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Reid v. Clarke

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

July 30, 2018

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

          MEMORANDUM OPINION

          NORMAN K. MOON SENIOR UNITED STATES DISTRICT JUDGE

         Elmo 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.

         The 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.

         At 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.

         As 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).

         Around 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.

         In 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 date.[1]

         At some 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).

         Plaintiff 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).

         In 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)).

         As this 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).

         The May 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).

         As for 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).

         The 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 ...


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