Webb v. Aranas et al

Filing 6

ORDER that a decision on the IFP Application (ECF No. 1 ) is DEFERRED; Clerk directed to file the Complaint (ECF No. 1 -1); the Complaint is DISMISSED, with leave to amend by 12/4/2018; Clerk directed to send Plaintiff the appr oved form for filing a § 1983 complaint, instructions, and a copy of the Complaint (ECF No. 1 -1); a separate screening order will be done if an amended complaint is filed; if Plaintiff does not timely file an amended complaint, the Court may dismiss with prejudice without further notice. Signed by Judge Robert C. Jones on 11/6/2018. (Copies have been distributed pursuant to the NEF - LH)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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______________________________________
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TIMOTHY E. WEBB,
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Plaintiff,
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vs.
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ROMEO ARANAS et al.,
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Defendants.
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3:17-cv-00427-RCJ-CBC
ORDER

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This is a prisoner civil rights complaint pursuant to 42 U.S.C. § 1983. The Court now

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screens the Complaint under 28 U.S.C. § 1915A.

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I.

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FACTS AND PROCEDURAL HISTORY
Plaintiff Timothy Webb is a prisoner in the custody of the Nevada Department of

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Corrections. He alleged constitutional violations against various Defendants arising out of

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events at Warm Springs Correctional Center. He alleges deliberate indifference under the Eighth

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Amendment against several Defendants based on their refusal to treat his Hepatitis C Virus

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(“HCV”) beyond monitoring it.

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II.

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LEGAL STANDARDS
Federal courts must screen any case in which a prisoner seeks redress from a

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governmental entity or its officers or employees. 28 U.S.C. § 1915A(a). The court must identify

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cognizable claims and dismiss claims that are frivolous, malicious, fail to state a claim, or seek

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monetary relief from an immune defendant. See 28 U.S.C. § 1915A(b). This includes claims

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based on fantastic or delusional scenarios. Neitzke v. Williams, 490 U.S. 319, 327–28 (1989).

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Also, when a prisoner seeks to proceed without prepayment of fees, a court must dismiss if “the

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allegation of poverty is untrue.” 28 U.S.C. § 1915(e)(2)(A).

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When screening claims for failure to state a claim, a court uses the same standards as

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under Rule 12(b)(6). Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). Federal Rule of

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Civil Procedure 8(a)(2) requires “a short and plain statement of the claim showing that the

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pleader is entitled to relief” in order to “give the defendant fair notice of what the . . . claim is

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and the grounds upon which it rests.” Conley v. Gibson, 355 U.S. 41, 47 (1957). A motion to

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dismiss under Rule 12(b)(6) tests the complaint’s sufficiency, see N. Star Int’l v. Ariz. Corp.

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Comm’n, 720 F.2d 578, 581 (9th Cir. 1983), and dismissal is appropriate only when the

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complaint does not give the defendant fair notice of a legally cognizable claim and the grounds

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on which it rests. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

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A court treats factual allegations as true and construes them in the light most favorable to

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the plaintiff, NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986), but does not accept as

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true “legal conclusions . . . cast in the form of factual allegations.” Paulsen v. CNF Inc., 559 F.3d

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1061, 1071 (9th Cir. 2009). A plaintiff must plead facts pertaining to his case making a violation

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“plausible,” not just “possible.” Ashcroft v. Iqbal, 556 U.S. 662, 677–79 (2009) (citing Twombly,

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550 U.S. at 556) (“A claim has facial plausibility when the plaintiff pleads factual content that

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allows the court to draw the reasonable inference that the defendant is liable for the misconduct

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alleged.”). That is, a plaintiff must not only specify or imply a cognizable legal theory (Conley

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review), he must also allege the facts of his case so that the court can determine whether he has

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any basis for relief under the legal theory he has specified or implied, assuming the facts are as

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he alleges (Twombly-Iqbal review).

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“Generally, a district court may not consider any material beyond the pleadings in ruling

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on a Rule 12(b)(6) motion. However, material which is properly submitted as part of the

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complaint may be considered on a motion to dismiss.” Hal Roach Studios, Inc. v. Richard Feiner

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& Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1990) (citation omitted). Similarly, “documents

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whose contents are alleged in a complaint and whose authenticity no party questions, but which

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are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6)

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motion to dismiss” without converting the motion to dismiss into a motion for summary

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judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir. 1994). Also, under Federal Rule

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of Evidence 201, a court may take judicial notice of “matters of public record” if not “subject to

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reasonable dispute.” United States v. Corinthian Colls., 655 F.3d 984, 999 (9th Cir. 2011).

