                 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; J.
FITTER, Chief Medical Officer,              OPINION
              Defendants-Appellees.


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

            Argued and Submitted En Banc
     September 18, 2013—San Francisco, California

                  Filed March 6, 2014

Before: Alex Kozinski, Chief Judge, Barry G. Silverman,
    Susan P. Graber, Richard C. Tallman, Johnnie B.
 Rawlinson, Richard R. Clifton, Jay S. Bybee, Milan D.
 Smith, Jr., Morgan Christen, Jacqueline H. Nguyen and
           Andrew D. Hurwitz, Circuit Judges.

            Opinion by Chief Judge Kozinski;
Partial Concurrence and Partial Dissent by Judge Christen;
Partial Concurrence and Partial Dissent by Judge Hurwitz
2                      PERALTA V. DILLARD

                           SUMMARY*


                      Prisoner Civil Rights

    The en banc court affirmed the district court’s judgment
following a jury verdict in favor of a prison dentist and
affirmed the district court’s judgment as a matter of law in
favor of prison administrators in a 42 U.S.C. § 1983 action
alleging deliberate indifference to medical needs in
connection with a prisoner’s dental care.

    The court held that a prison official sued for money
damages under § 1983 may raise a lack of available resources
as a defense. The court held that the district court’s
challenged jury instruction in this case properly advised the
jury to consider the resources that the prison dentist had
available when determining if he was deliberately indifferent.
The court held that to the extent the court’s prior decisions in
Jones v. Johnson, 781 F.2d 769 (9th Cir. 1986), and Snow v.
McDaniel, 681 F.3d 978 (9th Cir. 2012), could be read to
apply to monetary damages against an official who lacks
authority over budgeting decisions, they were overruled.

    The court held that the jury had sufficient evidence on
which to base a finding that a lack of resources caused any
delay in providing care. The court further held that the
district court did not err by granting judgment as a matter of
law in favor of Dr. Fitter, the prison’s Chief Medical Officer
and Dr. Dillard, the Chief Dental Officer.


  *
    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

    The court held that the district court’s prior decision
refusing to grant Fitter and Dillard summary judgment did
not, under law of the case, preclude the district court from re-
considering its pretrial ruling.

    Dissenting in part and concurring in part, Judge Christen,
joined by Judges Rawlinson, M. Smith, and Hurwitz and
Judge Bybee as to parts I, II, and III, stated that the decision
overturned more than thirty years of circuit precedent by
holding that lack of resources is a defense to providing
constitutionally inadequate care for prisoners. She joined the
majority in affirming the dismissal of plaintiff’s claims
against Dr. Fitter, but she disagreed with the majority’s
conclusion that a directed verdict was appropriate on
plaintiff’s claims against Dr. Dillard.

    Dissenting in part and concurring in part, Judge Hurwitz,
joined by Judges Rawlinson, M. Smith and Christen, and
Judge Bybee as to parts I and II, stated that the majority
effectively held that a state can first choose to underfund the
medical treatment of its wards, and then excuse the Eighth
Amendment violations caused by the underfunding. Judge
Hurwitz stated that as to Dr. Fitter, the majority correctly held
that he was entitled to qualified immunity as he had relied on
his staff’s medical judgment.


                         COUNSEL

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

Janine K. Jeffery (argued) and Oren Rosenthal, Reily &
Jeffery, Northridge, California, for Defendants-Appellees.
4                   PERALTA V. DILLARD

Melinda Bird and Monisha Coelho, Disability Rights
California, Los Angeles, California; Donald Specter and
Kelly Knapp, Prison Law Office, Berkeley, California; Ernest
Galvan and Lisa Ells, Rosen Bien Galvan & Grunfeld, LLP,
San Francisco, California; Paula D. Pearlman and Michelle
Uzeta, Disability Rights Legal Center, Los Angeles,
California, for Amicus Curiae Disability Rights California,
Disability Rights Legal Center, Prison Law Office, and Rosen
Bien Galvan & Grunfeld, LLP.


                          OPINION

Chief Judge KOZINSKI delivered the opinion of the court,
which is joined in full by Judges SILVERMAN, GRABER,
TALLMAN, CLIFTON and NGUYEN. Judge BYBEE joins
Part II.B.

KOZINSKI, Chief Judge:

    We consider whether prison officials sued for money
damages under 42 U.S.C. § 1983 may raise a lack of available
resources as a defense.

I. Background

    At the time Cion Adonis Peralta arrived at California
State Prison, Los Angeles County (Lancaster), the prison had
only three or four dentists and three or four dental assistants.
It had no office technicians or dental hygienists. State policy
calls for one dentist for every 950 prisoners, but the ratio at
Lancaster was closer to one to 1,500. In addition, the dentists
there were responsible for roughly 1,800 inmates at other
facilities, bringing the ratio to around one to 2,000.
                    PERALTA V. DILLARD                        5

    Peralta requested dental care almost immediately. He
complained that his teeth hurt, he had cavities and his gums
were bleeding. When he hadn’t received care a few weeks
after his initial request, Peralta filed a written appeal, in
which he again claimed that he had cavities and severe pain.
In the informal response to that appeal, Peralta was put on a
waiting list, which was generally nine to twelve months long.

    Peralta then pursued a formal appeal.            He was
subsequently interviewed by Dr. Brooks, a staff dentist.
Brooks asked Peralta which tooth hurt most, took X-rays and
scheduled Peralta for an extraction of that tooth. Brooks also
gave Peralta a few days’ supply of Ibuprofen. Dissatisfied,
Peralta filed a second-level appeal a few days later, and was
told that “further treatment [would] be provided based on the
waiting list.”

    About three months after his initial interview, Peralta had
his second visit with Brooks. During that visit, Peralta was
supposed to have the scheduled extraction, but he declined to
go through with it after Brooks told him removal was
unnecessary. Brooks gave Peralta more Ibuprofen and
medication for an infection. Eleven months after that, Brooks
saw Peralta again and took X-rays, reviewed Peralta’s history
and cleaned his teeth.

   After Peralta declined to have his tooth extracted, but
before his cleaning, he filed this section 1983 lawsuit for
money damages against Brooks; the prison’s Chief Dental
Officer, Dr. Dillard; and the Chief Medical Officer, Dr. Fitter.
He claimed that their deliberate indifference to his serious
medical needs violated his Eighth Amendment rights.
See 42 U.S.C. § 1983. In the end, his claims amounted to a
several-month delay in getting his teeth cleaned and an
6                   PERALTA V. DILLARD

alleged failure to treat his pain. These claims went to trial,
but after Peralta presented his case, the district court granted
directed verdicts to Dillard and Fitter. The jury found for
Brooks. Peralta challenges the jury instruction, as well as the
judgment in favor of Dillard and Fitter.

II. Discussion

    Prison officials violate the Eighth Amendment if they are
“deliberate[ly] indifferen[t] to [a prisoner’s] serious medical
needs.” Estelle v. Gamble, 429 U.S. 97, 104 (1976). A
medical need is serious if failure to treat it will result in
“‘significant injury or the unnecessary and wanton infliction
of pain.’” Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.
2006) (quoting McGuckin v. Smith, 974 F.2d 1050, 1059 (9th
Cir. 1992), overruled on other grounds by WMX Techs., Inc.
v. Miller, 104 F.3d 1133 (9th Cir. 1997) (en banc)). A prison
official is deliberately indifferent to that need if he “knows of
and disregards an excessive risk to inmate health.” Farmer v.
Brennan, 511 U.S. 825, 837 (1994).

    A. “Cost Defense” Jury Instruction

    The court instructed the jury that “[w]hether a dentist or
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.” The court
also told the jury that “[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 . . . or which he or she
could not reasonably obtain.”
                    PERALTA V. DILLARD                         7

    We review a district court’s formulation of civil jury
instructions for abuse of discretion, Dang v. Cross, 422 F.3d
800, 804 (9th Cir. 2005), but we review de novo whether an
instruction states the law correctly, Clem v. Lomeli, 566 F.3d
1177, 1180–81 (9th Cir. 2009). Jury instructions must be
supported by the evidence, fairly and adequately cover the
issues presented, correctly state the law, and not be
misleading. Id. at 1181.

        1. The Instruction’s Statement of the Law

    The Supreme Court has not said whether juries and judges
may consider a lack of resources as a defense in section 1983
actions. See Wilson v. Seiter, 501 U.S. 294, 302 (1991)
(“[T]he validity of a ‘cost’ defense as negating the requisite
intent is not at issue in this case . . . .”); see also Harris v.
Angelina Cnty., 31 F.3d 331, 336 (5th Cir. 1994). But the
Court has told us that prison officials aren’t deliberately
indifferent to a prisoner’s medical needs unless they act
wantonly, see Estelle, 429 U.S. at 104, and whether an
official’s conduct “can be characterized as ‘wanton’ depends
upon the constraints facing [him],” Wilson, 501 U.S. at 303.
The Court has also told us that, even if an official knows of
a substantial risk, he’s not liable “if [he] responded
reasonably.” Farmer, 511 U.S. at 844.

