                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


MICHAEL CHESS,                           No. 12-16516
                 Plaintiff-Appellant,
                                           D.C. No.
                 v.                     2:07-cv-01767-
                                             DAD
J. DOVEY, Director of Corrections;
ABUL, Doctor of the CDC; MIDGE
MILLER, Nurse Practitioner; ROCHE,         OPINION
Medical Doctor of the CDC; JAMES,
Medical Doctor of CDC; DIAL,
Medical Doctor of CDC; G.
DUDLEY, Physician’s Assistant;
ANITA DAVID; M. FRENCH, Nurse
Practitioner; S. ABDUR-RAHMAN; T.
FELKER, Warden,
                Defendants-Appellees.


      Appeal from the United States District Court
         for the Eastern District of California
      Dale A. Drozd, Magistrate Judge, Presiding

                Argued and Submitted
      October 7, 2014—San Francisco, California

                  Filed June 25, 2015
2                         CHESS V. DOVEY

    Before: William A. Fletcher and Paul J. Watford, Circuit
       Judges, and Kevin Thomas Duffy, District Judge.*

                  Opinion by Judge W. Fletcher


                           SUMMARY**


                      Prisoner Civil Rights

    The panel affirmed the district court’s judgment, entered
following a jury verdict, in an action brought under 42 U.S.C.
§ 1983 by a California state prisoner who alleged that he was
denied constitutionally adequate medical care when members
of the prison’s medical staff denied him effective pain
medication.

    On appeal, plaintiff asserted that the magistrate judge
erred in instructing the jury to give deference to prison
officials in the adoption and execution of policies and
practices that in their judgment are needed to preserve
discipline and to maintain internal security.

    The panel first held that when a pro se civil litigant fails
to object to a jury instruction, the court should review the
instruction under the ordinary standard of review, rather than
for plain error, if the district court and opposing party were


    *
   The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                      CHESS V. DOVEY                         3

fully aware of the potential problem with, and would-be
objection to, the instruction.

    The panel held that the deference instruction should not
ordinarily be given in Eighth Amendment medical care cases
brought by prisoners. Rather, a trial judge in an Eighth
Amendment medical care case should only give the deference
instruction if one party’s presentation of the case plausibly
draws a connection between the security-based policy or
practice and the medical care decision at issue. Neither party
drew such a connection in this case. Nevertheless, although
the panel concluded that the jury instruction was error, it did
not reverse the judgment because defendants carried their
burden of showing that it was more probable than not that the
jury would have reached the same verdict had it been
properly instructed. The error therefore was harmless.


                         COUNSEL

Stephen Patrick Blake (argued), Alexis Coll-Very, Simpson
Thacher & Bartlett LLP, Palo Alto, California, for Plaintiff-
Appellant.

Thomas S. Patterson (argued), Supervising Deputy Attorney
General, Office of the California Attorney General, San
Francisco, California; Kamala D. Harris, Attorney General,
Jonathan L. Wolff, Senior Assistant Attorney General, Diana
Esquivel and Vickie P. Whitney, Deputy Attorneys General,
Office of the California Attorney General, Sacramento,
California, for Defendants-Appellees.
4                      CHESS V. DOVEY

                          OPINION

W. FLETCHER, Circuit Judge:

     Appellant Michael Chess brought this action under
42 U.S.C. § 1983 against eight members of the medical staff
at California’s High Desert State Prison, alleging that they
denied him constitutionally adequate medical care while he
was incarcerated there. Chess represented himself at trial.
Two Eighth Amendment claims of deliberate indifference
went to trial. As characterized in the final pretrial order, they
were (1) that “defendants denied [plaintiff] effective pain
medication; specifically, that defendants purportedly
discontinued plaintiff’s use of methadone solely because a
High Desert State Prison policy prohibit[ed] general-
population inmates from receiving that medication”; and
(2) that “defendants prescribed plaintiff medication, including
Tylenol, aspirin, niacin, and Naprosyn, knowing that those
drugs were harmful to his liver.” The jury returned a verdict
for defendants on both claims.

    Chess makes only one contention on appeal. He contends
that the magistrate judge erred in giving a jury instruction that
read in pertinent part:

        In determining whether the defendants
        violated the plaintiff’s rights as alleged, you
        should give deference to prison officials in the
        adoption and execution of policies and
        practices that in their judgment are needed to
        preserve discipline and to maintain internal
        security.
                      CHESS V. DOVEY                          5

This language is taken from a Ninth Circuit model instruction
based on Norwood v. Vance, 591 F.3d 1062 (9th Cir. 2010),
and is entitled, “Prisoner’s Claim [Regarding] Conditions of
Confinement/Medical Care.” See Ninth Cir. Model Civ. Jury
Instr. § 9.25 (2010 ed.). Chess did not object to the
instruction.

    We must first decide the standard of review that governs
Chess’s appellate challenge to the jury instruction. We hold
that when a pro se civil litigant fails to object to a jury
instruction, we will review the instruction under the ordinary
standard of review, rather than for plain error, if the district
court and opposing party were fully aware of the potential
problem with, and would-be objection to, the instruction. In
such circumstances, an objection would be tantamount to a
“pointless formality.” United States v. Payne, 944 F.2d 1458,
1464 (9th Cir. 1991).

    We must also decide whether the magistrate judge erred
in giving the challenged instruction. Contrary to the title of
the model instruction, we hold that the deference instruction
should not ordinarily be given in Eighth Amendment medical
care cases brought by prisoners. Rather, the instruction may
be given only when there is evidence that the treatment to
which the plaintiff objects was provided pursuant to a
security-based policy. That was not the case here. We
therefore hold that giving the instruction in this case was
error. However, because the error was harmless, we affirm
the judgment of the district court.
6                    CHESS V. DOVEY

            I. Facts and Procedural Background

             A. The Narcotics Policy at HDSP

    Chess was imprisoned in California’s High Desert State
Prison (“HDSP”) from November 21, 2006, until February 8,
2011. A prison policy in effect from sometime in 2006 to
sometime in 2007 (the precise dates are not specified in the
record) prohibited members of HDSP medical staff from
prescribing narcotic drugs to prisoners who were assigned to
general inmate housing. However, medical staff were
allowed to dispense narcotic drugs to prisoners while in the
prison’s infirmary, the Correctional Treatment Center
(“CTC”).

