Opinion
2:21-cv-01436-APG-DJA
12-29-2021
Jose Luis Villanueva, Plaintiff v. Charles Daniels, et al., Defendants
SCREENING ORDER
Plaintiff Jose Villanueva, who is in the custody of the Nevada Department of Corrections (NDOC), has submitted a civil-rights complaint under 42 U.S.C. § 1983 and filed an application to proceed in forma pauperis. The court previously denied Villanueva's application to proceed in forma pauperis because it was incomplete. Villanueva timely filed a renewed application to proceed in forma pauperis. The matter of the filing fee will be temporarily deferred. I now screen Villanueva's civil-rights complaint under 28 U.S.C. § 1915A.
ECF Nos. 1, 1-1.
ECF Nos. 1, 3.
ECF No. 4.
I. SCREENING STANDARD
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. 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. 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.
See 28 U.S.C. § 1915A(a).
See Neitzke v. Williams, 490 U.S. 319, 327-28 (1989); see also McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991).
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. In making this determination, the court takes all allegations of material fact as true and construes them in the light most favorable to the plaintiff. Allegations of a pro se complainant are held to less stringent standards than formal pleadings drafted by lawyers, but a plaintiff must provide more than mere labels and conclusions. “While legal conclusions can provide the framework of a complaint, they must be supported with factual allegations.” “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.”
See Morley v. Walker, 175 F.3d 756, 759 (9th Cir. 1999).
See Warshaw v. Xoma Corp., 74 F.3d 955, 957 (9th Cir. 1996).
Hughes v. Rowe, 449 U.S. 5, 9 (1980); see also Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990) (recognizing that pro se pleadings must be liberally construed).
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
Id.
II. SCREENING OF COMPLAINT
Villanueva sues multiple defendants for events that occurred while he was incarcerated at High Desert State Prison (HDSP). Villanueva sues the NDOC, NDOC Director Charles Daniels, and NDOC Medical Director Dr. Michael Minev. Villanueva sues the individual defendants in their individual and official capacities. Villanueva asserts three claims and seeks declaratory, injunctive, and monetary relief.
ECF No. 1-1 at 1, 3-4. Prisoner Michael Knight, #74647, assisted Villanueva in preparing his complaint. See Id. at 29.
Id. at 3-4.
Id.
Id. at 21-28.
According to the allegations, Villanueva is a 50-year-old man who entered NDOC custody in 2012. Villanueva was diagnosed with diabetes in 2013. In 2018 Villanueva began complaining about dark spots and open sores on his body. Although no testing was done, medical staff gave Villanueva two opinions about the condition and prescribed him antibiotics. The spots returned when the antibiotics ran out. Villanueva still has the condition. Villanueva sought further medical treatment for the condition but received none.
Id. at 14.
In May 2020, Villanueva was diagnosed with Hepatitis C and fibrosis or cirrhosis of the liver. Medical staff told Villanueva in June 2020 that he did not qualify for direct-acting antiviral (DAA) treatment. Villanueva tried many times to see his medical file, but his requests were denied. Villanueva's test results have not been provided to him. Villanueva alleges that MD 219 is the NDOC's regulation that governs how Hepatitis C infections are treated. MD 219 has three levels for determining priority of treatment among infected prisoners. Villanueva believes that under the version of MD 219 that was in effect when he was diagnosed with Hepatitis C, he qualified for “priority level 2 immediate priority for treatment” because he also has diabetes.
Id. at 15.
Id. at 13, 15-16.
In August 2020, the defendants in another lawsuit-brought by a class of Nevada state prisoners who alleged their Hepatitis C infections were not being treated (3:19-cv-00577-MMD-CLB)-agreed to the entry of a Consent Decree that altered MD 219's treatment guidelines with an effective date of July 2020. Of concern to Villanueva, the language of MD 219 was altered by changing level 2 from an “immediate” to an “intermediate” level of priority for treatment.Villanueva does not allege that priority levels were added or removed as a result of the Consent Decree; simply that the word “immediate” was replaced with “intermediate.” The comorbidity of diabetes still falls under level 2 of the priority scale for treatment. Villanueva speculates that this change was made so defendants “could arbitrarily and maliciously” deny immediate Hepatitis C treatment to prisoners like him who also have diabetes.
