Leavitt v. Corr. Med. Serv. Inc.

• Decision Date: 29 June 2011
• Docket Number: No. 10–1432.,10–1432.
• Parties: Raymond D. LEAVITT, Plaintiff, Appellant,v.CORRECTIONAL MEDICAL SERVICES, INC.; Todd Tritch, individually and in his official capacity as Medical Doctor; Edie Woodward, individually and in her official capacity as Physician Assistant; Teresa Kesteloot, individually and in her official capacity as Health Services Administrator of Maine State Prison; Charlene Watkins, individually and in her official capacity as Family Practitioner Nurse; Alfred Cichon, Defendants, Appellees,York County Jail; Maine State Prison; Martin A. Magnusson, individually and in his official capacity as Commissioner of the Maine Department of Corrections; Jeffrey Merrill, individually and in his official capacity as Warden of Maine State Prison; Robert Costigan, individually and in his official capacity as Prison Administrative Coordinator of Maine State Prison; Jonna Dinkel, individually and in her official capacity as RN at Maine State Prison; Matthew Turner, individually and in his official capacity as Physician Assistant, Defendants.
• Court: U.S. Court of Appeals — First Circuit

645 F.3d 484

Raymond D. LEAVITT, Plaintiff, Appellant,

v.CORRECTIONAL MEDICAL SERVICES, INC.; Todd Tritch, individually and in his official capacity as Medical Doctor; Edie Woodward, individually and in her official capacity as Physician Assistant; Teresa Kesteloot, individually and in her official capacity as Health Services Administrator of Maine State Prison; Charlene Watkins, individually and in her official capacity as Family Practitioner Nurse; Alfred Cichon, Defendants, Appellees,York County Jail; Maine State Prison; Martin A. Magnusson, individually and in his official capacity as Commissioner of the Maine Department of Corrections; Jeffrey Merrill, individually and in his official capacity as Warden of Maine State Prison; Robert Costigan, individually and in his official capacity as Prison Administrative Coordinator of Maine State Prison; Jonna Dinkel, individually and in her official capacity as RN at Maine State Prison; Matthew Turner, individually and in his official capacity as Physician Assistant, Defendants.

No. 10–1432.

United States Court of Appeals, First Circuit.

Heard Dec. 10, 2010.Decided June 29, 2011.

James A. Billings, with whom Lipman, Katz & McKee was on brief, for appellant.Elizabeth K. Peck, with whom Paul C. Catsos and Thompson & Bowie, LLP, were on brief, for appellee Alfred Cichon.Christopher C. Taintor, with whom Jennifer A.W. Rush and Norman, Hanson & DeTroy, LLC, were on brief, for appellees Correctional Medical Services, Inc., Todd Tritch, Edie Woodward, Teresa Kesteloot, and Charlene Watkins.Before BOUDIN, LIPEZ, and HOWARD, Circuit Judges.LIPEZ, Circuit Judge.

Plaintiff-appellant Raymond D. Leavitt, an inmate of the Maine corrections system, seeks a civil rights remedy for the alleged denial of adequate medical care for human immunodeficiency virus (HIV) by healthcare professionals at the York County Jail (YCJ) and the Maine State Prison (MSP). Claiming that correctional medical officials acted with deliberate indifference to his serious medical needs in violation of the Eighth Amendment, Leavitt brought suit under 42 U.S.C. § 1983 against a number of defendants, including Alfred Cichon, a physician assistant at YCJ; Correctional Medical Services, Inc. (CMS), the private contractor that provided medical care at MSP; and CMS employees Todd Tritch, Edie Woodward, Charlene Watkins, and Teresa Kesteloot.¹ In separate orders, the district court granted summary judgment for Cichon and the CMS defendants, and Leavitt appeals.

We agree with the district court that Leavitt's evidence could not, as a matter of law, establish that the CMS defendants' actions violated the Eighth Amendment. However, we conclude that Leavitt has established a material dispute as to whether Alfred Cichon acted with deliberate indifference to his serious medical needs. We thus affirm the entry of summary judgment in favor of the CMS defendants, reverse the entry of summary judgment in favor of Cichon, and remand for further proceedings.

I.

Appellant is, and was at all times material to this case, HIV-positive. He was incarcerated at YCJ from September 6, 2006, through February 17, 2007, at which point he was transferred to MSP. He claims that the defendants inappropriately denied him treatment for HIV for the entirety of his 167–day stay at YCJ and for nearly seventeen months of his incarceration at MSP. This delay in the reinitiation of antiretroviral therapy for HIV, Leavitt alleges, “constituted a continuum of harm,” which resulted in short- and long-term negative consequences for his health. We chronicle his treatment history in some detail as presented in the summary judgment record, presenting the facts in the light most favorable to Leavitt and drawing all reasonable inferences in his favor. Burrell v. Hampshire Cnty., 307 F.3d 1, 3 (1st Cir.2002).

