Roy v. Lawson et al
Filing
57
ORDER ADOPTING IN PART and DECLINES TO ADOPT IN PART MEMORANDUM AND RECOMMENDATIONS re: 47 Memorandum and Recommendations; GRANTS 38 Defendants' Motion for Summary Judgment; and DISMISSES WITH PREJUDICE Plaintiff's claims against all defendants. (Signed by Judge Hilda G Tagle) Parties notified.(scavazos, 1)
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
ALEX ROY; aka ALEX JOSEPH ROY,
JR.; aka A.J. ROY; aka AL ROY,
Plaintiff,
VS.
TANYA LAWSON, et al,
Defendants.
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February 27, 2018
David J. Bradley, Clerk
CIVIL NO. 2:17-CV-9
ORDER
I.
Introduction
The Court has before it Defendants’ Motion for Summary Judgment (Dkt. No.
38), the Memorandum and Recommendation (“M&R”) of the Magistrate Judge to
whom this case is referred (Dkt. No. 47), the parties’ objections to the M&R (Dkt.
Nos. 50, 51), and Plaintiff’s response to Defendants’ objections (Dkt. No. 53).
Plaintiff Alex Roy brings this § 1983 civil rights action against prison
officials, arguing that they were deliberately indifferent to his serious medical needs
by not treating him or referring him for treatment for his Hepatitis C condition. The
Magistrate Judge recommends that the Court dismiss Plaintiff’s claim for injunctive
relief in the form of receiving treatment, and that the Court retain his claims for
injunctive relief in the form of a referral for treatment. For the reasons below, the
Court ADOPTS IN PART and DECLINES TO ADOPT IN PART the M&R and
DISMISSES WITH PREJUDICE all of Plaintiff’s claims against all defendants.
II.
Procedural History
Plaintiff is currently serving a ninety-five year sentence for aggravated
robbery at the Texas Department of Criminal Justice, Criminal Institutions
Division (“TDCJ-CID”), and is housed at the McConnell Unit in Beeville, Texas. On
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January 9, 2017, Plaintiff filed his § 1983 claim for injunctive relief against the
following McConnell Unit officials in their official capacities: (1) Tanya Lawson
(“Lawson”), Medical Practice Manager; (2) Dr. Isaac Kwarteng (“Kwarteng”),
Medical Director; and (3) Susanna Corbett (“Corbett”), Physician Assistant (“PA”).
Dkt. No. 1. Plaintiff specifically alleges that Defendants were deliberately
indifferent to his serious medical needs by not treating him or referring him for
treatment for his Hepatitis C condition. Dkt. No. 4.
On February 21, 2017, the Magistrate Judge to whom this case was referred
conducted a Spears1 hearing. After the hearing, the Magistrate Judge ordered
service of Plaintiff’s complaint and memorandum in support on Defendants. Dkt.
No. 12. On April 6, 2017, Defendants filed their answer. Dkt. No. 13). On August 4,
2017, Defendants filed their instant Motion for Summary Judgment. Dkt. No. 38.
Plaintiff responded to the motion on August 21, 2017. Dkt. No. 41.
On December 29, 2017, the Magistrate Judge issued an M&R recommending
that the Court grant in part and deny in part Defendant’s motion for summary
judgment. Dkt. No. 47. Both parties objected to the M&R, and Plaintiff also filed a
response to Defendants’ objections. Dkt. Nos. 50, 51, 53. The Court now considers
Defendant’s summary-judgment motion.
III.
Summary-Judgment Evidence
Defendants attach the following summary-judgment evidence to their motion:
Relevant Portions of TDCJ’s Health Services Medical Records for Alex Roy
(Dkt. No. 38-1 at 2-40);
Affidavit of Dr. Stephen Bowers (Dkt. No. 38-1 at 41-44);
Correctional Managed Health Care (“CMHC”) Policy B-14.13.3 (Dkt. No. 38-1
at 45-57);
1
Relevant Portions of Plaintiff’s Grievances (Dkt. No. 38-1 at 58-60);
Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).
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Relevant Portions of Lawson’s Responses to Plaintiff’s Interrogatories (Dkt.
No. 38-1 at 61-11);
Relevant Portions of Kwerteng’s Responses to Plaintiff’s Interrogatories (Dkt.
No. 38-1 at 67-71);
Relevant Portions of Corbett’s Responses to Plaintiff’s Interrogatories (Dkt.
No. 38-1 at 72-77).
