‘One Eye is Not Good Enough’ is Bad Prison Policy

A Nevada prison policy of “one eye is good enough” amounts to deliberate indifference to an inmate’s medical need for cataract surgery in violation of the Constitution, a federal appeals court held Thursday.

The 9th U.S. Circuit Court of Appeals, in a 2-1 decision, reinstated the suit by John Colwell, a 67-year-old, state inmate in Nevada, seeking to get cataract-removal surgery to restore his sight.

Colwell, who is serving a life without parole sentence, developed cataracts in both eyes and underwent removal surgery on his left eye in 2001.  A second cataract in his right eye left him blind in that eye by 2002, but it was never treated.

The medical director at the prison, Bruce Bannister, found that the cataract doesn’t damage the eye or cause pain and can be removed at any time without permanent vision law.  He found that delay would cause no harm, despite the recommendation of two doctors that it be removed.

The Nevada Department of Corrections requires an inmate to endure reversible blindness in one eye if he can still see out of the other.  “This is the very definition of deliberate indifference,” Judge Barry Silverman wrote.

Doctors recommended the cataract be removed because Colwell needs vision in both eyes for his prison job sewing mattresses.  The requests were denied by a prison review board and one doctor told Colwell the “department policy is ‘one eye only’ is needed,” according to the court.

Colwell’s grievances were denied.  In 2009 but was told the condition did not “significantly affect” his quality of life.

Colwell sued arguing prison officials were “deliberately indifferent” to his serious medical needs in violation of his civil rights and Eighth Amendment protection against cruel and unusual punishment.

“Monocular blindness is a serious medical need,” Silverman wrote.  “Although blindness in one eye is not life-threatening, it is no trifling matter either.  It is not a bump or scrape or tummy ache,” he said.

In dissent, Judge Jay Bybee reiterated that Colwell is in no pain and in no danger of permanent loss of vision.  He  watches TV, plays cards and is a voracious reader.

He pointed out courts around the country have struggled with the question of whether denial of eye surgery is deliberate indifference.  He cited the aging prison population that will have these sorts of medical needs more frequently.

Bybee urged the full court to overturn prior precedent that allowed for eighth amendment claims such as Colwell’s to succeed.  Unless the precedents are overturned “we will make ourselves the authors of a ‘national code of prison regulation,’” he said.

The majority pointed out Colwell’s hand was caught in a sewing machine twice, due to his vision limits and he has bumped into inmates “who are not good natured about such encounters” triggering fights on two occasions.

But Bybee said the prison was not engaged in “unnecessary and wanton infliction of pain” as required for an Eighth Amendment violation.  “His mishaps are not unexpected given the vicissitudes of life, the aging process and his incarceration,” Bybee said.

The majority found, however, Colwell continues to be denied surgery and a reasonable jury could find that it is because his medical need conflicted with prison policy, not because non-treatment was a medically acceptable option.

Case:  Colwell v. Bannister, No. 12-15844





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