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Buffkin v. Hooks

United States District Court, M.D. North Carolina

March 20, 2019



          OSTEEN, JR., District Judge

         This matter is before this court for review of the Memorandum Opinion and Recommendation (“Recommendation”) filed on November 30, 2018 by the Magistrate Judge in accordance with 28 U.S.C. § 636(b). (Doc. 38.) In the Recommendation, the Magistrate Judge recommends that Plaintiffs' motion to certify class, (Doc. 3), be granted and that “the class be defined as ‘all current and future prisoners in DPS custody who have or will have chronic hepatitis C virus and have not been treated with direct-acting antiviral drugs.'” (Doc. 38 at 32.) The Magistrate Judge further recommends that Lloyd Buffkin and Robert Parham be named class representatives, that Plaintiffs' counsel be appointed class counsel, and that Plaintiffs' motion for preliminary injunction, (Doc. 26), be granted. (Recommendation (Doc. 38) at 32-33.)

         Finally, the Magistrate Judge recommends that this court issue a preliminary injunction that:

order[s] Defendants to: (1) provide universal opt-out HCV screening to all persons who are or will be in DPS custody; (2) cease denying DAA treatment for the contraindications, other than patient refusal, set out in Step 4a of DPS Policy #CP-7; and (3) treat Plaintiffs and all members of their class with DAAs according to the current standard of medical care set out in the AASLD/IDSA Guidance, regardless of an individual's fibrosis level.

(Id. at 33.)

         The Recommendation was served on the parties to this action on November 30, 2018. (Doc. 39.) Defendants timely filed objections, (Defs.' Resp. and Objs. to Recommendation (“Defs.' Objs.”) (Doc. 40)), and Plaintiffs replied, (Doc. 43.) Defendants object to the following three findings in the Recommendation: (1) that Plaintiffs have standing, (2) that Plaintiffs are adequate class representatives, and (3) that Plaintiffs can demonstrate a high likelihood of success on the merits, as required for this court to issue a preliminary injunction. (Defs.' Objs. (Doc. 40) at 2.)[1]

         This court has appropriately reviewed the portions of the Recommendation to which objections were made. This court adopts the Magistrate Judge's findings and recommendation regarding Plaintiffs' motion for class certification (as supplemented herein), and this motion will be granted. Because this court finds that Plaintiffs have not demonstrated a likelihood of success on the merits as to certain aspects of their requested class-wide injunction, this court declines to adopt the Magistrate Judge's findings regarding this issue and Plaintiffs' motion for a preliminary injunction will be granted in part and denied in part, as set forth herein.

         I. BACKGROUND

         A detailed factual background is clearly and succinctly set forth in the Recommendation, (see (Doc. 38) at 1-7), and this court will not repeat those facts here. Plaintiffs are state prisoners who receive medical care from the North Carolina Department of Public Safety, or DPS. (Complaint (“Compl.”) (Doc. 1) ¶¶ 1, 13-15.) Plaintiffs have been diagnosed with and requested treatment for the hepatitis C virus (“HCV”), “a highly communicable disease that scars the liver and presents” other health risks. (Id. ¶ 1.) Plaintiffs allege that they are currently not receiving HCV treatment. (Id. ¶ 3.) The individual Defendants are all employed by the North Carolina state prison system. (Id. ¶¶ 17-20.)

         Plaintiffs bring claims under 42 U.S.C. § 1983, alleging: (1) that Defendants' policy of screening only those prisoners with certain risk factors, rather than screening all prisoners under an opt-out system, is deliberately indifferent to the risk that prisoners with HCV will evade detection and will not receive the necessary treatment, (id. ¶¶ 36, 80-82), and (2) that Defendants' policy of providing direct-acting antiviral (“DAA”) drug treatment only to certain prisoners based on FibroSure test scores and contraindications is deliberately indifferent to the risk that individuals who do not meet the policy criteria may still suffer serious health consequences from HCV. (See id. ¶¶ 95-98, 108.) Plaintiffs further allege that Defendants violated the Americans with Disabilities Act (“ADA”) by discriminatorily withholding medical treatment from Plaintiffs while providing treatment to prisoners with other health issues. (Id. ¶¶ 112-17.)


