Lester v. Clarke et al, No. 7:2016cv00312 - Document 323 (W.D. Va. 2018)
Court Description: MEMORANDUM OPINION. Signed by Senior Judge Jackson L. Kiser on 12/6/2018. (slt)
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CLERK'S OFFjCE U.s. DlsT.COURT ATPANVILLE.VA R LED IN THE UNITED STATES DISTRICT CO URT FOR THE W ESTERN DISTRICT OF VIRGINIA ROANOKE DIVISION M ICH AEL BR ADY LESTER, Plaintiff, DEC 262212 JU lAC.D DLEY,CLE BY: EPUW CLERK CivilA ction N o.7:16-cv-00312 M EM O M N D U M O PINIO N HAROLD CLARKE,etal., D efendants. By: H on.Jackson L.K iser Senior U nited StatesD istrictJudge M ichael Brady Lester, a Virginia inm ate proceeding pro K , comm enced this adion pursuantto 42 U.S.C.j1983 againstdefendants associated with the Virgilzia Departmentof Corrections(1çVDOC''). Currentlypending aredefendantsHarold Clarkeand M ark Amonette's motion to dismiss(ECF No.203janddefendantDr.M atthew M ccarthy'smotiontodismissand in the alternative forsummaryjudgmentEECF No.1994. Ireferred themotionsto a United StatesM agistrateJudgeforarepol'tandrecommendation pttrsuantto28U.S.C.j636(b)(1)(B). The M agistrate Judge iled a reportand recommendation on July 5,2018 (ECF No.303), recom mending that defendants'motions be denied. Only defendantDr.M ccarthy responded, objectingtotherecommendeddenialofhismotion EECFNo.3044.Afterreviewingtherecord,l sustain theobjection,rejectinpartand adoptin partthereportand recommendation,gl' antDr. M ccarthy'smotionforsummaryjudgment,anddeny ClarkeandAmonetle'smotionto dismiss. 1. A districtcourtmustreview X novo anypartofarepoz' tandrecommendationtowhicha Lester v. Clarke et al Doc. 323 partyobjectsproperly.28U.S.C.j636(b)(1)(C);Opianov.Jolmson,687F.2d44,47(4th Cir. 1982). The districtcourt'sreasoning need notbeelaborate orlengthy,butitmustprovide a specific rationale thatperm its m eaningf'ul appellate review . See. e.2.,U nited States v. Carter, 564 F.3d 325,330 (4th Cir.2009). A party must object tswith sufficientspecificity so as Dockets.Justia.com reasonably to alertthe districtcout'tofthe tl' ue grotmd forthe objection.'' United Statesv. M idcette,478F.3d616,622 (4thCir.2007).TheFout'th Circuitexplainedthat: To concludeotherwisewoulddefeatthepurposeofrequiringobjections. W e would bepermitting aparty to appealany issuethatwasbeforethem agistrate judge,regardlessofthenattlreand scopeofobjectionsmadetothemagistrate judge'sreport.Eitherthedistrictcoul' twouldthenhavetoreview everyissue in$hemagistratejudge'sproposedfindingsandrecommendationsorcourtsof appeals would be required to review issues that the district court never considered.Ineithercase,judicialresourceswouldbewasted andthedistrict court's effectiveness based on help from magistrate judges would be underm ined. Id M . Denovo review isnotrequired Gtwhen aparty makesgeneralorconclusory objections thatdo notdirectthecourtto a specificerrorin the magistratejudge'sproposed fndingsand recommendations.'' Orpiano,687F.2d at47.An objectionthatrepeatsargumentsraisedbefore amagistratejudge isdeemed ageneralobjection to the entirethereportand recommendation, which isthesameasafailuretoobject. Veney v.Astnze,539 F.Supp.2d 841,845(W .D.Va. 2008).A districtcourtisalso notrequiredto review any issueéqnovowhen no party objects. See.e.g.,Thomasv.Arn,474 U.S.140,149 (1985);Cnmbv v.Davis,718 F.2d 198,200 (4th Cir.1983). A district court review s for clear enpr any part of a report and recom m endation not properlyobjectedto.Diamondv.ColonialLife& AccidentIns.Co.,416F.3d310,315(4th Cir. ' .. 