                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 CION ADONIS PERALTA ,                             No. 09-55907
                Plaintiff-Appellant,
                                                     D.C. No.
                     v.                           2:05-cv-01937-
                                                     JVS-PLA
 T.C. DILLARD , Chief Dental Officer;
 S. BROOKS, D.D.S. Staff Dentist;                    OPINION
 J. FITTER, Chief Medical Officer,
               Defendants-Appellees.


        Appeal from the United States District Court
           for the Central District of California
         James V. Selna, District Judge, Presiding

                   Argued and Submitted
           October 10, 2012—Pasadena, California

                      Filed January 7, 2013

 Before: Ferdinand F. Fernandez and Marsha S. Berzon,
 Circuit Judges, and Marco A. Hernandez,* District Judge.

                 Opinion by Judge Fernandez;
                  Dissent by Judge Berzon


  *
    The Honorable Marco A. Hernandez, United States District Judge for
the District of Oregon, sitting by designation.
2                      PERALTA V . DILLARD

                           SUMMARY**


                      Prisoner Civil Rights

    The panel affirmed the district court’s judgment following
a jury verdict in favor of a prison dentist in a prisoner’s 42
U.S.C. § 1983 action alleging deliberate indifference to
medical needs related to his dental care.

    The panel held that the district court did not err when it
instructed the jury on the question of whether defendant could
be held responsible for failing to provide services when he
lacked resources. The panel held that the instruction was
proper because it took account of the duties, discretion and
means available and properly advised the jury that if the
prison dentist could not render or cause to be rendered the
needed services because of a lack of resources that he could
not cure, he also could not be individually liable.

    Dissenting, Judge Berzon stated that the majority upheld
a jury instruction absolving a prison dentist of liability for
providing constitutionally deficient care, even though he was
not entitled to be so exonerated under 42 U.S.C. § 1983 or the
Eighth Amendment.




  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                       PERALTA V . DILLARD                             3

                             COUNSEL

Derek Milosavljevic, Kirkland & Ellis LLP, Los Angeles,
California, for Plaintiff-Appellant.

Janine K. Jeffery, Reily & Jeffery, Northridge, California, for
Defendants-Appellees.


                             OPINION

FERNANDEZ, Circuit Judge:

    Cion Adonis Peralta appeals the district court’s judgment
as a matter of law in favor of Dr. Thaddeus Dillard and Dr.
Junaid Fitter and its judgment following a jury verdict in
favor of Dr. Sheldon Brooks, in Peralta’s 42 U.S.C. § 1983
action claiming that they were deliberately indifferent to his
medical needs related to dental care. In this opinion, we
decide whether the district court erred when it instructed the
jury on the question of whether Dr. Brooks could be held
responsible for failing to provide services when he lacked
resources.1 We affirm.

                         BACKGROUND

    Peralta was incarcerated at various California state
prisons, prior to January 24, 2004, when he arrived at
California State Prison, Los Angeles County (“Lancaster”).
He remained in Lancaster until February 7, 2006. While he
was there, Dr. Brooks was a staff dentist.

  1
    W e address Peralta’s claims against Dr. Dillard and Dr. Fitter in an
unpublished memorandum disposition filed this date.
4                  PERALTA V . DILLARD

    Within three days of his arrival at Lancaster, Peralta
submitted oral and written requests for dental care. He
asserted that he had cavities and bleeding gums and that he
needed to receive treatment for pain. Having received no
immediate response, Peralta filed a Form 602 Inmate Appeal
on July 15, 2004. He stated that he had infected teeth,
cavities, and severe pain, but he had not been seen by a
dentist despite having submitted requests. The initial
informal response by the medical appeals analyst, dated
August 13, 2004, indicated that the appeal was partially
granted; he was placed on a waiting list to see a dentist.

    The wait for routine care could take up to twelve months,
but emergency dental cases were given a higher priority. The
length of the waiting list, as well as the limited amount of
time that staff dentists could ultimately spend with patients,
was due to staff shortages at Lancaster during 2004–05 and
to other constraints on the dentists’ time. Moreover, while
Dr. Brooks and the other doctors tried to address the shortage
through various means, including requests for more resources
and changing staff schedules to allow staff to see more
patients, they had no control over the staffing budget, which
was set at the state level.

    On August 23, 2004, Peralta formally appealed the
decision by the medical appeals analyst and stated that
waiting for a number of months was inadequate. In response
and pursuant to the procedure for Form 602 appeals, Dr.
Brooks interviewed Peralta on October 15, 2004. The dental
progress notes indicate that Dr. Brooks had one x-ray taken,
reviewed Peralta’s Form 602 and his health history form, and
performed a clinical examination of tooth #2. He found
severe bone loss and mobility and assessed the tooth as a
candidate for extraction; he also prescribed twelve ibuprofen
                    PERALTA V . DILLARD                       5

tablets and planned to extract tooth #2 on the next visit. He
did not, however, examine Peralta further for other cavities or
infections.

     After that interview, Dr. Brooks prepared and signed a
first-level appeal response. It stated that the appeal was
partially granted. It also stated that Dr. Brooks had
prescribed pain medication and that Peralta would be
scheduled for an extraction. It noted that there was a waiting
list for dental procedures. A second staff dentist, Dr. Kumar,
also signed the Form 602 and the first level appeal response.