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Otherwise, if the district court considers materials outside of the pleadings, the motion to dismiss

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is converted into a motion for summary judgment. See Arpin v. Santa Clara Valley Transp.

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Agency, 261 F.3d 912, 925 (9th Cir. 2001).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege (1) violation of a right

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secured by the Constitution or laws of the United States (2) by a person acting under color of

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

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III.

ANALYSIS

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A prisoner can establish an Eighth Amendment violation arising from deficient medical

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care if he can prove that prison officials were deliberately indifferent to a serious medical need.

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Estelle v. Gamble, 429 U.S. 97, 104 (1976). Assuming the medical need is “serious,” a plaintiff

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must show that the defendant acted with deliberate indifference to that need. Id. “Deliberate

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indifference is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004). It

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entails something more than medical malpractice or even gross negligence. Id. Deliberate

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indifference exists when a prison official “knows of and disregards an excessive risk to inmate

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health or safety; the official must both be aware of the facts from which the inference could be

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drawn that a substantial risk of serious harm exists, and he must also draw the inference.”

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Farmer v. Brennan, 511 U.S. 825, 837 (1994). Deliberate indifference exists when a prison

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official “den[ies], delay[s] or intentionally interfere[s] with medical treatment, or it may be

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shown by the way in which prison officials provide medical care.” Crowley v. Bannister, 734

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F.3d 967, 978 (9th Cir. 2013) (internal quotation marks and citation omitted).

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Critically, “a difference of opinion between a physician and the prisoner—or between

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medical professionals—concerning what medical care is appropriate does not amount to

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deliberate indifference.” Snow v. McDaniel, 681 F.3d 978, 987 (9th Cir. 2012) (citing Sanchez v.

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Vild, 891 F.2d 240, 242 (9th Cir. 1989), overruled on other grounds by Peralta v. Dillard, 744

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F.3d 1076, 1083 (9th Cir. 2014). Instead, to establish deliberate indifference in the context of a

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difference of opinion between a physician and the prisoner or between medical providers, the

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prisoner “‘must show that the course of treatment the doctors chose was medically unacceptable

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under the circumstances’ and that the defendants ‘chose this course in conscious disregard of an

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excessive risk to plaintiff's health.’” Id. at 988 (quoting Jackson v. McIntosh, 90 F.3d 330, 332

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(9th Cir. 1996)). In other words, where there has been some arguably appropriate treatment,

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deliberate indifference cannot be established merely by showing disagreement with the physician

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but only by showing that the defendant chose a course of treatment knowing that it was

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inappropriate. Put differently, a court cannot substitute its judgment for that of a medical

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professional, but it can examine a medical professional’s good faith in selecting a course of

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treatment.

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A “blanket” policy of non-treatment for a given condition can constitute deliberate

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indifference where the policy is applied to supersede contrary medical indications. Colwell v.

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Bannister, 763 F.3d 1060, 1068 (9th Cir. 2014) (“[Plaintiff] was denied treatment for his

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monocular blindness solely because of an administrative policy, even in the face of medical

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recommendations to the contrary. A reasonable jury could find that Colwell was denied surgery,

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not because it wasn't medically indicated, not because his condition was misdiagnosed, not

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because the surgery wouldn’t have helped him, but because the policy of the NDOC is to require

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an inmate to endure reversible blindness in one eye if he can still see out of the other. This is the

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very definition of deliberate indifference.” (emphasis added)).

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Here, the policy at issue is not alleged to be contrary to medical recommendations; rather,

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the policy is itself a medical treatment standard. Plaintiff alleges no application of a policy of

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non-treatment for HCV despite medical recommendations to the contrary in his case, as in

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Colwell. Rather, he alleges application of a policy of non-treatment for his HCV because his

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AST Platelet Ratio Index (“APRI”) score was under 2.0, i.e., the application of a medical

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standard with which he simply disagrees. Permitting Plaintiff to attack that medical standard as

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inappropriate under the guise of deliberate indifference would be to impermissibly

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constitutionalize a medical negligence claim. Such a rule would make all “blanket” treatment

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standards that medical professionals rely on suspect under the Eighth Amendment. Plaintiff does

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not allege, as in Colwell, that any Defendant opined that treatment was medically necessary to

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prevent objectively serious harm yet refused to treat him based on the APRI score policy.

