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Gordon v. Schilling

United States Court of Appeals, Fourth Circuit

September 4, 2019

CARL D. GORDON, Plaintiff - Appellant,
DIRECTOR FRED SCHILLING, Health Services Director of Virginia Department of Corrections; MARK AMONETTE, Chief Physician of the Virginia Department of Corrections, Defendants - Appellees.

          Argued: April 2, 2019

          Appeal from the United States District Court for the Western District of Virginia, at Roanoke. Norman K. Moon, Senior District Judge. (7:15-cv-00095-NKM-RSB)


          C. Harker Rhodes IV, KIRKLAND & ELLIS LLP, Washington, D.C., for Appellant.

          Margaret Hoehl O'Shea, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.

         ON BRIEF:

          Erin E. Murphy, KIRKLAND & ELLIS LLP, Washington, D.C., for Appellant.

          Mark R. Herring, Attorney General, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellees.

          Before GREGORY, Chief Judge, and KING, Circuit Judge. [1]


         Plaintiff Carl D. Gordon, a Virginia inmate, appeals from a summary judgment award made by the district court in favor of the defendants, two officials within the Virginia Department of Corrections (the "VDOC"): Health Services Director Fred Schilling and Chief Physician Mark Amonette. In his pro se complaint filed pursuant to 42 U.S.C. § 1983, Gordon claims that the defendants contravened his Eighth Amendment rights by denying him treatment for his Hepatitis C virus ("HCV"). At the close of discovery, the district court granted summary judgment in favor of the defendants, ruling that they had no personal involvement in treatment decisions related to Gordon's HCV and that, in any event, Gordon's disease had been adequately monitored by VDOC physicians. See Gordon v. Schilling, No. 7:15-cv-00095 (W.D. Va. Sept. 13, 2016), ECF No. 30 (the "Opinion"). For the reasons that follow, we vacate and remand.




         This appeal primarily concerns VDOC treatment guidelines that categorically excluded an HCV-positive inmate from receiving HCV treatment because of his parole eligibility or predicted release date.[2] HCV is a viral disease that affects the liver. Early in the progression of HCV (the so-called "acute phase"), the disease can cause jaundice, nausea, and fatigue. See Roe v. Elyea, 631 F.3d 843, 848 (7th Cir. 2011). Some persons infected with HCV experience a resolution of symptoms during the acute phase. But for up to 85% of HCV-infected persons, the disease progresses into a chronic condition. Many of those afflicted with chronic HCV will experience liver damage, including scarring of the liver tissue, which is known as progressive fibrosis. Id. And about 20% of those with chronic HCV will develop cirrhosis of the liver, that is, long-term liver damage. Cirrhosis can lead to liver failure, and those with cirrhosis also face a significant risk of developing liver cancer. Liver failure and liver cancer "frequently develop in [HCV-]infected individuals up to twenty or thirty years after initial infection." Id.

         HCV is transmitted through blood-to-blood contact and is frequently spread through the use of shared needles. Due in part to its means of transmission, HCV is relatively common among prison populations, affecting 16% to 41% of incarcerated individuals. See Scott A. Allen et al., Hepatitis C Among Offenders, 67 Fed. Probation 22, 24 (2003). That percentage is substantially higher than the rates of HCV observed among the general public. Id.


         In 2004, given the prevalence of HCV among inmates within its custody, the VDOC issued the now-rescinded treatment guidelines at issue in these proceedings (the "2004 Guidelines," or the "Guidelines"). The 2004 Guidelines explained that HCV "represents a potentially serious problem within the correctional environment." See J.A. 34.[3] In addition, the Guidelines acknowledged that up to 85% of those infected with HCV develop a "chronic disease," that about 20% of those inflicted with chronic HCV will experience cirrhosis, that some of those with cirrhosis will also develop liver cancer, and that HCV can be fatal. Id.

