Gonzales v. Corizon Health Care Providers et al.

Filing 36

MEMORANDUM OPINION AND ORDER by District Judge William P. Johnson. IT IS ORDERED that Plaintiff Gonzales's Motion for an Order to Show Cause 25 , Motion for Order Compelling Discovery 26 , Motion to Have Defendants Served 27 , Motion for an Injunction 29 , Request for Appointment of Counsel 30 , Motion for Order to Show Cause 32 , Motion for Order for Examination 34 , and Motion for Default Judgment 35 are DENIED as moot; the Amended Complaint filed by Plaintiff Nick James Gonzales 22 is DISMISSED for failure to state a claim on which relief can be granted under 28 U.S.C. 1915(e)(2)(B); and a STRIKE is imposed under 28 U.S.C. 1915(g). (kg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

NICK JAMES GONZALES,
Plaintiff,
vs.

No. CV 15-00890 WJ/GJF

CORIZON HEALTH CARE PROVIDERS,
JOSE MARTINEZ DOCTOR, TISHA
ROMERO RN-BSN SERVICE ADMINISTRATOR,
WARDEN GERMAN FRANCO, DEPUTY
WARDEN OLIVAS and MICHELLE BOYER
GRIEVANCE OFFICER,
Defendants.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court sua sponte under 28 U.S.C. § 1915(e)(2) and rule
12(b)(6) of the Federal Rules of Civil Procedure on the Amended Complaint filed by Plaintiff
Nick James Gonzales on April 15, 2016. (Doc. 22) (“Amended Complaint”). The Court will
dismiss the Amended Complaint for failure to state a claim on which relief can be granted.

The

Court will also deny Gonzales’s pending motions (Doc. 25, 26, 27, 29, 30, 32, 34, and 35) as
moot in light of this Memorandum Opinion and Order.
Plaintiff Nick James Gonzales is an inmate incarcerated at the Penitentiary of New
Mexico in Santa Fe. (Doc. 1 at 1). Gonzales has been diagnosed with a chronic health
condition, Hepatitis C. (Doc 22 at2). Gonzales has brought this 42 U.S.C. § 1983 case against
Corizon Health Care Providers, Doctor John Martinez, Tisha Romero, RN, Warden German
Franco, Deputy Warden C. Olivas, and Grievance Officer Michelle Boyer. (Doc. 22 at 1).
Gonzales asserts Eighth Amendment deliberate indifference and Fourteenth Amendment equal

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protection claims arising out of the alleged failure of Defendants to treat his serious medical
condition, Hepatitis C. (Doc. 22 at 2-7). The allegations of the Amended Complaint do not
establish deliberate indifference by prison officials in failing to provide Gonzales treatment for
his Hepatitis C condition but, instead, show that Gonzales disagrees with the medical care he is
being provided. The factual allegations of the Amended Complaint fail to state a plausible
Eighth or Fourteenth Amendment claim for relief.
DISMISSAL FOR FAILURE TO STATE A CLAIM
Plaintiff Gonzales is proceeding pro se and in forma pauperis. The Court has the
discretion to dismiss an in forma pauperis complaint sua sponte for failure to state a claim upon
which relief may be granted under either Fed.R.Civ.P. 12(b)(6) or 28 U.S.C. § 1915(e)(2)(B). A
claim should be dismissed where it is legally or factually insufficient to state a plausible claim
for relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
Under Fed.R.Civ.P. 12(b)(6) the Court must accept all well-pled factual allegations, but
not conclusory, unsupported allegations, and may not consider matters outside the pleading.
Twombly, 550 U.S. at 555; Dunn v. White, 880 F.2d 1188, 1190 (10th Cir. 1989). The court may
dismiss a complaint under rule 12(b)(6) for failure to state a claim if “it is ‘patently obvious’ that
the plaintiff could not prevail on the facts alleged.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th
Cir. 1991) (quoting McKinney v. Oklahoma Dep’t of Human Services, 925 F.2d 363, 365 (10th
Cir. 1991)). A plaintiff must allege “enough facts to state a claim to relief that is plausible on its
face.” Twombly, 550 U.S. at 570.
Under § 1915(e)(2)(B) the court may dismiss the complaint at any time if the court
determines the action fails to state a claim upon which relief may be granted. § 1915(e)(2)(B)(2).
The authority granted by § 1915 permits the court the unusual power to pierce the veil of the

