“Absent expert opinion that the [defendant’s] treatment deviated from acceptable medical standards, a reasonable fact-finder could not conclude that the [defendant] acted negligently.”
How later courts described this case
- “Absent expert opinion that the [defendant’s] treatment deviated from acceptable medical standards, a reasonable fact-finder could not conclude that the [defendant] acted negligently.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
KELVIN SUTTON, : CIVIL ACTION NO. 1:19-CV-2080
:
Plaintiff : (Judge Conner)
:
v. :
:
DR. PAUL NOEL, DR. HARESHA :
PANDYA, :
:
Defendants :
MEMORANDUM
Plaintiff Kelvin Sutton (“Sutton”), an inmate who was housed at all relevant
times at the State Correctional Institution at Frackville, Pennsylvania (“SCI-
Frackville”), commenced this action pursuant to 42 U.S.C. § 1983 alleging that
defendants failed to provide medical care for his Hepatitis C. (Doc. 1). Named as
defendants are Dr. Paul Noel and Dr. Haresha Pandya. Before the court is
defendant Pandya’s motion for summary judgment pursuant to Federal Rule of
Civil Procedure 56. (Doc. 63). For the reasons set forth below, the court will grant
the motion.
I. Factual Background & Procedural History1
Hepatitis C is a viral infection that causes inflammation of the liver. See
Bush v. Doe (I), 858 F. App’x 520, 521 (3d Cir. June 8, 2021) (nonprecedential) (citing
Hepatitis C Fact Sheet, World Health Organization (July 27, 2020),
https://www.who.int/news-room/factsheets/detail/hepatitis-c)).2 Hepatitis C may be
described as acute (meaning a new infection) or chronic (meaning a long-term
infection). See Hepatitis C Information, Centers for Disease Control (July 28, 2020),
https://www.cdc.gov/hepatitis/hcv/index.htm. An acute infection will often lead to a
1 Local Rule 56.1 requires that a motion for summary judgment pursuant to
Federal Rule of Civil Procedure 56 be supported “by a separate, short, and concise
statement of the material facts, in numbered paragraphs, as to which the moving
party contends there is no genuine issue to be tried.” LOCAL RULE OF COURT 56.1.
A party opposing a motion for summary judgment must file a separate statement of
material facts, responding to the numbered paragraphs set forth in the moving
party’s statement and identifying genuine issues to be tried. Id. Unless otherwise
noted, the factual background herein derives from defendant Pandya’s Rule 56.1
statement of material facts. (Doc. 64). Sutton did not file a response to defendant
Pandya’s statement of material facts. The court accordingly deems the facts set
forth by defendant Pandya to be undisputed. See LOCAL RULE OF COURT 56.1; see
also Doc. 69 ¶ 3 (advising Sutton that failure to file a responsive statement of
material facts would result in the facts set forth in defendant Pandya’s statement of
material facts being deemed admitted). We supplement defendant Pandya’s
statement with certain background factual information about Hepatitis C supplied
by the Third Circuit Court of Appeals’ nonprecedential decision in Bush v. Doe (I),
858 F. App’x 520, 521 (3d Cir. June 8, 2021) (nonprecedential) (collecting information
from World Health Organization (“WHO”) and Centers for Disease Control and
Prevention (“CDC”))).
2 The court acknowledges that nonprecedential decisions are not binding
upon federal district courts. Citations to nonprecedential decisions reflect that the
court has carefully considered and is persuaded by the panel’s ratio decidendi.
2
chronic infection,3 which can cause liver damage, fibrosis (scarring), cirrhosis
(extreme scarring), liver cancer, or death. Id. Thus, the benefit of early treatment
of Hepatitis C includes the ability of the body to stave off further liver deterioration.
Id.
In 2011, the Food and Drug Administration approved new direct-acting
antiviral drugs (“DAADs”) for treatment of Hepatitis C. Bush, 858 F. App’x at 521
(citations omitted). Treatment success for Hepatitis C is defined as sustained
virological response, which means the Hepatitis C virus (“HCV”) is not detected in
the blood for twelve or more weeks after treatment. Id. at 521 n.2. DAADs have a
90 to 95 percent success rate of producing a sustained virological response. Id. at
521 (citations omitted). As a result, in 2015, both the American Association for the
Study of Liver Disease (“AASLD”) and the Infectious Diseases Society of America
began to recommend that all patients with chronic Hepatitis C receive DAAD
treatment, “except those with limited life expectancy because of nonhepatic
conditions.” Id. (citations omitted). DAADs are an effective but costly treatment
method. See id. (noting that DAADs “cost[] up to $100,000 per treatment”).
Sutton alleges that he contracted Hepatitis C in 2007, while incarcerated, and
that defendant Pandya failed to provide adequate medical treatment. (Doc. 64 ¶¶ 2-
3). Specifically, Sutton alleges that he has not received any medical treatment for
3 According to the CDC, more than half of the people infected with the
Hepatitis C virus will develop a chronic infection. See Hepatitis C Information,
CTRS. FOR DISEASE CONTROL AND PREVENTION (July 28, 2020),
https://www.cdc.gov/hepatitis/hcv/index.htm.
3
his Hepatitis C and has been denied medical treatment pursuant to the
Pennsylvania Department of Corrections’ (“DOC”) Hepatitis C Protocol, despite
having a high viral load and consistent, diminished low platelet counts. (Id. ¶ 3).
During the relevant time period, defendant Pandya was employed by the medical
contractor for the DOC to provide medical services to inmates. (Id. ¶ 4). Defendant
Pandya has submitted an extensive summary of the medical care Sutton received
while incarcerated. (Id. ¶¶ 5-6). The undisputed material facts of Sutton’s care and
treatment are set forth in detail below. This detailed factual recitation reflects that
Sutton received over seven years of extensive medical treatment for a variety of
ailments including but not limited to Hepatitis C.
On January 7, 2014, Sutton was treated by certified registered nurse
practitioner (“CRNP”) Chris Collins for renewal of medications, including
Allopurinol, Naproxen, and Vitamin D ointment. (Id. ¶ 7).
On February 21, 2014, CRNP Nelson Iannuzzi treated Sutton regarding
complaints about his orthopedic boots. (Id. ¶ 7). Thereafter, on March 3, 2014,
Sutton was seen by CRNP Iannuzzi for a follow-up regarding his boots, and
otherwise had no medical issues. (Id. ¶ 9). On March 14, 2014, at SCI-Mahanoy,
Sutton was seen by CRNP Collins. (Id. ¶ 10). At that time, he requested gel insoles
for his shoes and complained of sinus congestion. (Id. ¶ 11). CRNP Collins
examined Sutton and prescribed a nasal spray and ordered a new pair of gel
insoles. (Id. ¶ 10). On March 31, 2014, Sutton received his antihistamine
prescription and gel insoles. (Id. ¶ 11).
4
On April 23, 2014, Sutton was transferred to SCI-Frackville. (Id. ¶ 13). On
May 5, 2014, Dr. Adrian Harewood treated Sutton for complaints of nasal stiffness,
prescribed an antihistamine, and ordered that Sutton be seen in the foot clinic. (Id.
¶ 14).
On May 15, 2014, Sutton was evaluated in the Hepatitis C Clinic. (Id. ¶ 15).
Upon presentation, he did not have any complaints. (Id.) With respect to his
Hepatitis C, his August 20, 2013 lab results revealed that his white blood count
(“WBC”) was 3.65, hemoglobin was 14.5, hematocrit (“HCT”) count was 50.1,
absolute neutrophil count (“ANC”) was 1.12, platelet level was 16, bilirubin was 0.4,
AST was 48, alkaline phosphate level was 57, BUN/CR count was 11/1.00, and his
viral load was recorded as 5,175,830. (Id.) Also on May 15, 2014, Dr. Harewood
ordered Sutton to have a comprehensive metabolic pane (“CMP”) and complete
blood work (“CBC”) performed every four (4) months and a prothrombin time test
with an international normalized ratio (“PT/INR”) performed every twelve (12)
months beginning in April of 2015. (Id. ¶ 16). He also ordered testing for Hepatitis
A and HIV testing. (Id.)
On May 16, 2014, Sutton was seen by Dr. Harewood for complaints of right
shoulder numbness. (Id. ¶ 17). There was no radiation or weakness. (Id.) Dr.
Harewood’s impression was shoulder paresthesia and he instructed Sutton to alter
his sleeping position at night and directed him to be return for follow-up care as
needed. (Id.)
5
On June 3, 2014, lab results revealed that Sutton tested positive for Hepatitis
A antibodies, Hepatitis B Core antibodies, and Hepatitis C antibodies. (Id. ¶ 18)
On June 10, 2014, Sutton was seen by Dr. Harewood for complains of right
shoulder pain and numbness. (Id. ¶ 19). Dr. Harewood’s assessment was shoulder
pain likely due to arthritis. (Id.) He instructed Sutton to continue using his
Naproxen and ordered an X-ray of Sutton’s right shoulder. (Id.) On June 13, 2014,
the X-ray of Sutton’s right shoulder was performed which revealed mild
degenerative joint disease of the right shoulder with no visible fractures or
dislocations. (Id. ¶ 20). Dr. Harewood also ordered that Sutton’s orthotics be
reissued. (Id. ¶ 21).
