Zeller v. Wexford Health Source Inc. et al

Filing 25

MEMORANDUM OPINION. Signed by Judge Paul W. Grimm on 3/11/2019. (kns, Deputy Clerk)(c/m to Plaintiff and e-m to Pro Bono Adm. 3/11/19) Modified on 3/11/2019 (kns, Deputy Clerk).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DA VID C. ZELLER, #369326, 30822
Plaintiff,
v
WEXFORD HEALTH SOURCES, INC.,
AYOKU OKETUNJU, M.D., and
BOLAJII ONABAJO,
Defendants.

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Civil Action No. PWG-17-3136

MEMORANDUM OPINION

David C. Zeller is an inmate at Western Correctional Institution (WCI) in Cumberland,
Maryland. He alleges in this pro se Complaint that he was denied treatment for Hepatitis C (HCV)
for more than five years, beginning in 2011. See Compi. 3, ECF No.1;

Suppi. 1, ECF NO.3;

Opp'n 5-8, ECF No. 20. He seeks an injunction requiring prison health care providers to "fully
cooperate" with him, put him back on pain medication, and renew treatment for his "already
serious" condition. Compi. 5-6.
Defendants Wexford Health Sources, Inc. (Wexford); Ayoku Oketunji, M.D.; and Bolaji
Onabajo, M.D., have filed a Motion to Dismiss or, in the Alternative, Motion for Summary
Judgment, ECF No. 17, which has been fully briefed, ECF Nos. 20, 21. I conclude that there
remains a genuine dispute of material fact in this case and so will deny the motion.l

To assist

Zeller as this case proceeds, I am granting his motion for appointment of counsel. ECF No. 24.

I Also pending is Zeller's Motion for an Extension of Time, ECF No. 19, which will be granted
nunc pro tunc.

Background
Zeller alleges that prior to his incarceration in 2011, he was diagnosed with "stage III"
Hepatitis C and treated with pegylated interferon/ribavirin.

CompI. 4; ECF No. 3-1; Opp'n 2-4.

Zeller acknowledges that between November 2016 and December 31, 2016, prison medical
providers treated him with Harvoni,2 but the Harvoni treatment proved unsuccessful, and Dr.
Oketunji informed him there was "nothing else to offer" him. April 2017 Visit Report 1, ECF 31; see CompI. 4. Zeller alleges the lengthy delay providing him treatment with Harvoni diminished
its efficacy. See Opp'n 7-8.
Defendants have provided with their dispositive motion verified copies of Zeller's medical
records, the earliest dated July 27,2016.

ECF No. 17-4.3 Additionally, Defendants have filed a

Hepatitis C-related excerpt from the Department of Public Safety and Correctional Services
(DPSCS) Office of Clinical Service/Inmate Health Infection Control Manual (ECF No. 17-6)4 and
Dr. Oketunji's affidavit (ECF No. 17-5).
Dr. Oketunji's affidavit summarizes current hepatitis management protocols at DPSCS
facilities. He states that, in view of the potential side effects and expense of antiviral therapy, it is
not recommended for a patient to begin antiviral therapy for genotype 1 HCV based solely on a
positive test for HCV.s Oketunji Aff~ 10, ECF No. 17-5. In cases such as Zeller's, he states,

2 Harvoni is the brand name for the combination of ledipasvir and sofosbuvir and is used alone or
in combination with ribavirin to stop the virus that causes HCV from spreading in the body. See
https:/ /medlineplus.gov/druginfo/meds/a614051.html#brand-name-1
(last reviewed March 5,
2019)
3 Wexford became the medical services provider for various Maryland state prisons in July 2012.
The medical contractor prior to Wexford was Correctional Medical Services, Inc. See, e.g.,
Toomer v. Warden, No. DKC-13-614, 2015 WL 412935, at *1 (D. Md. Jan. 29, 2015).
4 The effective date of the policy is not indicated. It is unclear what policy, if any, was in effect at
the time Zeller became an inmate in the custody of the Maryland Department of Correction.
S It is not clear from the record when Zeller was first tested for HCV in the Division of Correction
(DOC) and when his genotype was determined.
2

DPSCS HCY policy requires performing a liver biopsy or FibroScan.

