Brian Woodcock v. Correct Care Solutions, LLC ( 2021 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0313n.06
No. 20-5170
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
FILED
) Jul 06, 2021
BRIAN WOODCOCK, et al.,
) DEBORAH S. HUNT, Clerk
)
Plaintiffs-Appellants,
)
v. ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
CORRECT CARE SOLUTIONS, et al.,
) DISTRICT OF KENTUCKY
)
Defendants-Appellees.
)
BEFORE: BATCHELDER, GRIFFIN, and STRANCH, Circuit Judges.
BATCHELDER, J., delivered the opinion of the court in which GRIFFIN, J., joined.
STRANCH, J. (pp. 13–22), delivered a opinion concurring in part and dissenting in part.
ALICE M. BATCHELDER, Circuit Judge. In this class action brought pursuant to
42 U.S.C. § 1983, approximately 1,200 Kentucky inmates with Hepatitis C Virus (HCV)
(“Plaintiffs”) sued eight defendants who manage the Kentucky prison system’s HCV-treatment
program (“Defendants”). Plaintiffs claim that by triaging the HCV cure for the most seriously
affected inmates, Defendants were deliberately indifferent to their serious medical needs, in
violation of the Eighth and Fourteenth Amendments. The district court granted summary judgment
for Defendants, holding that Defendants adequately treated Plaintiffs. We AFFIRM.
No. 20-5170, Woodcock v. Correct Care Solutions
I. FACTS & PROCEDURAL HISTORY
A. Hepatitis C Virus
HCV is a bloodborne virus commonly spread by sharing contaminated needles, using
unsterilized tattoo equipment, and engaging in sexual behavior. The most common HCV
symptoms range from fatigue and jaundice to severe inflammation, skin lesions, and cognitive
impairment. HCV is categorized as either acute or chronic. In the acute phase, HCV does not
cause noticeable symptoms and some people clear the virus from their systems within six to twelve
months. Those who do not clear the virus suffer from chronic HCV.1 In the chronic phase, HCV
is progressive and attacks the liver, which, over time, causes scarring or fibrosis. The rate at which
the virus causes scarring varies from person to person. Some people might not develop scarring
for 20 to 30 years, while others might suffer accelerated scarring. Between 20 and 40 percent of
people who have chronic HCV eventually develop cirrhosis, which is a severe condition causing
the liver’s affected areas to stop functioning.
There is no vaccine for HCV. In years past, doctors treated the virus with an injectable
medication called interferons. This treatment is marginally effective; it requires that patients stay
sober, causes several unpleasant side effects, and has a success rate of 30 percent. Fortunately, in
2011, the FDA approved a new class of drugs called direct-acting antivirals (DAAs), which cure
nearly all the HCV patients who take them. But the treatment comes at a price; a single course of
treatment costs between $13,000 and $32,000.
1
Medication is necessary to cure chronic HCV.
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B. HCV in Kentucky State Prisons
HCV infects about one percent of the United States population, but it is far more prevalent
in prisons. The Kentucky Department of Corrections (KDOC) estimates that about 1,200 of its
12,000 inmates have HCV.
In 2015, the KDOC implemented a new “HCV Treatment Plan,” which it updated in 2017,
2018, and 2020. This HCV Treatment Plan mostly mimics the Federal Bureau of Prison’s HCV
treatment protocol. The 2018 version of the HCV Treatment Plan is at issue in this appeal and has
several components, ranging from inmate screening to DAA treatment.
First, the KDOC screens its inmates for HCV. It obtains all inmates’ health history and
tests for antibodies inmates who (1) have certain clinical conditions such as a reported history of
HCV or elevated levels of Alanine Aminotransferase (ALT), (2) have risk factors such as blood-
transfusion treatment or sharing needles and tattoo guns, or (3) request HCV testing.
If an inmate tests positive for HCV antibodies, the KDOC (1) evaluates the inmate for signs
and symptoms of liver disease, (2) obtains additional laboratory tests, (3) calculates the inmate’s
APRI score (which is used to assess the degree of liver fibrosis, if any), (4) offers vaccines for
hepatitis A, influenza, and pneumococcal, and (5) educates the inmate about chronic HCV.
Finally, the KDOC places each infected inmate into one of three priority groups based on
several factors. Inmates placed in priority level one, the highest level, have an APRI score of
above 2.0 and/or other comorbid medical conditions that warrant immediate treatment. Inmates
with APRI scores between .07 and 2.0 and those with advanced fibrosis, diabetes, liver disease, or
kidney disease comprise priority level two. The KDOC places all other infected inmates in level
three. There are, however, exceptions to the priority-level treatment system. For example, an
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inmate in priority level three may receive DAAs before a priority-level-one inmate if he or she
exhibits an urgent medical need.
Infected inmates are monitored and reevaluated every three to six months, depending on
their health status. As part of the inmate’s individualized care, KDOC Regional Medical Director,
Dr. Frederick Kemen, subject to his medical judgment, might order further testing as he deems
necessary, such as HCV genotyping or a FibroScan2 of the inmate’s liver.
