Opinion
Civil File No. 03-2995 (PAM/SRN).
September 25, 2004
MEMORANDUM AND ORDER
This matter is before the Court on Defendants' Motion to Dismiss, or, in the alternative, for Summary Judgment. For the reasons that follow, Defendants' Motion is granted.
BACKGROUND
Plaintiff Carlos J. Velarde ("Velarde") is a prisoner, currently incarcerated at the Federal Medical Center, in Rochester, Minnesota ("FMC Rochester"). Plaintiff was convicted by a jury of possession with intent to distribute cocaine in excess of five kilograms in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A)(ii). United States v. Velarde, 903 F.2d 1163, 1165 (7th Cir. 1990), as amended, June 26, 1990. Velarde was sentenced to 294 months imprisonment. United States v. Velarde, 39 Fed.Appx. 383, 384 (7th Cir. 2002), cert. denied, 537 U.S. 933 (2002). An additional five months of imprisonment was imposed for possession of marijuana in violation of 21 U.S.C. § 844(a). (Buege Decl. ¶ 3; Att. A.) Velarde's projected release date, assuming credit for "good time," is May 9, 2011. (Id.)
Velarde arrived at FMC Rochester on February 27, 2001. (Id.) Upon arrival, Velarde underwent a medical intake screening, at which he stated that he had a history of Hepatitis-C and Hepatitis-B. (Edwardy Decl. ¶ 4.) Velarde requested treatment. (Id.) On April 12, 2001, Velarde met with Dr. David Edwardy indicating that he desired Interferon and Ribavirin treatment ("Interferon/Ribavirin treatment") for his Hepatitis. (Id. Att. A at 16.) From April through July 26, 2001, Velarde underwent a series of tests to determine whether he was a candidate for Interferon/Ribavirin treatment, including psychological screening, a liver biopsy, blood tests, and Hepatitis-C genotyping. (Id. at 21, 25-28.) The testing revealed that Velarde has Hepatitis-C, genotype 1A, one of six genetic variants of the hepatitis virus and, according to Dr. Edwardy, the variant least likely to respond to Interferon. (Id. ¶ 4; Att. A at 28, 34, 62.) On July 26, 2001, Dr. Edwardy informed Velarde that he was a suitable candidate for Interferon/Ribavirin treatment. (Id. ¶ 5; Att. A at 28.)
Hepatitis is a medical condition which results in inflammation of the liver. Stedman's Medical Dictionary 808 (27th Ed. 2000). A high percentage of individuals infected with the Hepatitis-C virus "develop chronic liver disease leading to cirrhosis and possible hepatocellular carcinoma." Id. at 810. Velarde asserts that he first became aware of his Hepatitis in 1992. (Velarde Decl. ¶ 3.)
On August 24, 2001, Velarde started Interferon/Ribavirin treatment. (Id. at 36.) On September 25, 2001, Dr. Edwardy noted that Velarde's hemoglobin level underwent a "rather dramatic drop" from July 31 to September 18. (Id. at 37.) Dr. Edwardy assessed Velarde with mild anemia. (Id.) Dr. Edwardy again noted anemia on November 27, 2001. (Id. at 38.) On December 17, 2001, Velarde was seen by Dr. Edwardy "for a possible discontinuation from the hepatitis C clinic." (Id. at 40.) Dr. Edwardy noted that Velarde had shown a "rather precipitous decline in his [hemoglobin]." (Id.) Velarde, however, indicated that he wanted to continue treatment and Dr. Edwardy decreased the Ribavirin level in an attempt to alleviate the anemia. (Id.) According to Dr. Edwardy, the decrease in Ribavirin stabilized Velarde's hemoglobin level and slightly reduced his anemia. (Id. ¶ 6.)
