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Bernier v. Obama

United States District Court, District of Columbia

August 24, 2016

Jean-Gabriel Bernier, Plaintiff,
v.
Barack H. Obama, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Amit P. Mehta United States District Judge

         This matter is before the court on Plaintiff Jean-Gabriel Bernier's motion “for a preliminary injunction directing [ ] [D]efendant BOP Chief Physician Jeff Allen to provide Plaintiff with the drug treatment regimen of Harvoni; [and directing] [D]efendant BOP Director Samuels to house Plaintiff in a two-man cell.” Notice of Motion, ECF No. 9.[1] For the reasons discussed below, the motion is denied.

         I. BACKGROUND

         A. First Cause of Action: Treatment for Hepatitis C

         1. Plaintiff's Factual Allegations

         Plaintiff “suffers from Hepatitis C, ” which he describes as “a virus transmitted primarily through the blood . . . which impairs the liver, ” and “ultimately leads to cirrhosis” of the liver. Compl., ECF No. 1, ¶ 10. He believes that, if he were to “eradicate the virus now, the liver damage already done . . . will most likely be reversed and the painful symptoms which [he] suffers as a result of the present liver damage will cease to exist.” Id. ¶ 24. These symptoms include “nausea, gastric dysfunction, chronic fatigue, night sweats and insomnia.” Id.

         Plaintiff alleges that, in October 2014, the Food and Drug Administration granted Gilead Sciences, Inc., “approval to market a drug named Harvoni for the cure of Hepatitis C.” Id. ¶ 16. The drug is costly, however. Plaintiff represents that “a once a day pill cost[s] about $1, 000.00 each amounting to $94, 000.00 for a twelve-week treatment.” Id. According to Plaintiff, patients who, like him, are “African-American, Genotype 1 (most difficult to treat), prior null responder to previous treatment regimens, ” experience “amazing results” on Harvoni. Id. ¶ 17.

         When Plaintiff returned to federal custody in June 2015, he was designated to FCI Allenwood, a medium security institution. See id. ¶¶ 18, 29.[2] Based on “test results which indicated cirrhosis from 2012, 2014 and 2015” and “liver biopsy results from 2009 which showed Grade II, Stage II liver conditions, ” he “requested treatment with Harvoni.” Id. ¶ 18.[3] Medical staff at FCI Allenwood, in turn, submitted a “request for treatment approval . . . to [D]efendant BOP Chief Physician Allen.” Id. Dr. Allen denied the request on the ground that “Plaintiff did not meet the BOP priority criteria” based on certain, but not all, of the test results Plaintiff submitted. Id. ¶ 19.

         On the belief that the high cost of Harvoni was the basis of Dr. Allen's decision, Plaintiff asked for permission “to participate in the Gilead Patient Assistance Program which is offered by Gilead for those unable to afford . . . the treatment.” Id. ¶ 25. According to Plaintiff, BOP and Gilead officials conferred and “decided that prisoners would not be allowed to participate in the assistance program.” Id. ¶ 26. Nor has the BOP obtained other FDA-approved drugs for the treatment of Hepatitis C that recently have become available at a lower cost than Harvoni. Id. ¶ 27.

         2. Defendants' Representations

         Elizabete Stahl, D.O. (“Dr. Stahl”), a licensed physician employed as the Clinical Director at FCI Allenwood, examined Plaintiff on August 24, 2015, shortly after his arrival at the facility. Fed. Defs.' Opp'n to Pl.'s Mot. for Prelim. Inj., ECF No. 20, Ex. A, Decl. of Elizabete Stahl, D.O., ECF No. 20-1 [hereinafter Stahl Decl.], ¶¶ 1, 3-4. According to Plaintiff's medical records, he had been diagnosed with Hepatitis C; an ultrasound of his liver had been done on January 1, 2013; and liver biopsies had been done in 2004 and 2009, the latter of which rated his condition as Grade 2, Stage IIB. Stahl Decl. ¶ 4. Plaintiff's APRI (AST/Platelet Ratio Index) score-a numerical method of measuring the risks associated with Hepatitis C-was a 0.47, and his genotype was 1a. Id. Although Plaintiff displayed no clinical symptoms of cirrhosis at that time, Dr. Stahl ordered an updated ultrasound, id., which was administered on September 28, 2015, id. ¶ 5. Plaintiff also underwent an upper endoscopy on November 18, 2015. Id. Plaintiff “was seen by [Dr. Stahl's] staff on September 29, 2015, and again on October 29, 2015, related to his Hepatitis C condition.” Id. ¶ 6. In addition, on November 2, 2015, a registered nurse discussed with Plaintiff “the Hepatitis C Clinical Practice Guidelines and algorithm and what lab data staff look at in determining treatment priority levels.” Id.

         According to Dr. Stahl, “[t]he BOP has established priority criteria to ensure that those [patients] with the greatest need are identified and treated first.” Id. ¶ 7. Priority 1 patients, including those with documented cirrhosis and an APRI score greater than two, are the highest priority. Priority 4 patients are the lowest priority. See id. Under this framework, Plaintiff is a Priority 3 patient. Id. This group includes “patients with Stage 2 fibrosis on liver biopsy [and an] APRI score [of] 1.5 to <2[.]” Id.

         At six-month intervals, “the institution's infectious disease nurse runs a roster of all patients with a current/active diagnosis of Hepatitis C, and new APRI scores are calculated on every Hepatitis C patient[ ] and submitted to the clinical director/designee for review and prioritization.” Id. ¶ 8. Only “[p]atients with APRI scores >2 are scheduled to meet with a medical provider and go over their interest/willingness to submit to treatment.” Id. Plaintiff's APRI score as of July 14, 2016, was 0.32. Id.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&ldquo;On December 22, 2015, a request for Harvoni anti-viral treatment for Hepatitis C was submitted, &rdquo; presumably by Plaintiff. Id. &para; 9. At that time, Plaintiff had an APRI score of 0.40. Id. The request was denied because, absent evidence of advanced liver disease, Plaintiff did not meet BOP&#39;s priority treatment criteria. Id. As a Priority 3 patient, Dr. ...


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