United States District Court, D. Maryland
DAVID C. ZELLER, #369326, 30822 Plaintiff,
WEXFORD HEALTH SOURCES, INC., AYOKU OKETUNJU, M.D., and BOLAJII ONABAJO, Defendants.
W. Grimm, United States District Judge.
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.
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. To assist Zeller as this
case proceeds, I am granting his motion for appointment of
counsel. ECF No. 24.
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,  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.
have provided with their dispositive motion verified copies
of Zeller's medical records, the earliest dated July 27,
206.. ECF No. 17-4. 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) and Dr. Oketunji's affidavit (ECF No.
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. 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.
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 Sl. By late
2016, patients with level GI S1 were being considered for
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
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.
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