Pevia v. Wexford Health Source, Inc. et al
Filing
32
MEMORANDUM OPINION. Signed by Judge Ellen L. Hollander on 2/20/2018. (c/m 2/21/18 bas, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DONALD R. PEVIA,
*
Plaintiff
*
v.
*
Civil Action No. ELH-16-1950
WEXFORD HEALTH SOURCE, INC., et al., *
Defendants
*
********************************
DONALD R. PEVIA,
*
Plaintiff
*
v
*
Civil Action No. ELH-17-631
COMMISSIONER OF CORRECTIONS, et al., *
Defendants
*
***********
MEMORANDUM OPINION
This Memorandum Opinion resolves dispositive motions in two related civil rights cases
filed by Donald Pevia, the self-represented plaintiff. At the relevant time, he was incarcerated by
the State of Maryland at North Branch Correctional Institution (“NBCI”). He advised the Court
that on November 3, 2017, he was transferred to “WCI.” See ECF 12, Case ELH-17-631; ECF
31, Case ELH-16-1950.
In Case ELH-16-1950 (“Pevia I”), Pevia filed suit against Wexford Health Sources, Inc.
(“Wexford”), as well as Robustianno Barrera, M.D. and Mahboob Ashraf, M.D. (collectively, the
“Medical Defendants”).
In case ELH-17-631 (“Pevia II”), plaintiff filed suit against
Commissioner of Correction Dayena Corcoran, Assistant Warden Jeffrey Nines, and Sharon
Baucom, M.D. (collectively, the “Correctional Defendants”). In both cases, plaintiff, who was
born in 1981, claims that he was denied adequate medical care for treatment in regard to his
chronic Hepatitis C virus (“HCV”) infection, because of the delay in providing him with the
prescription of Harvoni.
Therefore, I shall consolidate the cases for review of dispositive
motions.
In Pevia I, the Medical Defendants have moved to dismiss or, in the alternative, for
summary judgment. ECF 18.1 The motion is supported by a memorandum of law (ECF 18-3)
(collectively, “Medical Motion”) and exhibits. Plaintiff opposes the Medical Motion. Id., ECF
23 & 24. The Medical Defendants have replied (id., ECF 27) and plaintiff has filed a surreply
(ECF 28), which the Medical Defendants have moved to strike. Id., ECF 29. Plaintiff opposes
the motion to strike. ECF 30.
In Pevia II, the Correctional Defendants have moved to dismiss or, in the alternative, for
summary judgment. ECF 10. It is supported by a memorandum of law (ECF 10-1) (collectively,
“Correctional Motion”) and exhibits. Plaintiff opposes the Correctional Motion. Id., ECF 11.
No hearing is necessary to resolve the motions. See Local Rule 105.6 (D. Md. 2016).
For the reasons that follow, defendants’ motions, construed as motions for summary judgment,
shall be granted.
I. Factual Background
A.
Pevia I
In Pevia I, the court previously summarized plaintiff’s complaint, as follows, ECF 12 at
1-2:
Plaintiff, a State inmate incarcerated at the North Branch Correctional
Institution (“NBCI”), filed a civil rights complaint against Wexford Health
Source[s], Inc., Dr. Ashraft [sic], and Dr. Barrea, alleging that defendants denied
him constitutionally adequate medical care when they failed to prescribe Harvoni
1
Citations are to the court’s electronic docket.
2
to treat plaintiff’s chronic Hepatitis C infection (“HCV”). ECF 1 at 1-3.
Plaintiff’s complaint, dated May 30, 2016, seeks damages as well as injunctive
relief. ECF 1 at 3. Accompanying his complaint is his motion for emergency
injunctive relief. ECF 2. [2]
Plaintiff indicates that in 2012, he began treatment for HCV with
Interpheron but did not tolerate the side effects of the treatment well and
discontinued same. Id. at 5. He states that he was advised by the chronic case
nurse ”Becca” that when he was ready to complete the treatment he could request
to resume same. ECF 1 at 1-3.
In 2015, plaintiff learned that Interpheron therapy had been discontinued
as the treatment for HCV and that a new treatment, Harvoni, was available. Id.
He was advised that Harvoni only required 6-8 weeks of treatment and had fewer
side effects. Id. Plaintiff requested to be provided Harvoni to treat his HCV. Id.
Several months passed with no treatment. Id. at 5-6. Plaintiff states that
during this time he began to experience symptoms of his HCV infection,
including soreness on his right side, yellowing of the eyes, and loss of energy. Id.
at 6. He wrote several sick calls slips requesting to be seen by medical staff but
they were not addressed. Id.
On May 9, 2016, plaintiff submitted an administrative remedy (“ARP”)
regarding the lack of treatment for his HCV. Id. Plaintiff was advised that the
prison was treating patients in order of those with the “highest level” beginning
with level 4; once all those at level 4 were treated the next highest level would be
treated. Id. Plaintiff expressed his concern that if medical staff waited to treat
him, by the time he would receive treatment he would be one of the highest levels
and would suffer greater damage to his liver. Id. at 6-7.
B.
Pevia II
Plaintiff reiterates his claims that the defendants have been deliberately indifferent to his
serious medical needs. Pevia II, ECF 1 at 5. He states that in 20133 he underwent a liver biopsy
due to suffering from HCV. Id. at 3. After the biopsy he began treatment with Interpheron, but
2
Plaintiff’s requests for injunctive relief were denied. Pevia I, ECF 12; ECF 13.
3
In Pevia I, plaintiff indicates he underwent a liver biopsy in 2012. In Pevia II, he claims
that he underwent the biopsy in 2013. The discrepancy is not material to the resolution of his
claim.
3
he needed to discontinue the medication due to side effects. In February of 2016,4 plaintiff
learned of new medications provided by Wexford to those suffering from HCV.
Plaintiff
inquired about receiving the new medication, Harvoni, but was advised that it could be two years
before he would be treated, as those with more severe symptoms needed to be treated first and
that approach was cost effective. Id. Additionally, plaintiff indicates that he exhausted his
administrative remedies regarding the denial of treatment with Harvoni. Id. at 4.
C.
Department of Public Safety and Correctional Services Protocol For
Treatment of HCV
1.
Development of Protocol
Defendants explain the development and clinical application of the protocol for HCV
infection control in several detailed declarations provided by Dr. Sharon Baucom, the Executive
Director of Clinical Services for the Maryland Department of Public Safety and Correctional
Services (“DPSCS”), and Dr. Robustiano Barrera, M.D., a licensed physician who is employed
by Wexford to provide services to inmates of DPSCS. See Pevia I, ECF 18-5 (Declaration of
Baucom, 1/26/15)5; Pevia II, ECF 10-2 (Declaration of Baucom, 7/25/17); ECF 10-3
(Declaration of Baucom, 7/25/17); Pevia I, ECF 18-6 (Declaration of Barrera, 4/18/17).
Since 2005, physicians and other personnel contracted by DPSCS have treated inmates
with HCV using protocols approved by the University of Maryland Institute of Human Virology
Specialist in Infectious Disease, as well as specialists from Johns Hopkins University. Pevia II,
ECF 10-2, ¶ 15. According to Dr. Baucom, Maryland leads most state correctional systems in
4
In Pevia I, plaintiff indicates he learned of Harvoni in 2015, while in Pevia II he states
he learned of Harvoni in 2016. The discrepancy is not material to the resolution of plaintiff’s
claim.
5
ECF 18-5 was previously submitted in the case of French v. Corizon, Inc., Civil Action
No. JFM-14-2263 (D. Md.).
4
the number of inmates who have been successfully treated for HCV using antiviral medication.
Id.
The grades of HCV are described in relation to necrosis/inflammation of the liver, as
follows: 1, minimal; 2, mild; 3, moderate; and 4, severe. Id. The levels of “staging” are
described in regard to scarring of the liver, as follows: 1- no scarring; 2- mild scarring; 3moderate scarring; and 4- severe scarring “cirrhosis.” Pevia I, ECF 18-6 ¶ 11; Pevia II, ECF 103, ¶ 8.