     What is reasonable depends on the circumstances, which
normally constrain what actions a state official can take. This
case is a fine example. Peralta rests his claim on having to
wait for dental care, but prisons are a particularly difficult
place to provide such care. Security concerns dictate that
only one prisoner be in the examination room at a time, even
if there’s more than one chair, and that no prisoner be left
alone, lest he try to use dental tools as weapons. Further
8                   PERALTA V. DILLARD

exacerbating the problem, only emergency cases can be seen
when the prison is in lockdown, and dentists can’t accept
prisoners’ complaints at face value, as inmates often try to
jump the line by exaggerating their symptoms.

    These challenges aside, there simply weren’t enough
dentists at Lancaster to provide every prisoner with dental
care on demand. The ratio of dentists to prisoners was less
than half what the state said it should be, there were no office
technicians or dental hygienists and, on many occasions,
Brooks had no dental assistant. Peralta doesn’t argue that
Brooks was responsible for these constraints. Nor could he,
since Brooks had no control over the budget.

    Peralta would have had the jury ignore that there was no
money or staff available to treat him immediately, and hold
Brooks personally liable for failing to give Peralta care that
Brooks would have found impossible to provide. Peralta
claims that this approach is compelled by our decisions in
Jones v. Johnson, 781 F.2d 769 (9th Cir. 1986), and Snow v.
McDaniel, 681 F.3d 978 (9th Cir. 2012). In Jones, we
reversed a district court’s dismissal of a pretrial detainee’s
deliberate indifference claims because we found “no other
explanation in the record than the budget concerns” for
denying treatment, and “[b]udgetary constraints . . . do not
justify cruel and unusual punishment.” 781 F.2d at 771. In
Snow, we reversed a district court’s grant of summary
judgment in favor of prison officials who delayed an inmate’s
surgery, partially due to a lack of resources, because the
desire to avoid paying for a surgery is an “improper motive[]”
for delaying it. 681 F.3d at 987.

   As an en banc court, we’re not bound by either decision.
Even if we were, it wouldn’t help Peralta. In Jones and
                    PERALTA V. DILLARD                       9

Snow, plaintiffs sought both money damages and injunctions.
Neither case dealt with jury instructions; the question in both
was whether the case could proceed at all.

    Lack of resources is not a defense to a claim for
prospective relief because prison officials may be compelled
to expand the pool of existing resources in order to remedy
continuing Eighth Amendment violations. See LaMarca v.
Turner, 995 F.2d 1526, 1536–39, 1542 (11th Cir. 1993)
(prison official wouldn’t be personally liable if he did
everything he could, but prisoner could get an injunction
against official in his official capacity); see also Watson v.
City of Memphis, 373 U.S. 526, 537 (1963) (rejecting
argument that city couldn’t desegregate parks because of
budgetary concerns); Wright v. Rushen, 642 F.2d 1129, 1134
(9th Cir. 1981) (“[C]osts cannot be permitted to stand in the
way of eliminating conditions below Eighth Amendment
standards.”). A case seeking prospective relief thus can’t be
dismissed simply because there is a shortage of resources.

    Damages are, by contrast, entirely retrospective. They
provide redress for something officials could have done but
did not. What resources were available is highly relevant
because they define the spectrum of choices that officials had
at their disposal. To the extent Jones and Snow can be read
to apply to monetary damages against an official who lacks
authority over budgeting decisions, they are overruled. Judge
Christen claims we are also overruling Spain v. Procunier,
600 F.2d 189 (9th Cir. 1979), but this is plainly not so. Spain
involved only injunctive relief; it has nothing to say about
damages, much less jury instructions. See id. at 192.

   Peralta seeks only damages. Allowing the jury to
consider the constraints under which an individual doctor
10                 PERALTA V. DILLARD

operates in determining whether he is liable for money
damages because he was deliberately indifferent doesn’t
mean that prisoners have no remedy for violations of their
Eighth Amendment rights. For example, although prisoners
can’t sue states for monetary relief, they can sue for
injunctions to correct unconstitutional prison conditions. See
Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 & n.10
(1989); see also Brown v. Plata, 131 S. Ct. 1910 (2011).

    Section 1983 also authorizes prisoners to sue municipal
entities for damages if the enforcement of a municipal policy
or practice, or the decision of a final municipal policymaker,
caused the Eighth Amendment violation. See City of St.
Louis v. Praprotnik, 485 U.S. 112, 138 (1988); Pembaur v.
City of Cincinnati, 475 U.S. 469, 481 (1986); Monell v. Dep’t
of Soc. Servs., 436 U.S. 658, 663 & n.7, 685–86 (1978). A
chronic shortage of resources may well amount to a policy or
practice for which monetary relief may be available under
Monell, but Monell claims can’t be brought against states,
which are protected by the Eleventh Amendment. See, e.g.,
Quern v. Jordan, 440 U.S. 332, 345 (1979). The prison
where Peralta was held was, of course, run by the state.

    Our dissenting colleagues would have the jury hold
Brooks liable for delay in treatment caused by shortages
beyond his control, on the theory that the state will wind up
paying any damages award. According to the dissenters, this
will give the state an incentive to improve prison conditions.
Christen Dissent 28–30; Hurwitz Dissent 43–45. But the
state is protected from monetary damages by the Eleventh
Amendment. We may not circumvent this protection by
imputing the state’s wrongdoing to an employee who himself
has committed no wrong. The dissenters attempt an end run
around the Eleventh Amendment by subjecting the state to
                    PERALTA V. DILLARD                      11

precisely the kind of economic pressure against which the
amendment protects it.

    We have no quarrel with the dissenters’ view that Peralta
may have suffered an Eighth Amendment violation. If the
state provided insufficient resources to accord inmates
adequate medical care, it could be compelled to correct those
conditions. See Plata, 131 S. Ct. 1910; Spain, 600 F.2d 189.
But such a lawsuit could provide no redress for past
constitutional violations because the state is protected by
sovereign immunity, “a fundamental aspect of the sovereignty
which the States enjoyed before the ratification of the
Constitution, and which they retain today.” Alden v. Maine,
527 U.S. 706, 713 (1999). Congress could abrogate this
immunity, but it has not done so for cases brought under
42 U.S.C. § 1983. See Quern, 440 U.S. at 345. We decline
to bring about by indirection what Congress has chosen not
to do expressly.

    An “intent requirement is either implicit in the word
‘punishment’ or is not; it cannot be alternately required and
ignored as policy considerations might dictate.” Wilson,
501 U.S. at 301–02. The Supreme Court has told us that it is.
A prison medical official who fails to provide needed
treatment because he lacks the necessary resources can hardly
be said to have intended to punish the inmate. The
challenged instruction properly advised the jury to consider
the resources Brooks had available in determining whether he
was deliberately indifferent.

       2. The Evidence Supporting the Jury Instruction

   Peralta also argues that the jury instruction shouldn’t have
been given, even if it was correct, because there was no
12                  PERALTA V. DILLARD

evidence that budgetary constraints actually affected his
treatment. Even if Peralta’s argument had merit, we would
reject it because he invited the error. See United States v.
Perez, 116 F.3d 840, 845 (9th Cir. 1997) (en banc). Peralta
himself first suggested that the evidence introduced at trial
supported an instruction about budgetary constraints. He
proposed an instruction that stated, as did the final
instruction, that “[e]vidence 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,” but his instruction would have required the jury not
to consider it. Peralta’s proposed instruction presupposed
that there was sufficient evidence about the lack of resources
at Brooks’s disposal. He can’t now turn around and
challenge the instruction containing some of the very text he
proposed, on the new theory that it’s unsupported by the
evidence.

    In any event, there’s plenty of evidence to support a
finding that a lack of resources prevented Brooks from
cleaning Peralta’s teeth sooner. For example, in the Inmate
Appeal Response, Brooks listed “staffing shortages beyond
our control” as an explanation for the “waiting list for dental
procedures.” There was also evidence that the prison had less
than half the number of dentists required by law, there were
no dental hygienists and dentists frequently had to work
without dental assistants.

   Peralta argues that there’s no proof connecting the staff
shortages to his lack of care. But Brooks testified that he
focused on a prisoner’s most pressing complaint because he
didn’t have enough time, and Fitter testified that staff
shortages limited the amount of time Brooks could have spent
                     PERALTA V. DILLARD                        13

with Peralta during any visit. Peralta argues that Brooks
could at least have put him on the emergency list, but the
decision whether to put an inmate on the emergency list calls
for a balancing of the inmate’s needs against the available
resources and the needs of other patients. Because resources
were limited, putting Peralta on the emergency list would
have delayed another prisoner’s treatment. It was up to the
jury to decide whether Brooks was deliberately indifferent by
failing to put Peralta on the emergency list, given “the
personnel, financial, and other resources available to him . . .
or which he . . . could reasonably obtain.”

