Hinton v. Unknown
Filing
45
MEMORANDUM OPINION. Signed by District Judge John A. Gibney, Jr. on 03/12/2020. (Copies distributed as directed) (smej, )
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:
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IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
in
IJ
1
Richmond Division
CLERK. U.S. DISTRICT COURT
DONALD LEE HINTON,
RICHMOND. VA
Plaintiff,
V.
Civil Action No. 3:18CV59
MARK AMONETTE,et al.
Defendants.
MEMORANDUM OPINION
Donald Lee Hinton, Virginia inmate proceeding pro se and informa pauperis, filed this
civil action under 42 U.S.C. § 1983.' The action proceeds on Hinton's Second Particularized
Complaint("Complaint,"ECF No. 19).^ In his Complaint,Hinton contends that Defendant Harold
W. Clarke, Director of the Virginia Department of Corrections ("VDOC"), violated his rights
under the Eighth Amendment^ by promulgating a policy that denies inmates, such as Hinton,
medication for Hepatitis C "solely because of cost" and which "'states you must be real sick with
'That statute provides, in pertinent part:
i
Every person who, under color of any statute ... of any State ... subjects,
or causes to be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to the party injured in an action
or
at law....
42 U.S.C. § 1983.
^ The Court employs the pagination assigned by the CM/ECF docketing system to the
parties' submissions. The Court corrects the spelling and capitalization in the quotations from the
parties' submissions.
^ "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted." U.S. Const, amend. VIII.
this deadly virus' before medication can be given
"(Jd. at 3.) Hinton contends that Defendant
Mark Amonette, Chief Medical Director of the VDOC,violated his Eighth Amendment rights by
enforcing this policy. {Id. at 4.) Hinton demands monetary damages and injunctive relief. {Id.
at 7.)
This matter is before the Court on the Motion for Summary Judgment filed by Defendants.
(ECF No. 38.) Hinton has responded. (ECF Nos. 42, 43.) For the reasons stated below, the
Motion for Summary Judgment (ECF No. 38) will be GRANTED IN PART and DENIED IN
PART WITHOUT PREJUDICE.
I.
STANDARD FOR SUMMARY JUDGMENT
Summaryjudgment must be rendered "ifthe 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." Fed. R. Civ.
P. 56(a). The party seeking summary judgment bears the responsibility ofinforming the Court of
the basis for the motion and identifying the parts ofthe record which demonstrate the absence of
a genuine issue of material fact. See Celotex Corp. v. Catrett, All U.S. 317,323(1986). "[Wjhere
the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary
judgment motion may properly be made in reliance solely on the pleadings, depositions, answers
to interrogatories, and admissions on file." Id. at 324 (internal quotation marks omitted). When
the motion is properly supported,the nonmoving party must go beyond the pleadings and,by citing
affidavits or '"depositions, answers to interrogatories, and admissions on file,' designate 'specific
facts showing that there is a genuine issue for trial.'" Id. (quoting former Fed. R. Civ. P. 56(c),(e)
(1986)).
In reviewing a summary judgment motion, the Court "must draw all justifiable inferences
in favor of the nonmoving party." United States v. Carolina Transformer Co.,978 F.2d 832, 835
(4th Cir. 1992) (citing Anderson v. Liberty Lobby, Inc., All U.S. 242, 255 (1986)). A mere
''scintilla ofevidence," however, will not preclude summaryjudgment. Anderson, All U.S. at 251
(quoting Improvement Co. v. Munson, 81 U.S. (14 Wall.) 442, 448 (1872)). "[TJhere is a
preliminary question for the judge, not whether there is literally no evidence, but whether there is
any upon which a jury could properly proceed to find a verdict for the party ... upon whom the
onus ofproofis imposed." Id. (quoting Munson,81 U.S. at 448). Additionally,"Rule 56 does not
impose upon the district court a duty to sift through the record in search of evidence to support a
party's opposition to summary judgment." Forsyth v. Barr, 19 F.3d 1527, 1537 (5th Cir. 1994)
(quoting Skotak v. Tenneco Resins, Inc., 953 F.2d 909, 915 n.7 (5th Cir. 1992)); see Fed. R. Civ.
