                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


GARRICK HARRINGTON,                      No. 09-16951
              Plaintiff-Appellant,
                                            D.C. No.
                v.                       1:05-cv-00624-
                                          OWW-GSA
A. K. SCRIBNER; M. E. POULOS;
YAMAMOTO -; R. R. LOWDEN; L. L.
WOODS; FURHOLDT; D. HICKS,                 OPINION
             Defendants-Appellees.


     Appeal from the United States District Court
         for the Eastern District of California
  Oliver W. Wanger, Senior District Judge, Presiding

                Argued and Submitted
      October 6, 2014—San Francisco, California

                     Filed May 7, 2015

Before: Sidney R. Thomas, Chief Judge, and Diarmuid F.
O’Scannlain, and M. Margaret McKeown, Circuit Judges.

              Opinion by Judge McKeown;
       Partial Concurrence and Partial Dissent by
                  Judge O’Scannlain
2                  HARRINGTON V. SCRIBNER

                           SUMMARY*


                      Prisoner Civil Rights

    The panel affirmed in part and reversed in part the district
court’s judgment, entered following a jury trial, in an action
arising from a lockdown imposed on African American
inmates at a California state prison.

    Plaintiff, a Californian state prisoner, brought claims
under the Eighth Amendment for injuries he suffered related
to shower restrictions and under the Equal Protection
Clause of the Fourteenth Amendment for the race-based
classification of the lockdown.

    Affirming with respect to the Eighth Amendment
deliberate indifference to inmate safety claim, the panel held
that the district court’s jury instruction on that claim
essentially correctly restated the elements of the test outlined
in Farmer v. Brennan, 511 U.S. 825 (1994), by requiring
knowledge of a “substantial risk of serious harm” and that a
defendant “disregarded that risk.” The panel held that
plaintiff was not entitled to urge liability based on
defendants’ constructive knowledge of the risk.

    Reversing with respect to the equal protection claim, the
panel held that the district court’s jury instructions were
inconsistent with the requirements of strict scrutiny. The
panel held that the district court erred when it instructed the
jury that a prison’s obligations under the Eighth Amendment

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                HARRINGTON V. SCRIBNER                     3

compete with its obligations under the Equal Protection
Clause of the Fourteenth Amendment. That error, which
absolved the prison officials of their obligation to
demonstrate that the race-based action was narrowly tailored,
violated the tenets of Johnson v. California, 543 U.S. 499
(2005), and was prejudicial.

    The panel held that the district court did not abuse its
discretion by denying plaintiff appointed counsel.

    Concurring in part and dissenting in part, Judge
O’Scannlain concurred in the panel’s analysis of plaintiff’s
deliberate indifference and appointment of counsel claims
and joined in the opinion and judgment to that extent. Judge
O’Scannlain dissented from the panel’s equal protection
analysis and concluded that the relevant jury instruction
appropriately incorporated deference to prison officials’
unique expertise.


                        COUNSEL

Allison B. Holcombe (argued), Abraham A. Tabaie (argued),
and Carol Alé, Los Angeles, California, for Plaintiff-
Appellant.

Jose Zelidon-Zepeda (argued), Deputy State Attorney
General; Kamala D. Harris, Attorney General of California;
Jonathan L. Wolff, Senior Assistant Attorney General;
Thomas S. Patterson, Supervising Deputy Attorney General,
San Francisco, California, for Defendants-Appellees.
4                HARRINGTON V. SCRIBNER

                         OPINION

McKEOWN, Circuit Judge:

    This case arises from a lockdown imposed on African
American inmates at a California state prison after violent
incidents involving inmates and guards. Garrick Harrington
brought suit against prison officials under the Eighth
Amendment for injuries he suffered related to shower
restrictions and under the Equal Protection Clause of the
Fourteenth Amendment for the race-based classification of
the lockdown. A jury found against him on both claims.

     We consider the interplay between the Supreme Court’s
teaching in Johnson v. California, 543 U.S. 499 (2005), that
strict scrutiny applies to claims challenging racial
classifications in prison, and the line of authorities, such as
Turner v. Safley, 482 U.S. 78 (1987), that instruct courts to
give deference to correctional officials with respect to
constitutional claims involving prison regulations. We affirm
the judgment with respect to the Eighth Amendment
deliberate indifference claim. We reverse with respect to the
equal protection claim because the jury instructions were
inconsistent with the requirements of strict scrutiny. That
error, which absolved the prison officials of their obligation
to demonstrate that the race-based action was narrowly
tailored, violated the tenets of Johnson and was prejudicial.

