Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Lewis v. NC Department of Public Safety

United States District Court, W.D. North Carolina, Asheville Division

January 4, 2018

BRIAN K. LEWIS, et al., Plaintiffs,
v.
NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, et al., Defendants.

          ORDER

          Frank D. Whitney Chief United States District Judge.

         THIS MATTER is before the Court on initial review of the Amended Complaint, (Doc. No. 12), which the Court construes as incorporating a motion for mandatory preliminary injunctive relief on behalf of each Plaintiff, the Attorney General's Response to an Order to show cause why preliminary injunctive relief should not be granted, (Doc. Nos. 39), and Plaintiff Lewis' motions for an extension of time and for discovery, (Doc. Nos. 43, 44).

         I. BACKGROUND

         Pro se Plaintiffs Brian K. Lewis and Jamie R. Spake have filed a civil rights suit pursuant to 42 U.S.C. § 1983 alleging that they are being denied treatment with “breakthrough” drugs[1] to treat their Hepatitis-C virus infections in violation of their constitutional rights, for discriminating against them on the basis of their Hepatitis-C virus infections pursuant to the Americans with Disabilities Act (“ADA”), and Rehabilitation Act (“RA”), and for violating their rights under the North Carolina Constitution.[2] They name as Defendants: The North Carolina Department of Public Safety/Division of Prisons (“NC DPS/DOP”); DPS Commissioner David W. Guice; DPS Secretary Frank L. Perry; DPS Medical Director Paula Y. Smith; DPS Western Regional Medical Director Sandra Pittman; Mountain View Correctional Institution Lead Nurse Norma Melton; Mountain View C.I. Administrator Mike Slagle; Avery Mitchell C.I. Administrator Mike Ball; Mountain View and Avery Mitchell C.I. employee Robert Uhren, M.D.; Mountain View and Avery Mitchell C.I. employee Keith C. D'Amico, P.A.; and “John Doe and Jane Doe A-Z.” (Doc. No. 12 at 2).

         Construing the Amended Complaint liberally and accepting the allegations as true for purposes of initial review, Plaintiffs are both Hepatitis-C positive inmates who were incarcerated at the Mountain View C.I. when they filed the lawsuit, and they both claim to have serious health complications stemming from their infection with the Hepatitis-C virus. “Breakthrough” oral prescription drugs became available in 2014, and they are the prevailing medical standard of care to cure Hepatitis-C viral infection. DPS DOP Health Services systematically denies these necessary breakthrough prescription drug treatments to Hepatitis-C infected inmates for non-medical reasons. DPS policy and procedures have allowed Defendants to turn a blind eye to Plaintiffs' serious medical needs, with knowledge that their actions would cause Plaintiffs' mental and physical health including cirrhosis, irreversible liver damage, and death. This exposes Plaintiffs to a high probability that the infection will cause severe physical and mental deterioration, great pain and suffering, severe illness, and inevitably death. DPS policy creation and implementation manifest willful, callous, and deliberate indifference to Plaintiffs' serious medical needs of Hepatitis-C infection, in violation of the United States Constitution, as well as the Americans with Disabilities Act, the Rehabilitation Act, and the North Carolina Constitution.

         Defendant Guice, as DPS Commissioner, is responsible for policy and procedure, administration, and supervision of staff and employees.

         Defendant Perry, as DPS Secretary, is responsible for all oversight, operation, and administration of the DPS, including providing appropriate medical treatment and the formulation of policy and procedure to ensure Plaintiffs' treatment.

         Defendant Smith is the DPS Medical Director, serves on the Utilization Review Board, and oversees delivery of all medical services to the NC DOP. She is responsible for establishing medical policy and procedure that governs medical treatment of all inmates within the NC DOP.

         Defendant Pittman is the DPS Regional Medical Director, and is responsible for supervising and monitoring delivery of all medical and dental care services throughout Western District of North Caroilna at a level consistent with community standards.

         Defendant Melton is the Mountain View C.I. lead nurse who is responsible for supervising and monitoring delivery of all medical and dental care services within Mountain View C.I., at a level consistent with community standards.

         Since 2012, Defendants Smith, Pittman, and Melton, have denied and continue to deny treatment which is the professional medical community standard of care to cure Hepatitis-C viral infection and relieve the effects of end stage liver disease and chronic liver failure. Since June 2012, Defendants Smith, Pittman, and Melton have denied and continue to deny necessary medical follow-up to track and halt the emotional and painful effects of end stage liver disease and chronic liver failure including regular blood work, ultrasound, and CT scans which are medically necessary for individuals with Hepatitis-C virus. Defendants Smith, Pittman, and Melton refused with deliberate indifference to provide Plaintiff Spake with access to be seen or evaluated by a hepatologist or gastroenterologist for proper treatment of the Hepatitis-C virus.

