Daniel Murphy Coston v. ANDREW NANGALAMA; RONALD HALE, Licensed Vocational Nurse

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL M URPHY C OSTON,
Plaintiff-Appellant,
v.
ANDREW NANGALAMA; R ONALD
HALE, Licensed Vocational Nurse,
Defendants-Appellees,
and
VICTOR DUC ; TROY B RIMHALL; D.
B ERCHTOLD; J. B AL; P REET S AHOTA ,
Defendants.
No. 19-16450
D.C. No.
2:10-cv-02009-
MCE-EFB
OPINION
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Argued and Submitted May 3, 2021
Pasadena, California
Filed September 15, 2021

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2 C OSTON V . NANGALAMA
Before: John B. Owens and Kenneth K. Lee, Circuit
Judges, and Michael H. Simon,* District Judge.
Opinion by Judge Simon
SUMMARY**
Prisoner Civil Rights
The panel reversed the district court’s judgment
following a jury trial, and remanded, in an action brought by
a California state prisoner pursuant to 42 U.S.C. § 1983
against a prison doctor and nurse alleging deliberate
indifference to medical needs, in violation of the Eighth
Amendment.
After a correctional officer found morphine pills in
Plaintiff’s cell, Defendants terminated Plaintiff’s
prescription for those pills without tapering, despite the risk
of withdrawal. The district court instructed the jury to defer
to Defendants’ asserted security justification. On appeal,
Plaintiff argued, among other things, that the district court
erred by giving the jury a “deference instruction.”
The panel held that Defendants did not draw a plausible
connection between a security-based policy or practice and
the challenged decision to terminate Plaintiff’s morphine
* The Honorable Michael H. Simon, United States District Judge for
the District of Oregon, 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.

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C OSTON V . NANGALAMA 3
prescription without tapering. The panel stated that although
it is reasonable for a prison to want to prevent “pill hoarding”
by prisoners, had Defendants simply followed the prison’s
mandatory policy for narcotic medications, Plaintiff’s pill
hoarding would not have occurred. This fact broke any
plausible connection between a security-based policy or
practice and the medical decision being challenged. Thus,
because a deference instruction should not be routinely given
in all medical care cases and the threshold requirement of a
plausible connection for giving such an instruction was not
present in this case, it was error to give that instruction.
The panel further concluded that the instructional error
was not harmless. Plaintiff introduced substantial evidence
that the prison did not act pursuant to a security-based policy
and that the prison had several less drastic alternatives
available, including Direct Observation Therapy, under
which a prisoner must be observed taking the medication by
both the nurse who delivers it and the correctional officer
who escorts the nurse.
COUNSEL
Alberto de Diego Carreras (argued) and Amaris Montes
(argued), Certified Law Students; Aaron Littman, Attorney;
Prisoners’ Rights Clinic, Ninth Circuit Appellate Advocacy,
UCLA School of Law, Los Angeles, California; Emily V.
Cuatto (argued) and Barry R. Levy, Horvitz & Levy LLP,
Burbank, California; Caitlin S. Weisberg, Kaye McLane
Bednarski & Litt LLP, Pasadena, California; for Plaintiff-
Appellant.
Amie C. McTavish (argued), Deputy Attorney General;
Catherine Woodbridge, Supervising Deputy Attorney

