[00:00:04] Speaker 01:
Good morning, Your Honors. May it please the court, my name is Isaac Rillo. I'm a certified law student representative appearing on behalf of the appellant, Mr. Calvin X. Singleton. My supervisor, Professor Gregory Sisk, is here in the courtroom with me, and I'd like to reserve four minutes for rebuttal by my co-counsel, Gabby Tremblay.

[00:00:19] Speaker 05:
That's fine. Welcome to the Ninth Circuit. Please just keep an eye, both of you, keep an eye on the clock. You're responsible for watching your own time. Okay, go right ahead.

[00:00:27] Speaker 01:
Thank you, Your Honor.

[00:00:28] Speaker 05:
You bet.

[00:00:29] Speaker 01:
For years, Mr. Singleton has suffered from photophobia, or extreme light sensitivity. The simplest, cheapest, but still life-altering treatment for this is a pair of transitional lenses. And that's exactly what every ophthalmologist for the past 16 years has recommended for Mr. Singleton. But the prison has obstinately refused to follow those recommendations. Although it would cost the prison nothing, poses no security risk, and is about as simple as simple can be, the prison has refused to grant Mr. Singleton this simple device. And that is why we're here today.

[00:01:01] Speaker 05:
I'd like to address... Could I just, right there, when you say the prison has refused to grant him the request, has it also refused to allow him to get his own transitional lenses?

[00:01:11] Speaker 01:
That's our understanding, Your Honor. He has been permitted to have clip-on sunglasses, which is a partial relief, but he is seeking injunctive relief for his transitional lenses.

[00:01:20] Speaker 05:
So the clip-on sunglasses don't change in density, is that right? They just stay the same...

[00:01:27] Speaker 01:
That's exactly right. Yep, transitional lenses will change in accord with whatever the lighting is in the room, so.

[00:01:33] Speaker 05:
Okay, all right.

[00:01:34] Speaker 01:
And he's seeking those because he experiences photophobia indoors as well. Right, got it. And I'd like to address the following three issues. First, that the prison official's sole reliance on categorical policy in denying Mr. Singleton care is the paradigm of deliberate indifference.

[00:01:50] Speaker 01:
Second, that the district court incorrectly concluded that this is a case about a legitimate difference in medical opinion. And third and finally, that because Mr. Singleton is entitled to these lenses from a prior settlement agreement, the defendants cannot contend that the device is not medically necessary. I'll turn to the first issue. In Colwell v. Bannister, this court held that the sole reliance on a categorical policy to deny medical care is the paradigm of deliberate indifference. In that case, multiple treating specialists recommended a cataract removal surgery for a prisoner, but the prisoner was denied not because of a of an individualized assessment, but because a categorical policy only allowed for, or excuse me, permitted surgery if, would only allow surgery if the prison, that the prisoner had one functioning eye.

[00:02:44] Speaker 01:
But because the prisoner had one functioning eye, he was categorically excluded from receiving that treatment.

[00:02:49] Speaker 03:
Counsel, isn't there a meaningful difference between this case and the one that you're discussing? Because here he did have an individualized assessment. He was transferred to a new facility. He saw a doctor who assessed him and then made the decision. And the case that you're talking about, you're correct, there was no assessment. It was a decision made by an administrative body.

[00:03:08] Speaker 01:
No, Your Honor. Our contention is that Mr. Singleton did not receive an individualized assessment.

[00:03:12] Speaker 03:
Didn't he have an appointment when he got to the new facility with an optometrist?

[00:03:16] Speaker 01:
He did see an optometrist, but according to Mr. Singleton's sworn testimony, his sworn declarations, and his sworn deposition, The optometrist fitted him for just regular prescription lenses. And when he asked about transitional lenses, he was denied wholesale because of the black letter policy. And he was fitted for the lenses, and he was basically told to move on.

[00:03:37] Speaker 03:
But that fitting, isn't that an individualized treatment assessment?

[00:03:42] Speaker 01:
It would not be an individualized assessment of his photophobia.

[00:03:45] Speaker 05:
Well, this is an important point for me. So I want to make sure that I understand your response. Is it your response that he saw, excuse me, one-on-one saw this individual at the new facility and the facility and the explanation was you can't have it because of a policy?

[00:04:02] Speaker 00:
That is correct, Your Honor. Yes.

[00:04:05] Speaker 00:
Right. I mean, there seems to be a difference of opinion. Your client says he was told there was a policy. They say it's just a difference of medical opinion. How has that resolved in the district court?