    Peralta also argues that Brooks had the resources to
prescribe him additional (or different) pain medication. But
Brooks did prescribe Ibuprofen, and Peralta testified that it
helped alleviate his pain. There’s no evidence that Peralta
requested further medication, although other inmates did so
routinely, until months later when he next met with Brooks.
During this second visit, Brooks gave Peralta more Ibuprofen
and medicine to treat an infection. Brooks testified that he
didn’t see any signs of an infection during Peralta’s first visit.
The jury had sufficient evidence on which to base a finding
that a lack of resources caused any delay in providing dental
care. It would have been surprising if the jury had concluded
otherwise.

    B. Judgment as a Matter of Law

    Peralta also challenges the district court’s decision to
grant Fitter, the Chief Medical Officer, and Dillard, the Chief
Dental Officer, judgment as a matter of law. See Fed. R. Civ.
P. 50(a). Judgment as a matter of law is warranted “‘when
the evidence presented at trial permits only one reasonable
conclusion.’” Torres v. City of Los Angeles, 548 F.3d 1197,
14                  PERALTA V. DILLARD

1205 (9th Cir. 2008) (quoting Santos v. Gates, 287 F.3d 846,
851 (9th Cir. 2002)). We review de novo the district court’s
decision to grant judgment as a matter of law, drawing all
reasonable inferences in favor of Peralta. Id. at 1205–06.

    Supervisors aren’t vicariously liable for constitutional
violations under section 1983. Hunt v. Dental Dep’t,
865 F.2d 198, 200 (9th Cir. 1989). But they can be liable for
their own conduct. Redman v. Cnty. of San Diego, 942 F.2d
1435, 1445–46 (9th Cir. 1991) (en banc), abrogated on other
grounds by Farmer, 511 U.S. 825. Consequently, a prison
administrator can be liable for deliberate indifference to a
prisoner’s medical needs if he “knowingly fail[s] to respond
to an inmate’s requests for help.” Jett, 439 F.3d at 1098.

       1. Serious medical need

    A medical need is serious if “failure to treat a prisoner’s
condition could result in further significant injury or the
unnecessary and wanton infliction of pain.” Id. at 1096
(internal quotation marks omitted). Peralta’s claim arises
primarily out of the delay in cleaning his teeth. The mere
failure to provide a routine tooth cleaning doesn’t create a
serious medical need. Hallett v. Morgan, 296 F.3d 732,
745–46 (9th Cir. 2002). The Eighth Amendment “‘requires
neither that prisons be comfortable nor that they provide
every amenity that one might find desirable.’” Id. at 745
(quoting Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir.
1982)).

    But Peralta alleges that he was denied more than a routine
cleaning. He alleges that he had severe pain, infected teeth,
cavities and bleeding gums, and that a cleaning was necessary
to treat those medical conditions. We’ve held that the
                    PERALTA V. DILLARD                        15

“existence of chronic and substantial pain” indicates that a
prisoner’s medical needs are serious, McGuckin, 974 F.2d at
1060, and recognized that a delay as short as three months in
receiving necessary dental care can create a genuine issue of
material fact, Hunt, 865 F.2d at 200–01. Defendants haven’t
challenged these precedents, nor disputed before us that
Peralta has adequately alleged a serious medical need. We
thus assume, without deciding, that this is so.

        2. Fitter’s Subjective Intent

    As the Chief Medical Officer, Fitter was required to—and
did—sign Peralta’s second-level appeal. The case against
Fitter rests entirely on this signature. But the fact that Fitter
signed the form doesn’t mean that he knew about Peralta’s
complaints. To be liable, “the official must both be aware of
facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw
the inference.” Farmer, 511 U.S. at 837. Even if a prison
official should have been aware of the risk, if he “was not,
then [he] has not violated the Eighth Amendment, no matter
how severe the risk.” Gibson v. Cnty. of Washoe, 290 F.3d
1175, 1188 (9th Cir. 2002).

    Peralta hasn’t shown that Fitter should have been aware
of any risk to Peralta’s health, let alone that Fitter actually
was aware. Although he supervised the dental department,
Fitter isn’t a dentist, and he didn’t independently review
Peralta’s claims or read his chart before signing off on the
second-level appeal. Instead, he relied on the medical
opinions of the staff dentists who had investigated Peralta’s
complaints and already signed off on the treatment plan.
16                   PERALTA V. DILLARD

    Fitter understood his role to be largely administrative,
ensuring that the proper personnel had signed off on a
reasonable course of treatment, not second guessing staff
dentists’ medical judgments. And how could he have? Even
if he had looked at Peralta’s chart, he wouldn’t have been
able to tell whether Peralta had a serious medical need and
what the best course of treatment was. See Johnson v.
Doughty, 433 F.3d 1001, 1011 (7th Cir. 2006); Meloy v.
Bachmeier, 302 F.3d 845, 849 (8th Cir. 2002).

    Peralta argues that a reasonable jury could nevertheless
“conclude that by signing off on dental second-level appeals
and placing inmates back on the extensive waiting list
without reviewing their records . . . Fitter was . . . deliberately
indifferent to the serious risk posed by his actions to inmates
in Mr. Peralta’s position.” (emphasis added); see Redman,
942 F.2d at 1446. But Fitter’s decision to sign appeals that he
knew had already been reviewed by at least two qualified
dentists, when he had no expertise to contribute to that
review, isn’t a wanton infliction of unnecessary pain. See
Estelle, 429 U.S. at 104.

        3. Dillard’s Subjective Intent

    Unlike Fitter, Dillard is a dentist. Although he was
required to sign Peralta’s second-level appeal, he didn’t.
Instead, the appeal was signed by Dr. Cassim, a staff medical
doctor. Dillard didn’t review Peralta’s medical records or
meet with him prior to the filing of the lawsuit. Dillard
testified that he would authorize someone else to sign the
second-level responses on his behalf when he knew he would
be absent from the prison because appeals had to be
processed quickly. As there’s no evidence that Dillard
                    PERALTA V. DILLARD                        17

participated in Peralta’s treatment, Peralta hasn’t proven that
Dillard was aware of Peralta’s complaints.

    Peralta argues that the lawsuit itself put Dillard on notice,
but he cites no cases holding that the mere filing of a lawsuit
can create independent liability under section 1983.
Section 1983 complaints often allege numerous violations,
many of which turn out not to be supported by the evidence.
It would be unfair to make section 1983 defendants liable
merely for failing to sift through what are often rambling and
incoherent pro se complaints to determine the truth of each
allegation, even before discovery has begun.

    Peralta also argues that Dillard was deliberately
indifferent to the suffering of prisoners in Peralta’s position
by having a non-dentist sign inmate appeals and failing to
read them himself. To find for Peralta, a jury would have had
to conclude that Dillard’s behavior wasn’t merely negligent,
but wanton. See Estelle, 429 U.S. at 104. At most, Peralta
has shown that Dillard failed to follow required procedures.
But Dillard’s failure to follow such procedures isn’t, of itself,
enough to establish a violation of Peralta’s constitutional
rights. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir.
2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988)
(order). Peralta must prove both (1) that the failure to follow
procedure put inmates at risk and (2) that Dillard actually
knew that his actions put inmates at risk. See Gibson,
290 F.3d at 1188. There wasn’t enough evidence for any
reasonable juror to draw that conclusion.

    Like Fitter, Dillard understood his role to be
administrative. He didn’t think that the Chief Dental Officer
was required to interview prisoners or review medical
records, or that he should second-guess staff dentists’
18                 PERALTA V. DILLARD

diagnoses. Dillard knew that first-level appeals were signed
by two staff dentists, in this case Drs. Kumar and Brooks, and
that another doctor would have reviewed the appeal in his
place to make sure all of the proper procedures were
followed. Perhaps Dillard should have known that his actions
put prisoners at risk. But, “[i]f a person should have been
aware of the risk, but was not, then the person has not
violated the Eighth Amendment, no matter how severe the
risk.” Id. Because Peralta hasn’t shown that Dillard had
actual knowledge, judgment as a matter of law was
appropriate.

