Black v. Alabama Department of Corrections
MEMORANDUM OPINION. Signed by Judge R David Proctor on 9/25/2013. (AVC)
2013 Sep-25 AM 11:04
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
ALABAMA DEPARTMENT OF
CORRECTIONS, et al.
Case No.: 5:11-CV-3835-RDP-JHE
Plaintiff, Wayne Black, is an inmate in the Alabama penal system presently incarcerated
at the Limestone Correctional Facility (“LCF”), in Harvest, Alabama. On November 4, 2011, he
filed this pro se action pursuant to 42 U.S.C. § 1983. (Doc. #1). Plaintiff alleges that he has been
deprived of rights, privileges, or immunities afforded him under the Constitution or laws of the
United States and names as Defendants: Commissioner Kim Tobias Thomas, Dr. Blough, Nurse
Debra Means, Nurse Hunt, and Warden Mitchem.1 Plaintiff alleges that he has been denied
adequate medical care for his Hepatitis C with which he was diagnosed while in custody of the
Alabama Department of Corrections. (Docs. #1, 6, 8). Plaintiff seeks declaratory and injunctive
relief, as well as damages. (Doc. #6 at 4).
Plaintiff filed his initial complaint (Doc. #1) on November 4, 2011, and thereafter has
offered two amendments to it. (Docs. #6 and 8). Plaintiff’s original complaint alleged that the
Alabama Department of Corrections and Commissioner Kim Thomas were denying him medical
Plaintiff’s claims against Warden Mitchem were dismissed due to Plaintiff’s failure to supply a correct
address for Warden Mitchem after being ordered to do so. (Doc. #26).
treatment, but the pleading did not make any specific assertions. This court ordered Plaintiff to
file an amended complaint that states “clearly how each defendant violated his constitutional
rights, the date(s) on which the incident(s) occurred, and where the incident(s) occurred.” (Doc.
#7)(emphasis in original). Plaintiff filed an amended complaint that alleges that Commissioner
Thomas has caused him to be denied medical treatment without any supporting evidence.
On July 9, 2012, the court entered an Order for Special Report directing that copies of the
complaint in this action be forwarded to each of the named Defendants and requesting that
Defendants file a special report addressing the factual allegations of Plaintiff’s complaint. (Doc.
#10). Defendants were advised that the Special Report could be submitted under oath or
accompanied by affidavits and, if appropriate, would be considered as a motion for summary
judgment filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Id.). By the same
Order, Plaintiff was advised that after he received a copy of the Special Report submitted by
Defendants he should file counter affidavits if he wished to rebut the matters presented by
Defendants in the Special Report. (Id.). Plaintiff was further advised that such affidavits should
be filed within twenty days after receiving a copy of Defendants’ Special Report. (Id.).
On July 26, 2012, Defendants Blough, Mean, and Hunt filed a Special Report
accompanied by copies of portions of Plaintiff’s medical records and the affidavit of Debra
Means, CRNP. (Doc. #15). On July 27, 2012, Plaintiff responded to the Special Report filed by
Blough, Means, and Hunt. (Doc. #16). He also filed two separate rebuttals to that Special
Report, on August 10 and 24, 2012. (Docs. #18, 19). Thereafter, on September 7, 2012,
Defendant Thomas filed a Special Report and Affidavit. (Doc. #21). On February 6, 2013,
Plaintiff was notified that he would have twenty days to respond to the motion for summary
judgment, by filing affidavits or other material if he chose. (Doc. #27). Plaintiff was advised of
the consequences of any default or failure to comply with Federal Rule of Civil Procedure 56.
See Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985). On February 22, 2013, Plaintiff
responded to the Special Report of Defendant Thomas and again addressed his claims against the
other three remaining Defendants. (Doc. #29). He also filed a brief in support of his arguments
on July 3, 2013. (Doc. #32).
On July 18, 2013, the court entered an order for a supplemental Special Report requesting
additional evidentiary submissions from Defendants. (Doc. #32). On July 29, 2013, Defendants
filed a supplemental Special Report (Doc. #33) accompanied by the affidavits of Dr. Hugh Hood,
M.D. (Doc. #33-1), the Federal Bureau of Prison’s Clinical Practice Guidelines related to the
evaluation and treatment of Hepatitis C (Doc. #33-2), Hepatitis C Treatment Referral Forms for
Plaintiff (Doc. #33-4, 33-6), a Hepatitis C Flow Sheet for Plaintiff (Doc. #33-5), and other
evidentiary material (Doc. #33). Defendant Thomas supplemented her special report by filing an
affidavit of Brandon Kinard. (Doc. #35). Plaintiff responded by filing a Rebuttal and Response
in opposition to summary judgment and attached an affidavit. (Docs. #36, 38).
