Keenan v. Jones

• Decision Date: 04 February 2022
• Docket Number: 1:19cv1399(TSE/TCB)
• Parties: George W. Keenan, Plaintiff, v. Julie L. Jones, et al, Defendants.
• Court: United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)

George W. Keenan, Plaintiff, v. Julie L. Jones, et al, Defendants.

No. 1:19cv1399(TSE/TCB)

United States District Court, E.D. Virginia, Alexandria Division

February 4, 2022

MEMORANDUM OPINION

T. S Ellis, III, United Stales District Judge

Plaintiff George W. Keenan ("Keenan" or ''Plaintiff'), a Florida inmate housed within the Virginia Department of Corrections (VDOC) pursuant to an Interstate Corrections Compact, proceeding pro se, filed a civil action under 42 U.S.C. § 1983 in the United States District Court for the Northern District of Florida on February 8, 2019. Keenan v. Julie L. Jones, et al.. No 4:19cv81. The district court screened the complaint and directed that an amended complaint be filed. An amended complaint was filed on August 23, 2019. [Dkt. No. 19]. The civil action was transferred to this Court on November 1 2019. [Dkt. No. 25]. On March 24, 2020. the Court reviewed the amended complaint and dismissed defendants Armor Correctional Health Services and Corizon Correctional Care because plaintiff had not stated a claim against either defendant. and then directed that the remaining defendants be served. [Dkt. No. 27]. Defendants Harold W. Clarke, A. David Robinson, Dr. Amonette, and Beth Cabell filed a motion to dismiss on June 26, 2020, with the notice required by Local Civil Rule 7(K) and Roseboro v. Garrison. 528 F.2d 309 (4th Cir. 1975). [Dkt. Nos. 40-42]. Defendants Crystal Allen and Dr. Campbell filed a separate motion to dismiss on June 26 2020, with the required notice required by Local Civil Rule 7(K) and Roseboro v. Garrison. [Dkt. Nos. 43-44]. Keenan filed a response opposing the defendants" motions [Dkt. No. 52]. On March 5, 2021, the Court granted the motions to dismiss by all of the defendants with the exception of Dr. Campbell. [Dkt. Nos. 55-56].

Defendant Jones was served on June 17, 2021 [Dkt. No. 61], and following an extension of time, Jones filed a motion to dismiss, with the required notice required by Local Civil Rule 7(K) and Roseboro v. Garrison, on August 9, 2021. [Dkt. Nos. 71-73]. Dr. Campbell filed an answer on that same day. [Dkt. No. 74]. Kennan sought and was granted an extension of time and filed a response to the motion to dismiss on November 16, 2021. [Dkt. No. 77]. The motion to dismiss argues that Keenan's claim is moot due to a change in circumstances, and Keenan has failed to state a claim against defendant Jones. For the reasons explained below, Defendant Jones" motion to dismiss must be granted.

I. Undisputed Facts^[1]

Defendant Jones' motion to dismiss asserts Keenan's amended complaint has been rendered moot by a change in circumstances due to Keenan's treatment for Hepatitis C, which Jones asserts resulted in Keenan being cured, and therefore Keenan's complaint is moot. Mootness raises the subject matter jurisdiction of the court based upon the facts alleged by the Plaintiff. See Adams v. Bain. 697 F.2d 1213, 1219 (4th Cir. 1982). In the case of a factual challenge, it is permissible for a district court to "consider evidence outside the pleadings without converting the proceeding to one for summary judgment." Richmond. Fredericksburg & Potomac Ry. Co. v. United States. 945 F.2d 765, 768 (4th Cir. 1991) (citing Adams. 697 F.2d at 1219). Defendant Jones attached recent medical documents and related documents to matters raised in the amended complaint. Keenan refers to several of the documents in support of his opposition to the motion to dismiss and has not questioned or objected to the documents. See Am. Chiropractic Ass'n v. Trigon Healthcare. Inc., 367 F.3d 212, 234 (4th Cir. 2004) ("when a defendant attaches a document to its motion to dismiss, 'a court may consider it in determining whether to dismiss the complaint [if] it was integral to and explicitly relied on in the complaint and [if] the plaintiffs do not challenge its authenticity.'"); Venture Assocs. Corp. v. Zenith Data Sys. Corp.. 987 F.2d 429, 431 (7th Cir. 1993) ("Documents that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiffs complaint and are central to her claim.").

The following are the undisputed facts based upon review of the motion to dismiss, the unobjected to records (to include those attached to Keenan's original complaint as well as the motion to dismiss), and Keenan's sworn complaint and amended complaint.

A. Background

1. The FDOC transferred Keenan to the VDOC on November 10, 2010. [Dkt. No. 19 at 8].^[2]

2. The result of tests performed on November 26, 2015 indicated Keenan had tested positive for Hepatitis-C (also referred to as "HCV" or "Hep-C"). [Dkt. No. 1 at 9. 17].