In 2007, DPSCS hired a University of Maryland Medical System (“UMMS”) infectious
disease specialist to develop guidelines for the care of HCV and HIV positive inmates. Pevia II,
ECF 10-2, ¶ 17. The same specialist was contracted by Wexford in 2011 to continue to provide
guidance and input regarding HCV as well as other infectious diseases. Id. The DPSCS
guidelines for HCV are formulated by the specialist, with medication reviews and contract
negotiations by a clinical pharmacologist who holds a doctorate in Pharmacology and is
employed by Correct RX, the pharmacy vendor. Id. Together they review the recommendations
made with the DPSCS Medical Director, the Infection Control Director of Wexford, and the
infection control nursing staff, who facilitate the adoption of the policy changes as part of
DPSCS’s policy and procedures. Id. Baucom participates in the Pharmacy and Therapuetic
Committee that reviews the recommendations for new HCV medication and the indicators for
their application in the system. Id.
In January 2011, DPSCS issued an update to the policy regarding HCV infection control.
Pevia I, ECF 18-4 (DPSCS Clinical Services “Infection Control Manual,” Chapter 2, “Medical
Management Of Hepatitis”); id., ECF 18-5, ¶ 4; Pevia II, ECF 10-2, ¶ 4. The policy provides
that once an inmate tests positive for HCV, the inmate is to be enrolled in a Chronic Care Clinic
5
(“CCC”) for education, medical evaluation, and treatment. Pevia I, ECF 18-4, at 1, ¶ I; Id., ECF
18-6, ¶ 5; Pevia II, ECF 10-2,¶ 4; Id., ECF 10-3, ¶ 4. The policy also provides that the inmate is
to receive Hepatitis A and B vaccines and counselling on the nature, potential effects, and
management of HCV. Pevia I, ECF 18-4, at 2, ¶¶ D & E; id., ECF 18-6, ¶ 5; Pevia II, ECF 103, ¶ 4.
Antiviral drug therapy treatments for HCV are evaluated and considered by a DPSCS
HCV Panel (the “Panel”). Pevia II, ECF 10-2, ¶ 5. The Panel is composed of the Wexford
Regional Medical Directors, site specific providers/inspection control nurse support staff,
statewide medical and mental health providers for Wexford, employees of MHM (the contractor
of mental health services), the statewide clinical pharmacologist from Correct RX, the statewide
epidemiologist for Wexford. and the Wexford statewide infectious disease specialist. Pevia I,
ECF 18-5, ¶ 5; Id., ECF 18-6, ¶ 7; Pevia II, ECF 10-2, ¶ 5. Non-medical correctional personnel,
including the Secretary of DPSCS and the wardens of individual institutions, do not play an
active role in the decisions of the Panel. Pevia II, ECF 10-2, ¶ 14.
The Panel is chaired by Wexford’s infectious disease specialist. Pevia II, ECF 10-2, ¶ 6.
It is facilitated by Wexford’s statewide epidemiologist and Wexford’s statewide medical
director. Id. Baucom does not participate directly in panel activities. Pevia II, ECF 10-2, ¶ 5.
DPSCS’s representation on the Panel is limited to a registered nurse whose presence is designed
to insure adherence to mandated testing, laboratory work, vaccinations, etc., which by policy are
required to be completed before an inmate may be reviewed by the Panel for treatment. Id. ¶ 6.
The infectious disease specialist and the HCV Panel participants determine whether to treat HCV
infected inmates, including whether to biopsy the inmate’s liver, without Dr. Baucom’s
influence. Id., ¶ 16. However, Dr. Baucom provides insight into the policy and procedures that
6
govern the process. Id. She reviews any audits completed by the DPSCS nurses who sit on the
Panel. Id.
Further, Dr. Baucom avers that her influence, as it relates to policy, cost, and other
system approaches, has permitted the contracting staff to be more aggressive in offering new
drug therapies, as the cost for the HCV medication is carried on the DPSCS pharmacy budget,
not the medical contractor’s costs. Id. She also asserts that the DPSCS treats inmates with
newer HCV drugs more than other comparable correctional state systems. Id.
The DPSCS Pharmacy and Therapeutic Committee is chaired by Correct RX’s statewide
clinical pharmacist and co-chaired by DPSCS Executive Director of Clinical Services. Pevia II,
ECF 10-2, ¶ 7. Committee members include the regional medical directors for Wexford, the
Wexford statewide medical director, the MHM statewide psychiatrist, regional clinical
pharmacists from Correct RX, and statewide nursing directors for DPSCS and Wexford. Id. The
committee develops and approves additions or deletions from the formulary, which includes
medication to treat HCV. Id.
The DPSCS Pharmacy and Therapeutic Committee evaluates different medications and
treatments for infectious diseases, including HCV, for use within DPSCS. Pevia, II, ECF 10-2,
¶¶ 7, 8, 14. To that end, the pharmacy vendor has met with companies producing newer HCV
medications to determine additional clinical treatment option combinations and in order to solicit
discount pricing. Pevia II, ECF 10-2, ¶ 13. Notably, “on a case-by-case basis,” there are
“exceptions to the recommendations” for treatment of inmates. Id. ¶ 9.
Policies to be implemented by DPSCS for the treatment of infectious diseases, including
HCV, are drafted by the contractors for Medical and Pharmacy, an infectious disease specialist
consultant for Wexford, and the statewide clinical pharmacologist for Correct RX, for review by
7
the DPSCS Executive Director of Clinical Services. Pevia II, ECF 10-2, ¶ 8. Together they
research the policies of other states, the Centers for Disease Control, the Federal Bureau of
Prisons, and community standard references. Id. Rationales for their recommendations are
provided. Id. Where a policy is drafted concerning the use of new drugs, as in the case of any
other directive or policy, the proposal is circulated for comment among all other contractor
representatives, and their input is solicited and evaluated before the final draft is adopted and
made effective. Id.
Dr. Baucom avers that as a member of the Pharmacy and Therapeutic Committee she
assists in making the final decision for approval or denial of new HCV medications or treatment.
Pevia II, ECF 10-2, ¶ 10. These decisions are made by following the guidelines formulated in
the policy created by the combined expert resources of the contractors who comprise the Panel.
Id. However, Dr. Baucom retains “the authority to request second opinions or considerations
from other sources if not included as sources of treatment protocols including the policy on HCV
therapy provided by the Maryland Department of Health and Mental Hygiene, the Veterans
Administration,” or a state with similar “demographics regarding the correctional population.”
Id. ¶ 11.
Exceptions to the recommendations made in the policies regarding antiviral therapies
may be warranted and may be presented to Dr. Baucom, on a “case-by-case basis,” by the
Wexford infectious disease specialist consultant and the Correct RX statewide clinical
pharmacologist, on post-panel review, to alert Dr. Baucom to circumstances regarding a specific
inmate’s condition that may require an exception to the policy. Pevia II, ECF 10-2, ¶ 9.
Although Dr. Baucom does not overrule the decision, she may provide additional input or
request additional documentation from a risk management perspective. Id.
8
Further, Dr. Baucom advises that DPSCS has a census of over 2,000 known HCV
infected inmates and treats more patients for HCV disease than a majority of states. Pevia II,
ECF 10-2, ¶ 12. She indicates that, in addition to utilizing the expertise of those who originated
the Maryland DPSCS HCV policy, the Panel has worked with other correctional systems to
identify a policy that allows for a stratification of treatment options. Id. Baucom notes that the
Federal Bureau of Prisons developed a protocol specifically for the new HCV regimens which
prioritized for treatment the most severely impacted patients, based upon several diagnostic
principles. Id. DPSCS apparently adopted a similar protocol and, once the most critical cases
were addressed, DPSCS expanded the priority groups. Id. Baucom avers that the newer HCV
medications are provided to the most severe cases and there are plans to expand the opportunity
to inmates who are non-responders or relapsers with various levels of moderate fibrosis. Id., ¶
14.
The medical experts aver that, given the potential side effects and expense of antiviral
therapy, it is not appropriate to begin antiviral therapy for genotype 1 HCV based solely upon a
positive test for HCV, when no clinical symptoms exist. Pevia I, ECF 18-6, ¶ 7; Pevia II, ECF
10-3, ¶ 6. An inmate with a HCV genotype I must have a liver biopsy in order to obtain antiviral
treatment. Pevia I, ECF 18-6, ¶ 5. Drs. Barrera and Baucom aver that a person infected with
HCV, particularly genotype 1, may not know he/she is infected or manifest adverse symptoms.
