DISABILITY RIGHTS MONTANA , INC ., on behalf of all prisoners with serious mental… v. Mike Batista

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
D ISABILITY R IGHTS M ONTANA ,
INC ., on behalf of all prisoners
with serious mental illness
confined to the Montana State
Prison,
Plaintiff-Appellant,
v.
M IKE BATISTA, in his official
capacity as Director of the
Montana Department of
Corrections; LEROY
K IRKEGARD , in his official
capacity as warden of
Montana State Prison,
Defendants-Appellees.
No. 15-35770
D.C. No.
2:15-cv-00022-SEH
OPINION
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted March 7, 2019
Seattle, Washington
Filed July 19, 2019

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Before: Ronald M. Gould and Richard A. Paez, Circuit
Judges, and Janis Graham Jack,* District Judge.
Opinion by Judge Gould
SUMMARY**
Prisoner Civil Rights
The panel reversed the district court’s dismissal of a
prisoner civil rights complaint, remanded for further
proceedings, and reassigned the case to a different district
court judge.
Plaintiff, Disability Rights Montana, alleged pursuant to
42 U.S.C. § 1983 that the Director of the Montana
Department of Corrections and the Warden of the Montana
State Prison violated the Eighth Amendment rights of “all
prisoners with serious mental illness who are confined to the
Montana State Prison.” The district court dismissed the
complaint for failing to state a claim pursuant to Federal
Rule of Civil Procedure 12(b)(6).
The panel held that the complaint, which described the
horrific treatment of prisoners, was supported by factual
allegations more than sufficient to “state a claim to relief that
was plausible on its face” under Bell Atlantic Corp. v.
* The Honorable Janis Graham Jack, United States District Judge
for the Southern District of Texas, 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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D ISABILITY R IGHTS M ONTANA V . B ATISTA 3
Twombly, 550 U.S. 544, 570 (2007), and Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009).
The panel noted that the complaint alleged that prisoners
with serious mental illness were denied diagnosis and
treatment of their conditions, described a distressing pattern
of placing mentally ill prisoners in solitary confinement for
“weeks and months at a time” without significant mental
health care, alleged the frequent, improper use of this
punishment for behavior arising from mental illness,
marshalled relevant quotations from national prison health
organizations about the unacceptability of subjecting
prisoners to extensive solitary confinement, and alleged that
the defendants did not respond appropriately to threats of
suicide by mentally ill prisoners, increasing the risk of
suicide. With respect to the subjective prong of the Eighth
Amendment claim, the complaint also included more than
sufficient allegations that defendants knew that prisoners
with serious mental illness were being exposed to a
substantial risk of serious harm and were indifferent to that
risk.
The panel held that reassignment to a different district
court judge was required to preserve the appearance of
justice. The panel noted that the district court had mistaken
this case for another case brought by plaintiff against a
different defendant and upon being advised of its mistake,
had declined to revisit its decision, thereby letting an
obviously incorrect decision stand.

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4 D ISABILITY R IGHTS M ONTANA V . B ATISTA
COUNSEL
Jeffrey A. Simmons (argued), Foley & Lardner LLP,
Madison, Wisconsin; Alex Rate (argued), American Civil
Liberties Union of Montana, Missoula, Montana; Kyle Gray
and Adrian Miller; Holland & Hart LLP, Billings, Montana;
Plaintiff-Appellant.
Thomas J. Leonard (argued), William L. Crowley, Mary Cile
Glover-Rogers, Boone Karlberg P.C., Missoula, Montana;
Colleen E. Ambrose, Special Assistant Attorney General,
Montana Department of Corrections, Helena, Montana; for
Defendants-Appellees.
Elisabeth Centeno Lopez, Alexandre H. Rene, Helen Vera,
and Jonathan R. Ference-Burke, Ropes & Gray LLP,
Washington, D.C.; Diane Smith Howard, National
Disability Rights Network, Washington, D.C.; for Amici
Curiae National Disability Rights Network and Ten
Jurisdictions’ Protection and Advocacy Agencies.
OPINION
GOULD, Circuit Judge:
Disability Rights Montana, Inc. (“DRM”) alleges,
pursuant to 42 U.S.C. § 1983, that the Director of the
Montana Department of Corrections and the Warden of the
Montana State Prison (the “DOC defendants”) have violated
the Eighth Amendment rights of “all prisoners with serious
mental illness who are confined to the Montana State
Prison.” The district court dismissed DRM’s complaint for
failing to state a claim pursuant to Federal Rule of Civil
Procedure 12(b)(6). However, DRM’s complaint, which

