United States District Court, M.D. Tennessee, Nashville Division
JASON E. MIZE, Plaintiff,
INNOCENTES SATOR, and CORIZON HEALTH, a/k/a CORRECTIONAL MEDICAL SERVICES, in their individual and official capacities; Defendants.
ALETAA.TRAUGER United States District Judge.
before the court is a Motion for Summary Judgment filed by
the defendants (Docket No. 249), to which the plaintiff has
filed a Response (Docket No. 264) and - with leave of the
court - a Supplemental Response (Docket No. 337), the
defendants have filed two Replies (Docket Nos. 274, 352), and
the plaintiff has filed a Sur-Reply (Docket No. 361). Also
pending before the court are objections made by the
defendants to certain documents filed by Mr. Mize in
opposition to the pending motion, including an Objection to
the Plaintiff's Statement of Facts (Docket No. 353) and
an Objection to the Plaintiff's Expert Witness Disclosure
(Docket No. 355), to which the plaintiff has filed Responses
in Opposition (Docket Nos. 358, 359). For the following
reasons, the Objection to the Plaintiff's Statement of
Facts will be overruled, the Objection to the Plaintiff's
Expert Witness will be overruled in part and sustained in
part, and the Motion for Summary Judgment will be denied. The
court will also re-open discovery to allow the parties
further opportunity to develop the factual record regarding
(1) the role played by Corizon Health, a/k/a Correctional
Medical Services (“Corizon”) in the delay or
denial of medical care to Mr. Mize, and (2) the expert
opinion submitted by Mr. Mize in opposition to the
AND PROCEDURAL HISTORY
case arises out of the medical care that the plaintiff, Jason
E. Mize, received from one of the defendants, Dr. Innocentes
Sator, while he was incarcerated at Riverbend Maximum
Security Institute (“Riverbend”) from 2007 to
2011. Mr. Mize was diagnosed with a chronic hepatitis C
infection in 1998 and faced a substantial risk of developing
serious damage to his liver, including cirrhosis, as a
result. In January of 2011, after multiple years under the
care of Dr. Sator, Mr. Mize was diagnosed with “grade
4, stage IV” cirrhosis of the liver. (Docket No. 341
(Ex. 15), p. 91.) Mr. Mize alleges that he would never have
developed cirrhosis, or sustained worsening damage to his
liver, if Dr. Sator had not repeatedly and consistently
refused to prescribe antiviral therapy to treat Mr.
Mize's hepatitis C or to undertake the steps necessary to
determine the advisability of such treatment. (Docket No. 165
¶¶ 8-9, 23-68.)
pro se, Mr. Mize filed this action on August 15,
2011, alleging that Dr. Sator had been deliberately
indifferent to his serious medical needs in violation of his
Eighth Amendment rights, for which he brought a claim
pursuant to 42 U.S.C. § 1983. (Docket No. 1 ¶¶
30-32.) On July 26, 2012, Mr. Mize filed an Amended Complaint
with leave of the court, adding Corizon as a defendant.
(Docket No. 165.) Mr. Mize alleges that Corizon failed to
update a medical evaluation form used by Dr. Sator in
determining whether to prescribe antiviral therapy to Mr.
Mize, which referenced an outdated version of the Federal
Bureau of Prisons' Clinical Practice Guidelines
(“FBOP Guidelines”) for the treatment of
hepatitis C and contributed to Dr. Sator's failure to
provide Mr. Mize with adequate treatment for that disease.
(Id. ¶¶ 10-23.) Mr. Mize alleges that
Corizon did not follow, or does not have, a policy that
ensures that updates to the FBOP Guidelines are incorporated
into the company's medical evaluation forms and that this
failure constitutes deliberate indifference to the serious
medical needs of inmates, in violation of their Eighth
Amendment rights. (Id.)
March 4, 2013, the defendants filed a Motion for Summary
Judgment (Docket No. 249), accompanied by a Memorandum
(Docket No. 250), a Statement of Undisputed Material Facts
(Docket No. 251), and the Declaration of Dr. Sator (Docket
No. 250-7). The defendants argue that the court should
dismiss all of Mr. Mize's claims because (1) the one-year
statute of limitations for § 1983 claims bars Mr.
Mize's claim against Corizon and any portion of his claim
against Dr. Sator that it is based on events occurring prior
to 2010; and (2) Mr. Mize cannot demonstrate genuine disputes
of material fact supporting his deliberate indifference
claims against Dr. Sator and Corizon. (Docket No. 250, pp.
6-13.) Specifically, the defendants argue that Mr. Mize's
disagreements with Dr. Sator's medical decisions do not
give rise to a constitutional claim and that he cannot
demonstrate that Dr. Sator knew of a substantial risk of harm
to Mr. Mize that he disregarded when he failed to prescribe
antiviral therapy. (Id. at pp. 8- 13.)
April 3, 2013, Mr. Mize - still proceeding pro se -
filed a Response in Opposition to the motion (Docket No.
263), accompanied by a Memorandum (Docket No. 264), a
Response to the Statement of Undisputed Material Facts
(Docket No. 267), and various exhibits, which were filed
under seal (Docket Nos. 266, 270). In his Response, Mr. Mize
argues that none of his claims are barred by §
1983's one-year statute of limitations because he was not
made aware of his injury until he was diagnosed with
cirrhosis in January of 2011, a mere seven months before he
filed the Complaint. (Docket No. 264, pp. 1-2.) Mr. Mize also
argues that genuine disputes of fact exist that support his
claims against both defendants and, when those facts are
viewed in the light most favorable to him, a jury could infer
that (1) Dr. Sator recognized, and disregarded, a serious
risk to his health, and (2) Corizon had a policy of not
updating its forms to reflect changes to FBOP Guidelines, in
deliberate indifference to inmates' serious medical
needs. (Id. at pp. 6-34.)
April 18, 2013, the defendants filed a Reply in support of
the motion, in which they primarily argued that Mr. Mize
could not establish that either Dr. Sator or Corizon caused
him any injury “because he does not have expert
testimony” to support such an inference. (Docket No.
274, p. 1.) On August 13, 2015, in response to Mr. Mize's
request for the appointment of counsel, the court noted the
difficulties Mr. Mize faced in responding to the pending
motion because - as a pro se, incarcerated litigant
- “he has no way to obtain an expert without the
appointment of counsel.” (Docket No.
324.) After acknowledging that the appointment
of counsel in a civil case is not a constitutional right but,
rather, justified only by exceptional circumstances, the
court found that “the potential merit of [Mr.
Mize's] claims and his inability to procure the services
of an expert while he is incarcerated” warranted such
an appointment. (Id.) Newly appointed counsel was
given 60 days to file a supplemental response to the
defendants' Motion for Summary Judgment. (Id.)
February 9, 2016, Mr. Mize - now represented by counsel -
filed a Supplemental Response in Opposition to the motion
(Docket No. 337), accompanied by a Response to the Statement
of Undisputed Material Facts and Statement of Additional
Facts (Docket No. 338) and multiple exhibits, some of which
were filed under seal (Docket Nos. 339, 341). Mr. Mize also
filed the Declaration of Dr. Richard B. Martin (Docket No.
339-1) and Dr. Martin's expert report (Docket No. 339-2),
opining that Dr. Sator's failure to provide necessary
evaluation and treatment to Mr. Mize from May of 2007 to May
2009, and again after September of 2010, “demonstrated
deliberate indifference to Mr. Mize's serious medical
needs” that prevented Mr. Mize from receiving
potentially life-saving treatment (Docket No. 339-1 ¶
6). In the Memorandum, Mr. Mize identifies evidence that he
argues (1) supports the inference that Dr. Sator perceived,
and disregarded, a substantial risk of serious medical harm
to him on six different occasions and (2) establishes a
genuine issue of fact with respect to whether Dr. Sator's
conduct caused him to develop cirrhosis and suffer from
further damage to his liver. (Docket No. 337, pp. 2, 16-23.)
Mr. Mize further argues that, based on the fact that Dr.
Sator was using an outdated medical evaluation form in 2010,
“[a] reasonable juror could . . . conclude that
Corizon's practices and procedures were inadequate to
ensure that these forms used to treat patients'
potentially fatal conditions were based on current medical
science, available treatments, and up-to-date treatment
protocols.” (Id. at p. 24.)
25, 2016, the defendants filed a second Reply (Docket No.
352), responding to Mr. Mize's Supplemental Response and
accompanied by a second declaration by Dr. Sator (Docket No.
352-1). In this Reply, the defendants argue that none of Mr.
Mize's evidence, including the opinion from Dr. Martin,
demonstrates that Dr. Sator was deliberately indifferent to
Mr. Mize's serious medical needs. (Docket No. 352.) The
defendants further argue that the specific instances of
alleged deliberate indifference identified by Mr. Mize
support, at most, a claim for mere medical negligence and do
not rise to the level of constitutional violations that would
support a § 1983 claim. (Id. at pp. 1, 3-4.)
The defendants also filed an Objection to the Plaintiff's
Statement of Facts (Docket No. 353) and an Objection to the
Plaintiff's Expert Witness Disclosure (Docket No. 355),
to which Mr. Mize responded on June 8, 2016 (Docket Nos. 356,
August 2, 2016 - with leave of court - Mr. Mize filed a
Sur-Reply, in which he argues that Dr. Martin's expert
opinion and the evidence that Dr. Sator repeatedly chose not
to provide Mr. Mize with courses of treatment prescribed by
FBOP Guidelines provide a sufficient factual basis from which
a reasonable juror could conclude that Dr. Sator was
deliberately indifferent to Mr. Mize's serious medical
issues and, through that indifference, caused Mr. Mize
serious harm. (Docket No. 361, pp. 1-7.) Mr. Mize argues that
statements made in Dr. Sator's second declaration
regarding a provider's meeting - in which the doctor was
purportedly instructed, incorrectly, that FBOP Guidelines
recommended no antiviral treatment for a patient with stage
IV cirrhosis - further support a finding that Corizon had a
pattern, policy, or practice of failing to ensure that
updates to the FBOP Guidelines were incorporated into the
company's guidance to physicians responsible for the
treatment of inmates at prisons in Tennessee. (Id.
at pp. 7-8 (citing Docket No. 352-1 ¶ 33).)
the court can describe the undisputed facts of this case, or
those that must be viewed in the light most favorable to Mr.
Mize as the non-movant, it must first address the objections
made by the defendants to certain documents filed by Mr. Mize
in opposition to the pending motion.
Objection to the Plaintiff's Local Rule 56.01(c)
Statement of Facts
defendants object to the portion of Mr. Mize's Response
to their Statement of Undisputed Material Facts in which Mr.
Mize asserts additional facts in support of his opposition to
the defendants' Motion for Summary Judgment. (Docket No.
353.) The defendants acknowledge that, pursuant to Local Rule
56.01(c), Mr. Mize is entitled to submit “a concise
statement of [any] additional facts that [he] contends are
material and as to which [he] contends there exists a genuine
issue to be tried” in response to a motion for summary
judgment. (Id.) They argue, however, that Mr.
Mize's facts “appear to be his own statement of
undisputed material facts, ” which they submit is not
permitted by any rule, local or otherwise. (Id.) The
court does not, however, find Mr. Mize's response to be
substantially different from any other statement of
additional facts typically submitted by a non-moving party in
the course of briefing on a motion for summary judgment. Mr.
Mize asserts additional facts, supported by citations to the
record, and the defendants are given the opportunity to
dispute those facts, which they took. The court will,
therefore, overrule the defendants' objection to Mr.
Mize's additional facts.
Response to the defendants' objection (Docket No. 358),
Mr. Mize argues that the defendants themselves have violated
Local Rule 56.01(c), which requires a party responding to a
statement of fact at summary judgment to “demonstrate
that the fact is disputed” by “specific citation
to the record.” According to Mr. Mize, the
defendants' response is deficient because it
“purport[s] to dispute a host of facts asserted by Mr.
Mize without providing a specific citation to the
record.” (Id. (citing Docket No. 356
¶¶ 27, 29, 54, 59, 60 as examples of the
defendants' insufficient responses).) Mr. Mize further
argues that, because the defendants have failed to
sufficiently respond to certain facts, those facts should be
deemed admitted for the purposes of summary judgment.
(Id.) Based on its review of the defendants'
responses, the court notes that the defendants did
fail to adequately dispute some of the additional material
facts that were asserted by Mr. Mize and supported by him
with adequate citations to the record. Accordingly, the court
will take these failures into account in its discussion of
the facts supporting Mr. Mize's claims below.
