Cody v. St. Louis County Department of Justice Services

Filing 77

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that defendant's motion for summary judgment Doc. # 57 is granted. IT IS FURTHER ORDERED that plaintiffs motion to strike Doc. # 69 is denied as moot. A judgment in accordance with this Memorandum and Order will be entered. Signed by Magistrate Judge John M. Bodenhausen on 12/27/18. (ARL)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

LUKE C. CODY,
Plaintiff,
vs.
MARY HASTINGS, M.D.,
Defendant.

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Case No. 4:16 CV 1632 (JMB)

MEMORANDUM AND ORDER
This matter is before the Court on defendant’s motion for summary judgment. Appointed
counsel has filed a response in opposition on plaintiff’s behalf and the issues are fully briefed. In
addition, plaintiff has filed a motion to strike portions of the affidavit of Bruce R. Bacon, M.D.,
submitted by defendant.1 The Court has not relied on the portions of Dr. Bacon’s affidavit that
plaintiff moves to strike and the motion will be denied as moot. All matters are pending before
the undersigned United States Magistrate Judge with the consent of the parties, pursuant to 28
U.S.C. § 636(c).

1

Plaintiff argues that defendant did not properly disclose Dr. Bacon as an expert under Rule 26(a)(2),
Fed.R.Civ.P. Defendant asserts that Dr. Bacon is a treating physician who is not required to provide a
report and that she has met her disclosure requirements because she listed Dr. Bacon in supplemental
disclosures. “The disclosure rule is less demanding for experts that are not specially employed or retained
for litigation, such as treating physicians.” Vanderberg v. Petco Animal Supplies Stores, Inc., 906 F.3d
698, 702 (8th Cir. 2018). The rule requires parties to disclose the identity of non-retained experts who
may testify at trial and disclose “the subject matter on which the witness is expected to present” expert
opinion testimony and “a summary of the facts and opinions to which the witness is expected to testify.”
Fed. R. Civ. P. 26(a)(2)(C). Defendant’s disclosure states that Dr. Bacon “supervised the care of Nurse
Practitioner Shirley Campbell, and both are believed to have discoverable information regarding
plaintiff’s Hepatitis C diagnosis, including issues of causation.” [Doc. # 70-1]. The Court is doubtful that
this statement constitutes an adequate summary of Dr. Bacon’s ultimate opinion that plaintiff “did not
suffer any harm by not being treated during his detention.” [Doc. # 59-4 at ¶ 15]. The Court need not
decide this issue, however, because Dr. Bacon’s opinion is not necessary for the resolution of plaintiff’s
claims.

Plaintiff Luke Cody was a pretrial detainee at the St. Louis County Justice Center (Justice
Center) from January 2016 through February 2017. He filed this action pursuant to 42 U.S.C. §
1983, alleging that Justice Center physician and medical director, defendant Mary Hastings,
M.D., refused to provide necessary treatment for his chronic infection with the hepatitis C virus
(also referred to as “HCV”), sleep apnea, and astigmatism, in violation of his rights under the
Eighth and Fourteenth Amendments to the U.S. Constitution. Defendant moves for summary
judgment, arguing that plaintiff has failed to present any evidence that she was deliberately
indifferent to his serious medical needs.
I.

Factual Background
A.

Hepatitis C and its Treatment2

“HCV is a viral infection that can cause liver damage and other extremely serious side
effects. Those who contract HCV may suffer inflammation of the liver, known as hepatitis. In
turn, those with hepatitis may suffer significantly impaired liver functioning. A decrease in liver
function may result in symptoms such as severe pain, fatigue, difficulty or pain with urination,
and an increased risk of heart attacks.” Postawko v. Missouri Dep’t of Corr., No. 17-3029, 2018
WL 6379023, at *1 (8th Cir. Dec. 6, 2018). “Individuals suffering from chronic HCV develop
fibrosis of the liver, in which healthy liver tissue is replaced with scar tissue. Patients are said to
suffer from cirrhosis when a significant portion of the liver has been converted into scar tissue.”
Id. Cirrhosis is irreversible and some of its complications can cause death if left untreated. Id.
2

