Ippolito v. Goord et al, No. 6:2005cv06683 - Document 242 (W.D.N.Y. 2012)

Court Description: DECISION AND ORDER with Appendix that defendants' motion for summary judgment 215 is denied in part and granted in part as set forth in the Decision and Order.. Signed by Hon. Michael A. Telesca on 9/19/12. (Attachments: # 1 Appendix)(JMC)

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~NIT2C S7ATES DISTRICT COURT SOGT!-!E?,N DISTRICT OF NDv YORK ------------------------------------X JeHN :1GRGF.N I Plaintiff. -against- 03-CIV-3987 (KMW) (AJP) ORDER CARL J. KOENIGSHANN, M.D .. Med':'cal Jirec~or Green Haven C.F., and LESTER N. WRIGHT, M.D., Associate Commissioner Chief Medical Officer. Defendants. ------------------------------------X U.S.D.J.: WOOD, Plaintiff John Morgan, pro u.s.c. § 1983. ~, sues defendants pursuant to 42 Plaintiff alleges that defendants Carl J. Koenigs;nann, M.D. ("Koenigsmann") and Lester N. Wright, M.D. ("Wright") have been deliberately indifferent to plaintiff's serious medical needs, in violation of his constitutional rights under the Eighth .Amendment to the United States Constitution. Plaintiff seeks a declaratory judgment, an injunction ordering defendants to immediately treat plaintiff's hepatitis e f co~pensatory l and and punitive damages in the amount of $10 million. Defendants moved for su~~ary judgment, arguing (1) that defendants lack ::he personal involvement required to be liable, (2) that plaint:iff cannot prove that defendants acted with deliberate indifference toward him, and (3) that defendants are entitled to 1 ?l<lintiff's complaint seeks "declaratory relief in the form of i:r.media-::e treatment for his condi::icn." (Complaint, 6), The Court construes ero ~ pluinti£f's complaint liberally, ~ Branham v. Meachum, 77 F.3d 626, r328-29 i2d Cir. 1996), and -::reats 'Cr.:..s as a request for both declarat:ory' and cnj'_mct::'7c relief. 1 qua:ified irrmunity. For the reasons stated below, defendants' :-'lotion =-5 ;rranted with respec'l.: to defendant Koenigsmann and denied ivi -:r. :::espect to defendant Wright. I. Factual. Background Unless otherwise noted, the following facts are undisputed, a~d are de~ived from the parties' Rule 56.1 statements. affidavits, and other submissions.c A. The Parties 2laintiff is an inmate in the custody of the New York State Departrr:ent of Correctional Services ("DOCS"), and is currently incarcerated in Green Haven Correctional Facility ("Green Haven"') Prior to his transfer to Green Haven in September 1996, plaintiff had beer. incarcerated in Attica Correctional Facility {"Attica") since, at ::'east, 1992. (Defs' 56.1 Stmt., i 1; Plaintiff's Statement Pursuant to United States District Court Rules Southern and E:astern District of New York, Civil Rule 56.1. ("PInt's 56.1 Stmt. U ), dated Apr. 9, 2004, 'lI 1). ':t:e Hepatitis C virus Plaintiff was diagnosed with ("HCV") in 1992, and alleges that defendants have der.ied him treatment for that illness over the past five years on the ground -chat plaintiff has not enrolled in DOCS' Alcohol and ! The Court requested and received from defense counsel in August 2004 ur:exceq::ted -:::opies of all DOCS Hepatitis C Primary Care Practice Guidelines, as \"e11 as several medical reports referred to in Defendants' Sta'tement ?ursuan:: to Local C':;'vil Rule 56.1 ("Oefs' 56.1 Stmt."), dated Jan. 30, 2004, 'I 18. The Ccur:: :-,as placed a copy of these documents in the court file. When 90ssible, the Court will refer to the documents by reference to their Bates stamp nun:be.:::s. 2 Substance Abuse Treacnen:: "':.r_ere ~s program. 3 Plaintiff argues that basis for co::ditioning his treatment for HCV on his :10 er.roll~Gnt ("ASAT") in an ASAT program. Plaintiff admits that he used drugs and alcohol prior to his incarceration, but claims that he has been free of bo~h drugs and alcohol for the past thirteen years. l?lnt's 56.1 Stmt. 121.' Defendant Koenigsmann is a medical doctor, licensed to practice medicine in the State of New York. (Declaration of Carl Koenigsmann ("Koenigsmann Declo"), dated Jan. 29, 2004, 11 2). From t1arch 1999 until April 17, 2003, Koenigsmann served as Facility Health Services Director ("FHSD") at Green Haven. In that capacity, Koenigsmann "reviewed the care rendered by Green Haven The term "ASA?" is used interchangeably with the term "RSAT". which to DOCS' Resident~al Substance _~use Treatnent program. The Court will refer ::0 both programs using tt:e tern "ASAT." J ~efcrs .j Jefendants argue that plaintiff should not be taken "at his word," and suggest that plaintiff's clair:t to be drug- and alcohol-free is "absurd(]" in light of his "steadfast :::efusal to participate in the drug treatment programs :nade availao':'e by DOCS." (Reply Memorandum of Law in Further Support of Defendants' Motion for Summary Judgment ("Defs' Reply Memo"), dated May 24. 20C4, at 2). Plain':.iff does not ask to be taken "at his word." Plaintiff has provided (1) a Certificate of ?articipation, indicating that he successfully cOIT.pleted a :welve-step Alcoholics Anonymous program in October 1992. and (2) ~ Certificate of Completion, indicating that he successfully completed a twelve-step Narcotics AnO:lyrnous program in March 2000. (PInt's 56.1 stmt. Exh. 10J. Plaintif': has also sub:nitted evidence that in September 2003, he \~as ordered -:0 submit to a arinalysis test for marijuana by C.O. Haywood. following Haywood's claim that "Inmate Morgan's eyes <ippeared glossy, and Ir.::tate was emanating an odor of marijuana." (Id., at Exh. 1). Plaintiff's uri:1alysis test came back negative. (Id.). Finally, plaintiff has submitted disciplinary records :rom his period of incarceration at both Green Haven and At~ica. whic~ indicate that there ~s no record that plaintiff has ever been diSCiplined for alcohol or dr~g use. (Id., at Exh. 2). Defendants have presDn~ed no evioence to the contrary. In fact, the record indicates that the only Leason defer;dan':s knm" that plaintiff used drugs and alcohol prior to his ::lcarceration is that plaintiff =reely admitted it when his medical history was being prepared, (see Medical History. Declaration of Donald Nowve ("Nowve Je~l."), dated ~an. 29, 20C4, Exh. 3), and he ~as continued to admit it in t!