United States District Court, D. Maryland
L. HOLLANDER UNITED STATES DISTRICT JUDGE.
Phelps is an inmate incarcerated at the North Branch
Correctional Institution (“NBCI”) in Cumberland,
Maryland. On July 25, 2016, he filed a Complaint (ECF 1),
pursuant to 42 U.S.C. §1983, against Wexford Health
Sources, Inc. (“Wexford”), Dr. Robustiano
Barrera, and Dr. Mahboob Ashraf (collectively, the
“Medical Defendants”). Phelps alleges that he is
receiving inadequate medical treatment because he has not
been provided Harvoni,  a medication to treat his Hepatitis C
(“HCV”). Id. He seeks $100, 000 in
compensatory damages and $100, 000 in punitive damages.
Id. at 3. Phelps also filed a motion for injunctive
relief to compel immediate treatment with Harvoni. ECF 2.
Phelps's Complaint and his motion for injunctive relief
raised concerns about his health and safety, on July 26,
2016, I directed the Office of the Attorney General
(hereinafter, the “State”) to show cause why
emergency relief should not be granted. ECF 3. On August 16
2016, the State filed a response (ECF 5,
“Response”), with exhibits, including the
Affidavit of defendant Robustiano Barrera, M.D (ECF 5-1), who
is the medical director at NBCI, and over 75 pages of medical
records for Phelps, provided by defendant Wexford. ECF 5-2.
The State indicated that Phelps is regularly monitored for
HCV, is asymptomatic with an undetectable viral load,
is being appropriately treated. See ECF 5-1
(Affidavit of Dr. Barrera) and ECF 5-2 (medical records). The
response also alleged that Phelps has raised no complaints
about his treatment to medical providers. ECF 5; ECF 5-1.
August 17, 2016, I notified Phelps that I intended to treat
the State's response as a motion for summary judgment,
and granted plaintiff time to respond. ECF 6. Pursuant to the
dictates of Roseboro v. Garrison, 528 F.2d. 309 (4th
Cir. 1975), Phelps was also informed that he was entitled to
file an opposition to the Motion. ECF 7. Phelps replied by
filing his own motion for summary judgment on September 2,
2016. ECF 8. Thereafter, on November 7, 2016, Wexford, Dr.
Ashraf, and Dr. Barrera jointly filed a motion to dismiss or,
in the alternative, for summary judgment (ECF 15,
“Motion”), supported by a memorandum. ECF 15-3.
In the memorandum, the Medical Defendants adopted and
incorporated the State's Response and its exhibits.
Id. at 2.
same date, Phelps was notified that he was entitled to file a
response in opposition. ECF 16. He has not done so. However,
I shall construe his summary judgment motion (ECF 8) as both
a motion and as an opposition to the Medical Defendants'
matter is briefed and ready for disposition. No hearing is
necessary to resolve the issues. See Local Rule
105.6 (D. Md. 2016). For reasons to follow, I shall deny
Phelps's motion for emergency injunctive relief and his
motion for summary judgment. And, I will construe the Medical
Defendants' Motion as one for summary judgment and grant
was diagnosed in 2013 with HCV. ECF 1. He complains that he
is not prescribed Harvoni, which cures the condition
“almost 100%.” ECF 1 at 5. Phelps states
that on May 24, 2016, he met with “medical
representatives” concerning his request for Harvoni.
Phelps informed them that he still feels the effects of the
HCV virus. Id. at 5-6. According to Phelps, he was
informed that his “levels” were low, he had no
viral load or genotype detectable in his blood, and was among
the 20% of persons whose antibodies are able to kill the
Affidavit, Dr. Barrera attests that Phelps is seen regularly
by prison medical providers as a chronic care inmate for his
HCV. ECF 5-1 ¶5. Medical personnel monitor Phelps's
blood work and regularly check him for symptoms. Id.