         Defendants Uhren and D'Amico are the primary medical providers for DPS/DOP health services. They are both treating physicians who provide medical care at Mountain View and Avery Mitchell C.I. they have an obligation to provide independent, individual, safe, effective medical care to each Plaintiff consistent with the community standard of medical care. They were deliberately indifferent for refusing to treat Plaintiffs' disability and disease and serious medical need of Hepatitis-C infection in compliance with the current standards of individualized professional medical care. Since 2012, Defendants Uhren and D'Amico have denied and continue to deny treatment which is the professional medical community standard of care to cure Hepatitis-C viral infection and relieve the effects of end stage liver disease and chronic liver failure. Since June 2012, Defendants Uhren and D'Amico have denied and continue to deny necessary medical follow-up to track and halt the emotional and painful effects of end stage liver disease and chronic liver failure including regular blood work, ultrasound, and CT scans which are medically necessary for individuals with Hepatitis-C virus. Defendants Uhren and D'Amico refused with deliberate indifference to provide Plaintiff Spake with access to be seen or evaluated by a hepatologist or gastroenterologist for proper treatment of Hepatitis-C virus.

         Defendant Slagle is the administrator who is responsible for supervising and monitoring the delivery of all medical and dental care services at Mountain View C.I., that must be provided at a level consistent with community standards.

         Defendant Ball is the administrator responsible for supervising and monitoring the delivery of all medical and dental care services at Avery Mitchell C.I., that must be provided at a level consistent with community standards.

         A June 2011 needle liver biopsy revealed that Plaintiff Spake suffers from “End Stage Liver Disease (Stage 4) due to HCV Infection Virus.” (Doc. No. 12 at 24). On June 14, 2012, Plaintiff Spake was sentenced to 20 months' imprisonment at the North Carolina DPS and, immediately after sentencing, he lapsed into a hepatic encephoalopathy coma that was, upon belief, directly caused by his liver disease. Id. Plaintiff Spake was transferred from County jail to Salisbury C.I. infirmary. Due to his “delirium” and “fatal condition, ” Plaintiff Spake was moved without justification to segregation. (Doc. No. 12 at 24-25). His condition finally improved enough to be transferred to Avery Mitchell C.I. where he immediately began seeking treatment for his Hepatitis-C and end stage liver disease through sick calls and grievances. He was repeatedly denied treatment by Defendants Uhren and D'Amico, “quoting Policy and Procedure, ” and telling him that, even if he was in a life-threatening condition due to his end-stage liver disease, they were “unable to treat his HCV Virus Infection per policy and procedure.” (Doc. No. 12 at 25). Plaintiff Spake was released from custody in March 2014.

         On September 27, 2015, Plaintiff Spake was again remanded to DPS to serve a 35-54 month sentence. (Doc. No. 12 at 26). Plaintiff Spake mentioned his medical issues at sentencing and the judge ordered “the benefit of any educational [or] vocational opportunities or needed medical treatments, given his condition” and that Plaintiff Spake “be the recipient of any treatment that might help him, whatever that may be.” (Doc. No. 12 at 26). Despite the judge's order, “no treatment of any kind has been provided” as of the date the Amended Complaint was filed on March 4, 2016. Id.

         While incarcerated, Plaintiff Spake has diligently requested Hepatitis-C treatment, routine blood work and monitoring, and he has been repeatedly denied for non-medical reasons, i.e., “Policy and Procedure.” (Doc. No. 12 at 28).

         Denial of treatment has caused Plaintiff Spake substantial physical and mental deterioration including “irreversible liver damage which has manifested into liver cancer, liver failure and inevitably will cause their deaths, and this damage can be determined for trial.” (Doc. No. 12 at 3). This irreversible damage and deterioration would not have been as severe had breakthrough drugs been provided to Plaintiffs at the onset of their availability. As a direct result of Defendants' deliberate indifference, Plaintiff Spake's condition continues to deteriorate, causing him great suffering and emotional and physical pain directly caused by the Hepatitis-C virus, which will inevitably lead to his death. Medical treatment for Plaintiff Spake's Hepatitis-C infection is urgent due to his advanced end-stage liver disease and liver deterioration; once his liver decompensates the only available treatment will be liver transplant. (Doc. No. 12 at 29).