See id. The results are

reviewed by a DPSCS statewide HCY panel of medical providers, pharmacists, mental health
providers, and infectious disease specialists to determine if the patient is at a stage of infection that
warrants antiviral therapy, to approve a specific antiviral therapy regimen, and to establish
prioritization of the therapy. See id. Dr. Oketunji states that pegylated interferon!ribavirin was the
treatment approved most often. See id. 4J 12.
Dr. Oketunji characterized Zeller as a 65 year old with a history of schizophrenia and
schizoaffective disorder.

See id. 4J 4. Zeller was approved for and began pegylated interferon!

ribavirin treatment in 2015, but treatment ended because the medication exacerbated his mental
health condition, a common side effect. See id. 4J 12. Dr. Oketunji states that, until 2015, "there
were no other antiviral treatment therapies generally approved by DPSCS."

Id.

He notes,

however, that "(s]ince 2012 other antiviral treatment options available, including, inter alia,
Harvoni, have been approved for inmates by the DPSCS HCY panel on a case by case basis." Id.
4J 13 (emphasis in original). He explains that, since 2015, alternative antivirals have become more
available, with Harvoni as the "treatment of choice due to its proven high efficacy and reduced
side effects." Id. His affidavit states:
The DPSCS HCY panel has been systematically treating inmates
with more advanced grade and stage levels of HCY and working
down to less advanced grade and stage levels (grades (G) of
necrosis/inflammation are 1 minimal, 2 mild, 3 moderate, 4 severe;
staging (S) is 1 no scarring, 2 mild scarring, 3 moderate scarring,
and 4 severe scarring "cirrhosis"). Plaintiff's
September 2016,
liver biopsy presented a level GI[6]Sl. By late 2016, patients with
level GIS 1 were being considered for alternative treatment.

6 "At least six specific strains--ealled genotypes-{)f hepatitis C exist. Genotype 1 is the most
common hepatitis C genotype in the United States." What Is Hepatitis C?, Nat'l Inst. of Diabetes
&
Digestive
&
Kidney
Diseases,
https://www.niddk.nih.gov/health-information!liverdisease/viral-hepatitis/hepatitis-c. (last reviewed March 5, 2019).
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ld.
In November 2016, Zeller started an eight-week course of Harvoni.
treatment ended in December 2016.

See id. ~ 14. The

See id. Zeller's three-month post treatment viral load?

increased, which indicated that treatment was ineffective.

See id. Dr. Oketunji states there are

presently no other treatment options available for HCV patients who have failed Harvoni
treatment. See id. ~ 15. Zeller is regularly monitored, his hepatitis function is tested, and he shows
no advanced symptoms of cirrhosis. See id. ~ 16. He was administered Twinrix, a vaccine that
provides active immunity against the Hepatitis A and B viruses, as a precautionary measure for
inmates testing positive for HCV. See Oketunji Aff. ~~ 8, 16.
Standard of Review
Summary judgment is proper when the moving party demonstrates, through "particular
parts of materials

in the record, including

depositions,

documents,

electronically

stored

information, affidavits or declarations, stipulations ... , admissions, interrogatory answers, or
other materials," that "there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law."

Fed. R. Civ. P. 56(a), (c)(l)(A);

see Baldwin v. City of

Greensboro, 714 F.3d 828, 833 (4th Cir. 2013). A court reviews the facts and all reasonable
inferences in the light most favorable to the nonmoving party. See Scott v. Harris, 550 U.S. 372,
378 (2007); see also Erickson v. Pardus, 551 U.S. 89,94 (2007) (stating the pleadings ofapro
litigant are to be liberally construed).

se

If the party seeking summary judgment demonstrates that

there is no evidence to support the nonmoving party's case, the burden shifts to the nonmoving
party to identify evidence that shows that a genuine dispute exists as to material facts. See Celotex

"Viral load is a measurement ofthe quantities ofHVC virus RNA, the building block of the virus,
in the blood." Oketunji Aff. ~ 9.
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Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). The existence of only a "scintilla of evidence" is
not enough to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986). The evidentiary materials submitted must show facts from which the finder of
fact reasonably could find for the party opposing summary judgment. !d.
Discussion
The Eighth Amendment,

as incorporated

by the Fourteenth

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) (plurality opinion). "Scrutiny under the
Eighth Amendment is not limited to those punishments authorized by statute and imposed by a
criminal judgment."

