Horstkotte v. NHDOC, et al. CV-08-61-JL 12/11/09 UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Todd M. Horstkotte

v. Civil No. 08-CV-61-JL Opinion No.

Commissioner, New Hampshire Department of Corrections, et al.

OPINION AND ORDER

This case concerns whether a prison provided adequate

medical care to an inmate in the early stages of hepatitis C.

Plaintiff Todd Horstkotte, formerly an inmate at the New

Hampshire State Prison, has sued various prison officials and

staff members alleging that they failed to provide adequate care

for his disease. He asserts an Eighth Amendment civil rights

claim under

, a discrimination claim under the

Americans with Disabilities Act ("ADA"),

, and

state-law claims for negligence, medical malpractice, and

intentional infliction of emotional distress.1 This court has

jurisdiction under

(federal question) and 1367

(supplemental jurisdiction).

Earlier in the case, this court denied Horstkotte's request

for preliminary injunctive relief, finding that he was unlikely

1Horstkotte also asserted a number of other claims that this court previously dismissed on the merits, as recommended by Judge Muirhead without objection from Horstkotte. Document nos. 4 (Muirhead, M.J.) and 24. to succeed on the merits.2 The defendants have now moved for

summary judgment, see Fed. R. Civ. P. 56, making substantially

the same arguments that they made at the preliminary stage.

Horstkotte, who is proceeding pro se, has not objected. After

reviewing the summary judgment record, this court grants the

motion. While Horstkotte may have preferred a more aggressive

approach to his hepatitis C infection, the defendants have shown

that they provided adeguate medical care based on legitimate

medical considerations.

I. Applicable legal standard

Summary judgment is appropriate where "the pleadings, the

discovery and disclosure materials on file, and any affidavits

show that there is no genuine issue as to any material fact and

that the movant is entitled to a judgment as a matter of law."

Fed. R. Civ. P. 56(c). An issue is "genuine" if it may

reasonably be resolved in either party's favor at trial, and

"material" if it has the capacity to sway the outcome under

applicable law. Vineberg v. Bissonnette,

(1st

Cir. 2008) (guotations omitted). In making this determination,

the "court must scrutinize the record in the light most

flattering to the party opposing the motion, indulging all

2Document nos. 57 (Muirhead, M.J.) and 63.

2 reasonable inferences in that party's favor." Mulvihill v. Top-

Flite Golf C o .,

(1st Cir. 2003).

Where, as here, the non-moving party files no response to

the summary judgment motion, "[a]11 properly supported material

facts in the moving party's factual statement shall be deemed

admitted," since they were not "properly opposed." L.R.

7.2(b)(2); see also De Jesus v. LTT Card Svcs., Inc.,

, 20 (1st Cir. 2007). Summary judgment does not, however,

"automatically follow." Stonkus v. City of Brockton Sch. Dep't,

(1st Cir. 2003). The court still must evaluate

whether the moving party's submission meets the summary judgment

standard. See Fed. R. Civ. P. 56(e) ("If the adverse party does

not . . . respond, summary judgment, if appropriate, shall be

entered against the adverse party.") (emphasis added).

Consistent with this approach, the following background summary

is based on the defendants' factual statement, which is supported

by affidavits, medical records, and testimony from the

preliminary injunction hearing.

II. Background

Horstkotte arrived at the New Hampshire State Prison in June

2007 to begin serving a prison sentence with a three-year

maximum. As part of the routine intake process, he underwent a

3 medical exam and blood tests. The tests revealed an elevated

liver enzyme level, most commonly associated with the hepatitis C

virus. Further testing confirmed the presence of the virus.

Because Horstkotte had tested negative for the virus in June 2005

and had a normal liver enzyme level in November 2005, the

prison's chief medical officer--defendant Dr. Celia Englander3--

concluded that he must have contracted the disease within the

preceding year-and-a-half. Horstkotte agrees with that

conclusion.

After the diagnosis. Dr. Englander evaluated whether

Horstkotte was an appropriate candidate for hepatitis C

treatment. The treatment involves a combination of two drugs

(ribavirin and pegylated interferon) that can have serious side

effects. Under prison protocol, an inmate is eligible for

treatment only if his minimum sentence is long enough to complete

the entire treatment process, which takes at least two-and-a-half

years (including one year of assessment, one year of drug

therapy, and six months of follow-up care). This reguirement is

based on a medical concern that incomplete or interrupted

treatment could lead to drug resistance or other adverse effects.

