Case: 20-20303 Document: 119-1 Page: 1 Date Filed: 04/25/2025
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________
FILED
No. 20-20303 April 25, 2025
____________ Lyle W. Cayce
Clerk
Mark Eugene Ricks,
PlaintiffâAppellant,
versus
Jessica Khan, MD; Jamie Williams; Monica Pickthall;
John Doe, UTMB Doctor; John Doe, UTMB Doctor; John Doe,
UTMB Policy Maker; Jane Doe, UTMB Policy Maker,
DefendantsâAppellees.
______________________________
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:19-CV-587
______________________________
Before King, Richman, and Higginson, Circuit Judges.
Priscilla Richman, Circuit Judge:
Mark Eugene Ricks was incarcerated by the Texas Department of
Criminal Justice (TDCJ). Proceeding in forma pauperis (IFP) and pro se,
Ricks filed suit under 42 U.S.C. § 1983 against employees of the University
of Texas Medical Branch (UTMB), which provides TDCJ with healthcare
services. Ricks alleges that the defendants violated his right to be free from
cruel and unusual punishment under the Eighth Amendment in two ways.
First, he asserts that he was denied treatment for chronic hepatitis C virus
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No. 20-20303
(HCV) based solely on nonmedical reasons. Second, he alleges that the
TDCJ HCV Policy (Policy) was the moving force behind that
unconstitutional denial of treatment. The district court granted the
defendantsâ motion to dismiss, holding that Ricksâs allegations failed to state
a claim for deliberate indifference. The district court also denied Ricksâs
motion for appointment of counsel. Ricks appeals both decisions. We vacate
the district courtâs orders granting the motion to dismiss and denying
appointment of counsel, and we remand with instructions that Ricks be given
leave to amend his pleadings and that counsel be appointed to represent
Ricks.
I
Ricks is a Texas state prisoner who has chronic HCV. Ricks filed suit
under 42 U.S.C. § 1983 against Jamie Williams, a medical practice manager;
Monica Pickthall, a physicianâs assistant in the HCV clinic; Dr. Jessica
Khan; and Doe Defendants. He alleges that (1) Williams, Pickthall, and the
Doe Defendants violated his Eighth Amendment rights by inadequately
treating his HCV, and (2) Dr. Khan and the Doe Defendants implemented
an unconstitutional HCV policy.
In reviewing a motion to dismiss for failure to state a claim, we accept
the complaintâs allegations as true. 1 The following facts are based on Ricksâs
complaint and attachments to it, including several publications and articles.
HCV attacks the liver, and some individuals affected by it develop chronic
HCV. If left untreated, chronic HCV can cause scarring, disease, and
cancer of the liver. âHCV-associated liver disease is a frequent cause of
death in inmates . . . .â Before 2011, HCV was treated with interferon, but
by 2013, direct acting antiviral (DAA) drugs were introduced to treat the
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1
Norsworthy v. Hous. Indep. Sch. Dist., 70 F.4th 332, 336 (5th Cir. 2023).
2
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disease. DAAs have few adverse side effects and yield âsustained virological
response . . . rates in excess of 95% for most HCV patient populations.â
Guidance published by the American Association for the Study of Liver
Diseases and the Infectious Diseases Society of America on March 11, 2019,
ârecommend[s] [DAA] treatment for all patients with chronic HCV
infection, except those with a short life expectancy that cannot be remediated
by HCV [DAA] treatment, liver transplantation, or another directed
therapy.â
Ricks contracted HCV in the Dallas County Jail. In 2011, TDCJ
treated Ricks with an interferon treatment. It was unsuccessful. Ricks alleges
that he requested DAA treatment multiple times after the interferon
treatment failed. In 2015, Ricks was referred to Pickthall, who he alleges
âordered that ultrasounds be taken every six months.â After requesting a
copy of one of his ultrasounds in December 2016, Ricks learned that his
âliver had worsened to the point where it was âmorphingâ to [cirrhosis].â
Ricksâs ultrasounds confirm the cirrhosis determination, and his relevant lab
test results indicate severe liver scarring in 2013 and cirrhosis in 2017.
In February 2017, Ricks filed a grievance requesting he receive DAAs
in order to prevent his illness from progressing. Ricks alleged that he was
being denied DAA treatment under the Policy because he was ânot sick
enough.â In response to this grievance, Williams advised that Ricks was not
eligible for treatment under the Policy and that treatment would not âbe
denied [to Ricks] if deemed medically necessary.â The response did not
explain the criteria for eligibility or for deeming treatment medically
necessary. In response to a subsequent grievance, Ricks was advised that he
was ineligible for DAAs because his enzyme levels exceeded the limitation
for initiation of treatment, and he was being treated in accordance with the
Policy.
