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Harvey v. Moreno

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

March 17, 2017

TAMAR DEVELL HARVEY, Plaintiff,
v.
DALE MORENO, M.D., et al., Defendants.

          MEMORANDUM OPINION

          Elizabeth K. Dillon United States District Judge

         Plaintiff Tamar Devell Harvey, a Virginia inmate proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Harvey names current and former supervisory staff of the Augusta Correctional Center (“ACC”) and Virginia Department of Corrections (“VDOC”) as defendants for the allegedly deficient medical treatment he received in violation of the Eighth Amendment of the United States Constitution. The parties filed motions for summary judgment, and this matter is ripe for disposition. After reviewing the record, the court grants defendants' motions for summary judgment and denies Harvey's motions for summary judgment.

         I. BACKGROUND

         A. Plaintiff's Allegations and Medical Record Summary

         Harvey's three claims against the defendants involve treatments for stage 1 HIV, hypertension, and stage 3 syphilis after Harvey arrived at ACC on February 18, 2015. Harvey alleges that defendants Dr. Moreno and Health Services Administrator (“HSA”) Landrum failed multiples times to timely prescribe, supply, and/or administer three medications: Atripla, which is used to treat HIV, and chlorthalidone and lisinopril, which are used to treat hypertension. Harvey also faults Dr. Moreno and HSA Landrum for not ordering an ultrasound exam to learn if syphilis caused organ damage after a facility doctor had already ordered an ultrasound exam to check for breast cancer.[1] Harvey further alleges that HSA Landrum told him to stop filing grievances “in an effort to try to cover up her many wrongful actions.”[2] Harvey joined ACC Warden Woodson and the VDOC Health Services Director Herrick as defendants, arguing that they were made aware of the alleged constitutional violations via administrative grievances and appeals and failed to intervene. Harvey seeks $100, 000, 000 as compensation for allegedly suffering severe pain, very severe psychological injuries, mental anguish, and emotional distress.[3]

         The parties filed Harvey's medical records from the Virginia Commonwealth University Medical Center (“MCV”), the Richmond City Jail (“Jail”), Powhatan Reception and Classification Center (“PRCC”), and ACC. The records from MCV, the Jail, and PRCC predate Harvey's transfer to ACC.

         In an Infectious Disease Outpatient Report from MCV in March 2013, it was noted that Harvey had been diagnosed with HIV in 2008 and had been prescribed a daily pill of Atripla, chlorthalidone, and lisinopril. As of March 29, 2013, Harvey's blood pressure measured 118/80, ostensibly while taking chlorthalidone and lisinopril. A different, undated report from MCV notes Harvey started highly active antiretroviral therapy to treat HIV in 2010, that therapy was interrupted between January and April 2011, and Harvey had been “stable” on Atripla since 2011. The undated report also notes that his blood pressure was “high” despite being off chlorthalidone and lisinopril for two months.

         By December 2013, Harvey had been arrested and incarcerated at the Richmond City Jail (“Jail”). The Jail's medical record shows that Jail staff diagnosed chronic hypertension without chest pain, “SOB, ” palpitations, or ankle-edema as of December 27, 2013. The Jail's record also shows that Harvey's HIV viral load was undetectable with a CD4 count of “900?” [sic] in September 2013.[4] The Jail's records do not note prescriptions for chlorthalidone or lisinopril.

         Harvey's blood pressure at PRCC in January 2015 measured 126/86 and 132/89. The PRCC medical records neither contain copies of the Jail's records nor reference chlorthalidone, lisinopril, or hypertension. Harvey was transferred from PRCC and arrived at ACC on February 18, 2015.

         1. HIV

         Harvey allegedly did not receive a daily dose of Atripla at ACC on February 18-23, March 27-29, November 19, and December 17, 2015, and January 14, 2016.[5] Harvey believes medical staff dispensed his Atripla pills to other inmates, causing his monthly supply to be consumed before the end of the month. Nonetheless, Harvey notes that his Atripla prescription was through the “self-meds” program, otherwise referred to as “keep on person.” Per the prison memo Harvey filed in this case, the self-meds program requires inmates to retrieve, store, consume, and refill their prescriptions as needed by accessing the “self-med window” and “self-med box” during specific days and times.

         Harvey filed an emergency grievance in the morning of March 30, 2015, complaining that he had not recently received his doses of Atripla. HSA Landrum responded that same morning, noting, “Dr. MacDonald is working with MCV as they have denied your refill until your telmed.”

         Harvey had an infectious disease outpatient visit with MCV on April 16, 2015. The report from that visit notes, “HIV VL 155 copies - in 2013, undetectable, ” and, “HIV, stage 1. Reengaging in care. High CD4 with detectable VL, but too low for genotype. Pt was off meds for approx 8 days when labs were done.” Harvey's follow-up lab work on May 11, 2015, revealed improvement, noting “HIV, stage 1 . . . on effective regimen. High CD4 undetectable VL, ” and “CD4 Absolute” as “972 /mm3.” Harvey filed an informal complaint on November 23, 2015, complaining that ACC medical staff failed to give him his Atripla on February 20-23, March 27-29, and November 19, 2015. HSA Landrum responded on December 2, 2015, claiming, “Your meds are KOP [“Keep On Person”] and your meds have not been turned back in so that you can be issued your next supply. If you did not have them KOP you should have reported to pill line.”

