Cottle v. Cox et al

Filing 18

ORDER IFP status shall not continue on appeal. Signed by Judge Robert C. Jones on 1/7/16. (Copies have been distributed pursuant to the NEF; copy sent to USCA 9th Circuit via NEF - JC)

1
2
3
4
5
6
7
8
9
10
11

UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
______________________________________
)
)
SEAN D. COTTLE,
)
)
Plaintiff,
)
)
vs.
)
)
JAMES COX et al.,
)
)
Defendants.
)
)

3:15-cv-00237-RCJ-WGC
ORDER

12
13

Plaintiff James Cox is a prisoner in the custody of the Nevada Department of Corrections

14

(“NDOC”). He sued Renown Regional Medical Center (“Renown”) and five individual

15

Defendants in this Court for violations of his Eighth Amendment rights under § 1983 based on

16

alleged improper treatment of his HIV. Plaintiff listed six counts, each of them for violations of

17

the Eighth Amendment, inadequate medical care, negligence, and breach of contract. The

18

gravamen of the Complaint was that NDOC treats Plaintiff’s HIV in part through telemedicine

19

from Renown, and Plaintiff argued that constituted cruel and unusual punishment, medical

20

malpractice, and a breach of contract.

21

The Court dismissed the federal claim, finding that it essentially alleged medical

22

malpractice, and declined supplemental jurisdiction over the state law claims for, inter alia,

23

medical malpractice. Plaintiff has appealed, and the Court of Appeals has referred the case to the

24

Court to determine whether in forma pauperis status should continue on appeal.

1 of 2

1

The Court finds that in forma pauperis status should not continue on appeal, as the appeal

2

is frivolous. See 28 U.S.C. § 1915(a)(3). The claim sounds in medical malpractice, not cruel and

3

unusual punishment. “[A] complaint that a physician has been negligent in diagnosing or

4

treating a medical condition does not state a valid claim of medical mistreatment under the

5

Eighth Amendment. It does not become a constitutional violation merely because the victim is a

6

prisoner.” Estelle v. Gamble, 429 U.S. 97, 106 (1976).
CONCLUSION

7
8

IT IS HEREBY ORDERED that in forma pauperis status shall not continue on appeal.

9

IT IS SO ORDERED.

10

Dated this 7th day of January, 2015.
Dated this 15th day of December, 2016.

11
12

_____________________________________
ROBERT C. JONES
United States District Judge

13
14
15
16
17
18
19
20
21
22
23
24

2 of 2