After six months of Interferon/Ribavirin treatment, Velarde was tested to determine whether he was responding positively to the treatment. (Id. at 41.) Testing revealed that his "quantitative viral load remained at nearly 2 million copies[.]" (Id. ¶ 6 at 41, 72.) According to Dr. Edwardy, Velarde's viral load indicated that the treatment was a failure. (Id. at 41, 45.) On February 25, 2002, Dr. Edwardy noted that he explained to Velarde that the guidelines dictated that treatment be stopped, and that Velarde was disappointed but understood. (Id. at 41.) Dr. Edwardy also indicated to Velarde that medication treatment might be re-visited in the future. (Id.)
Under the Bureau of Prisons ("BOP") guidelines in effect at that time, an inmate receiving Interferon/Ribavirin treatment was to have HCV RNA levels tested after twenty-four weeks of treatment. See Federal Bureau of Prisons Clinical Practice Guidelines for the Prevention and Treatment of Viral Hepatitis, 32 (July 2001). Pursuant to the guidelines, if an inmate with genotype 1A still had detectable HCV RNA, it was to be considered a treatment failure and treatment discontinued. Id. at 32-33.
On February 26, 2001, Velarde submitted an Inmate Request to Dr. Edwardy, asking that he be allowed to continue treatment, specifically with Pegylated Interferon. (Id. at 110.) Velarde stated that, pursuant to the National Institutes of Health Consensus Development Conference Statement, Management of Hepatitis-C (1997), continued treatment was warranted if the Interferon is well-tolerated. (Id.) Velarde also noted that no viral load testing was done prior to the start of treatment. (Id.) Dr. Edwardy responded by attaching a copy of the BOP policy, stating "I'm not saying we can't go back, but for now I need to stay with the protocol." (Id.) Velarde continued to make requests of Dr. Edwardy that he be restarted on medication treatment. (Id. at 46, 112.)
The highest rates of success in combination therapy of HCV have been achieved with Pegylated Interferon. (Edwardy Decl. ¶ 13.) According to Dr. Edwardy, Pegylated Interferon (a slower-dissolving Interferon) was not available to the BOP at the time of Velarde's treatment. (Id.)
On March 5, 2002, Velarde directed an Inmate Request to Warden Constance Reese ("Warden Reese"), asking that his treatment be restarted because "the BOP `protocol' cited by Dr. Edwardy when denying my request is not in compliance with the NIH's Disease Management program." (Buege Decl. ¶ 5; Att. C.) On April 16, 2002, Acting Warden Louis Winn denied the request on behalf of Warden Reese, reiterating that Velarde's response to treatment indicated that it be discontinued and that there was no indication for other treatment. (Id.)
On April 29, 2002, Velarde appealed the denial of his request. (Id.; Compl. Att. at 3.) On August 8, 2002, the Regional Director for the BOP's North Central Regional Office denied Velarde's appeal, concluding that he had "been provided with essential care consistent with acceptable standards." (Compl. Att. at 4.) On August 25, 2002, Velarde appealed the Regional Director's denial of his appeal. (Id. at 5-6.) On September 30, 2002, National Inmate Appeals denied Velarde's appeal, noting that the August 27, 2002, NIH report stated that long-term, continuous therapy with Pegylated Interferon should be considered experimental. (Id. at 7.) The National Inmate Appeals Administrator concluded that denial of retreatment was "based on nationally recognized guidelines and current medical research." (Id.)
On May 1, 2003, Velarde filed suit in this Court, alleging that Defendants Warden W.I. LeBlanc and Dr. Edwardy, as well as unknown BOP staff, violated his constitutional rights under the Eighth Amendment by "deliberately and indifferently" denying him medical treatment. Velarde brings his claim pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388 (1971). Defendants request that Velarde's action be dismissed, or alternatively, that they be granted judgment as a matter of law.
As Defendants correctly note, the absence of identifying information related to the "unknown Bureau of Prisons staff," dictates that such unidentified government officials be dismissed without prejudice. See Phelps v. United States Fed. Gov't, 15 F.3d 735, 739 (8th Cir. 1994), cert. denied, 511 U.S. 1114 (1994). Apparently recognizing this defect in his Complaint, Velarde moved to file an Amended Complaint. Velarde's motion was denied without prejudice by the Magistrate Judge on May 25, 2004, because he failed to comply with the requirements of Local Rule 15.1. The Magistrate Judge specifically informed Velarde that he "is not precluded from moving to amend his complaint by properly reproducing the entire proposed complaint without incorporation by reference." (May 25, 2004, Order.) No further submissions have been received, and it is thus appropriate to dismiss the unknown BOP staff without prejudice.
