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King v. Clarke

United States District Court, E.D. Virginia, Alexandria Division

July 13, 2016

Wister King, Jr., Plaintiff,
v.
Harold W. Clarke, et al, Defendants.

          MEMORANDUM OPINION

          Gerald Bruce Lee United States District Judge.

         THIS MATTER comes before the Court upon review of Plaintiffs amended complaint. This case concerns claims asserted by Plaintiff, Wister King Jr., a Virginia inmate proceeding pro se, pursuant to 42 U.S.C. § 1983, alleging violations of his Eighth Amendment and Fourteenth Amendment rights. The issue before the Court is whether Plaintiff has alleged claims for which relief can be granted. The Court concludes that Plaintiffs claims must be dismissed, pursuant to 28 U.S.C. § 1915A(b)(l), for failure to state a claim.

         I. Background

         On December 11, 2015, Plaintiff filed a civil rights action, pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights at Lunenburg Correctional Center. Dkt. No. 1. By Order dated January 15, 2016, Plaintiff was instructed to particularize and amend his complaint. Dkt. No. 4. Plaintiff filed an amended complaint on February 5, 2016. Dkt. No. 8. In his amended complaint, Plaintiff makes no allegations against either Harold Clarke or Nurse Manuel, who were named as defendants in the original complaint. Accordingly, Harold W. Clarke[1] and Nurse Manuel must be dismissed from this case for failure to state a claim.

         In his amended complaint, Plaintiff states that, on November 20, 2014, he was diagnosed with Hepatitis C, which can cause, among other injuries, cirrhosis of the liver, an enlarged spleen, liver cancer and deterioration of brain function. Amend. Compl. §§ IV, VI. "The FDA has recently approved a new drug called Sovaldi that... completely wipes out the Hepatitis 'C virus and the patient can go on and live a full life. Department of Corrections of Virginia is now allowing the drug ... to be used on patients." 14 at § IV. On April 13, 2015, Plaintiff met with Dr. Nwaokocha because he was experiencing flu like symptoms, swelling below the right ribcage in the liver area, and difficulty breathing. Id. Plaintiff requested a prescription for Sovaldi, which Dr. Nwaokocha did not provide, stating '"the new drug [would] make [Plaintiff] sick.'" Id. Plaintiff claims that "Dr. Nwaokocha refused any type of treatment to [Plaintiffs] serious medical need." Id. Specifically, Plaintiff alleges that Dr. Nwaokocha and Nurse Banks know about the risk of harm from Hepatitis C, but have failed to take reasonable steps to abate that risk for Plaintiff. Id On April 14, 2015, Plaintiff filed an Informal Complaint stating that he "had [an] infection [and had] been confused on 4/13/15" and that he discussed Sovaldi with a nurse who "stated that this medication cause [sic] cirrhosis and cancer."[2] Id. at Ex. A. Plaintiff asked that he be prescribed Sovaldi because his "life [was] on the line before [he got] cirrhosis and cancer." On April 25, 2015, Nurse S. Robert responded to the Informal Complaint by stating that Plaintiff had "been screened and [did] not meet the criteria." Id.

         On April 20, 2015, Plaintiff filed an Offender Request stating that he was experiencing "flu like symptoms and swelling just below [his] front right rib cage, and [that it was] getting hard for [him] to sleep because of the swelling ... and breathing [was] becoming hard." Id. at Ex. D. Plaintiff also stated that he was "going through confusion spills [sic], " was "sore around [his] rib cage, " "[his] liver fill [sic] like it [was] swelling and sore [, ] and [his] throat [was] sore." Id. The response on April 21, 2015 states that Plaintiff had "been referred." Id.

         On April 28, 2015, Plaintiff filed an Informal Complaint, asking "that medical provide [him] with the criteria for inmates with Hepatitis C." Id. at Ex. M. On April 29, 2015, Plaintiff filed an Offender Request, asking that he "be seen by a ... specialist... because the doctor here [was not] providing [him] with adequate treatment." Id. at Ex. J. Plaintiff also stated that "[his] liver [was] hurting and swollen and [he was] not feeling well and if [his] situation [was] not treated adequately [it could] lead to liver damage, cirrhosis ... liver cancer and even death." Id. On April 30, 2015, Nurse Banks responded by stating that Plaintiff had been "scheduled [for] an appointment to discuss [his] concerns." Id.

         Also on April 29, 2015, Plaintiff filed an Informal Complaint and a grievance stating that he was being denied a prescription to Sovaldi, and thus was not receiving adequate treatment for his Hepatitis C. Id. at Exs. A, K. In his grievance, Plaintiff asked that (1) he be prescribed Sovaldi and that the doctors "stop prolonging this treatment before [his] situation tum[ed] to cirrhosis and cancer at [sic] the liver, " (2) they fire the nurse who discouraged him from taking Sovaldi, and (3) he be provided the criteria used to evaluate treatment for Hepatitis C. Id. at Ex. A. On May 22, 2015, Warden Walker responded to Plaintiffs grievance by stating that

[a]ccording to information from [Nurse] Banks ... you have been screened and you do not meet the criteria for treatment of Hepatitis C. Also, you do not meet the inclusion criteria based on your APRI. To be included, this number should be equal to or greater than 1.0. Your APRI based on your labe [sic] work from 05-06-15 is 0.423. ... Based on this information, it is determined that your complaint is UNFOUNDED.

Id. Warden Walker also stated that the Hepatitis C treatment criteria are "not accessible to offenders." Id. Plaintiff appealed the decision, stating that his condition was serious and that he needed to see a Hepatitis C specialist so that he could receive adequate treatment. Id. On June 12, 2015, Plaintiffs grievance was again determined to be unfounded. Id. Specifically, Plaintiff was told that

[t]he DOC has resumed treatment of HCV with newer treatment options. The decision to provide you the HCV treatment will be determined by the LCC physician based on your clinical condition. As you have been advised, it is reported that you have received the diagnostic evaluation and decision regarding your need for treatment. This issue is governed by restricted policy.

Id. (emphasis in original).

         On June 19, 2015, Plaintiff filed an Offender Request, asking to see a Hepatitis specialist because he was "hurting and [his] liver [was] swollen, [he was] sore below [his] right rib cage. [He was] also having confusion spills [sic], [he was] also having abdominal cramps ... since ... taking the medication Lactulose." Id. at Ex. I. The request states Plaintiff was referred to sick call. Id. On July 12, 2015, Plaintiff submitted an Informal Complaint, an emergency grievance, and an Offender Request, all of which included requests to see a specialist. Id. at Exs. B, F, G.

         Plaintiff stated that his liver was swollen and that he was in pain and that his condition was "affecting [his] daily activities and [his] sleep." ]d Plaintiff was seen by the doctor on July 16, 2015, and was scheduled for a follow up visit as well. ]d On July 17, 2015, Plaintiff filed an Informal Complaint and an Offender Request, again asking to see a specialist because "the doctor" would not give him a prescription for Sovaldi. Id. at Exs. C, H. ...


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