United States District Court, S.D. New York
May 3, 2004.
JAMES JOHNSON, Plaintiff, -v.- LESTER N. WRIGHT, M.D., Assoc. Commissioner; GLENN S. GOORD, Commissioner, DOCS; CARL J. KOENIGSMANN, M.D., Fac. Health Ser. Dir.; ALBERT PAOLANO, M.D.; WILLIAM SMITH, M.D., Great Meadow Corr. Fac.; GEORGE B. DUNCAN, Supt. Great Meadow Corr. Facility; and JOHN E. CUNNINGHAM, JR., M.D., Defendants
The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
OPINION AND ORDER
In this action under 42 U.S.C. § 1983, plaintiff James Johnson claims
that defendants Lester N. Wright, M.D., Carl J. Koenigsmann, M.D., George
B. Duncan, and Glenn S. Goord were deliberately indifferent to his
serious medical needs and thus violated his constitutional rights under
the Eighth Amendment. Defendants have moved for summary judgment pursuant
to Fed.R.Civ.P. 56. The parties have consented to disposition of this
matter by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c).
For the reasons stated below, defendants' motion is granted.
In Johnson v. Wright, 234 F. Supp.2d 352, 368 (S.D.N.Y. 2002) ("Johnson
I"), familiarity with which is assumed, this Court granted in part and
denied in part defendants' motion to dismiss Johnson's pro se amended
complaint for failure to state a claim under Fed.R. Civ. P. 12(b)(6). As to the instant defendants Wright, Koenigsmann,
Duncan, and Goord the motion was denied. Id. Although Johnson was
proceeding pro se at that time, the Court subsequently placed this case on
the Pro Se Office's list of cases for which volunteer counsel had been
requested. See Order, filed December 30, 2002 (Docket #38), at 2.
Thereafter, the law firm of Paul, Weiss, Rifkind, Wharton & Garrison LLP
agreed to provide representation, for which the Court expresses its
gratitude. The Court has benefitted greatly from the excellent briefing
provided by both sides in this matter.
A. Factual Background
In considering the defendants' motion for summary judgment, the Court
accepts as true Johnson's version of the facts where supported by
admissible evidence and draws all factual inferences in Johnson's favor.
See, e.g., McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999).
1. The Parties
Johnson is an inmate in the custody of the New York State Department of
Correctional Services ("DOCS") and is currently incarcerated at the Great
Meadow Correctional Facility ("Great Meadow") in Comstock, New York.
Defendants' Rule 56.1 Statement, filed October 27, 2003 (Docket #51)
("Def. 56.1"), ¶ 1; Plaintiff's Response to Defendants'
Rule 56.1 Statement of Undisputed Facts, filed November 26, 2003 (Docket
#57) ("Pl 56.1") (collectively with Def. 56.1, the "Parties 56.1"),
¶ 1. Prior to his incarceration at Great Meadow, Johnson was
incarcerated at the Green Haven Correctional Facility ("Green Haven") in
Stormville, New York from February 28, 1997 through November 9, 1999.
Parties 56.1 ¶¶ 1, 18. Defendant Lester N. Wright, M.D. is a Deputy Commissioner and the Chief
Medical Officer of DOCS and has held these positions throughout the time
period of the incidents alleged in Johnson's amended complaint. Id. ¶ 2.
Defendant Carl J. Koenigsmann, M.D. is the Health Services Director at
Green Haven and has held this position since March 1999. Id. ¶ 4.
Defendant George B. Duncan is the former Superintendent of Great Meadow
and held this position from May 14, 1999 through early 2003. Id. ¶ 5. He
is now retired. Id. Defendant Glenn S. Goord is the Commissioner of DOCS
and has held this position throughout the time period of the incidents
alleged in the amended complaint. Id. ¶ 3.
2. Johnson's Disease: Hepatitis C
Johnson suffers from chronic hepatitis C. Id. ¶ 6. He was diagnosed
with the disease in May 1997. Id. ¶¶ 7, 19. At that time, a liver biopsy
was performed on Johnson and it was determined that his disease was in
advanced Stage III with bridging fibrosis of the liver. Id.
Hepatitis C is spread primarily through contact with infected blood.
