Free Statement - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

TERRY GODDARD Attorney General KELLEY J. MORRISSEY Assistant Attorney General State Bar No. 016158 1275 West Washington Phoenix, Arizona 85007-2926 Telephone: (602) 542-4951 Fax: (602) 542-7670 [email protected] Attorneys for Defendants IN THE UNITED STATES DISTRICT COURT FOR THE STATE OF ARIZONA FELIPE J. MARTINEZ, Plaintiff, v. JAMES W. BAIRD, et al., Defendants. Defendants Baird, Jones, Siers, and Macabuhay, submit the following Statement of Facts in support of her Motion for Summary Judgment: I. Introduction 1. Plaintiff Martinez, a convicted felon, is serving a nine year, three month STATEMENT OF FACTS IN SUPPORT OF DEFENDANTS' MOTION FOR SUMMARY JUDGMENT No. CV 03-1729-PHX-RCB (LOA)

sentence for armed robbery, in the custody of the Arizona Department of Corrections ("ADC"). (Plaintiff's AIMS Report is available for this Court's in camera review.) 2. On December 22, 2004, Plaintiff filed his Second Amended Complaint

pursuant to 42 U.S.C. § 1983 alleging in Count I that the Defendants have been deliberately indifferent to his medical needs by failing to provide him with treatment for hepatitis. In Count II, Plaintiff alleges that the Defendants have denied him

Case 2:03-cv-01729-RCB

Document 83

Filed 10/31/2005

Page 1 of 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

treatment arbitrarily and unjustifiably in violation of the Fifth and Fourteenth Amendments. [Dkt. 53.] II. Defendants 3. Dr. Jones was the Deputy Director of ADC Health Services from

August, 2001 to December, 2003; however, he was on active military service from July, 2002 to January, 2003. (See Declaration of Robert D. Jones, hereinafter "Jones," attached as Exhibit A at ¶ 3. The Declaration is being filed unsigned. Defendant Jones, who is on active military duty in Europe, has reviewed, approved the contents, and signed the Declaration. Upon receipt of the signed original, it will be filed with the Court.) 4. As the Deputy Director of ADC Health Services, Dr. Jones' duties and

responsibilities included the clinical administrative oversight of the medical, dental, mental health, and sex offender treatment for those incarcerated in state facilities in Arizona. (Jones at ¶ 4.) 5. Dr. Baird is employed by the ADC as the Medical Program Manager.

He was the Medical Program Manager from November 13, 2000 to August 19, 2003, Physician Supervisor at the Arizona State Prison Complex ("ASPC")-Eyman and ASPC-Florence from August 19, 2003 to March 1, 2004, and Medical Program Manager from March 1, 2004 to present. (See Declaration of James Baird, hereinafter "Baird," attached as Exhibit B at ¶ 1.) 6. As the Medical Program Manager, Dr. Baird's duties included

development of policy and procedure in the Department as it relates to health care, monitoring of health care given, and clinical supervision of facility physician supervisors. (Baird at ¶ 3.) 7. Dr. Macabuhay was employed by the ADC as a Physician III from 1998

to 2003. He has been a Key Contact Physician with ADC from 2003 to present. (See

Case 2:03-cv-01729-RCB

Document 83

2

Filed 10/31/2005

Page 2 of 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Declaration of Ronolfo Macabuhay, hereinafter "Macabuhay," attached as Exhibit C at ¶ 2.) 8. Dr. Macabuhay's duties as a Physician III were to provide medical care

for inmates in ADC's custody. As the Key Contact Physician, Dr. Macabuhay has the duties of a Physician III, as well as supervising other physicians and providers in the facility and to serve as liaison between them and the ADC Central Office. (Macabuhay at ¶ 3.) 9. Defendant Siers was a Medical Investigator with the ADC from April,

