Jacob Pfaller v. Laurence Wang

(quoting Pearson v. Callahan,

555 U.S. 223, 232

(2009)).

The source of the right at issue here is the Eighth Amendment, which prohibits the

infliction of “cruel and unusual punishments.” U.S. Const. amend. VIII. This prohibition

extends to “the treatment a prisoner receives in prison and the conditions under which he

is confined.” Helling v. McKinney,

509 U.S. 25, 31

(1993). Because “adequate . . . medical

care” is a basic condition of humane confinement, Farmer v. Brennan,

511 U.S. 825, 832

(1994), a prison official’s “deliberate indifference to serious medical needs of prisoners

constitutes the unnecessary and wanton infliction of pain proscribed by the Eighth

Amendment,” Estelle v. Gamble,

429 U.S. 97, 104

(1976) (citation and internal quotation

marks omitted).

To establish a claim for deliberate indifference to serious medical needs, a prisoner

“must satisfy the Supreme Court’s two-pronged test set forth in Farmer v. Brennan.” Scinto

v. Stansberry,

841 F.3d 219, 225

(4th Cir. 2016). Farmer’s first, “objective” prong requires

a plaintiff to prove that the alleged deprivation was “sufficiently serious.” Farmer, 511

10 USCA4 Appeal: 21-1612 Doc: 88 Filed: 12/15/2022 Pg: 11 of 52

U.S. at 834 (citation omitted). Farmer’s second, “subjective” prong requires a plaintiff to

show that prison officials acted with “deliberate indifference.” Scinto,

841 F.3d at 225

This second prong itself has two subparts: a plaintiff must show the prison official

(1) had “actual knowledge of the risk of harm to the inmate” and (2) “‘recognized that his

actions were insufficient’ to mitigate the risk of harm to the inmate arising from his medical

needs.” Iko,

535 F.3d at 241

(emphasis omitted) (quoting Parrish ex rel. Lee v. Cleveland,

372 F.3d 294, 303

(4th Cir. 2004)). “[M]ere negligence” won’t meet this standard, De’lonta

v. Angelone,

330 F.3d 630

, 634 (4th Cir. 2003), but neither is “actual purposive intent”

required, De’lonta v. Johnson,

708 F.3d 520, 525

(4th Cir. 2013). Instead, deliberate

indifference is most akin to criminal-law recklessness. Campbell v. Florian,

972 F.3d 385

395 (4th Cir. 2020), as amended (Aug. 28, 2020). Further, so long as the official who knew

of a substantial risk to inmate health or safety “responded reasonably to the risk,” they

cannot be found liable under the Eighth Amendment, “even if the harm ultimately was not

averted.” Farmer,

511 U.S. at 844

Even if a plaintiff proves an Eighth Amendment right was violated, our inquiry isn’t

over. Under the second prong of the qualified-immunity analysis, an official is nonetheless

entitled to immunity “if the right was not so ‘clearly established’ that ‘a reasonable official

would understand that what he is doing violates that right.’” Thompson,

878 F.3d at 98

(quoting Hope v. Pelzer,

536 U.S. 730, 739

(2002)). The state of the law at the time must

have given an official “fair warning” that his treatment of the prisoner was unconstitutional.

Id.

(quoting Hope,

536 U.S. at 741

11 USCA4 Appeal: 21-1612 Doc: 88 Filed: 12/15/2022 Pg: 12 of 52

In performing this analysis, a court must pinpoint the precise constitutional right at

issue in order to determine whether it was clearly established. See Halcomb, 992 F.3d at

319–20. In doing so, a court must be careful not to define the right “at a high level of

generality ‘[b]ecause the dispositive question is whether the violative nature of particular

conduct is clearly established.’”

Id.

at 320 (quoting Estate of Armstrong ex rel. Armstrong

v. Village of Pinehurst,

810 F.3d 892, 907

(4th Cir. 2016)). Nonetheless, Eighth

Amendment claims don’t require the same level of specificity that is needed in, for

example, the Fourth Amendment context. See Thorpe v. Clarke,

37 F.4th 926

, 940 (4th Cir.

2022). And “[t]here is no requirement that the ‘very action in question [must have]

previously been held unlawful’ for a reasonable official to have notice that his conduct

violated that right.” Scinto,

841 F.3d at 236

(quoting Hope,

536 U.S. at 739

The extent of the analysis required for this second prong, however, varies

considerably across cases. This Court recently held in Thorpe v. Clarke that “when

‘plaintiffs have made a showing sufficient to’ demonstrate an intentional violation of the

Eighth Amendment, ‘they have also made a showing sufficient to overcome any claim to

qualified immunity.’” 37 F.4th at 934 (quoting Beers-Capitol v. Whetzel,

256 F.3d 120

142 n.15 (3d Cir. 2001)). That’s because, as Thorpe opined, “qualified immunity does not

shield ‘those who knowingly violate the law.’”

(quoting Ashcroft v. al-Kidd,

563 U.S. 731

, 743 (2011)). And because the Eighth Amendment’s deliberate-indifference standard

requires knowing conduct, an official who was deliberately indifferent could not also

believe “that [their] actions comported with clearly established law.” Id. at 939 (quoting

Beers-Capitol,

256 F.3d at 142

n.15). Thus, in Thorpe, we “effectively collapse[d]”

12 USCA4 Appeal: 21-1612 Doc: 88 Filed: 12/15/2022 Pg: 13 of 52

qualified immunity’s two inquiries into one, holding that dismissal on qualified-immunity

grounds “remains improper so long as the officers’ mental state remains genuinely in

issue.” Id. at 934 (citation omitted).

We don’t believe, however, that Thorpe directs this Court to eliminate the clearly

established law prong in every case where a dispute of fact related to the defendant’s mental

state remains. 2 Critically, the Supreme Court has not so limited itself.

In Taylor v. Barkes,

575 U.S. 822

(2015) (per curiam), the Supreme Court reversed

the lower courts’ denial of qualified immunity. The lower courts had held there were

genuine issues of material fact as to whether there was an Eighth Amendment violation.

Yet the Court concluded that, even if that were so, qualified immunity nevertheless

attached because the right at issue was not clearly established.

Id. at 827

. Thus, we know

from Taylor that not all disputes of material fact as to deliberate indifference will freeze

our application of qualified immunity where warranted.

Instead, Eighth Amendment cases exist on a spectrum of intent and harm. Thorpe

most neatly applies to a prison doctor, who doesn’t need case law to tell him his patient

2 Defendants argue that Thorpe only applies to cases at the motion-to-dismiss stage. As discussed below, the lack of factual development at that stage does appear to have been relevant to the outcome in Thorpe. But Thorpe’s reasoning doesn’t hinge on its procedural posture. Moreover, this Court has already relied on Thorpe to vacate a grant of summary judgment where the district court found that the defendants may have intentionally discriminated against the plaintiff based on his religion yet nonetheless granted immunity because the defendants did not violate a clearly established right. Coleman v. Jones, No. 20-7382,

2022 WL 2188402

, at *6 (4th Cir. June 17, 2022) (unpublished but orally argued) (“[W]hen . . . there is a triable issue as to whether defendants engaged in a constitutional violation that incorporates intent as an element, qualified immunity may be inappropriate.”).

13 USCA4 Appeal: 21-1612 Doc: 88 Filed: 12/15/2022 Pg: 14 of 52

deserves fair treatment. Or a prison guard, who doesn’t need case law to tell him he can’t

abuse an inmate. Thorpe collapses qualified immunity’s two-pronged inquiry in these cases

because each prong merely duplicates the other’s work; these Eighth Amendment

violations inherently include knowing disregard for the law. See Thorpe, 37 F.4th at 938–

40.

But in other cases, there may be more attenuation between the risk of harm and the

defendant’s knowledge that his conduct is constitutionally deficient. And in these cases, a

defendant is less able to “use his own ‘state of mind’ as ‘a reference point’ to ‘assess

conformity to the law,’” as Thorpe envisions.

