United States District Court, E.D. Virginia, Alexandria Division
Bruce Lee United States District Judge.
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.
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 and Nurse Manuel must be
dismissed from this case for failure to state a claim.
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." Id. at Ex. A. Plaintiff asked
that he be prescribed Sovaldi because his "life [was] on
the line before [he got] cirrhosis and cancer."
l± On April 25, 2015, Nurse S. Robert
responded to the Informal Complaint by stating that Plaintiff
had "been screened and [did] not meet the
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.
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]
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
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
Id. (emphasis in original).
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.
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.