CHARLES J. KAHN, Jr., Magistrate Judge.
This matter is before the court on plaintiff's civil rights complaint (doc. 1)
The matter has been referred to the undersigned Magistrate Judge for Report and Recommendation pursuant to 28 U.S.C. § 636 and N.D. Fla. Loc. R. 72.2(C). Upon careful consideration of the parties' submissions and the relevant law, the undersigned recommends that plaintiff's motion to proceed in forma pauperis be denied because plaintiff is not under imminent danger of serious physical injury that could be redressed in this suit. This action, therefore, should be dismissed without prejudice.
Plaintiff is a prisoner of the Florida Department of Corrections ("FDOC") currently confined at Santa Rosa Correctional Institution Annex.
Plaintiff is subject to the "three strikes" provision of 28 U.S.C. § 1915.
28 U.S.C. § 1915(g). Because plaintiff has had three actions dismissed for failure to state a claim, he may not proceed in forma pauperis in the present action unless he is "under imminent danger of serious physical injury."
The complaint alleges plaintiff is under imminent danger of serious physical injury due to the FDOC's failure to provide plaintiff with adequate medical care for hepatitis C, gastrointestinal issues, high cholesterol, and high blood sugar. (Doc. 1, p. 8-12). Because allegations concerning a lack of medical treatment can meet § 1915's "imminent danger" exception, the court directed the FDOC to respond to plaintiff's allegations. (Docs. 12, 14, 16). Plaintiff filed a reply to the FDOC's response (doc. 15) and a "Motion Seeking Temporary Injunction." (Doc. 17, 21). The FDOC responded in opposition to the motion for injunctive relief (doc. 22) and plaintiff then filed a reply. (Doc. 25). To be absolutely certain of the status of plaintiff's conditions, and to assure this court's understanding of those conditons, on April 28, 2016, the undersigned ordered the FDOC to file an updated copy of plaintiff's medical records. (Doc. 28). After the FDOC filed the records (doc. 29), plaintiff filed a response which also included relevant medical evidence. (Doc. 33).
Plaintiff alleges he is in imminent danger of serious physical injury due to the FDOC's ongoing failure to provide care for his hepatitis C, gastrointestinal issues, high cholesterol, and high blood sugar. This report and recommendation will look at each of these health issues, and then at the Eighth Amendment standard for deliberate indifference.
Plaintiff entered the Florida penal system already diagnosed with hepatitis C
Following the liver biopsy, Dr. Shah ordered treatment for the hepatitis C: a weekly shot of Pegasys (peginterferon alfa-2a) for 48 weeks; three ribavirin pills twice a day for 48 weeks; and two doses of Incivek three times a day for 12 weeks. (Doc. 15-1, p. 32; doc. 1, p. 8). Treatment commenced in August 2013 (doc. 1, p. 8; doc. 15-1, p. 34) but plaintiff did not receive the Incivek. (Doc. 1, p. 8). The FDOC's Regional Medical Director denied a drug exception request ("DER") for Incivek on October 18, 2013:
(Doc. 15-1, p. 33).
In addition, plaintiff asserts medical staff at Union Correctional Institution and Santa Rosa Correctional Institution ("SRCI") failed to administer the Pegasys shots in a timely manner. (Doc. 1, p. 9-11). Medical personnel at SRCI discontinued the Pegasys and ribavirin regimen in June 2014 after tests showed plaintiff's viral load had increased, indicating the treatment was no longer working. (Doc. 16-1, p. 2; doc. 14-2, p. 34). Plaintiff claims the treatment was unsuccessful due to staff's failure to administer the medication according to Dr. Shah's and the drug manufacturer's instructions. (Doc. 1, p. 9-11; doc. 11, p. 2; doc. 15, p. 2). Nurse Nichols advised plaintiff that new drugs were in testing and treatment could be successful in the future. (Doc. 14-2, p. 34). Dr. Albert Maier, Senior Physician for the FDOC, has declared "Pegasys treatment is no longer the standard of care for Hepatitis C since other drugs have come on the market." (Doc. 16-1, p. 2).
