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Zeller v. Wexford Health Source Inc.

United States District Court, D. Maryland

March 11, 2019

DAVID C. ZELLER, #369326, 30822 Plaintiff,


          Paul W. Grimm, United States District Judge.

         David C. Zeller is an inmate at Western Correctional Institution (WCI) in Cumberland, Maryland. He alleges in this pro se Complaint that he was denied treatment for Hepatitis C (HCV) for more than five years, beginning in 2011. See Compl. 3, ECF No.1; Suppl. 1, ECF NO. 3; Opp'n 5-8, ECF No. 20. He seeks an injunction requiring prison health care providers to "fully cooperate" with him, put him back on pain medication, and renew treatment for his "already serious" condition. Compl. 5-6.

         Defendants Wexford Health Sources, Inc. (Wexford); Ayoku Oketunji, M.D.; and Bolaji Onabajo, M.D., have filed a Motion to Dismiss or, in the Alternative, Motion for Summary Judgment, ECF No.17, which has been fully briefed, ECF Nos. 20, 21. I conclude that there remains a genuine dispute of material fact in this case and so will deny the motion.[1] To assist Zeller as this case proceeds, I am granting his motion for appointment of counsel. ECF No. 24.


         Zeller alleges that prior to his incarceration in 2011, he was diagnosed with "stage III-Hepatitis C and treated with pegylated interferon/ribavirin. Compl. 4; ECF No. 3-1; Opp'n 2-4. Zeller acknowledges that between November 2016 and December 31, 2016, prison medical providers treated him with Harvoni, [2] but the Harvoni treatment proved unsuccessful, and Dr. Oketunji informed him there was "nothing else to offer" him. April 2017 Visit Report 1, ECF 3-1; see Compl. 4. Zeller alleges the lengthy delay providing him treatment with Harvoni diminished its efficacy. See Opp'n 7-8.

         Defendants have provided with their dispositive motion verified copies of Zeller's medical records, the earliest dated July 27, 206.. ECF No. 17-4.[3] Additionally, Defendants have filed a Hepatitis C-related excerpt from the Department of Public Safety and Correctional Services (DPSCS) Office of Clinical Service/Inmate Health Infection Control Manual (ECF No. 17-6)[4] and Dr. Oketunji's affidavit (ECF No. 17-5).

         Dr. Oketunji's affidavit summarizes current hepatitis management protocols at DPSCS facilities. He states that, in view of the potential side effects and expense of antiviral therapy, it is not recommended for a patient to begin antiviral therapy for genotype 1 HCV based solely on a positive test for HCV.[5] Oketunji Aff ¶ 10, ECF No. 17-5. In cases such as Zeller's, he states, DPSCS HCY policy requires performing a liver biopsy or FibroScan. See Id. The results are reviewed by a DPSCS statewide HCY panel of medical providers, pharmacists, mental health providers, and infectious disease specialists to determine if the patient is at a stage of infection that warrants antiviral therapy, to approve a specific antiviral therapy regimen, and to establish prioritization of the therapy. See Id. Dr. Oketunji states that pegylated interferon/ribavirin was the treatment approved most often. See Id. ¶ 12.

         Dr. Oketunji characterized Zeller as a 65 year old with a history of schizophrenia and schizoaffective disorder. See Id. ¶4. Zeller was approved for and began pegylated interferon/ribavirin treatment in 2015, but treatment ended because the medication exacerbated his mental health condition, a common side effect. See Id. ¶ 12. Dr. Oketunji states that, until 2015, "there were no other antiviral treatment therapies generally approved by DPSCS." Id. He notes, however, that "[s]ince 2012 other antiviral treatment options available, including, inter alia, Harvoni, have been approved for inmates by the DPSCS HCY panel on a case by case basis." Id. ¶ 13 (emphasis in original). He explains that, since 2015, alternative antivirals have become more available, with Harvoni as the "treatment of choice due to its proven high efficacy and reduced side effects." Id. His affidavit states:

The DPSCS HCY panel has been systematically treating inmates with more advanced grade and stage levels of HCY and working down to less advanced grade and stage levels (grades (G) of necrosis/inflammation are 1 minimal, 2 mild, 3 moderate, 4 severe; staging (S) is 1 no scarring, 2 mild scarring, 3 moderate scarring, and 4 severe scarring "cirrhosis".. Plaintiffs September 2016, liver biopsy presented a level GI[6] Sl. By late 2016, patients with level GI S1 were being considered for alternative treatment.


         In November 2016, Zeller started an eight-week course of Harvoni. See Id. 14. The treatment ended in December 2016. See Id. Zeller's three-month post treatment viral load[7] increased, which indicated that treatment was ineffective. See Id. Dr. Oketunji states there are presently no other treatment options available for HCV patients who have failed Harvoni treatment. See Id. 15. Zeller is regularly monitored, his hepatitis function is tested, and he shows no advanced symptoms of cirrhosis. See Id. 16. He was administered Twinrix, a vaccine that provides active immunity against the Hepatitis A and B viruses, as a precautionary measure for inmates testing positive for HCV. See Oketunji Aff. ¶¶ 8, 16.

         Standard of Review

         Summary judgment is proper when the moving party demonstrates, through "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations . . ., admissions, interrogatory answers, or other materials," that "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), (c)(1)(A); see Baldwin v. City of Greensboro, 714 F.3d 828, 833 (4th Cir. 2013). A court reviews the facts and all reasonable inferences in the light most favorable to the nonmoving party. See Scott v. Harris,550 U.S. 372, 378 (2007); see also Erickson v. Pardus, 551 U.S. 89, 94 (2007) (stating the pleadings of a pro se litigant are to be liberally construed). If the party seeking summary judgment demonstrates that there is no evidence to support the nonmoving party's case, the burden shifts to the nonmoving party to identify evidence that shows that a genuine dispute exists as to material facts. See CelotexCorp. v. Catrett,477 U.S. 317, 323-24 (1986). The existence of only a "scintilla of ...

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