Id.

at 939 (quoting Thompson,

878 F.3d at 106

). Thorpe itself recognized this: “What Defendants actually demur is that they did not

know, until [a later] decision . . . , that the . . . conditions they promulgated posed a

substantial risk of serious harm in violation of the Eighth Amendment. They may well end

up on the winning side of that argument after the evidence comes in, but for now, these

fact[ual] issues compel us to move this case forward unless Defendants’ entitlement to

qualified immunity appears on the face of the complaint.” Id. at 935 (emphasis added)

(citations and internal quotation marks omitted).

This principle is illustrated by the very cases at hand—Thorpe on one end of the

spectrum, Taylor on the other. In Thorpe, we found (and the defendants didn’t even

challenge) that the plaintiffs adequately alleged that prison officials knew the harm that

long-term solitary confinement caused, yet disregarded it. Id. at 933. We emphasized the

officials’ consciousness of a serious risk of harm: that the plaintiffs suffered a range of

severe physical and mental harms, such as schizoaffective disorder, psychosis, bouts of

14 USCA4 Appeal: 21-1612 Doc: 88 Filed: 12/15/2022 Pg: 15 of 52

disorientation, and severe weight loss; that for years, the defendants “had daily contact with

[the p]laintiffs”; that the defendants had been pressured to abandon similar solitary-

confinement systems several times before; and that numerous studies and judicial

precedents had documented “the severe and often permanent damage caused by” such

systems. Id. at 935–96. In short, the harm was “obvious,” id. at 934, and “the pre-existing

law [was] not in controversy,” id. at 935 (quoting Ortiz v. Jordan,

562 U.S. 180, 190

(2011)).

Under those facts, which sufficiently alleged “an intentional violation of the Eighth

Amendment,” we concluded that the plaintiffs “‘also made a showing sufficient to

overcome any claim to qualified immunity.’” Id. at 934 (emphasis added) (quoting Beers-

Capitol,

256 F.3d at 142

n.15). We relied on the Supreme Court’s decision in Ortiz v.

Jordan, where the Court likewise declined to grant qualified immunity to officers who were

deliberately indifferent to an inmate’s safety. See

at 934–35. The facts in Ortiz, like

those in Thorpe, demonstrated an obvious harm, where prison officials failed to distance

the plaintiff from her assailant after they were “adequately informed” of a sexual assault.

Ortiz,

562 U.S. at 191

. Ortiz indicated that those facts plainly fell under the clearly

established law that the Eighth Amendment protects prisoners from situations where an

official knows they face a substantial risk of serious harm in the form of violence, but

“disregards that risk by failing to take reasonable measures to abate it.”

Id.

at 190 (quoting

Farmer,

511 U.S. at 847

In Taylor, by contrast, the Supreme Court examined whether a prison implemented

adequate suicide prevention protocols and concluded that the defendants were entitled to

15 USCA4 Appeal: 21-1612 Doc: 88 Filed: 12/15/2022 Pg: 16 of 52

qualified immunity because the right at issue was not clearly established. Unlike the

defendants in Thorpe and Ortiz, the Taylor defendants had not “personally interacted with

[the prisoner] or knew of his condition before his death.” Taylor, 575 U.S. at 824. A

constitutional violation could arise, then, only if the prison’s suicide-screening measures

were inadequate. Id. at 824–25. Yet as the Court opined, no case law actually identified

what minimum procedures a prison had to use. Id. at 826–27. Thus, the Court held that

“even if the [prison’s] suicide screening and prevention measures contained the

shortcomings that [the plaintiffs] allege[d], no precedent . . . would have made clear to [the

defendants] that they were overseeing a system that violated the Constitution.” Id. at 827.

Put another way, even if the defendants’ suicide-prevention protocols were wanting,

they weren’t clearly unconstitutional. The defendants’ states of mind in crafting those

policies, then, could not be a guiding compass to ensuring those policies met constitutional

muster, unlike in Thorpe. See Thorpe, 37 F.4th at 939 (stating that precedent isn’t needed

when an official can “use his own state of mind as a reference point to assess conformity

to the law” (citation and internal quotation marks omitted)). In such a case, the “clearly

established” prong of the qualified-immunity analysis continues to perform work

independent of the “constitutional-violation” prong—again, unlike in Thorpe. And so, in

cases like Taylor, even where they may be a dispute of material fact as to the underlying

constitutional violation, a court may still inquire into whether a right was clearly

established to determine if the defendants are entitled to qualified immunity.

To review, in order to defeat a defendant’s claim for qualified immunity, a plaintiff

must show: (1) a violation of a constitutional right, which in the case of alleged deliberate

16 USCA4 Appeal: 21-1612 Doc: 88 Filed: 12/15/2022 Pg: 17 of 52

indifference to serious medical needs requires a showing that (A) the alleged deprivation

was sufficiently serious (the objective prong) and (B) prison officials acted with deliberate

indifference (the subjective prong), which in turn requires a showing that the prison official

(i) had actual knowledge of the risk of harm and (ii) recognized that his actions were

insufficient to mitigate that risk of harm; and (2) that the constitutional right was clearly

established at the time of the defendant’s actions. If a plaintiff fails to satisfy either prong

of the qualified-immunity test, the defendant is entitled to qualified immunity. But in some

cases, like Thorpe, the court need not separately determine whether the constitutional right

was clearly established if there remains a genuine issue of material fact as to an official’s

deliberate indifference, because that potential deliberate indifference would, if established,

necessarily include an awareness of the illegality of the defendant’s actions.

We turn first to whether Dr. Wang, Pfaller’s primary physician, is entitled to

qualified immunity under this two-step framework. We conclude that (1) Plaintiff has

presented sufficient facts for a reasonable jury to find that Dr. Wang was deliberately

indifferent to Pfaller’s serious medical needs and (2) Pfaller’s right to treatment was clearly

established by 2015, the year of Dr. Wang’s first alleged violation. Thus, we affirm the

district court’s denial of qualified immunity to Dr. Wang.

Dr. Wang doesn’t contest Farmer’s first, objective prong that the alleged

deprivation here was sufficiently serious. Nor could he. We have previously found that this

17 USCA4 Appeal: 21-1612 Doc: 88 Filed: 12/15/2022 Pg: 18 of 52

prong is satisfied by failure to treat an “inmate’s serious medical needs,” including,

specifically, hepatitis C. Gordon v. Schilling,

937 F.3d 348

, 356–57 (4th Cir. 2019).

Dr. Wang’s dispute instead centers on the subjective prong and whether he was

deliberately indifferent to Pfaller’s hepatitis C. On this issue, the district court found that

Plaintiff had established at least two genuine disputes of material fact. The first dispute

concerns Dr. Wang’s failure to refer Pfaller for additional testing on two occasions. As the

court recognized, it is undisputed that Pfaller’s bloodwork qualified him for additional

testing three times: 1) on October 16, 2015, Pfaller’s FIB-4 score was 1.48, which exceeded

the 1.45 cutoff for referral; (2) on July 12, 2017, Pfaller had a FIB-4 score of 1.46, which

again exceeded the 1.45 cutoff; and (3) on May 7, 2018, Pfaller had an APRI of 0.55 and

a FIB-4 of 2.18, both of which exceeded the criteria for additional testing. But Dr. Wang

only referred Pfaller for a fibroscan after the last encounter. By then, it was much too late.

Drawing all reasonable inferences in Plaintiff’s favor, as we must at summary

judgment, Knibbs v. Momphard,

30 F.4th 200

, 213 (4th Cir. 2022), Plaintiff raises a

genuine issue of material fact as to whether Dr. Wang was deliberately indifferent.

Specifically, a reasonable jury could conclude that Dr. Wang knew Pfaller qualified for

additional testing but declined to do anything about it. As Dr. Wang acknowledges, he

understood that the Guidelines set the standard of care for the treatment of patients with

chronic hepatitis C. The Guidelines explicitly and unambiguously indicated that Pfaller

qualified on each occasion. It is a reasonable inference that Dr. Wang, as a staff physician,

was aware of those Guidelines.

