United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
P. Mehta United States District Judge.
Jean-Gabriel Bernier brings this suit challenging two aspects
of his confinement. First, he contests the Federal Bureau of
Prison's refusal to prescribe him with the drug Harvoni
to treat his Hepatitis C, and Defendant Gilead Sciences,
Inc.'s decision not to accept him into a patient
assistance program designed for those who are unable to
afford Harvoni. Second, Plaintiff complains about the
conditions in which he is housed, specifically, that he is
housed in a six-man cell and that cell assignments at the
prison are made on the basis of race and ethnic origin.
matter is before the court on the Federal Defendants'
Motion to Dismiss and Defendant Gilead Sciences, Inc.'s
Motion to Dismiss. For the reasons discussed below, the
Federal Defendants' motion is granted in part and denied
in part. Plaintiff will be permitted to proceed against the
Federal Defendants on his claim that the denial of Harvoni
violates his Eighth Amendment right against cruel and unusual
punishment, but on no other claim. Defendant Gilead Sciences,
Inc.'s Motion is granted in its entirety.
is a prisoner in the custody of the Federal Bureau of Prisons
(“BOP”), designated to a medium security facility
in White Deer, Pennsylvania (“FCI Allenwood”),
who suffers from Hepatitis C. See Compl, ECF No. 1
[hereinafter Compl], ¶¶ 10, 18, 29. He has
filed suit in response to the BOP's refusal to provide
him with Harvoni, a medication that treats Hepatitis C, or
allow him to participate in an assistance program for those
unable to afford Harvoni. Id. ¶¶ 19, 25,
45-47. Plaintiff simultaneously seeks relief from the
BOP's decision to house him in a unit known as a
“six man cell, ” in which six inmates live in
cell blocks designed to hold four inmates. Id.
¶¶ 30-31, 40-41, 48-49. The court addresses each
cause of action in turn.
Plaintiffs Treatment for Hepatitis C
describes Hepatitis C as “a virus transmitted primarily
through the blood and which impairs the liver, ”
“ultimately lead[ing] to cirrhosis, end-stage liver
disease, liver cancer, . . . liver failure and death.”
Id. ¶ 10. He “presently suffers from
nausea, gastric dysfunction, chronic fatigue, night sweats
and insomnia.” Id. ¶ 24. Generally,
Plaintiff explains, treatment for patients diagnosed with
“chronic Hep[atitis] C . . . is to monitor the
functioning of the liver and the progression of the disease
and damage to the liver.” Id. ¶ 12.
Damage to the liver “is quantified based on Grade and
Plaintiff was returned to federal custody in June 2015, he
“submitted to his medical providers . . . at FCI
Allenwood Fibrosure test results which indicated cirrhosis
[of his liver] from 2012, 2014 and 2015.” See
Id. ¶ 18. In addition, he submitted “liver
biopsy results from 2009 which showed Grade II, Stage II
liver conditions.” Id. He then
“requested treatment with Harvoni, ” a drug
manufactured by Defendant Gilead Sciences, Inc.
(“Gilead”), a publicly held corporation that
sells the drug to the BOP “at deeply discounted prices
through the Federal Supply Schedule contract.”
Id. ¶¶ 8, 18; Def. Gilead Sciences,
Inc.'s Mot. to Dismiss & Mem. in Supp., ECF No. 12
[hereinafter Def. Gilead's Mot.], at 2. According to
Plaintiff, patients like himself- “African-American,
Genotype 1 (most difficult to treat), prior null responder to
previous treatment regimens”-have experienced
“amazing results” on Harvoni. Compl. ¶ 17.
Plaintiff submitted his request for treatment to Defendant
Dr. Jeff Allen, Chief Physician at the BOP, for approval.