A. Leavitt's Treatment at YCJ1. Initial Clinic Visit

At the time of his incarceration at YCJ, Leavitt suffered from HIV, hepatitis C, bipolar disorder, anxiety, and hypothyroidism. On October 5, 2006, about one month into his detention at YCJ, Leavitt had his first—and only—clinical interaction with defendant Alfred Cichon.² Cichon was the physician assistant who worked at the jail most frequently, about sixteen hours per week, and he also was president of Allied Resources for Correctional Health, Inc. (ARCH), the corporation that provided contract healthcare services to inmates at YCJ.

At the October 5 clinic visit, Cichon performed a routine physical examination of Leavitt, concluding that the latter's health in general was “normal.” Appellant told Cichon that he was HIV-positive; said that he was experiencing night sweats, chills, fever, nausea, and vomiting; and complained that he had not received his antiretroviral medications. He also lamented that “it wasn't right he was being kept off his HIV meds since they had been keeping him alive for the past 10 years and keeping his symptoms and low blood count from claiming him as a victim of AIDS.”

At this point, Cichon purportedly made a statement that constitutes the key fact in dispute in Leavitt's case against him. He said, “We don't give away [HIV] medications here at this jail[,] because the jail is so small and we are not equipped financially to hold the burden of providing expensive medication”; “[you will] have to wait until you [get] to the Maine State Prison where they are able to pay for these medications.” Additionally, Cichon allegedly advised Leavitt, “You don't need to stay on the [HIV] medications to be healthy, and just as soon as you get to the [MSP] they'll fix you right up.”

At the time of their meeting, Cichon knew that Leavitt had been without his HIV medications for at least one month, as appellant had been incarcerated since September. Patients who take a break from antiretroviral therapy may become resistant to one or more of the drugs used as part of the regimen. Cichon thus informed Leavitt that he could not reinstate his HIV medications or refer him to an infectious disease specialist without first acquiring his medical history, information about his medications and compliance with taking those medications, and blood test results for his current CD4 cell count and viral load.³ There is no dispute that this was the proper response to a request for restarting antiretroviral treatment.

2. After Leavitt's Clinic Visit

Cichon directed the ARCH nursing staff to obtain Leavitt's medical records from the various facilities where he had been treated for HIV. Cichon also ordered lab work to determine Leavitt's complete blood count differential, CD4 cell count, and viral load. These labs, like all tests and medications prescribed for inmates, were paid for by YCJ.

In short order, Leavitt's medical records from the Androscoggin County Jail (ACJ), Cumberland County Jail, and Positive Health Care were faxed to YCJ, where they were reviewed and initialed by Cichon. The records indicated that Leavitt had a long history of HIV and that he previously had been prescribed the antiretroviral drugs Truvada and Kaletra. The records also established that Leavitt's labs on April 6, 2006 had shown an undetectable viral load of less than 75 and an abnormally low CD4 cell count of 355. Moreover, they showed that at the time of Leavitt's incarceration at ACJ on July 11, 2006, his medical condition was normal and he did not complain of fatigue, night sweats, or any objective symptoms of HIV. Finally, the records disclosed that Leavitt had a history of alcohol abuse that may have impeded his compliance with antiretroviral therapy, and that Leavitt had been at various points non-compliant with taking his HIV medications. Although Leavitt concedes the veracity of these records, he insists he had been taking his HIV medications “on a regular basis” before he entered YCJ.

The lab reports from the blood work Cichon ordered were addressed to him and routed to the medical office at YCJ, where in the ordinary course of business they would have been placed on a clipboard and reviewed by Cichon each time he visited the jail. The CD4 cell count report indicated that Leavitt had a lower than normal count of 415 and noted that the “[m]ild decrease in CD4 level and increase in CD8 subset” was “indicative of immunodeficiency state and/or recent viral infection.” Cichon claims no recollection of seeing these results, but acknowledges that his initial appears on the first page of the lab report, which would signal that he had reviewed them.⁴

The viral load report indicated a higher than normal viral load of 143,000. Cichon also claims not to have seen this report; the copy of it subpoenaed from YCJ and entered into the record does not bear his initial. He asserts that this is the first time in seventeen years that an omission of this type occurred, that he would have considered a viral load of 143,000 to be higher “than [he] would like to see it,” and that he would have “move[d] precipitously” to refer Leavitt to an infectious disease specialist if he had reviewed the report. Cichon understood that HIV is a serious and potentially life-threatening medical condition.

3. The Remainder of Leavitt's Stay at YCJ

It is undisputed that during the four months between the October 5 clinic appointment and Leavitt's transfer to MSP, Cichon never saw Leavitt again, did not refer Leavitt to a specialist, or take any other steps to follow up on Leavitt's HIV condition. Leavitt did not see an infectious disease specialist or restart antiretroviral treatment for his HIV while at YCJ.

Although appellant was aware that the method for requesting medical treatment or medications at YCJ was to file an Inmate Medical Request Form (IMRF), he did not submit one related to treatment for HIV or HIV-related symptoms.⁵ Leavitt did, however, write one or more letters to YCJ's medical department, including one to Cichon, requesting the resumption of his HIV medications. He submitted these letters to a YCJ officer at some point...