For the purposes of this summary of the facts, the Court has reviewed the sources cited by the parties,
including: https://www.fda.gov/ForConsumers/ConsumerUpdates/ucm405642.htm; https://www.cdc.gov/
media/releases/2016/p0504-hepc-mortality.html; and https://www.hcvguidelines.org. The Court has also
relied on the recent opinion in Postawko v. Missouri Dep’t of Corr., in which the Eighth Circuit
summarizes hepatitis C and its treatment. No. 17-3029, 2018 WL 6379023 (8th Cir. Dec. 6, 2018)
(affirming certification of class of individuals in custody of Missouri Department of Corrections with
chronic HCV who are not provided treatment with antiviral drugs).

2

“At least half of all those who suffer from chronic HCV will develop either cirrhosis or liver
cancer. Each day without treatment increases the risk that an HCV infection will either develop
into a serious condition such as chronic liver disease, fibrosis, cirrhosis, or liver cancer, or cause
death from liver failure. HCV causes the death of more American citizens than any other
infectious disease.” Id.
In recent years, significant medical advancements have been made in the treatment of
HCV. “While previous treatments demonstrated only low rates of success and often caused
substantial side effects, new direct-acting antiviral drugs (DAA drugs) are estimated to cure over
90% of patients who receive them as treatment. DAA drugs are also estimated to cause a 90%
reduction in the risk of liver-related mortality.

Those effects, however, may diminish if

treatment is delayed.” Id. “The medical standard of care put forward by organizations such as
the Infectious Diseases Society of America and the American Association for the Study of Liver
Diseases (IDSA/AASLD) now recommends that almost all persons with chronic HCV receive
DAA drug treatment.” Id.
Plaintiff claims that defendant should have treated him with Harvoni, one of the new
DAA drugs.

According to the IDSA/AASLD Guidelines, “pretreatment assessment of a

patient’s understanding of treatment goals and provision of education about adherence and
follow-up are essential. A well-established therapeutic relationship between clinician and patient
remains crucial for optimal outcomes” with the new antiviral therapies.3

In addition, the

interruption in treatment adversely affects the likelihood of achieving a cure and could promote
development of viral resistance. Id. The Guidelines note that chronic hepatitis C presents
special challenges in jails, where “[t]esting and treatment of hepatitis C have been historically

3

https://www.hcvguidelines.org/evaluate/when-whom (last visited on Dec. 4, 2018).
3

uncommon . . ., primarily because of the short duration of incarceration and lack of available
resources.”4 The Guidelines recommend that “[c]hronically infected individuals should receive
counseling about HCV infection and be provided linkage to follow-up community healthcare for
evaluation of liver disease and treatment upon release.” For those “whose jail sentence is
sufficiently long to complete a recommended course of antiviral therapy,” they “should receive
treatment for chronic HCV infection according to AASLD/IDSA guidance while incarcerated”
with referrals to community healthcare on release for surveillance for HCV-related
complications. Id.
B.

Plaintiff’s Hepatitis C

On September 17, 2015, plaintiff was seen at the Saint Louis University Liver Center
(SLU Liver Center). He was evaluated by advanced practice nurse, Shirley Campbell, NP. See
Medical Records SSM-SLUH, Inc. [Doc. # 60 at 11-14].5 Ms. Campbell’s care of plaintiff was
supervised by Bruce R. Bacon, M.D. Bruce Bacon Affidavit at ¶ 4 [Doc. # 59-4].6 Plaintiff told
Ms. Campbell that he was diagnosed with hepatitis C in 2006 but he was never treated due to his
schizoaffective disorder. He also said that he had been scheduled for a liver biopsy but passed
out before it could be completed.

When he saw Ms. Campbell in September 2015, he

complained of upper right quadrant pain, fatigue, and poor tolerance for activity. [Doc. # 60 at
11].
Lab tests ordered by Ms. Campbell showed that plaintiff had normal liver functioning,
with only very mild inflammation of the liver and no increase in fibrosis and no evidence of
4

https://www.hcvguidelines.org/unique-populations/correctional (last visited Dec. 6, 2018).

