HIV AIDS Resource Guide/HIV-AIDS Resource Guide.iso/STAT/CASES/WILSON2.ASC

Text File | 1993-01-14 | 24KB | 509 lines

/*  This case is reported in 735 F.Supp. 395 (M.D.Fla. 1990)
This prisoner litigation alleges that the defendant was not
provided with AZT, and contains a useful exposition of the law
for such prisoner complaints. */

Eddie Lee WILSON a/k/a Carl Sanderson, Petitioner,

v.

Dr. George FRANCESCHI, Mr. Deloye B. Henry, Defendants.

United States District Court, M.D. Florida, Tampa Division.

Feb. 5, 1990.



ORDER

KOVACHEVICH, District Judge.

THIS CAUSE is before this court upon receipt of the report and
recommendation of Magistrate Elizabeth A. Jenkins recommending
that Defendants' motion for summary judgment in the above styled
petition be GRANTED with respect to the claim for injunctive
relief sought and DENIED with respect to the claim for
compensatory damages. All parties have previously been furnished
copies of the report and recommendation and have had an
opportunity to file objections pursuant to 28 U.S.C.  636(b)(1).

Defendants raise two arguments in their objection to the
magistrate's report and recommendation.  First, Defendants claim
that since Plaintiff was not entitled to receive AZT prior to
August 3, 1989, the delay in transfer was irrelevant to
Plaintiff's eighth amendment claim.

Second, since plaintiff's allegations of nontreatment of skin
rashes and sores were not contained in Plaintiff's complaint,
Defendants had no opportunity to contradict those allegations.
Therefore, Defendants request to be advised whether the court
will sua sponte amend the complaint and, if so, that Defendants
be provided thirty days to file an amended Motion for Summary
Judgment.



STANDARD  FOR  SUMMARY  JUDGMENT WHEN A DEFENDANT ASSERTS A
QUALIFIED IMMUNITY DEFENSE

A state official performing a discretionary function and
asserting a qualified immunity defense is shielded from liability
for damages unless his conduct violates "clearly established
statutory or constitutional rights of which a reasonable person
would have known."  Harlow v. Fitzgerald, 457 U.S. 800, 818, 102
S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982).  Whether an official
asserting qualified immunity is immune from suit is determined by
the "'objective reasonableness' of his action assessed in light
of the legal rules that were 'clearly established' at the time it
was taken."  Anderson v. Creighton, 483 U.S. 635, 107 S.Ct. 3034,
3038, 97 L.Ed.2d 523 (1987) (quoting Harlow, 457 U.S. at 818, 102
S.Ct. at 2738).  In Anderson, the United States Supreme Court
further explained:

The contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing
violates that right.  This is not to say that an official action
is protected by qualified immunity unless the very action in
question has previously been held unlawful, but it is to say that
in the light of preexisting law the unlawfulness must be
apparent.

Id. 107 S.Ct. at 3039 (citations omitted). Further, "Once a
defendant advances a defense of qualified immunity, he is
entitled to summary judgment unless 'the legal norms allegedly
violated by the defendant were clearly established at the time of
the challenged actions ...'" Edwards v. Gilbert, 867 F.2d 1271,
1273 (11th Cir.1989) (quoting Mitchell v. Forsyth, 472 U.S. 511,
528,105 S.Ct. 2806, 2816, 86 L.Ed.2d 411 (1985)). Therefore, on
motion for summary judgment, a court must determine whether a
given action is objectively legally reasonable "in light of
clearly established law and the  information  the  . . .
[official} possessed."  Anderson, 107 S.Ct. at 3040.



CONTOURS OF THE RIGHT

[1]  In the medical context, a violation of the eighth
amendment's prohibition of cruel and unusual punishment is
established by showing an official's conduct consists of 'acts or
omissions sufficiently harmful to evidence deliberate
indifference to serious medical needs."  Estelle v. Gamble, 429
U.S. 97,106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251(1976).
Intentional denial or intentional delay of access to medical care
manifests deliberate indifference as well as intentional
interference with prescribed treatment. Id. at 104, 97 S.Ct. at
291.  The Eleventh Circuit defines deliberate indifference as
that conduct which is "so grossly incompetent, inadequate, or
excessive as to shock the conscience or to be intolerable to
fundamental fairness," or "so inappropriate as to evidence
intentional maltreatment or a refusal to provide essential care."
Rogers v. Evans, 792 F.2d 1052,1058 (11th Cir.1986); Edwards v.
Gilbert, 867 F.2d 1271(11th Cir.1989).