Nat'l Digestive Diseases Info. Clearinghouse, Chronic Hepatitis C:
Current Disease Management dated February 2003 (annexed as Ex. D to
Declaration of Daniel Schulze in Support of Defendants' Motion for
Summary Judgement, filed October 27, 2003 (Docket #52) ("Schulze
Decl.")), at 2. One of the routes for this disease is through intravenous
drug use. Id.; Deposition of Efsevia Albanis, September 25, 2003
("Albanis Dep.") (annexed as Ex. C to Declaration of Catherine C. Montjar
in Opposition to Defendants' Motion for Summary Judgment, filed November
26, 2003 (Docket #58) ("Montjar Decl.")), at 61. Johnson has admitted to
using intravenous drugs, including heroin, prior to his incarceration in
1982. Parties 56.1 ¶ 9. Chronic hepatitis C is an extremely slow-progressing disease:
researchers currently estimate that it takes at least 10 to 20 years for
a person inflicted with chronic hepatitis C to develop cirrhosis. Id. ¶
10. However, the progression of a patient infected with chronic hepatitis
C from advanced Stage III with bridging fibrosis of which Johnson was
diagnosed in May 1997 to Stage IV, cirrhosis, can take as little as
several years. Expert Report of Efsevia Albanis, M.D., dated August 29,
2003 ("Albanis Report") (annexed as Ex. B to Schulze Decl.), at 3.
At least 20% of patients with chronic hepatitis C will eventually
develop cirrhosis. PL 56.1 ¶ 10. After 20 to 40 years, a smaller
percentage of those patients will develop liver cancer. Id. While the
response rate depends on the type of treatment, generally less than 45%
of patients with chronic hepatitis C will respond to therapy. Id. ¶ 11.
3. The DOCS Hepatitis C Practice Guideline
On March 31, 1999, DOCS issued a practice guideline concerning
hepatitis C. Parties 56.1 ¶ 13; see Hepatitis C Primary Care Practice
Guideline, dated March 31, 1999 ("DOCS Practice Guideline" or
"Guideline") (annexed as Ex. G to Schulze Decl.). The Guideline purports
to be "an approach to the current management of hepatitis C disease which
is consistent with community standards of care and is appropriate in our
corrections settings." DOCS Practice Guideline at 1. It notes that "the
treatment plans recommended in this document are not necessarily all
inclusive. This guideline represents the current state of knowledge
regarding treatment agents for the management of hepatitis C." Id. One
such treatment agent, interferon-alpha therapy ("Interferon Therapy"), is
discussed in the Guideline. See id. at 2-5. It provides that Interferon
Therapy "should be considered in accordance with the following criteria,"
one of which is: "10. No evidence of active substance abuse (drug and/or
alcohol) during the past 2 years (check urine toxicology screen if drug
use is suspected)." Id. at 2-3.
Attached to the DOCS Practice Guideline is a document entitled
"Hepatitis C Treatment Referral Checklist." See Hepatitis C Treatment
Referral Checklist, undated ("DOCS Hepatitis C Checklist") (annexed to
the DOCS Practice Guideline). According to the Guideline, completing this
checklist "will assist the clinician in evaluating the inmate for
possible treatment." DOCS Practice Guideline at 2. The checklist lists 7
items under "Inclusion Criteria" and 11 items under "Exclusion Criteria."
DOCS Hepatitis C Checklist. One of the items under "Exclusion Criteria"
is "Active alcohol or other substance abuse within past two years." Id.
Next to each item are three boxes labeled "Yes," "No," and "Comments."
Id. The checklist states at the bottom: "The above inmate has met all the
inclusion criteria and does not have any of the exclusion criteria
(exceptions may be HIV or psychiatric disease)." Id. Directly underneath
this statement are signature and date lines for the inmate's primary care
provider to fill out. Id.
Two of the supporting references listed in the DOCS Practice Guideline
are a 1997 statement prepared by the National Institutes of Health and a
1997 guideline issued by the Federal Bureau of Prisons. See DOCS Practice
Guideline at 5 (citing Nat'l Insts. of Health, Consensus Development
Statement: Management of Hepatitis C, dated March 24-26, 1997 ("NIH
Report") (annexed as Ex. I to Schulze Decl.); Fed. Bureau of Prisons,
Treatment Guidelines for Viral Hepatitis, dated September 1, 1997 ("BOP
Report") (annexed as Ex. J to Schulze Decl.)). 4. Johnson's Treatment
During Johnson's incarceration at Green Haven, his treating physician
was Tom Scales, M.D. Parties 56.1 ¶ 20. In addition, Johnson regularly
visited with an outside Gastroenterology specialist, "Dr. Antonelle," in
regard to his treatment for hepatitis C. Id.
In February 1998, Johnson began receiving Interferon Therapy, three
million units three times a week. Id. ¶ 21. On May 26, 1998, Johnson was
given a urine toxicology screen and tested positive for marijuana usage.
Id. ¶ 22.