In accordance with the usual practices of this court and 28 U.S.C. § 636(b)(2), the
complaint was referred to the undersigned Magistrate Judge for a preliminary Report and
Recommendation. See McCarthy v. Bronson, 500 U.S. 136, 111 S. Ct. 1737, 114 L. Ed. 2d 194
(1991). However, the Magistrate Judge assigned the case retired from judicial service in June
2013. Accordingly, rather than require a new Magistrate Judge to become familiar with this case
and issue a Report and Recommendation, the court has withdrawn the reference and will decide
the case by entering this Memorandum Opinion and an Order.
Summary Judgment Standard
Because the Special Reports of Defendants are being considered a motion for summary
judgment, the court must determine whether the moving party, Defendants, are entitled to
judgment as a matter of law. Summary judgment may be granted only if there are no genuine
issues of material fact and the movant is entitled to judgment as a matter of law. Federal Rule of
Civil Procedure 56. In making that assessment, the court must view the evidence in a light most
favorable to the non-moving party and must draw all reasonable inferences against the moving
party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). The burden of proof is upon the
moving party to establish his prima facie entitlement to summary judgment by showing the
absence of genuine issues and that he is due to prevail as a matter of law. See Clark v. Coats &
Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). Once that initial burden has been carried,
however, the non-moving party may not merely rest upon his pleading, but must come forward
with evidence supporting each essential element of his claim. See Celotex Corp. v. Catrett, 477
U.S. 317, 324 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Barfield v.
Brierton, 883 F.2d 923, 934 (11th Cir. 1989). Unless Plaintiff, who carries the ultimate burden
of proving his action, is able to show some evidence with respect to each element of his claim,
all other issues of fact become immaterial, and the moving party is entitled to judgment as a
matter of law. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Bennett v. Parker, 898
F.2d 1530, 1533-34 (11th Cir. 1990). As the Eleventh Circuit has explained:
Facts in dispute cease to be “material” facts when the plaintiff fails to establish a
prima facie case. “In such a situation, there can be ‘no genuine issue as to any
material fact,’ since a complete failure of proof concerning an essential element of
the non-moving party’s case necessarily renders all other facts immaterial.”
[citations omitted]. Thus, under such circumstances, the public official is entitled
to judgment as a matter of law, because the plaintiff has failed to carry the burden
of proof. This rule facilitates the dismissal of factually unsupported claims prior
898 F.2d at 1532.
Rule 56 Facts for Summary Judgment Analysis
Applying the above standard to the evidence before the court, the following facts are
undisputed or, if disputed, are taken in a light most favorable to Plaintiff.
Plaintiff alleges that he has been denied adequate medical care for his Hepatitis C
condition. In 2003, while in the custody of the Houston County Jail, Plaintiff learned he tested
positive for Hepatitis C. (Doc. #8 at 4). Hepatitis C is an infectious disease affecting primarily
the liver caused by the Hepatitis C virus (“HCV”). (Doc. #33-1 at 4). Individuals infected with
Hepatitis C are often asymptomatic, but chronic infection can lead to scarring of the liver, and
ultimately cirrhosis. Id. In some cases, individuals who develop cirrhosis may later suffer liver
failure, liver cancer, or life threatening esophageal and gastric varices. Id.
Approximately 1,800 prisoners who are incarcerated within the Alabama Department of
Corrections are infected with Hepatitis C. (Doc. #33-1 at 4). The Alabama Department of
Corrections has developed a Hepatitis C Treatment Program, but not all inmates diagnosed with
Hepatitis C are enrolled in the program. (Doc. #33-1 at 3). To determine which inmates
diagnosed with Hepatitis C should receive treatment, the Alabama Department of Corrections
screens the applicants using a policy based on the Federal Bureau of Prisons Clinical Practice
Guidelines. Id. These guidelines explain the various treatment options that are available for
Hepatitis C and provide both the indications and contraindications for the therapies. See (Doc.