    In any event, any error was harmless. See Goulet v. New
Penn Motor Express, Inc., 512 F.3d 34, 42–43 (1st Cir. 2008).
Despite Peralta’s assertions to the contrary, there’s no way
that the jury could have found that Dillard and Fitter were
liable after finding that Brooks was not. See supra pp. 10–13;
cf. Corales v. Bennett, 567 F.3d 554, 570 (9th Cir. 2009);
Jackson v. City of Bremerton, 268 F.3d 646, 653–54 (9th Cir.
2001). Peralta hasn’t pointed to anything that Fitter or
Dillard could have done that Brooks couldn’t. Like Brooks,
Fitter and Dillard had no control over the budget. Not only
did they have no say over how much money was allocated to
the prison, but they couldn’t take money allocated for one
purpose and use it for another. They had no input into the
prison’s funding levels or even how many dental positions the
prison would have. Because the case against Dillard and
Fitter was identical to that against Brooks, by finding Brooks
not liable, the jury essentially resolved the question of
Dillard’s and Fitter’s liability as well.
                    PERALTA V. DILLARD                       19

       4. Law of the Case

     Finally, Peralta argues that the law of the case doctrine
precluded the district court from granting Fitter and Dillard
judgment as a matter of law because it had previously refused
to grant them summary judgment. But the denial of a
summary judgment motion is never law of the case because
factual development of the case is still ongoing. Denial of
summary judgment may result from a factual dispute at the
time. That dispute may disappear as the record develops. See
Shouse v. Ljunggren, 792 F.2d 902, 904 (9th Cir. 1986)
(citing Preaseau v. Prudential Ins. Co. of Am., 591 F.2d 74,
79–80 (9th Cir. 1979)).

    Peralta points to a passage in Federal Insurance Co. v.
Scarsella Bros., 931 F.2d 599 (9th Cir. 1991), indicating that
we overstated the rule when we said in Shouse that “the law
of the case doctrine does not apply to pretrial rulings.” Id. at
601 n.4 (internal quotation marks omitted). According to
Scarsella Bros., pretrial rulings can create binding law of the
case if the court “clearly intended to decide the issues at
hand.” Id.

    To the extent that Scarsella Bros. purported to hold that
the law of the case doctrine bars district courts from re-
considering pretrial rulings, we overrule it. Pretrial rulings,
often based on incomplete information, don’t bind district
judges for the remainder of the case. Given the nature of
such motions, it could not be otherwise. At the summary
judgment stage, for example, trial courts ask only whether
there could be a material issue of fact. They must draw all
inferences in the non-movant’s favor, see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 255 (1986), and rest their rulings
on the evidence that they think could be introduced at trial.
20                  PERALTA V. DILLARD

But when considering whether to grant judgment as a matter
of law, they look only at the evidence actually introduced at
trial.

    It makes no sense to say that a ruling that the plaintiff
could hypothetically prove some set of facts that would
support his claim prevents a district court from later finding
that the plaintiff had not, in fact, proven those facts. Nor to
say that if a district court realizes an earlier ruling was
mistaken, it can’t correct it, but must instead wait to be
reversed on appeal. All that would do is waste both the
courts’ and litigants’ time and resources. Thus, Wright and
Miller have observed that, although “[i]t is proper [for a
district judge] to refuse to reconsider a summary judgment
ruling[,] . . . [d]enial of summary judgment often is
reconsidered.” 18B Charles Alan Wright, Arthur R. Miller &
Edward H. Cooper, Federal Practice and Procedure:
Jurisdiction 2d § 4478.1 (2002). “Denial can easily be
followed,” as it was here, “by judgment as a matter of law or
dismissal after trial.” Id.

    Peralta’s case illustrates the point. The evidence
introduced at trial went beyond that presented in the motion
for summary judgment. See Old Person v. Brown, 312 F.3d
1036, 1039 (9th Cir. 2002). Dillard and Fitter moved for
summary judgment on the grounds that (1) Peralta hadn’t
presented expert evidence and (2) Dillard and Fitter weren’t
personally involved in Peralta’s care. The district court found
that the lack of an expert alone wasn’t enough to entitle Fitter
and Dillard to summary judgment, and that there were
material questions of fact as to whether Peralta had a serious
medical need, what kind of care Peralta received at the prison
and when Fitter and Dillard became aware of Peralta’s
complaints. The court noted, for example, that “[w]hether or
                   PERALTA V. DILLARD                      21

not Dillard personally signed the Second Level Appeal,
authorized someone else to sign on his behalf, or was wholly
unaware of the document is a question of fact.” But after
Peralta had presented his case, the court found that there was
no evidence that either doctor knew about Peralta’s alleged
condition. Therefore, the district court didn’t abuse its
discretion in granting Dillard and Fitter judgment as a matter
of law. See Milgard Tempering, Inc. v. Selas Corp. of Am.,
902 F.2d 703, 714–15 (9th Cir. 1990).

   AFFIRMED.



CHRISTEN, Circuit Judge, with whom RAWLINSON, M.
SMITH, and HURWITZ, Circuit Judges, join, and with
whom BYBEE, Circuit Judge, joins as to Parts I, II, and III,
dissenting in part and concurring in part:

    Twenty years ago, the United States Supreme Court
observed: “The Constitution does not mandate comfortable
prisons, but neither does it permit inhumane ones, and it is
now settled that the treatment a prisoner receives in prison
and the conditions under which he is confined are subject to
scrutiny under the Eighth Amendment.” Farmer v. Brennan,
511 U.S. 825, 832 (1994) (internal citations and quotation
marks omitted). The majority characterizes Peralta’s Eighth
Amendment claim as arising from a “several-month delay in
getting his teeth cleaned and an alleged failure to treat his
pain.” But Peralta’s claim is based on the defendants’ failure
to put him on the prison’s emergency dental care list for
conditions the prison’s dentist admitted qualified for
emergency care: severe pain, bleeding gums, and a bacterial
infection. Peralta remained on the prison’s routine care list
22                  PERALTA V. DILLARD

for 18 months. During that time, he developed periodontitis
and severe bone loss, and the prison’s treating dentist
acknowledged he suffered severe pain.

    The decision announced today overturns more than thirty
years of circuit precedent by holding that lack of resources is
a defense to providing constitutionally inadequate care for
prisoners. Because it will deny any remedy for prisoners who
have suffered injuries due to prison officials’ deliberate
indifference and eliminates an important incentive for
improving prison conditions, I respectfully dissent.

                              I.

    Peralta complained of cavities, bleeding gums, and severe
pain within days of arriving at California State Prison, Los
Angeles County (Lancaster). After about a month without
treatment, Peralta filed his first appeal, asking for treatment
for his infected teeth, cavities, and severe pain.

    Dr. Brooks, a treating dentist at the prison, interviewed
Peralta about four months later. He diagnosed Peralta with
periodontal disease, a bacterial infection that can cause the
gums to swell and bleed and can lead to the loss of the bone
that supports the teeth. Dr. Brooks testified that cleaning and
scaling is part of the treatment for periodontal disease.

    Dr. Brooks did not doubt that Peralta was in severe pain,
and his testimony confirmed that Peralta’s dental problems
entitled him to a spot on the emergency list. Working with
too few colleagues and too many patients to see, Dr. Brooks
did not treat Peralta’s periodontal disease or prescribe
antibiotics to treat Peralta’s infection. Instead, he asked
Peralta which tooth hurt the most and scheduled that tooth for
                    PERALTA V. DILLARD                       23

extraction three months later. Dr. Brooks did not examine
Peralta’s other teeth for cavities or infection.

    Peralta appealed again, stating that he had been left with
bleeding gums and infected teeth and was in severe pain. He
received a written response informing him that there were
long delays at the prison and that he was on a waiting list for
dental care.

    The dentists at Lancaster prison kept one waiting list for
patients needing routine care and another list for patients
needing emergency care. If a prisoner’s request was
classified as an emergency, he was entitled to receive
treatment ahead of others on the routine care list. Peralta
remained on the waiting list for routine dental care, and he
waited three more months for his second appointment.

    At this visit, Dr. Brooks told him that the tooth could be
saved after all, and Peralta decided against the scheduled
extraction. Again Dr. Brooks did not prescribe a course of
treatment for Peralta’s periodontal disease or clean his teeth.
He did not address Peralta’s concern that he had cavities.
Peralta received twelve Ibuprofen pills and some medication
for his infection, and eleven more months passed before Dr.
Brooks saw Peralta again.

    By the time of the third visit, Peralta was suffering from
advanced periodontitis. We do not need to take Peralta’s
word about the nature or severity of his condition; Dr. Brooks
testified to these observations and diagnosis at trial. He also
testified that Peralta’s gums were bleeding and that he had
sustained severe bone loss by the time of the third visit, which
occurred about 18 months after Peralta first asked for
24                  PERALTA V. DILLARD

treatment at Lancaster. This time, Dr. Brooks cleaned
Peralta’s teeth but still did not examine them for cavities.

