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.
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).
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 ...