United States District Court, W.D. Virginia, Roanoke Division
ANTWON G. WHITTEN, Plaintiff,
ATIF ATYIA, ET AL., Defendants.
OPINION AND ORDER
P. JONES UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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. 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.” 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]
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
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.
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.
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,
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.
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.
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.
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.
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.
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.
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
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.
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.
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.
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.
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
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