Under the policy, an inmate who wishes to enter the Treatment Program must have a
Hepatitis C treatment referral form submitted to the Alabama Department of Corrections by the
treating medical staff at the facility where the inmate is housed. (Doc. #33-1 at 3, 5).
Alabama Department of Corrections then reviews the referral to determine whether the inmate
would be a possible candidate for the program. (Doc. #33-1 at 5).
Since learning of his diagnosis, Plaintiff has continually asked for treatment for his
Hepatitis C. He requested treatment from the medical personnel and administrators at the
Houston County Jail and the Kilby Correctional Facility in 2003, and again at Holman Prison
after his transfer there. On each occasion, he was told treatment could only be authorized by the
Alabama Department of Corrections (“DOC”) and his name would be put on a list for
consideration, but he never received treatment.2 (Doc. #8 at 4). The undisputed evidence also
shows that the Alabama Department of Corrections has contracted with Corizon to provide
medical treatment, and the Alabama Department of Corrections has delegated to medical
professionals the decisions as to the proper medical care.
Plaintiff is an inmate currently incarcerated at the Limestone Correctional Facility since
August 26, 2003. The medical Defendants in this case are Debra C. Means, CRNP, a nurse
practitioner who works at the Health Care Unit at the Decatur Work Release Facility; Debbie
Hunt, the Health Services Administrator; and John M. Blough, D.O. Nurse Means has no
knowledge of when Plaintiff contracted Hepatitis C. However, in March 2009, she detected that
Plaintiff was positive for that disease after lab work was ordered. Plaintiff asked her if he could
receive treatment for his Hepatitis C. (Doc. #15-1 at 2; Doc. #38.). Nurse Means told him that
The court notes that, although no motion was filed, within the body of numerous pleadings, Plaintiff
indicated he would like the Court’s assistance in obtaining medical records to establish he was diagnosed with
Hepatitis C in 2003 and had not received treatment. However, because neither fact is at issue, and as that assertion is
not relevant to Plaintiff’s claim that he has been provided inadequate medical care by these Defendants, any such
records are not material here. Moreover, any claims as to the lack of treatment during much of that time period
would be barred by the statute of limitations. To the extent that Plaintiff wished to name additional medical
personnel at the correctional facilities involved with his care during that time, even if the claims were not barred by
the limitations period, as will be seen, Plaintiff has failed established facts to show deliberate indifference to his
she could not provide it to him because the determination as to who received treatment was made
by the DOC; however, stated she would file the paperwork. (Doc. #38 at 1).
Nurse Means next saw Plaintiff at the Limestone Correctional Facility on October 5,
2011. At that time, Plaintiff again indicated that he wished to be evaluated for treatment for his
Hepatitis C. The Alabama Department of Corrections has developed a policy that follows the
Federal Bureau of Prisons Guidelines to determine who meets the criteria for Hepatitis C
treatment. Thus, the decision about whether an inmate/patient is a candidate for Hepatitis C
treatment is not one that a nurse practitioner (nor any other medical practitioner at a corrections
facility) can make.
Nurse Means informed Plaintiff of the selection process for the Hepatitis C Treatment
Program, and in particular that the program was administered solely by the Alabama Department
of Corrections. Nurse Means saw Plaintiff again on December 28, 2011. At that time she
completed a Hepatitis C Treatment Request Form for Plaintiff and provided a copy to the Health
Services Administrator, Debbie Hunt. In addition, that form was telefaxed to Brandon Kinard at
the Alabama Department of Corrections. Once again, Plaintiff was informed that whether to
accept an inmate into the Hepatitis C Treatment Program is a decision made solely by the
Alabama Department of Corrections, not the medical staff at the individual correction facility,
and specifically not at the Limestone Correctional Facility.
Nurse Means saw Plaintiff again on June 27, 2012. She ordered a KUB X-ray, the results
of which were normal. Plaintiff again inquired about admission into the Hepatitis C Treatment
Program, and was told again that the medical staff at Limestone Correctional Facility had no
involvement in that decision. Throughout the course of her interactions with Plaintiff, Nurse
Means observed him to be in stable condition. (Doc. #15-1 at 3).
Plaintiff spoke with Dr. Blough in 2011 and requested treatment for his Hepatitis C.
(Doc. #38 at 1). Plaintiff was experiencing serious pain in his whole body, poor eyesight, and
difficulty and pain when using the toilet. (Id.; Doc. #8 at 5). Plaintiff asserts that Dr. Blough
told Plaintiff the Hepatitis C had blocked his bowels and provided Plaintiff with laxatives, but
stated that was all he could do for him. (Doc. #38 at 1). There is no evidence to suggest that the
issues about which Plaintiff complained had or have any medical relationship to his Hepatitis C.