2003 to August, 2003. His duties were to investigate allegations brought by the general public and inmate population regarding delivery of health care services within the ADC. (See Declaration of Wade Siers, hereinafter "Siers," attached as Exhibit D at ¶ 1.) 10. A Medical Investigator for the ADC operates in the capacity of a

grievance coordinator, assisting Health Services Administrators by researching data and presenting findings to physicians and other qualified personnel who in turn use this information in answering inmate grievances regarding medical issues. (Siers at ¶ 3.) 11. A Medical Investigator does not formulate the response to inmate

grievance appeals where issues of medical expertise are concerned. Primarily, the Medical Investigator assists in the grievance response in areas of grammar and phrasing. (Siers at ¶ 4.) 12. Defendant Siers is not a licensed medical professional and did not

provide medical care or prescribe medical treatment while employed by the ADC. (Siers at ¶ 5.) 13. Defendant Siers did not make ADC policy. (Siers at ¶ 6.)

Case 2:03-cv-01729-RCB

Document 83

3

Filed 10/31/2005

Page 3 of 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

III.

Hepatitis C 14. Hepatitis C is a viral infection which is transmitted through exposure to

blood or fluids contaminated with blood. This is a chronic illness which is most commonly contracted by sharing needles during intravenous drug abuse and tattooing. (Jones at ¶ 5; Baird at ¶ 4; Macabuhay at ¶ 4.) 15. Plaintiff admits that he has used intravenous drugs, i.e., cocaine, heroin,

methamphetamines, LSD, as well as marijuana. (See relevant portions of Plaintiff's Deposition, hereinafter "Deposition," which was conducted on December 20, 2004, at p. 16-17, attached as Exhibit E.) 16. At the time of his deposition in December, 2004, Plaintiff admitted that

the last time he used drugs was August, 2004. At that time he had used heroin and had tested positive for methamphetamines and opiates. (Deposition at p. 18, lines 5-22 attached as Exhibit F.) 17. Plaintiff also has numerous tattoos, with approximately 60 percent

received in prison by a homemade tattoo gun. (Deposition at p. 19, lines 5-25, pp. 20-22, line 13 attached as Exhibit G.) 18. Hepatitis C progresses very slowly to cirrhosis, requiring 10 to 30 years More than 80% of infected individuals never

for this complication to develop.

advance from having chronic hepatitis C to any cirrhosis. There is no urgency to initiate treatment. (Jones at ¶ 6; Baird at ¶ 5; Macabuhay at ¶ 5.) 19. Hepatitis C is sometimes treated by administering Rebetron (Interferon

and Ribavirin). Since Interferon and Ribavirin have serious potential side effects, i.e. irritability, behavioral changes, depression, suicidal ideation, completed suicide and death, one must be certain that treatment is truly indicated and that the potential benefit is greater than the risk. The drugs can also cause anemia and suppression of

Case 2:03-cv-01729-RCB

Document 83

4

Filed 10/31/2005

Page 4 of 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

white blood cells (neutropenia) and platelets (thrombocytopenia). (Jones at ¶ 7; Baird at ¶ 6; Macabuhay at ¶ 6.) 20. Genotype refers to the genetic make-up of an organism or a virus. There

are at least 6 distinct HCV (hepatitis C virus) genotypes identified for hepatitis C. Genotype 1 is the most common genotype seen in the United States. (Jones at ¶ 8; Baird at ¶ 7; Macabuhay at ¶ 7.) 21. The treatment for hepatitis C is continuously evolving as medical experts

acquire more information on the disease. It has varied over the past several years regarding criteria for liver biopsies and ALT (liver enzymes) use. Most medical professionals look to the recommendations of the Centers for Disease Control and Prevention ("CDC") regarding treatment guidelines for hepatitis C. (Jones at ¶ 9; Baird at ¶ 8; Macabuhay at ¶ 8.) 22. The ADC has had a hepatitis C treatment guideline since the 1990s. At

that time an inmate's liver enzymes (ALT and AST) had to stay over three times normal for over six months for an inmate to be evaluated for treatment for hepatitis C. (Jones at ¶ 10; Baird at ¶ 9.) 23. In August, 2000, the liver enzymes (ALT and AST) criteria changed

from 2-3 times normal to 1.5 times normal. (Jones at ¶ 11; Baird at ¶ 10.) 24. In August 2001, the current recommendations for treatment for hepatitis

C were being reviewed and changed. Most clinicians were waiting for improved Interferon (peglated) to be approved by the FDA. Peglated is a long acting form of Interferon. It is administered once a week as opposed to Interferon which is

administered three times a week. Peglated is more effective in the treatment of hepatitis C genotypes 1A and B. (Jones at ¶ 12; Baird at ¶ 11.)