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complaint's factual allegations and dismiss those claims whose factual contentions are clearly
baseless. Neitzke v. Williams, 490 U.S. 319, 327 (1989). See also Hall v. Bellmon, 935 F.2d
1106, 1109 (10th Cir.1991). The authority to “pierce the veil of the complaint's factual
allegations” means that a court is not bound, as it usually is when making a determination based
solely on the pleadings, to accept without question the truth of the plaintiff's allegations. Denton
v. Hernandez, 504 U.S. 25, 32-33 (1992). The court is not required to accept the truth of the
plaintiff's allegations but, instead, may go beyond the pleadings and consider any other materials
filed by the parties, as well as court proceedings subject to judicial notice. Denton, 504 U.S. at
32-33.
The Court liberally construes the factual allegations in reviewing a pro se complaint. See
Northington v. Jackson, 973 F.2d 1518, 1520-21 (10th Cir. 1992). However, a pro se plaintiff’s
pleadings are judged by the same legal standards that apply to all litigants and a pro se plaintiff
must abide by the applicable rules of court. Ogden v. San Juan County, 32 F.3d 452, 455 (10th
Cir. 1994). The court is not obligated to craft legal theories for the plaintiff or to supply factual
allegations to support the plaintiff’s claims. Nor may the court assume the role of advocate for
the pro se litigant. Hall v. Bellmon, 935 F.2d at 1110.
In deciding whether to dismiss the complaint, in whole or in part, the court is to consider
whether to allow plaintiff an opportunity to amend the complaint. Pro se plaintiffs should be
given a reasonable opportunity to remedy defects in their pleadings. Reynoldson v. Shillinger,
907 F.2d 124, 126 (10th Cir. 1990). The opportunity to amend should be granted unless
amendment would be futile. Hall v. Bellmon, 935 F.2d at 1109. An amendment is futile if the
amended claims would also be subject to immediate dismissal under the rule 12(b)(6) or §
1915(e)(2)(B) standards. Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004).

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ANALYSIS OF PLAINTIFF’S CLAIMS
Gonzales alleges claims under 42 U.S.C. § 1983 for violation of constitutional rights
under the 8th and 14th Amendments. He claims his rights to equal protection and to be free from
cruel and unusual punishment have been violated by alleged indifference to serious medical
needs. (Doc. 22 at 2-3; Doc. 1 at 2).
The factual allegations and additional materials in the record establish that Gonzales is
incarcerated at the Penitentiary of New Mexico. (Doc. 1 at 1-2). Gonzales has been diagnosed
with chronic Hepatitis C. (Doc 22 at 2). Gonzales claims he is being denied treatment for his
chronic Hepatitis C and seeks to have the Court order that he be given the “immunosuppressive”
medications that will cure the disease. (Doc. 22 at 12). The allegations and evidence submitted
show that the New Mexico Department of Corrections has adopted a Hepatitis C treatment
protocol. (Doc. 32 at 7-8):1
“1. There is a written plan for the treatment of inmates with chronic conditions
such as hypertension, diabetes and other diseases that require periodic care
and treatment. The plan addresses the monitoring of medications, laboratory
testing, the use of chronic care clinics, health record forms, and the frequency
of specialist consultation and review. The following conditions will be
considered chronic in nature, and treated according with the specific
chronic care guidelines, per standard of care:
...
● Hepatitis C
...
2. The nurse will schedule inmates for chronic care clinic visits when a chronic
Disease has been identified. The site physician will periodically review and
Evaluate the inmate’s status of control.
1