2005). Clearerrormeansthatacourt,after(Grevieking ...theentireevidenceg,)isleftwith the definite and firm conviction thatam istakehasbeen comm itted.'' United Statesv.United States Gvpsum Co.,333 U.S.364,395 (1948);see FTC v.Ross,743 F.3d 886,894 (4th Cir.2014) (noting afactualfindingbased ontheresolution ofconflicting evidenceisentitled todeference tmdertheclearerrorstandard). 2 lI. A. Plaintiffisinfected with Hepatitis-c (&HCV'')and incarcerated in theVDOC. Plaintiff has one kidney,suffers from hyperthyroidism ,and has experienced chronic fatigue and shap , stabbingpain underhisrightrib cage. Dr.Am onette isthe VDOC'SChiefPhysician and makesthedecision whetheran inmate with HCV may consult with a specialist physician at Virginia Comm onwea1th University's (&<VCU'')HCV Telemedicine Clinic. Dr.Ainonetteissupposed to makethisdecision based on theVDOC'Slnterim GuidelineforChronicHepatitisC lnfedionM r agement(GtGuideline'')that hedeveloped. The Guideline isthe V D O C'S protocolto triage H CV in the V D O C inm ate population. It prioritizes those inm ates with m ore advanced liver disease by relying on,inter alia,blood test resultslcnown asAPR. Ithatcalculatea levelofliverimpairment.lfan inm atequalifiesunderthe Guideline,he isallowed to consultwith thespecialistatVCU . Direct-actingantiviraldrugs(&<DAAs'')havebeenthecurrentstandardofmedicalcarefor treating HCV since2013. DA A treatm entlastsabout12 weeks,has ahigh rateofeffectiveness, and is effective atany stage ofthe disease. H ow ever,D A A treatm ent cah cost approxim ately $80,000perinmate. D r.M ccarthy w as Plaintiff's prim azy physician at the prison and w as responsible for day-to-day physicalevaluations.PertheGuideline,Dr.M ccarthy isalso responsibleforsending to Dr.A m onette Plaintiff'srequeststo consultwith the specialistatV CU . On N ovem ber 3, 2015, Plaintiff asked for an evaluation of his H CV . Dr.M ccarthy examined Plaintiffon November11,notingPlaintiffwasalertand oriented,had nojaundiceor distended abdomen,and had warm and dry skin. Dr.M ccarthy did not see any Eired flags,'' m eaning thatnothing from the exnm indicated liverdisease. Dr.M ccarthy ordered blood work and educated Plaintiff aboutthe Guideline. Dr.M ccarthy told Plaintiffthat,in the absence of liver disease,there is no harm in waiting for DAAs. The blood work later confirmed that Plaintiffhad themostcomm on genotypeofHCV . Plaintiffûled hisHCV TreatmentRequestforms (tTreatmentRequesf')on November 18,2015, noting that he also suffered from GERD, glaucom a, and a hyperthyroidism . On Februazy 8,2016,Dr.M ccarthy calculated Plaintiff'sAPR. Iscore as 0.243 and noted thatscore on the Treatm ent Request. Dr.M ccarthy deemed the score as Civery low''and that,in his experience,inm ates who were approved for further evaluation under the Guideline had higher A PR. Iscores. On Febnzary 9,2016,Dr.M ccarthy sentthe A PR Iscore and Treatm entR equestto Dr.A m onette's office for approval. D r.M ccarthy has no authority to provide D A AS without Dr.A m onette'sapproval. On Febnzary 26,2015, Dr.M ccarthy received Dr.Am onette's decision to decline a referralfor Plaintiff to consult with the VCU HCV Telemedicine Clinic. Dr.M ccarthy was advised to monitorPlaintiffwith atleastan nnnualHCV checkup and to resubmitthe Treatment Requestifblood w ork suggests çtdisease progression.''' Dr.M ccarthy exam ined Plaintiffon M arch 23,2016,forHCV and forabdominalpain in the right upper quadrant. Dr.M ccarthy noted Plaintiff's abdom inal pain w as vague and told PlaintiffdfDr.Am onette'sdecision. A fter m ore blood w as tested,D r.M ccarthy exnm ined Plaintiff again on M ay 30,2016, about the abdom en pain. Plaintiff tested negative for gallbladder disease. D r. M ccarthy 4 prescribed PrilosecforGERD,increased thedosage ofLevothyroxinetotreatPlaintiffsthyroid, and ordered abloodtestforthethyroid. Dr.M