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Whitten v. Atyia

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

March 29, 2019

ATIF ATYIA, ET AL., Defendants.



         Antwon G. Whitten, Pro Se Plaintiff; Margaret Hoehl O'Shea, Assistant Attorney General, Office of the Attorney General of Virginia, Richmond, Virginia, for Defendants David Anderson, Leslie Fleming, J. B. Messer, and B. J. Ravizee; Jimmie C. Miller and James N. L. Humphreys, Hunter, Smith & Davis, LLP, Kingsport, Tennessee, for Defendant Atif Atyia, M.D.; Rebecca J. Ketchie and Andrew T. Wampler, Wilson Worley P.C., Kingsport, Tennessee, for Defendants Rebecca D. Kelly and Billie Cowden; Susan A. Waddell, Guynn & Waddell, P.C., Salem, Virginia, for Defendant Dr. Rose Dulaney.

         The plaintiff, Antwon G. Whitten, proceeding pro se, has sued several Virginia Department of Corrections (“VDOC”) officials under 42 U.S.C. § 1983 for allegedly conspiring to infect him with Hepatitis C, in violation of his constitutional rights. After review of the record, I conclude that the defendants' motions for summary judgment must be granted.

         I. Background.

         A. Whitten's Allegations.[1]

         On the morning of October 31, 2015, when Whitten was incarcerated at Wallens Ridge State Prison, he and another inmate, C. Brown, had a fight inside a cell. While the inmates were fighting, Brown bit two of Whitten's fingers. A K-9 officer and his dog were involved in breaking up the fight, and the dog bit Whitten in several places.

         Around noon, prison officials transported Whitten and Brown to the emergency room at Lonesome Pine Hospital in nearby Big Stone Gap, Virginia. Wallens Ridge Warden Fleming and Major Anderson were in the room while Atif Atyia, M.D., was treating Whitten. Nurse Rebecca D. Kelly was also present.[2] Whitten was the only African American male in the room.

[W]hile [he was] on the emergency room table receiving sutures from [Dr.] Atyia, the conversation about how the Prison's dog mauled [him, Whitten] stated, “That dog needs to be euthanized.” At that moment Warden Fleming, Major Anderson and [Dr.] Atyia all gave each other a look that said, “what [Whitten] said was somehow wrong or disrespectful.”[3] Soon after as the doctor was doing the sutures, he claimed to have pricked his finger, he went to get a new glove and was followed out the room by both Defendants Fleming and Anderson. Dr. Atyia returned and asked [Whitten] if [he] would take a Hepatitis test? [Whitten] stated, “Yes.”[4]

Compl. 3-4, ECF No. 1. Lab Technician Billie Cowden then “entered the room and inserted a needle in [Whitten's] arm to draw blood.” Am. Compl. 2, ECF No. 10-2.

         In the days after Whitten returned to Wallens Ridge, a nurse came to his cell on three occasions “and requested blood work but never told [him] the reason for it.” Id. Dr. Dulaney, Whitten's treating physician, had access to his medical records and allegedly, “was totally aware that [he] did not have Hepatitis C or any other disease other than heart disease” before October 31, 2015. Id. at 7.

         “[Whitten] was transferred to Red Onion State Prison in February 2016 and days later on February 11th, 2016 Dr. Smith of [“Red Onion”] advised [Whitten] that [he] had (Hepatitis C). Compl. 4, ECF No. 1. Whitten filed an informal complaint and two regular grievances about Dr. Dulaney's failure to tell him about the blood tests or about his testing positive for Hepatitis C. Whitten alleges that the grievance coordinators at Red Onion and Wallens Ridge, defendants J. B. Messer and B. J. Ravizee, respectively, conspired to interfere with his ability to complete all levels of the grievance procedure.

         B. The Defendants' Evidence.

         After the fight between Whitten and Brown on October 31, 2015, a Saturday morning, they were transported by ambulance to Lonesome Pine Hospital's emergency department, escorted by a sergeant and two correctional officers. Warden Fleming and Major Anderson, the duty officer for the day at Wallens Ridge, both drove separately to the hospital to speak to the inmates about the fight. These officials deny making any decisions about Whitten's medical care, conspiring with anyone to harm him, or discriminating against him for any reason, including his race. They also deny having had any reason to believe that anyone would, or did, intentionally infect Whitten with the hepatitis C virus on October 31, 2015.

         Nurse Kelly, who had 23 years of medical experience, was working at the hospital on October 31, 2015. Her assignment was to assess patients in the emergency department and implement the doctors' orders. When Whitten arrived to be treated for injuries he had sustained during the prison altercation, Dr. Atyia was his attending physician, and Kelly was one of his nurses. Prison personnel were present with Whitten, but Kelly is not sure who they were.

         Dr. Atyia, a native of Egypt, is a licensed physician with years of experience in the United States as an emergency and primary care physician. In October of 2015, Dr. Atyia was an independent contractor with Northeast Tennessee Emergency Physicians (“NTEP”), a professional corporation that had a staffing contract with the hospital to provide emergency medicine physicians. Under that contract, Dr. Atyia was working in the hospital's emergency department when prison officials brought Whitten there for treatment just after noon on October 31, 2015.