Before 2020, the HCV Treatment Plan required that HCV-infected inmates qualify for
DAA treatment. For example, an inmate is disqualified from receiving treatment if, among other
things, he or she (1) has a life expectancy of fewer than eighteen months, (2) had finished DAA
treatment and has since been reinfected with HCV, (3) had demonstrated an unwillingness or
inability to adhere to rigorous medication regimens, or (4) did not have a clear conduct record for
twelve months before treatment (i.e., no positive drug tests, prison tattoos, nor inappropriate sexual
behavior).
C. Procedural History
The named Plaintiffs are inmates in KDOC prisons who have been diagnosed with HCV.
Brian Woodcock is housed at the Kentucky State Penitentiary (KSP) and has been cured of HCV.
Keath Bramblett, another inmate at KSP, contracted HCV during incarceration and has since been
cured. Ruben Rios Salinas is housed at KSP and has been diagnosed with HCV but was denied
2
A HCV genotype test determines the specific subtype of the virus to help guide a medical
provider’s treatment of the patient. See Hepatitis C Genotypes, U.S. Dep’t of Veterans Aff.,
https://www.hepatitis.va.gov/hcv/background/genotypes.asp. A FibroScan is a noninvasive test
that uses ultrasound technology to determine the degree of a patient’s liver fibrosis. Understanding
your FibroScan Results, Mem’l Sloane Kettering Cancer Ctr. (Feb. 27, 2018),
https://www.mskcc.org/cancer-care/patient-education/understanding-your-fibroscan-results/.
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DAA treatment. And Jessica Lawrence has been diagnosed with HCV but has not received DAA
treatment.
Defendants are various persons or entities charged with formulating and managing the
HCV Treatment Plan and each person is sued in his or her individual capacity. Rodney Ballard
and LaDonna Thompson are former KDOC Commissioners. Doug Crall, M.D., is the former
Medical Director of the KDOC. Cookie Crews is the KDOC Health Services Administrator.
Frederick Kemen, M.D., is responsible for managing the HCV Treatment Plan. Denise Burkett is
the KDOC Medical Director, responsible for policies, procedures, and employment concerning the
inmates’ medical care. And Correct Care Solutions, Inc. provides medical services to KDOC
inmates.
In 2015, Ruben Salinas sued in Kentucky state court seeking a writ of mandamus to order
then-Commissioner LaDonna Thompson, the KDOC, and the Commonwealth of Kentucky, to
treat his HCV. In November 2016, Salinas filed a “First Amended Class-action Complaint,”
adding Woodcock and Bramblett as plaintiffs, and Ballard, Crall, Crews, Kemen, and Correct Care
Solutions as defendants. In December 2016, Defendants removed the case to the District Court
for the Eastern District of Kentucky. Nine months later, Lawrence moved to intervene, adding
Thompson’s successor and former Commissioner James Erwin, which the magistrate judge
granted.3 The district court certified Plaintiffs’ class as “all inmates in Kentucky prisons who have
been diagnosed, or will be diagnosed, with chronic hepatitis C virus (HCV) for the purpose of
injunctive relief.” The court appointed Salinas and Lawrence as class representatives. Woodcock
v. Correct Care Sols., LLC, No. 3:16-CV-00096-GFVT, 2019 WL 3068447, at *11 (E.D. Ky. July
12, 2019).
3
The district court eventually dismissed Erwin upon Plaintiffs’ motion.
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After considerable motion practice, Plaintiffs filed their Third Amended Class-action
Complaint in which they alleged that Defendants, following the 2018 HCV Treatment Plan, failed
to provide medical treatment to HCV inmates because they did not treat all HCV-infected inmates
with DAAs. Specifically, Plaintiffs brought claims under 42 U.S.C. § 1983 for violations of the
Eighth and Fourteenth Amendments on the ground that Defendants acted with deliberate
indifference to their serious medical needs, and under the Americans with Disabilities Act and the
Rehabilitation Act of 1978 for failure to reasonably accommodate their medical needs. Plaintiffs
also brought state-law tort claims of negligence, gross negligence, and intentional infliction of
emotional distress.
Defendants moved for summary judgment on all claims. The district court dismissed
Woodcock and Bramblett’s claims because they had failed to exhaust their administrative remedies
and because, inasmuch as their HCV has been cured, they cannot be members of the class. The
court granted summary judgment to Defendants on the § 1983, disability, and punitive damages
claims, and returned their state-law claims to Kentucky state court. Woodcock v. Correct Care
Sols., LLC, No. 3:16-CV-00096, 2020 WL 556391, at *9 (E.D. Ky. Feb. 4, 2020).
Important to this appeal, the district court held that Plaintiffs’ Eighth and Fourteenth
Amendment claims failed because Plaintiffs did not provide evidence demonstrating that
Defendants were deliberately indifferent to Plaintiffs’ serious medical needs. According to the
district court, Plaintiffs failed to prove either the objective or subjective component of deliberate
indifference. In analyzing the objective component, the court determined that the KDOC provided
adequate treatment for HCV-infected inmates by diagnosing HCV and monitoring its progression.
