Nevada inmate denied cataract surgery wins ruling

CARSON CITY — A Nevada inmate denied cataract surgery by the Department of Corrections because he still had one functioning eye has won a ruling in the 9th U.S. Circuit Court of Appeals.

Inmate John Colwell was denied the surgery recommended by his treating doctors because of the agency’s “one eye policy” that denies treatment if an inmate can manage to function in prison with one eye.

The court, in a 2-1 decision filed Thursday, said blindness in one eye caused by a cataract is a serious medical condition.

“We also hold that the blanket, categorical denial of medically indicated surgery solely on the basis of an administrative policy that ‘one eye is good enough for prison inmates’ is the paradigm of deliberate indifference,” the court majority said.

The ruling reversed a judgment in favor of the Corrections Department and remanded the case for trial.

Colwell, 67, is serving multiple sentences at the Southern Desert Correctional Center including life without the possibility of parole. In 2001, a cataract had developed in Colwell’s right eye that rendered him blind in that eye by 2002. The condition was never treated.

Bruce Bannister, the medical director for the Corrections Department, said a cataract does not cause pain or require urgent attention, the court noted in its opinion.

Colwell filed a series of grievances regarding the lack of treatment and then filed a lawsuit alleging that prison officials were deliberately indifferent to his medical needs.

As evidence of the seriousness of his condition, it was noted that Colwell ran his hand through a sewing machine on two occasions while working in the prison mattress factory.

The case was dismissed in U.S. District Court after a finding that the Corrections Department was not deliberately indifferent to his needs.

But the circuit court majority found that the recommendations of physicians to perform the surgery were overridden not because of a difference of opinion about the proper course of treatment but because of the agency’s “one eye only” policy.

The website said cataract surgery in 2013 was estimated to cost about $3,230 per eye.

Justice Jay Bybee dissented, saying Colwell is one of 20.5 million Americans over the age of 40 who suffer from cataracts.

“Like many others who have cataracts, he is in no pain and in no danger of suffering permanent loss of vision,” he said.

Bybee noted that Colwell was described as a “voracious reader” despite his condition.

Bybee said the majority’s finding that the failure to treat Colwell’s condition constitutes cruel and unusual punishment in violation of the Eight Amendment of the U.S. Constitution is not the simple answer to the issue.

“We have a growing — and, more importantly, an aging — prison population, and we are going to face these kinds of problems more and more frequently,” Bybee said. “The big question for us as courts is the extent to which the Eighth Amendment dictates the answers to these problems.”

In his lengthy dissent, Bybee said: “The realities of an overcrowded prison system force difficult choices about the appropriate treatment for inmates’ medical needs. The growing number of elderly inmates makes this problem all the more difficult because physical and mental functions often decline with age.”

Nationally it costs $16 billion to incarcerate 246,600 elderly inmates, he said.

The state of Nevada said elderly inmates represent 5.8 percent of the population but account for 20 percent of the agency’s annual budget.

“At some point, the states may decide not to treat aging prisoners but simply release them,” Bybee said. “Whether aging prisoners will have the resources then to attend to their own medical needs remains to be seen.”

The Department of Corrections did not immediately respond to a request for comment on the ruling.

Contact Capital Bureau reporter Sean Whaley at or 775-687-3900. Find him on Twitter: @seanw801.

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