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Barfield v. Semple

United States District Court, D. Connecticut

August 6, 2019

SCOTT SEMPLE in his individual capacity AND ROLLIN COOK in his official capacity as Commissioner of the Connecticut Department of Correction Defendants.


          MICHAEL P. SHEA, U.S.D.J.

         Plaintiffs Robert Barfield, John Knapp, Curtis Davis, Jason Barberi, and Darnell Tatem (together, “named Plaintiffs” or “Plaintiffs”) bring this lawsuit regarding medical care for incarcerated people infected with Hepatitis C against Rollin Cook in his official capacity as Commissioner of the Connecticut Department of Correction (“CT DOC”) and against former Commissioner Scott Semple in his individual capacity (together, “Defendants”[1]). As to Cook, Plaintiffs assert (1) deliberate indifference to medical needs in violation of the Eighth Amendment under 42 U.S.C. § 1983 (count one); (2) violation of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. (count two); and (3) violation of the Rehabilitation Act, 29 U.S.C. § 701 et seq. (count three). As to Semple, they assert deliberate indifference to medical needs in violation of the Eighth Amendment under 42 U.S.C. § 1983 (count four). Plaintiffs seek to represent a “class of all current and future prisoners in CT DOC custody who have been diagnosed, or will be diagnosed, with chronic HCV.” ECF No. 35 at ¶ 346. They seek damages as well as declaratory and injunctive relief. Defendants moved to dismiss all claims under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).

         For the reasons discussed below, the Defendants' motion to dismiss is GRANTED as to the Eighth Amendment claim against Semple in his individual capacity, GRANTED as to the Americans with Disabilities Act and Rehabilitation Act claims, and DENIED as to the Eighth Amendment claim against Cook in his official capacity.

         I. FACTS

         The following facts are drawn from the corrected first amended complaint, which was filed on December 21, 2018 and which I will refer to as the “operative complaint.” ECF No. 35. These facts are accepted as true for the purpose of deciding the Defendants' motion to dismiss.

         A. Hepatitis C

         Hepatitis C is a blood-borne disease caused by the Hepatitis C Virus (“HCV”). ECF No. 35 at ¶ 25. HCV causes inflammation that damages liver cells, and is a leading cause of liver disease and liver transplants. Id. It is transmitted through contact with infected blood and can be transmitted through intravenous drug use, tattooing, blood transfusions, and sexual activity. Id. at ¶ 26. HCV can be either acute or chronic. Id. at ¶ 27. Acute HCV clears itself from the blood stream within six months of exposure. Id. Chronic HCV is a long-term illness that is defined as having a detectable HCV viral level in the blood six months after exposure. Id. People with chronic HCV develop fibrosis of the liver, which is a process that replaces healthy liver tissue with scarring, thereby reducing liver function. Id. at ¶ 29. When scar tissue takes over most of the liver, it is called cirrhosis. Id. at ¶ 30. Cirrhosis may not be reversible and can cause complications even after the HCV is treated. Id. at ¶ 33. Fibrosis can also lead to liver cancer. Id. at ¶ 29. In addition, chronic HCV can cause kidney disease, internal bleeding, and a host of other serious medical issues. Id. at ¶¶ 28-31, 35. It can also cause death. Id. at ¶ 31.

         Approximately 2.7 to 3.9 million Americans have chronic HCV and approximately 19, 000 people die of HCV-caused liver disease each year in the United States. Id. at ¶¶ 39, 42. The prevalence of HCV in prison is much higher than in the general population. Id. at ¶ 44. It is not clear how many people in the CT DOC system have HCV, but a recent study shows that 10-12 percent of the population at the New Haven Correctional Center had HCV in 2015. Id. at ¶¶ 45, 55, 58.

         B. Standard of Care for HCV

         In the past, the standard treatment for HCV, which included the use of interferon and ribavirin medications, had long treatment durations, failed to cure most patients, and was associated with many side effects. Id. at ¶ 62. In 2011, however, the Food and Drug Administration (“FDA”) began approving new oral medications called direct-acting antiviral drugs (“DAAs”). Id. at ¶ 63.While the DAAs were initially designed to work with the old treatment regimen, in 2013 the FDA began to approve DAAs that can be taken alone. Id. DAAs work more quickly, cause fewer side effects, and treat chronic HCV more effectively than the old treatment; in fact, 90 to 95 percent of HCV patients treated with DAAs are cured, whereas the old treatment regime cured only roughly one-third of patients. Id. at ¶¶ 63-65.[2]

         The American Association for the Study of Liver Diseases (“AASLD”) and the Infectious Disease Society of America (“IDSA”) set forth the medical standard of care for the treatment of HCV. Id. at ¶¶ 67-68. The IDSA/AASLD guidelines recommend that all people with risk factors for HCV be tested, including both those born between 1945 and 1965 and those who were ever incarcerated. Id. at ¶ 75. The guidelines also recommend immediate treatment with DAA drugs for all people with chronic HCV. Id. at ¶ 69. The Centers for Disease Control and Prevention (“CDC”) encourages healthcare professionals to follow this standard of care. Id. at ¶ 67. The Medicaid guidelines are consistent with this standard of care, as they eliminated any requirement that there be evidence of hepatic fibrosis before covering DAA treatments. Id. at ¶ 71.