Barrera attests that, aside from an acute HCV episode in
January of 2013, when Phelps complained of nausea and
jaundice, which was determined to be related to illicit drug
use, Phelps has been “entirely asymptomatic with an
undetectable viral load.” Id.
Barrera attests that HCV symptoms vary depending on the cause
of the illness and the extent of resultant liver damage. Some
patients like Phelps are asymptomatic. When the condition is
acute, symptoms can include fatigue, loss of appetite,
nausea, vomiting, diarrhea, muscle aches, and abdominal
discomfort. Id. ¶6. Barrera explains that the
policy of the Department of Public Safety and Correctional
Services (“DPSCS”) provides that once an inmate
tests positive for HCV the inmate is enrolled in chronic care
supervision for HCV management. Id. ¶7. A DPSCS
panel composed of medical providers, mental health providers,
pharmacists, and infectious disease specialists then
considers and evaluates HCV treatment provided to the inmate.
Id. ¶ 8.
policy provides that, due to potential side effects of HCV
antiviral treatment, an inmate will not be considered for
antiviral therapy if he or she is asymptomatic and
demonstrates an undetectable viral load. Id.
¶9. Inmates who are eligible for antiviral therapy
receive various blood tests and meet with a gastrointestinal
or infectious disease specialist. Id. ¶ 10. If
the inmate is eligible for antiviral treatment, various blood
tests are performed and a consultation with a
gastrointestinal or infectious disease specialist is arranged
for all candidates for liver biopsy or antiviral therapy.
Id. Inmates with HCV genotype 2 or 3, and HIV/HCV
co-infected inmates, are not required to have a liver biopsy
as a condition precedent to antiviral treatment. Id.
For symptomatic HCV inmates with a detectable antiviral load,
the antiviral therapy most often approved by the DPSCS is
Pegylated Interferon/Ribarvirin. Id. ¶12. Since
2012, other antiviral treatment options, including Harvoni,
have been approved for inmates by the DPSCS HCV panel, but
only on a case by case basis. Id. ¶13. In
February of 2016, as more alternative antiviral treatments
became available, the DPSCS HCV panel began
“systematically treating inmates with more advanced
grade and stage levels of HCV and working down to less
advanced grade and stage levels” according to
priorities set in the HCV policy. Id.
February 11, 2016, Dr Ashraf saw Phelps in the Chronic Care
Clinic (“CCC”). He did not report any adverse
symptoms related to HCV. Phelps denied experiencing fatigue,
nausea, or vomiting. Id. ¶14. Ashraf noted on
the medical report that Phelps's lab work was within
normal limits. Id.; see also ECF 5-2 at 8. Phelps
was counseled regarding a liver biopsyand HCV disease
management. Id.; see also ECF 5-2 at 9. On April 14,
2016, Phelps declined to attend a scheduled medical
appointment with Dr. Ashraf. ECF 5-1, ¶15; see
also ECF 5-2 at 30.
Bilak, RNP, examined Phelps in the CCC on May 3, 2016.
Bilak's record of the visit notes Phelps's HCV was
“stable” and the severity level was
“mild-moderate.” ECF 5-2 at 39. Bilak recounted
“Pertinent negatives” as to abdominal distension,
abdominal pain, blood in stool, bruising, fever, jaundice,
lethargy, melena,  nausea, pruritus, sleep pattern changes,
sweats, chills, tremors, weight gain, and weight loss. She
counseled Phelps related to his refusal of a liver biopsy
procedure and scheduled Phelps for a chronic care
appointment in three months. ECF 5-1, ¶16; see
also ECF 5-2 at 39-40.