Id. at 16.
Id. at 17.
Id. at 18.
Villanueva contends that, with few exceptions not relevant here, the national standard of care for anyone diagnosed with a Hepatitis C infection is to immediately provide them DAA treatment. But all versions of MD 219 rely on AST-to-Platelet Ratio Index (APRI) scores and liver biopsies to determine when prisoners qualify for treatment. Villanueva alleges that MD 219 is outdated as a result.
Id.
In December 2020, Dr. Minev responded to Villanueva's second level grievance seeking DAA treatment. Dr. Minev stated that he had reviewed Villanueva's medical records and that Villanueva did not qualify for that treatment. Dr. Minev explained that the NDOC was using the “national standard” to determine who qualifies for treatment. He stated that providing DAA to an infected person who does not qualify for it under the national standard “could cause more harm than good . . . .” And Dr. Minev told Villanueva that medical staff would continue to monitor Villanueva's condition and provide him treatment if he meets the criteria.
Id. at 18-19.
Id. at 19.
Id.
In March 2021, “Nevada HOPE” informed Villanueva that he qualified for DAA treatment. Villanueva signed a contract with Nevada HOPE to receive that treatment. Nothing happened until May 2021 when Villanueva underwent an ultrasound for Nevada HOPE. After the ultrasound, Villanueva noticed that his pill packets said that they contained the DAA Epclusa, but no such pills were in the packets. Medical staff “had no idea why [Villanueva's] DAAs were not in the pill packet.” Villanueva submitted a request stating that he did not receive any DAA pills; his request wasn't answered, and he still has not received any DAA pills. Villanueva suspects that his approval for DAA treatment was retroactively nullified so that Dr. Minev would not be exposed to a claim for deliberate indifference to serious medical needs for denying Villanueva's grievance seeking DAA treatment.
Id. at 20.
Based on these allegations, Villanueva contends that defendants were deliberately indifferent to his serious medical needs, discriminated against him in violation of the Americans with Disabilities Act (ADA), and violated Villanueva's rights under the Fourteenth Amendment's Equal Protection Clause. I construe Villanueva's Complaint as alleging claims under six different legal theories: (1) deliberate medical indifference for denying Villanueva DAA treatment for his Hepatitis C infection, (2) deliberate medical indifference for interfering with Nevada HOPE's treatment of Villanueva's Hepatitis C infection, (3) deliberate medical indifference for failing to treat Villanueva's skin condition, (4) substantive due process violation for denying Villanueva access to his medical records, (5) discrimination under the ADA for denying Villanueva DAA treatment for his Hepatitis C infection, and (6) denial of equal protection under the laws for denying Villanueva DAA treatment.
A. Claims against the NDOC are not cognizable
A public agency is not a person or entity subject to suit under § 1983 unless it is a separate legal entity. Under Federal Civil Procedure Rule 17(b), the Ninth Circuit has held that state law determines if a department of a municipality may sue or be sued. In Nevada, each city and county are political subdivisions of the state and independent legal entities, which means that each city and county can sue or be sued. But Villanueva has not sued any city or county; he sued the NDOC. But the NDOC cannot be sued. The NDOC is therefore dismissed from the complaint with prejudice.
Hervey v. Estes, 65 F.3d 784, 791-92 (9th Cir. 1995).
See, e.g., Streit v. Cnty. of Los Angeles, 236 F.3d 552, 565 (9th Cir. 2001).
Clark Cnty. v. Lewis, 498 P.2d 363, 365 (Nev. 1972); Nev. Rev. Stat. § 41.031(2).
See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (explaining that the NDOC is a state agency and immune from suit under the Eleventh Amendment).
