Ochoa v. Ryan

          ORDER

          DAVID G. CAMPBELL SENIOR UNITED STATES DISTRICT JUDGE.

         Plaintiff Juan Daniel Ochoa, who is currently confined in the Arizona State Prison Complex (ASPC)-Eyman in Florence, Arizona, brought this civil rights action pursuant to 42 U.S.C. § 1983. Defendants Arizona Department of Corrections (ADC) Director Charles L. Ryan, Subodh Shroff, M.D., Corizon Health, Inc. (“Corizon”), and Corizon's HCV Treatment Review Committee move for summary judgment. (Doc. 47.) Plaintiff was informed of his rights and obligations to respond pursuant to Rand v. Rowland, 154 F.3d 952, 962 (9th Cir. 1998) (en banc) (Doc. 51), and he opposes the Motion. (Doc. 57.) The Court will grant the Motion for Summary Judgment.

         I. Background

         On screening of Plaintiff's two-count Complaint under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated Eighth Amendment, Americans with Disabilities Act (ADA), and Rehabilitation Act (RA) claims based on Defendants' alleged failure to treat his Hepatitis C (“Hep C” or “HCV”) and their establishment of an “HCV protocol, ” which Plaintiff alleges is designed to delay HCV treatment for cost-savings and administrative convenience. (Doc. 6.) The Court directed Defendants to answer these claims. (Id.)

         II. Summary Judgment Standard

         A court must grant summary judgment “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The movant bears the initial responsibility of presenting the basis for its motion and identifying those portions of the record, together with affidavits, if any, that it believes demonstrate the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323.

         If the movant fails to carry its initial burden of production, the nonmovant need not produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden shifts to the nonmovant to demonstrate the existence of a factual dispute and that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The nonmovant need not establish a material issue of fact conclusively in its favor, First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, it must “come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citation omitted); see Fed. R. Civ. P. 56(c)(1).

         At summary judgment, the judge's function is not to weigh the evidence and determine the truth but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. In its analysis, the court must believe the nonmovant's evidence and draw all inferences in the nonmovant's favor. Id. at 255. The court need consider only the cited materials, but it may consider any other materials in the record. Fed.R.Civ.P. 56(c)(3). . . . .

         III. Facts

         A. HCV Treatment within ADC

         According to a Gilead Sciences report, incarcerated individuals are thirteen times more likely to have detectable levels of HCV in their blood than those in the general population. (Doc. 48 (Defs. Statement of Facts) ¶ 14, Ex. N.)^[1] These elevated rates present challenges to prisons due to budgetary constraints and the high cost of HCV treatment. (Id.) As a result, the Federal Bureau of Prisons (BOP) developed a Clinical Guidance Manual for the Evaluation and Management of Chronic Hepatitis C (HCV) Infection (hereinafter, the “BOP Manual”), which contains a comprehensive framework for prioritizing prisoners for HCV treatment so that those with the greatest need are treated first. (Id. ¶ 15, Ex. O.) ADC and Corizon have adopted the BOP Manual. (Id.)

         According to the BOP Manual, progression from chronic HCV infection to fibrosis and eventually cirrhosis may take years in some patients, decades in others, or may not occur at all. (Id. ¶ 16.) Most complications from HCV infection occur in people who develop cirrhosis. Therefore, assessing for cirrhosis is important when prioritizing patients for treatment. (Id. ¶ 18.) The BOP's preferred method for non-invasive assessment of fibrosis and cirrhosis is the APRI score, which is calculated using the results of two blood tests that measure the aspartate aminotransferase (ATP) and the platelet count. (Id. ¶¶ 19-20.)

         The BOP Manual establishes priority levels for HCV treatment, according to which prisoners with “advanced hepatic fibrosis, ” liver transplant recipients, those with certain comorbid conditions, immunosuppressed patients, or those who already started treatment prior to incarceration are considered the highest priority (Priority Level One) for treatment. (Id. ¶¶ 22, 24, Ex. O at 8.) Advanced hepatic fibrosis is indicated by an APRI score greater than 2.0, “Metavir or Batts/Ludwig” stage 3 or 4 on a liver biopsy, or known or suspected cirrhosis. (Id.) The intermediate priority for treatment (Priority Level Two) includes patients who have an APRI score greater than 1.0 or “stage 2 fibrosis” on a liver biopsy, and those with certain comorbid conditions including liver disease, diabetes, and chronic kidney disease. (Id. ¶ 25.) The lowest priority for treatment (Priority Level Three) includes patients with an APRI score less than 1.0 or those who have stage 0-1 fibrosis on a liver biopsy. (Id. ¶ 26.) Because APRI scores are used to predict cirrhosis, liver biopsies are no longer required. (Id. ¶ 27, Ex. O at 6.)