Id. at *6. As for the subjective component, the court concluded that the treatment was not so
grossly incompetent or excessive as to shock the conscience. Id. at 6–7.
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Plaintiffs timely appeal the order granting summary judgment to Defendants on the § 1983
and punitive damages claims. They argue that Defendants’ refusal to provide DAAs to every
HCV-infected inmate amounts to deliberate indifference in violation of the Eighth and Fourteenth
Amendments.
II. DISCUSSION
We review de novo the grant of summary judgment. Laster v. City of Kalamazoo, 746 F.3d
714, 726 (6th Cir. 2014). In doing so, we view the evidence and reasonable inferences in the light
most favorable to the non-moving party, but we need not draw unreasonable inferences in the
nonmovant’s favor. Audi AG v. D’Amato, 469 F.3d 534, 545 (6th Cir. 2006). Summary judgment
is appropriate if “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); see Celotex Corp. v. Catrett, 477 U.S. 317,
322–23 (1986). “The ultimate question is whether the evidence presents a sufficient disagreement
to require submission to a jury or whether it is so one-sided that one party must prevail as a matter
of law.” Yates v. Ortho-McNeil-Janssen Pharms., Inc., 808 F.3d 281, 290 (6th Cir. 2015) (internal
quotation marks and citation omitted).
A. Mootness
Before we reach the merits of Plaintiffs’ claims, we must assess whether KDOC’s 2020
amendments to the HCV Treatment Plan moot Plaintiffs’ claims for injunctive relief. In late 2020,
while this appeal was pending, the KDOC informed the court that it had made several changes to
the HCV Treatment Plan. First, it created an opt-out testing protocol by which all KDOC inmates
are offered voluntary screening for HCV, including screening for those who initially refused.
Second, it added birth cohort 1945–1965 to the plan’s priority-level-two criteria. Third, it removed
the disqualification factor based on re-infection after previously receiving DAAs. And fourth, it
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elucidated that for patients who have not received DAAs, the no-disciplinary-infractions-within-
twelve-months exclusionary factor applies only to conduct that would compromise treatment.
Article III of the United States Constitution limits the power of the federal courts to cases
or controversies. U.S. Const. art. III, § 2. “The ‘case-or-controversy requirement subsists through
all stages of federal judicial proceedings, trial and appellate.’” Chafin v. Chafin, 568 U.S. 165,
172 (2013) (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990)). A federal court
“lacks jurisdiction to consider any case or issue that has lost its character as a present, live
controversy and thereby becomes moot.” Demis v. Sniezek, 558 F.3d 508, 512 (internal quotation
marks omitted). “Simply stated, a case is moot when the issues presented are no longer ‘live’ or
the parties lack a legally cognizable interest in the outcome.” Id. (quoting Int’l Union v. Dana
Corp., 697 F.2d 718, 720–21 (6th Cir. 1983) (en banc)). Therefore, “[i]f 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.” Campbell-
Ewald Co. v. Gomez, 136 S. Ct. 663, 669 (2016) (quoting Genesis Healthcare Corp. v. Symczyk,
569 U.S. 66, 72 (2013)). But there is an exception to mootness that applies in this case. That
exception applies when “one issue in a case has become moot, but the case as a whole remains
alive because other issues have not become moot.” Dana Corp., 697 F.2d at 721 (quoting Univ.
of Tex. v. Camenisch, 451 U.S. 390, 394 (1981)).
The 2020 HCV Treatment Plan updates address only a portion of Plaintiffs’ challenges to
the 2018 HCV Treatment Plan. Most notably, the changes do not address the core of Plaintiffs’
§ 1983 claim: whether Defendants are deliberately indifferent by refusing to treat each HCV-
infected inmate with DAAs. Defendants’ changes, therefore, do not divest this court of
jurisdiction.
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B. § 1983 Claim
Plaintiffs argue that Defendants’ refusal to provide DAAs to every HCV-infected inmate
amounted to deliberate indifference in violation of the Eighth and Fourteenth Amendments, and
therefore the court erroneously granted Defendants summary judgment.
“Section 1983 provides a federal cause of action against government officials who, while
acting under color of state law, deprived the claimant of rights, privileges or immunities secured
by the Constitution or laws of the United States.” Rhinehart v. Scutt, 894 F.3d 721, 735 (6th Cir.
