United States District Court, D. Minnesota
RONALDO LIGONS, BRENT BUCHAN, LAWRENCE MAXCY, JOHN ROE, and JANE ROE, individually, and on behalf of those similarly situated, Plaintiffs,
MINNESOTA DEPARTMENT OF CORRECTIONS; THOMAS ROY, in his official capacity as Commissioner, Minnesota Department of Corrections; DAVID A. PAULSON, M.D., in his official capacity as Medical Director, Minnesota Department of Corrections; and NANETTE LARSON, in her official capacity as Health Services Director, Minnesota Department of Corrections, Defendants.
H. Mohring, Michael V. Ciresi, Katie Crosby Lehmann, and
Esther O. Agbaje, CIRESI CONLIN LLP; Peter J. Nickitas; and
Carl Peter Erlinder, for plaintiffs.
Kathryn A. Fodness, Andrew Tweeten, and Kelly S. Kemp,
MINNESOTA ATTORNEY GENERAL'S OFFICE, for defendants.
Patrick J. Schiltz United States District Judge.
are inmates who are in the custody of defendant Minnesota
Department of Corrections (“DOC”) and who have
chronic hepatitis C (“HCV”) infections. They
bring claims under the Eighth Amendment and Title II of the
Americans with Disabilities Act (“ADA”), 42
U.S.C. § 12131 et seq., on behalf of themselves and a
putative class of inmates challenging the protocol under
which the DOC decides whether and how to treat inmates with
matter is before the Court on defendants' motion for
summary judgment and plaintiffs' motion for class
certification. For the reasons that follow, defendants'
motion is granted in part and denied in part and
plaintiffs' motion is granted.
HCV and Treatment
a bloodborne pathogen that causes liver inflammation. Second
Paulson Aff. ¶¶ 9-10. It is primarily transmitted
through infected blood or bodily fluids, commonly through
contaminated needles; casual contact with an infected person
does not pose a risk of transmission. Second Paulson Aff.
¶¶ 9-10; id. Ex. I at 7941. About 70 to 75
percent of persons infected with HCV will develop a chronic
infection. Second Paulson Aff. ¶13. Chronic HCV can
cause liver disease, which is characterized by fibrosis (the
accumulation of scar tissue in the liver). Second Paulson
Aff. ¶18. The amount of scarring that chronic HCV causes
to the liver is classified by “stage, ” with
stage 0 (or “F0") indicating that the liver has a
normal appearance and stage 4 (or “F4") indicating
cirrhosis. Second Paulson Aff. ¶19. There is no way to
predict whether or when a given individual with chronic HCV
will develop liver disease. ECF No. 311 at 6-8.
HCV kills one third of infected persons and kills more
Americans than any other infectious disease. Mohring Decl.
Ex. 12 ¶ 6. HCV infection rates are many times higher in
prison than in the general population. Thompson Aff. Ex.
2¶17. Even when there is limited or no fibrosis, chronic
HCV can cause other problems. Thompson Aff. ¶¶ 15,
17. For example, patients without fibrosis may experience
symptoms such as fatigue, joint pain, and muscle aches.
Thompson Aff. ¶¶ 10, 18. HCV also increases the
risk of cardiovascular disease, kidney disease, diabetes
mellitus, lymphomas, and cryoglobulinemic vasculitis (an
inflammation of the blood vessels). Thompson Aff.
¶¶ 10, 20. Understandably, living with chronic
HCV-and not knowing whether or when that infection will
damage the liver or cause other symptoms-can cause
psychological problems. Thompson Aff. ¶18.
patient's fibrosis stage may be assessed with a blood
test, ultrasound elastography, or a liver biopsy. Thompson
Aff. ¶ 22; Second Paulson Aff. ¶¶ 20-22. The
primary goal of such testing is to distinguish among cases of
advanced scarring for purposes of determining which
medications would be most effective, the length of treatment
necessary, and what kind of aftercare is needed. Thompson
Aff. ¶ 22. Ultrasound elastography performs poorly in
distinguishing among lower stages of fibrosis. Thompson Aff.
recently, treating chronic HCV involved a lengthy course of
treatment with interferon injections. Second Paulson Aff.