5

Materials in the medical records are cited with the CM/ECF document number and the page number that
appears in the red header.
6

The Court relies only on uncontested portions of Dr. Bacon’s affidavit.
4

cirrhosis or advanced disease. His disease was “very mild.” Bacon Aff. at ¶ 8. Plaintiff
declined to undergo a liver biopsy to further clarify his condition. Id. at ¶ 10. Ms. Campbell
discussed plaintiff’s options with him, including potential participation in a clinical trial with
Harvoni or Viekira — both DAA drugs — depending on the genotype of his HCV. The exact
course of treatment could not be determined until Ms. Campbell received the results of his lab
work, and so she instructed plaintiff to return for follow up in four to six weeks. Id. at ¶ 11; see
also Medical Records [Doc. # 60 at 11-12]. Plaintiff was not seen again at the SLU Liver
Center,7 although he did return to SLU Hospital for a drug screen required by his probation
officer. Bacon Aff. at ¶ 12; Medical Records [Doc. # 60 at 25-26].
The duration of treatment with Viekira or Harvoni is twelve weeks and should be
continuous to ensure treatment is effective. Bacon Aff. at ¶ 11.
C.

Plaintiff’s Incarceration and Medical Care

On January 30, 2016, plaintiff was arrested after allegedly assaulting his girlfriend. He
was evaluated at the emergency department of the SSM DePaul Health Center after making
suicidal statements. Medical Records [Doc. # 63 at 39]. Once in the emergency department,
plaintiff was uncooperative and verbally aggressive with the assessor. He was determined to be
fit for confinement with suicide watch.8 Id. at 39-41.

7

Plaintiff denies that he missed any scheduled appointments with Ms. Campbell. Declaration of Luke C.
Cody at ¶ 4 [Doc. # 68-2]. He does not dispute the accuracy of Ms. Campbell’s notes, however, or claim
that he actually returned to the clinic.
8

The records show that immediately preceding this assault plaintiff had a period of instability due to his
mental impairments. He was hospitalized at Mercy Hospital between December 7 and December 12,
2015 for treatment of his depression. [Doc. # 63 at 59-63]. And, on January 17, 2016, he was evaluated
at DePaul Health Center, with complaints of auditory hallucinations and suicidal thoughts. At that time,
he reported that he was homeless but was awaiting placement by his probation officer. [Doc. # 63 at 133].
5

Plaintiff was transported to the Justice Center where he underwent an intake assessment.
[Doc. # 61 at 134-35]. Plaintiff reported that he took Seroquel, Wellbutrin, Klonopin, Vicodin,
and a medication to treat nightmares. Id. Based on a review of plaintiff’s medical records, the
intake nurse noted plaintiff’s diagnoses of schizoaffective disorder, depressive type, remote
history of benzodiazepine dependence, and hepatitis C.9 Id. at 131-35. Standing orders for
treatment of the symptoms of benzodiazepine dependence were entered. Id. at 133. Plaintiff
signed requests for information for medical records. Id. at 135; see also Releases [Doc. # 62 at
93-94]. Medical records obtained from Mercy Medical Center indicate that plaintiff reported
having a diagnosis of hepatitis C, but did not show that the diagnosis had been confirmed by lab
tests or treatment. Def.’s Stmt. of Uncontroverted Material Facts (SUMF) at ¶ 8.
On March 24, 2016, plaintiff completed a Sick Call Form in which he stated that he had
been approved for treatment with Harvoni before his incarceration and that he wanted to be
started on it while in jail because he expected to remain there “for awhile.” He provided Ms.
Campbell’s name and phone number at the SLU Liver Center. [Doc. # 62 at 74].
Defendant saw plaintiff for the first time on April 4, 2016. 10 [Doc. # 61 at 93-94].
Plaintiff reported that he had joint pain due to degenerative joint disease; dental pain; anxiety,
panic, and depression; heartburn; and hepatitis C. Defendant reviewed plaintiff’s psychiatric
medications, ordered an evening snack to be provided when he took his Seroquel, ordered an
9

