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Ligons v. Minnesota Department of Corrections

United States District Court, D. Minnesota

January 14, 2019

RONALDO LIGONS, BRENT BUCHAN, LAWRENCE MAXCY, JOHN ROE, and JANE ROE, individually, and on behalf of those similarly situated, Plaintiffs,
v.
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.

          Andrew 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.

          MEMORANDUM OPINION

          Patrick J. Schiltz United States District Judge.

         Plaintiffs 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[1] 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 chronic HCV.

         This 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.

         I. BACKGROUND

         A. HCV and Treatment

         HCV is 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.

         Chronic 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.

         A 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. ¶ 22.

         Until 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.

         According to defendants, the wholesale cost of a course of treatment with DAAs ranges from $54, 600 to $147, 000 per patient.[2] 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.

         B. DOC's Treatment Policy

         In 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.

         C. Plaintiffs

         1. Ronaldo Ligons

         Plaintiff 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.

         2. Brent Buchan

         Plaintiff 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.

         3. Lawrence Maxcy

         Plaintiff 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.

         D. Procedural Posture

         Ligons 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.

         As 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.

         The 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 40-44.

         Plaintiffs agreed with this proposal. ECF No. 204 at 44-46. Accordingly, after bringing on additional counsel (Ciresi Conlin LLP[3]), Ligons and two new plaintiffs-Buchan and Maxcy-filed a third amended complaint. The parties then renewed their respective motions for summary judgment and class certification.

         II. SUMMARY JUDGMENT

         A. Standard of Review

         Summary 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.

         B. Jurisdiction

         1. Mootness

         Ligons 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.

         The 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)).

         This 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 ...


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