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Nevada DOC’s “One Eye Policy” Challenged; Summary Judgment Reversed

Nevada DOC’s “One Eye Policy” Challenged; Summary Judgment Reversed

by Lonnie Burton

In an October 24, 2014 corrected ruling, the Ninth Circuit Court of Appeals addressed a Nevada prison policy that denies prisoners with one good eye medical treatment for their other eye. The 2-1 decision reinstated a lawsuit that had been dismissed on summary judgment.

The plaintiff, Nevada state prisoner Joel Colwell, 67, who is serving life without parole, is blind in one eye. Colwell’s eye problems began in 2001 when he developed a cataract in his right eye; by 2002 he was totally blind in that eye.

Colwell did not request or receive any further vision care until he asked for a cataract consultation in 2009. At that time he was examined by a prison optometrist who noted Colwell was eligible for surgery.

According to R. Bruce Bannister, Medical Director for Nevada’s prison system, a cataract is “cloudiness (opacity) of the lens of the eye” which does “no damage to the eye and can be removed at any time.”

The Nevada Department of Corrections (NDOC) has a formal written policy for cataract treatment, which states, in essence, that if a prisoner can still “function within their current living environment” (i.e., see out of one eye), he will not be considered for cataract surgery.

At least three medical providers, including an optometrist and an ophthalmologist, recommended surgery for Colwell’s right eye. However, the NDOC’s Utilization Review Panel, composed of non-medical administrators, denied the doctors’ requests, citing what the Ninth Circuit called the “one eye is good enough for prison inmates” policy.

Colwell subsequently submitted several grievances – all of which were denied – prior to filing suit in federal court.

U.S. District Court Judge Larry R. Hicks granted the defendants’ motion for summary judgment, holding that Colwell had “failed to establish that the defendants were deliberately indifferent to” his serious medical need, and that the lack of cataract surgery had “caused him [no] harm.”

Reversing, the Ninth Circuit found that Colwell “has been and continues to be denied the surgery that three different doctors say he needs.” The Court of Appeals further noted that the cataract surgery was denied not due to differing medical opinions about the proper course of treatment, but as a result of the NDOC’s “one eye only” policy. Lastly, the Court held that the fact that Colwell continued to suffer blindness in one eye was “harm in and of itself.”

“The record in this case indicates that NDOC ignored the recommendations of the treating specialists and instead relied on the opinions of non-specialist and non-treating medical officials who made the decision based only on administrative policy,” the appellate court wrote. That constituted “the paradigm of deliberate indifference.”

The Court of Appeals also confirmed that blindness in one eye is a serious medical need, noting that even though it is not life-threatening, “it is not a trifling matter either.”

Further, the Court stated that Colwell was not “‘merely blind’ in one eye, but that his monocular blindness caused him physical injury: He ran his hand through a sewing machine on two occasions while working in the prison mattress factory; he ran into a concrete block, splitting open his forehead; he regularly hits his head on the upper bunk of his cell; and he bumps into other inmates who are not good-natured about such encounters, triggering fights on two occasions.”

Finding that summary judgment was inappropriate because “prison officials deliberately ignored the express orders of [the physicians] for reasons unrelated to the medical needs of the prisoner,” the Ninth Circuit reversed and remanded the case to the district court for further proceedings, where it remains pending.

Circuit Judge Jay Bybee, who approved a controversial “torture memo” while serving as the Assistant Attorney General for the Office of Legal Counsel during the Bush administration, issued a dissenting opinion. Colwell was represented on appeal by attorneys and Certified Law Student Representatives from the University of Arkansas Federal Appellate Litigation Project and the University of St. Thomas School of Law Appellate Clinic. See: Colwell v. Bannister, 763 F.3d 1060 (9th Cir. 2014).


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Related legal case

Colwell v. Bannister