                       BACKGROUND

    Early 2004 was a violent period at California State
Prison–Corcoran. In February and March, multiple violent
incidents occurred, each involving African American inmates
associated with gangs. Five more violent incidents occurred
                 HARRINGTON V. SCRIBNER                      5

over the next two months, including riots involving white
inmates and inmates associated with certain “disruptive
groups,” which are groups of individuals who have formed an
alliance and act, often aggressively, at the direction of a
leader. Prison officials also reported receiving information of
a statewide risk that unidentified African American inmates
would attack prison staff.

    In response, the prison instituted a lockdown on African
American inmates due “to multiple batteries on staff by
Blacks . . . coupled with information indicating a coalition of
Black inmates are plotting the murder of staff,” as was
explained in a Program Status Report, a weekly memorandum
issued during periods of modified programming. That
lockdown was followed by a state of emergency lockdown
applicable to inmates of all races. As part of the emergency
action, the prison instituted shower restrictions that, among
other things, allowed inmates to wear only minimal
clothing—boxer shorts and shower shoes—and required them
to be handcuffed while being escorted to the shower.
Eventually, the shower restrictions were lifted for all inmates
except African American inmates, including Garrick
Harrington, and members of the Northern Hispanic disruptive
group. An updated Program Status Report explained that,
amongst other things, “batteries on staff by various factions
of black inmates” were an “ongoing state-wide concern
indicating a mindset by this ethnic group to harm staff.” Over
time, the shower restrictions were eased for additional groups,
including older African American inmates. The state of
emergency ended, and the prison gradually lifted the
lockdown restrictions and returned to normal programming.

    While the race-based shower restrictions were still in
place, Harrington—who was not involved in the violent
6                HARRINGTON V. SCRIBNER

altercations that led to the lockdown and was not associated
with a gang or disruptive group—requested that he be
permitted to walk to the showers wearing his government-
issued boots instead of the shower slippers, which he
described as “flimsy.” A correctional officer denied his
request, then escorted Harrington, who was handcuffed and
wearing shower slippers, to a shower on another floor, all the
while following behind without assisting him. Harrington
came upon a pool of water and testified that he heard a
correctional officer say, “It’s slippery there.” Harrington
slipped in the water, fell, and injured his back. Despite
treatments, his pain continues, requiring medication.

     Harrington filed this suit under 42 U.S.C. § 1983 against
several prison officials, alleging claims for deliberate
indifference in violation of the Eighth Amendment and for
race discrimination in violation of the Equal Protection
Clause of the Fourteenth Amendment. His repeated requests
for the appointment of counsel were denied, an issue he raises
again on appeal. The case proceeded to trial, where the jury
found for the prison officials. Harrington challenges the
verdict on the grounds that the jury was improperly instructed
on both of his constitutional claims.

                         ANALYSIS

I.     EIGHTH AMENDMENT CLAIM

    The Eighth Amendment claim centers on the jury
instructions on deliberate indifference. The court instructed
the jury that “[t]o establish deliberate indifference, the
plaintiff must prove that a defendant knew that the plaintiff
faced a substantial risk of serious harm and disregarded that
risk by failing to take reasonable measures to correct it.”
                 HARRINGTON V. SCRIBNER                      7

Before trial, Harrington proposed an additional “knowledge”
instruction that the court declined to give to the jury. After
the close of evidence, the court reviewed the proposed jury
instructions with the parties and gave them time to
independently review the instructions. Upon reconvening,
the court asked whether Harrington had any “corrections,
additions, deletions, modifications or objections.” Harrington
offered one change, unrelated to the deliberate indifference
standard.

