United States District Court, E.D. Virginia, Alexandria Division
Christopher H. Zoukis, Plaintiff,
Eric D. Wilson, et al., Defendants.
LEONIE M. BRINKEMA, District Judge.
Christopher Zoukis, a federal inmate confined in Virginia and proceeding pro se, has filed this action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) and the Rehabilitation Act, 29 U.S.C. § 791 et seq. In this action, he alleges that the defendants, Eric D. Wilson, Warden of FCI Petersburg ("Petersburg"); Charles E. Samuels, Jr., Director of the Federal Bureau of Prisons ("BOP"); Dr. Corine Hill, former Petersburg psychologist; Dr. Amy Boncher, former chief psychologist at Petersburg; Dr. Katherine Laybourn, medical director at Petersburg; Harrell Watts, BOP National Appeals Coordinator; and Christopher Eichenlaub, BOP Mid-Atlantic Regional Director, have violated his rights by failing to provide adequate treatment for his Attention Deficit and Hyperactivity Disorder ("ADHD"). Each defendant is sued in his or her official and individual capacity.
On February 13, 2015, defendants filed a Motion to Dismiss and for Summary Judgment, accompanied by a supporting memorandum and exhibits. See Dkt. Nos. 22, 23. After being given the opportunity to file responsive materials in accordance with Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1997) and Local Rule 7(K), plaintiff filed a response on May 15, 2015. Dkt. No. 31. Defendants filed a reply on May 28, 2015. Dkt. No. 34. Plaintiff has also filed a "Motion to Stay Ruling and for Order Allowing Prisoner to Prisoner Communication, " in which he appears to ask for an extension of time to file a sur-reply to the defendant's reply. For the reasons that follow, defendants' Motion to Dismiss and Motion for Summary Judgment will be granted, and plaintiff's Motion will be denied.
Plaintiff's complaint centers on the BOP's failure to prescribe him medication for his ADHD. The BOP maintains a list of medications that medical practitioners can routinely prescribe to inmates without further approval. This list is known as the "National Formulary." See Memorandum of Law in Support of Defendants' Motion to Dismiss and for Summary Judgment ("Defs.' Mem.") [Dkt. 23], Ex. 4 (Lewis Decl.) ¶ 2. Inmates may be prescribed medications that are not on the National Formulary after a medical practitioner obtains approval from the institution's pharmacist, the facility's clinical director, the regional pharmacist, and finally the BOP's chief psychiatrist or medical director. See id. ¶ 3. The National Formulary also provides a list of pre-requisites for each specific non-formulary drug. Id . ¶ 4. Drugs used for treatment of ADHD, such as Adderall and Strattera,  are non-formulary drugs due to their highly addictive properties. Id . ¶ 5. As pre-requisites for obtaining approval of these drugs, a medical practitioner must certify and submit written evidence that (1) a prisoner has attempted to manage his symptoms with counseling and coping mechanisms for six months with no success, and (2) a prisoner has tried "noradrenergic re-uptake inhibitor" medication for six weeks with no success. See Defs.' Mem., Ex. 5, at unnumbered page 4.
Plaintiff is confined to Petersburg serving a 151-month sentence after being convicted in 2008 of possession of child pornography. See Am. Compl. [Dkt. No. 2] ¶¶ 11-12; United States v. Zoukis, No. 1:07-cr-91, Dkt. No. 20 (W.D. N.C. Sept. 28, 2008). While incarcerated at Petersburg, plaintiff has written two books, completed his paralegal degree, and authored several internet blogs. See Defs.' Mem., at 2 ¶ 2. Before his incarceration, plaintiff suffered from ADHD and received various forms of treatment, including medication and therapy, with varying degrees of success. See Am. Compl. ¶¶ 14, 19-25. His Pre-Sentence Report extensively documented his struggles and treatment. See Plaintiff's Reply to Defendants' Motion to Dismiss and for Summary Judgment ("Pl.'s Reply") [Dkt. 31], Ex. 1 (Zoukis Aff.) ¶¶ 5-7.
When plaintiff arrived at Petersburg, he was receiving only 40 mg of fluoxetine (Prozac) daily, Motrin, and vitamins. See Defs.' Mem., Ex. 1 [Dkt. 23-1], at unnumbered page 1. In response to a questionnaire regarding medical treatment, plaintiff listed "depression and anxiety" as his only previous mental illnesses. Id. at 4. BOP medical staff thus continued his fluoxetine prescription, id. at 7, 11. Plaintiff continued taking his fluoxetine until January 12, 2009, when he voluntarily stopped taking the medication. Id. at 29 (showing plaintiff's signature on a refusal of medical treatment form).
On February 25, 2009, plaintiff reported feeling "irritable" without any medication, so Dr. Rice wrote plaintiff a prescription for 25 mg of sertraline, a different anti-depressant. Id. at 31-33. On April 8, 2009, plaintiff returned to Dr. Rice and requested a higher dosage of the sertraline. Id. at 34. After Rice doubled the dosage, plaintiff reported that the medication "was working well for him, " and that he was able to focus on his various activities, such as obtaining his paralegal degree. Id. at 38.