-,i:J case, (see Defs' 56.':' Stmt., '12; PInt's 56.1 Stmt . ¢ 'f 2) 3 prima:!:'y care providers and also reviewed and approved all requests by Green Haven primary care providers for specialty care services by o~~side medical providers, including surgeons, medical spec:alists, physical therapists, procedures and diagnostic studies." (Id. at 1 41. Defendant Wright is also a medical doctor. Wright has held the position of Deputy Commissioner and Chief Medical Officer of the :JOCS throughout plair.tiff's incarceration at Green Haven. Wright's primary respor.sibility at DOCS is "to set the overall direction for [DOCS' J provision of health care." 315 F. 3d 158, 165 (2d eir. 2003) B. Brock v. Wright, (unrelated case) . Plaintiff's Illness In 1992, while incarcerated in Attica, plaintiff was diagnosed with HCV, a chronic liver disease that can result in inflammation. scar~ing, and ultimately cirrhosis of the liver. s Stmt. 1 11; PInt's 56.1 Stmt. 15). (Defs' 56.1 On or about December 3, 1999, plaintiff underwent a liver biopsy to gauge the severity of his illness. (Defs' 56.1 Stmt. 1 13; Plnt's 56.1 Stmt. i 7). The liver biopsy revealed that plaintiff had developed fibrosis, and ~ Defendants appear to assume that how plaintiff became infected is relevant (defendants state that plaintiff contracted the virus, and developed ,-i'Jer fibrosis, "due to plaintiff's history of substance abuse.'~ (Defs' 56.1 St~t. i 24)). Their content~on not only is irrelevant, but also is without eVide!1tiary basis. Defendants provide no support for this claim; defendants pres'..l:r:tably base 7.heir assumption on the fact that plaintiff admits that in the past he engaged in intravenous drug use, and intravenous drug use is a primary ccute of infection for HCV. Plaintiff denies that he contracted HCV as a ~esult of ~is drug use, because he claims that although he did use heroin i~travenously =or a period of two weeks in 1983, he used "sterile syringes and did not share his needle with anyone else and did not use the same needle :::1-1=-ce." (lHfidavi,:: of John ~.jorgan ("Morgan Aff."), dated Apr. 12, 2004. '13). :"iI:'3te'ler thl3 cause, the iSS'J8 of treatment is a separate matter altogether. 4 chronic hepatitis. grade 2, stage 2. (St. Agnes Hospital Surgical ?athology Repon::., Ba::es :"tamp number SA8, Nowve Decl., Exh. B). DOCS ~eDati~is C Primarv Care Practice Guidelines 6 C. On Mar~h 31, 1999, DOCS )ivision of Health Services released a practice guideline regarding the screening of inmates for HCV, and ::~e treatment of inmates diagnosed with HCV. (Defs' 56.1 Stmt. i 16; Hepatitis C Primary Care Practice Guideline, dated Mar. 31, 1999 ("March 1999 Guideline"), Nowve Decl., Exh. DJ. The March :999 Guideline was developed by a conunittee consisLing of medical doctors and nurses, and purported to be consistent with "community standards of care." periodic revie~"s renair:s current." lId. at 1). It also recognized "the need for and .!:evisions . to insure that this Guideline I Td. ) The March 1999 Guideline provided that treatment for Hepatitis C "should be considered in accordance with the following criteria." lId. at 2). These criteria included, inter s.l..i.9..: 10. No evidence of active substance abuse (drugs and/or alcohol) during the past 2 years (check urine toxicology screen if drug use is suspected). 11. Successful completion of an ASAT program (the inmate may be enrolled concurrently with hepatitis C treatment if time does not allow for prior completion of the program). (Id. at: 3) The March 1999 Guideline was revised on December 17, 1999. (Defs' 56.1 Stmt. i 16; Hepatitis C Primary Care Practice o The Court will refer ~o the numerous versions of the Practice ':;uidelinc collectively as the "Practice Guidelines." However, the Court will !:0feL to eaen version of the Guideline by month and year when it is necessary to reference the lung~age ~ontained in a particular version of the Guideline. 5 G'-lideline l dat:ed .Jec. 17, 1999 ("December 1999 Guideline U Decl., Exh. OJ. t~e revision of ), Nowve The only revision relevant to plaintiff's claim is ~he tenth criterion. Instead of requiring uno ev':"dence of ac::ive substance abuse . . . during the past 2 years", (:1arch 1999 Guideline, 3) (emphasis added) t the December 1999 Guideline required "no evidence of active substance abuse . . during the cast 6 months . " (December 1999 Guideline, 3) (emphasis added). T~e December 1999 Guideline was in turn revised on December 13, 2000, when the tenth and eleventh criteria were merged into a single paragraph. (Defs' 56.1 Stmt. i 16; Hepatitis C Primary Care Practice Guideline, dated Dec. 13, 2000 ("December 2000 Guideline"), Nowve Decl., Exh. D). 10. No evidence of active substance abuse (drug and/or alcohol) during the past 6 months (check urine toxicology screen if drug use is suspected). Those who have a substance use history must successfully complete or be enrolled in an ASAT program. (December 2000 Guideline, 3) The Practice Guideline was most recently updated on March 10, 2003. (Defs' 56.1 Stmt. 1 16; Hepatitis C Primary Care Practice Guideline, dated Mar. 10, 2003 ("March 2003 Guideline"), Nowve Decl., Exh. DJ. No changes have been made to the ASAT requirement since December 2000. D. PlaintifP s Refusal to Participate in an ASAT Proararn. and his Subsequent Denial of Treatment Plaintiff claims that he was first offered treatment for his hepatitis C in 1997, but that his attending physician at Green 6 Eaven advised him ":0 refuse the treatment in anticipation of a new, less ':"ntrusive t::::eatrr:ent with fewer side effects. (Pint's 56.1 Stcc., 'lI 15). The ::111 fac-:.ual p'::'cture pertaining to plaintiff's subsequent ar.d :::::ontinu'::'ng effon:s to obtain treatment for his condition is di=ficult ~o discer~ fo~lowing plaintiff's liver biopsy in 1999, plaintiff's treating physicians reques-:.ed his illness, fron the record. 