Case 2:03-cv-01729-RCB

Document 83

5

Filed 10/31/2005

Page 5 of 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

25.

In January, 2003, at the recommendation of the CDC, the ADC again

utilized ALT levels which should be 2 times normal on at least 3 occasions to be considered for treatment. (Jones at ¶ 13; Baird at ¶ 12.) 26. Patients with genotypes 2 and 3 are almost three times more likely than

patients with genotype 1 to respond to therapy with alpha interferon or the combination of alpha interferon and ribavirin. (Jones at ¶ 14; Baird at ¶ 13.) 27. Plaintiff admits that he has been advised by ADC health care providers,

including Macabuhay, that using drugs can be a contraindication to hepatitis C treatment. (Deposition at p. 32, lines 17-21 attached as Exhibit H.) 28. In May, 1998, Plaintiff was housed at the ASPC-Winslow. (See certified

copy of Plaintiff's public Adult Information Management System attached as Exhibit I.) 29. On May 19, 1998, Plaintiff's laboratory results revealed that Plaintiff's

liver functions were elevated at 86 (normal is 0-40) and he tested positive for hepatitis C. (Baird at ¶ 14; Macabuhay at ¶ 9.) 30. On June 19, 1998, Plaintiff was seen in the Health Unit by Dr. Ben Terry

after being diagnosed with hepatitis C. The examination was unremarkable and there were no indications of jaundice. A complete laboratory work up was ordered to determine Plaintiff's liver functions and to determine how much of the hepatitis virus was in Plaintiff's blood. Plaintiff received counseling in hepatitis C. (Macabuhay at ¶ 10.) 31. On July 7, 1998, Plaintiff was seen in the Health Unit with complaints of

gas and constipation. Plaintiff reported his last IV drug use in 1996. Plaintiff was counseled in hepatitis C. (Macabuhay at ¶ 11.) 32. Lab work collected on June 25, 1998 revealed that Plaintiff's HCV viral

load (amount of virus in the blood) was 1351.62, PT/INR (coagulation study) was

Case 2:03-cv-01729-RCB

Document 83

6

Filed 10/31/2005

Page 6 of 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

normal ANA (testing for rheumatoid arthritis) negative, anti-TSH (anti-thyroid stimulating hormone) antibody negative. (Baird at ¶ 15; Macabuhay at ¶ 12.) 33. On January 6, 1999, Plaintiff's liver functions test was slightly elevated

(105) due to Plaintiff being positive for hepatitis C RIBA (test to confirm positive hepatitis C result). Plaintiff was rescheduled to be seen in 3-4 weeks. (Baird at ¶ 16; Macabuhay at ¶ 13.) 34. On February 9, 1999, Plaintiff reported that he was working out and

taking daily vitamins. He requested an abdominal ultrasound. Treatment for hepatitis C was explained to Plaintiff, specifically, Interferon, and the indications and risks associated therewith. A request for an ultrasound was submitted to the Outside

Review Committee ("ORC"). (Macabuhay at ¶ 14.) 35. On February 11, 1999, the ORC approved the request for an abdominal

ultrasound. (Baird at 17; Macabuhay at ¶ 15.) 36. Plaintiff was transferred from the ASPC-Winslow to the ASPC-Yuma on

February 18, 1999. (See Exhibit I.) 37. On March 5, 1999, Dr. Scheetz filled out a consultation request for an

ultrasound of Plaintiff's liver and spleen. (Macabuhay at ¶ 16.) 38. Plaintiff submitted a Health Needs Request ("HNR") dated March 16,

1999, asking to be seen by medical staff in regard to his continuing care for hepatitis C issues. (Macabuhay at ¶ 17.) 39. Lab work collected from Plaintiff on March 31, 1999, revealed an ALT

of 65. (Baird at 18; Macabuhay at ¶ 18.) 40. An ultrasound of Plaintiff's abdomen was conducted on April 2, 1999.