         The benefits of immediate treatment include immediate decrease in liver inflammation, reduction in the rate of progression of liver fibrosis, reduction in the likelihood of the manifestations of cirrhosis and associated complications, a 70 percent reduction in the risk of liver cancer, a 90 percent reduction in the risk of liver-related mortality, and a dramatic improvement in quality of life. Id. at ¶ 73. Delay in treatment increases the risk that treatment will be ineffective. Id. at ¶ 74.

         C. HCV Treatment at CT DOC

         In 1997, CT DOC and the University of Connecticut Health Center (“UCHC”) entered into a Memorandum of Agreement (“MOA”) for the provision of health care to offenders through Correctional Managed Health Care (“CMHC”). Id. at ¶ 20. This MOA remained in place until July 1, 2018, when Semple terminated the relationship between DOC and UCHC and brought all health care functions “in house, to be controlled specifically by the DOC.” Id. at ¶¶ 20-21. The MOA provided that CMHC would implement clinical practice guidelines and Medicaid guidelines. Id. at ¶ 70. CMHC's policy governing the treatment of prisoners with HCV (“Policy G 2.04”) was promulgated on December 10, 2002, and revised on May 30, 2005, December 21, 2010, February 1, 2012, July 31, 2013, June 30, 2015, and June 30, 2016. Id. at ¶ 91; ECF No. 35-1 (Policy G 2.04). The policy created a special board of infectious disease experts who evaluate all requests for treatment of the Hepatitis C infection in CT DOC facilities. ECF No. 35 at ¶ 93. It also created a Hepatitis C Utilization Review Board (“HepCURB”) to review all requests for treatment. Id. at ¶ 95. The policy details the steps that physicians and the HepCURB should take when working with patients who have HCV. Id. at ¶¶ 97-99, 102, 106. Policy G 2.04 provides that, “in general, ” HepCURB will follow the specific recommendations of the AASLD and IDSA, which both recommend immediate treatment with DAAs for all people with chronic HCV; at the same time, the policy states that “they will not directly provide specific anti-viral drugs for Hepatitis C.” Id. at ¶¶ 69, 95-96. CT DOC did not release any new guidelines for HCV treatment following the July 1, 2018 decision by Semple to change the management of health care services for DOC inmates. Id. at ¶ 104.

         Plaintiffs allege that “prioritization for the DAA treatment as stated in Policy G 2.04, which places advanced HCV cases of hepatic fibrosis and liver transplant candidates at the top of the line is not in line with the standard of care” as“[d]elaying treatment until a patient is extremely sick has the perverse effect of withholding treatment from the patients who could benefit from it most, because the treatment is less effective for patients with the most advanced stages of the disease.” Id. at ¶ 105. Plaintiffs allege that even if the policy was adequate, CT DOC does not follow the policy and, in practice, delays treatment for virtually all prisoners with HCV (regardless of disease progression) until the prisoner is released from prison or dies. Id. at ¶¶ 100, 105, 108-09, 113, 115. Plaintiffs further allege that the policy does not address liver transplantation, the only cure for people with decompensated cirrhosis, and does not address the need for liver cancer screening, “which is standard medical practice once individuals have progressed to advanced fibrosis or cirrhosis.” Id. at ¶¶ 117-18.