On February 1, 2015, plaintiff filed a grievance appeal to the Secretary of the FDOC. (Doc. 15-1, p. 89). In the appeal, plaintiff complained about the administration and discontinuation of the Pegasys treatment. (Id.). He also mentioned that S. Schwartz, Medical Director of SRCI, claimed plaintiff didn't "qualify for the treatment of `Sovaldi.'" (Id.). In response to the appeal, Ebony Harvey advised plaintiff his "appeal is being approved to the extent that you are being placed on the waiting list for these medications and you will be advised when it is your turn." (Doc. 15-1, p. 88). In a September 21, 2015 grievance response, however, Harvey informed plaintiff "that your treatment is being deferred at this time until it becomes clinically indicated." (Id., p. 90). "Since the discontinuation of the [Pegasys] treatment in 2014, Melendez has continued to be closely monitored with regular labs and visits to the Chronic Illness Clinic." (Doc. 16-1, p. 2).
The FDOC "follows the Federal Bureau of Prisons' policies on Hepatitis C treatment, which prioritizes treatment based on the advancement of cirrhosis
The BOP's guidelines provide that an APRI score greater than or equal to 2.0 may be used to predict the presence of cirrhosis. (Id., p. 9). An APRI score of 1.5 or greater may be used to predict the presence of significant fibrosis. (Id.). According to the declaration of Dr. Maier, lab results from July and August 2015 show plaintiff had an APRI score of 0.7, which does not require treatment or indicate he is at risk for any associated conditions in the future. (Doc. 22-1, p. 2); see also (Doc. 16-1, p. 2) ("Nothing in Melendez's record indicates he has significant fibrosis requiring treatment, or that he has any co-infections associated with Hepatitis C."); (id.) ("Currently, [Melendez] is not a candidate for additional treatment, as he has a history of failed treatment and his testing does not show a progression of the disease such that treatment is necessary."). Lab results from November 2015 again indicated plaintiff has an APRI score of 0.7.
Plaintiff claims he is in imminent danger of serious physical injury because the FDOC has failed to provide adequate treatment for his hepatitis C. Plaintiff's beliefs concerning the severity of his condition, however, are based on an erroneous reading of his medical record. For example, plaintiff claims he has both hepatocellular carcinoma and decompensated cirrhosis. (Doc. 17). None of plaintiff's medical records indicate he suffers from either of these conditions. In the records describing the results of plaintiff's liver biopsy in May 2013, the following notation appears: "R/O hepatocellular carcinoma." Plaintiff views this notation as confirmation that he suffers from hepatocellular carcinoma, the most common form of liver cancer. "R/O," however, is an abbreviation for "rule out," a term used in differential diagnosis. See Guinn v. AstraZeneca Pharm., LP, 602 F.3d 1245, 1253 (11th Cir. 2010) ("Differential diagnosis `is accomplished by determining the possible causes for the patient's symptoms and then eliminating each of these potential causes until reaching one that cannot be ruled out or determining which of those that cannot be excluded is the most likely.'") (quoting Westberry v. Gislaved Gummi AB, 178 F.3d 257, 262 (4th Cir. 1999)).
Similarly, plaintiff calculates he has decompensated cirrhosis by inserting his "HAI grade by modified Knodell scoring"
Based on the foregoing, plaintiff has not established hepatitis C poses an imminent danger of serious physical injury. Although Mr. Melendez disagrees with the discontinuation of the Pegasys regimen and staff's failure to administer it as instructed, the fact a previous attempt at treatment failed-for whatever reason-does not necessarily establish that plaintiff is currently in imminent danger. See Brown v. Johnson, 387 F.3d 1344, 1349 (11th Cir. 2004) ("a prisoner must allege a present imminent danger, as opposed to a past danger, to proceed under section 1915(g)"). Both the hepatitis C and the condition of plaintiff's liver are being monitored according to the BOP's guidelines and additional treatment is not clinically indicated at this time. (Doc. 33-1, p. 8); cf. Black v. Ala. Dep't of Corr., 578 F. App'x 794 (11th Cir. 2014) (no deliberate indifference when medical personnel monitored prisoner's hepatitis C and found the condition was stable and did not require admission to treatment program).