Pevia I, ECF 18-6, ¶ 6; Pevia II, ECF 10-3, ¶ 5. Indeed, they claim that many individuals
continue for years, if not indefinitely, without manifesting adverse symptoms. Id. Therefore,
unless an inmate’s HCV infection has progressed to a point where antiviral treatment is deemed
medically necessary, the inmate is simply monitored in the CCC. Id. When the condition is in
an acute stage the patient may report a spectrum of symptoms, including a general feeling of
9
lethargy, loss of appetite, nausea, vomiting, diarrhea, muscle aches, and abdominal discomfort.
Pevia II, ECF 10-3, ¶ 5.
Inmates who are eligible for antiviral drug treatment may be asked to undergo laboratory
blood tests, as well as a consultation with a gastrointestinal (GI) or infectious disease (ID)
specialist, if a liver biopsy and antiviral therapy are under consideration. Pevia I, ECF 18-4 at 4,
¶ E.5 & F; ECF 18-6, ¶ 5; Pevia II, ECF 10-3, ¶ 4. However, inmates who test positive for HCV
genotype 2 or 3, and inmates who are co-infected with HCV and the human immunodeficiency
virus (“HIV”), are not required to undergo a liver biopsy before beginning antiviral treatment.
Pevia I, ECF 18-4, ¶ F.3; Id. ECF 18-6, ¶ 5; Pevia II, ECF 10-3, ¶ 4. All other HCV positive
inmates must have a liver biopsy prior to beginning antiviral treatment, unless the ID/GI
specialist recommends an alternative assessment tool. Pevia I, ECF 18-4, ¶ F.3.c.; ECF 18-6, ¶
5. The liver biopsy is used to determine the status of the inmate’s HCV infection and the
appropriate course of treatment. Pevia I, ECF 18-6, ¶ 6; Pevia II, ECF 10-3, ¶ 5. If a patient
refuses a liver biopsy, antiviral therapy will not be pursued. Pevia I, ECF 18-4 at 6, ¶ G.3.d; Id.,
Pevia II, ECF 10-3, ¶ 5.
The inmate’s liver biopsy is reviewed by the Panel. Pevia II, ECF 10-3, ¶ 6. If the Panel
determines the biopsy indicates the patient is at a stage of infection where antiviral therapy is
warranted, the Panel must approve a specific antiviral therapy regimen and determine when it
will be administered. Pevia I, ECF 18-6, ¶ 7. Antiviral therapy will be approved if the “panel
determines: a) the biopsy indicates the patient is at a stage of infection warranting antiviral
therapy; b) approves going forward with a specific antiviral therapy regimen; and c) establishes
the prioritization of the therapy.” Pevia II, ECF 10-3, ¶ 7.
According to Dr. Barrera, the use of antiviral medication to treat chronic HCV infection
10
has two goals. Pevia I, ECF 18-6, ¶ 8. The first goal “is to achieve sustained eradication of
HCV, which is defined as the persistent absence of HCV RNA in serum six months or more after
completing antiviral treatment. The second is to prevent progression to cirrhosis, hepatocellular
carcinoma, and decompensated liver disease requiring liver transplantation.” Id. The panel has
evaluated and continues to evaluate different medications and treatments for HCV for use within
the DPSCS system. Id., ¶¶ 10-11.
Dr. Barrera indicates that Pegylated Interferon, as a modified form of alpha interferon, in
which polyethylene glycol is added and which is taken weekly in a dosage based on body
weight, and Ribavirin, which is an oral antiviral usually taken twice a day, and which is also
dosed by body weight, were the primary HCV treatments approved for system-wide use by
DPSC. Pevia I, ECF 18-6, ¶ 10. The efficacy of Pegylated Interferon and Ribavirin vary from
patient to patient.
Id., ¶ 8.
Dr. Baucom confirms that at the time relevant to plaintiff’s
Complaint, Pegylated Interferon/Ribavirin, which she describes as a widely used treatment for
HCV, was the primary HCV approved drug regimen for use throughout DPSCS. Pevia II, ECF
10-2, ¶ 14.
Within DPSCS, Harvoni has been available for inmates since 2012, “but only on a case
by case basis.” Pevia II, ECF 10-3, ¶ 8; Pevia I, ECF 18-6, ¶ 11. At the relevant time, the
approval of the non-formulary HCV medication was not through DPSCS, but rather through the
Panel. Pevia II, ECF 10-2, ¶ 17.
Dr. Baucom explains that the new medications are formulary exceptions “approved by
committee” and are only ordered by the HCV infectious disease specialist contracted by
Wexford after the inmate undergoes “face to face” counseling with the clinical pharmacist for
Correct RX. Pevia II, ECF 10-2, ¶13. She states, id.: “Once a final protocol decision is made
11
regarding the new HCV antiviral treatment medications, the Maryland State Legislature then
must approve appropriate funding and resources to DPSCS so [that] the system-wide treatment
can be implemented.” Id. Notwithstanding the foregoing, the option to use a new medication is
available to the Wexford infectious disease specialist who makes those determinations on “a
case-by-case basis.” Pevia II, ECF 10-2, ¶ 13.
Additionally, defendants explain that the Panel has worked to stratify the inmate HCV
population and treatment options. Id., ECF 18-4 at 11-12; Id., ECF 18-5, ¶ 12; Id., ECF 18-6, ¶
11; Pevia II, ECF 10-3, ¶ 8. Baucom states that 25% of HCV infections clear over time and that
various genotypes modify either the responses to the new drug or contraindicate its use. Pevia II,
ECF 10-2, ¶ 14. Drs. Barrera and Baucom assert that in 2015, the Panel began treating inmates
with more advanced grade and stage levels of HCV and then began working to treat less
advanced grade and stage levels. Pevia I, ECF 18-6, ¶ 11; Pevia II, ECF 10-3, ¶ 8. Inmates
presenting with the most severe stage of HCV, i.e., stages 3 and 4, were prioritized for treatment.
Pevia I, ECF 18-6, ¶ 11.
Dr. Baucom indicates that over 300 inmates are in categories outside of severe fibrosis
and their cases are evaluated using the same priority rating and genotype considerations. Pevia
II, ECF 10-2, ¶ 14. She explains that an inmate with the most severe fibrosis level will be
prioritized for treatment and that this treatment model, like most health insurance companies,
relies on a number of variables, including cost model analysis, as well as consideration of
additional medications that may alter approaches to treatment. Id.
In February of 2016, DPSCS’s antiviral policy was revised to include Harvoni as a
treatment option. Pevia I, ECF 18-4 at 11, 16; ECF 18-6, ¶ 11; Pevia II, ECF 10-2, ¶¶ 13 & 14.
Since the late spring of 2016, inmates presenting at stage 2 began to be considered for alternative
12
antiviral therapy regimens. Pevia I, ECF 18-6, ¶ 11; Pevia II, ECF 10-3, ¶ 8. Plaintiff filed
Pevia I on June 8, 2016. ECF 1.
DPSCS policy provides: “Patients who are currently in treatment with Peg-interferon and
Ribavirin alone will complete their regimen. Those patients who do not achieve a sustained
virologic response (SVR) at 24 weeks post-treatment may qualify for retreatment with a more
potent regimen.” Pevia II, ECF 10-3, ¶ 8; ECF 10-2 at 12, § E.
Wexford specialists, not DPSCS employees, are responsible for determining which
patients who do not achieve an SVR may qualify for retreatment with a more potent regimen.
Pevia II, ECF 10-3, ¶ 8. Wexford employees identify inmates for therapy and track and monitor
their conditions via the CCC, as directed by the guidelines adopted for HCV. Pevia II, ECF 102, ¶ 18.
Medical contractors identify inmates with HCV, review the cases against the
protocols/guidelines, and refer the cases to the Panel for treatment consideration. Id., ¶ 19. The
infectious disease specialist, as a member of the Panel, may evaluate the inmate along with the
referring provider who then has the responsibility for presenting the case to the Panel. Id. The
final disposition regarding treatment, however, rests with the Panel alone. Id.
