Odoms v. Aranas et al

Filing 73

ORDER denying without prejudice ECF No. 57 Motion for Preliminary Injunction. "Second Amended" Complaint due by 6/16/2018. Clerk shall send P 1983 form, instructions, and First Amended Complaint (ECF No. 7 ) (Form, instr, copy of complaint attached hereto for electronic distribution to P via NNCC law library.) Signed by Judge Miranda M. Du on 5/16/2018. (Attachments: # 1 1983 Form, # 2 1983 Instructions, # 3 Copy of First Amended Complaint)(Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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J. BENJAMIN ODOMS,

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Case No. 3:16-cv-00159-MMD-VPC
Plaintiff,

ORDER

v.
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ROMEO ARANAS, et al.,
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Defendants.
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I.

SUMMARY

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Before the Court is Plaintiff J. Benjamin Odoms’s second motion for preliminary

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injunction (“Second PI Motion”) (ECF No. 57). The Court has reviewed Defendant Marsha

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Johns’s response (ECF No. 61) and Plaintiff’s reply (ECF No. 68). For the following

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reasons, the Court denies Plaintiff’s Second PI Motion without prejudice and sua sponte

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grants Plaintiff leave to amend his First Amended Complaint (“FAC”).

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II.

BACKGROUND AND PROCEDURAL HISTORY

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

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(“NDOC”) who is currently housed at the Northern Nevada Correctional Center (“NNCC”).

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(ECF No. 10 at 1.) The screening order details the allegations in Plaintiff’s FAC. (Id. at 4-

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10.) The screening order permitted Plaintiff’s deliberate indifference to serious medical

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needs claims in Count I to proceed against Defendant Dr. Gedney and in Count II to

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proceed against Defendants Dr. Johns and Dr. Gedney. (Id. at 10.) The deliberate

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indifference claim in Count I is based on Plaintiff’s allegations that he did not receive

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adequate treatment for hepatitis C (“hep-C”), while the deliberate indifference claim in

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Count II is based on Plaintiff’s allegations that he was denied treatment for hep-C due to

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the cost of treatment. (See id. at 4-8.) The treatment Plaintiff seeks is a medication called

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Harvoni that could cure his hep-C. (ECF No. 36 at 12.)

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Defendants have maintained that Plaintiff does not qualify for Harvoni under NDOC

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Medical Directive 219 (“Medical Directive”) (ECF No. 12 at 7 (citing ECF No. 12-2 at 2-3);

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ECF No. 61 at 8), which establishes eligibility criteria for hep-C treatment.1 (See also ECF

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No. 9 at 8-10.) Individuals with Aspartate Aminotransferase Platelet Ratio Index (“APRI”)

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scores less than 2.0 (or 1.5 in the presence of findings suggestive of advanced

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fibrosis/cirrhosis) are ineligible for treatment.2 (ECF No. 12 at 6 (citing ECF No. 12-3 at

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5).) Plaintiff’s most recent APRI scores have been lower than even 1.5. (ECF No. 61 at

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9.)

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This is Plaintiff’s second motion for preliminary injunction before the Court. Plaintiff

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filed his first motion for preliminary injunction (“First PI Motion”) on May 16, 2017. (ECF

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No. 9.) The Magistrate Judge held a hearing on Plaintiff’s First PI Motion on July 25, 2017,

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and subsequently issued a report and recommendation (“R&R”) that Plaintiff’s First PI

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Motion be denied. (ECF Nos. 21, 23.) The Court adopted the Magistrate Judge’s R&R in

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full and denied Plaintiff’s First PI Motion. (ECF No. 58.)

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III.

LEGAL STANDARD

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“‘An injunction is a matter of equitable discretion’ and is ‘an extraordinary remedy

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that may only be awarded upon a clear showing that the plaintiff is entitled to such relief.’”

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Earth Island Inst. v. Carlton, 626 F.3d 462, 469 (9th Cir. 2010) (quoting Winter v. Nat.

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Res. Def. Council, 555 U.S. 7, 22, 32 (2008)). To qualify for a preliminary injunction, a

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the Magistrate Judge noted, the APRI score represents the standard by which
NDOC and the Federal Bureau of Prisons assess whether the Harvoni treatment is
appropriate for a particular patient. (ECF No. 36 at 16-17; ECF No. 12-2 at 2-3.)
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APRI score above 1.5 indicates that the patient likely has, or is quickly
approaching, cirrhosis of the liver, according to prison officials in a similar case. King v.
Calderwood, No. 2:13-cv-02080-GMN-PAL, 2016 WL 4771065, at *5 (D. Nev. Sept. 12,
2016), aff’d sub nom. King v. Cox, 692 F. App’x 398 (9th Cir. 2017). An APRI score above
0.5 indicates the likelihood of some liver damage (fibrosis). Id.
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plaintiff must demonstrate: (1) he is likely to succeed on the merits; (2) he is likely to suffer

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irreparable harm in the absence of preliminary relief; (3) that the balance of hardships

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favors the plaintiff; and (4) that the injunction is in the public interest. Winter, 555 U.S. at

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20; All. for the Wild Rockies v. Cottrell, 623 F.3d 1127, 1131 (9th Cir. 2011).