[00:04:17] Speaker 00:
It appeared that the district court bought the state's explanation that it was a difference of medical opinion.

[00:04:24] Speaker 01:
That is correct, Your Honor, but we contend that a legitimate difference of medical opinion does not exist here because this court has repeatedly held in cases like Hamilton v. Endell and Snow v. McDaniel that a deliberate difference inquiry or an inquiry about medical necessity turns on treating specialists for that particular condition.

[00:04:42] Speaker 00:
Yes, I understand that. My question is, I mean...

[00:04:47] Speaker 00:
Where's the policy?

[00:04:49] Speaker 00:
I don't, I mean, that seemed to be bothering the district court is that there wasn't, except for your client's testimony, there wasn't evidence of a policy, which is important.

[00:05:00] Speaker 01:
Yes, Your Honor, the policy is not in the record. We share that sentiment. But Mr. Singleton, again, has testified in his deposition and in his sworn declarations that this is what he was told by a primary care provider and an optometrist that he is categorically excluded.

[00:05:14] Speaker 05:
So does this boil down to a credibility determination about whether he really said that, whether he was really told that? There's a couple layers of problem there.

[00:05:23] Speaker 01:
Yes, this should be assessed by a jury.

[00:05:26] Speaker 01:
The defendants have not submitted any sort of declarations from either the primary care provider or the optometrist to refute Mr. Singleton's testimony.

[00:05:35] Speaker 01:
And even on summary judgment, the defendant the standards of summary judgment, they should have objected to his testimony about the categorical policy, and there is no evidence of their objection in the record.

[00:05:45] Speaker 05:
If you could circle back to Judge Thomas' question, how do you interpret the district court's ruling? What did the district court do about this? There were two versions of events that were teed up. How did the court resolve it?

[00:05:57] Speaker 01:
Well, the district court concluded that because medical providers were disagreeing, it was a mere disagreement, and that's not enough to to rise to the level of deliberate indifference.

[00:06:09] Speaker 05:
And what's your contention about why that was erroneous?

[00:06:12] Speaker 01:
Our contention is that there's not a legitimate difference because this court has emphasized in Snow and in Hamilton that when you have treating specialists on one side and non-treating non-specialists on the other side, that doesn't create a legitimate difference in medical opinion because a reasonable jury could conclude that those opinions that are non-treating non-specialists are inferior. And I see that I'm running out of time.

[00:06:38] Speaker 05:
Well, we took a little of your time. Let me just, do you have any other questions at this point?

[00:06:41] Speaker 01:
I'm good.

[00:06:41] Speaker 05:
No, okay. Thank you.

[00:06:43] Speaker 01:
Thank you, Your Honors.

[00:06:45] Speaker 05:
You're welcome.

[00:06:52] Speaker 04:
Good morning. Good morning, Your Honors. May it please the Court, Lauren Cantor for the Appellee Doctors.

[00:07:00] Speaker 04:
I'd like to address a couple key points with the court today in response to my friends.

[00:07:06] Speaker 04:
The first is that Plano's own testimony regarding his treatment appropriate for what has been diagnosed as low to mild glaucoma and his self-reported symptoms don't create a tribal issue effect.

[00:07:20] Speaker 05:
Can I stop you since you did start there? I just want to make sure that my notes are right. I have something here that indicates that it's not contested. The severity of the medical condition is not contested.

[00:07:30] Speaker 04:
It is not, Your Honor. And I would even concede, Your Honor, that he has photophobia. Okay. Go right ahead.

[00:07:35] Speaker 00:
And also, he's on three drops, which is pretty significant in terms of treatment of glaucoma. And glaucoma itself can, one of the symptoms can be photophobia. Yes. So, I mean, here he comes in. How much does it cost to give him the lenses? A hundred bucks?

[00:07:56] Speaker 04:
I couldn't tell you about cost, Your Honor, but what I do know is that he's being treated appropriately for low to mild glaucoma risk, and the record demonstrates that. So he was seen as soon as he transferred. First, before he was transferred, he was seen at his prior facility by an ophthalmologist, and the ophthalmologist noted his concerns, and he had a problem list, an active problem list, where it notes all the different medical conditions that he had. There's no notations of headaches or even photophobia there.

[00:08:29] Speaker 04:
But again, granted, I could concede that he has photophobia. I'm not going to dispute that.

