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Curry v. Inch

United States District Court, N.D. Florida, Tallahassee Division

July 23, 2019

DAVID T. CURRY, Plaintiff,
v.
MARK S. INCH, etc., et al., Defendants.

          REPORT AND RECOMMENDATION

          CHARLES A. STAMPELOS UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, 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 the Secretary.

         I. Allegations of the Complaint

         A. Factual allegations

         Plaintiff 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).

         Plaintiff 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.[1] 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).

         Plaintiff 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.

         Plaintiff filed a number of grievances beginning on April 28, 2015, seeking the recommended treatment for his HCV.[2] 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.

         Plaintiff 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 (¶ 67).

         Plaintiff 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).

         B. Plaintiff's Claims

         Plaintiff realleged all the factual allegations set forth in his complaint for each of his counts, and made the following claims:

         Count 1. Deliberate Indifference as to All Defendants

         Plaintiff claims that Defendants[3] 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 (¶¶ 71-77).

         Count 2. Failure to Supervise to Provide Adequate Medical Care as to Defendant Julie L. Jones

         Plaintiff 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).

         Count 3. Violation of 42 U.S.C. § 1983-Inadequate Medical Care as to Dr. Vilchez and Dr. Lopez

         Count 3 will need not be discussed as it is unrelated to the motion to dismiss filed by the Secretary. Id. at 25 (¶¶ 82-84).

         Count 4. Violation of State Law-Negligence as to All Defendants[4]

         Plaintiff 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 (¶¶ 86-87).

         Count 5. State Law Claim-Negligent Supervision as to Defendant Jones

         In 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).

         Count 6-Violation of the Americans with Disabilities Act, 42 U.S.C. § 12131, et seq., (as to Defendants Inch and Jones)

         Plaintiff 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 (¶¶ 97-98).

         Plaintiff 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).

         Count 7-Rehabilitation Act, 29 U.S.C. §§ 791-794a (as to Defendant's Inch and Jones)

         Plaintiff 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 (ΒΆΒΆ 109-10). He contends that Defendants have known of these violations but with deliberate indifference failed to correct them; and ...


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