On June 17, 2014, Sutton reviewed his medical records. (Id. ¶ 22).
On June 20, 2014, Dr. Harewood treated Sutton for complaints of a runny
nose. (Id. ¶ 23). He instructed Sutton to purchase nasal spray from the commissary
and to return to medical as needed. (Id.)
On July 2, 2014, Sutton was a no show for education on diabetes with
nursing. (Id. ¶ 24).
On July 11, 2014, Sutton was advised that his HIV results were negative. (Id.
¶ 25).
Sutton failed to show for his requested records review appointment on
August 20, 2014. (Id. ¶ 26). However, he subsequently reviewed his records on
September 4, 2014. (Id.)
6
On September 19, 2014, Dr. Pandya directed that Sutton be given two (2)
pairs of orthopedic insoles for the year and a pair of orthopedic shoes for the new
soles. (Id. ¶ 27).
On October 7, 2014, Sutton had lab work drawn which indicated that he had
an absolute neutrophil count of 1.25, a MPV count of 11.2, a neutrophils count of
29.4, and a lymphocyte count of 61.1. (Id. ¶ 28).
On November 23, 2014, Sutton received his orthopedic shoes from Dr.
Pandya. (Id. ¶ 29). Dr. Pandya also clipped his nails and entered an order that
Sutton have his nails trimmed every three (3) months. (Id.)
Sutton reviewed his medical records on December 4, 2014. (Id. ¶ 30).
On January 7, 2015, CRNP Iannuzzi trimmed Sutton’s nails at the foot clinic.
(Id. ¶ 31).
On March 21, 2015, Sutton was seen by nurse Wilson in triage for complaints
of sciatic pain. (Id. ¶ 32). It was noted that Sutton walked to medical without
difficulty. (Id.) He reported that he had pain in his thigh and down his leg. (Id.)
Sutton was assessed for alteration in comfort, given an ice pack and Tylenol, and
referred to sick call. (Id.)
On March 23, 2015, Dr. Pandya saw Sutton on sick call for ongoing sciatic
pain. (Id. ¶ 33). Dr. Pandya examined Sutton and instructed him to exercise,
massage the affected areas during showers, prescribed Vitamin D, and scheduled
an appointment with the foot clinic. (Id.)
7
On April 1, 2015, Sutton was treated by CRNP Iannuzzi at the foot clinic. (Id.
¶ 34). During the appointment, his nails were trimmed. (Id.) CRNP Iannuzzi
discontinued Sutton’s foot clinic scheduled for every three (3) months and noted
that Sutton would place a request when his nails needed to be trimmed. (Id.)
On April 2, 2015, CRNP Iannuzzi conducted a chart review to check Sutton’s
overall care orders. (Id. ¶ 35). He noted that Sutton’s last optometry appointment
was in 2011; therefore, he made an optometry referral. (Id.)
Sutton had lab work done on April 7, 2015, which revealed that he had a
neutrophil count of 34.9, lymphocyte level of 54, and a MPV level of 11.3. (Id. ¶ 36).
On May 14, 2015, Dr. Pandya evaluated Sutton at the Hepatitis C Chronic
Clinic and noted that Sutton’s PT/INR was 1.02/10.7, his AST level was 23, and his
ALT level was 17. (Id. ¶ 37). It was also noted that he was at his goal with respect to
his Hepatitis C. (Id.) Also on May 14, 2015, nursing met with Sutton to educate him
on the occult blood test for stool samples and provided him the specimen cards to
submit his stool sample. (Id. ¶ 38). Thereafter, Sutton refused rectal and genital
exams and hemoccult testing to be performed by Dr. Pandya. (Id.) On May 20,
2015, Sutton submitted his stool samples for his occult blood tests. (Id.)
On May 15, 2015, Sutton received a Hepatitis C Screening and Evaluation.
(Id. ¶ 39). It was noted that he previously tested positive for Hepatitis A antibodies
on June 3, 2014. (Id.) Sutton’s August 20, 2013 lab results were listed as follows:
BUN: 111, Creatinine: 1.00, Alkaline Phosphate: 57, ALT: 45, AST 48, Bilirubin: 0.4,
and HCV viral load: 26,914,318. (Id. ¶ 39). It was also noted that he previously
8
refused treatment on February 12, 2011. (Id.) Thereafter, Sutton executed a
“Release from Responsibility for Medical Treatment” confirming that he refused
Hepatitis C treatment on May 15, 2015. (Id.).
Following Sutton’s May 14, 2015 physical examination, Dr. Pandya completed
a Physician’s Order form, indicating that Sutton wore glasses. (Id. ¶ 40). He also
completed a Chronic Clinic Physician’s Orders form directing Sutton to be
scheduled for CMP and CBC panels and a PT/INR lab. (Id.) On June 11, 2015,
Sutton received new glasses. (Id. ¶ 41).
On August 26, 2015, Sutton was a no show at the foot clinic. (Id. ¶ 42).
On September 8, 2015, Sutton was sent to the emergency room at an outside
hospital after he suffered a laceration to his left upper lip from an altercation with
another inmate. (Id. ¶ 43). Nurse Kathleen Shorts noted that he returned to the
prison the same day and had two dissolvable sutures. (Id.) Sutton complained of
pain, and the nurse noted his vitals and reviewed the hospital’s wound care
instructions with him. (Id.) He was put on sick call for the following day. (Id.)
On September 9, 2015, CRNP Iannuzzi treated Sutton on sick call noting he
said: “I’m okay, I didn’t ask for sick call, I don’t need sick call.” (Id. ¶ 43). CRNP
Iannuzzi observed that Sutton had no significant swelling or bleeding, a small
laceration on his left upper eyelid, patchy ecchymosis, and that he deferred sick call
and was seen at his RHU cell door. (Id.)
On September 15, 2015, Dr. Pandya treated Sutton for complaints of a
headache and dizziness when he shakes his head. (Id. ¶ 45). Dr. Pandya assessed
9
him for a post H1 headache and mild vertigo and offered meclizine. (Id.) Sutton
expressed that he wanted to make lifestyle changes, including changes to his diet.
(Id.) Dr. Pandya educated Sutton on lifestyle changes and instructed him to return
in one (1) month. (Id.)
On October 4, 2015, Sutton presented to medical with complaints of vomiting
due to food. (Id. ¶ 46). Upon examination, his vitals were normal, he denied
additional symptoms, and he was advised to return if the symptoms worsened. (Id.)
Sutton had a lab work taken on October 13, 2015, which revealed that his
absolute neutrophil count was 1.21, his neutrophil count was 27.9, lymphocyte count
was 53.8, and his alkaline phosphate level was 51. (Id. ¶ 47). Sutton reviewed his
medical records on October 13, 2015. (Id. ¶ 48).
On October 16, 2015, Dr. Pandya treated Sutton for foot pain, examined him,
ordered uric acid testing for gout, and prescribed analgesics. (Id. ¶ 49).
On October 28, 2015, CRNP Iannuzzi clipped Sutton’s nails at the foot clinic.
(Id. ¶ 50). Also on October 28, 2015, Dr. Pandya treated Sutton for issues with his
orthotic shoes. (Id. ¶ 51). Upon examination, Dr. Pandya found that Sutton’s shoes
had minimal separation, which was usual wear-and-tear. (Id.) Dr. Pandya
subsequently assessed Sutton for plantar fasciitis, moderate degenerative joint
disease of the first metatarsal bone, backache, and a history of gout. (Id.) The plan
was to continue his current orthotic shoes. (Id.)
On November 2, 2015, Dr. Pandya conducted a chart review to review
Sutton’s history involving gout and orthotics. (Id. ¶ 52).
10
On November 9, 2015, a nurse noted receipt of Sutton’s shoes for repair. (Id.
¶ 53).
On November 20, 2015, Sutton presented to Dr. Pandya with complaints of
needing a bottom bunk because of pain while exiting the top bunk. (Id. ¶ 54). Dr.
Pandya issued Sutton a medical restriction to bottom bunk status for approximately
one (1) year, noting he had a diagnosis of plantar fasciitis. (Id.)
On March 9, 2016, CRNP Iannuzzi trimmed Sutton’s nails without incident at
the foot clinic. (Id. ¶ 55).
On April 12, 2016, Sutton had lab work done and was positive for HCV RNA
Qual, had a HCV RNA, Quantitative count of 3,675,487, and a LOG HCV of 6.57. (Id.
¶ 56).
On April 14, 2016, Sutton was seen by a nurse to have the screws in his
glasses tightened. (Id. ¶ 57).
Sutton reviewed his medical records on April 20, 2016. (Id. ¶ 58).
