Mendez v. Chang

IN THE UNITED STATES DISTRICT COURT February 05, 2020

FOR THE SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk

CORPUS CHRISTI DIVISION

JESSE MENDEZ, §

§

Plaintiff, §

VS. § CIVIL NO. 2:18-CV-396

§

P CHANG, et al, §

§

Defendants. §

MEMORANDUM AND ORDER

The Court is in receipt of the Magistrate Judge’s Memorandum and

Recommendation (“M&R”), Dkt. No. 22. The Court is also in receipt of Plaintiff

Jesse Mendez’s (“Mendez”) Objections, Dkt. No. 23. For the reasons stated below the

Court ADOPTS IN PART and DECLINES TO ADOPT IN PART the M&R.

I. BACKGROUND

Mendez brought this pro se prisoner rights action under 42 U.S.C. § 1983. Dkt.

No. 1. He claims Eighth Amendment violations by Dr. Kwarteng and Dr. Chang

(“Defendants”) and unidentified directors of the Hepatitis C Chronic Care Clinic for

refusing to treat his Hepatitis C with direct-acting antivirals (“DAAs”). Id. Mendez

claims that the refusal to treat his Hepatitis C based on an AST to Platelet Ratio

Index Score (“APRI”) has led to physical and mental suffering. Dkt. No. 1 at 7.

Mendez claims the APRI score is not a sufficient indicator of health risk and the

refusal to treat his condition led to deliberate indifference to his medical suffering.

Id. Defendants moved to dismiss all claims for lack of subject matter jurisdiction

and failure to state a claim upon which relief can be granted. Dkt. No. 19; Fed. R.

Civ. P. 12(b)(1); Fed. R. Civ. P. 12(b)(6).

II. M&R

The M&R recommends dismissing claims against Defendants in their official

capacity as barred by the Eleventh Amendment. Dkt. No. 22 at 5. The M&R also

recommends dismissing Mendez’s deliberate indifference claim for failure to state a

claim upon which relief can be granted. Id. at 7. Mendez objects to the M&R based

on his medical suffering. Dkt. No. 23 at 3. . The Court reviews objected-to portions

of a Magistrate Judge’s proposed findings and recommendations de novo. 28 U.S.C.

§ 636(b)(1). But if the objections are frivolous, conclusive or general in nature the

court need not conduct a de novo review. Battle v. United States Parole Comm’n, 834

F.2d 419 (5th Cir. 1987).

III. Deliberate Indifference

Regarding deliberate indifference, the Magistrate Judge writes:

“‘Deliberate indifference is an extremely high standard to meet.’ Domino v. Tex.

Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001). An incorrect diagnosis

by prison medical personnel is insufficient to state a claim of deliberate indifference.

Id. Instead, prison officials must refuse to treat the inmate, ignore his complaints,

intentionally treat him incorrectly, or otherwise engage in conduct that demonstrates a

wanton disregard for a serious medical need. Id. The decision whether to provide

additional treatment is a matter of medical judgment. Id. The failure to alleviate a

significant risk that the official should have perceived, but did not, is insufficient to

support a claim of deliberate indifference. Id. The deliberate indifference standard

requires a showing that an official was subjectively aware of the risk of serious harm

to the inmate. Easter v. Powell, 467 F.3d 459, 463 (5th Cir. 2006).

It is not deliberate indifference for a state to refuse to provide a specific treatment for

hepatitis C where medical personnel are regularly monitoring the condition. Roy v.

Lawson, 739 F. App’x 266, 266-67 (5th Cir. 2018) (unpublished). This is true even

where cost is the state’s reason for refusing to provide optimal drug treatment before

an offender reaches a particular medical threshold. Id. at 267. Such a claim is

ultimately a challenge to the medical judgment exercised by prison medical staff,

which is insufficient to state a constitutional claim. Id.