UNDISPUTED FACTS

From January, 1989, to August 3, 1989, the medical community was
divided concerning the efficacy of treatment of early ARC
patients with AZT.  At that time, both the CDC and the
manufacturer's guidelines recommended AZT only for patients with
AIDS or advanced ARC.  However, some physicians and researchers
had reported longer life spans for patients who were treated with
AZT earlier in the course of the disease.

In line with the recommendation of the CDC and the manufacturer,
the Florida Department of Corrections administered AZT only to
prisoners with AIDS or advanced ARC.  AZT was dispensed at two
correctional facilities, one for males and one for females. To
qualify for transfer to a facility for AZT treatment, a prisoner
had to be acutely ill with advanced ARC or be diagnosed as having
AIDS. From the time plaintiff requested AZT to August 3, 1989,
plaintiff's diagnosis was not advanced ARC or AIDS. Nor was
plaintiff acutely ill during that time.  Therefore, according to
then prevailing prison guidelines, plaintiff did not qualify for
a transfer or treatment with AZT.

Despite the fact that the plaintiff was not qualified to receive
AZT under then prevailing prison guidelines and therefore could
not receive a medical transfer for treatment, the record shows
Dr. Franceschi made some effort to obtain AZT for the plaintiff.
Though Dr. Franceschi was unsuccessful, plaintiff received AZT
once the CDC and manufacturer's recommendation was changed in
August, 1989.

The record further shows that though Mr. Henry was the
classifications officer, he was not responsible for medical trans
fers.



DISCUSSION

In this case, Plaintiff asserts that the delay in receiving the
drug AZT for treatment of his early ARC symptoms, thereby
possibly shortening his life expectancy, was a violation of the
eighth amendment's prohibition of cruel and unusual punishment.
Defendants are immune from suit unless the law was clearly
established in January, 1989, that a delay in fulfilling a
prisoner's request for treatment with AZT violated a prisoner's
eighth amendment rights because the delay constituted grossly
incompetent or inadequate medical care that shocked the
conscience, was intolerable to fundamental fairness, or was so
inappropriate as to constitute intentional maltreatment or
refusal to provide essential care.  This determination should be
made in light of the circumstances and information extant at the
time.

[2]  Since the medical community itself was divided as to the
appropriate treatment to be afforded patients suffering from ear
ly ARC, the delay in plaintiff's AZT treatment was not an act or
omission that was grossly incompetent or shocks the conscience,
and does not constitute inadequate medical care. At that time the
efficacy of treating early ARC patients with AZT was not known;
delay in treatment cannot therefore be judged fundamentally
unfair. Finally, the uncertainty within the medical community
made it unlikely that Dr. Franceschi would have known that such a
delay clearly constituted a violation of plaintiff's eighth
amendment rights.

[3, 4]  Further, the record shows that plaintiff was seen by the
physician once a week.  Dr. Franceschi prescribed Atarax for the
plaintiff's itchiness.  Later, when the plaintiff was further
examined by Dr. Navarone, no excoriations, rash, or scratching
was observed. Itching does not constitute a "serious medical
need". The record shows that medication was prescribed. Although
the medication was perhaps ineffective, this does not establish
inadequate medical care that rises to the level of a violation of
the eighth amendment.

Therefore, the Court finds that Dr. Franceschi is immune from
suit.

[5]  The record shows that Mr. Henry was not responsible for
medical transfers. Therefore, even if Plaintiff were qualified
for a medical transfer, the delay was not caused by Mr. Henry's
conduct. - Therefore, The Court finds that Mr. Henry is immune
from suit.

Accordingly, it is now

ORDERED:

(1) The magistrate's report and recommendations be ADOPTED with
respect to the claim for injunctive relief and OVERRULED with
respect to the claim for compensatory damages, and

(2) the Defendants' motion for summary judgment be, and hereby
is, GRANTED) and the petition is DISMISSED.

DONE AND ORDERED.