Inmates who request to be treated with new HCV medications can be referred to the
Wexford infectious disease consultant for education and for consideration of treatment prior to
Panel assessment. But, in order to receive the medication, the Panel process must be completed.
Pevia II, ECF 10-2, ¶ 18. The Wexford infectious disease consultant does not deny an inmate
HCV therapy; rather the inmate’s case is reviewed by the HCV Panel. Id.
Plaintiff claims that the policy is inappropriate as it was based on the financial needs of
the institution, which he claims is an improper factor for determining medical treatment. Pevia I,
ECF 23 at 10. In his view, references to financial considerations were taken out of the HCV
13
policy manual after he filed this case. Id.; Pevia II, ECF 11 at 3.
2.
Plaintiff’s Treatment
Plaintiff has a medical history significant for HCV, hypertension, shoulder pain and
dislocation. Pevia I, ECF 18-6, ¶ 4; see also ECF 18-7 (plaintiff’s relevant medical records).
Plaintiff was evaluated by Dr. Ashraf on January 20, 2016, at the CCC for evaluation of his HCV
status. Id., ECF 18-7, at 1-2. The evaluation was negative for abdominal distension, abdominal
pain, blood in his stool, bruising, fever, jaundice, lethargy, melena (dark sticky feces), nausea,
pruritus, sleep pattern changes, sweats/chills, tremors, vomiting, weight gain or loss.
Id.
Plaintiff’s medical records further reflect that while plaintiff had begun antiviral treatment, he
discontinued same after the third injection. Id. Plaintiff’s examination was unremarkable and he
was scheduled to return to the HCV CCC in three months. Id. at. 2.
On April 11, 2016, plaintiff was evaluated by Dr. Ashraf in the CCC for regular
evaluation of his HCV status. Id. at 6-8. It was again noted that plaintiff had signed off on
antiviral therapy after his third treatment. Id. at 6. He was educated on the risks of signing off
on treatment. Id. He denied any fatigue or tiredness and the examination was negative for
abdominal distension, abdominal pain, blood in stool,6 bruising, fever, jaundice, lethargy,
6
Plaintiff disputes this notation. He states that he has evidence that he submitted a sick
call slip and was seen by Dr. Ashraf on this date due to blood in his stool. Pevia I, ECF 24 at 3,
5; id., ECF 24-2 at 1. The documents provided by plaintiff demonstrate that as a result of his
complaints, plaintiff was seen by Amy Booth, R.N. (not Ashraf as he alleges), and provided
stool cards and Colace due to his complaints of bleeding due to dry stool. Id., ECF 24-2 at 2-3;
Pevia II, ECF 11 at 6-7. Plaintiff generally alleges that no matter what an inmate says during a
CCC visit, it is noted as “no complaint.” Pevia I, ECF 24 at 6.
Plaintiff also alleges that his medical records have been falsified in that he did exhibit
signs and symptoms of chronic HCV infection. Pevia II, ECF 11. He provided an Affidavit
from his cellmate, Shawn Johnson, who claims that on May 12, 2016, he overheard Monica,
described as a “medication medical personal,” respond to plaintiff’s inquiry regarding his lack of
14
melena, nausea, pruritus, sleep pattern changes, sweats/chills, tremors, vomiting, or changes in
weight. Id. Plaintiff was scheduled to return to the clinic in three months. Id. at 8.
Plaintiff requested approval of Harvoni treatment. Pevia I, ECF 18-7 at 9. His biopsy
showed G2 S2 fibrosis, which Dr. Baucom and Dr. Barrera describe as a mild disease level.
Pevia II, ECF 10-3, ¶ 8 (Baucom Declaration, stating that on June 16, 2016, “[t]he Plaintiff
presented with a biopsy proven G2 S2 fibrosis which is considered a mild disease level. . . .”);
Pevia I, ECF 18-6, ¶ 9 (Barrera Affidavit, describing plaintiff’s biopsy as placing him at G2 S2).
Because plaintiff presented with a G 2S2 level, he was considered for reevaluation in
June 2016. ECF 18-6, ¶ 11. On June 16, 2016, Pevia was seen at a Telemed conference by Dr.
Wolde-Rufael, head of the statewide DPSCS Panel and an infectious disease specialist at the
UMMS. Pevia I, ECF 17-6, ¶ 7. At the conference, plaintiff’s medical records were reviewed.
The review of plaintiff’s records indicated that plaintiff was diagnosed with HCV in
2010, prior to his incarceration. Pevia I, ECF 18-7 at 9. A confirmatory test was completed on
January 31, 2012. Id. Plaintiff was genotyped 1A on April 19, 2012, and he had a viral load of
234,786 on October 19, 2012. Plaintiff’s liver biopsy, conducted on December 13, 2012, placed
him at Grade 2, Stage 2.7 As noted, Grade 2 is deemed “mild” and Stage 2 means “mild
scarring.” Further, plaintiff began Pegylated/Ribavirin therapy, but it was discontinued after
treatment as “cause that shit cost too much.” Pevia II, ECF 11 at 1; Pevia I, ECF 23-1 at 15.
Johnson also claims to have observed, on unspecified days, the side effects of plaintiff’s HCV,
including that plaintiff was too weak to do his daily everyday activities. He states that plaintiff
would lay in his bunk complaining of his rib area, had no appetite, and that on some days
plaintiff’s urine had a strong odor. Id.
7
The notes from the Telemed conference held on June 22, 2016, and June 27, 2016, note
the grade and stage of plaintiff’s liver as G2 S3 in the first paragraph, referring to reason for
visit. ECF 18-7 at 10-11. The notes from June 22, 2016, refer to plaintiff’s grade and stage as
G2 S2 in the second paragraph. The reference to G2 S3 appears to be an error as the grade and
stage is not referred to in that manner in any other documents.
15
three weeks, due to side effects. Pevia I, ECF 18-7 at 9. There was no known alcohol or illicit
drug use by plaintiff in the preceding year. Additionally, it was noted that he had completed the
Twinrix8 series and tested negative for HIV on September 10, 2012. Id.
Plaintiff was again seen by Dr. Wolde-Rufael via Telemed conference on June 22, 2016,
in order to prescreen plaintiff as a candidate for Harvoni treatment. Id. at 10. Plaintiff was
advised of the new HCV treatment guidelines and the prioritization of HCV treatment. He was
counselled on the outcome, duration, and potential side effects of treatment with Harvoni. He
was directed to avoid alcohol, intravenous drug use, substance abuse, as well as tattoos. Id.
On June 27, 2016, plaintiff was again seen by Dr. Wolde-Rufael via a Telemed
conference.
Notably, plaintiff was advised that the Panel had approved him for Harvoni
treatment. Id. at 11. Instructions were given to obtain a baseline viral load before beginning
treatment. Id.
Plaintiff was seen by Krista Bilak, R.N.P., on July 2, 2016, at the CCC for regular
evaluation of his HCV status. Pevia I, ECF 18-7 at 12-14. Plaintiff’s physical examination was
unremarkable. Id. It was noted that he had no symptoms of abdominal distension, abdominal
pain, blood in stool, bruising, fever, jaundice, lethargy, melena, nausea, pruritus, sleep pattern
changes, sweats/chills, tremors, vomiting, or change in weight. Id. However, Pevia reported a
knee injury (id. at 13), and management of both his hypertension and HCV were addressed. Id.
Pevia was scheduled to return to the CCC in three months. Id.
Plaintiff’s chart was updated on July 6, 2016, to reflect that he was approved for Harvoni
treatment. Pevia I, ECF 18-7 at 15. That same date, the pharmacist cleared plaintiff regarding
any drug interactions and approved Harvoni. Id. at 16-17. Plaintiff’s chart was again updated on
8
Twinrix is described by Dr. Barrera as the vaccination series for Hepatitis A and B.
Pevia I, ECF 18-6, ¶ 13.
16
August 3, 2016, to reflect that he had completed four of the twelve weeks of Harvoni treatment,
without significant side effects. Id. at 18.
Nurse Bilak saw plaintiff in the CCC on October 6, 2016, as to his HCV status. Pevia I,
ECF 18-7 at 19-21. Plaintiff’s examination was again unremarkable. Id. at 19. Plaintiff denied
side effects from Harvoni and indicated his compliance with the medication. He was scheduled
to return to the CCC in three months. Id. at 21.