18 USCA4 Appeal: 21-1612 Doc: 88 Filed: 12/15/2022 Pg: 19 of 52

This inference is further bolstered by the fact that, although the relevant portions of

the Guidelines did not change between June 2015 and May 2018, they were revised as a

whole at least six times in that time period. Presumably, Dr. Wang would have received a

copy of these revised guidelines each time; after all, he acknowledged the Guidelines set

the standard of care for treating prisoners with hepatitis C. If we infer that Dr. Wang did

his job and reviewed each copy carefully to ensure nothing important had changed, that

means he had at least six opportunities to confirm the FIB-4 cutoff for additional testing

was indeed 1.45. A reasonable jury could therefore infer that Dr. Wang knew the true APRI

and FIB-4 cutoffs but nevertheless declined to refer Pfaller for testing for two and a half

years.

Dr. Wang counters that he did not refer Pfaller because he made a simple mistake.

Specifically, he claims in his declaration that he “believed the inclusion number for the

[FIB-4] was 1.50 when in fact it was 1.45.” J.A. 1954. For support, Dr. Wang points to the

fact that once Pfaller’s FIB-4 score exceeded 1.5 on May 7, 2018, he referred him for a

fibroscan. Dr. Wang argues that without any direct evidence to contradict his account, there

is no genuine issue of material fact. At most, he contends, the facts show only negligence,

which is not enough to state an Eighth Amendment violation.

Like the district court, we decline at this stage to accept Dr. Wang’s self-serving

assertion as fact, for several reasons. First, Dr. Wang tries to bolster his claim of mistake

by noting that as soon as Pfaller’s FIB-4 score exceeded 1.5 on May 7, 2018—the number

he allegedly believed was the threshold—Dr. Wang referred him for testing. But as the

district court observed, Pfaller’s May 7 APRI score also exceeded the cutoff for additional

19 USCA4 Appeal: 21-1612 Doc: 88 Filed: 12/15/2022 Pg: 20 of 52

testing. So, critically, we have no way of knowing which score actually influenced Dr.

Wang’s referral, other than his own testimony. Moreover, the May 7, 2018, FIB-4 score

was 2.18—far higher than the earlier scores of 1.48 and 1.46. A reasonable jury could infer

that Dr. Wang opted to ignore the first two scores, despite knowing about the Guideline

cutoff, but felt the third score was too high to reasonably ignore.

Next is Dr. Wang’s testimony itself. To accept that Dr. Wang’s repeated errors were

at most mere negligence would require crediting his own self-serving assertion. Of course,

a jury may ultimately choose to credit Dr. Wang’s assertion over Plaintiff’s circumstantial

evidence that Dr. Wang was aware Pfaller qualified for further testing. But that decision

rests on an evaluation of Dr. Wang’s credibility, which we are not permitted to weigh at

the summary-judgment stage. See Hensley ex rel. North Carolina v. Price,

876 F.3d 573

584 n.6 (4th Cir. 2017). And while self-serving affidavits offered by the non-movant can

sometimes defeat summary judgment, e.g., Lovett v. Cracker Barrel Old Country Store,

Inc.,

700 F. App’x 209, 212

(4th Cir. 2017) (unpublished but orally argued), here it is the

movant—Dr. Wang—who offers his own statements as the key evidence in support of

summary judgment. That is insufficient. E.g., Knibbs, 30 F.4th at 222 (“Because [the

defendant] is the moving party, we are constrained to assume that the jury will not credit

his evidence and will instead accept the [plaintiff]’s proffered evidence on disputed fact

questions. . . . [We would] contravene[] Rule 56 [if we were to] accept[] [the

defendant]’s self-serving statements and read[] the evidence in the light most favorable

to him.”).

20 USCA4 Appeal: 21-1612 Doc: 88 Filed: 12/15/2022 Pg: 21 of 52

Moreover, even if we did credit Dr. Wang’s self-serving assertion, it is not the

panacea he believes it is. To accept Dr. Wang’s claim of mistake, we would need to assume

that he did not verify the Guidelines criteria either time he reviewed Pfaller’s bloodwork,

since the Guidelines explicitly set forth the 1.45 threshold for FIB-4 scores. But this, too,

raises an issue of deliberate indifference, because “prison officials may not simply bury

their heads in the sand and thereby skirt liability.” Makdessi v. Fields,

789 F.3d 126, 133

(4th Cir. 2015). For example, we have held that a prison guard may not avoid liability if he

“refused to verify ‘underlying facts that he strongly suspected to be true’ [or] ‘declined to

confirm inferences of risk that he strongly suspected to exist.’”

at 133–34 (quoting Brice

v. Va. Beach Corr. Ctr.,

58 F.3d 101, 105

(4th Cir. 1995)).

Here, it is undisputed that Dr. Wang knew Pfaller’s blood results fell right near the

line of warranting further screening. Yet, by his own account, he failed to check his guess

about their meaning against the Guidelines, despite knowing the increasing risk of liver

disease that higher scores denoted.

Finally, Dr. Wang is incorrect when he argues that Plaintiff has failed to produce

any evidence contradicting Dr. Wang’s account. To be sure, Plaintiff relies on

circumstantial evidence to establish an issue of material fact as to Dr. Wang’s deliberate

indifference. But that isn’t a problem. Our Court has consistently recognized that a plaintiff

can show subjective knowledge through circumstantial evidence. See, e.g.,

id. at 133

. After

all, rarely will courts see a case where a defendant readily agrees that he was deliberately

indifferent. And here, the fact alone that Dr. Wang failed to refer Pfaller for further testing

when he demonstrated signs of an increasingly serious medical condition “raises an

21 USCA4 Appeal: 21-1612 Doc: 88 Filed: 12/15/2022 Pg: 22 of 52

inference [of] deliberate indifference.” Scinto,

841 F.3d at 232

(quoting Miltier v. Beorn,

896 F.2d 848, 853

(4th Cir. 1990)).

Our colleague in dissent chafes against the inferences for Pfaller that we must make

at this stage. Instead, the dissent accepts one conclusion and one alone: that Dr. Wang made

a mistake. To be sure, not just one mistake, but two mistakes, in two different years.

Because Dr. Wang uttered it, the dissent concludes that it must be. And apparently it need

not matter that we can only believe this conclusion if we believe Dr. Wang himself—

undoubtedly a question weighing on his credibility and therefore the province of a jury

alone. But the law here is simple: we cannot contravene Rule 56 by crediting Dr. Wang’s

self-serving affidavit. See Knibbs, 30 F.4th at 222.

Beyond that most fundamental error, the dissent’s view comes with other hitches.

Take one: the dissent suggests that there’s no evidence Dr. Wang even read or knew the

Guidelines’ cutoffs at all. See Dissent at 44 (arguing that the Guidelines’ existence is not

evidence that Dr. Wang knew the correct thresholds for further testing or treatment). But

even accepting that Dr. Wang had “access” to the Guidelines yet did not “actually use[]

that information,” id. (quoting Danser v. Stansberry,

772 F.3d 340

, 348 n.10 (4th Cir.

2014)), that too demonstrates an issue of deliberate indifference for the reasons stated

earlier. That is, of course, if reasonable inferences are actually drawn as they should be at

summary judgment. And surely Dr. Wang himself would not go so far as to argue cavalierly

that he never even used the very Guidelines he testified were the Department’s standard of

22 USCA4 Appeal: 21-1612 Doc: 88 Filed: 12/15/2022 Pg: 23 of 52

care for treating hepatitis C. 3 See Farmer,

511 U.S. at 842

(explaining that the Eighth

Amendment doesn’t allow prison officials “to take refuge in the zone between ignorance

of obvious risks and actual knowledge of risks.” (citation and internal quotation marks

omitted)).