Since Horstkotte's minimum parole date was only six months away

3Dr. Englander is a board-certified physician who has been practicing medicine for 25 years and has significant experience with hepatitis C patients.

4 (in January 2008), Dr. Englander deemed him ineligible for

treatment under the protocol.

The prison allows its medical staff to depart from the

protocol where medically necessary to treat inmates at advanced

stages of hepatitis C. But Dr. Englander concluded that no

departure was medically necessary in Horstkotte's case because he

was at a very early stage of the disease and not suffering any

symptoms.4 Hepatitis C is a slow-moving disease that can take

decades to progress to the point where it creates serious health

problems reguiring treatment. In some cases, the disease never

reaches that point because the body's natural immune response

suppresses or even eliminates it. Dr. Englander relied on

materials from the National Institutes of Health and other

sources indicating that drug combination therapy generally is not

recommended in the early stages of the disease, given the

potential side effects and the possibility of natural

suppression. She saw no significant threat to Horstkotte's

health from waiting to see how his immune system responded.

Horstkotte, who wanted to take a more aggressive approach,

reguested a liver biopsy. Dr. Englander considered the biopsy

4Horstkotte complained of various symptoms (e.g., leg and elbow pain, abdomen pain, light stool, and dark urine), but Dr. Englander has ruled out any connection between these complaints and hepatitis C, which generally is asymptomatic in its early stages.

5 medically unnecessary because its primary purpose is to determine

the stage of the disease, which she already knew. Nevertheless,

in lieu of a biopsy, she allowed Horstkotte to undergo a

FibroSURE test in October 2007 to measure fibrosis in his liver.5

The test provides information similar to a liver biopsy, but is

less invasive and less dangerous for the patient. The test

measured Horstkotte's fibrosis level near the bottom of stage one

(out of five stages, where stage five is the worst). Dr.

Englander concluded that, because the test tends to be overly

sensitive, Horstkotte's fibrosis level might even be below stage

one. Given the slow progression of the disease, she saw no

realistic chance that Horstkotte's fibrosis level would increase

to a stage reguiring treatment before the end of his prison

sentence.

Dr. Englander met with Horstkotte in December 2007 and

explained to him the FibroSURE test results and her medical

opinion. She also gave him advice about living with hepatitis C.

For the rest of Horstkotte's sentence, the prison's medical staff

continued to monitor the status of his disease. In April 2008,

further blood testing revealed that Horstkotte's liver enzyme

level had dropped considerably since his arrival in prison. Six

5Horstkotte also received vaccinations against hepatitis A and B, for which he tested negative.

6 months later, in October 2008, Horstkotte was released on

parole.6

III. Analysis

The defendants have moved for summary judgment on all of

Horstkotte's claims: (A) his Eighth Amendment claim alleging

that the defendants failed to provide adeguate medical care for

his hepatitis C infection; (B) his ADA claim alleging that the

defendants discriminated against him based on that disease; and

(C) his related state-law claims for negligence, medical

malpractice, and intentional infliction of emotional distress.

As explained below, the defendants have shown that Horstkotte

received adeguate medical care for his hepatitis C infection

based on legitimate medical considerations. Horstkotte has not

filed an objection refuting this evidence or identified a medical

expert willing to testify on his behalf. This court therefore

grants summary judgment to the defendants on all claims.

6Horstkotte was initially denied parole in January 2008. In his complaint, filed the following month, he alleged that the prison violated his due process rights by delaying that parole hearing for two weeks. As reformulated by Judge Muirhead, however, the complaint no longer included that claim. Documents no. 4 and 24. Horstkotte did not object to that ruling and thus waived his claim. In any event. Judge Muirhead found--and this court agreed--that the two-week delay "is not a deprivation of due process." Document nos. 57 (Muirhead, M.J.) and 63.

7 A. Eighth Amendment claim

Horstkotte claims that the defendants violated his Eighth

Amendment rights by denying him adeguate medical care for his

hepatitis C infection. See U.S. Const, amend. VIII (prohibiting

the infliction of "cruel and unusual punishments"). To prevail

on this claim, Horstkotte must show "acts or omissions

sufficiently harmful to evidence deliberate indifference to

serious medical needs." Feeney v. Corr. Med. Servs., Inc.,

(1st Cir. 2006) (guoting Estelle v. Gamble,

(1976)). This standard has both objective and

subjective components. Objectively, the conduct must pose a

"substantial risk of serious harm." Farmer v. Brennan,

(1994). Subjectively, the conduct must involve "wanton

disregard of the inmate's rights." DesRosiers v. Moran,

(1st Cir. 1991). A showing of simple negligence or

medical malpractice is not enough. See Feeney,

.

