United States District Court, W.D. Missouri, Central Division
NANETTE K. LAUGHREY, United States District Judge
Missouri Department of Corrections, Adrienne Hardy, and Anne
L. Precythe move to dismiss all of Plaintiffs' claims
against them. [Doc. 103]. For the following reasons,
Defendants' motion to dismiss is granted in part and
denied in part.
Michael Postawko, Christopher Baker, and Michael Jamerson are
incarcerated in the Missouri Department of Corrections
(“MDOC”). [Doc. 30');">30, p. 3]. They filed this
putative class action for claims arising out of what they
allege to be inadequate medical care for their chronic
Hepatitis C (“HCV”) viral infections.
[Id.]. They bring claims under 42 U.S.C. § 1983
and Title II of the Americans with Disabilities Act (ADA)
against numerous defendants, including their prison treating
physicians and nurses; prison officials who reviewed their
grievances and requests for treatment; the MDOC; and Corizon,
LLC, the healthcare provider for all MDOC facilities.
[Id. at p. 4-9].
a viral infection that attacks the liver and causes its
inflammation, referred to as hepatitis. [Id. at p.
9]. Hepatitis caused by HCV can significantly impair liver
function and damage its crucial role in digesting nutrients,
filtering toxins from the blood, and preventing disease.
[Id.]. In turn, liver impairment can cause severe
pain, fatigue, muscle wasting, difficulty or pain with
urination, an increased risk of heart attacks, and other side
be either acute or chronic. [Id.]. A small
percentage of people who are exposed to infected blood
develop an acute infection that their body resolves without
treatment. [Id.]. However, the majority of people
who develop acute HCV, approximately 75 to 85 percent, go on
to develop chronic HCV. [Id. at p. 10]. People with
chronic HCV develop fibrosis of the liver, which is a process
by which healthy liver tissue is replaced with scarring.
[Id.]. Because scar tissue cannot perform the jobs
of normal liver cells, fibrosis reduces liver function.
scar tissue begins to take over most of the liver, this
extensive fibrosis is termed cirrhosis. [Id.].
Cirrhosis is irreversible, and it often causes additional
painful complications, including arthritic pain throughout
the body, kidney disease, jaundice, fluid retention with
edema, internal bleeding, easy bruising, abdominal ascites,
mental confusion, lymph disorders, widespread itching, and
even more extreme fatigue. [Id.]. Because it can be
difficult to determine exactly when significant hepatitis
fibrosis becomes cirrhosis, most of these complications can
occur before cirrhosis. [Id.]. Further, if these
complications go untreated, some can cause death.
[Id.]. At least half of all persons diagnosed with
chronic HCV will develop cirrhosis or liver cancer, and
between 70 and 90 percent will develop chronic liver disease.
[Id.]. Each day without treatment increases a
person's likelihood of developing chronic liver disease,
fibrosis, cirrhosis, liver cancer, and death from liver
least 10 to 15 percent of the population under the
supervision, care, and custody of the MDOC are infected with
HCV. [Id. at p. 11]. As of January 2015, the MDOC
reported that it was treating 0.11 percent of HCV-positive
inmates under its supervision, or 5 inmates out of 4, 736
inmates with known HCV infections. [Id.].
Standard of Care for HCV
many years, there was no effective and safe treatment for
HCV. [Id.]. The standard treatment, which included
the use of interferon and ribavirin medications, failed to
cure most patients and was associated with adverse side
effects, including psychiatric and autoimmune disorders.
[Id. at p. 12]. However, over the past four years,
the Federal Drug Administration (“FDA”) has
approved eight new medications, called direct-acting
antiviral drugs (“DAA drugs”), which work faster,
cause fewer side effects, and are more effective.