The district court also found that Plaintiff established a genuine dispute of material

fact as to whether Dr. Wang responded appropriately once he did finally request a fibroscan

for Pfaller. As noted earlier, Dr. Wang requested a fibroscan about a week after Pfaller’s

May 7 bloodwork came back. However, Dr. Wang did not definitively order a fibroscan

until July 11—around two months later. In the interim, Pfaller visited Dr. Wang several

times complaining of abdominal pain, swelling, a distended abdomen, and fluid retention.

All of these conditions are symptoms of advancing liver disease. Even though Dr. Wang

knew Pfaller “was on the list to be scheduled for a Fibroscan at VCU” and that no fibroscan

had taken place, J.A. 1958, Dr. Wang “did not press to have the previously ordered test

performed.” Pfaller,

2021 WL 1776189

, at *7. By the time he did, it was too late. Based

on these facts, we believe a reasonable jury could conclude that Dr. Wang knew about the

risk of Pfaller’s advancing liver disease yet took no concrete actions between May and July

2018 to diagnose or treat the disease.

3 The dissent also blurs the deliberate-indifference standard with an intent-to-harm standard. But it wasn’t Plaintiff’s burden to show that Dr. Wang acted with hope that Pfaller actually be harmed. “[I]t is enough that the official acted or failed to act despite his knowledge of a substantial risk of serious harm.” Farmer,

511 U.S. at 842

23 USCA4 Appeal: 21-1612 Doc: 88 Filed: 12/15/2022 Pg: 24 of 52

Dr. Wang’s arguments don’t persuade us otherwise. He argues that he took some

steps to follow up with Pfaller during this time, such as ordering hepatitis C genotype

testing and prescribing medication to alleviate Pfaller’s symptoms. While that is more than

nothing, a jury might conclude that Dr. Wang, as a medical doctor, must have known these

half measures “were insufficient to mitigate the [true] risk of harm” from liver cirrhosis

and cancer. Iko,

535 F.3d at 241

(citation, internal quotation marks, and emphasis omitted);

see also Heyer v. U.S. Bureau of Prisons,

849 F.3d 202, 211

(4th Cir. 2017) (“[T]he mere

fact that prison officials provide some treatment does not mean they have provided

‘constitutionally adequate treatment.’” (quoting De’lonta,

708 F.3d at 526

)).

Indeed, we rejected a similar set of facts in an analogy in De’lonta. There, we

imagined a scenario where prison officials prescribed a painkiller to a prisoner after a fall,

but the prisoner continued showing symptoms that “by all objective measure, [showed that

he] require[d] evaluation for surgery.” De’lonta,

708 F.3d at 526

. In that scenario, we

wondered, “[w]ould prison officials then be free to deny him consideration for surgery,

immunized from constitutional suit by the fact they were giving him a painkiller?”

The

answer was obvious: we thought not. See

Likewise, here. Dr. Wang wasn’t off the hook because he prescribed some

medication. It’s not a question of disagreement over Pfaller’s preferred care, as Dr. Wang

unpersuasively argues. See Hixson v. Moran,

1 F.4th 297

, 303 (4th Cir. 2021). Rather, it’s

a question of whether Pfaller failed to receive adequate treatment at all.

The dissent repeatedly chastises this Court for interfering in a matter of “prison

administration.” Dissent at 39, 47–48. But that’s not the issue in this appeal; instead, the

24 USCA4 Appeal: 21-1612 Doc: 88 Filed: 12/15/2022 Pg: 25 of 52

issue here concerns a prisoner’s constitutional right to adequate medical care. And while

the dissent makes much of Virginia’s policy priorities, see

id.

at 49–51, it places

considerably less emphasis on this constitutional guarantee.

Lest we forget, prisoners are entirely “dependent on the State for food, clothing, and

necessary medical care.” Brown v. Plata,

563 U.S. 493, 510

(2011). And a prison that

deprives prisoners of those needs “is incompatible with the concept of human dignity.”

Id. at 511

. We cannot turn a blind eye to such constitutional infirmities. Cf.

id.

(“Courts may

not allow constitutional violations to continue simply because a remedy would involve

intrusion into the realm of prison administration.”). In its rush to raise the alarm on a host

of policy concerns, the dissent ignores this Court’s most basic role—and the limits of that

role at summary judgment.

Based on the disputed issues of material fact here, we believe the appropriateness

of Dr. Wang’s actions should be resolved by a jury.

Having concluded that Plaintiff raises a genuine issue of material fact as to an Eighth

Amendment violation, we turn to the other prong of the qualified-immunity analysis—

whether Pfaller’s right to treatment was clearly established. Of course, if Dr. Wang’s

conduct sufficiently resembles that of the defendants in Thorpe, the analysis of the two

prongs collapses into one, and we must find that Pfaller has made a showing sufficient to

overcome qualified immunity at this stage. See Thorpe, 37 F.4th at 934. But, while we

believe the facts here more closely resemble Thorpe than Taylor, we need not expressly

decide whether to collapse our qualified immunity inquiry as to Dr. Wang. That’s because,

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either way, we reach the same outcome: Dr. Wang was on notice that he was violating

Pfaller’s constitutional rights.

First, we must define the right. The district court held that the right at issue is

“Pfaller’s Eighth Amendment right to receive adequate medical care and to be free from

officials’ deliberate indifference to his known medical needs.” Pfaller,

2021 WL 1776189

at *10. This, Dr. Wang argues, is far too general. Instead, he proffers that the proper inquiry

is “whether it would have been clear to Dr. Wang that he was providing inadequate medical

care in violation of the Eighth Amendment by failing to schedule a specific type of follow-

up test (fibroscan) for Pfaller until July 2018.” Wang’s Opening Br. at 24.

We disagree with Dr. Wang’s overly narrow articulation. First, his argument is

premised almost entirely on direction from the Supreme Court regarding Fourth

Amendment claims. But as we recognized in Thorpe, the Supreme Court has not demanded

the same level of specificity in Eighth Amendment cases. Thorpe, 37 F.4th at 940; see also

Hope, 536 U.S. at 738–39 (declining to inquire whether “the very action in question has

previously been held” to violate the Eighth Amendment and rejecting qualified immunity

because “the risk of harm is obvious”); Taylor v. Riojas,

141 S. Ct. 52

, 54 (2020) (per

curiam) (“Confronted with the particularly egregious facts of this case, any reasonable

officer should have realized that Taylor’s conditions of confinement offended the

Constitution.”).

As we explained in Scinto v. Stansberry, “[a] prisoner’s right to adequate medical

care and freedom from deliberate indifference to medical needs has been clearly

established by the Supreme Court and this Circuit since at least 1976.” Scinto,

841 F.3d at 26

USCA4 Appeal: 21-1612 Doc: 88 Filed: 12/15/2022 Pg: 27 of 52

236. As Pfaller’s treating physician, Dr. Wang was on notice at all relevant times—late

2015 through 2018—that he could not choose to delay or withhold treatment from Pfaller

when he knew it was medically necessary and was, in fact, mandated by the very

Guidelines he operated under. See

(holding that it was clearly established in 2005 that

denying a prisoner his prescribed insulin can violate the Eighth Amendment); Jehovah v.

Clarke,

798 F.3d 169

, 181–82 (4th Cir. 2015) (emphasizing that refusal to treat serious

medical needs can constitute deliberate indifference); Smith v. Smith,

589 F.3d 736, 739

(4th Cir. 2009) (explaining that delay in treatment can violate Eighth Amendment).

Take Smith as one case that put Dr. Wang on notice. There, an inmate alleged that

he was prescribed treatment by his doctor for a foot infection but was unable to receive any

treatment because a nurse later ripped up the order slip that authorized it. Smith,

589 F.3d at 737

. The district court held there was no constitutional violation, but we reversed. We

explained that “mere delay or interference [with medical treatment] can be sufficient to

constitute a violation of the Eighth Amendment.”