"The care provided must have been 'so inadeguate as to shock the

conscience.'"

(guoting Torraco v. Maloney,

(1st Cir. 1991) ) .

As to the objective component, the defendants have shown

that Horstkotte did not have a serious medical need for the more

aggressive treatment he wanted. Dr. Englander, an experienced

physician, concluded that Horstkotte was at a very early stage of hepatitis C, free of any symptoms, and unlikely to progress to a

more advanced stage of the disease for many years, if at all.

Horstkotte faced no significant health risk, in her view, from

waiting to see how his immune system responded to the disease.

In fact, she concluded that it was the aggressive treatment, not

the wait-and-see approach, that posed an unnecessary risk of harm

at that stage, given its potential side effects. These

conclusions were all based on legitimate medical considerations,

and Horstkotte has not presented any evidence that puts them in

genuine dispute.

As to the subjective component, the defendants have shown

that they did not act with deliberate indifference. Dr.

Englander provided a good-faith explanation for all of her

treatment decisions. Moreover, in order to calm Horstkotte's

fears, she even allowed him to undergo extra testing that she

considered medically unnecessary--a far cry from wantonly

disregarding his rights. The testing confirmed her conclusion

that Horstkotte's disease was at an early stage and did not

reguire more aggressive treatment. Prison medical staff

continued to monitor his condition for the rest of his time in

prison and saw significant improvement in his liver enzyme

levels. This is not a case "where the attention received is 'so

clearly inadeguate as to amount to a refusal to provide essential

care.'" Feeney,

(guoting Torraco,

). It is a case where, despite having received adequate

attention and essential care, Horstkotte disagreed with his

doctor's approach. "[W]hen a plaintiff's allegations simply

reflect a disagreement on the appropriate course of treatment,

such a dispute with an exercise of professional judgment . . .

falls short of alleging a constitutional violation." Id. at 162

(quotation omitted).

Our court of appeals recently affirmed the dismissal on

summary judgment of a nearly identical Eighth Amendment claim.

See Gastello v. Martin,

(1st Cir. 2006)

(unpublished). In that case, the inmate also suffered from the

early stages of hepatitis C, and the prison also declined to

authorize drug combination therapy, opting instead to monitor his

condition with blood tests and a liver biopsy.

. The

court of appeals saw no evidence of deliberate indifference:

While it is clear that [the inmate] strongly disagrees with the medical care he is receiving, it is also clear that [the medical staff] is providing decent, timely health care . . . at a level reasonably commensurate with modern medical science and of a quality acceptable within prudent professional standards. . . . [The evidence] shows that modern medical science has reached a consensus that treatment generally is appropriate for patients suffering more severe cases of [hepatitis C], where a liver biopsy shows moderate inflammation and necrosis and portal or bridging fibrosis. None of these conditions were detected in [the inmate's] liver biopsy. On this record, [the inmate] failed to show that he has suffered an objectively serious deprivation, or that [defendants] have subjectively acted in wanton disregard of his rights. See also

10 Bender v. Reqier,

(8th Cir. 2004) ("Treatment for [hepatitis C] patients with mild liver problems may be safely deferred.").

(quotations omitted).

This case has only two minor differences from Gastello,

neither of which is constitutionally significant. The first is

that Horstkotte underwent a FibroSURE test, rather than a more

invasive biopsy, to check his liver for fibrosis. Dr. Englander

testified that both tests provide similar information and that

she opted for the safer one. Neither test was medically

necessary in her opinion, since Horstkotte's disease was already

known to be at a very early stage, but she authorized a FibroSURE

test anyway because Horstkotte wanted more information. This

decision reflected care for, not indifference to, Horstkotte's

medical needs. C f . Hollis v. Dir, of Corr.,

(C.D. Cal. 2008) (rejecting Eighth Amendment claim where prison

denied liver biopsy to inmate in early stages of hepatitis C,

even without FibroSURE testing); Jordan v. Delaware,

(D. Del. 2006) (same). Moreover, like the liver biopsy in

Gastello, Horstkotte's FibroSURE test confirmed that he did not

have an advanced case of hepatitis C.

