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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


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 Cir. 2001).

  "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).


  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 several years).


  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 C Checklist.

  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 Indifferent

  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. at 20-22.

  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 issue).

  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." (citations omitted)).

  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 medication).

  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 involvement.


  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.

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