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D ISABILITY R IGHTS M ONTANA V . B ATISTA 5
describes the horrific treatment of prisoners, is supported by
factual allegations more than sufficient to “state a claim to
relief that is plausible on its face” under Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 570 (2007), and Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). We therefore reverse the district
court’s dismissal of the complaint, remand for further
proceedings, and reassign the case to a different district court
judge.
I
A
The Protection and Advocacy for Individuals with
Mental Illness Act, 42 U.S.C. § 10801 et seq. (“PAIMI
Act”), provides funds to maintain state level agencies for the
protection of and advocacy for individuals with mental
illness, and provides those designated agencies with the
authority to investigate and seek legal remedies for abuse of
such individuals. 42 U.S.C. § 10807(a). Plaintiff DRM is
the PAIMI agency for Montana. As such, DRM is the
organization tasked by Congress with “ensur[ing] that the
rights of individuals with mental illness are protected” and
“protect[ing] and advocat[ing] for the rights of such
individuals through activities to ensure the enforcement of
the Constitution and Federal and State statutes” for
Montana’s mentally ill individuals. 42 U.S.C.
§ 10801(b)(1)–(2).
Under this authority, DRM challenges the treatment of
individuals with serious mental illness in the Montana State
Prison.1 DRM claims that the DOC defendants have
1 The district court expressed skepticism about whether the term
“serious mental illness” has a legally cognizable meaning. It is unclear

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6 D ISABILITY R IGHTS M ONTANA V . B ATISTA
violated the rights of “all prisoners with serious mental
illness who are confined to the Montana State Prison . . . to
be free from cruel and unusual punishment” though policies
and practices in place at the prison. DRM’s complaint is
divided into roughly three sections. The first section of the
complaint contains system-wide allegations about the
treatment of inmates with “serious mental illness” in the
Montana prison. The second section contains detailed
allegations about particular inmates to illustrate the
treatment seriously mentally ill patients are given in
Montana’s prison. The third section alleges several different
ways that the DOC defendants had been placed on notice of
the risks posed by their treatment of prisoners with serious
mental illness.
The complaint alleges that the defendants act under the
color of state law in administering the prison and that they
remain responsible for administering the policies and
practices that are the subject of the complaint. Specifically,
the complaint isolates nine prison practices and/or policies
that DRM contends are constitutionally suspect:
1) placing prisoners with serious mental illness in
various forms of solitary confinement for 22 to 24
hours per day for months and years at a time;
from the record what motivates this skepticism, but we note that the
Supreme Court’s decision in Brown v. Plata was itself concerned with
“[p]risoners in California with serious mental illness” and directly held
that such prisoners are entitled to a certain standard of mental health care.
563 U.S. 493, 503 (2011); see also Coleman v. Wilson, 912 F. Supp.
1282, 1301 (E.D. Cal. 1995) (holding that case law sufficiently “provides
a legal gloss” on the term “serious mental disorder”). Both our court and
the district court lack authority to second guess this holding. Moreover,
the complaint alleges a specific definition of “serious mental illness.”

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D ISABILITY R IGHTS M ONTANA V . B ATISTA 7
2) placing prisoners with serious mental illness on
behavior management plans that involve solitary
confinement and extreme restrictions of privileges;
3) having no standards for determining whether placing
a prisoner with serious mental illness in solitary
confinement or on a behavior management plan will
be harmful to the prisoner’s mental health;
4) engaging in a pattern of refusing to properly diagnose
prisoners as suffering from serious mental illness;
5) engaging in a pattern of refusing to provide prisoners
with medications for serious mental illness;
6) failing to have a system in place to review and
evaluate the diagnosing and prescribing practices of
its mental health staff;
7) failing to have a system to classify prisoners
according to their mental health needs;
8) failing to adequately consider prisoners’ serious
mental illnesses when making decisions about
prisoners’ housing and custody levels; and
9) having no system in place for auditing, evaluating or
ensuring the effectiveness of its mental health care
program in treating prisoners with serious mental
illness.
The complaint goes on to allege specific facts supporting
the existence of these policies and their effect on prisoners
with serious mental illness. For instance, the complaint
alleges that the mental health treatment community has
established that “subjecting prisoners to extended periods of