2018) (internal quotation marks and citation omitted). A state prisoner’s Eighth and Fourteenth
Amendment rights are “violated when prison doctors or officials are deliberately indifferent to the
prisoner’s serious medical needs.” Comstock v. McCrary, 273 F.3d 693, 702 (6th Cir. 2001) (citing
Estelle v. Gamble, 429 U.S. 97, 104 (1976)); see Villegas v. Metro. Gov’t of Nashville, 709 F.3d
563, 569 (6th Cir. 2013) (prisoners’ claims under the Eighth and Fourteenth Amendments “are
analyzed under the same rubric”). To succeed on that claim, Plaintiffs must prove both an
objective and a subjective component. Atkins v. Parker, 972 F.3d 734, 739 (6th Cir. 2020). The
objective component “requires that the inmate have a sufficiently serious medical need such that
she is incarcerated under conditions posing a substantial risk of serious harm.” Ford v. County of
Grand Traverse, 535 F.3d 483, 495 (6th Cir. 2008) (citation and internal quotation marks omitted).
The subjective component requires proof that Defendants understood yet consciously disregarded
the substantial risk that the serious medical need posed to infected inmates. Comstock, 273 F.3d
at 703.
Plaintiffs’ § 1983 claim fails on the objective component, so we do not reach the subjective
component. Here, the parties do not dispute that Plaintiffs have a serious medical need. So,
Plaintiffs need only prove that “the alleged deprivation of medical care was serious enough to
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violate the Eighth Amendment,” Rhinehart, 894 F.3d at 737; that is, that it amounted to
incarceration “under conditions posing a substantial risk of serious harm,” Ford, 535 F.3d at 495(citation omitted). We apply two different standards to decide whether an inmate suffered a
constitutional deprivation. One applies when an inmate receives no treatment for a serious medical
need, and the other applies when an inmate receives ongoing treatment.
Under the no-treatment standard, when a physician diagnoses a serious medical need, “the
plaintiff can establish the objective component by showing that the prison failed to provide
treatment.” Rhinehart, 894 F.3d at 737. Under the ongoing-treatment standard, a plaintiff can
establish the objective component by showing that the treatment was “so grossly incompetent,
inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.”
Id. at 740 (citation omitted). The inmate must proffer evidence that the care was inadequate and
that he or she suffered a detrimental effect as a result. Id. at 737–38.
The district court applied the ongoing-treatment standard and determined that screening
and monitoring HCV-infected inmates under the HCV Treatment Plan constituted treatment and
that that treatment was adequate under the Eighth Amendment. Woodcock, 2020 WL 556391, at
*5–6. Plaintiffs argue that the district court should have applied the no-treatment standard because
the 2018 HCV Treatment Plan neither “alleviated” nor “cured” Plaintiffs’ HCV. They assert that
only the cure provided by DAAs suffices as treatment.
We cannot agree that Plaintiffs received no treatment at all, and at least two of our sister
circuits and the Supreme Court have held similarly. In Roy v. Lawson, 739 F. App’x 266, 266–67
(5th Cir. 2018) (per curiam), the Fifth Circuit rejected an inmate’s argument that even though the
prison’s “medical personnel regularly . . . monitor[ed] his condition through lab work and blood
testing,” he received no treatment because the prison failed to give him “the optimum drug
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therapies for Hepatitis C.” In Black v. Alabama Dep’t of Corr., 578 F. App’x 794, 795–96 (11th
Cir. 2014) (per curiam), the Eleventh Circuit rejected an inmate’s characterization of the case as
“a case of denied or delayed treatment” because the prison did not “consider[ ] [him] for antiviral
drug treatment,” and noted that the prisoner “received regular care and monitoring for his Hepatitis
C and medication for his symptoms.” And the Supreme Court has held that “X-ray[s] or additional
diagnostic techniques” are “forms of treatment.” Gamble, 429 U.S. at 107. Like the prisons’ plans
in Roy and Black, the KDOC plan provides for treatment in the form of diagnosing and monitoring
HCV-infected inmates.
Plaintiffs are ultimately complaining about the adequacy of their treatment. But an
inmate’s “disagreement with the testing and treatment he has received,” or his “desire for
additional or different treatment,” does not amount to an Eighth Amendment violation. Rhinehart,
894 F.3d at 740 (citation omitted). Here, Plaintiffs have not presented evidence that would allow
any reasonable factfinder to conclude that Plaintiffs’ treatment was “so grossly incompetent,
inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.”
Id. at 737 (citation omitted).
The 2018 HCV Treatment Plan provided treatment for Plaintiffs that consisted of several
protocols to diagnose and monitor HCV inmates and ultimately administer the expensive DAA
treatments to those in immediate need. All inmates could opt-in for testing and, for those who
tested positive, the KDOC regularly evaluated their health status, monitored their APRI score, and
vaccinated them to mitigate further health risks. Perhaps most importantly, the KDOC’s flexible
prioritization system enabled Dr. Kemen to exercise his medical judgment and order for inmates
more accurate diagnostic testing such as HCV genotyping or a FibroScan so Defendants could
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treat with DAAs those inmates in serious need of immediate antiviral treatment, regardless of their
place in the prioritization system.
Because Plaintiffs failed to show that the 2018 HCV Treatment Plan put them at substantial
risk of serious harm, they cannot show that Defendants were deliberately indifferent. There is no
Eighth or Fourteenth Amendment violation.