Notes of the intake interview suggest that plaintiff denied having any medical conditions, including
infections and mental health disorders. Plaintiff asserts that he told the intake nurse that he had hepatitis
C. Declaration of Luke Cody at ¶ 5 [Doc. # 68-2]. Any dispute in this regard is immaterial, however, as
both parties agree that his hepatitis C was noted in the record on the day he was admitted.
10

Between his admission on January 30th and this first contact with defendant on April 4, 2016, plaintiff
was seen multiple times by nurses and doctors for evaluation and treatment of multiple issues, primarily
anxiety with occasional reports of hallucinations. [Doc. # 61 at 126, 124-25, 121, 120, 118, 117, 115-16,
113, 112, 110-11, 104-05, 99, 97]; [Doc. # 62 at 87, 85, 83, 79]. He was placed on lockdown status as a
precautionary measure on February 9, 2016, and was released to the general population three days later.
[Doc. # 61 at 120, 104-06].
6

urgent dental visit, and asked for the records of plaintiff’s treatment at the SLU Liver Center.
Under “Discharge Planning,” defendant noted that plaintiff had a court appearance on April 11,
2016, and would return to his previous provider for mental health treatment after discharge. Id.
Defendant instructed plaintiff to return for follow up in three months.
On May 5, 2016, plaintiff submitted another Sick Call Form in which he stated that he
had been approved for treatment of his hepatitis C and had been told that he needed Harvoni to
avoid liver cancer. He also stated that he was very frightened because he had watched his
mother die from hepatitis C. [Doc. # 62 at 48-49].
Plaintiff saw defendant again on July 11, 2016.

Defendant had not yet reviewed

plaintiff’s complete medical records from SLU Liver Center11 and so she ordered lab tests to
confirm his diagnosis. Deposition of Mary Vatterott Hastings , M.D., at 133 [Doc. # 68-1]. The
tests revealed that plaintiff had what defendant characterized as a “medium” viral load of
hepatitis C.12 Id. at 136.

The lab tests also confirmed that plaintiff’s virus was appropriate for

treatment with Harvoni. Id. at 136-37. In addition, defendant reviewed the results of recent liver
function tests, which were normal. Id. at 134, see also id. at 159 (explaining that psychiatrists
ordinarily monitor liver function tests in conjunction with certain medications).

Defendant

obtained yet another authorization for records from the SLU Liver Center. Id. at 65.
Plaintiff and defendant again discussed his desire for treatment with Harvoni on August
3, 2016. Id. at 54-55. Defendant had still not reviewed the records from the SLU Liver Center.

11

The record contains a copy of the SLU Liver Center records faxed to the Justice Center on May 4,
2016. [Doc. # 63 at 64-69]. Defendant initialed the first page on May 19, 2016. [Doc. # 63 at 64]. She
testified that she did not know if she saw the other pages at that time. She also testified that the records
were not scanned into the computer system when she saw plaintiff in July 2016 and so she would not
have remembered reviewing them. Hastings Dep. at 150-51.
At deposition, defendant observed that plaintiff’s viral load actually decreased between November 2015
and July 2016. Id. at 157-58.
12

7

Hastings Dep. at 150-51; Medical Records [Doc. # 61 at 54] (stating reports from SLU still had
not come). Medical records reflect that, on September 8, 2016, plaintiff again told defendant that
he had been approved for treatment with Harvoni through the SLU Liver Center. [Doc. # 61 at
41-42].

Defendant called Ms. Campbell, who stated that plaintiff did not qualify for

participation in a clinical trial of DAA drugs because he had not had a liver biopsy and was
incarcerated. Hastings Dep. at 154; see also Bacon Aff. at ¶ 14 (incarcerated patients are not
eligible for clinical trials which require frequent visits to SLU Liver Center for monitoring and
bloodwork). According to the medical records, defendant told plaintiff that he did not qualify for
the study while incarcerated and should seek treatment when he was released.

