Webster v. Inch

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

FREDERICK WEBSTER,

Plaintiff,

v. Case No. 3:20-cv-333-MMH-MCR

CORIZON, LLC,

Defendant.

ORDER

I. Status

Plaintiff, Frederick Webster, an inmate in the custody of the Florida

Department of Corrections (FDOC), initiated this action by filing a pro se Civil

Rights Complaint (Doc. 1) under 42 U.S.C. § 1983. He is proceeding in forma

pauperis on a Second Amended Complaint (Doc. 13; SAC), filed with help from

court appointed counsel.1 One Defendant remains – Corizon, LLC (Corizon).2

SAC at 2-3. Webster, who alleges he suffers residual effects from a prior

1 Soon after Webster initiated this action, the Court sua sponte appointed

counsel to represent him. Doc. 5. After counsel filed the SAC on Webster’s behalf, the

Court granted counsel’s unopposed motion to withdraw. Doc. 48. Webster is now

proceeding pro se.

2 Webster originally named Centurion of Florida, LLC, and the FDOC as

additional Defendants, but the Court granted Webster’s motions to voluntarily

dismiss with prejudice all claims against those Defendants. See Docs. 73, 91.

Hepatitis C (HCV) infection, argues that Defendant Corizon violated his

Eighth Amendment right to be free from cruel and unusual punishment when

it refused to provide Webster with lifesaving HCV treatment because of a cost-

saving policy. Id. at 12-21. As relief, Webster seeks declaratory relief,

compensatory and punitive damages, as well as attorney’s fees and costs. Id.

at 20.

Before the Court is Corizon’s Motion for Summary Judgment. See

Defendant Corizon, LLC’s Motion for Summary Judgment (Doc. 87; Corizon

Motion) with Exhibits (Doc. 86-1 through Doc. 86-6). The Court advised

Webster of Federal Rule of Civil Procedure 56, notified him that granting a

motion for summary judgment would represent a final adjudication of this case

which may foreclose subsequent litigation on the matter, and allowed him to

respond to the Motion. See Order of Special Appointment (Doc. 14). Webster

filed a Response. See Plaintiff’s Response in Opposition to Defendant Corizon’s

Motion for Summary Judgment and Incorporated Memorandum [of] Law (Doc.

89; Webster Resp.) with Exhibits (Doc. 89-1 through Doc. 89-4). Corizon

replied. See Defendant Corizon, LLC’s Reply Memorandum in Support of Its

Motion for Summary Judgment (Doc. 93). And Webster filed a Supplemental

Response. See Plaintiff’s Supplemental Response in Opposition of Corizon’s

Supplemental Reply Memorandum in Support of its Motion for Summary

Judgment (Doc. 94). Corizon’s Motion is ripe for review.

II. Webster’s Allegations

In his SAC, Webster raises four claims for relief. See generally SAC.

Because Webster’s claim against Corizon is the only claim that remains, the

Court limits its summary to the allegations involving Corizon.

Webster alleges that he entered FDOC custody in 1986. Id. at 7.

Although it is unclear when Webster received his HCV diagnosis, he contends

that when he entered FDOC custody, officials conducted a physical exam and

determined Webster suffered from decompensated cirrhosis stemming from

chronic HCV. Id. at 7-8. He maintains that chronic HCV is a serious medical

need that can cause, inter alia, liver inflammation, liver fibrosis, cirrhosis, and

possible death. Id. at 3-4. Webster asserts that in 2013, a new class of drugs

known as direct-acting antivirals (DAAs) became available to HCV patients.

Id. at 5. He argues DAAs are oral medications with few side effects that cure

HCV at a rate over 95%. Id. According to Webster, in 2014, the American

Association for the Study of Liver Diseases (AASLD) and the Infectious Disease

Society of America (IDSA) recommended DAA treatment for all persons with

chronic HCV. Id. And since 2014, DAA treatment “has been the standard of

care for the treatment of HCV . . . .” Id.

Webster alleges that Corizon contracted with the FDOC to provide

health care services to FDOC prisoners, like Webster, from October 2012 until

May 2016. Id. at 2-3. Webster argues that Corizon officials knew about DAAs

when the medication became available in 2013 and knew in 2013 that DAAs

were the only acceptable treatment for chronic HCV. Id. at 7. He also contends

that Corizon knew that thousands of FDOC prisoners suffered from HCV, but

it wholly refused to provide DAAs or any other treatment for the virus. Id.

According to Webster, Corizon “failed to provide these lifesaving medications

to thousands of prisoners with HCV, in contravention of the prevailing

standard of care and in deliberate indifference to the serious medical needs of

prisoners with HCV.” Id. at 6.

Webster asserts that in 2014, Corizon took Webster’s blood samples

confirming he had decompensated cirrhosis. Id. at 7. According to Webster,

every ninety days, Webster underwent further medical testing indicating his

decompensated cirrhosis had become severe. Id. at 7-8. From September 2014

until May 2016, however, Corizon refused to provide him with DAA treatment

despite knowing that his condition prioritized him for such treatment. Id. at 8.

According to Webster, Corizon denied him this treatment because Corizon “had

a policy, practice, and custom of not providing [DAAs] to patients with HCV,

in part to save costs and to make larger profits.” Id. at 9. He argues that

because of Corizon’s practice, policy, and custom of refusing to treat Plaintiff

with DAAs, “he sustained serious damage to his health and an increased risk

of future health complication.” Id. at 9. Webster contends that Centurion

replaced Corizon in April 2016 and began providing health care services to

prisoners, like Webster, in FDOC custody in May 2016. Id. at 3. According to

Webster, Centurion provided DAA treatment after prisoners sought injunctive

relief against the FDOC in May 2017, and Webster finally received treatment

and was cured of the disease in April 2018. Id. at 10.