C. Punitive Damages
Plaintiffs are not entitled to punitive damages for two reasons. First, Plaintiffs failed to
show that Defendants were deliberately indifferent. See Brown v. Brown, 46 F. App’x 324, 325
(6th Cir. 2002) (explaining that punitive damages are only available in actions brought under
§ 1983 “when the defendant’s conduct is shown to be motivated by evil motive or intent, or when
it involves reckless or callous indifference to the federally protected rights of the plaintiff” (citing
Smith v. Wade, 461 U.S. 30, 56 (1983)). Second, the class-action complaint sought only injunctive
relief. Plaintiffs moved for class certification without mention of punitive damages and the district
court’s Rule 23(b)(2) analysis and subsequent certification limited the class action to injunctive
relief.
III. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
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JANE B. STRANCH, Circuit Judge, concurring in part and dissenting in part. Inmate
populations in prisons across America have significantly higher percentages of chronic Hepatitis
C infections than occur in the general public. Many inmates are infected while in correctional
facilities. Kentucky has a measured incidence of HCV that is more than twice the national rate.
This case challenges the constitutionality of Defendants’ policies governing testing and medical
response to inmates with HCV. I agree with the majority that the changes to KDOC’s HCV plan
do not divest us of jurisdiction and that punitive damages are not available to the class that was
certified by the district court. I respectfully dissent from the remainder of the opinion.
The Sixth Circuit has repeatedly held that HCV is a serious medical condition under the
Eighth Amendment. And this record contains testimony from which a reasonable jury could find
that most Defendants were aware of the risks posed to Plaintiffs by chronic, untreated HCV, and
recklessly disregarded those risks by rationing the prescription of DAAs and by conducting opt-in
HCV testing of inmates rather than opt-out testing. That evidence creates issues of fact as to
whether Defendants were deliberately indifferent to Plaintiffs’ serious medical needs, making the
summary judgment grant to Defendants on Plaintiffs’ Eighth Amendment claim inappropriate.
I begin with Plaintiffs’ claim that Defendants’ failure to provide them with DAAs violates
the Eighth Amendment. As the majority explains, the objective component is satisfied when an
inmate is incarcerated under conditions posing a “substantial risk of serious harm,” Farmer v.
Brennan, 511 U.S. 825, 828 (1994), such as when he has a serious medical need and receives no
treatment for it, Rhinehart v. Scutt, 894 F.3d 721, 737 (6th Cir. 2018). Where the inmate has
received some treatment for a serious medical need, however, he must present evidence from
which a reasonable jury could conclude that the treatment was “so grossly incompetent,
inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.”
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Id. at 737 (quoting Miller v. Calhoun Cnty., 408 F.3d 803, 819 (6th Cir. 2005)). This is a
“particularized, fact-specific inquiry.” Miller, 408 F.3d at 819 (quoting Terrance v. Northville
Reg’l Psychiatric Hosp., 286 F.3d 834, 844 (6th Cir. 2001)).
We have held—and the parties and the majority do not dispute—that hepatitis C is an
objectively serious medical condition. See Atkins v. Parker, 972 F.3d 734, 739 (6th Cir. 2020).
The question, then, is whether a reasonable jury could find that the monitoring provided to
Plaintiffs by the KDOC constitutes no treatment or grossly inadequate treatment.
“Treatment,” as defined in relevant part by Merriam-Webster, is “the action or way of
treating a patient or condition medically or surgically: management and care to prevent, cure,
ameliorate or slow progression of a medical condition.” Treatment, Merriam-Webster.com,
https://www.merriam-webster.com/dictionary/treatment (last visited June 23, 2021). Similarly,
the American Heritage Dictionary defines “treatment” as “[t]he use of an agent, procedure, or
regimen, such as a drug, surgery, or exercise, in an attempt to cure or mitigate a disease, condition,
or injury.” Treatment, The American Heritage Dictionary of the English Language,
https://www.ahdictionary.com/word/search.html?q=treatment (last visited June 23, 2021). In
other words, a “treatment” is a course of decisions and actions intended to improve a medical
condition in some way.
Inmates with HCV who do not qualify for DAAs do not receive medical care aimed at
curing or mitigated their disease. Instead, they are simply monitored, undergoing retests every
three or six months depending on the current status of their disease, using tests that Plaintiffs argue
are frequently inaccurate.1 The results of these tests are used to determine whether, under the
1
According to Plaintiffs, APRI scores indicate only whether a patient’s liver is irritated
and emitting AST enzymes, not whether it is scarred—indeed, a heavily scarred liver may be
incapable of emitting any enzymes. High APRI scores only detect cirrhosis at a rate of 48 percent,
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KDOC plan, Plaintiffs are eligible for treatment with DAAs. So the tests themselves do nothing
to alleviate an inmate’s symptoms or mitigate the progression of the disease, and they have no
diagnostic function. Instead, viewing the record in Plaintiffs’ favor, as we must, the tests are a
tool for Defendants to assess whether a given inmate’s disease has cleared the bureaucratic
threshold—sufficiently advanced fibrosis—to be eligible for treatment under the protocol. Testing
of how far HCV has advanced in harming an inmate’s body is not treatment. Indeed, throughout
his deposition, Dr. Kemen referred to the testing protocol as “monitoring” that helped him decide
which inmates would receive “treatment.”
Even if we assume that monitoring qualifies as treatment, there is substantial evidence from
which a jury might conclude that treatment is constitutionally inadequate. “The objective
component of an Eighth Amendment claim is . . . contextual and responsive to ‘contemporary
standards of decency.’” Hudson v. McMillian, 503 U.S. 1, 8 (1992) (quoting Estelle v.
Gamble, 429 U.S. 97, 103 (1976)). HCV may manifest with a wide range of symptoms, including
diabetes, neurocognitive dysfunction, porphyria cutanea tarda (a condition that causes painful
lesions on sun-exposed skin), headache, fatigue, muscle and joint pain, and skin conditions. And
it causes mostly irreversible liver scarring, increasing patients’ risk of liver cancer and liver failure
even after their HCV has been cured. Indeed, once an individual develops advanced liver disease,
he must undergo cancer screening at regular intervals for the rest of his life, even after being cured
of the underlying HCV infection. Chronic untreated HCV also increases a patient’s risk of heart
disease, cancer, kidney disease, immune disease, and diabetes. According to studies,
administering HCV treatment at an early stage of fibrosis increases overall survival rates for
which Plaintiffs argue means that Defendants’ screening criteria may be missing 52 percent of
individuals whose livers are actively cirrhotic.
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patients compared with treatment at a later stage. As a result of the increased risk to life posed by
late treatment, the American Association for the Study of Liver Diseases and the Infectious
Diseases Society of America (AASLD/IDSA) recommend administering DAAs—which are
highly efficacious and nearly side-effect-free—to most patients with chronic HCV without regard
to their degree of fibrosis. No other treatment is recommended. Treatment with DAAs regardless
of fibrosis score is also the standard of care set by the Centers for Disease Control, the Centers for
Medicare & Medicaid Services, the Veteran’s Administration, and multiple state Medicaid
systems, including Kentucky’s. See Trooskin Expert Report VI, R. 68-1, PageID 1042; Hepatitis
C Questions and Answers for Health Professionals (last visited Dec. 30, 2020),
https://www.cdc.gov/hepatitis/hcv/hcvfaq.htm#d1; Assuring Medicaid Beneficaries Access
to Hepatitis (HCV) Drugs, U.S. Dep’t of Health & Human Servs., Release No. 172 (Nov.
5, 2015), https://www.medicaid.gov/medicaid-chip-program-information/by-topics/prescription-
drugs/downloads/rx-releases/state-releases/state-rel-172.pdf (explaining that DAAs are
“medically necessary” for those infected with HCV, and limiting treatment to beneficiaries with
high fibrosis scores is “unreasonabl[e]”); VA Research on Hepatitis C, U.S. Dep’t of Veterans
Affairs Office of Research & Development (last visited July 1, 2021),
https://www.research.va.gov/topics/hep-c.cfm; Hepatitis C: State of Medicaid Access Report
Card, National Viral Hepatitis Roundtable, et al. (2017), available at https://stateofhepc.org/wp-
content/themes/infinite-child/reports/HCV_Report_Kentucky.pdf.
Plaintiffs’ evidence suggests that by flouting the recognized standard of care, KDOC
consigns thousands of prisoners with symptomatic, chronic HCV to years of additional suffering
and irreversible liver scarring, despite the availability of early treatment with effective, easily
tolerated alternatives that would prevent those long-term harms. Indeed, “delaying treatment for
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inmates with chronic hepatitis C causes precisely the type of ‘substantial risk of serious
harm,’ see Farmer, 511 U.S. at 837 [], routinely recognized in the Eighth Amendment context.”
Atkins, 972 F.3d at 741 (Gilman, J., dissenting). Plaintiffs’ claim is therefore more than a mere
“disagreement” with the essentially adequate testing and treatment they have already received.
Rhinehart, 894 F.3d at 740. Instead, they offered substantial evidence that Defendants’ decision
to withhold that treatment from most inmates and provide only testing for administrative purposes
is “so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable
to fundamental fairness.” Id. at 737 (quoting Miller, 408 F.3d at 819). A reasonable jury could
agree, and so summary judgment on the objective prong is inappropriate.
The majority opinion concludes, however, that KDOC’s testing is undisputedly adequate
treatment. In deciding to apply the “ongoing treatment” standard, the majority relies on two
unpublished, out-of-circuit cases, which do not govern here, and the Supreme Court’s decision in
Estelle v. Gamble, 429 U.S. 97, 107 (1976)). But in Gamble, unlike in this case, the plaintiff had
already received some treatment—the doctor identified his injury as a lower back strain, and
prescribed bed rest and medications. Id. The plaintiff objected that his doctor was constitutionally
required to do more “by way of diagnosis and treatment,” but the Supreme Court disagreed,
holding that “the question whether an X-ray or additional diagnostic techniques or forms of
treatment is indicated is a classic example of a matter for medical judgment,”2 and the decision
“not to order . . . like measures[] does not represent cruel and unusual punishment.” Id. This
discussion was focused on whether the doctor, who had undisputedly provided some treatment and
2
A close reading of this language illustrates the majority opinion is incorrect in stating that
“the Supreme Court has held that ‘X-ray[s] or additional diagnostic techniques’ are ‘forms of
treatment.’” Maj. Op. at 11 (quoting Gamble, 429 U.S. at 107). The Court’s use of the disjunctive
“or” suggests instead that X-rays and diagnostic techniques are not forms of treatment.
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decided that further action was not medically necessary, had the subjective state of mind required
for an Eighth Amendment claim. It is not applicable to the issue here: whether a protocol that
authorizes only testing for most inmates and allocates treatment according to an administrative
guideline rather than medical judgment, is objectively adequate under the Constitution.
A reasonable jury could conclude that the protocol is not an exercise of medical judgment that
results in an excusable “inadvertent failure to provide adequate medical care.” See id. at 105.
That the KDOC plan permits the medical director to order further testing or make
exceptions to the prioritization system does not alter this conclusion. First, there is evidence in the
record to suggest Dr. Kemen rarely exercised that discretion. He testified that at the time of his
deposition, no priority level 3 inmates were receiving treatment, only monitoring. And an undated
patient log of his shows that at the time, only 13 of 76 priority level 2 patients had received
treatment, while 2 of 68 priority level 3 patients had received treatment. Moreover, his testimony
suggested that when he did make exceptions, his decisions were constrained by the KDOC’s
medically unsupported, cost-driven administrative rule that only patients with advanced fibrosis
may receive treatment. For example, he testified, he reviews the “chronic care labs and notes” for
patients at priority levels 1 and 2 to determine “whether they’re progressing or not.” A reasonable
jury could therefore find that even though the KDOC plan gives the medical director some level
of flexibility, he is not ultimately exercising independent medical judgment.
Our recent decision in Atkins further demonstrates that issues of fact remain as to the
objective prong. In that case, a class of inmates challenged the HCV treatment policy of the
Tennessee Department of Corrections (TDOC), under which infected inmates receive blood testing
and monitoring, and the inmates with the most extensive liver scarring receive treatment with
DAAs. 972 F.3d at 737–38. Like the majority today, the Atkins district court concluded that the
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TDOC policy constituted treatment that was not “so grossly incompetent, inadequate, or excessive
as to shock the conscience or to be intolerable to fundamental fairness,” and so the objective prong
was not met. Atkins v. Parker, 412 F. Supp. 3d 761, 778, 782 (M.D. Tenn. 2019) (quoting
Rhinehart, 894 F.3d at 749). On appeal, however, we simply concluded that “[e]veryone agree[d]
that hepatitis C is an objectively serious medical condition,” and that the defendant understood the
risks of the disease; the only question was whether he had the requisite subjective intent. Atkins,
972 F.3d at 739. We did not ask whether the defendant’s monitoring plan constituted treatment or
whether it was adequate, despite the district court’s conclusions and the parties’ briefing on the
issue. (See Br. of Plaintiff-Appellant at 22–30, Atkins v. Parker, 972 F.3d 734 (6th Cir. 2020); Br.
of Defendant-Appellee at 23–35, Atkins v. Parker, 972 F.3d 734 (6th Cir. 2020)) This suggests
the Atkins decision recognized that the objective prong was satisfied, as it is here.
The subjective prong requires that defendants knew of and disregarded an excessive risk
to the inmate’s health and safety. Winkler v. Madison Cnty., 893 F.3d 877, 890–91 (6th Cir. 2018).
For that prong, “a decision to provide an ‘easier and less efficacious treatment’ may suffice to
establish deliberate indifference.” Darrah v. Krisher, 865 F.3d 361, 372 (6th Cir. 2017) (quoting
Warren v. Prison Health Servs., Inc., 576 Fed. App’x. 545, 552 (6th Cir. 2014) (quoting Estelle,
429 U.S. at 104 n. 10)).
Here, there is ample evidence that Defendants were well aware of the long-term harm
caused by delaying treatment for HCV and the universal medical recommendation that all
individuals with chronic HCV should be prescribed DAAs. Yet according to Defendants
themselves, they chose not to administer DAAs to all inmates because of the cost of the drugs, a
decision that exposed inmates to ongoing suffering and long-term organ damage. That is not a
medical judgment to which deference could be granted—it is an impermissible decision to avoid
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providing “the only effective treatment” to most inmates on the sole basis that rationing care is
“easier” and cheaper. Darrah, 865 F.3d at 372. As Judge Gilman persuasively argued in his
dissent in Atkins, lack of funding is no excuse for a constitutional violation. 972 F.3d at 742–46;
see also Watson v. City of Memphis, 373 U.S. 526, 537 (1963). Doctors may consider cost in
choosing among several reasonable options, but they may not “refuse to treat a patient who has a
serious medical need . . . merely to avoid paying the bill.” Id. (citing Darrah, 865 F.3d at 372);
see also Petties v. Carter, 836 F.3d 722, 730 (7th Cir. 2016) (en banc) (“While the cost of treatment
is a factor in determining what constitutes adequate, minimum-level care, medical personnel
cannot simply resort to an easier course of treatment that they know is ineffective.”). A reasonable
jury could therefore find that the KDOC plan violates the Eighth Amendment.