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4 C OSTON V . NANGALAMA
General; Danielle F. O’Bannon, Senior Assistant Attorney
General; Office of the Attorney General, Sacramento,
California; for Defendants-Appellees.
OPINION
SIMON, District Judge:
Daniel Coston, a California state prisoner, brought this
federal civil rights action under 42 U.S.C. § 1983 against
Dr. Andrew Nangalama and Nurse Randall Hale
(Defendants), alleging deliberate indifference to Coston’s
medical needs in violation of the Eighth Amendment.1 After
a correctional officer found morphine pills in Coston’s cell,
Defendants terminated Coston’s prescription for those pills
without tapering, despite the risk of withdrawal. After a jury
returned a verdict in favor of Defendants, the district court
entered judgment. Coston appeals from that judgment,
arguing that, among other things, the district court erred by
giving the jury a “deference instruction.” The district court
instructed the jury to defer to Defendants’ asserted security
justification. We have jurisdiction under 28 U.S.C. § 1291.
Because the district court’s deference instruction violated
established law under the facts presented and was not
harmless, we reverse and remand for a new trial.
1 The Eighth Amendment prohibits “cruel and unusual
punishments.” U.S. Const. amend. VIII. A prisoner suffers cruel and
unusual punishment when prison officials act with deliberate
indifference to the prisoner’s serious medical needs. Edmo v. Corizon,
Inc., 935 F.3d 757, 766 (9th Cir. 2019) (per curiam).

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C OSTON V . NANGALAMA 5
I.
“We review de novo whether a district court’s jury
instructions accurately state the law, and we review for abuse
of discretion a district court’s formulation of jury
instructions.” Hung Lam v. City of San Jose, 869 F.3d 1077,
1085 (9th Cir. 2017); see also Shorter v. Baca, 895 F.3d
1176, 1182 (9th Cir. 2018). In addition, the “[u]se of a model
jury instruction does not preclude a finding of error.”
Shorter, 895 F.3d at 1182 (quoting United States v. Warren,
984 F.2d 325, 327 n.3 (9th Cir. 1993)). “But if any error
relating to the jury instructions was harmless, we do not
reverse.” Spencer v. Peters, 857 F.3d 789, 797 (9th Cir.
2017) (quoting Wilkerson v. Wheeler, 772 F.3d 834, 838 (9th
Cir. 2014)).
“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). “An objection to a jury
instruction need not be formal, and a party may properly
object by submitting a proposed instruction that is supported
by relevant authority, so long as the proffered language is
sufficiently specific to bring into focus the precise nature of
the alleged error.” Hunter v. County of Sacramento, 652 F.3d
1225, 1230 (9th Cir. 2011) (simplified) (citation omitted).
II.
Coston, a man in his late 50s, is incarcerated at California
State Prison-Sacramento (CSP-Sac). He suffers from a
degenerative joint disease that causes chronic pain in his
back, foot, and left shoulder. A prison physician prescribed
morphine, a narcotic, to treat Coston’s chronic pain.
Defendant Dr. Nangalama refilled that prescription.

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6 C OSTON V . NANGALAMA
Defendant Hale, a licensed vocational nurse at the prison,
administered Coston’s morphine.
At CSP-Sac, morphine delivery requires “Direct
Observation Therapy,” under which a prisoner must be
observed taking the medication by both the nurse who
delivers it and the correctional officer who escorts the nurse.
Correctional Officer Dana Boggs, however, testified that
CSP-Sac medical staff, including Hale, sometimes left
medication in empty cells when inmates were in the yard.
Boggs added that he would often escort Hale on the “pill
pass.”
Less than two weeks after Boggs found two pills taped
inside a magazine that Coston had given to Boggs to deliver
to another inmate, Boggs searched Coston’s cell and found
50 morphine pills, which Coston had hoarded in violation of
prison policy. Boggs testified that the pills did not appear to
have been “degraded,” suggesting that Coston had not been
hiding the pills in his mouth and corroborating Coston’s
account that Hale had simply left the pills in Coston’s empty
cell. Prison officials acknowledged that there “does appear
to be a failure of the [Direct Observation Therapy] delivery
method.” Correctional officers confiscated the pills and
formally disciplined Coston.
After correctional officers discovered the pills in
Coston’s cell, Nangalama discontinued Coston’s morphine
prescription. Nangalama, however, did not evaluate Coston
before or even shortly after discontinuing that medication.
Indeed, Nangalama did not see Coston again until several
months later. Eleven days after Coston’s medication was
discontinued, a nurse found Coston on the floor of his cell
with vomit near his head and heavily perspiring. Coston was
taken to the prison emergency room. His increased blood
pressure, nausea, and vomiting are symptoms of morphine