Based on these facts, Webster alleges that Corizon’s conduct amounts to

deliberate indifference to his serious medical needs in violation of the Eighth

Amendment. Id. at 11. He asserts that Corizon “knew that [] Webster suffered

from a serious medical need, and knew that failing to treat him subjected him

to a substantial risk of serious harm.” Id. at 13. He also contends that “[a]s a

direct and proximate cause of [Corizon’s] policy, practice, and custom, and

deliberate indifference to [Webster’s] serious medical needs, [Webster] has

suffered and will [] continue to suffer from[] harm.” Id. at 13. He asserts that

he “experiences fatigue, mild depression, joint pain, brain fog, swelling and

pain near [his] liver, irritable bowel movement, and sleep disorder.” Id. at 11.

Webster maintains that the delay in treatment worsened his cirrhosis, and he

is now “at heightened risk for developing further symptoms including further

advanced liver failure, liver cancer, and death.” Id.

III. Summary of Record Evidence and Parties’ Postitions3

a. Record of HCV Standard of Care Between 2013 and 2016

HCV is a bloodborne virus that primarily attacks the liver and can cause

liver scarring or “fibrosis.” See Hoffer v. Sec’y, Fla. Dep’t of Corr., 973 F.3d

1263, 1267 (11th Cir. 2020). The severity of liver fibrosis is typically measured

on a five-step scale: F0 (no fibrosis), F1 (mild fibrosis), F2 (moderate fibrosis),

F3 (severe fibrosis), and F4 (cirrhosis). Id. According to Dr. Gregory Ladele,

Corizon’s National Medical Director, the Federal Bureau of Prisons (BOP)

issues the policy guidelines for inmate HCV treatment and “define[s] the

optimal management of [HCV] infection in prisoners.” Doc. 86-1 at 1. When

Corizon was providing medical services to FDOC inmates, the BOP guidelines

on HCV treatment were “constantly evolving.” Corizon Motion at 4. In late

2013, the FDA approved the first highly effective DAAs – Olysio and Sovaldi.

Doc. 86-1 at 1. The FDA then approved DAAs “Harvoni and Viekira Pak in late

2014, and Daklinza in mid-2015.” Id. at 2. Dr. Ladele explains that the FDA’s

3 In support of its Motion, Corizon provides: the Declaration of Gregory Ladele,

M.D., outlining Corizon’s treatment plan for FDOC inmates with HCV, including its

treatment of Webster, see Doc. 86-1, Doc. 86-2; Corizon’s November 2015 notice to the

FDOC cancelling its contract, see Doc. 86-3; and several of Webster’s Chronic Illness

Clinic records, lab reports, and ultrasound reports from 2013, 2014, 2015, 2016, 2018,

2019, and 2020, see Doc. 86-4, Doc. 86-5, Doc. 86-6. In support of his Response,

Webster provides: several medical records from 2000 and 2001, see Doc. 89-1;

Corizon’s November 2015 notice to the FDOC cancelling its contract, see Doc. 89-2;

medical records from 2013 through 2016, see Doc. 89-3; and medical records from

2018, see Doc. 89-4. The Court summarizes the parties’ exhibits and pleadings, in

concert, to provide a chronological summary of the record evidence.

approval of DAAs, or the “Sovaldi-class of medications,” “was a singular event”;

and “[w]hen combined with other [DAAs] in Harvoni, Viekira Pak[,] and

subsequently other combination products, these medications promised a high

rate of cure for [HCV] without the side effects of previous medication

regimens,” including “Interferon, a medication with debilitating side-effects.”

Id.

But FDA approval did not mean that DAAs were readily available for

Corizon’s use in treating FDOC inmates. Id. Indeed, when Sovaldi was

introduced in 2013, its estimated per-patient cost was $84,000, and when

Harvoni was released in late 2014, its estimated per-patient cost was nearly

$95,000, which were expenses “[n]o company, including Corizon, could absorb.”

Id.; see also Corizon Motion at 2. Instead, according to Dr. Ladele, for Corizon

to provide this new HCV treatment to FDOC inmates, “[t]he funding [for

DAAs] had to come from the Florida Legislature.” Doc. 86-1 at 2. Thus, Corizon

and Dr. Ogunsanwo, the FDOC’s Assistant Secretary for Health Services,

repeatedly asked the FDOC to contact the Florida Legislature about obtaining

funding for “Harvoni and similar [DAAs].” Id. But all Corizon’s requests for

legislative funding were denied. Id.

“Corizon also attempted to obtain the medications without cost from the

manufacturer in return for providing data.” Id. Indeed, because the national

HCV treatment guidelines were still being developed, and hoping its labors

would result in receiving the medication, Corizon proactively engaged in the

daunting task of collecting research data on all HCV-positive inmates. Id. at 2-

3. For more than a year, Corizon conducted thousands of HCV clinic exams,

during which Corizon accumulated laboratory values to determine which HCV-

positive inmates should be prioritized for DAA treatment. Id. at 2-3. Corizon

centrally stored the data and provides a copy of a 120-page chart listing

information for the 4,731 HCV-positive inmates Corizon monitored. See

generally Doc. 86-2. The chart includes each inmate’s: ALT (alanine

aminotransferase) and AST (aspartate aminotransferase) scores, which are

liver enzymes; platelet count; total bilirubin level; and APRI (aspartate

aminotransferase to platelet ratio) score, which estimates the severity of liver

disease in inmates with HCV. See generally id. However, despite Corizon’s

analytic efforts, it still could not acquire DAA medication for FDOC inmates.

Doc. 86-1 at 2.

The BOP also gradually revised its HCV guidelines to account for the

high cost of DAA treatment. In June 2014, the BOP recommended using DAAs

only in the most serious cases, as it anticipated more efficient and less

expensive medications would soon be available. Corizon Motion at 4. According

to Dr. Ladele, the 2014 BOP guidelines stated:

The preferred treatment regimen has changed with

each of the new recently approved, direct-acting

antiviral medications (DAAs) – resulting in rapidly

changing clinical guidelines and treatment

recommendations. While an all-oral, interferon-free

regimen is currently available for certain genotypes,

even newer medications are expected to become

available that will be safer, simpler, and more

effective. In the midst of this rapidly changing

treatment landscape, the most recently published

guidance on HCV treatment (www.hcvguidelines.org)

indicates that it is reasonable to postpone treatment

for cases with less advanced fibrosis, pending the

expected availability of better treatments in the very

near future. During this time of transition, the BOP

has established treatment priorities for inmates who

have a more urgent need for intervention . . . .

Doc. 86-1 at 3-4. Dr. Ladele explains that the first BOP HCV guideline “to

advocate use of [DAAs] in patients without advanced liver fibrosis or other

high-priority conditions was issued in July 2015.” Id. at 2. But in its July 2015

updated guideline, the BOP reiterated that providers should still prioritize

their administration of DAAs. Id. at 4. It stated, “AASLD/IDSA/IAS-USA

[(International Antiviral Society – USA)] guidelines also indicate that it is

reasonable during this time of transition to prioritize for treatment those HCV

cases with the most urgent need.” Id.

In November 2015, “when it became clear that additional funding,

including funding for [HCV] treatment, was not coming, Corizon provided

notice of cancellation of its contract to the FDOC” largely because the FDOC

failed to obtain funding for DAAs. Id.; see also Doc. 86-3 at 1; Corizon Motion

at 3. Corizon stopped providing medical services for the FDOC on May 31,

2016. Doc. 86-3 at 1; Doc. 86-1 at 4. During Corizon’s contract with the FDOC,

the FDOC did not add DAAs to its approved list of medications that Corizon

physicians could prescribe. See Corizon Motion at 3.

Dr. Ladele explains that several partnerships between Corizon and other

state governments were more successful in obtaining the necessary legislative

funding for DAA treatment in HCV-positive inmates. Doc. 86-1 at 4. According

to Dr. Ladele, in 2013, the Michigan Department of Corrections (MDOC),

which already had a “large-volume pegylated interferon plus ribavirin

program” to treat HCV in prisoners, began a “small-scale use of hybrid therapy

with early [DAAs].” Id. In 2015, the MDOC transitioned to “small-moderate

scale all-DAA therapy, and finally to large-scale all DAA therapy in early

2016.” Id. According to Dr. Ladele, “[s]uccessfully educating key state

administration and legislative leaders required a sustained and arduous

effort.” Id. at 4-5. And he explains that Arizona, Kansas, and Missouri are other

past and present Corizon client-states that transitioned to high-volume DAA

treatment programs. Id. at 5.

b. Record of Webster’s Medical Care

Webster entered the FDOC’s custody in September 1986. Webster Resp.

at 4. Although the exact date of diagnosis is unclear, the FDOC’s Chronic

Illness Clinic evaluated Webster on April 18, 2000 and noted he suffered from

HIV, HCV, and hypertension.4 Doc. 89-1 at 24. The Chronic Illness Clinic

continued to monitor Webster’s HIV and HCV between May 2000 and

November 2001 through regular blood tests and in-person assessments. See

generally id. Webster’s medical records during those dates indicate he had no

complaints about his HCV and was tolerating his medications well. Id.

Corizon began providing medical services to certain FDOC inmates,

including Webster, in 2012.5 SAC at 3. On December 10, 2013, Corizon

collected blood samples from Webster for a complete metabolic panel and blood

count. Doc. 86-5 at 1-4. On December 18, 2013, Corizon evaluated Webster in

the Chronic Illness Clinic, reviewed his lab results, and noted his HCV was

“controlled” and “asymptomatic.” Doc. 86-4 at 1. Corizon ordered Webster to

undergo additional labs and return to the Chronic Illness Clinic in April 2014.

Id. It conducted further lab work and collected samples from Webster in

January 2014 and March 2014. Doc. 86-5 at 5-14. Webster returned to the

Chronic Illness Clinic on May 6, 2014, where Corizon documented that his

4 Although the handwriting on his medical records is difficult to read, it also

appears that medical noted Webster suffered from hyperlipidemia. See Doc. 89-1.

5 In its Motion, Corizon alleges it began providing medical services to FDOC

inmates in September 2013. Corizon Motion at 2. The Court, however, views the facts

in the light most favorable to Webster who alleges Corizon began providing services

in 2012. SAC at 3. But this discrepancy is immaterial because the relevant date range

for purposes of this Order is 2013 to 2016 and the parties do not dispute that Corizon

was the FDOC’s medical provider during that timeframe.

HCV remained controlled and asymptomatic. Doc. 86-4 at 2. Medical ordered

Webster to return for a follow-up in three months. Id.

In July 2014, Webster underwent further lab tests. Doc. 86-5 at 15-17.

During his Chronic Illness Clinic visit on August 11, 2014, Corizon medial staff

reviewed Webster’s lab reports and noted his HCV was “controlled.” Doc. 86-4

at 3. However, because Webster’s July 2014 lab results showed his ALT and

AST numbers were elevated, Corizon ordered that Webster undergo an

abdomen and liver ultrasound. Id.; see Doc. 86-5 at 15. At that time, Corizon

was accumulating its data on HCV-positive inmates and Webster was one of

the 4,731 inmates in the study and being staged for treatment. Doc. 86-1 at 3.

According to the chart Corizon compiled to prioritize the HCV-positive

inmates, the data Corizon listed for Webster included his July 2014 elevated

ALT and AST scores. See Doc. 86-2 at 33. The chart also included Webster’s

July 2014 APRI number, which was 0.762. Id. In his Declaration, Dr. Ladele

explains that when comparing those lab results to other HCV-positive inmates

in the data chart, “Webster was not among the patients with the greatest need”

for immediate DAA treatment despite his elevated liver enzymes. Doc. 86-1 at

3.

According to Dr. Ladele, Webster’s 2014 ultrasound also showed “none

of the usual signs of cirrhosis, such as nodules, fibrosis, varices, ascites and

markedly increased portal vein hypertension.” Id. Indeed, Corizon conducted

its first ultrasound on August 22, 2014, during which it found Webster’s “liver

[was] normal and homogenous in echogenicity measuring 11.8 cm.” Doc. 86-6

at 1. It found “[t]here [was] no evidence of intrahepatic ductal dilation[,] [t]he

portal vein demonstrate[ed] hepatopetal flow[,] [t]he common bile duct

measures 0.3 cm,” and the “spleen [was] unremarkable measuring 10.2 x 4.5 x

5.3 cm.” Id. Based on these findings, the medical department’s documented

impression was “normal liver and spleen [and] [l]imited imaging of the

gallbladder and right kidney [were] normal.” Id. Medical recommended that he

“[f]ollow up as clinically indicated.” Id.

Webster underwent a follow-up lab test in September 2014, which

showed that his AST and ALT scores were within normal range. Doc. 86-5 at

20-21. Corizon again conducted lab work on Webster in November 2014, id. at

22-24; January 2015, id. at 25-27; and on February 10, 2015, id. at 28-33. On

February 20, 2015, medical evaluated Webster in the Chronic Illness Clinic,

during which it assessed the progression of Webster’s HCV and noted he had

a APRI score of 1.02. Doc. 86-4 at 4. Webster’s discussed medical plan was diet

and exercise with a follow-up visit scheduled for June 2015. Id. Webster

underwent additional lab work about four days later, on February 24, 2015,

Doc. 86-5 at 34, and again in March and May 2015, id. at 35, 36-38.

On June 11, 2015, medical evaluated Webster in the Chronic Illness

Clinic, at which time he advised medical, “I am doing ok, but would like to get

in the new Hepatitis C program.” Doc. 86-4 at 5. Medical ordered additional

lab work and recommended Webster adhere to a diet and exercise regimen with

a follow-up appointment in three months. Id. Webster underwent lab work in

July 2015, Doc. 86-5 at 39-42, and on September 5, 2015, id. at 43. Medical

went over Webster’s updated labs during a Chronic Illness Clinic visit on

September 11, 2015. Doc. 86-4 at 6. During his evaluation, Webster advised

medical he had no complaints. Id. Medical renewed his medications, ordered

additional lab work, and scheduled him for a follow-up visit in six months. Id.

On November 10, 2015, Corizon collected more lab work from Webster.

Doc. 86-5 at 44-50. Later that month, on November 30, 2015, Corizon

submitted its notice cancelling its contract with the FDOC with an effective

date of May 31, 2016. Doc. 86-3. Corizon continued to conduct lab work on

Webster in December 2015, Doc. 86-5 at 51-54, and February 2016, id. at 55-

57. Corizon then evaluated Webster for the final time in the Chronic Illness

Clinic on March 4, 2016. Doc. 86-4 at 7. During the evaluation, Webster

reported that he was “doing ok,” medical reviewed his lab work, and ordered a

follow-up in four months. Id.

Centurion took over medical care at Webster’s correctional facility and

evaluated him in the Chronic Illness Clinic on August 31, 2016. Id. at 8.

Webster reported no complaints at that time, and medical ordered lab work to

test his quantitative HCV viral load. Id. On February 27, 2018, Centurion

conducted an ultrasound on Webster’s abdomen and liver. Doc. 86-6 at 2. It

showed that Webster’s “liver, hepatobiliary ductal system, gallbladder, and

spleen [were] normal[,] [n]o ascites[,] [and] [n]ormal hepatopedal portal vein

flow.” Id. Webster’s “[g]reatest liver length [was] 14.9 CM, CBD diameter [was]

2.9 mm, main portal vein diameter [was] 10.3 mm, main portal vein peak

systolic velocity [was] 41.85 cm/s, and splenic length [was] 10.4 CM.” Id. Based

on these observations, medical concluded Webster had “[m]ild elevation in

main portal vein peak systolic velocity” and a “[r]ight renal parenchymal

simple cyst,” but “[o]therwise negative exam.” Id.

On March 26, 2018, Centurion conducted an HCV counseling session

with Webster and documented that Webster showed evidence of “hepatofungal

blood flow,” but no evidence of “heter[o]genicity or increased diffuse

echogenicity” and no evidence of “[l]iver [e]dge nodularity.” Doc. 89-4 at 3.

However, it noted that Webster’s “FibroSure” stage was F4, which suggested

liver cirrhosis.6 Id.; see also Hoffer, 973 F.3d at 1267. As such, Centurion

ordered that Webster begin a treatment course of the DAA medication Epclusa

and scheduled a follow-up in two-to-four weeks to discuss tolerability. Id.

Webster was then considered cured of the infection in April 2018. See Corizon

Motion at 8; Webster Resp. at 5. Centurion conducted a post HCV treatment

6 The FDOC sometimes uses the “FibroSure” test to estimate an inmate’s

fibrosis stage. See Hoffer v. Inch, 382 F. Supp. 3d 1288, 1300 (N.D. Fla. 2019).

follow-up on May 2, 2018, during which Webster advised that he felt good, was

not experiencing any problems or side effects, and voiced no complaints or

concerns. Doc. 89-4 at 2. Webster then underwent ultrasounds of his liver in

May 2019, Doc. 86-6 at 4, and April 2020, id. at 5, both of which showed

Webster’s liver was normal in appearance. According to Dr. Ladele, Webster’s

ultrasound from 2020, “after he was cured, [again] show[ed] none of the usual

signs of cirrhosis, such as nodules, fibrosis, varices, ascites and markedly

increased portal vein hypertension.” Doc. 86-1 at 5.

IV. Standard of Review for Summary Judgment

Under Rule 56, “[t]he court shall grant summary judgment if the movant

shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The record to

be considered on a motion for summary judgment may include “depositions,

documents, electronically stored information, affidavits or declarations,

stipulations (including those made for purposes of the motion only),

admissions, interrogatory answers, or other materials.” Fed. R. Civ. P.

56(c)(1)(A). An issue is genuine when the evidence is such that a reasonable

jury could return a verdict in favor of the non-moving party. Mize v. Jefferson

City Bd. of Educ., 93 F.3d 739, 742 (11th Cir. 1996) (quoting Hairston v.

Gainesville Sun Publ’g Co., 9 F.3d 913, 919 (11th Cir. 1993)). “[A] mere scintilla

of evidence in support of the non-moving party’s position is insufficient to

defeat a motion for summary judgment.” Kesinger ex rel. Est. of Kesinger v.

Herrington, 381 F.3d 1243, 1247 (11th Cir. 2004) (citing Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 252 (1986)).

The party seeking summary judgment bears the initial burden of

demonstrating to the court, by reference to the record, that there are no

genuine issues of material fact to be determined at trial. See Clark v. Coats &

Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). “When a moving party has

discharged its burden, the non-moving party must then go beyond the

pleadings, and by its own affidavits, or by depositions, answers to

interrogatories, and admissions on file, designate specific facts showing that

there is a genuine issue for trial.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d

590, 593-94 (11th Cir. 1995) (internal citations and quotation marks omitted).

Substantive law determines the materiality of facts, and “[o]nly disputes over

facts that might affect the outcome of the suit under the governing law will

properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248.

In determining whether summary judgment is appropriate, a court “must view

all evidence and make all reasonable inferences in favor of the party opposing

summary judgment.” Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)

(citing Dibrell Bros. Int’l, S.A. v. Banca Nazionale Del Lavoro, 38 F.3d 1571,

1578 (11th Cir. 1994)). “Summary judgment is improper, however, if the

evidence is such that a reasonable jury could return a verdict for the

nonmoving party.” Guevara v. NCL (Bahamas) Ltd., 920 F.3d 710, 720 (11th

Cir. 2019) (quotation marks and citation omitted).

V. Eighth Amendment

“To establish an Eighth Amendment violation, a prisoner must satisfy

both an objective and subjective inquiry regarding a prison official’s conduct.”

Oliver v. Fuhrman, 739 F. App’x 968, 969 (11th Cir. 2018)7 (citing Chandler v.

Crosby, 379 F.3d 1278, 1289 (11th Cir. 2004)). The Eleventh Circuit has

explained:

Under the objective component, a prisoner must

allege a condition that is sufficiently serious to violate

the Eighth Amendment. Id. The challenged condition

must be extreme and must pose an unreasonable risk

of serious damage to the prisoner’s future health or

safety. Id. The Eighth Amendment guarantees that

prisoners are provided with a minimal civilized level

of life’s basic necessities. Id.

Under the subjective component, a prisoner

must allege that the prison official, at a minimum,

acted with a state of mind that constituted deliberate

indifference. Id. This means the prisoner must show

that the prison officials: (1) had subjective knowledge

of a risk of serious harm; (2) disregarded that risk; and

(3) displayed conduct that is more than [gross]

negligence. Farrow v. West, 320 F.3d 1235, 1245 (11th

Cir. 2003).

7 The Court does not rely on unpublished opinions as binding precedent;

however, they may be cited in this Order when the Court finds them persuasive on a

particular point. See McNamara v. GEICO, 30 F.4th 1055, 1060–61 (11th Cir. 2022);

see generally Fed. R. App. P. 32.1; 11th Cir. R. 36–2 (“Unpublished opinions are not

considered binding precedent, but they may be cited as persuasive authority.”).

Id. at 969-70. “To be cruel and unusual punishment, conduct that does not

purport to be punishment at all must involve more than ordinary lack of due

care for the prisoner's interests or safety.” Whitley v. Albers, 475 U.S. 312, 319

(1986).

As it relates to medical care, “[t]he Supreme Court has interpreted the

Eighth Amendment to prohibit ‘deliberate indifference to serious medical

needs of prisoners.’” Melton v. Abston, 841 F.3d 1207, 1220 (11th Cir. 2016)

(quoting Estelle v. Gamble, 429 U.S. 97, 102 (1976)). The Eleventh Circuit has

explained that

To prevail on a deliberate indifference claim, [a

plaintiff] must show: “(1) a serious medical need; (2)

the defendants’ deliberate indifference to that need;

and (3) causation between that indifference and the

plaintiff’s injury.” Mann v. Taser Int’l, Inc., 588 F.3d

1291, 1306-07 (11th Cir.2009). To establish deliberate

indifference, [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.” Townsend v. Jefferson Cnty., 601 F.3d

1152, 1158 (11th Cir.2010) (alteration in original). The

defendants must have been “aware of facts from which

the inference could be drawn that a substantial risk of

serious harm exist[ed]” and then actually draw that

inference. Farrow v. West, 320 F.3d 1235, 1245 (11th

Cir. 2003) (quotation omitted).

Easley v. Dep’t of Corr., 590 F. App’x 860, 868 (11th Cir. 2014). see also Patel

v. Lanier Cnty. Ga., 969 F.3d 1173, 1188-89 & n.10 (11th Cir. 2020)

(recognizing “a tension within [Eleventh Circuit] precedent regarding the

minimum standard for culpability under the deliberate-indifference standard,”

as some cases have used “more than gross negligence” while others have used

“more than mere negligence”; finding, however, that it may be “a distinction

without a difference” because “no matter how serious the negligence, conduct

that can’t fairly be characterized as reckless won’t meet the Supreme Court’s

standard” (citations omitted)); see Ireland v. Prummell, 53 F.4th 1274, , 1287

n.5 (11th Cir. 2022) (again acknowledging the “tension” within Eleventh

Circuit precedent, but stating “we believe that a more than gross negligence

culpability standard is the correct standard under the deliberate indifference

framework”).

“For medical treatment to rise to the level of a constitutional violation,

the care must be ‘so grossly incompetent, inadequate, or excessive as to shock

the conscience or to be intolerable to fundamental fairness.’” Nimmons v.

Aviles, 409 F. App’x 295, 297 (11th Cir. 2011) (quoting Harris v. Thigpen, 941

F.2d 1495, 1505 (11th Cir.1991)); see also Waldrop v. Evans, 871 F.2d 1030,

1033 (11th Cir. 1989) (“Grossly incompetent or inadequate care can constitute

deliberate indifference, as can a doctor’s decision to take an easier and less

efficacious course of treatment” or fail to respond to a known medical problem).

Notably, the law is well settled that the Constitution is not implicated

by the negligent acts of corrections officials and medical personnel. Daniels v.

Williams, 474 U.S. 327, 330-31 (1986); Davidson v. Cannon, 474 U.S. 344, 348

(1986) (“As we held in Daniels, the protections of the Due Process Clause,

whether procedural or substantive, are just not triggered by lack of due care

by prison officials.”). As such, a complaint that a physician has been negligent

“in diagnosing or treating a medical condition does not state a valid claim of

medical mistreatment under the Eighth Amendment.” Bingham v. Thomas,

654 F.3d 1171, 1176 (11th Cir. 2011) (quotation marks and citation omitted).

Disagreement over the mode of treatment does not constitute deliberate

indifference for the Eighth Amendment. See Hamm v. Dekalb Cnty., 774 F.2d

1567, 1575 (11th Cir. 1985) (“[A]n inmate’s desire for a different mode of

treatment does not rise to the level of deliberate indifference.”). Similarly, “the

question of whether 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.” Adams v. Poag, 61 F.3d 1537, 1545

(11th Cir. 1995) (citation omitted). Also, even if deliberate indifference is

shown, to support an Eighth Amendment claim, the prisoner must prove harm

caused by the indifference. See Hunt v. Dental Dep’t, 865 F.2d 198, 200 (9th

Cir. 1989) (delay in providing medical treatment does not constitute Eighth

Amendment violation unless delay was harmful).

Additionally, where a deliberate indifference medical claim is brought

against an entity, such as Corizon, based upon its functional equivalence to a

government entity, the assertion of a constitutional violation is merely the first

hurdle in a plaintiff's case. This is so because liability for constitutional

deprivations under § 1983 cannot be based on the theory of respondeat

superior. Craig v. Floyd Cnty., Ga., 643 F.3d 1306, 1310 (11th Cir. 2011)

(quoting Grech v. Clayton Cnty., Ga., 335 F.3d 1326, 1329 (11th Cir. 2003) (en

banc)); see Denno v. Sch. Bd. Of Volusia Cnty., 218 F.3d 1267, 1276 (11th Cir.

2000). Instead, a government entity may be liable in a § 1983 action “only

where the [government entity] itself causes the constitutional violation at

issue.” Cook ex. rel. Estate of Tessier v. Sheriff of Monroe Cnty., Fla., 402 F.3d

1092, 1116 (11th Cir. 2005) (citations omitted). Thus, a plaintiff must establish

that an official policy or custom of the government entity was the “moving

force” behind the alleged constitutional deprivation. See Monell v. Dep’t of Soc.

Servs., 436 U.S. 658, 693-94 (1978).

In Monell, the Supreme Court held that local governments can be held

liable for constitutional torts caused by official policies. However, such liability

is limited to “acts which the [government entity] has officially sanctioned or

ordered.” Pembaur v. City of Cincinnati, 475 U.S. 469, 480 (1986). Under the

directives of Monell, a plaintiff also must allege that the constitutional

deprivation was the result of “an official government policy, the actions of an

official fairly deemed to represent government policy, or a custom or practice

so pervasive and well-settled that it assumes the force of law.” Denno, 218 F.3d

at 1276 (citations omitted); see Hoefling v. City of Miami, 811 F.3d 1271, 1279

(11th Cir. 2016) (stating Monell “is meant to limit § 1983 liability to ‘acts which

the municipality has officially sanctioned or ordered’”; adding that “[t]here are,

however, several different ways of establishing municipal liability under §

1983”).

“A policy is a decision that is officially adopted by the [government entity]

or created by an official of such rank that he or she could be said to be acting

on behalf of the [government entity].” Sewell v. Town of Lake Hamilton, 117

F.3d 488, 489 (11th Cir. 1997) (citation omitted). The policy requirement is

designed to “‘distinguish acts of the [government entity] from acts of employees

of the [government entity], and thereby make clear that [governmental]

liability is limited to action for which the [government entity] is actually

responsible.’” Grech, 335 F.3d at 1329 n.5 (quotation and citation omitted).

Indeed, governmental liability arises under § 1983 only where “‘a deliberate

choice to follow a course of action is made from among various alternatives’” by

governmental policymakers. City of Canton v. Harris, 489 U.S. 378, 389 (1989)

(quoting Pembaur, 475 U.S. at 483-84). A government entity rarely will have

an officially-adopted policy that permits a particular constitutional violation,

therefore, in order to state a cause of action for damages under § 1983, most

plaintiffs must demonstrate that the government entity has a custom or

practice of permitting the violation. See Grech, 335 F.3d at 1330; McDowell v.

Brown, 392 F.3d 1283, 1289 (11th Cir. 2004). A custom is an act “that has not

been formally approved by an appropriate decisionmaker,” but that is “so

widespread as to have the force of law.” Bd. Of Cnty. Comm’rs of Bryan Cnty.,

Okla. v. Brown, 520 U.S. 397, 404 (1997) (citation omitted). The Eleventh

Circuit has defined “custom” as “a practice that is so settled and permanent

that it takes on the force of law” or a “persistent and wide-spread practice.”

Sewell, 117 F.3d at 489. Last, “[t]o hold the [government entity] liable, there

must be ‘a direct causal link between [its] policy or custom and the alleged

constitutional deprivation.’” Snow ex rel. Snow v. City of Citronelle, 420 F.3d

1262, 1271 (11th Cir. 2005) (quotation omitted).