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solitary confinement is detrimental to their mental health,”
citing statements from national correctional health
organizations on the inappropriateness of using such
punishments on the seriously mentally ill. The complaint
then describes in detail the solitary confinement procedures
used at the prison, alleging that “[t]he Prison regularly places
prisoners with serious mental illness in all of the forms of
solitary confinement described above for weeks and months
at a time.” The complaint alleges that prison staff identify
individuals with serious mental illness as “good candidates”
for solitary confinement, placing them in solitary
confinement for weeks and months at a time. The complaint
further alleges that the DOC defendants subject prisoners to
being locked alone in their cells for 22 to 24 hours a day,
seven days a week, and that while in solitary confinement, a
prisoner’s “primary contact with mental health staff . . . lasts
no more than a few minutes and is conducted at the
prisoner’s cell door,” with no privacy from other prisoners
or staff. Throughout the first section, the complaint supports
its objection to each of the policies and practices listed with
specific factual descriptions of how prisoners are typically
treated and the accessibility and quality of mental health care
at the prison.
The second section of the complaint provides
allegations, consistent with the system-wide allegations,
concerning nine individual prisoners. In substance, the
allegations are horrifying, involving prisoners with very
severe symptoms of mental illness who went largely
untreated and who were subjected to extreme and lengthy
solitary confinement punishments. The policies and
practices DRM alleged to be in place at the prison are evident
in these examples. The facts alleged in these illustrative
examples include numerous instances of prison mental
health staff deciding to limit prisoners’ access to prescribed

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D ISABILITY R IGHTS M ONTANA V . B ATISTA 9
mental health medication, including staff denying mentally-
ill inmates their medications entirely. In graphic detail,
DRM’s complaint describes how these policies and practices
allegedly harm the mental health of prisoners, harm that
allegedly culminated in the suicides of three of the described
prisoners.2
The third section of DRM’s complaint specifically
alleges the DOC defendants’ involvement in the complained
of policies and practices. DRM alleges that defendants are
aware of the fact that solitary confinement harms prisoners
with serious mental illness, are aware of prison mental health
standards that contradict their practices, have no standards
for guiding mental health staff in the punishment of
prisoners misbehaving because of mental illness, have been
made aware of the plight of seriously mentally ill prisoners
through repeated administrative and grievance proceedings,
have been sued twice in Montana for their treatment of
mentally ill prisoners, and have been repeatedly informed of
the deficiencies of their treatment of prisoners with serious
mental illness by DRM itself. Based on this description of
the DOC defendants’ knowledge of the objectionable
policies, DRM finally alleges that “[g]iven their knowledge
of these practices, and their knowledge of the serious harm
that can be caused by these practices, and their refusal to
change these practices, the DOC Defendants have been
deliberately indifferent to the serious medical needs of
prisoners with serious mental illness.”
2 The district court expressed skepticism about the legal relevance
of facts about deceased prisoners to the current claim. But these
allegations, if true, would clearly provide powerful support to DRM’s
claim that Montana’s punishing treatment of prisoners with serious
mental illness is constitutionally defective. See e.g., Plata, 563 U.S. at
508, 519 (discussing the suicides of prisoners kept in administrative
segregation as evidence of defective prison mental health care).

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B
DRM initially included these Eighth Amendment claims
against the DOC defendants in a broader suit that also
alleged due process claims against the Montana Department
of Public Health and Human Services (“DPHHS”). The due
process claims concerned how people convicted as “Guilty
But Mentally Ill” were transferred between the Montana
State Hospital and the Montana State Prison. At a status
conference, the district court orally ordered DRM to replead
its claims in separate complaints, confusingly theorizing that
there should be three separate cases.3 DRM then filed two
separate complaints—separating the Eighth Amendment
claims against the DOC defendants from the due process
claims against the DPHHS. This appeal only concerns the
case against the DOC defendants.
Shortly after the claims were separated, the DOC
defendants filed a motion to dismiss the Eighth Amendment
case for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6). The district court decided this motion
in a hearing held immediately after a hearing on a motion to
dismiss in the separate case brought against the DPHHS. At
the conclusion of the hearing in the present case, the district
court orally granted the motion to dismiss, ostensibly
holding that the claims were not “adequately pleaded to
withstand this Iqbal/Twombly Motion to Dismiss.”
However, the court’s stated rationale was focused entirely
on the due process claims that were at issue in the suit against
DPHHS, repeatedly mentioning “liberty interest,”
3 The district court left counsel “discretion” in how to design the
new complaints, but suggested they might be separated into the claims
of deceased prisoners, seriously mentally ill prisoners, and Guilty But
Mentally Ill prisoners. Those three categories of prisoners are not
mutually exclusive.

