United States District Court, N.D. Florida, Tallahassee Division
DAVID T. CURRY, Plaintiff,
MARK S. INCH, etc., et al., Defendants.
REPORT AND RECOMMENDATION
CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE.
pro se, was granted leave to file a second amended complaint,
and Plaintiff filed a second amended complaint on October 19,
2018, by the mailbox rule. ECF No. 22, 23, 25. The second
amended complaint is the operative complaint and proceeds
against the Secretary of the Florida Department of
Corrections and two physicians. The Secretary filed a motion
to dismiss the second amended complaint. ECF No. 26.
Thereafter, Mark S. Inch was appointed Secretary and was
automatically substituted as a defendant in his official
capacity only. ECF No. 38. Although motions to dismiss have
also been filed by the two physicians, this Report and
Recommendation addresses only the motion to dismiss filed by
Allegations of the Complaint
alleges that during the time he has resided in the Florida
Department of Corrections (FDC), he has had chronic
Hepatitis-C (HCV) and was not provided appropriate treatment
for that condition. ECF No. 23 at 4 (¶ 10). He alleges
that when he entered the FDC in January 2015, the FDC was
provided medical records showing that Plaintiff has chronic
stage-4 HCV. Id. at 16 (¶ 55). He alleges that
Defendants knew that he had advanced-stage liver disease and
that he was in desperate need of direct-acting antiviral
(DAA) drugs, such as Sovaldi, Olysio, Harvoni, Viekira Pak,
Daklinza, Technivie, Zepatier, and Epclusa, which are known
to cure 90-95% of patients with all types of HCV with
virtually no side effects and easy administration.
Id. at 16 (¶ 55); 9 (¶ 31).
alleges that Defendants withheld treatment with these DAA
drugs and knew that the risk of doing so would cause
significant harm to Plaintiff's liver. Id. at
16 (¶ 55). He alleges that despite consensus among
medical professionals that all persons with HCV should be
treated with the DAA medications, each Defendant had a
policy, practice and custom of not providing DAA medications
to prisoners in FDC such as Plaintiff. Id. at 15
(¶ 51). He alleges that this policy, practice, or custom
caused and continues to cause unnecessary and wanton
infliction of pain and an unreasonable risk of serious damage
Plaintiff's health. Id. (¶ 52).
alleges that on February 24, 2015, he was transferred to Gulf
Correctional Institution-Annex and placed under the care of
Dr. Simone Vilchez, and tests were performed diagnosing him
with Stage 4 cHCV (chronic HCV). Id. at 16 (¶
56). He alleges that Dr. Vilchez told him that he was in
desperate need of treatment but FDC does not provide HCV
treatment because it is too expensive. Id.
filed a number of grievances beginning on April 28, 2015,
seeking the recommended treatment for his HCV. All the
grievances were rejected for procedural errors. Even so, the
grievances, many of which were filed directly with the
Secretary, put the Secretary on notice of his serious chronic
HCV and the risks attendant to non-treatment, the fact that
he developed a lump on his liver, and that he was denied
treatment with DAA medication because of the high cost.
alleges that he filed a formal grievance on February 20,
2017, with Warden Hodges at Okaloosa C.I. complaining that
Dr. Luis Lopez was not following HCV infection protocols and
was refusing to order appropriate treatment for him in accord
with FDC's Health Services Bulletin (HSB) 15.03.09 Supp.
# 3. Id. The formal grievance also complained that
Dr. Lopez told Plaintiff that even though his tests showed a
high risk for complications and disease progression that
would require a more urgent consideration for treatment, FDC
is not treating any HCV inmates and does not plan to without
civil litigation and additional legislative budgeting.
Plaintiff requested proper HCV treatment. Id.
(¶ 67; see Ex. A to Plaintiff's response to motion
ECF No. 37). Plaintiff further alleges in his second amended
complaint that the appeal of the formal grievance was denied
(on March 6, 2017), with the response that Plaintiff was
being monitored every 90 days, that his current APRI score is
1.9, and that his labs were being reported into the monthly
tracker to be considered for treatment. ECF No. 23 at 21-22
alleges that he filed an appeal with the Secretary of FDC on
March 9, 2017. Id. at 22 (¶ 67). He complained
that he was still being denied HCV treatment even though his
scores placed him in the Priority Level 2, High Priority for
treatment classification and he requested proper treatment
for his serious medical condition. Id. (see
also Ex. A to Plaintiff's response to motion to
dismiss, ECF No. 37). The Secretary's office responded on
July 7, 2017, denying the appeal and advising that his
treatment was being deferred, that he would be monitored, and
that if he had problems, sick call was available. ECF No. 23
at 22 (¶ 67); (see Exhibit to Plaintiff's
response to motion to dismiss ECF No. 37 at 24). Plaintiff
alleges that this put the Secretary, then Defendant Jones, on
fair notice of his serious medical condition that had
deteriorated to dangerous levels qualifying him for high
priority treatment and that her subordinates were acting
unlawfully by ignoring the HSB guidelines and refusing to
provide him HCV treatment. Id. Plaintiff alleges
that Defendants' deliberate indifference to his medical
needs caused his liver to deteriorate to his currently grave
condition. Id. (¶ 68).