    Defendant Dr. Steven Roche, the medical director of the
prison at the relevant time, testified about the HDSP policy:

       [T]he policy was that we had narcotics
       available for use in the emergency room and
       in the infirmary. The issue was that we could
       not control narcotics on the yards. We didn’t
       have a process in place to document the use of
       narcotics. And so essentially the warden
       decided that he was not going to allow
       narcotics on the yard at all. If a patient
       needed narcotics, morphine, those kinds of
       things, then he would have to be admitted to
       the infirmary and given the narcotics in the
       infirmary or transferred to a different facility
       that had the ability to take care of him.

          And again, the problem with the narcotics
       was that these were valuable to inmates. I
                      CHESS V. DOVEY                         7

       mean they had a certain cash value depending
       upon the narcotic.         In addition, just
       inventorying the narcotics within the clinic
       itself was inadequate. The pharmacist at the
       time called the Board of Pharmacy because he
       was not able to verify who was using the
       narcotics that he was bringing out to the clinic
       at one point, and the Board of Pharmacy said
       that by pharmacy regulations, he did not have
       to provide narcotics if he didn’t know where
       they were going.

                    B. Evidence at Trial

    Chess had been transferred from another California state
prison to HDSP. He arrived with a variety of ailments,
including blindness in his left eye, hepatitis C,
hypertriglyceridemia (elevated levels of triglycerides), left
varicocele (enlargement of the scrotum vein), gallstones,
kidney stones, degenerative disc disease of the cervical spine,
bloody urine, and a seizure disorder. According to his
complaint, these ailments caused Chess to suffer cramps in
his lower extremities, sharp abdominal pain, uncontrolled
muscle twitching, headaches, skin rashes, loss of balance, and
constant pain. Prior to his transfer to HDSP, doctors at
California State Prison, Solano, had prescribed Klonopin (a
muscle relaxant), methadone, and other medications.

    Chess was assigned to the general population when he
arrived at HDSP, but as a new prisoner he was initially placed
in the CTC. While in the CTC, medical staff gave him
“tapering-off” doses of Klonopin until he was fully weaned
from the drug. Medical staff cut off his methadone without
any tapering. Chess was discharged from the CTC into the
8                     CHESS V. DOVEY

general prison population on December 26, 2006, a little
more than a month after his arrival at the prison.

    Chess testified that he suffered substantial pain while in
the CTC due to sudden withdrawal of his methadone:

       And yes, I did ask to be put back on
       methadone. I was on it for about four or five
       years before I went up there, and I have
       documentation that states from a liver
       specialist that it is not very harmful to your
       liver.

           They keep saying—they kept saying
       yesterday that they couldn’t give it to me
       because they didn’t allow it in general
       population, but the CTC, the Correctional
       Treatment Center where they had me, is not a
       general population. It’s like a little small
       hospital with single rooms. And the whole
       time I spent there was a nightmare. It was
       miserable. And I was in pain the whole time.
       And like I said, the [naproxen], the aspirin,
       multivitamins, I don’t have any idea why they
       gave those to me. That’s not a pain
       medication. And neither is folic acid. That’s
       a vitamin B. And they say they treated me for
       pain, which is not true.

          And the whole time I spent in there until
       the time they did put me in general
       population, I was in pain. And I don’t know
       what their real reason was, why they wouldn’t
                       CHESS V. DOVEY                           9

        treat me for pain, but they wouldn’t and they
        didn’t.

    After his placement in general population housing, Chess
repeatedly asked for methadone and complained of pain. He
filed numerous administrative grievances and frequently
visited the defendant doctors, nurses, and physician assistants.
The medical staff at HDSP never prescribed methadone,
despite Chess’s numerous requests and reiterated complaints
that his prescribed pain medication was inadequate.

    Eight members of HDSP medical staff were named as
defendants—four doctors, two nurse practitioners, and two
physician assistants. They all testified at trial. Chess testified
on his own behalf, but did not put on the stand any expert
witness or otherwise provide expert evidence to contradict
defendants’ testimony.

    Dr. Roche did not treat Chess directly but oversaw and
approved his treatment. He testified that there were
important medical reasons to take Chess off of methadone.
In response to a question from the judge, he explained:

        I think my staff at the time evaluated him
        appropriately, hospitalized him, and we[a]ned
        him off of his Klonopin. The problem with a
        combination of sedative drugs and a drug like
        methadone is [that] there are complications to
        this, side effects to it, including death.
        Methadone is a very complicated drug to
        administer and to monitor. . . . I would have
        to say that the combination that he was on
        [before coming to HDSP] was somewhat
        inappropriate.
10                   CHESS V. DOVEY

In response to a question from Chess, Dr. Roche testified:

       There are benefits to almost every medicine
       you can think of, but there are also risks to
       almost every medicine you can think of.

           For instance, that type of reasoning was
       why you were hospitalized when you first
       came [to HDSP] and you were taken off of
       your Klonopin and your methadone because
       they’re dangerous in that environment, and
       particularly in a patient like yourself with
       your compliance issues.

Dr. Roche described the narcotics policy at HDSP, as
indicated above, but except for his reference to the
dangerousness of Klonopin and methadone “in that
environment,” he never stated or even suggested that the
refusal to provide methadone to Chess was based on the
policy.

    Dr. Lino Dial provided initial treatment to Chess when he
arrived at HDSP. He saw Chess only once, immediately after
his arrival. According to the final pretrial order, the
following was undisputed:

       8. On November 22, 2006, defendant Dr. Dial
       examined plaintiff and evaluated his
       medications. 9. Plaintiff’s medications were
       adjusted to comply with HDSP policies. 10.
       From 2006 to 2007, HDSP had a policy to not
       provide methadone to patients in general
       population.    11.    Defendant Dr. Dial
                      CHESS V. DOVEY                        11

       prescribed plaintiff Naprosyn/Naproxen
       [Aleve] and aspirin to treat his pain.

