United States District Court, W.D. North Carolina, Asheville Division
D. Whitney, Chief United States District Judge.
MATTER comes before the Court on Defendants'
Motions for Summary Judgment, (Doc. No. 62).
se incarcerated Plaintiff filed a civil rights suit
pursuant to 42 U.S.C. § 1983, the Americans with
Disabilities Act (“ADA”), and Rehabilitation Act
(“RA”), and the North Carolina LAW. Plaintiff
claimed that he was denied treatment with breakthrough drugs
for his Hepatitis-C viral (“HCV”) infection that
are the medical community standard of care, for non-medical
reasons. (Doc. No. 8). The Amended Complaint passed initial
review on Plaintiff's claims against Defendants James
Duckworth, Bret Bullis, Chad Green, David W. Guice, Robert
Uhren, Frank L. Perry, Keith D'Amico, Betty Penland,
Paula Y. Smith, Renita Stroup, Kathryn Renfro, Cindy Haynes,
Carolyn Buchanan, James Vaughn, Sandra Pitman, Norma Melton,
Mike Slagle, and Mike Ball. See (Doc. No. 18).
Defendants Uhren and D'Amico filed a Motion to Dismiss
due to Petitioner's failure to exhaust his administrative
remedies. (Doc. No. 34). Petitioner failed to respond despite
being informed of his right to do so pursuant to Roseboro
v. Garrison, 528 F.2d 309 (4th Cir. 1975),
and Defendants Uhren and D'Amico's Motion was granted
on July 27, 2018. (Doc. No. 58). The remaining Defendants
have now filed the instant Motion for Summary Judgment. (Doc.
Amended Complaint (Doc. No. 8)
alleges in his unverified Amended Complaint that NCDPS does not
screen incoming inmates for Hepatitis-C virus and, for
inmates who have been diagnosed with Hepatitis-C, and refuses
to provide “breakthrough” 12-week oral pill
treatment until infected inmates have experienced severe and
irreversible liver damage.
argues Guice, as Commissioner of NCDPS, is responsible for
policy and procedure, administration, and supervision of
staff and employees within NCDPS during the relevant time.
Perry, as secretary of NCDPS, is responsible for oversight,
operation, and administration of DPS including providing
appropriate medical treatment and formulating policy and
procedure to ensure the provision of treatment for Plaintiff
and those similarly situated. Smith, as NCDPS medical
director, serves on the Utilization Review Board, and is
responsible for overseeing delivery of all medical services
in division of prisons as well as the establishment of
medical policy and procedure that governs the med treatment
of all inmates in the division of prisons. Regional Medical
Director Pittman, Mountain View C.I. Lead Nurse Melton,
Mountain View C.I. Administrator Slagle, Avery Mitchell C.I.
Lead Nurse Penland, are responsible for supervising and
monitoring the delivery of medical and dental care services
to inmates, which must be provided consistent with community
standards. He also named John and Jane Doe doctors, nurses,
case managers, correctional officers, supervisors, “and
any N.C. Dept of Public Safety/ Division of Prisons,
employees, agents, or representatives whose work place are
Mountain View Correctional Institution, Avery Mitchell
Correctional Institution and any other prisons operated by
the defendants charged with responding to requests for
medical care for HCV Infections from now-unknown inmates
within the NC prison systems.” (Doc. No. 8 at 14). He
claims that Defendants were deliberately indifferent by
refusing to treat Plaintiff's disability, disease, and
serious medical needs regarding Hepatitis-C infection in
compliance with current standards of individualized
professional medical care.
argues that NCDPS policy, and its employees' enforcement
of it, amounts to cruel and unusual punishment, violates
equal protection because Hepatitis-C is screened and treated
differently from HIV, and violates the North Carolina
Constitution. Further, he argues, the policy violates the ADA
and RA because Hepatitis-C infected inmates are excluded from
DPS programs that could result in gain time.
seeks declaratory judgment, injunctive relief, compensatory
and punitive damages, and such other relief to which he is
entitled. He also seeks preliminary injunctive relief for
immediate treatment with the breakthrough drug therapy.
Defendants' Motion for Summary Judgment
(Doc. No. 62)
remaining Defendants argue that summary judgment should be
granted in their favor because none of the custody
correctional staff, other employees, or executive managers
have ever been involved in providing patient care to inmates.
Only Smith was responsible for the creation, implementation,
and modification of policies/ procedures/ guidelines
regarding health services including HCV, and she did not
consult or work with any of the Defendants on the HCV policy.
ADA and RA policy provides for reasonable accommodations. A
recommendation is made by the ADA coordinator and further
review is done. The executive management and correctional
staff, medical staff, and contractors are not involved in the
ADA request and determination process. Plaintiff did not make
an ADA request while housed at Avery-Mitchell but made two at
Mountain View. The second ADA request was submitted after
Plaintiff filed his Amended Complaint.