    On October 21, 2004, Peralta sought a second level
review of his Form 602 Appeal. He stated that he was not
examined, but only asked which tooth hurt most and was
given four days’ worth of Motrin although he had existing
dental needs or pain. On January 25, 2005, while the review
was still pending, Peralta saw Dr. Brooks a second time in
order to have tooth #2 extracted. During the appointment, Dr.
Brooks explained that the tooth had no cavity and did not
need to be extracted, but that he could have it extracted if it
was causing him pain. Peralta decided not to have the tooth
pulled at that time. Dr. Brooks did obtain x-rays, reviewed
Peralta’s health history form, and performed an examination,
assessment and consultation. He also prescribed twelve
ibuprofen tablets and, prophylactically, tetracycline for
infection.

    Peralta saw Dr. Brooks the third and last time on
December 23, 2005. At that time, Dr. Brooks cleaned
Peralta’s teeth; Dr. Brooks testified that the time for cleaning
teeth of a patient with the amount of plaque and calculus
build up that Peralta had would take twenty to thirty minutes.
6                   PERALTA V . DILLARD

In February 2006, Peralta was transferred to Mule Creek State
Prison.

    This case proceeded to trial on May 5, 2009. After
judgment as a matter of law was granted in favor of Dr.
Dillard and Dr. Fitter, the case continued as to Dr. Brooks
alone and was presented to the jury, which returned a special
verdict in his favor. The jury determined that Dr. Brooks did
not act with deliberate indifference to Peralta’s severe dental
needs and thereby cause him harm. The district court issued
judgment in accordance with that special verdict on May 26,
2009. This appeal followed.

    JURISDICTION AND STANDARD OF REVIEW

    The district court had jurisdiction pursuant to 28 U.S.C.
§§ 1331, 1343. We have jurisdiction pursuant to 28 U.S.C.
§ 1291.

   We review the issue of whether a jury instruction
misstates the law de novo. See Clem v. Lomeli, 566 F.3d
1177, 1180–81 (9th Cir. 2009).

                       DISCUSSION

    Peralta’s sole attack on the judgment in favor of Dr.
Brooks is based upon Peralta’s assertion that the district court
erred when it gave the following instruction to the jury:

            Evidence has been presented during the
       trial regarding dental staffing levels and the
       availability of resources at the Lancaster
       correctional facility where Plaintiff Peralta
                            PERALTA V . DILLARD                           7

              was incarcerated during the time of his
              alleged injuries in this case.

                  Whether a dentist or a doctor met his
              duties to Plaintiff Peralta under the Eighth
              Amendment must be considered in the context
              of the personnel, financial, and other
              resources available to him or her or which he
              or she could reasonably obtain. A doctor or
              dentist is not responsible for services which
              he or she could not render or cause to be
              rendered because the necessary personnel,
              financial, and other resources were not
              available to him or her or which he or she
              could not reasonably obtain.

Peralta does not complain about the precise wording of the
instruction; rather, he asserts that our cases preclude
consideration of available resources when an individual is
sued for violating a prisoner’s Eighth Amendment2 rights due
to deliberate indifference to that person’s serious medical
needs.3 To sustain his deliberate indifference claim, Peralta
had to meet the following test:

              First, the plaintiff must show a serious
              medical need by demonstrating that failure to
              treat a prisoner’s condition could result in
              further significant injury or the unnecessary


 2
         U.S. Const. amend. VIII.

     3
    Therefore, it is the principle we address here; we do not intend to
induce the reader to see the instruction as an all purpose form or, for that
matter, the very best possible wording for an instruction of this type.
8                   PERALTA V . DILLARD

       and wanton infliction of pain. Second, the
       plaintiff must show the defendant’s response
       to the need was deliberately indifferent. This
       second prong — defendant’s response to the
       need was deliberately indifferent — is
       satisfied by showing (a) a purposeful act or
       failure to respond to a prisoner’s pain or
       possible medical need and (b) harm caused by
       the indifference.

Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (citations
and internal quotation marks omitted); see also Toguchi v.
Chung, 391 F.3d 1051, 1057 (9th Cir. 2004). Even when
officials “actually knew of a substantial risk to inmate health
or safety [they] may be found free from liability if they
responded reasonably to the risk . . . .” Farmer v. Brennan,
511 U.S. 825, 844, 114 S. Ct. 1970, 1982–83, 128 L. Ed. 2d
811 (1994). But what is (and should be) the law when those
in charge of funding refuse to give the providers of prisoner
care sufficient funds to allow them to afford the level of care
that prisoners need? For example, suppose, as here, the
established standard is 1 dentist for every 950 inmates, but
the dentist must work at a 1 dentist for every 4200–4500
inmates ratio. Is the individual dentist to be held responsible
because he cannot give proper care to the inmates, that is, he
cannot reasonably respond to the risk of harm that those
underserved inmates face when dental problems occur or are
about to occur? We think not. As we noted over two decades
ago in the context of a prisoner’s stabbing, it is one thing to
seek injunctive relief against state officials for the general
conditions at a facility, and an entirely different thing when
a prisoner seeks to mulct an individual prison employee with
damages. See Leer v. Murphy, 844 F.2d 628, 633 (9th Cir.
1988). In the latter instance, we cannot simply react to
                    PERALTA V . DILLARD                      9

deplorable conditions at the prison, but must “take a very
individualized approach which accounts for the duties,
discretion, and means of each defendant.” Id. at 633–34; see
also Clement v. Gomez, 298 F.3d 898, 905 n.4 (9th Cir.
2002). That is as it should be. The point was put most
eloquently by the Eleventh Circuit Court of Appeals thirty
years ago. See Williams v. Bennett, 689 F.2d 1370 (11th Cir.
1982).