ccarthy saw Plaintiff on September 14,2016, for abdom inalpain,depression, fatigue, and sleepiness. Dr. M ccarthy's exam showed that Plaintiff s abdom eh was not distended and had no guarding in the right upper quadrant. Plaintiff also tested negative for gallbladder disease. Dr. M ccarthy believed Plaintiff's symptoms were related to his hypothyroidism and encouraged Plaintiffto have blood drawn to testhisthyroid. Nonetheless, Dr.Mccarthy alsoorderedliverftmctiontestsandatestforinfection andnotedheWoulddiscuss ultrasotmd optionswith Dr.Amonette. M ore blood was tested,and the 1ab reportshowed on January 4,2017,thatPlaintic s liver enzym es w ere w ithin norm al range. D r.M ccarthy calculated the A PR I at 0.221,w llich waslessthan thepriorscoreof0.243. D r.M ccarthy exam ined Plaintiff again on Jtm e 5,2017,to m onitor the H CV . M ore blood was tested again, and Dr.M ccarthy calculated the APRI at 0.363,which stilldid not indicate to D r.M ccarthy any sign ofliverdisease. D r.M ccarthy exnm ined Plaintiff on A ugust 14, 2017,for com plaints of tiredness and depression. Dr.M ccarthy believed these symptoms could be a resultofthe hyperthyroidiàm , depression,or HCV. Dr.M ccarthy recomm ended Plaintiff speak with m ental health staff. Nonetheless,he also ordered additionalblood work,including anotherHCV test. M ore blood w astested,and D r.M ccarthy calculated theA PRIat0.283. Plaintiff alleges thatDr.M ccarthy should have referred him to D r.A m onette for D A AS due to his(textra-hepatic condition''ofdebilitating fatigue. Plaintiff argues thathe is im properly being denied D A A S due to cost and the practices and protocols of the V D O C. Plaintiff concludes that this failtlre am otmts to deliberate indifferenc,e to a serious m edical need in violation ofthe Eighth Am endm ent's prohibition on crueland tm usualpunishm ent. B. It is recomm ended that l deny M ccarthy's m otion to dism iss. The report and recomm endation noted that Plaintiffs allegations in the second nm ended complaint, when assllm ed astrue,state a claim ' . Even assum ing thatD r.M ccarthy cannotrendertreatm entfor Lester'sH CV without the approvalof gDr.Amonetteq, gDr.M ccarthyj ...acted'in a Cçgatekeeping'' role. Lester alleges that, in cedain circtlm stances, extrahepatic conditions necessitate an HCV treatm ent request be m ade to Dr. Amonette lm derthe VDOC Guideline. One such extra-hepatic condition is debilitating fatigue,acondition thatLesterclaim she advised Dr.M ccarthy he suffered from on severaloccasiohs. Nonetheless,Dr.M ccarthy did not request treatm ent for Lester from D r.Am onette, in essence, assuzing that Lester w ould not receive H CV treatm ent. In addition to his claim s of chronic or debilitating fatigue, Lester also claim s that he expressed his concernsto Dr.M ccarthy aboutexperiencing rightside abdominalpain and having only one kidney,w hich he feared w ould be irreversibly dam aged by hisHCV ifleftuntreated. Despite a1lofthese extra-hepatic complaints by Lester,LesterallegesthatDr.M ccarthy never senta requestfortreatment to Dr.Am onette.I tqnd that such allegations state a plausible claim for deliberate indifference to Lester's seriousm edicalneedsby D r.M ccarthy. (ReportandRecommendationat21.) As for denying Dr. M ccarthy's motion for sllmmary judgment, the report and recom m endation reads: The essence of Lester's law suit is that the defendants, including D r. M ccarthy,knew ofthe serious dangerposed to Lester'shealth by his H CV , but,nonetheless,did nottreathis HCV at all.... ln sllm ,I find ...that Lester has produced evidence from which a jury could find that the defendants,includingDr.M ccarthy,engaged in an (Kabjectfailuretotreata seriousdiseaseanditssymptoms...thatgtheylknew about''If' urtherfind that no reasonable official could think such a w illful refusal to treat a known,seriouscondition didnotviolatetheEighthAmendment.... g' Tlhe Foul' th Circuit has repeatedly held thatGûa prison official's totalfailure to treat a serious,know n affliction is tm constitm ional, and it has m ore than 6 once reversed district courts for dism issing such claims at the pleading stage.'' (l4sat24-25(internalcitationsomittedl.) C. Dr.M ccarthy objectstothereportandrecommendation,principallyarguingheisentitled to sllmmaryjudgmentbecausehecnnnotprovidereliefin atlofficialcapacity and isentitledto qualifiedimmtmityinapersonalcapacity.Iagreeandsustaintheobjection. The equitable relief Plaintiff seeks - to be referred to the VCU H CV Telemedicine Clizlic and beprescribed DAAS- cannotbegranted againstDr.M ccarthy in an officialcapacity. See W illv.M ich.Dep'tofStatePolice,491U.S.58,71n.10 (1989)(discussing the nuances between oftkialand individualcapacitiesunderj19S3).Dr.Amonetteistheoftkialwho ean approve Plaintiff for that copsultation. Accordingly,Dr.M ccarthy is entitled to summ ary judgmentin anofticialcapacitybecausethedemandedequitablereliefcarmotberedressedfrom him. SeeOknalobiv.Foster,244 F.3d 405,426 (5th Cir.2001)(discussingredressability for equitablereliet). Qualifiedimmtmity isimmunity from suitand notjustadefenseto liability. Pearson v. Callahan,555 U.S.223,23l (2009);see South Carolina State Bd.ofDentistrv v.F.T.C.,455 F.3d 436,446-47.(4th Cir.2002)(noting qualified immunity doesnotapply to declaratory or injtmctiverelief). Qualified immunitybalancesSûthe need to holdpublicoffcialsaccotmtable when they exercise power irresponsibly and the need to shield officials f' rom harassment, distraction,and liability w hen they perform their duties reasonably.'''Pearson,555 U .S.at231. A grantofqualified immunity dependson (1)whethertheplaintiffhasestablishedtheviolation ofa constitutionalright,and (2)whetherthatrightwasclearly established atthe time ofthe 7 alleged violation. 1d.at232,236;see In re Allen,106 F.3d 582,593 (4th Cir.1997)(:$rAjn ofticialmay claim qualiûed imm unity as long as his actions are not clearly established to be beyondtheboundariesofhisdiscretionary authority.''). To statea claim underthe Eighth Am endmentfortheunconstitutionaldenialofm edical assistance,a plaintiffmustshow thata defendantacted with deliberate indifference to a serious m edicalneed.l W estv. Atl dns,487U. S.42,48(1988);Estellev.Gamble,j 429U.S.97,104 (1976);Connerv.Domwlly,42F.3d220,222 (4thCir.1994).Deliberateindifferencerequiresa state actor to have been personally aw are of facts indicating a substantialrisk of serious hann, and the actorm usthave actually recognized the existence ofsuch a risk. Fannerv.Brennan,511 U.S.825,838 (1994). (r eliberate indifferencemay bebemonstrated by eitheractualintentor recklessdisregard.''M iltierv.Beol'n,896F.2d848,851(4th Cir.1990), .seeParrishex rel.Lee v.Cleveland,372 F.3d294,303 (4th Cir.2004)(Gtg-fjheevidencemustshow thattheofficialin question subjectively recognizedthathisactionswere çinappropriateinlightofthatrisk.'''). t(A defendantactsrecklessly by disregarding a substantialrisk ofdangerthatiseitherlcnown to the defendant or which would be apparent to a reasonable person in the defendant's position.'' M iltier,896 F.2d at851-52. The inmate mustshow a Gtsigniticantinjury''resulting from the deliberateindifference.Danserv.Stansberry,772F.3d340,346n.8(4th Cir.2014);seeGan' et' t v.Stratman,254 F.3d 946,950 (10th Cir.2001)((&(Tjhe substantialharm requirementmay be satisfiedbylifelonghandicap,permanentloss,orconsiderablepain.''). 1A serious medicalneed is a condition that (Chas been diagnosed by a physician as m andating treatment or one that is so obvious that even a 1ay person would easily recognize the necessity for a doctor'sattention.''lkov.Shreve,535F.3d225,241(4thCir.2008). 8 Even after viewing the record and al1 inferences therefrom in Plaintiff's favor, no reasonable trier of factcould conclude thatDr.M ccarthy appreciated thathis m onitoring of Plaintiff sHCV created an excessiverisk to Plaintiffssafety. SeeRobison v. V ia,821 F.2d 913, 921 (2d Cir.1987)(recogrlizing qualified immtmity should apply when no reasonabletrierof fad oould nllein theplaintiffsfavor). Dr.M ccarthy repeatedly exnminedPlaintiff,repeatedly evaluated Plaintifpsviralload,abdomin-alpain,atld hyperthyroidism ,and repeatedly scored llim with ûdverylow''APRIscores.Noobjectivecriteriarevealedany substantialrisk ofserioushnrm from hisHCV viralload orto hisliverfunction. Dr.M ccarthy repeatedly evaluated Plaintiff's abdom en pain orfatigueand diagnosed threepossiblecausesforthefatigue. Oneofthepossible causes - depression - would require treatment from a mental health professional, not Dr. M ccarthy. Dr. M ccarthy continued to investigate the two other possible causes hypedhyroidism orHCV . Even ifone could,arguendo,say thattherewasa delay to processthe Treatment kequest between November 2015 and Febmary 2016 and that delay was solely attributable to Dr.M ccarthy,Plaintifffailsto establish any signitk antinjury f' rom thattlzreemonth delay.See,e.:.,W ebbv.Hamidullah,281F.App'x 159,166(4th Cir.2008)(çûAlzEighth Amendment violation only occtlrs, however, if the delay gin treatment) results in some substantialhnrm to the patient.''). In sum,the record doesnotsupportan inferencethatDr. M ccarthy recklessly disregarded,or actually intended,an exposure to a substantialrisk of seriousharm. See Farmer,511 U.S.at837 (holding a çssufficiently culpable state ofmind'' means thata prison official Sçmustboth be aware of facts from which the inference could be drawn thatasubstantialrisk ofserioushann exists,atldhemustalso draw theirlference''l;see also Danser, 772 F.3d at 348-49 (applying Fnrmer to hold no triable issue of deliberate indifference when the record does notshow thatthe state officiallm ew of an obvious risk of substantialhnrm). Furtherm ore, no Ecclearly established law '' during Plaintiff s evaluations alerted D r. M ccarthy that his continued evaluation of Plaintiff's HCV was so grossly incompetent, inadequate,or excessive asto shock the conscience or be intolerable to fundnm entalfairness. See.e.c.,M iltier,896 F.2d at851.The law had informed Dr.M ccarthy thathehad to exercise reasonable careto preventan unreasonable risk ofharm . W oodhousv.Vircinia,487 F.2d 889, 890 (4th Cir.1973);see MThitley v.Albers,475 U.S.312,319 (1986) (C&(I1tis obduracy and wantonness,notinadvertence orerrorin good faith,thatcharacterizethe conductprohibited by the Cruel and UnusualPtmisbm ents Clause,whether that conduct occlzrs in connection with establishing conditions of confinem ent, supplying m edical needs, or restoring official control over a tumulmous cellblock.'). No pertinent legal opinion has circumscribed medical professionals'discretion atissue here,requiring them to provide DAA Sto inmates with ttvel' y low''APRI scores. See, e.c.,Lefemine v.W ideman, 672 F.3d 292,298 (4th Cir.2012) (discussing which courts'decisionsapply to the clearly-established prong). Norhas such a holdingcomeup in analogoussituations.SeeUnited Statesv.Lnnier,520U.S.259,271(1997) (noting thatrightsmay be Sçclearly established''sufficientto overcome a defendant'sclaim of qualified im m unity if a Stgeneralconstitutionalrule already identified in the decisional1aw ... appllies)with obviousclaritytothespecificçonductin question,even thoughthevery action in question has gnotjpreviously been held unlawful.'). Forexample,no pertinentauthority has heldthatcnzeland unusualptmishm entresultswhen aprison doctordoesnotauthorizean inm ate with very 1ow cholesterolto consultwith aheartspecialistaboutreceiving astentto mitigatethe ever-presentrisk of a heartattack or stroke. 