On May 5, 2016, Dr. Pandya treated Sutton for a routine physical and for
Hepatitis C Chronic Care Clinic. (Id. ¶ 59). Dr. Pandya noted that Sutton was
previously tested for Hepatitis A and B. (Id.) He also noted that April 12, 2016 lab
work revelated that Sutton’s bilirubin count was greater than 1, his Albumin count
was 4.3, his MELD score was 4, and he had a viral load of 3,675,487. (Id.) Sutton’s
Hepatitis C was stable, he was at his goal, and his next Hepatitis C clinic would
occur in twelve (12) months. (Id.) Following Sutton’s May 5, 2016 physical
examination, Dr. Pandya ordered that Sutton be scheduled for CMP and CBC labs
11
every six (6) months and a PT/INR lab every twelve (12) months. (Id. ¶ 60). Both
sets of labs were ordered to assess Sutton’s liver condition. (Id.) Dr. Pandya
further instructed that Sutton be scheduled for a follow-up appointment in twelve
(12) months and ordered him a pair of eyeglasses. (Id.)
On May 8, 2016, nursing provided Sutton with the materials for his routine
occult blood stool testing and explained how to obtain and return the specimen to
medical. (Id. ¶ 61).
On June 2, 2016, CRNP Iannuzzi trimmed Sutton’s toenails at the foot clinic.
(Id. ¶ 62).
On August 31, 2016, Sutton was a no show for sick call and reported that he
did not require any treatment. (Id. ¶ 63).
On September 14, 2016, Sutton’s nails were trimmed at the foot clinic. (Id. ¶
64).
On September 21, 2016, lab work indicated that Sutton’s alkaline phosphate
level was 47 and his glucose level was 125. (Id. ¶ 65).
On October 27, 2016, Sutton created an individual recovery plan (“IRP”) with
psychology which provided that his goal was to gain a clear understanding of how
to function and deal with the reality of life and stay out of a downward mental state.
(Id. ¶ 66). Sutton identified several areas of concern, including substance use and
abuse. (Id.)
Sutton was a no show for the foot clinic on November 9, 2016. (Id. ¶ 67).
12
On November 21, 2016, Dr. Pandya treated Sutton and determined that his
shoes were minimally worn out and entered an order for new orthotic shoes. (Id. ¶
68).
On December 9, 2016, CRNP Iannuzzi treated Sutton for complaints of
occasional low back pain. (Id. ¶ 69). Sutton had no other symptoms or complaints.
(Id.)
Sutton reviewed his medical records on December 20, 2016. (Id. ¶ 70).
On December 28, 2016, nurse Shelbi treated Sutton to discuss his Hepatitis C.
(Id. ¶ 71). Sutton asked if he had fibrosis or cirrhosis. (Id.) He explained that he
recently told his family that he was diagnosed with Hepatitis C and his family had
many questions. (Id.) Nurse Shelbi explained that he could not infect another
person by hugging or kissing them, but he should cover open lesions with a Band-
Aid. (Id.) She also advised Sutton that the central office determined who were
candidates for treatment. (Id.) Sutton stated that he understood, and he also stated
that he recalled refusing treatment for his Hepatitis C treatment because a lot of
people reported sickness during treatment. (Id.) Nurse Shelbi instructed Sutton to
return for treatment if he had any additional questions and she would schedule him
for another medical conference. (Id.)
On December 29, 2016, Sutton reported to Dr. Pandya that the treading on
his shoes was worn out and that he fractured his fifth metatarsal bone in the past.
(Id. ¶ 72). Dr. Pandya reviewed Sutton’s 2013 X-ray which showed that Sutton had
degenerative joint disease in the first metatarsal bones on his right and left feet.
13
(Id.) Dr. Pandya also noted that Sutton had Timberland boots. (Id.) He assessed
Sutton for plantar fasciitis, noted that the insole in his shoe was worn, and ordered
diabetic shoes, lab work, and a follow-up visit. (Id.)
On January 4, 2017, CRNP Iannuzzi cut Sutton’s toenails in the foot clinic.
(Id. ¶ 73).
On January 18, 2017, Sutton reviewed his medical records pertaining to
consultations and feet issues. (Id. ¶ 74).
On January 24, 2017, lab work indicated that Sutton’s CMP and hemoglobin
AIC panels were normal. (Id. ¶ 75).
On January 31, 2017, Dr. Pandya treated Sutton for complaints regarding his
feet and ordered a trial pair of diabetic shoes. (Id. ¶ 76). On February 15, 2017, Dr.
Pandya treated Sutton and noted that he refused to sign the form accepting his
diabetic shoes. (Id. ¶ 77). Sutton stated that he disagreed with using diabetic shoes
because they did not have arch support and that signing the form would suggest
that he agreed with the recommendation. (Id.) Dr. Pandya also discussed Sutton’s
blood work related to gout and recommended that he take an increased dose of
anti gout medication. (Id.) Dr. Pandya gave Sutton the diabetic shoes, even though
he would not sign the form to receive them. (Id.)
On February 28, 2017, Sutton was a no show for sick call and, instead, went to
the yard. (Id. ¶ 78).
14
On March 1, 2017, lab work revealed that Sutton’s albumin level was 4.5, total
bilirubin was 0.7, creatinine level was 0.98, SGOT/AST level was 24, SCPT/ALT was
17, and his INR was 1.02. (Id. ¶ 79).
On March 7, 2017, Sutton was a no show for sick call with CRNP Iannuzzi.
(Id. ¶ 80).
On March 10, 2017, CRNP Iannuzzi treated Sutton for complaints of
intermittent back pain and intermittent pain on the bottom of his feet
approximately once a week. (Id. ¶ 81). CRNP Iannuzzi examined Sutton and noted
degenerative joint disease and osteoarthritis. (Id.) He gave Sutton a handout
illustrating stretches for his low back pain and educated him on stretching. (Id.)
Sutton’s blood pressure was 140/90 and CRNP Iannuzzi wanted it checked again
later that day. (Id.)
Sutton reviewed his medical records on March 22, 2017. (Id. ¶ 82).
On April 26, 2017, CRNP Iannuzzi clipped Sutton’s nails at the foot clinic.
(Id. ¶ 83).
Dr. Pandya treated Sutton in the Hepatitis C Chronic Care Clinic on May 4,
2017. (Id. ¶ 84). Dr. Pandya assessed Sutton for Hepatitis C, and noted he was
hyperuricemic and had degenerative joint disease in his ankle, hip, and shoulder.
(Id.) Dr. Pandya prescribed a multivitamin, exercises to treat the degenerative joint
disease, and Naprosyn. (Id.) He noted that Sutton wore the diabetic shoes, but
stated they hurt his feet and that he needed arch support. (Id.) Dr. Pandya ordered
lab work and scheduled Sutton for an annual preventative care screening, a
15
Hepatitis C Chronic Care Clinic, lipid profiles every five (5) years, hemoglobin AlC
every three (3) years, and hemoccult testing. (Id. ¶ 85). Dr. Pandya screened Sutton
for Hepatitis B and C and HIV, and recorded that Sutton received several
immunizations, including one dose of the tetanus, diphtheria & acellular pertussis
(“Tdap”) vaccine, the flu vaccine, a second dose of the Hepatitis A vaccine, and a
third dose of the Hepatitis B vaccine. (Id.)
On May 15, 2017, Sutton was seen by psychology. (Id. ¶ 86). Sutton denied
being suicidal, stated he was cooperative but then refused to be seen. (Id.)
On June 7, 2017, Sutton was seen by psychology after receiving a misconduct.
(Id. ¶ 87). An individual recovery plan was created with goals to have a better
outlook, work on his depression, increase his medical compliance, and recognize
what he cannot control. (Id.)
On July 12, 2017, Sutton was seen by CRNP Iannuzzi at the foot clinic with
complaints that his shoes may be too big. (Id. ¶ 88). CRNP Iannuzzi assessed him
for thick nails and a shoe fit and clipped his nails. (Id.)
On October 9, 2017, Dr. Pandya treated Sutton for a rash on his left hand, he
noted a lesion at the 4th web left hand, and his assessment was eczema. (Id. ¶ 89).
Dr. Pandya prescribed an antifungal and planned to reevaluate Sutton the
following month during chronic care clinic. (Id.)
On October 27, 2017, CRNP Iannuzzi treated Sutton for contact dermatitis,
tinea cruris, and overworking. (Id. ¶ 90).
On November 1, 2017, Sutton was a no show at the foot clinic. (Id. ¶ 91).
16
On November 2, 2017, Dr. Pandya treated Sutton at the Hepatitis C Chronic
Care Clinic and assessed Sutton for Hepatitis C and a small pustule on his leg. (Id.
¶ 92). As of September 27, 2017, Sutton’s APRI Score was 0.385, MELD score was 7,
CTP score was 5, and his viral load was 3,675,487. (Id.) Dr. Pandya prescribed
clindamycin for Sutton’s leg and recommended follow-up care. (Id.) He also
ordered several panels and clinical testing for Sutton before the March 2018
Hepatitis C Chronic Care Clinic. (Id.) Dr. Pandya instructed Sutton to return to
Chronic Care Clinic for his liver FO-F2 every six (6) months and to present to the
MD Line on November 9, 2017. (Id.)
On November 15, 2017, Dr. Pandya treated Sutton and noted that the thrush
lesions dried up. (Id. ¶ 94). His assessment was multiple folliculitis—improved, and
eczema. (Id.) Dr. Pandya prescribed a cream and noted that he would be seen
again at the chronic care clinic. (Id.)
On November 22, 2017, Sutton worked with psychology to create an
individual recovery plan to work with his depression and agitation. (Id. ¶ 95).
Sutton identified the following as areas of concern: anxiety/panic, depressed
mood/sadness, substances use/abuse, withdrawn/reclusive, negative self-talk/low
self-esteem, and his incarceration. (Id.) The plan was for Sutton to be seen by
psychology monthly, or to be seen on an as needed basis. (Id.)
On November 24, 2017, Sutton was seen by Dr. Pandya on the MD Line. (Id.
¶ 96). Sutton reported that his leg and thigh had healed, but he had eczema on his
right hand. (Id.) Dr. Pandya educated Sutton on his condition, prescribed an
17
antibiotic ointment and a cream, and noted that he would follow-up in a few weeks.
(Id.)
On December 4, 2017, CRNP Iannuzzi treated Sutton for occasional aches
and pains in his feet and lower back, and arthritis. (Id. ¶ 97). Sutton was assessed
for degenerative joint disease and osteoarthritis. (Id.) CRNP Iannuzzi educated
Sutton on Naprosyn and instructed him to purchase it from the commissary in the
future. (Id.)
On February 8, 2018, Dr. Pandya renewed Sutton’s Allopurinol and
Naproxen medications. (Id. ¶ 98).
On February 29, 2018, CRNP Iannuzzi treated Sutton for contact dermatitis
on his hand and ordered a topical medication. (Id. ¶ 99). On March 15, 2018, Sutton
presented to CRNP Iannuzzi with complaints of still having the rash on his left
hand. (Id. ¶ 100). CRNP Iannuzzi noted that Sutton continued to use harsh
cleaners in his cell, despite being ordered to avoid the cleaners. (Id.)
On March 22, 2018, Sutton reviewed his paper and electronic medical
records. (Id. ¶ 101).
On March 26, 2018, Dr. Pandya treated Sutton for eczema, prescribed a
cream, and instructed him to return for a follow-up in two (2) weeks. (Id. ¶ 102).
On March 28, 2018, Sutton’s nails were clipped. (Id. ¶ 103).
On April 10, 2018, Dr. Pandya examined Sutton’s hand and noted that it was
almost improved. (Id. ¶ 104). Dr. Pandya advised Sutton to continue using the
cream and to cover his other hand while sleeping. (Id.)
18
On April 24, 2018, Sutton presented to the treatment line and requested to
see a doctor. (Id. ¶ 105). Sutton was not in any acute distress and was educated on
the sick call process and was encouraged to follow policy. (Id.) In response, Sutton
“threatened litigation.” (Id.)
On April 30, 2018, Sutton presented to Dr. Pandya with complaints of new
spots on his legs and complaints that the rash on his hand was still present. (Id. ¶
106). Sutton inquired as to whether Hepatitis C was the cause of his outbreaks.
(Id.) Dr. Pandya noted that the lesion on Sutton’s hand did not improve and noted
new lesions on his legs. (Id.) Dr. Pandya diagnosed Sutton with eczema, prescribed
ointment, and ordered a follow-up visit in one month. (Id.)
On May 10, 2018, Dr. Pandya treated Sutton at the Hepatitis C Chronic Clinic.
(Id. ¶ 107). It was estimated that Sutton contracted liver disease between the 1970s
and 1980s, it was noted that he was not previously hospitalized for liver disease,
received no previous treatment for Hepatitis C, and had no history of cirrhosis. (Id.)
Sutton’s diagnostic results were recorded as follows: APRI: 0.520, Platelet count of
192k, HCV genotype: na, HCV viral load: 5,175,830, AST:40, ALT: 26, Albumin: 4.3,
Creatinine: 0.92, Elastography: no, and Fibrosure: n/a. (Id.) It was also noted that
Sutton recently underwent an electrocardiogram (“ECG”). (Id.) Dr. Pandya noted
eczema on Sutton’s left hand. (Id.) An examination revealed a normal general
appearance, clear lungs, no abdominal pain, and no neurologic asterixis (“liver
flop”"). (Id.) Sutton’s liver disease diagnosis was F0-F2 or APRI of less than 1.5, his
liver disease control was determined to be good (F0-F2 or APRI<1.5), and his liver
19
disease status remained unchanged. (Id.) Sutton was educated on disease process,
diet and nutrition, medication compliance, exercise, foot care, and symptom
management, and was instructed to return to chronic care clinic in six (6) months.
(Id.) Dr. Pandya also noted that the Allopurinol prescription may have been
triggering Sutton’s skin reaction and planned to stop the prescription for four (4) to
eight (8) weeks. (Id.) Dr. Pandya also educated Sutton on the importance of buying
larger athletic shoes and planned to give him a slightly larger pair of diabetes
mellitus shoes. (Id.)
After Sutton’s May 10, 2018 Hepatitis C Chronic Care Clinic appointment, Dr.
Pandya ordered Sutton a hypertension panel and a uric acid clinical test for August
2018 Hepatitis C Chronic Care Clinic. (Id. ¶ 108). Dr. Pandya also ordered a high
blood pressure examination. (Id.) He referred Sutton to the Custom Shoes Clinic
for durable medical equipment. (Id. ¶ 109).
On May 12, 2018, Sutton presented to the treatment line and provided his
developed stool card which showed that his stool was negative for blood. (Id. ¶ 110).
On June 6, 2018, Sutton presented to the foot clinic for an examination of his
feet and to have his toenails clipped. (Id. ¶ 111). It was noted that Sutton had thick
nails, but no appreciable disease. (Id.)
On October 8, 2018, CRNP Iannuzzi treated Sutton in the foot clinic to have
his feet examined and toenails clipped. (Id. ¶ 112). Also on October 8, 2018, Dr.
Pandya ordered comprehensive and lipid panels and CBC and prothrombin time
20
clinical tests to be drawn for his Hepatitis C Chronic Care Clinic in March 2019. (Id.
¶ 113).
On December 18, 2018, when housed at SCI-Dallas, Sutton was treated by Dr.
Donald DeSantis in chronic care clinic for liver disease and general medicine. (Id. ¶
114). Sutton’s general medicine diagnosis was listed as Hepatitis C, gout, and
plantar fasciitis. (Id.) With respect to Sutton’s HCV, it was noted that he was
diagnosed with the virus in 2005, had no history of hospitalizations for this disease
prior to his incarceration, and no history of previous treatments. (Id.) His
diagnostic results were recorded as follows: APRI score: .363; platelet count: 193
TH/CUMM; HCV RNA, Quant 0 3,675 487 IU/ML; AST/ALT: SCOT/AST-28 U/L;
Albumin: 4.5 G/DL; Creatinine, Serum: 1.12 MG/DL; Fibrosure: n/a; and General
Medicine Diagnostics: lipids, CMP liver profile+. (Id.) Dr. DeSantis’ examination
of Sutton yielded normal results. (Id.) Sutton’s liver disease diagnosis and control
were at stage F0-F2 or APRI<l. 5 and his liver disease status was unchanged. (Id.)
Sutton’s fasciitis and gout were determined to be good and unchanged. (Id.) Dr.
DeSantis ordered an orthotics consult, an increased dose of Naprosyn, a sonogram
of Sutton’s abdomen to check for cirrhosis, and to receive the flu and pneumococcal
vaccines. (Id.) Dr. DeSantis also scheduled a return to the Hepatitis C Chronic
Care Clinic in six (6) months for his annual panels and clinical tests. (Id.)
Additionally, he ordered a liver (hepatic) function panel to be drawn for Sutton’s
next Hepatitis C Chronic Care Clinic and noted that he would reevaluate Sutton on
December 12, 2018. (Id.)
21
On January 30, 2019, Dr. Mary-Joy Monsalud treated Sutton for complaints of
left heel pain and stiffness of both of his feet, and to discuss physical therapy
recommendations for his feet. (Id. ¶ 117). An examination revealed that Sutton had
flat feet and a valgus deformity of his right great toe metatarsophalangeal. (Id.) Dr.
Monsalud recommended a podiatry consult. (Id.)
On February 28, 2019 and March 4, 2019, Sutton was a no show for a sick call.
(Id. ¶¶ 118-119).
On March 20, 2019, Sutton presented to the foot clinic to have his feet
examined and his toenails clipped. (Id. ¶ 120). Assessment of his feet revealed that
he had hyperkeratotic nails. (Id.) CRNP Iannuzzi educated Sutton on his condition
and provided foot care. (Id.)
On April 3, 2019, Sutton was a no show for a sick call. (Id. ¶ 121).
On April 12, 2019, Sutton presented to Dr. Monsalud for a follow-up on his
podiatry consult. (Id. ¶ 122). Sutton reported that he received injections in the back
and bottom of his heels, was given an Air Cast heel splint, and prescribed exercise.
(Id.) Upon examination, it was determined that he was wearing his heel splint and
ambulating without difficulty. (Id.) Dr. Monsalud explained that the podiatrist
ordered him a thick-heeled shoe with a wedge insert, and she assured him that the
shoes would be ordered. (Id.) She also demonstrated exercises and instructed
Sutton to follow-up on an as needed basis. (Id.)
On April 17, 2019, Sutton was a no show for sick call. (Id. ¶ 123).
22
On April 26, 2019, Sutton presented to a physician’s assistant with complaints
that he smoked one-half pack of cigarettes per day for the past forty (40) years and
wished to quit smoking. (Id. ¶ 124).
On May 17, 2019, Sutton received an annual tuberculosis test. (Id. ¶ 125).
On June 6, 2019, Sutton presented to Chronic Care Clinic for liver disease.
(Id. ¶ 126). It was again noted that Sutton contracted the disease in 2007, he was
never hospitalized for liver disease, he had a history of tattoos, no history of
treatment for Hepatitis C, and no history of cirrhosis. (Id.) Sutton reported that he
experienced abdominal pain and fatigue daily. (Id.) His lab and clinical test results
showed that he had an APRI score of .2433, a platelet count of 237, no HCV
genotype, a HCV viral load of 3,675,487, an AST level of 23, an ALT level of 14, an
albumin level of 4.5, and a creatinine level of 1.09. (Id.) Sutton’s liver disease
diagnosis was F0-F2 or APRI of less than 1.5, his liver disease control was
determined to be good (F0-F2 or APRI<1.5); and his liver disease status remained
unchanged. (Id.) The plan was to educate Sutton on the disease process, diet and
nutrition, exercise, and symptom management. (Id.) Dr. Monsalud also requested
to check his blood pressure in five (5) weeks and ordered bloodwork. (Id. ¶¶ 126-
127).
On June 24, 2019, Sutton was a no show for a sick call. (Id. ¶ 128).
On June 26, 2019, Sutton was issued a pair of sneakers and arch supports,
and a pair of metatarsal bars to assist with his foot pain. (Id. ¶ 129).
23
On June 28, 2019, Sutton presented to CRNP Iannuzzi with complaints of
intermittent pain in his foot for four (4) to five (5) months. (Id. ¶ 130). Upon
assessment, it was determined that Sutton was obese and had degenerative joint
disease and plantar fasciitis that was well managed with medicine. (Id.) It was
determined that Sutton’s plantar fasciitis would be treated with non-steroidal anti-
inflammatory drugs, and he would follow-up with the foot clinic. (Id.) On July 16,
2019, a physician’s assistant treated Sutton in the foot clinic for long mitotic
toenails. (Id. ¶ 131).
On September 27, 2019, a physician’s assistant treated Sutton for chronic left
foot and ankle pain and hand dermatitis. (Id. ¶ 132). The physician’s assistant
ordered padded insoles and a cream. (Id.)
On November 8, 2019, Sutton was treated for an ongoing headache after
being punched in the head in October of 2019. (Id. ¶ 133). He was examined and
instructed to return on an as needed basis or if his symptoms increased and was
added to Chronic Clinic for his hypertension. (Id.)
On November 12, 2019, Sutton was a no show for a medical appointment. (Id.
¶ 134).
On November 20, 2019, it was noted that Sutton was unable to attend his
November 20, 2019 Chronic Care appointment. (Id. ¶ 135).
On November 27, 2019, Sutton presented to his Hypertension and Liver
Disease Chronic Care Clinics. (Id. ¶ 136). The following information was noted:
APRI: 0.321; platelet count: 192; HCV viral load: 33,675,487 IU/ML; AST: 28; ALT: 22
24
albumin: 4.1; and creatinine: 1.18. (Id.) Dr. Monsalud scheduled Sutton for a
Hepatitis C lab panel for his April 2020 Chronic Care Clinic visit. (Id.)
On December 17, 2019, Sutton failed to present to the foot clinic for an
examination and care. (Id. ¶ 137).
On January 13, 2020, Sutton was assessed for interval improvement of his
plantar fasciitis and a mild knee strain. (Id. ¶ 138). Sutton was advised to rest, use
an ice pack on an as needed basis, and place a sick call or use triage if the symptoms
got worse. (Id.)
On January 16, 2020, Sutton presented to the foot clinic to have his toenails
clipped. (Id. ¶ 139).
On February 7, 2020, Sutton was treated for complaints of intermittent knee
pain for more than five (5) years that was better controlled when he had an orthotic
sole. (Id. ¶ 140). He also reported that he mostly experiences pain with running and
is fine when walking. (Id.) It was noted that Sutton was overweight, had
degenerative joint disease, and an ankle sprain/strain. (Id.) He was advised to
stretch and return for follow-up care. (Id.)
On February 17, 2020, Dr. Monsalud treated Sutton for complaints that his
hard arch supports and ankle supports were taken away. (Id. ¶ 141). Dr. Monsalud
noted that Sutton had plantar fasciitis, severe bunions, valgus deformity/laxity of
his left ankle, and flat feet. (Id.) Dr. Monsalud gave Sutton ankle support,
metatarsal pads, and a hard heel cup with a foam overlay for a period of six (6)
25
months. (Id.) Dr. Monsalud also scheduled Sutton for a routine test of his right
knee. (Id.)
On February 18, 2020, CRNP Iannuzzi assessed Sutton for plantar fasciitis,
possible tendinitis, and complex musculoskeletal foot complaints for more than ten
(10) years. (Id. ¶ 142). Sutton complained that he was unable to use his right
plantar pad because it was not helping his symptoms and that he needed a pad for
each shoe so that he could walk normally. (Id.) CRNP Iannuzzi cut the pads into
two and Sutton reported that this temporary solution helped alleviate his
symptoms. (Id.)
On February 25, 2020, Sutton was assessed for mild to moderate pain in his
right knee and underwent an X-ray of his right knee. (Id. ¶ 143).
On March 12, 2020, Dr. Monsalud met with Sutton to discuss starting
treatment for his Hepatitis C infection. (Id. ¶ 144). Sutton reported that he had
occasional abdominal pain. (Id.). Dr. Monsalud informed Sutton that his pain
would resolve if his HCV was causing it. (Id.) She also informed Sutton that the
PUGH score and Fibrosure tests are no longer used because they are now treating
everyone with any viral load. (Id.) Dr. Monsalud prescribed Zepatier, informed him
of the side effects of the medication, and emphasized the need for 100% compliance
to prevent development of resistance. (Id.)
On March 26, 2020, CRNP Iannuzzi met Sutton at his cell to treat him for a
sick call. (Id. ¶ 145). However, Sutton denied placing a sick call, reported that he
received his capsaicin, he was asymptomatic, and he continues to eat and stay well
26
hydrated. (Id.) CRNP Iannuzzi noted that Sutton did not appear to be in acute
distress, his medication for his musculoskeletal complaints was well managed, and
he was asymptomatic at the time of the visit. (Id.)
On May 19, 2020, Sutton requested renewal of his capsicum cream, which
was renewed. (Id. ¶ 146).
On June 26, 2020, Sutton requested his arthritis medication. (Id. ¶ 147).
CRNP Iannuzzi assessed mild degenerative joint disease, instructed Sutton to do
stretches, and return to for follow-up care. (Id.)
On June 29, 2020, Sutton was approved for an inter-system transfer for
COVID-19 testing. (Id. ¶ 148).
On July 15, 2020, Sutton presented to CRNP DeBoer for sick call with
complained of pain in his abdomen since arriving at SCI-Dallas. (Id. ¶ 149). Sutton
reported that he was prescribed Hepatitis C treatment on March 16, 2020, and that
he was getting a GERD diet. (Id.) Sutton admitted that he purchased food from the
commissary that was not consistent with the special GERD diet. (Id.) Nurse De
Boer informed Sutton that she would resubmit a consult to be remeasured for shoes
and instructed him to return for care on an as needed basis. (Id.)
On August 3, 2020, a physician’s assistant treated Sutton for complaints of
chronic pain in his legs, feet, and ankles. (Id. ¶ 150). It was noted that Sutton had a
valgus deformity of the left ankle which was causing his leg pain. (Id.) It was also
noted that a new orthotic was ordered, but he had not received it. (Id.) A new
27
medication was prescribed, and Sutton was instructed to return for follow-up care.
(Id.)
On August 21, 2020, Sutton was treated by CRNP DeBoer for complaints of a
sore foot, sore ankle, and sore bilateral knees. (Id. ¶ 151). Sutton also reported that
he was taking Mobic with no relief. (Id.) CRNP DeBoer ordered X-rays of Sutton’s
bilateral knees and instructed him to return for care on an as needed basis. (Id.)
On August 27, 2020, Sutton was seen for sick call by CRNP DeBoer,
requesting a GERD diet. (Id. ¶ 155). Sutton denied purchasing commissary items
that were not consistent with his GERD diet. (Id.) CRNP DeBoer noted the results
of his knee X-rays showed advanced osteoarthritis in the right knee with spurring.
(Id.) She arranged for Sutton to receive a right knee open brace, put in a consult
for physical therapy, submitted a request for a GERD diet for six (6) months, and
suggested that Sutton sign up for sick call the following week, and follow-up on an
as needed basis. (Id.)
After Sutton completed the course of Zepatier, laboratory studies were
drawn on September 1, 2020, which revealed no detectable Hepatitis C virus in his
system. (Id. ¶ 153). Sutton was effectively cured of the Hepatitis C virus. (Id.)
On September 9, 2020, Sutton was seen for sick call by a physician’s assistant
and reported that he was waiting to be seen by the foot clinic and podiatry. (Id. ¶
154). The physician’s assistant advised Sutton that the consult was approved for
podiatry, the foot clinics for nail trimming were suspended due to COVID-19
28
precautions, and the Health Services Administrator was trying to schedule an
appointment with podiatry, but the pandemic was complicating scheduling. (Id.)
On September 14, 2020, Dr. Scott Prince reviewed Sutton’s physical therapy
consultation. (Id. ¶ 155). Dr. Prince recommended that Sutton be provided a brace
and noted that Sutton requested arthritis gel for relief. (Id.)
On September 15, 2020, Sutton was seen by CRNP DeBoer for sick call,
inquiring about a knee brace, GERD diet, and requesting a toenail trim. (Id. ¶ 156).
CRNP DeBoer ordered an open left knee sleeve and prescribed capsaicin, and
updated Sutton’s restrictions. (Id.)
On September 24, 2020, Sutton was a no show for sick call. (Id. ¶ 157). On
September 25, 2020, Sutton presented to the infirmary with complaints of chronic,
sharp, and constant sciatica back pain in his lower back right leg. (Id. ¶ 158). An
examination of his back revealed that he had an impaired range of motion and a
presence of pedal pulses. (Id.) Sutton was referred for sick call and was treated by
a physician’s assistant on September 25, 2020. (Id. ¶¶ 158-159). Sutton reported
that he woke up with mild, constant pain in his right buttock region radiating down
his right leg two (2) days prior. (Id. ¶ 159). He requested a medical diet card for his
approved GERD diet. (Id.) It was recommended that Sutton rest, stretch, receive a
Robaxin and Medrol dose pack, continue Mobic, and he was given a diet card until
March 13, 2021. (Id.)
On October 2, 2020, Dr. Bora Sakia treated Sutton for pain in his lower back
and knee. (Id. ¶ 160). Sutton reported that he had lumbar spine surgery more than
29
ten (10) years ago. (Id.) It was noted that Sutton’s knee pain improved with Medrol
and that he was seen by the physical therapist. (Id.) Sutton’s Mobic was increased,
he was to be seen by a physical therapist, undergo a new X-ray of his spine, and be
provided topical pain cream. (Id.) It was also noted that his amlodipine and
Chlorthalidone would be discontinued, he was to start taking dydrochlorothiazide
with a potassium supplement, and he was to receive a Medrol pack. (Id.)
On October 6, 2020, Sutton presented to Dr. Sakia regarding questions about
his blood pressure medications and to report that his blood pressure is stable
without medication, and that he had not taken his hydrochlorothiazide and
supplements. (Id. ¶ 161). Dr. Sakia discontinued his amlodipine, ordered his blood
pressure to be checked on a weekly basis, and instructed him to return on an as
needed basis. (Id.)
On October 22, 2020, Sutton was seen on sick call with complaints that his
capsaicin cream and Mobic were not helping his knee pain. (Id. ¶ 162). Sutton was
assessed for knee pain. (Id.) The physician’s assistant indicated that she would
request renewal of Voltaren, that Sutton would receive orthotic inserts with shoes
on October 23, 2020, and he should return on an as needed basis. (Id.)
On November 18, 2020, Sutton was tested FOR COVID-19 after exhibiting
symptoms. (Id. ¶ 163). He was subsequently admitted to the infirmary and
remained there until his recovery on December 3, 2020. (Id.)
On December 17, 2020, a physician’s assistant referred Sutton to the Eye
Clinic for an examination. (Id. ¶ 164).
30
On January 13, 2021, Dr. Sakia treated Sutton and determined that he had
bilateral plantar aspect of the feet, his hands were excessively dry, and detected no
open sores. (Id. ¶ 165). Dr. Sakia renewed Sutton’s Vitamin E and instructed him
to apply zinc ointment if sores are detected. (Id.) On January 15, 2021, Dr. Sakia
ordered Capsaicin cream. (Id. ¶ 166).
On January 21, 2021, a physician’s assistant assessed Sutton for osteoarthritis
of the bilateral knees. (Id. ¶ 167). The physician’s assistant renewed Sutton’s
Diclofenac gel and Mobic, instructed him to continue resting and stretching, and to
return to care on an as needed basis. (Id.)
On February 24, 2021, Sutton was treated on sick call. (Id. ¶ 168). CRNP De
Boer requested renewal of Sutton’s previously approved GERD diet, renewed his
Mobic prescription, prescribed Zinc Oxide, requested a professional opinion on care
for his feet, and instructed Sutton to follow-up at the foot clinic. (Id.)
On March 2, 2021, Dr. Sakia evaluated Sutton at the Hypertension and
Cardiac and Liver Disease Chronic Care Clinics. (Id. ¶ 169). With respect to
Sutton’s Hepatitis C, it was noted that he contracted liver disease in 2007, was
previously treated with Zepatier in 2020, and had no history cirrhosis or symptoms
of Hepatitis C. (Id.) Sutton’s prior lab results showed that he was positive for
Hepatitis B antibodies and had an APRI score of 0.217, a platelet count of 196
TH/CUMM, an undetected HCV RNA, QUANT viral load, SGOT/AST was 17 U/L,
SGPT/ALT was 8 U/L, albumin count was 4.7 G/DL, and creatinine count of 1.24
MG/DL. (Id.) Sutton’s liver disease diagnosis was F0-F2 or APRI<1.5, liver disease
31
control was “good” (F0-F2 or APRI<1.5), and his liver disease status remained
unchanged. (Id.) He was scheduled to return to the chronic clinics in six (6)
months and was scheduled to have his annual comprehensive and lipid panels and
clinical tests performed in April of 2021. (Id.)
On March 3, 2021, Sutton underwent an eye examination. (Id. ¶ 170). On
March 5, 2021, Dr. Prince approved Sutton for a urinalysis. (Id. ¶ 171). On March 8,
2021, a pair of eyeglasses were ordered for Sutton. (Id. ¶ 172).
On March 10, 2021, Sutton was seen for unimproved dry skin rashes on his
feet and ankles. (Id. ¶ 173). A physician’s assistant issued him a trial of Cetaphil
lotion and instructed him to for follow-up care. (Id.)
On March 29, 2021, Sutton was seen by a physician’s assistant on sick call for
complaints of pain in his feet and toenails. (Id. ¶ 174). The physician’s assistant
noted that Sutton did not have any open wounds and was not diabetic, trimmed his
nails, scheduled him to follow-up with Hypertension Chronic Clinic, ordered that he
receive blood pressure checks every two (2) weeks, and return to care if his blood
pressure is 140/90. (Id.)
On April 1, 2021, Sutton underwent X-rays of his left foot and ankle which
revealed no radiographic evidence of an acute fracture. (Id. ¶ 175).
On April 27, 2021, Dr. Sakia spoke with Sutton regarding his slightly worse
renal function and preventative care. (Id. ¶ 176).
On May 4, 2021, Sutton received the COVID-19 vaccine. (Id. ¶ 177).
32
On May 5, 2021, CRNP DeBoer examined Sutton and determined that he had
eczema on both feet. (Id. ¶ 178). She prescribed Triamcinolone ointment, renewed
the Cetaphil lotion, advised Sutton that Zinc Oxide generally does not cause skin
burns, and advised him that his knee pain may be due to arthritis rather than the
braces. (Id.) Sutton was placed on lower bunk status due to wearing knee braces
for chronic pain, and was placed on several activity and employment restrictions.
(Id. ¶ 179).
On May 12, 2021, Sutton was issued extra-large bilateral knee sleeves with
two (2) lateral straps, eyeglasses, and partial upper dentures. (Id. ¶ 180). CRNP
DeBoer examined Sutton and informed him that his August 2020 X-rays of his
bilateral knees showed moderate-to-severe narrowing in his right knee and
narrowing in his left knee and referred him to Dr. Prince for a possible knee
injection. (Id.) His labs indicated that his Creatinine, Serum count was 1.41
MG/DL. (Id.)
On May 24, 2021, Sutton placed a sick call with complaints of bilateral knee
pain, including “extreme pain” when moving, despite his use of a gel. (Id. ¶ 181).
CRNP DeBoer noted that Sutton was already aware of the results of his August
2020 bilateral knee X-rays and instructed him to follow up with Dr. Prince and on
an as needed basis. (Id.)