Dr. Ashraf evaluated plaintiff at the CCC on February 16, 2017, in regard to his HCV
status. Pevia I, ECF 18-7 at 22-24. At that time, plaintiff had completed his Harvoni treatment
and was in stable condition for HCV. Id. Examination was again unremarkable. Id. He was
scheduled to return to the clinic in three months. He continues to be monitored regularly by
medical personnel in the chronic care clinic for his HCV status. Pevia I, ECF 18-6, ¶ 15. He has
access to more immediate care through the use of the sick call process. Id.
Plaintiff claims that when his blood work was done it showed that his “levels had risen
from when he stopped the Interpheron in 2013, which shows that [he] went unnecessarily
untreated for 3 year until he filed his injunction.” Pevia I, ECF 23 at 11. Further, he claims that
he suffered unnecessarily when he “went sick for days when he would start feeling symptoms of
the HCV.” Id. He also claims that he placed his cellmate at risk for contracting HCV. Id.
Drs. Barrera and Baucom each aver that, in their respective opinions, and to a reasonable
degree of medical probability, plaintiff “suffered no significant harm” from the decision to
implement Harvoni treatment after utilizing Pegylated Interferon and prioritizing the treatment of
stage 3 and stage 4 patients. Pevia I, ECF 18-6, ¶ 11; Pevia II, ECF 10-3, ¶ 8. Drs. Barrera and
Baucom further state that, to a reasonable degree of medical probability, plaintiff received
appropriate treatment for his HCV infection. Pevia I, ECF 18-6, ¶ 15; Pevia II, ECF 10-3, ¶ 9.
17
D.
Administrative Process
Plaintiff filed ARP NBCI 1029-16 on May 7, 2016, complaining that Dr. Ashraf and
Wexford were deliberately indifferent to his medical care because he had not been treated with
Harvoni. Pevia II, ECF 10-4 at 8-9. The ARP was investigated and on June 5, 2016, Assistant
Warden Nines, acting as the Warden’s designee responded as follows, id. at 8:
Our review of your administrative remedy has been completed and your case has
been dismissed in accordance with DCD 185-001. Specifically, you claim that
you are not receiving proper Hepatitis C treatment. An investigation revealed that
per the DPSCS clinical services manual, the DPSCS infectious disease clinician in
conjunction with the DPSCS HCV panel may choose to prioritize treatment based
on available resources. As your biopsy results indicate that you have grade 2 stage
2 liver disease, you are not prioritized as a candidate for Harvoni treatment at this
time. Furthermore, it is noted that you were started on Hepatitis treatment in
January of 2013 and signed off of treatment after 3 treatments related to side
effects of medication. You continue to be monitored though the sick call process
and through chronic care. Your administrative remedy allegations are without
merit.
Assistant Warden Nines and Dayena Corcoran, Commissioner of the Division of
Correction for DPSCS, aver that medical services for inmates at NBCI are provided by private
medical contractors. Pevia II, ECF 10-5 (Nines Declaration), ¶ 2 and ECF 10-6 (Corcoran
Declaration), ¶ 2. They aver that they had no personal involvement in the provision of medical
care to any inmate. Id. Indeed, they claim that they have no authority to make decisions
regarding any inmate’s medical care, nor the authority to order or recommend the contractor’s
medical staff to perform any particular medical procedure or to render any particular treatment.
Id. Nines and Corcoran confirm that neither is licensed to practice medicine and that they
generally defer to the expertise of the medical staff regarding the medical care and treatment of
inmates. Id. Corcoran advises that she has no responsibility under the medical company’s
contract to monitor the provision of medical services to inmates. Pevia II, ECF 10-6, ¶ 2.
An inmate may fill out a sick call slip to seek medical care. Pevia II, ECF 10-5, ¶ 2. The
18
sick call is collected and reviewed by the private medical contractor who is responsible for
scheduling appointment dates and times. Id. When reviewing an inmate’s complaint about
medical care, Nines and his staff rely on the reports, assessment, and judgment of the trained
medical staff. Id. Nines avers that he did not interfere with, hinder, or delay medical treatment
or care to plaintiff. Id.
When reviewing an inmate’s complaint about medical care, Corcoran avers that she, too,
relies on the reports, assessments, and judgment of trained medical staff to prepare any response
to the complaint. Pevia II, ECF10-6, ¶ 2. She relies upon medical staff’s expertise as well as
expertise of the Medical Director for DPSCS for the reasonableness of treatment as well as for
compliance with policies and directives. Id.
II. Standard of Review
Defendants’ motions are styled as motions to dismiss under Fed. R. Civ. P. 12(b)(6) or, in
the alternative, for summary judgment under Fed. R. Civ. P. 56. A motion styled in this manner
implicates the court’s discretion under Rule 12(d) of the Federal Rules of Civil Procedure. See
Kensington Vol. Fire Dept., Inc. v. Montgomery County, 788 F. Supp. 2d 431, 436-37 (D. Md.
2011). Ordinarily, a court “is not to consider matters outside the pleadings or resolve factual
disputes when ruling on a motion to dismiss.” Bosiger v. U.S. Airways, 510 F.3d 442, 450 (4th
Cir. 2007). However, a court, in its discretion, may consider matters outside of the pleadings,
pursuant to Rule 12(d). If the court does so, “the motion must be treated as one for summary
judgment under Rule 56,” but “[a]ll parties must be given a reasonable opportunity to present all
the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d); see Adams Housing, LLC v.
The City of Salisbury, Maryland, 672 Fed App’x. 220, 222 (4th Cir. 2016) (per curiam). But,
when the movant expressly captions its motion “in the alternative” as one for summary
19
judgment, and submits matters outside the pleadings for the court’s consideration, the parties are
deemed to be on notice that conversion under Rule 12(d) may occur; the court “does not have an
obligation to notify parties of the obvious.” Laughlin v. Metro. Wash. Airports Auth., 149 F.3d
253, 261 (4th Cir. 1998).
A district judge has “complete discretion to determine whether or not to accept the
submission of any material beyond the pleadings that is offered in conjunction with a Rule
12(b)(6) motion and rely on it, thereby converting the motion, or to reject it or simply not
consider it.” 5 C WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE § 1366, at 159 (3d ed.
2004, 2011 Supp.). This discretion “should be exercised with great caution and attention to the
parties’ procedural rights.” Id. at 149. In general, courts are guided by whether consideration of
extraneous material “is likely to facilitate the disposition of the action,” and “whether discovery
prior to the utilization of the summary judgment procedure” is necessary. Id. at 165, 167.
Ordinarily, summary judgment is inappropriate “where the parties have not had an
opportunity for reasonable discovery.” E.I. du Pont De Nemours and Co. v. Kolon Industries,
Inc., 637 F.3d 435, 448-49 (4th Cir. 2012); see Putney v. Likin, 656 Fed. App’x 632, 638 (4th
Cir. 2016); McCray v. Maryland Dep’t of Transportation, 741 F.3d 480, 483 (4th Cir. 2015).
However, “the party opposing summary judgment ‘cannot complain that summary judgment was
granted without discovery unless that party has made an attempt to oppose the motion on the
grounds that more time was needed for discovery.’” Harrods Ltd. v. Sixty Internet Domain
Names, 302 F.3d 214, 244 (4th Cir. 2002) (quoting Evans v. Techs. Applications & Serv. Co., 80
F.3d 954, 961 (4th Cir. 1996)). To raise adequately the issue that discovery is needed, the nonmovant typically must file an affidavit or declaration pursuant to Rule 56(d) (formerly Rule
56(f)), explaining why, “for specified reasons, it cannot present facts essential to justify its
20
opposition,” without needed discovery. Fed. R. Civ. P. 56(d); see Harrods, 302 F.3d at 244-45
(discussing affidavit requirement of former Rule 56(f)).
“[T]o justify a denial of summary judgment on the grounds that additional discovery is
necessary, the facts identified in a Rule 56 affidavit must be ‘essential to [the] opposition.’”