Id. at 739

. By destroying the means for

the inmate to access treatment, the nurse ultimately deprived him of necessary care. See

After Smith, Dr. Wang was on notice that he could not refuse necessary medical

care to Pfaller. In this case, his supervisor—the Department’s chief physician—had ordered

through the Guidelines that Pfaller receive further testing when his FIB-4 score rose above

a specific level. That level was high enough to indicate progression of his hepatitis C and

worrying signs of liver disease. Yet Dr. Wang allegedly ignored this directive and delayed

the necessary treatment—for two and a half years. Smith, along with our other Eighth

Amendment cases, put him on notice that this denial of care was constitutionally deficient.

27 USCA4 Appeal: 21-1612 Doc: 88 Filed: 12/15/2022 Pg: 28 of 52

Dr. Wang counters that Smith “does not establish, much less clearly establish, that

monitoring a patient’s chronic [hepatitis C virus] is unconstitutional.” Wang’s Reply Br. at

6–7. But clearly established law doesn’t require identical facts. None of the above cases,

of course, deal with the precise issue of hepatitis C treatment. But requiring such specificity

in the case of a treatment provider’s decisions would allow a doctor limitless opportunity

to deny medical care unless the precise required treatment for a specific underlying illness

had been addressed by our Court. We decline to distort qualified immunity into such an

absolute immunity.

Likewise, Dr. Wang was on notice that providing some care—even if unreasonable

or deficient—does not clear the constitutional bar. See Jehovah, 798 F.3d at 181–82

(establishing that providing “some treatment” but ignoring or failing to treat other serious

symptoms can violate the Eighth Amendment); De’lonta, 330 F.3d at 635. Thus, he was

on notice that failing to adequately respond to Pfaller’s signs of severe liver disease in 2018

could also be constitutionally deficient. The district court was correct to deny qualified

immunity to Dr. Wang at this stage.

Next, we address whether Dr. Amonette, the Department’s chief physician who

designed the Guidelines, is entitled to qualified immunity. Given the difference in the roles

that Dr. Amonette and Dr. Wang played, it is necessary to analyze them separately. See

Thompson,

878 F.3d at 107

. And ultimately, the two officials go on separate tracks.

We will assume without deciding that Dr. Amonette’s actions amounted to

deliberate indifference and turn directly to the question of how to consider the clearly

28 USCA4 Appeal: 21-1612 Doc: 88 Filed: 12/15/2022 Pg: 29 of 52

established prong of the qualified-immunity analysis. We conclude that Dr. Amonette’s

conduct appears closer to the defendants’ conduct in Taylor than in Thorpe, so we must

proceed to our usual “clearly established” inquiry. And, after evaluating the case law, we

conclude that Dr. Amonette was not on sufficient notice that he was violating a clearly

established right.

To start, it bears emphasizing that “the lodestar for whether a right was clearly

established is whether the law ‘gave the officials “fair warning” that their conduct was

unconstitutional.’” Iko,

535 F.3d at 238

(quoting Ridpath v. Bd. of Governors Marshall

Univ.,

447 F.3d 292

, 313 (4th Cir. 2006)). The district court defined the constitutional right

at issue for Dr. Amonette in the same way it defined it as to Dr. Wang: “Pfaller’s Eighth

Amendment right to receive adequate medical care and to be free from officials’ deliberate

indifference to his known medical needs.” Pfaller, 630 B.R. at 215. But while the case law

establishing that right sufficed to give Dr. Wang fair warning that he could not deny

necessary medical treatment to Pfaller as his primary care provider, it was not enough to

give Dr. Amonette fair warning that his system-wide treatment Guidelines for a new drug

were constitutionally deficient. Those contexts differ.

Like the defendants in Taylor, Dr. Amonette never “personally interacted with”

Pfaller. Taylor, 575 U.S. at 824. He only learned of Pfaller’s medical condition shortly

29 USCA4 Appeal: 21-1612 Doc: 88 Filed: 12/15/2022 Pg: 30 of 52

before Pfaller’s cancer diagnosis. So Dr. Amonette’s conduct could have violated the

Constitution only if the Guidelines themselves were inadequate. 4

On this question, we must remember qualified immunity’s purpose: it “gives

government officials breathing room to make reasonable but mistaken judgments about

open legal questions.” Ashcroft,

563 U.S. at 743

. And here, there was—and remains—an

open question as to what kind of treatment protocol for administering direct-acting

antivirals is constitutionally sufficient in a prison system.

Dr. Amonette, for his part, created a system of prioritization where the sickest

inmates received treatment first. Those that did not qualify for treatment nonetheless

received continuous monitoring. At the time, the medical community and the Federal

Bureau of Prisons agreed. They recognized that while immediate treatment of all hepatitis

C patients was recommended, prioritization was reasonable where resources were limited.

The district court, of course, found there was a genuine issue of material fact as to

whether the Department’s resources were actually limited. The limitation at issue here was

the number of providers at the VCU clinic who could provide treatment to inmates. Dr.

Amonette relied on VCU’s specialty providers because he believed it was not “clinically

4 To be sure, we do not hold that an official must have personally interacted with a prisoner to have violated the Eighth Amendment. In fact, we have expressly rejected that view in a case involving Dr. Amonette himself. See Gordon, 937 F.3d at 362 (“Put simply, Amonette may not escape liability by claiming that he did not know the identities of the inmates who would suffer under his policies.”). But the attenuation between Dr. Amonette’s conduct and the risk here is relevant to why we find this case more similar to Taylor than Thorpe and therefore why it is necessary to delve into the clearly established law analysis.

30 USCA4 Appeal: 21-1612 Doc: 88 Filed: 12/15/2022 Pg: 31 of 52

appropriate” to have the Department’s own primary care providers prescribe the new

direct-acting antivirals “without specialty input.” J.A. 117.

Plaintiff’s expert, however, stated that the Department’s providers could have felt

comfortable treating inmates with direct-acting antivirals. Even assuming that is true, we

find it notable that this dispute over resources arises directly from the novelty of the drug

and the open question of how to appropriately prescribe it. Under these facts, we decline

to hold that Dr. Amonette was clearly on notice that he should have ordered the

Department’s primary care providers to prescribe this novel treatment rather than referring

patients to specialists for treatment.

Meanwhile, various Courts of Appeals opinions have cut different ways regarding

whether similar treatment guidelines pass constitutional muster or violate clearly

established law. Compare Atkins v. Parker,

972 F.3d 734

, 739–40 (6th Cir. 2020) (holding

that prison medical director was not deliberately indifferent for failing to provide direct-

acting antivirals to all inmates), Hoffer v. Sec’y, Fla. Dep’t of Corr.,

973 F.3d 1263

, 1277

(11th Cir. 2020) (same), and Bernier v. Allen,

38 F.4th 1145

, 1157 (D.C. Cir. 2022)

(finding there was no clearly established right in 2015 that inmate should immediately

receive new antiviral treatment), with Abu-Jamal v. Kerestes,

779 F. App’x 893

, 900 (3d

Cir. 2019) (holding that denying direct-acting antivirals to inmate could constitute an

Eighth Amendment violation).

This varying case law shows the inherent gray area that Dr. Amonette was operating

in. And “qualified immunity protects public officials from bad guesses in gray areas.”

Durham v. Horner,

690 F.3d 183, 190

(4th Cir. 2012) (citation and internal quotation marks

31 USCA4 Appeal: 21-1612 Doc: 88 Filed: 12/15/2022 Pg: 32 of 52

omitted); see also Taylor, 575 U.S. at 825 (“We do not require a case directly on point, but

existing precedent must have placed the statutory or constitutional question beyond

debate.” (quoting Ashcroft,

563 U.S. at 741

)). Tasked with designing a treatment regimen

for a novel drug, Dr. Amonette wasn’t given notice by our case law that his ultimate

choice—a system that prioritized treatment with direct-acting antivirals for the sickest

patients while offering monitoring for others—was (as we have assumed) deficient. And

the record, as the district court interpreted it, doesn’t sufficiently show that Dr. Amonette

knew that the Guidelines, while wanting, violated the Eighth Amendment. “In short, even

if the [Guidelines] contained the shortcomings that [Plaintiff] allege[d], no precedent on

the books in [2015] would have made clear to [Dr. Amonette] that [he was] [designing] a

system that violated the Constitution.” Taylor, 575 U.S. at 827.

