Powe v. Nevada
| Decision Date | 22 February 2019 |
| Docket Number | Case No.: 2:17-cv-00470-JAD-GWF |
| Parties | Eric Allen Powe, Sr., Plaintiff v. State of Nevada, et al., Defendants |
| Court | U.S. District Court — District of Nevada |
Plaintiff Eric Allen Powe, Sr. is a prisoner in the custody of the Nevada Department of Corrections (NDOC), who brings this civil-rights action under 42 U.S.C. § 1983, claiming that his Eighth Amendment rights were violated when prison officials did not provide him medical care for his chronic hives. Because Powe is a prisoner who has not paid a filing fee, I screen his complaint under 28 U.S.C. § 1915A.1 Upon screening, I find that NDOC and the HDSP are not proper defendants, so I dismiss Powe's claims against them with prejudice. I also dismiss Powe's claims against Dr. Rio, Romeo Aranas, and James Dzurenda, but I allow Powe leave to amend these claims by March 25, 2019, if he can allege true facts to cure the deficiencies outlined in this order. And finally, I find that Powe has stated a colorable Eighth Amendment claim for deliberate indifference to serious medical needs against Doe Prison Officials who responded to his requests to see a doctor about his hives, but did not arrange for a timely doctor's appointment, which may proceed once Powe identifies their true identities.
Powe, an inmate at Nevada's High Desert State Prison (HDSP), alleges that he had recurring incidents of hives for three years beginning in February 2014.3 Powe claims that he sent medical kites and inmate kites to medical providers who procrastinated in responding and told him that he was scheduled for an appointment and would be notified of the date of his appointment.4 But the responses were not signed and did not provide the title of the provider. Powe alleges that he was unable to see a doctor from February 6, 2014, until March 22, 2016, because there was no doctor available at HDSP.5 Powe alleges that Dr. Rio ordered him hydrocortisone cream and said that he would order a blood test from a dermatologist outside of HDSP, but that was a lie.6 Powe contends that he consented to disclose his medical records to Sunrise Hospital, and that it took three years for him to obtain Loratadine medication.7
Powe claims he suffered from hives for three years without receiving a blood test from a professional dermatologist outside of HDSP.8 Powe sues the State of Nevada, NDOC, Director James Dzurenda, Medical Director Romeo Aranas, and Dr. Rio, and he seeks monetary damages, a transfer to another prison, and a blood test from a dermatologist at Sunrise Hospital.9
Based on these events, Powe alleges that his Eighth Amendment and Fourteenth Amendment rights were violated,10 but I liberally—and more accurately—construe these claims as alleging claims under the Eighth Amendment for deliberate indifference to Powe's serious medical needs.
Federal courts must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or an officer or employee of a governmental entity.11 In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous or malicious, or that fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief.12 All or part of the complaint may be dismissed sua sponte if the prisoner's claims lack an arguable basis in law or fact. This includes claims based on legal conclusions that are untenable, like claims against defendants who are immune from suit or claims of infringement of a legal interest which clearly does not exist, as well as claims based on fanciful factual allegations or fantastic or delusional scenarios.13
Dismissal for failure to state a claim is proper only if it is clear that the plaintiff cannot prove any set of facts in support of the claim that would entitle him or her to relief.14 In making this determination, the court takes all allegations of material fact as true and construes them inthe light most favorable to the plaintiff.15 Allegations of a pro se complainant are held to less stringent standards than formal pleadings drafted by lawyers,16 but a plaintiff must provide more than mere labels and conclusions.17 "While legal conclusions can provide the framework of a complaint, they must be supported with factual allegations."18 "Determining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense."19
The Eighth Amendment prohibits the imposition of cruel and unusual punishment and "embodies 'broad and idealistic concepts of dignity, civilized standards, humanity, and decency.'"20 A prison official violates the Eighth Amendment when he acts with "deliberate indifference" to the serious medical needs of an inmate.21 "The Eighth Amendment requires that prison officials provide a system of ready access to adequate medical care."22 "To establish an Eighth Amendment violation, a plaintiff must satisfy both an objective standard—that the deprivation was serious enough to constitute cruel and unusual punishment—and a subjective standard—deliberate indifference."23
To establish the first prong, "the plaintiff must show a serious medical need by demonstrating that failure to treat a prisoner's condition could result in further significant injury or the unnecessary and wanton infliction of pain."24 For the second prong, the plaintiff must prove that the prison official "knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference."25 To satisfy this deliberate-indifference prong, a plaintiff must show "(a) purposeful act or failure to respond to a prisoner's pain or possible medical need and (b) harm caused by the indifference."26 "Indifference may appear when prison officials deny, delay or intentionally interfere with medical treatment, or it may be shown by the way in which prison physicians provide medical care."27 When a prisoner alleges that delay of medical treatment evinces deliberate indifference, the prisoner must show that the delay led to further harm.28
A "difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a § 1983 claim."29 To establish that a difference of opinion amounted to deliberate indifference, the prisoner "must show that the course of treatmentthe doctors chose was medically unacceptable under the circumstances" and "that they chose this course in conscious disregard of an excessive risk to [the prisoner's] health."30
I find that Powe alleges a serious medical condition by stating that he suffered from itching and pain associated with his intermittent hive outbreaks. What I must determine, therefore, is whether the complaint adequately alleges deliberate indifference against each of the defendants.
Powe's allegations that he wrote kites asking to see a doctor but was not able to see a doctor for years state a colorable claim against the unknown persons who allegedly responded to his kites without arranging for him to see a doctor. Liberally construed, the complaint alleges that these prison officials knew of Powe's hives and his need for treatment, but failed to arrange for him to be treated in a timely manner. These facts are sufficient to allege deliberate indifference by these prison officials, so this claim will proceed against the Doe prison officials who responded to the medical kites when Powe learns their identities. Although the use of the "Doe" placeholder to identify a defendant is not favored, flexibility is allowed in some cases where the identity of the parties will not be known prior to filing a complaint but can subsequently be determined through discovery.31 So, if Powe learns the true identity of any of the Doe defendants during discovery, he must then move to amend his complaint to assert claims against them at that time.
Powe has not stated a colorable claim for deliberate indifference to serious medical needs against Dr. Rio. According to the complaint, Powe received a prescription for Loratadine and Dr. Rio prescribed hydrocortisone cream for him. Though not entirely clear, Powe appears to allege that he did receive a blood test but not from a dermatologist from outside of HDSP.32 But Powe has not alleged what this blood test is that he wants, why it is necessary, why it must be performed by a dermatologist at a hospital outside of HDSP, and what harm he has suffered as a result of not receiving this blood test. He also has not alleged facts sufficient to show that Dr. Rio knew that it was necessary for an outside dermatologist to order the blood test and nevertheless made the decision not to arrange for a dermatologist to see Powe and order such a blood test.
So, I dismiss this portion of the claim without prejudice and with leave to amend. If Powe chooses to amend this portion of the claim, he must allege facts sufficient to show what this blood test is, why it is necessary, why it must be performed by a dermatologist outside of HDSP, and what harm he has suffered as a result of not receiving this blood test. He also must allege facts that show that Rio knew that Powe needed this blood test but refused to arrange for it. It will not be enough for Powe to allege that he believes that a blood test from an outside dermatologist is necessary.
As to to the alleged delay in receiving the Loratadine, Powe has...
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