         Plaintiff Lewis was sentenced to 200 months' imprisonment on December 10, 2008. He was not tested for Hepatitis-C at processing but requested a Hepatitis-C test on September 11, 2009, due to unexplained weakness and skin rashes. Plaintiff Lewis tested positive for Hepatitis-c virus genotype 1-A with a viral load of 2, 313, 630. (Doc. No. 12 at 29). In May 2010, Plaintiff Lewis began a 48-week course of “toxic” Interferon injections and Ribavirin treatment, the side-effects of which were emotionally and physically “devastating.” (Doc. No. 12 at 30). Within 10 weeks, the treatment was deemed unsuccessful and was terminated. Plaintiff Lewis' viral load was 5, 250, 090 on July 14, 2010.

         On September 26, 2012, Plaintiff Lewis had an abdominal ultrasound due to unexplained pain. He was diagnosed with pancreatitis and liver inflammation that impairs the body's ability to digest essential nutrients and filter toxins from the blood to prevent infections. In March 2013, Plaintiff Lewis had a U.R.-approved scheduled appointment with Dr. Thomas Nuzum at UNC Chapel Hill but the appointment was withdrawn for undocumented reasons. Plaintiff Lewis asked why the appointment was cancelled but he never received a response. Plaintiff Lewis submitted sick calls on November 26, 2014 and December 19, 2014, asking about his treatment plan for Hepatitis-C. In late December 2014, Plaintiff Lewis saw Dr. Byrd at Maury C.I., who looked at the records and saw no documented reason for the withdrawal of the March 5, 2013, appointment with Dr. Nuzum. She said that the treatment plan must have “fallen through the cracks, ” and received approval for another appointment with Dr. Nuzum in March 2015. (Doc. No. 12 at 31).

         On January 29, 2015, Plaintiff Lewis was shipped from Mountain View C.I., where his appointment with Dr. Nuzum was again withdrawn for undocumented reasons. Plaintiff Lewis submitted sick calls to find out about the cancellation and his treatment plan on March 22, 2015. He was notified by Defendants Uhren, D'Amico, and “medical employees” that there was “no treatment available” for Hepatitis-C virus. (Doc. No. 12 at 31). Plaintiff Lewis diligently requested the new breakthrough drugs since he found out about them and they have been repeatedly refused for non-medical reasons.

         The denial of the standard of care treatment has caused Plaintiffs physical and emotional pain and suffering and deterioration. (Doc. No. 12 at 32).

         Plaintiffs seek mandatory preliminary injunctive relief;[3] permanent injunctive relief;[4]declaratory judgment; compensatory, nominal, and punitive damages; prejudgment interest and post-verdict interest; all costs; reasonable attorney's fees; and all other relief that the Court deems just and proper.

         II.MANDATORY 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)). 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. DiBiase v. SPX Corp., 872 F.3d 224, 230 (4th Cir. 2017) (quoting Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 20 (2008)).

         The typical preliminary injunction is prohibitory and generally seeks only to maintain the status quo pending a trial on the merits. See Pashby v. Delia, 709 F.3d 307, 319 (4th Cir. 2013). By contrast, a mandatory injunction “goes well beyond simply maintaining the status quo pendent lite, is particularly disfavored, and should not be issued unless the facts and law clearly favor the moving party.” Taylor v. Freeman, 34 F.3d 266, 270 n. 2 (4th Cir. 1994) (quoting Martinez v. Matthews, 544 F.2d 1233, 1243 (5th Cir. 1976)). A mandatory injunction is warranted in only the most extraordinary circumstances. Id. (citing Wetzel v. Edwards, 635 F.2d 283, 286 (4th Cir. 1980)). Further, it is well established that “absent the most extraordinary circumstances, federal courts are not to immerse themselves in the management of state prisons or substitute their judgment for that of the trained penological authorities charged with the administration of such facilities.” Taylor, 34 F.3d at 268; see Rogers v. Scurr, 676 F.2d 1211, 1214 (8th Cir. 1982) (“judicial restraint is especially called for in dealing with the complex and intractable problems of prison administration.”).

         Incorporated in the Amended Complaint is a motion for mandatory preliminary injunctive relief for the immediate provision of the breakthrough Hepatitis-C drugs to both Plaintiffs. Plaintiffs claim that they are in imminent danger due to continuing deterioration of their physical condition due to their untreated Hepatitis-C virus infections. They seek ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.