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D ISABILITY R IGHTS M ONTANA V . B ATISTA 11
“transfer,” and a statute governing transfers between the
hospital and the prison. The court did not give an
explanation as to how DRM had failed to plead an Eighth
Amendment claim against the DOC defendants. The
DPHHS defendants filed a motion requesting that the district
court revisit its orders on the motions on the basis that the
court had mistaken the two cases for one another. Before
DRM could do the same, the district court issued an order
denying the motion and again stating that it had correctly
dismissed the case against the DOC defendants. This appeal
resulted.
II
A
We review dismissals under rule 12(b)(6) de novo.
Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 884,
890 (9th Cir. 2019). The standard for surviving a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6) after
the Supreme Court’s decisions in Twombly and Iqbal is that
the plaintiff must provide “a short and plain statement of the
claim showing the pleader is entitled to relief” which
“contain[s] sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.” Sheppard v.
David Evans & Assoc., 694 F.3d 1045, 1048 (9th Cir. 2012)
(citing Twombly, 550 U.S. at 555, and Iqbal, 556 U.S. at
678). To meet this burden, “the nonconclusory ‘factual
content’” of DRM’s complaint and “reasonable inferences
from that content,” must be at least “plausibly suggestive of
a claim entitling the plaintiff to relief.” Moss v. U.S. Secret
Serv., 572 F.3d 962, 969 (9th Cir. 2009) (citing Twombly,
550 U.S. at 557). We must “take all allegations of material
fact as true and construe them in the light most favorable to
the nonmoving party.” Steinle v. City and Cty. of S.F., 919

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F.3d 1154, 1160 (9th Cir. 2019) (quoting Parks Sch. of Bus.,
Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995)).
B.
With respect to the substance of DRM’s complaint
asserting a 42 U.S.C. § 1983 violation of prisoners’ right to
be free of cruel and unusual punishment, a large body of
Supreme Court law governs, most recently the Supreme
Court’s decision in Brown v. Plata, where the Supreme
Court explained that “[t]he basic concept underlying the
Eighth Amendment is nothing less than the dignity of man.”
Brown v. Plata, 563 U.S. 493, 510 (2011) (quoting Atkins v.
Virginia, 536 U.S. 304, 311 (2002)). Consistent with that
concept and the clear connections between mental health
treatment and the dignity and welfare of prisoners, the
Eighth Amendment’s prohibition against cruel and unusual
punishment requires that prisons provide mental health care
that meets “minimum constitutional requirements.” Id. at
501; see also Doty v. Cty. of Lassen, 37 F.3d 540, 546 (9th
Cir. 1994) (holding that “the requirements for mental health
care are the same as those for physical health care needs”).
When the level of a prison’s mental health care “fall[s]
below the evolving standards of decency that mark the
progress of a maturing society,” the prison fails to uphold the
constitution’s dignitary principles. Plata, 563 U.S. at 505
n.3.
“A prison official’s ‘deliberate indifference’ to a
substantial risk of serious harm to an inmate violates the
Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 828
(1994) (citing Helling v. McKinney, 509 U.S. 25 (1993)); see
also Parsons v. Ryan, 754 F.3d 657, 677 (9th Cir. 2014);
Graves v. Arpaio, 623 F.3d 1043, 1049 (9th Cir. 2010);
Wallis v. Baldwin, 70 F.3d 1074, 1076 (9th Cir. 1995).
Where a plaintiff alleges systemwide deficiencies, “policies