P. 56(c)(3)("The court need consider only the cited materials ....").
In support oftheir Motion for Summary Judgment, Defendants submit: (1)the affidavit of
Wandra Reed, R.N.("Reed Aff," ECF No. 39-1, at 1-7);(2) the affidavit of Mark Amonette,
M.D.("Amonette Aff.," ECF No. 39-2, at 1-7); (3) copies of Hinton's medical records (ECF
No. 39-1, at 8-185);(4) copies of the VDOC's guidelines regarding Hepatitis C Treatment(ECF
No. 39-2, at 8-43); and,(5)a copy of Hinton's referral for Hepatitis C treatment(ECF No. 39-2,
at 44-^6).
At this stage, the Court is tasked with assessing whether Hinton "has proffered sufficient
proof, in the form ofadmissible evidence,that could carry the burden ofproofofhis claim at trial."
Mitchell V. Data Gen. Corp., 12 F.3d 1310, 1316 (4th Cir. 1993)(emphasis added). As a general
rule, a non-movant must respond to a motion for summary judgment with affidavits or other
verified evidence. Celotex Corp., All U.S. at 324. Hinton filed a Response(ECF No. 42) and a
sworn document entitled "Affidavit"(ECF No. 43).
The facts offered by affidavit must be in the form ofadmissible evidence. See Fed. R. Civ.
P. 56(c). In this regard, the statement in the affidavit or sworn statement "must be made on
personal knowledge ... and show that the affiant is competent to testify on the matters stated."
Fed. R. Civ. P. 56(c)(4). Summary judgment affidavits must also "set out facts that would be
admissible in evidence." Id. Thus,"summary judgment affidavits cannot be conclusory or based
upon hearsay." Evans v. Techs. Applications & Serv. Co.,80 F.3d 954,962(4th Cir. 1996)(citing
Md. Highways Contractors Ass'n v. Maryland, 933 F.2d 1246, 1252(4th Cir. 1991); Rohrbough
V. Wyeth Labs., Inc., 916 F.2d 970,975 (4th Cir. 1990)).
In his Affidavit, Hinton makes a number of statements that are of no value in assessing the
propriety of summary judgment. Specifically, a number of Hinton's statements are either
conclusory, immaterial, or simply disagree with arguments made by Defendants. {See ECF
No. 43.) Hinton's conclusory and inadmissible assertions will not be considered in evaluating the
Motion for Summary Judgment. Additionally, Hinton swore under penalty of peijury to the truth
of his statements in his Complaint. Portions of Hinton's Complain, however, are conclusory legal
assertions, which fail to constitute admissible evidence.
In light ofthe foregoing submissions and principles, the following facts are established for
purposes of the Motion for Summary Judgment. The Court draws all permissible inferences in
favor of Hinton.
II.
UNDISPUTED FACTS
At all times relevant to this suit, Hinton was incarcerated at Lawrenceville Correctional
Center("LVCC"). (Reed Aff. ^ 5.)
A,
VDOC Policies Regarding Hepatitis C
"Hepatitis C is a viral infection that can lead to liver inflammation and scarring."
(Amonette Aff. ^5.) Some individuals infected with Hepatitis C are asymptomatic, and "in those
individuals, the disease can persist for many years without causing any harm." {Id.) For other
individuals, however,"the infection will cause liver disease to progress and result in illness." {Id.)
Initially,"VDOC issued Hepatitis C treatment guidelines in February 2004." {Id. ^ 6.) The
2004 guidelines were written before Dr. Amonette "assumed [his] current role within VDOC,"and
Dr. Amonette "was not involved in the preparation or implementation of those guidelines." {Id.)
In February 2015,"[bjased on advancements in the medications used to treat Hepatitis C infections
and generally evolving standards ofcare, VDOC issued updated Hepatitis C guidelines." {Id. 17.)