¶¶ 31, 37. Such treatment could cause debilitating
physical and mental side effects and had a cure rate at or
below 50 percent. ECF No. 242-4 at 9, 17. In the last few
years, however, there have been significant breakthroughs in
HCV treatment with the emergence of direct-acting antivirals
(“DAAs”). Compared to previous forms of
treatment, DAAs are a miracle drug; DAA treatment generally
takes eight to twelve weeks, is considered safe, and has a
success rate greater than 95 percent. Second Paulson Aff.
¶¶ 38-42; Mohring Decl. Ex. 12 ¶ 7.
Importantly, the American Association for the Study of Liver
Disease and the Infectious Diseases Society of America
recommend DAA treatment for all patients with
chronic HCV-even those at ¶ 0-with the exception of
certain patients who have a short life expectancy. Mohring
Decl. Ex. 13.
to defendants, the wholesale cost of a course of treatment
with DAAs ranges from $54, 600 to $147, 000 per
patient. Second Fodness Aff. Ex. C at 9. During
the 2017-2018 biennium, the DOC spent over $3 million
treating inmates with DAAs. Second Larson Aff. ¶19.
DOC's Treatment Policy
April 2018, the DOC released a new version of its protocol
for treating chronic HCV. Thompson Aff. ¶ 7. Under the
new guidelines, the DOC generally provides antiviral
treatment only to inmates at ¶ 2, F3, and F4; the DOC
does not provide antiviral treatment to inmates at ¶ 0
and F1, unless they have certain other medical conditions or
complications. Thompson Aff. ¶¶ 9-11; Second
Paulson Aff. Ex. I at 7944-45. In other words, most F0 and F1
inmates are told that their chronic HCV will not be treated
with DAAs until they suffer liver damage (or additional liver
damage). Untreated inmates at ¶ 0 and F1 are instructed
to follow up with the on-site medical practitioner every six
months. Second Paulson Aff. ¶¶ 74, 82; id.
Ex. I at 7943. An inmate at ¶ 1 is re-staged (i.e., the
damage to his liver is reassessed) every year, and an inmate
at ¶ 0 is re-staged every two years. Thompson Aff.
¶11. The DOC currently uses ultrasound elastography to
determine stages. Second Paulson Aff. ¶ 21.
Ronaldo Ligons has been in DOC custody since 1993 and has an
anticipated release date of November 19, 2019. Ligons Aff.
¶ 2. Ligons was diagnosed with chronic HCV in 1998.
Ligons Aff. ¶ 4. The DOC began treating Ligons with a
DAA in January 2017, and he completed treatment on April 23,
2017. Ligons Aff. ¶14. Ligons was cleared of chronic HCV
in July 2017 and is considered cured. Ligons Aff. ¶ 15;
Second Paulson Aff. ¶109.
Brent Buchan is in DOC custody pursuant to a sentence that
was imposed in July 2017 and has an anticipated release date
of February 24, 2020. Buchan Aff. ¶ 2. Buchan was
previously in DOC custody from October 2012 to March 2015; he
was diagnosed with chronic HCV in August 2014. Buchan Aff.
¶¶ 2-3. Testing in November 2017 indicated that
Buchan was at ¶ 2. Second Paulson Aff. ¶115. After
some delay due to an unrelated medical condition, the DOC
began treating Buchan with a DAA on March 7, 2018, and he
completed treatment on May 1, 2018. Third Paulson Aff. ¶
56. The results of his post-treatment testing were not yet
available at the time of oral argument, but defendants have
said that he appears to be cured, Third Paulson Aff. ¶
56, Second Paulson Aff. ¶121 (Buchan's viral load
was undetectable after five weeks of treatment), and
plaintiffs have not contended otherwise.
Lawrence Maxcy is in DOC custody pursuant to a sentence that
was imposed in 2006 and has an anticipated release date of
January 12, 2021. Maxcy Aff. ¶2. Maxcy was diagnosed
with chronic HCV in 1995 and XXXXX also . Maxcy Aff. ¶4;
Second Paulson Aff. ¶123. Maxcy's most recent
elastography results (from December 2017) indicate that he is
at ¶ 0. Second Paulson Aff. ¶124 & Ex. Q. Under
the DOC's then-existing treatment guidelines, Maxcy was
not eligible for treatment with DAAs. Second Paulson Aff.