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In February 2019, Ricks brought suit under 42 U.S.C. § 1983, seeking
injunctive and declaratory relief as well as damages. After Ricks filed suit, he
was approved for treatment and started receiving DAAs in April 2019.
Ricksâs complaint and more definite statement alleged that the UTMB
officials were deliberately indifferent to his serious medical needs in violation
of his Eighth Amendment right to be free from cruel and unusual punishment
because they failed either to treat his HCV or âto enact [a] policy protecting
patients from progressing to [cirrhosis].â The district court allowed Ricks to
proceed IFP but declined to appoint counsel.
The defendants filed a motion to dismiss Ricksâs claims under Federal
Rule of Civil Procedure 12(b)(1) as moot and under Rule 12(b)(6) for failure
to state a claim upon which relief could be granted. The district court granted
the motion and dismissed Ricksâs complaint with prejudice for failure to state
a claim. Ricks filed a timely Rule 59(e) motion for reconsideration, which the
district court denied. Ricks filed a timely notice of appeal. 2 The district court
denied Ricks leave to proceed IFP and certified pursuant to 28 U.S.C.
§ 1915(a)(3) and Federal Rule of Appellate Procedure 24(a)(3)(A) that any
appeal would not be taken in good faith. Ricks filed motions in this court for
leave to proceed IFP and for appointment of counsel, which we granted.
II
We review de novo a district courtâs grant of a motion to dismiss for
failure to state a claim under Rule 12(b)(6). 3 âTo avoid dismissal for failure
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2
See Fed. R. App. P. 4(a)(1)(A), (a)(4)(A)(iv).
3
Whitaker v. Collier, 862 F.3d 490, 496-97 (5th Cir. 2017) (âA dismissal for failure
to state a claim under Rule 12(b)(6) is reviewed âde novo, accepting all well-pleaded facts
as true and viewing those facts in the light most favorable to the plaintiff.ââ (alteration in
original) (italics omitted) (quoting Bowlby v. City of Aberdeen,
681 F.3d 215, 219 (5th Cir.
2012))).
4
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to state a claim, the complaint must allege âenough facts to state a claim to
relief that is plausible on its face.ââ 4 âA claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.â 5 We must
accept all well-pleaded facts as true and construe pro se pleadings liberally. 6
Generally, âdistrict courts should not dismiss pro se complaints
pursuant to Rule 12(b)(6) without first providing the plaintiff an opportunity
to amend, unless it is obvious from the record that the plaintiff has pled his
best caseâ; when it is not apparent that the plaintiff has pled his best case,
remand is appropriate. 7 âDismissing an action after giving the plaintiff only
one opportunity to state his case is ordinarily unjustified.â 8 Although the
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4
Carlucci v. Chapa, 884 F.3d 534, 537-38 (5th Cir. 2018) (quoting Bell Atl. Corp. v.
Twombly,
550 U.S. 544, 570 (2007)).
5
Id. at 538 (quoting Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009)).
6
Estelle v. Gamble, 429 U.S. 97, 99, 106 (1976) (stating that the âhandwritten pro
se document is to be liberally construedâ in analyzing an Eighth Amendment deliberate
indifference claim).
7
See Hale v. King, 642 F.3d 492, 503 (5th Cir. 2011) (per curiam) (first citing
Bazrowx v. Scott,
136 F.3d 1053, 1054 (5th Cir. 1998) (per curiam); and then citing Peña v.
United States,
157 F.3d 984, 987 n.3 (5th Cir. 1998)) (remanding to give the defendant the
opportunity to amend his allegations); see also Bazrowx,
136 F.3d at 1054 (âGenerally a
district court errs in dismissing a pro se complaint for failure to state a claim under Rule
12(b)(6) without giving the plaintiff an opportunity to amend.â (italics omitted) (citing
Moawad v. Childs,
673 F.2d 850, 851-52 (5th Cir. 1982))); McMillan v. Richmond,
400 F.
Appâx 878, 881 (5th Cir. 2010) (per curiam) (â[A] pro se complaint should not be
dismissed without providing the plaintiff an opportunity to amend, unless it is obvious that
the plaintiff has pled his best case; where that does not appear, remand is appropriate.â