(Doc. #33-1 at 3).
On August 17, 2011, Plaintiff filed a medical grievance with Dr. Blough requesting
treatment for his Hepatitis C and stating that he had been refused treatment for nine years and
was in “serious pain.” (Doc. #29 at 7). On August 28, 2011, Plaintiff filed a grievance with
Warden Mitchem, reiterating his request for treatment. (Doc. #29 at 1).
On September 6, 2011, Health Service Administrator Debbie Hunt responded to the
grievance, advising Plaintiff that his liver enzymes were being monitored every three to six
months in the Chronic Care Clinic. (Doc. #29 at 8). Defendant Hunt further informed Plaintiff
the Alabama Department of Corrections decides who gets treatment based on whether certain
criteria have been met, and Limestone Correctional Facility was not currently treating anyone for
Hepatitis C and she did not know when they would begin another group. (Id.).
In September and October 2011, Plaintiff sent two letters titled “Medical Grievance” to
Commissioner Kim Thomas stating that he was being refused treatment for his Hepatitis C.
(Doc. #29 at 5, 6). He received no response. (Doc. #29 at 1).
In October of 2011, Plaintiff again asked Nurse Means about receiving treatment for his
Hepatitis C. (Doc. #15-1 at 2). Nurse Means responded by once again reiterating the selection
process for the Treatment Program was done solely by the Alabama Department of Corrections,
discussing the need for him to be released from PC status to qualify, and telling him that once he
was, she would put in the paperwork so he could be considered for treatment. (Doc. #15-1 at 2;
Doc. #15-2 at 8).
Lab work taken at the time indicated Plaintiff was not developing
complications from his disease (Doc. 33-1 at 4-5; Doc. #33-4; Doc. #33-5), and Nurse Means
found Plaintiff’s condition to be stable. (Doc. #15-1 at 3).
On December 28, 2011, Nurse Means saw Plaintiff again and completed a Hepatitis C
Treatment Request Form. (Doc. #15-1 at 2). She gave a copy of the form to the Health Service
Administrator Debbie Hunt, and faxed a copy to Brandon Kinard at the Alabama Department of
Corrections. (Id.). She again told Plaintiff the decision regarding treatment was made not by the
medical staff at the individual correctional facilities, but by the Alabama Department of
Corrections. (Doc. #15-1 at 3). Nurse Means continued to monitor Plaintiff’s condition and
found it to be stable. (Id.)
On June 27, 2012, Nurse Means examined Plaintiff, ordered a KUB x-ray, which was
normal, and again informed Plaintiff the medical staff at Limestone was not involved in the
decision making process regarding admission into the Hepatitis C Treatment Program. (Doc.
#15-1 at 3). Nurse Means found Plaintiff’s condition to be stable. Id. She believed the
application she had previously submitted was still pending with the Alabama Department of
Corrections. (Doc. #15-1 at 4). Plaintiff continued to be closely monitored for his Hepatitis C at
the Limestone Correctional Facility, and the results of his lab work remained within the normal
levels. (Doc. #33-1 at 5). The Alabama Department of Corrections never received the treatment
referral form Nurse Means faxed on December 28, 2011. (Doc. #33-1 at 3).
Dr. Hugh Hood, a licensed physician, Board Certified internist, and the Associate
Regional Medical Director for Corizon Medical Services, reviewed Plaintiff’s medical records
and is familiar with the medical treatment the plaintiff received. (Doc. #33-1 at 1). The records
reflect Plaintiff has been seen frequently at the Chronic Care Clinic, where his condition has
been closely monitored. (Doc. #33-1 at 5). Blood labs have been drawn and read to determine
whether Plaintiff’s condition is stable or worsening, and the medical staff have checked for
indications of a decline in the platelet count, an increase in the AST platelet ratio index
(“APRI”)3 score, and/or a decline in the absolute neutrophil count (“ANC”) score, all of which
may indicate the progression of the disease and need for treatment. Id.
In October 2011, Plaintiff’s APRI was 0.37, his platelet count was 259,000, and his ANC
levels were 2.44. (Doc. #33-1 at 4). Those numbers were stable and within the normal range,
giving no indication Plaintiff was developing problems. (Id.). Based on those numbers, Plaintiff
would not have been a candidate for the Hepatitis C Treatment Program in December of 2011.
