John Moss v. Corizon, Inc., et al

Filing

PER CURIAM OPINION FILED - THE COURT: Diana E. Murphy, Duane Benton and Jane Kelly (UNPUBLISHED) [4370966] [15-1053]

United States Court of Appeals
For the Eighth Circuit
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No. 15-1053
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John T. Moss
lllllllllllllllllllll Plaintiff - Appellant
v.
Corizon, Inc., formerly known as Correctional Medical Services; Rick Hallworth,
Chief Executive Officer, Corizon; Kevin Bice, Vice President, Corizon; J M
Courtney, Senior Vice President, Corizon; Jack Davidson, Chief Medical Officer,
Corizon; Pearson, Arkansas Prison Regional Director, Corizon; Dr. Ojiugo Iko,
Corizon; Roland Anderson, Former Arkansas Regional Director, ADC; Jennifer
McBride, Health Services Administrator, Corizon; Connie Hubbard, Nurse,
Corizon; Glenn Brown, Director of Nursing, Corizon; Burnett, Nurse, Corizon;
Larry May, Chief Deputy Director, Arkansas Department of Correction; Wendy
Kelley, Deputy of Health Services, Arkansas Department of Correction; Grant
Harris, Deputy Director, Arkansas Department of Correction; Jimmy Banks,
Warden, Varner Unit, ADC; Daryl Golden, Former Assistant Warden, Varner
Unit, ADC; Clark, Captain, Varner Unit, ADC; Bradley, Lt., Varner Unit, ADC;
Barrow, Lt., Varner, Unit, ADC; Tate, Sgt., Varner, Unit, ADC; Young, Sgt.,
Varner, Unit, ADC; J. Madden, Sgt., Varner, Unit, ADC; C. Jones, Sgt., Varner,
Unit, ADC; Gardner, Sgt., Varner, Unit, ADC; Thompson, Sgt., Varner, Unit,
ADC; Turner, Correctional Officer, Varner Unit, ADC; Rayford, Correctional
Officer, Varner Unit, ADC; Powell, Correctional Officer, Varner Unit, ADC;
Knight, Correctional Officer, Varner Unit, ADC; S. Hudson, Correctional Officer,
Varner Unit, ADC; Austin, Correctional Officer, Varner Unit, ADC; Hudgens,
Correctional Officer, Varner Unit, ADC; Moton, Correctional Officer, Varner
Unit, ADC; Shorter, Correctional Officer, Varner Unit, ADC; Angela Dobbs,
Correctional Officer, Varner Unit, ADC; Louis, Varner Unit, ADC; Shabazz
lllllllllllllllllllll Defendants - Appellees
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Appeal from United States District Court
for the Eastern District of Arkansas - Pine Bluff
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Submitted: December 17, 2015
Filed: February 25, 2016
[Unpublished]
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Before MURPHY, BENTON, and KELLY, Circuit Judges.
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PER CURIAM.
John T. Moss is imprisoned at the East Arkansas Regional Unit of the Arkansas
Department of Corrections. The Department contracts with Corizon, LLC to provide
prisoners with medical care. Nurse Connie Hubbard and Dr. Roland Anderson were
responsible for treating Moss.
Moss suffers from Hepatitis C. In 2008, he underwent a clinical work-up to
determine his eligibility for Interferon—a toxic treatment that combats symptoms of
Hepatitis C. He did not begin Interferon treatments, allegedly due in part to his liver
problems and in part to Hubbard’s refusal to fill out the necessary paperwork. In June
2009, Moss had by-pass surgery, leaving his heart too weak to begin Interferon
treatments.1 In 2011, doctors again considered Moss’s eligibility for Interferon.
Hubbard filled out a consult request and sent the necessary paperwork to Dr.
Anderson for approval. Moss’s clinical work-up contraindicated Interferon.