Johnson initially responded positively to Interferon Therapy. Id. ¶
23. In December 1998, however, Dr. Antonelle noted that Johnson's liver
enzyme counts were increasing. PL 56.1 ¶ 23. Lab tests performed in
January 1999 showed that Johnson's viral load was increasing and, once
again, that his liver enzyme counts were increasing. Id. On February 2,
1999, Dr. Antonelle recommended that the drug Ribavirin be added to
Johnson's Interferon Therapy. Parties 56.1 ¶ 23. This combination
treatment is commonly referred to as "Rebetron Therapy." Id. On February
4, 1999, Dr. Scales indicated that Johnson would be started on Rebetron
Therapy "as soon as approval can be obtained." Id. ¶ 24. Dr. Scales also
noted that he would "[a]nticipate a new set of tests "to evaluate for any
developing anemia." Pl. 56.1 ¶ 24. On either May 19 or May 24, 1999,
Dr. Antonelle reiterated his recommendation that Johnson be started on
Rebetron Therapy. Parties 56.1 ¶ 24. On May 24, 1999, a note was made in
Johnson's medical file indicating that a request for Ribavirin would be
made to the central pharmacy. Id. ¶ 25. Subsequently, Dr. Koenigsmann
passed along to Dr. Wright's office a request by Dr. Scales that Johnson
receive Ribavirin. Declaration of Carl Koenigsmann in Support of
Defendant's [sic] Motion for Summary Judgement, filed October 27, 2003 (Docket
#53) ("Koenigsmann Decl."), ¶ 3.
On June 1, 1999, Dr. Wright denied the request for Ribavirin "due to
drug use within the past year." Parties 56.1 ¶ 27; see Medical Records,
certified April 16, 2003 ("Medical Records") (annexed in part as Ex. C to
Schulze Decl., in part as Ex. D to Montjar Decl., and in part as Ex. A to
Reply Declaration of Daniel Schulze in Support of Defendants' Motion for
Summary Judgement, filed December 19, 2003 (Docket #60)), at MED 0099.
The denial was sent to Dr. Koenigsmann, who passed it along to Dr.
Scales. Koenigsmann Decl. ¶ 3. On August 17, 1999, after having been
informed of the Ribavirin denial apparently by Dr. Scales, Dr. Antonelle
issued another recommendation concerning Johnson's treatment. See Medical
Records at MED 0105. In that recommendation, Dr. Antonelle noted that the
"[r]equest for ribavirin was refused because of bad urine test for
marijuana" but that he did "not feel that this should preclude [a
prescription for] ribavirin." Id. Dr. Antonelle indicated that Johnson
"[h]ad initially responded to [Interferon but had] relapsed" and that he
"[w]ould again request approval for ribavirin." Id. "[I]n [the] interim,"
Dr. Antonelle increased Johnson's Interferon prescription. Id.
On November 9, 1999, Johnson was transferred to Great Meadow. Parties
56.1 ¶ 31. On January 21, 2000, William Smith, M.D., Johnson's new
treating physician at Great Meadow, noted that Johnson had been denied
Ribavirin and that he would call Dr. Wright to obtain approval for it.
See Medical Records at MED 0210. As of March 10, 2000, Dr. Smith had not
received an "update" from Dr. Wright. Id. at MED 0208.
On June 15, 2000, Johnson filed an "Inmate Grievance Complaint," in
which he requested that DOCS's drug-use policy be retracted and that he
be permitted to begin Rebetron Therapy immediately. Id. at MED 0285. The next day, Johnson wrote a
letter to Dr. Wright asking him for approval to commence Rebetron
Therapy. See id. at MED 0281-82. Johnson sent a copy of this letter to
Commissioner Goord. See id. at MED 0280.
At some point between June 19 and July 24, 2000, Dr. Wright approved
Johnson for Rebetron Therapy. See id. at MED 0277. On July 24, 2000, the
necessary medications were ordered. Id. On July 25, 2000, Dr. Wright
wrote to Johnson and stated that he had been approved for Rebetron
Therapy and that the treatment would commence in the near future. Id. at
MED 0279. From August 2000 until February 2002, Johnson received Rebetron
Therapy. Parties 56.1 ¶ 35. Johnson did not respond to it. Id. ¶ 36.
B. Procedural History
Johnson filed the original complaint in this action on March 13, 2001.
Complaint, filed March 13, 2001 (Docket #2). Johnson's complaint under
42 U.S.C. § 1983 alleged that the defendants deprived him of his civil
rights under the Eighth Amendment due to their deliberate indifference in
providing him with medical treatment. See id. After the defendants moved
to dismiss that complaint, Johnson sought and obtained leave to file an
amended complaint. See Order, filed November 9, 2001 (Docket #17).
Johnson filed his amended complaint on December 9, 2001. Amended
Complaint, filed December 9, 2001 (Docket #19). Defendants then moved to
dismiss the amended complaint pursuant to Fed.R.Civ.P. 12(b)(6). Notice
of Motion to Dismiss, filed April 16, 2002 (Docket #28).