The ultrasound was an essentially unremarkable study of the liver, spleen and biliary tract. (Baird at 19; Macabuhay at ¶ 19.)

Case 2:03-cv-01729-RCB

Document 83

7

Filed 10/31/2005

Page 7 of 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

41.

On April 29, 1999, Plaintiff was seen in the Health Unit for hepatitis C

counseling. The results of Plaintiff's ultrasound were discussed and additional lab work was ordered to test Plaintiff's liver functions and determine how much of the virus was present in Plaintiff's blood. (Macabuhay at ¶ 20.) 42. Lab work collected from Plaintiff on May 4, 1999 revealed HCV RNA

PCR Quant. (amount of virus in the blood) of 408.60. (Baird at ¶ 20; Macabuhay at ¶ 21.) 43. Plaintiff was seen on May 6, 1999, by Dr. Scheetz for follow-up on

hepatitis C. Dr. Scheetz explained the need for further tests. (Macabuhay at ¶ 22.) 44. A CT scan of Plaintiff's abdomen was conducted on May 24, 1999 for

his history of hepatitis. The impression of the CT was negative. (Baird at ¶ 21; Macabuhay at ¶ 23.) 45. On June 10, 1999, Plaintiff's lab work revealed an ALT of 119. (Baird

at ¶ 22; Macabuhay at ¶ 24.) 46. Plaintiff was transferred from the ASPC-Yuma to the ASPC-Winslow on

June 14, 1999. (See Exhibit I.) 47. Plaintiff was transferred from the ASPC-Winslow to the ASPC-Lewis on

November 17, 1999. (See Exhibit I.) 48. Plaintiff submitted an HNR dated July 18, 2002, stating that he wanted

to begin Interferon/Ribavirin treatment for hepatitis C. (Macabuhay at ¶ 25.) 49. On August 1, 2002, Plaintiff was seen in the Health Unit and he

requested treatment for hepatitis C. Plaintiff stated that he had completed the protocol but had not been started on treatment. The examination was unremarkable and lab work was ordered. (Macabuhay at ¶ 26.) 50. Lab work collected from Plaintiff on August 20, 2002, revealed an ALT

of 109, and HCV Quant of 798, 000. (Baird at ¶ 23; Macabuhay at ¶ 27.)

Case 2:03-cv-01729-RCB

Document 83

8

Filed 10/31/2005

Page 8 of 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

51.

On September 5, 2002, Dr. Hurowitz noted on Plaintiff's medical chart

that Plaintiff appeared to meet the criteria for hepatitis C treatment and he was to be scheduled for a visit. (Macabuhay at ¶ 28.) 52. Plaintiff submitted an HNR dated October 10, 2002, stating that he was

undergoing evaluation for treatment for placement on Interferon therapy for hepatitis C. He stated that he had not had blood tests performed in nearly two months and asked if there was a reason for the delay. The HNR was responded to on October 24, 2002, stating "The blood tests are done every three months. Your last test was done on 8/20/02." (Macabuhay at ¶ 29.) 53. On October 24, 2002, Dr. Macabuhay submitted a consultation request

for an ultrasound of Plaintiff's abdomen and genotyping. This request was approved at the institution and sent to ADC Central Office on October 25, 2002. (Baird at ¶ 24; Macabuhay at ¶ 30.) 54. Lab work collected from Plaintiff on October 30, 2002, revealed HCV

Quant. of 3,200,000 IU/ml. (Baird at ¶ 25; Macabuhay at ¶ 31.) 55. On January 23, 2003, Dr. Macabuhay noted that Plaintiff's HVC viral

load was over 3 million. He also noted that Plaintiff had an ultrasound and CT scan of abdomen done in 1999 which were negative. Plaintiff reported his last IV drug use about one year ago and that he had completed drug awareness programs. Dr.