The other difference between this case and Gastello is that

here, the prison applied a specific protocol limiting drug

combination therapy to inmates whose minimum sentence is long

11 enough to complete the entire treatment process. The defendants

have shown that this requirement is based on a legitimate medical

concern that interrupted or incomplete treatment could lead to

drug resistance. See, e.g., Troutt v. Corr. Healthcare Mgmt.,

(10th Cir. 2007) (unpublished) (finding

no Eighth Amendment violation where prison denied treatment for

similar timing reasons). While blind adherence to such a

protocol in the face of serious medical needs might raisea

triable Eighth Amendment issue, see McKenna v. Wright,

(2d Cir. 2004), that is not what happened here. Dr.

Englander testified that she could have departed from that

protocol if medically necessary and that she declined to do so

because Horstkotte was at an early stage of the disease and was

not facing a significant risk of harm. As in Castello,

Horstkotte's Eighth Amendment claim for failure to provide

adequate medical care must be rejected. See Hines v. Anderson,

(8th Cir. 2008) (finding no Eighth Amendment

violation where "[t]here is no evidence that the use of [prison]

guidelines is resulting in harm or that the [prison] is

deliberately disregarding Hepatitis C diagnoses").7

7A s a separate theory, Horstkotte claims that the defendants violated his Eighth Amendment rights by failing to provide an adequate diet to meet his medical needs. This claim must be dismissed because Horstkotte failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). He filed an inmate request slip

12 B. ADA claim

Horstkotte also claims that the defendants violated the ADA

by denying him the benefit of adequate medical care because he

has hepatitis C. The ADA provides in relevant part:

[N]o qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.

. To prevail on this claim, Horstkotte must

show that (1) he is a qualified individual with a disability; (2)

that he was either excluded from or denied the benefits of the

prison's medical services; and (3) that such exclusion or denial

was because of his disability. Toledo v. Sanchez,

(1st Cir. 2 00 6).

complaining about the prison diet, but never pursued his complaint through the rest of the prison's three-level grievance process, as set forth in Procedure and Policy Directive ("PPD") 1.16. See Ellison v. N.H. Dep't of Corr., 200

, 7-9 (describing each level of the grievance process).

Even if Horstkotte had properly exhausted this claim, however, the summary judgment record establishes that it has no merit. Dr. Englander testified that Horstkotte has no special dietary requirements as a result of his disease and that the prison diet posed no health risks to him. The prison's food service supervisor confirmed that the diet is healthy and provided sample menus highlighting the fruit and vegetable content. Horstkotte has not filed an objection refuting these assertions, which means that they must be treated as admitted. See Part I, supra. They suffice to defeat Horstkotte's Eighth Amendment challenge to the prison diet.

13 The defendants have shown that Horstkotte had no disability

while in prison and thus cannot satisfy the first element of his

ADA claim. To establish a disability, Horstkotte must prove that

he suffers from a physical or mental impairment that imposes a

substantial limitation on a major life activity. Holland v.

Potter,

(1st Cir. 2007) . This determination is

made on a "case-by-case basis."

In this case. Dr. Englander

testified that Horstkotte was symptom-free and that his disease,

still at a very early stage, posed no significant health threat.

While hepatitis C might gualify as a disability at a more

advanced stage, "numerous courts have held that [hepatitis C]

alone, without a demonstration of how it has limited a major life

activity, is not enough to gualify as a disability." Amos v .

Corr. Med. Svcs., Inc., No. 06-cv-1892,

, at *6

(D.N.J. June 30, 2009) (citing Furnish v. SVI Sys., Inc.,

(7th Cir. 2001), and Sussle v. Sirina Prot. Sys.

Corp., 2

(S.D.N.Y. 2003)); see also Wilder v.

S.C. Pep't of Corr., No. 3:08-2486-MBS,

(D.S.C.

Sept. 1, 2009) (ruling, where inmate's hepatitis C infection was

asymptomatic, that it was not a disability under the ADA).