(Doc. #33-1 at 4).
Plaintiff has since complained of pain in his liver and, in June 2013, requested an MRI.
(Doc. #31 at 2). A new Hepatitis C referral form was completed and forwarded to the Alabama
Department of Corrections on July 29, 2013. (Doc. #33-6). On August 14, 2013, Plaintiff
received an ultrasound of his liver, which showed it to be slightly swollen, but according to Dr.
Whitley, was normal. (Doc. #36 at 2-3). The medical staff is continuing to monitor Plaintiff’s
condition, and both the staff and the Alabama Department of Corrections are determining
whether he is a candidate for the Hepatitis C program and whether the Hepatitis C medications
would benefit him. (Id.).
The AST-To-Platelet Ratio Index (“APRI”) is a validated predictor of Hepatic Fibrosis in patients with
chronic Hepatitis C. The ANC is the absolute neutrophil count, which measures the amount of infection fighting
white blood cells present in the blood. (Doc. #33-1 at 4).
The Department of Corrections Office of Health Services Hepatitis C Flow-sheet, which
has tracked Plaintiff’s blood work since April 2009, reveals that since 2011, Plaintiff’s platelet
count has decreased, the APRI score has increased slightly, and although the ANC score declined
in 2012, it has since increased. (Doc. #33-5; Doc. #33-1 at 5). All of the readings remain within
normal or acceptable limits. Id. Plaintiff does not appear to have any conditions that would
preclude him from being accepted into the Hepatitis C Treatment Program, but also has none that
would mandate his immediate placement in the program. (Doc. #33-1 at 6).
Plaintiff’s Claim for Denial of Medical Care
In order to establish liability under § 1983 for inadequate medical treatment, a prisoner
must show that a failure to provide medical treatment amounted to cruel and unusual treatment in
violation of the Eighth Amendment. The Supreme Court has held that it is only “deliberate
indifference to serious medical needs of prisoners” which will give rise to a claim of cruel and
unusual punishment in violation of the Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104
(1976). “Medical treatment violates the Eighth Amendment only when it is ‘so grossly
incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to
fundamental fairness.’” Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991), quoting Rogers
v. Evans, 792 F.2d 1052, 1058 (11th Cir. 1986). The conduct of prison officials must run
counter to evolving standards of decency or involve the unnecessary and wanton infliction of
pain to be actionable under § 1983. Bass v. Sullivan, 550 F.2d 229, 231 (5th Cir.).
Mere negligence is insufficient to support a constitutional claim. Fielder v. Bosshard, 590
F.2d 105, 107 (5th Cir. 1979). As stated by the Estelle court, “medical malpractice does not
become a constitutional violation merely because the victim is a prisoner.” 429 U.S. at 106.
Therefore, a mere accidental or inadvertent failure to provide medical care or negligent diagnosis
or treatment of a medical condition does not constitute a wrong under the Eighth Amendment.
See Ramos v. Lamm, 639 F.2d 559, 574 (10th Cir. 1980). Neither will a difference of opinion
between an inmate and the institution’s medical staff, as to treatment and diagnosis, alone give
rise to a cause of action under the Eighth Amendment. Smart v. Villar, 547 F.2d 112, 114 (10th
Cir. 1976); see also Estelle v. Gamble, 429 U.S. at 106-08. Likewise, even when there is a
disagreement between two doctors as to the course of treatment, that also does not state a
violation of the Eighth Amendment because there may be several acceptable ways to treat a
medical condition. White v. Napoleon, 897 F.2d 103, 110 (3rd Cir. 1990).
In Hamm v. DeKalb County, 774 F.2d 1567, 1574 (11th Cir. 1985), the Eleventh Circuit
held that an inmate’s dissatisfaction with the medical treatment provided by the prison did not
constitute a violation of the Eighth Amendment as long as the treatment provided did not amount
to deliberate indifference. The Eighth Amendment is implicated only when the prison doctors or
guards intentionally and deliberately deny or delay access to medical attention to serious medical
conditions. Barfield v. Brierton, 883 F.2d 923, 938 (11th Cir. 1989).