    During jury deliberations, the jury submitted two
questions to the court: “What is serious risk of injury? Please
define. Is the fact that the areas around all the showers are
always wet constituting [sic] a serious risk of injury?”
Outside the presence of the jury, the court discussed several
cases in detail with the parties and concluded that none of the
cases defined “serious risk” (or, as the original instruction
had put it, “substantial risk”) in the context of an Eighth
Amendment claim. Harrington then noted that caselaw
supports the notion that “knowledge can be demonstrated of
the substantial risk simply because it was obvious”; counsel
for the defendants pointed out in response that the jury’s
inquiry did not pertain to knowledge. Upon the jury’s return,
the court gave supplemental instructions that the jury was “to
determine whether any defendant acted with deliberate
indifference to a known risk,” and that “[k]nown risk means
that the person who has the duty to protect from it has to have
knowledge that there is a known hazard or known danger of
serious harm.”

    In Farmer v. Brennan, 511 U.S. 825 (1994), the Supreme
Court outlined the standard for Eighth Amendment liability
for acting with “deliberate indifference” to inmate safety. At
the outset, the Court rejected the “invitation to adopt an
8                HARRINGTON V. SCRIBNER

objective test for deliberate indifference.” Id. at 837. To
prove deliberate indifference, subjective recklessness is
required, that is, an official “cannot be found liable under the
Eighth Amendment for denying an inmate humane conditions
of confinement unless the official knows of and disregards an
excessive risk to inmate health or safety; the official must
both be aware of facts from which the inference could be
drawn that a substantial risk of serious harm exists, and he
must also draw the inference.” Id. Constructive notice does
not suffice to prove the requisite knowledge, but “[w]hether
a prison official had the requisite knowledge of a substantial
risk is a question of fact subject to demonstration in the usual
ways, including inference from circumstantial evidence.” Id.
at 841–42.

    The court’s original Eighth Amendment instruction
essentially restates the elements of the Farmer test by
requiring knowledge of a “substantial risk of serious harm”
and that a defendant “disregarded that risk.” The instruction
does not mention that such knowledge may be established by
circumstantial evidence, as did Harrington’s additional
proposed instruction. But the jury was not totally without
guidance on this point. The court gave a general instruction
on the definitions of circumstantial evidence and direct
evidence and stated, “You should consider both kinds of
evidence. The law makes no distinction between the weight
to be given to either direct or circumstantial evidence. It is
for you to decide how much weight to give to any evidence.”
The court put no restrictions on Harrington’s ability to argue
that circumstantial evidence supported his claim. Harrington
was not entitled, as he argues here, to urge liability based on
constructive knowledge of the risk, a theory of liability the
Supreme Court explicitly rejected in Farmer. Id. at 841.
                 HARRINGTON V. SCRIBNER                       9

    The supplemental instructions delivered after the jury’s
questions about the meaning of “serious risk of injury” did
not introduce error.        According to Harrington, the
supplemental instructions over-emphasized subjective
knowledge, thereby impermissibly “heightening” the
knowledge requirement. This argument is unpersuasive, as
Farmer clearly requires subjective knowledge. Id. at 837.
The instruction stated that requirement correctly, and the
court did not abuse its discretion in repeating the standard in
response to the jury’s question. See Jazzabi v. Allstate Ins.
Co., 278 F.3d 979, 982 (9th Cir. 2002) (holding that we
review the court’s decision whether to give a supplemental
jury instruction, and the formulation of that instruction, for
abuse of discretion).

    Harrington’s argument misapprehends the significance of
the obviousness of a risk in a deliberate indifference calculus.
Our cases support the proposition that obviousness of a risk
may be used to prove subjective knowledge, not that liability
may be based on constructive knowledge. See Lemire v. Cal.
Dep’t of Corr. & Rehab., 726 F.3d 1062, 1078 (9th Cir. 2013)
(requiring a plaintiff to demonstrate “that the risk was
obvious or provide other circumstantial or direct evidence
that the prison officials were aware of the substantial risk” to
defeat summary judgment); Thomas v. Ponder, 611 F.3d
1144, 1150 (9th Cir. 2010) (noting that subjective awareness
“may be satisfied if the inmate shows that the risk posed by
the deprivation is obvious”). Although evidence of
obviousness may present a disputed fact to defeat summary
judgment, such evidence cannot be used to circumvent the
need for a jury instruction on Farmer’s subjective knowledge
requirement once a case reaches a jury.
10               HARRINGTON V. SCRIBNER