1

After the surgery, Moss’s ejection fraction—measuring the heart’s ability to
pump blood—was between 15 and 20. An ejection fraction below 40 indicates heart
failure.
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Moss filed two grievances about his Hepatitis C treatment. The first, filed in
2008, named Corizon. The second, filed in 2011, named Hubbard and Dr. Anderson.
On September 11, 2012, Moss filed a § 1983 action, alleging deliberate indifference
to his serious medical needs. The district court2 dismissed the case on summary
judgment, finding (1) the statute of limitations barred claims for conduct before 2009,
(2) Moss failed to exhaust his claim against Corizon, and (3) Moss’s claims against
Hubbard and Dr. Anderson failed on the merits. Summary judgment orders are
reviewed de novo. Torgeson v. City of Rochester, 643 F.3d 1031, 1042 (8th Cir.
2011) (en banc). Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
State law supplies the limitations period for § 1983 actions. See Miller v.
Norris, 247 F.3d 736, 739 (8th Cir. 2001). Arkansas imposes a three-year statute-oflimitations on personal injury claims. Ark. Code Ann. § 16-56-105. Under the
continuing-course-of-treatment doctrine, a cause of action accrues “at the end of a
continuous course of medical treatment for the same or related condition even if the
negligent act or omission has long since ended.” Lane v. Lane, 752 S.W.2d 25, 27
(Ark. 1988). The doctrine does not apply “to claims based on single, isolated acts of
negligence.” Pledger v. Carrick, 208 S.W.3d 100, 104 (Ark. 2005). It is undisputed
that Moss received no treatment or tests for Hepatitis C between 2009 and 2011. Acts
before 2009 were not part of a course of continuing treatment with acts in 2011. The
district court did not err in limiting Moss’s deliberate indifference claim to acts
occurring after September 10, 2009.
Prisoners must exhaust administrative remedies before filing federal claims.
See 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison
conditions under section 1983 of this title, or any other Federal law, by a prisoner

2

The Honorable Jerome T. Kearney, United States Magistrate Judge for the
Eastern District of Arkansas, sitting by consent of the parties pursuant to 28 U.S.C.
§ 636(c).
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confined in any jail, prison, or other correctional facility until such administrative
remedies as are available are exhausted.”); Booth v. Churner, 532 U.S. 731, 741
(2001) (“Congress has mandated exhaustion clearly enough, regardless of the relief
offered through administrative procedures.”). To exhaust, prisoners must “complete
the administrative review process in accordance with the applicable procedural
rules—rules that are defined not by the PLRA, but by the prison grievance process
itself.” Jones v. Bock, 549 U.S. 199, 218 (2007) (internal citation omitted). In
Arkansas, a grievance must “specifically name each individual involved. . . .” Burns
v. Eaton, 752 F.3d 1136, 1141 (8th Cir. 2014), quoting ADC Administrative Directive
09-01. Because Moss did not file a grievance against Corizon during the limitations
period, he failed to exhaust his administrative remedies for claims against Corizon.
Moss did exhaust administrative remedies for one grievance, filed within the
limitations period. It named Hubbard and Dr. Anderson and serves as the basis for
his deliberate indifference claim against them. Deliberate indifference to a prisoner’s
serious medical needs constitutes cruel and unusual punishment in violation of the
Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976). Deliberate
indifference requires a highly culpable state of mind approaching actual intent.
Choate v. Lockhart, 7 F.3d 1370, 1374 (8th Cir. 1993). “Thus, a complaint that a
physician has been negligent in diagnosing or treating a medical condition does not
state a valid claim of medical mistreatment under the Eighth Amendment.” Estelle,
429 U.S. at 106. “A prison official is deliberately indifferent if she ‘knows of and
disregards’ a serious medical need or a substantial risk to an inmate’s health or
safety.” Nelson v. Correctional Med. Servs., 583 F.3d 522, 529 (8th Cir. 2009) (en
banc), quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994).
Regarding the alleged misconduct, Moss’s own expert testified, “My feeling
is the deviations occurred only in 2008 up until June of 2009. Anybody that became
involved after that period of time—other than the fact that he’s not being treated now,
when he probably should be—do not fall below the standard of care.” Claims of
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misconduct before 2009 are barred by the statute of limitations, and claims of
misconduct after the filing of this lawsuit have not been administratively exhausted.
It is undisputed that between 2009 and the filing of this suit, Moss was not eligible
for Interferon treatments.
The district court did not err in dismissing the claims against Hubbard and Dr.
Anderson on the merits.
*******
The judgment is affirmed.
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