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Alternatively, in the Ninth Circuit, an injunction may issue under a “sliding scale”

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approach if there are serious questions going to the merits and the balance of equities

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tips sharply in the plaintiff’s favor. All. for the Wild Rockies, 632 F.3d at 1134-35. The

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plaintiff, however, must still show a likelihood of irreparable harm and that an injunction

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is in the public interest. Id. at 1135. “[S]erious questions are those ‘which cannot be

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resolved one way or the other at the hearing on the injunction.’” Bernhardt v. L.A. Cty.,

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339 F.3d 920, 926-27 (9th Cir. 2003) (quoting Republic of the Phil. v. Marcos, 862 F.2d

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1355, 1362 (9th Cir. 1988)). They “need not promise a certainty of success, nor even

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present a probability of success, but must involve a ‘fair chance of success on the merits.’”

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Marcos, 862 F.2d at 1362 (quoting Nat’l Wildlife Fed’n v. Coston, 773 F.2d 1513, 1517

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(9th Cir. 1985)).

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IV.

DISCUSSION

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Defendants argue that the Court should strike or summarily deny Plaintiff’s Second

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PI Motion because it is duplicative of the first. (ECF No. 61 at 6.) The Court agrees that

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Plaintiff’s Second PI Motion is similar to the first. However, there is one material difference

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between the two. Unlike in the First PI Motion, Plaintiff challenges the Medical Directive

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itself in the Second PI Motion. (See ECF No. 58 at 4.) In the Second PI Motion, Plaintiff

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challenges the Medical Directive as medically inappropriate because APRI scores do not

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accurately reflect the health of an individual’s liver. (ECF No. 68 at 5.) Plaintiff further

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challenges the Medical Directive as inconsistent with the current standard of care

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because the current standard of care requires treatment with Harvoni (or similarly curative

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medications) for nearly all individuals infected with hep-C, while the Medical Directive

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establishes more stringent criteria for treatment. (ECF No. 57 at 3.)

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Nevertheless, Plaintiff’s Second PI Motion will be denied without prejudice

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because Plaintiff does not challenge the Medical Directive in his FAC. 3 Plaintiff cannot

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demonstrate a likelihood of success on the merits of a claim that lies outside his FAC.

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See Winter, 555 U.S. at 20. However, given that Defendants have had notice of Plaintiff’s

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potential to challenge the Medical Directive, the Court will sua sponte grant Plaintiff leave

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to amend his FAC in order to ground the allegations and arguments raised in his Second

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PI Motion. Gypsum Res., LLC v. Masto, 672 F. Supp. 2d 1127, 1132 (D. Nev. 2009)

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(“Defendants here have long had notice of the relevant issues based on the Complaint,

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even if section 25 was not explicitly pled, so the Court will grant leave to amend sua

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sponte and address Section 25.”).

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

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

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complaint will supersede (completely replace) any prior complaint and, thus, the amended

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complaint must be complete in itself. See Hal Roach Studios, Inc. v. Richard Feiner &

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Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (holding that “[t]he fact that a party was

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named in the original complaint is irrelevant; an amended pleading supersedes the

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original”); see also Lacey v. Maricopa Cty., 693 F.3d 896, 928 (9th Cir. 2012) (holding

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that for claims dismissed with prejudice, a plaintiff is not required to reallege such claims

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in a subsequent amended complaint to preserve them for appeal). Plaintiff’s amended

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complaint must contain all claims, defendants, and factual allegations that Plaintiff wishes

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to pursue in this lawsuit. Moreover, Plaintiff must file the amended complaint on this

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Court’s approved prisoner civil rights form and it must be entitled “Second Amended

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Complaint.”

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

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deficiencies, as outlined in this Order, Plaintiff must file the amended complaint within 30

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days from the date of entry of this Order.

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Court will not consider Defendants’ other arguments in light of this basis for
denying Plaintiff’s Second PI Motion.
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V.

CONCLUSION
It is therefore ordered that Plaintiff’s Second PI Motion (ECF No. 57) is denied

without prejudice.

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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 FAC, as outlined in this Order, Plaintiff must 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 send to Plaintiff the approved form

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for filing a section 1983 complaint, instructions for the same, and a copy of his original

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FAC (ECF No. 7). If Plaintiff chooses to file an amended complaint, he must use the

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approved form and write the words “Second Amended” above the words “Civil Rights

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Complaint” in the caption.

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DATED THIS 16th day of May 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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