Green v. Aranas et al

Filing 12

ORDER directing Clerk to reinstate 1 IFP application; permitting Count I to proceed against Dr. Koehn; dismissing without prejudice, with leave to amend, Counts II and III; allowing Plaintiff 30 days to file an amended complaint; directing Clerk to send Plaintiff 1983 form, instructions, and a copy of his original complaint (mailed 7/20/2015). Signed by Judge Robert C. Jones on 7/14/2015. (Copies have been distributed pursuant to the NEF - KR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Plaintiff,
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v.
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ROMEO ARANAS et al.,
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Defendants.
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___________________________________ )

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I.

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JAMES GREEN,

3:14-cv-245-RCJ-VPC
ORDER

DISCUSSION

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A.

Ninth Circuit Memorandum Opinion

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On May 28, 2014, this Court entered a screening order dismissing Plaintiff’s complaint

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in its entirety with prejudice, as amendment would be futile. (ECF No. 3 at 6). The Court

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construed Plaintiff’s three counts–which alleged retaliation, due process violations, and Eighth

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Amendment violations–as one claim for deliberate indifference to serious medical needs and

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found that Plaintiff failed to state a claim.

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judgment that same day. (ECF No. 5).

(Id. at 3-5). The Clerk of the Court entered

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On June 30, 2014, Plaintiff filed a notice of appeal. (ECF No. 6). On July 7, 2015, the

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Ninth Circuit issued a memorandum opinion vacating and remanding this case. (ECF No. 11

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at 3). The Ninth Circuit held that this Court had construed Plaintiff’s complaint as only raising

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an Eighth Amendment deliberate indifference claim “without first providing [Plaintiff] with notice

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of the deficiencies and an opportunity to amend with the benefit of that notice.” (Id. at 2).

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Additionally, the Ninth Circuit stated that this Court did not address Plaintiff’s retaliation and

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procedural due process claims relating to the discontinuation of medical treatment of Plaintiff’s

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ichthyosis. (Id.). The Ninth Circuit vacated the judgment and remanded to this Court with
instructions “to address the retaliation and procedural due process claims and to provide

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[Plaintiff] with an opportunity to amend his deliberate indifference claim.” (Id.).

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B.

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In the complaint, Plaintiff sues multiple defendants for events that took place while

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Plaintiff was incarcerated at Ely State Prison (“ESP”). (ECF No. 4 at 1). Plaintiff sues

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Defendants NDOC Medical Director Romeo Aranas, Warden Rene Baker, NDOC Director

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James Cox, ESP Director of Nursing J. Gardner, and Dr. Koehn. (Id. at 2-3). Plaintiff alleges

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three counts and seeks declaratory relief, injunctive relief, and monetary damages. (Id. at 7,

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Re-Screening of Original Complaint

i.

Count I

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In Count I, Plaintiff alleges the following: In September 2013, January 2014, and

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February 2014, Plaintiff had filed grievances against the medical staff for “contaminating” his

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prescription speciality drug AmLactin, or lactic acid. (ECF No. 4 at 4). On March 3, 2014, Dr.

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Koehn had discontinued Plaintiff’s lactic acid prescription in order to destroy evidence of such

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contamination. (Id.). Plaintiff had been receiving that medication from the NDOC since 2008.

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(Id.). Plaintiff alleges First Amendment retaliation. (Id.).

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Prisoners have a First Amendment right to file prison grievances and to pursue civil

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rights litigation in the courts. Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2004). “Without

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those bedrock constitutional guarantees, inmates would be left with no viable mechanism to

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remedy prison injustices. And because purely retaliatory actions taken against a prisoner for

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having exercised those rights necessarily undermine those protections, such actions violate

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the Constitution quite apart from any underlying misconduct they are designed to shield.” Id.

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To state a viable First Amendment retaliation claim in the prison context, a plaintiff must

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allege: “(1) [a]n assertion that a state actor took some adverse action against an inmate (2)

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because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s

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exercise of his First Amendment rights, and (5) the action did not reasonably advance a

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legitimate correctional goal.” Id. at 567-68.

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The Court finds that Plaintiff states a colorable claim for retaliation. Based on the

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allegations, Plaintiff filed grievances against the medical staff for contaminating his lactic acid
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medication and, as a result, Dr. Koehn stopped Plaintiff’s prescription even though Plaintiff had

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been receiving the medication for over six years. This claim shall proceed against Dr. Koehn.
ii.