[00:08:35] Speaker 03:
So my understanding of the record is before he gets transferred, he had for a long period of time transitional lunges. Is that correct? Well, Your Honor, I would say this.

[00:08:45] Speaker 04:
We have sort of two records here. I would like to say that. Because there's a big gap in between. You have a And I think they're two different medical conditions.

[00:08:56] Speaker 05:
Counsel, our record, your time is just ticking, but our record, please correct us if we're wrong, is that he had these, he contends he's had them for about 20 years, and then they were broken at a prison job, and then he couldn't get them replaced. That's what he's contending, yes, Your Honor. Okay.

[00:09:08] Speaker 03:
That's what he's contending. So if we accept that, then isn't the reasonable inference that he was given those lenses at the prior facility for whatever period of time that was based on an assessment that they were appropriate for his medical condition?

[00:09:22] Speaker 04:
That's possible, Your Honor.

[00:09:24] Speaker 03:
But now he's at a new facility. But California prison policy is that you don't give medical devices or interventions unless they're actually medically necessary. And so if that was being given, isn't the fair inference that it was medically necessary?

[00:09:40] Speaker 04:
I think you can have a difference of medical opinions when you go to a new facility. He's still being treated by an optometrist who can treat and diagnose glaucoma. He's been given three different eye drops. He's given the proper prescription lenses for his condition, and he gets evaluated, and transition lenses aren't deemed necessary.

[00:10:00] Speaker 05:
So right there in the sequence of events, his contention is what he was told twice is that there's a policy. I don't know if it's a written policy. I agree with Judge Thomas. I can't find it. I don't think it's in the record.

[00:10:14] Speaker 05:
But he says that he was told there's a policy so you can't have these.

[00:10:19] Speaker 05:
Right. He says that. How does that get resolved at summary judgment?

[00:10:23] Speaker 04:
Well, he has, and the district court did address this, that there's no policy in the record. What there is in the record, though, are his medical appeals.

[00:10:31] Speaker 05:
Well, it wouldn't have to be before you... I understand. I mean, it wouldn't have to be a written policy if they're just going by some kind of oral policy or some... I don't know what the policy is either, but that's what he says he was told, and I'm not so sure why that isn't enough here, because I don't think you're taking the position that...

[00:10:49] Speaker 05:
it would be fair game for the defendants to rely upon a policy, written or unwritten, without a separate assessment, right? I don't think you're staking out that position.

[00:10:57] Speaker 04:
Right. I'm not. I'm not. But what I am saying is it's not just – what I did want to get to, actually, Your Honor, was that second point, which is that it wasn't just based on policy.

[00:11:06] Speaker 00:
So if you look at – Well, how do we know that from the record? I mean, and I don't want to interrupt your argument, but here we have a declaration where he says he was told it was based on policy.

[00:11:18] Speaker 00:
You say no, but there's nothing in the record as to what was actually told to him. There's no affidavit.

[00:11:29] Speaker 00:
The optometrist could have been incorrect. And we don't see a policy written or otherwise in the record. It's pretty tough on appeal to resolve that factual issue, which is important. How do we proceed?

[00:11:42] Speaker 00:
Because we can't just say he's right, you're wrong, or you're right, he's wrong. That's the stuff that gets you by summary judgment.

[00:11:50] Speaker 04:
Right. Well, in the record, there are his medical appeals. And in his medical appeals, it does state that there were reasons why he was denied those transition lenses. It was not just based on the policy. It was based on the interview. He was interviewed by nurses. He's in the chronic care program because he does have other chronic medical conditions. So he's being continuously monitored for numerous medical conditions, and policy. So there's three things. So it's not just policy. And Colwell, which is the case that's relied on by my friends, is about denial based solely on policy, which is what would be... But this is only partially based on policy?

[00:12:30] Speaker 04:
It is partially based on policy because there's... What's the policy? The policy that's in the record, I don't know what this policy is because he's referring to a policy that's not in the record. The policy that's, well, the policy that my friends are referring to is not in the record. The policy that's in the record is about durable medical equipment. And it was actually presented by Mr. Singleton in his brief. And it says that when you come to a new facility, you get reevaluated for your durable medical equipment. Right.

[00:13:00] Speaker 04:
And it's determined whether it's medically necessary. It is not like Colwell where you're just denied a cataract surgery unless you're blind. This is This applies to all durable medical equipment. It's not an outright denial. It requires an evaluation.

[00:13:15] Speaker 05:
Okay, so could I ask you, again, I'm trying not to interrupt, but your time is limited.