Plaintiff has offered the following summary-judgment evidence:
Public Verification/Physician Profile of Defendant Bowers (Dkt. No. 41-1 at 910);
CMHC Policy Manual—Table of Contents (Dkt. No. 41-2 at 1-3);
September 12, 2016, Letter Regarding CMHC Policy 12.1 (Dkt. No. 41-2 at 4).
As the Magistrate Judge noted, “Plaintiff’s verified complaint, attachments
thereto, and testimony at the Spears hearing also serve as competent summary
judgment evidence.” Dkt. No. 47 at 3-4 (citing Garrett v. Davis, Case No. 2:14-cv-70,
2017 WL 1044969, at *3 (S.D. Tex. Mar. 20, 2017). But although these are part of
the record, they do not constitute competent summary-judgment evidence
wholesale. Rather, the verified complaint and Spears-hearing testimony, like other
parts of the record, must satisfy Federal Rule of Civil Procedure 56(c) in order to be
considered at summary judgment. See Mengele v. AT&T Servs. Inc., 2017 WL
3835871, at *3 (N.D. Tex. Aug. 9, 2017) (“[T]he verified complaint and sworn
interrogatory answers of the pro se litigant can be considered as summary judgment
evidence to the extent that such pleadings comport with the requirements of current
Rule 56(c).”) (emphasis added) (citations omitted); see also M&R, Dkt. No. 47 at 10.
Accordingly, the Court will not consider parts of Plaintiff’s verified complaint or
Spears-hearing testimony that are not made on personal knowledge or that would
be inadmissible in evidence. See FED. R. CIV. P. 56(c)(4). This is particularly
important to the extent that the Court is considering Plaintiff’s verified complaint
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and Spears-hearing testimony sua sponte, without offering the parties an
opportunity to contest their admission as competent summary-judgment evidence.
Certain portions of Plaintiff’s testimony must thus be excluded from the
Court’s consideration at this stage. For example, although Plaintiff is competent to
testify on matters such as his interactions with Defendants and the treatment (or
lack of it) that he received, his testimony regarding the price or effectiveness of
Hepatitis C medications is neither based on personal knowledge nor corroborated by
other evidence and his testimony regarding TDCJ’s reasons for not referring him for
treatment is speculative. The Court therefore declines to adopt the Magistrate
Judge’s inclusion of Plaintiff’s verified complaint and Spears-hearing testimony on
those matters, including the treatment-referral process and the effectiveness of
Interferon as a treatment for Hepatitis C.2 See Dkt. No. 47 at 4.
The Court adopts the Magistrate Judge’s characterization of the remaining
competent summary-judgment evidence:
A. Plaintiff’s Verified Complaint and Spears Hearing
Testimony
Plaintiff was diagnosed with Hepatitis C on or about February
12, 2015. Plaintiff was fifty-one years old at the time of the diagnosis.
Plaintiff first heard about the diagnosis from PA Corbett, who
informed Plaintiff about receiving chronic care treatment for his
Hepatitis C condition.
PA Corbett performed blood work on Plaintiff which included a
determination of his AST/Platelet Ration Index (APRI) as 0.5 in
February, 2015. Plaintiff testified that, in accordance with the policy in
effect in February, 2015, an APRI over 0.42 meant the patient was
eligible for referral for treatment. . . . The TDCJ criteria regarding
Hepatitis C was changed, effective April 14, 2016, raising the APRI
threshold score for referral for treatment to 0.7. This change occurred
after Plaintiff’s grievance challenging the denial of referral for
treatment was answered. Plaintiff’s latest APRI score is 0.593.
Nevertheless, Plaintiff continues to be denied treatment for his serious
Hepatitis C condition, which could lead to liver cancer.
The Court notes that Plaintiff has objected to the inclusion of this testimony in the summaryjudgment record. See Dkt. No. 51 at 7 (“At no time did Plaintiff reference Interferon as a treatment
for the Hepatitis C Virus Infection he has.”).
2
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B. Relevant Medical Care Evidence
The Hepatitis C Policy is set forth in the CMHC Infection
Control Manual as Policy B-14.13-3 (Hepatitis C Policy). (D.E. 38-1, pp.
46-57). The Hepatitis C Policy provides “guidance regarding the modes
of transmission, screening, prevention, initial evaluation, clinical
management, evaluation during treatment, housing, and work
assignments of offenders with Hepatitis C (HCV).” (D.E. 38-1, p. 46).
