# Mendez v. Chang

> District Court, S.D. Texas · February 4, 2020

URL: https://www.frixlaw.com/law-library/cases/10673078

## Case

- **Court:** District Court, S.D. Texas
- **Decided:** February 4, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10673078

## How later opinions describe it (automated extraction)

- noting an exception for certain documents attached to a motion to dismiss

## Opinion text

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

6/6

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10673078. Public record. Not legal advice.