New Mexico has a high rate of Hepatitis C prevalence among inmates, with 41.1 percent
of the New Mexico prison population testing positive for the HCV-antibody as of 2012. Varan
AK, et al., Hepatitis C Seroprevalence Among Prison Inmates Since 2001, Public Health Rep.
2014;129:187-95. Current Hepatitis C treatments are extremely costly and treatment continuity
issues arise with prisoners moving in and out of the system. As a result, most correctional
systems have developed treatment protocols. See, e.g., Federal Bureau of Prisons’ Interim
Guidance for the Management of Chronic Hepatitis C Infection (2014) and Evaluation and
Management of Chronic HCV Infection Clinical Guidance (2016).
4

3. The treatment plan specifies the monitoring of medications, laboratory testing,
and scheduling of chronic care clinics, health record form, and the frequency of
specialist consultation.
4. The physician or his or her designee should evaluate all special needs inmates on
a continuous basis. The physician will perform an assessment at appropriate
intervals to determine the need for continued service or special treatment.
5. The site physician will review current medication profiles and ensures
continuity of medications for chronic diseases.
6. Documentation of chronic disease management will be maintained in the
inmate’s medical record on the Chronic Clinic Encounter form.
7. The chronic disease management program will be monitored via the Continuous
Quality Improvement Committee meetings.”
(Doc. 32 at 7-8).
The responses to his grievances also demonstrate that Plaintiff Gonzales is being provided
medical monitoring and care according to the protocol. (Doc. 22 at 10).
“As far as Hep C Treatment is concerned, we have a priority system based
on laboratory results, pending release date, disciplinary charges, symptoms
of the patient, etc. As of this time, Inmate Gonzales is not a priority
candidate for treatment. We will continue to monitor him and if anything
changes in his health status or labs, we could possibly move him up
on the list.”
“I did however speak with medical and they informed me you are on the list for
treatment in order of priority in regards to others needing treatment.”
(Doc. 22 at 10, 12). Last, the evidence provided by Plaintiff Gonzales establishes that similarly
situated inmates with chronic Hepatitis C are being afforded the same care and treatment as
Gonzales:.
“I am incarcerated with Nick J. Gonzales at the Penitentiary of New Mexico
Level VI. We are housed in the same unit & pod. . . I, as well as Mr. Inmate
Gonzales, have been and keep being denied our Hepatitis-C treatment.”
(Doc. 16).
I. Eighth Amendment Claims:
The Eighth Amendment protects against the infliction of cruel and unusual punishments.
U.S. Const. Amend. VIII. The Eighth Amendment’s prohibition against cruel and unusual
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punishment encompasses deliberate indifference by prison officials. Howard v. Waide, 534 F.3d
1227, 1235 (10th Cir.2008) (citing Estelle v. Gamble, 429 U.S. 97, 105 (1976)). Deliberate
indifference to serious medical needs of prisoners constitutes the unnecessary and wanton
infliction of pain proscribed by the Eighth Amendment. Deliberate indifference may be
manifested by prison doctors in their response to the prisoner’s needs or by prison guards in
intentionally denying or delaying access to medical care or intentionally interfering with the
treatment once prescribed. Regardless of whether it is evidenced by conduct of prison medical
officials or prison guards, deliberate indifference to a prisoner’s serious illness or injury may
state a cause of action under § 1983. Estelle, 429 U.S. at 104-05.
Determining the sufficiency of an Eighth Amendment claim for deliberate indifference
involves a two-pronged inquiry, comprised of an objective component and a subjective
component. Self v. Crum, 439 F.3d 1227, 1230 (10th Cir. 2006); Kikumura v. Osagie, 461 F.3d
1269, 1291 (10th Cir.2006). With respect to the objective component, a medical need is serious
if it is “one that has been diagnosed by a physician as mandating treatment or one that is so
obvious that even a lay person would easily recognize the necessity for a doctor’s attention.”
Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980) (internal quotation and citation omitted). The
question is not limited to whether the inmate’s symptoms render a medical need sufficiently
serious, but also extends to whether the potential harm to the inmate is sufficiently serious. Mata
v. Saiz, 427 F.3d 745, 752 (10th Cir. 2005). The record establishes the first prong that Gonzales
has a serious medical need. (Doc 22 at 2).
Under the subjective component, the defendant must have a sufficiently culpable state of
mind. Farmer v. Brennan, 511 U.S. 825, 834 (1994); see also Self, 439 F.3d at 1230–31. In other
words, the plaintiff must establish that the defendant “knew he faced a substantial risk of harm