[Id.]. Over 90 percent of patients treated with a
DAA drug are cured. [Id. at p. 14].
encourages health professionals to follow the evidence-based
standard of care developed by the Infectious Diseases Society
of America (“IDSA”) and the American Association
for the Study of Liver Diseases (“AASLD”), which
constitutes the medical standard of care. [Id.]. On
July 6, 2016, these organizations updated the standard of
care to recommend treating all persons with chronic
HCV with DAA drugs. [Id. at p. 15]. Benefits of
treatment include an immediate decrease in liver
inflammation, reduction in the progression of liver fibrosis
and improvement in cirrhosis, a 70 percent reduction in the
risk of liver cancer, and a 90 percent reduction in the risk
of liver-related mortality. [Id.]. Studies show that
a delay in DAA drug treatment for HCV decreases the benefits
associated with cure. [Id.].
Methods for Determining Progression of
care providers use several methods to determine the
advancement of an HCV-positive person's cirrhosis or
fibrosis, including liver biopsy and APRI (AST to Platelet
Ratio Index). [Id. at p. 16]. APRI is the use of a
blood sample to determine the ratio of a certain enzyme in
the blood, aspartate aminotransferase (AST), with (1) the
usual amount of AST in the blood of a healthy person and (2)
the number of platelets in the affected person's blood.
[Id.]. When an APRI score is very high, it has good
diagnostic utility in predicting severe fibrosis or
cirrhosis, but low and mid-range scores miss many people who
have significant fibrosis or cirrhosis. [Id.]. For
example, in more than 90 percent of cases, an APRI score of
at least 2.0 indicates that a person has cirrhosis.
[Id. at p. 17]. However, more than half of all
people with cirrhosis will not have an APRI score of at least
person has already been diagnosed with cirrhosis through some
other means, such as liver biopsy, an APRI score is
irrelevant and not necessary for measuring the progression of
fibrosis. [Id.]. In addition, because the levels of
AST and ALT in one's blood fluctuate from day to day, a
decreased or normalized level does not mean the condition has
improved, and even a series of normal readings over time may
fail to accurately show the level of fibrosis or cirrhosis.
[Id.]. Furthermore, the elevation levels of AST and
ALT often fail to show an individual's current level of
fibrosis or cirrhosis, and they often fail to predict the
consequences of not treating that individual. [Id.].
Although ALT is found predominately in the liver and not all
over the body like AST, and ALT is a more specific indicator
of liver inflammation than AST, an APRI score relies only on
AST without taking ALT into account. [Doc. 30');">30, p. 17]. For
all of these reasons, using an APRI score alone to determine
the severity of a person's fibrosis or cirrhosis is not
adequate or appropriate. [Id.].
Defendants' HCV Treatment Policy within the MDOC
allege that Defendants Precythe, MDOC, and Corizon, LLC have
the following policies or customs, all of which are contrary
to the prevailing standard of care: (1) not providing DAA
drug treatment to all inmates with HCV, or even all inmates
with chronic HCV; (2) using an APRI score, which measures the
progression of fibrosis or cirrhosis, to determine whether a
person should be treated; (3) relying exclusively on APRI
score to determine the stage of fibrosis or cirrhosis, rather
than using other more accurate methods of determining its
progression through liver biopsies, FIB-4, or FibroScan; (4)
failing to consider providing treatment to HCV-positive
inmates unless they have an APRI score above 2.0 that
persists for several months, even though more than half of
persons with cirrhosis will not have an APRI score at or
above 2.0, and they know that AST levels are transient; (5)
disregarding independent diagnoses of cirrhosis or
significant hepatitis fibrosis in making their treatment
decisions; and (6) basing treatment decisions on cost, rather
than on need for treatment. [Id. at p. 17-18].
Plaintiffs further allege that these policies or customs have
caused, and continue to cause, unnecessary pain and an
unreasonable risk of serious damage to the health of
HCV-positive inmates. [Id. at p. 18].
to the proper and necessary medical procedures and the
standard of care, Defendants have repeatedly denied requests
by Plaintiffs Postawko, Baker, and Jamerson, as well as by
other members of the putative class, for DAA drug treatment
for their HCV infections. [Id. at p. 19]. It is the
policy of Defendants to classify inmates with known HCV
infection as “Chronic Care Clinic Offenders.”