1 ~hat All parties agree that plaintiff (1) receive drug therapy for (2) be referred to a liver specialist, and (3) receive an :.lpdated liver biopsy to track the progression of his illness. Each of these requests was ultimately denied by defendant Kcen'::'gsmann, who cited plaintiff's refusal to participate in an ASAT program as the reason for the denial. a Koenigsmann's position was that because plaintiff used drugs and alcohol in the past, he was required by the Practice Guidelines to participate in an ASAT program as a pre-condition to being treated for hepatitiS C, which treatment would presumably include drug therapy, a referral to a Defendants' papers do not make any attempt to chronicle these efforts. has attempted to collect records of these incidents to document the r:.umber of times Dr. Kcenigs::nann denied plaintiff's, and plaintiff's treating physicia:1s', reqt:.csts for treatrr.ent and referral to a specialist. (~ aenerally Pint's 56.: Stmt., Exh. 3). Plaintiff has also attempted to collect records of {-.is gr:'r;:vOincs5 pertuining to these incidents. (See generally id. 7 PJai~tiff at: Exh. 9). for instance, Kaer.igsmann denied the request by plaintiff's treating physician that: plai.ntiff received an "updated liver biopsy to assess [the] prog""ession of chronic Hev" because treatment was "out of the qUestion" unless pL?:..ntiff agreed to partic::pate in an ASAT program. (Koen:i.gsmann Denial. dates ;,tamp nt;.mber GHM 75, dated ~ay 23, 2003, PInt's 56.1 Strnt. Exh. 3). 7 and an updated liver biopsy.~ liver specialist, 2002. plaintiff wrote to defendant Wright, On August 27, complai~ir.g about Jr. Koenigsmann's denial of his requests for t:::::eatment. (See ~e~ter 56.1 Strr.t. Exh. 4). t1edical Direct.or, Wright. ~o Dr. Wright, dated Aug. 27, 2002, PInt's On SepLember 30, 2002, Marc F. Stern, Regional responded to plaintiff's letter, on behalf of Dr. (See Letter to t-1r. Morgan, dated Sept. 30, 2002, 56.1 Stmt. Exh. 5). Plnt"s Stern's letter stated that the reason plaintiff was being denied treatment was that he had not yet par~icipated in a drug ab~se prevention program, and that parLicipaLion is nrequired by our Guidelines and is nonnegotiable." (Id.). Stern's letter also stated that "[iJ£ you are seriously interested in beginning treatment for your Hepatitis C infection, I would strongly encourage you to agree to participate in :he drug treatmen~ the very lease, program. It is a worthwhile program, but at it should not be harmful." (Ill. ) . In this lawsuit, plaintiff has offered no reason to refuse to ~ Eecause the recard does not clearly indicate when plaintiff and his treating physicians made eac!"! of their requests, it is unclear which version of the Prac-:ice Guidelines was in place each time Koenigsmann denied the :::equests due to plaint:iff's failure to enroll in an ASAT program. Defendants gloss over tjis fact, stati.ng that "all of the Guidelines uniformly providee [sic; I in essence, that in order for an inmate to be eligible for antiviral drug therapy for Repati~is C, there must be no evidence of active substance abuse (dcJ.q and/or alcohol) for a specified period of time. Those who have a history of sC1.bstancc abuse must 'successfully complete or be enrolled in rASA?1' as a co-requ~site for antiviral treatment." {Defs' 56.1 Stmt. i 19). :n fact, um:il the December 2000 Guideline, the Practice Guidelines did not specify who must participate ~n an ASAT program as a prerequisite for treatment. It was not until the December 2000 Guideline that persons with a "substance use history" were specifically required to participate in an ASAT r:rograY.l. The Practice GuideL.nes do not define the term "substance use history. " B par::':"cipate in U.n .l\SAT program.: J In 2002 or 2003, plaintiff appears to havE: placed his narr.e on the waiting list for an ASAT prog::am, but he subsequently withdrew his name from the list. The record contains an undated, handwritten letter from plaintiff asking that his :lame be -...rithdrawn from the waiting list.l1 (Plaintiff's Withdrawal Letter, Nowve Decl., Exh. C). Bates stamp nlli~er 00091, undated, In that letter, plaintiff states that he expects the requirement to be eliminated "in the near future": (IJ received a letter from the law firm of White & Case requesting permission to obtain my medical records from the medical department at Green Haven. I gave them my permission to access the records. They are for the purpose of assisting White & Case in their class action law suit against all medical Departments in D.O.C.S. The purpose of this law suit ~s to remove all medical department policies that reqUire patients infected with cronic [sic1 Hepa ti tis-C to participate in A. R. S. A. T. or any oc:her volum:ary drug rehabilitation program in order to receive medical treatment for this deadly disease. It is my belief that in the near future I will not be required to be enrolled in the A.R.S.A.T. program in order to receive medical treatment for my cronic [sic] Hepatitis-C infection! That is my motivation for withdrawing my application to participate in A.R.S.A.T. 10 One ~eason an inmate might r.ot want to enroll in an ASAT program, ?articularly if ttat inmate has successfully completed other rehabilitation p~ograms, is that par~icipating in an ASAT progran can be very time-consuming. See Domenech 'I. Soard, 196 Hisc. 2d 522, 524 n.1, 766 N.y.S.2d 287 (N.Y. Sup. Ct. May 28, ZeD3) ("ASAT is a six-month rehabilitation program for substance abusers which appa::ently requires :!"ull-day attendance. This time conunitment would eviden:::ly interfere ~ith petitioner's full schedule of attending school during the day and workiClg as a porter at night.") It is unclear from the record when plaintiff signed up for, and the ASAT wa':"ting list. In plaintiff's deposition, he -3cknowledgea tha:: he re!'..lsed "ASAT participatio:"l" in 2002. (Defs' 56.1 Stmt., 'I 26). However, t~e record contair.s a letter to plaintiff from E. Mamane, :Jated Bay 1, 2003, ackr.owledging receipt of plaintiff's request to withdraw ~is ap;:;l.icat':"on fOr the .J..SAT program. (Mamane's Acknowledgment Letter, Bates stamp number D0092, t..Jay 9, 2003. Nowve Decl., Exh. C). 