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C OSTON V . NANGALAMA 7
withdrawal. During the next several months, Coston
repeatedly communicated to Defendants through healthcare
requests, reporting his pain to be severe and debilitating.
Representing himself, Coston filed a lawsuit against
Nangalama and Hale, among others, alleging deliberate
indifference. In 2015, the case went to trial. After Coston
rested his case, the district court granted Defendants’ motion
for judgment as a matter of law. On appeal, we vacated and
remanded for a new trial. See Coston v. Nangalama, 669 F.
App’x 371 (9th Cir. 2016). On remand, a second trial was
held in November 2018, again with Coston representing
himself.
Nangalama testified first, explaining that his decision to
terminate Coston’s morphine was motivated by medical and
security concerns that arise when an individual does not take
his medication as prescribed. These concerns include
medical complications, overdose, and the risk that other
prisoners might obtain another’s medication. Nangalama
was unable fully to recall the details of the prison’s policy
on medication management, which described the approved
ways to prevent or remedy medication noncompliance.
Coston offered in evidence CSP-Sac’s medication
management policy. This policy instructs medical personnel
to administer narcotics, like morphine, only through Direct
Observation Therapy. The policy also establishes proper
protocols for addressing noncompliance, including
directions to use alternative methods of dispensing

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8 C OSTON V . NANGALAMA
medication. The district court, however, excluded the
prison’s medication management policy as irrelevant.2
Nangalama acknowledged that someone receiving
Coston’s prescribed morphine dosage would become
dependent and that terminating morphine abruptly “can
cause harm to the patient.” Nangalama added that he would
not usually terminate morphine suddenly, without tapering a
patient off the medication. Nangalama explained that he did
not do so here because he believed that Coston had not been
taking the medication. Nangalama admitted, however, that
he did not examine Coston or test his medication levels
before terminating Coston’s prescription. Nangalama added
that he did not see Coston until almost four months after
terminating Coston’s prescription.
Relying on then-current Ninth Circuit model jury
instructions, the district court gave the jury the following
deference instruction: “In determining whether the
defendant violated 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.” Coston had previously timely objected to this
instruction, stating “I have an objection” and citing “Chase
versus Dover.” The district court noted Coston’s objection
but nevertheless read the deference instruction to the jury.
The jury returned a general verdict in favor of Nangalama
and Hale.
2 At trial, Defendants presented no evidence that they employed, or
even considered, any alternative methods for dispensing Coston’s pain
medication after correctional officers discovered the pills in Coston’s
cell.

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C OSTON V . NANGALAMA 9
III.
We have previously discussed the deference instruction,
also known as a “Norwood instruction,” based on Norwood
v. Vance, 591 F.3d 1062 (9th Cir. 2010). See Shorter,
895 F.3d at 1182–87; Mendiola-Martinez v. Arpaio,
836 F.3d 1239, 1257 (9th Cir. 2016); Chess v. Dovey,
790 F.3d 961, 972–75 (9th Cir. 2015).3 In Chess, we stated:
[W]e 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, and neither should we.
Chess, 790 F.3d at 972 (footnote omitted).
Here, Defendants did not draw a plausible connection
between a security-based policy or practice and the
challenged decision to terminate Coston’s morphine
prescription without tapering. It is reasonable for a prison to
want to prevent “pill hoarding” by prisoners. Had
Defendants simply followed CSP-Sac’s mandatory policy
for narcotic medications, however, Coston’s pill hoarding
would not have occurred. This fact breaks any plausible
connection between a security-based policy or practice and
3 When Coston objected to the deference instruction and referred to
“Chase versus Dover,” we assume that he meant to say, “Chess versus
Dovey.”