The VDOC guidelines "were revised in collaboration with Richard Sterling, M.D., a hepatologist
at [Virginia Commonwealth University ("VCU")]," who is "a nationally-recognized expert in
Hepatitis C." {Id.) This revision resulted in the June 2015 guidelines. {Id.)^ "Director Clarke,
although he has general awareness ofthe fact that the VDOC Hepatitis C guidelines exist, was not
involved in the preparation or administration ofthese guidelines." {Id. 18.) Additionally, Director
Clarke does not "have a hands-on role in the treatment of offenders with Hepatitis C, make
decisions about who receives medical care, or have any direct or indirect input into whether a
VDOC offender is referred to a specialist or otherwise treated with Hepatitis C medications." {Id.)
"Under the updated 2015 guidelines, VDOC entered into a Memorandum ofUnderstanding
[("MOU")] with the hepatology group at VCU Medical Center." {Id. ^ 9.) The 2015 guidelines
provide that,
based on the results of certain liver enzyme testing, inmates who show the worst
disease progression, including possible impairment of their liver functioning, will
^ The Court omits the secondary citations set forth in Defendants' affidavits.
5
be referred for assessment by the liver specialists at VCU. Inmates whose
laboratory test results show early or mild disease will be monitored through
periodic chronic care assessments, and they will also receive routine laboratory
testing to monitor their liver enzyme levels and watch for signs that their disease is
beginning to progress. The numerical values that determine when an inmate should
be considered for referral or additional testing were determined by the liver
specialists at VCU.
{Id.)
Specifically, pursuant to the 2015 guidelines, inmates receive an "Aspartate
Aminotransferase to Platelet ratio"("APRI")score and a "Fibrosis-4 index"("FIB-4")score. {Id.
110.) The criteria for treatment is as follows:
•
APRI score less than 0.5 and FIB-4 score less than 1.45: Offender is monitored
but not referred to VCU for evaluation. Inmates in this category will receive
periodic laboratory blood testing and chronic care appointments with a medical
provider at the institution.
•
APRI score of 0.5 to 1.5 and FIB-4 score is between 1.45 and 3.25:
Indeterminate range; requires additional testing to determine whether the
offender should be referred for evaluation.
•
APRI score greater than 1.5 and FIB-4 score greater than 3.25: Offender is
automatically referred to VCU for evaluation without any additional testing.
{Id.)
With respect to the referral process, "if an institutional physician believed that an inmate
should be considered for referral to the Hepatitis C clinic, the physician would forward their
medical information, including the results of the recent laboratory testing, to [Dr. Amnonette]."
{Id. TI11.) Using the above-listed criteria,"Dr. Amonette would determine whether the numerical
values in their laboratory results ... indicated that [the inmate] should be referred for evaluation."
{Id.) Upon approval for a referral,"the inmate would be seen through the Hepatitis C Telemedicine
Clinic. If no medical reason was found to not treat the inmate, the inmate would be prescribed
treatment and a prescription would be sent to the VCU pharmacy. That pharmacy would provide
the medication for the offender's treatment." {Id.) After providers at VCU "determine what
treatment is appropriate for a particular inmate, VDOC does not question or otherwise attempt to
alter that treatment plan. The decision as to which medication is prescribed is made by the VCU
provider at the VCU clinic." {Id ^ 12.)
VDOC implemented this referral process, in which inmates are referred "to the VCU
Hepatitis C Telemedicine Clinic for assessment and treatment by liver specialists[,] because
managing the treatment ofHepatitis C and the medications associated with that treatment(typically
direct-acting antivirals, or "DAAs")requires specialized training." {Id. 115.) In Dr. Amonette's
"professional opinion, it is not clinically appropriate to have VDOC medical providers 'in the
field' prescribe direct-acting antivirals without specialty input." {Id.) Dr. Amonette indicates that
"it is common for primary care physicians to refer patients infected with Hepatitis C to
hepatologists for treatment because non-specialist physicians are not completely knowledgeable
about the applicable standards of care relating to management of those patients." {Id. 116.)
The MOU between the VDOC and VCU was modified in September 2018, "and the
telemedicine clinic has been expanded to allow more inmates to be referred for evaluation and
treatment. Following the expansion of the clinic capacity at VCU,that institution has estimated
that they will be able to treat approximately 624 offenders per year." {Id.
19.)