"A Bivens claim is a cause of action brought directly under the United States Constitution against a federal official acting in his or her individual capacity for violations of constitutionally protected rights." Buford v. Runyon, 160 F.3d 1199, 1203 n. 6 (8th Cir. 1998).
DISCUSSION
A. Motion to Dismiss Official Capacity Claims
Velarde asserts claims against Defendants in their individual and official capacities. (Compl. at 3-4.) Defendants assert that Velarde's claims, to the extent that they are based on Defendants' actions in their official capacity, must be dismissed for lack of subject matter jurisdiction. For the purposes of the Motion to Dismiss, the Court takes all facts alleged in the Complaint as true. Westcott v. Omaha, 901 F.2d 1486, 1488 (8th Cir. 1990). The Court must construe the allegations in the Complaint and reasonable inferences arising from the Complaint favorably to Velarde. Morton v. Becker, 793 F.2d 185, 187 (8th Cir. 1986). A motion to dismiss will be granted only if "it appears beyond doubt that the Plaintiff can prove no set of facts which would entitle him to relief." Id.; see also Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
In this case, the Court agrees with Defendants' assertion that Velarde's official capacity claims must be construed as claims brought against the United States, and that the United States has not waived its sovereign immunity for a Bivens cause of action. It is a matter of law that a complaint against a government official, in their official capacity, is a suit against the United States, Buford, 160 F.3d at 1203, and that the United States has not waived its sovereign immunity relevant to the underlying facts in this case, see F.D.I.C. v. Meyer, 510 U.S. 471, 475 (1994); Porter v. Fox, 99 F.3d 271, 272-73 (8th Cir. 1996). Thus, there are no facts alleged in the Complaint, that Velarde could prove to maintain claims against Defendants in their official capacity. All such claims therefore must be dismissed.
B. Motion for Summary Judgment
Defendants remaining arguments are most appropriately addressed in the context of summary judgment because they encompass materials submitted outside the pleadings. See Fed.R.Civ.P. 12(b). Rule 56(c) provides that a motion for summary judgment shall be granted only if "there is no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Unigroup, Inc. v. O'Rourke Storage Transfer Co., 980 F.2d 1217, 1219-20 (8th Cir. 1992). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no `genuine issue for trial.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The burden of demonstrating that there are no genuine issues of material fact rests on the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). When considering a motion for summary judgment, the Court must view the evidence and the inferences that may be reasonably drawn from the evidence in the light most favorable to the non-moving party. Enter. Bank v. Magna Bank, 92 F.3d 743, 747 (8th Cir. 1996).
If the moving party has carried its burden, the non-moving party must demonstrate the existence of specific facts in the record that create a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Krenik v. County of Le Sueur, 47 F.3d 953, 957 (8th Cir. 1995). A party opposing a properly supported motion for summary judgment may not rest upon mere allegations or denials and must do more than simply show that there is some metaphysical doubt as to the material facts. Matsushita Elec. Indus. Co., 475 U.S. at 586.