         The 2004 Guidelines also set forth the criteria that VDOC physicians were constrained to apply in diagnosing HCV and deciding whether to treat an inmate for that disease. In order for an inmate to be diagnosed with HCV under the Guidelines, he had to test positive for the HCV antibody and have two blood test results showing an elevated level of a certain liver enzyme (alanine transaminase) over a six-month period. But an HCV diagnosis did not automatically qualify an inmate for treatment. That is, the Guidelines contained "exclusion and inclusion criteria" for treatment eligibility and instructed physicians to "review carefully" that criteria "[p]rior to consideration [of an inmate] for [HCV] treatment." See J.A. 35.

         The 2004 Guidelines specified many reasons for excluding an HCV-positive inmate from treatment. Pertinent here, an HCV-positive inmate was categorically excluded from receiving HCV treatment if he was either "parole eligible" or if he had less "than 24 months remaining to serve after [undergoing a] liver biopsy." See J.A. 36. Consequently, the Guidelines precluded a physician within the VDOC system from providing treatment for HCV to a parole-eligible inmate or an inmate who would be released within two years.

         An HCV-positive inmate who satisfied the treatment criteria (e.g., by not being parole eligible and not having less than two years remaining on his sentence) would receive a "baseline workup" - consisting of an array of medical tests - followed by a liver biopsy to determine the levels of fibrosis and inflammation in his liver. See J.A. 37. Contingent on the biopsy results, an inmate's HCV would then be treated using two medications: pegylated interferon and ribavirin. According to the 2004 Guidelines, that course of medications would last from six to twelve months, dependent on the particular genotype of the disease.[4] Pegylated interferon and ribavirin have a success rate of between 40% and 80% in treating HCV. See Allen et al., supra, at 22. But stopping the medications prior to completing the entire course of therapy can cause resistance thereto and have detrimental health effects for the patient.

         In contrast, the 2004 Guidelines allowed a parole-eligible inmate to be enrolled in a "chronic care clinic." See J.A. 37. An inmate who qualified for that clinic was entitled to receive a physical examination and liver function tests twice each year. Unlike an inmate who was not parole eligible and otherwise satisfied the treatment criteria, an inmate in the chronic care clinic would not receive a baseline workup, a liver biopsy, and treatment.


         Plaintiff Gordon has been incarcerated in the VDOC system since 1980. Although his mandatory parole date is October 2028, Gordon is eligible for discretionary parole and can be reviewed for such parole annually. Gordon has been eligible for discretionary parole since at least 2002, but he has consistently declined hearings before the Virginia Parole Board.

         In March 2008, while incarcerated at the Red Onion State Prison, Gordon was diagnosed with HCV. According to Gordon, despite his HCV diagnosis, he was excluded from receiving treatment under the 2004 Guidelines because he was eligible for discretionary parole. Pursuant to the Guidelines, Gordon was placed in the chronic care clinic and received biannual liver function testing to monitor (rather than treat) his disease. Gordon received those biannual visits and tests from the time of his diagnosis in 2008 through the fall of 2011. One of the tests - performed in October 2011 - reflected elevated levels of liver enzymes that could indicate liver damage.

         Beginning in 2011 and continuing into 2015, Gordon repeatedly brought his HCV diagnosis and the lack of any HCV treatment to the attention of VDOC officials, including defendant Schilling, by way of administrative grievances. As the VDOC's Health Services Director, Schilling was responsible for ensuring "compliance with the medical operating procedures at the institutional level." See J.A. 105.[5] In addition, Schilling was obliged to review "each policy . . . in the [VDOC] health care delivery system at least annually" and to revise any such policy "if necessary." See VDOC Operating Procedure 701.1 § VII(B) (Mar. 2012), available at (last visited Aug. 12, 2019).[6] Schilling was also responsible for reviewing and deciding grievance appeals related to inmate medical issues.

         In early 2011, Gordon filed two grievances related to his HCV. In those grievances, Gordon not only made prison officials aware of his HCV diagnosis but also of the "deadly" nature of the disease and his need for treatment to prevent further damage to his liver. See J.A. 115. Both of those grievances were denied, and Schilling reviewed Gordon's appeals of the denials. In rejecting the appeals, Schilling acknowledged Gordon's "Hepatitis diagnosis," id. at 114, and stated that the prison ...

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