Griffith v. Aranas, et al.

Filing 47

ORDER that this case is referred to the Pro Bono Program for appointment of counsel; Clerk to forward this order to Pro Bono Liaison (e-served on 01/09/2018); Motion to Extend Time ECF No. 33 is granted re 32 Report and Recommendation; Court to issue a separate order scheduling evidentiary hearing even if pro bono counsel is not located. Signed by Judge Miranda M. Du on 1/9/2018. (Copies have been distributed pursuant to the NEF - KW)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 *** 9 ROY GRIFFITH, Case No. 3:16-cv-00309-MMD-VPC Plaintiff, 10 ORDER v. 11 ROMEO ARANAS, et al., 12 Defendants. 13 14 Before the Court is the Report and Recommendation of United States Magistrate 15 Judge Valerie P. Cooke (ECF No. 32) (“R&R” or “Recommendation”) relating to Plaintiff’s 16 emergency motions for a temporary restraining order and preliminary injunction (ECF Nos. 17 23, 24). Plaintiff filed his objection to the R&R on December 12, 2017.1 (ECF No. 37.) 18 Defendant responded (ECF No. 38) and Plaintiff replied (ECF No. 39).2 For the reasons 19 described below, the Court schedules an evidentiary hearing and refers this case to the 20 Pro Bono Program (“Program”) adopted in General Order 2016-02. 21 After screening pursuant to 28 U.S.C. § 1915A, the Court permitted Plaintiff to 22 proceed on one Eighth Amendment claim of deliberate indifference to serious medical 23 24 25 26 27 28 1Although objections to the R&R were due by November 23, 2017, Plaintiff filed a motion requesting enlargement of time to answer on November 20, 2017 (ECF No. 33), and Defendants filed their non-opposition on December 4, 2017 (ECF No. 36). In light of Defendants’ non-opposition and given that Plaintiff is proceeding pro se and faces difficulties gathering documents in the prison environment, the Court grants Plaintiff’s motion requesting enlargement of time to answer. IB 3-1(a) provides that a reply brief “will be allowed only with leave of court.” Plaintiff did not seek leave to file his reply. Nevertheless, the Court will consider Plaintiff’s reply given the significance of the issues raised and the fact that an evidentiary hearing will be scheduled. 2LR 1 needs against Defendants Dr. Romeo Aranas (“Dr. Aranas”) and Dr. Karen Gedney (“Dr. 2 Gedney”) for declaratory, injunctive, and monetary relief and against former NDOC 3 Director Greg Cox (“Cox”) only with respect to Plaintiff’s claim for injunctive relief. (ECF 4 No. 3 at 6.) 5 Plaintiff is infected with Hepatitis-C virus (“HCV”) and experiences a number of 6 symptoms as a result: constant joint pain, liver pain, digestive issues, severe rash, and 7 fatigue. (ECF No. 23 at 11.) Additionally, an ultrasound indicated that Plaintiff’s HCV is 8 causing his gallbladder walls to thicken. (Id. at 12.) 9 In recent years, a cure for HCV has emerged in the form of a class of medications 10 called direct-acting antivirals (“DAA”). These medications are known to cure HCV at a rate 11 of 90-95%. (ECF No. 37 at 9.) 12 Defendants have denied Plaintiff’s requests for DAA based on Medical Directive 13 219.01 (ECF No. 37 at 2), which excludes from treatment individuals with Aspartate 14 Aminotransferase Platelet Ratio Index (“APRI”) levels lower than 2.0. (ECF No. 37-1 at 15 25.) An APRI score above 1.5 indicates that the patient likely has, or is quickly 16 approaching, cirrhosis of the liver according to prison officials in a similar case. King v. 17 Calderwood, No. 2:13-cv-02080-GMN-PAL, 2016 WL 4771065, at *5 (D. Nev. Sept. 12, 18 2016), aff’d sub nom. King v. Cox, 692 F. App’x 398 (9th Cir. 2017). An APRI score above 19 0.5 indicates the likelihood of some liver damage (fibrosis). Id. 20 Plaintiff contends that Defendants have been deliberately indifferent to his serious 21 medical needs by denying him a cure for his HCV. (ECF No. 23 at 4-5.) Plaintiff further 22 contends that Medical Directive 219.01 was enacted solely to meet budgetary restraints. 23 (See id. at 10.) Implicit in Plaintiff’s argument is that he has been denied DAA solely for 24 nonmedical reasons. 25 Plaintiff seeks to preliminarily enjoin Defendants from enforcing the exclusion 26 criteria set forth in Medical Directive 219.01 against him. (Id. at 1.) Plaintiff also seeks a 27 preliminary injunction requiring Defendants to arrange for Plaintiff to be seen by an 28 /// 2 1 independent physician and provide Plaintiff with DAA medication after the independent 2 physician prescribes such treatment. (Id.) 3 While preliminary injunctive relief is an “extraordinary remedy,” Winter v. Nat. Res. 4 Def. Council, Inc., 555 U.S. 7, 22 (2008), and mandatory injunctive relief more 5 extraordinary still, Anderson v. United States, 612 F.2d 1112, 1115 (9th Cir. 2009), Plaintiff 6 has alleged facts that raise serious constitutional questions about NDOC’s adherence to 7 Medical Directive 219.01. First, Plaintiff alleges that Medical Directive 219.01 is 8 inconsistent with the current standard of care. Plaintiff provides a copy of the American 9 Association for Study of Liver Disease’s (“AASLD”) recently released guidelines for 10 treatment of HCV. (ECF No. 37-1 at 46-53.) The guidelines recommend treatment “for all 11 patients with chronic HCV infection, except those with short life expectancies that cannot 12 be remediated by treating HCV, by transplantation, or by other directed therapy.” (Id. at 13 47.) The guidelines do not recommend postponing treatment for individuals lacking signs 14 of extensive liver damage (such as high APRI scores). 15 Second, Plaintiff alleges that he will suffer irreparable harm in the absence of a 16 preliminary injunction. He alleges that his disease will worsen—his liver scarring, mental 17 and physical fatigue, digestive issues, liver pain, and severe rash will continue unabated. 18 (ECF No. 39 at 4.) He also alleges that the chance of DAA curing his HCV will diminish. 19 (ECF No. 23 at 5; ECF No. 37 at 9.) 20 21 Due to the importance of the issue before the Court, the Court finds it necessary to hold an evidentiary hearing and appoint counsel for Plaintiff. 22 Accordingly, this case is referred to the Pro Bono Program adopted in General 23 Order 2016-02 for the purpose of identifying counsel willing to be appointed as pro bono 24 counsel for Plaintiff. The scope of appointment will be for the limited purpose of 25 representing Plaintiff in an evidentiary hearing on his emergency motions. By referring this 26 case to the Program, the Court is not expressing an opinion as to the merits of the case. 27 28 It is hereby ordered that this case is referred to the Pro Bono Program for appointment of counsel for the purposes identified herein. 3 1 It is further ordered that the Clerk also forward this order to the Pro Bono Liaison. 2 It is further ordered that Plaintiff’s Request for Enlargement of Time to Answer (ECF 3 4 5 6 No. 33) is granted. The Court will issue a separate order scheduling the evidentiary hearing to be held within sixty (60) days even if pro bono counsel is not located for Plaintiff. DATED THIS 9th day of January 2018. 7 8 MIRANDA M. DU UNITED STATES DISTRICT JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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