This policy states on the first page that it became effective April 14,
2016, replacing the old policy dated February 12, 2015. (D.E. 38-1, p.
46).
Dr. Stevens Bowers, licensed by the Texas Medical Board and
the current Legal Coordinator for the University of Texas Medical
Branch Correctional Managed Care (UTMB/CMC), testified in his
affidavit:
UTMB-CMC policy requires that patients with a
Hepatitis C Infection must be enrolled in the Chronic
Care Clinic and seen at least once every 12 months.
Patients identified as currently Hepatitis C infected and
enrolled in the Chronic Care Clinic may be discharged
from the Chronic Care Clinic, if baseline transaminases
and liver function tests are all within normal limits.
An [APRI] score is assigned to Hepatitis patients using
testing. This score provides indication for signs or
symptoms of liver disease as a result of Hepatitis C. the
APRI score is used to determine if the offender patient is
a candidate for referral to a designated provider or clinic
to be evaluated for possible treatment of Hepatitis C.
Patients with APR scores less than or equal to 0.7 do not
require evaluation for possible treatment.
(D.E. 38-1, p.42). The Hepatitis C Policy specifically provides that
“patients with APRI scores [less than or equal to] 0.7 generally do not
require evaluation for possible treatment,” but that the provider may
consider the inmate-candidate for treatment based on other factors
such as the history of the infection, clinical or laboratory evidence of a
failing liver, or the presence of co-morbid conditions. (D.E. 38-1, p. 49).
The provider retains discretion in his clinical judgment whether a
patient with an APRI lower than 0.7 should be referred for possible
treatment. (D.E. 38-1, p. 49).
On February 2, 2015, following a sick call request, Plaintiff was
examined in the medical department for complaints of diarrhea and
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stomach cramps. (D.E. 38-1, p. 4). Dr. Kwarteng, who was Plaintiff’s
treating physician, prescribed certain medications for Plaintiff. (D.E.
38-1, pp. 5-6). Dr. Kwarteng performed a physical examination on
Plaintiff on February 11, 2015. (D.E. 38-1, p. 7). Because Plaintiff
tested positive for Hepatitis C, Dr. Kwarteng ordered a series of labs,
including a request to obtain Plaintiff’s APRI score. (D.E. 38-1, pp. 79). Plaintiff’s APRI score in February, 2015 was 0.5. (D.E. 38-1, p. 42).
On February 11, 2015, Licensed Vocational Nurse (LVN) Michelle
McGee notified the Office of Public Health about Plaintiff’s Hepatitis C
diagnosis. (D.E. 38-1, p. 3).
On August 11, 2015, Plaintiff was treated by PA Corbett. (D.E.
38-1, pp. 10-14). After noting Plaintiff’s APRI score of 0.5 met “the
criteria for referral for treatment,” PA Corbett expressly directed
Plaintiff to be scheduled at the Hepatitis Chronic Care Clinic (CCC)
within 30 days. (D.E. 38-1, pp. 14, 16, 19). PA Corbett stated in her
response to Plaintiff’s Interrogatories, however, that the Hepatitis C
referral criteria was updated in 2015 to require an APRI score of 0.7
and that, therefore, her referral recommendation on August 11, 2015
never occurred. (D.E. 38-1, p. 74).
On December 11, 2015, PA Corbett completed an Individual
Treatment Plain on behalf of Plaintiff. (D.E. 38-1, pp. 22-29). This plan
noted Plaintiff’s APRI score at 0.5. (D.E. 38-1, p. 23). PA Corbett
determined that Plaintiff’s Hepatitis C did not meet the criteria for
further treatment at that time and directed Plaintiff to be scheduled at
the CCC for Hepatitis C concerns in twelve months. (D.E. 38-1, pp. 26,
29).
On August 19, 2016, PA Corbett examined Plaintiff and ordered
lab work for Plaintiff to be taken before his next CCC appointment.
(D.E. 38-1, pp. 31-32, 43). The lab work revealed Plaintiff’s Hepatitis C
condition to be stable and not requiring any treatment. (D.E. 38-1, pp.
34, 43). Dr. Kwarteng examined Plaintiff on August 22, 2016, at which
time Plaintiff expressed his concerns about his Hepatitis C treatment
plan. (D.E. 38-1, pp. 33-34, 43). Dr. Kwarteng informed Plaintiff that
he did not meet the clinical criteria for referral for treatment because
his APRI score was less than 0.7. (D.E. 38-1, pp. 34, 42-43).
