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Bernier v. Trump

United States District Court, District of Columbia

March 17, 2017

JEAN-GABRIEL BERNIER, Plaintiff,
v.
DONALD J. TRUMP, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Amit P. Mehta United States District Judge.

         Plaintiff 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.

         This matter is before the court on the Federal Defendants' Motion to Dismiss and Defendant Gilead Sciences, Inc.'s Motion to Dismiss.[1] 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.

         I. BACKGROUND

         Plaintiff 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.

         A. Plaintiffs Treatment for Hepatitis C

         Plaintiff 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 Stage.” Id.

         When 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.[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.

         Plaintiff 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.[3] See Id. ¶¶ 13, 15; Hepatitis C Online, Evaluation & Staging of Liver Fibrosis, Univ. of Wash., http://www.hepatitisc.uw.edu/go/evaluation-staging-monitoring/evaluation-staging/core-concept/all. 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. Id.

         Plaintiff 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.

         Harvoni 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.

         Plaintiff 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.

         Plaintiff 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.

         B. Plaintiff's Housing Conditions

         Plaintiff 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.

         According 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.

         The 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.

         Plaintiff 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. ¶ 49.

         As to 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.

         C. Plaintiff's Motion for a Preliminary Injunction

         In June 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 ...


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