Thomas v. Cox et al

Filing 9

ORDER. IT IS HEREBY ORDERED that 2 Motion to Appoint Counsel is DENIED. IT IS FURTHER ORDERED that Thomas's complaint is DISMISSED in its entirety with leave to amend. Amended Complaint deadline: 5/28/2016. The Clerk of Court is instructed to send Thomas an approved form for filing a § 1983 complaint, instructions for the same, and a copy of her 6 complaint. Signed by Judge Jennifer A. Dorsey on 4/28/16. (Copies have been distributed pursuant to the NEF - TR)

1

UNITED STATES DISTRICT COURT

2

DISTRICT OF NEVADA

3
4

Cassandra Thomas,
2:16-cv-00080-JAD-CWH

5

Plaintiff
Order Screening Complaint and
Denying Motion for Appointment of
Counsel

6

v.

7

James G. Cox, et al.,
[ECF Nos. 2, 6]

8

Defendants

9
10

Nevada state prisoner Cassandra Thomas sues prison officials and medical staff under 42

11

USC § 1983 for failing to provide her with adequate medical treatment.1 Thomas also asks the court

12

to appoint her counsel.2 Having screened Thomas’s complaint under the Prison Litigation Reform

13

Act (PLRA),3 I dismiss her claims without prejudice and give Thomas until May 28, 2016, to file an

14

amended complaint curing the deficiencies outlined in this order, and I deny Thomas’s motion for

15

appointment of counsel.

16

Background

17

Thomas sues multiple defendants for events that took place while she was incarcerated at

18

Nevada’s Florence McClure Women’s Correctional Center (“FMWCC”).4 Thomas sues the NDOC

19

Director James G. Cox, Warden Jo Gentry, Dr. James Holmes, Nurse Beebe Clark, Nurse John B.

20

Faulkner, Dr. Dulce Kaybotay, and Medical Director Romeo Aranas.5 Thomas alleges three counts

21
22
23
1

ECF No. 6.

2

ECF No. 2.

24
25
26

3

27

4

ECF No. 6 at 1.

28

5

Id. at 2–4.

28 U.S.C. § 1915A.

Page 1 of 6

1

and seeks declaratory and injunctive relief and damages.6
Thomas alleges that she is a chronic Hepatitis C patient.7 She has been diligently seeking

2
3

treatments for the disease since she learned about the Hepatitis C cure,8 but defendants have

4

consistently denied her the cure due to “cost saving measures.”9 Since March 2014, Thomas has

5

suffered from headaches, fatigue, abdominal and joint pain, mental and emotional turmoil,

6

depression with anxiety, and stress.10

7

In response to a medical grievance, defendant Nurse Clark told Thomas that “very limited

8

cases of hep C have success with treatment and few have been treated by the NDOC; specific

9

qualifications and rules would apply.”11 Faulkner has told Thomas that her condition is “being

10

managed in accordance with NDOC protocols.”12 Thomas asserts that defendants have committed

11

due-process violations, medical malpractice, deliberate indifference, conspiracy to violate rights, and

12

negligent infliction of emotional distress.13 I construe Thomas’s allegations as a claim for deliberate

13

indifference to serious medical needs and screen this claim under the PLRA.

14
15
16
17
18
19
20

6

Id. at 8, 12.

7

Id. at 4.

8

Id.

9

Id.

21
22
23
24

10

Id. at 5.

26

11

Id. at 11.

27

12

Id.

28

13

Id. at 6–8.

25

Page 2 of 6

1
2

Discussion
A.

3

Screening standards
The PLRA directs federal courts to conduct a preliminary screening of any case in which a

4

prisoner seeks redress from a governmental entity or officer or an employee of a governmental

5

entity.14 In its review, the court must identify any cognizable claims and dismiss any claims that are

6

frivolous, malicious, fail to state a claim upon which relief may be granted, or seek monetary relief

7

from a defendant who is immune from monetary relief.15 To state a claim under 42 U.S.C. § 1983, a

8

plaintiff must allege two essential elements: (1) the violation of a right secured by the Constitution or

9

laws of the United States, and (2) that the alleged violation was committed by a person acting under

10

color of state law.16 Pro se pleadings must be liberally construed.17

11

Dismissal of a complaint for failure to state a claim upon which relief can be granted is

12

permitted by FRCP 12(b)(6), and the court applies the same standard under 28 USC § 1915 when

13

reviewing the adequacy of a complaint. When a court dismisses a complaint under § 1915(e), the

14

plaintiff should be given leave to amend the complaint with directions for curing its deficiencies,

15

unless it is clear from the face of the complaint that the deficiencies could not be cured by

16

amendment.18

17

B.

18

Deliberate indifference to serious medical needs
A prison official violates the Eighth Amendment when he acts with “deliberate indifference”

19

to the serious medical needs of an inmate.19 “To establish an Eighth Amendment violation, a

20

plaintiff must satisfy both an objective standard—that the deprivation was serious enough to

21
22
14

See 28 U.S.C. § 1915(a).