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D ISABILITY R IGHTS M ONTANA V . B ATISTA 13
and practices of statewide and systematic application [that]
expose all inmates in [the prison’s] custody to a substantial
risk of serious harm,” we assess the claim through a two-
pronged inquiry. 4 Parsons, 754 F.3d at 676; see also Plata,
563 U.S. at 505 n.3 (noting that “[p]laintiffs rely on
systemwide deficiencies in the provision of medical and
mental health care that, taken as a whole, subject sick and
mentally ill prisoners in California to ‘substantial risk of
harm’”). The first, objective, prong requires that the plaintiff
show that the conditions of the prison pose “a substantial risk
of serious harm.” Farmer, 511 U.S. at 834 (1994) (citing
Helling, 509 U.S. at 35). The second, subjective, prong
requires that the plaintiff show that a prison official was
deliberately indifferent by being “aware of the facts from
which the inference could be drawn that a substantial risk of
serious harm exists,” and “also draw[ing] the inference.”
Farmer, 511 U.S. at 837.
Consistent with this well-established precedent, DRM’s
complaint states a claim and survives a motion to dismiss
under Rule 12(b)(6) if it contains sufficient factual
allegations to make it plausible, taking all the allegations as
true, that (1) the prison policies and practices DRM describes
expose inmates with serious mental illness to a substantial
risk of serious harm and (2) that the DOC defendants are
deliberately indifferent to that risk.
4 These cases are different from those in which a plaintiff alleges
“that the care provided on any particular occasion to any particular
inmate (or group of inmates) was insufficient.” Parsons, 754 F.3d at
677. Moreover, cases like this one for official or supervisory liability
must meet a different standard than cases for municipal liability. The
DOC defendants’ numerous citations to the municipal liability standard
are therefore unhelpful.

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III
The district court’s oral ruling on the motion appears to
have confused this case with the case filed against the
DPHHS. Despite ostensibly ruling that DRM had failed to
meet the Twombly/Iqbal pleading standard, the district court
did not engage with the factual allegations in DRM’s
complaint, choosing instead to discuss the possible existence
of a due process liberty interest based on the facts alleged
against the DPHHS in the other case. Because the district
court declined to reconsider or further explain its ruling, our
de novo review of the district court’s order is the first
application of the Iqbal/Twombly standard to DRM’s
complaint. We conclude that DRM has stated a claim on
which relief could be granted. DRM’s complaint plausibly
alleges that the DOC defendants were deliberately
indifferent under the established two-prong test, and it
alleges specific facts to support each element.5
A
DRM’s complaint contains sufficient factual allegations
to make it plausible that the prison’s policies and practices
pose a substantial risk of serious harm to prisoners with
serious mental illness, satisfying the objective element.
DRM made extensive factual allegations about the effect that
the prison’s punishment practices have on prisoners with
serious mental illness. DRM’s complaint alleged that
prisoners with serious mental illness are denied diagnosis
and treatment of their conditions, described a distressing
5 The DOC defendants’ contention that DRM does not have standing
to seek injunctive or declaratory relief pursuant to the Prison Litigation
Reform Act (“PLRA”) is baseless. The PLRA addresses the scope of
injunctive relief and not the pleading requirements plaintiffs face. See
18 U.S.C. § 3626(a)(1)(A).

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pattern of placing mentally ill prisoners in solitary
confinement for “weeks and months at a time” without
significant mental health care, alleged the frequent, improper
use of this punishment for behavior arising from mental
illness, marshalled relevant quotations from national prison
health organizations about the unacceptability of subjecting
prisoners to extensive solitary confinement, and alleged that
the defendants did not respond appropriately to threats of
suicide by mentally ill prisoners, increasing the risk of
suicide. Far from being “a wholly conclusory statement” of
its claim, DRM’s complaint provides detailed allegations on
each of these points, reflecting significant information about
the function of the prison and its policies with respect to the
seriously mentally ill. Twombly, 550 U.S. at 561.
These allegations, by themselves, were enough to make
it plausible that prison policies and practices pose a
substantial risk of serious harm. See Sheppard, 694 F.3d at
1048–49. But these allegations make up only a portion
DRM’s complaint. About half of the complaint included
further factual allegations supporting the existence of
harmful prison policies and the risk of serious harm that they
pose. There were allegations that the defendants’ policies
caused prisoners’ mental health to get substantially worse,
resulted in prisoners inflicting self-harm, and contributed, on
at least three occasions, to prisoners committing suicide. To
require more would overstate what needs to be alleged to
state a claim at the beginning of a lawsuit before discovery.
See Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
Analyzing the sufficiency of a complaint is “a context
specific task that requires the reviewing court to draw on its
judicial experience and common sense.” Iqbal, 556 U.S. at
679. The complaint’s allegations that these practices and
policies compromise the health and dignity of prisoners with