Id. ¶ 18. Dr. Allen denied Plaintiff's
request on the ground that “Plaintiff did not meet the
BOP priority criteria” based on certain of the test
results Plaintiff had submitted. Id. ¶ 19.
alleges that the BOP's policy allows for reliance on
indications of cirrhosis beyond those shown in APRI scores-in
accord with the medical profession's standard of
care-but, in practice, the BOP is not considering clear
indicators of cirrhosis and wrongly denying prisoners with
Hepatitis C, such as himself, treatment. The medical
profession uses various tests to diagnose cirrhosis and
disease progression, including liver biopsies, ultrasound
scans, APRI scores, and FibroSure scores. See Id.
¶¶ 13, 15; Hepatitis C Online, Evaluation &
Staging of Liver Fibrosis, Univ. of Wash.,
Plaintiff contends that Dr. Allen erroneously relied on
Plaintiff's low APRI number and outdated biopsy results,
rather than Plaintiff's more recent FibroSure scores,
despite BOP policy stating “that the APRI should not be
used if there is some other indication of cirrhosis.”
See Compl. ¶¶ 15, 18-19. Moreover,
Plaintiff contends, the “BOP's reliance on the APRI
as the gateway for consideration for treatment goes against
the medical evidence, ” because APRI scores accurately
reflect disease progression in only “75% of cases
measured for cirrhosis.” Id. ¶¶ 14,
21. “There are Hep[atitis] C patients like the
Plaintiff who do not have high AST numbers[, which are
primarily used to calculate APRI scores, ] but who
nevertheless suffer from high inflammation of the liver and
fibrotic damage as indicated by the results of the Fibrosure
test done on Plaintiff.” Id. ¶ 22.
Accordingly, had Dr. Allen properly considered
Plaintiff's FibroSure score, as the BOP policy and
medical community require, then, Plaintiff believes, he would
have realized that Plaintiff suffers an advanced stage of
liver disease that warrants treatment with Harvoni.
foresees dire consequences flowing from the BOP's
decision not to treat him with Harvoni. Failure to treat
Plaintiff is “allow[ing] continuing damage to be
visited upon [his] liver to the point of the damage being
irreversible. At that point, treatment will not ameliorate
the liver condition and will lead to the need for a
transplant or liver cancer.” Id. ¶ 23.
“Should the Plaintiff eradicate the virus now [through
treatment with Harvoni], the liver damage already done to the
liver will most likely be reversed and the painful symptoms
which the Plaintiff suffers as a result of the present liver
damage will cease to exist.” Id. ¶ 24.
is expensive, however. The daily dose for one patient costs
approximately $1, 000.00 and the treatment is twelve weeks
long, leading to a price tag of $94, 000.00. Id.
¶ 16. Plaintiff contends that Dr. Allen based his
decision to deny him access to Harvoni not on a valid medical
reason, but instead to “avoid the costs of the
Harvoni treatment.” Id. ¶ 25.
also alleges that he was erroneously denied participation in
a program designed for those unable to afford the cost of
Harvoni. On the belief that cost alone is the driving
consideration behind the BOP's decision to deny Plaintiff
access to Harvoni, Plaintiff sought permission from both BOP
and Gilead “to participate in the Gilead Patient
Assistance Program[, ] which is offered by Gilead for those
unable to afford . . . the [Harvoni] treatment.”
Id. According to Plaintiff, BOP and Gilead officials
conferred and “decided that prisoners would not be
allowed to participate in the assistance program.”
Id. ¶ 26. The BOP has not only refused to
provide Plaintiff access to Harvoni, but also failed to
obtain any other recently approved drugs for the treatment of
Hepatitis C, even though these drugs are less costly than
Harvoni. Id. ¶ 27.
claims that the BOP's denial of treatment with Harvoni
violates his Eighth Amendment protection against cruel and
unusual punishment. Id. ¶¶ 45-46. He also
contends that the denial violates the Equal Protection Clause
of the Fifth Amendment, because the denial was “based
on race, age and status as a prisoner.” Id.