    Peralta was transferred to Mule Creek State Prison less
than two months later. There, he received treatment for
periodontal disease and had seven cavities filled over the
course of several visits. Peralta testified that he was happy
with the dental care he received at Mule Creek.

    The defendants argued at trial that Dr. Brooks was
overworked and the prison understaffed. To anyone familiar
with the conditions of California’s prisons, it will come as no
surprise that prison officials there have inadequate resources.
See Brown v. Plata, 131 S. Ct. 1910, 1923 (2011)
(“Overcrowding has overtaken the limited resources of prison
staff; imposed demands well beyond the capacity of medical
and mental health facilities; and created unsanitary and
unsafe conditions that make progress in the provision of care
difficult or impossible to achieve.”). Nor is it surprising that
providers working in chronically understaffed and
underfunded prison medical and dental facilities are
sometimes unable to provide adequate care. Id. (describing
how overcrowding leads to “grossly inadequate provision of
medical and mental health care”).

    The defendants argued that they should be relieved of
liability for any violations of the Eighth Amendment because
of the lack of resources at Lancaster. Consistent with Ninth
Circuit precedent, Peralta proffered a jury instruction that
“the lack of staffing or other resources in the dental
department at the Lancaster facility is not a defense to
liability under Section 1983.” Though this had been a correct
statement of the law in the Ninth Circuit for approximately
thirty years, see Jones v. Johnson, 781 F.2d 769, 771 (9th Cir.
                    PERALTA V. DILLARD                      25

1986); Spain v. Procunier, 600 F.2d 189, 200 (9th Cir. 1979),
the district court instructed the jury that defendants were
entitled to rely on lack of resources as a defense to the
allegation that Peralta’s Eighth Amendment rights had been
violated.

                              II.

    The Eighth Amendment imposes upon prison officials the
duty to provide humane conditions of confinement; prison
officials must ensure that prisoners receive adequate food,
clothing, shelter, and medical care. Farmer, 511 U.S. at 832.
A prison official violates the Eighth Amendment when two
conditions are met: “First, the deprivation alleged must be,
objectively, sufficiently serious; a prison official’s act or
omission must result in the denial of the minimal civilized
measure of life’s necessities.” Id. at 834 (internal citations
and quotation marks omitted). Though the majority
characterizes Peralta’s case as being about “the delay in
cleaning his teeth,” in the end the majority recognizes that
even the defendants did not contest that Peralta’s medical
condition was “objectively, sufficiently serious.” Cf. Hunt v.
Dental Dep’t, 865 F.2d 198, 199–200 (9th Cir. 1989)
(allegation that prisoner suffered bleeding gums and broken
teeth for three months while waiting for dental care was
sufficient to state a claim for deliberate indifference under
§ 1983). The first prong of Farmer is not at issue on appeal.

    Farmer’s second requirement is that “a prison official
must have a sufficiently culpable state of mind.” Farmer,
511 U.S. at 834 (internal citations and quotation marks
omitted). “In prison-conditions cases that state of mind is one
of ‘deliberate indifference’ to inmate health or safety.” Id.
26                  PERALTA V. DILLARD

    Farmer examined the deliberate indifference standard and
made clear that a plaintiff need not demonstrate the prison
official intended harm, or even that the official knew harm
would result from the challenged conditions of confinement.
Id. at 835. Farmer held that a prison official may be liable
under the Eighth Amendment for deliberate indifference if
“the official knows of and disregards an excessive risk to
inmate health or safety; the official must both be aware of
facts from which the inference could be drawn that a
substantial risk of serious harm exists, and he must also draw
the inference.” Id. at 837. In other words, the official must
“consciously disregard a substantial risk of serious harm.” Id.
at 839 (internal quotation marks and alteration omitted).

    Today, our court overturns more than thirty years of
circuit precedent by holding that lack of resources is a
defense to a damages claim that a prisoner was denied the
constitutionally-required minimum threshold for adequate
care. The jettisoned circuit precedent dates back to 1979
when, writing for the Ninth Circuit, now-Justice Kennedy
explained that “the cost or inconvenience of providing
adequate facilities is not a defense to the imposition of a cruel
punishment.” Spain, 600 F.2d at 200. Our circuit reiterated
and reaffirmed this rule in Jones, 781 F.2d at 771, and, much
more recently, in Snow v. McDaniel, 681 F.3d 978, 984–87
(9th Cir. 2012).

    The plaintiff in Jones filed a § 1983 suit seeking damages
and injunctive relief against a county jail, jail doctors,
supervisory jail personnel, and county officials for deliberate
indifference to his medical needs. 781 F.2d at 770. He
alleged that he was refused a necessary hernia surgery
because of the county’s “tight budget.” Id. at 771. Our
circuit reversed the district court’s dismissal of the claims
                    PERALTA V. DILLARD                       27

against the individual defendants, holding that by alleging he
was denied necessary surgery due to budgetary constraints,
Jones pleaded sufficient facts to constitute deliberate
indifference. See id. at 771–72 (“We find no other
explanation in the record than the budget concerns for
denying Jones’s surgery. Budgetary constraints, however, do
not justify cruel and unusual punishment. . . . Because Jones
has properly alleged both that he had a serious medical need
and that the defendants were deliberately indifferent to that
need, he has adequately stated a cause of action under the
fourteenth amendment.” (emphasis added)). As in Jones,
Peralta’s case permits “no other explanation in the record
than the budget concerns” for denying treatment for his
“objectively, sufficiently serious” medical condition.

    In Snow, we reaffirmed the rule that lack of resources
cannot be a defense for the failure to provide constitutionally-
required medical care for prisoners. The prisoner in Snow
sued doctors and wardens of the Nevada Department of
Corrections for declaratory and injunctive relief and damages
under § 1983. 681 F.3d at 984. He alleged these officials
were deliberately indifferent to his medical needs by denying
him necessary hip surgery. Id. at 984–85. Citing Jones, we
concluded that the record supported the inference that the
defendants denied surgery to Snow due to “improper
motives”—namely, “to avoid eventually paying for it”—and
that this inference could show the defendants acted with
deliberate indifference. See id. at 987.

    The majority assures us that prisoners will still be able to
bring § 1983 claims if they seek injunctive relief and attempts
to distinguish Jones and Snow on the basis that Peralta sought
only money damages. But the principle in Jones and Snow
was first articulated in Spain, which drew no distinction
28                  PERALTA V. DILLARD

between the type of relief sought by the plaintiff: “The cost
or inconvenience of providing adequate facilities is not a
defense to the imposition of a cruel punishment.” 600 F.2d
at 200. The majority’s attempt to retroactively apply a
newly-minted distinction between claims for injunctions and
claims for damages to our decision in Spain is not
convincing. There is nothing tentative or limited about
Spain’s directive that “cost . . . is not a defense to the
imposition of a cruel punishment,” id., and, until today, we
have never suggested that cost may be a defense to Eighth
Amendment claims for damages. In fact, Snow suggests the
opposite. Snow specifically examined a plaintiff’s claim for
damages for defendants’ deliberate indifference to his serious
medical needs and rejected the cost defense in that context.
See Snow, 681 F.3d at 985–87. Snow’s claim for injunctive
relief to remedy a “custom or policy” of inappropriate
treatment—which the district court had dismissed as
moot—was analyzed separately. See id. at 991.

    The rule articulated in Spain, Jones, and Snow recognizes
that the constitutionally-required threshold for the humane
treatment of prisoners is impossible to safeguard if prison
officials are permitted to claim lack of resources as a defense.
In the case of California prisons, there can be no doubt that
chronic underfunding and overcrowding have plagued prison
administrators and the prison population for decades. See
Brown, 131 S. Ct. at 1923–26 (describing “exceptional”
overcrowding in California’s prisons and the resulting
inability to provide minimal, adequate medical care to
prisoners). The majority’s decision will effectively prevent
prisoners from bringing suits for damages against prison
officials who have violated their Eighth Amendment rights by
demonstrating deliberate indifference to serious medical
needs: those who actually control prison budgets are immune
                       PERALTA V. DILLARD                             29

from damage suits, Tenney v. Brandhove, 341 U.S. 367,
376–79 (1951) (providing absolute immunity for state
legislators); and prison officials responsible for substandard
care or conditions will be shielded by the newly-announced
“lack of resources” defense.1 Under the lack of resources
defense, even prisoners who suffer grievous injury will be left
with no recourse at all—what good is prospective injunctive
relief to a prisoner whose appendix has burst? The concern
that holding prison officials personally liable would be unfair
overlooks the reality that California indemnifies employees
for torts committed within the scope of their employment,2
and pays the cost of their defense.3

    The majority suggests that I seek an end run around the
Eleventh Amendment by subjecting the state to financial
pressure to avoid cruelly and unusually punishing its
prisoners. But the state’s decision to indemnify Dr. Brooks
was voluntary. Without the ability to seek damages,
prisoners who sustain injuries from overcrowding and
underfunding will be denied any meaningful form of relief,
even for grievous violations of the Eighth Amendment. As
Judge Hurwitz persuasively explains, California’s freely-
assumed obligation to its employees does not change this
simple fact. If anything, the new distinction between claims
for damages and claims for injunctive relief is an end run
around the congressional directive embodied in 42 U.S.C.