In April 2019, the current VDOC guidelines were issued. {Id. ^ 22.) "Under these
guidelines, VDOC continues to prioritize treatment based on disease severity, dividing inmates
into three priority levels." {Id.) Inmates in priority levels 1 and 2,"which include inmates who
are determined to have liver scarring or fibrosis, as well as those inmates with medical conditions
that could exacerbate liver disease(such as HIV)"receive treatment for Hepatitis C. {Id.) "Priority
level 3 inmates receive ongoing chronic care monitoring and routine testing to watch for signs of
disease progression." {Id.)
With respect to the medical treatment provided to individuals with Hepatitis C, "[t]he
American Association for the Study of Liver Disease(AASLD)recommends that, at some point,
everyone with Hepatitis C should receive treatment. The AASLD, however, also acknowledges
that, in certain circumstances, it is appropriate to prioritize care." {Id.
23.) In determining
medical treatment for inmates, "VDOC does not have a line-item budget for Hepatitis C
medications, and VDOC does not stop referring or treating inmates because a certain figure has
been reached." {Id. 113.) Further,"[c]ost is not a factor in determining how many inmates will
be treated for Hepatitis C in a fiscal year. VDOC does not make decisions not to treat offenders
based on finances." {Id. 1 14.) VDOC, however, is unable to refer all inmates "who have been
diagnosed with Hepatitis C for immediate evaluation and treatment because the VCU
Telemedicine Clinic does not have the capacity to see that many inmates at once." {Id. 117.) For
example, in 2015,"VCU only had the capacity to see 250 patients." {Id.) "VDOC has tried,
unsuccessfully, to enter into arrangements with other specialty groups, so that VDOC could refer
more inmates for treatment." {Id.) As a result of VDOCs inability "to enter into any additional
arrangements, there is a practical limit to the number of inmates who can be referred at a single
time." {Id.) "The number of inmates who are treated per year has always been determined based
on the clinic capacity at VCU. No individual at VDOC has told the providers at VCU to limit the
number of patients they can treat." {Id. 118.)
B.
Hinton's Receipt of Medical Treatment for Hepatitis C
"On April 15,2015, Mr. Hinton had blood drawn so that he could be tested for several viral
diseases, including Hepatitis C (or HCV)." (Reed Aff. t 6.) On June 8, 2015, Dr. Calhoun, a
physician at LVCC, received and reviewed the results. {Id.) On July 1, 2015, additional
bloodwork was ordered, "which confirmed that Mr. Hinton had tested positive for HCV
antibodies." {Id. TI 7.) On July 9, 2015, Dr. Calhoun "ordered additional laboratory testing to
determine the HCV quantitative load." {Id. 8.)
|
Dr. Calhoun reviewed Hinton's laboratory results on July 19,2015. {Id. f 9.) Dr. Calhoun
"calculated an APRI score(Aspartate Aminotransferase to Platelet Ratio)of 0.248, and a FIB4 score of 1.10. Dr. Calhoun documented that these scores did not meet the current criteria
for referral to the hepatology specialists at VCU." {Id.) Subsequently, on October 2, 2015,
Hinton "had blood drawn so that he could receive genotype testing for his HCV. Those lab
results, which were generated on October 8, 2015, reflect that Mr. Hinton's HCV infection
was attributable to genotype Tb.'" {Id. ^ 10.)
Hinton met with a nurse on October 22, 2015, to discuss his HCV diagnosis. {Id. H 11.)
"As ofNovember 2015,HCV was added to the list ofconditions that were being monitored for
Mr. Hinton during his periodic chronic care visits at LVCC." {Id. H 12.) Thereafter, Hinton had
chronic care appointments, "which included a review of his HCV," on the following dates:
"11/25/15, 6/21/16, 11/22/16, 6/7/17, 11/30/17, 6/5/18, 10/3/18, 2/6/19, and 6/10/19." {Id.
^ 47.) Hinton had Woodwork "to assess the status of his HCV infection" on the following dates:
"4/15/15, 7/1/15, 10/2/15, 3/3/16, 5/4/16, 9/30/16, 2/7/17, 11/8/17, 3/7/18, 8/3/18, 9/20/18,
11/15/18, 1/10/19, 1/23/19, and 1/29/19." {Id. f 48.) Hinton "also had two liver ultrasounds
andFibroscantesting." {Id.)