Plaintiff

“understands this.” [Doc. # 61 at 41]. Plaintiff complained that his liver hurt and he was
anxious. He wanted to restart gabapentin, which he was weaned off when he entered the Justice
Center. Defendant noted that gabapentin was not indicated for treatment of his liver complaints
and ordered blood work. Plaintiff’s physical examination was unremarkable, with the exception
of his increased anxiety. Id. at 42. Plaintiff’s liver function tests were normal. Id. at 43;
Hastings Dep. at 158-59.
Defendant testified that she determined that the appropriate course of action was to
monitor plaintiff’s clinical condition. Hastings Dep. at 156. As of September 2016, she did not
believe it was necessary for plaintiff to start taking Harvoni or other antiviral medications
because: (1) his viral load had decreased since November 2015; (2) his liver function tests
showed no abnormalities; and (3) he did not complain of nausea, fever, or lack of appetite, and
did not have the appearance of jaundice. Id. at 156-58; 168. It was defendant’s opinion that
plaintiff’s condition was stable and even improving, and that it was in his best interest to wait for
treatment. Id. at 161-62. She testified that she would have referred plaintiff to a specialist if he

8

had begun to show signs of deterioration in his health. Id. at 165, 186-87. She acknowledges,
however, that she has never referred a Justice Center inmate with HCV to a liver specialist
during his or her incarceration. Id. at 173. She does refer patients to liver specialists at SLU or
Washington University when they are released from the Justice Center. Id. at 171-72.
Defendant testified that plaintiff’s mental health was the primary medical concern during
his incarceration. Id. at 166. The medical records show that plaintiff had frequent complaints of
anxiety and depression, with occasional complaints of hallucinations and nightmares. Medical
Records [Doc. # 61 at 126, 124-25, 121, 120, 118, 117, 115-16, 113, 112, 110-11, 104-05, 99,
97, 87, 85, 63-64, 60-61, 54-55, 50, 39-40, 32, 27-29, 24, 23, 21-22, 18, 16, 10]; [Doc. # 62 at
87, 85, 83, 79, 65, 57, 45, 18, 7]. His care was complicated by multiple adverse reactions to
psychotropic medications, necessitating frequent adjustments. Defendant testified that some of
his medications were metabolized through the liver, a factor that would be pertinent to treatment
with DAAs. Hastings Dep. at 186. In addition, plaintiff was periodically noncompliant with
taking his medications. In January 2017, he refused all of his psychotropic medications, because
they made him feel sick and because he had paranoid feelings about the corrections officers and
the water. [Doc. # 61 at 20, 18; 16]. Defendant testified that she was concerned that he would
quit taking DAAs if prescribed. Hastings Dep. at 166.
On February 7, 2017, plaintiff was displaying signs of possible psychosis with rapid
decompensation. The evaluating physician determined that plaintiff needed rapid follow up.
[Doc. # 61-10]. He was discharged that day.
D.

Plaintiff’s Astigmatism and Sleep Apnea

Plaintiff’s vision was evaluated by a medical assistant at the Justice Center on July 21,
2016, after he complained about blurry vision. [Doc. # 61 at 58]. His vision was measured as

9

20/30 combined and 20/40 in each eye separately.

On December 5, 2016, plaintiff told

defendant that he had acute onset of blurry vision with distance only, possibly in response to
medications. Id. at 27-29. He was able to read. His vision measured as 20/25 together, 20/70 on
the right, and 20/40 on the left. Id. Defendant planned to follow up with plaintiff in four weeks.
When defendant next saw plaintiff on January 31, 2017, he did not complain about his vision.
Id. at 13-14. Plaintiff asserts that he was diagnosed with astigmatism after he was discharged
from the Justice Center and believes that the condition probably existed for some time before
diagnosis. Plaintiff’s Answers to Interrogatories at ¶ 3 [Doc. # 59-2]. He has not produced any
documentation to substantiate this diagnosis.
Plaintiff admits that he never complained of having sleep apnea or reported symptoms
suggestive of sleep apnea while at the Justice Center. He further admits that he has never been
diagnosed with sleep apnea. Pl.’s Resp. to Def.’s Stmt. of Uncontroverted Material Facts at ¶¶
40-41, 44-46 [Doc. # 68].
Additional facts will be included as necessary to address the issues.
II.

