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Vasquez v. Davis

United States Court of Appeals, Tenth Circuit

February 23, 2018

JIMMY JOSEPH VASQUEZ, Plaintiff - Appellant/Cross-Appellee,
JEANNE DAVIS, in her individual capacity; BRIAN WEBSTER, in his individual capacity; KATHLEEN MELLOH, in her individual capacity; MAURICE FAUVEL, in his individual and official capacities; RICK RAEMISCH, in his official capacity, Defendants - Appellees/Cross-Appellants, and KATHLEEN MARTORANO, in her individual capacity, Defendant/Cross-Appellant, and GATBEL CHAMJOCK, in his individual capacity, Defendant-Appellee.

         Appeals from the United States District Court for the District of Colorado D.C. No. 1:14-CV-01433-WJM-CBS

          Elisabeth L. Owen, Prisoners' Justice League of Colorado LLC, Denver, Colorado, for Plaintiff Vasquez.

          Chris W. Alber, Senior Assistant Attorney General, Denver, Colorado, for Defendants Davis, Martorano, Webster, Melloh, Fauvel, and Raemisch.

          Joseph P. Sanchez, Goodspeed & Merrill, Denver, Colorado, for Defendant Chamjock.

          Before BRISCOE, EBEL, and MATHESON, Circuit Judges.

          EBEL, Circuit Judge.

         In this 42 U.S.C. § 1983 action, Plaintiff Jimmy Vasquez, an inmate in the Colorado Department of Corrections ("CDOC"), contends that CDOC medical providers were deliberately indifferent to his serious medical needs in violation of the Eighth Amendment. Vasquez specifically alleges that Defendants delayed treating him for the hepatitis C virus ("HCV"), resulting in his suffering life-threatening permanent liver damage. In appeal No. 17-1026, we AFFIRM the district court's decision to grant Defendants summary judgment, concluding Vasquez's claims against Defendants Davis, Webster, Melloh, and Chamjock are time-barred, and Vasquez failed to present sufficient evidence that Defendant Fauvel acted with deliberate indifference. In appeal No. 17-1044, we VACATE an injunction requiring the CDOC to test Vasquez's liver function every three months.

          I. BACKGROUND

         Vasquez began serving a life sentence in the CDOC in 2004. At that time, he was diagnosed with HCV. HCV is transmitted primarily through blood-to-blood transfers by, for instance, sharing needles used for intravenous drug use or tattoos. While 75% to 80% of people with chronic HCV suffer no serious problems, the remainder, like Vasquez, suffer progressive liver damage from liver diseases such as cancer or cirrhosis. Cirrhosis, which is particularly relevant here, "is a progressive disease in which healthy liver tissue is replaced with scar tissue, eventually preventing the liver from functioning effectively." (Aplt. App. 609 ¶ 34.) Liver damage from HCV can progress slowly, taking up to two or three decades.

         During the course of Vasquez's prison sentence, the treatment of HCV has evolved and improved. When he first entered prison in 2004, HCV was treated, with limited success, using the antiviral medications interferon and ribavirin. These medications could produce severe side effects-"many guys get very sick on" interferon and ribavirin, (id. 445)-and could not be used if the patient had "decompensated" liver cirrhosis. (Id. 270-71 ¶¶ 19, 21; 1157 ¶¶ 19, 21.) In 2011, medical providers began using other antiviral medications to supplement interferon and ribavirin, improving cure rates. In 2013, a new antiviral medication sovaldi was used with interferon and/or ribavirin. In 2014, harvoni became available to treat specific genotypes of HCV. Although these antiviral medications can cure HCV with increasing effectiveness, they do not reverse any resulting permanent liver damage.

         These antiviral treatments for HCV are expensive, ranging from $40, 000 to $160, 000 per patient, depending on the length of treatment, and they do not immunize the patient from becoming re-infected through, for example, further sharing of needles for intravenous drug use. In light of this, the CDOC requires that an inmate take six months of drug and alcohol avoidance classes ("D&A classes") before becoming eligible for HCV treatment. Further, CDOC policy places the onus on the inmate both to request HCV treatment and to complete the requisite D&A classes.

         When Vasquez was diagnosed with HCV in late 2004, CDOC officials gave him a two-page handout explaining HCV and the general treatment available at that time. Vasquez asked his case manager in March 2005 for assistance enrolling in D&A classes so that he could eventually be treated for HCV. At that time, however, there were no D&A classes available in the high security section of the CDOC's prison in Sterling, where Vasquez was housed. Even though CDOC policy was to transfer an inmate who needed D&A classes to a facility where those classes were offered, such transfers were subject to CDOC security determinations. In Vasquez's case, his case manager noted that she would check on the possibility of transferring Vasquez to another prison where he could attend D&A classes, but the record does not indicate whether the case manager ever checked.[1]

         In May 2005, six months after Vasquez entered the CDOC, Defendant Jeanne Davis, a prison nurse, confirmed that Vasquez's HCV was chronic, and notified him that he was medically eligible for HCV treatment after he completed six months of D&A classes. Although Davis further informed Vasquez that he should "send a kite to medical" (id. 277 ¶ 57)-that is, send a written request to the prison medical clinic if he was interested in receiving treatment-Vasquez did not make such a request.

         Vasquez did not seek to enroll in D&A classes again for another seven years. During that time, D&A classes became available to him. In 2008, because many inmates were having trouble enrolling in these classes, the CDOC relaxed the requirements for what qualified as D&A classes. In 2012 or 2013, CDOC reinstated its stricter requirements for D&A classes, but made those classes available to all inmates, including those housed in Sterling's high security wing. Vasquez indicates that he knew in 2010 that there were D&A classes available to him.

         Beginning in August 2006, a series of CDOC physician's assistants, including Defendants Brian Webster, Gatbel Chamjock, and Kathleen Melloh, treated Vasquez for a variety of medical conditions. These Defendants were aware both that Vasquez had HCV and that he was beginning to show signs of liver damage. These signs included consistently high liver enzyme and ammonia levels in his blood. Based on his high ammonia levels, Defendant Webster diagnosed Vasquez with liver cirrhosis in June 2008, and spoke to Vasquez about his "worsening" liver condition resulting from his HCV (id. 222, 342). Webster prescribed Vasquez with medication to decrease the amount of ammonia in his blood. But Webster did not refer Vasquez for D&A classes, mistakenly believing both that the prevailing antiviral treatment could not be used on patients who had already developed any degree of liver cirrhosis and that Vasquez's high security classification precluded him from participating in D&A classes. After 2008, Defendants Webster, Chamjock and Melloh continued to monitor Vasquez's condition and to treat his symptoms, including lowering his ammonia levels.

         On January 14, 2012, Vasquez sought medical attention, reporting he had vomited blood. A day or two later, Vasquez requested assistance in enrolling in D&A classes. By this time, Vasquez knew that he had HCV, that progressive liver damage could result from untreated HCV, that his liver condition had been "worsening" for a number of years, and that to obtain treatment, he first had to complete six months of D&A classes. On February 6, 2012, Defendant Dr. Maurice Fauvel saw Vasquez for the first time, noted Vasquez's interest in receiving HCV treatment, discussed the treatment protocol with him "at length, " and referred Vasquez to his case manager to enroll in available D&A classes. (Id. ...

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