         Plaintiffs moved to certify a class on June 15, 2018, (Doc. 3), and filed a brief in support of their motion, (Doc. 4). Defendants responded in opposition, (Defs.' Resp. in Opp'n to Pls.' Mot. to Certify Class (“Defs.' Opp'n Resp.”) (Doc. 31)), and Plaintiffs replied. (Pls.' Reply to Defs.' Resp. in Opp'n to Pls.' Mot. to Certify Class (“Pls.' Reply”) (Doc. 35).) Plaintiffs moved for a preliminary injunction on September 14, 2018, (Doc. 26), and filed a brief in support of their motion. (Pls.' Br. in Supp. of Mot. for Prelim. Inj. (“Pls.' Inj. Br.”) (Doc. 27).) Defendants responded in opposition, (Defs.' Resp. to Pls.' Mot. for Prelim. Inj. (“Defs.' Inj. Resp.”) (Doc. 32)), and Plaintiffs replied, (Doc. 34). The Magistrate Judge held hearings on these motions on October 29, 2018, and November 5, 2018. (Docs. 41, 42.) This court then conducted an additional hearing on the motion for a preliminary injunction on March 8, 2019. (See Minute Entry 03/08/2019; Doc. 50.)


         This court is required to make “a de novo determination of those portions of the [Magistrate Judge's] report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). This court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the [M]agistrate [J]udge . . . or recommit the matter to the [M]agistrate [J]udge with instructions.” Id.

         This court applies a clearly erroneous standard to any part of the Magistrate Judge's recommendation not specifically objected to by the parties. Diamond v. Colonial Life Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005). “A finding is clearly erroneous when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948) (internal quotations omitted).

         IV. STANDING

         A. Arguments

         Defendants first object to the Magistrate Judge's conclusion that Plaintiffs have standing to challenge the HCV screening process. (Recommendation (Doc. 38) at 18.) The Magistrate Judge found that, although Plaintiffs are already infected with HCV, they still have standing to challenge HCV screening because there is a higher risk of re-infection if the entire prison population is not screened. (Id. at 17.) Further, the Magistrate Judge found that precluding Plaintiffs from challenging screening would “create[] a catch-22 quandary in that a prisoner would have to know of his or her HCV diagnosis to have standing to challenge [the DPS policy generally], but that same knowledge would preclude a challenge to the HCV screening protocol.” (Id. at 18 (footnote omitted).) In objection, Defendants argue that any risk to Plaintiffs of future injury from the current screening policy is simply too speculative and attenuated and does not amount to a substantial or imminent risk. (Defs.' Objs. (Doc. 40) at 6.) Defendants further state that, in their opinion, unscreened inmates (or, presumably, inmates who were improperly diagnosed) would have standing to challenge the screening process specifically, thus eliminating the quandary identified by the Magistrate Judge. (Id. at 8.)

         Defendants further argue that, because all named Plaintiffs either received an initial HCV screening prior to the filing of the complaint or were already aware of their HCV diagnosis, they lack standing to challenge the initial step one screening process. (See id. at 7.) Indeed, the Magistrate Judge found that each named Plaintiff had either received an initial diagnostic screening or otherwise been diagnosed with HCV, but had not received a FibroSure screening for possible DAA treatment, at the time of filing. (See Recommendation (Doc. 38) at 16; Pls.' Reply (Doc. 35) at 7 n.3.) Plaintiffs, however, assert that the two stages of screening should be viewed as a single unitary process and that, because certain named Plaintiffs had not received DAA-specific screening at the time of filing, there is standing to challenge the screening process. (Pls.' Reply (Doc. 35) at 7-8.)

         B. Legal Framework

         To demonstrate standing, Plaintiffs “must have . . . suffered an injury in fact.” Kenny v. Wilson, 885 F.3d 280, 287 (4th Cir. 2018) (internal quotation marks omitted). “An allegation of future injury may suffice if the threatened injury is certainly impending, or there is a substantial risk that the harm will occur.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) (internal quotation marks omitted). This “requirement [] cannot be met where there is no showing of any real or immediate threat that the plaintiff will be wronged again.” City of L.A. v. Lyons, 461 U.S. 95, 111 (1983).