(italics omitted) (citing Schultea v. Wood,
27 F.3d 1112, 1118 (5th Cir. 1994), modified on
other grounds on rehâg en banc,
47 F.3d 1427 (5th Cir. 1995))).
8
Schultea, 27 F.3d at 1118 (first quoting Jacquez v. Procunier,
801 F.2d 789, 792 (5th
Cir. 1986); and then citing Brown v. Tex. A & M Univ.,
804 F.2d 327, 334 (5th Cir. 1986));
see also Fox v. Wardy,
200 F. Appâx 323, 324 (5th Cir. 2006) (per curiam).
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district court permitted Ricks to file a more definite statement, it did not
allow Ricks an opportunity to amend after he was alerted to the deficiencies
of his allegations. 9 Instead, the district court granted the motion to dismiss
âbecause Ricks [did] not state a claim for relief.â The district court did not
address the defense of qualified immunity, instead concluding that Ricksâs
âallegations amount to a disagreement with his medical treatment and do not
support a claim for deliberate indifference to his serious medical needs in
delaying treatment.â
Based on our review of the record, we cannot say that âallowing
[Ricks] to amend his complaint or elaborate on his claims would still not
produce a viable 42 U.S.C. § 1983 claim.â 10 â[I]nadequate medical care by
a prison doctor can result in a constitutional violation for purposes of a § 1983
claim when that conduct amounts to deliberate indifference to [the
prisonerâs] serious medical needs, constitut[ing] the unnecessary and
wanton infliction of pain proscribed by the Eighth Amendment.â 11 A
plaintiff can demonstrate deliberate indifference âby showing that a prison
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9
See Hale, 642 F.3d at 503 (remanding to allow the plaintiff to amend his allegations
because âit does not appear that [the plaintiff] has had an opportunity to amend
his . . . claim after being alerted to its deficienciesâ and stating, âWe have held that district
courts should not dismiss pro se complaints pursuant to Rule 12(b)(6) without first
providing the plaintiff an opportunity to amend, unless it is obvious from the record that
the plaintiff has pled his best caseâ (italics omitted) (first citing Bazrowx,
136 F.3d at 1054;
and then citing Peña,
157 F.3d at 987 n.3)).
10
See Fox, 200 F. Appâx at 324; see also Daniell v. Cole, No. 94-20324,
1994 WL
725027, at *2 (5th Cir. Dec. 19, 1994) (per curiam) (âWhere the pleadings, viewed under
the individual circumstances of the case, demonstrate that the plaintiff has pleaded his best
case, there is no need to remand for further proceedings.â (citing Schultea,
27 F.3d at
1118)).
11
Harris v. Hegmann, 198 F.3d 153, 159 (5th Cir. 1999) (per curiam) (alterations in
original) (quoting Stewart v. Murphy,
174 F.3d 530, 533 (5th Cir. 1999)).
6
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official refused to treat him . . . [or] intentionally treated him incorrectly.â 12
In his complaint and more definite statement, Ricks alleges that DAAs are
the universally accepted treatment for HCV, especially for someone
suffering from late-stage liver disease. However, according to Ricks, the
defendants repeatedly denied him such treatment, as the Policy permits,
resulting in irreversible cirrhosis of the liver. Liberally construed, these
allegations arguably raise a viable claim of deliberate indifference. Dismissal
of Ricksâs complaint without allowing him further opportunity to elaborate
on the factual and legal bases of his claims was error.
III
âWe review the denial of a motion to appoint counsel for abuse of
discretion.â 13 When an indigent plaintiff requests counsel, the district court
has âdiscretion to appoint counsel if doing so would advance the proper
administration of justiceâ 14 and âaid in the efficient and equitable disposition
of the case.â 15 In making this determination, courts consider the factors set
out by Ulmer v. Chancellor 16:
(1) the type and complexity of the case; (2) whether the
indigent is capable of adequately presenting his case;
(3) whether the indigent is in a position to investigate
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12
See Easter v. Powell, 467 F.3d 459, 464 (5th Cir. 2006) (per curiam) (internal
quotation marks omitted) (quoting Domino v. Tex. Depât of Crim. Just.,
239 F.3d 752, 756
(5th Cir. 2001)).
13
Delaughter v. Woodall, 909 F.3d 130, 136 (5th Cir. 2018) (citing Jackson v. Dall.