On December 6, 2002, the Court granted in part and denied in part
defendants' motion. Johnson I, 234 F. Supp.2d at 368. The Court granted
the motion as to certain defendants for their lack of personal
involvement in the alleged civil rights violation. Id. at 365. As for the remaining defendants Dr. Koenigsmann, Duncan, Dr. Wright, and
Commissioner Goord the Court held that the amended complaint stated a
claim for deliberate indifference, that Johnson adequately alleged their
personal involvement, and that they were not entitled to qualified
immunity. Id. at 359-62, 364-68.
On February 27, 2003, the Court ordered that discovery proceed but be
limited to the following two topics: (1) "Whether it was reasonable for
defendants to believe in [1998-2000] that it was medically justifiable to
treat [Johnson's] Hepatitis C with Interferon rather than Rebetron
Therapy"; and (2) "Whether being treated with Interferon rather than
Rebetron Therapy in [1998-2000] caused any injury to [Johnson]."
Memorandum Endorsement, filed February 27, 2003 (Docket #42). On May 5,
2003, counsel from Paul, Weiss, Rifkind, Wharton & Garrison LLP
noticed their appearance on behalf of Johnson.
Defendants have now moved for summary judgment under Fed.R.Civ.P. 56.
See Notice of Motion for Summary Judgment, filed October 27, 2003 (Docket
#49). Defendants argue that Johnson's claim of deliberate indifference
fails because he has not demonstrated that the alleged delay in treating
him with Rebetron Therapy caused him any injury and thus could not have
constituted deliberate indifference. See Defendants' Memorandum of Law in
Support of Motion for Summary Judgement, filed October 27, 2003 (Docket
#50) ("Def. Mem."), at 8-13. In the alternative, they argue that the
initial refusal to treat Johnson with Rebetron Therapy was justified by a
medical reason. See id. at 17-22. Finally, defendants argue that they are
entitled to qualified immunity and that the claim must be dismissed as
against Dr. Koenigsmann, Duncan, and Commissioner Goord for their lack of
personal involvement. See id. at 13-17, 22-24. II. SUMMARY JUDGMENT STANDARD
A district court may grant summary judgment only if "the pleadings,
depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as
a matter of law." Fed.R.Civ.P. 56(c); see Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986). A genuine issue is one that "may reasonably be
resolved in favor of either party." Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250 (1986). A fact is material if it "might affect the
outcome of the suit under the governing law." Id. at 248. Thus, a genuine
issue of material fact exists "if `the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.'" Gayle v. Gonyea,
313 F.3d 677, 682 (2d Cir. 2002) (quoting Anderson, 477 U.S. at 248).
When determining whether a genuine issue of material fact exists, all
factual inferences must be drawn and all ambiguities resolved in favor of
the nonmoving party. See, e.g., Savino v. City of New York, 331 F.3d 63,
71 (2d Cir. 2003) (citing Anderson, 477 U.S. at 255); McPherson, 174 F.3d
at 280. However, "[c]onclusory allegations, conjecture, and speculation
. . . are insufficient to create a genuine issue of fact." Kerzer v.
Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) (citation omitted); accord
Harlen Assocs. v. Incorporated Vill. of Mineola, 273 F.3d 494, 499 (2d
"In moving for summary judgment against a party who will bear the
ultimate burden of proof at trial, the movant may satisfy [its] burden by
pointing to an absence of evidence to support an essential element of the
nonmoving party's claim." Vann v. City of New York, 72 F.3d 1040, 1048
(2d Cir. 1995) (citing Celotex, 477 U.S. at 322-23). "A defendant moving
for summary judgment must prevail if the plaintiff fails to come forward
with enough evidence to create a genuine factual issue to be tried with respect to an element
essential to [his] case." Alien v. Cuomo, 100 F.3d 253, 258 (2d Cir.
1996) (citing Anderson, 477 U.S. at 247-48); accord Nebraska v. Wyoming,
507 U.S. 584, 590 (1993); Chase Manhattan Bank v. Am. Nat'l Bank & Trust
Co. of Chi., 93 F.3d 1064, 1072 (2d Cir. 1996).
III. DELIBERATE INDIFFERENCE STANDARD
To establish a violation of the Eighth Amendment arising out of
inadequate medical treatment, a prisoner is required to prove "deliberate
indifference to [his] serious medical needs." Estelle v. Gamble,
429 U.S. 97, 104 (1976). The deliberate indifference standard consists of
both an objective and a subjective prong. Hathaway v. Coughlin, 37 F.3d 63,
66 (2d Cir. 1994), cert. denied, 513 U.S. 1154 (1995).