On direct examination Dr. Dial did not mention HDSP’s
narcotics policy as a basis for ending Chess’s methadone
prescription. Instead, he testified that he ended it because of
the danger it posed to Chess:

       I remember stopping the medicine. Not every
       one, but some. And I heard earlier one of
       them is the methadone. . . . And there’s a
       reason for that. At that time people were
       dying from methadone. Not by the hundreds,
       but by the thousands.

Dr. Dial said there were two bases for his characterization of
methadone as posing a danger. He described a warning from
the U.S. Food and Drug Administration, and was about to
describe another when the judge cut him off, saying “we
don’t have a question.” On cross examination, defendants’
attorney described, one by one, all of the medical conditions
from which Chess suffered, and as to each one, asked whether
that condition was treated with methadone. Dr. Dial
answered “no” each time. The attorney then asked, “Was
your decision to discontinue Mr. Chess’s methadone
prescription based on the ‘no narcotics’ policy that was in
place at the present time?” Dr. Dial answered, “Correct.”

    Dr. Daniel James was involved in Chess’s initial
treatment in the CTC and in processing at least one of
Chess’s internal administrative appeals, but he had no
memory of treating Chess. He testified based solely on
Chess’s medical records. Dr. James mentioned methadone
only once, in response to questions by the judge:
12                   CHESS V. DOVEY

       Q: [T]here doesn’t appear to be any mention
       in your treatment notes about any gradual
       reduction or change in the methadone
       prescription like there was with the Klonopin.
       Why is that?

       A: I think that withdrawal from a narcotic
       doesn’t involve the same kind of risk of
       seizures is the main thing.

       Q: It seems like it’s not addressed at all.

       A: No, I can’t answer that. I’m not sure why
       it wasn’t. And I don’t have my whole
       records.

Dr. James never mentioned HDSP’s narcotics policy in his
testimony.

     Dr. Salahuddin Abdur-Rahman treated Chess several
times at HDSP. He was asked about two specific occasions
during which Chess was experiencing pain, and about the
appropriateness of methadone as treatment for the pain. The
first was on July 4, 2007, when Chess had been prescribed
gabapentin, a neuropathic pain reliever. Dr. Abdur-Rahman
was asked whether he saw anything that indicated “that he
needed something stronger, such as methadone.” He
answered, “I did not.” The second was on September 5,
2007, when Chess had been prescribed morphine for pain
after an upper gastrointestinal endoscopy. Dr. Abdur-
Rahman was asked whether he had “any information”
indicating that the morphine was “inadequate to address any
complaints of pain.” He answered, “I did not.” Then, as a
catch-all question, Dr. Abdur-Rahman was asked, “On all
                      CHESS V. DOVEY                        13

those occasions that you saw Mr. Chess or reviewed his
medical records, did you have any information from which
you could conclude that he required methadone or stronger
pain medication?” He answered, “I did not.” Dr. Abdur-
Rahman never mentioned HDSP’s narcotics policy in his
testimony.

    Mary Miller, a nurse practitioner, treated Chess on several
occasions during his time at HDSP. Ms. Miller first treated
Chess in the CTC, shortly after his arrival. According to a
stipulation in the pretrial order, “On November 22, 2006,
defendant nurse practitioner Miller examined plaintiff and
carried out defendant Dr. Dial’s orders.” Defendants’ counsel
asked, “Was there anything during your examination of Mr.
Chess on that first visit that indicated to you that he needed
methadone to address his complaints of pain?” She
answered, “No.” She was asked at two points later in her
testimony whether methadone was an appropriate treatment
for Chess. She answered “no” each time. Finally, she was
asked whether the prison’s narcotics policy was relevant to
her treatment decisions:

       Q: On all those occasions that you treated Mr.
       Chess, did you decide not to prescribe the
       methadone because of the “no narcotics”
       policy at the prison?

       A: No. I decided that because I didn’t think
       it was best for him.

    Melody French, another nurse practitioner, treated Chess
on several occasions. Methadone was mentioned three times
during her testimony. First, Ms. French testified that
methadone does not adversely affect liver function any more
14                    CHESS V. DOVEY

than any other medication. Second, she testified that Chess
had asked for methadone as treatment for the pain he was
suffering from his varicocele, and that she had refused. When
asked, “Why would you not treat his varicocele with
methadone?” she answered, “It’s not appropriate.” Finally,
she was asked a catch-all question:

       Q: On all those occasions that you either saw
       Mr. Chess or reviewed his medical records,
       was there any evidence from which you can
       conclude that methadone was indicated to
       treat any of his complaints?

       A: No.

Ms. French did not mention HDSP’s narcotics policy in her
testimony.

    Gilian Dudley, a physician assistant, met with Chess once
to address an administrative complaint and she treated him on
two occasions. In March 2007, she interviewed Chess in
connection with an administrative appeal. Nothing in Chess’s
medical record indicated to Ms. Dudley that he needed
methadone. In October 2007, she increased his dosage of
gabapentin. In November 2007, following his return from an
outside hospital, she continued a prescription of morphine
that had been initiated at the hospital. She testified that on
both occasions the medication she prescribed was sufficient
to treat Chess’s pain, and that methadone was not needed.
Ms. Dudley did not mention HDSP’s narcotics policy in her
testimony.

   Finally, Anita David, another physician assistant, treated
Chess on several occasions. One of them was in November
                      CHESS V. DOVEY                         15

2007, when she prescribed Chess decreasing doses of
morphine following his return from the outside hospital.
Methadone was mentioned only once in Ms. David’s
testimony, in connection with her treatment of Chess on April
2, 2007. She testified that Chess did not require methadone
for his pain on that occasion. Ms. David did not mention
HDSP’s narcotics policy in her testimony.

    Throughout his stay at HDSP, defendants continued to
provide non-narcotic painkillers to Chess. On at least two
occasions, they gave him a narcotic drug, morphine, for
specific conditions, but they never gave him methadone. It is
not entirely clear from the transcript if Chess was a patient in
the CTC when he was given morphine, but we infer that he
was. In their testimony, defendants attributed unnecessary
pain Chess might have experienced while he was at HDSP to
his “noncompliance.” It is undisputed that Chess often
refused to take the medication provided to him. Chess
acknowledged that he did not take naproxen at all, and
refused to continue taking gabapentin because, in his view,
these drugs were harmful to his liver.