         D. Semple's Involvement

         Semple was regularly made aware by CT DOC personnel that the MOA was unenforceable, poorly written, and a direct cause of prisoners receiving subpar medical treatment. Id. at ¶ 154. Dr. Kathleen Maurer, the CT DOC Medical Director, stated under oath that she repeatedly voiced concerns to Semple about prisoners not receiving care that satisfied the community standard of care. Id. at ¶¶ 122, 126. At some point, the problems with healthcare delivery led the Connecticut General Assembly to demand that the CT DOC issue a Request for Information (“RFI”) to find new companies that might contract with DOC. Id. at ¶ 132. Dr. Maurer testified that she inquired about the RFI and Semple responded, on more than one occasion, that “[w]e cannot embarrass our state's flagship university, ” apparently referring to UCHC. Id. at ¶ 132. According to a story published in the Manchester Journal-Inquirer, Semple confirmed that he told Dr. Maurer not to embarrass UConn. Id. at ¶ 133. Semple never instructed anyone on his staff to monitor CMHC's performance or review compliance with the MOA. Id. at ¶¶ 136, 138, 140, 145, 147, 149, 152. Moreover, Semple did not regularly attend executive committee and management committee meetings, nor did he train anyone to attend those meetings. Id. at ¶¶ 141-42. Despite his awareness that the MOA was not enforceable, and despite his knowledge of CMHC's failures to provide adequate care, Semple instructed Deputy Commissioner Cheryl Cepelak to extend the MOA on June 26, 2015. Id. at ¶ 157.

         E. Named Plaintiffs

         i. Plaintiff Barfield

         Robert Barfield has been incarcerated since 1994 and was transferred to the custody of the CT DOC in August 2012. Id. at ¶¶ 174-75. He was diagnosed with Hepatitis C in 2006 while he was incarcerated in Nevada, Id. at ¶ 177, and has chronic HCV, Id. at ¶ 179. While in the custody of the DOC, Barfield continually requested treatment for HCV, but was told that he did not meet the requirements for treatment and that he was not sick enough to be treated. Id. at ¶¶ 184-85. He filed numerous grievances complaining of his symptoms and requesting treatment, but all were denied. Id. at ¶ 186. CT DOC did not comply with Policy G 2.04 in Barfield's case, Id. at ¶¶ 187, 191, 206, and he developed a No. of medical issues that can be caused by HCV, Id. at ¶¶ 199, 203, 208, 221. On April 13, 2017, Dr. Omprakash Pillai received a test showing that Barfield had a viral load of 4, 567, 000 in his blood plasma; a viral load of more than 800, 000 is considered high, but Barfield was told that his viral load was normal. Id. at ¶ 223. His viral load continued to be very high in subsequent tests. Id. at ¶¶ 224, 226. Barfield specifically requested DAAs on more than one occasion, but was denied access to them. Id. at ¶¶ 218-19, 244. On June 1, 2017, Barfield's medical record indicates that a FibroScan -an ultrasound that determines the amount of fibrosis in a liver - would be requested for him. Id. at ¶¶ 81, 227. He had the liver scan approximately nine months later on March 12, 2018. Id. at ¶ 235. The liver scan showed that he had at least an 85 percent probability of significant fibrosis. Id. at ¶ 236. After filing several requests to obtain information about his condition, Id. at ¶¶ 237-39, Barfield was informed on June 14, 2018, that he suffered from moderate fibrosis (F2 on the scale of F0 to F4), Id. at ¶ 241. Barfield was informed that he would be considered for treatment, but that he would have to wait until the CT DOC fully transitioned medical care away from CMHC before the request for treatment could be considered. Id. at ¶ 242. Barfield was approved for DAAs after filing this suit. Id. at ¶ 247.

         ii. Plaintiff Knapp

         John Knapp was a pretrial detainee in the custody of the CT DOC from March 9, 2018 through October 25, 2018.[3] Id. at ¶ 250. He pled guilty to two charges on October 25, 2018 and continued to be in the custody of the CT DOC. Id. at ¶ 249. Knapp already knew that he had HCV before entering into the custody of the CT DOC, but it was confirmed when he tested positive for HCV at the Hartford Country Correctional Center. Id. at ¶¶ 251-52. Knapp suffers from a variety of medical issues, including an echogenic (i.e., abnormally dense) liver and hepatic steatosis (inflammation and scarring caused by fat in the liver), which likely resulted from HCV. Id. at ¶¶ 254-59. He is also a recognized risk for cirrhosis of the liver. Id. at ¶ 261. When Knapp was transitioned from being a pretrial detainee to being fully committed to the custody of the CT DOC, he was not initiated through the HCV protocol as suggested by Policy G 2.04. Id. at ¶¶ 263-66. As of the filing of the operative complaint, Knapp was not receiving any treatment for his HCV. Id. at ¶ 264.

         iii. Plaintiff Davis

         Curtis Davis was diagnosed with HCV around 2011 and has been housed at Enfield Correctional Institution and Osborn Correctional Institution at times relevant to this case. Id. at ¶¶ 271-72. He suffers from gynecomastia, a disorder of the endocrine system, and fatigue, which are both symptoms of chronic HCV. Id. at ¶¶ 274-76. Davis repeatedly asked doctors and nurses for HCV treatment, but was denied. Id. at ¶ 277-79. When he asked for DAAs, the doctor told him that he was “not ever going to get that.” Id. at ¶ 281. Davis had a FibroScan and doctors told him the DAAs may not work if the fatty tissue around his liver got any worse. Id. at ¶ 283. When Davis first reached out to Plaintiffs' counsel, he was not approved for DAAs; after speaking with Plaintiffs' counsel, he was approved for treatment and began receiving DAAs before the operative complaint was filed. Id. at ¶ 284.

