Cunningham v. Sessions, Case No 9:16-cv-1292-RMG
| Decision Date | 31 May 2017 |
| Docket Number | Case No 9:16-cv-1292-RMG |
| Court | U.S. District Court — District of South Carolina |
| Parties | Eugene Jerome Cunningham, Plaintiff, v. Jefferson B. Sessions III; Thomas R. Kane; Dr. Deborah G. Schult; Dr. Ivan Negron; Lieutenant Canada; Dr. J. Onuoha; Harris Hansen; Travis Bragg; and Helen J. Marberry, Defendants. |
Plaintiff, an inmate with the Federal Bureau of Prisons ("BOP") assigned to the Federal Correctional Facility in Bennettsville, South Carolina, brought this action pro se seeking monetary, declaratory and injunctive relief. He alleges that Defendants have violated his right to be free from cruel and unusual punishment under the Eighth Amendment of the United States Constitution. Specifically, Plaintiff alleges that he has been diagnosed since 2007 with chronic Hepatitis C, a serious medical condition, and Defendants have refused to provide him curative treatment through the administration of a new generation of direct acting antiviral ("DAA") drugs such as Harvoni. (Dkt. No. 1). Defendants have moved to dismiss Plaintiff's action on a variety of substantive and procedural grounds, arguing, inter alia, that Plaintiff's complaint fails to state a claim under the Eighth Amendment. (Dkt. No. 31). As set forth below, the Court grants Defendants' motion to dismiss all claims for monetary damages, grants Defendants Negron's and Canada's motion to dismiss, and denies the motion to dismiss the claims for declaratory and injunctive relief against all other Defendants.
Plaintiff alleges that he was diagnosed with chronic Hepatitis C in 2007 and subsequently became aware that a new generation of DAA drugs had been approved by the United States Food and Drug Administration ("FDA") which provided for the first time a cure for Hepatitis C. (Dkt. No. 1 at 5). Plaintiff alleges that he requested that Defendants provide him treatment with this new curative drug and BOP officials have refused to grant his request. (Id.). He further alleges that Defendants have informed him that until his condition develops into advanced cirrhosis of the liver or liver cancer he will not be administered the curative drug. (Id. at 6). Plaintiff alleges that he is suffering harm as a result of Defendants' deliberate and knowing decision to deny him curative treatment for his serious and chronic medical condition until a time in which there will be no effective cure. (Id.). Plaintiff further alleges that his chronic Hepatitis C infection causes him to suffer "headaches, fatigue, abdominal, joint pain, mental and emotional tur[moil], depression, anxiety, and stress." (Dkt. No. 21 at 2).
The Centers for Disease Control and Prevention ("CDC") has recognized that chronic Hepatitis C is a serious medical condition which can result in long term health problems, including cirrhosis of the liver, liver cancer, and death1. There was no known cure for chronic Hepatitis C until very recently, and the therapies previously available produced inconsistent results and severe side effects. Since 2011, the FDA has approved new generation of DAA drugs which have proven to be highly effective in the treatment and cure of Hepatitis C with minimal side effects.
In response to the proven effectiveness of DAA drugs in curing Hepatitis C, two prominent professional associations of physicians specializing in the treatment of liver disease,the American Association for the Study of Liver Disease ("AASLD") and the Infectious Diseases Society of America ("IDSA"), issued new joint recommendations for the treatment of chronic Hepatitis C in June 2016. The joint recommendation recognized that the new DAA drugs provided a "virologic cure" for chronic Hepatitis C and recommended that DAA drugs be administered to "all patients with chronic [Hepatitis C] infection" except those with short life expectancies in which transplantation or other direct treatment was not available. It was also noted that delays in treatment of Hepatitis C with DAA drugs reduced the effectiveness of the drugs2. These joint recommendations of the ASSLD and IDSA were subsequently endorsed by the CDC as an "evidence based, expert-developed recommendations for hepatitis C management."3
Plaintiff initially brought this case as a Bivens4 action seeking monetary damages and money to pay for Harvoni. (Dkt. No. 1). He later filed supplemental pleadings setting forth in greater detail his injuries from the delay in the provision of DAA drugs and seeking declaratory and injunctive relief. (Dkt. Nos. 21, 28).