Under the objective prong, the alleged medical need must be
"sufficiently serious." Id. (internal quotation marks and citation
omitted). A "sufficiently serious" medical need is "a condition of
urgency, one that may produce death, degeneration, or extreme pain." Id.
(internal quotation marks and citation omitted).
Under the subjective component, the prisoner must show that the
defendant officials acted with a "sufficiently culpable state of mind" in
depriving the prisoner of adequate medical treatment. Hathaway v.
Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). "[T]he subjective element of
deliberate indifference `entails something more than mere negligence . .
. [but] something less than acts or omissions for the very purpose of
causing harm or with knowledge that harm will result.'" Id. (alterations
in original) (quoting Farmer v. Brennan, 511 U.S. 825, 835 (1994)); see
Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003) (likening the
necessary state of mind to "the equivalent of criminal recklessness"
(internal quotation marks and citation omitted)); Hemmings v. Gorczyk, 134 F.3d 104, 108 (2d Cir. 1998) (per curiam)
(same). In order to be found "sufficiently culpable," the official must
"know of and disregard an excessive risk to inmate health or safety;
the official must both be aware of facts from which the inference could
be drawn that a substantial risk of serious harm exists, and he must also
draw the inference." Farmer, 511 U.S. at 837.
While the medical care received by the prisoner must be adequate, a
prisoner is not entitled to receive treatment by every medical
alternative. See generally Estelle, 429 U.S. at 105-07. A difference of
opinion between a prisoner and medical personnel regarding medical
treatment does not rise to the level of a constitutional violation.
Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998). Nor can deliberate
indifference arise simply because an inmate prefers an alternative
treatment or feels that he did not get the level of medical attention
that he desired. See Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986).
Nonetheless, "[p]rison officials are more than merely negligent if they
deliberately defy the express instructions of a prisoner's doctors." Gill
v. Mooney, 824 F.2d 192, 196 (2d Cir. 1987) (citation omitted): see
Zentmyer v. Kendall County, 220 F.3d 805, 812 (7th Cir. 2000) (prison
officials may not "substitute their judgments for a medical
professional's prescription"). "If a defendant consciously chose to
disregard a nurse or doctor's directions in the face of medical risks,
then he may well have exhibited the necessary deliberate indifference."
Zentmyer, 220 F.3d at 812. Indeed, in some instances even prison doctors
may be held liable for the failure to provide medical care recommended by
other doctors. See, e.g., Woods v. Goord, 2002 WL 731691, at *4-*5
(S.D.N.Y. Apr. 23, 2002) (although inmate obtained regular medical care,
claim for deliberate indifference stated where he alleged that prison doctors had delayed in
complying with and/or had ignored the directives of specialists over
In Johnson I, the defendants argued that Johnson could not show that
they had been deliberately indifferent to his medical needs because there
existed a medical justification for denying him Rebetron Therapy based on
his drug use. See 234 F. Supp.2d at 368. The Court rejected this argument
because it relied on evidence dehors the record and thus could not be
considered on a motion to dismiss. Id. Defendants have now supplied this
evidence in proper fashion. Because this evidence provides a sufficient
basis for granting them summary judgment, it is unnecessary to reach
their alternative arguments.
A. The Denial and the DOCS Practice Guideline
It is true, as Johnson contends, see Plaintiff's Memorandum of Law in
Opposition to Defendants' Motion for Summary Judgment, filed November 26,
2003 (Docket #56) ("PL Mem."), at 22, that all of Johnson's treating
physicians, both inside the prison (Dr. Scales and Dr. Smith) and outside
the prison (Dr. Antonelle), recommended that he be treated with Rebetron
Therapy. See, e.g., Medical Records at MED 0103-05, 0210. However, as
Johnson correctly recognizes, the mere fact that his treating physicians
recommended Rebetron Therapy does not mean that the Constitution required
that he receive it. See PL Mem. at 20 (noting that situations arise where
the proper treatment "contradict[s] the express instructions of a
prisoner's treating physician"). It is therefore necessary to look at the
specific circumstances surrounding the denial.
When Dr. Wright denied Johnson's request for Ribavirin on June 1, 1999,
he indicated that the reason for his denial was "drug use within the past
year." Medical Records at MED 0099. Indeed, on May 26, 1998, Johnson had tested positive for marijuana
usage based on a urine toxicology screen. Parties 56.1 ¶ 22. Although
this drug test was not precisely "within the past year," it is clear that
Dr. Wright's denial was based on this drug test. See also Medical Records
at MED 0107 (notation from Dr. Scales that Johnson "was denied Ribavirin
because of DOCS Drug Use Policy").
According to the DOCS Practice Guideline, a consideration in
determining whether an inmate should be approved for hepatitis C
treatment is whether there is "evidence of active substance abuse (drug
and/or alcohol) during the past 2 years." DOCS Practice Guideline at 3.