¶125. Under the DOC's April 2018 guidelines,
however, the fact that Maxcy XXXXX may make him eligible for
treatment with DAAs. Second Paulson Aff. ¶126.
and another inmate (Barry Michaelson) commenced this action
by filing a class-action complaint on May 1, 2015. ECF No. 1.
Ligons and Michaelson filed a first amended complaint on June
3, 2015, and a second amended complaint on October 29, 2015.
ECF Nos. 11, 42. The parties began briefing an initial round
of dispositive motions (as well as a class-certification
motion) in March and April of 2017.
noted, Ligons completed DAA treatment in April 2017.
Michaelson was released from prison on March 27, 2017. Pung
Aff. ¶16. Defendants accordingly argued that
plaintiffs' claims for injunctive relief were moot. ECF
No. 106 at 31. In response, plaintiffs moved for leave to
amend the second amended complaint to add additional
plaintiffs. ECF Nos. 170, 173.
Court held a hearing on the parties' motions on July 26,
2017. ECF No. 189. At the hearing, the Court identified
various problems with plaintiffs' case, including that
the named plaintiffs' claims for injunctive relief had
become moot, that all claims for damages were likely barred
by qualified immunity, and that, due to the Court's
concerns about the competency and lack of class-action
experience of plaintiffs' counsel, the Court was
unwilling to certify a class. ECF No. 204. In lieu of denying
class certification and dismissing most or all of
plaintiffs' claims, the Court offered to hold the case in
abeyance for a short time to give plaintiffs' counsel the
opportunity to associate with experienced class-action
counsel and then file an amended complaint. ECF No. 204 at
agreed with this proposal. ECF No. 204 at 44-46. Accordingly,
after bringing on additional counsel (Ciresi Conlin
LLP), Ligons and two new plaintiffs-Buchan
and Maxcy-filed a third amended complaint. The parties then
renewed their respective motions for summary judgment and
Standard of Review
judgment is warranted “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a). A dispute over a fact is
“material” only if its resolution might affect
the outcome of the suit under the governing substantive law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute over a fact is “genuine” only
if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id.
“The evidence of the non-movant is to be believed, and
all justifiable inferences are to be drawn in his
favor.” Id. at 255.
and Buchan have been treated with DAAs; they have received
all of the individual relief to which they would be entitled
if they prevailed in this case. They do not dispute that
their individual claims are moot. In fact, they have made
clear that they are no longer pursuing those claims. ECF No.
311 at 43. Defendants accordingly move to dismiss Ligons and
Buchan from the case. Ligons and Buchan oppose dismissal,
contending that, even though they are no longer pursuing
claims on their own behalf, they are still entitled to pursue
claims on behalf of a class.
judicial power of the United States is limited to
“Cases” and “Controversies.” U.S.
Const. art. III, § 2, cl. 1; U.S. Parole Comm'n
v. Geraghty, 445 U.S. 388, 395 (1980). Consequently, if
a plaintiff does not have a personal stake in a live
controversy, a federal court cannot adjudicate that
plaintiff's claim. Geraghty, 445 U.S. at 396-97.
This requirement applies at all stages of the case.
Campbell-Ewald Co. v. Gomez, 136 S.Ct. 663, 669
(2016). Ordinarily, therefore, a court must dismiss a claim
that becomes moot during the course of litigation.
Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 71
(2013) (“If an intervening circumstance deprives the
plaintiff of a personal stake in the outcome of the lawsuit,
at any point during litigation, the action can no longer
proceed and must be dismissed as moot.” (citation and
quotation marks omitted)).
general rule is subject to several important caveats in the
class-action context. Typically, if the named plaintiff's
individual claim became moot before a class was certified,
the entire case is moot, and the plaintiff is not entitled to
pursue claims on behalf of the yet-to-be-certified class.
See United States v. Sanchez-Gomez,138 S.Ct. 1532,
1538 (2018) (“Normally a class action would be moot if
no named class representative with an unexpired claim
remained at the time of class certification.”). But if
a class was certified before the named plaintiff's
individual claim became moot, there is still Article III
jurisdiction over the class's claims, and the inquiry
shifts to whether the named plaintiff remains a proper class
representative. Sosna v. Iowa,419 U.S. 393, 399-403
(1975); see also Kremens ...