[00:13:19] Speaker 04:
Of course.

[00:13:20] Speaker 05:
If you could circle back to Judge Forrest's question, because I think I have the same question, really. Our record is that he had these transitional lenses for something like 20 years. You're not contesting the severity of the condition or why he needs these lenses. And then they broke, apparently. And what we have here is a representation that he was denied the opportunity to even buy them himself. He offered to pay for them. Is that correct? Does he understand that policy correctly, that he wouldn't be able to buy these?

[00:13:51] Speaker 05:
I think at one point it's in the record that he wasn't able to buy the clip-on shades. No, no, no, that's not what he did. He attests that he said, I'll pay for them. I want these transitional lenses there. I've used them for 20 years. I'm paraphrasing to be sure that he felt that they were very important and he offered to pay for them and then he was still told no. Is that consistent with state policy?

[00:14:15] Speaker 04:
I couldn't tell you, Your Honor, because I don't have that policy in the record to be honest. And I also don't, I also do want to say though, as much as I do agree and I will concede the photophobia, I will concede that at one point he had transition lenses. There is a gap in record between 20 10 and 2017 in terms of his treatment and what he had. It is very much based on what he says and what he believes is medically necessary.

[00:14:41] Speaker 05:
We don't make credibility determinations at summary judgment. That's part of our problem. It is based upon his assessment, his statement that, you know, I've used these for 20 years.

[00:14:51] Speaker 04:
I understand, Your Honor. But I also do, I also, the standard for deliberate indifference is also not based on what plaintiff A plaintiff says they want.

[00:15:02] Speaker 05:
Right, right, right. But we're talking about avoidable pain. Again, I'm paraphrasing that standard. But he says this worked. This worked for me for 20 years. You know his description of what he experiences if he doesn't have them. And it seems to be really avoidable, particularly if he's offering to pay for them himself. So I just want to put that out there and give you an opportunity to respond. But perhaps you have responded the best you're able to at this point.

[00:15:25] Speaker 04:
Well, I'd like to just close with this, Your Honor.

[00:15:28] Speaker 04:
We had an expert.

[00:15:30] Speaker 04:
ophthalmologists say that he was being treated appropriately for his condition. He's receiving eye drops. He's got appropriate prescription glasses.

[00:15:38] Speaker 05:
Did that individual examine him?

[00:15:40] Speaker 04:
No, he did not. But he was examined by an optometrist who can treat and diagnose glaucoma.

[00:15:45] Speaker 00:
Right, but let me make sure I understand what's undisputed. One, he's got glaucoma. Two, he also had a stroke and he's missing vision. In the field of vision, half of his left eye, correct. Three, you don't have any security concerns about the use of these lenses, right? Right.

[00:16:04] Speaker 04:
I couldn't tell you, Your Honor, about that.

[00:16:06] Speaker 00:
And it's not in the record, but I gather it's, I haven't seen it raised. And for you, you know, glaucoma is incurable. I mean, so he gets the diagnosis that he's got photophobia, which you don't, you know, dispute. And it doesn't get better, glaucoma. So here we are. I mean, that's undisputed. I just want to make sure I've got the record straight.

[00:16:29] Speaker 04:
Other than the security risk, yes, Your Honor, I would say that you are correct.

[00:16:32] Speaker 05:
Well, are we correct that the state didn't, or the defendants didn't raise a security risk? If there is one, we don't know about it on the record, do we? We did not, Your Honor. Okay, fair enough. I think I cut you off. I want to make sure, Judge Forrest, did you get your answer?

[00:16:44] Speaker 03:
Well, I guess I have one last question. My understanding of the legal standard for deliberate indifference is that the plaintiff needs to prove that the course of treatment that they received was medically unacceptable, given the circumstances. Yes. And here, this case... perhaps presents the question of medically preferable versus medically unacceptable. And I'm just curious if you could comment on that. Like, is there anything in the record to indicate that how the prison proceeded, you know, was against medical advice?

[00:17:17] Speaker 04:
May I go past my time, please? Okay. Yes, Your Honor. I, you know, the, I guess what I would say to that is there is, and the district court agreed that this is a difference between treating professionals. The prison saw him and treated him appropriately with professionals. We're not just talking about a primary care doctor. We are also talking about and optometrist. And actually, that is in line a bit with Colwell, where in Colwell, you know, he was actually seen also by an optometrist and by an ophthalmologist and by a primary who all diagnosed him with this cataract.