Plaintiff’s APRI score was updated on January 13, 2016 to be
0.593. (D.E. 38-1, p. 35). On December 20, 2016, Dr. Kwarteng
examined Plaintiff and prepared an Individualized Treatment Plan.
(D.E. 38-1, pp. 35-40). Plaintiff’s lab work was documented in this plan,
including his APRI score of 0.593. (D.E. 38-1, pp. 35-36). Dr. Kwarteng
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ordered lab work for Plaintiff to be performed again in November,
2017. (D.E. 38-1, p. 38).
C. Plaintiff’s Grievances
In his Step 1 grievance (Grievance No. 2016058284), dated
December 13, 2015, Plaintiff complained about not satisfying the
Hepatitis C criteria for referral for further treatment. (D.E. 4, pp. 1112). According to Plaintiff, the UTMB changed the criteria from an
APRI score of 0.4 to 0.7 due to cost measures. (D.E. 4, p. 11). The
reviewing officer denied Plaintiff relief, noting that his APRI score was
0.5, that his Hepatitis C condition would continue to be monitored, and
that he would be referred for treatment once his APRI score becomes
greater than 0.7. (D.E. 4, p. 12). Plaintiff’s Step 2 grievance, dated
February 20, 2016, also was rejected based on the fact his APRI score
was not high enough under the Hepatitis C policy to require referral
for treatment. (D.E. 4, pp. 13, 14).
In his Step 1 grievance (Grievance No. 2016201919), dated
August 22, 2016, Plaintiff complained that PA Corbett and Dr.
Kwarteng had denied him treatment for his Hepatitis C condition.
(D.E. 4, pp. 15-16). Medical Practice Manager Lawson denied this
grievance on September 27, 2016, finding that Plaintiff’s APRI score
was 0.593 and that the score must be greater than 0.7 for him to be
referred for treatment. (D.E. 4, p. 16). Medical Practice Manage[r]
Lawson also responded to Plaintiff’s I-60 request, dated October 3,
2016, by reiterating to Plaintiff that he was ineligible for referral for
Hepatitis C treatment. (D.E. 4, p. 28). Plaintiff’s Step 2 grievance,
dated October 6, 2016, was rejected because Plaintiff had “been
evaluated by the unit doctor and the findings [revealed that Plaintiff
had not met] the criteria for referral to Hep-C clinic.” (D.E. 4, pp. 17,
18).
In his Step 1 grievance (Grievance No. 2017021582), dated
November 17, 2016, Plaintiff complained about the inadequate medical
care he had received at the McConnell Unit infirmary, including the
lack of treatment for this Hepatitis C condition. (D.E. 4, pp. 23, 24).
Medical Practice Manager Lawson denied this Grievance on November
17, 2016, finding in part that he had been notified about not meeting
the criteria for referral for treatment as to his Hepatitis C condition.
(D.E. 4, p. 24). Plaintiff’s Step 2 grievance, dated November 24, 2016,
was subsequently denied. (D.E. 4, pp. 25-26).
D. Additional Evidence
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Along with his own grievances, Plaintiff has submitted Step 1
and 2 grievances filed by another McConnell Unit inmate, Jeffrey
Sharp. (D.E. 4, pp. 19-22). Inmate Sharp complained in his Step 1
grievance dated May 26, 2016, that his Hepatitis C condition had been
evaluated on February 3, 2016, but that he was denied treatment.
(D.E. 4, pp. 19-20). The reviewing officer denied his Step 1 grievance.
(D.E. 4, p. 19).
In his Step 2 grievance, dated August 29, 2016, offender Sharp
reiterated his complaints that his Hepatitis C condition was only being
monitored and not treated. (D.E. 4, p. 21). The reviewing officer denied
offender Sharp’s Step 2 grievance on September 23, 2016 on the basis
that the inmate’s APRI score was 0.28, which was “below the 0.42
guidelines” in effect. (D.E. 4, p. 22).
Dkt. No. 47 at 4-9. The major fact disputes in this case are thus whether the
CMHC policy between February 2015 and April 2016 set a 0.42 or 0.7 threshold for
referral for further Hepatitis C treatment and whether Kwarteng and Corbett
followed that policy.
IV.
Legal Standard
As the Magistrate Judge describes:
Summary judgment is proper if there is no genuine issue as to
any material fact and the moving party is entitled to judgment as a
matter of law. [FED. R. CIV. P. 56(a)]. A genuine issue exists “if the
evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The Court must examine “whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of law.” Id. at
251-52.