On May 30, 2012, Dr. Shah performed a colonoscopy which showed "proctitis and hemorrhoids," but was an "otherwise normal exam." (Doc. 14-2, p. 67). On August 29, 2014, plaintiff provided staff with three stool specimen cups which tested positive for the presence of blood. (Doc. 15-1, p. 8). Nurse Nichols scheduled an appointment for plaintiff at Reception Medical Center ("RMC"). (Id., p. 9). The FDOC's records indicate plaintiff refused a transfer to RMC and declined to sign a "refusal form" on September 30, 2014. (Id., p. 9-10).
Plaintiff's description of September 30 differs considerably. Plaintiff asserts Officer Jinx told him to pack his property at 6:55 a.m. (Doc. 15-1, p. 14). One or two minutes later, two officers approached plaintiff's cell as he was using the bathroom. (Id.). The officers became upset because plaintiff was not packed and they did not believe he was packing fast enough. (Id.). The officers threatened plaintiff and told him they would beat him off camera. (Id.). Plaintiff requested to see a lieutenant to report the threats; one of the transport officers left and returned with Nurse Donahoo. (Id.). After plaintiff informed Donahoo of the threats, she asked him if he refused the transfer. (Id., p. 14-15). Plaintiff said "no, I'm packing but I still want to see the lieutenant." (Id., p. 15). Donahoo and the officers left plaintiff's cell; plaintiff later learned that Donahoo and the officer signed a form indicating plaintiff refused the transfer. (Id.).
The Chronological Record of Health Care indicates plaintiff returned three hemoccult
On November 18, 2015, Nurse Nichols prescribed Proctozone-HC, a hydrocortisone cream used to treat hemorrhoids. (Doc. 15, p. 4). Plaintiff asserts Proctozone "is not the appropriate medication for the internal bleeding" because "the instructions clearly indicate in bold lettering `For External Use Only.'" (Doc. 15, p. 4). At sick call on November 25, 2015, plaintiff stated that after a bowel movement he can "fill up a specimen cup [with] green lid `at least halfway [with] dark bright red blood[.]'"
Later in 2016, however, testing confirmed the presence of blood in plaintiff's stool. On April 9, 2016, plaintiff reported bloody stool and a hemo card returned a positive result. (Doc. 33-1, p. 10). Plaintiff was placed in the infirmary under 23-hour observation. (Id.). His medications included Prilosec and Zocor. (Id., p. 12). On May 2 and 10, plaintiff returned hemo cards that tested positive for blood. (Doc. Id., p. 6). The examining nurse referred plaintiff to a clinician for evaluation. (Id.).
Plaintiff commenced a hunger strike on May 11. (Id., p. 4). On May 16, 2016, Dr. R. Calaycay examined plaintiff and advised him of the consequences of the hunger strike. (Id.). Medical personnel continued to encourage plaintiff to eat throughout May 16. (Id., p. 3). On May 17, 2016, plaintiff reported experiencing bloody stool and abdominal pain. (Id., p. 1, 3). At the time, plaintiff's medications included Lipitor, Protonix, and Anusol-HC cream, a medication used to treat hemorrhoids. (Id., p. 1). Notes from May 18, indicate plaintiff continued to have rectal bleeding but it had not increased. (Id., p. 2).
Although recent medical records document the presence of blood in plaintiff's stool, medical personnel have closely monitored plaintiff's condition and he has been examined by Dr. Calaycay. In addition, plaintiff has been prescribed medication to treat hemorrhoids. Based on the foregoing, plaintiff has not established the rectal bleeding places him in imminent danger of serious physical injury.
An A1C level "shows what percentage of a person's hemoglobin is coated with sugar. The higher the percentage, the poorer the blood sugar control and the higher the risk of developing diabetes. Generally, an A1C level of 6.5 percent or higher on two separate tests indicates diabetes, while 5.7 to 6.4 percent is considered prediabetes, which indicates increased risk of developing diabetes." (Doc. 16-1, p. 1). In February 2015, plaintiff's A1C level was 5.6, which is normal. (Id.; doc. 14-2, p. 77).