II. EQUAL PROTECTION CLAIM

    The fundamental principle that prisoners are protected
from race discrimination is longstanding: “Prisoners are
protected under the Equal Protection Clause of the Fourteenth
Amendment from invidious discrimination based on race.”
Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (citing Lee v.
Washington, 390 U.S. 333 (1968) (per curiam)). In Johnson,
the Supreme Court was unequivocal that strict scrutiny is the
proper standard of review for an equal protection challenge
to a race-based prison policy. 543 U.S. at 515. Similarly
well established is the role that deference to prison officials
plays in prison administration. Turner, 482 U.S. at 89; see
generally Norwood v. Vance, 591 F.3d 1062 (9th Cir. 2010)
(emphasizing importance of deference instruction in Eighth
Amendment claim). The question we consider in this § 1983
case, in the context of the jury instructions on equal
protection, is the relationship between these principles when
race classifications collide with prison security concerns.

     A. JURY INSTRUCTIONS

    The court gave a trio of instructions related to
Harrington’s equal protection claim. It began with an
instruction on “Prisoner’s Claim Regarding Denial of Equal
Protection”:

           Prisoners are protected from racial
       discrimination by the Equal Protection Clause
       of the Fourteenth Amendment to the United
       States Constitution. On his equal protection
       claim, the plaintiff must prove by a
       preponderance of the evidence that
       defendants . . . acted with an intent or purpose
                   HARRINGTON V. SCRIBNER                          11

        to discriminate against the plaintiff, or against
        a class of which the plaintiff is a member,
        based on his race.

            Intentional discrimination means that a
        defendant acted at least in part because of the
        plaintiff’s race.

    The court then instructed the jury that “[t]he state may
take race-based action when necessary to further a compelling
governmental interest,” if the action is “narrowly tailored to
serve such a governmental interest.” The court followed that
instruction by telling the jury that “[i]n considering whether
[the defendants] discriminated against plaintiff because of his
race, you should consider that defendants had a competing
obligation under the Eighth Amendment to ensure the safety
of prisoners, including protecting prisoners from each other
and/or maintaining institutional security. In considering these
factors, you should respect and give deference to the opinion
of prison officials in their adoption and execution of policies
and practices that in their judgment are needed to preserve
discipline and to maintain internal security in a prison.”

    Harrington challenges the latter instruction, which at trial
was denominated as “the Norwood instruction.”1 He argues
that its effect was to lessen the scrutiny that the jury applied
to the equal protection claim. Harrington’s proposed strict
scrutiny instructions did not mention or carve out deference.




 1
    In Norwood, which involved a claimed Eighth Amendment violation
for denial of outdoor exercise, the court endorsed an almost identical
deference instruction. 591 F.3d at 1066.
12               HARRINGTON V. SCRIBNER

    After the court reviewed the Norwood instruction with the
parties and solicited their views, Harrington told the court
that he was “unclear” on this instruction because “that wasn’t
the strict scrutiny instruction.” Through his proposed strict
scrutiny instruction plus his response to the court on the
Norwood instruction, the court was on notice as to
Harrington’s position. Harrington did not waive this error.
We review de novo whether the instruction misstates the law.
If so, the error warrants reversal, unless it is harmless. Dang
v. Cross, 422 F.3d 800, 804–05 (9th Cir. 2005).

     B. JOHNSON V. CALIFORNIA, RACIAL CLASSIFICATIONS
        AND NARROW TAILORING

    The Supreme Court has recognized that “racial
classifications ‘threaten to stigmatize individuals by reason of
their membership in a racial group and to incite racial
hostility.’” Johnson, 543 U.S. at 507 (quoting Shaw v. Reno,
509 U.S. 630, 643 (1993)) (emphasis omitted).
Consequently, racial classifications in prisons are
“immediately suspect” and subject to strict scrutiny, which
requires the government to prove that the measures are
narrowly tailored to further a compelling government interest.
Id. at 509 (quoting Shaw, 509 U.S. at 642).

    Johnson arose in the context of a California Department
of Corrections “unwritten policy of racially segregating
prisoners” each time they entered a new correctional facility.
Id. at 502. Like the lockdown and restrictions imposed here,
the CDC attempted to justify the practice “to prevent violence
caused by racial gangs.” Id.

