United States District Court, W.D. North Carolina, Asheville Division
BRIAN K. LEWIS, et al., Plaintiffs,
NORTH CAROLINA DEPARTMENT OF PUBLIC SAFETY, et al., Defendants.
D. Whitney Chief United States District Judge.
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).
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 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. 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).
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.
Guice, as DPS Commissioner, is responsible
for policy and procedure, administration, and supervision of
staff and employees.
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'
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.
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
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.
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
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
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
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.
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.
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.
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).
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).
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.
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).
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.
denial of the standard of care treatment has caused
Plaintiffs physical and emotional pain and suffering and
deterioration. (Doc. No. 12 at 32).
seek mandatory preliminary injunctive relief; permanent
injunctive relief;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
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)).
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)).
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
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