The checklist accompanying the Guideline, upon which the inmate's primary
care provider must certify that the inmate "does not have any of the
exclusion criteria," states in even stronger terms that "substance abuse
within past two years" is one of the "Exclusion Criteria." DOCS Hepatitis
While Johnson argues that "one positive test for marijuana does not
indicate that a patient infected with Hepatitis C is a drug abuser who
should not be treated," PL Mem. at 9, this argument does not address the
logically precedent issue of whether Johnson's condition fit within the
language of the DOCS Practice Guideline. Johnson has put forth no
evidence disputing that a positive drug test is "evidence of active
substance abuse" within the meaning of the Guideline. Indeed, the
Guideline itself notes that one way to test for "active substance abuse"
is to "check urine toxicology screen," DOCS Practice Guideline at 3
precisely what was done in Johnson's case. Moreover, even Johnson's own
expert agrees that a positive urine test is "evidence of active substance
abuse." Albanis Dep. at 124. Thus, it is clear that the single positive
drug test was "evidence of active substance abuse" within the meaning of
the DOCS Practice Guideline. B. Whether the Application of the Guideline Was Deliberately
The mere fact that the defendants denied Johnson medication based on an
application of the DOCS Practice Guideline, however, does not end the
deliberate indifference analysis. For example, if Johnson had evidence
from which a reasonable jury could conclude that the defendants
subjectively knew of an excessive risk to his health or safety in their
following the Guideline, such evidence would presumably constitute proof
of the "subjective" prong of the deliberative indifference standard. See
generally Farmer, 511 U.S. at 837.
Johnson's argument for demonstrating the existence of the subjective
prong consists largely of his contention that no medical evidence exists
in support of the Guideline's exclusion criterion. See, e.g., Pl. Mem. at
4 ("There is no medical evidence that marijuana use affects a patient's
ability to tolerate ribavirin."). One of Johnson's main contentions is
that the active abuse of drugs whether it be marijuana or some other
illicit drug is not inconsistent with the administration of Rebetron
Therapy. See, e.g., id. at 4-5, 20. While accepting Johnson's contention
would not necessarily be dispositive of this case, the Court will begin
its analysis by examining the medical evidence on this point.
Defendants have submitted an expert declaration from Mark A. Korsten,
M.D., the Associate Chief of Medical Program and Chief of
Gastroenterology at the Bronx VA Medical Center and Professor of Medicine
at the Mount Sinai School of Medicine. Expert Declaration of Mark A.
Korsten, M.D. in Support of Defendant's [sic] Motion for Summary
Judgement, filed October 27, 2003 (Docket #54) ("Korsten Decl."), ¶ 1.
In it, Dr. Korsten concludes that "there were valid reasons to withhold
Rebetron therapy from [Johnson] in 1999." Id. ¶ 2. According to Dr.
Korsten, "[t]he standard of care during 1998-1999 was not to treat
patients infected with [hepatitis C] if there was evidence of drug or alcohol abuse. The
reason for this reluctance to treat actively abusing patients was that
such behavior would compromise a patient's ability to adhere to a rather
unpleasant and arduous therapeutic regimen." Letter from Dr. Korsten to
Schulze, dated August 28, 2003 ("Korsten Ltr.") (annexed as Ex. A to
Korsten Decl.), at 4.
Indeed, Johnson's own expert expounded on why it is dangerous to miss
appointments when being treated with Rebetron. See Albanis Dep. at 42-46.
She testified that "people who are actively abusing drugs will have a
hard time being compliant with their medication and with follow-up
appointments, which are very important . . . when they're being treated
with medications that can affect their blood count, their various blood
counts. So they'd be noncompliant patients and put themselves at risk if
they wouldn't follow up with the prescribing physician." Id. at 44-45.
Case law discussing the DOCS Practice Guideline also recognizes the risks
associated with coterminous drug use and Rebetron Therapy. In Graham v.
Wright, the court noted that the DOCS Practice Guideline "appear[s] to be
highly rational in light of the fact that severe side effects, including
death, may result from treatment of the patient with [Rebetron], and that
active substance abuse . . . can cause life threatening consequences to a
patient following the treatment regimen." 2003 WL 22126764, at *2 n.5
(S.D.N.Y. Sept. 12, 2003).
Of course, it is not for this Court to decide whether this medical view
is correct. Instead, the issue is whether there is any disputed issue of
fact as to whether the defendants reasonably could have harbored the
belief that the view embodied in the Guideline was correct. This is
because if they held such a belief, it would be impossible for a jury to
conclude that they had the subjective intent necessary to show deliberate
indifference to Johnson's medical needs. Thus, the issue is not the arguments that may now be made regarding the wisdom of
the Guideline but rather what apparent basis it had at the time.
