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Smith v. Joseph

United States District Court, S.D. Indiana, Terre Haute Division

February 28, 2014

OSCAR SMITH, JR., Plaintiff,
DR. LOLIT JOSEPH, [1] et al., Defendants.


WILLIAM T. LAWRENCE, District Judge.

Plaintiff Oscar Smith, an inmate of the Wabash Valley Correctional Facility ("Wabash Valley") brings this action pursuant to 28 U.S.C. ยง 1983, alleging that the defendants, Dr. Lolit Joseph, Dr. Michael Mitcheff, and Marla Gadberry, were deliberately indifferent to his serious medical needs by denying him treatment for a Hepatitis C virus ("HCV") infection. The defendants move for summary judgment.

I. Standard of Review

Summary judgment must be granted when "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). A genuine issue of material fact exists when "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). Not every dispute between the parties makes summary judgment inappropriate; "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. To determine whether a genuine issue of material fact exists, the court must construe all facts in the light most favorable to the non-moving party and draw all reasonable inferences in that party's favor. Ogden v. Atterholt, 606 F.3d 355, 358 (7th Cir.2010). A party opposing a properly supported summary judgment motion may not rely merely on allegations or denials in his or her own pleading, but rather must "marshal and present the court with the evidence she contends will prove her case." Goodman v. Nat'l Sec. Agency, Inc., 621 F.3d 651, 654 (7th Cir.2010). If the nonmoving party fails to establish the existence of an essential element on which he or she bears the burden of proof at trial, summary judgment is proper. Massey v. Johnson, 457 F.3d 711, 716 (7th Cir.2006).

II. Facts

Consistent with the foregoing, the following statement of facts was evaluated pursuant to the standards set forth above. That is, this statement of facts is not necessarily objectively true, but as the summary judgment standard requires, the undisputed facts and the disputed evidence are presented in the light reasonably most favorable to Smith as the non-moving party with respect to the motion for summary judgment. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000).

A. Drs. Joseph and Mitcheff

While incarcerated, Smith was diagnosed with an HCV infection. Smith has been enrolled in the Indiana Department of Corrections ("IDOC") Chronic Care Clinic ("CCC") for HCV patients during his incarceration. The CCC protocol calls for assessing HCV patients every 90 days and taking a blood draw to measure liver enzyme levels (amino alanine aminotransferase or "ALT levels"). On February 27, 2012 and May 14, 2012, Smith's ALT levels were 27. Then, on July 30, 2012, his ALT levels were 155. That day, Dr. Joseph ordered Smith's HCV genotype be determined. Because the various HCV genotypes respond differently to available drug therapies, knowing the genotype of HCV a person is infected with is helpful in determining future treatment. On August 1, 2012, Dr. Joseph submitted a consultation request that Smith be evaluated for further treatment if Smith was genotype 2 or 3. Although patients with genotype 2 or 3 are not as common as genotype 1, the treatment course for genotypes 2 and 3 is shorter and generally more successful.

On August 2, 2012, Dr. Michael Mitcheff, the Regional Medical Director who reviews consultation requests, responded to Dr. Joseph's consultation request by inquiring if the genotype of Smith's HCV infection was known, if Smith's liver enzymes had been persistently elevated, if Smith had major mental illness or other medical problems, and if Smith was compliant with treatment. Lab results reflected that Smith was genotype 1A.

Smith submitted a grievance on October 17, 2012, relating to the treatment of his HCV infection. In responding to the grievance, Dr. Joseph stated that, pursuant to IDOC guidelines, an offender must have an Earliest Possible Release Date ("EPRD") greater than three years to begin the HCV drug therapy regimen. Dr. Joseph noted in the Grievance Response that Smith was too close to his release date to begin HCV treatment. Patients with HCV infections who will be leaving prison in less than three years will generally not be candidates for HCV drug therapy during confinement pursuant to IDOC guidelines. The reason for this is that the potential for interrupted antiviral therapy places the inmate at risk for a number of undesirable outcomes including treatment failure if the course of treatment is not completed, and adverse effects from medication if the inmate does not receive the required laboratory and clinical monitoring upon release or transfer. The potential for interruption of antiviral therapy for HCV also places an inmate at risk for the development of resistance virus.

Smith appealed the denial of his grievance. On December 4, 2012, Smith's appeal was denied in a Level II Response. The Level II Response by Rose Vaisvilas, Director, Health Services stated: "Offenders who are within three years of the EPRD may be considered for medication if they meet certain criteria. However, Mr. Smith does not currently meet criteria for medication because he has not cooperated with health services staff attempting to obtain his chronic care labs.... Mr. Smith refused his chronic care labs on 08/29/12 and again on 11/21/12. The provider cannot determine if Mr. Smith's ALT [liver enzyme level] has been elevated since he has refused to have his blood drawn. Offenders who are noncompliant with any provider's orders including laboratory tests are not eligible for medication." Dr. Joseph agreed with the reasons, in addition to the release date, stated by Ms. Vaisvilas for Smith being ineligible for the HCV drug treatment, as there are a variety of factors that affect an inmates' eligibility for HCV drug therapy including mental health status, refusal of treatment and degree of any liver damage.

On December 10, 2012, Dr. Joseph submitted a consultation at Smith's request to have his HCV treatment options evaluated. She noted Smith's liver enzyme results, his HCV genotype of 1A, and his release date of November of 2015. At that time, Dr. Joseph explained to Smith that he would not be recommended for HCV treatment as he was less than three years from his release date. Even with the limitations on treatment based on Smith's release date, until Smith was evaluated by a mental health professional, no further testing to determine if Smith is a proper candidate for the HCV drug therapy was recommended.

Dr. Joseph saw Smith again on December 21, 2012, for a chronic care clinic visit. At that time, his lab results and liver enzymes from a December 12, 2012 blood draw were noted. Dr. Joseph provided Smith with education on his HCV infection and Smith voiced understanding. On December 21, 2012, at Smith's request, Dr. Joseph submitted two more consultation requests to have Smith's HCV viral load evaluated and to have his HCV treatment options evaluated. Again, Dr. Joseph noted Smith's release date was November of 2015 and that she had attempted to explain to Smith that he was not eligible for HCV treatment as he was less than three years from his release date. Further, even if his release date were not considered as a factor for further assessment for HCV drug therapy, Smith would need to be evaluated by a mental health professional before any HCV drug treatment was recommended.

On December 27, 2012, Dr. Mitcheff responded to Dr. Joseph's consultation request by inquiring if Smith was in segregation. The reason Dr. Mitcheff inquired about Smith's segregation status is that an inmate in behavioral segregation is not considered an appropriate candidate for HCV drug therapy. Because Smith was in segregation, ...

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