 1
   The majority suggests that a prisoner could pursue a Monell claim for
damages against a municipal entity. But municipal entities do not operate
state prisons.
 2
     Cal. Gov’t Code § 825.
 3
     Cal. Gov’t Code §§ 825, 995.
30                  PERALTA V. DILLARD

§ 1983 that there should be redress when constitutional rights
are violated. Simpson v. Thomas, 528 F.3d 685, 692 (9th Cir.
2008) (“Congress’s purpose in enacting § 1983 was to create
a novel civil remedy for violation of established
constitutional rights.” (citation and internal quotation marks
omitted)).

    Another overlooked reality is that the majority of cases in
which a prisoner successfully proves a violation of his
constitutional rights result in low damage awards for the
prisoner. See Woods v. Carey, 722 F.3d 1177, 1182 n.6 (9th
Cir. 2013) (quoting Margo Schlanger, Inmate Litigation,
116 Harv. L. Rev. 1555, 1603 (2003) (“[T]he mean damages
for cases won at trial by inmate civil rights plaintiffs was
$18,800, and the median was a mere $1000.”)). Even small
damage awards can affect substantial change in prison
conditions; yet the rule announced today eliminates this
modest, but important, incentive.          Owen v. City of
Independence, Mo., 445 U.S. 622, 651 (1980) (“Moreover,
§ 1983 was intended not only to provide compensation to the
victims of past abuses, but to serve as a deterrent against
future constitutional deprivations, as well.”).

                             III.

    The district court’s jury instruction should not have been
given, even under the newly-announced lack of resources
defense, because it was not supported by the evidence and it
was misleading; the evidence did not show that a lack of
resources had anything to do with Brooks’ failure to place
Peralta on the emergency care list. See Clem v. Lomeli,
566 F.3d 1177, 1181 (9th Cir. 2009) (“[J]ury instructions
must fairly and adequately cover the issues presented, must
                         PERALTA V. DILLARD                                 31

correctly state the law, and must not be misleading.” (internal
quotation marks omitted)).

    There is no real question about whether the prison was
understaffed; in fact, it was so understaffed that Dr. Brooks
testified that the bulk of his workday was spent treating
patients on the emergency care list.4 He was only able to see
patients on the routine care list if there was any time
remaining at the end of the day. The net effect was that
prisoners on the routine care list waited about twelve months
before receiving any care.

    Because those on the routine care list only saw a care
provider if there was any time remaining at the end of the
day, the existence of the emergency care list is critical to the
outcome of this case. Dr. Brooks testified that the particulars
of Peralta’s conditions—including bleeding gums and severe
pain—would qualify as a dental emergency that entitled
prisoners to be placed on the emergency care list. The Chief
Dental Officer at the prison, Dr. Dillard, also testified that
complaints of tooth pain and bleeding gums were given
higher priority than routine cleanings. Yet Peralta was never
moved to the emergency care list, and the defendants did
nothing to rebut the evidence that the prison’s overextended
staff would have more promptly provided dental care to
Peralta if he had been given a spot on that list. The district
court’s instruction was unsupported and misleading because
defendants offered no evidence to show that lack of funding


 4
   That the staff was over-committed cannot be disputed. As the majority
notes, Dr. Dillard testified that state policy called for a ratio of one dentist
for every 950 prisoners, but the inadequate resources allocated to
Lancaster left the prison with a ratio as high as one dentist to every 1,500
prisoners.
32                    PERALTA V. DILLARD

had anything to do with the failure to move Peralta from the
routine care list to the emergency care list.

    The majority suggests Peralta invited error by proffering
a jury instruction that directed the jury to disregard evidence
of understaffing and a lack of resources at the prison. This
argument is premised on the assertion that “Peralta’s
proposed instruction presupposed that there was sufficient
evidence about the lack of resources at Brook’s disposal.”
This mischaracterizes Peralta’s argument. Peralta’s proffered
instruction merely stated that the jury had heard evidence that
the prison was understaffed, which they had, and instructed
the jury that this lack of resources was not a defense to a
claim of deliberate indifference. The instruction actually
given to the jury turned the proffered instruction upside
down. Peralta’s proffered instruction was a correct statement
of the law; he did not invite any error.5

    Without support from the record, the majority also asserts
that placing Peralta on the emergency care list would have
inevitably delayed another prisoner’s treatment. This is
speculation. The record reveals nothing about whether or
how patients on the emergency care list were triaged, or the
order in which prisoners on the emergency care list were
treated. What we do know is that Peralta would have
received care more promptly if he had been moved from the
routine care list to the emergency care list because Dr. Brooks
was only able to serve prisoners on the routine care list if
there was any time left over at the end of each day. The


     5
     Error is only invited when the objecting party (1) proposed the
allegedly flawed jury instruction; and (2) intentionally waived a known
right by doing so. United States v. Perez, 116 F.3d 840, 845 (9th Cir.
1997) (en banc).
                    PERALTA V. DILLARD                       33

majority concedes that this was the way the emergency care
list worked by noting that prisoners sometimes try to “jump
the line” by exaggerating symptoms. Peralta wasn’t asking
for special consideration. He was asking only that he be
placed on the emergency list like other inmates with
qualifying dental conditions, rather than waiting months on
the routine care list until it was discovered he had
periodontitis and severe bone loss.

                              IV.

    Before the case went to the jury, the district court entered
a directed verdict in favor of Drs. Fitter, the chief medical
officer, and Dillard, the chief dental officer. As to Dr.
Dillard, the district court found that “[t]here is no evidence
here that [Dr. Dillard] had actual knowledge of a serious
medical condition. . . . At most, he was negligent in the
discharge of his duties.” The district court similarly found
that there was “no evidence in the record that Dr. Fitter was
in fact aware of a serious medical condition which he then
treated with deliberate indifference. . . . At most, his conduct
was negligent.” The district court ruled that Dr. Fitter was
entitled to qualified immunity but did not make a comparable
ruling regarding Dr. Dillard.

    I join the majority in affirming the dismissal of Peralta’s
claims against Dr. Fitter, but I disagree with the majority’s
conclusion that a directed verdict was appropriate on Peralta’s
claims against Dr. Dillard. As the supervising dentist, Dr.
Dillard testified that he was required by California law to
conduct second level appeals. See 15 Cal. Code Reg.
§ 3084.7(d)(2). Dr. Dillard also testified that he was the only
supervisor with the expertise to determine whether the first
level response to an inmate’s complaint was proper. But Dr.
34                  PERALTA V. DILLARD

Dillard testified that it was his practice to authorize someone
else to sign second level responses on his behalf when he was
to be absent in order to process appeals quickly. Dr. Dillard
conceded that prison staff were able to get extensions to
review appeals, but he testified that “no one likes to be late on
appeals because it doesn’t look good and the warden doesn’t
favor that.” Apparently to avoid an untimely response that
wouldn’t look good, Dr. Dillard did not conduct or sign
Peralta’s second level appeal, nor was it even signed by a
dentist. Instead, Dr. Dillard arranged for a prison physician
to review the dental appeals in his place. Dr. Dillard never
met or examined Peralta, or looked at Peralta’s dental
records, until after Peralta filed his lawsuit.

    The majority holds that Dr. Dillard’s failure to review
Peralta’s appeal—an obligation conferred upon him by
California law—shields him from liability. Unchecked, this
rule will allow care providers to defeat claims of deliberate
indifference by arguing that they had no actual knowledge of
the prisoner’s condition, even if that lack of knowledge is the
result of failing to perform duties expressly assigned to them.
The majority not only charts a path that permits prison
officials to escape liability by arguing that they have
inadequate funds to provide emergency care to inmates, it
condones an escape hatch from liability available to officials
willing to look the other way or who fail to perform assigned
duties that might cause them to gain actual knowledge of an
inmate’s condition. Neither circuit nor Supreme Court
authority permits such a result.

    In Farmer, the Supreme Court rejected concerns that
prison officials could escape liability by “ignor[ing] obvious
dangers to inmates,” reasoning that a plaintiff need only show
the “official acted or failed to act despite his knowledge of a
                    PERALTA V. DILLARD                        35

substantial risk of serious harm.” Farmer, 511 U.S. at 842.
A prisoner is not required to show that an official intended for
harm to occur, or that the official had actual knowledge that
harm would occur, to show that the Eighth Amendment has
been violated. Id.

     Judgment as a matter of law is only appropriate if no
reasonable juror could find in Peralta’s favor. See El-Hakem
v. BJY Inc., 415 F.3d 1068, 1072 (9th Cir. 2005). Here, a
reasonable jury could conclude that some Lancaster
prisoners’ emergency dental problems would go unaddressed
if the only staff dentist qualified to review first level appeals
did not actually review them. Dr. Dillard knew he was
obligated to review the first level appeals, and he knew he
was the only staff dentist qualified to do so. On this record,
a jury could conclude that Dr. Dillard did not fulfill his
obligations and consciously disregarded a substantial risk of
serious harm to the dental needs of prisoners at Lancaster.
The law does not require that Dr. Dillard intended harm to
result. Judgment as a matter of law was inappropriate.

                               V.

    “A prison that deprives prisoners of basic sustenance,
including adequate medical care, is incompatible with the
concept of human dignity and has no place in civilized
society.” Brown, 131 S. Ct. at 1928. “If government fails to
fulfill this obligation, the courts have a responsibility to
remedy the resulting Eighth Amendment violation.” Id.

     The decision announced today overturns more than thirty
years of circuit precedent by holding that a lack of resources
is a defense to providing constitutionally inadequate care for
prisoners. It effectively eliminates § 1983 suits for damages
36                     PERALTA V. DILLARD

against prison officials, denies relief to those prisoners who
have already suffered injuries, even when they are grievous,
and permits prison officials to escape liability by failing to
perform job duties imposed by law. For these reasons, I
respectfully dissent.



HURWITZ, Circuit Judge, with whom RAWLINSON, M.
SMITH, and CHRISTEN, Circuit Judges, join, and with
whom BYBEE, Circuit Judge, joins as to Parts I and II,
dissenting in part and concurring in part:

    The majority opinion has something of a seductive
quality. It pits Peralta, a jailhouse lawyer, against Dr.
Brooks, an overworked dentist. The case involves dental
care, an amenity not available to large portions of the law-
abiding population. Given the majority’s characterization of
the dramatis personae and the issue, it is not difficult to
predict the result.

    But, of course, this case is really not about just Peralta
and Dr. Brooks. Nor is it about an alleged constitutional right
to dental care.1 Rather, this case is before the en banc court
because it involves, in the words of Federal Rule of Appellate
Procedure 35(a)(2), a “question of exceptional importance.”
That question is whether a state can shield itself from the
consequences of denying constitutionally required medical


  1
     The majority suggests that Peralta sued because his teeth were not
cleaned. Maj. Op. at 5–6, 14. Judge Christen’s dissent rightly dismisses
this suggestion. Christen Diss. at 21–22. Given that there is no clearly
established right to teeth cleaning, the opinion could have dismissed such
a claim on qualified immunity grounds.
                    PERALTA V. DILLARD                       37

treatment to those it incarcerates by deliberately choosing not
to appropriate sufficient funds for that treatment.

    The majority effectively holds that a state can first choose
to underfund the medical treatment of its wards, and then
excuse the Eighth Amendment violations caused by the
underfunding. Today’s decision thus not only forecloses
relief to inmates who suffer cruel and unusual punishment,
but also encourages future constitutional violations. I
respectfully dissent.

                               I

    Peralta asserted Eighth Amendment claims against three
defendants—Dr. Brooks (the treating dentist), Dr. Dillard (the
Chief Dental Officer), and Dr. Fitter (the Chief Medical
Officer). Because only the claim against Dr. Brooks went to
the jury, the instruction to consider the financial resources
made available to the prison system by the State of California
applies to that claim alone. But, the history of the claims
against the other two defendants is nonetheless instructive.

    The district court determined that Dr. Fitter had qualified
immunity, and directed a judgment in his favor; the court did
not reach the issue of qualified immunity as to Dr. Dillard,
finding that Peralta had not established a prima facie case of
deliberate indifference and also issuing a judgment as a
matter of law on his behalf. Dr. Brooks, however, did not
assert qualified immunity. Thus, the “resources” jury
instruction only comes into play in cases in which qualified
immunity has not been granted and in which the district court
finds sufficient evidence of an Eighth Amendment violation
to submit the claim to a jury. See Maj. Op. at 11 (“We have
no quarrel with the dissenters’ view that Peralta may have
38                  PERALTA V. DILLARD

suffered an Eighth Amendment violation.”). The majority
thus holds that even if a plaintiff makes out a prima facie
Eighth Amendment violation, an agent of the state may
nonetheless justify cruel and unusual punishment by claiming
that the state itself caused the problem by withholding the
resources necessary to provide appropriate medical care.

     This turns the law upside down. A state official inflicts
cruel and unusual punishment by exhibiting deliberate
indifference to a prisoner’s serious medical needs. Estelle v.
Gamble, 429 U.S. 97, 103–04 (1976). Deliberate indifference
in turn requires subjective culpability—the official must
know of and disregard an excessive risk to inmate health.
Farmer v. Brennan, 511 U.S. 825, 837–38 (1994). Although
the Supreme Court has left open whether fiscal constraints are
a defense to an Eighth Amendment claim, in doing so Justice
Scalia aptly noted that “it is hard to understand how” funding
issues “could control the meaning of ‘cruel and unusual
punishments’ in the Eighth Amendment.” Wilson v. Seiter,
501 U.S. 294, 301 (1991). Four justices went even further,
criticizing the Wilson majority for even “leav[ing] open the
possibility, for example, that prison officials will be able to
defeat a § 1983 action challenging inhumane prison
conditions simply by showing that the conditions are caused
by insufficient funding from the state legislature rather than
by any deliberate indifference on the part of the prison
officials.” Id. at 311 (White, J., concurring in the judgment).

   Until today, the law of this Circuit was that “budgetary
constraints . . . do not justify cruel and unusual punishment.”
Jones v. Johnson, 781 F.2d 769, 771 (9th Cir. 1986); accord
Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012). The
majority overrules Jones and Snow and holds that an official
does not act with deliberate indifference if he (a) lacks the
                   PERALTA V. DILLARD                     39

“resources” to treat an inmate and (b) is sued for money
damages. Maj. Op. at 8–10. But, the Eighth Amendment
prohibits all cruel and unusual punishments, not simply those
inflicted by officials of states with well-funded prison
medical systems. More importantly, there are likely no such
states. See Andrew P. Wilper et al., The Health and Health
Care of US Prisoners: Results of a Nationwide Survey,
99 Am. J. Pub. Health 666, 669–71 (2009). Today’s opinion
therefore renders damages suits by inmates who suffer
grievous injuries as a result of constitutionally forbidden
indifference all but impossible in practice. In every case in
which state actors are sued for failing to provide minimal
medical care—even those cases involving loss of life or
serious permanent injury—the defense will be lack of
resources, and that defense will almost surely succeed.

    This will encourage further constitutional violations: If
states do not have to pay damages for depriving inmates of
the level of care required to avoid violating the Eighth
Amendment, there will be little reason to increase
appropriations for prisoner care.

                             A

    Not to worry, the majority says. Although Dr. Brooks can
assert a lack of resources defense, that defense will not be
available to those who fail to request sufficient resources.
Maj. Op. at 10–11. But again, in reality, no such defendants
will exist. Every putative defendant will be able to honestly
plead poverty.

    Wardens, medical supervisors, and staff doctors have no
control over California’s prison budget, which contains “line
items” for prison medical, mental health, and dental care.
40                  PERALTA V. DILLARD

Budget Act of 2013, Assemb. B. 110, 2013 Reg. Sess.,
§ 2.00, No. 5225-002-0001 (Cal. 2013) (allocating prison
medical funding); see also id. § 32.00 (limiting departmental
expenditures to the appropriated amount); Cal. Gov’t Code
§ 13324 (prohibiting expenditures in excess of a department’s
budget). Prison officials may only spend in excess of the
Department of Corrections and Rehabilitation’s budget if so
ordered by a court-appointed receiver. Cal. Assemb. B. 110,
§ 2.00, No. 5225-002-0001; see Plata v. Schwarzenegger, No.
C01-1351 TEH, 2005 WL 2932253 (N.D. Cal. Oct. 3, 2005).
The entities that control California’s prison budget—the
receiver and the state legislature—are immune from damages
suits. Bogan v. Scott-Harris, 523 U.S. 44, 49 (1998)
(providing absolute immunity for state legislators); Mosher
v. Saalfeld, 589 F.2d 438, 442 (9th Cir. 1978) (granting
absolute quasi-judicial immunity for receivers). And a suit
for damages against the state itself is barred by sovereign
immunity. Edelman v. Jordan, 415 U.S. 651, 676 (1974).
Thus, even accepting the majority’s limitation of its rule,
there is really no one left to sue.