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Plaintiff argues in the Complaint that an increased APRI score must reflect increased

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liver damage, even if it does not yet rise to 2.0, and that failure to treat his HCV where his APRI

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score has risen (from 0.49 in July 2016 to 0.75 in May 2017) is therefore deliberate indifference.

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But the claim that an increased APRI score necessarily indicates interim or imminent liver

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damage is an unjustified assumption. The APRI score is a numerical diagnostic tool based on

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laboratory tests. Neither Plaintiff nor the Court are experts qualified to opine on the medical

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significance of an APRI score. The courts to address APRI scores in the context of deliberate

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indifference claims based on non-treatment of HCV have nearly all ruled that there is no

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subjective indifference in the sense of the Eighth Amendment so long as whatever treatment

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guidelines an institution has established based on APRI scores are followed and a patient with

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HCV is at least further monitored. Dawson v. Archambeau, No. 16-cv-489, 2018 WL 1566833,

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at *2, 8, 11 & n.11 (D. Colo. Mar. 30, 2018); Roy v. Lawson, No. 2:17-cv-9, 2018 WL 1054198,

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at *3–4, 7 (S.D. Tex. Feb. 26, 2018); Walton v. Person, No. 1:16-cv-157, 2017 WL 2807326, at

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*5–6 (S.D. Ind. June 28, 2017); Gordon v. Schilling, No. 7:15-cv-95, 2016 WL 4768846, at *4, 6

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& n.4 (W.D. Va. Sept. 13, 2016); Melendez v. Fla. Dep’t of Corr., No. 3:15cv450, 2016 WL

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5539781, *3, 6–7 (N.D. Fla. Aug. 30, 2016). But see Postawko v. Mo. Dep’t of Cor., No. 2:16-

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cv-4219, 2017 WL 1968317 (W.D. Mo. May 11, 2017). Plaintiff does not allege his HCV was

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not monitored or that his APRI score at some point exceeded 2.0 but Defendants still refused to

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treat him in contradiction of their own guidelines. Rather, he demands a particular treatment

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based on his opinion of the significance of his APRI scores. The Court may not in the context of

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an Eighth Amendment claim substitute Plaintiff’s or the Court’s opinions for those of

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Defendants’ as to whether continued monitoring versus treatment, e.g., with drugs or surgery,

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was more appropriate.

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The Court therefore dismisses the Complaint, with leave to amend. An amended

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complaint supersedes (replaces) the original Complaint, so an 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); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012).

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Plaintiff must file the amended complaint on this Court’s approved prisoner civil rights form and

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it must be entitled “First Amended Complaint.” Plaintiff must file the amended complaint within

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twenty-eight (28) days from the date of this Order, or the Court may dismiss with prejudice

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without further notice.

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CONCLUSION

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IT IS HEREBY ORDERED that a decision on the Application to Proceed in Forma

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Pauperis (ECF No. 1) is DEFERRED.

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IT IS FURTHER ORDERED that the Clerk shall file the Complaint (ECF No. 1-1).

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IT IS FURTHER ORDERED that the Complaint is DISMISSED, with leave to amend

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within twenty-eight (28) days of this Order.

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IT IS FURTHER ORDERED that the Clerk shall send Plaintiff the approved form for

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filing a § 1983 complaint, instructions, and a copy of the Complaint (ECF No. 1-1). Plaintiff

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must use the approved form and write the words “First Amended” above the words “Civil Rights

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Complaint” in the caption. The Court will screen the amended complaint in a separate screening

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order, which may take several months. If Plaintiff does not timely file an amended complaint,

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the Court may dismiss with prejudice without further notice.

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IT IS SO ORDERED.
DATED: 9th 6th of July, 2018.
Dated thisThisday day of November, 2018.

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_____________________________________
ROBERT C. JONES
United States District Judge

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