         During the doctor's examination of Whitten, he noted his understanding that Whitten had been stabbed in his scalp, back, and left axilla during a fight with another inmate and that a guard dog deployed to stop the fight had bitten and scratched Whitten on his scalp, back, and left hand. Dr. Atyia

administered a local anesthetic, Lidocaine. Plaintiff Whitten was prepped and draped in the usual sterile fashion and imaging was obtained to evaluate for foreign bodies. Plaintiff's wound areas were sterilized. [The doctor] treated lacerations of the left axilla, left hand, and left upper back, which required 28 sutures for repair. There were also two stabbing lacerations in the left axilla which required significant repair with internal sutures. There were multiple small lacerations on the left hand and some superficial lacerations and scratch marks on the upper left back, which required 12-15 internal sutures and 15 external sutures. The repaired areas were dressed with antibiotic ointment and adhesive bandages. Plaintiff Whitten was discharged with a prescription of Augmentin, an antibiotic.

Atyia Decl. ¶ 5, ECF No. 79.

         While suturing Whitten's wounds, Dr. Atyia pricked his sterile glove and hand with the suture needle. Immediately, he stopped the treatment to clean and sterilize his hands and obtain a new pair of gloves. Dr. Atyia does not remember whether or not he left the treatment room to do so. He states that two prison officers were with Whitten during the treatment. Dr. Atyia did not know either of these officers and does not remember that they identified themselves. The doctor also had no relationship, contractual or otherwise, with VDOC. To the best of his knowledge, he also did not know Whitten and had not previously treated him.

         Dr. Atyia does not recall Whitten making any comment about the prison dog. The doctor had little or no discussion of any kind with the prison officers. He specifically denies having any conversation with them about a conspiracy to harm Whitten or about Whitten's race, which was not mentioned.

         Whitten gave his permission to have a blood sample taken to test for “HIV-1 RNA and Hepatitis B.” Id. ¶ 8. Dr. Atyia ordered these tests in part out of concern for his own health. The doctor potentially had been exposed because Whitten had arrived covered with blood and because the doctor had pricked his finger through his glove while suturing him.

         Billie Cowden, a phlebotomist for the hospital, received the order by Dr. Atyia to take Whitten's blood for testing. Cowden remembers that prison personnel were with Whitten while she was taking his blood, but she did not know them. During the few moments she was in the treatment area, she followed her normal routine. She received Whitten's verbal consent to have his blood drawn, she took a new needle out of a sealed, sterile package, and she used that needle to draw Whitten's blood into a new, sterile vial. Cowden states that there was no chance for the needle to become contaminated before she used it to draw Whitten's blood. She also states that she did not perform any other procedure on him; did not use a dirty needle on him, or adulterate the needle or vial in any way; and did not take any action intended to infect him with Hepatitis C.

         Dr. Atyia did not have Hepatitis C on October 31, 2015, nor does he have it now. He denies that he or anyone else at the hospital used a needle on Whitten that was infected with Hepatitis C, and states that the emergency department “do[es] not have dirty needles contaminated with Hepatitis laying around.” Id.

         The results of Whitten's blood test were not available at the time prison officials transported him from the hospital back to the prison. The hospital medical records reflect that Nurse Kelly tried to call the Wallens Ridge medical staff to speak with a nurse there about discharge instructions for Whitten's care and left a message. Specifically, Whitten was advised to follow-up with his primary care doctor as soon as possible and to return to the emergency department if conditions worsened or did not improve. Dr. Atyia provided no further treatment to Whitten after October 31, 2015.

         Dr. Rose Dulaney was one of the prison physicians at Wallens Ridge in the fall of 2015. Medical records reflect that she saw Whitten on September 28, 2015, “for follow up of a prior cardiac workup.” Mem. Supp. Mot. Summ. J., Dulaney Decl. ¶ 3, ECF No. 100-1. That day, the doctor checked his liver enzymes level on the report and saw that they were elevated. Dr. Dulaney states, “This is a nonspecific laboratory result, which can be caused by many things, not all of which are serious.” Id. After Whitten refused “an MD call” on October 5, 2015, “[b]ecause of his recently reported elevated liver enzymes, ” Dr. Dulaney “ordered a hepatitis C panel.” Id. ¶ 4. The test results were negative for Hepatitis C.

         After the fight between Whitten and Brown on October 31, 2015, Dr. Dulaney saw Whitten on November 2, 9, and 30, and on December 9, 2015, for treatment of dog bites to his axilla, back, and arm. She also scheduled a chronic illness visit with Whitten for January 6, 2016, to check on his chronic conditions of hypertension and hyperlipidemia, but Whitten refused that visit. Nevertheless, Dr. Dulaney ordered that Whitten's blood be drawn for repeat laboratory testing. These test results, received on or about January 13, 2016, showed elevated liver enzymes. Dr. Dulaney ordered that the enzyme levels be checked again in one month. That recheck of Whitten's liver enzyme levels was conducted on January 28, 2016.

         Dr. Dulaney reviewed Whitten's medical chart on February 3, 2016, and saw that the laboratory results once again showed that his liver enzymes were elevated. As a result, Dr. Dulaney ordered a hepatitis panel. A nurse drew blood for that test later that night. Dr. Dulaney did not receive the results of that hepatitis panel because Whitten was transferred from Wallens Ridge to Red Onion on February 6, 2016. Medical records indicate that the results of the February 2016 hepatitis panel were reported to prison doctor ...

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