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
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)
Harker Rhodes IV, KIRKLAND & ELLIS LLP, Washington, D.C.,
Margaret Hoehl O'Shea, OFFICE OF THE ATTORNEY GENERAL OF
VIRGINIA, Richmond, Virginia, for Appellees.
E. Murphy, KIRKLAND & ELLIS LLP, Washington, D.C., for
R. Herring, Attorney General, OFFICE OF THE ATTORNEY GENERAL
OF VIRGINIA, Richmond, Virginia, for Appellees.
GREGORY, Chief Judge, and KING, Circuit Judge. 
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
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. 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.
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.
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. 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.
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.
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.
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. 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.
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.
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
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.
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.
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
https://bit.ly/2M61zNt (last visited Aug. 12,
2019). Schilling was also responsible for
reviewing and deciding grievance appeals related to inmate
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