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Riggleman v. Clarke

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

April 25, 2019

Terry A. Riggleman, Plaintiff,
Harold Clarke, ET AL., Defendants.



         The matter before the Court is Defendants Harold Clarke and Mark Amonette's Motion for Summary Judgment in which Defendants move to dismiss all claims remaining against them pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. 118). The matter has been fully briefed and the Court held a hearing. The matter is ripe for decision. For the reasons set out below, the Court will grant in part and deny in part the Defendants' motion for summary judgment. The Court finds that Defendants are entitled to qualified immunity and will dismiss Plaintiff's claims for monetary damages. Plaintiff's claims for declaratory and injunctive relief, however, will proceed before this Court.


         Plaintiff filed this action on June 26, 2017, against Defendants Harold Clarke (“Clarke”) and Dr. Mark Amonette (“Amonette”) in their official and individual capacities. In Count I of the Complaint, Plaintiff asserted a violation of the United States Constitution Eighth Amendment right to medical care with regard to his and other inmates' chronic Hepatitis C, pursuant to 42 U.S.C. § 1983. Count I sought compensatory relief for Plaintiff only against Defendants in their individual capacities while also seeking equitable relief for himself and the proposed class. (Dkt. 1 ¶ 80). In Count II, Plaintiff also sought damages for himself only while seeking equitable relief for himself and the proposed class under the Virginia constitution. (Id. ¶ 82). In Count III Plaintiff sought declaratory/injunctive relief for himself and for the proposed class. (Id. ¶ 84). Finally, in Count IV, Plaintiff sought attorney fees “under all applicable laws.” (Id. at 27). The Court subsequently dismissed Count II (the State law claim) with prejudice. (Dkt. 57).

         Plaintiff alleges that in 2013, the United States Food and Drug Administration approved direct-acting antiviral (“DAA”) drugs for the treatment of Hepatitis C with additional DAA drugs subsequently approved. These drugs are alleged to have very high cure rates with low side effects. (Dkt. 1 ¶¶ 17-24). Plaintiff alleges that the Defendants' denial of DAA drug treatment to himself and similarly situated inmates for their respective Hepatitis C infections violates the constitutional right to be free from cruel and unusual punishment under the Eighth Amendment to the United States Constitution. (Dkt. 1 ¶ 13).

         In addition to compensatory damages for himself, Plaintiff seeks a declaratory judgment that the Defendants' actions and omissions regarding inmates with chronic Hepatitis C violate the Eighth Amendment of the United States Constitution. Plaintiff also seeks injunctive relief requiring: (1) the Defendants to formulate and implement a Hepatitis C treatment policy that meets the community standards of care for patients with Hepatitis C; (2) that members of the proposed class be treated with medically necessary and appropriate DAA drugs based on individual medical testing and medical evaluation regarding each individual's Hepatitis C status; and (3) that members of the proposed class receive ongoing monitoring and medical care per the standard of care for their individual level of liver fibrosis and cirrhosis. (Dkt. 1 at 27-28).

         Defendants move for summary judgment, seeking an order dismissing Plaintiff's claims, arguing that: (1) they are entitled to judgment as a matter of law with regard to Plaintiff's constitutional claims; and (2) they are entitled to qualified immunity on the Plaintiff's claims for monetary damages.


         Plaintiff disputes many of the “undisputed facts” asserted by Defendants. (See Dkt. 101, 129 at 4-23; dkt. 132 at 11-27).[1] Undisputed facts, with qualifications in some cases, are as follows:

The Plaintiff has been in the custody of the Virginia Department of Corrections (“VDOC”) since 2006 and was diagnosed with Hepatitis C in 2005. Defendant Harold Clarke is the Director of the VDOC and has held that position since 2010. Plaintiff has had no contact or correspondence with Clarke regarding Plaintiff's treatment for Hepatitis C. Defendant Mark Amonette is a medical doctor who has worked in the VDOC since 2010 and has been the Chief Physician since March 2012. In that position, Amonette is the clinical supervisor of the physicians employed by the VDOC.

         Pursuant to the VDOC guidelines for treatment of chronic Hepatitis C in effect, Diane Landauer, a VDOC contract medical doctor, saw Plaintiff for chronic care on an ongoing basis and did routine labs for monitoring of his Hepatitis C. On November 3, 2016, Dr. Landauer submitted a referral for Plaintiff to Amonette for evaluation of treatment for Hepatitis C. Amonette responded to the referral request and indicated the Plaintiff would not be approved for referral to the Virginia Commonwealth University (“VCU”) Hepatitis C Telemedicine Clinic under the VDOC's then-existing criteria. Amonette directed Dr. Landauer to continue to follow the Plaintiff in the chronic care setting to determine if Plaintiff's indicators or any of his situations changed.

         VDOC has a long-term relationship with VCU, which has specialists in gastroenterology and hepatology, to treat Hepatitis C inmates referred by Amonette to VCU. In February 2015, VDOC decided to enter into a Memorandum of Agreement with VCU for the treatment of Hepatitis C inmates. The Agreement provided for the management and treatment of inmates in the VDOC with chronic Hepatitis C. The VCU Hepatitis C Telemedicine Clinic started in May or June 2015, initially with one nurse practitioner. Amonette approved inmates for referral to VCU's Hepatitis C Telemedicine Clinic for evaluation. Once an inmate is seen for evaluation, and no medical reason is determined to not treat the inmate, the inmate is prescribed treatment and a prescription is faxed to a pharmacy to be filled. Once the providers at VCU determine the treatment appropriate for a particular inmate referred to VCU, VDOC does not question the treatment plan.

         Generally, as the level of fibrosis of the liver increases from Stage F0 (no fibrosis) to Stage F4 (cirrhosis), it does correlate with the underlying severity of liver disease. For Stages intermediary between Stages F0 and F4, Stage F1 is considered early scarring, Stage F2 is considered a scarring of a particular part of the liver, and Stage 3 is called bridging fibrosis or advanced scarring. From the beginning of the VCU Hepatitis C Telemedicine Clinic in June 2015 to December 2018, VCU treated approximately 500 inmates from VDOC who had chronic Hepatitis C.

         Throughout 2015 to 2018, Plaintiff was seen by Dr. Landauer in chronic care for his Hepatitis C. Plaintiff was referred for a FibroScan which showed a level of F0/F1. The parties agree F0 indicates no fibrosis but disagree as to whether F0/F1 shows a non-fibrotic liver (Defendants) or mild hepatic fibrosis (Plaintiff). Under the then-existing VDOC guidelines, Plaintiff was not referred to VCU.

         The Memorandum of Agreement between VDOC and VCU was modified in September 2018 and since January 2019 the Hepatitis C Telemedicine Clinic has been expanded pursuant to the modification. The current VDOC guidelines for the treatment of chronic Hepatitis C prioritize treatment based on disease severity, which indicates who is referred first to VCU and who are not. The current VDOC guidelines divide inmates into three priority levels. Currently, VDOC is treating Priority Levels 1 and 2, which includes those inmates at Stages F2, F3, and F4, and those inmates with certain medical conditions that can cause the liver disease to ...

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