APPENDIX



REPORT AND RECOMMENDATION

THIS CAUSE is before this Court pursuant to defendants' motion
for summary judgment (Dkt. 11) and plaintiff's motion to dismiss.
(Dkt. 14). [footnote 1]

Eddie Lee Wilson, plaintiff, filed this pro se action based on
Title 42, United States Code, section 1983.  Plaintiff's cause of
action arises from an alleged denial of medical care at Polk
Correctional Institution (Polk).  Plaintiff names as defendants
Dr. George Franceschi, chief health officer at Polk, and Deloye
B. Henry, chief classification specialist at Polk.

Under Fed.R.Civ.P. 56(c), summary judgment is proper "if the
pleadings, depositions, answers to interrogatories, and ad
missions 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."  In
Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986), the Court noted that the moving party bears
the initial responsibility of identifying which portions of the
documents on file it believes demonstrate the absence of a
genuine issue of material fact, but the moving party does not
have to support its motion with materials negating the opponent's
claim. Id. 477 U.S. at 323, 106 S.Ct. at 2552. The moving party
only must show an "absence of evidence to support the nonmoving
party's case."  Id. at :325, 106 S.Ct. at 2553.  The nonmoving
party must designate "specific facts showing that there is a
genuine issue for trial," but not necessarily produce evidence in
a form that would be admissible at trial. Id. ~t 324,106 S.Ct. at
2553.

The following are the relevant, material and undisputed facts of
record in the instant case.  Plaintiff Eddie Lee Wilson, was an
inmate at Polk Correctional Institution (Polk) when this
complaint was filed. Since at least 1985, plaintiff has been in
fected with the human immunodeficiency virus (HIV), which causes
acquired immune deficiency syndrome (AIDS). Plaintiff was
examined by defendant Franceschi, chief health officer at Polk,
in January 1987 or 1989. [footnote 2] Plaintiff has AIDS-related
complex (ARC) but not AIDS.  In January 1989, on defendant
Franceschi's  recommendation, plaintiff applied for treatment
with the medication zidovudine, [footnote 3] commonly called AZT.
On February 21, 1989, plaintiff received a reply from defendant
Franceschi stating that the request for treatment with AZT
required classification for treatment at the Reception and
Medical Center at Lake Butler. (Dkt. # 1). On April 4,1989,
plaintiff was notified that defendant Franceschi had sent a
memorandum to Classification regarding the request for treatment
and the transfer.  (Dkt. 4t 14).  Plaintiff was notified on May
24,1989 that defendant Franceschi had requested a consultation
for the plaintiff with the staff at the Reception and Medical
Center at Lake Butler, and plaintiff was told that he would be
transferred only if it was "medically approved."

On August 3, 1989, the United States Department of Health and
Human Services announced changes in the standard for treatment
with AZT, based on a study involving HIV-infected patients with
early ARC who had not yet been diagnosed with AIDS.  The standard
was revised on the basis of a study showing that AZT was
effective in slowing the progression of ARC in patients with
early symptomatic HIV infection.

Plaintiff's blood was tested August 7, 1989, and on August
22,1989, an appointment was scheduled for plaintiff to be eval
uated for AZT treatment. Dr. Joseph Par-is, chief health officer
at Union Correctional Institute (Union), began treating plaintiff
with AZT on August 29, 1989. [footnote 4]  (Dkt. # 11,
Defendants' Exhibit B). In an affidavit dated September 15, 1989,
Dr. Paris stated that the standard of care for early ARC patients
such as the plaintiff did not include AZT treatment until the
Centers for  Disease  Control  promulgated  new guidelines in
July and August 1989.  Dr. Paris also stated that because AZT was
administered shortly after the new standard of care was known, no
breach in medical care occurred. (Dkt. # 11, Defendants' Exhibit
B).  Plaintiff alleges that he has been denied necessary medical
treatment in the form of the drug AZT as well as a transfer to a
correctional facility equipped to treat inmates infected with the
HIV virus.  Plaintiff requests that the Court order the
"necessary and requested treatment," award compensatory damages
of $200 per day for each day he was denied treatment, and
expedite  the  requested treatment. Dkt. 1 and correspondence
filed June 8 and 13,1989).  Plaintiff has since received the
requested transfer and treatment (Dkt. 11).



