United States District Court, W.D. Virginia, Roanoke Division
K. MOON SENIOR UNITED STATES DISTRICT JUDGE.
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
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
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)).
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.
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.
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.
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.
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
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.
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.
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 . . ...