Police Depât,
811 F.2d 260, 261 (5th Cir. 1986) (per curiam)).
14
Jackson v. Cain, 864 F.2d 1235, 1242 (5th Cir. 1989) (first citing
28 U.S.C.
§ 1915(d) (1989), amended by
28 U.S.C. § 1915(e) (1996)); and then citing Ulmer v.
Chancellor,
691 F.2d 209, 213 (5th Cir. 1982)).
15
Delaughter, 909 F.3d at 140 (quoting Jackson,
811 F.2d at 262).
16
691 F.2d 209 (5th Cir. 1982).
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adequately the case; and (4) whether the evidence will consist
in large part of conflicting testimony so as to require skill in the
presentation of evidence and in cross examination. 17
In denying Ricksâs motion for appointment of counsel, the district
court stated that â[t]he law affords no programs for furnishing lawyers to
litigants under these circumstances.â When a district court allows a litigant
to proceed IFP, under 28 U.S.C. § 1915(e)(1) it âmay request an attorney to
representâ that litigant. In considering motions for appointment of counsel
in § 1983 cases, we require district courts to consider the Ulmer factors and
provide specific findings. 18 The district court did not cite the factors or
provide findings explaining the denial of Ricksâs motion.
In most cases, we would remand to the district court to provide
specific findings regarding the denial of counsel 19 or to consider appointing
counsel. 20 This case, however, presents âpeculiar circumstances.â 21
Ricksâs claims involve a complex medical condition and âan extremely highâ
legal standard. 22 To meet this evidentiary burden, Ricks may need to locate
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17
Delaughter, 909 F.3d at 140-41 (citations omitted in original) (quoting Ulmer,
691
F.2d at 213).
18
Jackson, 811 F.2d at 261-62.
19
See Jackson, 811 F.2d at 262 (âNormally, we would vacate the district courtâs
denial of a request for counsel so that it could present specific findings explaining why
counsel was denied.â (first citing Robbins v. Maggio,
750 F.2d 405, 413 (5th Cir. 1985),
overruled on other grounds by Williams v. Catoe,
946 F.3d 278 (5th Cir. 2020) (en banc); and
then citing Branch v. Cole,
686 F.2d 264, 267 (5th Cir. 1982) (per curiam)).
20
See Murphy v. Kellar, 950 F.2d 290, 293 & n.14 (5th Cir. 1992) (reversing and
remanding to allow prisoner to conduct discovery on his
42 U.S.C. § 1983 claim and
directing the district court âto consider appointing counselâ on remand).
21
See Sanchez v. Chapman, 352 F. Appâx 955, 958 (5th Cir. 2009) (per curiam).
22
Domino v. Tex. Depât of Crim. Just., 239 F.3d 752, 756 (5th Cir. 2001)
(âDeliberate indifference is an extremely high standard to meet.â).
8
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defendants and engage in extensive discovery and document review. There
would likely be competing expert testimony as to the standard of care for
treating HCV. Ricks âis a prisoner who, without counsel, would have to
investigate by himself the prisonâs policies and employees of the very
[facility] where he is incarcerated.â 23 Ricksâs âdeteriorating health
conditionâ likely âexacerbate[s]â the limitations on his litigating abilities.24
Furthermore, this courtâs decision to appoint appellate counsel for Ricks
supports the argument that appointment of trial counsel would be
appropriate. 25 We vacate the denial of counsel and remand with instructions
to appoint counsel. 26
âŠ
We VACATE the district courtâs orders granting the motion to
dismiss and denying appointment of counsel. We REMAND with
instructions that Ricks be given leave to amend his pleadings and that counsel
be appointed to represent Ricks.
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23
See Parker v. Carpenter, 978 F.2d 190, 193 (5th Cir. 1992).
24
See Sanchez, 352 F. Appâx at 958.
25
See Akasike v. Fitzpatrick, 26 F.3d 510, 512 (5th Cir. 1994) (per curiam) (citing
Ulmer v. Chancellor,
691 F.2d 209, 212 (5th Cir. 1982), for the denial of a motion for
appointment of appellate counsel); Cooper v. Sheriff,
929 F.2d 1078, 1084 (5th Cir. 1991)
(per curiam) (considering the Ulmer factors in denying the motion for appointment of
appellate counsel).
26
See Sanchez, 352 F. Appâx at 958; see also Whitehead v. Eastland County, No. 93-
01451,
1995 WL 370704, at *3 (5th Cir. May 29, 1995) (per curiam) (instructing the district
court to appoint counsel on remand and explaining that the district court âoffer[ed] no
explanation why [the defendantâs] requests for counsel were deniedâ and that the courtâs
âown examination of the district court file does not independently reveal sufficient facts to
justify the district courtâs denial of counselâ).
9