VI. Analysis

Corizon argues that it is entitled to summary judgment because Webster

has failed to establish an Eighth Amendment violation.8 See generally Corizon

Motion at 10-23.

8 Corizon also argues it is entitled to summary judgment because Webster’s

action is barred by the three-strikes rule under 28 U.S.C. § 1915(g). Corizon Motion

at 8-10. Corizon made this argument in its Motion to Dismiss, and the Court denied

the issue. See Doc. 60 at 12-13. Thus, the Court denies it for the reasons previously

stated.

a. Serious Medical Need

Corizon does not dispute that Webster established that his HCV

constituted a serious medical need. Thus, the Court considers only whether

Corizon’s actions amounted to deliberate indifference.

b. Deliberate Indifference

Corizon argues it did not act deliberately indifferent because even

though Webster did not receive DAA treatment during Corizon’s care, Corizon

consistently monitored Webster’s condition and facilitated regular

examinations and testing. Corizon Motion at 22. According to Corizon, when it

was providing medical services to FDOC inmates, the estimated total cost of

providing DAA treatment to HCV-positive inmates exceeded $700 million. Id.

at 20. Corizon asserts the astronomical cost was a national dilemma not only

affecting Corizon’s ability to provide treatment but also preventing all

healthcare providers from readily offering DAAs. Id. Relying on Hoffer, 973

F.3d at 1279, Corizon contends it was not precluded from considering costs

when providing medical care; and because of the expense and “[i]n the face of

this nightmare, [it] did what was required by the []BOP guidelines: it

prioritized and staged patients, including Webster, for treatment when

funding became available.” Id. at 21. To that end, Corizon argues it did not

have a policy of denying treatment based on cost but instead “had a policy of

trying to get the funding” to provide the treatment. Id. at 22. However,

according to Corizon, “[t]hat policy was thwarted by the [FDOC], which despite

promises to the contrary, never sought funding from the Florida Legislature.”

Id. at 22.

In his Response, Webster argues that Corizon knew that his HCV had

progressed to decompensated cirrhosis in 2014 and that all lab results Corizon

ordered from that point on reaffirmed Webster’s deteriorating condition.

Webster Resp. at 4. According to Webster, Corizon knew that the medical

standard of care in 2014 and after was to immediately provide DAA treatment

to him and other prisoners with chronic HCV but Corizon followed a cost-

saving policy and practice to deny that medication. Id. Notably, he contends

“Corizon failed to provide [him] with any type of medical treatment for his HCV

infection at any time during its contractual agreement with FDOC.” Id.

According to Webster, Corizon cannot solely rely on costs to explain its decision

as “‘funding is no excuse’ for a failure to provide [HCV] treatment.” Id. at 12

(citing Hoffer v. Jones, 290 F. Supp. 3d 1292, 1296 (N.D. Fla. 2017)). He

“submits that if [] Corizon had provided him medical treatment for his chronic

HCV infection[,] [he] would not have suffered irreversible liver damage,” which

“will eventually result in liver cancer and death.” Id. at 11-13.

In the Hoffer litigation, the Northern District of Florida certified a class

consisting of “all current and future prisoners in the custody of the Florida

Department of Corrections who have been diagnosed, or will be diagnosed,

with” HCV. Hoffer v. Jones, 323 F.R.D. 694, 700 (N.D. Fla. 2017). The plaintiffs

sued the Secretary of the FDOC in her official capacity, alleging the denial of

DAAs under a cost-savings policy violated, inter alia, the Eighth Amendment.

Id. at 696. Following an evidentiary hearing, on November 17, 2017, the court

granted the plaintiffs’ request for a preliminary injunction and issued an

opinion. See Hoffer, 290 F. Supp. 3d at 1306. After resolving issues raised on

summary judgment, on April 18, 2019, the court entered a permanent

injunction mandating that the FDOC provide DAA treatment for all HCV-

positive inmates, including those with only mild or no liver fibrosis, and finding

that “[t]he only reason why FD[O]C is electing not to provide [DAA] treatment

is due to the cost of treatment, which is per se deliberate indifference.” See

Hoffer v. Inch, 382 F. Supp. 3d 1288, 1302 (N.D. Fla. 2019). The Secretary

appealed the court’s ruling on summary judgment, and on August 31, 2020,

the Eleventh Circuit vacated the district court’s permanent injunction;

reversed the court’s finding that the Secretary’s treatment of HCV-positive

inmates with little or no fibrosis (F0 and F1 level inmates) violated the Eighth

Amendment, “with instruction to award summary judgment to the Secretary

on that issue”; and remanded the rest of the district court’s order, “so that it

can make the findings required by the PLRA.” Hoffer, 973 F.3d at 1279. The

Eleventh Circuit reasoned that the Eighth Amendment does not prohibit

prison officials from considering cost in determining what type of medical

treatment to provide, and since the Secretary had implemented a treatment

plan that provides “minimally adequate care,” the plaintiffs cannot say that

her conduct in treating HCV-positive inmates amounted to deliberate

indifference. Id. at 1277-78.

Corizon now relies on the Eleventh Circuit’s 2020 Hoffer opinion to

support its argument that it did not act deliberately indifferent to Webster’s

serious medical needs, because it was not prohibited from considering the cost

of DAAs and it continuously monitored Webster’s condition. Webster relies on

the Northern District of Florida’s Hoffer decisions to support his assertion that

Corizon had to provide him with DAAs regardless of cost. The Court finds

Webster’s reliance is misplaced. First, Corizon was not a party in the Hoffer

litigation. Rather, the plaintiffs in that case sought injunctive relief against

only the Secretary, arguing the FDOC created a cost-saving policy and practice

to deny HCV treatment and continued that denial despite changing its

contracted medical provider. See Hoffer, 290 F. Supp. 3d at 1298 (summarizing

the FDOC’s history of failing to treat HCV and noting that the FDOC continued

to deny treatment as Corizon’s contract ended and Centurion’s contract began).