That, of course, doesn’t mean that the novelty of a treatment regimen will always

immunize an official’s bad guess. There are certainly situations where the risk of medical

harm is obvious and a right to a specific treatment was clearly established. See Hope, 536

at 741 (“[O]fficials can still be on notice that their conduct violates established law even in

novel factual circumstances.”). But we can’t say that’s the case here. A prisoner’s

purported right not to be subjected to a treatment regimen that prioritized antiviral

treatment to prisoners with the most advanced levels of fibrosis was not clearly established

when Dr. Amonette designed the Guidelines in 2015.

III.

The final question posed in this appeal is whether Dr. Wang is entitled to sovereign

immunity on Pfaller’s medical-malpractice claim. On appeal, Dr. Wang claims that he is

32 USCA4 Appeal: 21-1612 Doc: 88 Filed: 12/15/2022 Pg: 33 of 52

entitled to summary judgment on Plaintiff’s medical-malpractice claim because, as a

Virginia state employee, he is shielded by derivative sovereign immunity. We agree.

In Virginia, to determine whether derivative sovereign immunity applies to a state

employee, a court must “focus on four, non-exclusive factors.” Patterson v. City of

Danville,

875 S.E.2d 65

, 70 (Va. 2022). These factors are (1) “the function th[e] employee

was performing”; (2) “the extent of the state’s interest and involvement in that function”;

(3) “[w]hether the act performed involves the use of judgment and discretion”; and (4) “the

degree of control and direction exercised by the state over the employee.” James v. Jane,

282 S.E.2d 864, 869

(Va. 1980). “Because this multi-factor test is broadly worded and

capable of disparate applications,” courts should conduct a “fine-grained analysis that

looks to prior applications involving fact patterns that most closely parallel the case before

[them].” Patterson, 875 S.E.2d at 70 (citation and internal quotation marks omitted). And

here, we are aided by a recent Supreme Court of Virginia decision that involves another

medical-malpractice claim brought against none other than Dr. Wang himself. That

decision, Patterson v. City of Danville, which arrived while this appeal was pending,

largely controls the outcome here.

The first two factors—the nature of the function performed by the employee and the

extent of the Government’s interest and involvement in that function—are usually

considered together. See, e.g., Lohr v. Larsen,

431 S.E.2d 642, 644

(Va. 1993). In general,

“if the function that a government employee was negligently performing was essential to a

governmental objective and the government had a great interest and involvement in that

function, those factors would weigh in favor of the employee’s claim of sovereign

33 USCA4 Appeal: 21-1612 Doc: 88 Filed: 12/15/2022 Pg: 34 of 52

immunity.”

In contrast, “if that function has only a marginal influence upon a

governmental objective, and the government’s interest and involvement in that function

are ‘slight,’” sovereign immunity is disfavored.

(quoting James,

282 S.E.2d at 870

The district court found that both factors weighed against sovereign immunity in the

present case. Specifically, the court noted that while Virginia “undoubtedly has an

important interest [in] the provision of medical care to inmates, . . . the state’s ‘paramount’

interest at [the prison] is incarceration.” Pfaller,

2021 WL 1776189

, at *12. Based on its

reading of Virginia case law, the court concluded that “if the state’s paramount interest is

not the provision of medical care, these factors weigh against sovereign immunity.”

Id.

That reading was squarely rejected by the Supreme Court of Virginia’s subsequent

decision in Patterson. In that case, the court considered whether derivative sovereign

immunity extended to Dr. Wang as an employee at another, minimum-security facility.

Patterson, 875 S.E.2d at 67. The court noted that Dr. Wang’s function—providing medical

care to incarcerated patients—“was not simply a benevolent act of governmental grace.”

Id. at 72. Rather, the state “had a constitutional and statutory duty to provide medical care

to incarcerated patients” through physicians like Dr. Wang. Id. “In such circumstances, the

governmental ‘interest and involvement’ is at its apogee.” Id. (citation omitted). So, the

court concluded that “[t]here can be little doubt” that the first two factors of the test favored

sovereign immunity. Id.

This case fares no different. Dr. Wang’s function at Pfaller’s prison was to provide

medical care to incarcerated patients, just as it was in Patterson. Under federal and state

law, Virginia is required to provide such care. See

Va. Code Ann. § 53.1-32

(A); Williams

34 USCA4 Appeal: 21-1612 Doc: 88 Filed: 12/15/2022 Pg: 35 of 52

v. Commonwealth,

810 S.E.2d 885, 888

(Va. 2017). In those circumstances, the state’s

interest and involvement in that function “is at its apogee.” Patterson, 875 S.E.2d at 72.

The district court erred by discounting that interest and focusing too heavily on the state’s

“paramount” interest in incarceration. Under Patterson, the first two factors clearly weigh

in favor of finding sovereign immunity.

The third factor—whether the act performed involves the use of judgment and

discretion—is a closer call. If the challenged act involves “broad discretion,” that tends to

“weigh heavily in favor of a government employee’s claim of immunity.” Lohr,

431 S.E.2d at 645

. Conversely, if the employee is merely “performing a ministerial act,” they will

likely be liable in negligence.

The district court found this factor weighed against sovereign immunity because

“Wang’s discretion was severely curtailed by the [Department] Guidelines.” Pfaller,

2021 WL 1776189

, at *13. Specifically, it noted the Department “prescribed the course of

monitoring and treatment for inmates with Hepatitis C” via the Guidelines, “and Wang’s

role was to follow that prescription.”

Id.

So, it concluded that Dr. Wang was performing a

primarily ministerial act, which is not shielded by sovereign immunity.

This analysis undercounts Dr. Wang’s discretion. Although his discretion was

constrained by the Guidelines, it was not eliminated. Even if patients like Pfaller did not

meet the APRI and FIB-4 cutoffs, Dr. Wang could still request a referral if he concluded

that those patients were displaying other symptoms “suggestive of advanced liver disease.”

J.A. 240. And as the district court recognized, in certain “emergency circumstances” Dr.

Wang could circumvent the Guidelines criteria entirely. Pfaller,

2021 WL 1776189

, at *13.

35 USCA4 Appeal: 21-1612 Doc: 88 Filed: 12/15/2022 Pg: 36 of 52

Decisions like these necessarily involve “the use of judgment and discretion.” Lohr,

431 S.E.2d at 645

; see also Pike v. Hagaman,

787 S.E.2d 89, 93

(Va. 2016) (nurse “was

exercising discretion in caring for” plaintiff even if discretion was cabined by doctor’s

orders); cf. Patterson, 875 S.E.2d at 72 (noting that the Supreme Court of Virginia’s “cases

uniformly emphasize the highly discretionary character of professional medical care”).

Thus, while this factor tends to weigh against immunity, the district court overstated by

how much.

That leaves the fourth factor: the degree of government control over the employee.

In general, “[a] high level of control weighs in favor of immunity; a low level of such

control weighs against immunity.” Lohr,

431 S.E.2d at 646

. At first glance, this fourth

factor (government control) appears to be at odds with the third factor (employee

discretion). However, the Supreme Court of Virginia has clarified that government control

has “diminished relevance . . . in the context of a medical professional.” Patterson, 875

S.E.2d at 71. After all, “when a government employee is specially trained to make

discretionary decisions”—like a medical professional is—“the government’s control must

necessarily be limited in order to make maximum use of the employee’s special training

and subsequent experience.” Lohr,

431 S.E.2d at 646

. Therefore, when examining

government control of state physicians, we are less concerned with the government’s

control of the disputed action at issue (which necessarily involves the use of medical

judgment), and more concerned with the government’s control of the physician’s work

environment in general. See

(examining whether the clinic controlled the patients seen

by the provider, the equipment he used, and the procedures he could perform).

