United States District Court, W.D. Virginia, Roanoke Division
CARL D. GORDON, Plaintiff,
DIRECTOR FRED SCHILLING, et al., Defendants.
K. Moon United States District Judge
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.
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. Dr. Amonette has been the VDOC's
Medical Director and Chief VDOC Physician since March 2013.
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.
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.” 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.
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.)
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.
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. 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.
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 ...