11 wi thdrew his nilme frem, 9 :emphasis in original) Td. II. Discussion A. Sumrr:arv -Judgment Standard To prevail on a motion for summary judgment, the moving party dewons~ra~e must to be tried, law. that there are no genuine issues of material fact and that it is en~itled to judgment as a matter of See Fed. R. eiv. Pro. 56(c}; Celotex Corp. v. Catrett, 477 U.S. 317, 322 eir. 1991). (1986); Citizens' Bank v. Hunt, 927 F.2d 707, 710 (2d The moving party "bears the initial responsibility of informi:1g the district court of the basis for its motion H ; that responsibility includes identifying the materials in the record that the moving party believes demonstrate the absence of a genuine issue of material fact. Celotex Corp., 477 U.S. at 323. Once a motion for summary judgment is made and supported, the non-moving party must set forth specific facts to be tried. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). See Anderson v. An issue is genuine if "the evidence? is such that a reasonable jury could return a verdict for the nonmoving party." 39, 47 B. Id.; Mitchell v. Shane I 350 F.3d 12d Cir. 2003J. Section 1983 and Personal IpvQl vement In order for a plaintiff to obtain damages against a defendant in a Section 1983 action, the plaintiff must prove that that defendant w-as personally involved in the constitutional depr~vation. 1995). See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. Defendants argue that because they did not personally 10 render ~reatment to plainLif:, plaintiff cannot prove that they '.-Jers personally involved :"n tte alleged, constitutional dep:::ivation. Defer.dants' argumef'.t !1isses the point. contend ttat ~is Plaintiff does not treat':'ng physicians denied hi:n a constitutional right; instead, he contends that defendants, who were supervisory of:icials, denied him that right. A supervisory official may be shown to have sufficient personal involvement if: [d. (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being inforIT.ed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the com:inuance of such a policy or custom, (4) the defendant was grossly negligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of inmates by failing to act on information indicating that unconstitutional acts were occurring. (citing Wright v. Snith, 21 F.3d 496, 501 (2d Cir. 1994} Defendant Koenigsmann was the FSHD at Green Haven. capacity, In this Koenigsmann revieHed the care rendered to inmates, and he either approved or denied requests for specialty care services, procedures, and Pla~~t~ff diagnost~c studies. (Koenigsmann Decl., 1 4). has produced evidence that Koenigsmann, who is himself a medical doctor, repeatedly denied requests by plaintiff's primary care physicians that plaintiff receive drug therapy, a referral to a liver specialist, and an additional biopsy for diagnostic purposes. (See generally PInt's 56.1 Stmt., Exh. 3). Koenigsmann's personal involvement does not, therefore, 11 rest impermissibly on a theory of respondeat superior. Keane, 341 F.3d 137, 144 (2d cir. 2003). See Hernandez v. Rather, plaintiff has offered evidence that Koenigsmann participated directly in the alleged constitutiona~ violation, by deciding to withhold treatnent from plaintiff. Defendant Wright is the Deputy Commissioner and Chief Medical Officer of the DOCS. Plaintiff has offered evidence that Dr. Wright promulgated to health personnel within the DOCS system the Practice Guidelines that are central to this suit. from ~ester (See Memorandum N. Wright, M.D., MPH, to Facility Health Services Directors, dated Mar. 25. 2003, Koenigsmann Decl . ¢ Exh. 1) .12 There is no dispute that treatment is being withheld from plaintiff as a result of the Guidelines that Dr. Wright promulgated; thus, to the extent that unconstitutional acts have occurred as a result of applying the Guidelines, a reasonable jury could conclude that Wright was personally involved in that deprivation, because he "created a policy or custom under which unconstitutional practices occurred. or allowed the continuance of such a policy or custom." Colon, 58 F. 3d at 873. Cf. Brock, 315 F. 3d at 165-66 (holding that a jury cO'Jld conclude that Wright was personally involved in an alleged deprivation due to Wright's promulgation af the DOCS policy 1:0 The documents ?roduced by defense counsel pursuant to the Court's request contain additional evidence that Dr. Wright promulgated and oversaw the implementation of the Guidelines. (See Memorandum from Lester N. Wright, M.J., MPH, Associate Commissioner/Chief Medical Officer, to Facility Health Services Directors, daLed Apr. 12, 1999, Bates stamp numbers 00054-56; MC[f,orandum fro~ Lester N. I-hight. M.D., MPH, Associat:e CommisSioner/Chief Medical Officer, to FaciliLY Health Services DiIectors, Nurse Administrators, Pharmacists, dated Sept. 27, 1999, Bates stamp numbers D0040-44). 12 at issue in that case) c. E':'aht:h Plai~tiff .'3 ]l..mendment~~ clains that defendants violated plaintiff's rights ur..der the Sighth AIr,er.dmen!:. wr.en they participated in the decision ':0 withhold HCV treatment from him because he refuses to enroll in Il Defer.dants ci::e Judge Buc:-'wald's decision in Graham v. Wright as support for ~he proposit~on that Wright lacks the requisite personal involvement to be held liable. See Graham v. Wright, No. 01 civ. 9613 (NRB), 2003 WL 22126764, "2 (Seot. 12. 