         Harvey filed an informal complaint on December 28, 2015, complaining that ACC medical staff failed to give him his Atripla on February 20-23, March 27-29, November 19, and December 17, 2015. Harvey also alleged that HSA Landrum had explained to him on December 17, 2015, that the prison's order of Atripla had not yet arrived from Pennsylvania. HSA Landrum responded on December 29, 2015, explaining, “Your meds are self meds. You should have had a dose for 12/17/15 before turning your meds in to be refilled and issued. You received your meds on 12/18/15 and should have taken your dose. No doses should have been missed if meds taken properly.”

         In his regular grievance dated December 13, 2015, Harvey explained that he always turns his medication in on Wednesdays and that he is frequently turned away from the pill line because his Atripla is not kept in stock. Harvey also reiterated that medical staff had not given him his doses of Atripla on February 20-23, March 27-29, and November 19, 2015. Warden Woodson deemed the grievance unfounded on January 11, 2016, explaining, “[I]f your meds are KOP and you have not turned them in you will not be issued your next supply. If you do not KOP then you need to report to pill line.”

         Harvey appealed the regular grievance, alleging that HSA Landrum is a “bold faced liar.” Harvey said he had turned in his medication on November 18, 2015, had gone to the pill line the next morning, and was told his Atripla was not in stock. The Health Services Director deemed the appeal unfounded, explaining, “According to your November 2015 Medication Record, it is documented that you received a refill of your Atripla medication on November 19, 2015.”

         After an unsuccessful informal complaint, Harvey filed a regular grievance on February 1, 2016, explaining how he believed medical staff gave his Atripla pills to other inmates because his pill bottles did not have an intact safety seal. Warden Woodson deemed the grievance unfounded, explaining:

According to Ms. Shipp, RN they do not give medications that are for one offender to another. You should always check before leaving the nurses sight and if you find a safety seal broken you need to return it immediately. There are some bottles of medication that are filled from the pharmacy that don't have safety seals.

         Harvey appealed to the Health Services Director, writing:

Nowhere contained within the [ACC]'s selfs-meds contract does it state for me, or any offender to open their bottles of medications, to check to see if the safety seal is missing, and or has been broken, prior to leaving the pill window, and or the nurse's sight. . . . This is also another “Major []FAILURE by the medical staff here at ACC. . . . Also, the self-meds contract doesn't state to return the medication if the safety seals is broken. It shouldn't have been broken in the 1st place!

         The Health Services Director affirmed Warden Woodson's response, explaining:

There is no evidence provided to conclude that the medical staff has erroneously administered your prescribed HIV medications to other offenders. . . . If you have any further issues, please resubmit a sick call request for further evaluation of your medical needs and treatment plan. You are encouraged to follow the recommendations of the health care staff as well. There is no violation of policy/procedure regarding this issue. No further action is needed from this level.

         After an unsuccessful informal complaint, Harvey filed another regular grievance on February 1, 2016, alleging that medical staff did not consistently give him his daily Atripla pill as recently as January 14, 2016. Harvey complained that he was misled by staff to turn in the old pill bottle a day early on Wednesday to ensure he would get a new pill bottle on Thursday. Warden Woodson deemed the grievance unfounded, explaining:

According to Ms. Shipp, RN they have been making changes in the pharmacy in both staff and procedures to try to prevent this from occurring and they are monitoring for improvement. Please make sure you turn your card in at the correct time. If for some reason you do not receive your cards come to the pill window and speak to the nurse in the pharmacy to ensure you receive your meds.

         Because Harvey was not “100% sure” that he would always get a daily pill, he appealed to the Health Service Director. The Health Services Director affirmed Warden Woodson's response, explaining:

Based on the information provided and upon further investigation, I concur with [Warden Woodson's] response and have determined your grievance UNFOUNDED. It is documented in your January 2016 Medication Record that you were self-medicated with a 28 day supply of Atripla medication on 1/13/16. . . . If you have any further issues, please resubmit a sick call request for further evaluation of your medical needs and treatment plan. You are encouraged to follow the recommendations of the health care staff as well. There is no violation of policy/procedure regarding this issue. No further action is needed from this level.

         Harvey commenced this action in late February 2016. Lab work in March 2016 showed that Harvey's HIV viral load remained undetectable.

         2. Hypertension

         Harvey alleges that he did not receive blood pressure prescriptions to treat his hypertension at ACC from February 20 to December 2, 2015, and from January 28 to February 1, 2016. ECF No. 2, pageid# 21-24; No. 1, pageid# 3. As a result, Harvey allegedly experienced elevated blood pressure of up to ...


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