    In Williams, a prison had been run in a manner that placed
prisoners at a severe risk of violence. Id. at 1375. A prisoner
brought an action against a number of prison officials, who
had not given him reasonable protection; he accused them of
deliberate indifference. Id. at 1374–75. However, the
problems at the prison were said to be largely caused by a
lack of funding. Id. at 1387. The trial court had instructed
the jury in a manner similar to the instruction here. Id. The
court of appeals recognized that lack of funds will not
generally defeat claims for constitutional violations. Id.
However, its response to the attack on the instruction was:

           In contrast [to considering injunctive
       relief], however, we are called upon to
       consider the liability of individual state
       employees for injuries suffered as a result of
       the unconstitutional conditions. Unlike the
       state, an individual defendant generally has
       neither the power to operate nor close down a
       prison. Moreover, we refuse to adopt the
       position that an employee who attempts to
       accommodate the constitutional rights of
       prisoners in his charge, within the financial
       limitations imposed, should, instead, resign
       from his position because of the realization
10                 PERALTA V . DILLARD

       that full compliance is impossible in the
       absence of adequate funding. Indeed, the
       corrections official who walks away could be
       said to act with greater indifference than those
       who remain and attempt to work within the
       system.

           In essence, the availability of funds, or
       lack thereof, is relevant in determining
       whether the individual is capable of
       committing the constitutional wrong alleged.
       Although each prison employee owes a duty
       to the inmates affected by his function, that
       duty must be measured by the scope of his
       discretion and the extent of his authority. For
       example, an individual defendant should be
       able to demonstrate that he had insufficient
       authority to correct the constitutional
       deficiencies in the prison. He also should be
       permitted to demonstrate that he did not have
       the resources necessary to correct that
       deficiency.

Id. at 1388 (citations omitted); see also Lopez v. LeMaster,
172 F.3d 756, 762 & n.4 (10th Cir. 1999); Anderson v. City
of Atlanta, 778 F.2d 678, 680, 686–87 (11th Cir. 1985). Just
so.

    The above does not, of course, suggest that a
governmental entity cannot be held liable in damages for its
own wrongdoing when it incarcerates individuals, but refuses
to provide the proper funds. That is not the issue before us.
Nor do we suggest that injunctive or declaratory relief can be
turned aside simply because necessary resources have not
                     PERALTA V . DILLARD                       11

been made available. See, e.g., Jones v. Johnson, 781 F.2d
769, 770, 772 (9th Cir. 1986) (dismissal of a complaint for
damages and injunctive relief was overturned on the basis
that a cause of action had been stated; however, the question
of individual responsibility and of damages as such was not
taken up); Spain v. Procunier, 600 F.2d 189, 200 (9th Cir.
1979) (holding injunctive relief proper despite assertions
about the cost of proper facilities). Leer, 844 F.2d at 633
(distinguishing between injunctive relief and damages);
Williams, 689 F.2d at 1388 (same).

    Thus, a proper standard must take account of the “duties,
discretion and means” available. Leer, 844 F.2d at 633. The
instruction in question here did just that. It did not give a free
pass to those who could, but did not bother to, give a
constitutional level of care to an inmate. Rather, it, in effect,
stated that if the employee involved — here Dr. Brooks —
could not “render or cause to be rendered” the needed
services because of a lack of resources that he could not cure,
he also could not be individually liable.

                       CONCLUSION

    We see no reason to impose an injustice upon employees
of prison systems in an attempt to avoid injustices to inmates.
Nor do we see any reason to drive prison employees out of
positions where they can at least try to ameliorate afflictions,
even though they have no apotropaion that will effect cures
in the absence of sufficient resources. To do so would be to
provide an iatrogenic remedy. Thus, we hold that the
principle contained in the instruction given in this case was a
proper one.

    AFFIRMED.
12                       PERALTA V . DILLARD

BERZON, Circuit Judge, dissenting:

    The majority upholds a jury instruction absolving a prison
dentist of liability for providing constitutionally deficient
care, even though under our case law, he was not entitled to
be so exonerated.1 Because the instruction in question does
not properly state any applicable rule under 42 U.S.C. § 1983
or the Eighth Amendment — whether with respect to the
requisite mens rea, causation requirement, any immunity
doctrine, or otherwise — I respectfully dissent.

                                      I

    A reasonable juror could conclude that the record in this
case establishes the following facts regarding Dr. Sheldon
Brooks’s deliberate indifference to Cion Peralta’s serious
medical needs:2

    Shortly after arriving at Lancaster prison in June 2004,
Peralta made a formal request for dental care to address his
bleeding gums and pain in his teeth. After receiving no
response for about a month, he filed a written appeal seeking
dental attention to his “severe pain.” The prison responded
by placing him on the “routine” dental care waiting list.


  1
    I discuss Peralta’s claims against Dr. Dillard and Dr. Fitter in a dissent
from the memorandum disposition filed concurrently with this opinion.

  2
    “Although this is an appeal from a jury verdict, because [I would]
conclude the jury instruction[] w[as] erroneous, the prevailing party
is not entitled to have disputed factual questions resolved in his favor
because the jury’s verdict may have resulted from a misapprehension of
law rather than from factual determinations in favor of the prevailing
party.” Clem v. Lomeli, 566 F.3d 1177, 1179 (9th Cir. 2009) (internal
quotation marks omitted).
                    PERALTA V . DILLARD                       13

Patients on that list could expect to wait about twelve months
to receive care.