6

and disregarded that risk, by failing to take reasonable measures to abate it.” Hunt v. Uphoff, 199
F.3d 1220, 1224 (10th Cir.1999) (internal citation and quotation omitted). With regard to the
subjective component, the question for consideration by the Court is: “were the symptoms such
that a prison employee knew the risk to the prisoner and chose (recklessly) to disregard it?”
Martinez v. Beggs, 563 F.3d 1082, 1089 (10th Cir.2009) (quoting Mata, 427 F.3d at 753). An
official responds to a known risk in an objectively unreasonable manner if he knew of ways to
reduce the harm but knowingly or recklessly declined to act. Prison officials violate the Eighth
Amendment when they are deliberately indifferent to the serious medical needs of prisoners in
their custody. Howard, 534 F.3d at 1239–40.
However, prison officials who actually knew of a substantial risk to inmate health or
safety may be found free from liability if they responded reasonably to the risk, even if the harm
ultimately was not averted. Howard, 534 F.3d at 1239 (quoting Farmer, 511 U.S. at 844–45).
Accidental or inadvertent failure to provide adequate medical care, or negligent diagnosis or
treatment of a medical condition does not constitute a medical wrong under the Eighth
Amendment. See Estelle, supra, 429 U.S. at 105-06. Moreover, a difference of opinion between
the prison’s medical staff and the inmate as to the diagnosis or treatment which the inmate
receives does not support a claim of cruel and unusual punishment. See, e. g., Smart v. Villar,
547 F.2d 112, 114 (10th Cir. 1976); Self v. Crum, 439 F.3d at 1231; Thompson v. Gibson, 289
F.3d 1218, 1222 (10th Cir.2002). A prisoner who merely disagrees with a diagnosis or a
prescribed course of treatment does not state a constitutional violation. Taylor v. Ortiz, 410 F.
App'x 76, 79 (10th Cir. 2010). The record in this case fails to establish the second, subjective,
component.

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The allegations of the Amended Complaint do not state a plausible claim that Defendants
are deliberately indifferent to Gonzales’s medical needs. Twombly, 550 U.S. at 570. In the
context of Hepatitis C, prison officials are not deliberately indifferent to an inmate's serious
medical need when a physician prescribes a different method of treatment than that requested by
the inmate. See Harrell v. Cal. Forensic Med. Grp., Inc., No. 2:15–CV–0579, 2015 WL
6706587, at *2 (E.D.Cal. Nov. 3, 2015); see, also, Johnson v. Frakes, No. 8:16CV155, 2016 WL
4148231, at *3 (D.Neb. Aug. 4, 2016) (concluding that defendants' failure to provide Plaintiff
with Harvoni, his requested course of treatment, did not constitute an Eighth Amendment
violation); Smith v. Corizon, Inc., No. 15–743, 2015 WL 9274915, at *6 (D.Md. Dec. 17, 2015)
(finding that denial of an inmate's request for Harvoni treatment did not reflect deliberate
indifference where inmate was seen by prison nurses, physician's assistants, and physicians for
his chronic conditions, including Hepatitis C).
Similarly, the alleged facts in this case do not show that Defendants both knew of his
Hepatitis C condition and deliberately chose to disregard it. Martinez v. Beggs, 563 F.3d at
1089. A review of plaintiff's Amended Complaint and his submissions show that prison officials
have recognized Gonzales’s serious medical condition and are monitoring it:
“As far as Hep C Treatment is concerned, we have a priority system based
on laboratory results, pending release date, disciplinary charges, symptoms
of the patient, etc. As of this time, Inmate Gonzales is not a priority
candidate for treatment. We will continue to monitor him and if anything
changes in his health status or labs, we could possibly move him up
on the list.”
(Doc. 22 at 10).
Gonzales’s allegations boil down to a contention that he has a constitutional right to a
particular course of treatment or to be given a particular medication. The Tenth Circuit and other
courts have rejected such an expansive view of the rights protected by the Eighth Amendment.
8

