by Matt Clarke

On August 30, 2021, the U.S. Court of Appeals for the Ninth Circuit took the Nevada Department of Corrections (DOC) to task over a four-year delay in providing a state prisoner the only drugs known to safely treat his severe mental illness. Swatting away DOC’s contention it was being micromanaged, the Court affirmed a district court’s preliminary injunction requiring the prison system to provide the prisoner his medications.

The prisoner, Wayne A. Porretti, 62, has suffered from lifelong severe mental illnesses: Tourette’s syndrome, depression, obsessive-compulsive disorder, personality disorder, and paranoid schizophrenia. These caused him to attempt suicide and suffer psychotic symptoms, including compulsive ingestion of razors and other metal objects, as well as paranoid delusions, auditory hallucinations, and verbal tics.

Before Porretti’s incarceration, his doctors tried to control his symptoms using several different anti-psychotic or antidepression medications, but he suffered severe side effects: swelling of the tongue to the point that he could not speak, growing male breasts, twitching, and jerking. Eventually, the doctors found a combination of the anti-depressant Wellbutrin and the anti-psychotic Seroquel helped treat his symptoms without producing serious side effects.

DOC doctors agreed Porretti needed the Wellibutrin/Seroquel combination and continued prescribing it to him after he was incarcerated. However, they stopped providing the combination in May 2017 because of a new “administrative policy” prohibiting those drugs. Instead they offered Porretti the same drugs which caused serious side effects before.

Porretti filed suit pro se under 42 U.S.C. § 1983 in U.S. District Court for the District of Nevada in June 2017, accusing DOC officials of deliberate indifference to his serious medical needs, in violation of his rights under the Eighth and Fourteenth Amendments. He filed an amended complaint in September 2018, his untreated mental illness making it difficult for him to understand the requirements of litigation and causing delays.

In January 2019, Porretti sent a letter to the district court stating that his treating psychiatrist from DOC, Dr. Carla Carroll, told him that the denied combination of drugs was appropriate for his treatment, but he was still not receiving it. The court construed that as a motion for preliminary injunction and opened an evidentiary hearing.

During the long ten months that lasted, Dr. Carroll admitted she had seen Porretti only once, via videoconference. She also testified that DOC stopped providing him the drug combination because of its administrative policy, not any recommendation from medical personnel. However, she opined that Porretti no longer needed the combination or any medication because he was malingering, not ill.

The Court later determined that Dr. Carroll’s testimony was not credible but had been tailored to support defendants’ litigation position. It ordered each party to have a psychiatrist conduct an independent assessment of Porretti, his medical history, whether the drug combination at issue was medically necessary to treat him, and what was required for his future care.

Porretti’s pro bono appointed counsel selected Dr. Norman Roitman, who had already examined Porretti more than 15 times. He provided a 20-page report with a review of Porretti’s family and mental-health history, including ten pages of medical findings and explanations about their limitations. He concluded that Porretti required the combination of drugs he asked for and, contrary to DOC’s justification for its policy, said the drugs were not prone to abuse in prison.

Defendants chose a DOC contractor, Dr. Wade Exum. He presented a brief, four-page report without examining Porretti’s mental health records. The district court determined this report was unprofessional, biased, and—like Carroll’s—designed to support defendants’ litigation position.

After making extensive findings of fact, the district court then determined that Porretti was entitled to a preliminary injunction and issued one ordering defendants to treat him with the drug combination he needed. Defendants ignored that order and appealed.

On appeal, Porretti was represented by attorneys Jason C. Markis of Markis Legal Services in Las Vegas and Samuel Weiss of Rights Behind Bars in Washington, D.C.

At the Ninth Circuit, Defendants argued that the district court was improperly micro-managing the prisoner’s care, citing Armstrong v. Brown, 768 F.3d 975 (9th Cir. 2014). But the Court wasn’t buying that argument. It found that Porretti had a serious medical need—his mental illness—which DOC was deliberately indifferent to. Far from micromanaging, the district court had properly found that Drs. Carroll and Exum lacked credibility. The Court also noted that defendants had left Porretti without treatment and had not even provided the cognitive behavioral therapy recommended in Dr. Exum’s report.

Further, the Court said, the district court did not abuse its discretion in finding that Porretti would suffer irreparable harm absent a preliminary injunction, adding that the balance of equities was heavily in his favor and that the public interest was served by issuing the preliminary injunction. Thus the district court’s order granting the preliminary injunction was affirmed. See: Porretti v. Dzurenda, 11 F.4^th 1037 (9th Cir. 2021).

The case then returned to the district court, which issued a lengthy order on March 28, 2022, denying Defendants’ motion for summary judgment and granting Plaintiff’s request that DOC pay $13,387.50 for his outstanding medical invoices. Discovery was also reopened for him until May 12, 2022, providing time to procure documentation of DOC policy and his treatment. See: Porretti v. Dzurenda, USDC (D. Nev.), Case No. 2:17-cv-01745. 

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