguyen.  With a couple of (similar) dissents that get the votes of Judges Christen, Rawlinson, (Milan) Smith, Hurwitz and Bybee.

Notice that you've got judges of all political stripes on both sides.  Despite the fact that this is a Section 1983 case.  Pretty unusual.

One other non-merits point.  People sometimes ask me if it really matters that the Chief Judge is always on the en banc court.  Usually it doesn't.  Here it absolutely does.  My guess is that absent that rule, this case probably comes out the other way.

The merits are super interesting.  And difficult.  Which is why you see smart people of all principles on both sides of the equation.

The basic question is this:  Can a state official avoid damages for violating someone's constitutional rights by claiming that the state "made him do it" by not providing him enough money?

You can see why that issue matters.  In a ton of cases.  Here, it's a prison case.  Plaintiff, Cion Peralta, gets terrible dental care in prison.  So bad -- so absurdly, grossly bad, with accompanying pain and infection -- that it amounts to deliberate indifference to his constitutional right to be free of cruel and unusual punishment.  In the procedural context of this case, we assume that's right.

Peralta sues the various prison dentists and dental officials for damages.  The prison dentists basically defend the lawsuit by saying that even if the dental care was terrible (as it likely was), it wasn't their fault, because the state was supposed to provide a dentist for every thousand inmates, but only actually provided a dentist for every couple of thousand inmates.  So they essentially had to do a crappy job.

Is that a defense?

The majority says "Yes".  The dissenters say "No."

Both sides do a very good job articulating reasons for their position.  Judge Kozinski has a couple of main points, but his most persuasive one (in my view) is the central claim that it's not the individual doctor's fault that Peralta's rights were violated, but instead the state's fault for not providing enough money for enough dentists.  And since you can't sue the state (for money, anyway), Peralta's out of luck.  That's just the nature of sovereign immunity.  The state might be liable, but you can't get money out of it, and whereas you can sue the individual, they're not at fault.  End of story.

Judge Kozinski doesn't put it precisely this way, but his analogy is essentially to triage.  Imagine there's a war and the state doesn't have enough doctors (or, as here, dentists).  The doctors and dentists aren't personally responsible for the situation.  They have to do the best they can with the limited resources they're provided.  So some people die -- or have their teeth rot out -- and other people live.  C'est la vie.  That's the world.  It's not the doctor's (or dentist's) fault.  The situation was not of their making.

The dissent, by contrast, powerfully focuses on the consequences of such a rule.  Noting that the underfunding here was clearly the state's making.  If you don't allow the dentists to be sued, what incentive does the state have to give enough dentists; e.g., to comply with the Eighth Amendment?  None.  The state can just underfund the prisons and be confident that even if incarcerated people are somehow able to sue, they'll lose anyway.  Thanks, Ninth Circuit.  That's a terrible rule.  It basically encourages the state to violate the Constitution, and leaves horribly damaged people without any remedy whatsover.

All of which, in my view, is entirely true.

But the majority has a response.  Sure, you can't sue for damages, but (they say) you can still sue for injunctive relief.  So that'll allegedly solve the problem.

I'm not at all persuaded.  The dissent rightfully identifies the decade-long litigation over medical treatment in California prisons as an example of why injunctive relief doesn't work, and I think that's right.  To that I might add that the Court's incredibly strict standards for standing and the like will also almost invariably get in the way of actually prevailing in claims of this nature.  Even if one overlooks the fact that the ability to sue for injunctive relief is small solace to a guy who's already lost his teeth as a result of the prison's deliberate indifference to his medical needs.

But notwithstanding the failure (in my eyes, anyway) of that argument, there's a reason the majority gets a majority.  Lots of this problem is simply the problem of sovereign immunity.  Yeah, this may incentivize states to violate rights, since they're not liable for damages.  But so does immunity itself.  That's the nature of the beast.  It's a balance we made long ago, so there you have it.  The majority even says that to do otherwise -- to do what the dissent would do -- would be to "backdoor" violate sovereign immunity.  But even taken more weakly, the majority's claim is simply:  "Don't blame us.  Blame the Eleventh Amendment."

Not surprisingly, the dissent takes a different approach.  One that has a lot of merit.  They say that the state's indemnifying these prison officials, as well as creating the underlying problem, and since both of these acts are entirely voluntary (as indeed they are), the state can hardly be heard to complain.  It's not that we're ignoring the Eleventh Amendment, and we're not in fact imposing damages against the state (and the Supreme Court has expressly drawn this distinction between suing states versus officers).  It's instead that we're recognizing the Eighth Amendment.  Prisoners have rights.  They're entitled to them.  When they're violated, they get damages.  State officers were responsible.  They failed.  End of story.

As I said, both sides have darn good points.  As well as entirely legitimate perspectives.

Though the more I thought about the case -- and I've essentially thought about it all day -- the more I think that I'd join the dissent and preclude the defense.