Department Defendants are entitled to summary judgment
because Plaintiff did not exhaust his available
administrative remedies about his HCV claims before
initiating this action; even if the claims were exhausted,
none of the Department Defendants were involved in providing
patient care to Plaintiff and cannot be deliberately
indifferent. Of the 19 Defendants, only Uhren and D'Amico
were involved in providing medical care to Plaintiff, and 15
of the 17 remaining Defendants were not involved in providing
patient care. Penland and Renfro were registered nurses at
Avery-Mitchell at the relevant times but there is no evidence
to suggest that they provided care to Plaintiff. Only Smith
was involved in the creation and implementation of HCV
policy, and her actions do not support a claim of deliberate
argue that they are entitled to summary judgment on
Plaintiff's deliberate indifference claims under the
North Carolina Constitution because the § 1983 analysis
argue that the ADA and RA claims warrant summary judgment
because none of the Defendants were involved in the ADA
request and evaluation process and Plaintiff did not submit
an ADA request before filing this action so he cannot satisfy
the elements to establish an ADA or RA violation. Further,
Plaintiff's state law claims including medical
malpractice must be dismissed because Plaintiff did not
comply with Rule 9(j).
the Department Defendants are entitled to qualified immunity
because their actions were reasonable.
further argue that Plaintiff's official capacity claims
for compensatory and punitive damages are barred by the
Eleventh Amendment, that the ADA and RA do not authorize suit
for monetary damages against the Department Defendants in
their individual capacities, and that Plaintiff's
allegations do not support an award of punitive damages in
their individual capacities.
these reasons, Defendants argue, summary judgment should be
granted and the case should be dismissed in its entirety.
Plaintiff's Responses (Doc. Nos. 66,
se Plaintiff was informed of the importance of
responding to Defendants' Motion for Summary Judgment and
the legal standard applicable to such motions. (Doc. Nos. 65,
70). Plaintiff was cautioned that his failure to respond
would probably result in the grant of relief that the
Defendants are seeking. (Id.).
filed a Response, (Doc. No. 66), in which he attempts to
rebut Defendants Uhren and D'Amico's Motion to
Dismiss as well as the present Motion for Summary Judgment.
He argues that his claims should be granted, that Rule 9(j)
does not apply, that he requested HCV treatment numerous
times, and that he is not required to exhaust administrative
remedies before suing under ADA for relief including
equitable relief (Doc. No. 66 at 10). He signed the Response
before a notary “to the best of [his]
knowledge….” (Doc. No. 66 at 11).
second Response, (Doc. No. 71), Plaintiff states that he is
not required to exhaust administrative remedies under the ADA
and that he considered disabled under the RA and ADA because
he has an infectious disease. He also argues that Defendants
are liable as supervisors because they failed to intervene in
constitutional violations, and that the Court should consider
the full medical records and that Judge Osteen granted
immediate relief to three HCV-infected inmates in a separate
case. The Response was signed before a notary.
Affidavit of Renita Stroup (Doc. No. 69-1)
Stroup has been a Nurse Supervisor at Avery-Mitchell C.I.
since November 2015 and, before that date, she was the Lead
Nurse at Avery-Mitchell. Her responsibilities as Nurse
Supervisor include serving as a supervisor for all other
nursing and other healthcare staff who work in the
Avery-Mitchell medical unit.
types of staff at Avery-Mitchell who are directly involved in
patient care to inmates are limited to registered nurses,
licensed practical nurses, physician assistants, and medical
doctors. While Stroup supervises various medical personnel,
she is not directly involved in providing patient care to
inmates. Not now, or at any time since she has worked at
Avery-Mitchell, have Facility Administrators, Assistant
Facility Administrators, or various other correctional staff
(other than those listed above) been involved in providing
patient care to inmates. Not now, nor at any time since
Stroup has worked at Avery-Mitchell, have other employees and
executive management of the Department such as the Director
of Health Services for the Division of Prisons of the
Department, the Nurse Supervisor for the Western Region for
the Division of Prisons of the Department, the Commissioner
of Adult Correction and Juvenile Justice, or the Secretary of
the Department, been involved in providing patient care to
inmates. Neither Stroup nor Defendants Smith, Pittman, Guice,
Perry, and Ball were ever involved in providing patient care
to inmates at Avery-Mitchell including Plaintiff. (Doc. No.
69-1 at 3).
Affidavit of Norma Melton (Doc. No. 69-2)
Melton is a Nurse Supervisor at Mountain View C.I. and was so
employed between July 2012 and February 2016. Her
responsibilities as Nurse Supervisor include serving as a
supervisor for all other nursing and other healthcare staff
who work in the Mountain View medical unit. The types of
staff at Mountain View who are directly involved in patient
care to inmates are limited to registered nurses, licensed
practical nurses, physician assistants, and medical doctors.