Legal Standard

Summary judgment is appropriate where “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). Under
Rule 56, a party moving for summary judgment bears the burden of demonstrating that no
genuine issue exists as to any material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party,” and a fact is material if it “might affect the outcome of the suit under
the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

10

Once the moving party discharges this burden, the non-moving party must set forth
specific facts demonstrating that there is a dispute as to a genuine issue of material fact, not the
“mere existence of some alleged factual dispute.” Anderson, 477 U.S. at 247. The non-moving
party may not rest upon mere allegations or denials in the pleadings. Id. at 256. “Factual
disputes that are irrelevant or unnecessary” will not preclude summary judgment. Id. at 248.
The Court must construe all facts and evidence in the light most favorable to the non-movant,
must refrain from making credibility determinations and weighing the evidence, and must draw
all legitimate inferences in favor of the non-movant. Id. at 255.
III.

Discussion

Plaintiff claims that defendant was deliberately indifferent to his serious medical needs.
“[P]retrial detainees are entitled to at least as great protection as that afforded convicted prisoners
under the Eighth Amendment.” A.H. v. St. Louis Cty., Missouri, 891 F.3d 721, 726 (8th Cir.
2018) Id. (citation omitted); see also Ryan v. Armstrong, 850 F.3d 419, 425 (8th Cir. 2017)
(standard applied to pretrial detainees “borrow[s] from the Eighth Amendment deliberateindifference standard applicable to claims of prison inmates”). “Deliberate indifference has both
an objective and a subjective component.” Corwin v. City of Indep., Mo., 829 F.3d 695, 698
(8th Cir. 2016) (citation omitted). The objective component requires a plaintiff to demonstrate
an objectively serious medical need. Id. The subjective component requires a plaintiff to show
that the defendant actually knew of, but deliberately disregarded, such need. Id. That is, “the
official 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.” Farmer v. Brennan, 511 U.S.
825, 837 (1994).

11

A.

Plaintiff’s Chronic HCV

Here, there is no dispute that plaintiff’s HCV was an objectively serious medical need,
and thus the analysis focuses on the subjective component. The subjective prong of deliberate
indifference is an extremely high standard that requires a mental state of “more . . . than gross
negligence.” Saylor v. Nebraska, 812 F.3d 637, 644 (8th Cir.), as amended (Mar. 4, 2016)
(citations omitted).

Deliberate indifference “requires a mental state ‘akin to criminal

recklessness.’” Jackson v. Buckman, 756 F.3d 1060, 1065 (8th Cir. 2014) (citation omitted).
Demonstrating that a prison doctor committed medical malpractice is insufficient to establish
deliberate indifference. Id. at 1065-66. Plaintiff must demonstrate that defendant’s actions were
“so inappropriate as to evidence intentional maltreatment or a refusal to provide essential care.”
Id.
“A plaintiff can show deliberate indifference in the level of care provided in different
ways, including showing grossly incompetent or inadequate care, showing a defendant’s decision
to take an easier and less efficacious course of treatment, or showing a defendant intentionally
delayed or denied access to medical care.” Allard v. Baldwin, 779 F.3d 768, 772 (8th Cir. 2015)
(citing Smith v. Jenkins, 919 F.2d 90, 93 (8th Cir.1990), and Meloy v. Bachmeier, 302 F.3d 845,
849 (8th Cir. 2002)); see also Langford v. Norris, 614 F.3d 445, 460 (8th Cir. 2010) (“Grossly
incompetent or inadequate care can constitute deliberate indifference, as can a doctor’s decision
to take an easier and less efficacious course of treatment.”) (citation omitted). To state a claim
based on “inadequate medical treatment . . . [t]he plaintiff ‘must show more than negligence,
more even than gross negligence, and mere disagreement with treatment decisions does not rise
to the level of a constitutional violation.’” Id. (quoting Alberson v. Norris, 458 F.3d 762, 765
(8th Cir. 2006)).