21, 2016, when Bilak examined Phelps, she again noted
“pertinent negatives” for abdominal distension,
abdominal pain, blood in stool, bruising, fever, jaundice,
lethargy, melena, nausea, pruritus, sleep pattern changes,
sweats, chills, tremors, weight gain, and weight loss. ECF
5-1, ¶17; ECF 5-2 at 46. Bilak determined that, based on
Phelps's lack of viral load and genotype, treatment for
HCV was not indicated at that time. She scheduled an
appointment for Phelps in three months. Id.; ECF 5-2
avers that Phelps continues to be evaluated regularly for his
HCV as a chronic care inmate. ECF 5-1, ¶20. He attests,
id. ¶ 19:
It is Affiant's opinion to a reasonable degree of medical
probability that the treatment provided to Plaintiff for his
HCV was appropriate and within the standard of care. As
Plaintiff's HCV is asymptomatic, his lab work is within
normal limits and his viral load is undetectable, Plaintiff
is not a candidate for HCV treatment at this time, including
replied to the State response by filing a motion for summary
judgment (ECF 8), supported by an Affidavit executed by
inmate Donald Pevia (ECF 8 at 4) and a copy of a Request For
Administrative Remedy. ECF 8-1 at 1-2. Phelps did not file
his own Affidavit, however. In his motion for summary
judgment, Phelps claims that Balik and Ashraf
“neglected and lied” in regard to his complaints.
Phelps maintains that he complained of complications due to
the virus during both visits, but “both medical
personal [sic] refused to report it.” Further, Phelps
alleges that his requests for medication to relieve
HCV-related pain were erroneously documented on his medical
chart as complaints of knee pain. ECF 8 at 2; see
also ECF 5-2 at 2-3, 4-5, 8, 11-18, 23-28. 32-35, 50,
52- 66 (noting Phelps's complaints of knee pain). Phelps
asks why the record before this court lacks documentation of
his lab tests results. He complains that he has never been
given a liver biopsy to determine whether his liver is
damaged by the HCV. ECF 8 at 3.
Affidavit, inmate Pevia avers that unnamed medical personnel
told him that he was not a “priority” due to
limited resources and could not be treated for
HCV. Pevia states that Wexford treated him
with Harvoni only after he filed a motion for emergency
injunctive relief. ECF 8 at 4.
preliminary injunction is an extraordinary remedy never
awarded as of right.” Winter v. Natural Res. Def.
Council, Inc., 555 U.S. 7, 24 (2008) (citing Munaf
v. Geren. 553 U.S. 674, 689-90 (2008)); Real Truth
About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d
342, 345 (4th Cir. 2009), vacated on other grounds and
remanded, 559 U.S. 1089 (2010), reinstated in part, 607 F.3d
355 (4th Cir. 2010) (per curiam). A preliminary injunction is
a remedy that is “‘granted only sparingly and in
limited circumstances.'” Micro Strategy, Inc.
v. Motorola, Inc., 245 F.3d 335, 339 (4th Cir. 2001)
(quoting Direx Israel, Ltd. v. Breakthrough Med.
Corp., 952 F.2d 802, 816 (4th Cir. 1991)).
obtain a preliminary injunction, a movant must demonstrate:
1) that he is likely to succeed on the merits; 2) that he is
likely to suffer irreparable harm in the absence of
preliminary relief; 3) that the balance of equities tips in
his favor; and 4) that an injunction is in the public
interest. See Winter v. Natural Resources Defense
Council, Inc., 555 U.S. 7, 20 (2008). All four elements
must be satisfied. The Real Truth About Obama, Inc. v.
Federal Election Commission, 575 F.3d at 346 (4th Cir.
has not met his burden of satisfying all four elements
required for the extraordinary relief contemplated by a
motion for an emergency injunction. Phelps's motion does
not demonstrate the likelihood of success on the merits
because he is not entitled to a particular course of medical
treatment or to Harvoni, the treatment of his choice.
Moreover, the Medical Defendants refute Phelps's
assertions that he is likely to suffer irreparable harm in
the absence of preliminary relief. Phelps's motion does
not address whether the balance of equities tips in his favor
or why an injunction would be in the public interest. The
record suggests no such reasons.
I shall deny the motion for preliminary injunctive relief