2003). In Graham, Judge Buchwald held that Wright lacked the personal involvement required to be held liable for money dar.tages. Alt:ho:.:gh Judge Buchwald took note of the fact that plaintiff there failed to allege that Wright personally treated him, her holding was based on the fact that plaint~ff there actually lacked standing to challenge the Hepatitis C Practice Guidelines. The reason for this was that plaintiff there actually had comple~ed an ASAT program, and was fully eligible to receive treatrr.ent for his HCV according to the Practice Guidelines. That case is thus distinguishable from the instant case. 14 The .E:ighth A."TLend-nent stac:es: "8xcessive bail shall not be required, nor excessive fines iIT.posed, nor cr'.lel and unusual punishments inflicted." u.s. Const. ~mend. VIII. The 8ighth Amendment was made applicable to the States thr::>ugh t:;'e Four:eenth Anendment. See Estelle v. Gamble, 429 U.s. 97, 101-02 (1976) (citir.g Robinson v. California, 370 u.s. 660 (1962) J. 13 an .'1.SAT p.::ogra.:n. :5.:E "To establish an Eighth Amendment claim arising OUt of inadeqcate medical care, a prisoner must prove 'deliberate indi.fference to [his] serious Itedical needs.'" v. Ar::1strong, 143 F.3d 698, 702 (2d Cir. 1998) 429 U.S. at 104). Chance (quoting Estelle, This requires that the prisoner prove both that l~ Other ccurts in -:his Circuit have considered similar claims by inmates infected wi-:::h HCV. Many of those claims are distinguishable on their facts from the instant case. See,~, Johnson v. Wright, No. 01 civ. 2122(GWG), 2004 i\1L 938299 (S.D.N.Y, :-1ay 3, 2004) (plaintiff there initially received one form of creatnent for his HCV, out was denied a newer form of treatment by t<JrighT.: pursuanT.: to the :'larch 1999 Guideline because plaintiff there actually tested oositive for mar::'4uana within the two-year period prior to his treating physician's request that he beqin the new treatment. In addition, approximately two years after the plaintiff there tested positive for marijuana, Wright approved the plaintiff for the newer treatment -- there is ~o mention in Magistrate Judge Gorenstein's opinion that the plaintiff there ever enrolled in an ASAT program); Pabon v. Wrioht, No. 99 elv. 2196{WHP), 2004 \VL 628784 (S,O.N.¥. !-1ar. 29, 2004) (plaintiff there received treatment for t;is HCV, but complained (1) that he had not been informed about the drug's risks ar-d side effects, and (2) that his treatment had been delayed because defendants required that he undergo a medically advised liver biopsy prior to receiving treatment); t1cKenna v. Wright, No. 01 Civ. 6571 (HB), 2004 WL 102752 (S,O.N.Y. Jan. 21, 2004) (remaining defendants denied qualified immunity on a moti.cn to dismiss); Grar.am, 2003 WL 22126764 (plaintiff there successfully comoleted AS.ll,T prooram, and appeared to be otherwise eligible to receive treatment) . I~ The one case with facts most similar to the instance case is Conti v, Goord, an unpublished summary decision in which the Second Circuit noted that the prisoner there might be able to demonstrate at trial that the policy "manifests 'deliberate indifference,' insofar as it entails denying treatment to prisoners who completed substance-abuse programs in the past and have since displayed no signs of drug or alcohol Llse." Conti v. Goord, 59 Fed.Appx. 434, 436, 2003 11L 1228044 (2d Cir. Mar. 14, 2003). The plaintiff in Conti, like the plaintiff in this case, was denied treatment beoause he refused to enroll in an ASAT program notwithstanding his history of drug and alcohol use. Id. at 435. The plaintiff there claimed that he was "demonstrably 'clean' for more ~han ten years", and he produced evidence to the Second Circuit (but not to the district court) that he had successfully completed an ASAT program in 1991, as well as an Alcoholics Anon~~ous program in 1992. Id. at 436. The plaintiff there also prod~ced a response by Wright to a grievance submitted by another imr,ate, in which 11riaht indicated that that inmate would receive HeV treatment once he could es'[ablish that he had been "clean" for six months ~o mention is made of whether enrollment in an ASAT program would also be required. See iei. Finally, the plaintiff there produced affidavits from two in~aLes who presumably also had a history of drug or alcohol use, but who clai!f,ed to have been provided with HCV treatment without being required to purticipaLe in an ASAT program. See id. The Court does not cite Conti as precedential authority. 14 his rr:ed:'cal condition is objectively serious, and that each defenda::1t ac::ed ','lith tr.e requisite deliberate ip.difference. See Brock, 315 F. 3d at 162. 1. Serious Medical Condition A cO:1dition is considered "sufficiently serious" for Eighth Amendment purposes if it is a "condition of urgency, one that may produce death, degeneration, or extreme pain." 278 F.3d :26, 132 (2d Cir. 2002). Morales v. Mackalm, Factors to be considered in making this decision include "(1) whether a reasonable doctor or patient would perceive the medical need in question as important and worthy of corrunent or treatment, (2) whether the medical condition significantly affects daily activities, and (3) the existence of chronic and sL:bstantial pain." Brock, 315 F.3d at 162 (internal quotations omitted). Defendants do not appear to deny, nor could hepatitis C is, ~hey, that in general, a sufficiently serious medical condition :or purposes of the Eighth Amendment. See, ~f Pabon, 2004 WL 628784, at *5 ("It is well-established that Hepatitis C qualif~es as a serious medical condition for purposes of an Eighth Amendment analysis."); Verley v. Goard, No. 02 Civ. 1182(PKC) (OF), 2004 WL 562740, at *10, n.ll (S.D.N.Y. Jan. 23. 2004) Recommendation adopted by order, dated June 2, 2004) (Report and (same); McKenna, 2002 WL 338375, at *6 (same). Defendants argue, however. that when an inmate claims only that his treatment has been delayed, the relevant inquiry should 15 focus r.ot -:.oly em whether the underlying condition is serious, but also on 'Nh~lher t:he challenged delay or interruption in treatment is objectively serious. 