Macabuhay provided Plaintiff with hepatitis C counseling to which the Plaintiff stated he understood. Dr. Macabuhay noted that he was currently awaiting central office approval for drug screens and genotyping. (Macabuhay at ¶ 32.) 56. On May 20, 2003, Plaintiff's labs were ordered for genotyping, drug

screening and a liver profile and on June 16, 2003, it was noted that Plaintiff's drug screening came back negative. Plaintiff's AST levels were 42, ALT levels were 66, and his genotype is 1A. (Baird at ¶ 26; Macabuhay at ¶ 33.)

Case 2:03-cv-01729-RCB

Document 83

9

Filed 10/31/2005

Page 9 of 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ¶ 39.)

57.

On September 17, 2003, Twinrex, a vaccination for hepatitis A & B, was

ordered. Patients with hepatitis C are often at risk for contracting hepatitis A and B; therefore, Plaintiff was given a preventative vaccination against those strains. The first shot was administered on September 23, 2003, and the second shot was administered on October 24, 2003. (Baird at ¶ 27; Macabuhay at ¶ 34.) 58. Plaintiff submitted an HNR dated September 29, 2003, requesting to be

seen for his hepatitis C. (Macabuhay at ¶ 35.) 59. On October 1, 2003, Plaintiff was seen in the Health Unit by Dr.

Macabuhay for complaints of fatigue, night sweats and dull right sided upper abdominal pain. He stated that he has lost 40 pounds. It was noted that an ultrasound of the liver and a CT scan of the spleen in 1999 were within normal limits. Plaintiff wanted to be considered for hepatitis C treatment. An examination performed by Dr. Macabuhay was essentially unremarkable. His liver was normal in size. The plan for treatment was to complete papers for submission for treatment for hepatitis C. (Macabuhay at ¶ 36.) 60. The ADC guidelines for treatment in October, 2003, indicated that the

ALT levels needed to be at least twice the normal value. A review of Plaintiff's medical record by Dr. Macabuhay following the October 1, 2003, medical visit, did not reflect that his ALT levels were twice the normal value, therefore, Plaintiff was not submitted for consideration for hepatitis C treatment. (Macabuhay at ¶ 37.) 61. On April 5, 2004, Plaintiff was given the third hepatitis AB vaccine

injection. (Baird at ¶ 27; Macabuhay at ¶ 38.) 62. Plaintiff's ALT on April 14, 2004 was 72. (Baird at ¶ 28; Macabuhay at

63.

On April 21, 2004, Plaintiff was seen for a follow-up by Dr. Vinluan for

an abscess on his left shoulder. Plaintiff was also seen to complete his hepatitis C

Case 2:03-cv-01729-RCB

Document 83

10

Filed 10/31/2005

Page 10 of 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

form. The hepatitis C checklist was completed. Plaintiff stated that he wanted to be treated for hepatitis C and was advised that his request would be submitted. Plaintiff informed Dr. Vinluan that Dr. Macabuhay had submitted a request for treatment. (Macabuhay at ¶ 40.) 64. Plaintiff submitted an HNR dated August 29, 2004, requesting to see Dr.

Vinluan in regard to his hepatitis C and also his ongoing MRSA (methicillin-resistant staphylococcus aureus) infection. Plaintiff was advised on August 31, 2004, that he would be scheduled. (Macabuhay at ¶ 41.) 65. Plaintiff was seen at the health unit by Dr. Vinluan on September 7,

2004, for his complaint of a sore on his leg. He also wanted to discuss his hepatitis C issues with the Provider. Dr. Vinluan observed a red spot around the tattoo. Plaintiff was questioned if he highlighted his previous tattoo and he said no. Plaintiff had a culture which grew out MRSA. He was assessed with sore left leg. The plan for treatment was to order blood work-up before giving him a course of antibiotic. A special needs order was issued stating no kitchen duty. Dr. Vinluan also discussed hepatitis C with Martinez. (Macabuhay at ¶ 42.) 66. On October 14, 2004, Plaintiff was seen by Dr. Vinluan for hepatitis C

counseling. Dr. Vinluan noted that he discussed counseling with Plaintiff and he was willing to attempt counseling and to pursue treatment. (Macabuhay at ¶ 43.) 67. Plaintiff was thereafter seen by Dr. Vinluan on November 18, 2004,

February 1 and 11, 2005, for his MRSA infection. (Macabuhay at ¶ 44.) 68. Plaintiff was released to his term of community supervision on March

20, 2005. Plaintiff absconded and was returned to ADC's custody on July 1, 2005. (Baird at ¶ 29.)