[00:17:56] Speaker 04:
And here, you also have an optometrist. And the district court also agreed and cited to a decision in Young, which reasoned that the fact that a plaintiff was seen by an optometrist and not by an ophthalmologist was not deliberate indifference. So, you know, we would stand on the grounds that there was no deliberate difference here. It's just a difference of medical opinion and also a difference of opinion between what Mr. Singleton felt was appropriate for his treatment.

[00:18:23] Speaker 05:
Thank you for your responses and your patience. We've taken over your time. Thank you. Appreciate your argument. We'll hear from opposing counsel, please.

[00:18:35] Speaker 05:
Counsel, you have four minutes.

[00:18:37] Speaker 02:
May it please the court. My name is Gabby Tremblay, and I'm a certified law student representative here on behalf of Mr. Kelvin X. Singleton. I have two main points to make in response to our friend for the appellee. I'll first start with the fact that a reasonable jury could find that the prison providers relied solely on a policy. There is one notation in the record from the optometrist nurse which said that the optometrist found that transitional lenses are not medically indicated at this time.

[00:19:09] Speaker 02:
But it's best read in the context of Mr. Singleton's experience with this optometrist. Mr. Singleton said that the optometrist merely relied on a categorical policy and then went along with fitting him for corrective lenses.

[00:19:27] Speaker 02:
And so read in this context, this note is simply just shorthand for finding that he did not fit the single eye disorder that the policy allows him to have transitional lenses for.

[00:19:38] Speaker 00:
Let me ask you a question. Is his treatment, his diagnosis of glaucoma in both eyes or just one?

[00:19:48] Speaker 02:
It's in both eyes, Your Honor.

[00:19:49] Speaker 00:
So he's taking drops in both eyes every day, right?

[00:19:51] Speaker 02:
Yes. Okay.

[00:19:54] Speaker 02:
I'll also note that this note and there's nothing in the record from the optometrist denying what actually happened in this meeting and that he relied on a policy in denying him the transitional lenses.

[00:20:09] Speaker 02:
I'd also like to cite, too, this court's precedent in Manley v. Rowley in which even self-serving statements are enough to overcome summary judgment as long as they are about facts and not mere conclusory statements.

[00:20:24] Speaker 03:
I want to ask you the question that I asked at the end of your friend.

[00:20:28] Speaker 03:
It's your burden to prove that the course of treatment your client received was medically unacceptable. What do you point to to show us that it was medically unacceptable as opposed to just not his preference?

[00:20:42] Speaker 02:
Yes, two responses to that, Your Honor. First, that what's medically acceptable under this court's precedent in Snow, Caldwell, and Hamilton is what treating specialists provide. And transitional lenses is exactly what the treating ophthalmologists in this case provided.

[00:21:00] Speaker 03:
Go right ahead.

[00:21:02] Speaker 03:
So if I look at that record of the history of him being given the transitional lenses, I don't actually see any findings that it was medically required or it was medically indicated. He was given them. And so I think, as I talked about before, I think there's an inference to be made there because the prison doesn't just give out medical things without them being necessary. But there isn't actually a finding in any of the medical records in this file that for why or what condition he has that requires that medically.

[00:21:33] Speaker 03:
And so I'm not quite sure how far that gets you.

[00:21:38] Speaker 02:
Yes, two responses to that, Your Honor. First, Mr. Singleton was referred to a specialist ophthalmologist for the very purpose of treating his eyes. So the fact that they recommended transitional lenses indicates that they are medically necessary, even if their prescriptions don't necessarily have the magic words, medical necessity. Second, Mr. Singleton did testify that transitional lenses have been prescribed to him as medically necessary, and he submitted the expert report from the prior litigation, which said that transitional lenses have been prescribed to him as medically necessary.

[00:22:20] Speaker 05:
When was the most recent prescription?

[00:22:23] Speaker 02:
Mr. Singleton testified that he met with Dr. Wright-Scott in 2020, and Dr. Wright-Scott, again, said that transitional lenses was her prescription.

[00:22:36] Speaker 05:
Prescribed transitional lenses in 2020.

[00:22:39] Speaker 02:
Yes.

[00:22:39] Speaker 05:
I understand it. Okay. Are there any other questions? No? It doesn't look like there are. Thank you for your argument.

[00:22:47] Speaker 05:
And thank you for your participation in the pro bono program. We appreciate it very much.

[00:22:52] Speaker 05:
We'll take that case under advisement and move on to the next case on the calendar.