    Dr. Brooks initially saw Peralta on October 15, 2004. At
the appointment, Peralta complained of bleeding gums and
pain throughout his mouth. Brooks responded to Peralta’s
complaints by explaining: “We’re not going to worry about
that today.” Brooks did not examine Peralta for cavities,
periodontal disease, or infection. Nor did Brooks prescribe
a treatment plan for periodontal disease. Instead, Brooks
asked Peralta which one tooth hurt the most. Brooks x-rayed
the tooth that Peralta identified, scheduled Peralta to have that
tooth extracted, and gave Peralta a few-day supply of
ibuprofen. Although he did not examine Peralta for cavities
or infection, or address the cause of Peralta’s pain, Brooks
signed a form noting that Peralta’s appeal was “partially
granted in that [Peralta] was examined by the dentist.”

    Peralta immediately sought review of his appeal,
contending that the examination was incomplete and
inadequate. Drs. Fitter and Cassim “partially granted” the
appeal by leaving Peralta on the routine waiting list for
further care. In December 2004, Peralta sought the next level
of administrative review of his appeal, noting that it had been
six months since he first complained of “severe pain” and
bleeding gums.

    In January 2005, at his next appointment, Brooks took
another x-ray. Peralta decided against having the earlier-
identified tooth extracted, after Brooks informed him that the
tooth did not need extraction, and because the pain
throughout the rest of his mouth remained unaddressed.
Brooks gave Peralta antibiotics and twelve ibuprofen but did
not otherwise address his bleeding gums or pain. Brooks did
14                      PERALTA V . DILLARD

not prescribe a course of treatment for periodontal disease or
check Peralta for cavities. The appointment lasted about five
minutes.3

    Peralta waited almost a year to see Brooks again. At a
December 2005 appointment, Brooks finally cleaned
Peralta’s teeth. Brooks again did not check Peralta for
cavities or prescribe an ongoing course of treatment for
periodontal disease other than recommendations for improved
oral hygiene.4




 3
   The majority states that Dr. Brooks “reviewed Peralta’s health history
form, and performed an examination, assessment and consultation.” Maj.
Op. at 5. A reasonable juror could have credited Peralta’s testimony that
the January 2005 visit lasted only about five minutes and that once Peralta
decided against the extraction, Brooks “didn’t address the cavities or the
pain, the bleeding, or anything.” Brooks agreed that the “focus” of the
January 2005 visit was on the single tooth that Peralta had identified and
testified that he did not check Peralta for cavities during that visit or
“prescribe a course of treatment for periodontal disease.” Although
Peralta’s medical records for that visit contain the notation “clinical exam
– #2 [tooth] – indicated, bone loss,” the records do not refer to an
“assessment” or “consultation” with regard to Peralta’s other complaints.

     4
    There was disputed testimony as to whether Peralta was diligent in
caring for his teeth and gums. Peralta’s medical records noted his poor
oral hygiene. Peralta testified that he was at times unable to floss
regularly because the Lancaster prison did not provide dental floss but that
he brushed regularly and flossed when he could. Peralta was allowed to
order “care packages” including items such as floss, but during his time
at Lancaster, the five care packages he ordered contained only food items
such as candy and cookies, as well as non-sugary foods. Peralta testified
that except for one occasion, he did not eat the sugary foods but rather
traded them for other items, such as playing cards, and on occasion, dental
floss.
                    PERALTA V . DILLARD                      15

                              II

     Before directly addressing the jury instruction at issue, I
first note what is not at issue in this appeal: There is no
question that a reasonable jury could have found that Brooks
was deliberately indifferent to Peralta’s serious medical need
in the sense described in Farmer v. Brennan, 511 U.S. 825
(1994). Indeed, the district court denied Brooks’s Rule 50
motion, stating: “I can’t say that a reasonable dentist would
perform the duties in the same way that Dr. Brooks
performed the duties.” Nor does the majority assume
otherwise.

    To establish Brooks’s liability for an Eighth Amendment
claim based on inadequate prison medical treatment, Peralta
needed to demonstrate three elements: (1) a “serious medical
need,” such that “failure to treat [the] condition could result
in further significant injury or the unnecessary and wanton
infliction of pain,” Jett v. Penner, 439 F.3d 1091, 1096 (9th
Cir. 2006) (internal quotation marks omitted); (2) that Brooks
was “aware of” that serious medical need, see Farmer,
511 U.S. at 837; and (3) that Brooks disregarded the risk that
need posed, see id. at 846, such as by denying or delaying
care, see Snow v. McDaniel, 681 F.3d 978, 986 (9th Cir.
2012); Gibson v. Cnty. of Washoe, 290 F.3d 1175, 1188 (9th
Cir. 2002).

    A reasonable juror could have concluded that Peralta
satisfied each of these elements. First, Peralta’s chronic
dental pain and bleeding gums were a serious medical need.
See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989).
Second, Brooks was plainly aware of Peralta’s complaints;
Peralta explained his symptoms at each of his appointments
and in the appeal form that Brooks reviewed. Third, Brooks
16                      PERALTA V . DILLARD

provided only scant attention to Peralta’s complaint of serious
pain, prescribing no ongoing course of treatment for
periodontal disease and offering only to extract one tooth,
which neither Brooks nor Peralta considered the cause of
Peralta’s primary symptoms and which Brooks determined
was not diseased.

    In short, Brooks knew that Peralta needed care for a
serious medical need but did not provide the care. Under
Farmer, that combination of factors is all that is required to
establish deliberate indifference.