    In reaffirming the strict scrutiny standard, the Court
reviewed its past cases, such as Lee v. Washington, 390 U.S.
                 HARRINGTON V. SCRIBNER                      13

333 (1968) (per curiam), applying heightened review “in
evaluating racial segregation in prisons.” Johnson, 543 U.S.
at 506–07. It emphasized that “strict scrutiny is no less
important” where “prison officials cite racial violence as the
reason for their policy.” Id. at 507.

    Significant to our case, the prison officials in Johnson
alleged that their judgments were entitled to the same
deference as the defendants in Turner. Id. at 509. The Court
rebuffed this effort, noting that Turner did not involve a race-
based classification and had never been applied to racial
classifications. The reason is that “[t]he right not to be
discriminated against based on one’s race is not susceptible
to the logic of Turner. It is not a right that need necessarily
be compromised for the sake of proper prison
administration.” Id. at 510.

    The Court went on to confirm its implicit holding in Lee:
“The ‘necessities of prison security and discipline,’ are a
compelling government interest justifying only those uses of
race that are narrowly tailored to address those necessities.”
Johnson, 543 U.S. at 512 (citation omitted) (quoting Lee,
390 U.S. at 334). The bottom line is that prison security and
deference to prison authorities do not trump Johnson’s
narrow tailoring requirement.

    We have not addressed previously the relationship
between strict scrutiny in a race discrimination equal
protection claim and the principle of deference to prison
officials that originated in cases involving Eighth
Amendment claims. In Norwood, we established that
“[p]rison officials are entitled to deference whether a prisoner
challenges excessive force or conditions of confinement.”
591 F.3d at 1067. In Norwood, however, only Eighth
14               HARRINGTON V. SCRIBNER

Amendment claims were before the court. Tellingly, we
“express[ed] no view as to the race-based aspect of the
lockdowns” that were challenged, nor did we take a position
on “any potential Equal Protection claim.” Id. at 1066 n.1.
This case requires us to consider precisely the questions left
unanswered in Norwood. We now conclude that even where
deference is owed to prison officials as to one claim in a suit,
such as an Eighth Amendment claim, the strict scrutiny
analysis of an equal protection claim does not
indiscriminately incorporate that deference. Nor do the
claims compete.

    This approach is in keeping with the Supreme Court’s
observations on the more deferential test that Justice Thomas
would have applied in Johnson: “Justice Thomas takes a
hands-off approach to racial classifications in prisons,
suggesting that a ‘compelling showing [is] needed to
overcome the deference we owe to prison administrators.’
But such deference is fundamentally at odds with our equal
protection jurisprudence. We put the burden on state actors
to demonstrate that their race-based policies are justified.”
543 U.S. at 506 n.1 (citation omitted).

     The district court accurately instructed the jury on the
elements of race discrimination and strict scrutiny. The jury
was told that the race-based action could be justified if it was
narrowly tailored to serve a compelling government interest.
So far, so good. But the follow-on instruction on deference,
which was specifically pegged to the race claim, basically
pulled the rug out from under the narrow tailoring
requirement. The instruction pitched the two claims as
competing against one another—“[i]n considering whether
defendants . . . discriminated against [Harrington] because of
his race, you should consider that defendants had a competing
                  HARRINGTON V. SCRIBNER                      15

obligation under the Eighth Amendment to ensure the safety
of prisoners . . . .” It thus suggested that Harrington’s success
on the equal protection claim was in some way dependent on
the defendants’ loss on the Eighth Amendment claim. Then
the instruction took an even more devastating blow to the
narrow tailoring requirement by enshrining the “policies and
practices” of prison officials with broad deference rather than
putting the specific practices challenged here to the test of
narrow tailoring. In doing so, the court diluted the
requirements of strict scrutiny by introducing the notion that
the standard governing a race discrimination claim is in
equipoise with the deference owed to prison officials in an
Eighth Amendment context, even though the analysis for
each type of claim differs.

    We conclude that the court erred when it instructed the
jury that the prison’s obligations under the Eighth
Amendment compete with its obligations under the Equal
Protection Clause of the Fourteenth Amendment. A
prisoner’s success on an equal protection claim is not
dependent on whether the government met its obligations
under the Eighth Amendment. In light of Johnson’s clear
direction, the court also erred by allowing the jury to defer
generally to officials when considering Harrington’s equal
protection claim, rather than assessing whether the challenged
race-based actions were narrowly tailored.