Melendez's July 12, 2015 labs showed his A1C level was 5.9. (Doc. 14-2, p. 13, 73-74). The July 12 tests also indicated Mr. Melendez's total cholesterol level was normal at 182 mg/dL. (Doc. 14-2, p. 72; doc. 16-1, p. 1). His non-HDL (143 mg/dL) and LDL cholesterol levels (128 mg/dL), however, were a "little high." (Doc. 14-2, p. 72; doc. 16-1, p. 1).
In late July, plaintiff visited the Chronic Illness Clinic; medical staff discussed exercise and healthy lifestyle changes. (Doc. 14-2, p. 39; doc. 16-1, p. 1). Dr. Maier indicates: "Educating a patient to try to improve his numbers for cholesterol and sugar levels through diet, exercise and other lifestyle changes is generally the standard of care before resorting to medication. In [Melendez's] case, given that none of his labs showed any major cause for alarm, this was appropriate." (Doc. 16-1, p. 1-2). In response to these recommendations, plaintiff claims Dr. Shah previously issued a pass instructing him not to lift, push, or pull heavy objects because "the liver damage would surely cause my death as bad as it's already damaged." (Doc. 15, p. 6). Plaintiff also indicates that specialists at Reception Medical Center previously provided him with diet passes "which the ARNP ended and has refused to renew claiming [plaintiff] is not diabetic."
On August 26, 2015, a comprehensive metabolic panel revealed plaintiff's glucose level was 85 mg/dL, "well within the normal range of 70-100." (Doc. 14-2, p. 11, 71; doc. 16-1, p. 2). On September 13, 2015, plaintiff filed an Inmate Sick-Call Request questioning, inter alia, why nothing was being done about his high cholesterol. (Doc. 15-1, p. 59). He was seen by Nurse Rosati on September 15. (Doc. 14-2, p. 10-11). Melendez acknowledged he was advised to make lifestyle changes but "would not say at th[e] time if he made the[] changes." (Id., p. 11). Nurse Rosati reviewed plaintiff's lab results with him again and concluded no treatment was needed for the cholesterol levels. (Id., p. 10). Melendez was instructed to return to medical as needed. (Id.). On November 18, two doctors recommended that plaintiff "be put on a statin for LDL of 128 in July." (Id., p. 9). The doctors indicated they were "aware of his Hep C status and his cardiac risk of 6% for next 10yrs." (Id.). Nurse Nichols prescribed Lipitor and scheduled additional blood tests in six weeks. (Id., p. 47; doc. 15-1, p. 45). On November 18, 2015, Nurse Grice delivered the medication to plaintiff but told him she did not know the medication's purpose. (Doc. 15-1, p. 42-43). Later, Grice informed plaintiff the new medication was for his stomach problems. (Id., p. 43).
At sick call on November 25, 2015, tests revealed Mr. Melendez's blood sugar level was 165. (Doc. 15-1, p. 43, 75). Nurse Moore told plaintiff the Lipitor was prescribed to treat high cholesterol, but plaintiff told Moore that "Dr. Shah had previously cancelled the order for cholesterol medication cause it damaged my liver worse than it was." (Id., p. 43-44). Later that day, Moore approached plaintiff's cell and presented him with a medication refusal form. (Id., p. 44). He refused to sign the form. (Id.). Plaintiff took seven Lipitor pills between November 18 and November 25. (Id., p. 45).
Testing performed on November 30, 2015, revealed plaintiff's A1C level was 5.8, suggesting he was at an increased risk of diabetes. (Doc. 29-1, p. 30). The most recent lab results from May 23, 2016, however, showed plaintiff's glucose level at 94 mg/dL, which is within normal limits. (Doc. 33-1, p. 13).
Plaintiff's allegations concerning his cholesterol and blood sugar levels are insufficient to meet the imminent danger exception to § 1915(g). Although plaintiff's blood sugar tests have yielded elevated results, he has not been diagnosed as diabetic. In addition, plaintiff's most recent lab results show his blood sugar level is within normal limits. Likewise, plaintiff's elevated cholesterol levels have not been shown to pose an imminent danger of serious physical injury. See Richardson v. Hite, 53 F. App'x 291, 292 (4th Cir. 2002) ("Reviewing Richardson's complaint, only his allegation that prison officials denied him medication for his elevated cholesterol levels could possibly satisfy the imminent danger exception to § 1915(g). Although § 1915(g) should not be read to interfere with inmates' ability to complain about unsafe, life-threatening conditions in their prison without waiting for something to happen to them, Richardson failed to demonstrate his elevated cholesterol levels were necessarily dangerous or that medication was a medical necessity.") (internal quotations and citations omitted). Furthermore, records from April 27, 2016, reflect that plaintiff is taking Zocor, a medication used to treat high cholesterol and triglyceride levels.
