Taylor v. Ortiz, et al

Filing 920101119

Opinion

U N I T E D STATES COURT OF APPEALS F O R THE TENTH CIRCUIT

U n i t e d States Court of Appeals T e n t h Circuit

FILED

N o v e m b e r 19, 2010
E l i s a b e t h A. Shumaker C l e r k of Court

J A M E S A. TAYLOR, Plaintiff-Appellant, v. J O E ORTIZ, CDOC Current Executive D i r e c t o r ; MR. SUTHERS, Former E x e c u t i v e Director; JOHN DOE, C D O C Former Executive Director; A L ESTEP, LCF Current Warden; G A R Y WATKINS, LCF Former W a r d e n ; MR. SOARES, LCF Former W a r d e n ; JOSEPH MCGARRY, C D O C Chief Medical Officer; B A R R Y PARDUS, Director of M e d i c a l Services; DON LAWSON, C D O C Chief Pharmacy Officer; J O H N H. BLOOR, M.D. LCF P r i ma r y Care Provider; JOHN DOE, L C F Medical Clinic Team Leader; C H R I S PETROZZI, LCF Former M e d i c a l Clinic Team Leader; ANITA B L O O R , M.D. Primary Care Provider; J O H N DOE, Colorado Access Chief M e d i c a l Officer; JOHN DOE, Access C o r r e c t i o n a l Care Chief Medical O f f i c e r ; RODERIC GOTTULA, C o n s u l t a n t Specialist; TONY D E C E S A R O , CDOC Step III G r i e v a n c e Officer, Defendants-Appellees. N o . 10-1079 ( D . C . No. 1:05-CV-00574-PAB-MJW) ( D . Colo.)

O R D E R AND JUDGMENT * B e f o r e TYMKOVICH, Circuit Judge, PORFILIO, Senior Circuit Judge, and G O R S U C H , Circuit Judge.

J a me s A. Taylor, an inmate in the custody of the Colorado Department of C o r r e c t i o n s (CDOC) proceeding pro se, appeals the district court's judgment in f a v o r of defendants in his 42 U.S.C. § 1983 suit challenging prison officials' r e f u s a l to provide a combination interferon/ribavarin antiviral treatment for his H e p a t i t i s C due to his age when he was diagnosed. Exercising jurisdiction under 2 8 U.S.C. § 1291, we AFFIRM. I. M r . Taylor was diagnosed with Hepatitis C in 1997, when he was 66 years o l d . Under CDOC's Hepatitis C standard (the Protocol), patients outside the age g u i d e l i n e s (as relevant to this case, younger than age 65, with a life expectancy of a t least twenty years) are ineligible for the combination treatment. That is b e c a u s e for the majority of patients, Hepatitis C causes only mild liver damage.

A f t e r examining the briefs and appellate record, this panel has determined u n a n i mo u s l y that oral argument would not materially assist the determination of t h i s appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is t h e r e f o r e ordered submitted without oral argument. This order and judgment is n o t binding precedent, except under the doctrines of law of the case, res judicata, a n d collateral estoppel. It may be cited, however, for its persuasive value c o n s i s t e n t with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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*

T h e primary danger of Hepatitis C is the increased risk of developing liver c i r r h o s i s or liver cancer, which generally takes decades to occur. Because of M r . Taylor's age at diagnosis, prison officials have refused his requests for the c o mb i n a t i o n treatment. I n 2003 or 2004, Mr. Taylor received information that caused him to b e l i e v e he was in a high-risk category for advanced liver disease, and that t h e r e f o r e he should be afforded the combination treatment notwithstanding his a g e . He filed suit under § 1983. His first claim alleged a violation of his Eighth A me n d me n t right to receive adequate medical care. His second claim alleged he w a s treated differently from other prisoners because of his age, in violation of his F o u r t e e n t h Amendment right to equal treatment. And his third claim alleged a v i o l a t i o n of his Fourteenth Amendment right to due process, because defendants h a d not followed the Protocol. T h e district court granted defendant Gottula's motion for summary j u d g me n t , concluding that Mr. Taylor had not shown his personal involvement or d e l i b e r a t e indifference. It later dismissed the claims against defendant DeCesaro b e c a u s e Mr. Taylor failed to show he had any role in the denial of the c o mb i n a t i o n treatment. The court also dismissed the Eighth Amendment a l l e g a t i o n s because Mr. Taylor could not establish that the denial of the c o mb i n a t i o n treatment amounted to deliberate indifference, and thus, stated a