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serious mental illness are thoroughly consistent with
common sense and legal experience. See, e.g., Plata, 563
U.S. at 503–04 (noting that prisoners “with serious mental
illness do not receive minimal, adequate care” when they
spend “months in administrative segregation” with “harsh
and isolated conditions” and “limited mental health
services”); Graves v. Arpaio, 48 F. Supp. 3d 1318, 1335
(D. Ariz. 2014) (“Holding inmates with serious mental
illness in prolonged isolated confinement may cause serious
illness and needless suffering in violation of the Eighth
Amendment.”); Coleman v. Brown, 938 F. Supp. 3d 955,
979–80 (E.D. Cal. 2013) (holding that “seriously mentally
ill inmates placed in administrative segregation units
continued to face a substantial risk of harm”); Coleman v.
Wilson, 912 F. Supp. 1282, 1320–22 (E.D. Cal. 1995)
(holding that a prison violated the Eighth Amendment by
imposing administrative segregation on mentally ill inmates
without providing proper care). DRM’s allegations are also
consistent with the expert evidence quoted in the complaint
and provided by the amicus brief, which argues that
“medical and social-science researchers . . . have
demonstrated that solitary confinement can lead to or
exacerbate mental illness and psychological deterioration,”
including increasing the risk of suicide. DRM’s complaint
plausibly alleges that prison policies and practices pose a
substantial risk of serious harm to prisoners who are
seriously mentally ill.
B
With respect to the subjective prong of DRM’s Eighth
Amendment claim, the complaint also includes more than
sufficient allegations. DRM provides four different kinds of
support for its claim that the DOC defendants knew that
prisoners with serious mental illness are being exposed to a

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D ISABILITY R IGHTS M ONTANA V . B ATISTA 17
substantial risk of serious harm and were indifferent to that
risk. See Farmer, 511 U.S. at 842 (holding that “it is enough
that the official acted or failed to act despite his knowledge
of substantial risk of serious harm”). DRM’s complaint
alleged (1) that Montana’s prison has been sued twice
complaining about factually similar conditions at the prison,
(2) that the prison sought certification from a national prison
health care body whose mental health care standards would
put them on notice of these problems, (3) that the DOC
defendants receive regular grievances and appeals from
prisoners complaining about the prison’s treatment of their
mental illness, and (4) that DRM itself has “repeatedly
informed Prison officials of the serious deficiencies in the
Prison’s treatment of prisoners with serious mental illness.”
Each of these allegations, if taken as true, plausibly supports
the view that the DOC defendants knew about the risks to
which prisoners were exposed and that the DOC defendants
deliberately chose to maintain the harmful policies. See,
e.g., Lemire v. Cal. Dep’t of Corr. and Rehab., 726 F.3d
1062, 1078 (9th Cir. 2013) (concluding that plaintiffs stated
a claim for deliberate indifference where “litigation
specifically alerted prison officials to the acute problem of
inmate suicides”); Hunt v. Dental Dep’t, 865 F.2d 198, 201
(9th Cir. 1989) (holding that a dispute of fact prevented
summary judgment on deliberate indifference where a
grievance form could have put defendant on notice to
plaintiff’s request for treatment).
Defendants argue that these allegations are insufficient
to defeat a motion to dismiss on the subjective prong of the
Eighth Amendment inquiry. But the information in DRM’s
complaint speaks to precisely the sort of “circumstances
[that] suggest that the defendant-official being sued had been
exposed to information concerning the risk . . . sufficient to
permit a trier of fact to find that the defendant official had

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18 D ISABILITY R IGHTS M ONTANA V . B ATISTA
actual knowledge of the risk.” Farmer, 511 U.S. at 842–43.
Even independent of these allegations, it is plausible that
DRM’s allegations could succeed because of an inference
that “the official[s] knew of a substantial risk from the very
fact that the risk was obvious.” Id. at 842.
IV
DRM contends that the case should be reassigned to a
different district court judge on remand. “Absent proof of
personal bias on the part of the district judge, remand to a
different judge is proper only under unusual circumstances.”
United States v. Reyes, 313 F.3d 1152, 1159 (9th Cir. 2002).
We have long held that whether these unusual circumstances
obtain depends on three factors:
(1) whether the original judge would
reasonably be expected upon remand to have
substantial difficulty in putting out of his or
her mind previously-expressed views or
findings determined to be erroneous or based
on evidence that must be rejected,
(2) whether reassignment is advisable to
preserve the appearance of justice, and
(3) whether reassignment would entail waste
and duplication out of proportion to any gain
in preserving the appearance of fairness.
United States v. Arnett, 628 F.2d 1162, 1165 (9th Cir. 1979)
(quoting United States v. Robin, 553 F.2d 8, 10 (2d Cir.
1977) (en banc)); see also Evon v. Law Offices of Sidney
Mickell, 688 F.3d 1015, 1034 (9th Cir. 2012) (applying these
factors from Arnett). These factors are not evenly weighed,
however, and we have established that “[t]he first two factors
are equally important, and a finding of either is sufficient to
support reassignment on remand.” Krechman v. Cty. of