Importantly, based on the complaint and medical record, plaintiff could not establish that the FDOC's medical personnel have exhibited deliberate indifference to his various conditions. See Goodman v. Kimbrough, 718 F.3d 1325, 1331-32 (11th Cir. 2013) (To show a defendant was deliberately indifferent, a plaintiff must prove: "(1) subjective knowledge of a risk of serious harm; (2) disregard of that risk; (3) by conduct that is more than gross negligence.") (quoting Townsend v. Jefferson Cty., 601 F.3d 1152, 1158 (11th Cir. 2010)); see also Brown, 387 F.3d at 1351 ("The determination that Brown alleged imminent danger of serious physical injury does not end our inquiry. We may affirm the district court on any ground that finds support in the record. If Brown's amended complaint fails to state a claim for deliberate indifference, then the dismissal of the amended complaint must be affirmed.") (internal citation omitted). Staff have monitored plaintiff's conditions and concluded that either conservative treatment or no treatment is necessary. Although Melendez disagrees with this assessment, a disagreement between staff and an inmate concerning the latter's course of treatment is not an appropriate basis for finding an Eighth Amendment violation. See Adams v. Poag, 61 F.3d 1537, 1545 (11th Cir. 1995) ("[W]hether governmental actors should have employed additional diagnostic techniques or forms of treatment is a classic example of a matter for medical judgment and therefore not an appropriate basis for grounding liability under the Eighth Amendment.") (quotation marks omitted); see also Taylor v. Adams, 221 F.3d 1254, 1258 (11th Cir. 2000) (To establish deliberate indifference, the defendant's response to the medical need must be more than "merely accidental inadequacy, negligence in diagnosis or treatment, or even medical malpractice actionable under state law.") (citation and quotations omitted). The Eighth Amendment is not a vehicle for prisoners seeking to dictate the minute details of medical care absent a showing of deliberate indifference.
Plaintiff is a 57-year old man who suffers from several chronic medical conditions. He, however, is receiving treatment and his various conditions are being monitored. Plaintiff does not satisfy the imminent danger exception of 28 U.S.C. § 1915. Based on the medical records, the severity of Melendez's conditions, singly or in combination, do not establish that he is in imminent danger of serious physical injury such as could be redressed in a civil rights suits. Because plaintiff did not pay the $400.00 filing fee at the time he initiated this action, and because it plainly appears plaintiff is not entitled to proceed in forma pauperis, this case should be dismissed without prejudice under § 1915(g). See Dupree v. Palmer, 284 F.3d 1234, 1236 (11th Cir. 2002) (holding that "the proper procedure is for the district court to dismiss the complaint without prejudice when it denies the prisoner leave to proceed in forma pauperis pursuant to the provisions of § 1915(g)" because the prisoner "must pay the filing fee at the time he initiates the suit."); Vanderberg v. Donaldson, 259 F.3d 1321, 1324 (11th Cir. 2001) (stating that after three meritless suits, a prisoner must pay the full filing fee at the time he initiates suit).
Accordingly, it is ORDERED:
1. The clerk shall update the docket to reflect that plaintiff's current address is: Santa Rosa Correctional Institution Annex, 5850 East Milton Road, Milton, Florida 32583-7914.
2. Plaintiff's motion for leave to file a reply (doc. 24) is GRANTED.
3. The clerk shall strike plaintiff's "Supplemental Civil Rights Complaint" (doc. 35) from the record.
And it is respectfully RECOMMENDED:
1. That plaintiff's motion to proceed in forma pauperis (doc. 2) be DENIED.
2. That plaintiff's Motion Seeking Temporary Injunction (doc. 17) be DENIED AS MOOT.
3. That this action be DISMISSED WITHOUT PREJUDICE under 28 U.S.C. § 1915(g).
4. That the clerk be directed to close the file.