10 TheEighth Amendm entdoesnotrequireprison offcialsto eliminate al1risksorpreclude 7 allptmishments. SeeRhodesv.Chaoinan,452 U.S.337,347(1981)(Esgcqonditionsthatcnnnot be said to be cnzeland tmusualtmder contemporary standards are nottmconstitutional. To the extent that such conditions are restrictive and even harsh,they are pa14 of the penalty that criminaloffenderspay fortheiroffensesagainstsociety.').Viralillfections,whetherHCV,HIV, HPV ,EBV ,influenza,herpes,or others,are com m on,and m ay constim te a greater quantifiable risk ofhnrm to som e m ore than others. H ere,D r.M ccarthy exercised hisprofessionaldiscretion and m anaged Plaintiffsrisk with repeated blood tests and exnm inations. The factPlaintiff did notreceivehispreferred treatm ent- Dr.Am onette'sapprovalforconsultation with aspecialistat V CU - does not mean there was a lack of medicaltreatment by Dr.M ccarthy. Ultim ately, Plaintiff cnnnotproceed tmder 42 U.S.C.j1983 to challenge Dr.M ccm hy's professional diagnoses of how benign or severe his synAptonAs or illnesses Nvere. See, e.c.,Johnson v. Ouinones,145F.3d 164,168-69 (4th Cir.1998);W richtv.Collins,766F.2d 841,849(4th Cir. 1985). A lso,Plaintiff ca' lm ot rely solely on the costs of D A A s to create a triable issue of fact . w ith D r.M ccarthy. The Suprem e Coul'trecognizes thatç&society does not expectthat prisoners willhaveunqualified accessto health care....'' Hudson v.M cM illian,503 U.S.1,9 (1992). Treatm entm ay be çslim ited to thatwhich m ay be provided upon a reasonable cost and tim e basis and the essentialtest is one of m edicalnecessity and not sim ply thatw hich m ay be considered merelydesirable.''Bowringv.Godwin,551F.2d44,47-48(4thCir.1977).Furthermore, gwlhile inmates are entitled to adequate medical care tmder the Eighth A m endm ent, they are not entitled to the best and m ost expensive form of treatm ent. Itisan unfortunate factofm ode!'n life thatcostconsiderationsm ust enter into the equation forvidually every person seeking m edicaltreatm ent,not just inmates. W e note thatthe Eighth Amendmentdoes notforbid prison officials from considering cost in determining the appropriate colzrse of treatm entso long as the treatmentdoes notputthe prisoner atrisk of serious injury and the decision was notmade with deliberate indifference. It only becom estmacceptableifprison officialsm akehealth care decisionssolely upon costconsiderationswithoutany medicalrationale. Taylorv.Barnet' t,105 F.Supp.2d 483,489 n.2 (E.D.Va.2000) (intenlalcitation omitted). Accordingly,Dr.M ccarthy is entitled to qualified imm tmity because his conductsatisfies the objective legalreasonablenesstestwhen compared to clearly established 1aw from thattime. See.e.c.,Andersonv.Creighton,483U.S.635,639(1987). 111. Forthe foregoing reasons,1sustain Dr.Mccarthy'sobjection,rejectin partthereport and recom m endation as to Dr.M ccarthy,and adopt in partas to the rem aining portions of the reportand recommendation. Therefore,Dr.M ccarthy'smotion for summary judgment is granted,and Clarke and Am onette'smotion to dismissisdenied. EN TER ED this G+ G dayofDecember,2018. Vt .. c SE OR UN ITED STATES DISTIUCT RJD GE 12
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