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August 20, 2002


The opinion of the court was delivered by: Irenas, District Judge.


Presently before this Court are Defendants Correctional Medical Services' and Dr. Ben Robinson's motion for summary judgment on Plaintiff Michael Christy's 42 U.S.C. § 1983 claim alleging that Defendants were deliberately indifferent to his serious medical needs in violation of his constitutional rights under the Eighth Amendment. This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331, 1343. For the reasons set forth below, the Court will grant Defendants' motion for summary judgment.


Plaintiff is a prisoner at the South Woods State Prison in Bridgeton, New Jersey.*fn1 Up until January 7, 1999, the date of his transfer to South Woods, Plaintiff was housed at Northern State Prison. (Plaintiffs Compl.)

Plaintiff was hospitalized in July 1994 with a rare combination of hepatitis A, B, and C. (Christy Dep. at 11:7-13, attached as Exh. C to Def.'s Cert. in Supp. of Mot. for Sum. Judg. (hereinafter "Christy Dep").). Plaintiff believes that he contracted hepatitis C in 1985, approximately nine years before he was diagnosed. (Id. at 11:23-12:2.) Plaintiff was diagnosed with depression in the mid-1970's, but was never treated; he also believes he may have been diagnosed with a psychiatric disorder in 1982. (Id. at 29:19-23; 30:1-12.) Plaintiff testified at his deposition that he had used drugs in the past and had, on occasion, experienced drug induced hallucinations. (Id. at 30:23-24.)

Plaintiff brings this claim under 42 U.S.C. § 1983 claiming that Defendants violated his Eighth Amendment rights by ignoring the opinions of specialists, refusing treatment of his hepatitis C and related arthritis and failing to correct a past misdiagnosis and treat him with the proper medication.*fn2 (Compl. at 4.)

In April 1998, while at Northern State, Dr. Trevor Parks advised the Plaintiff that he suffered from rheumatoid arthritis ("RA"). (Christy Dep. at 23:11-24.) Later in July, Dr. Sherree Starrett*fn3 wrote a consultation request for Plaintiff to see a rheumatologist based on the new diagnosis of RA. (Christy Dep. at 38:18-39:12); (CMS Christy 75-76, attached as Exh. B to Def. Mot. for Sum. Judg. (hereinafter "Exh. B").) Dr. Starrett noted that tests revealed Plaintiff had a positive RH factor*fn4 and suggested disease modifying medications, Lodine*fn5 and orthotics to alleviate Plaintiffs symptoms. Id. Dr. William Ryan*fn6 saw Plaintiff and issued a report on August 21, 1998 which noted Plaintiff's medical history, including hepatitis A, B, and C. Dr. Ryan observed that Plaintiff suffered from RA in multiple joints, and made suggestions for prescription pain relief and treatment. (Exh. B at CMS Christy 77-79; Christy Dep. at 39:10-25.) Plaintiff received prescriptions for Lodine in October of 1998 and January of 1999. (Exh. B at CMS Christy 81-84; 88-89.)

In January 1999, Plaintiff was transferred to South Woods State Prison. Pursuant to a contract with the New Jersey Department of Corrections, Defendant CMS provides medical services to inmates at South Woods through its independent contractors. (Gambrell Cert. at ¶ 5.) From the time of Plaintiffs transfer to South Woods until August 3, 2001, Defendant Dr. Ben Robinson was the director of medical services at South Woods. (Robinson Cert. at ¶ 3.) Dr. Robinson evaluated and treated the patient on numerous occasions. (Id.) As Plaintiff had been diagnosed with RA before his arrival at South Woods, Dr. Robinson continued with a course of treatment for RA, including evaluations, medications, consultations, and offers of physical therapy.

Dr. Suresh Kulkarni wrote a consultation request for Plaintiff in April 1999, and noted the RA and a positive RH factor. (Exh. B at CMS Christy 98.) In response to this request, Plaintiff was seen by Dr. Ryan on May 14, 1999. Id. Again, there was a diagnosis of RA and prescriptions given for Lodine and Methotrexate.*fn7

In January 2000, a consultation request to rheumatology was written for Plaintiff by Nurse Practitioner Brian Kidd ("NP Kidd") and Plaintiff was sent to see Dr. N. Tika, a rheumatologist at Robert Wood Johnson University Hospital in New Brunswick, New Jersey. Dr. Tika was the first doctor to diagnose Plaintiff with hepatitis C-related arthritis. While Dr. Tika did not comment one way or the other as to Plaintiffs eligibility for interferon/ribavirin therapy, he did advise Plaintiff that treatment for his hepatitis C would relieve the symptoms of hepatitis C-related arthritis. (Christy Dep. at 28:15-22.) Dr. Tika provided Plaintiff with Naprosyn and recommended that Plaintiff follow up with X-rays and blood work, including liver function tests. (Exh. B at CMS Christy 134-35; Christy Dep. at 28:2-4.) In September 2000, Dr. Tika again noted a diagnosis of RA and hepatitis C-related arthritis. He also prescribed an increase in Plaintiffs Celebrex*fn8 dosage to 200 mg/twice a day. (Exh. B at CMS Christy 163.)