87 (2d Cir. 2003). See Smith v. Carpenter, 316 F.3d 178, 185- In this case, defendants argue that plaintiff's treatment has nerely been delayed, and that he has offered no evidence, such as "verifying medical evidence" or "expert evidence", to support his claim that his illness has gotten worse during the period in which treatment has been withheld from him. (Memorandum of Law in Support of Defendants' Motion for Summary Judgment ("Defs' Memo U ), dated Jan. 30, 2004, at 12). Plaintiff's claim in the instant case is distinguishable from the plaintiff's claim in Smith.:7 The plaintiff in this case is not comp!aining about a delay or interruption in his on-going treatment. Racher, plaintiff has never received any treatment for his illness, nor can he expect to receive any such treatment unless either he agrees to join an ASAT program, or the DOCS decides to provide such treatment notwithstanding plaintiff's failure to pac::icipa-ce in such a program. Where, as here, a prisoner "alleges that prison officials have failed to provide general treatment for his medical condition," courts do not "distinguish between a prisoner's '.mde::::lying \serious medical condition' and the 17 In Smith, the plaintiff was HIV-positive, and it was undisputed that he was receivi:1g "appropriate on-going treatment for his condition." Mllh, 316 F.Jd at 185-36. The basis for Smith's Eighth Amendment claim was that defendants had interrupted his treatment for two short periods of 5 days and 7 days in curation. See- id. at 185. The Court held that it was appropriate to consider ;.ot JUSt the seriousness of Smith's illness (i.e., HIV), but also the serio"Jsness of tt:e two brief interruptions in Smith's treatment. 16 circt.:mstances of his 'serious medical need.'" Id. at 185-86. Thus, on the facts of this case, plaintiff has sufficiently established that he has a serious medical condition simply by proving that he has (~eatreent hepati~~s C, and that he has not received any for this condition. 2. Deliberate Indifference Mere negligence, even if it rises to the level of medical malpractice, is insufficient to establish a claim under the Eighth Amendment. See Estelle, 429 U.S. at 105-06. In order to prevail on plaintiff's Eight:h Amendment claim, plaintiff must ultimately prove that each defendant "knew of and disregarded [his] serious medical needs." at 837). Chance, 143 F.3d at 703 (citing Farmer, 511 O.S. Actual knowledge of the risk may be proven either by direct evidence, or circumstantial evidence, such as "evidence that the risk was obvious or otherwise must have been known to a defendant." 842). Brock, 315 F.3d at 164 (citing Farmer, 511 U.S. at For the reasons stated below, the Court holds that a reasonable jury could find that defendant wright knew of and disregarded plaintiff's serious medical needs, because he promulgated ambiguous Practice Guidelines that have been applied to plaintiff in an unconstitutional manner. However, because defendant Koenigsmann was merely charged with applying the Practice Guidelines, a reasonable jury could not conclude that Koenigsmann showed deliberate indifference to plaintiff's serious medical needs. 17 Defendants argue ~eliberately ~hat plaintiff cannot prove that either was indifferent, because the decision to condition ?laintiff's treatrr,ent on his participation in an ASAT program was ~eauired by the DOCS Eepa;::ir.is C Practice Guidelines. However, the ?ractice Guidelines do not unambiguously require an inmate like plaintiff to participate in an ASAT program in order to receive ~reatment for HCV. The March 1999 and December 1999 Practice Guidelines are ambiguous as to who must participate in an ASAT program. 19 Since December 2000, when the active substance abuse criterion was merged with the ASAT criterion, the Practice Guidelines have required inmates with "a substance use history" to satisfy the ASAT requirement, but the Practice Guidelines provide no guidance as to who qualifies as having "a substance use ~istory." ~he The ambiguity of the Practice Guidelines is evidenced by fact that the ASAT requirement appears to be inconSistently applied. 19 !8 The March 1999 Guidelir.e, which was in place at the time that plaintiff was :ceferred for his first and only liver biopsy, states that one ::-eguirerr,ent in order to receive treatment is: "10. No evidence of active substance abuse (drugs and/or alcohol) dUring the past 2 years (check urine :.oxicology screen if drug use is suspected)." (March 1999 Guideline, 3). A separate requirement is: "11: Successful completion of an ASAT program (the ~nmate ~ay be enrolled concurrently with hepatitis C treatment if time does :lot allow for prior completion of the program)." (Id.). The December 1999 ?ractice Guideline reduced the 2-year bar for evidence of active substance use :0 a period of 6-months. (See December 1999 Guideline, 3). Although these two versions of the Practice Guidelines could be read as requiring every .:..nrr.ate to enroll in an ASAT program--including those who have never used drugs or alcohol--defendants do not argue that the Practice Guidelines were intended to be applied in this manner. The Court has already discussed instances in which inmates like appear to have been given drug treatment notwithstanding the fact :.hat they did not enroll in an ASAT program. See~, n. 15 & 16. The fact ~h~t plaintiff ~n this case was referred to a liver speCialist in 1999 for a ~iver biopsy also suggests that the Practice Guidelines have not always been Iq ~laintiff 18 Defendants interpret the ambiguous provisions In the Practice Guidelines as requiring any ~nmate who has ever abused drugs and alcohol to enroll in an ASA'! program. evidence that plaintiff has ac~ively Thus, although there is no used drugs or alcohol in the past thirteen years, defendants interpret the Guidelines as requiring plaintiff to enroll in an ASAT program before receiving tYeat:ment. :0 There is no medical justification for such a policy in any of the medical reports purportedly relied upon by the DOCS in fashioning its Practice Guidelines. The medical reports all indicate that complications may arise when treatment is given to persons who actively use drugs or alcohol. See National Institutes of Health, Consensus Development Conference Statement, Management of Hepatitis C: 1997 ("1997 NIH Consensus Statement"), dated Mar. 24-26, 1997, at 18 (available at http://consensus.nih.gov!cons/105/105_statement.pdf) (last visited applied consistently. According ~o defendants, because