The undisputed evidence in this case reflects that the factor listed in
the DOCS Practice Guideline was supported by and, indeed, was based
upon reports prepared by medical professionals. One of those reports,
the NIH Report, states that "treatment of patients who are drinking
significant amounts of alcohol or who are actively using illicit drugs
should be delayed until these habits are discontinued for at least 6
months. Such patients are at risk for the potential toxic effects of
alcohol and other drugs and also present problems with compliance.
Treatment for addiction should be provided prior to treatment for
hepatitis C." NIH Report at D0294; see also Albanis Dep. at 109 ("Q.
Doctor, is it fair to say that the [DOCS Practice Guideline is] based on
the [NIH Report] at the time? A. Yes. Q. Including the reference to
illicit drug use that we looked at, correct? A. Yes."). Another report
referred to in the Guideline, the BOP Report, states in almost identical
terms to the Guideline that treatment "should be considered in accordance
with the following criteria," one of which is: "(10) No evidence of
active substance abuse during past 2 years (check urine toxicology screen
if drug use suspected)." BOP Report at 18-19.
It is thus clear that there were valid medical reasons justifying the
denial of Rebetron Therapy to active substance abusers. While Johnson has
presented medical evidence suggesting that he could properly have
received Rebetron Therapy, he has not rebutted defendants' evidence that
their treatment of Johnson was consistent with the DOCS Practice
Guideline and that the Guideline was based on medical evidence that was
apparently reliable at the time. Johnson's other main argument is that the DOCS Practice Guideline does
not indicate that a person who abuses illicit drugs is per se
disqualified from receiving treatment for hepatitis C. See Pl. Mem. at
20-22. Rather, the Guideline establishes this only as one of 14
"considerations for treatment." DOCS Practice Guideline at 2. Johnson
thus urges that denying him Rebetron Therapy solely based on this factor
and without any individualized examination of him demonstrates that the
defendants acted with a sufficiently culpable state of mind. See PL Mem.
While the Guideline itself may have established only factors,
defendants have presented evidence that DOCS's medical authorities
required that they be followed. See Report from Dr. Wright to Regional
Medical Directors and Facility Health Service Directors, dated December
3, 1998 ("Wright Report") (annexed as Ex. F to Schulze Decl), at 1 ("I am
aware that some specialists in the community may be treating cases that
do not meet our criteria, but we will be following recommendations that
are based on federal guidelines and are consistent with guidelines being
used by the Federal Bureau of Prisons and several other state DOCS
systems."); id at 2 ("There must be no evidence of active substance
(alcohol or drug) use during the past two years (negative random test
results are evidence of no use)."). This requirement was supported by
some medical opinions available at the time. See Korsten Ltr. at 4; see
also Albanis Dep. at 45-46, 70-71 (citing articles on both sides of the
Of course, under the subjective prong of the deliberate indifference
analysis, the issue is whether the defendant prison officials knew that
their use of the factor as a complete bar to Rebetron Therapy presented
an excessive risk to Johnson's health or safety. See Farmer, 511 U.S. at
837; see also Hernandez, 341 F.3d at 144 (requiring a showing of criminal
recklessness); Hemmings, 134 F.3d at 108 (same). That all of Johnson's treating doctors
may have disagreed with this policy is of no moment because, although
they may have felt that substance abuse was not a contraindication for
treatment, other medical personnel did maintain that opinion, as is
reflected in the DOCS Practice Guideline and the medical references cited
in it. As case law notes, "[n]ot every physician will treat every ailment
in exactly the same manner," Douglas v. Stanwick, 93 F. Supp.2d 320, 325
(W.D.N.Y. 2000), and "disagreements over medications, diagnostic
techniques . . ., forms of treatment, or the need for specialists or the
timing of their intervention, are not adequate grounds for a Section 1983
claim," Sonds v. St. Barnabas Hosp. Corr. Health Servs., 151 F. Supp.2d 303
. 312 (S.D.N.Y. 2001): see Pabon v. Goord, 2003 WL 1787268, at *7
(S.D.N.Y. Mar. 28, 2003) ("Determinations of medical providers concerning
the care and safety of patients are given a `presumption of
correctness.'" (quoting Perez v. County of Westchester, 83 F. Supp.2d 435,
440 (S.D.N.Y.), aff'd mem., 242 F.3d 367 (2d Cir. 2000))); see also
Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989) (plaintiff's showing
of nothing more than a difference of medical opinion as to one course of
treatment over another was insufficient to establish deliberate
indifference); Sires v. Berman, 834 F.2d 9, 13 (1st Cir. 1987) ("Where
the dispute concerns not the absence of help, but the choice of a certain
course of treatment, or evidences mere disagreement with considered
medical judgment, [a court] will not second guess the doctors."