Given the previous diagnosis of RA, Dr. Robinson continued on a course of treatment for RA. He did not interpret Dr. Tika's report to order or recommend a different course of treatment. (Robinson Cert. at ¶¶ 6-7.) Dr. Robinson did switch Plaintiff from Lodine to Celebrex.*fn9 (Christy Dep. at 57:1-10.) The Celebrex did not initially alleviate Plaintiffs pain and discomfort, but he testified that he felt better after thirty days. (Christy Dep. at 58:7-12.) Dr. Robinson found Dr. Tika's orders to be consistent with Plaintiffs previous diagnosis of RA and Plaintiffs course of treatment at that time. (Robinson Cert. at ¶¶ 6-7.)

The record indicates that Plaintiff signed for sixty tabs of Celebrex, 200 mg each on May 14, June 14, and July 14. (Exh B at CMS Christy 197, 200, 210.) Defendants also contend that Plaintiff may have at most gone a few days without Celebrex, because he had his sixty tablets from July 14.

In July 2001, a consultation request was written and Plaintiff was seen by Dr. Gordon.*fn10 Dr. Gordon opined that Plaintiff suffered from either RA or chronic hepatitis C arthralgia/arthritis. (Christy Dep. at 61:17-62:1; Plaintiffs Br. Sum. Judg. at Exh. 1.) Plaintiff was led to believe Dr. Gordon ordered a regimen of blood work and informed the medical staff at the prison that he was suffering from a hepatitis C-related condition.*fn11 (Christy Dep. at 61:5; Compl. at 6.) Dr. Gordon's report did not advise any significant changes in Plaintiffs course of treatment.

After his consultation with Dr. Gordon, Plaintiff returned to the prison medical station and informed Nurse Practitioner Fran Green ("NP Fran Green") that he was diagnosed with hepatitis C-related arthritis. Plaintiff contends that NP Green then denied him his medication. (Christy Dep. at 85; Pl.'s St. of Facts at 14.) Defendants do not deny that Plaintiffs prescription for Celebrex was put on hold and subsequently reordered on August 9 and reinstated on August 22. During the period that Plaintiffs medication was suspended, he suffered severe swelling and intense pain in his hands, feet and knees, and also suffered anxiety attacks with depression and was placed in one to one and group counseling. (Pl.'s Opp. Br. at 1, 5-6.) Plaintiff notes that "out of sympathy," on August 18th and 19th Nurse Dawn Green and Nurse Alex provided him with some Celebrex and ice. (Christy Dep. at 85.)

Plaintiff contends that NP Green stopped treatment with Celebrex because Plaintiff continuously inquired about his status and questioned the accuracy of his diagnosis. (Pl. Opp. Br. at 5-6.) Plaintiff also argues that NP Green and Dr. Robinson, after treating the Plaintiff for such a long period of time, knew or should have known that any discontinuation of his medication would result in severe pain and suffering.

Defendants do not deny that Plaintiffs prescription was put on hold. However, NP Fran Green contends that she placed the prescription on "hold" after hearing from Plaintiff that Dr. Gordon found he did not have RA because she thought it best to review Dr. Gordon's report to ensure that Celebrex was still appropriate. After reviewing Dr. Gordon's report on August 9, NP Fran Green put in a reorder. NP Fran Green found that Dr. Gordon's report did not prescribe any significant changes in Plaintiffs course of treatment and indicated that Celebrex would remain as Plaintiffs primary arthritis medicine. Plaintiffs prescription for Celebrex was briefly delayed pending approval by NP Fran Green's supervisor, Dr. Abu Ashan.*fn12 (Def. Reply Br. at 6.)

Dr. Ben Robinson and the staff at South Woods had noted that Plaintiff tested positive for hepatitis C. The status of Plaintiffs hepatitis C was monitored through various laboratory tests. (Robinson Cert. at ¶ 8.) Dr. Ben Robinson had not changed his opinion that Plaintiffs RA and not his hepatitis C was the cause of Plaintiffs arthritis. Plaintiff requested specific treatment, interferon/ribavirin, which is a relatively new drug treatment for hepatitis C. However, Dr. Robinson determined, based on the results of several normal liver function tests, that Plaintiffs hepatitis C was not at a point where it needed to be treated with intensive drug therapy and, therefore, Plaintiffs request was denied. (Id. at ¶ 9.)