    Our analysis should not be read to mean that deference
plays no role in prisoners’ constitutional claims. Writing
with respect to First Amendment and right to marry
regulations in the prison context, the Supreme Court in
Turner explained: “Subjecting the day-to-day judgments of
prison officials to an inflexible strict scrutiny analysis would
seriously hamper their ability to anticipate security problems
16               HARRINGTON V. SCRIBNER

and to adopt innovative solutions to the intractable problems
of prison administration.” 482 U.S. at 89. In a recent Fourth
Amendment case, the Court “confirmed the importance of
deference to correctional officials” in the context of
maintaining security and discipline in the jail. Florence v.
Bd. of Chosen Freeholders, 132 S. Ct. 1510, 1515–16 (2012)
(citing Turner, 482 U.S. at 89). Likewise, in the Norwood
challenge to prison conditions relating to lockdowns and
outdoor exercise, we reiterated the importance of deference.
591 F.3d at 1067.

     But none of these cases involved claims governed by
strict scrutiny, which allows deference a limited role. See
Johnson, 543 U.S. at 509, 513 (rejecting the more deferential
Turner test as “too lenient a standard to ferret out invidious
uses of race”). In Grutter v. Bollinger, 539 U.S. 306 (2003),
superseded on other grounds by Mich. Const. art I, § 26,
deference played a role in assessing whether the
government’s asserted interest was compelling, but not
whether its actions were narrowly tailored to serve that
interest. The Supreme Court deferred to the University of
Michigan Law School’s expert “educational judgment that
[attaining a diverse student body] is essential to its
educational mission,” and thus was a compelling interest. Id.
at 328–29. Such an interest could justify the law school’s use
of race in admissions only if the means chosen to further that
interest were “specifically and narrowly framed to
accomplish that purpose.” Id. at 333 (quoting Shaw v. Hunt,
517 U.S. 899, 908 (1996)). Deference played no role in the
Court’s assessment of whether the law school’s use of race
was narrowly tailored. Id. at 333–43; see also Fisher v. Univ.
of Tex. at Austin, 133 S. Ct. 2411, 2419–20 (2013) (“The
[government] must prove that the means chosen . . . are
narrowly tailored to that goal. On this point, the University
                    HARRINGTON V. SCRIBNER                            17

receives no deference.”). The jury instructions here did not
differentiate how deference could properly inform the jury’s
consideration of the differing constitutional claims.2

    Finally, we emphasize that penological interests may still
factor into the analysis of an equal protection claim. “The
‘necessities of prison security and discipline,’ are a
compelling government interest justifying only those uses of
race that are narrowly tailored to address those necessities.”
Johnson, 543 U.S. at 512 (citation omitted) (quoting Lee,
390 U.S. at 334). Such interests properly inform whether
there exists a compelling interest, but they do not excuse the
narrow tailoring requirement.

    C. PREJUDICE

    Although we review the instructions as a whole, the
instructions here cannot be harmonized because the deference
instruction circles back to whether the prison discriminated
against Harrington because of his race. Although one
instruction recites strict scrutiny, the deference instruction
introduces a new and different standard. Taken together, the
overall effect of the instructions was misleading. See Dang,
422 F.3d at 804 (stressing that instructions “must not be
misleading”). The evidence was never put to the correct


   2
     In Cutter v. Wilkinson, 544 U.S. 709 (2005), the Supreme Court
analyzed statutory rights under the Religious Land Use and
Institutionalized Persons Act, 42 U.S.C. § 2000cc-1(a)(1)–(2). The Court
relied on legislative history to determine Congress’s intended role for
deference in assessing whether a burden to a prisoner’s religious exercise
furthers a “compelling governmental interest” by the “least restrictive
means.” Cutter, 544 U.S. 709, 717, 722–23 (2005). As a statutory case,
Cutter does not inform our analysis of the constitutional claim presented
here.
18                  HARRINGTON V. SCRIBNER

“narrow tailoring” test because the jury was told it should
defer to the judgment of prison officials on this score.

