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Darrah v. Krisher

United States Court of Appeals, Sixth Circuit

July 26, 2017

Kevin Darrah, Plaintiff-Appellant,
v.
Dr. Krisher; Dr. Andrew Eddy; Karen Stanforth; Dr. David Weil, Defendants-Appellees.

          Argued: December 7, 2016

         Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 2:12-cv-00899-George C. Smith, District Judge.

         ARGUED:

          Dorianne Mason, OHIO JUSTICE & POLICY CENTER, Cincinnati, Ohio, for Appellant.

          Debra Gorrell Wehrle, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees.

         ON BRIEF:

          David Singleton, A. Dominick Romeo, Mark Clark, OHIO JUSTICE & POLICY CENTER, Cincinnati, Ohio, for Appellant.

          Debra Gorrell Wehrle, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees.

          Before: BOGGS, GILMAN, and DONALD, Circuit Judges.

          OPINION

          BERNICE BOUIE DONALD, Circuit Judge.

          Kevin Darrah, an inmate at the Madison Correctional Institution ("MCI") in London, Ohio, filed suit against Defendants, Doctors Krisher, Eddy, and Weil and Nurse Stanforth, under 42 U.S.C. § 1983, claiming that by denying and delaying necessary medical treatment, Defendants violated his right to be free from cruel and unusual punishment under the Eighth Amendment. The district court granted Defendants' motion for summary judgment. Darrah now challenges the district court's grant of summary judgment on appeal. For the reasons that follow, we REVERSE the district court's order and REMAND this case for further proceedings consistent with this opinion.

         I.

         Following his conviction and sentence in 2006, Darrah was committed to the custody of the Ohio Department of Rehabilitation and Correction ("ODRC"). Prior to this, Darrah had been diagnosed with Palmo-Plantar-Hyper-Keratoderma ("HPK"), a severe form of psoriasis that causes debilitating pain from large and deep fissures that form on the bottom of the feet. In December 2006, Darrah was transferred to the Lebanon Correctional Institute ("LCI"), where dermatologists at the medical center examined his HPK and noted that it had been treated successfully with Soriatane, and that multiple other treatments had proven ineffective. Following this diagnosis, the LCI medical center prescribed Soriatane, a drug that was outside of the ODRC's "Drug Formulary."

         The ODRC maintains a Drug Formulary specifically developed for the ODRC and its institutions. The formulary "lists standardized medications that may be prescribed and dispensed for inmates by advanced-level providers without prior authorization from . . . the ODRC Office of Correctional Health Care." (R. 40-9, PageID # 269.) According to Defendant Eddy, medications that are not listed on the ODRC's Drug Formulary require a prior authorization. This is done through a request from an advanced-level provider. However, ODRC regulations require that "[m]edications on the ODRC's Drug Formulary should be used as a treatment option prior to prescribing non-formulary medications." (Id. at PageID # 270.) On the ODRC Drug Formulary, Methotrexate is the medication listed for treatment of psoriasis and rheumatoid arthritis.

         The Ohio Department of Mental Health ("ODMH") regulates all ODRC medications. Defendants explain that "[t]he ODMH will only supply pharmaceuticals to Ohio correctional institutions from the formulary list established by the ODRC's Pharmacy and Therapeutics Committee unless either the Bureau of Medical Services Medical Director or the Bureau of Mental Health Services Clinical Director approves a non-formulary medication." (Appellee Br., at 8-9; R. 51-3, PageID # 695.) According to Defendants, LCI did not become centrally regulated under ODMH until March 2012, and prior to 2012, LCI used its contract pharmacy to supply medications for its inmates. MCI, however, was centrally controlled by ODMH at the time of Darrah's transfer there on January 18, 2011, and could not procure non-formulary, non-approved medications.

         While on Soriatane at LCI, Darrah reported good results, and his medical records indicated that his HPK was "much improved." Upon his arrival at MCI, the medical health staff performed a health screening on him and forwarded a list of the medications he had previously received at LCI to the MCI pharmacy. However, because Soriatane was not listed on the ODRC's Drug Formulary, the prescription was not filled.

         Two weeks after he arrived at MCI, Darrah reported to Nursing Sick Call ("NSC") that he had not received Soriatane since his transfer to MCI. In response to this complaint, the medical staff contacted Dr. Weil to inquire about Darrah's Soriatane. Again, on February 17, 2011, Darrah contacted NSC, complaining that he still had not received his Soriatane.

         On March 2, 2011, Dr. Weil examined Darrah. During this examination, Dr. Weil noted that although Darrah's heels were fissuring, he was in no apparent distress. Dr. Weil also noted that Darrah had used Soriatane with good results, and that Darrah believed that he had a prior authorization for Soriatane, which was still in effect. Following this visit, Dr. Weil ordered Darrah's previous medical charts and placed a new order for Soriatane. On March 22, 2011, Darrah sent a "kite" complaining that, even after his visit with Dr. Weil two weeks prior, he was still not given Soriatane. Darrah further complained that he had two "very large fissures" on each heel, that they caused him excruciating pain, and that he was in danger of contracting a staph infection. Darrah also filed a skin-complaint form, complaining that he was not receiving proper treatment for his feet. Nurse Stanforth, on March 22, 2011, arranged for Darrah to meet with Dr. Weil, who again placed an order for Soriatane.

          On March 28, 2011, Dr. Weil again examined Darrah and noted that he had large "plaques/fissures" on his heels. During this visit, Darrah complained of pain and difficulty walking, and Dr. Weil placed him on "medical lay-in" for twenty days. Darrah also complained about having not received his Soriatane, and Dr. Weil once again attempted to order Soriatane for Darrah. On April 4, 2011, Dr. Weil examined Darrah. Dr. Weil noted that Darrah still had "plaque and fissures" on his heels. Nurse Stanforth also noted that Darrah had several calluses with some deep cracks/fissures on his heels. During this visit, Darrah again complained that he still had not received his Soriatane. At this point, Dr. Weil submitted a fourth request for Soriatane.

         On April 6, 2011, Dr. Krisher denied Dr. Weil's request for Soriatane, stating instead that an alternative, Methotrexate, was available. Dr. Krisher also ordered that "'high potency steroids' and folic acid be used and that another medication, Dovenex, be prescribed as needed, " and that Darrah's liver enzymes be monitored. (R. 53, PageID # 714.) The next day, Nurse Stanforth[1] informed Darrah and his wife, Lacona, that the request for Soriatane had been denied and that Methotrexate had been recommended instead. Both Darrah and his wife agreed to try Methotrexate and, on ...


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