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c o n s t i t u t i o n a l violation; rather, the claim essentially expressed a disagreement w i t h the medical professionals about the most appropriate type of treatment. The Fourteenth Amendment claims proceeded to summary judgment. Regarding the equal-protection allegations, the district court concluded that there w a s a rational basis for the classification by age because the medical evidence i n d i c a t e s that, for older patients, there is unlikely to be enough time for Hepatitis C to cause advanced liver problems. Regarding the due-process allegations, the c o u r t assumed Mr. Taylor had a liberty interest in diagnosis and treatment that r e q u i r e d officials to follow the Protocol. The court concluded, however, that d e f e n d a n t s had followed the Protocol, not violated it. Although Mr. Taylor a r g u e d that he had cirrhosis of the liver and thus the Protocol mandated the c o mb i n a t i o n treatment, notwithstanding his age, the court concluded that he had s h o w n no genuine dispute of material fact that he has cirrhosis. Some of his me d i c a l records mentioned cirrhosis, but his treating physician, who had authored t h e records, submitted a declaration indicating that she did not believe that he had c i r r h o s i s . The court concluded that Mr. Taylor's self-diagnosis was not c o mp e t e n t evidence to create a genuine issue of material fact in the face of the d o c t o r ' s contrary declaration. M r . Taylor now appeals the district court's grant of summary judgment to defendants.

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II. W e review de novo both the dismissal of the Eighth Amendment claim and t h e grant of summary judgment on the Fourteenth Amendment claims. See P e r k i n s v. Kan. Dep't of Corr., 165 F.3d 803, 806 (10th Cir. 1999) (dismissal); C a l l a h a n v. Poppell, 471 F.3d 1155, 1158 (10th Cir. 2006) (summary judgment). A . Claims Against Gottula and DeCesaro M r . Taylor's opening brief does not address the district court's dismissal of h i s claims against defendants Gottula and DeCesaro. Thus, we need not consider t h o s e decisions. See Tafoya v. Salazar, 516 F.3d 912, 922-23 (10th Cir. 2008) ( s t a t i n g that failure to raise an issue in prisoner's opening brief results in waiver). B . Eighth Amendment T h e Eighth Amendment requires prison officials to care for prisoners' s e r i o u s medical needs. See Estelle v. Gamble, 429 U.S. 97, 103-04 (1976). A n Eighth Amendment claim has both an objective c o mp o n e n t ­ w h e t h e r the deprivation is sufficiently serious­and a s u b j e c t i v e component­whether the official acted with a sufficiently c u l p a b l e state of mind. In cases challenging the conditions of a p r i s o n e r ' s confinement, the subjective standard is one of deliberate i n d i f f e r e n c e to inmate health or safety. P e r k i n s , 165 F.3d at 809 (citation omitted). "Prison officials violate the Eighth A me n d me n t when they are deliberately indifferent to the serious medical needs of p r i s o n e r s in their custody." Id. at 811. But "a prisoner who merely disagrees

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w i t h a diagnosis or a prescribed course of treatment does not state a constitutional v i o l a t i o n . " Id. M r . Taylor admits in his complaint that defendants have provided him me d i c a l attention, including taking twice-yearly blood samples to monitor his l i v e r condition. He believes, however, that he should be afforded the combination a n t i v i r a l treatment. Defendants, including his treating physician, disagree. As t h e district court concluded, Mr. Taylor's allegations "boil[] down to a contention t h a t he had a right to a particular course of treatment[.] . . . Both this court and o u r sister circuits have rejected such an expansive view of the rights protected by t h e Eighth Amendment." Callahan, 471 F.3d at 1160; see also Perkins, 165 F.3d a t 811 (holding that HIV-positive prisoner who believed he should receive a p r o t e a s e inhibitor in addition to certain drugs failed to state an Eighth A me n d me n t claim). The district court correctly concluded the Eighth A me n d me n t allegations failed to establish the violation of a constitutional right. C . Equal Protection " T h e Fourteenth Amendment guarantee of equal protection is essentially a d i r e c t i o n that all persons similarly situated should be treated alike." Straley v. U t a h Bd. of Pardons, 582 F.3d 1208, 1215 (10th Cir. 2009), cert. denied, 1 3 0 S. Ct. 1737 (2010) (quotation omitted). Mr. Taylor's equal protection claim r e s t s on an age classification, alleging that younger prisoners with Hepatitis C r e c e i v e the antiviral treatment, while older prisoners do not. Because "age is not
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a suspect classification under the Equal Protection Clause . . . [s]tates may d i s c r i mi n a t e on the basis of age without offending the Fourteenth Amendment if t h e age classification in question is rationally related to a legitimate state i n t e r e s t . " Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 83 (2000). T h e district court concluded that defendants' evidence established a r a t i o n a l basis for the classification. We agree. The protocol states that "[t]he g o a l of the CDOC Hepatitis C Clinical Standard and Procedure for Health Care P r o v i d e r s is to provide a management program to all patients with chronic h e p a t i t i s C and to treat with antiviral medication patients at greatest risk of d i s e a s e progression." Aplt. App., Vol. 3 at 223. T h e task confronting the CDOC is a daunting one: identify and treat t h o s e patients who would develop [liver cancer] and [end-stage liver d i s e a s e ] and who will respond to antiviral therapy with a sustained v i r a l response, while avoiding the expenditure of vital resources on t h o s e patients with [Hepatitis C] who will not progress to [liver c a n c e r ] or [end-stage liver disease] or who will have adverse r e a c t i o n s to the medications or who will not have a sustained viral r e s p o n s e to drugs. I d . at 224. As the district court explained, "it was rational for the state to d e t e r mi n e that persons diagnosed after age 65 are unlikely to suffer the l i f e - t h r e a t e n i n g aspects of the disease and thus need not be given the i n t e r f e r o n / r i b a v i r i n treatment." Id. at 660. O n appeal, Mr. Taylor argues that the state's reliance on age is irrational b e c a u s e it relies on the diagnosis date and does not take account of the length of