36 USCA4 Appeal: 21-1612 Doc: 88 Filed: 12/15/2022 Pg: 37 of 52

For example, in Patterson, the Supreme Court of Virginia found this factor weighed

in favor of sovereign immunity because the evidence showed, among other things, that Dr.

Wang (1) “had no control over the patients that he was obligated to treat”; (2) was required

to use “City-owned medical equipment and supplies”; (3) “did not possess or control any

of the medical records of his patients”; (4) “was governed by medical policies and

procedures promulgated by the Virginia Board of Corrections”; and (5) was subject to

supervision by the prison director. Patterson, 875 S.E.2d at 73.

In the instant case, the district court concluded that this factor weighed in favor of

sovereign immunity for many of the same reasons: (1) Dr. Wang “cannot choose his own

patients or refuse to see certain patients”; (2) “[a]ll the equipment he uses is provided by”

the Department; and (3) he was required to follow the Department’s Guidelines when

treating hepatitis C patients. Pfaller,

2021 WL 1776189

, at *14. Given the similarities of

these facts to those that the Supreme Court of Virginia found determinative in Patterson,

we agree with the district court that this factor favors sovereign immunity.

Overall, three of the four factors strongly weigh in favor of sovereign immunity,

and one only moderately weighs against it. Therefore, we conclude that the district court

erred by rejecting Dr. Wang’s sovereign-immunity defense.

IV.

For the foregoing reasons, we affirm the district court’s denial of qualified immunity

to Dr. Wang on the Eighth Amendment claim. But we must reverse the denial of qualified

immunity to Dr. Amonette. Additionally, we reverse the denial of sovereign immunity to

37 USCA4 Appeal: 21-1612 Doc: 88 Filed: 12/15/2022 Pg: 38 of 52

Dr. Wang on the medical-malpractice claim. We remand for further proceedings consistent

with this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED

38 USCA4 Appeal: 21-1612 Doc: 88 Filed: 12/15/2022 Pg: 39 of 52

WILKINSON, Circuit Judge, concurring in part and dissenting in part:

The plaintiff’s Eighth Amendment claim against Dr. Wang fails as a matter of law.

The undisputed facts show that Dr. Wang was not deliberately indifferent to Pfaller’s

serious medical needs. Pfaller proffered no evidence that Dr. Wang “had actual

knowledge” that not ordering fibroscan testing when Pfaller’s FIB-4 scores were 1.46 and

1.48 created “an excessive risk” to his health. Danser v. Stansberry,

772 F.3d 340, 347

(4th

Cir. 2014). Nor was the risk “so obvious” that Dr. Wang must have known of it. Rish v.

Johnson,

131 F.3d 1092, 1099

(4th Cir. 1997). Rather, all the evidence suggests that Dr.

Wang acted in good faith and was, at worst, negligent. Because there is no evidence to the

contrary, the “undisputed facts demonstrate” no violation of Pfaller’s constitutional rights.

Winfield v. Bass,

106 F.3d 525

, 533 (4th Cir. 1997) (en banc).

The Supreme Court has clearly instructed that Eighth Amendment deliberate-

indifference claims are the narrow exception to the general rule that federal courts should

not second-guess the medical judgments of doctors in state prisons. The Court has stated

in no uncertain terms that “an inadvertent failure to provide adequate medical care” or a

physician’s “negligent” diagnosis or treatment does not violate the Eighth Amendment.

Estelle v. Gamble,

429 U.S. 97

, 105–06 (1976). The majority contravenes Estelle and

collapses the distinction between deliberate indifference and negligence. In so doing, it

further thrusts the federal courts into the minutiae of state prison administration to the

detriment of the Constitution’s reservation of powers to the states and sound state

policymaking.

39 USCA4 Appeal: 21-1612 Doc: 88 Filed: 12/15/2022 Pg: 40 of 52

When deliberate indifference bleeds into negligence, the losers will ultimately be

inmates themselves. Inmates deserve decent medical care. Yet prison practice is not a

desirable option for many physicians. Many doctors prefer to treat patients who have not

been convicted of serious crimes. It would seem elemental that law should counter, not

contribute to, these disincentives. Yet while doctors outside prison gates enjoy robust

protections against negligent medical-malpractice suits, those treating the incarcerated

face, as here, Eighth Amendment negligence claims in contravention of the deliberate-

indifference standard. Virginia law, as the panel unanimously concludes, would not permit

this suit to proceed. See Patterson v. City of Danville,

875 S.E.2d 65

(Va. 2022). Yet

Virginia’s red light is superseded by the majority’s green.

Privileging prisoner suits in this manner will chase more willing or altruistic doctors

away. It is sad indeed that Pfaller died. It would also be sad, and very wrong, if we were to

lay his death at this doctor’s door. Diluting the deliberate-indifference standard, and

running roughshod over Virginia law, not only fractures our federal system. It will consign

inmates over time to ever more substandard medical care.

We must journey to the headwaters of prisoner Eighth Amendment medical-care

claims in order to appreciate how undesirably far from the Supreme Court’s teachings we

have come. See Estelle v. Gamble,

429 U.S. 97

(1976). The language of limitation flows

throughout the Estelle opinion. Estelle concluded that “deliberate indifference to serious

medical needs of prisoners constitutes the unnecessary and wanton infliction of pain

proscribed by the Eighth Amendment.”

429 U.S. at 104

(quotation marks and citation

40 USCA4 Appeal: 21-1612 Doc: 88 Filed: 12/15/2022 Pg: 41 of 52

omitted). But this does not mean “that every claim by a prisoner that he has not received

adequate medical treatment states a violation of the Eighth Amendment.”

Id. at 105

. Rather,

“an inadvertent failure to provide adequate medical care cannot be said to constitute an

unnecessary and wanton infliction of pain or to be repugnant to the conscience of

mankind.”

Id.

at 105–06 (quotation marks omitted). So, “a complaint that a physician has

been negligent in diagnosing or treating a medical condition does not state a valid claim of

medical mistreatment under the Eighth Amendment.”

Id. at 106

. “Medical malpractice” is

not a “constitutional violation.”

Id.

The facts of Estelle are instructive. “Even applying the[] liberal standards”

applicable to pro se complaints, the Court held that the plaintiff failed to state an Eighth

Amendment claim against his treating physician.

Id. at 107

. The plaintiff’s doctors had

diagnosed his injury and prescribed medication, but the plaintiff complained that he should

have received additional diagnostic testing and treatment.

Id.

The Court disagreed, noting

that “the question whether an X-ray or additional diagnostic techniques or forms of

treatment is indicated is a classic example of a matter for medical judgment.”

Id.

The

“medical decision not to order an X-ray, or like measures, does not represent cruel and

unusual punishment” and is “[a]t most . . . medical malpractice.”

Id.

The Court held that

the plaintiff’s complaint against his doctor did not survive a motion to dismiss,

id.

at 108—

a conclusion that applies with special force here given that Pfaller needed to meet an even

higher burden at summary judgment, see infra Part II. Thus, Estelle created the Eighth

Amendment deliberate-indifference claim but, from the very beginning, limited such

41 USCA4 Appeal: 21-1612 Doc: 88 Filed: 12/15/2022 Pg: 42 of 52

claims to conduct that is far more egregious than mere negligence and indeed far more

egregious than anything that took place in this case.

Estelle controls this decision.

II.

Our circuit has tried to give effect to Estelle and its progeny by establishing a “very

high standard” that deliberate-indifference plaintiffs must meet to survive a defendant’s

motion for summary judgment. Danser,

(quoting Grayson v. Peed,

195 F.3d 692, 695

(4th Cir. 1999)). The majority today ignores that standard, strays from Estelle

and our caselaw, and collapses the distinction between deliberate indifference and

negligence. In truth, the undisputed facts refute the suggestion that Dr. Wang was

deliberately indifferent to Pfaller’s medical needs.