12

Plaintiff argues that defendant’s decision to monitor his condition violated the applicable
standard of care for treatment of those with HCV, which he claims required defendant to treat
him with DAA drugs or refer him to a liver specialist for such treatment. Viewing the evidence
in the record and drawing all reasonable inferences in the light most favorable to plaintiff’s
claims, the Court finds that no reasonable factfinder could conclude that defendant’s decision to
monitor plaintiff’s health was “so inappropriate as to evidence intentional maltreatment or a
refusal to provide essential care.” Jackson, 756 F.3d at 1066. First, the undisputed medical
evidence shows that plaintiff’s disease was “very mild” when he was evaluated at the SLU Liver
Center in September 2015, with normal liver function, no increase in fibrosis, and only very mild
inflammation. Lab tests in July 2016 showed that plaintiff’s viral load had improved since
September 2015, and liver function tests in September 2016 were normal.

Furthermore,

plaintiff’s clinical presentation did not show signs that his condition was worsening. Second, Dr.
Hasting testified that the average length of incarceration for inmates at the Justice Center was 40
days and she had no guarantee that plaintiff could complete the 12-week course of treatment
required for DAA drugs. Defendant’s decision to monitor plaintiff’s condition rather than
administer DAAs is consistent with the IDSA/AASLD Guidelines to counsel jailed patients
during the incarceration period, followed by a referral to community healthcare for evaluation
and treatment. The Court acknowledges that plaintiff spent slightly more than a year at the
Justice Center and that the Guidelines recommend treatment for individuals with jail sentences
“sufficiently long” to complete treatment with DAAs. Plaintiff was a pretrial detainee, however,
and thus was not serving a fixed sentence of known duration. Defendant was not in a position to
know when plaintiff would leave the Justice Center, and she was not required to accept at face
value plaintiff’s belief that he would remain incarcerated for “awhile.”

13

Plaintiff cites Harrison v. Barkley, 219 F.3d 132, 139 (2d. Cir. 2000), for the proposition
that “refus[ing] treatment of a properly diagnosed condition that [is] progressively degenerative,
potentially dangerous and painful, and that could be treated easily and without risk . . . is not
mere ‘medical malpractice.’” In Harrison, the plaintiff “allege[d] that prison officials refused to
treat a cavity in one tooth unless he consented to the extraction of another tooth, which was also
diseased but which he nevertheless wished to keep.” Id. at 134. The “other tooth” in Harrison's
case was a “carious non-restorable tooth.”

Id.

The non-restorable tooth was not causing

Harrison any pain. Id. The dentist refused to treat the cavity plaintiff wanted fixed claiming that
institutional policy required the dentists to treat the more serious condition first. Id. at 136. The
prison officials refused to treat Harrison’s tooth for “nearly a year,” and they would have
continued to refuse to treat his tooth indefinitely had they not been required to by a court order to
provide treatment. Id. The majority characterized defendants’ conduct as: “(1) a flat refusal of
medical treatment for a condition that if left untreated is serious and painful; or (2) a conditional
refusal of such treatment, subject to Harrison’s consent to undergo an unwanted medical
procedure that would deprive him of a body part he wished to keep.” Id. at 137. The court
found that Harrison had stated an Eighth Amendment claim of deliberate indifference.
Here, defendant did not refuse to treat plaintiff’s hepatitis C and thus this case is
distinguishable from Harrison. She evaluated both plaintiff’s physical condition and lab results
and determined that his condition was stable. She testified that, if his condition deteriorated, she
would have referred him to a liver specialist. In her medical judgment, it was not in plaintiff’s
best interest to begin a treatment that he might not be able to complete before discharge. This
decision is consistent with the IDSA/AASLD Guidelines.