Here, Mendez’s allegations, taken as true, fail to state a claim for deliberate

indifference to a serious medical need. Mendez merely alleges that the Defendants

have refused to treat him with DAAs because tests show that his APRI is not yet high

enough to require such treatment. (D.E. 1 at 4-7). Thus, Mendez’s claims are

analogous to the claim that the Fifth Circuit rejected in Roy because the medical

personnel are monitoring his condition and, rather than refusing treatment outright,

have set specific medical preconditions to receive the treatment Mendez seeks. Roy,

739 F. App’x at 266-67. As in Roy, Mendez’s claim is ultimately a challenge to the

medical judgment exercised by Defendants—namely, that the reliance on APRI as the

primary treatment criteria is misplaced—and is insufficient to state a constitutional

claim. Id. at 267. Although Roy is unpublished and nonprecedential, this conclusion

also aligns with the general law on deliberate indifference claims. See Domino, 239

F.3d at 756. Thus, Mendez has failed to state a claim of deliberate indifference and his

complaint should be dismissed.”

Dkt. No. 22 at 6-7.

Both Domino and Roy are cases that deal with summary judgment, not a

12(b)(6) motion. Domino v. Texas Dep't of Criminal Justice, 239 F.3d 752, 756 (5th

Cir. 2001); see Fed. R. Civ. P 12(b)(6). The Court in Domino ruled Plaintiff had not

presented competent summary judgment evidence to show a genuine dispute of

material fact. See Domino, 239 F.3d at 756. The Court did not rule on whether a

Plaintiff had stated a claim. See id. The unreported Fifth Circuit case of Roy also

involves the Court ruling on the summary judgment evidence of a Hepatitis C

deliberate indifference complaint. Roy v. Lawson, 739 F. App'x 266 (5th Cir. 2018).

The Court in Roy wrote:

“Inasmuch as Roy complains about Defendants’ failure to adhere to prison

policy by referring him for treatment when the threshold for referral was an

AST/Platelet Ration Index (APRI) score of 0.42 and his APRI score was 0.5,

his complaint is, at best, one of mistake, negligence, or malpractice, not

deliberate indifference, particularly in the absence of any medical evidence

showing that his condition required immediate care or subjected him to any

wanton infliction of pain.”

Roy, 739 F. App'x at 267.

The Court in Roy did not conclude that raising Hepatitis C deliberate indifference

allegations fails to state a claim. See id. The Court indicates if Roy had produced

evidence showing that his condition required immediate care or subjected him to

wanton infliction of pain his claim may have survived summary judgment. Id.

Here this Court does not rule on whether Mendez has produced summary

judgment evidence to support his claim of wanton infliction of pain. See Dkt. No. 22.

Mendez has not had the opportunity to produce evidence as did the plaintiff in Roy

or Domino. See Roy, 739 F. App'x at 267; Domino, 239 F.3d at 756. The inquiry is

whether Mendez stated a claim. Fed. R. Civ. P. 12(b)(6). Accordingly, the Court

DECLINES TO ADOPT the M&R’s statement of law regarding deliberate

indifference. See Dkt . No. 22 at 6-7.

a. Deliberate Indifference Analysis

A pleading must include a short and plain statement of the claim showing

that the Plaintiff is entitled to relief and giving the defendant fair notice of the

claim. Fed. R. Civ. P. 8(a)(2). To survive a motion for failure to state a claim, a

complaint does not need detailed facts, but it must provide more than labels and

conclusions or a formulaic recitation of the elements of a cause of action. Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Factual allegations are to be

assumed to be true, but allegations must state a claim that is plausible on its face

and raise an inference of liability. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Pro se

complaints are held to a less stringent standard than formal pleadings from

lawyers. Haines v. Kerner, 404 U.S. 519, 596 (1972).

The Eighth Amendment prohibits punishments that impose unnecessary and

wanton infliction of pain. Estelle v. Gamble, 429 U.S. 97, 103-04 (1976). In medical

deliberate indifference claims a plaintiff “must show that officials ‘refused to treat

him, ignored his complaints, intentionally treated him incorrectly, or engaged in

any similar conduct that would clearly evince a wanton disregard for any serious

medical needs.’” Jones v. Texas Dep't of Criminal Justice, 880 F.3d 756, 759 (5th

Cir. 2018). A failure to provide additional treatment or diagnostics, such as ordering

an X-ray, is not cruel and unusual punishment. Estelle, 429 U.S. at 107; see

Domino, 239 F.3d at 756 (quoting the additional treatment passage from Estelle).