On March 11,2019, Hinton's "recent laboratory test results were faxed to VDOC's medical
director ... to see whether Mr. Hinton satisfied the criteria for referral to VCU's Telemedicine
Clinic." {Id. f 41.) Thereafter,"[o]n April 10, 2019, Dr. Amonette, the VDOC Chief Physician,
notified LVCC that Mr. Hinton had been approved for referral to the VCU Medical Center
Hepatitis C Telemedicine Clinic." {Id. ^ 43.) "[U]ntil March 2019, none of the medical
providers at LVCC discussed Mr. Hinton's HCV diagnosis with Dr. Amonette or otherwise
asked that Mr. Hinton be evaluated as a candidate for referral to the VCU Telemedicine
Clinic." {Id. T[ 50.) "Once Dr. Amonette approves an inmate for referral to VCU,the medical
providers at the institution are responsible for transmitting the appropriate paperwork to VCU and
coordinating the initial consultation." {Id. 151.) In his Affidavit, Hinton indicates that, as of July
27, 2019,"[he] still has not [had] any Hep[atitis] C virus medication at(VCU)or anything else."
(Hinton Aff. 3.)
III.
DEFENDANTS'ARGUMENTS FOR DISMISSAL
Defendants argue that their Motion for Summary Judgment should be granted because:
(1)Hinton's "claims for injunctive or equitable relief are moot, and Hinton cannot recover
compensatory damages from the Defendants in their official capacities," (2) Defendants are
entitled to qualified immunity, and (3) Hinton's claims fail on the merits. (Mem. Supp. Mot.
Summ. J. 13-20, ECF No. 39(emphasis omitted).)
A.
Injunctive Relief and Compensatory Damages for Official Capacity Claims
Defendants first argue that Hinton's claims for injunctive relief are moot "because Dr.
Amonette has approved Hinton for referral to the liver specialists at VCU,so that Hinton can be
evaluated for appropriate HCV medications and treatment." {Id. at 13 (citation omitted).)
"[A]case is moot when the issues presented are no longer 'live' or the parties lack a legally
cognizable interest in the out-come." Incumaa v. Ozmint, 507 F.3d 281, 286 (4th Cir. 2007)
(quoting Powell v. McCormack, 395 U.S. 486,496 (1969)). "[F]ederal courts have 'no authority
to give opinions upon moot questions or abstract propositions, or to declare principles or rules of
law which cannot affect the matter in issue in the case before it.'" Id. (quoting Church of
Scientology ofCal. v. United States, 506 U.S. 9, 12(1992)).
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Here, although the record reflects that Hinton was approved for Hepatitis C treatment in
April 2019,(Reed Aff. ^ 43), the record further reflects that, as of July 27, 2019, Hinton had not
received "any Hep[atitis] C virus medication at(VCU)or anything else." (Hinton Aff. 3.) Neither
Hinton nor Defendants have provided any additional information regarding Hinton's receipt of
treatment for Hepatitis C. As such, at this time,the current briefing does not support Defendants'
argument that Hinton's claims for injunctive relief are moot.
Additionally, Defendants argue that, because "officials acting in their official
capacities are not 'persons' within the meaning of 42 U.S.C. § 1983," "to the extent that
Hinton is requesting an award of monetary damages from Defendants in their official
capacities, they are immune." (Mem. Supp. Mot. Summ. J. 14 (citations omitted).) "The
[Supreme] Court has held that, absent waiver by the State or valid congressional override, the
Eleventh Amendment bars a damages action against a State in federal court." Kentucky v. Graham,
473 U.S. 159, 169(1985)(citation omitted). "This bar remains in effect when State officials are
sued for damages in their official capacity." Id. (citations omitted);see Will v. Mich. Dep 't ofState
Police,491 U.S.58,71 (1989). As relevant here,the Commonwealth ofVirginia has not consented
to suits under § 1983, and Congress has not abrogated the Commonwealth of Virginia's Eleventh
Amendment immunity for § 1983 cases. See Madden v. Virginia, No. 3:11CV241-HEH, 2011
WL 2559913, at *3 (E.D. Va. June 27, 2011). Accordingly, to the extent that Hinton seeks an
award of monetary damages from Defendants in their official capacity. Defendants' Motion for
Summary Judgment will be GRANTED.
