United States District Court, W.D. Virginia, Harrisonburg Division
Terry A. Riggleman, Plaintiff,
Harold Clarke, ET AL., Defendants.
K. MOON, SENIOR UNITED STATES DISTRICT JUDGE.
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.
PROCEDURAL HISTORY AND BACKGROUND
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).
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).
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).
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.
disputes many of the “undisputed facts” asserted
by Defendants. (See Dkt. 101, 129 at 4-23; dkt. 132
at 11-27). 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.
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
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.
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.
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.
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 ...