Here's the hypothetical that I'd pose to Chief Judge Kozinski:

Imagine a slightly different sort of state-sponsored fiscal constraint.  The state doesn't have enough (or doesn't feel like spending) money for dental care for prisoners, so instead of buying any dental tools, it simply provides prison dentists with a hammer.  That's it.  No pain medication, no special tools, none of the usual technology.  No pliers, even.  So if prison dentists want to take out a tooth, they've not go choice but to use a hammer.  Ditto for cavities.  The only dental care that prisoners get is whatever can be done with a hammer.  The result being -- as one might imagine -- an incredible amount of pain to an incredible number of people.

Could the dentist defend the resulting lawsuit -- say, when he treated a cavity by slamming a guy's face with a hammer -- by saying "But that's all I could do given the resources with which I was provided by the state?"  Surely not, right?  The dentist's undoubtedly correct that the state constrained his actions in the same way that "regular" lack of funds do.  But I find it implausible we'd say that the dentist is not liable.  The dentist chose to work under these conditions.  The dentist chose to swing the hammer.  In the same way the dentist here chose to give inadequate dental care.  When that's your choice, you can be found liable.  Even if you had precious few alternatives available.  You always had one:  Quit.  Let someone else take on the obligation (and potential liability).  If you elect not to do that, and to swing the hammer, it's no defense to say that you had no other tools.  Your bad for picking up the hammer.

So that's one way of looking at this.  A way that I think might indicate the correct result.

One can go even deeper, of course.  Law and economics scholars, for example, would presumably be pretty fine with imposing liability here.  Regardless of whether the state indemnified its officials (and I think the dissent wrongfully focuses on the existence of indemnification as a predicate for its claims).  If we impose liability on the dentists, one of two things will happen.  First, maybe they'll refuse to work under the unconstitutional resource conditions because they don't want to be sued.  We're fine with that, right?  A private, free market response to the problem.  No one needs to sue for injunctive relief, but instead the invisible hand solves the problem and the market forces the government to do what's compelled by the Constitution.  Alternately, dentists agree to incur liability, but raise prices (i.e., their demanded salary) accordingly.  No problem there either.  Rights still potentially get violated -- albeit with potential injunctive relief (if available) -- but those adversely impacted get compensated.  Plus maybe the state realizes it's cheaper to satisfy the Constitution rather than pay inflated salaries to its dentists.  Fine with that as well.

So I think imposing liability has a pretty strong justification.  Not only for deterrence-oriented reasons like the ones identified by the dissents, but for additional reasons as well.

I'll add one final point that's also not addressed by either the majority or the dissenting opinions.  One that relates to the nature of the underlying obligation.

Judge Kozinski essentially says that it's not the doctor's fault that the state gives them insufficient funds and too many patients.  But I wonder how plausible that is given our alternative perspective in a variety of analogous fields.  For example, imagine that a public defenders says "Yeah, I was incompetent and didn't do virtually anything on behalf of the defendant.  But I was overworked and had a lot of clients."  Surely that's not a defense to a Sixth Amendment (or even malpractice) claim, right?  Ditto for private attorneys.  Imagine that a private lawyer says:  "Yeah, I sucked in that case and lost, but that's because I didn't have enough money to prosecute it properly."  Well, that's still his fault, isn't it?  Even if there's someone else -- the judge, the state, the client, or whomever -- didn't give the attorney the money.  The attorney still committed malpractice.  It was his job to do it right.  If he didn't have the resources to do the job properly, that's no defense.  Shouldn't have taken the job.

I'm quite confident that's the view we have of lawyers.  Doctors too.  Imagine a prison doctor leaves a patient open on the table and orders the janitor to resect a bowel and close the guy up on the ground the doctor is really busy because there's not enough doctors and the prison doesn't pay for nurses.  Surely that's still the doctor being "deliberately indifferent" to the medical needs of the patient, right.  I cannot fathom the doctor would be able to say that he was just doing the job that he was able to do within the constraints the state provided, and hence that the patient who dies because the janitor botches the job has utterly no relief.  And yet under the Ninth Circuit's rule, it seems that's precisely the result.

Maybe what's important here is an understanding of the nature of the job.  Professionals -- doctors, lawyers, dentists, etc. -- have a duty to take care of those entrusted to them and to do what we would call a "minimally competent" job.  That duty's not delegable.  That duty's not obviated by the fact that the job they've undertaken is difficult.  In the same way a lawyer has to do a competent job even when her clients unexpectedly stops paying her bills, and just as an E.R. doctor has to perform competently even when the patient can't pay, once they voluntarily undertake a role, I think it's not unreasonable to say that a prison dentist has to satisfy a constitutional minimum.  And that, just as when the doctor or attorney fails, if the dentist fails, he has to pay.  Regardless of the situation.

There may well be exceptions.  Wars.  Prison riots.  Emergencies when the doctor or dentist had every reason to believe that what they were doing was more than sufficient but where, suddenly, and without opportunity to depart, the professional was stuck in a situation that wasn't his own doing.

But none of those special situations exist here.  The state deliberately underfunded.  The dentist took on the responsibility to provide medical care despite his knowledge of this fact and the reality that it meant he couldn't do a minimally competent job.  He's entitled to make that choice.  But if he does, he has to pay.

That result not only has practical benefits.  But it seems to me doctrinally consistent with our holdings in closely analogous contexts as well.

So the draw makes a difference in this one.  And, ultimately, I think results in the wrong result.

In a case that's incredibly important.