United States District Court, W.D. Virginia, Roanoke Division
K. MOON SENIOR UNITED STATES DISTRICT JUDGE
Reid has chronic Hepatitis C. He is also imprisoned by the
Virginia Department of Corrections (VDOC). He desires
treatment for his condition. VDOC previously approved
treatment, but the then-standard drug regimen was
unsuccessful. A new treatment, with a 90% efficacy rate,
became available. So Reid asked for it. VDOC officials denied
his request, preventing him from being referred to VDOC's
outside hepatologist. They relied upon VDOC's internal
Hepatitis C policy. Under that policy, if (like Reid) an
inmate with chronic Hepatitis C never exceeds certain testing
benchmarks, he or she will never be referred to the
hepatolgist for treatment with the new drugs. Reid thus filed
this lawsuit asserting that VDOC officials are acting with
deliberate indifference to his serious medical needs, in
violation of the Eighth Amendment's prohibition on cruel
and unusual punishment. He seeks only injunctive relief: He
wants to be referred to VDOC's outside hepatologist who
approves and provides the medicine.
defendants-VDOC's Director of Health Services Stephen
Herring, VDOC's Chief Physician Mark Amonette, Bernard
Booker (the warden at Reid's prison), and Pamela Shipp
(the health policy liaison at Reid's prison)-seek summary
judgment. Because the evidence permits a reasonable
factfinder to conclude that VDOC's policy, and
Defendants' application of it to Reid, violates the
Eighth Amendment, the motion will be denied.
summary judgment, the Court must take the facts and
inferences in the light most favorable to Reid (Plaintiff),
the non-moving party. Grutzmacher v. Howard Cty.,
851 F.3d 332, 341 (4th Cir. 2017). There is an objective and
subjective component to an Eighth Amendment deliberative
indifference claim. Objectively, was the medical condition a
“serious medical need”? Jackson v.
Lightsey, 775 F.3d 170, 178 (4th Cir. 2014). The parties
do not dispute that Hepatitis C is a serious medical
condition. So subjectively, then, was a defendant
“deliberately indifferent” to the plaintiff's
condition? Id. The background of this case is
familiar to the parties, and the Court has already authored
two opinions on dispositive motions. Moreover, save for
issues like the precise severity of Plaintiff's disease
and whether cost factored into VDOC's denial of
treatment, the underlying facts are mostly undisputed. Thus,
the Court provides a summary of the facts before quickly
turning to each Defendant.
explained above, Plaintiff has chronic Hepatitis C (Hep C).
For present purposes, the evidence shows he suffers from
liver cirrhosis dating back to at least August 2013. (Dkt.
91-2). He is incarcerated at Buckingham Correctional Center
(BCC), where the on-site physician in 2013 recommended-and
Chief Physician Amonette approved-that he receive a drug
regimen to treat his Hep C. (Dkts. 91-7, 91-8). Plaintiff
received treatment from November 2013 to November 2014, but
it was unsuccessful. (Dkt. 91-4 at 4).
that time, medical advances resulted in the availability of
“direct acting antiviral” drugs (DAADs), a new
Hep C treatment with far fewer side effects and a much higher
efficacy rate than previous drugs. In 2014, Amonette
suspended VDOC's treatment of Hep C prisoners with the
old drugs while it awaited the availability of DAADs and
developed new treatment policies.
2015, Amonette instituted a series of interim guidelines
regarding Hep C treatment. These materials were promulgated
by Amonette to each prison's “health
authority” (essentially, the health policy liaison at
each institution responsible for ensuring compliance), and
from there to staff, including physicians. (Dkt. 91-14 at
61-62). Amonette and VDOC concomitantly arranged a
relationship with Virginia Commonwealth University medical
personnel, whereby VCU specialists would treat Hep C inmates
who VDOC referred to them. Although each iteration varied
somewhat, the interim guidelines contained medical testing
benchmarks used to determine whether an inmate (1) was
referred to VCU for Hep C treatment, (2) subjected to
additional testing, or (3) simply monitored once or twice a
year without referral to VCU for treatment. The interim
guidelines also included “exclusion” criteria
(i.e., circumstances that would or could bar a
prisoner from receiving treatment), such as drug or alcohol
use, unauthorized tattoos, or a pending release
point, Plaintiff became aware of DAADs and asked to receive
them. On June 9, 2015, the BCC health authority, Pamela
Shipp, informed Plaintiff that one his test scores did not
meet the treatment criteria under VDOC's policy. (Dkt.