1. Eighth Amendment Standards
The Eighth Amendment's proscription on cruel and unusual punishments extends to circumstances where prison officials are deliberately indifferent to a prisoner's serious medical needs.See Estelle v. Gamble, 429 U.S. 97, 102-04 (1976). Denial of medical care that results in unnecessary suffering is inconsistent with contemporary standards of decency and gives rise to a cause of action under Bivens. Id. at 103-05. In order to state an Eighth Amendment claim based on the denial of medical care, Plaintiff must demonstrate that he had an objectively serious medical need and that Defendants knew of and deliberately disregarded that need. Coleman v. Rahija, 114 F.3d 778, 784 (8th Cir. 1997). The Eighth Amendment is violated if medical care is inadequate or so grossly incompetent that it amounts to deliberate indifference. Smith v. Jenkins, 919 F.2d 90, 93 (8th Cir. 1993). Such indifference must be substantial, and negligence in diagnosing or treating a medical condition does not constitute a constitutional violation. Estelle, 429 U.S. at 106. Deliberate indifference may be demonstrated in a case where the medical needs are so obvious that a layperson could recognize them, or where a plaintiff's claims are supported by medical evidence, such as a doctor's diagnosis or opinion. See Aswegan v. Henry, 49 F.3d 461, 464 (8th Cir. 1995).
2. Warden W.I. LeBlanc
Velarde alleges that Warden LeBlanc was deliberately indifferent to his serious medical needs for treatment by denying the administrative request. Defendants point out, however, that Warden LeBlanc did not deny the administrative request, but rather, that Acting Warden Louis Winn was the official who denied the request. Defendants argue that the doctrine of respondeat superior does not apply in the context of a Bivens action, and that since Warden LeBlanc had no personal involvement in denying the relevant administrative remedy request, that Warden LeBlanc must be dismissed. The Court agrees.
In fact, Warden LeBlanc did not take his position at FMC Rochester until February 2003. (LeBlanc Decl. ¶ 1.)
It is incontrovertibly clear from the record that Warden LeBlanc had no personal involvement in the either the medical care of Velarde or the denial of his administrative remedy request. Because a viable Bivens claim must contain specific allegations as to the factual involvement of a named defendant, Warden LeBlanc must be dismissed from this action. See Rizzo v. Goode, 423 U.S. 362, 377 (1976); Wilson v. City of North Little Rock, 801 F.2d 316, 322-23 (8th Cir. 1986).
3. Dr. David Edwardy
Velarde alleges that Dr. Edwardy was deliberately indifferent to his serious medical needs. (Compl. at 3.) Velarde specifically alleges that Dr. Edwardy knew of his serious medical condition, and deliberately disregarded his medical needs. Velarde has presented sufficient evidence that he suffers from an objectively serious medical condition — the Hepatitis C virus. Indeed, Dr. Edwardy does not contest that Velarde has serious medical needs, but rather vigorously asserts that he did not disregard those medical needs.
It is undisputed that upon arrival at FMC Rochester, Velarde was assessed for presence of HCV, and as a potential candidate for Interferon/Ribavirin treatment. It is also undisputed that Velarde was in fact treated, but, pursuant to the BOP guidelines in effect at the time of his treatment, he was categorized as a treatment failure and treatment was stopped. Velarde does not allege that Dr. Edwardy deviated from the relevant BOP guidelines, nor is there any evidence in the record to suggest any such deviation. The gravamen of Velarde's allegations is that the BOP guidelines were not in accord with accepted medical standards for the treatment of HCV, and that Dr. Edwardy should have disregarded them with respect to the particular circumstances of Velarde's illness.
The allegations and evidence in this case illustrate a disagreement between Velarde and Dr. Edwardy as to how his HCV should be treated. There was specific disagreement as to whether medication treatment should have been stopped and whether restarting such treatment was appropriate, let alone authorized under the BOP guidelines. Plaintiff has alleged a medical malpractice claim at best, but not a federal constitutional claim cognizable under Bivens. See Owens v. Hutchinson, 79 Fed.Appx. 159, 161 (6th Cir. 2003). No rational finder of fact, based on the record presented, could conclude that Dr. Edwardy exhibited deliberate indifference to Velarde's serious medical needs. Thus, there is no genuine issue of material fact to warrant a trial and Dr. Edwardy is entitled to judgment as a matter of law.
CONCLUSION
Accordingly, based on the files, records, and proceedings herein, IT IS HEREBY ORDERED that Defendants' Motion to Dismiss, or, in the alternative, for Summary Judgment (Docket No. 15) is GRANTED and this matter is dismissed with prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.