    The prison officials argue that any claimed instructional
error is harmless because the verdict form reflects that
Harrington failed to establish that there was any racial
classification at all. This circular response simply skirts the
issue. The jury answered no to the following question: “On
Plaintiff’s equal protection claim, did any Defendant
intentionally discriminate against Plaintiff on account of his
race in violation of the Equal Protection Clause.” If the
answer was no, the defendants argue, then that was the end of
Harrington’s equal protection claim. But the jury gave this
answer after having been instructed that the strict scrutiny
standard governing whether the defendants acted “in violation
of the Equal Protection Clause” could give way to the lesser
deference standard in evaluating the race claim. The flaw in
the instructions thus skewed how the jury would have
understood the verdict form. The error is prejudicial. See
Wilkerson v. Wheeler, 772 F.3d 834, 838 (9th Cir. 2014)
(requiring for an error to be harmless that it be “more
probable than not that the jury would have reached the same
verdict had it been properly instructed”).3

III.     DENIAL OF COUNSEL

    It is well established that “[t]he decision to appoint
counsel in a civil suit is one of discretion and a district court’s
determination will be overturned only for abuse of that
discretion.” Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir.


  3
     It is unnecessary to determine whether, as Harrington argues, the
“reasonableness” defense on the verdict form constitutes reversible error
in light of our determination that the jury instructions were infirm.
                 HARRINGTON V. SCRIBNER                     19

2014) (citing Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir.
2009)). The court must consider whether there is a
“likelihood of success on the merits” and whether “the
prisoner is unable to articulate his claims in light of the
complexity of the legal issues involved.” Id. Harrington’s
claims were relatively straightforward equal protection and
deliberate indifference claims. Despite his medical issues, he
articulated his claims well. He filed a pretrial statement,
motions, proposed jury instructions, and other substantive
documents, and engaged with opposing counsel and the court
throughout years of legal proceedings. Although there were
some tricky legal issues regarding the instructions,
Harrington spotted the key jury instruction issue that is the
subject of this opinion. Harrington served as the lead law
library clerk in prison, and the court commended him at trial
for presenting his case well. The court did not abuse its
discretion by denying him appointed counsel.

    AFFIRMED as to Harrington’s Eighth Amendment
deliberate indifference claim and the district court’s decision
not to appoint counsel. REVERSED, VACATED and
REMANDED as to Harrington’s equal protection claim.
Each party shall bear its own costs on appeal.



O’SCANNLAIN, Circuit Judge, concurring in part and
dissenting in part:

    I concur in the Court’s analysis of Harrington’s deliberate
indifference and appointment of counsel claims and join in
the opinion and judgment to that extent. I must respectfully
dissent, however, from the Court’s equal protection analysis
20                   HARRINGTON V. SCRIBNER

and conclude that the relevant jury instruction appropriately
incorporated deference to prison officials’ unique expertise.

                                     I

    In Johnson v. California, 543 U.S. 499 (2005), the
Supreme Court overturned a Ninth Circuit decision which had
expressly rejected the strict scrutiny standard for equal
protection claims against prison officials in favor of what the
Supreme Court referred to as the “deferential” Turner
standard, which asks whether the regulation was “‘reasonably
related’ to ‘legitimate penological interests.’” Id. at 504, 510
(quoting Tuner v. Safley, 482 U.S. 78, 89 (1987)). As the
Johnson Court emphasized throughout its opinion, the two
standards are fundamentally incompatible—the Turner
standard requires merely a reasonable relationship to
legitimate interests, while strict scrutiny requires “narrow[]
tailor[ing]” to a “compelling” interest. Id. at 505 (emphasis
added). Thus, Johnson established that when evaluating
equal protection claims against prison officials, strict, rather
than intermediate, scrutiny is the applicable test.

    Our decision in Norwood v. Vance, 591 F.3d 1062 (9th
Cir. 2010), does not address—and thereby does not alter—the
appropriate tier of scrutiny to apply when analyzing Eighth
Amendment or equal protection claims. Rather, we instructed
that “[p]rison officials are entitled to deference whether a
prisoner challenges excessive force or conditions of
confinement.” Id. at 1067 (emphasis added).1


  1
   The majority is correct in its observation that Norwood specifically
addressed only Eighth Amendment deliberate indifference claims. Maj.
Op. at 13–14. The clear language of the opinion, however, describes the
application of deference in terms of the type of activity challenged, rather
                     HARRINGTON V. SCRIBNER                             21

    Here, as the majority acknowledges, the trial court
accurately instructed the jury to apply a strict scrutiny
analysis to Harrington’s equal protection claim. Maj. Op. at
14. The trial court then, as required by Norwood, instructed
the jury that prison officials are entitled to deference in their
evaluation and adoption of prison policies necessary to
maintain prison security and discipline—the very goals
identified in Johnson as compelling interests that might
justify race-based prison policies. 543 U.S. at 512.