B. Eighth Amendment deliberate indifference to serious medical needs
The Eighth Amendment prohibits the imposition of cruel and unusual punishment and “embodies ‘broad and idealistic concepts of dignity, civilized standards, humanity, and decency.'” A prison official violates the Eighth Amendment when he acts with “deliberate indifference” to the serious medical needs of an inmate. “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.” For the first prong, “the plaintiff must show a serious medical need by demonstrating that failure to treat [his] condition could result in further significant injury or the unnecessary and wanton infliction of pain.” For the second prong, he 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.” This requires 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.”
Estelle v. Gamble, 429 U.S. 97, 102 (1976).
Farmer v. Brennan, 511 U.S. 825, 828 (1994).
Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled in part on other grounds by Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014).
Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006) (internal quotations omitted).
Id.
Farmer, 511 U.S. at 837; see also Peralta, 744 F.3d at 1086.
When a prisoner claims deliberate indifference based on a delay in providing medical treatment, he must show that the delay led to further harm. Prison officials who know of a substantial risk to an inmate's health and safety are liable only if they responded unreasonably to the risk, even if the harm ultimately was not averted. Thus, if a prison medical official is denied resources necessary to provide medical care, that person cannot be said to have punished the inmate and cannot be held liable under the Eighth Amendment. Because deliberate indifference is required, a complaint that a medical provider inadvertently or negligently misdiagnosed or treated a medical condition is not sufficient to state a valid claim under the Eighth Amendment as “[m]edical malpractice does not become a constitutional violation merely because the victim is a prisoner.” Even gross negligence is insufficient to establish deliberate indifference to serious medical needs.
See Shapley v. Nevada Bd. of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985) (holding that “mere delay of surgery, without more, is insufficient to state a claim of deliberate medical indifference”).
Farmer, 511 U.S. at 844.
Peralta, 744 F.3d at 1084; see also Patkins v. Tran, 2017 WL 2861914, at *7 (N.D. Cal. July 5, 2017) (holding that because prison policy concerning allowable dental services for prisoners did not include bridges, the law did not impose liability for damages on dentist for not providing a replacement bridge for inmate).
Estelle, 429 U.S. at 106.
See Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir. 2004).
A mere difference of opinion between medical professionals concerning the appropriate course of treatment, or a difference of opinion between the prisoner-patient and the medical-care provider, also cannot support a claim for deliberate indifference to serious medical needs unless the prisoner can “show that the course of treatment the 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.” But if a defendant chooses to override medical recommendations and deny a person medical care solely based on an administrative policy that he knows would require an inmate to suffer medically (and not based on differences of medical opinions or because medical care was not medically indicated or would be unhelpful) there may be deliberate indifference. Advancing a policy that requires subordinates to commit constitutional violations cannot be sufficient for § 1983 liability, however, if the policy does not proximately cause the plaintiff's constitutional harm. A plaintiff cannot plead a colorable claim on such a theory by merely offering the conclusory statement that there is a policy; the plaintiff must plead facts that show that there is a policy, what the policy is, and what role each particular defendant played in creating that policy.
Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989); Franklin v. State of Or., State Welfare Div., 662 F.2d 1337, 1344 (9th Cir. 1981).
Jackson v. McIntosh, 90 F.3d 330, 332 (9th Cir. 1996) (emphasis added).
Colwell v. Bannister, 763 F.3d 1060, 1068 (9th Cir. 2014).
OSU Student All. v. Ray, 699 F.3d 1053, 1076 (9th Cir. 2012).
Ashcroft, 556 U.S. at 680-81.
Id. at 678-81.
Finally, because “[t]here is no respondeat superior liability under [§]1983,” every target of a prisoner civil-rights claim must have personally participated in the constitutional deprivation. “A supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them.” “A showing that a supervisor acted, or failed to act, in a manner that was deliberately indifferent to an inmate's Eighth Amendment rights is sufficient to demonstrate the involvement-and the liability-of that supervisor.” “Thus, when a supervisor is found liable based on deliberate indifference, the supervisor is being held liable for his or her own culpable action or inaction, not held vicariously liable for the culpable action or inaction of his or her subordinates.” Therefore, “a plaintiff may state a claim against a supervisor for deliberate indifference based upon the supervisor's knowledge of and acquiescence in unconstitutional conduct by his or her subordinates.” There must be a sufficient causal connection between the supervisor's wrongful conduct and the Constitutional violation.