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D ISABILITY R IGHTS M ONTANA V . B ATISTA 19
Riverside, 723 F.3d 1104, 1112 (9th Cir. 2013) (citing
United States v. Sears, Roebuck & Co., Inc., 785 F.2d 777,
780 (9th Cir. 1986)); see also Manley v. Rowley, 847 F.3d
705, 712–13 (9th Cir. 2017).
In this case, although we do not suggest that the district
court acted with ill will or with actual bias against plaintiffs,
we hold that reassignment is required to preserve the
appearance of justice. When the district court dismissed
DRM’s claims, its oral reasoning concerned the case against
the DPHHS defendants, and in our view had nothing to do
with this case. The district court was then presented with a
motion by the DPHHS defendants pointing out that the
district court had erred in confusing the case against the
DOC defendants with the case against the DPHHS
defendants. Yet, the district court declined to revisit its
decision, letting an obviously incorrect decision stand that
resulted in this appeal with the issues it presents. Because
the district court did not correct its mistake and issue a
reasoned decision, the district court’s error has more impact
on plaintiffs than a mere oversight.
As we have previously held, “adamancy in erroneous
rulings may justify remand to [a] different judge.” Reyes,
313 F.3d at 1159–60 (citing Sears, Roebuck & Co., 785 F.2d
at 780). This holding reflects the sound reasoning that
judges who have insisted on erroneous rulings, even when
their errors are obvious and have been highlighted for the
court, might not appear to the disfavored parties to be likely
to decide in accord with the law in the future. When a district
court errs in this way, especially when the court gives no
plausible justification for its decision, parties and observers
may justifiably doubt whether the future disposition of their
matter in the continuing proceedings will be based on proper
considerations of law and equity. In such circumstances, we

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20 D ISABILITY R IGHTS M ONTANA V . B ATISTA
conclude that the appearance of justice requires that judicial
decisions be responsive to the facts and rational arguments
before the court. The appearance of justice is undermined
when a court’s actions are unresponsive to those
considerations. When a court confuses two different cases
and chooses to erroneously dismiss a party’s claim rather
than to revisit its decision, its actions are sufficiently
unresponsive to those considerations as to merit
reassignment. Because this case remains at the pleading
stage, “any duplication of judicial efforts will be minimal,”
and the benefits of reassigning will far outweigh the costs.
Manley, 847 F.3d at 713.
V
This case is controlled by the Supreme Court’s decisions
in Brown v. Plata and in Farmer v. Brennan. Under Brown
v. Plata, an Eighth Amendment claim is made out if
prisoners with serious mental illnesses face a substantial risk
of serious harm, and this is met with deliberate indifference
to their condition. This makes good sense because once
persons are incarcerated, they can no longer see to their own
medical needs. In these circumstances, the state, which
incarcerated them and limited their ability to seek care for
themselves, stands in a unique relation that requires it to
provide necessary medical care and protect against serious
medical risks. Under Farmer, a prisoner meets the first
prong of the test for cruel and unusual punishment if he or
she can show that prison policies or practices pose a
“substantial risk of serious harm.” The second prong is met
upon showing of deliberate indifference, which, as Farmer
makes clear, is shown adequately when a prison official is
aware of the facts from which an inference could be drawn
about the outstanding risk, and the facts permit us to infer
that the prison official in fact drew that inference, but then

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D ISABILITY R IGHTS M ONTANA V . B ATISTA 21
consciously avoided taking appropriate action. Here, the
facts alleged are adequate to support the claim that has been
asserted under these principles.
Iqbal and Twombly require only that a plausible claim be
alleged, not that it can be proven with certainty. Enough
facts are plausibly alleged in the complaint so that this matter
should not have been dismissed without further process. We
reverse the district court’s judgment and remand to a
different district court judge for further proceedings
consistent with this opinion.
REVERSED AND REMANDED.

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