    Chess complained on several occasions that the non-
narcotic pain medicine he received was damaging his liver.
Defendants testified, however, that the medications they
prescribed posed no harm to his liver. For example, Ms.
David testified that she did not worry that gabapentin would
harm Chess’s liver because it is “eliminated a hundred
percent through the kidney.” Defendants did acknowledge
one prescription that might have harmed Chess’s liver. Dr.
Mayer Horensten, whom Chess did not name as a defendant
and who did not testify, ordered a dosage of Tylenol that
could have harmed his liver if Chess had taken it as
16                    CHESS V. DOVEY

prescribed. It is unclear from the record, however, how
much, if any, Tylenol Chess took pursuant to the prescription.

                   C. The Jury Instruction

    The magistrate judge solicited the parties’ views on jury
instructions. Defendants proposed an instruction identical to
the Ninth Circuit model instruction entitled, “Prisoner’s
Claim [Regarding] Conditions of Confinement/Medical
Care.” See Ninth Cir. Model Jury Instr. § 9.25 (2010 ed.).
The proposed instruction, which was ultimately given,
described the elements of deliberate indifference and then
included the following language:

       In determining whether the defendants
       violated the plaintiff’s rights as alleged, you
       should give deference to prison officials in the
       adoption and execution of policies and
       practices that in their judgment are needed to
       preserve discipline and to maintain internal
       security.

This language was added to the model instruction in the wake
of our decision in Norwood v. Vance, 591 F.3d 1062 (9th Cir.
2010). See Ninth Cir. Model Civ. Jury Instr. § 9.25 cmt.

    Before approving the proposed jury instructions, the judge
asked Chess if he had reviewed them and was prepared to
state any objections. Chess answered that he had reviewed
them but was not prepared to object. The judge made it clear
that Chess should object at the next opportunity if he did not
like the instructions.
                      CHESS V. DOVEY                       17

    The next day, after defendants’ counsel argued in favor of
the instruction, the judge expressed misgivings about the
deference language. He stated:

           Now, I think I sort of know what you’re
       trying to touch upon in including that
       proposed language, and maybe that proposed
       language might be appropriate if the
       defendants in front of us were prison
       administrators who were trying to be—or who
       a plaintiff was trying to hold liable because of
       policies they had implemented.

           But how does that language apply to these
       defendants? They can’t take policy into
       consideration in deciding whether or not to
       provide constitutionally adequate medical
       care.

    Defendants’ counsel went back and forth with the judge
about the applicability of the deference language in the
circumstances of this case. The judge indicated that he was
“considering striking [the deference] language” and asked
Chess to weigh in again. Chess responded: “I don’t quite
understand exactly, but I don’t have any—I’m going to leave
that up to you.”

   Later that day, the judge raised the instruction issue once
more. He noted that the deference language was added to the
model instruction after our decision in Norwood, which was
a conditions of confinement case. But he thought “an
argument can definitely be made that [Norwood] does not
require the inclusion of that language when the question is an
Eighth Amendment adequate medical care claim as opposed
18                    CHESS V. DOVEY

to an Eighth Amendment excessive use of force or other
conditions of confinement claim.” He expressed skepticism
that it applied to medical care cases given that “[a] medical
care claim really is not a classic conditions of confinement
claim.” He indicated that if it were up to him, he might not
extend it to this case and speculated that the circuit court
might someday address the issue. Ultimately, however, he
approved the instruction because it was based on the Ninth
Circuit model instruction and because “it is at least arguable
in this context that we may be in that gray area where policy
and medical care or that medical care decisions have to at
least take into some account, to some degree, policy issues.”

             D. Verdict, Judgment, and Appeal

    After the judge denied defendants’ motion for judgment
as a matter of law, the jury returned a verdict for defendants,
upon which the judge entered judgment. Chess timely
appealed. We appointed counsel for Chess on appeal.

                   II. Standard of Review

     Defendants argue that we should not review Chess’s
challenge to the jury instruction because he waived it by
failing to make a timely objection in the trial court. Chess
argues that we should review his challenge de novo, or at
least for plain error. We hold, in the circumstances of this
case, that we should review the instruction de novo. Because
the judge comprehensively articulated the problem with the
instruction from Chess’s point of view, and because Chess, a
pro se litigant, effectively gave the judge his proxy, a formal
objection was unnecessary. Consequently, we hold that we
should review the jury instruction as if Chess had objected to
it. Because Chess contends that the instruction is an incorrect
                       CHESS V. DOVEY                         19

statement of the law, our review is de novo. See Clem v.
Lomeli, 566 F.3d 1177, 1180–81 (9th Cir. 2009). However,
we will not reverse the judgment against Chess if the error
was harmless. See id. at 1182.

    A brief overview of our past and present practice of
reviewing jury instructions will help explain our holding.
Federal Rule of Civil Procedure 51 requires that a “party who
objects to an instruction or the failure to give an instruction
must do so on the record, stating distinctly the matter
objected to and the grounds for the objection.” Fed. R. Civ.
P. 51(c)(1). When a party raises a contemporaneous
objection to a jury instruction, we review the jury instruction
either de novo or for abuse of discretion, depending on the
nature of the error. See Abromson v. Am. Pac. Corp.,
114 F.3d 898, 902 (9th Cir. 1997) (abuse of discretion review
of the trial court’s formulation of civil jury instructions);
Mockler v. Multnomah Cnty., 140 F.3d 808, 812 (9th Cir.
1998) (de novo review of civil jury instructions that misstate
the law).