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10 C OSTON V . NANGALAMA
the medical decision being challenged. Thus, because a
deference instruction should not be routinely given in all
medical care cases and the threshold requirement of a
plausible connection for giving such an instruction was not
present in this case, it was error to give that instruction.
In addition, in Shorter, we explained:
[O]ur precedent should not be misread to
suggest that jail officials are automatically
entitled to deference instructions in
conditions of confinement or excessive force
cases brought by prisoners, or § 1983 actions
brought by former inmates. . . . We have long
recognized that a jury need not defer to
prison officials where the plaintiff produces
substantial evidence showing that the jail’s
policy or practice is an unnecessary,
unjustified, or exaggerated response to the
need for prison security.
Shorter, 895 F.3d at 1183 (emphasis added) (citations and
footnote omitted). Thus, even when the threshold condition
of a plausible connection is present, a deference instruction
still should not be given when a prison’s policy or practice
is an unnecessary, unjustified, or exaggerated response to the
security need.
Based on the prison’s requirement of Direct Observation
Therapy for morphine prescriptions, Nangalama’s decision
to terminate Coston’s prescription without tapering, even if
connected to a prison policy or practice related to a security
need, would appear to be an unnecessary, unjustified, or
exaggerated response to that need. Further, even if there
were a genuine dispute of material fact over whether the
prison’s security policy or practice was not an unnecessary,

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C OSTON V . NANGALAMA 11
unjustified, or exaggerated response, the question of whether
to give deference to prison officials should be left to the jury
to decide, and they must be explicitly instructed to that
effect. See id.; see also Mendiola-Martinez, 836 F.3d at 1257
(remanding with the instruction that the district court instruct
the jury “that the County Defendants are not entitled to
deference if the jury finds that their response to any security
or escape threat Mendiola-Martinez posed was
‘exaggerated’” (citation omitted)).
To summarize, Coston has presented substantial
evidence that Nangalama’s actions in discontinuing
Coston’s medication without tapering was not provided
pursuant to a security-based policy or practice at CSP-Sac.
Coston also offered in evidence the prison’s medication
management policy, which supports Coston’s argument that
Nangalama’s actions were an unnecessary, unjustified, or
exaggerated response.4 Further, pill hoarding and the other
risks that Nangalama described would not have been
possible if the prison simply had followed its own required
procedure of Direct Observation Therapy. If, however,
Defendants can show at retrial a genuine dispute of material
fact over whether Nangalama’s actions were (1) taken
because of a security-based policy or practice and
(2) necessary, justified, and not exaggerated, then a
deference instruction might be appropriate—but only if the
jury also were instructed that whether deference should be
given in these circumstances is a matter for the jury to
decide.
4 This conclusion also supports Coston’s argument that the prison’s
medication management policy was, in fact, relevant and should not have
been excluded.

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12 C OSTON V . NANGALAMA
IV.
Finally, we conclude that this instructional error was not
harmless. As we explained in Shorter:
An error in a jury instruction is harmless if
defendants demonstrate that “it is more
probable than not that the jury would have
reached the same verdict had it been properly
instructed.” Clem [v. Lomeli], 566 F.3d
[1177,] 1182 [(9th Cir. 2009)]. The
defendants cannot make such a showing here.
We have recognized that the Norwood
instruction deals a “devastating blow” to the
plaintiff’s constitutional claims. Harrington
v. Scribner, 785 F.3d 1299, 1307 (9th Cir.
2015). And it has been further suggested in a
dissent that the instruction amounts to a
“command to direct a verdict in favor of the
government.” Norwood, 591 F.3d at 1072
(Thomas, J., dissenting).
Shorter, 895 F.3d at 1190. Coston introduced substantial
evidence that the prison did not act pursuant to a security-
based policy and that the prison had several less drastic
alternatives available, including Direct Observation

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C OSTON V . NANGALAMA 13
Therapy. Thus, as in Shorter, giving the deference
instruction here was not harmless.5
VACATED, REVERSED, AND REMANDED.
5 In his appeal, Coston raises several additional arguments,
including challenges to comments made by the district court to the jury
and the district court’s decision not to grant a continuance or declare a
mistrial after certain witnesses became unavailable before concluding
their trial testimony. The circumstances surrounding these arguments are
unlikely to arise again at retrial. Accordingly, we decline to address
them.

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