Let’s give Estelle its due. To establish deliberate indifference, a plaintiff must

“show[] that the prison official ‘kn[ew] of and disregard[ed] an excessive risk to inmate

health or safety.’” Danser,

(quoting Farmer v. Brennan,

511 U.S. 825, 837

(1994)). This is a “very high standard,” Grayson,

195 F.3d at 695

, “which requires that a

plaintiff introduce evidence suggesting that the prison official had actual knowledge of an

excessive risk” to the plaintiff’s health or safety, Danser,

(emphasis

added). The official “must both be aware of facts from which the inference could be drawn

that a substantial risk of serious harm exists, and he must also draw the inference.”

(quotation marks omitted). Crucially, a plaintiff’s “unsupported speculation” that the

defendant was aware of the risk “is insufficient to create a disputed issue of material fact

42 USCA4 Appeal: 21-1612 Doc: 88 Filed: 12/15/2022 Pg: 43 of 52

for purposes of summary judgment.”

at 348 n.10; see Elliott v. Leavitt,

99 F.3d 640, 644

(4th Cir. 1996).

Rather, a plaintiff can show actual knowledge in either of two ways: The plaintiff

can produce “direct evidence supporting a conclusion that the prison officials actually

knew” of a risk of harm—for instance, “deposition testimony or affidavit[s].” Rish,

131 F.3d at 1099

. Short of such direct evidence, the plaintiff can demonstrate knowledge

through “circumstantial evidence” by showing that the “risk was so obvious that it can be

inferred that the prison officials knew of it.”

(citing Farmer,

511 U.S. at 842

); see Brice

v. Va. Beach Corr. Ctr.,

58 F.3d 101, 105

(4th Cir. 1995) (noting that the risk must be “so

obvious . . . that the [officer] did know of it because he could not have failed to know of

it.”). If the plaintiff cannot make at least one of these showings, his deliberate-indifference

claim fails as a matter of law. See Rish, 131 F.3d at 1100–01; Danser, 772 F.3d at 348–49.

The undisputed facts here negate any possibility of deliberate indifference and

instead show Dr. Wang’s good faith. The plaintiff failed to produce even an iota of

evidence that Dr. Wang was deliberately indifferent to Pfaller’s serious medical needs. He

produced no direct evidence that Dr. Wang had actual knowledge of an excessive risk to

his health. Nor was the risk so obvious that Dr. Wang must have known of it. All Pfaller

can muster is “unsupported speculation” that Dr. Wang was aware of the risk, which “is

insufficient to create a disputed issue of material fact for purposes of summary judgment.”

Danser,

772 F.3d at 348

n.10.

43 USCA4 Appeal: 21-1612 Doc: 88 Filed: 12/15/2022 Pg: 44 of 52

Pfaller first alleges that Dr. Wang was deliberately indifferent in failing to order a

fibroscan when Pfaller’s FIB-4 scores were 1.48 in October 2015 and 1.46 in July 2017.

See J.A. 1954–57; Br. of Appellee at 10–11. He argues that Dr. Wang was deliberately

indifferent because he ignored the VDOC guidelines recommending fibroscans for FIB-4

scores greater than 1.45. Br. of Appellee at 10–11; see J.A. 1954–55. But the VDOC

guidelines are not evidence that Dr. Wang knew the correct thresholds and ignored them:

“[D]efendants’ mere access to information [is] insufficient to show on summary judgment

that defendants actually used that information.” Danser,

772 F.3d at 348

n.10 (citing

Othentec Ltd. v. Phelan,

526 F.3d 135, 142

(4th Cir. 2008)). Pfaller produced no evidence

that Dr. Wang “had actual knowledge” that not ordering a fibroscan when Pfaller’s FIB-4

scores were 1.48 and 1.46 would create an “excessive risk” to his health. Id. at 347.

Nor was this risk “so obvious” that Dr. Wang must have known about it. Rish,

131 F.3d at 1099

. The lack of obvious risk here is apparent given the undisputed facts: Pfaller

showed no symptoms of liver decompensation when these FIB-4 scores were calculated.

See J.A. 1713–14. Dr. Wang was a family medicine doctor, not a specialist in HCV.

1496–97. And the actual VDOC FIB-4 cutoff (1.45) was very close to and easily confused

with what Dr. Wang believed to be the cutoff (1.5), and a different VDOC HCV policy

used 1.5 as its cutoff. See

at 1954–55. This is scarcely the sort of mistake that was so

obvious that Dr. Wang must have been aware of it.

Pfaller also argues that Dr. Wang exhibited deliberate indifference between May

and July 2018, when he ordered a fibroscan but did not immediately follow up. Br. of

Appellee at 10–11. But Pfaller has introduced no evidence that in so doing, Dr. Wang

44 USCA4 Appeal: 21-1612 Doc: 88 Filed: 12/15/2022 Pg: 45 of 52

“knew of and disregarded an excessive risk” to Pfaller’s health. Danser,

(quotation marks omitted and alterations adopted).

The following facts are undisputed: Dr. Wang calculated Pfaller’s FIB-4 score to be

2.18 on May 9, 2018 and ordered a fibroscan less than a week later, on May 14. J.A. 1958.

There was no way for Dr. Wang to conduct a fibroscan himself; he had to request that a

third party, VCU, schedule Pfaller for a fibroscan.

Dr. Wang saw Pfaller twice in June

for symptoms of liver disease and prescribed him seven different medications to relieve

those symptoms.

at 1958–59. At this time, Dr. Wang knew that Pfaller was already “on

the list to be scheduled for a Fibroscan at VCU.” Id. at 1958. When Pfaller appeared in Dr.

Wang’s clinic on July 11, 2018 “with complaints of fullness in his abdomen,” Dr. Wang

followed up with VCU, ordering a fibroscan “asap.” Id. at 1959.

As a matter of law, these undisputed facts do not establish deliberate indifference.

There is no evidence that Dr. Wang actually knew that his course of action—continuing to

treat Pfaller with medication while waiting for VCU to complete his request for a

fibroscan—created an excessive risk to Pfaller’s health. Nor was this risk so obvious that

Dr. Wang must have been aware of it: There is surely some reasonable period that a doctor

might wait after ordering testing from a third party. That decision, like the question whether

to order “additional diagnostic techniques” in the first place, “is a classic example of a

matter for medical judgment.” Estelle,

429 U.S. at 107

. Treating Pfaller with medication

while waiting a month or two for VCU to conduct a fibroscan was a “medical judgment”

that “does not represent cruel and unusual punishment.”

Id.

45 USCA4 Appeal: 21-1612 Doc: 88 Filed: 12/15/2022 Pg: 46 of 52

Even assuming, purely arguendo, that Dr. Wang had actual knowledge of a

substantial risk to Pfaller’s health, no case can be made that Dr. Wang deliberately

disregarded that risk. See Estelle,

429 U.S. at 104

; Danser,

. There is not a

single shred of evidence that Dr. Wang had any animus or other motive to deliberately

ignore Pfaller’s medical needs. Why would he? Did he possess some malevolent

temperament? Did he bear some grudge against Pfaller? The majority does not and cannot

suggest any such thing. Given the dearth of evidence of deliberateness in the record, no

reasonable person could conclude that this element of the deliberate-indifference standard

was met.

Far from deliberately ignoring Pfaller’s needs, the undisputed facts show that Dr.

Wang tried to treat Pfaller’s HCV and made, at worst, honest mistakes about the FIB-4

threshold for fibroscan testing. Dr. Wang did not order a fibroscan when Pfaller’s FIB-4

scores were below what he believed to be the threshold, but he did order one as soon as

Pfaller received a score above that value. See J.A. 1958. Once again, when Pfaller presented

with symptoms of liver disease in June 2018, Dr. Wang prescribed him seven different

types of medication.