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Reid v. Clarke

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

May 31, 2018

Elmo Augustus Reid, Plaintiff,
v.
Harold Clarke, ET AL., Defendants.

          MEMORANDUM OPINION

          NORMAN K. MOON SENIOR UNITED STATES DISTRICT JUDGE

         This is an Eighth Amendment case against several officials of or involved with the Virginia Department of Corrections (VDOC). Plaintiff Elmo Reid alleges that the defendants have violated the prohibition on cruel and unusual punishment by failing to treat his infection for Hepatitis C (Hep C). The Court previously denied two defendants' motion to dismiss the Eighth Amendment claim. Now, three other defendants seek dismissal of the claims against them. Those defendants are: Fred Schilling, who previously served as Health Services Director for VDOC; N.H. Scott, VDOC's current Deputy Director of Administration; and Dr. Richard Sterling, chief herpetologist at VCU who oversees its Telemedicine Clinic (the Clinic).

         The motions will be granted. Defendant Schilling is no longer employed by VDOC, so the non-monetary relief sought against him is moot. The claims against Defendant Dr. Sterling fail on the merits because he is not involved in the denial of Plaintiff's treatment: As an outside physician, Dr. Sterling can only treat who VDOC refers to him, and VDOC has not referred Plaintiff. Finally, Defendant Scott presents the closest question. Based on the pleadings and the arguments advanced in Plaintiff's brief, the Court concludes that the claims against him must be dismissed. The complaint does not sufficiently alleged Scott had actual knowledge of Plaintiff's condition such that Scott could have been deliberately indifferent.

         STANDARD OF REVIEW

         A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the legal sufficiency of a complaint to determine whether the plaintiff has properly stated a claim. The Court must take all facts and reasonable inferences in favor of the plaintiff, disregard any legal conclusion, and not credit any formulaic recitation of the elements. See Iqbal v. Ashcroft, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 557 (2007)).

         FACTS ALLEGED

         The gist of the complaint is that VDOC has refused to provide Plaintiff adequate medical treatment for his Hep C infection. Specifically, Plaintiff contends that there are available, effective direct-acting antiviral drugs (DAADs) that are the medical standard of care for Hep C. Instead of being referred by VDOC to VCU's Telemedicine Clinic for treatment by Dr. Sterling and access to DAADs, Plaintiff has not been referred to the Clinic and has not received any DAADs.

         Plaintiff was diagnosed with stage-4 Hep C, the most advanced stage, in 2013. He has had the disease in some form since around 1988. His initial requests for treatment in 2014 were met with statements that treatment guidelines were in development. Some level of treatment was resumed by VDOC about June 2015. Around this time, DAADs became approved by the FDA, and the American Association for the Study of Liver Disease (AASLD) states that DAADs cure Hep C ninety-nine percent of the time.

         There have been four interim rules imposed by VDOC regarding Hep C treatment-one each in February 2015, June 2015, October 2015, and June 2016. For completeness, the Court recounts the allegations relevant to each of these editions.[1]

         The February 2015 Guidelines were developed by Defendant Dr. Mark Amonette (VDOC's chief physician) and approved by Schilling and Scott. Dr. Sterling “later commented on” them. These Guidelines prioritized offenders with more advanced Hep C based on testing, and indicated VDOC was planning to coordinate treatment through VCU's Clinic using certain federal guidelines. The February 2015 Guidelines had “exclusion criteria, ” among them (1) prisoners with less than a year on their sentence at the time treatment would start or (2) whose platelet test scores (“APRI”) did not exceed 0.7. Dr. Amonetete developed and Schilling and Scott approved the exclusion factors. “Only [Dr.] Amonette [could] make the decision to refer an inmate to” the Clinic.

         The June 2015 Guidelines were developed by Dr. Amonette and Dr. Sterling, and approved by Schilling and Scott. The treatment exclusion criteria were reduced to prisoners with nine months left on their sentences, and the test score criteria were adjusted to create a sliding scale based on two different tests.

         The October 2015 Guidelines also were developed by Dr. Amonette and Dr. Sterling, and approved by Schilling and Scott. Dr. Amonette and Dr. Sterling removed any reference to the federal guidelines for treatment. The October 2015 version provided for requests for treatment to be emailed directly to Dr. Amonette. The same treatment exclusion criteria applied as in the June 2015 version.

         The June 2016 Guidelines were drafted and developed by Dr. Amonette and Dr. Sterling as well. This time, however, Scott and another VDOC official (not Schilling) approved them because, by April 2016, Schilling was no longer the VDOC's Health Services Director. Once again, Dr. Amonette was designated as the “sole individual who can refer inmates” to the Clinic, and the qualification and exclusion criteria remained the same.

         Plaintiff alleges that each version of the Guidelines failed to follow the AALDS recommendations that all patients with chronic Hep C receive treatment with DAADs. Schilling, Scott, and Sterling “drafted and approved” the Guidelines “which are contrary to prevailing medical authority.” Plaintiff further alleges that Dr. Amonette has refused to refer him to VCU's telemedicine clinic “under the Hep[] C treatment guidelines developed and implemented by . . ...


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