Opinion
Case No. A1-02-06
March 22, 2004
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
Summary:
An inmate filed suit against North Dakota Department of Corrections and Rehabilitation (NDDCR) und 1983, asserting claims for monetary damages and injunctive relief on grounds that he had been denied adequate medical care in violation of the Eighth Amendment. The Court granted NDDCR's motion for summary judgment, finding that the inmate's claim for monetary damages were subject to dismissal based on Eleventh Amendment immunity and, given that there were no material facts in dispute, that the inmate was not entitled to injunctive relief.
Before the Court is the Defendants' Motion for Summary Judgment submitted pursuant to Rule 56 of the Federal Rules of Civil Procedure. The motion was filed on December 23, 2003. On March 17, 2004, the Plaintiff filed a response to the motion. The Court has carefully reviewed all of the pleadings and exhibits. For the reasons set forth below, the Court GRANTS the motion.
I. BACKGROUND OF THE CASE
The plaintiff, Dale Burke ("Burke"), is an inmate sentenced to life imprisonment at the North Dakota State Penitentiary in Bismarck, North Dakota, a correctional facility under the jurisdiction of the North Dakota Department of Corrections and Rehabilitation ("DOCR"). Burke contends that DOCR and Kathleen Bachmeier ("Bachmeier"), the Director of Medical Services at the State Penitentiary, have deprived him of his constitutional right to receive adequate medical care in violation of the Eighth Amendment. Specifically, Burke contends he was provided with drugs without being monitored for side effects and that he was denied treatment for his hepatitis C condition. See Amended Complaint, pp. 6-7.
The DOCR has adopted a protocol that must be followed before an individual can be considered for hepatitis C treatment with Interferon.See Affidavit of Kathleen Bachmeier, Exhibit 1, ¶ 9. The protocol was developed by medical professionals after a review of recommendations for hepatitis C treatment by the Centers for Disease Control, current medical literature on the subject, and protocols used by other states. The protocol was finalized by Kenneth Martin, M.D. an infectious disease specialist at Q R Clinic, and approved for use at the DOCR correctional facilities by the former Medical Director, Judy Schwarz, M.D.
Beginning in late 1999, Burke was given low dosages of medications for his high cholesterol levels. These medications are contraindicated for individuals who have liver damage or a liver disease. Bachmeier Aff., ¶¶ 5-6. The dosages of cholesterol-lowering medication that Burke was given were the lowest therapeutic levels recommended. Id., ¶ 6. The manufacturer's recommendations were that when liver enzyme levels had doubled from use of the medication, then the patient should be discontinued from further use of that drug. Bachmeier Aff., ¶ 5. Burke was monitored for any liver damage, but the liver enzyme tests showed no significant elevations and never reached the stage of doubled levels. Id., ¶ 8.
Burke was diagnosed with hepatitis C in August 2000. Hepatitis C can be symptom free, as in Burke's case initially, or it can cause liver disease. Bachmeier Aff., ¶¶ 10, 13. In August 2000, Burke was considered under the hepatitis C protocol for treatment with Interferon, but he was not found eligible. Id., ¶ 14. One of the side effects of the treatment for hepatitis C is severe depression and a potential for suicide. Id., ¶ 11. When Burke was initially considered for treatment for hepatitis C, his mental condition was unstable. Id. ¶ 14.
The record reveals that Burke's medical condition was carefully monitored which included regular checks of his liver enzymes. Bachmeier Aff., ¶ 8. Prior to 2003, Burke's enzyme levels remained within average levels. In April 2003, Burke had a liver enzyme test that was marginally elevated. In June 2003, Dr. Cheryl Huber, a psychiatrist, found Burke to be sufficiently mentally stabilized to participate in hepatitis C treatment. Id. ¶ 17. In July 2003, he had a second test that was again elevated. Id. ¶ 16. In July, because of the second elevated liver enzyme test, Burke was again reviewed under the hepatitis C protocol and it was determined he met the pre-treatment criteria under the protocol for treatment. Id. ¶ 18. During the fall months, various evaluations and tests required under the protocol were completed, including a liver biopsy. Burke began treatment with Interferon on December 11, 2003. He has continued with treatment since December 2003 and remains compliant. Id. ¶¶ 19-21.
II. LEGAL ARGUMENT
A. THE CLAIMS AGAINST BACHMEIER AND THE DEPARTMENT OF CORRECTIONS AND REHABILITATION FOR MONETARY DAMAGES ARE BARRED BY THE ELEVENTH AMENDMENT.
The Eleventh Amendment to the United States Constitution provides:
The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
The Supreme Court stated in Edelman v. Jordan, 415 U.S. 651 (1974), that "the rule has evolved that a suit by private parties seeking to impose a liability which must be paid from public funds in the state treasury is barred by the Eleventh Amendment." Edelman, 415 U.S. 651, 663 (citations omitted). "[A] federal court's remedial power, consistent with the Eleventh Amendment, . . . may not include a retroactive award which requires the payment of funds from the state treasury." 415 U.S. at 677. The Supreme Court has consistently held that the Eleventh Amendment bars suits in federal court against a state, including a state agency, by its own citizens as well as citizens of another state. For this reason, the claims against DOCR should be dismissed as barred by the Eleventh Amendment.