Two components must be evaluated to determine whether Plaintiff has been subjected to
cruel and unusual punishment. “First, [the court] must evaluate whether there was evidence of a
serious medical need; if so, [it] must consider whether [Defendants’] response to that need
amounted to deliberate indifference.” Mandel v. Doe, 888 F.2d 783, 788 (11th Cir. 1989).
Clearly, “not every injury or illness invokes the constitutional protection only those that are
‘serious’ have that effect.” Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1081 (3rd
Cir. 1976). Because society does not expect that prisoners will have unqualified access to health
care, deliberate indifference to medical needs amounts to an Eighth Amendment violation only if
those needs are ‘serious.’ Hudson v. McMillian, 503 U.S. 1, 8 (1992). In Estelle, the court
recognized that medical needs which require medical attention as a matter of constitutional law
can range from “the worst cases,” producing “physical ‘torture or a lingering death,’” to “less
serious cases,” resulting from the “denial of medical care,” which could cause “pain and
suffering.” Estelle, 429 U.S. at 103. A “serious” medical need has been defined as “one that has
either been diagnosed by a physician as mandating medical treatment or one that is so obvious
that even a lay person would recognize the need for a doctor’s attention.” Laaman v. Helgemoe,
437 F.Supp. 269, 311 (D.N.H. 1977). See also Page v. Sharpe, 487 F.2d 567, 569 (1st Cir.
1973). It is the necessity (not the desirability) of medical treatment sought which is important to
the determination of whether medical officials have exhibited deliberate indifference. Woodall v.
Foti, 648 F.2d 268, 272 (5th Cir. 1981).
Deliberate indifference can be shown in a variety of ways. As the Eleventh Circuit Court
of Appeals noted:
Our cases have consistently held that knowledge of the need for medical care and
an intentional refusal to provide that care constitutes deliberate indifference.
Medical treatment that is “so grossly incompetent, inadequate, or excessive as to
shock the conscience or to be intolerable to fundamental fairness” constitutes
deliberate indifference. “A doctor’s decision to take an easier and less efficacious
course of treatment” also constitutes deliberate indifference. Additionally, when
the need for medical treatment is obvious, medical care that is so cursory as to
amount to no treatment at all may constitute deliberate indifference.
Adams v. Poag, 61 F.3d 1537, 1543 (11th Cir. 1995) (internal citations omitted).
A medical provider or prison official also acts with deliberate indifference when he
intentionally delays providing an inmate with access to medical treatment, knowing that the
inmate has a life-threatening condition or urgent medical condition that would be exacerbated by
delay. See Hill v. DeKalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1186-87 (11th Cir. 1994),
abrogated on other grounds by Hope v. Pelzer, 536 U.S. 730 (2002); see also Harris v. Coweta
County, 21 F.3d 388, 394 (11th Cir. 1994). Delay in access to medical treatment can violate the
Eighth Amendment when it is “tantamount to ‘unnecessary and wanton infliction of pain.’”
Brown v. Hughes, 894 F.2d 1533, 1537 (11th Cir. 1990) (internal citations omitted). An inmate
claiming an unconstitutional delay in medical treatment “must place verifying medical evidence
in the record to establish the detrimental effect of the delay in medical treatment to succeed.”
Hill, 40 F.3d at 1188.
In all cases, it is the necessity and not the desirability of medical treatment sought which
is important to the determination of whether medical officials have exhibited deliberate
indifference. Woodall v. Foti, 648 F.2d 268 (5th Cir. 1981).
Even if a plaintiff establishes that he has a serious medical need, he must also produce
evidence of deliberate indifference. See Mandel, 888 F.2d. at 788. That is, it is not enough that
the prisoner shows inadequate treatment of a serious medical need; in order to maintain an action
grounded in the Eighth Amendment, the prisoner must demonstrate that the defendant or
defendants possessed the requisite culpable state of mind. See Wilson v. Seiter, 501 U.S. 294,
297 (1991). The requisite state of mind, deliberate indifference, has been compared to the
mental state of criminal recklessness. See Farmer v. Brennan, 511 U.S. 825, 836-37 (1994). In
ruling that the test for deliberate indifference is subjective, based on the individual’s state of
mind, rather than objective, based on a reasonable outside observer, the United States Supreme
Court has stated that “it is enough that the official act or fail  to act despite his knowledge of a
substantial risk of serious harm.” Id. at 842. But the Court also noted that “a fact finder may
conclude that a prison official knew of a substantial risk from the very fact that the risk was
“Ultimately,” the Eleventh Circuit has stated that “there are thus four requirements: an
objectively serious need, an objectively insufficient response to that need, a subjective awareness
of facts signaling the need, and an actual inference of required action from those facts.” Taylor v.