The U.S. Department of Justice, Federal Bureau of Prisons issued a Technical Reference Manual titled "Infectious Disease Management," dated January 26, 1999, which governs the evaluation and treatment of prisoners with hepatitis C. (Attached as Exh. F to Def. Mot. for Sum. Judg.) While prescriptions for interferon alone or in combination therapy with ribavirin are acceptable treatments for hepatitis C, there is an algorithm for treatment and a listing of regulations a doctor must consider before prescribing interferon or interferon/ribavirin therapy. Id. Dr. Robinson and his staff found that Plaintiff was not a suitable candidate for the treatment because his hepatitis C had not progressed far enough along to justify such an intensive program of drug therapy. Also, since Plaintiff had normal liver function test results and because he failed to meet certain criteria listed in the regulations, due to the fact he had a history of depression and psychiatric illness and could possibly be released in the next twelve months, it was determined that Plaintiff was not eligible for interferon/ribavirin therapy.*fn13 (Robinson Cert. at ¶ 9; Def. Mot. for Sum. Judg.) Based on Plaintiffs test results and Bureau of Prisons regulations, Dr. Robinson and his staff determined that drug intensive treatment was not appropriate and instead proceeded with a course of action that included close monitoring of Plaintiffs hepatitis C.

On October 26, 2001 in response to Dr. Robinson's and CMS' alleged denial of treatment for his hepatitis C and alleged misdiagnosis and mistreatment of hepatitis C-related arthritis, Plaintiff filed a complaint in the District Court of New Jersey alleging under 42 U.S.C. § 1983 that Defendants were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. On November 20, 2001, this Court ordered that CMS arrange for Plaintiff to be examined by two independent doctors, and that those doctors address the following questions: "(1) Does Plaintiff have RA, and if so, what is the appropriate treatment?; and (2) is Plaintiffs hepatitis C advanced to a stage where treatment with interferon, et. al., is appropriate?" See Christy v. Robinson, No. 01-4062, November 20, 2001 (order directing CMS to provide two independent evaluations of Plaintiff).

Dr. Falasca, a rheumatologist at Cooper Medical Center, met with the Plaintiff on December 20, 2001. He initially diagnosed Plaintiff with osteoarthritis, but was unsure if Plaintiff also suffered from RA or hepatitis C-related arthritis. (Exh. D to Def.'s Mot. for Sum. Judg. (hereinafter Exh. D); Christy Dep. at 21:13-22:3; 67:23-68:15.) In a supplement to his handwritten report dated December 20, 2001, Dr. Falasca wrote a letter dated December 31, 2001 in which he further elaborated on Plaintiffs case. (Exh. E to Def.'s Mot. for Sum. Judg. (hereinafter Exh. E).) He first noted the uncertainty in the medical field regarding the proper methods for diagnosing and treating hepatitis C. He then expanded on his diagnosis of osteo-arthritis and stated that the nodules which Plaintiff complained about constantly and which were said to be RA nodules by CMS medical staff are in fact osteo-arthritic bone spurs. (Exh. E.) Dr. Falasca opined in his December 31st letter that "based on clinical criteria alone, Mr. Christy would easily meet the 1990 American College of Rheumatology criteria for rheumatoid arthritis." Id. However, Dr. Falasca remained uncertain whether Plaintiff suffered from RA, or if he suffered from hepatitis C-related arthritis. Dr. Falasca explained how the medical evidence could support a diagnosis of RA or a diagnosis of hepatitis C-related arthritis, and concluded with a list of tests which would be helpful in making a more definitive diagnosis. Id. Dr. Falasca also indicated his preference for traditional courses of treatment, which would not include interferon/ribavirin therapy. Id.

In a follow-up letter dated May 13, 2002, addressed to Mr. Holtzman, Dr. Falasca clarified his position and stated that "there was no doubt in [his] mind at this time that [Plaintiff] has naturally occurring rheumatoid arthritis." (Exh. H to Def.'s Mot. for Sum. Judg. (hereinafter Exh. H).) Dr. Falasca further opined that even if Plaintiffs arthritis was related to his hepatitis C, the treatment that Plaintiff requests, interferon and/or ribavirin, would not be the preferred treatment. Id. Dr. Falasca commented that while the hepatitis C may limit some treatment options for Plaintiffs RA, the hepatitis C is only a "coincidental infection." Dr. Falasca concluded that Plaintiffs current course of treatment is appropriate and that Defendants had not deviated from standard practice. Id.

Dr. Joseph John, a physician at Robert Wood Johnson Medical School/UMDNJ, Division of Allergy Immunology and Infectious Diseases, was the second expert retained. He reviewed Plaintiffs medical files and provided a report via e-mail on January 23, 2002 and a subsequent report, via mail on May 22, 2002.*fn14 (Exh. G & I to Def. Mot. for Sum. Judg.) Dr. John stated that a liver biopsy could show the extent of inflamation, if any at all, which could assist in determining what type of therapy, if any, would be appropriate. However, Dr. John concluded that a liver biopsy is "optional and not mandatory" and "assume[d Plaintiff had] no signs of chronic liver disease." (Exh. G.) Dr. John found Plaintiff would not need any therapy, because Plaintiff had the disease for so long and there was a "lack of hepatic enzyemia at this time (normal OT, PT)." Id. In his later report, Dr. John cited more specific medical evidence to support his conclusions, noting, for example, that Plaintiff showed no signs of liver enlargement or disease and Plaintiffs test results ...

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