Mendez’s pro se complaint alleges that the Defendants were deliberately

indifferent in the treatment of the Hepatitis C disease. Dkt. No. 1. He makes factual

claims involving the treatment system by Defendants and his suffering that

occurred. Id. at 6-8. He claims Defendants refused to treat his condition despite his

suffering. Id. Such information from a pro se complainant sufficiently states a claim

that raises an inference of liability and is beyond formulaic recitation or labels and

conclusions. See Twombly, 550 U.S. at 555; Iqbal, 556 U.S. at 678; Haines, 404 U.S.

at 520.1 Accordingly, the Court DECLINES TO DISMISS Mendez’s deliberate

1 In Defendant’s motion for failure to state a claim they rely on their “Correctional Managed Health Care Infection

Control Policy” to state that their treatment is adequate. Dkt. No. 19 at 5. This policy is outside the pleadings and is

indifference claim for failure to state a claim upon which relief can be granted. See

id.; Fed. R. Civ. P. 12(b)(6).

IV. Qualified Immunity

The M&R’s Qualified Immunity analysis was based on its conclusion that

Mendez failed to state a claim, so the Court DECLINES TO ADOPT the M&R’s

Qualified Immunity analysis. Dkt. No. 22 at 7-8.

a. Qualified Immunity Analysis

“[G]overnment officials performing discretionary functions generally are

shielded from liability for civil damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of which a reasonable person

would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “A clearly

established right is one that is ‘sufficiently clear that every reasonable official would

have understood that what he is doing violates that right.’”. Mullenix v. Luna, 136

S. Ct. 305, 308 (2015).

Defendants cite many cases regarding the need to decide qualified immunity

at the earliest stage possible and for the plaintiff’s burden to demonstrate qualified

immunity does not bar recovery once it is asserted. See Dkt. No. 19 at 5-6; Hunter v.

Bryant, 502 U.S. 224, 227 (1991); Salas v. Carpenter, 980 F.2d 299, 305 (5th Cir.

1992). These are summary judgment cases where both sides have had the

opportunity to produce evidence. See id. Defendants rely on material outside the

complaint to assert their qualified immunity defense. Dkt. No. 19 at 7. The

Defendants’ grounds for qualified immunity relate to their own “Correctional

Managed Health Care Infection Control Policy,” and how that policy was applied to

Mendez. Dkt. No. 19 at 7.

When considering a motion to dismiss for failure to state a claim a court “may

not ‘go outside the complaint.’” Gines v. D.R. Horton, Inc., 699 F.3d 812, 820 (5th

Cir. 2012) (noting an exception for certain documents attached to a motion to

dismiss). The Defendants’ health policy and whether it was applied to Mendez is

not appropriately considered as part of a 12(b)(6) motion. See Gines v. D.R. Horton, Inc., 699 F.3d 812, 820 (5th

Cir. 2012).

outside the bounds of Mendez’s complaint and so cannot be considered as part of a

motion for failure to state a claim. See Gines, 699 F.3d at 820.

Accordingly, the Court DECLINES TO DISMISS Defendants’ motion for

failure to state a claim based on qualified immunity because it is based on material

outside the bounds of a 12(b)(6) motion.

V. Conclusion

For the foregoing reasons, the Court ADOPTS IN PART and DECLINES

TO ADOPT IN PART the Memorandum and Recommendation, Dkt. No. 22. The

Court hereby:

e DISMISSES Mendez’s claims that seek damages against Defendants

in their official capacity as barred by the Eleventh Amendment

e DECLINES TO DISMISS Mendez’s deliberate indifference claim for

failure to state a claim

SIGNED this 4th day of February, “hy

Senior United States District Judge

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