[Id.]. Rather than receiving treatment, these
inmates receive a blood draw every six months and, at times,
minimal counseling. [Id.]. Defendants also have a
policy or custom of permitting “Chronic Care
Clinic” visits with HCV-positive inmates to be
conducted by video so that there cannot be a visual and
physical inspection of the liver, which is contrary to the
prevailing standard of care. [Id.].
Plaintiffs Postawko, Baker, and Jamerson's
Michael Postawko became infected with HCV while under the
care and supervision of the MDOC in or around 2012.
[Id. at p. 20]. Every Defendant treater who Postawko
has seen at the MDOC or who has reviewed his HCV-related
complaints has refused to treat Postawko with DAA drugs,
contrary to the prevailing standard of care. [Id.].
Postawko has symptoms consistent with HCV, including extreme
fatigue to the point that brushing his teeth causes intense
aching in his arm muscles; fever; abdominal pain; severe
headaches; almost constant joint pain; and dark urine with
what appear to be traces of blood. [Id.]. Postawko
receives two medications for his severe headaches,
sumatriptan and propranolol HCL, which are only about 60
percent effective. [Id.]. Postawko has not received
any HCV treatment. [Id.].
2005, Plaintiff Christopher Baker was diagnosed with HCV, and
in 2007, he underwent a liver biopsy and was diagnosed with
cirrhosis. [Id. at p. 21]. In 2008, Baker was
sentenced to ten years in the MDOC. [Id.]. In 2009,
the MDOC began treating Baker with the then-prevailing
treatment, interferon and ribavirin, which appeared to be
working. [Id.]. However, after five months of
treatment, the MDOC, through a provider named Dr. McKinney,
informed Baker that the MDOC was no longer treating
HCV-positive inmates with those drugs and discontinued
Baker's course of treatment. [Id.].
early 2010, Baker has received no further treatment for HCV
and has received no treatment at any time with a DAA drug.
[Id.]. Each treater who Baker has seen at the MDOC
or who has denied his HCV-related complaints, including
Defendant Adrienne Hardy, has refused to treat him with DAA
drugs, contrary to the prevailing standard of care.
March 2, 2016, while Baker was incarcerated at JCCC, an
Informal Resolution Request response to Baker indicates that
he was “placed on a spreadsheet” because he had
an APRI score above 1.0, without regard to his
pre-incarceration cirrhosis diagnosis, which was made based
on a liver biopsy. [Id.]. Baker did not receive any
treatment as a result of either his independent cirrhosis
diagnosis or his placement on a spreadsheet. [Id.].
In July 2016, Baker was transferred from JCCC to Algoa
Correctional Center where he no longer even appears on a list
for treatment. [Id.]. Baker has symptoms consistent
with HCV, including nausea, severe joint pain, fatigue, back
and chest pain, tenderness in his liver area, and dark urine.
[Id. at p. 22].
Michael Jamerson became infected with HCV while incarcerated
at the MDOC. [Id.]. Jamerson has repeatedly
requested treatment with DAA drugs. [Id.]. Although
Jamerson is enrolled in the Chronic Care Clinic, he has not
received any treatment with any DAA drug. [Id.].
Every medical provider Jamerson has seen at the MDOC or who
has directed his course of treatment, has refused to treat
him with DAA drugs, contrary to the standard of care.
[Id.]. Jamerson has symptoms consistent with HCV,
including fatigue; muscle and joint pain; stomach, liver, and
chest pain; and tenderness in his liver area. [Id.].
bring claims under the Eighth Amendment and the ADA,
individually and on behalf of a putative class. Plaintiffs
bring two claims on behalf of a putative class:
• Count I for prospective relief for deprivation of
their Eighth Amendment rights against Precythe, in her
official capacity, and Corizon, LLC; and
• Count II for prospective relief for violation of the
ADA against the MDOC.
addition, Plaintiffs Postawko, Baker, and Jamerson bring the
following individual claims:
• Count III brought by Postawko for damages for
deprivation of his Eighth Amendment rights against Precythe,
in her official capacity; Corizon, ...