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Count II

In Count II, Plaintiff alleges the following:

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On March 3, 2014, Dr. Koehn had

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discontinued chronic care for Plaintiff’s “rare genetic disorder” called ichthyosis.1 (ECF No. 4

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at 5). According to Plaintiff, his body does not produce lactic acid. (Id.). On March 7, 2014,

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March 14, 2014, and April 11, 2014, Plaintiff had met with Dr. Koehn, but Dr. Koehn had

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refused to discuss Plaintiff’s ichthyosis. (Id.). On April 11, 2014, Dr. Koehn told Plaintiff that

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the medical staff was no longer treating ichthyosis as chronic care. (Id.). Plaintiff asserted that

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Dr. Koehn’s course of non-treatment was painful and ineffective. (Id. at 6). Baker, Gardner,

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Cox, and Aranas had failed to intervene. (Id.). Plaintiff alleges a due process violation. (Id.

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at 5).

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Pursuant to the Ninth Circuit remand, this Court is supposed to address Plaintiff’s

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procedural due process claim relating to the discontinuation of medical treatment of his

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ichthyosis. (ECF No. 11 at 2). This Court finds that Plaintiff cannot state a procedural due

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process claim for the discontinuation of medical treatment and once again believes that this

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issue is an Eighth Amendment deliberate indifference to serious medical needs issue.2 The

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Court dismisses the due process claim, without prejudice, with leave to amend. The Court

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provides Plaintiff with the law for due process and gives Plaintiff the opportunity to state a

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claim for due process upon amendment.

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Under the Fourteenth Amendment, prisoners “may not be deprived of life, liberty, or

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According to the National Institute of Arthritis and Musculosketetal and Skin Diseases
(“NIAMS”), “ichthyosis” is a family of disorders characterized by dry or scaly and thickened
skin. See NIAMS at http://www.niams.nih.gov/health_info/Ichthyosis/. There is no cure for
ichthyosis but treatment is targeted at managing the signs and symptoms which include
itching, overheating, and pain. Id.
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The Court notes that the Ninth Circuit did not provide any case law addressing
whether Plaintiff may state a cognizable procedural due process claim for the discontinuation
of medical treatment. The Court acknowledges that a plaintiff is entitled to procedural due
process when prison officials forcibly medicate a prisoner. See Washington v. Harper, 494
U.S. 210 (1990). However, the Court recognizes that Plaintiff is not alleging forcible
medication in this case.
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property without due process of law.” Wolff v. McDonnell, 418 U.S. 539, 556 (1974).

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However, “the fact that prisoners retain rights under the Due Process Clause in no way implies

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that these rights are not subject to restrictions imposed by the nature of the regime to which

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they have been lawfully committed.” Id. “[T]here must be mutual accommodation between

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institutional needs and objectives and the provisions of the Constitution that are of general

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application.” Id.

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iii.

Count III

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In Count III, Plaintiff alleges the following: On March 3, 2014, Dr. Koehn had refused

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to meaningfully address his order to discontinue Plaintiff’s prescription medication for

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ichthyosis. (ECF No. 4 at 7). When Plaintiff tried to discuss matter on March 14, 2014 and

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April 11, 2014, Dr. Koehn had a correctional officer remove Plaintiff from the exam room. (Id.).

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Baker, Gardner, Aranas, and Cox had known about Dr. Koehn’s actions. (Id.). Dr. Koehn

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should have known that the medical staff had been giving Plaintiff a contaminated prescription

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as early as September 22, 2013 because the medication was causing Plaintiff pain and

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discomfort. (Id.). Dr. Koehn had discontinued the prescription as part of a conspiracy to

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eliminate any evidence for state and federal health investigators. (Id.). Plaintiff alleges an

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Eighth Amendment violation. (Id.).

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The Court interprets the allegations in Counts II and III as a claim for deliberate

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indifference to serious medical needs. The Eighth Amendment prohibits the imposition of

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cruel and unusual punishment and “embodies ‘broad and idealistic concepts of dignity,

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civilized standards, humanity, and decency.’” Estelle v. Gamble, 429 U.S. 97, 102 (1976). A

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prison official violates the Eighth Amendment when he acts with “deliberate indifference” to

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the serious medical needs of an inmate. Farmer v. Brennan, 511 U.S. 825, 828 (1994). “To

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establish an Eighth Amendment violation, a plaintiff must satisfy both an objective

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standard—that the deprivation was serious enough to constitute cruel and unusual

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punishment—and a subjective standard—deliberate indifference.” Snow v. McDaniel, 681

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F.3d 978, 985 (9th Cir. 2012).

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To establish the first prong, “the plaintiff must show a serious medical need by
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demonstrating that failure to treat a prisoner’s condition could result in further significant injury

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or the unnecessary and wanton infliction of pain.” Jett v. Penner, 439 F.3d 1091, 1096 (9th

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Cir. 2006) (internal quotations omitted). To satisfy the deliberate indifference prong, a plaintiff

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must show “(a) a purposeful act or failure to respond to a prisoner’s pain or possible medical

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need and (b) harm caused by the indifference.” Id. “Indifference may appear when prison

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officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the

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way in which prison physicians provide medical care.” Id. (internal quotations omitted). When

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a prisoner alleges that delay of medical treatment evinces deliberate indifference, the prisoner

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must show that the delay led to further injury. See Shapley v. Nevada Bd. of State Prison

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Comm’rs, 766 F.2d 404, 407 (9th Cir. 1985) (holding that “mere delay of surgery, without more,

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is insufficient to state a claim of deliberate medical indifference”).