         In a class action, it is well-established that “the named plaintiff may litigate the class certification issue despite loss of his personal stake in the outcome of the litigation” so long as that plaintiff still adequately represents and protects class interests. U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 398, 406 (1980). In Geraghty, the Supreme Court held that Geraghty's subsequent release from prison mooted his personal claim but that he could nonetheless continue to pursue class certification. See id. at 404 (“[A]n action brought on behalf of a class does not become moot upon expiration of the named plaintiff's substantive claim, even though class certification” is still pending.). This court interprets the Geraghty holding to mean that, if class certification were denied in this case, Plaintiffs would then be entitled to appeal that determination even if some or all of their individual claims had been mooted. It follows that potential mootness should not be a bar to class certification in the first instance. There must, however, “be a named plaintiff who has . . . a [live] case or controversy at the time the complaint is filed.” Sosna v. Iowa, 419 U.S. 393, 402 (1975); see also Pashby v. Delia, 709 F.3d 307, 316 (4th Cir. 2013).

         C. Analysis

         The Magistrate Judge found standing based primarily on two factors: (1) a “broad application of Policy #CP-7” that makes the policy subject to a class-wide challenge, and (2) the “significant risk of reinfection by virtue of the prison environment.” (Recommendation (Doc. 38) at 17.) This court agrees with the Magistrate Judge that Policy #CP-7 is correctly viewed as a unitary screening policy designed to both diagnose HCV and provide treatment to certain prisoners. In other words, just as the Magistrate Judge did, this court finds persuasive Plaintiffs' argument that the screening process as a whole may be challenged based upon denial of either step 1 or step 2 screening at the time of filing. (See Pls.' Reply (Doc. 35) at 6-7, 7 n.3.) Therefore, this court finds that the named Plaintiffs do have standing to challenge the HCV screening process.

         The Magistrate Judge further relied upon the alleged re-infection risk to both Plaintiffs and potential class members due to inadequate screening to find standing. (Id. at 8; see also Recommendation (Doc. 38) at 17.) Current estimates place the percentage of North Carolina state prison inmates infected with HCV at approximately 17 to 33 percent. (Compl. (Doc. 1) ¶ 48.) The Magistrate Judge found that the risk of re-infection was substantial, [2] that the named Plaintiffs were “realistically threatened by a repetition” of this harm because it potentially recurs each time an unscreened inmate enters the prison population, Lyons, 461 U.S. at 109, and that this potential “threat of future harm is imminent and a direct result of Policy #CP-7.” (Recommendation (Doc. 38) at 18.)

         Defendants respond to the alleged re-infection risk by invoking Clapper v. Amnesty Int'l USA, 568 U.S. 398 (2013), where the Supreme Court held that the plaintiffs lacked standing to challenge government email and phone surveillance because a plaintiff “cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending.” 568 U.S. at 416; see also A.C.L.U. v. Nat'l Sec. Agency, 493 F.3d 644, 662 (6th Cir. 2007) (“[T]he plaintiffs still allege only a subjective apprehension and a personal (self-imposed) unwillingness to communicate.”). For example, the plaintiffs in Clapper could not “create” standing by spending money on travel to conduct in-person meetings (to avoid possible surveillance) and then claiming that they had been injured by this expenditure, because such an injury was not “fairly traceable” to the challenged statute. Clapper, 568 U.S. at 414-15. Here, Defendants argue that there is in fact no risk of re-infection unless Plaintiffs “choose to engage in a behavior that could result in HCV transmission.” (Defs.' Objs. (Doc. 40) at 9.)

         This court finds some merit in Defendants' argument, but also does not accept the contention that a person would ever affirmatively choose to become re-infected with HCV rather than simply acting in a negligent or reckless manner toward that risk. Defendants point to no binding case law to support a finding that acting negligently or recklessly with regard to a risk of future harm vitiates standing. Using the facts in Clapper as an example, plaintiffs there could have negligently or recklessly exposed themselves to surveillance by failing to encrypt their communications or otherwise making their communications in an open and obvious manner. Had the plaintiffs ...

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