Plaintiff has named as party defendants three individuals who he alleges are directly responsible for failing to deliver him the requested medical care to him at FCI Bennettsville:
Plaintiff has named the following officials as party defendants in their administrative capacities because he alleges that the BOP has instituted a policy which withholds a cure for the treatment of his chronic Hepatitis C:
On a motion to dismiss under Rule 12(b)(6), a "complaint must be dismissed if it does not allege 'enough facts to state a claim to relief that is plausible on its face.'" Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "In reviewing a motion to dismiss an action pursuant to Rule 12(b)(6) . . . [a court] must determine whether it is plausible that the factual allegations in the complaint are 'enough to raise a right to relief above the speculative level.'" Andrew v. Clark, 561 F.3d 261, 266 (4th Cir.2009) (quoting Twombly, 550 U.S. at 555). "In considering a motion to dismiss, [the court] accept[s] the complainant's well-pleaded allegations as true and view[s] the complaint in the light most favorable to the non-moving party." Stansbury v. McDonald's Corp., 36 F. App'x 98, 98-99 (4th Cir. 2002) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.1993)).
The Court is also charged with liberally construing a complaint filed by a pro se litigant to allow for the development of a potentially meritorious case. Haines v. Kerner, 404 U.S. 519 (1972). Even so, the requirement of liberal construction does not mean that the Court can ignore a clear failure in the pleadings to allege facts which set forth a Federal claim, nor can the Court assume the existence of a genuine issue of material fact where none exists. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
The Eighth Amendment to the United States Constitution, which prohibits cruel and unusual punishment, extends to "the treatment a prisoner receives in prison and the conditions under which he is confined." Helling v. McKinney, 509 U.S. 25, 31 (1993). Under the Eighth Amendment, prison officials have a duty to "ensure that inmates receive adequate food, clothing, shelter, and medical care." Farmer v. Brennan, 511 U.S. 825, 832 (1994). "[D]eliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth Amendment." Estelle v. Gamble, 429 U.S. 97, 104 (1976) (internal quotation marks and citation omitted).
In Farmer, the Supreme Court articulated a two-part test that federal courts use to determine whether prison officials have subjected an inmate to unconstitutional conditions of confinement. The first part of the Farmer test is objective; it requires district courts to consider whether the deprivation Plaintiff alleges is "sufficiently serious." To be "sufficiently serious,"the alleged deprivation must pose "a serious or significant physical or emotional injury resulting from the challenged conditions," or "a substantial risk of such serious harm resulting from . . . exposure to the challenged conditions." De'Lonta v. Angelone, 330 F.3d 630, 634 (4th Cir. 2003) (internal quotation marks and citation omitted). A prisoner seeking to challenge deprivation with regard to a medical need must demonstrate an official's deliberate indifference to a serious medical need that has been "diagnosed by a physician as mandating treatment" or that is so obvious that a layperson would "recognize the necessity for a doctor's attention." Iko v. Shreve, 535 F.3d 225, 241 (4th Cir. 2008).
The second part of the Farmer test is subjective; it requires a plaintiff to show that the prison officials acted with a culpable state of mind, in this case, with deliberate indifference. Plaintiffs alleging deliberate indifference to a serious medical need must show that the official was "aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed], and. . . dr[ew] th[at] inference." Farmer at 837. A plaintiff must show the official's "actual subjective knowledge of both the inmate's serious medical condition and the excessive risk posed by [the official's] action or inaction." Jackson v. Lightsey, 775 F.3d 170, 178 (4th Cir. 2014) (citing Farmer at 837-39). A plaintiff can meet the subjective knowledge requirement by providing direct evidence of a prison official's actual knowledge or circumstantial evidence tending to establish such knowledge, including evidence "that a prison official knew of a substantial risk from the very fact that the risk was obvious." Makdessi v. Fields, ...
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