B.
Qualified Immunity
Defendants also argue that they are entitled to qualified immunity. (Mem. Supp. Mot.
Summ.J. 14-17.) In asserting entitlement to qualified immunity. Defendants' argument is largely
11
centered on a case from the United States District Court for the Western District of Virginia,
Riggleman v. Clarke, No. 5:17-cv-00063, 2019 WL 1867451 (W.D. Va. Apr. 25, 2019).
Defendants, however, do not adequately address Hinton's specific claims in the present case.
When a defendant asserts that he or she is entitled to qualified immunity, he or she "must
do more than mention its existence and demand dismissal of the suit." Fisher v. Neale,
No.3:10CV486-HEH, 2010 WL 3603495, at *3 (E.D. Va. Sept. 8, 2010). Specifically, a
defendant must:
(1)identify the specific right allegedly violated "at the proper level of
particularity," Campbell v. Galloway, 483 F.3d 258, 271 (4th Cir. 2007);(2) brief,
with full supporting authority, why the right was not so clearly established as to put
a reasonable official on notice of any legal obligations; and (3)describe with
particularity the factual basis supporting the assertion that a reasonable official in
the defendant's situation would have believed his conduct was lawful.
See
Collinson v. Gott, 895 F.2d 994,998(4th Cir. 1990).
Id. Based on these requirements. Defendants' briefing on qualified immunity is inadequate and
does not provide a basis for granting summary judgment at this time.
C.
Merits of Hinton's Eighth Amendment Claims
To survive a motion for summary judgment on an Eighth Amendment claim, a plaintiff
must demonstrate: "(1) that objectively the deprivation of a basic human need was 'sufficiently
serious,' and (2) that subjectively the prison officials acted with a 'sufficiently culpable state of
mind.'" Johnson v. Quinones, 145 F.3d 164, 167 (4th Cir. 1998)(quoting Wilson v. Seiter, 501
U.S. 294, 298 (1991)). With respect to claims of inadequate medical treatment under the Eighth
Amendment, "the objective component is satisfied by a serious medical condition." Quinones,
145 F.3d at 167. A medical need is "serious" ifit"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.
12
Sheahan, 196 F.3d 839,846(7th Cir. 1999));see Webb v. Hamidullah,281 F. App'x 159,165(4th
Cir. 2008)(citing Ramos v. Lamm,639 F.2d 559, 575 (10th Cir. 1980)).
The subjective prong of an Eighth Amendment claim requires the plaintiff to demonstrate
that a particular defendant actually knew of and disregarded a substantial risk of serious harm to
his person. See Farmer v. Brennan, 511 U.S. 825, 837(1994). "Deliberate indifference is a very
high standard—a showing of mere negligence will not meet it." Grayson v. Peed, 195 F.3d 692,
695(4th Cir. 1999)(citing Estelle v. Gamble,429 U.S. 97, 105-06(1976)).
[A]prison official cannot be found liable under the Eighth Amendment for denying
an inmate humane conditions of confinement unless the official knows of and
disregards an excessive risk to inmate health or safety; 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, 511 U.S. at 837. Farmer teaches "that general knowledge of facts creating a substantial
risk ofharm is not enough. The prison official must also draw the inference between those general
facts and the specific risk of harm confronting the inmate." Quinones, 145 F.3d at 168 (citing
Farmer, 511 U.S. at 837); see Rich v. Bruce, 129 F.3d 336, 338(4th Cir. 1997). Thus, to survive
a motion for summary judgment under the deliberate indifference standard, a plaintiff"must show
that the official in question subjectively recognized a substantial risk of harm....[and] that the
official in question subjectively recognized that his actions were 'inappropriate in light of that
risk.'" Parrish ex rel Lee v. Cleveland, 372 F.3d 294,303(4th Cir. 2004)(quoting Rich v. Bruce,
129 F.3d 336, 340 n.2(4th Cir. 1997)).
In evaluating a prisoner's complaint regarding medical care, the Court is mindful that
"society does not expect that prisoners will have unqualified access to health care" or to the
medical treatment of their choosing. Hudson v. McMillian, 503 U.S. 1,9(1992)(citing Estelle,
429 U.S. at 103-04). In this regard, the right to medical treatment is limited to that treatment
13
which is medically necessary and not to "that which may be considered merely desirable."