The showing required to give rise to a cognizable Eighth Amendment violation is deliberate
refusal to provide medical attention as opposed to a particular course of treatment. See Callahan
v. Poppell, 471 F.3d 1155, 1160 (10th Cir. 2006); Green v. Branson, 108 F.3d 1296, 1304 (10th
Cir.1997). Medical decisions, such as whether one course of treatment is preferable to another,
are beyond the Eighth Amendment's purview. Snipes v. DeTella, 95 F.3d 586, 591 (7th
Cir.1996). Prison health care providers remain free to exercise professional judgment and an
inmate is not entitled to any particular course of treatment. Dulany v. Carnahan, 132 F.3d 1234,
1240 (8th Cir.1997). See also Perkins v. Kansas Dep't of Corr., 165 F.3d 803, 811 (10th Cir.
1999) (holding that HIV-positive prisoner who believed he should receive a protease inhibitor in
addition to certain drugs failed to state an Eighth Amendment claim).
The facts establish that Gonzales seeks to be given his choice of medication rather than
the alternative monitoring chosen by the prison health care providers. (Doc. 22 at 12). The
record shows no more than a difference of opinion between the prison’s medical staff, not a
deliberate refusal to provide medical treatment. See, e. g., Smart v. Villar, 547 F.2d at 114; Self v.
Crum, 439 F.3d at 1231; Thompson v. Gibson, 289 F.3d at 1222. The Court understands that any
prisoner diagnosed with Hepatitis C would want to receive one of the new treatments that can
cure the disease.

The questions of the medical standard of care and whether all inmates

diagnosed with Hepatitis C should receive the new medications regardless of cost or individual
circumstances are medical questions beyond the scope of the issues raised in this case. The
Court decides only that the decision by prison officials to monitor a prisoner’s Hepatitis C based
on a protocol does not rise to the level of deliberate indifference to a prisoner’s serious medical
needs in violation of the Eight Amendment. The allegations of the Amended Complaint fail to

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state an Eighth Amendment claim for relief. Self v. Crum, 439 F.3d at 1231; Callahan 471 F.3d
at 1160.
II. Equal Protection Claims:
The Equal Protection Clause directs that all persons similarly situated be treated alike.
City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe,
457 U.S. 201, 216 (1982)). Two theories exist upon which a plaintiff may state an equal
protection claim. The traditional theory protects a plaintiff from: (1) a law or government action
that substantially burdens a fundamental constitutional right; or (2) discrimination based upon
membership in a protected class such as race, national origin, or gender. See, e.g., City of
Cleburne, 473 U.S. at 340-41. If the burdening of a fundamental right or membership in a
protected class is not alleged, a plaintiff may still make out an equal protection claim under an
alternate theory. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000). A plaintiff may
state an equal protection claim if he or she alleges irrational and intentional differential treatment
when compared with similarly situated individuals. Id. Specifically, a plaintiff must allege that
(1) the defendant treated him differently from others similarly situated, (2) the defendant did so
intentionally, and (3) there was no rational basis for the difference in treatment. Hill v. Borough
of Kutztown, 455 F.3d 225, 239 (2006).
Plaintiff Gonzales makes no allegations to suggest that he is a member of a protected
class or that the actions of prison officials substantially burden the exercise of a fundamental
constitutional right. Instead, Gonzales attempts to state a differential treatment claim. Plaintiff's
allegations, however, are insufficient to make out a plausible claim. Although Gonzales claims
that he is treated differently from “all others,” he does not make any allegations showing that “all
others” are similarly situated. See Doc. 22 at 3, 4. Nor does he provide a factual basis to show