Adams, 221 F.3d 1254, 1258 (11th Cir. 2000). With these principles in mind, the court will
address Plaintiff’s claims against the various Defendants in this case.
Plaintiff asserts his requests for treatment of his Hepatitis C have been routinely denied
since he was first diagnosed in 2003. He contends his eyesight has diminished, he has digestive
problems and constipation, and has suffered pain in his back, left side, and left foot, which he
believes is attributable to the disease. It is undisputed Hepatitis C constitutes a serious medical
need. It is also undisputed Plaintiff has not been accepted into the Alabama Department of
Corrections’ Hepatitis C Treatment Program, and thus, has not received treatment for his disease
through that program. Nevertheless, the court finds there is no genuine issue of fact with respect
to Plaintiff’s claim that the defendants were deliberately indifferent to that need.
In Bender v. Regier, the Eighth Circuit discussed the intricacies of Hepatitis C treatment
and noted the following:
“Synthetic interferon was released to the market some ten years
ago. Until then, no treatment for the Hepatitis C virus existed. By
January 2002, a more effective interferon treatment was available,
involving a combination of pegylated interferon (interferon with
polyethylene glycol) and ribavarin. Interferon treatment has serious
potential side-effects, including nausea, anemia, depression, and
decomposition of the liver. Its success rate is relatively low-1530% for regular interferon and 40-50% for pegylated interferon
treatment. The selection of patients for interferon treatment is
highly individualized and depends upon many factors.
Treatment is not appropriate for patients with advanced liver
problems such as cirrhosis. Treatment for patients with mild
liver problems may be safely deferred. Suitability for
treatment is determined by measuring the degree of liver
inflammation and fibrosis through a liver biopsy. However,
even if the appropriate threshold levels of inflammation and
fibrosis are present, treatment may be inappropriate if the patient is
too young or too old, had a previous organ transplant, or suffers
from depression, other mental health problems, heart disease, or
untreated chemical dependency.”
385 F.3d 1133, 1135 (8th Cir. 2004) (emphases added).
The record reflects Plaintiff has been frequently seen at the Chronic Care Clinic, where
his condition has been closely monitored. (Doc. #33-1 at 5). Blood labs have been drawn and
read to determine the functioning of Plaintiff’s liver, the status of his platelet count, and whether
the plaintiff’s condition was stable or worsening. Id. Dr. Hood’s unrebutted testimony, based
on his medical training, knowledge of the situation and review of Plaintiff’s medical records, is
that there is no evidence Plaintiff’s ailments are related to his Hepatitis C, Plaintiff would not
have qualified for acceptance into the Hepatitis C Treatment Program in 2011, Plaintiff’s
condition has not worsened because he has not received that treatment, and Plaintiff’s present
medical condition is not such that he now requires immediate placement into the program. (Doc.
#33-1). The record is void of any evidence that Defendants have been deliberately indifferent to
Plaintiff’s serious medical needs. The record merely shows Plaintiff disagrees with the protocol
and method of treating individuals with hepatitis C.
Even under normal circumstances, the mere disagreement between an inmate and medical
professionals regarding the suitability or advisability of treatment is not, alone, sufficient to
present a constitutional claim. Harris v. Thigpen, 941 F.2d 1495, 1505 (11th Cir. 1991); Hamm
v. Dekalb Co., 774 F.2d 1567, 1575 (11th Cir. 1985). This seems especially true in the light of
the complicated nature of Hepatitis C therapy and the multitude of factors that go into the
determination to provide or withhold treatment. See, e.g., Young v. Nguyen, No. 3:07-cv-551-J32MCR, 2009 WL 2025181 (M.D. Fla.. 2009) (Prison officials were not deliberately indifferent
to an inmate’s Hepatitis C diagnosis that did not require medical treatment due to its dormant
state); see also James v. Geerken, No. 5:10-cv-259-RS-GRJ, 2012 WL 602775 (N.D. Fla. Jan.