Id. at 676 (holding that “[b]ecause vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution”).
Taylor, 880 F.2d at 1045.
Id.
Starr v. Baca, 652 F.3d 1202, 1206-07 (9th Cir. 2011).
Id. at 1207.
Id.
Id.
According to the allegations in Claim 1, Villanueva was diagnosed with Hepatitis C in May 2020 but has not received DAA treatment to cure his infection. When Villanueva filed a grievance complaining about the lack of DAA treatment, Dr. Minev responded that he reviewed Villanueva's medical file and determined that Villanueva did not qualify for the treatment under the NDOC's policy. Villanueva alleges that the NDOC's policy is outdated and that the national standard calls for immediately treating almost everyone who is diagnosed with an infection with DAA regardless of their test scores.
These allegations merely state a difference of opinion between the prisoner-patient and his medical providers. A difference of medical opinion is not enough to state a constitutional violation. To overcome this hurdle, Villanueva must plead facts to show that the course of treatment the doctors chose was medically unacceptable under the circumstances. For example, Villanueva does not allege that he is suffering any symptoms from his Hepatitis C infection. Nor does Villanueva allege that his condition is not being monitored. These allegations do not state a colorable deliberate-medical-indifference claim against any defendant for denying Villanueva DAA treatment for his Hepatitis C infection.
Villanueva alleges in Claim 1 that months after Dr. Minev's grievance response, Nevada HOPE determined that Villanueva qualified for DAA treatment. Villanueva signed a contract with Nevada HOPE to receive DAA treatment. Three months later, Villanueva had an ultrasound done for Nevada HOPE. A few days after the ultrasound, Villanueva noticed that his pill packets listed the DAA Epclusa but did not contain any such pills. Villanueva complained to medical staff, but they didn't know why Epclusa was missing from his pill packets. When Villanueva submitted request slips about this issue, he noticed that Epclusa no longer appeared on his pill packets. This issue repeated itself in July 2021.
It is not clear from the allegations what relationship, if any, Nevada HOPE has with HDSP or the NDOC. In any event, Villanueva does identify any defendant who personally interfered with Nevada HOPE's treatment of his Hepatitis C infection, including that entity's prescribing him medication. Villanueva also does not allege facts that either Dr. Minev or Daniels knew about any interference with his treatment and acquiesced to the conduct. These allegations do not state a colorable deliberate-medical-indifference claim against any defendant for interfering with Nevada HOPE's treatment of Villanueva's Hepatitis C infection.
Villanueva alleges in Claim 1 that his skin condition went untreated despite his requests for treatment. There are several problems with Villanueva's allegations under this theory of liability. Villanueva does not identify any defendant who personally participated in this deprivation. He does not allege that either Dr. Minev or Daniels knew about the deprivation and acquiesced in the conduct. And Villanueva does not plead facts showing that the failure to treat his skin condition presented a serious risk to his health or safety. These allegations do not state a colorable deliberate-medical-indifference claim against any defendant for failing to treat Villanueva's skin condition.
Villanueva has not alleged a colorable deliberate-medical-indifference claim against any defendant under any theory of liability. But it is not yet clear that he cannot state any set of facts upon which relief could be granted. So Claim 1, Eighth Amendment deliberate indifference to serious medical needs, is dismissed without prejudice and with leave to amend.