Scott v. Nuvell Fin. Servs., LLC, 789 F. Supp. 2d 637, 641 (D. Md. 2011) (alteration in original)
(citation omitted). A non-moving party’s Rule 56(d) request for additional discovery is properly
denied “where the additional evidence sought for discovery would not have by itself created a
genuine issue of material fact sufficient to defeat summary judgment.” Strag v. Bd. of Trs.,
Craven Cmty. Coll., 55 F.3d 943, 954 (4th Cir. 1995); see Amirmokri v. Abraham, 437 F. Supp.
2d 414, 420 (D. Md. 2006).
If a non-moving party believes that further discovery is necessary before consideration of
summary judgment, the party fails to file a Rule 56(d) affidavit at his peril, because “‘the failure
to file an affidavit . . . is itself sufficient grounds to reject a claim that the opportunity for
discovery was inadequate.’” Harrods, 302 F.3d at 244 (citations omitted). But, the non-moving
party’s failure to file a Rule 56(d) affidavit cannot obligate a court to issue a summary judgment
ruling that is obviously premature. Although the Fourth Circuit has placed “‘great weight’” on
the Rule 56(d) affidavit, and has said that a mere “‘reference to Rule 56(f) [now Rule 56(d)] and
the need for additional discovery in a memorandum of law in opposition to a motion for
summary judgment is not an adequate substitute for [an] affidavit,’” the appellate court has “not
always insisted” on a Rule 56(d) affidavit. Id. (internal citations omitted).
According to the Fourth Circuit, failure to file an affidavit may be excused “if the
nonmoving party has adequately informed the district court that the motion is premature and that
more discovery is necessary” and the “nonmoving party’s objections before the district court
21
‘served as the functional equivalent of an affidavit.’” Harrods, 302 F.3d at 244-45 (internal
citations omitted); see also Putney, 656 Fed. App’x at 638; Nader v. Blair, 549 F.3d 953, 961
(4th Cir. 2008). Moreover, “[t]his is especially true where, as here, the non-moving party is
proceeding pro se.” Putney, 656 Fed. App’x at 638.
Plaintiff has not sought discovery. The defendants and plaintiff have submitted numerous
exhibits. I am satisfied that it is appropriate to address defendants’ motions as ones for summary
judgment, because it will facilitate resolution of this case.
Summary judgment is governed by Fed. R. Civ. P. 56(a), which provides, in part: “The
court shall grant summary judgment if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” The Supreme Court
has clarified that this does not mean that any factual dispute will defeat the motion. “By its very
terms, this standard provides that the mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247-48 (1986) (emphasis in original). A fact is “material” if it “might affect the
outcome of the suit under the governing law.” Id. at 248. There is a genuine issue as to material
fact “if the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id.; see Sharif v. United Airlines, Inc., 841 F.3d 199, 2014 (4th Cir. 2016); Raynor v.
Pugh, 817 F.3d 123, 130 (4th Cir. 2016); Libertarian Party of Va. v. Judd, 718 F.3d 308, 313
(4th Cir. 2013).
Notably, “[a] party opposing a properly supported motion for summary judgment ‘may
not rest upon the mere allegations or denials of [his] pleadings,’ but rather must ‘set forth
specific facts showing that there is a genuine issue for trial.’” Bouchat v. Baltimore Ravens
22
Football Club, Inc., 346 F.3d 514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed. R.
Civ. P. 56(e)), cert. denied, 541 U.S. 1042 (2004). The court should “view the evidence in the
light most favorable to . . . the nonmovant, and draw all reasonable inferences in her favor
without weighing the evidence or assessing the witnesses’ credibility.” Dennis v. Columbia
Colleton Med. Ctr., Inc., 290 F.3d 639, 645 (4th Cir. 2002); see Roland v. United States
Citizenship & Immigration Servs., 850 F.3d 625, 628 (4th Cir. 2017); Lee v. Town of Seaboard,
863 F.3d 323, 327 (4th Cir. 2017); FDIC v. Cashion, 720 F.3d 169, 173 (4th Cir. 2013).
The district court’s “function” is not “to weigh the evidence and determine the truth of
the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at
249; accord Guessous v. Fairview Prop. Inv., LLC, 828 F.3d 208, 216 (4th Cir. 2016). Thus, the
trial court may not make credibility determinations on summary judgment. Jacobs v. N.C.
Administrative Office of the Courts, 780 F.3d 562, 569 (4th Cir. 2015); Mercantile Peninsula
Bank v. French, 499 F.3d 345, 352 (4th Cir. 2007); Black & Decker Corp. v. United States, 436
F.3d 431, 442 (4th Cir. 2006); Dennis, 290 F.3d at 644-45. Therefore, in the face of conflicting
evidence, such as competing affidavits, summary judgment is generally not appropriate, because
it is the function of the fact-finder to resolve factual disputes, including matters of witness
credibility.
Nevertheless, to defeat summary judgment, conflicting evidence, if any, must give rise to
a genuine dispute of material fact. See Anderson, 477 U.S. at 247-48. If “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party,” then a dispute of material
fact precludes summary judgment. Id. at 248; see Libertarian Party of Va. v. Judd, 718 F.3d
308, 313 (4th Cir. 2013). On the other hand, summary judgment is appropriate if the evidence
“is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 252.
23
And, “the mere existence of a scintilla of evidence in support of the plaintiff’s position will be
insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.”
Id. In Iraq Middle Mkt. Dev. Found. v. Harmoosh, 848 F.3d 235, 238 (4th Cir. 2017), the Court
said: “A court can grant summary judgment only if, viewing the evidence in the light most
favorable to the non-moving party, the case presents no genuine issues of material fact and the
moving party demonstrates entitlement to judgment as a matter of law.”
Because plaintiff is self-represented, his submissions are liberally construed. See
Erickson v. Pardus, 551 U.S. 89, 94 (2007). But, the court must also abide by the “‘affirmative
obligation of the trial judge to prevent factually unsupported claims and defenses from
proceeding to trial.’” Bouchat, 346 F.3d at 526 (internal quotation marks omitted) (quoting
Drewitt v. Pratt, 999 F.2d 774, 778–79 (4th Cir. 1993), and citing Celotex Corp. v. Catrett, 477
U.S. 317, 323–24 (1986)).
III. Discussion
A.
Personal Participation
The Complaint does not allege any personal participation by defendants Robustianno
Barrera, M.D. or Mahboob Ashraf, M.D. in regard to the alleged denial of adequate medical care.
Liability under §1983 attaches only upon personal participation by a defendant in the
constitutional violation. Trulock v. Freeh, 275 F.3d 391, 402 (4th Cir. 2001). Other than being
named in the caption of the complaint, defendants Barrera and Ashraf are not mentioned
anywhere in the factual allegations of the complaint. Plaintiff does not attribute any action or
inaction to Barrera or Ashraf that resulted in his being denied constitutionally adequate medical
care. Simply stated, plaintiff’s allegations fail to state a claim against defendants Barrera or
24
Ashraf for an Eighth Amendment violation based on deliberate indifference to a serious medical
need.
B.
Supervisory Liability
Plaintiff clarified in his opposition (Pevia II, ECF 11) that Baucom is responsible for his
care and the development of the HCV treatment policy as the Director of Medical Services for
DPSCS. Pevia II, ECF 11 at 2. Further, he clarifies that Nines and Corcoran are responsible for
his care as the acting Warden of NBCI and the Commissioner of Correction. Id. at 3-4.
It is well established that the doctrine of respondeat superior does not apply in § 1983
claims. See Monell v. New York City Department of Social Services, 436 U.S. 658, 694 (1978);
Love–Lane v. Martin, 355 F.3d 766, 782 (4th Cir. 2004) (no respondeat superior liability under §
1983). Under § 1983, individual liability must be based on personal conduct. See Wright v.
Collins, 766 F.2d 841, 850 (4th Cir. 1985); see also Foote v. Spiegal, 118 F.3d 1416, 1423 (10th
Cir. 1997). Further, absent subjective knowledge, a prison official is not liable. Farmer v.
Brennan, 511 U.S. 825, 847 (1994); see Johnson v. Quinones, 145 F.3d 164, 168 (4th Cir. 1998).
Likewise, a private corporation is not liable under § 1983 for actions allegedly committed by its
employees when such liability is predicated solely upon a theory of respondeat superior.