20, 2012) (Report and Recommendation of Magistrate Judge); Baldwin v. Perron, No. 5:09-cv372 (CAR), 2011 WL 1059120 (M.D. Ga. Mar.23, 2011); Baldwin v. Perron, No. 5:09-cv-372
(CAR), 2011 WL 1103340 (M.D. Ga. Feb.11, 2011) (Report and Recommendation of Magistrate
Judge); Loeber v. Department of Corrections, No. 5:09-cv-402/RS-MD, 2010 WL 3272611, *2–
3 (N.D. Fla. Aug.19, 2010); Hollis v. Director of Corrections, 560 F. Supp. 2d 920, 927 (C.D.
Plaintiff has no right to insist on a particular court of treatment, and there is no competent
evidence the treatment Plaintiff sought for his hepatitis C was appropriate for someone with
normal liver enzymes or that treating his constipation with laxatives instead of enrolling him in
the Hepatitis C Treatment Program violated the appropriate standard of care given Plaintiff’s
While it is troubling the appropriate parties with the Alabama Department of
Corrections never received or evaluated the Hepatitis C Treatment Referral Form completed and
submitted by Defendant Means in December of 201, and this breakdown in communication in
the medical process was not discovered until only recently, it is undisputed Plaintiff would not
have been a candidate for the program at that time, and there is no evidence to suggest Plaintiff’s
condition has worsened due to any lack of treatment.
Plaintiff’s disagreement with the medical treatment he has received does not present an
Eighth Amendment claim. As such, Defendants’ motion for summary judgment is due to be
granted and Plaintiff’s Eighth Amendment medical care claim is due to be dismissed. To the
extent Plaintiff is attempting to raise state law claims of medical malpractice or negligence, the
court declines to exercise supplemental jurisdiction, and those claims are due to be dismissed,
without prejudice, pursuant to 28 U.S.C. § 1367(c)(3).
It is squarely and emphatically within the “medical judgment” of the prison physician to
decide what treatment to order and when to change treatment protocols. The treatment provided
Plaintiff was based on the medical staffs’ knowledge and understanding of his disease and the
treatments available for it. “[W]hether government actors should have employed additional
diagnostic techniques or forms of treatment ‘is a classic example of a matter for medical
judgment’ and therefore not an appropriate basis for liability under the Eighth Amendment.”
Adams v. Poag, 61 F.3d 1537, 1545 (11th Cir. 1995).
Ultimately, Plaintiff’s complaint is that the physicians treating him have mistakenly
concluded that he is not at this point due to be placed in the Hepatitis C Treatment Program. The
medical record is clear, and Plaintiff does not dispute, that the medical staff at LCF has
monitored his condition, provided treatment for the consequences of his disease, and have
periodically assessed him for treatment alternatives. Essentially, his argument is that they should
do more. But this assertion attacks the staff’s medical judgment, and this court is ill-equipped to
second-guess that medical judgment, especially in light of Plaintiff’s inability to present expert
medical evidence that there are, in fact, available and effective treatment options. Plaintiff has
not made a showing that those treating him have been deliberately indifferent to his medical
Plaintiff is Not Entitled to Injunctive Relief
It is abundantly clear from the court’s discussion that Plaintiff is not entitled to any
monetary relief against these Defendants for denial of necessary medical care to this point in
time. Further, it is equally clear that Plaintiff is not entitled to any injunctive relief to compel
any of the Defendants to provide a certain type of medical treatment. In addition to the reasons
explained below (that show Plaintiff is not entitled to any recovery on the merits), the Rule 56
record shows that those Defendants Plaintiff has sued do not have any present authority to place
him into the Treatment Program. As noted above, the court is not equipped to second-guess the
medical judgments of the physicians who have not admitted Plaintiff into the Treatment
Program, or to require them to provide a medical treatment the court has no way of knowing is
useful, efficacious, and not harmful to Plaintiff. Thus, at this point in time, and based on the
Rule 56 facts as they now exist, Plaintiff cannot show any entitlement to declaratory or
Supplemental State Law Claims
Title 28, U.S.C. § 1367(c)(3) provides in pertinent part that, “The district courts may
decline to exercise supplemental jurisdiction over a claim under subsection (a) if . . . (3) the
district court has dismissed all claims over which it has original jurisdiction, . . ..” The court
declines to exercise supplemental jurisdiction over Plaintiff’s state law claims. Accordingly,
those claims should be dismissed, without prejudice, pursuant to 28 U.S.C. § 1367(c)(3).
By separate Order, the court will grant the motion for summary judgment by Defendants
and dismiss this action.
DONE and ORDERED on the 25th of September 2013.
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE
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