Moreover, even if his hepatitis C infection gualified as a

disability under the ADA, Horstkotte still would not be able to

prove the third element: that the defendants denied him medical

services because of that disability. His claim is really that

14 the defendants refused to treat him for his disability. Our

court of appeals has made clear that the "ADA does not create a

remedy for medical malpractice," unless the "medical

unreasonableness [is] framed within some larger theory of

disability discrimination." Kiman v. N.H. Dep't of Corr.,

(1st Cir. 2006) (quoting Bryant v. Madigan,

(7th Cir. 1996), and Lesley v. Chie,

(1st Cir. 2001)). Horstkotte has not framed his ADA claim within

any larger theory of discrimination; it is just a medical

malpractice claim framed within ADA terminology. Courts have

consistently rejected such claims in cases involving inmate

complaints about hepatitis C treatment. See, e.g.. Wilder,

, at *4 (citing Iseley v. Beard,

(3d Cir. 2006)); Lopez v. Corr. Med. Svcs., No. 04-2155,

, at *11 (D.N.J. June 30, 2009); Jordan,

. This court, too, concludes that Horstkotte's ADA

claim must be denied.

C. State-law tort claims

Finally, Horstkotte claims that the defendants committed

three torts--negligence, medical malpractice, and intentional

infliction of emotional distress--under New Hampshire state law

by failing to provide proper treatment for his hepatitis C

15 infection.8 As the defendants note, Horstkotte cannot prevail on

his negligence and medical malpractice claims without expert

testimony. See, e.g.. Smith v. HCA Health Svcs. of N.H., Inc.,

(2009) (applying N.H. Rev. Stat. § 507-E:2,

which reguires the plaintiff to present expert testimony "[i]n

any action for medical injury"); Est. of Joshua T. v. New

Hampshire,

(2003) (reguiring expert testimony

"whenever the matter to be determined is so distinctly related to

some science, profession, business or occupation as to be beyond

the ken of the average layman"). Horstkotte's expert disclosure

deadline passed long ago.9 He has not designated any experts,

reguested a deadline extension, or given this court any reason to

believe that he intends to present expert testimony at trial.

"While courts have historically loosened the reins for pro se

parties, the right of self-representation is not a license not to

8In most cases, the dismissal of all federal claims before trial "will point toward declining to exercise [supplemental] jurisdiction over the remaining state-law claims." Carnegie- Mellon Univ. v. Cohill,

, 350 n.7 (1988) . But there is no "mandatory rule" reguiring dismissal; courts must "consider and weigh in each case, and at every stage of the litigation, the values of judicial economy, convenience, fairness, and comity in order to decide whether to exercise jurisdiction."

In this case, the close proximity to trial and the heavy overlap between Horstkotte's federal and state-law claims both point in favor of exercising jurisdiction. See, e.g., Nowak v. Ironworkers Local 6 Pension Fund,

(2d Cir. 1996). This court therefore resolves his state-law claims as well.

9Document no. 66 (setting a deadline of February 5, 2009).

16 comply with relevant rules of procedural and substantive law."

Eagle Eye Fishing Corp. v. U.S. Dep't of Commerce,

(1st Cir. 1994) (quotations omitted). Since Horstkotte lacks

the expert testimony needed to create a trialworthy issue, this

court grants summary judgment on his negligence and medical

malpractice claims. See, e.g., Rojas-Ithier v. Sociedad Espanola

de Auxilio Mutuo y Beneficiencia,

(1st Cir.

2005) (affirming summary judgment on medical malpractice claim

where non-moving party presented no expert testimony).

Whether Horstkotte also needs expert testimony to support

his intentional infliction of emotional distress claim is an open

question under New Hampshire law. See Saalfrank v. Town of

Alton,

(discussing the case law). This court

need not answer it now, though, because Horstkotte's claim

clearly falls short of the "very high" standard for relief under

New Hampshire law. Moss v. Camp Pemigewassett, Inc.,

(1st Cir. 2002) . To prevail on such a claim, Horstkotte

must show that the defendants engaged in "extreme and outrageous

conduct" that "intentionally or recklessly cause[d] severe

emotional distress." Mikell v. Sch. Admin. Unit No. 33,

(2009). The conduct must go "beyond all possible bounds

of decency."

As explained above in the Eighth Amendment

analysis, the defendants have shown that they acted in good faith

and made treatment decisions based on legitimate medical

17 considerations. Under this standard, on this record, the court

cannot conclude that their conduct even approaches an extreme or

outrageous level. This court therefore grants summary judgment

on Horstkotte's emotional distress claim as well.

IV. Conclusion

For the foregoing reasons, the defendants' motion for

summary judgment10 is GRANTED. The clerk shall enter judgment

accordingly and close the case.

SO ORDERED.

Dated: December 11, 2009

cc: Todd M. Horskotte, pro se Nancy J. Smith, Esq.

10Document no. 72.

18