In making this determination, the Court must consider the
record as a whole by reviewing all pleadings, depositions, affidavits
and admissions on file, and drawing all justifiable inferences in favor
of the party opposing the motion. Caboni v. Gen. Motors Corp., 278
F.3d 448, 451 (5th Cir. 2002). The Court may not weigh the evidence,
or evaluate the credibility of witnesses. Id. . . .
The moving party bears the initial burden of showing the
absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). If the moving party demonstrates an absence of
evidence supporting the nonmoving party’s case, then the burden shifts
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to the nonmoving party to come forward with specific facts showing
that a genuine issue for trail does exist. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986). To sustain this burden,
the nonmoving party cannot rest on the mere allegations of the
pleadings. [Fed. R. Civ. P. 56(c)]; Anderson, 477 U.S. at 248. “After the
nonmovant has been given an opportunity to raise a genuine factual
issue, if no reasonable juror could find for the nonmovant, summary
judgment will be granted.” Caboni, 278 F.3d at 451. “If reasonable
minds could differ as to the import of the evidence . . . a verdict should
not be directed.” Anderson, 477 U.S. at 250-51.
The evidence must be evaluated under the summary judgment
standard to determine whether the moving party has shown the
absence of a genuine issue of material fact. “[T]he substantive law will
identify which facts are material. Only disputes over facts that might
affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.” Id. at 248.
Dkt. No. 47 at 9-11.
V.
Discussion
At the outset, the Court adopts the Magistrate Judge’s M&R as to Plaintiff’s
claims against Lawson and dismisses his claim against her. The Court therefore
turns to Plaintiff’s claims against Kwerteng and Corbett (hereinafter “Defendants”).
Defendants argue that Plaintiff’s deliberate indifference claims are barred by
the Eleventh Amendment because Plaintiff cannot show success on the merits of his
deliberate-indifference claims and because prospective injunctive relief in the form
of actual medical treatment is inappropriate. Dkt. No. 38 at 18-20. Plaintiff argues
that genuine issues of material fact exist as to his deliberate-indifference claims.
Dkt. No. 41 at 4.
The Magistrate Judge concluded that “genuine issues of material fact exist as
to whether Dr. Kwarteng and PA Corbett were aware of a significant health risk to
Plaintiff and then failed to act on this serious risk.”. Dkt. No. 47 at 19. He found
that the fact issues indicated “that any possible violations of Plaintiff’s Eighth
Amendment rights are ongoing as Plaintiff has yet to obtain a referral . . . for
possible treatment.” Dkt. No. 47 at 20. Although the Magistrate Judge concluded
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that Plaintiff could not seek actual treatment, he recommends that the case
continue to trial on whether Plaintiff is entitled to a referral for treatment. Id. at
21-22.
This Court disagrees that this lawsuit should proceed for two reasons. First,
Plaintiff has not presented a genuine issue as to his Eighth-Amendment deliberateindifference claims. Second, his action is barred by the Eleventh Amendment. The
Court addresses each issue below.
A.
Plaintiff’s Deliberate-Indifference Claim
“For an official to act with deliberate indifference, the official must both be
aware of facts from which the inference could be drawn that a substantial risk of
harm exists, and he must also draw the inference.” Smith v. Brenoettsy, 158 F.3d
908, 911-912 (5th Cir. 1998). This standard is extremely high, requiring a plaintiff
to show that officials “refused to treat him, ignored his complaints, intentionally
treated him incorrectly, or engaged in any similar conduct that would clearly evince
a wanton disregard for any serious medical needs.” Johnson v. Treen, 759 F.2d
1236, 1238 (5th Cir. 1985).
The Magistrate Judge concluded that “a jury could find that Dr. Kwarteng
and PA Corbett intentionally ignored the Hepatitis C guidelines in effect from the
time he was diagnosed in February, 2015, through early 2016.” Dkt. No. 47 at 19.
But the issue before the Court is not merely whether Defendants followed the
CMHC Hepatitis C policy, but rather whether they ultimately were deliberately
indifferent to a serious risk of harm to Plaintiff. Mere non-adherence to a policy
does not violate the Eighth Amendment, just as adherence to a policy does not
necessarily preclude a finding of deliberate indifference. “[U]nsuccessful medical
treatment and acts of negligence or medical malpractice do not constitute deliberate
indifference, nor does a prisoner’s disagreement with [his] medical treatment,
absent exceptional circumstances.” Sama v. Hannigan, 669 F.3d 585, 590 (5th Cir.
