United States District Court, D. Nevada
MIRANDA M. DU, UNITED STATES DISTRICT JUDGE.
the Court is the Report and Recommendation of United States
Magistrate Judge Valerie P. Cooke (ECF No. 32)
(“R&R” or “Recommendation”)
relating to Plaintiff's emergency motions for a temporary
restraining order and preliminary injunction (ECF Nos. 23,
24). Plaintiff filed his objection to the R&R on December
12, 2017. (ECF No. 37.) Defendant responded (ECF No.
38) and Plaintiff replied (ECF No. 39). For the reasons
described below, the Court schedules an evidentiary hearing
and refers this case to the Pro Bono Program
(“Program”) adopted in General Order 2016-02.
screening pursuant to 28 U.S.C. § 1915A, the Court
permitted Plaintiff to proceed on one Eighth Amendment claim
of deliberate indifference to serious medical needs against
Defendants Dr. Romeo Aranas (“Dr. Aranas”) and
Dr. Karen Gedney (“Dr. Gedney”) for declaratory,
injunctive, and monetary relief and against former NDOC
Director Greg Cox (“Cox”) only with respect to
Plaintiff's claim for injunctive relief. (ECF No. 3 at
is infected with Hepatitis-C virus (“HCV”) and
experiences a number of symptoms as a result: constant joint
pain, liver pain, digestive issues, severe rash, and fatigue.
(ECF No. 23 at 11.) Additionally, an ultrasound indicated
that Plaintiff's HCV is causing his gallbladder walls to
thicken. (Id. at 12.)
recent years, a cure for HCV has emerged in the form of a
class of medications called direct-acting antivirals
(“DAA”). These medications are known to cure HCV
at a rate of 90-95%. (ECF No. 37 at 9.)
have denied Plaintiff's requests for DAA based on Medical
Directive 219.01 (ECF No. 37 at 2), which excludes from
treatment individuals with Aspartate Aminotransferase
Platelet Ratio Index (“APRI”) levels lower than
2.0. (ECF No. 37-1 at 25.) An APRI score above 1.5 indicates
that the patient likely has, or is quickly approaching,
cirrhosis of the liver according to prison officials in a
similar case. King v. Calderwood, No.
2:13-cv-02080-GMN-PAL, 2016 WL 4771065, at *5 (D. Nev. Sept.
12, 2016), aff'd sub nom. King v. Cox, 692 F.
App'x 398 (9th Cir. 2017). An APRI score above 0.5
indicates the likelihood of some liver damage (fibrosis).
contends that Defendants have been deliberately indifferent
to his serious medical needs by denying him a cure for his
HCV. (ECF No. 23 at 4-5.) Plaintiff further contends that
Medical Directive 219.01 was enacted solely to meet budgetary
restraints. (See Id. at 10.) Implicit in
Plaintiff's argument is that he has been denied DAA
solely for nonmedical reasons.
seeks to preliminarily enjoin Defendants from enforcing the
exclusion criteria set forth in Medical Directive 219.01
against him. (Id. at 1.) Plaintiff also seeks a
preliminary injunction requiring Defendants to arrange for
Plaintiff to be seen by an independent physician and provide
Plaintiff with DAA medication after the independent physician
prescribes such treatment. (Id.)
preliminary injunctive relief is an “extraordinary
remedy, ” Winter v. Nat. Res. Def. Council,
Inc., 555 U.S. 7, 22 (2008), and mandatory injunctive
relief more extraordinary still, Anderson v. United
States, 612 F.2d 1112, 1115 (9th Cir. 2009), Plaintiff
has alleged facts that raise serious constitutional questions
about NDOC's adherence to Medical Directive 219.01.
First, Plaintiff alleges that Medical Directive 219.01 is
inconsistent with the current standard of care. Plaintiff
provides a copy of the American Association for Study of
Liver Disease's (“AASLD”) recently released
guidelines for treatment of HCV. (ECF No. 37-1 at 46-53.) The
guidelines recommend treatment “for all patients with
chronic HCV infection, except those with short life
expectancies that cannot be remediated by treating HCV, by
transplantation, or by other directed therapy.”
(Id. at 47.) The guidelines do not recommend
postponing treatment for individuals lacking signs of
extensive liver damage (such as high APRI scores).
Plaintiff alleges that he will suffer irreparable harm in the
absence of a preliminary injunction. He alleges that his
disease will worsen-his liver scarring, mental and physical
fatigue, digestive issues, liver pain, and severe rash will
continue unabated. (ECF No. 39 at 4.) He also alleges that
the chance of DAA curing his HCV will diminish. (ECF No. 23
at 5; ECF No. 37 at 9.)
the importance of the issue before the Court, the Court finds
it necessary to hold an evidentiary hearing and appoint
counsel for Plaintiff.
this case is referred to the Pro Bono Program adopted in
General Order 2016-02 for the purpose of identifying counsel
willing to be appointed as pro bono counsel for Plaintiff.
The scope of appointment will be for the limited purpose of
representing Plaintiff in an evidentiary hearing on his
emergency motions. By referring this case to the Program, the
Court is not expressing an opinion as to the merits of the
hereby ordered that this case is referred to the Pro Bono
Program for appointment of counsel ...