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Phelps v. Wexford Health Resources, Inc.

United States District Court, D. Maryland

February 8, 2017

RICHARD PHELPS, #364064, SID #2134897 Plaintiff
v.
WEXFORD HEALTH SOURCES, INC. DR. ROBUSTIANO BARREA, DR. MAHBOOB ASHRAF, Defendants

          MEMORANDUM OPINION

          ELLEN L. HOLLANDER UNITED STATES DISTRICT JUDGE.

         Richard 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”).[1] Phelps alleges that he is receiving inadequate medical treatment because he has not been provided Harvoni, [2] 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.

         Because 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.[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, [4] and 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.

         On 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.

         On the 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' Motion.

         The 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 it.

         I. Factual Background

         Phelps 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.[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 virus. Id.

         In his 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.

         Further, 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”)[6] 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.

         The 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.

         On 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 biopsy[7]and 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.

         Krista 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, [8] 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[9] and scheduled Phelps for a chronic care appointment in three months. ECF 5-1, ¶16; see also ECF 5-2 at 39-40.

         On July 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 at 46-47.

         Barrera 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 Harvoni.

         Phelps 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.

         In his 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.[10] Pevia states that Wexford treated him with Harvoni only after he filed a motion for emergency injunctive relief. ECF 8 at 4.

         II. Preliminary Injunction

         “A 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)).

         To 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. 2009).

         Phelps 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.

         Accordingly, I shall deny the motion for preliminary injunctive relief (ECF 2).

         III. Summary Judgment

         A. ...


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