Second, and likely of more import, the Eleventh Circuit vacated the permanent

injunction and found that “the Eighth Amendment does not prohibit prison

officials from considering cost in determining what type (or level) of medical

care inmates should receive.” Hoffer, 973 F.3d at 1277. And the record shows

that Corizon acted reasonably in considering the cost of DAAs when

determining the type of care to provide its HCV patients.

Notably, although the FDA first approved DAAs in late 2013, the record

demonstrates that DAAs were not readily available to FDOC inmates in 2013,

2014, 2015, or 2016. When DAAs were introduced in 2013, its per-patient cost

was $84,000 and in 2014 the per-patient cost was nearly $95,000. Corizon could

not absorb that expense, but it went to great lengths to convince the FDOC to

request funding from the Florida Legislature and it even asked the drug

manufacturers to provide the medication at no cost. Indeed, Corizon spent a

year accumulating extensive data on its HCV-positive inmates to prepare for

DAA approval. It conducted liver function tests and regular medical

evaluations in the Chronic Illness Clinic to prioritize those HCV-positive

inmates for treatment. And Corizon’s prioritization approach mirrored the

BOP’s 2014 and 2015 HCV treatment guidelines. But when Corizon realized

all its efforts to obtain the medication were unsuccessful, Corizon cancelled its

contract with the FDOC. Webster does not dispute any of these efforts.

The undisputed evidence in the record also shows that despite its

inability to obtain DAAs, Corizon provided the required “minimally adequate

care” to Webster. Webster’s medical records from 2013, 2014, 2015, and 2016

show that Corizon employees regularly monitored Webster’s HCV symptoms

and liver function. Corizon ordered Webster to undergo lab tests almost

monthly and repeatedly evaluated him in the Chronic Illness Clinic, during

which it almost always documented Webster’s HCV as “controlled” or

“asymptomatic.” And there is no evidence that Webster complained to Corizon

about his HCV symptoms during those Chronic Illness Clinic examinations.

Corizon also ordered an ultrasound of Webster’s liver in 2014, which showed

that his liver appeared normal and presented “none of the usual signs of

cirrhosis, such as nodules, fibrosis, varices, ascites and markedly increased

portal vein hypertension.” Doc. 86-1 at 5.

On June 11, 2015, during a Chronic Illness Clinic visit, Webster, for the

first time, advised Corizon officials that although he was “doing ok,” he “would

like to get on the new Hepatitis C program.” However, when Webster made

that inquiry, Corizon had already included Webster in its HCV-treatment

prioritization data and was regularly monitoring him for potential DAA

treatment when and if that treatment became readily available.

Unfortunately, the FDOC did not obtain DAA funding during Corizon’s

contract; and thus, Corizon was without the means to provide that treatment.

Still, had Corizon received the funding and began providing DAAs under its

prioritization chart, Dr. Ladele concludes that, at that time, “Webster was not

among the patients with the greatest need.” Id. at 3.

To that end, while the record shows that in 2018, after Centurion began

providing medical services, medical documented Webster’s “FibroSure score”

as F4, which suggests severe fibrosis or cirrhosis, it is unclear when Webster’s

fibrosis began or when it progressed to that level. And since Webster’s

condition may have progressed to that stage after May 2016, the Court cannot

solely rely on that 2018 record to conclude that Corizon acted deliberately

indifferent in monitoring Webster’s HCV.

Viewing the facts in Webster’s favor, Centurion provided Webster with

DAAs and cured his HCV in April 2018. Much like his 2014 liver ultrasound,

Webster’s post-treatment 2019 and 2020 ultrasounds showed a normal liver

with “none of the usual signs of cirrhosis, such as nodules, fibrosis, varices,

ascites and markedly increased portal vein hypertension.” Doc. 86-1 at 5; 86-6

at 4-5. Thus, only speculation supports Webster’s allegation that his condition

today is worse than it would have been had Corizon been the medical provider

to treat him with DAAs, and Webster has submitted no evidence suggesting

that any delay caused him to suffer the injuries alleged in his Second Amended

Complaint. See Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1188 (11th

Cir. 1994), overruled on other grounds by Hope v. Pelzer, 536 U.S. 730 (2002)

(“An inmate who complains that delay in medical treatment rose to a

constitutional violation must place verifying medical evidence in the record to

establish the detrimental effect of delay in medical treatment to succeed.”).

Corizon has discharged its burden, and Webster has failed to show that

there is a genuine issue for trial. On this record, the facts do not show a

deliberate disregard for Webster’s HCV or that Corizon’s response to Webster’s

serious medical need was “so grossly incompetent, inadequate, or excessive as

to shock the conscience or to be intolerable to fundamental fairness.” Nimmons,

409 F. App’x at 297. Rather, Webster’s allegations against Corizon hinge on his

disagreement with Corizon’s HCV monitoring protocol and its self-proclaimed

“policy of trying to get [DAA] funding.” See Corizon Motion at 22. But Webster’s

disagreement with Corizon’s medical judgment at a time when DAA treatment

was “constantly evolving” fails to demonstrate an Eighth Amendment

violation. Harris, 941 F.2d at 1505. The record does not support Webster’s

claim that Corizon acted deliberately indifferent and summary judgment is

due to be granted to Corizon.

Accordingly, it is

ORDERED AND ADJUDGED:

1. Defendant Corizon’s Motion for Summary Judgment (Doc. 87) is

GRANTED.

2. The Clerk is DIRECTED to enter judgment in favor of Defendant

Corizon and against Plaintiff Webster and CLOSE the case.

DONE AND ORDERED at Jacksonville, Florida, this 5th day of

January, 2023.

United States District Judge

Jax-7

C: Frederick Webster, #856553

Counsel of Record

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