realleged all the factual allegations set forth in his
complaint for each of his counts, and made the following
1. Deliberate Indifference as to All Defendants
claims that Defendants were well aware of his grave medical needs
but intentionally failed and refused to provide necessary
treatment to address the needs, harming him by causing
continued suffering and exposure to liver failure, liver
cancer, and death. Id. at 23 (¶ 69). He claims
that Defendants have at all times been aware of the
substantial risk of serious harm and that their deliberate
indifference, denial of treatment, and grossly inadequate to
non-existent care have caused wanton infliction of pain and
punishment in excess of that authorized by law in violation
of the Eighth Amendment. Id. at 23-24 (¶¶
2. Failure to Supervise to Provide Adequate Medical Care as
to Defendant Julie L. Jones
claims that Defendant Jones, acting within the authority and
under color of state law, by and through her agents and
employees, “failed adequately to supervise her agents
and employees, ” including Drs. Vilchez and Lopez, to
ensure provision of adequate medical care to prisoners at
FDC. Id. at 24 (¶ 79). Plaintiff claims that
Jones' deliberate indifference is actionable under §
1983 and that her willful and deliberate actions or inaction
relative to Plaintiff's serious medical needs have
directly and proximately caused Plaintiff to experience loss
of enjoyment of life, loss of quality of life, severe pain
and suffering, and monetary loss for future earnings.
Id. at 24 (¶¶ 80-81).
3. Violation of 42 U.S.C. § 1983-Inadequate Medical Care
as to Dr. Vilchez and Dr. Lopez
will need not be discussed as it is unrelated to the motion
to dismiss filed by the Secretary. Id. at 25
4. Violation of State Law-Negligence as to All
claims that all Defendants, individually and by and through
their agents and employees, acting within the scope of their
authority, were “intentionally negligent” in
failing to provide him with adequate medical care for his
HCV. He further claims that as a direct and proximate result
of the negligence, he has experienced loss of enjoyment of
life, loss of quality of life, severe pain and suffering, and
monetary loss for future earnings. Id. at 26
5. State Law Claim-Negligent Supervision as to Defendant
Count 5, Plaintiff claims that Defendant Jones gave Drs.
Vilchez and Lopez authority to provide for Plaintiff's
medical needs and that “Defendants owed [Plaintiff] a
duty to provide him with reasonable adequate medical care
during his incarceration” and to supervise agents and
employees to ensure reasonably adequate medical care is
provided. Id. at 27 (¶¶ 89-90). He claims
that Defendant Julie L. Jones was “intentionally
negligent” in failing to supervise Drs. Vilchez and
Lopez to ensure reasonably adequate medical care was provided
to Plaintiff; and that as a direct and proximate result of
the negligent supervision, Plaintiff suffered loss of
enjoyment of life, loss of quality of life, severe pain and
suffering, and monetary loss for future earnings.
Id. (¶¶ 91-92).
6-Violation of the Americans with Disabilities Act, 42 U.S.C.
§ 12131, et seq., (as to Defendants Inch and
claims in Count 6 that each Defendant qualifies as a
“public entity” within the meaning of 42 U.S.C.
§ 12131 and 28 C.F.R. § 35.104. Id. at 28
(¶ 95). He contends that his diagnosed cHCV (chronic
HCV) qualifies as a physical impairment under 42 U.S.C.
§ 12103 and 28 C.F.R. § 35.108(a) and (b).
Id. (¶ 96). He contends that the physical
impairment substantially limits one or more of
Plaintiff's major life activities and operation of major
bodily functions, including operation of the liver.
Id. Plaintiff alleges that he has a record and
history of having an impairment that substantially limits one
or more major life activities, and is regarded by Defendants
as having an impairment that substantially limits one or more
major life activities. Id. 28-29 (¶¶
claims that by withholding medical treatment for his HCV, but
providing medical treatment to others with other disabilities
and those not disabled, Defendants have excluded Plaintiff
from participating in and receiving the benefits of
Defendants' services, programs, and activities such as
medical services because of his disability. Id. at
29 (¶¶ 99-100). He alleges this amounts to
discrimination under 42 U.S.C. § 12132 and 28 C.F.R.
§ 35.130(a). Id. (¶ 101). He claims that
Defendants utilized criteria or methods of administration
that have the effect of subjecting Plaintiff to
discrimination and defeating or substantially impairing the
accomplishment of objectives of medical treatment for HCV in
violation of 28 C.F.R. § 35.130(b)(3). He contends that
as a result of the actions and omissions of Defendants, he
has suffered and continues to suffer harm in violation of his
ADA rights. Id. at 30 (¶ 105).
7-Rehabilitation Act, 29 U.S.C. §§ 791-794a (as to
Defendant's Inch and Jones)
claims that under section 504 of the Rehabilitation Act, 29
U.S.C. § 701, et seq., and 29 U.S.C. §§
791-794, et seq., and its implemented regulations, Defendants
are a program or activity receiving federal financial
assistance. Id. (¶¶ 107-08). He claims
that Defendants denied him access to the benefits of several
programs or activities and to the opportunity afforded others
to participate in programs or activities solely because of
his disability. Id. at 30-31 (¶¶ 109-10).
He contends that Defendants have known of these violations
but with deliberate indifference failed to correct them; and