         In addition to the BOP Manual, Corizon follows the ADC “Clinical Practice Guidelines for the Prevention and Treatment for Viral Hepatitis C (2017)” (“the Guidelines”). (Id. ¶ 30.) The Guidelines estimate that 23 per cent of ADC prisoners are infected with HCV. (Id.) The Guidelines incorporate the high, intermediate, and low Priority Levels from the BOP Manual. (Id. ¶ 31.) The Guidelines also provide that prisoners with APRI scores of 0.7 or higher or with advanced fibrosis will be prioritized for HCV treatment. (Id. ¶ 32, Ex. P at 8.)

         Corizon's Hepatitis C Committee bases its decision on whether to treat prisoners with HCV on additional factors, including the absence of risky behavior as evidenced by no disciplinary tickets for drug possession or tattoos for one year. (Id. ¶ 34.)^[2]

         B. Plaintiff's HCV Care

         On March 11, 2015, Plaintiff was seen by Dr. Bertram for a chronic care appointment. (Doc. 67 (Defs. Supplemental Statement of Facts) ¶ 1.) Dr. Bertram noted that Plaintiff had been diagnosed with HCV in 2004 or 2005. (Doc. 67 at 10.) He also noted that he was unaware of how Plaintiff had acquired HCV, but that Plaintiff had tattoos. (Id.) Plaintiff reported no active symptoms, and Dr. Bertram noted that Plaintiff's March 2014 labs were normal, and ordered new labs. (Id.) Dr. Bertram also noted no indications of liver disease and planned to monitor Plaintiff's liver function and follow up in six months. (Id. at 13-15.)

         On May 13, 2015, Plaintiff had labs taken, and his APRI score was 0.40. (Id. ¶ 2; Doc. 67 at 20; Doc. 68, Ex. Y (Hutchinson Decl.) ¶ 5(e).) On May 3, 2016, Plaintiff had labs taken, and his APRI score was 0.40. (Id. ¶ 2; Doc. 67 at 27; Doc. 68, Hutchinson Decl. ¶ 5(f).) On May 31, 2016, Plaintiff saw Defendant Dr. Shroff for a chronic care appointment for his HCV, and presented no symptoms. (Doc. 67 at 32.) Dr. Shroff noted that Plaintiff's HCV was stable, ordered a diagnostic panel prior to the next chronic care visit, and made a plan to monitor liver functions and follow up in 6 months. (Id. at 36-38.) According to Plaintiff, Dr. Shroff told Plaintiff that starting DAA treatment for his HCV would do more harm than good. (Doc. 62 ¶ 57; Doc. 62, Ex. A (Pl. Decl.) ¶ 13.)

         On November 8, 2016, Plaintiff filed a grievance alleging he had not been receiving proper laboratory tests and treatment for his HCV for two decades. (Doc. 67 ¶ 6; Doc 67 at 47.) He requested “preventive health care, ” alleging that that there was no medical reason to deny him this care. (Doc. 67 at 47.) On November 15, 2016, Plaintiff had labs taken, and his APRI score was 0.65. (Doc. 67 ¶ 5; Doc. 67 at 40-41; Doc. 68, Ex. Y (Hutchinson Decl.) ¶ 5(g).)

         On December 13, 2016, Assistant Facility Health Administrator (AFHA) Maureen Johnson responded to Plaintiff's November 8, 2016 grievance as follows:

Upon review of your medical record I am able to confirm labs were drawn on November 15, 2016 and a chronic care health service encounter is scheduled within the chronic condition monitoring guidelines. Chronic care health service encounters including diagnostics will continue to be completed according to the schedule set by the medical provider within the chronic condition monitoring guidelines. Please be advised, inmates will receive HCV treatment once they meet the following criteria. Patient will be prioritized based on stage of the liver disease (APRI score); patients must meet all of the preliminary criteria like labs and mental health assessment; patients who are determined to be appropriate for treatment will be ...