The State of North Dakota, in abrogating sovereign immunity and permitting suits against the State in state courts, specifically did not waive Eleventh Amendment immunity. See N.D.C.C. § 32-12.2-10.
In addition, a suit against an employee acting in his official capacity is tantamount to a lawsuit against the state. Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). As such, the suit against Bachmeier in her official capacity is the same as the suit against the DOCR and the State of North Dakota and is barred for the same reason.
The Plaintiff acknowledged in his responsive pleading that such claims are barred. See Response to Defendant's Motion for Summary Judgment, p. 2.
For those reasons, Burke's claims for monetary damages against the DOCR and Bachmeier are subject to dismissal based on Eleventh Amendment immunity.
B. THE CLAIM FOR INJUNCTIVE RELIEF IS SUBJECT TO SUMMARY JUDGMENT BECAUSE THERE ARE NO MATERIAL FACTS IN DISPUTE.
Burke alleges that he is entitled to injunctive relief because the Defendants have violated his constitutional rights as a result of their failure to provide him with proper medical care and this failure is on-going.
Summary judgment is appropriate if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In Celotex Corp. v. Catrett, 477 U.S. 317 (1986), cert. denied 484 U.S. 1066 (1988), the Supreme Court clarified that summary judgment procedure should be considered "as an integral part of the Federal Rules as a whole, which are designed to `secure the just, speedy, and inexpensive determination of every action.'" 477 U.S. 317, 327.
The Eighth Circuit has recognized the usefulness of summary judgment procedure in avoiding useless and time-consuming trials. Vacca v. Viacom Broad. of Mo., Inc., 875 F.2d 1337, 1339 (8th Cir. 1989);see Olson v. Pennzoil Co., 943 F.2d 881, 883 (8th Cir. 1991). First, "[s]ummary judgment `should not be granted unless the moving party has established the right to a judgment with such clarity as to leave no room for controversy.'" 875 F.2d 1337, 1339. Second, the evidence is to be viewed in the light most favorable to the nonmoving party, and the nonmoving party enjoys `the benefit of all reasonable inferences to be drawn from the facts. Id. Finally, the mere existence of some alleged factual dispute will not defeat an otherwise properly supported motion for summary judgment if there is no genuine issue of material fact. Id.
The Eighth Circuit has also identified the burden in summary judgment: "When the moving party produces credible evidence that establishes there is no genuine issue of material facts, the opposing party must produce specific facts demonstrating a genuine issue for trial." Westchem Agric. Chems., Inc. v. Ford Motor Co., 990 F.2d 426, 429 (8th Cir. 1993) (citing Elbe v. Yankton Indep. Sch. Dist. No. 1, 714 F.2d 848, 850 (8th Cir. 1983)).
Even if Burke could successfully prove his constitutional right to adequate medical care has been violated, he is not entitled to injunctive relief. For injunctive relief to be available against a defendant, the plaintiff must show he continues to be subjected to the conditions of which he complains. Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). "The equitable remedy is unavailable absent a showing of irreparable injury, a requirement that cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged again . . ." Id. (quoting Citing of Los Angeles, v. Lyons, 461 U.S. 95, 111 (1983)); see Butler v. Dowd, 979 F.2d 661, 674 (8th Cir. 1992) (for injunctive relief, a plaintiff must show "some substantial likelihood that past conduct alleged to be illegal will recur"). "A showing that unconstitutional practices have taken place in the past is not enough. He must show that such practices are likely to affect him in the future." 979 F.2d 661, 674. It is clear if an inmate is no longer subject to the conditions of which he complains, his claim for injunctive relief is moot and should be dismissed. 780 F.2d 1334, 1337.
It is clear and undisputed that Burke is currently receiving Interferon treatment at the North Dakota State Penitentiary. He has had a liver biopsy to assess the condition of his liver. Burke is being continually monitored for liver damage. There is no reasonable likelihood that he will be removed from the Interferon treatment because of the damaging side effects. Once on Interferon, Burke must remain on it until the treatment is completed. The treatment program is 48 weeks. Burke began treatment in December 2003 and he has continued with the treatment regimen since that time. For this reason, inmate Burke's request for injunctive relief is moot. Burke has received and is currently receiving all of the relief he has requested.
The Court recognizes there are exceptions to the mootness doctrine. For example, an exception to the mootness doctrine exists in cases where there is a "reasonable expectation" that the same complaining party will be subject to the same action again. Scarpino v. Grossheim, 852 F. Supp. 798 (S.D. Iowa 1994). As previously noted, Burke is incarcerated at the North Dakota State Penitentiary. He has been involved in the hepatitis C treatment program at the penitentiary since December 2003. Neither Burke's affidavit, nor any other evidence in the record, supports the contention that Burke will be discontinued from the treatment program or denied treatment for his hepatitis C condition. As a result, there is no evidence to support an exception to the mootness doctrine.
III.CONCLUSION
For the reasons outlined above, the Court GRANTS the Defendant's Motion for Summary Judgment (Docket No. 57).