         iv. Plaintiff Barberi

         Jason Barberi was diagnosed with HCV on or about April 29, 2013, while he was being housed at Carl Robinson Correctional Institution. Id. at ¶ 288. At that meeting in 2013, the doctor told him that he would be a good candidate for treatment, but he was not consulted about treatment again until 2018. Id. at ¶ 289. He asked for treatment repeatedly from the time he was diagnosed until October 2018. Id. at ¶ 292. Barberi had a FibroScan in February 2018 and the results, which he received in June 2018, showed that he had stage 3 fibrosis. Id. at ¶¶ 298-99. After seeing these results, Barberi requested more information about his condition. Id. at ¶ 300. On August 1, 2018, he received a response explaining that treatment had been requested. Id. at ¶ 301. He then completed several request forms seeking information about the timeline for treatment. Id. at ¶¶ 302-04. On August 20 and 26, 2018, Barberi completed request forms seeking to speak with Plaintiffs' attorney Ken Krayeske. Id. at ¶¶ 305-06. On September 10, 2018, Barberi learned that his treatment had been approved. Id. at ¶ 307. As of September 30, 2018, he still did not know when his treatment would start. Id. at ¶ 308. On October 8, 2018, he requested a copy of his HCV treatment plan and learned that he still had no start date for his treatment. Id. at ¶ 309. He never received an HCV information packet, but he did begin treatment on or about October 22, 2018, i.e., before the operative complaint was filed. Id. at ¶¶ 309-10.

         v. Plaintiff Tatem

         Darnell Tatem has been HCV positive since at least 1999 and has been housed in Northern Correctional Institution, Cheshire Correctional Institution, or Osborn Correctional Institution at all times relevant to this action. Id. at ¶¶ 317, 319. When he came into the custody of CT DOC in 2006, he had a brief conversation with a doctor about his HCV. Id. at ¶ 321. In addition to serious medical conditions unrelated to HCV, Tatem also has high blood pressure, which may be attributable to the virus. Id. at ¶¶ 322-29. He has requested DAAs, but was repeatedly told that his HCV needs to reach a certain level of dysfunction before he is eligible to receive treatment. Id. at ¶¶ 331-32, 336. He may have had an MRI and a FibroScan, but he is unsure. Id. at ¶¶ 337-38. He has not received any counseling about his HCV nor has he received an information packet about HCV. Id. at ¶ 330, 340. As of the filing of the operative complaint, the CT DOC had not completed its HCV protocol on Tatem. Id. at ¶ 342.

         F. Class Action and Relief Sought

         Plaintiffs seek to certify a class of all current and future prisoners in CT DOC custody who have been diagnosed, or will be diagnosed, with chronic HCV. Id. at ¶ 346 & 69 ¶ A. They also seek the following injunctive relief:

D. A preliminary and permanent injunction ordering Defendant to, among other things, 1) immediately identify all people in CT DOC's custody who have HCV; 2) immediately provide direct-acting antiviral medications to Plaintiff and Plaintiff Class, and 3) develop and adhere to a plan to provide direct-acting antiviral medications to all CT DOC prisoners with chronic HCV, consistent with the standard of care;
E. A preliminary and permanent injunction requiring Defendant to, among other things, 1) properly screen, evaluate, monitor, and stage CT DOC prisoners with HCV (including screening for liver cancer where appropriate); 2) provide routine opt-out testing for HCV to all CT DOC prisoners; 3) develop and adhere to a policy allowing CT DOC prisoners with chronic HCV to obtain liver transplants if needed; and 4) modify the exclusions from HCV treatment based on life expectancy and time remaining on sentence to reflect an appropriate individual assessment;

ECF No. 35 at 69 ¶¶ D & E. Plaintiffs also seek a declaratory judgement “that the Defendant[s] ha[ve] exhibited deliberate indifference to the serious medical needs of Plaintiffs and the Plaintiff Class” in violation of the Eighth Amendment and “that Defendant[s] ha[ve] violated the rights of Plaintiffs and the Plaintiff Class under the Americans with Disabilities Act and the Rehabilitation Act.” Id. at 69 ΒΆΒΆ B & C. Finally, Plaintiffs seek compensatory ...

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