    We approach unpreserved challenges differently. In the
past, we refused to review challenges to jury instructions in
civil cases where the party challenging the instruction failed
to raise a timely objection in the trial court. See Hammer v.
Gross, 932 F.2d 842, 847 (9th Cir. 1991) (en banc) (“This
court has . . . declared that there is no ‘plain error’ exception
in civil cases in this circuit.”). But even in those days, when
we “enjoyed a reputation as the strictest enforcer of Rule 51,”
id., we “acknowledged a limited exception to our strict
interpretation of Rule 51.” McGonigle v. Combs, 968 F.2d
810, 823 (9th Cir. 1992). We would review challenges to
jury instructions under our ordinary standards of review,
without requiring a plaintiff to make a “futile formal
20                    CHESS V. DOVEY

objection,” “[w]here the district court [wa]s aware of a
party’s concerns with an instruction, and further objection
would [have] be[en] unavailing.” Id. This practice came to
be known as the “pointless formality” exception. See Payne,
944 F.2d at 1464.

    We changed our review of jury instructions after
Congress amended Rule 51 in 2003 to provide for plain error
review in civil cases. See Fed. R. Civ. P. 51(d)(2). Now,
when a litigant in a civil trial fails to object to a jury
instruction, we may review the challenged jury instruction for
plain error. C.B. v. City of Sonora, 769 F.3d 1005, 1016 (9th
Cir. 2014) (en banc).

    The pointless formality exception has survived the 2003
amendment to Rule 51. Cf. Norwood, 591 F.3d at 1066
(rejecting the argument that the appellant failed to preserve an
objection to a jury instruction because “[a]n objection need
not be formal” and “raising the issue again via formal
objection would be both unavailing and a pointless
formality”) (internal quotation marks and citations omitted));
Citrus El Dorado, LLC v. Stearns Bank, 552 F. App’x 625,
627 (9th Cir. 2014) (“We need not decide whether an
objection was preserved under the ‘pointless formality’
exception, because the instruction was plain error.” (citation
omitted)). The only thing that has changed is the general rule
from which the exception is taken. Previously the general
rule was forfeiture; now it is plain error review.

    In this case, an objection by Chess to the instruction now
at issue would have been the functional equivalent of a
pointless formality. An “objection may be a ‘pointless
formality’ when (1) throughout the trial the party argued the
disputed matter with the court, (2) it is clear from the record
                      CHESS V. DOVEY                         21

that the court knew the party’s grounds for disagreement with
the instruction, and (3) the party offered an alternative
instruction.” Payne, 944 F.2d at 1464. There can be no
doubt that the trial court knew which part of the instruction
was problematic and knew the specific reasons why. On two
separate occasions, the judge articulated the potential
problems with the deference language in the proposed jury
instruction: (1) it was irrelevant because Chess was suing
prison doctors, and not the administrators who adopted the
narcotics policy; and (2) it was inappropriate in medical care
cases, as distinct from excessive force and conditions of
confinement cases. The judge also recognized the relevant
authority, the Norwood case. The judge was right when he
said, “I did identify the main issue raised by the inclusion of
that language in a case such as this.”

    It does not matter that Chess did not “argue[] the disputed
matter with the court.” Medtronic, Inc. v. White, 526 F.3d
487, 495 (9th Cir. 2008) (quoting Glover v. BIC Corp., 6 F.3d
1318, 1326 (9th Cir. 1993)). Although Chess—who was
unrepresented—did not raise the issue himself, the judge
understood it and, in effect, argued it on his behalf. The
judge characterized the problem from the standpoint of
someone in Chess’s position, and Chess deferred to the judge.
Nor was it necessary for Chess himself to have offered an
“alternative instruction,” id., for the judge proposed the
alternative: strike the deference language and leave the rest of
the instruction intact. See Payne, 944 F.2d at 1464.

    We will not punish a pro se litigant with plain error rather
than de novo review simply because he failed to say the
words “I object” when the trial judge and defendants knew
why the instruction might be erroneous and what the
objection would have been. Reviewing for plain error in this
22                     CHESS V. DOVEY

case would run contrary to our “duty to ensure that pro se
litigants do not lose their right to a hearing on the merits of
their claim due to ignorance of technical procedural
requirements.” Balistreri v. Pacifica Police Dep’t, 901 F.2d
696, 699 (9th Cir. 1990). Further, plain error review would
do nothing to advance the purpose of Rule 51, which is “to
enable the trial judge to avoid error by affording him an
opportunity to correct statements and avoid omissions in his
charge before the cause has been decided by the jury.” Inv.
Serv. Co. v. Allied Equities Corp., 519 F.2d 508, 510 (9th Cir.
1975); see also Palmer v. Hoffman, 318 U.S. 109, 119 (1943)
(“In fairness to the trial court and to the parties, objections to
a charge must be sufficiently specific to bring into focus the
precise nature of the alleged error.”). Here, Chess did not
attempt to “sandbag” the trial judge by failing to object in
order to take out insurance against an adverse verdict. See
Elder v. Holloway, 984 F.2d 991, 998 (9th Cir. 1993)
(Kozinski, J., dissenting) (the purpose of Rule 51 is to
preclude parties from “sandbag[ging]” the trial judge to get
“two bites at the apple”). Chess was confused and legally
unsophisticated. But the judge and defendants’ lawyer were
not. They knew what the problem was and debated the issue
vigorously. In these circumstances, any objection by Chess
would have been “‘superfluous and futile,’” and plain error
review would be too harsh a sanction for failure to object.
Obsidian Fin. Grp., LLC v. Cox, 740 F.3d 1284, 1289 (9th
Cir. 2014) (quoting Dorn v. Burlington N. Santa Fe R.R. Co.,
397 F.3d 1183, 1189 (9th Cir. 2005)).

             III. Analysis of the Jury Instruction

    After informing the jury of the elements Chess needed to
prove to prevail on his claims, the magistrate judge added a
deference instruction. He directed the jury, pursuant to our
                          CHESS V. DOVEY                               23

circuit’s model instruction, to “give deference to prison
officials in the adoption and execution of policies and
practices that in their judgment are needed to preserve
discipline and to maintain internal security.” The magistrate
judge was right to doubt the relevance, and hence the
propriety, of this instruction. See United States v. Warren,
984 F.2d 325, 327 n.3 (9th Cir. 1993) (“Use of a model jury
instruction does not preclude a finding of error.”). For the
reasons that follow, we conclude that trial judges in prison
medical care cases should not instruct jurors to defer to the
adoption and implementation of security-based prison
policies, unless a party’s presentation of the case draws a
plausible connection between a security-based policy or
practice and the challenged medical care decision. No other
circuit routinely requires this additional deference in all
medical care cases,1 and neither should we.