Bowring v. Godwin,551 F.2d 44,48(4th Cir. 1977).
Here, Defendants argue that "Director Clarke has no involvement in the promulgation or
application of the VDOC Hepatitis C guidelines, nor did he have any actual and subjective
knowledge of this particular plaintiffs medical situation." (Mem. Supp. Mot. Summ. J. 18.)
Defendants also argue that,"[w]ith respect to Dr. Amonette, neither his adoption ofthe hepatitis C
guidelines nor his application of them to Hinton's situation constitute deliberate indifference."
{Id.) Specifically, Defendants argue that, "[a]s relevant to this particular case. Dr. Amonette was
not asked to consider whether Hinton should be referred for HCV medication until April 2019,"
and after receiving this request in April 2019,"Dr. Amonette determined that Hinton did, in fact,
qualify for referral to a liver specialist at VCU." {Id.)
As the United States Court of Appeals for the Fourth Circuit has explained, however,
officials, such as Defendants Clarke and "Amonette[,] may not escape liability by claiming that
[they] did not know the identities ofthe inmates who would suffer under [their] policies." Gordon
V. Schilling, 937 F.3d 348, 362(4th Cir. 2019)(citing Makdessi v. Fields, 789 F,3d 126, 133 (4th
Cir. 2015)). Further,"officials] can be personally liable for creating or applying unconstitutional
policy." Id. {(\\xo\m% Jackson v. Nixon, 747 F.3d 537, 543(8th Cir. 2014)). Besides Defendants'
arguments regarding their lack of personal involvement in the specific decisions regarding
Hinton's medical treatment. Defendants fail to address their liability for the promulgation and
enforcement of the VDOC's policies regarding treatment for Hepatitis C. Accordingly, based on
the current briefing, the Court declines to dismiss Hinton's Eighth Amendment claims on the
merits.
14
IV.
HINTON'S NON-DISPOSITIVE MOTION
Hinton filed a document entitled "Affidavit" and "Motion to Submit Swom Affidavit."
(ECF No. 37.) In this filing, Hinton submits an "Affidavit" responding to the Court's dismissal of
Defendants Calhoun, Corion Health Care Group, the Geo Group, Inc., and McCabe without
prejudice due to his failure to serve these Defendants. (ECF Nos. 33, 34.) Because Hinton
submitted his"Affidavit" with his Motion,the Motion to Submit Swom Affidavit will be DENIED
as unnecessary.
V.
CONCLUSION
For the foregoing reasons, the Motion for Summary Judgment (ECF No. 38) will be
GRANTED IN PART and DENIED IN PART WITHOUT PREJUDICE.^ Hinton's claim for an
award of monetary damages from Defendants in their official capacity will be DISMISSED.
Hinton's Motion to Submit Swom Affidavit (ECF No. 37) will be DENIED as unnecessary.
Defendants shall have forty-five (45) days to resubmit their Motion for Summary Judgment
addressing Hinton's remaining claims. The Memorandum in Support ofthe Motion for Summary
Judgment must adequately brief each claim and any such affirmative defenses Defendants intend
to raise.
An appropriate Final Order shall accompany this Memorandum Opinion,
j;
Af
i ooL.o
Date:
JohnA.Gibney,Jr.
United States District Jhd^e
Richmond, Virginia
^ In reaching this conclusion, the Court also considers the general mle that a party shall not
file separate motions for summaryjudgment. See E.D. Va. Loc. Civ. R. 56(C)("Unless permitted
by leave ofCourt,a party shall not file separate motions for summaryjudgment addressing separate
grounds for summary judgment.").
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