On June 11, 2021, Dr. Prince administered a Kenalog 40 injection to Sutton’s
right knee and instructed him to follow-up on a left knee injection on the MD Line
during the week of July 12, 2021. (Id. ¶ 182).
33
On June 16, 2021, a physician’s assistant scheduled Sutton for a routine left
foot and ankle X-ray. (Id. ¶ 183). The physician’s assistant examined Sutton and
found that he was limping due to pain. (Id. ¶ 184). She discontinued his Mobic,
began Tylenol and a topical cream, continued the use of orthotics and instructed
him to return on an as needed basis. (Id.)
On June 18, 2021, Sutton was placed on the roster for medical showers. (Id. ¶
185).
On June 25, 2021, a physician’s assistant ordered that Sutton continue to use
his orthotics and planned to refer him to the MD Line to determine if further
management was necessary. (Id. ¶ 186).
On July 8, 2021, Dr. Scott treated Sutton and agreed to administer an
Kenalog 40 injection in his left knee, he continued Sutton’s acetaminophen,
Voltaren gel, and capsaicin, and advised Sutton that there were not many other
treatment options for his degenerative joint disease. (Id. ¶ 187).
On July 12, 2021, Dr. Sakia evaluated Sutton. (Id. ¶ 188). With respect to his
Hepatitis C, Sutton’s prior lab results revealed that his APRI score was 0.217,
platelet count was 211 TH/CUM, Albumin was 4.5, and his HCV genotype was IA.
(Id.) It was also noted that his September 8, 2020 lab results reveled that his HCV
viral load was not detected. (Id.) Sutton’s liver disease diagnosis was F0-F2 or
APRI<1.5, his liver disease control was determined to be “fair,” which was F3 or
APRI 1.5-2.0, and his liver disease status remained unchanged. (Id.) Sutton was
directed to return to his chronic care clinics in six (6) months and have his annual
34
lipid panel and prothrombin time clinic tests taken in October of 2021. (Id.) Also on
July 12, 2021, a physician’s assistant requested an onsite telemedicine physical
therapy consultation for evaluation of Sutton’s need for a left ankle brace. (Id. ¶
189).
On July 19, 2021, a physician’s assistant treated Sutton for complaints of pain
in his left ankle and request for a nail trim at the foot clinic. (Id. ¶ 187). The
physician’s assistant referred Sutton to the foot clinic and physical therapy for
further evaluation. (Id.)
On July 28, 2021, a physician’s assistant treated Sutton and checked his
vitals, which revealed that his blood pressure was 160/100. (Id. ¶ 191). The
physician’s assistant indicated that Sutton should began taking Lisinopril/HCTZ,
his no weightlifting restriction was discontinued, he was restricted from lifting more
than twenty-five (25) pounds, and informed him that he was scheduled for the foot
clinic. (Id.)
On July 28, 2021, Sutton had a tuberculosis treatment review. (Id. ¶ 192).
In the instant complaint, Sutton alleges that defendant Pandya violated his
Eighth Amendment rights by failing to treat his Hepatitis C for several years, and
that defendant Pandya was negligent for failing to provide adequate treatment for
his Hepatitis C. (Doc. 1). Defendant Pandya moves for summary judgment. (Doc.
35
63). Sutton failed to respond to the motion and the time for responding has now
passed.4 Therefore, the motion is deemed unopposed and ripe for resolution.
II. Legal Standard
Through summary adjudication, the court may dispose of those claims that
do not present a “genuine dispute as to any material fact” and for which a jury trial
would be an empty and unnecessary formality. FED. R. CIV. P. 56(a). The burden of
proof tasks the non-moving party to come forth with “affirmative evidence, beyond
the allegations of the pleadings,” in support of its right to relief. Pappas v. City of
Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). The court is to view the evidence “in the light most
favorable to the non-moving party and draw all reasonable inferences in that party’s
favor.” Thomas v. Cumberland County, 749 F.3d 217, 222 (3d Cir. 2014). This
evidence must be adequate, as a matter of law, to sustain a judgment in favor of the
non-moving party on the claims. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-
57 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89
(1986). Only if this threshold is met may the cause of action proceed. See Pappas,
331 F. Supp. 2d at 315.
4 Sutton was directed to file a brief in opposition to defendant Pandya’s
motion and was admonished that failure to file an opposition brief would result in
defendant Pandya’s motion being deemed unopposed. (Doc. 69) (citing M.D. PA.
LOCAL RULE OF COURT 7.6). (See also Doc. 3, Standing Practice Order in Pro Se
Plaintiff Cases, at 2).
36
III. Discussion
In his motion for summary judgment, defendant Pandya argues that the
record lacks evidence showing that his actions rose to the level of an Eighth
Amendment violation, and the evidence confirms that Sutton failed to file a
certificate of merit for his medical malpractice claim. (Doc. 63). We will address
each argument in turn.
A. Constitutional Claim
For the delay or denial of medical care to rise to an Eighth Amendment
violation, a prisoner must demonstrate: “(1) that defendants were deliberately
indifferent to [his] medical needs and (2) that those needs were serious.” Rouse v.
Plantier, 182 F.3d 192, 197 (3d Cir. 1999). Deliberate indifference requires proof that
the official “knows of and disregards an excessive risk to inmate health or safety.”
Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003) (quoting
Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Deliberate indifference has been
found where a prison official: “(1) knows of a prisoner’s need for medical treatment
but intentionally refuses to provide it; (2) delays necessary medical treatment based
on a nonmedical reason; or (3) prevents a prisoner from receiving needed or
recommended treatment.” Rouse, 182 F.3d at 197. Deference is given to prison
medical authorities in the diagnosis and treatment of patients, and courts “disavow
any attempt to second-guess the propriety or adequacy of a particular course of
treatment. . . (which) remains a question of sound professional judgment.” Inmates
of Allegheny Cnty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (quoting Bowring v.
37
Godwin, 551 F.2d 44, 48 (4th Cir. 1977)). “Allegations of medical malpractice are not
sufficient to establish a Constitutional violation,” nor is “[m]ere disagreement as to
the proper medical treatment.” Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004). A
“failure to provide adequate care . . . [that] was deliberate, and motivated by non-
medical factors” is actionable under the Eighth Amendment, but “inadequate care
[that] was a result of an error in medical judgment” is not. Durmer v. O’Carroll, 991
F.2d 64, 69 (3d Cir. 1993); see also Estelle v. Gamble, 429 U.S. 97, 105-06 (1976).
There is no dispute that Sutton’s Hepatitis C qualifies as a serious medical
condition for purposes of the Eighth Amendment analysis. Moore v. Luffey, 767 F.
App’x 335, 340 (3d Cir. 2019) (nonprecedential) (recognizing Hepatitis C constitutes
a serious medical need). In failing to oppose defendant Pandya’s motion, Sutton
has not advanced any evidence to permit the trier of fact to determine that
defendant Pandya acted with deliberate indifference to his serious medical needs.
While Sutton asserts that defendant Pandya failed to provide medical care
for his Hepatitis C, the record is replete with evidence that he received continual
medical care for this condition. The uncontroverted record evidence establishes
that Sutton was stable, was being monitored and treated, received blood tests and
liver screenings—which indicated that his liver was in good condition, and he was
ultimately cured. (Docs. 65-1, 65-2, 65-3). Specifically, the record before the court
evinces that from May 2017 through November 2019, Sutton had low APRI scores—
ranging from 0.217 to 0.520—and was not a candidate for treatment with DAADs
under the DOC’s Protocols for treating Hepatitis C. (Doc. 64 ¶¶ 84, 92, 107, 114, 126,
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136, 169). During this time when Sutton’s condition did not warrant treatment with
DAADs, he received medical care through the chronic care clinic which included
monitoring, periodic examination, testing, and review of blood test results. (Id. ¶¶
84, 85, 92, 93, 107, 114, 126, 136). Beginning in March 2020, Sutton was approved for
treatment with DAADs and was treated with Zepatier. (Id. ¶ 144; Doc. 65-1 at 102-
03). Sutton’s condition never progressed to cirrhosis. (Doc. 64 ¶¶ 85, 107, 126, 169).
Labwork from September 2020 revealed that HCV was not detected, indicating that
Sutton has been cured. (Id. ¶ 188; Doc. 65-3 at 158-59). On these unconverted facts,
no reasonable jury could conclude that defendant Pandya failed to provide medical
care and treatment for Sutton’s Hepatitis C.
Sutton’s primary complaint is that his treatment should have begun
earlier, based on a declaration from the AASLD that treatment with DAADS is
recommended for all patients with chronic Hepatitis C irrespective of disease
stage. (Doc. 1 at 15, 18-19). This argument implies Sutton’s disagreement with a
particular course of treatment and his own lay opinion regarding the proper course
of treatment for his hepatitis C infection. However, mere disagreement with the
selected course of treatment is not grounds for a medical deliberate indifference
claim. See Thomas v. Dragovich, 142 F. App’x 33, 36 (3d Cir. 2005)
(nonprecedential) (citing Monmouth Cnty. Corr. Institutional Inmates v. Lanzaro,
834 F.2d 326, 346 (3d Cir. 1987)). To the extent that Sutton asserts that defendant
Pandya’s professional judgment was deficient, this also is not enough to rise to the
level of a constitutional violation, and courts will not second guess whether a
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particular course of treatment is adequate or proper. See Parham v. Johnson, 126
F.3d 454, 458 n.7 (3d Cir. 1997) (citing Inmates of Allegheny Cnty. Jail, 612 F.2d at
762).