    The case cited by the majority, Leer v. Murphy, 844 F.2d
628 (9th Cir. 1988), decided before Farmer, does not hold
otherwise. Leer determined that when a prisoner seeks to
impose Eighth Amendment liability on a prison official in his
individual capacity, “[t]he prisoner must set forth specific
facts as to each individual defendant’s deliberate
indifference.” Id. at 634. That is just what Peralta has done.
In Leer, the plaintiffs did not establish a “causal connection”
between the officials’ failure to implement security
procedures, and the third-party, prisoner-on-prisoner violence
that caused the plaintiffs’ injuries. Id. at 631, 633–34.5 In
contrast, Peralta has demonstrated that the assigned dentist
failed to provide care responsive to a serious medical need
despite actual knowledge of that need. The deliberate
indifference standard does not require more.



  5
    The case that Brooks and the majority cite in support of the disputed
jury instruction, Williams v. Bennett, 689 F.2d 1370 (11th Cir. 1982), was
also decided before Farmer, and also involved a claim against officials for
failure to dispatch guards to prevent prisoner-on-prisoner violence, rather
than a claim against a medical provider assigned to treat a patient.
                       PERALTA V . DILLARD                            17

                                   III

    At the outset, I observe that the rule enunciated by the
majority would deny relief in cases of a medical practitioner’s
deliberate indifference to a prisoner’s medical needs even as
egregious as in Snow, 681 F.3d at 987.6 With particular
concern for the precedent that the majority’s opinion sets for
even the most serious deprivations of prisoner medical care,
I proceed to discuss why the instruction contravenes both our
case law and first principles.

                                   A

    Brooks was entitled to a jury instruction that “correctly
state[d] the law” and was “not . . . misleading.” See Clem v.
Lomeli, 566 F.3d 1177, 1181 (9th Cir. 2009). In addition to

  6
    In Snow, a Nevada prisoner sentenced to death could “barely walk”
because of severe degenerative hip disease and “need[ed] assistance just
to get up off of his bunk.” 681 F.3d at 982. Prison physicians initially
treated his condition only with pain medication. A year after Snow
initially sought treatment, an “independent medical consultant” — an
orthopedic surgeon — examined Snow, was “surprised Snow was able to
walk at all,” and recommended “a bilateral total hip arthroplasty . . . to
replace both hip joints.” Id. at 983. A panel of prison physicians
comprised of non-specialists nonetheless denied the surgeon’s
“emergency” recommendation for surgery. Id. In the meantime, Snow’s
creatinine levels became “very high” because of the pain medication, and
one prison doctor admitted that Snow’s condition was “urgent” and
“potentially life threatening.” Id. at 983–84. The prison panel denied
surgery a second time, and although prison doctors recommended a
change in Snow’s pain relief drug regimen, the prison was unable to
supply the recommended medicine. Id. at 984. Prison staff then
prescribed regular doses of oxycodone, a powerful narcotic. Id. The
prison panel denied surgery a third time, before finally approving the
surgery three years after the orthopedic surgeon first deemed Snow’s
condition an “emergency.” Id. at 983–84.
18                  PERALTA V . DILLARD

instructing the jury on the deliberate indifference standard,
the district court gave the following instruction:

       Evidence has been presented during the trial
       regarding dental staffing levels and the
       availability of resources at the Lancaster
       correctional facility where Plaintiff Peralta
       was incarcerated during the time of his
       alleged injuries in this case.

       Whether a dentist or a doctor met his duties to
       Plaintiff Peralta under the Eighth Amendment
       must be considered in the context of the
       personnel, financial, and other resources
       available to him or her or which he or she
       could reasonably obtain. A doctor or dentist
       is not responsible for services which he or she
       could not render or cause to be rendered
       because the necessary personnel, financial,
       and other resources were not available to him
       or her or which he or she could not reasonably
       obtain.

    This instruction does not accurately state our case law.
Our cases have made crystal clear — including when
plaintiffs have sought damages — that “[b]udgetary
constraints . . . do not justify cruel and unusual punishment.”
Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986). We
recently reiterated that holding, see Snow, 681 F.3d at 987,
and until now, have not deviated from that clear principle.

    The majority says of Jones only that “the question of
individual responsibility and of damages as such was not
taken up,” Maj. Op. at 11, and does not mention Snow at all.
                    PERALTA V . DILLARD                       19

Binding precedent cannot be treated so cavalierly. Jones was
a case against individual defendants for damages in
circumstances parallel to those here, and that claim for relief,
as well as the claim for injunctive relief, was allowed to
proceed. Jones, 781 F.2d at 770, 772. And Snow dealt at
length with the liability of individuals for damages for
unconstitutional denial of medical care, relying on Jones’s
“holding that budgetary constraints do not justify cruel and
unusual punishment” in the course of doing so. Snow,
681 F.3d at 987 (citing Jones, 781 F.2d at 771).

    Nor has the Supreme Court stated otherwise. More than
twenty years ago, the Court declined to decide whether prison
officials could interpose a “‘cost’ defense” and rely on the
argument that “fiscal constraints beyond [the officials’]
control prevent[ed] the elimination of inhumane conditions.”
Wilson v. Seiter, 501 U.S. 294, 301–02 (1991). The Court
“note[d that] there [was not] any indication that other officials
have sought to use such a defense.” Id. I am aware of no
case in which the Court has revisited the issue, and Brooks
has cited none.