C. Fourteenth Amendment's Due Process Clause
Villanueva alleges in Claim 1 that he submitted kites to see his medical file but has not been allowed to do so, and no one has shared any of his test scores with him. I construe these allegations as stating a claim under the Fourteenth Amendment's Due Process Clause. Under the Fourteenth Amendment, prisoners “may not be deprived of life, liberty, or property without due process of law.” However, “the fact that prisoners retain rights under the Due Process Clause in no way implies that these rights are not subject to restrictions imposed by the nature of the regime to which they have been lawfully committed.” “[T]here must be mutual accommodation between institutional needs and objectives and the provisions of the Constitution that are of general application.” A prisoner possesses a liberty interest under the federal constitution when a change occurs in confinement that “imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.”
Wolff v. McDonnell, 418 U.S. 539, 556 (1974).
Id.
Id.
See Sandin v. Conner, 515 U.S. 472, 484 (1995).
The initial question for this claim is whether preventing or limiting Villanueva's ability to review his prison medical records imposes an atypical and significant hardship on him related to the ordinary incidents of prison life. But I need not reach this question because Villanueva's claim falters at a more fundamental level. Villanueva does not identify any defendant who personally participated in this alleged deprivation. He does not allege that he cannot discuss the results of his tests and condition with a medical provider. Villanueva does not allege that the NDOC prohibits prisoners from accessing their medical records or, if it allows some access, that he followed the procedures to access his records. Claim 1, construed as Fourteenth Amendment denial of due process, is therefore dismissed without prejudice and with leave to amend.
D. Discrimination under the ADA
“[T]he ADA prohibits discrimination because of disability, not inadequate treatment for disability.” Courts have held that “allowing prisoners to utilize the ADA . . . as causes of action for not receiving medical treatment is simply making ‘an end run around the Eighth Amendment.'” Therefore, in the context of prison-medical services, to state a colorable ADA claim at the screening stage a plaintiff must allege more than a lack of adequate treatment or negligence or deliberate indifference to serious medical needs; he must allege facts sufficient to show that he was denied the benefits of the prison's medical services program because of his disability.
Simmons v. Navajo Cnty., Ariz., 609 F.3d 1011, 1022 (9th Cir. 2010), overruled on other grounds by Castro v. Cnty. of Los Angeles, 833 F.3d 1060, (9th Cir. 2016).
King v. Calderwood, 2:13-cv-02080-GMN-PAL, 2015 WL 4937953, at *2 (D. Nev. Aug. 19, 2015) (citing Deeds v. Bannister, 3:11-cv-00351-LRH-VPC, 2013 WL 1250343, at *5 (D. Nev. Jan. 8, 2013)).
See Postawko v. Missouri Dep't of Corr., No. 2:16-cv-04219-NKL, 2017 WL 1968317, at *12-13 (W.D. Mo. May 11, 2017); see also McNally v. Prison Health Servs., 46 F.Supp.2d 49, 58-59 (D. Me. 1999).
Villanueva alleges that despite his many requests, defendants have refused to treat his Hepatitis C infection with DAAs because he has not yet qualified for that treatment under the NDOC's treatment-priority system. But Villanueva does not allege that he was denied any benefit of the prison's medical program because of any disability. Rather, Villanueva contends that he was not provided adequate treatment for his disability, e.g., he was denied DAA treatment for his infection. These allegations fall under the Eighth Amendment because they concern deliberate indifference to serious medical needs, which is how I have construed them. So Claim 2, discrimination under the ADA, is dismissed with prejudice because amendment would be futile.
E. Fourteenth Amendment's Equal Protection Clause
The Equal Protection Clause of the Fourteenth Amendment is essentially a direction that all similarly situated persons be treated equally under the law. In order to state an equal protection claim, a plaintiff must allege facts demonstrating that defendants acted with the intent and purpose to discriminate against him based upon membership in a protected class, or that defendants purposefully treated him differently than similarly situated individuals without any rational basis for the disparate treatment. Villanueva does not allege any facts suggesting that he was treated differently from others similarly situated based on his membership in a protected class. Nor does he allege a classification that implicates fundamental rights.
City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985).
Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001); see also Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).