II

[6]  Defendants  move  for  summary judgment pursuant to
Fed.R.Civ.P. 56 on the grounds that plaintiff's claims for in
junctive relief in the form of a transfer and the administration
of the drug AZT are moot because plaintiff has been transferred
to the facility requested and has been receiving the drug since
August 29, 1989. Defendants also claim that they were not
deliberately indifferent to plaintiff's medical needs and that
they are entitled to qualified immunity.

The Eleventh Circuit Court of Appeals has held that in the
absence of class certification, an inmate's claim for equitable
relief fails to present a case or controversy under Article III
of the United States Constitution if he is subsequently
transferred as requested. Dudley v. Stewart, 724 F.2d 1493,1494
(11th Cir.1984). Although Dudley concerned a transfer from a
county jail to a state prison rather than a transfer within the
prison system, the claim is clearly mooted if it is unaccompanied
by a "continuing, present injury or real and immediate threat of
repeated injury." Id. at 1494, citing O'Shea v. Littleton, 414
U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). The court in
Dudley also held that the granting of a requested transfer does
not moot an inmate's claim for damages.  724 F.2d at 1494.

In view of the granting of the transfer and treatment requested
by the plaintiff and the absence of any showing that repeated
injury is threatened immediately, the motion for summary judgment
on the claims for injunctive relief should be granted.



III

For a complaint of improper medical treatment to state a
cognizable section 1983 claim, the prisoner must allege "acts or
omissions sufficiently harmful to evidence deliberate
indifference to serious medical needs."  Estelle v. Gamble, 429
U.S. 97,106, 97 S.Ct. 285, 292, 50 L.Ed.2d 251 (1976).  Although
defendants agree that AIDS-related complex is a "serious medical
teed," they note that prior to August 3, 1989, plaintiff did not
meet the criteria for treatment with AZT under either the drug
manufacturer's guidelines or those promulgated by the federal
Centers for Disease Control.

After the United States Department of Health and Human Services
revised the criteria for treatment with AZT, plaintiff was
scheduled for evaluation August 22. 1989, and began treatment
August 29, 1989.  Because the use and efficiency of drugs to
treat AIDS and AIDS-related complex is still at an early stage,
there are few cases addressing whether a denial of medication
such as AZT constitutes "deliberate indifference."   There  are
no  published opinions on the issue from the Eleventh Circuit.

In Glick v. Henderson, 855 F.2d 536 (8th Cir.1988), the court
considered the case of inmates who sought protection from prison
ers with AIDS and noted that "[i]t is the rare case in which a
court should venture forth to establish medical procedures and
guidelines in an area where the medical profession has not yet
been able to ascertain what they should be." Id. at 541. The
plaintiffs in Glick filed a section 1983 civil rights complaint
alleging that the state failed to protect them from contracting
the virus from infected prisoners.  The complaint was dismissed
with prejudice because it failed to provide "the slightest
indication of what the officials are doing or not doing that is
not in accord with proper practice as established by medical
guidelines."  Id. at 539.

The Eleventh Circuit found facts that could have established
"deliberate indifference" in a similar case involving medical
treatment denied to an inmate who had ailments caused by exposure
to a herbicide. Washington v. Dugger, 860 F.2d 1018 (11th
Cir.1988), en banc reh'g denied, 866 F.2d 1420 (11th Cir.1988).
In Washington. the defendant prison officials agreed to provide a
treatment to reduce the plaintiff's pain and then failed to
maintain an adequate supply of the medication.  Id. at 1021.

In the instant case, it appears that defendant Franceschi
initiated procedures for obtaining AZT treatment for the
plaintiff in January 1989.[footnote 5]

Because plaintiff has been transferred and is receiving AZT, the
issue becomes whether failure to treat him with AZT prior to
August 1989 could establish deliberate indifference supporting
his damages claim. The Court in Estelle v. Gamble held that
intentional interference with "treatment once prescribed"
constitutes an Eighth Amendment violation. Estelle, 429 U.S. at
104-05, 97 S.Ct. at 291.  In addition, plaintiff alleged that Dr.
Franceschi failed to treat rashes and sores despite the plain
tiff's constant complaints.  (Dkt. 4t 7) Although Dr. Paris found
no rashes or excoriations during the August 29,1989 examination,
failure to treat such a condition several months earlier could
state a claim upon which relief may be granted.

