Prisoner Access to Direct-Acting Antivirals and Eighth Amendment Deliberate Indifference: Ricks v. Khan

Introduction

In Ricks v. Khan, 20-20303 (5th Cir. Apr. 25, 2025), the Fifth Circuit confronted the question of whether a Texas prisoner’s allegations that he was denied direct-acting antiviral (“DAA”) treatment for chronic hepatitis C virus (“HCV”) under a non-medical eligibility policy state an Eighth Amendment claim for deliberate indifference. Plaintiff‐appellant Mark Eugene Ricks, proceeding pro se and in forma pauperis, sued officials and medical employees of the University of Texas Medical Branch (“UTMB”)—which provides healthcare to inmates of the Texas Department of Criminal Justice (“TDCJ”)—alleging that (1) they refused or delayed medically necessary HCV treatment, and (2) the institutional HCV policy itself was the moving force behind this denial. The district court dismissed his complaint for failure to state a claim and denied his motion for appointment of counsel. Ricks appealed both rulings.

Summary of the Judgment

The Fifth Circuit, in an opinion by Judge Richman, held that:

• Ricks’s pro se complaint—alleging that he was denied highly effective, low-risk DAA therapy based on a policy that excluded him for non-medical reasons—must be liberally construed to state a plausible Eighth Amendment deliberate-indifference claim.
• The district court erred by dismissing his § 1983 action without granting leave to amend after identifying pleading deficiencies.
• The court also abused its discretion by denying appointment of counsel without applying the Ulmer factors or making specific findings, given the medical complexity of HCV treatment, the high standard for deliberate indifference, and Ricks’s pro se prisoner status.
• The Fifth Circuit vacated the dismissal and the denial of counsel, and remanded with instructions to (a) permit Ricks to amend his complaint, and (b) appoint counsel to represent him at trial.

Analysis

1. Precedents Cited

• Norsworthy v. Hous. Indep. Sch. Dist., 70 F.4th 332 (5th Cir. 2023): stands for the Rule 12(b)(6) standard—accepting well-pleaded facts as true and construing pro se filings liberally.
• Bell Atlantic v. Twombly, 550 U.S. 544 (2007) & Ashcroft v. Iqbal, 556 U.S. 662 (2009): define plausibility pleading.
• Harris v. Hegmann, 198 F.3d 153 (5th Cir. 1999): deliberate indifference requires “unnecessary and wanton infliction of pain.”
• Domino v. Texas Dep’t of Crim. Just., 239 F.3d 752 (5th Cir. 2001): the “extremely high” standard for Eighth Amendment claims based on inadequate medical care.
• Ulmer v. Chancellor, 691 F.2d 209 (5th Cir. 1982): sets out factors for appointment of counsel under 28 U.S.C. § 1915(e)(1).

2. Legal Reasoning

The court’s reasoning unfolds in two principal strands:

1. Plausibility & Amendment. Ricks alleged that DAAs—approved since 2013 and endorsed by leading medical societies for virtually all chronic HCV patients—were withheld under a blanket “not sick enough” policy, despite evidence of worsening fibrosis and cirrhosis. Construed liberally, these allegations go beyond mere disagreement over care to suggest defendants knowingly refused life-saving treatment. Under Fifth Circuit precedent, pro se plaintiffs must be given an opportunity to amend when dismissal is based on pleading defects that might be cured—absent an obvious showing that the plaintiff has pled his best case.
2. Appointment of Counsel. The court applied the four Ulmer factors:
   • Complexity of the medical and constitutional issues surrounding HCV treatment and the high bar for deliberate indifference;
   • Ricks’s limited capacity—he is incarcerated, pro se, and his health is deteriorating—to investigate policy documents, medical records, and to develop expert testimony;
   • Need for counsel to organize evidence and examine witnesses if the defendants contest standard-of-care issues; and
   • Potential for conflicting expert testimony requiring skilled advocacy.
   Finding that these factors weighed in favor, the Fifth Circuit held that appointment of trial counsel was warranted.

3. Impact on Future Cases

Ricks v. Khan establishes two significant precedents in prisoner civil rights litigation:

• Medical Policy as Unconstitutional Force: A prison health policy that categorically excludes inmates from DAA therapy absent non-medical criteria may suffice to plead deliberate indifference if it causes serious, irreversible harm.
• Counsel in Complex Prisoner Claims: District courts must rigorously apply the Ulmer factors when a pro se prisoner’s case involves complex medical or technical issues and conflicting expert needs, lest they abuse their discretion by denying counsel without specific findings.

Complex Concepts Simplified

• Eighth Amendment Deliberate Indifference: A constitutional violation occurs when prison officials know of a substantial risk to inmate health and disregard it—more than mere negligence.
• Direct-Acting Antivirals (DAAs): Modern drugs for hepatitis C with over 95% cure rates and minimal side effects, replacing older interferon regimens.
• In Forma Pauperis (IFP): Permission to proceed without prepaying court fees, granted to indigent litigants.
• Rule 12(b)(6) Pleading Standard: A complaint must contain enough factual matter to state a claim that is plausible on its face, not merely conceivable.
• Ulmer Factors: The four criteria used to decide whether a court should request or appoint counsel for an indigent civil litigant.

Conclusion

Ricks v. Khan marks a pivotal advancement in Eighth Amendment jurisprudence for incarcerated persons suffering from chronic illnesses. By recognizing that categorical denial of life-saving hepatitis C treatment can state a deliberate-indifference claim and by emphasizing the need to appoint counsel in medically complex cases, the Fifth Circuit has strengthened procedural safeguards. On remand, Ricks will have the chance to amend his complaint, secure representation, and pursue discovery—ensuring that vital medical rights are not eclipsed by administrative policies.