    According to the majority, this second instruction “pulled
the rug out from under the narrow tailoring requirement” by
suggesting that Harrington’s equal protection claim was
“competing” with the prison officials’ defense on the Eighth
Amendment claim. Maj. Op. at 14–15. Such a conclusion,
however, rests on the premise that deference to state officials
is necessarily incompatible with strict scrutiny analysis. See
Maj. Op. at 17 (“Although one instruction recites strict
scrutiny, the deference instruction introduces a new and
different standard.”). But the instruction’s reference to
“competing obligation[s]” simply reflects the reality that
prison officials are forced to balance conflicting
considerations—such as individual prisoner safety and the
safety and security of the prison as a whole—when crafting
prison policies.

    Indeed, the Supreme Court has squarely rejected the view
that deference and strict scrutiny are incompatible,


than the alleged right violated, and thereby indicates that deference should
be afforded any time challenges are made regarding excessive force or
confinement conditions, regardless of whether the challenge alleges
deliberate indifference or an equal protection violation. As Harrington
challenges his conditions of confinement, Norwood, by its terms, applies.
22               HARRINGTON V. SCRIBNER

particularly in situations in which a certain group of state
officials is likely to have specialized knowledge. For
instance, in Cutter v. Wilkinson, 544 U.S. 709 (2005), the
Court analyzed a claim under the Religious Land Use and
Institutionalized Persons Act, 42 U.S.C. § 2000cc-
1(a)(1)–(2), which prohibits the government from imposing
a substantial burden on prisoners’ religious exercise unless
the burden furthers a “compelling governmental interest” by
“the least restrictive means”—the same strict scrutiny test
applied in the equal protection context. Id. at 712. In
conducting its strict scrutiny analysis, the Court explained
that it was appropriate to defer to prison officials’ expertise
when engaging in such strict scrutiny analysis. Id. at 722–23,
725 n.13.

    Similarly, in Grutter v. Bollinger, 539 U.S. 306 (2003),
superseded on other grounds by Mich. Const. art I, § 26, the
Court deferred to law school officials when evaluating
whether the school’s race-based admissions policy withstood
the scrutiny analysis required for equal protection claims. Id.
at 327–28. Specifically, the Court deferred to the officials’
unique ability to determine whether diversity was essential to
the law school’s educational mission and thereby qualified as
a compelling state interest. Id. Thus, the Supreme Court has
made clear that strict scrutiny and deference to state officials
are by no means incompatible, even in the equal protection
context.

    The majority accurately quotes the crucial passage from
Johnson that rejects the Turner standard of review because
“such deference is fundamentally at odds with our equal
protection jurisprudence.” See Maj. Op. at 14 (quoting
Johnson, 543 U.S. at 506 n.1). But the passage must be read
in light of the opinion as a whole. In Johnson, the Court
                 HARRINGTON V. SCRIBNER                     23

rejected a lenient standard of review that fails to put the
burden on state officials to articulate a compelling reason for
engaging in race-based action—a standard that is necessarily
incompatible with strict scrutiny. Viewed in such context, the
passage simply identifies the inherent conflict between the
Turner standard and the strict scrutiny standard. Here,
however, there is no such inherent conflict in applying
deference within the strict scrutiny framework.

    Rather, such a strict scrutiny standard can, and indeed,
under Norwood, must, accommodate a different form of
deference—one that acknowledges the expertise of prison
officials in crafting policies to promote prison safety and
discipline.

                              II

    Because the trial court’s jury instructions accurately
integrate such deference into the strict scrutiny analysis
required by Johnson, I would affirm the jury’s verdict
rejecting Harrington’s equal protection claim and would
affirm the judgment in its entirety.