3. On December 9, 2015, Keenan requested "fibroscan treatment," which the FDOC denied on December 21, 2015. [Dkt. No. 1 at 28]. The request was made through the VDOC's Interstate Compact Coordinator and the response denying the request indicated it was denied "by the Office of Health Services per Corizon." [Dkt. Nos. 19 at 10; 70-1 at 13]. The denial referenced the data provided and the response indicated that Keenan's test results were below the "BOP guidelines," which the FDOC was following at that time, and that the data indicated Keenan was "safe for monitoring for now." [Dkt. No. 70-1 at 13]. Under the interstate agreement, the FDOC (the sending state) had to approve any non-emergency medical treatment. [Dkt. No. 1 at 35].^[3] After the request was denied, Keenan alleges defendant Dr. Campbell "took no further steps and stated he will monitor on site." [Dkt. No. 19 at 10].

4. On August 2, 2017, defendant Dr. Campbell sent a second request through channels to approve a fibroscan, which was "required as part of Hepatitis-C treatment work-up." [Dkt. No. 1 at 31]. Campbell noted the increase in Keenan's test scores on April 6, 2017, (the APR1 was 0.726, and the FIB-4 was 0.86) in his August 2, 2017 request for the FDOC to approve a fibroscan as part of a Hepatitis-C treatment work-up." [Dkt. No. 70-1 at 19].

5. The VDOC's 2015 Guidelines for Hepatitis-C patients used two scores based upon blood tests to determine how to treat Hepatitis-C patients: an "Aspartate Aminotransferase to Platelet ratio" ("APRI") score and a "Fibrosis-4 index" ("FIB-4") score.^[4]

• APRI score less than 0.5 and FIB-4 score less than 1.45: Offender is monitored but not referred to VCU for evaluation. Inmates in this category will receive periodic laboratory blood testing and chronic care appointments with a medical provider at the institution.

• APRI score of 0.5 to 1.5 and FIB-4 score is between 1.45 and 3.25: Indeterminate range; requires additional testing to determine whether the offender should be referred for evaluation.

• APRI score greater than 1.5 and FIB-4 score greater than 3.25: Offender is automatically referred to VCU for evaluation without any additional testing.

Id. at 10-11.

6. Keenan's medical records indicate that: on November 15, 2015, Keenan's APRI was 0.784 and his FIB-4 score was 0.86; on July 8, 2016, Keenan's APRI was 0.222 and his FIB-4 score was 0.69; on January 6, 2017, the APRI was 0.380, and the FIB-4 was 4.070; on April 6, 2017, the APRI was 0.726, and the FIB-4 was 0.86; and on October 6, 2018, the APRI was 0.466, and the FIB-4 score was 0.75. [Dkt. Nos. 1 at 19, 20. 21, 26; 70-1 at 13, 19, 21, 22], 7. The August 2, 2017 request was denied on October 17, 2017 by Dr. Cherry of Corizon Health Care:

Currently Florida is following recent BOP guidelines and fibroscan is not recommended. Typically we prioritize based on APRI scores starting at 2.0. This is more an indication of cirrhosis and would be prioritized to a higher level of treatment. An APRI of 0.74 is safe for monitoring for now.

[Dkt. Nos. 19 at 10; 70-1 at 13, 14], 8. Prior to the denial, Keenan had filed a grievance with the VDOC. The Level I response from the warden on September 18, 2017 noted the prior denial in 2015 by FDOC, and that a request was currently pending with FDOC. The response also stated that Keenan's condition did not qualify as an emergency. The Level II response determined the grievance was unfounded and agreed with the Level I response. [Dkt. No. 1 at 8-13].

9. Approximately two months after the FDOC denied the request for a fibroscan, Keenan submitted a VDOC Offender Request form asking for a fibroscan on January 10, 2018.

Nurse Allen responded and told Keenan that a doctor's order was necessary for a fibroscan and because he was detained for Florida under the interstate compact, Florida had to approve the fibroscan and "Florida had said no twice to test." [Dkt. No. I at 32].

10. Keenan submitted another VDOC Offender Request form seeking a fibroscan on May 10, 2018 and Nurse Allen provided a similar response noting the FDOC had denied the request from Dr. Campbell twice. [Id. at 33].

11. Keenan submitted a third VDOC Offender Request on October 31. 2018 asking for VDOC to check with FDOC. The response from Ms. Searlemon stated that they were checking with Florida regarding any changes for Hepatitis-C offenders. [Id. at 34].

12. On February 8. 2019, Keenan filed his complaint in the United States District Court for the Northern District of Florida.

13. On February 13, 2019, Donna L. Graham, RN. Utilization Contract Monitor, Office of Health Services, FDOC, sent an email to K.C. Collins, Private/Interstate Coordinator, Office of Health Services, FDCO, informing Collins that a fibroscan had been approved for Keenan. [Dkt. No. 70-1 at 11]. An ultrasound was done in February 2019, and the fibroscan was done in June 2019. [hi at 32].

14. Keenan's February 21, 2019 ultrasound showed his liver was "slightly enlarged ...with mild fatty infiltration noted ... but no masses or ductal dilation." [Id. at 34].

15. In March and April 2019, Collins...