    Under binding Ninth Circuit case law, then, in no way
inconsistent with the Supreme Court’s rulings, Brooks was
not entitled to have the jury instructed on a cost defense.
Brooks therefore relies on out-of-circuit cases, principally the
inapposite Williams case, see supra n. 5. For the reasons
explained below, those cases not only contradict our holdings
but, even if considered ab initio, do not correctly state the
applicable rule.
20                  PERALTA V . DILLARD

                               B

    The majority seems to understand the instruction as
stating a causation principle. See Maj. Op. at 7–11. But the
jury was already instructed as to § 1983’s causation
requirement, and a defendant is not entitled to duplicative
instructions. See United States v. Lopez-Alvarez, 970 F.2d
583, 597 (9th Cir. 1992).

    What’s more, the instruction at issue misstates the
causation requirement. We look to the “common law of
torts” for the “necessary causation factor” under § 1983.
Stevenson v. Koskey, 877 F.2d 1435, 1438–1439 (9th Cir.
1989) (citing Restatement (Second) of Torts
(“Restatement”)); see also Staub v. Proctor Hosp., 131 S. Ct.
1186, 1192 n.2, 1194 n.3 (2011) (consulting the Restatement
to determine principles underlying federal tort law).
Applying tort law principles, an actor’s reckless conduct is a
“legal cause of harm” if the conduct “is a substantial factor in
bringing about the harm,” and the actor is not otherwise
relieved of liability. Restatement §§ 431, 501. If two
independent “forces are actively operating,” and each “is
sufficient to bring about harm,” then the first actor’s
recklessness “may be found to be a substantial factor in
bringing about” the harm. Id. §§ 432, 501.

    In stating that if Brooks “could not reasonably obtain”
resources necessary to provide care, then he “[was] not
responsible,” the instruction departed from the generally
applicable causation rule. It relieved Brooks of liability for
deliberately indifferent care because the ratio of dentists to
prisoners encouraged rationing the care available. But
Brooks could have provided constitutionally acceptable care
to those patients to whom he rendered care, at the cost of not
                    PERALTA V . DILLARD                     21

assisting others who remained on the waiting list. And “[a]
person deprives another of a constitutional right, within the
meaning of section 1983, if he does an affirmative act,
participates in another’s affirmative acts, or omits to perform
an act which he is legally required to do that causes the
deprivation of which [the plaintiff complains].” Redman v.
Cnty. of San Diego, 942 F.2d 1435, 1439–40 (9th Cir. 1991)
(en banc) (emphasis added) (internal quotation marks
omitted), abrogated on other grounds by Farmer, 511 U.S. at
837.

    A medical professional “is under no legal obligation to
render professional services to everyone who applies to him
or her,” absent a “statute providing otherwise.” See 61 Am.
Jur. 2d Physicians, Surgeons, and Other Healers § 121
(2012). Similarly, under the common law rule, “a physician
could with legal impunity refuse to aid a stranger in need of
immediate medical care.” Colby v. Schwartz, 78 Cal. App. 3d
885, 890 (1978). Nor do medical ethics ordinarily require a
provider to care for a person absent a pre-existing doctor-
patient relationship. See Agnew v. Parks, 172 Cal. App. 2d
756, 763–64 (1959) (discussing the Hippocratic Oath).
Although professional ethics may require medical
professionals to provide some pro bono services to the
indigent, there is no ethical obligation to provide care to any
particular individual. See Am. Med. Ass’n, Current Opinions
of the Council on Ethical & Judicial Affairs, Code of Medical
Ethics (“Code of Medical Ethics”) § 9.065 (1994); id. § 10.05
(2008); Am. Coll. of Dentists, Ethics Handbook for Dentists
14 (2012).

   But “[a] patient-physician relationship exists when a
physician serves a patient’s medical needs.” Code of Medical
Ethics § 10.015 (2001); see Am. Dental Ass’n, Principles of
22                      PERALTA V . DILLARD

Ethics and Code of Professional Conduct § 2.F (2012). So
once a patient-provider relationship is established, the
provider “is bound by law to exercise a high standard of skill
and care, to continue the treatment until the relation . . . is
legally terminated, and not to abandon the case.” 61 Am. Jur.
2d Physicians, Surgeons, and Other Healers § 121 (2012).
Analogously, under the common law rule, a “physician who
stopped and gave aid” to a “stranger in need of immediate
medical care” through his actions “created a doctor-patient
relationship and thereby assumed a duty of reasonable care
towards the patient.” Colby, 78 Cal. App. 3d at 890.

     Here, Brooks was assigned to treat Peralta and first
examined him on October 15, 2004, thereby creating a
provider-patient relationship. Peralta claims — and a
reasonable juror could find, see supra Part II — that Brooks
failed to provide constitutionally adequate care in the
subsequent fourteen months, during which time Brooks saw
Peralta for two additional appointments and signed off on a
form effectively denying Peralta’s request for more thorough
or timely care.

    In sum, under basic principles of tort law, even if prison
budget constraints were an independent and sufficient cause
of the extraordinary delays in providing Peralta with basic
dental care, that fact alone would not exonerate Brooks, if his
own acts or omissions were also sufficient to cause Peralta —
Brooks’s assigned patient — harm.7




 7
   Because of the particular considerations applicable here, I leave aside
the question whether an instruction of the sort the majority approves might
be appropriate in other circumstances.
                        PERALTA V . DILLARD                            23

    By stating the opposite rule, the instruction allowed
Brooks to point to inadequacies in California’s prison system
to preclude the jury’s consideration of his own actions. But
deficiencies and delays in California’s provision of health
care to prisoners are long-standing and endemic, see Plata v.
Schwarzenegger, No. C01-1351-THE, 2009 WL 799392
(N.D. Cal. Mar. 24, 2009), aff’d in part, 603 F.3d 1088 (9th
Cir. 2010), and “[n]eedless suffering and death have been the
well-documented result.” Brown v. Plata, 131 S. Ct. 1910,
1923 (2011). The instruction that the majority upholds will
now allow prison officials sued for damages to flaunt our
longstanding holding in Jones that “[b]udgetary
constraints . . . do not justify cruel and unusual punishment.”
Jones, 781 F.2d at 771.