De 'Lonta v. Angelone, 330 F.3d 630,633 (4th Cir. 2003). In order to state

an Eighth Amendment claim for denial of medical care, a plaintiff must demonstrate that the
actions of the defendants or their failure to act amounted to "deliberate indifference" to a serious
medical need. Estelle v. Gamble, 429 U.S. 97, 106 (1976). "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 judgment, even though such errors may have
unfortunate consequences."

Grayson v. Peed, 195 F.3d 692, 695-96 (4th Cir. 1999).

"[D]eliberate indifference requires 'more than ordinary lack of due care for the prisoner's
interests or safety.'"

Id. at 696 (quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)). In cases

like this, there must be a showing that, objectively, the prisoner was suffering from a serious
medical need and that, subjectively, the prison staff were aware of the need for medical attention
but failed to either provide it or ensure the needed care was available.
511 U.S. 825,837 (1994).

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See Farmer v. Brennan,

Objectively, the medical condition at issue must be serious. See Hudson v. McMillian, 503
U.S. 1, 9 (1992). A medical condition is serious when it 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 v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008)
(quoting Henderson v. Sheahan, 196 F.3d 839, 846 (7th Cir. 1999)).
The subjective component is satisfied only where a prison official "subjectively 'knows of
and disregards an excessive risk to inmate health or safety. '" Jackson v. Lightsey, 775 F.3d 170,
178 (4th Cir. 2014) (quoting Farmer, 511 U.S. at 837); see also Rich v. Bruce, 129 F.3d 336,340
n.2 (4th Cir. 1997) ("True subjective recklessness requires knowledge both of the general risk, and
also that the conduct is inappropriate in light of that risk."). "Actual 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. Ctr., 58 F.3d 101, 105 (4th Cir. 1995) (quoting Farmer, 511 U.S. at 844).
"Thus, a complaint that a physician has been negligent in diagnosing or treating a medical
condition does not state a valid claim of medical mistreatment under the Eighth Amendment.
Medical malpractice does not become a constitutional violation merely because the victim is a
prisoner." Estelle, 429 U.S. at 106; see also Jackson, 775 F.3d at 178 ("[M]any acts or omissions
that would constitute medical malpractice will not rise to the level of deliberate indifference.").
If the requisite subjective knowledge is established, an official may avoid liability "if [he]
responded reasonably to the risk, even if the harm ultimately was not averted." Farmer, 511 U.S.
at 844. The 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. 2001). The patient's
right to treatment is "limited to that which may be provided upon a reasonable cost and time basis

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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).
The gravamen of Zeller's Complaint is that he was denied treatment for HCV until some
five years after he entered the custody of the DOC. Defendants have provided verified records
and other evidence to demonstrate that since 2015, Zeller has been provided treatment. The first
course of treatment was stopped due to side effects. The second course of treatment, Harvoni, "the
treatment of choice," Oketunji Aff. ~ 13, was administered in 2016 and proved ineffective. Zeller's
condition is monitored even though there currently are no other treatment options available to him.
But, apart from a general description of the HCV treatment policy prior to this time,
Defendants provide no medical records or specific facts to dispute Zeller's allegation that he was
denied treatment for several years for his condition or that the claimed delay prevented a positive
response to the later-administered
Zeller-who,

Harvoni.

Viewing the facts in the light most favorable to

it bears repeating, is self-represented-I

conclude a genuine dispute exists as to

material facts, i.e., whether Defendants acted with requisite deliberate indifference by denying
Zeller treatment for his HVC for more than four years. Accordingly, summary judgment is not
appropriate.
Appointment of Counsel
Zeller has moved for court-appointed counsel. ECF No. 24. Because discovery likely will
be needed to obtain additional medical records and to discern the names of medical providers and
state corrections officials who may have been involved in the issues alleged, I am granting the
motion.

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Conclusion
Defendants' Motion to Dismiss or, in the Alternative, Motion for Summary Judgment (ECF
No. 17) is denied. This case will proceed, with counsel appointed to represent Zeller.
A separate order follows.

1/. tit;
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0~

Pa;;I~.Grimm

United States District Judge

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