91-35). Plaintiff filed an informal complaint, and Shipp
responded on June 23, 2015, writing “you are not
approved [for] nor need the new Hep C treatment as
you do not meet the requirements.” (Dkt. 91-45
(emphasis added)). Plaintiff then appealed to Amonette, who
responded by letter on July 6, 2015. Amonette wrote that
Plaintiff fell into a “middle” category “in
which it is unclear whether you require treatment for
Hepatitis C at this time” and explained that further
testing was required. (Dkt. 91-48).
next received the additional testing, a fibroscan, which
revealed mild liver disease. (Dkt. 91-11 at 236-37).
Plaintiff was then told he was not eligible for treatment.
(Dkt. 91-1 at 30-32, 39). The prison physician told Plaintiff
that while he would approve treatment, the decision was
Shipp's to make. (Id. at 54-55).
2016, Plaintiff filed a grievance seeking treatment again,
but Shipp denied it on the grounds that he had a parole
hearing scheduled within the next six months. (Dkt. 91-49).
Defendant Booker, the warden at BCC, reviewed the grievance
and deemed it unfounded based on the then-existing
guidelines. (Dkt. 91-51). Plaintiff appealed, stating
“to have a policy that estimate[s] whether I receive
adequate medical treatment for non-medical reasons put[s] my
future health at risk.” (Id.). Director
Herrick considered the appeal. (Dkt. 91-52). In October 2016,
he overturned the decision, recognizing that there was no
treatment exception in the current interim guidelines for a
potential release (i.e., a parole hearing),
only actual release. According to Defendants, as of 2017
Plaintiff “was ineligible for treatment”
due to his test scores. (Dkt. 82 at 11 (emphasis added)).
is a suit for injunctive relief from an alleged ongoing
constitutional violation, current medical standards and
VDOC's present guidelines are critical. The gold standard
for liver disease and Hep C treatment comes from the American
Association for the Study of Liver Diseases (AASLD). The
AASLD issues its own guidelines that are updated periodically
online and consulted throughout the medical community. The
AASLD recommends treatment with DAADs for nearly all patients
with Hep C-those with short life expectancies are considered
on a case-by-case basis. (Dkt. 91-4 at 3). The treatment is
effective in 90% of cases. (Id. at 2).
24, 2018 version of the AASLD Guidelines provides: (1) for
jails, “[c]hronically infected individuals whose jail
sentence is sufficiently long to complete a recommended
course of antiviral therapy should receive treatment for
chronic HCV infection according to AASLD/IDSA guidance while
incarcerated, ” and (2) for prisons,
“[c]hronically infected individuals should receive
antiviral therapy according to AASLD/IDSA guidance while
incarcerated.” The AASLD Guidelines also say that
“treating chronic HCV in incarcerated persons is
cost-effective.” Dr. Amonette testified that he found
the AASLD qualified to make treatment recommendations about
Hep C. (Dkt. 91-3 at 56-57).
VDOC, its most recent guidelines were issued in May 2018.
“Requests for approval to refer for treatment [to
VCU's clinic] should be sent” to the Chief
Physician, Amonette. “Offenders with more advanced
liver disease will be approved for treatment” based on
their APRI and Fib-4 scores. (Those tests measure liver
scarring, fibrosis, and platelets).
testing benchmarks for treatment are as follows. If an
inmate's APRI score is over 1.5 and Fib-4 is over 3.25,
then he receives a priority referral for treatment
evaluation. Inmates with lower scores fall in an
“indeterminate group” where additional tests,
such as a FibroScan, are run to determine the level of
fibrosis in the liver and whether to proceed with treatment.
Finally, for inmates with APRI under 0.5 and a Fib-4 under
1.45, treatment is deferred and the inmate receives
monitoring. An offender must also have at ...