                          A. The Instruction

    The deference language at issue in this case derives from
Whitley v. Albers, 475 U.S. 312, 321–22 (1986). In that case,
an inmate alleged that he was subject to cruel and unusual
punishment when he was shot by a prison guard during a riot
in which another guard was taken hostage. Id. At 316–17.


   1
      The Ninth Circuit’s model jury instructions are also unique in
including the deference language in Eighth Amendment conditions-of-
confinement cases. Except for language in a Fifth Circuit model
instruction, see Pattern Jury Instr., Civ., 5th Cir., § 10.7 (2014), and a
model instruction developed by a district judge on the First Circuit, the
deference language does not appear in any other circuit’s model
instructions for prisoner rights’ claims. See, e.g., Instr. for Civ. Rights
Claims under § 1983, 3d Cir., §§ 4.10, 4.11.1 (2014); Fed. Civ. Jury Instr.
of 7th Cir., §§ 7.14, 7.15 (2009 rev.); 8th Cir. Civ. Jury Instr., §§ 4.42,
4.43 (2014); 11th Cir. Civ. Pattern Jury Instr., §§ 5.3, 5.4, 5.5 (2013).
24                    CHESS V. DOVEY

The Supreme Court adopted a heightened subjective standard
for excessive force claims—malicious and sadistic—instead
of the subjective standard governing medical care cases—
deliberate indifference. Id. at 320–21. The asymmetry was
appropriate, the Court explained, because “the State’s
responsibility to attend to the medical needs of prisoners does
not ordinarily clash with other equally important
governmental responsibilities.” Id. at 320. In contrast, when
prison officials decide to use force to restore order, they act
“in haste, under pressure” and must balance competing
institutional concerns for the safety of prison staff or other
inmates. Id.

    As a result of Whitley, our circuit’s model jury instruction
for prisoners’ excessive force claims directs jurors to “give
deference to prison officials in the adoption and execution of
policies and practices that in their judgment are needed to
preserve discipline and to maintain internal security in a
prison.” Ninth Cir. Model Civ. Jury Instr. § 9.24 (2013 ed.);
see Norwood, 591 F.3d at 1067. In Norwood, a divided panel
of this court held that the deference instruction must be given,
not only in excessive force cases, but also in conditions of
confinement cases. Id. (“Prison officials are entitled to
deference whether a prisoner challenges excessive force or
conditions of confinement.”). However, we said nothing in
Norwood about medical care cases.

    We see nothing in the reasoning of Norwood that leads us
generally to require its deference instruction in medical care
cases. First, Norwood derived the deference language from
Bell v. Wolfish, 441 U.S. 520 (1979), which was “itself a
conditions of confinement case.” Norwood, 591 F.3d at
1067. We cannot do the same derivation here, for the
                       CHESS V. DOVEY                         25

Supreme Court has not used the same deference language in
a medical care case.

    Second, and more important, security considerations are
usually not present in medical care cases. In the great
majority of medical cases, the plaintiff does not point to a
security-based practice or policy as the source of his or her
harm, and defendants in such cases do not defend their
actions on the basis of such a practice or policy. Rather, in
the typical case, the plaintiff challenges prison medical staff’s
refusal or failure to provide certain care. The refusal or
failure to provide such care is sometimes based on an
administrative policy, but these policies typically do not
relate to security or discipline. See, e.g., Colwell v.
Bannister, 763 F.3d 1060, 1063–64 (9th Cir. 2014) (“It is the
policy of the Department that inmates with cataracts will be
evaluated on a case by case basis, taking into consideration
their ability to function within their current living
environment.” (quoting the prison’s policy)); Snow v.
McDaniel, 681 F.3d 978, 986 (9th Cir. 2012) (describing the
factors a prison medical review board was to consider in
deciding whether to approve significant medical procedures,
such as “the length of the inmate’s remaining sentence, how
well the inmate is able to perform activities of daily living,
the available resources, and the risks and benefits of the
proposal”), overruled by Peralta v. Dillard, 744 F.3d 1076
(9th Cir. 2014) (en banc). In these circumstances, where the
parties do not put into issue a security-based policy, the
deference instruction has no “foundation in the evidence” and
should not be given. Clem, 566 F.3d at 1181 (quoting Dang
v. Cross, 422 F.3d 800, 804–05 (9th Cir. 2005)).

    Third, the Norwood panel reasoned that it made sense to
use the deference instruction, which we already use in cases
26                    CHESS V. DOVEY

of excessive force, in cases dealing with conditions of
confinement because the use of force and restrictive
confinement (which was at issue in Norwood) “are often flip
sides of the same coin: A more restrictive confinement may
diminish the need for force and vice versa.” Norwood,
591 F.3d at 1067. In our view, medical treatment is quite a
different currency. It is different because “the State’s
responsibility to attend to the medical needs of prisoners does
not ordinarily clash with other equally important
governmental responsibilities.” Whitley, 475 U.S. at 320; see
also Wellman v. Faulkner, 715 F.2d 269, 272 (7th Cir. 1983)
(“[T]he policy of deferring to the judgment of prison officials
in matters of prison discipline and security does not usually
apply in the context of medical care to the same degree as in
other contexts.”). And decisions about medical care and
policy are not ordinarily made in haste or under stress, unlike
many decisions about the use of force or restrictive
confinement. Consequently, “[t]he requirement of deliberate
indifference is less stringent in cases involving a prisoner’s
medical needs than in other cases involving harm to
incarcerated individuals.” McGuckin v. Smith, 974 F.2d
1050, 1060 (9th Cir. 1992), overruled in part on other
grounds by WMX Techs., Inc. v. Miller, 104 F.3d 1133, 1136
(9th Cir. 1997) (en banc). For this reason, in the great
majority of cases, “‘[i]n deciding whether there has been
deliberate indifference to an inmate’s serious medical needs,
we need not defer to the judgment of prison doctors or
administrators.’” Colwell, 763 F.3d at 1066 (quoting Hunt v.
Dental Dep’t, 865 F.2d 198, 200 (9th Cir. 1989)).