The majority opinion does not address the branch of Plaintiffs’ claim based on KDOC’s
HCV testing protocol. Under the 2018 KDOC plan, new inmates had to opt in to receive HCV
testing; Plaintiffs contend testing should be opt-out.3 Due to the significantly higher HCV rates
3
The 2020 KDOC plan implements opt-out testing, which Defendants argue moots
Plaintiffs’ request for injunctive relief. Voluntary cessation of unlawful conduct will only moot a
case when “subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could
not reasonably be expected to occur.” Friends of the Earth, Inc. v. Laidlaw Environmental Servs.
(TOC), Inc., 528 U.S. 167, 189 (2000) (quoting United States v. Concentrated Phosphate Export
Ass’n, 393 U.S. 199, 203 (1968)). Although governmental actions are presumed to be in good
faith, ad hoc or discretionary administrative actions receive less solicitude. Speech First, Inc. v.
Schlissel, 939 F.3d 756, 767–68 (6th Cir. 2019). Here, KDOC has offered no guarantees that it
will not revert to the opt-in testing protocol, and it maintains that its previous plan was
constitutional. “Although not dispositive, the Supreme Court has found whether the government
‘vigorously defends the constitutionality of its . . . program’ important to the mootness inquiry.”
Id. at 770 (alteration in original) (quoting Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No.
1, 551 U.S. 701, 719 (2007)). Further, this Court has held, the cessation of conduct in response to
litigation “shows a greater likelihood that it could be resumed.” Northland Family Planning
Clinic, Inc. v. Cox, 487 F.3d 323, 342–43 (6th Cir. 2007); Schlissel, 939 F.3d at 769 (university’s
action after complaint was filed “raise[d] suspicions that its cessation [was] not genuine” and
“increase[d] [its] burden to prove that its change is genuine”). KDOC failed to satisfy its burden
of demonstrating that it is “absolutely clear that the allegedly wrongful behavior could not
reasonably be expected to recur.” Friends of the Earth, 528 U.S. at 189.
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within correctional facilities, the AASLD/IDSA and the federal Bureau of Prisons recommend
conducting opt-out testing in prisons. Opt-in testing, Plaintiffs argue, fails to capture many
infected inmates, placing them at substantial risk of disease and long-term harm without diagnosis
and treatment, and exposes uninfected inmates to a high risk of infection.
Defendants testified that they are aware of the increased risk of HCV transmission within
prisons and recognize that undetected HCV infections pose a risk to other inmates. Burkett, for
example, explained that when infected people do not know they have HCV, that “absolutely”
contributes to the spread of infection. And it is KDOC policy that once someone tests positive for
HCV, they are prohibited from working in food services or beauty shops because of the risk of
transmission. Defendants could offer no reason for implementing opt-in testing, except Kemen’s
claim that this is the “tradition.” But that decision is at odds with the fact that KDOC tests inmates
for syphilis and tuberculosis at intake, and the fact that an HCV antibody test costs only eight
dollars.
A reasonable jury could determine from this evidence that Defendants are aware HCV
infection is widespread among KDOC inmates and in KDOC facilities and poses a risk to the
prison population at large. That jury could also conclude that Defendants chose to turn a blind eye
to these dangers by implementing opt-in testing. Refusing to confirm or act on inferences of risk
that a medical professional “strongly suspect[s] to exist” is the essence of recklessness. See
Rouster v. Cty. of Saginaw, 749 F.3d 437, 451 (6th Cir. 2014) (quoting Farmer, 511 U.S. at 843
n.8).
Chronic HCV subjects infected inmates to substantial risks of serious harm—from pain to
disabling conditions to cirrhosis and to death. No one disputes that those risks increase the longer
a person is infected. Yet instead of providing testing and treatment once an infection is detected—
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the standard of care universally advocated by medical and public health professionals—
Defendants have implemented a care-rationing plan that withholds medical treatment until the
damage caused by an inmate’s chronic Hepatitis C infection has progressed too far to be reversible.
And while that disease is spreading throughout the Kentucky prison system, the KDOC protocol
tests only those inmates who opt in, exposing other inmates to a heightened risk of infection. A
reasonable jury could find this to be evidence of deliberate indifference to a substantial risk to
inmate health, in violation of the Eighth Amendment. I would therefore reverse the judgment of
the district court and remand this case for trial.
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