United States District Court, D. Arizona
G. CAMPBELL SENIOR UNITED STATES DISTRICT JUDGE.
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
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.
Summary Judgment Standard
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.
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.
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). . . . .
HCV Treatment within ADC
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.) 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.)
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.)
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.)
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.)
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.)
Plaintiff's HCV Care
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.)
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.)
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).)
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 ...