OPINION
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 Costons medical needs in violation of the Eighth Amendment.
1
After a correctional officer found morphine pills in Costons cell, Defendants terminated Costons 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 courts deference instruction violated established law under the facts presented and was not harmless, we reverse and remand for a new trial.
I.
“We review de novo whether a district courts jury instructions accurately state the law, and we review for abuse of discretion a district courts 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 Costons chronic pain. Defendant Dr. Nangalama refilled that prescription. Defendant Hale, a licensed vocational nurse at the prison, administered Costons 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 Costons 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 Costons account that Hale had simply left the pills in Costons 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 Costons cell, Nangalama discontinued Costons 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 Costons 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 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. Appx 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 Costons 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 anothers medication. Nangalama was unable fully to recall the details of the prisons policy on medication management, which described the approved ways to prevent or remedy medication noncompliance.
Coston offered in evidence CSP-Sacs 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 medication. The district court, however, excluded the prisons medication management policy as irrelevant.
2
Nangalama acknowledged that someone receiving Costons 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 Costons prescription. Nangalama added that he did not see Coston until almost four months after terminating Costons 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 plaintiffs 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 Costons objection but nevertheless read the deference instruction to the jury. The jury returned a general verdict in favor of Nangalama and Hale.
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 partys 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 Costons morphine prescription without tapering. It is reasonable for a prison to want to prevent “pill hoarding” by prisoners. Had Defendants simply followed CSP-Sacs mandatory policy for narcotic medications, however, Costons pill hoarding would not have occurred. This fact breaks 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.
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 jails 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 prisons policy or practice is an unnecessary, unjustified, or exaggerated response to the security need.
Based on the prisons requirement of Direct Observation Therapy for morphine prescriptions, Nangalamas decision to terminate Costons 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 prisons security policy or practice was not an unnecessary, 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 Nangalamas actions in discontinuing Costons medication without tapering was not provided pursuant to a security-based policy or practice at CSP-Sac. Coston also offered in evidence the prisons medication management policy, which supports Costons argument that Nangalamas 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 Nangalamas 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.
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 plaintiffs 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 Therapy. Thus, as in Shorter, giving the deference instruction here was not harmless.
5
VACATED, REVERSED, AND REMANDED.
FOOTNOTES
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 prisoners serious medical needs. Edmo v. Corizon, Inc., 935 F.3d 757, 766 (9th Cir. 2019) (per curiam).
2
. At trial, Defendants presented no evidence that they employed, or even considered, any alternative methods for dispensing Costons pain medication after correctional officers discovered the pills in Costons cell.
3
. When Coston objected to the deference instruction and referred to “Chase versus Dover,” we assume that he meant to say, “Chess versus Dovey.”
4
. This conclusion also supports Costons argument that the prisons medication management policy was, in fact, relevant and should not have been excluded.
5
. In his appeal, Coston raises several additional arguments, including challenges to comments made by the district court to the jury and the district courts 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.
SIMON, District Judge: