United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
P. MEHTA, UNITED STATES DISTRICT JUDGE
Jean-Gabriel Bernier, a federal prisoner, brought this action
against the Federal Defendants alleging, among other things,
that the Federal Bureau of Prisons violated his Eighth
Amendment right to be free from cruel and unusual punishment
by refusing to prescribe him the drug Harvoni to treat his
Hepatitis C. The court previously dismissed Plaintiff's
Bivens claims for money damages on qualified
immunity grounds, but allowed his claim seeking injunctive
relief in the form of Harvoni treatment to move forward.
matter is before the court on the Federal Defendants'
Motion to Dismiss the remaining claim for injunctive relief
as moot, and Plaintiff's Motion for Reconsideration of
the court's dismissal of his damages claim against
Defendant Allen, Chief Physician of the Federal Bureau of
Prisons. For the reasons discussed below, the Federal
Defendants' Motion to Dismiss is granted and
Plaintiff's Motion for Reconsideration is granted in part
and denied in part.
The Federal Defendants' Initial Motion to
court described the facts alleged in Plaintiff's pro se
Complaint in its March 2017 opinion granting in part and
denying in part the Federal Defendants' Motion to
Dismiss, and it need not repeat them at length here. See
generally Bernier v. Trump, 242 F.Supp.3d 31 (D.D.C.
2017). To summarize, Plaintiff challenged two aspects of his
confinement in his Complaint, seeking both injunctive relief
and money damages. See Id. at 34-37. Only one of
those challenges is at issue here. That challenge is premised
upon the decision by the Federal Bureau of Prisons
(“BOP”) to deny Plaintiff the drug Harvoni to
treat his Hepatitis C. See generally Defs.' Mot.
to Dismiss, ECF No. 50 [hereinafter Defs.' Second Mot. to
Dismiss]; Pl.'s Mot. for Reconsideration Regarding
Court's Dismissal of Pl.'s Eighth Amendment
Bivens Claim on Grounds of Qualified Immunity, ECF
No. 57 [hereinafter Pl.'s Mot. & Opp'n].
Plaintiff alleges that “the Federal Defendants
subjected him to cruel and unusual punishment in violation of
the Eighth Amendment by ‘deny[ing] Plaintiff treatment
for Hepatitis C pursuant to the BOP treatment guidelines and
allowing [him] to suffer from the debilitating effects of
[Hepatitis C].'” Bernier, 242 F.Supp.3d at
39 (alterations in original) (quoting Compl., ECF No. 1,
Federal Defendants (“Defendants”) previously
moved to dismiss Plaintiff's Eighth Amendment claims.
See Bernier, 242 F.Supp.3d at 34, 38-40. Defendants
sought dismissal on multiple grounds, but the court's
opinion focused on only two. First, Defendants sought
dismissal of Plaintiff's Eighth Amendment claim for
injunctive relief, asserted against Defendants in their
official capacities, for failure to state a claim.
Id. at 40; see Compl. ¶¶ 1-7,
45-46; see also Id. at 16 (requesting that the BOP
Director direct Defendant Allen to approve Plaintiff's
treatment with Harvoni). The court, however, found that
Plaintiff had stated a cognizable claim under the Eighth
Amendment. See Bernier, 242 F.Supp.3d at 40-41.
Specifically, after concluding that Plaintiff had
sufficiently alleged a serious medical need, the court found
the following allegations “more than adequate” to
satisfy the Rule 8(a) pleading standard with respect to
Defendants' deliberate indifference to Plaintiff's
serious medical need:
Plaintiff alleges that the BOP has violated its own policies
and the standard of care in the medical profession by
ignoring test results- his FibroSure scores from 2012, 2014,
and 2015-indicating he has cirrhosis that requires treatment
with Harvoni. Compl. ¶¶ 13, 15, 18-19. The
BOP's exclusive reliance on APRI scores and old biopsy
results to deny him Harvoni, he further contends, is not
premised on valid medical criteria, but instead driven by
“avoiding the costs of the Harvoni treatment by denying
mostly all prisoners who presently suffer from Hep[atitis]
C.” Id. ¶ 25. Plaintiff posits that if he
were to receive Harvoni now, then “the liver damage
already done to the liver will most likely be reversed and
the painful [symptoms] which he Plaintiff suffers as a result
of the present liver damage will cease to exist.”
Id. ¶ 24.
Id. at 41 (first alteration in original). Thus, the
court allowed Plaintiff's Eighth Amendment claim seeking
injunctive relief in the form of Harvoni treatment to
proceed. See Id. at 44-45.
Defendants also moved to dismiss Plaintiff's claim
against Defendant Jeff Allen, then-Chief Physician of BOP, in
his individual capacity, seeking money damages pursuant to
Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). See Compl.
¶¶ 1, 7, 45-46; see also Id. at 16
(seeking $50, 000 in damages assessed against Defendant Allen
for the denial of medical treatment). The court dismissed
this claim on the ground of qualified immunity.
Bernier, 242 F.Supp.3d at 38-40. The court held:
Plaintiff's Bivens claims are easily dismissed
on the second prong of the qualified immunity test because
the rights Plaintiff claims were violated were not clearly
established at the time the alleged violations occurred.
Plaintiff has cited no binding case, and the court is aware
of none, holding that denying a prisoner Harvoni to treat
Hepatitis C based only on his APRI score violates the Eighth
Amendment . . . .
Id. at 39. So, in summary, following Defendants'
initial motion to dismiss, the court permitted Plaintiff to
proceed with his Eighth Amendment claim for injunctive
relief, but dismissed his Bivens claim for damages
against Defendant Allen. In light of this conclusion, the
court appointed pro bono counsel to represent Plaintiff with
respect to his remaining claim. Id. at 45.