                                    C

    Nor does the instruction accurately state any immunity
principle.8 In fact, under several lines of cases, a defendant
is not entitled to invoke some independent unconstitutional
conduct or policy to free himself of his own constitutional
obligations.

    First, courts have widely held that a party’s purported
defense that he was “‘just following orders’” does “‘not
occup[y] a respected position in our jurisprudence.’”
Kennedy v. City of Cincinnati, 595 F.3d 327, 337 (6th Cir.
2010) (quoting O’Rourke v. Hayes, 378 F.3d 1202, 1210 n.5
(11th Cir. 2004)); Thaddeus-X v. Blatter, 175 F.3d 378, 393
(6th Cir. 1999) (en banc) (collecting cases). Instead,
“officials have an obligation to follow the Constitution even
in the midst of a contrary directive from a superior or in a

 8
     Notably, Brooks has not sought qualified immunity in this case.
24                  PERALTA V . DILLARD

policy.” Kennedy, 595 F.3d at 337 (internal quotation marks
omitted). The principle is so longstanding that in an 1804
opinion by Chief Justice Marshall, the Supreme Court upheld
a damages award against the commander of an American
warship for unlawfully seizing a Danish vessel, even though
the seizure was made pursuant to a superior’s instructions.
See Little v. Barreme, 6 U.S. (2 Cranch) 170, 178–79 (1804)
(Marshall, C.J.); Busche v. Burkee, 649 F.2d 509, 517 (7th
Cir. 1981) (discussing Little). Analogously, we have held
that police officers are not protected by qualified immunity
when they act in reliance on training materials that contradict
clearly established constitutional safeguards. See Cal. Att’ys
for Criminal Justice v. Butts, 195 F.3d 1039, 1049–50 (9th
Cir. 1999).

    Second, officials are not immunized from liability for
constitutional violations if they act pursuant to an
unconstitutional statute. Even before the Supreme Court
breathed new life into § 1983 through its interpretation of that
statute in Monroe v. Pape, 365 U.S. 167 (1961), federal
courts interpreted § 1983 to provide a damages remedy for
“state-approved constitutional deprivations.” See id. at 198
(Harlan, J., concurring).

   Finally, police are not shielded from liability for
unconstitutional searches or seizures simply because a neutral
magistrate has issued the warrant on which the police rely.
See Messerschmidt v. Millender, 132 S. Ct. 1235, 1245
(2012). Rather, if “‘it is obvious that no reasonably
competent officer would have concluded that a warrant
should issue,’” liability will attach. Id. (quoting Malley v.
Briggs, 475 U.S. 335, 341 (1986)).
                    PERALTA V . DILLARD                      25

    In sum, under a host of doctrines, we do not permit state
actors to escape liability under § 1983 simply by pointing to
some freestanding or intervening constitutional violation, or
to unconstitutional directives from superiors. The rule should
be no different where a doctor invokes a material constraint
on his ability to discharge his duties under the Constitution to
an assigned patient.

    As I can find no support in § 1983 case law, the law of
torts, or immunity doctrines for the instruction that the
majority sanctions, I would hold that the instruction was a
misstatement of the applicable law.

                              IV

    “An error in instructing the jury in a civil case requires
reversal unless the error is more probably than not harmless.”
Clem, 566 F.3d at 1182 (internal quotation marks omitted).
“Because we presume prejudice where civil trial error is
concerned, the burden shifts to the defendant to demonstrate
that it is more probable than not that the jury would have
reached the same verdict had it been properly instructed.” Id.
(internal quotation marks omitted). “When the trial court
erroneously adds an extra element to the plaintiff’s burden of
proof, it is unlikely that the error would be harmless.” Id.
(internal quotation marks and alterations omitted).

    It was more probable than not that the district court’s
instructional error prejudiced Peralta. The instruction
allowed the jury to decide the case on the impermissible
ground that the prison’s medical budget was inadequate — as
to which evidence and argument was presented — and
without regard to whether Brooks discharged his Eighth
Amendment duties to Peralta. See Jones, 781 F.2d at 771;
26                  PERALTA V . DILLARD

Snow, 681 F.3d at 986. As Peralta presented sufficient
evidence for a reasonable juror to find that Brooks was a
moving force behind the denial of care for Peralta’s serious
medical needs, the error could not have been harmless.

                               V

    Finally, I must respond to the majority’s suggestion that
the novel instruction it approves is necessary on policy
grounds — in particular, to avoid discouraging prison
employees from continuing in their positions because budget
constraints impact their ability to avoid committing
constitutional violations. See Maj. Op. at 11.

    As an initial matter, such a policy consideration is an
improper basis “for departing from [the] strict application of”
established principles of causation and immunity that do not
otherwise entitle Brooks to the instruction at issue. See
Cortes-Quinones v. Jimenez-Nettleship, 842 F.2d 556, 562
(1st Cir. 1998) (Breyer, J.).