Johnson makes much of the fact that no defendant ever examined him. PL
Mem. at 18. He notes that the NIH Report states that "treatment for
Hepatitis C `should be made on an individual basis' except where
`treatment is clearly recommended.'" Id. at 21 (quoting NIH Report at
D0293). He thus argues that the defendants were deliberately indifferent
by refusing to comply with the recommendations of his treating physicians, all of
whom individually treated him and recommended that he be prescribed
Rebetron. See id. at 18-22.
This circumstance is also insufficient to permit a reasonable jury to
find deliberate indifference. Neither the DOCS Practice Guideline nor the
medical evidence that supports it require that medical personnel
physically examine an inmate in order to determine whether that particular
inmate's drug use should act as a bar to Rebetron Therapy. While Johnson
characterizes Dr. Wright's denial as being "blind," id. at 20, in fact
he based his denial on the specific fact that Johnson had tested positive
for marijuana within the past year. See Medical Records at MED 0099. The
cases cited by Johnson for the proposition that an official must comply
with a treating physician's recommendation, see PL Mem. at 19-20 (citing
Williams v. Fisher, 2003 WL 22170610 (S.D.N.Y. Sept. 18, 2003); Rhames
v. Fed. Bureau of Prisons, 2002 WL 1268005 (S.D.N.Y. June 6, 2002); Woods
v. Goord, 2002 WL 731691 (S.D.N.Y. Apr. 23, 2002)), are inapposite
inasmuch as there was no valid medical justification in those cases for
the defendant official's refusal to provide treatment.*fn1
Johnson further argues that the defendants' justification for denying
him Rebetron "are belied by the fact that they continued to treat him
with interferon subsequent to the positive marijuana test." PL Mem. at
20; see also Albanis Report at 2 ("If [Johnson's] positive test for
marijuana was a medically justified contra-indication for receiving
rebetron therapy, his interferon treatment should have also been stopped."). Johnson points to
the fact that the DOCS Practice Guideline, the NIH Report, and the BOP
Report are not specific to Rebetron Therapy but apply generally to all
hepatitis C drug therapies. See PL Mem. at 7-8.
Defendants concede that "similar patient compliance concerns exist with
both interferon monotherapy and combination Rebetron therapy" and that
the DOCS Practice Guideline, the NIH Report, and the BOP Report do not
apply specifically to Rebetron Therapy. Def. Mem. at 21. However, as
defendants correctly note, "deciding whether to commence a new and
dangerous year-long course of drug therapy is a completely different
matter than deciding whether to terminate ongoing drug therapy before it
has run its course." Id. Indeed, Dr. Wright noted this fact in a 1998
report to DOCS's Facility Health Service Directors and Regional Medical
Directors in which he described those situations where hepatitis C
medications should be used: "In those cases in which treatment is already
in progress, we will not discontinue based upon the above [guidelines],
but we will follow these guidelines in the future." Wright Report at 2.
In addition, none of the defendants made the decision to continue Johnson
on Interferon after he tested positive for marijuana. Rather, it was Dr.
Antonelle, one of Johnson's treating physicians, who made the decision.
See Medical Records at MED 0105.
Moreover, far from showing deliberate indifference, the fact that
Johnson continued to be treated with Interferon, which he had initially
responded to positively but which later failed to be as effective,
further lends support to the conclusion that the defendants' decisions
were reasonable. See Clark v. Doe, 2000 WL 1522855, at *2 (E.D. Pa. Oct.
13, 2000) ("[C]ourts have consistently rejected Eighth Amendment claims
where an inmate has received some level of medical care." (citation
omitted)); see also Pabon, 2003 WL 1787268, at *11 (granting defendant prison officials' motion for summary judgment after considering the fact
that, during the alleged unconstitutional delay in treatment, the
plaintiff prisoner was seen by numerous physicians and continued receiving
In the end, Johnson offers no competent evidence of any non-medical
motivation for denying him Rebetron Therapy, such as financial concerns,
punishment, or retaliation. Nor is there any evidence that the 18-month
delay or denial was the product of an intentional disregard for Johnson's
health or safety. Indeed, Johnson was approved for Rebetron Therapy two
years after his positive drug test for marijuana the same time
period spelled out in the DOCS Practice Guideline.
Because the Court concludes that there is no genuine issue as to any
material fact on the subjective prong of deliberate indifference
analysis, the Court need not reach the defendants' alternative argument
that Johnson's claim fails on the objective prong. Nor need the Court
reach defendants' arguments on qualified immunity or lack of personal
Defendants' motion for summary judgment (Docket #49) is granted. The
Clerk of the Court is requested to enter judgment in favor of the
defendants and to close this case.