While Melton supervises various medical personnel, she is not
directly involved in providing patient care to inmates.
now, or at any time since she has worked at Mountain View,
have Facility Administrators, Assistant Facility
Administrators, or various other correctional staff (other
than those listed above) been involved in providing patient
care to inmates. Not now, nor at any time since Melton has
worked at Mountain View, have other employees and executive
management of the Department such as the Director of Health
Services for the Division of Prisons of the Department, the
Nurse Supervisor for the Western Region for the Division of
Prisons of the Department, the Commissioner of Adult
Correction and Juvenile Justice, or the Secretary of the
Department, been involved in providing patient care to
inmates. Accordingly, neither Melton nor Defendants Bullis,
Buchanan, Duckworth, Green Guice, Haynes, Perry, Pittman,
Slagle, or Smith were ever involved in providing patient care
to inmates at Mountain View including Plaintiff. (Doc. No.
69-2 at 3-4).
Affidavit of Jason Penland (Doc. No. 69-3)
Penland is the Correctional Assistant Superintendent for
Programs at Avery-Mitchell C.I. and was so employed between
July 2012 through January 2014, and April 2015 through
February 2016. As Correctional Assistant Superintendent for
Programs, his responsibilities include consulting with units
on programs, policies, and classification, and assessing
training of programs staff. He is familiar with the
Department's policy and procedure regarding reasonable
accommodation for inmates with disabilities.
purpose of the Department's ADA policy is to
“establish policy and procedures regarding the
Prisons' commitment to compliance with ADA and the
[RA].” (Doc. No. 69-3 at 2). As the Assistant
Superintendent for Programs at Avery-Mitchell, Penland serves
as the Facility ADA Administrator pursuant to NCDPS ADA
Policy. It is the policy of NCDPS to establish procedures for
an inmate to request an accommodation for a qualified
disability that affects a major life activity and to ensure
that, among other things, reasonable accommodations are made
to facility jobs, programs, activities and services to permit
participation by a qualified inmate with a disability and
that no qualified individual with a disability is excluded
from participation or denied the benefits of jobs, programs,
activities, or services solely due to such a disability. The
ADA policy provides that eligible and otherwise qualified
inmates with a disability shall have the same opportunities
for access to jobs, programs, activities, or service options
as non-disabled inmates. The ADA policy provides that inmates
are informed of the amount of their Gain/Earned time during
their scheduled case management contacts if an inmate
disagrees with the assessment of Gain/Earned Time, the inmate
may use the administrative remedy procedure pursuant to NCDPS
Policy provides a detailed procedure for requesting a
reasonable accommodation. Under this procedure:
a. The Inmate Reasonable Accommodation Request Forms (DC-746)
are readily accessible to all inmates by any and all prison
staff. Inmates are made aware of these forms during the
facility orientation process during the admission process.
b. An inmate who has a disability that he/she believes is not
being reasonably accommodated must submit a written request
for accommodation using the Inmate Reasonable Accommodation
Request Form (“Request Form”) to his/her case
manager. The form must specify the disability and the
accommodation or service sought.
c. After the Request Form is completed it is sent to the
Facility Disability Case Manager who then contacts the
facility Mental Health Social Worker to start the review and
d. After consultation with mental health and medical staff at
the facility, the Mental Health Social Worker will note a
recommendation to either approve or deny the request on a
disability assessment form.
e. The completed disability assessment form is then sent to
the Facility ADA Coordinator for review and approval/denial
of the recommendation.
f. The Facility ADA Coordinator then reviews the request and
the recommendations to determine whether he/she will approve
or deny the recommendation. In either instance, the facility
ADA Coordinator will forward the request, recommendation and
their approval or denial, to the Prisons ADA Coordinator for
further review and determination.
g. If the Facility ADA Coordinator approves the
recommendation that an accommodation be made, then the
Facility ADA Coordinator must forward the approved Request
Form to the Prisons ADA Coordinator.
h. The Prisons ADA Coordinator then conducts their own
review. If the Prisons ADA Coordinator concurs with the
approval of the recommendation, then the Prisons ADA
Coordinator sends the Request Form to a Prisons ADA
Compliance Specialist to review and approve any changes to
the job, program, activity or service being proposed to
accommodate the inmate. After the ADA Compliance Specialist
reviews and acts on the Request Form, the form is returned to
the facility ADA Coordinator. The action of the Prisons ADA
Coordinator and Prisons ADA Compliance Specialist is final.
i. Once the Facility ADA Coordinator receives the Request
Form, the Facility ADA Coordinator must proceed with
implementing the approved ADA accommodation(s).
j. If the inmate is no longer housed at that facility, the
Facility ADA Coordinator must forward the Request Form to the
Facility ADA Coordinator at the inmate's current housing
k. If the Facility ADA Coordinator does not approve the
recommendation that an accommodation be made (or if the
recommendation is that an accommodation not be made and the
Facility ADA Coordinator concurs), then the Facility ADA
Coordinator must forward the denied Request Form to the
Prisons ADA Coordinator for final decision making.
l. If the Prisons ADA Coordinator disagrees and approves the
request, then the process of review, approval, and
implementation continues as though the Request Form was
m. If the Prisons ADA Coordinator agrees with the
recommendation that the request be denied, then the denied
Request Form is returned to the Facility ADA Coordinator who