10

that there is no rational basis for any differential treatment. To the contrary, the materials placed
in the record by Gonzales tend to show that the prison has a written policy for the treatment of
inmates with chronic medical conditions, including Hepatitis C, and that, consistent with the
policy, Plaintiff is being treated the same as other inmates with chronic health conditions. See
Doc. 16; Doc. 32 at 7-8; Doc. 22 at 10-12. The Complaint fails to state an equal protection claim
based on differential treatment. Hill v. Borough of Kutztown, 455 F.3d at 239; Twombly, 550
U.S. at 570.
CONCLUSION
The Court will dismiss the Amended Complaint for failure to state a claim under the 28
U.S.C. § 1915(e)(2)(B) standard and without leave to amend. Gonzales has already been given
the opportunity to file an amended complaint and the Court determines that because his specific
allegations reflect no more than a disagreement as to his medical care, allowing a further
opportunity to amend would be futile. Hall v. Bellmon, 935 F.2d at 1109. The Court will also
deny Gonzales’ Motion for an Order to Show Cause (Doc. 25), Motion for Order Compelling
Discovery (Doc. 26), Motion to Have Defendants Served (Doc. 27), Motion for an Injunction
(Doc. 29), Request for Appointment of Counsel (Doc. 30), Motion for Order to Show Cause
(Doc. 32), Motion for Order for Examination (Doc. 34), and Motion for Default Judgment (Doc.
35) as moot in light of the Court’s dismissal of the amended Complaint.
The Court will dismiss Gonzales’s Complaint for failure to state a claim on which relief
can be granted under 28 U.S.C. § 1915(e)(2)(B). This dismissal constitutes a “strike” for
purposes of the “three strikes” rule of the Prisoner Litigation Reform Act (PLRA). 28 U.S.C. §
1915(g). Gonzales is notified that if he accrues three strikes, he may not proceed in forma
pauperis in any future civil actions before federal courts unless he is under imminent danger of

11

serious physical injury. § 1915(g).2
IT IS ORDERED that Plaintiff Gonzales’s Motion for an Order to Show Cause (Doc.
25), Motion for Order Compelling Discovery (Doc. 26), Motion to Have Defendants Served
(Doc. 27), Motion for an Injunction (Doc. 29), Request for Appointment of Counsel (Doc. 30),
Motion for Order to Show Cause (Doc. 32), Motion for Order for Examination (Doc. 34), and
Motion for Default Judgment (Doc. 35) are DENIED as moot; the Amended Complaint filed by
Plaintiff Nick James Gonzales (Doc. 22) is DISMISSED for failure to state a claim on which
relief can be granted under 28 U.S.C. § 1915(e)(2)(B); and a STRIKE is imposed under 28
U.S.C. § 1915(g).

_______________________________________
UNITED STATES DISTRICT JUDGE

2

The Court notes that Gonzales has filed four prior proceedings in this Court: Gonzales v. Hatch,
No. CV 13-00305 RB/GBW (dismissed for failure to comply with a court order); Gonzales v.
Franco, No. CV 14-01001 MV/KBM (dismissed for failure to exhaust administrative remedies);
Gonzales v. Penitentiary of New Mexico, No. CV 15-01161 KG/SCY (dismissed based on
voluntary withdrawal); and Gonzales v. Franco, No. CV 14-01163 JB/SMV (dismissed on
summary judgment). Gonzales also has three additional pending cases: Gonzales v. Marcantel,
No. CV 16-01275 WJ/LF; Gonzales v. Loya, No. CV 16-01388 WJ/GJF; and Gonzales v.
Robinson, No. CV 16-01409 JCH/GBW.
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