With his Motion to Dismiss Defendants' Request for Summary
Judgment, plaintiff enclosed correspondence showing that as early
as March 30, 1989, defendant Franceschi told plaintiff his
request had been processed and he would be receiving information
prior to starting the AZT treatment. That correspondence included
a hand-written addendum from Franceschi that appears to say that
he has information that 'will have influence [on] the above state
ment" and that he would explain it to the plaintiff. (Dkt. # 14,
Correspondence dated March 30, 1989.)

As for classification specialist defendant Henry, plaintiff must
establish his participation in any deliberate indifference to
plaintiff's medical needs in violation of the Eighth Amendment.
See Washington t'. Dugger, supra, at 1021. There is no expla
nation as to why plaintiff's request for transfer made in January
was not granted until August.  The Eleventh Circuit has
recognized that delaying necessary medical treatment for non-
medical reasons constitutes a case of deliberate indifference,
and it cited a case from the Second Circuit in which a delay of
five hours was held to give rise to a cause of action. Ancata v.
Prison Health Services, Inc., 769 F.2d 700, 704 (11th Cir.1985),
citing Archer v. Dutcher, 733 F.2d 14, 17 (2d Cir.1984).

Although in correspondence dated May 22, 1989, accompanying
plaintiff's "Motion to Dismiss Defendants' Request for Summary
Judgment" (Dkt. 14), plaintiff is told that Mr. Henry is not
handling plaintiff's transfer, an explanation for the length of
time it took to effect the transfer cannot be determined from the
submissions of the parties.  The length of delay alone could
persuade a finder of fact to find "deliberate indifference" on
the part of a prison official with the authority to effect a
transfer or to administer treatment.

Plaintiff has shown there is "a genuine issue as to a material
fact," specifically with respect to the delay in his receiving
treatment, and defendants have failed to show an absence of
evidence to support the plaintiff's case.  Therefore, the motion
by defendants Franceschi and Henry for summary judgment on the
claim for damages should be denied.



Conclusion

Defendants' motion for summary judgment on the injunctive claims
should be granted because they are moot and plaintiff has shown
no immediate threat of repeated injury.  Defendants' motion for
summary judgment on the damages claim should be denied because
defendants failed to show an absence of evidence to support the
nonmoving party's case.

It is respectfully RECOMMENDED that:

(1) The defendants' motion for summary judgment be GRANTED with
respect to the injunctive relief sought, and

(2) The defendants' motion be DENIED with respect to the claim
for compensatory damages.

Respectfully submitted,

/S/ Elizabeth A. Jenkins

Elizabeth A. Jenkins

United States Magistrate

Dated: December 22, 1989.



NOTICE TO PARTIES

Failure to file written objections to the proposed findings and
recommendations contained in this report within ten (10) days
from the date of its service shall bar an aggrieved party from
attacking the factual findings on appeal.  28 U.S.C.  636(b)(1).



FOOTNOTES:

1.   This matter has been referred to the undersigned by the
district court for consideration and a Report and Recommendation.
See Local Rules 6.01(b) and 6.0l(c)(18). M.D.Fla.

2.   Although plaintiff,s complaint States the date of the
examination as January 1987, this appears to be a typographical
error as all other references in the complaint are to dates in
1989. However, even if the January 1987 date is correct, that
would not alter the conclusions in this report and recommendation
because the gravamen of plaintiffs section 1983 complaint is the
failure to prescribe AZT for his condition and as discussed,  in
Ira, AZT was not normally prescribed for conditions such as
plaintiffs prior to August 1989, when guidelines for its use were
revised.

3.   According to defendants, AZT is also manufactured under the
brand name Retrovir.

4.   Although plaintiffs exact date of transfer from Polk to
Union is unclear from the materials submitted. it is apparent
that the transfer was no later than August 29, 1989, the date the
AZT treatment commenced.

5.   In response to a June 5, 1989 order, the defendants
indicated that Dr. Franceschi sought AZT treatment for the
plaintiff in January. When he was told AZT was not available at
Polk, he Initiated the procedure to transfer plaintiff to the
Reception and Medical Center at Lake Butler and subsequently made
several telephone calls inquiring about the status of the
transfer. It is unclear from the submissions by the defendants,
however. exactly what steps were taken to obtain AZT for the
plaintiff and defendants' Motion for Summary Judgment did not
include affidavits from either Dr. Franceschi or Henry.