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JOHNSON v. WRIGHT

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.

 I. INTRODUCTION

  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 ...


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