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Gordon v. Schilling

United States District Court, W.D. Virginia, Roanoke Division

September 13, 2016

CARL D. GORDON, Plaintiff,
v.
DIRECTOR FRED SCHILLING, et al., Defendants.

          MEMORANDUM OPINION

          Norman K. Moon United States District Judge

         Carl D. Gordon, a Virginia inmate proceeding pro se, filed a complaint pursuant to 42 U.S.C. § 1983 naming two defendants: Fred Schilling, the Health Services Director for the Virginia Department of Corrections (“VDOC”), and Dr. Mark Amonette, the Chief Physician for the VDOC. Gordon argues that the defendants (1) drafted and implemented policies that violated the Fourteenth Amendment by depriving him of due process and equal protection; and (2) took actions constituting deliberate indifference to his medical needs regarding Hepatitis C (“HCV”) in violation of the Eighth Amendment. Gordon seeks damages, declaratory relief, and equitable relief, and the parties filed motions for summary judgment supported by affidavits. I conclude that defendants are entitled to summary judgment for all claims except the claim that appears to have accrued in 2011, for which I will order additional briefing.

         I.

         A.

         Both Schilling and Dr. Amonette ensure prison staff's compliance with VDOC operating procedures about medical treatment. Schilling is not a medical doctor and, thus, does not make decisions about an inmate's diagnosis or treatment, and he does not intervene in medical decisions. Although a medical doctor, Dr. Amonette similarly does not make decisions about an inmate's diagnosis or treatment and does not intervene in medical decisions. Both Schilling and Dr. Amonette rely on the professional judgment of doctors and nurses at each VDOC facility about inmates' medical care.[1] Dr. Amonette has been the VDOC's Medical Director and Chief VDOC Physician since March 2013.

         Gordon has been incarcerated within the VDOC since 1980 and expects to be paroled from the VDOC on October 10, 2028. Gordon notes, however, that he is eligible for discretionary parole release every year. During the times pertinent to this action, Gordon had been housed in Red Onion State Prison (“ROSP”) until he was transferred to Wallens Ridge State Prison (“WRSP”) on May 4, 2012.

         It is not disputed that Gordon learned he was HCV positive in March 2008 while at ROSP. While the parties have not discussed all of the treatment options available, Gordon proffers that:

The most essential evaluation to be made after a HCV diagnosis is to determine whether there has been a histological change in the liver such as a fibrosis or cirrhosis, and the most accurate way to diagnose fibrosis or cirrhosis is through a liver biopsy. Which I have never had done because I am excluded from treatment due to my annual parole eligibility date.

(Compl. ¶ 46.) Under the former HCV treatment guidelines effective between 2004 and 2014, inmates were ineligible for treatment if, after a liver biopsy, they were parole eligible or had less than twenty-four months remaining before the inmate's earliest release date. Inmates who were ineligible for biopsies would be referred to “Conservative Treatment.”[2] Gordon finds the VDOC position unreasonable because inmates convicted before the mid-1990s who are released through mandatory parole may not receive treatment in the VDOC whereas inmates serving life sentences with no possibility of parole do receive treatment from the VDOC.

         Gordon explains that fibrosis can be reversed with interferon therapy, which the VDOC uses to eradicate HCV, and that the therapy can be concluded within any one-year period between his discretionary parole reviews. Gordon believes that the VDOC's apparent refusal to biopsy his liver is based only upon VDOC's desire to save money, which “may be causing” him to develop cirrhosis. An “HCV Fibrosure” blood analysis done in August 2015 revealed a “high” fibrosis score of 0.65 and Fibrosis stage of “F3-Bridging fibrosis with many septa.” (ECF No. 15-2 at 20.)

         Pursuant to the VDOC's HCV treatment policy in effect between 2004 and 2014, the doctor at ROSP added Gordon to the HCV chronic care list in March 2008. By being added to the list, Gordon expected to receive free, semi-annual liver function blood tests and exams.

         A physician met with Gordon for chronic care visits on December 11, 2008; June 4, 2009; June 8 and December 23, 2010; and September 20, 2011. In addition to those chronic care visits, physicians reviewed Gordon's file and ordered lab work on June 2, 2011; September 21, 2012; September 16, 2013; and September 17, 2014.[3] Gordon is dissatisfied with these consultations and treatments because “no doctor has said anything to [him] about even the possibility of starting HCV treatment[] and kept telling [him] the [liver function tests] and doctor visits were to ‘monitor' [him].” In 2011, VDOC policy changed to allow one annual liver function blood test and chronic care doctor visit instead of two semi-annually. Gordon filed a grievance about these reductions, and after it was denied, he appealed to Schilling. Gordon complained to Schilling that annual routine exams and tests were less than what was recommended by the Centers for Disease Control and Dr. Sanjiv Chopra, a hepatologist, and would not timely alert medical staff to a worsening viral load in his blood. Schilling upheld the grievance's denial on June 17, 2011, stating:

Based on the information provided and upon further investigation, I concur with the Level I response and have determined your grievance UNFOUNDED. Be advised that the ROSP providers have the autonomy to monitor your chronic medical condition as your clinical needs change. It is important that you follow the recommendations of the medical staff regarding your treatment plan. Furthermore, the ROSP medical staff is comprised of licensed health care professionals who are qualified to provide medical services to you.
If you continue to experience health issues, please resubmit a sick call request for further evaluation of your medial needs and treatment plan.

         Gordon argues that Schilling's response was “solely to purposefully and maliciously mislead [him] into believing [he] would receive treatment for [his] HCV infection . . . . when in fact Mr. Schilling knew there was no plan to treat [his] HCV infection because [he] [is] eligible for parole once a year, though [his] mandatory release date is not until October 10, 2028.” (Compl. ¶ 12.) Gordon explained to Schilling in April 2013 that:

Medical refuses to have the doctor see me for the chronic care checkup I have not received since 2011, so that I cannot receive the blood pressure reading I'm entitled to receive free of charge during my chronic care doctor visit. Medical knows I should have received a chronic care checkup by the ...

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