Plaintiff apparently discontinued his sertraline approximately six months later. Id. at 43. On April 29, 2010, he informed another medical staff member that he wanted to re-start taking medication due to "occasional anxiety attack[s]." Id . Plaintiff was prescribed 5 mg of buspirone twice daily. Id. at 44. Plaintiff did not report any complaints with this medication. See Defs.' Mem., Ex. 1 cont. [Dkt. 23-6], at ECF page 3. He stopped taking this medication during June and July of 2010. Id. at 7. In response to questions from medical staff, plaintiff stated that he understood the risks of stopping the medication and agreed to start again in the future if he found it necessary. Id. at 7-9.
Plaintiff voluntarily remained medication-free through at least May of 2012, and did not report any problems to medical staff that would require medication. See id. at 14 (at a June 1, 2011 appointment, plaintiff was "not on any medications"); 18 ("not on any medications" at a November 22, 2011 appointment); 20 ("not taking medication about a year" on February 28, 2012); 25 (on May 21, 2012, doctor notes "he used to take meds for depression and has stopped meds for a long time."). Plaintiff met with psychology staff for various routine appointments between 2008 and 2012, and also reported no problems. See, e.g., Defs.' Mem., Ex. 2, at unnumbered pages 6-8. Between February 22, 2012 and June 26, 2012, plaintiff received monthly psychological assessments during his time in disciplinary segregation. During each assessment, psychology staff reported him to be mentally healthy. Id. at 9-13.
In July of 2013, plaintiff requested to meet with a psychologist. On July 30, 2013, he met with Dr. Corine Hill, and indicated that, due to his ADHD, he was having trouble concentrating on his studies in his housing unit. Id. at 14. At this appointment, he stated that "he had recently met with Health Services and had been informed that he needed to meet with psychological services in order to see about obtaining medication for ADHD." Id . He requested medication to help him with his previously-diagnosed ADHD symptoms. Id . During her conversation with plaintiff, however, Dr. Hill concluded that plaintiff did not seem to be suffering from acute ADHD at the time. She came to this conclusion based on five factors: (1) plaintiff did not appear to have any "difficulties with his thought process or motor activity;" (2) plaintiff had no trouble remembering both recent and more remote events; (3) plaintiff had no difficulty concentrating or paying attention during the session; (4) plaintiff did not indicate that he had trouble focusing on any aspects of daily life other than studying; and (5) plaintiff had written down everything he wanted to discuss on a note pad. See Defs.' Mem., Ex. 8 ¶ 5. Based on these observations, as well as the fact that plaintiff's medical records contained no mention of recent struggles with ADHD, Hill concluded that plaintiff "did not have ADHD, or... if he did have ADHD, he had developed coping skills to effectively manage it." Id . ¶ 6. Accordingly, she discussed additional coping mechanisms with plaintiff to help him continue to effectively deal with his symptoms. Id . ¶ 7; Defs.' Mem., Ex. 2, at 14. Plaintiff was not receptive to these ideas, and "made clear that he felt stimulant medications were the only thing that could help." Defs.' Mem., Ex. 8 ¶ 8. Hill told plaintiff that, although she was unable to prescribe medication, he could return to her if he required additional psychological counseling. Id . ¶¶ 8-9.
On August 2, 2013, after meeting with Hill, plaintiff filed a BP-8 administrative remedy request challenging Petersburg's "refusal to treat [his] previously-diagnosed [ADHD] and "anxiety disorder condition." He stated that these conditions had caused him "great distress and hardship, " leading to "days when [he] feel[s] as though [he] can barely function." Defs.' Mem., Ex. 3, at unnumbered page 2. On August 14, 2013, plaintiff's unit counselor responded to plaintiff's request. She informed plaintiff that she had spoken to Dr. Amy Boncher, the head of Petersburg's psychology department. Boncher told plaintiff's counselor that she had reviewed Hill's notes, that she agreed with Hill's findings, and that plaintiff needed to meet many additional criteria before being prescribed any ADHD medication. Id. at unnumbered page 3; Defs. Mem., Ex. 7 (Boncher Aff.) ¶ 3. Plaintiff appealed his counselor's response to Warden Wilson on August 15, 2013. Wilson upheld the decision and encouraged plaintiff to speak with medical staff regarding any request for medication. Defs.' Mem., Ex. 3 at unnumbered pages 4-6.
On September 17, 2013, plaintiff appealed the Warden's response to the BOP's Regional Office. Id. at unnumbered pages 7-8. Defendant Eichenlaub, BOP's Regional Director, denied plaintiff's appeal on November 15, 2013, finding that plaintiff's treatment had been adequate. Id. at unnumbered page 10. Eichenlaub informed plaintiff that, if he wished to "re-start medication therapy, " he should "send an electronic request to medical staff." Id . After receiving this message, plaintiff emailed Dr. Hill - not medical staff - requesting additional types of treatment for his ADHD on November 20, 2013. Defs.' Mem., Ex. 8 ¶ 10; Ex. B. Hill then decided that "there could be some value in administering a series of tests to [plaintiff]... While these tests on their own would not indicate the presence or absence of ADHD, they could indicate patterns to confirm the findings that [Hill] had already made from [her] review of [plaintiff's] records and the July 30 session." Id . ¶ 11. Hill hoped that these tests, once completed, "might provide additional evidence to persuade [plaintiff] that the types of coping skills [she had] earlier suggested were worth employing, if only as a trial methodology." Id . ¶ 12.
Hill emailed plaintiff on December 9, 2013, and told him that he would be scheduled for testing. See id. Ex. B. For unknown reasons, this testing was never completed. Plaintiff did not inquire again as to receiving medical tests, and did ...