     Moreover, as I have noted, under longstanding principles,
absent a basis for qualified or absolute immunity, a
governmental employee’s unconstitutional actions are not
excused because committed under the directive of a superior
or compelled by an unconstitutional statute. An employee
directed by a supervisor to commit an unconstitutional act
might well lose her job if she refuses to comply, but we have
not regarded that as a reason to absolve her of liability if she
obeys the directive. The dilemma for state employees is no
different under the present circumstances. The policy choice
underlying the established principles I have discussed is that
individuals of free will are obligated not to treat their fellow
citizens unconstitutionally, even if it costs them their jobs and
                     PERALTA V . DILLARD                       27

fewer government services are provided, at least in the short
term. If the services are then not provided, the fault will be
laid, politically if not legally, where it belongs — with the
appointed superiors, or even more appropriately, with the
elected officials who have created a system in which more
people are imprisoned than can be accorded constitutionally
adequate medical care with available funds. See Plata, 131
S. Ct. at 1947 (upholding a prisoner release order to remedy
the California legislature’s delay in ameliorating a prison
system unable to provide constitutional care). The alternative
— that the only recourse for constitutional violations created
by inadequate resources is institutional reform litigation,
leaving those already injured to absorb their own losses — is
not the model we have adopted, as I have explained, nor the
one best designed to impel elected officials to operate
constitutionally adequate prisons.

    In any event, the majority’s fear of an exodus of medical
providers from prisons is unfounded. It is a practical
certainty that a prison employee sued in his individual
capacity will not himself be on the hook for any damages.
California indemnifies any public employee for a judgment
arising from acts or omissions “within the scope of his or her
employment as an employee of the public entity,” Cal. Gov’t
Code §§ 825(a), 825.2(b), and may even indemnify
employees for punitive damages under certain circumstances,
id. § 825(b). Indemnification is “near[ly] universal” among
state and local entities, either as a matter of official policy or
practice. Margo Schlanger, Inmate Litigation, 116 Harv. L.
Rev. 1555, 1676 n.391 (2003); see Arar v. Ashcroft, 585 F.3d
559, 636 (2d Cir. 2009) (en banc) (Calabresi, J., dissenting);
Lawrence Rosenthal, A Theory of Governmental Damages
Liability: Torts, Constitutional Torts, and Takings, 9 U. Pa.
J. Const. L. 797, 812 & n.51, 819 (2007) (noting the
28                 PERALTA V . DILLARD

“ubiquity of public employee indemnification” and collecting
statutes); John C. Jeffries, Jr., In Praise of the Eleventh
Amendment and Section 1983, 84 Va. L. Rev. 47, 50 (1998)
(describing “constitutional tort actions against government
officers” as “functional substitutes for direct access to
government treasuries”). And in many states — including
California — a damages award is paid not from the state’s
general appropriations fund, but from the prison agency
budget. Joshua J. Fougere, Paying for Prisoner Suits: How
the Source of Damages Impacts State Correctional Agencies’
Behavior, 43 Colum. J.L. & Soc. Probs. 283, 301 & n.101
(2010). A damages judgment against a prison dentist can
therefore be expected to provide incentives to the California
Department of Corrections and Rehabilitation (CDCR) to
reallocate its sources of funding to provide constitutionally
sufficient medical care.

    The consequence of the majority’s absolution of Brooks
from any liability, then, is that the CDCR — the institution
best positioned to remedy any institutional failure that may
have contributed to Brooks’s liability — is relieved from
paying a damages award. As then-Judge Breyer put the
point:

       [O]ne might argue that, in the context of a
       seriously deficient prison system . . ., courts
       should be unusually reluctant to [protect from
       liability] officials who are actually working
       for constructive change, lest damage[s] suits
       and the decisions of judges and juries, less
       knowledgeable about actual conditions,
       inadvertently interfere with conscientious
       efforts to achieve reform. In our view,
       however, if anything, the opposite is the
                    PERALTA V . DILLARD                      29

       case. . . . [I]ndemnification by the state has the
       effect of transferring some of the human cost
       of the system, borne in the form of death and
       misery, to the public treasury, and thereby,
       perhaps, making the public more aware of
       those costs, and encouraging change.

Cortes-Quinones, 842 F.2d at 562.

    Permitting prisoners to obtain redress in suits against
individual defendants also comports with traditional
principles underlying equitable relief, as well as the Prison
Litigation Reform Act, under which a prospective injunction
is only appropriate when it is narrowly drawn and is “the least
intrusive means necessary” to vindicate a constitutional
violation. See 18 U.S.C. § 3626; Califano v. Yamasaki,
442 U.S. 682, 702 (1979). When a jury awards damages
against a state employee or official, and the award is paid
from the state’s fisc or the agency’s budget, the legislative or
executive branches can use cost-benefit analyses to choose
whether to reallocate resources to limit future liability or
continue to bear the costs of their unconstitutional practices.
Damages actions are thus less intrusive into the operation of
prisons by elected and appointed officials than structural
injunctions, which require ongoing judicial oversight of
prison management.

                              VI

    Unlike the majority, I see no basis in our caselaw for
allowing Brooks to rely on the CDCR’s budget constraints to
immunize himself from liability for his own failure to give
basic attention to Peralta’s serious dental needs. The rule that
the majority sanctions not only erects yet another barrier for
30                 PERALTA V . DILLARD

prisoner plaintiffs to obtain redress for deprivations of
fundamental rights, but also eliminates one incentive for
California policymakers to address systemic inadequacies in
providing prisoners with the most basic level of medical
attention. Because I would hold that the jury instruction at
issue was not harmless error, I would remand for a new trial.