15

See 28 U.S.C. § 1915A(b)(1)(2).

16

See West v. Atkins, 487 U.S. 42, 48 (1988).

26

17

Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

27

18

See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995).

28

19

Farmer v. Brennan, 511 U.S. 825, 828 (1994).

23
24
25

Page 3 of 6

1

constitute cruel and unusual punishment—and a subjective standard—deliberate indifference.”20

2

“A difference of opinion between a prisoner-patient and prison medical authorities regarding

3

treatment does not give rise to a § 1983 claim.”21 To establish that a difference of opinion amounted

4

to deliberate indifference, the prisoner “must show that the course of treatment the doctors chose was

5

medically unacceptable under the circumstances” and “that they chose this course in conscious

6

disregard of an excessive risk to [the prisoner’s] health.”22 “[A] complaint that a physician has been

7

negligent [or even grossly negligent] in diagnosing or treating a medical condition does not state a

8

valid claim of medical mistreatment under the Eighth Amendment.”23

9

C.

Thomas fails to state a claim for deliberate indifference to her serious medical needs.

10

The crux of Thomas’s allegations is that she disagrees with the prison medical staff’s course

11

of treatment for her Hepatitis C. Based on the alleged grievance responses, the prison medical staff

12

appear to state that the Hepatitis C cure does not work on everyone and that patients need to meet

13

specific qualifications to qualify for that treatment. Thomas’s disagreement with the prison medical

14

staff’s course of treatment does not give rise to a constitutional claim because she pleads no facts to

15

show that denying her the cure is medically unacceptable under the circumstances or that prison

16

medical staff chose to deny her this cure in conscious disregard of an excessive risk to her health. I

17

therefore dismiss Thomas’s claim with leave to amend.

18

Thomas is instructed that, if she chooses to file an amended complaint, she should follow the

19

directions in the form complaint and “[s]tate the facts clearly, [and] in [her] own words . . . describe

20

exactly what each specific defendant (by name) did to violate [her] rights.” Thomas is also

21

instructed that her amended complaint should provide more details about her communications with

22

prison medical staff about receiving the Hepatitis C cure, including their explanation for denying it.

23
24

20

Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012).

25

21

Franklin v. State of Or., State Welfare Div., 662 F.2d 1337, 1344 (9th Cir. 1981).

22

Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996).

26
27

23

28

Estelle v. Gamble, 429 U.S. 97, 106 (1976); see also Toguchi v. Chung, 391 F.3d 1051, 1060 (9th
Cir. 2004).
Page 4 of 6

1

Thomas should also describe the treatment she is currently receiving for her Hepatitis C.

2

Thomas is advised that an amended complaint supersedes the original complaint and thus the

3

amended complaint must be complete in itself without reference to the original complaint. Thomas

4

is cautioned that her amended complaint must contain all claims, defendants, and factual allegations

5

that she wishes to pursue in this action. Thomas must file her amended complaint on this court’s

6

approved prisoner civil-rights form and it must be entitled “First Amended Complaint.” If Thomas

7

chooses to file an amended complaint, she must do so by May 28, 2016. If Thomas does not file an

8

amended complaint by this deadline, this case will be dismissed without prejudice and without

9

further notice, and it will be closed.

10

D.

Motion for appointment of counsel
Thomas also moves for court-appointed counsel.24 There is no constitutional right to

11
12

appointed counsel in § 1983 actions.25 A court may, in its discretion “request an attorney to

13

represent any person unable to afford counsel.”26 But a court should appoint counsel for indigent

14

civil litigants only in “exceptional circumstances.”27 No exceptional circumstances exist in this case

15

to warrant appointment of counsel, so Thomas’s motion for appointment of counsel is denied.

16

Conclusion

17

Accordingly, IT IS HEREBY ORDERED that Thomas’s motion for appointment of

18

counsel [ECF No. 2] is DENIED.

19

IT IS FURTHER ORDERED that Thomas’s complaint is DISMISSED in its entirety with

20

leave to amend. If Thomas chooses to file an amended complaint curing the deficiencies

21

outlined in this order, she must do so by May 28, 2016. If Thomas fails to file an amended

22

complaint curing the deficiencies outlined in this order by this deadline, this action will be dismissed

23

with prejudice and without further notice, and this case will be closed.

24
24

ECF No. 2.

26

25

Storseth v. Spellman, 654 F.2d 1349, 1353 (9th Cir. 1981).

27

26

28 U.S.C. § 1915(e)(1).

28

27

Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009).

25

Page 5 of 6

1
2
3
4
5

The Clerk of Court is instructed to send Thomas an approved form for filing a § 1983
complaint, instructions for the same, and a copy of her original complaint [ECF No. 6].
Dated this 28th day of April, 2016.
_________________________________
_____________________
_
__ _______ _ _
Jennifer A. Dorsey
nnife A Dorsey
fer
fe
fe
United States District Judge
ited States
tat
ct ud
ct Judge

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Page 6 of 6