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Struble v. Tripoli

May 22, 2008

JOHN FRANCIS STRUBLE PLAINTIFF,
v.
LOUIS TRIPOLI, ET AL., DEFENDANTS.



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

OPINION

Plaintiff filed an action pursuant to 42 U.S.C. § 1983 seeking injunctive and declaratory relief and monetary damages against defendants for their alleged deliberate indifference to his serious medical needs in violation of the 8th Amendment. Plaintiff has withdrawn his motion for injunctive and declaratory relief on the basis that he has received treatment for his HCV and, therefore, we only address his claims for monetary relief. Now before the Court is defendants Kathryn McFarland's and Howard Beyer's motion to dismiss, or in the alternative, for summary judgment. Beyer argues he should be dismissed because he was not employed by the Department of Corrections during the requisite time period and had no personal involvement with the plaintiff. MaFarland argues that she should be dismissed because she is immune in her in official capacity as an employee of the State and in her individual capacity because she is non-medical prison official. For reasons explained below, defendants' motion is granted.

I. JURISDICTION

This Court exercises subject matter jurisdiction pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) over plaintiff's claim brought pursuant to 42 U.S.C. § 1983.

II. BACKGROUND

Plaintiff John Struble is an inmate currently incarcerated at South Woods State Prison in New Jersey. On November 4, 2003, plaintiff requested an office visit with a nurse to discuss potential exposure to the Hepatitis C Virus ("HCV") from activity that occurred eight to ten years prior. Plaintiff was referred to a Correctional Medical Services ("CMS")*fn1 nurse practitioner who placed an order to screen plaintiff for HCV.

On December 11, 2003, plaintiff tested positive for HCV and was added to the roster for the infectious disease chronic care clinic. On December 22, 2003, plaintiff was advised of his condition and provided education on the disease.

On December 29, 2003, plaintiff had blood drawn for lab tests to determine treatment options. On January 11, 2004, plaintiff received an injection for hepatitis A immunization. On January 15, 2004, plaintiff was seen in the chronic care clinic in which he advised medical personnel that he wanted to go forward with treatment, and on January 19, 2004, further lab tests were drawn.

On February 23, 2004, plaintiff was seen in the chronic care clinic and was told that he "may have spontaneously cleared the virus" and was scheduled to be evaluated in six months. On April 30, 2004, plaintiff requested to see a nurse to discuss his lab reports. CMS responded that plaintiff had been evaluated on February 23, 2004, and that he was scheduled to be reevaluated in six months. On August 25, 2004, lab work was performed and plaintiff again tested positive for HCV. On September 3, 2004, plaintiff was given the second shot for the hepatitis A vaccination.

On October 10, 2004, plaintiff submitted a NJDOC inmate request form complaining that no follow-up occurred regarding his HCV testing. The response he received was that all required tests were completed and plaintiff was scheduled for the chronic care clinic on November 2, 2004.

On November 2, 2004, plaintiff was evaluated in the chronic care clinic wherein it was noted that plaintiff's HCV was "stable" and that "he will not need HCV [medications]." Plaintiff underwent lab work on November 10, 2004, and was seen again in the chronic care unit on November 30, 2004. Although follow-up lab tests were ordered, the CMS doctor noted that HCV medication was not yet appropriate and to continue monitoring plaintiff's condition. Further laboratory tests were performed on December 8, 2004.

On February 16, 2005, plaintiff was seen in the chronic care clinic. Plaintiff states that his medical records showed that his viral count was 4900 which necessitated medical treatment for his condition. On February 21, 2005, laboratory tests were performed, and on February 28, 2005, medial personnel cleared plaintiff for treatment.*fn2 On June 8, 2005, plaintiff's HCV genotype was drawn. On June 15, 2005, plaintiff was seen in the chronic care clinic. Defendants maintain that at that time plaintiff's condition was stable and that he was not seeking HCV treatment. Plaintiff denies that he was not seeking treatment and argues that he has consistently sought treatment for his HCV.

On August 22, 2005, plaintiff submitted a form requesting treatment for HCV and copies of his medical records. The response from CMS was that plaintiff was scheduled to be seen in the chronic care clinic on September 22, 2005 and that his most recent medical records indicated that he was not seeking HCV treatment. CMS also responded that plaintiff had not received mental health clearance because he missed two appointments and that the his prison account lacked funds to pay for the copies of the medical records. Plaintiff denies that he was scheduled for mental health appointments or that he was not seeking HCV treatment.

On August 29, 2005, plaintiff submitted a NJDOC request system and remedy form in which he put "all pertinent parties" on notice that he had not received treatment for his HCV despite having requested such treatment. On September 20, 2005, plaintiff was seen in the chronic care clinic wherein the CMS nurse stated that plaintiff needed mental health clearance and an electrocardiogram ("EKG") before he could begin HCV treatment. Although defendants state that plaintiff was told he may not be a candidate for HCV treatment ...


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