of plaintiff's "substance use history," it was just as true in 1999 as it is today, that plaintiff was required to enroll in an ASAT program in order to get treatment for his illness. Nonetheless, defendants admit that plaintiff received a liver biopsy in 1999, notwithstanding the fact that plaintiff was not enrolled in an ASAT program at that time. As discussed above, Koeingsrnann has since denied plaintiff an updated liver biopsy because of plaintiff's failure to enrcl~ in an ASAT program. ~ The Court notes that a more logical interpretation of the language in the Decerr.ber 2000 Guideline (which is identical to the current version of the Practice Gu':'delines) is that no inmate may receive Hev treatment if there is evidence of active substance acuse in the past six months, and that any inmate against whom there is such evidence would be required to enroll in an ASAT program prior ~o ~eceiving ReV treatment. This interpretation construes the sentence pertaining to inmates with a "substance use history" in conjunction with the iw~edia~ely previous sentence pertaining to inmates against whom there is evidence of active substance abuse within the past six months. Such an i~terpretation appears to be reasonable in light of the DOCS' decision to merge those two criteria into a single paragraph in December 2000. 19 Aug. 4 f 20C4 j (" [T 1 reatment of patients who are drinking sign:"ficant amounts of druGs shou~d least 6 alco~ol or who are actively using illicit be delayed until these habits are discontinued for at ~onths . . Treatment for addiction should be provided before treat:nent for hepatitis C.") (emphases added); Centers for Disease Control and Prevention, "Recommendations for Prevention and Control of Hepatitis C Virus (HeV) Infection and HCV-Related Chronic Disease" ("CDC Recommendations li ), dated October 16, 1998, at 14 ("Treatment of patients who are drinking excessive amounts of alcohol or who are injecting illegal drugs should be delayed until these behaviors have been discontinued for ~6 months. ") (emphases added); G.:'. Davis and J.R. Rodrigue, "Treatment of Chronic Hepatitis C in Active Drug Users", New Engl. J. Med., Vol. 354 No. 3, July 19, 2001 (noting that most phYSicians will withhold antiviral :reatment until active drug use has stopped, and stating that consensus statements support resuming treatment for patients for whom treatment has stopped due to active drug use only after the patient has been referred for treatment of the addiction) .ll The CDC Recommendations, which were issued shortly before the DOCS adopted the first version of the Practice Guidelines, ~1 The 2002 NIH Consensus Statement recommends that the treatment of both inmates and active drug and alcohol users be expanded. (See National !nstitutes of Health. Consensus Development Conference Statement, Management of Hepatitis C: 2002 ("2002 NIH Consensus Statement"), dated Aug. 26, 2002, Defa r Reply Memo, Exh. C (also available at http://consensus.nih.govlcons/116/hepatitis_c_consensus.pdf) (last visited Sept:. 24, 2004), 22 & 25) ("[IJt is recommended that treatment of active injection druo lJse be considered on a case by-case basis, and that active in-iection drUG use in and of itself not be used to exclude such patients from antivirnl therapy.") (emphases added). 20 spec-=-fically recornrr.end that "[p]ersons who use or inject druas . . be advised to stop using and injecting drugs [and] to enter and co~plete substance-abuse treatment, including p:!:ograms." (CDC Recommendations, at 18) ~elapse-prevention (empr.asis added). Thus, the CDC recommended in 1998 -chat persons who were actively drinking excessive amounts of alcohol or were actively injecting drugs be den:ed treatment for a limited period of time until the behavior ceased, and that those oeogle be encouraged to enter substanceabuse treatment programs, presumably for the purpose of successfully stopping the behavior that is delaying their ability to receive treatment. A reasonable jury could conclude that defendant Wright promulgated an ambiguous set of Practice Guidelines that resulted in the denial of necessary medical care to plaintiff without any medical justification. 22 A reasonable jury could also conclude that defendant Wright was aware of the risk that the ambiguous Practice Guidelines would be interpreted to condition HCV treatment for a person such as plaintiff on enrollment in an ASAT program, and that 1~ In addition to promulgating the Practice Guidelines, the Court notes that plaintiff notified Wright by letter of Koenigsrnann's refusal to approve !lev treatment. (See Letter to Or. Wright, dated Aug. 27, 2002, PInt's 56.1 Stmt. Exh. 4). Marc Stern, responding on Wright's behalf, wrote: "Your participation in [an ASAT program] is reqUired by our Guidelines and is nonnegot iable . . . . while consultants may make other recommendations, ul~i~ately the decisions about your medical care are made by your primary care physicians under the direction of the Facility Health Services Director and not the consultants. We appreciate their recommendations. but they are just that: recommendations." (See Letter to Mr. Morgan, dated Sept. 30, 2002, Pint's 56.1 Stmt. Exh. 5).~iven that plaintiff's primary care physicians made recom.-r,endations :hat were denied by the Facility Health Services Director [i.e., Koenigsmann) because of the Practice Guidelines promulgated by Wright, it is unclear in what way the "ultimate{]" decisions ilbout plaintiff's medical care rested with '!:he primary care physicians and the FHSD. 21 Wright was aware of ~he risk that people such as plaintiff would face as a result of such an interpretation. 165-67. Cf. id. a~ 164 ~ Brock, 315 F.3d at (stating that actual knowledge of the risk may be proven by circumstantial evidence, such as "evidence that ~he risk was obvious or otherwise must have been known to a defendant") (citing Farmer, 511 U.S. at 837). Dr. Wright could thus be held liable for the unconstitutional acts that occurred as a result of the ambiguity in the Practice Guidelines that he promulgated. 