See
Austin v. Paramount Parks, Inc., 195 F.3d 715, 727-28 (4th Cir. 1999); Powell v. Shopco Laurel
Co., 678 F.2d 504, 506 (4th Cir. 1982); Clark v. Maryland Dep’t of Public Safety and
Correctional Services, 316 Fed. Appx. 279, 282 (4th Cir. 2009).
Liability of supervisory officials “is not based on ordinary principles of respondeat
superior, but rather is premised on ‘a recognition that supervisory indifference or tacit
authorization of subordinates' misconduct may be a causative factor in the constitutional injuries
they inflict on those committed to their care.’” Baynard v. Malone, 268 F.3d 228, 235 (4th Cir.
25
2001) (quoting Slakan v. Porter, 737 F.2d 368, 372 (4th Cir. 1984)). To state a claim of
supervisory liability under § 1983, the plaintiff must allege: (1) the supervisor had actual or
constructive knowledge that his subordinate was engaged in conduct that posed a pervasive and
unreasonable risk of constitutional injury to citizens like the plaintiff; (2) the supervisor's
response to the knowledge was so inadequate as to show deliberate indifference to or tacit
authorization of the alleged offensive practices; and (3) there was an affirmative causal link
between the supervisor's inaction and the particular constitutional injury suffered by the plaintiff.
See Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994).
There are no allegations raised against the supervisory defendants that would indicate
they are liable as supervisory officials for the actions alleged. As such, plaintiff’s claims against
the Correctional Defendants and Wexford are subject to dismissal.
C.
Medical Care
Defendants assert there are no facts to indicate a claim for violation of Pevia’s civil rights
under 42 U.S.C. §1983, and they are entitled to summary judgment as a matter of law.
The Eighth Amendment prohibits “unnecessary and wanton infliction of pain” by virtue
of its guarantee against cruel and unusual punishment. Gregg v. Georgia, 428 U.S. 153, 173
(1976); see also Estelle v. Gamble, 429 U.S. 97, 102 (1976); Scinto v. Stansberry, 841 F.3d 219,
225 (4th Cir. 2016); King v. Rubenstein, 825 F.3d 206, 218 (4th Cir. 2016). In order to state an
Eighth Amendment claim for denial of medical care, a plaintiff must demonstrate that the actions
of the defendant or the failure to act amounted to deliberate indifference to a serious medical
need. See Estelle, 429 U.S. at 106; Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014); Iko v.
Shreve, 535 F.3d 225, 241 (4th Cir. 2008). The Fourth Circuit has characterized the applicable
standard as an “exacting” one. Lightsey, 775 F.3d at 178.
26
Recently, the Fourth Circuit observed that “not all Eighth Amendment violations are the
same:
some constitute ‘deliberate indifference,’ while others constitute ‘excessive force.’”
Thompson v. Virginia, 878 F.3d 89, 97 (4th Cir. 2017) (quoting Whitley v. Albers, 475 U.S. 312,
319-20 (1986)). In general, the deliberate indifference standard applies to cases alleging failure
to safeguard the inmate’s health and safety, including failing to protect inmates from attack,
maintaining inhumane conditions of confinement, and failure to render medical assistance. See
Farmer, 511 U.S. at 834; Wilson, 501 U.S. at 303; Thompson, 878 F.3d at 97. The deliberate
indifference standard consists of a two-pronged test: “(1) the prisoner must be exposed to ‘a
substantial risk of serious harm,’ and (2) the prison official must know of and disregard that
substantial risk to the inmate’s health or safety.” Thompson, 878 F.3d at 97-98 (quoting Farmer,
511 U.S. at 834, 837-38). Conversely, in excessive force cases, “courts must determine ‘whether
force was applied in a good-faith effort to maintain or restore discipline, or maliciously and
sadistically to cause harm.’” Thompson, 878 F.3d at 98 (quoting Hudson v. McMillian, 503 U.S.
1, 6-7 (1992)).
Deliberate indifference to a serious medical need requires proof that, objectively, the
prisoner plaintiff was suffering from a serious medical need and that, subjectively, the prison
staff were aware of the need for medical attention but failed either to provide it or to ensure that
the needed care was available. See Farmer v. Brennan, 511 U.S. 825, 837 (1994); King, 825 F.3d
at 219. A “‘serious . . . medical need’” is “‘one that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay person would easily recognize the
necessity for a doctor's attention.’” Iko, 535 F.3d at 241 (quoting Henderson v. Sheahan, 196
F.3d 839, 846 (7th Cir. 1999)); see Scinto, 841 F.3d at 228. And, in a case involving a claim of
27
deliberate indifference to a serious medical need, the inmate must show a “significant injury.”
Danser v. Stansberry, 772 F.3d 340, 346 n.8 (4th Cir. 2014).
Proof of an objectively serious medical condition does not end the inquiry. The subjective
component requires a determination as to whether the defendant acted with reckless disregard in
the face of a serious medical condition, i.e., with “a sufficiently culpable state of mind.” Wilson
v. Seiter, 501 U.S. 294, 298 (1991); see Farmer, 511 U.S. at 839-40; Scinto, 841 F.3d at 225. Put
another way, “[t]o show an Eighth Amendment violation, it is not enough that an official should
have known of a risk; he or she must have had actual subjective knowledge of both the inmate’s
serious medical condition and the excessive risk posed by the official’s action or inaction.”
Lightsey, 775 F.3d at 178.
The Fourth Circuit has said: “True subjective recklessness requires knowledge both of the
general risk, and also that the conduct is inappropriate in light of that risk.” Rich v. Bruce, 129
F.3d 336, 340 n.2 (4th Cir. 1997); see also Young v. City of Mt. Ranier, 238 F.3d 567, 575-76
(4th Cir. 2001). As the Farmer Court explained, 511 U.S. at 837, reckless disregard occurs when
a defendant “knows of and disregards an excessive risk to inmate health or safety; the
[defendant] must both be aware of facts from which the inference could be drawn that a
substantial risk of serious harm exists and he must also draw the inference.” Thus, “[a]ctual
knowledge or awareness on the part of the alleged inflicter . . . becomes essential to proof of
deliberate indifference ‘because prison officials who lacked knowledge of a risk cannot be said
to have inflicted punishment.’” Brice v. Va. Beach Corr. Center, 58 F.3d 101, 105 (4th Cir.
1995) (quoting Farmer, 511 U.S. at 844).
Notably, deliberate indifference “is a higher standard for culpability than mere negligence
or even civil recklessness” and, “as a consequence, many acts or omissions that would constitute
28
medical malpractice will not rise to the level of deliberate indifference.” Lightsey, 775 F.3d at
178; see also Scinto, 841 F.3d at 225; Russell v. Sheffer, 528 F.2d 318, 319 (4th Cir. 1975);
Donlan v. Smith, 662 F. Supp. 352, 361 (D. Md. 1986). What the Court said in Grayson v. Peed,
195 F.3d 692, 695- 96 (4th Cir. 1999), is apt here: “Deliberate indifference is a very high
standard – a showing of mere negligence will not meet it . . . [T]he Constitution is designed to
deal with deprivations of rights, not errors in judgments, even though such errors may have
unfortunate consequences . . . To lower this threshold would thrust federal courts into the daily
practices of local police departments.”
Although the deliberate indifference standard “‘entails more than mere negligence . . . it
is satisfied by something less than acts or omissions for the very purpose of causing harm or with
knowledge that harm will result.’” King, 825 F.3d at 219 (quoting Farmer, 511 U.S. at 835). A
plaintiff can meet the subjective knowledge requirement through direct evidence of a prison
official’s actual knowledge or through circumstantial evidence tending to establish such
knowledge, including evidence “‘that a prison official knew of a substantial risk from the very
fact that the risk was obvious.’” Makdessi v. Fields, 789 F.3d 126, 133 (4th Cir. 2015) (quoting
Farmer, 511 U.S. at 842).