2012).
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Defendants have offered evidence that they did not wantonly disregard
Plaintiff’s Hepatitis C violation so as to violate the Eighth Amendment. For
example, Plaintiff’s records show that Defendants regularly tested for and
monitored his Hepatitis C condition. Plaintiff, in sum, argues that Defendants
should have referred him for further treatment. This amounts to little more than a
disagreement over what constitutes adequate testing and treatment for his
condition. See Whiting v. Kelly, 255 Fed.Appx. 896, 899 (5th Cir. 2007) (“Although
[plaintiffs] clearly believe that they should undergo additional testing and drug
therapies, such disagreement does not give rise to a constitutional claim.”) (citations
omitted). Plaintiff thus has not offered competent evidence that Defendants were
deliberately indifferent to a serious medical need, and therefore he does not present
a genuine issue as to his Eighth-Amendment claims.
Although Plaintiff’s evidence may call into question whether Defendants
adhered to the 2015 CMHC Hepatitis C policy, it does not raise a genuine issue as
to whether the possible failure to adhere to the policy constituted an EighthAmendment violation. See McCarty v. Zapata County, 243 Fed.Appx. 792, 794 (5th
Cir. 2007) (“[Plaintiff’s] allegations established, at best, that the defendants failed
to follow the course of treatment that was recommended by the physician who saw
him . . . . This is insufficient to establish deliberate indifference.”) (citing Domino v.
Texas Dep’t of Criminal Justice, 239 F.3d 752, 756 (5th Cir. 2001)). Plaintiff’s
summary-judgment evidence does not speak to the central issue of whether
Defendants were deliberately indifferent to Plaintiff’s serious medical condition.
Plaintiff argues that Defendants “have [deliberately] ignored Plaintiff’s plight with
Hepatitis C Virus Infection in their respective official capacity due to the cost of the
[medications,]” but he has offered no competent summary-judgment evidence
supporting that assertion. Dkt. No. 53 at 3. Defendants are therefore entitled to
summary judgment on Plaintiff’s Eighth-Amendment claim.
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B.
Eleventh-Amendment Immunity
Even if Plaintiff had offered evidence that Defendants were deliberately
indifferent when they tested and monitored him in 2015 and early 2016, he has not
offered competent evidence to show an ongoing violation that would entitle him to
prospective injunctive relief. As the Magistrate Judge identified, the Eleventh
Amendment bars claims against state officials for injunctive relief unless the
plaintiff seeks only prospective injunctive relief and “seeks to address a ‘continuing
violation of federal law.’ ” Dkt. No. 47 at 20 (quoting Walker v. Livingston, 381
F.Appx 477, 478-79 (5th Cir. 2010) (per curiam) (citing Seminole Tribe of Florida v.
Florida, 517 U.S. 44, 73 (1996))).
Regardless of any dispute over whether the CMHC Hepatitis C policy in 2015
and early 2016 set a 0.42 or 0.7 APRI threshold for a possible treatment referral,
the uncontroverted summary-judgment evidence establishes that the current APRI
threshold is 0.7. See CMHC Policy, Dkt. No. 38-1 at 49 (setting a 0.7 APRI threshold
as of April 14, 2016); Bowers Aff., Dkt. No. 38-1 at 42. Plaintiff has offered no
competent evidence to show that the current 0.7 APRI threshold violates the Eighth
Amendment. His claims are therefore barred by the Eleventh Amendment and his
case must be dismissed.
In sum, the Court has not been presented with competent summaryjudgment evidence supporting Plaintiff’s claims that Defendants’ past and present
practices toward Plaintiff and his Hepatitis C condition constitute deliberate
indifference to a serious medical need. There is therefore no genuine issue of
material fact, and summary judgment in favor of Defendants is appropriate.
VI.
Conclusion
Accordingly, this Court ADOPTS IN PART and DECLINES TO ADOPT
IN PART the Magistrate Judge’s December 29, 2017. M&R (Dkt. No. 47). The
Court GRANTS Defendants’ Motion for Summary Judgment (Dkt. No. 38) and
DISMISSES WITH PREJUDICE Plaintiff’s claims against all defendants. The
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Court will separately enter Final Judgment in accordance with Federal Rule of Civil
Procedure 58.
SIGNED this 26th day of February, 2018.
___________________________________
Hilda Tagle
Senior United States District Judge
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