Objection to the Plaintiff's Expert Witness
defendants also object to testimony provided by the Mr.
Mize's expert, Dr. Martin, in opposition to the Motion
for Summary Judgment. (Docket No. 355.) The defendants
request that the court exclude Dr. Martin's testimony
from its consideration of the motion, arguing that they have
been prejudiced by the late disclosure of Dr. Martin as an
expert and that Dr. Martin's testimony “invades the
province of the jury.” (Id. at p. 2.)
respect to the timeliness of the disclosure, the defendants
argue that Mr. Mize did not disclose Dr. Martin as an expert
until he filed his Supplemental Response in February of 2016,
approximately three years after discovery had closed and the
pending motion had been filed. (Id. at pp. 2-3.) The
court does not find, however, that the defendants were unduly
prejudiced by this late disclosure. In August of 2015, the
court appointed counsel to represent Mr. Mize because of
“the potential merit of [his] claims and his
inability to procure the services of an expert while he
is incarcerated.” (Docket No. 324 (emphasis added).)
The court clearly contemplated that, when Mr. Mize
supplemented his opposition to the defendants' motion, he
would include expert testimony that supported his claims but
which he had been unable to obtain while incarcerated. The
defendants were, therefore, on notice that Mr. Mize would
likely submit expert testimony, and the prejudice done to
them by Mr. Mize's late disclosure was not substantial.
Furthermore, to the extent that the defendants claim that
they have been prejudiced by their inability to conduct
discovery into Dr. Martin and his expert opinion after the
close of discovery, the appropriate remedy is a re-opening of
discovery and not the exclusion of Dr. Martin's report
from the court's consideration. Accordingly, the court
will order the re- opening of discovery to allow the
defendants that opportunity.
defendants also argue that Dr. Martin's testimony should
be excluded because he testifies to a legal conclusion;
namely, that Dr. Sator was “deliberately
indifferent” to Mr. Mize's serious medical needs.
(Docket No. 355, p. 3.) The defendants are correct in noting
that Dr. Martin impermissibly invades the province of the
jury when he opines that Dr. Sator was “deliberately
indifferent” to Mr. Mize's serious medical needs,
as that is the ultimate legal question that must be answered
before Dr. Sator may be found liable for violating Mr.
Mize's constitutional rights. The court, therefore, will
sustain the defendants' objection to the extent that it
seeks to exclude any of Dr. Martin's opinions that
impermissibly invade the province of the jury, and it will
exclude those opinions from its consideration of the pending
Mize was incarcerated at Riverbend from May of 2007 to May of
2009, and again beginning in September of 2010. Mr. Mize was
diagnosed with hepatitis C in 1998, and he suffered from a
chronic hepatitis C infection (genotype 1) both before and
during his incarceration at Riverbend. Hepatitis C is a virus
that is transmitted primarily by direct percutaneous exposure
to infected blood (Docket No. 339-4 (2009 FBOP Guidelines),
p. 1), and the parties agree that patients living with a
chronic hepatitis C infection face a substantial risk of
developing serious liver damage, including fibrosis and
cirrhosis of the liver (Docket No. 356 ¶ 21). Cirrhosis
of the liver is a painful and life-threatening condition
accompanied by a substantially elevated risk of liver
failure, liver cancer, and other serious complications. Both
parties further agree that a hepatitis C infection can be
treated and cured through a combination of pegylated
interferon and ribavirin (“interferon/ribavirin
treatment”), an antiviral therapy that can also protect
a patient from damage to his/her liver caused by a hepatitis
C infection. (Id. ¶ 12.)
The Medical Treatment Provided to Mr. Mize by Dr.
Sator began treating Mr. Mize on May 31, 2007. Based on Mr.
Mize's medical records, Dr. Sator was aware that Mr. Mize
had been diagnosed with hepatitis C in 1998 and still
suffered from a chronic hepatitis C infection. Dr. Sator has
admitted that he was further aware that, as a patient who had
been living with chronic hepatitis C for nearly a decade, Mr.
Mize stood a substantial, ongoing risk of developing fibrosis
and cirrhosis of the liver, as well as other serious and
potentially fatal liver ailments. (Docket No. 356 ¶ 21.)
In addition to his chronic hepatitis C infection, Mr. Mize
exhibited multiple risk factors for developing liver damage,
including that he was ...