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t i me that may have elapsed since a prisoner was infected. But he does not i d e n t i f y where he raised this argument in the district court, see 10th Cir. R. 2 8 . 2 ( C ) ( 2 ) ("For each issue raised on appeal, all briefs must cite the precise r e f e r e n c e in the record where the issue was raised and ruled on."), and we do not s e e where this rationality argument was raised. Accordingly, we will not consider t h e s e contentions. See Braxton v. Zavaras, 614 F.3d 1156, 1163 (10th Cir. 2010) ( r e f u s i n g to consider an issue that prisoners failed to raise in district court). D . Due Process F i n a l l y , Mr. Taylor's due process claim alleges that defendants have failed t o follow the Protocol, depriving him of a liberty interest in receiving medical t r e a t me n t . Specifically, he states that the Protocol provides that persons who h a v e two or more liver diseases will be provided the combination treatment, and h e argues that he has been diagnosed with cirrhosis as well as Hepatitis C. Thus, h e concludes the Protocol mandates that he be given the combination treatment. Like the district court, we will assume without deciding that Mr. Taylor has s h o w n the existence of a liberty interest, and focus instead on whether defendants h a v e violated the Protocol, as Mr. Taylor contends. See Gwinn v. Awmiller, 3 5 4 F.3d 1211, 1224 (10th Cir. 2004) (stating that if a liberty interest is i mp l i c a t e d , the court must determine whether a prisoner was afforded appropriate p r o c e d u r a l protections).

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T h e Protocol provides that "if a patient has both chronic Hepatitis B and C o r other chronic liver disease, they will be treated." Aplt. App., Vol. 3 at 236. But undermining Mr. Taylor's argument, his treating physician submitted a d e c l a r a t i o n stating that his "medical records do not indicate that he is suffering f r o m any liver disease other than hepatitis C." Id. at 262. In her opinion, "[i]t is u n l i k e l y that plaintiff has liver cirrhosis since his platelet count, INR, albumin, a n d bilirubin are all normal. The only liver test that suggests cirrhosis is a mildly e l e v a t e d alphafetoprotein. However, plaintiff exhibits no symptoms of cirrhosis." Id. at 263. To the extent that Mr. Taylor's medical records mention the p o s s i b i l i t y of cirrhosis, they are ambiguous and fall short of diagnosing the c o n d i t i o n . Further, the treating physician was the records' author and thus was t h e most appropriate person to interpret them. Thus, the records are not sufficient t o create a genuine issue of material fact whether Mr. Taylor has cirrhosis; nor is h i s self-diagnosis, see Aswegan v. Henry, 49 F.3d 461, 464-65 (8th Cir. 1995); K a y s e r v. Caspari, 16 F.3d 280, 281 (8th Cir. 1994). M r . Taylor also complains that his treating physician failed to follow the P r o t o c o l because she never completed the questionnaire that is to be filled out w h e n a prisoner requests treatment. He has not been harmed by any failure to fill o u t the questionnaire, however, because the purpose of the questionnaire is to a l l o w medical officials to determine whether the prisoner is eligible for treatment. See Aplt. App., Vol. 3 at 227. A prisoner who is outside the age guidelines is not
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e l i g i b l e for the combination treatment. See id. at 229-30. The record shows that M r . Taylor's treating physician checked with the liver specialist and confirmed t h a t he was outside the age guidelines for the treatment. He was afforded s u f f i c i e n t process, even without the completion of the questionnaire. F i n a l l y , Mr. Taylor complains that defendants did not consider various f a c t o r s that the Protocol lists as causing a Hepatitis C patient to be at higher risk f o r liver cancer and cirrhosis. He states that he meets virtually all of these f a c t o r s , indicating that had defendants properly considered the factors, they would h a v e concluded that he required the combination treatment. The Protocol, h o w e v e r , establishes no particular process for considering these factors that might r i s e to the level of a constitutional entitlement. III. T h e judgment of the district court is AFFIRMED. E n t e r e d for the Court

J o h n C. Porfilio S e n i o r Circuit Judge

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