14

To the extent that plaintiff contends that defendant improperly delayed his treatment with
Harvoni or another DAA drug, his claim fails because he has not submitted any medical
evidence that he suffered any detrimental effects from the alleged delay. Jackson v. Riebold, 815
F.3d 1114, 1119–20 (8th Cir. 2016) (inmate “must place verifying medical evidence in the
record to establish the detrimental effect of delay in medical treatment.”) (internal quotation and
citation omitted).
Plaintiff argues that a triable dispute of fact arises from what he characterizes as
defendant’s shifting or contradictory reasons for not treating plaintiff with DAA drugs. See
Statement of Additional Facts at ¶ 34 [Doc. # 72]. In the course of her deposition, defendant
identified a number of factors that she stated were relevant to her decisions regarding plaintiff’s
treatment. The testimony, read as a whole, is not contradictory.
Plaintiff argues that he was denied antiviral treatment required by the standard of care for
hepatitis C. However, the Eighth Amendment does not mandate that inmates receive a particular
or requested course of treatment, and prison doctors remain free to exercise their independent
medical judgment. Dulany v. Carnahan, 132 F.3d 1234, 1239 (8th Cir. 1997). Plaintiff has
failed to establish that defendant’s decision to monitor his physical condition rather than start
him on DAA drugs amounted to deliberate indifference to his hepatitis. See Roy v. Lawson, 739
F. App’x 266 (5th Cir. 2018) (rejecting inmate’s claim that defendants were deliberately
indifferent to his hepatitis C “when they failed to refer him for treatment and performed only
blood work, labs, and monitoring . . . condition despite the high-risk nature of the disease”);
Workman v. Atencio, No. 1:16-CV-00309-BLW, 2018 WL 4496628, at *6 (D. Idaho Sept. 19,
2018) (assuming standard of care for treating hepatitis C requires DAA drugs, plaintiffs did not
present sufficient evidence that their particular medical conditions warrant treatment with DAAs

15

under that standard); Pevia v. Wexford Health Source, Inc., No. CV ELH-16-1950, 2018 WL
999964, at *16 (D. Md. Feb. 20, 2018), aff’d sub nom. Pevia v. Comm’r of Corr., 731 F. Ap’x
243 (4th Cir. 2018) (rejecting plaintiff’s argument that, under the Eighth Amendment, “as soon
as Harvoni became available he was entitled to receive it”); Phelps v. Wexford Health Sources,
Inc., No. CV ELH-16-2675, 2017 WL 528424, at *9 (D. Md. Feb. 8, 2017) (medical defendants
entitled to summary judgment on inmate’s claim that he was improperly denied Harvoni where
he was regularly monitored for his HCV and his test results continue to show an absence of viral
load).
B.

Plaintiff’s Astigmatism and Sleep Apnea

Defendant argues, and plaintiff does not dispute, that there is no medical evidence in the
record that plaintiff suffered from astigmatism or sleep apnea during his incarceration. Thus,
plaintiff has failed to establish that these complaints constitute a serious medical condition.
***
The Court finds that defendant is entitled to summary judgment on the undisputed
material facts on plaintiff’s claims. The Court thanks appointed counsel for their invaluable
assistance in this important case.

Pursuant to E.D. L.R. 12.03, counsel may request

compensation of services and reimbursement of out-of-pocket expenses. A request form may be
found on the Court’s website, at https://www.moed.uscourts.gov/appointed-counsel-fees-andexpenses.
Accordingly,
IT IS HEREBY ORDERED that defendant’s motion for summary judgment [Doc. # 57]
is granted.

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IT IS FURTHER ORDERED that plaintiff’s motion to strike [Doc. # 69] is denied as
moot.
A judgment in accordance with this Memorandum and Order will be entered.

/s/ John M. Bodenhausen
JOHN M. BODENHAUSEN
UNITED STATES MAGISTRATE JUDGE
Dated this 27th day of December, 2018.

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