Nevada Erred Denying Inmate Cataract Surgery

(CN) - Denying cataract surgery to an inmate because he can function with only one eye could show deliberate indifference by the state of the Nevada, a divided 9th Circuit ruled Thursday.

John Colwell, a lifer in the Nevada Department of Corrections (NDOC), sued various officials after being denied cataract surgery despite several recommendations from specialists. He claimed that the department has a "one eye policy" that forces some inmates to function in the tough environment with one blind eye.

The 67-year-old Colwell had a cataract removed from his left eye in 2001, and has been totally blind in his right eye since 2002.

According to the department's Medical Directive 106, quoted in the ruling, "inmates with cataracts will be evaluated on a case by case basis, taking into consideration their ability to function within their current living environment."

In denying Colwell's request for surgery on his right eye, the department defined it as "elective" and "non-essential," regardless of a recommendation from two eye specialists.

Colwell claimed in his lawsuit that this policy has caused him some trouble in prison. His monocular blindness has allegedly caused him to cut his hand on a sewing machine twice, and inspired at least two fights when he bumped into other inmates.

U.S. District Judge Larry Hicks ruled for the state on summary judgment in Reno, but a divided appellate panel revived the case on Thursday.

"A reasonable jury could find that Colwell was denied surgery, not because it wasn't medically indicated, not because his condition was misdiagnosed, not because the surgery wouldn't have helped him, but because the policy of the NDOC is to require an inmate to endure reversible blindness in one eye if he can still see out of the other," wrote Judge Barry Silverman for the three-judge panel. "This is the very definition of deliberate indifference."

The panel ruled 2-1 to return the case to Reno for trial.

"The record supports a conclusion that the specialists' recommendations for surgery were overridden not because of conflicting medical opinions about the proper course of treatment, but because officials enforced the 'one eye only' policy," Judge Silverman added.

In a long dissent that explores historical interpretations of the Eighth Amendment, Judge Jay Bybee questioned whether refusing to treat a prisoner's cataract amounts to "cruel and unusual punishment."

"NDOC has not violated the Eighth Amendment, because Colwell is not suffering any pain from his cataract and he is fully functioning in the ordinary tasks of prison life," Bybee wrote. "His mishaps are not unexpected given the vicissitudes of life, the aging process, and his incarceration."

"I suspect that for a significant number of Americans afflicted with cataracts, surgery is beyond their means," Bybee added. "Yet they function quite normally among us, holding jobs and driving cars and carrying on the ordinary activities of life. For most of them, cataract surgery remains elective surgery."

Dustin Buehler represented Colwell in the 9th Circuit.

A supervising attorney with the University of Arkansas Federal Appellate Litigation Project, Buehler called the ruling "a significant victory for prisoners with serious medical conditions."

"The University of Arkansas Federal Appellate Litigation Project selected Mr. Colwell's case because we felt that his treatment by prison officials had been unjust," Buehler said in an email. "Regardless of the nature of Mr. Colwell's criminal sentence, he was not sentenced to more than a decade of blindness in one eye. I'm glad the court recognized that his situation has been fundamentally unfair."

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