Sutton further asserts that the delay in treatment caused eczema, depression,
fatigue, and abdominal pain. (Doc. 1 at 21). Beginning in October 2017, Sutton
developed a skin rash on his hand. (Doc. 64 ¶¶ 89, 99, 100, 106, 107, 132). In May
2018, defendant Pandya treated Sutton in the chronic care clinic and noted that the
skin rash was likely caused by his gout medication. (Id. ¶ 107). Additional
documentation provides that Sutton’s contact dermatitis was caused by an irritant.
(Id. ¶ 100). In June 2019 and November 2019, Sutton presented to the chronic care
clinic with reports of abdominal pain and fatigue, which could be symptoms of liver
disease. (Id. ¶¶ 126, 136). Upon assessment, Sutton’s liver disease control was
determined to be adequately controlled (F0-F2 or APRI of less than 1.5), his liver
disease status remained unchanged, and he had no abdominal pain on examination.
(Id.) Thereafter, in March 2020, Sutton began treatment with Zepatier, which was
completed by June 2020. (Id. ¶ 144). Once this treatment regimen was completed,
laboratory studies conducted in September 2020 revealed no detectable Hepatitis C
virus in his system. (Id. ¶ 153). Sutton has not adduced any evidence that his
treatment was delayed for nonmedical reasons or that he suffers from long-term
ailments as a result of any delayed treatment for his Hepatitis C. See Altenbach v.
Ianuzzi, 646 F. App’x 147, 152 (3d Cir. 2016) (nonprecedential) (requiring inmate to
submit “‘verif[ied] medical evidence . . . to establish the detrimental effect of [the]
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delay’ [in medical treatment] as he must do to support a delayed treatment claim”)
(citing Hill v. Dekalb Rg’l Youth Detention Ctr., 40 F.3d 1176, 1188 (11th Cir. 1994)).
In fact, the undisputed evidence confirms that Sutton received extensive medical
treatment which has successfully cured him of his Hepatitis C virus.
The party adverse to summary judgment must raise “more than a mere
scintilla of evidence in its favor” in order to overcome a summary judgment motion
and cannot survive by relying on unsupported assertions, conclusory allegations, or
mere suspicions. Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460 (3d
Cir. 1989). Sutton has wholly failed to meet this burden in that he neglected to
oppose defendant Pandya’s motion for summary judgment. Despite his failure to
oppose the motion, it is clear on the record that Sutton’s medical treatment
commenced immediately upon entering SCI-Frackville, he received various forms
of treatment for his Hepatitis C, and he was carefully monitored by prison medical
staff. Our Court of Appeals has upheld the constitutionality of medical choices
relating to the care and treatment of Hepatitis C, and it has rejected inmate Eighth
Amendment challenges to this type of medical care. See, e.g., Moore, 767 F. App’x
335 (affirming summary judgment on inmate’s Eighth Amendment claim relating to
treatment of Hepatitis C and finding doctor appropriately monitored and treated
inmate in accordance with policy); Lasko v. Watts, 373 F. App’x 196, 203 (3d Cir.
2010) (nonprecedential) (affirming summary judgment on inmate’s Eighth
Amendment claim relating to treatment of Hepatitis C); Hodge v. U.S. Dep’t of
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Justice, 372 F. App’x 264 (3d Cir. 2010) (nonprecedential) (same). Accordingly,
summary judgment in favor of defendant Pandya is appropriate.
B. Medical Malpractice Claim
In Pennsylvania, medical negligence, or medical malpractice, is defined as
“the unwarranted departure from generally accepted standards of medical practice
resulting in injury to a patient, including all liability-producing conduct arising from
the rendition of professional medical services.” Toogood v. Owen J. Rogal, D.D.S.,
P.C., 824 A.2d 1140, 1145 (Pa. 2003) (citing Hodgson v. Bigelow, 7 A.2d 338 (Pa.
1939)). The existence of an injury, by itself, does not prove a doctor’s negligence.
Mitchell v. Shikora, 209 A.3d 307, 315 (Pa. 2019) (citations omitted). Rather, to
establish a cause of action for negligence under Pennsylvania law, a plaintiff must
prove the following elements: (1) a duty or obligation recognized by law; (2) a
breach of that duty; (3) a causal connection between the conduct and the resulting
injury; and (4) actual damages. See Northwestern Mut. Life Ins. Co. v. Babayan,
430 F.3d 121, 139 (3d Cir. 2005) (citing In re TMI, 67 F.3d 1103, 1117 (3d Cir. 1995)).
Pennsylvania Rule of Civil Procedure 1042.3 requires a plaintiff alleging
professional negligence to file a certificate of merit within 60 days of filing the
complaint. PA. R. CIV. P. 1042.3. The certificate must include one of the following:
a written attestation by “an appropriate licensed professional” that there is a
“reasonable probability that the care, skill or knowledge exercised or exhibited” by
the defendant “fell outside acceptable professional standards,” and that this was the
cause of the plaintiff’s injuries; a statement that the claim against the defendant is
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based only on the professional negligence of those for whom the defendant is
responsible; or a statement that expert testimony is unnecessary for the plaintiff’s
claim to proceed. PA. R. CIV. P. 1042.3(a)(1)-(3). Failure to file a certificate of merit
is fatal to a plaintiff’s claim. PA. R. CIV. P. 1042.7. The requirements of Rule 1042.3
are substantive in nature and, therefore, federal courts in Pennsylvania must apply
these prerequisites of Pennsylvania law when assessing the merits of a medical
malpractice claim. See Liggon-Redding v. Estate of Sugarman, 659 F.3d 258, 262-65
(3d Cir. 2011); Iwanejko v. Cohen & Grigsby, P.C., 249 F. App’x 938, 944 (3d Cir.
2007). This requirement applies with equal force to counseled complaints and to
pro se medical malpractice actions brought under state law. See Hodge v. Dep’t of
Justice, 372 F. App’x 264, 267 (3d Cir. 2010) (affirming district court’s dismissal of
medical negligence claim for failure to file a certificate of merit).
The Pennsylvania Supreme Court has noted that “[b]ecause the negligence
of a physician encompasses matters not within the ordinary knowledge and
experience of laypersons[,] a medical malpractice plaintiff must present expert
testimony to establish the applicable standard of care, the deviation from that
standard, causation and the extent of the injury.” Toogood, 824 A.2d at 1145. A
very narrow exception applies “where the matter is so simple or the lack of skill or
care is so obvious as to be within the range of experience and comprehension of
even non-professional persons.” Hightower-Warren v. Silk, 698 A.2d 52, 54 n.1 (Pa.
1997).
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Given the nature of Sutton’s claim, he must present expert testimony to
establish defendant Pandya’s negligence in providing medical care for his Hepatitis
C. Sutton’s claim concerns complex issues relating to the standard of care and
causation, which he simply cannot establish without expert testimony. See
Toogood, 824 A.2d at 1151. This is not a case where a licensed medical
professional’s deviation from the standard of care and that deviation’s causation of
injury are obvious and within the realm of a layperson. See, e.g., Hakeem v.
Salaam, 260 F. App’x 432, 435 (3d Cir. 2008) (“Absent expert opinion that the
[defendant’s] treatment deviated from acceptable medical standards, a reasonable
fact-finder could not conclude that the [defendant] acted negligently.”).
On February 15, 2021, counsel for defendant Pandya mailed Sutton a Notice
of Intent to Dismiss Pursuant to Rule 1042.7. (See Doc. 65-4). On March 23, 2021,
counsel for defendant Pandya mailed Sutton a second copy of the Notice of Intent
to Dismiss Pursuant to Rule 1042.7. (See Doc. 65-5). Sutton’s complaint was filed
on December 2, 2019. On or before January 31, 2020, Sutton was required to file, in
accordance with Pennsylvania Rule 1042.3, a certificate of merit producing expert
testimony to opine that defendant Pandya deviated from the acceptable
professional standard. The record reveals that a certificate of merit was not filed,
and Sutton did seek an enlargement of time in which to do so. Nor did Sutton make
a substantial effort to comply with the rule or provide a reasonable excuse for
failing to do so.
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Sutton’s failure to file a certificate of merit is fatal to his medical negligence
claim and defendant Pandya is entitled to judgment as a matter of law.
IV. Conclusion
We will grant defendant Pandya’s motion (Doc. 63) and enter judgment in his
favor. An appropriate order shall issue.
/S/ CHRISTOPHER C. CONNER
Christopher C. Conner
United States District Judge
Middle District of Pennsylvania
Dated: July 18, 2022