¶ 47. Additionally, Plaintiff claims that Gilead's
refusal to allow him to participate in the Harvoni patient
assistance program violates the Patient Protection and
Affordable Care Act (“ACA”), see 42
U.S.C. § 18116. Compl. ¶ 47.
Plaintiff's Housing Conditions
was housed at FCI Allenwood in a “six-man
cell”-which is formed by combining two cells intended
to house two men each into a single space into which six men
are placed-in a housing unit occupied by 30 excess prisoners.
See Id. ¶¶ 30, 35. According to Plaintiff,
these close conditions “create[d] an environment of
excess noise and chaos” and caused “tension and
animosity” amongst the prisoners, whose
“standards of cleanliness” and sleep schedules
differ. Id. ¶¶ 35-37. Plaintiff alleges
that living in the six-man cell left him “no personal
space for privacy to conduct [his] personal functions,
” and the cell “deprive[d him] of the opportunity
to find some peace of mind.” Id. ¶¶
33, 35. He also complains that his cell had inadequate
ventilation, which “render[ed] the cell stifling in the
summer and freezing cold in the winter time.”
Id. ¶ 34. Further, Plaintiff's Complaint
states, Plaintiff remained in a six-man cell for several
weeks, while other prisoners “would be assigned to a
two-man cell” within days of their arrival at FCI
Allenwood. Id. ¶¶ 38, 39.
to Plaintiff, the BOP makes its housing assignments based on
prisoners' races, ethnicities, and geographic or gang
affiliations. Id. ¶ 40. Plaintiff alleges that
FCI Allenwood staff, as well as former BOP Director Charles
Samuels and Assistant Directors Angela P. Dunbar and Bradley
T. Gross, “condoned the manner of basing housing
assignments on those [aforementioned] criteria” in
order to “avoid conflicts” amongst prisoners.
Id. ¶ 41. He asserts that “whites are
housed with whites in the two-man cells, hispanics with
hispanics and blacks with blacks, ” and “blacks .
. . spend the most time in the six-man cells [because] . . .
the hispanics and whites ‘control' more
cells.” Id. ¶ 44.
BOP's records reflect that Plaintiff was given a space in
a two-man cell when one became available, and he is no longer
housed in a six-man cell. Plaintiff was “at the top of
the waiting list for a two-man cell, ” and when one
became available on September 6, 2016, it was offered to
Plaintiff. Fed Defs.' Reply to Pl.'s Opp'n, ECF
No. 36, Ex. C, ECF No. 36-1, ¶ 4. Plaintiff was removed
from FCI Allenwood on a federal writ on October 3, 2016, but
he returned on October 31, 2016, and moved into the two-man
cell. Id. ¶¶ 3-4.
claims that his assignment to a six-man cell constitutes
cruel and unusual punishment in violation of the Eighth
Amendment. Compl. ¶ 48. In addition, he asserts that
“[t]he policy and practice . . . of using race, ethnic,
geographic or gang affiliation as the criteria . . . for
housing assignments . . . is an arbitrary and capricious
exercise of the BOP's statutory authority” that
violates his rights under the Fifth Amendment. Id.
both sets of claims-those premised on the denial of Harvoni
and those premised on housing practices-he demands injunctive
relief and compensatory and punitive damages. Specifically,
he requests that $50, 000 be assessed against Dr. Allen for
denying him Harvoni, and that $100, 000 be assessed against
Obama, Samuels, Dunbar, and Gross for his inadequate housing
conditions. See id. 16.
Plaintiff's Motion for a Preliminary Injunction
2016, Plaintiff filed a motion for a preliminary injunction,
seeking treatment with Harvoni and housing in a two-man cell,
on the ground that denying him such treatment and housing
violated the Eighth Amendment. Pl.'s Mot. for a Prelim.
Inj., ECF No. 9, at 1. The court denied the motion,
concluding that, based on the record then before the court,
Plaintiff failed to demonstrate a likelihood of success on
the merits of his ...