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A difference of opinion between medical professionals concerning the appropriate

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course of treatment generally does not amount to deliberate indifference to serious medical

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needs. Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Additionally, “[a] difference of

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opinion between a prisoner-patient and prison medical authorities regarding treatment does

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not give rise to a § 1983 claim.” Franklin v. State of Or., State Welfare Div., 662 F.2d 1337,

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1344 (9th Cir. 1981). To establish that a difference of opinion amounted to deliberate

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

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

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conscious disregard of an excessive risk to [the prisoner’s] health.” Jackson v. McIntosh, 90

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F.3d 330, 332 (9th Cir. 1996).

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Based on the allegations as a whole, it appears that Plaintiff disagrees with Dr. Koehn’s

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course of treatment for Plaintiff’s ichthyosis. It appears that Dr. Koehn had decided to

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discontinue treating Plaintiff’s ichthyosis as a chronic care condition. The Court finds that the

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basis of Plaintiff’s complaint is the disagreement with Dr. Koehn’s decision not to treat the

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ichthyosis. As such, this difference of opinion between what Plaintiff thinks his course of

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treatment should be and what Dr. Koehn decided the course of treatment should be does not

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state a § 1983 claim. The Court finds that Plaintiff fails to state a claim. However, in light of
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the Ninth Circuit’s remand, the Court grants Plaintiff leave to amend this claim. If Plaintiff

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chooses to amend, he should focus his allegations on how Dr. Koehn denied, delayed or

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intentionally interfered with Plaintiff’s medical treatment and should describe the type of pain

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caused by those actions.

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C.

Leave to Amend

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Plaintiff is granted leave to file an amended complaint to cure the deficiencies of the

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complaint. If Plaintiff chooses to file an amended complaint he is advised that an amended

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complaint supersedes the original complaint and, thus, the amended complaint must be

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complete in itself. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542,

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1546 (9th Cir. 1989) (holding that “[t]he fact that a party was named in the original complaint

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is irrelevant; an amended pleading supersedes the original”); see also Lacey v. Maricopa

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Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (holding that for claims dismissed with prejudice, a

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plaintiff is not required to reallege such claims in a subsequent amended complaint to preserve

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them for appeal). Plaintiff’s amended complaint must contain all claims, defendants, and

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factual allegations that Plaintiff wishes to pursue in this lawsuit. Moreover, Plaintiff must file

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the amended complaint on this Court’s approved prisoner civil rights form and it must be

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entitled “First Amended Complaint.”

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The Court notes that if Plaintiff chooses to file an amended complaint curing the

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deficiencies of his procedural due process and deliberate indifference claims, as outlined in

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this order, Plaintiff shall file the amended complaint within 30 days from the date of entry of

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this order. If Plaintiff chooses not to file an amended complaint curing the stated deficiencies,

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this action shall proceed against Dr. Koehn on the retaliation claim only.

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II.

CONCLUSION

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For the foregoing reasons, IT IS ORDERED that the Clerk of the Court shall reinstate

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the application to proceed in forma pauperis (ECF No. 1) in light of the Ninth Circuit remand.

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IT IS FURTHER ORDERED that Count I, alleging retaliation, shall proceed against

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Defendant Dr. Koehn.
IT IS FURTHER ORDERED that Count II, alleging procedural due process violations,
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is dismissed, without prejudice, with leave to amend.
IT IS FURTHER ORDERED that Count III, alleging deliberate indifference to serious
medical needs, is dismissed, without prejudice, with leave to amend.

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IT IS FURTHER ORDERED that if Plaintiff chooses to file an amended complaint curing

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the deficiencies of his complaint, as outlined in this order, Plaintiff shall file the amended

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complaint within 30 days from the date of entry of this order.

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IT IS FURTHER ORDERED that the Clerk of the Court shall send to Plaintiff the

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approved form for filing a § 1983 complaint, instructions for the same, and a copy of his

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original complaint (ECF No. 4). If Plaintiff chooses to file an amended complaint, he must use

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the approved form and he shall write the words “First Amended” above the words “Civil Rights

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Complaint” in the caption.

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IT IS FURTHER ORDERED that if Plaintiff chooses not to file an amended complaint

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curing the stated deficiencies of the complaint, this action shall proceed on the First

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Amendment retaliation claim only.

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Dated: July 14, 2015.day of July, 2015.
DATED: This _____

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_________________________________
United States District Judge

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