                               B

    The majority’s alternative answer is that lack of resources
is not a defense to a suit for injunctive relief. Maj. Op. at 9.
But injunctive relief provides no comfort to an inmate who
loses a limb because of untreated diabetes. For such
constitutional violations, “it is damages or nothing.” Bivens
v. Six Unknown Named Agents of Fed. Bureau of Narcotics,
403 U.S. 388, 410 (1971) (Harlan, J., concurring in the
judgment). Indeed, even for prisoners not yet injured by
constitutionally deficient conditions, history counsels
skepticism about the utility of injunctive relief. See Brown v.
Plata, 131 S. Ct. 1910, 1923–28 (2011) (documenting
                       PERALTA V. DILLARD                             41

California’s failure, in the face of multiple remedial
injunctions, to improve prison medical care).2

    More importantly, the majority’s distinction between
damages and injunctive relief finds no support in the Eighth
Amendment. Cruel and unusual punishment violates the
Eighth Amendment regardless of the inmate’s prayer for
relief. But, in the eyes of the majority, refusing to treat an
inmate because of budget constraints is cruel and unusual
when an inmate requests equitable relief, but somehow not so
when he requests monetary relief.

     The majority has thus made injunctive relief the default
remedy for Eighth Amendment violations. The law is
precisely to the contrary. Rather, “[a] damages remedy
against the offending party is a vital component of any
scheme for vindicating cherished constitutional guarantees
. . . .” Owen v. City of Independence, 445 U.S. 622, 651
(1980). Moreover, Congress has warned that federal courts
should rarely issue equitable relief in prison condition cases,
Prison Litigation Reform Act, 18 U.S.C. § 3626(a)(1)(A), and
the Supreme Court has often emphasized the same, see e.g.,
Farmer, 511 U.S. at 846–47; Turner v. Safley, 482 U.S. 78,
84–85 (1987); Bell v. Wolfish, 441 U.S. 520, 562 (1979);
Procunier v. Martinez, 416 U.S. 396, 404 (1974).


   2
     Obtaining equitable relief before one suffers permanent injury can
require herculean efforts. A prisoner first has to exhaust administrative
remedies. 42 U.S.C. 1997e(a). Then, a typically pro se litigant must
either prevail in court or receive a favorable settlement. “Of 55,376
inmate civil rights cases that ended in 2000, 49,492 were coded as pro se.
Of these, 1411 (2.85%) were coded as having settled; 491 (0.99%) were
coded as having gone to trial; 52 (10.59% of trials) were coded as ending
in a trial victory for the plaintiff.” Margo Schlanger, Inmate Litigation,
116 Harv. L. Rev. 1555, 1610 n.158 (2003).
42                  PERALTA V. DILLARD

    The majority thus today runs roughshod over the general
presumption in favor of legal remedies over equitable relief.
“[I]t is axiomatic that a court should determine the adequacy
of a remedy in law before resorting to equitable relief. Under
the ordinary convention, the proper inquiry would be whether
monetary damages provided an adequate remedy, and if not,
whether equitable relief would be appropriate.” Franklin v.
Gwinnett Cnty. Pub. Sch., 503 U.S. 60, 75–76 (1992); see
also Carey v. Piphus, 435 U.S. 247, 256–57 (1978) (“To the
extent that Congress intended that awards under § 1983
should deter the deprivation of constitutional rights, there is
no evidence that it meant to establish a deterrent more
formidable than that inherent in the award of compensatory
damages.”); Bivens, 403 U.S. at 395 (“Historically, damages
have been regarded as the ordinary remedy for an invasion of
personal interests in liberty.”). By denying inmates an
adequate remedy at law, the majority inverts the basic
law/equity presumption.

                              II

    In the end, the only rational justification for today’s
decision is concern for the prison medical provider. That
solicitude is valid: With shoestring budgets, prison doctors
must triage medical care. “California prison wardens and
health care managers make the difficult decision as to which
of [various class actions] they will fail to comply with
because of staff shortages and patient loads.” Plata, 131 S.
Ct. at 1927 (quoting Receiver’s Report re Overcrowding,
Plata v. Schwarzenegger, No. C01-1351-TEH). It would, of
course, be unfair to subject a doctor to personal liability
because he could not immediately treat every inmate.
                       PERALTA V. DILLARD                             43

    But this case does not deal with the imposition of liability
on a doctor who was unable to see a patient. Peralta managed
to become Dr. Brooks’ patient, and the suit attacks decisions
made by Dr. Brooks from that point forward. Peralta v.
Dillard, 704 F.3d 1124, 1133–34 (9th Cir. 2013) (Berzon, J.,
dissenting). More importantly, the majority’s focus on the
personal liability of prison physicians ignores an important
reality—the state is in every respect the real party in interest
in a damages suit.

    California indemnifies employees for torts committed in
the scope of their employment.3 Cal. Gov’t Code § 825.
“Indemnification is ‘near[ly] universal’ among state and local
entities, either as a matter of official policy or practice.”
Peralta, 704 F.3d at 1136 (Berzon, J., dissenting) (quoting
Schlanger, supra, at 1676 n.391).

    California not only indemnifies prison officials named as
defendants in § 1983 actions, but also pays for their legal
defense. Cal. Gov’t Code §§ 825, 995. Yet, the majority


  3
    Every other state in our Circuit does the same. See Ariz. Rev. Stat.
§ 41-621; Idaho Code § 6-903; Mont. Code Ann. § 2-9-305; Nev. Rev.
Stat. § 41.0349; Or. Rev. Stat. § 30.285; Wash. Rev. Code § 4.92.075.
Although Alaska does not indemnify by statute, Alaska Stat.
§ 09.50.253(f), its collective bargaining agreement holds prison doctors
harmless for torts committed in the scope of their employment. Collective
Bargaining Agreement between the State of Alaska and the Alaska
Correctional Officers Association, Art. 29, available at
http://doa.alaska.gov/dop/fileadmin/LaborRelations/pdf/contracts/ACO
ACO2012-2013.pdf.         Hawaii authorizes, but does not mandate,
indemnification. Hawaii Rev. Stat. § 662-16. But it also apparently
protects prison doctors by agreement. Institutional, Health and
Correctional Workers Bargaining Unit 10 Agreement, § 63.18, available
at http://dhrd.hawaii.gov/wp-content/uploads/2012/12/BU-10-UPW-2007-
09-CBA.pdf.
44                    PERALTA V. DILLARD

allows the state—while funding and directing the
defense—simultaneously to argue that it would be unfair to
impose liability because of budgeting decisions made by the
state itself. If that defense succeeds, the only financial
winner is the very entity that created the problem in the first
place.4

    We should not countenance such a charade. When a state
funds its employee’s defense and indemnifies him against any
judgment, it ought not then assert that he is faultless because
the state is really to blame. The policy concern that no doctor
will work for a prison if he faces the possibility of personal
liability has already been addressed (and apparently
effectively so) by California’s promise to hold the physician
harmless. Having made the policy decision to incarcerate a
large number of wrongdoers, California should not be
allowed to avoid the Eighth Amendment consequences of that
decision by systematically underfunding medical care. At a
minimum, when a state attempts to do so, we should create an
exception to the judge-made collateral source rule and allow
the plaintiff to inform jurors that the state, not the individual
defendants, will pay any compensatory damages awarded.
See Bell v. Clackamas Cnty., 341 F.3d 858, 868 (9th Cir.
2003).

   Such an approach would not, as the majority suggests,
Maj. Op. at 11, violate state sovereign immunity. States have
no obligation to indemnify their employees for damages
imposed because of constitutional violations. But, when a


  4
    California will not indemnify an employee who acts outside of the
scope of employment. Cal. Gov’t Code § 825. But, no such situation is
presented here; all defendants clearly acted within the scope of their
employment and were defended and indemnified by the State.
                    PERALTA V. DILLARD                        45

state chooses to do so, the state agent should not be heard to
argue that the imposition of liability on him individually is
unfair. Section 1983 and the Constitution do not codify a
collateral source rule.

                              III

    Today’s decision, as Judge Christen’s dissent
convincingly demonstrates, is wrong on the record of this
case. But even if that were not so, the decision sweeps far too
broadly, effectively foreclosing any liability for permanent
injuries and deaths caused by the deliberate indifference of
state funding authorities. I therefore dissent from the
affirmance of the judgment in favor of Dr. Brooks.

    For the reasons set forth in Judge Christen’s dissent, I also
cannot join the majority opinion insofar as it affirms the
judgment as a matter of law in favor of Dr. Dillard
(pretermitting, as did the district court, any claim of qualified
immunity). As to Dr. Fitter, the majority correctly holds that
he was entitled to qualified immunity, as he relied on his
staff’s medical judgment, and I join its opinion on that score
alone.