    While the Norwood instruction is inappropriate in most
medical care cases, Norwood’s logic leads us to recognize
that the instruction may sometimes, though rarely, be
appropriate. We must be attentive to the differences among
                      CHESS V. DOVEY                         27

medical cases. Cf. Whitley, 475 U.S. at 320 (claims under the
Eighth Amendment must be analyzed “with due regard for
differences in the kind of conduct against which an Eighth
Amendment objection is lodged”). Not all of them are
ordinary. There may be outlier cases in which medical care
and security concerns genuinely clash and prison personnel
must make their medical care decisions in light of those
concerns. See, e.g., Clement v. Gomez, 298 F.3d 898, 905 n.4
(9th Cir. 2002) (defendants delayed treating inmates exposed
to the pepper spray they used to stop a fight because they
needed to maintain order first, which made the case
“differ[ent] from most cases involving the deprivation of
medical needs”). In those situations, prison officials will
have to balance prisoner health and safety against “competing
institutional concerns for the safety of prison staff or other
inmates.” Whitley, 475 U.S. at 320. Because this balancing
requires the “expert judgments” of prison officials, these
decisions are “entitled to deference,” just as they are in
conditions of confinement cases. Norwood, 591 F.3d at 1067;
see Kosilek v. Spencer, 774 F.3d 63, 83 (1st Cir. 2014) (en
banc) (“When evaluating medical care and deliberate
indifference, security considerations inherent in the
functioning of a penological institution must be given
significant weight.”); see also Florence v. Bd. of Chosen
Freeholders of Cnty. of Burlington, 132 S. Ct. 1510, 1518
(2012) (“The Court has held that deference must be given to
the officials in charge of the jail unless there is ‘substantial
evidence’ demonstrating their response to the situation is
exaggerated.” (quoting Block v. Rutherford, 468 U.S. 576,
584–85 (1984))).

    In light of the foregoing, we hold that a trial judge may
instruct a jury to defer to a policy or practice adopted and
implemented by prison officials only when that policy or
28                    CHESS V. DOVEY

practice addresses bona fide safety and security concerns, and
when there is evidence that the challenged medical decision
was made pursuant to that security-based policy or practice.
Put another way, the trial judge in an Eighth Amendment
medical care case should not give the deference instruction
unless one party’s presentation of the case plausibly draws a
connection between the security-based policy or practice and
the medical care decision at issue.

     In Chess’s case, this connection was lacking. It was
therefore error for the magistrate judge to give the deference
instruction. Chess alleged that defendants denied him
methadone solely because a High Desert State Prison policy
prohibits general population inmates from receiving that
medication. But, crucially, he did not introduce any evidence
at trial that the narcotics policy affected the key decision he
challenged—defendants’ decision to cut off methadone,
rather than tapering it off while he was in the CTC. He
testified that “the whole time I spent in [the CTC] until the
time they did put me in the general population, I was in pain.
And I don’t know what their real reason was, why they
wouldn’t treat me for pain, but they wouldn’t and they
didn’t.” Chess did not dispute that the narcotics policy
explicitly allowed the administration of methadone in the
CTC. Indeed, he told the jury in his opening statement that,
although defendants claimed that they could not give him
methadone because he was in general population housing,
they could have provided it to him in the CTC. He explained,
“[T]hey have something up there which is called CTC. It’s
a treatment center, like a little hospital. And that’s not the
general population. They could have went and got a
nonformulary drug, just like they did for the Klonopin, to
taper me off of [methadone].” It is true that Chess also
sought a prescription for methadone after he was transferred
                      CHESS V. DOVEY                         29

to the general prison population. Theoretically, then, the
policy could have affected the responses to his subsequent
requests for methadone. But in actuality, Chess presented no
evidence that it did.

     On the other side, defendants did not invoke the narcotics
policy to defend their care. In her opening argument,
defendants’ counsel stressed the irrelevance of the narcotics
policy, informing the jury that they would “hear a lot of
testimony from all the defendants that the ‘no narcotics’
policy at High Desert really is irrelevant because all the
evidence showed that [Chess] did not require a medication of
that strength for his complaints of pain.” Indeed, the only
defendant who testified that he relied on the policy in treating
Chess was Dr. Dial. But Dr. Dial saw Chess only once at the
beginning of Chess’s stay in the CTC, and the policy did not
prevent Dr. Dial from giving Chess tapering-off doses of
methadone. Six of the eight defendants were not asked about
the policy and did not independently mention it in the course
of defending their treatment decisions. Except for Dr. Dial,
only Ms. Miller, who treated Chess both during and after his
initial stay in the CTC, addressed the policy as it related to
Chess’s treatment. She specifically denied that she declined
to prescribe the methadone because of the narcotics policy.
She decided not to prescribe it “because [she] didn’t think it
was best for [Chess].”

    On these facts, there is no reason to think that security
concerns, or the narcotics policy born of those concerns, had
anything to do with defendants’ decision to withhold
methadone while Chess was at HDSP. Therefore, it was error
to issue the deference instruction.
30                    CHESS V. DOVEY

                     B. The Wilson Dicta

    In authorizing the use of the deference instruction only in
exceptional medical care cases, we reject defendants’
argument that language in the Supreme Court’s opinion in
Wilson v. Seiter, 501 U.S. 294 (1991), compels us to extend
the Norwood rule to all medical care cases. The Wilson Court
was asked to decide whether a prisoner challenging his
conditions of confinement had to prove that the defendants
had a culpable state of mind, and if so, what that state of mind
had to be. Id. at 296. The Court held that there was a
subjective standard, and that it was the same standard the
Court already applied to medical care cases. Id. at 303.