Villanueva appears to be asserting a “class of one” equal protection claim. To succeed on a class-of-one claim, Villanueva must demonstrate that the government: “(1) intentionally (2) treated [him] differently than other similarly situated [prisoners], (3) without a rational basis.” Villanueva alleges that Dr. Minev intentionally denied him DAA treatment. But Villanueva does not allege that in doing so, Dr. Minev treated him differently that other similarly situated prisoners. Rather, it appears from the allegations that Villanueva is subject to the same standard for determining his priority for DAA treatment as other prisoners in NDOC's custody. Claim 3, Fourteenth Amendment denial of equal protection of the laws, is therefore dismissed without prejudice and with leave to amend.
See Gerhart v. Lake Cnty., Mont., 637 F.3d 1013, 1022 (9th Cir. 2011).
III. LEAVE TO AMEND
To be clear, I give Villanueva leave to file an amended complaint that cures the defects of his complaint identified in this order. Villanueva has leave to amend by alleging additional true facts to show that any defendant personally participated in denying him access to his medical records, delaying or denying him medical treatment for his Hepatitis C infection or skin condition, the course of treatment selected for treating his Hepatitis C infection was medically unacceptable under the circumstances, or his Hepatitis C infection was treated differently from similarly situated prisoners' infections. I also grant Villanueva leave to amend by adding parties. But I caution Villanueva that the use of Doe Defendants is not favored in the Ninth Circuit. So he should attempt to determine an alleged bad actor's identity to properly name him or her as a defendant in this action. I do not give Villanueva leave to assert new claims.
Gillespie v. Civiletti, 629 F.2d 637, 642 (9th Cir. 1980).
If Villanueva chooses to file an amended complaint, he is advised that an amended complaint supersedes (replaces) the original complaint, so the amended complaint must be complete in itself. He must file the amended complaint on this court's approved prisoner-civil-rights form, and it must be entitled “First Amended Complaint.” Villanueva must follow the instructions on the form. He need not and should not allege very many facts in the “nature of the case” section of the form. Rather, in each count, he should allege facts sufficient to show what each defendant did to violate his civil rights. He must file the amended complaint by February 4, 2022.
See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546 (9th Cir. 1989) (holding that “[t]he fact that a party was named in the original complaint is irrelevant; an amended pleading supersedes the original”); see also Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (holding that for claims dismissed with prejudice, a plaintiff is not required to reallege such claims in a subsequent amended complaint to preserve them for appeal).
IV. CONCLUSION
I therefore order that a decision on the application to proceed in forma pauperis (ECF No. 4) is deferred.
I further order the Clerk of the Court to file the complaint (ECF No. 1-1).
I further order that:
• Claim 1, Eighth Amendment deliberate indifference to serious medical needs (denial of DAA treatment), is dismissed without prejudice and with leave to amend;
• Claim 1, Eighth Amendment deliberate indifference to serious medical needs (interference with Nevada Hope's treatment), is dismissed without prejudice and with leave to amend;
• Claim 1, Eighth Amendment deliberate indifference to serious medical needs (denial of treatment for skin condition), is dismissed without prejudice and with leave to amend;
• Claim 1, construed as Fourteenth Amendment denial of due process (access to prison medical records), is dismissed without prejudice and with leave to amend;
• Claim 2, discrimination under the ADA, is dismissed with prejudice because amendment would be futile; and
• Claim 3, Fourteenth Amendment denial of equal protection of the laws, is dismissed without prejudice and with leave to amend.
I further order that defendants Charles Daniels and Dr. Michael Minev are dismissed from the complaint without prejudice.
I further order that defendant Nevada Department of Corrections is dismissed from the complaint with prejudice.
I further order the Clerk of Court to send Villanueva the approved form for filing a § 1983 prisoner complaint, instructions for the same, and a copy of his original complaint (ECF No. 1-1). If Villanueva chooses to file an amended complaint, he must use the approved form and he must write the words “First Amended” above the words “Civil Rights Complaint” in the caption. The amended complaint will be screened in a separate screening order, and the screening process will take many months. If Villanueva does not file an amended complaint by February 4, 2022, this case will be subject to dismissal for failure to state a claim and the case will be closed.