Moreover, if a risk is obvious, a prison official “cannot hide behind an excuse that he was
unaware of a risk, no matter how obvious.” Brice, 58 F.3d at 105. In Scinto, 841 F.3d at 226, the
Fourth Circuit said:
A plaintiff also makes out a prima facie case of deliberate indifference
when he demonstrates “that a substantial risk of [serious harm] was longstanding,
pervasive, well-documented, or expressly noted by prison officials in the past, and
the circumstances suggest that the defendant-official . . . had been exposed to
information concerning the risk and thus must have known about it . . . .” Parrish
ex rel. Lee v. Cleveland, 372 F.3d 294, 303 (4th Cir. 2004) (first alteration in
original) (internal quotation marks omitted) (quoting Farmer, 511 U.S. at 842).
Similarly, a prison official‟s “[f]ailure to respond to an inmate’s known medical
29
needs raises an inference [of] deliberate indifference to those needs.” Miltier v.
Beorn, 896 F.2d 848, 853 (4th Cir. 1990), overruled in part on other grounds by
Farmer, 511 U.S. at 837.
However, even if the requisite subjective knowledge is established, an official may still
avoid liability if he “responded reasonably to the risk, even if the harm was not ultimately
averted.” Farmer, 511 U.S. at 844; see Scinto, 841 F.3d at 226. Reasonableness of the actions
taken must be judged in light of the risk the defendant actually knew at the time. See Brown v.
Harris, 240 F. 3d 383, 390 (4th Cir. 2000) (citing Liebe v. Norton, 157 F. 3d 574, 577 (8th Cir.
1998) (focus must be on precautions actually taken in light of suicide risk, not those that could
have been taken)).
Of import here, the right to treatment is “limited to that which may be provided upon a
reasonable cost and time basis and the essential test is one of medical necessity and not simply
that which may be considered merely desirable.” Bowring v. Godwin, 551 F.2d 44, 47-48 (4th
Cir. 1977) (emphasis added). Thus, inmates do not have a constitutional right to the treatment of
their choice. Dean v. Coughlin, 804 F.2d 207, 215 (2nd Cir. 1986). And, disagreements between
an inmate and medical staff as to the need for or the appropriate extent of medical treatment do
not give rise to a constitutional injury. See Estelle, 429 U.S. at 105-06; Wright v. Collins, 766
F.2d 841, 849 (4th Cir. 1985) (citing Gittlemacker v. Prasse, 428 F.2d 1, 6 (3rd Cir. 1970)); see
also Fleming v. LeFevere, 423 F.Supp.2d 1064, 1070-71 (C.D. Cal. 2006).
A[A]ny negligence or malpractice on the part of . . . doctors in missing [a] diagnosis does
not, by itself, support an inference of deliberate indifference@. Johnson v. Quinones 145 F. 3d
164, 166 (4th Cir. 1998). Without evidence that a doctor linked presence of symptoms with a
diagnosis of a serious medical condition, the subjective knowledge required for Eighth
Amendment liability is not present. Id. at 169 (Actions inconsistent with an effort to hide a
30
serious medical condition, refutes presence of doctor=s subjective knowledge).
It is undisputed that Pevia suffers from HCV. But, defendants assert that at all relevant
times his condition has been carefully monitored and treated under existing protocol with
approved drugs. The DPSCS policy regarding HCV infection control requires that all inmates
testing positive for HCV be enrolled in the CCC so they can be monitored and educated
regarding their condition.
For inmates diagnosed with HCV, Individual treatments are
considered by the Panel. As indicated, the Panel consists of health and mental health providers,
pharmacists, and infectious disease specialists. Defendants assert that at all times relevant to
plaintiff’s Complaint, the primary HCV treatment approved for system-wide care was Pegylated
Interferon/Ribavirin. Approval or denial of new medications and treatments for HCV rests with
the DPSCS Panel. Once a new medication or treatment is approved, the Maryland legislature
must then provide the funding and resources to DPSCS to implement the approved treatment.
To be sure, HCV constitutes a serious medical need sufficient to satisfy the objective
component of an Eighth Amendment analysis. But, it is clear that plaintiff’s condition has been
carefully monitored. He underwent various assessments and was seen regularly in CCC. Pevia
acknowledges that he was treated with Pegylated/Ribavirin, but that he had to stop it due to the
development of side effects. Since filing this Complaint, he has received the full treatment of
Harvoni.
Pevia claims that after cessation of the initial viral treatment, and during an unspecified
time, he suffered blood in his stool, fatigue, appetite loss, and pain. He contends that medical
professionals found a better and more effective treatment for HCV, and he questions why he was
not prescribed Harvoni until after he filed for injunctive relief in this case. However, there is no
evidence that Pevia’s condition worsened due to any delay.
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Plaintiff takes the position that as soon as Harvoni became available he was entitled to
receive it. In essence, plaintiff’s claim has changed from one of alleged denial of medical care to
a delay in the care sought. Under either theory, however, the claim fails in light of the ample and
uncontroverted medical evidence that has been produced, reflecting that plaintiff’s care was
constitutionally adequate.
A delay in medical treatment may constitute deliberate indifference. Smith v. Smith, 589
F.3d 736, 739 (4th Cir. 2009) (citing Estelle, 429 U.S. at 104-05). But, the plaintiff must show
that the delay in providing medical care caused him to suffer substantial harm. See Webb v.
Hamidullah, 281 Fed. Appx. 159, 166, 2008 WL 2337608 * 6 (4th Cir. 2008). Substantial harm
can be shown by “lifelong handicap; permanent loss, or considerable pain.” Shabazz v. Prison
Health Servs. Inc., 2011 WL 3489661, at * 6 (E.D. Va. 2011) (quoting Garrett v. Stratman, 254
F.3d 946, 950 (10th Cir. 2001); see also Coppage v. Mann, 906 F. Supp. 1025, 1037 (E.D. Va.
1995). To the extent Pevia experienced contradictory statements regarding when or whether he
would start on a newer, more effective drug, his condition was nevertheless monitored, as
required by existing protocols.
Moreover, the right to treatment is “limited to that which may be provided upon a
reasonable cost and time basis and the essential test is one of medical necessity and not simply
that which may be considered merely desirable.” Bowring, 551 F.2d at 47-48. The record
evidence indicates that Pevia was provided treatment for HCV but it was discontinued by him
due to the development of negative side effects. He remained with little to no symptoms
associated with his HCV condition, and was continually evaluated in the CCC. The fact that
Pevia’s request to receive Harvoni treatment was initially denied simply does not reflect
deliberate indifference on the part of any of the named defendants.
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What I said in Insley v. Graham, ELH-16-1220, 2016 WL 7157419 * 13 (D. Md. Dec. 8,
2016), as to HCV treatment, is equally apt here:
In addition to providing constitutionally adequate medical care, prison officials
and medical care providers contracted with the State are charged with the
responsible distribution of resources. Where, as here, medically trained
professionals have assessed the prisoner's medical condition and determined that
costly resources, such as Harvoni, are not urgently required, but are in fact
required by those who are more ill, deliberate indifference is not the cause for the
delay in treatment. Rather, the delay in treatment is occasioned by a careful
consideration of how best to treat the prison population without expending public
funds irresponsibly. The delay involved in plaintiff's case did not inflict needless
pain and suffering, nor has it resulted in a permanent injury to plaintiff.
The disputes of fact asserted by Pevia are not material. Drs. Barrera and Baucom deny
that Pevia was harmed over the period of time he alleges new and improved drugs were
developed but were not made available to him.
The symptoms plaintiff describes do not
constitute harm that is actionable. And, the named defendants were never in a position to
expedite the bureaucratic process of approval, nor did they ignore any serious symptoms of
illness, as alleged. There is no evidence presented, nor does Pevia forecast presentation of
admissible evidence, proving that the delay in his receipt of Harvoni caused him harm or
needless suffering, or that any of the named defendants played a role in creating that delay. As
such, defendants are entitled to summary judgment in their favor as to all claims.
IV. Conclusion
The record evidence, which is for the most part undisputed, establishes that plaintiff’s
constitutional right to adequate medical care for a serious medical need was not violated by the
delay in providing him with Harvoni, an alternative antiviral treatment for HCV. Defendants did
not exhibit a deliberate indifference to a serious medical need. Therefore, defendants are entitled
to summary judgment.
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A separate Order follows.
February 20, 2018
Date
______/s/_________________________
Ellen L. Hollander
United States District Judge
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