     Defendants point to the following language from Wilson
in support of their claim that medical care claims are a subset
of conditions of confinement claims and that the two must be
treated identically in jury instructions: “[T]he medical care a
prisoner receives is just as much a ‘condition’ of his
confinement as the food he is fed, the clothes he is issued, the
temperature he is subjected to in his cell, and the protection
he is afforded against other inmates.” Id. The Court also said
in a footnote, “It seems to us, however, that if an individual
prisoner is deprived of needed medical treatment, that is a
condition of his confinement, whether or not the deprivation
is inflicted upon everyone else.” Id. at 299 n.1.

    Both sentences are dicta in the service of a different point
than the one defendants seek to make. The first sentence was
the Court’s response to Wilson’s argument that he need not
make a showing as to the defendants’ state of mind, and that
the jury should decide whether the defendants’ conduct was
wanton solely by evaluating the effect of the conditions on
Wilson. The Court rejected this argument because it had
                      CHESS V. DOVEY                        31

already decided in Whitley that wantonness must be evaluated
from the defendant’s point of view. It was “[f]rom that
standpoint” that the court saw “no significant distinction
between claims alleging inadequate medical care and those
alleging inadequate ‘conditions of confinement”; both require
prison officials to make decisions under constraints. Id. at
303.

    The second sentence was addressed to the concurring
justices, who argued that there was a legally relevant
distinction to be drawn between “specific acts or omissions
directed at individual prisoners” (which warranted a
subjective inquiry) and systematic “conditions of
confinement” that affected all prisoners (which did not).
Wilson, 501 U.S. at 309 (White, J., concurring). The majority
used the example of medical care to make the point that
defendants’ conduct, whether directed at one person or many
people, should be evaluated against the same standard.

    In both sentences, the Court in Wilson was drawing an
analogy between medical care cases and conditions of
confinement cases to explain why they should both have a
subjective element and why the standard for conditions cases
should be the same as that applied to medical care claims,
rather than that applied to excessive force claims. As the
Court wrote, “Whether one characterizes the treatment
received by [the prisoner] as inhumane conditions of
confinement, failure to attend to his medical needs, or a
combination of both, it is appropriate to apply the ‘deliberate
indifference’ standard articulated in Estelle.” Id. at 303
(majority opinion) (internal quotation marks omitted); see
Hudson v. McMillian, 503 U.S. 1, 8 (1992) (“Wilson extended
the deliberate indifference standard applied to Eighth
32                    CHESS V. DOVEY

Amendment claims involving medical care to claims about
conditions of confinement.”).

     Defendants’ reading of the Wilson dicta proves too much.
Prisons are total institutions in which prison personnel control
all aspects of life. Everything an inmate experiences is, at a
general level of abstraction, a condition of his confinement.
This includes his access to the yard, the medical care he
receives, and the force used to subdue him. Cf. Farmer v.
Brennan, 511 U.S. 825, 832 (1994) (The Eighth Amendment
“also imposes duties on these [prison] officials, who must
provide humane conditions of confinement; prison officials
must ensure that inmates receive adequate food, clothing,
shelter, and medical care, and must ‘take reasonable measures
to guarantee the safety of the inmates.’” (quoting Hudson v.
Palmer, 468 U.S. 517, 526–27 (1984))). But we cannot treat
claims relating to each of these conditions as if they are all
indistinguishable conditions of confinement claims. The
Supreme Court has told us as much: claims related to some
facets of prison life, like the use of force, are subject to a
different standard than others. That is the point of Whitley
and Wilson, and it is a point we recently reconfirmed in
Harrington v. Scribner, No. 09-16951, 2015 WL 2106387 at
*5, *8 n.1 (9th Cir. May 7, 2015), in which we rejected the
use of the Norwood instruction in a case brought by a
prisoner alleging racial discrimination in violation of the
Fourteenth Amendment, over an objection that such alleged
discrimination constituted a condition of confinement.

                      C. Harmless Error

    Although we conclude that the jury instruction was error,
we do not reverse the judgment because defendants have
carried their burden of showing that “it is more probable than
                      CHESS V. DOVEY                         33

not that the jury would have reached the same verdict had it
been properly instructed.” Clem, 566 F.3d at 1182 (internal
citations and quotation marks omitted).

    For the reason the instruction was erroneous, it was also
harmless. As we explained above, the narcotics policy at
HDSP did not catagorically prevent Chess from receiving
methadone. Chess was eligible to receive methadone while
he was in the CTC, where he was initially placed. If Chess’s
doctors thought he needed methadone at that time, they could
have given it to him. If they thought he needed it after he
joined the general population, they could have transferred
him back to the CTC to receive it. We know the policy did
not drive defendants’ decision to deny him methadone
because when they thought he needed narcotics, they gave
them to him. Indeed, they prescribed him morphine at least
twice.

    All the defendants except Dr. Dial testified that they did
not give Chess methadone because he did not need it. Dr.
Dial said that Chess did not need it, and that it was dangerous.
He also stated in a one-word answer that the prison policy
forbade it outside the CTC. But the policy was irrelevant to
Dr. Dial’s treatment, for he treated Chess only in the CTC.
Defendants consistently testified that methadone was not
medically indicated for Chess’s conditions and that none of
the non-narcotic painkillers they prescribed him were harmful
to his liver. Chess offered only his own non-expert opinion
to counter defendants’ medical opinions.

    Defendants saw Chess frequently, ordered several
diagnostic tests, repeatedly adjusted his medications,
proposed surgical interventions, and were otherwise
conscientious in their caregiving. Chess resisted them at
34                     CHESS V. DOVEY

almost every turn, refusing to take the medication they
prescribed him and delaying treatments that might have
helped him. We are confident that the jury would have found
for defendants even if it did not receive the deference
instruction.

                          Conclusion

    We hold that the magistrate judge erred in this case in
instructing the jury to defer to prison officials in the adoption
and execution of policies and practices that in their judgment
are needed to preserve discipline and to maintain internal
security. This instruction is inappropriate in medical care
cases brought by prisoners under § 1983, unless a party’s
presentation of the case draws a plausible connection between
a security-based policy or practice and the challenged medical
care decision. Neither party drew such a connection in this
case. However, because this error was harmless, we affirm.

     AFFIRMED.