23 In contrast, a ~easonable jury could not conclude that Koenigsmann was deliberately indifferent to plaintiff's serious medical needs. ~edical Even if a jury believed that Koenigsrnann, himself doctor, was ~egligent in applying the Practice Guidelines to plaintiff in a medically unsupportable manner, there is no evidence from which a jury could conclude that he did so with knowledge of, and disregard for, plaintiff's serious medical needs. ~J The Court notes ':hat even if defendants were correct that the Practice Guidelines are unambiqucus in imposing the requirement that plaintiff enroll in an ASAT program, Wright would still not be entitled to summary judgment. A reasonable jury would nevertheless be able to conclude that plaintiff's constitutional rights were violated as a result of a policy promulgated by Wright that is without medical justification and resulted in deliberate indifference toward plaintiff's serious medical needs. See Brock, 315 f.3d at 165-67 (holding that if a policy, "properly implemented." results in deliberate indifference toward an inmate's medical needs, the plaintiff may be able to prevail on a claim against the person who promulgated the policy). £t. Domenech, 196 Misc. 2d at 531 (holding that as applied to the plaintiff in that case, the Practice Guidelines' requirement that the plaintiff there participate in an ASAT program "is arbitrary and capricious and results in a deliberate denial of medical attention to his serious medical condition in violation of the Eighth Amendment." The plaintiff in Domenech claimed to be drug- and alcohol-free for over 30 years, and respondents neither alleged, nor presented evidence to suggest, that he was currently using drugs or alcohol, or was likely to relapse,. The Court thus concluded that "the ASAT program is irrelevant for this petitioner and cannot, as a matter of law, provide a medical justification for the continued denial of medical treatment."). 22 O. Qualified Immunity The doctrine of qualified immunity protects state actors sued in their individual capacity from suits for monetary damages if "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Ford v. McGinnis l 352 F.3d 582, 596 (2d Cir. 2003) {quoting Harlow v. Fitzgerald/ 457 U.S. 800, 818 (1982)). Summary judgment is appropriate: only if the court finds that the asserted rights were not clearly established, or if the evidence is such that, even when it is viewed in the light most favorable to the plaintiff[] and with all permissible inferences drawn in [his} favor, no rational jury could fail to conclude that it was objectively reasonable for the defendants to believe that they were acting in a fashion that did not violate a clearly established right. Ford, 352 r.3d at 597 (citation and internal quotation omitted). The Eighth Amendment right that plaintiff claims was violated by defendants through their deliberate indifference to his serious medical needs was clearly established throughout the period covered in this suit. See Verley, 2004 WL 562740, at *17; McKenna v. Wriaht, No. 01 Civ. 6571(HB), 2004 WL 102752, at *7 (S.D.N.Y. Jan. 21, 2004) (citing Estelle, 429 U.S. at 106). Because the right in question was clearly established, summary judgment may not be granted if a rational jury could conclude, on the evidence presented, that it was not objectively reasonable for Wright to believe that he was acting in a constitutional manner.24 ~4 Because the Court has concluded that Koenigsmann is entitled to sUn4~ary judgment with respect to liability, the Court need not consider whether he would otherwise be entitled to qualified immunity. The Court 23 Viewing the evidence in the light most favorable to plaintiff, and drawing all permissible inferences in plaintiff's favor, the Court cannot conclude that Wright's belief that his acts were constitutional was objectively reasonable as a matter of law. As explained above, a rational jury could conclude that as a result of the ambiguity in the Practice Guidelines, plaintiff was denied necessary medical care for his serious, chronic illness. without medical justification. A rational jury could also conclude that it was not objectively reasonable for Wright to have believed that it was constitutional to promulgate such ambiguous set of Practice Guidelines that would permit such an interpretation. 2s III. Concl.us.ion For the reasons set forth above, the Court grants defendants' motion for summary judgment with respect to defendant Koenigsmann, and denies defendants' motion with respect to defendant Wright. The parties shall submit a joint pretrial order no later than October 29, 2004. The parties are directed to adhere to this Court's Individual Rules governing the form of Joint Pretrial notes, however, that given the ambiguity present in the Practice Guidelines promulgated to Koenigsmann by Wright. no rational jury could fail to conclude that it was objectively reasonable for Koenigsmann to believe that he was acting in a constitutional manner. ~ Even if the Practice Guidelines were not ambiguous. Wright would still not be entitled to qualified immunity. A rational jury could conclude that it was objectively unreasonable for Wright to believe that it was constitutional to promulgate a regulation that requires prison officials who know of an inmate's serious medical needs to disregard those needs, unless the inmate agrees to participate in an ASAT program. The fact that Wright is a medical doctor who is experienced at supervising the prOVision of medical services to inmates supports the Court's conclusion that a jury could find his actions objectively unreasonable. See Cuoco v. Moritsugu, 222 F.3d 99, 111 (2d Cir. 2000). - 24 Orders. The Individual Rules are available at http://www.nysd.uscourts.gov/Individual_Practices/Wood.pdf. so ORDERED. Dated: New York, New York September.:tQ., 2004 Kimba M. Wood United States District Judge Copies of this Order have been mailed to Q£Q counsel for defendants. 25 ~ plaintiff and

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