Case 2:03-cv-01729-RCB

Document 83

11

Filed 10/31/2005

Page 11 of 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

IV.

Inmate Grievance 69. Plaintiff submitted an inmate letter dated April 17, 2003 to Facility

Health Administrator ("FHA") Sloan attempting to obtain copies of his certificates showing completion of substance abuse programs so he could begin hepatitis C treatment. (Siers at ¶ 7.) 70. FHA Sloan responded on May 2, 2003 stating "Investigation into the

issue you have raised included a review of your medical records by the Health Care Provider. The Health Care Provider has provided the following information: A

referral for genotyping has been submitted to Central Office and is awaiting approval. As soon as approval is obtained you will be scheduled for the blood draw. This is per the guidelines for hepatitis C as outlined by D.O.C." (Siers at ¶ 7.) 71. Plaintiff submitted an inmate grievance in case no. L13-034-003, dated

May 9, 2003, requesting treatment for hepatitis C. (Siers at ¶ 7.) 72. FHA Sloan responded to Plaintiff's inmate grievance in case no. L13-

034-003 on May 20, 2003 stating "Investigation into the issue you have raised including a review of your medical records by the Health Care Provider shows the following: Your liver function tests are elevated and your Hepatitis C viral loads are elevated as well. You have stated on 1/23/03 that your last IV drug use was about a year ago. You have been informed that the next step in the process will be genotyping and this will be ordered. Additional information that should be considered is that once the genotyping is determined then the necessary documents will be submitted to Central Office for consideration for treatment." (Siers at ¶ 8.) 73. Plaintiff appealed FHA Sloan's inmate grievance response in case no.

L13-034-003 to the Director on May 29, 2003. (Siers at ¶ 9.) Acting Director Ryan responded on June 19, 2003, stating "Grievance Appeal L13-034-003 dated May 29, 2003, was received in my office on June 5, 2003, in which you request treatment for

Case 2:03-cv-01729-RCB

Document 83

12

Filed 10/31/2005

Page 12 of 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Hepatitis. Wade A, Siers, Medical Investigator, has reviewed relevant portions of your medical records, and reports the following: Treatment guidelines for Hepatitis are to be discussed with your local Health Care Provider (HCP). Hepatitis is an

inflammatory condition of the liver. While several kinds of Hepatitis are in existence, it is Hepatitis C that is spread through body fluids including sexual contact, needle sharing, or tattooing. Such contact is not condoned in the prison system, and taken into consideration when deciding upon treatments options. Numerous possible

exclusions exist with regard to potential treatment of Hepatitis with specific mediations. Among these are certain concurrent diseases states, laboratory results, psychiatric symptoms, and age. Appropriate lifestyle habits and behaviors are also important when determining if a patient would be a candidate for treatment with medications for the disease. The potential for continued exposure to the disease as a result of lifestyle behaviors must be considered. Failing to implement lifestyle changes or repeating any risky behavior would place any patient at risk of further exposure to this disease and negate any positive results that may be achieved in treatment with medication. For this reason, any history of non-compliance (particularly of a repeating nature) is heavily weighed and will have a direct impact on recommendations for treatment. Substance abuse treatment and treatment by way of education are both considered extremely important with regard to this disease state. Also, periodic

screening for substance abuse is an integral part of the eligibility determination. Certain genotypes of Hepatitis are also more likely to have a favorable outcome if treated, as treatment at this time does not necessarily indicate that the disease process will be affected. All facts must be considered when making a clinical decision

regarding potential treatment with certain medications.

Case 2:03-cv-01729-RCB

Document 83

13

Filed 10/31/2005

Page 13 of 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

Numerous side effects are also possible while undergoing treatment with specific medications. It is important to continue such treatment without interruption once started. Lab work is scheduled on a routine basis. If additional studies are warranted, or needs recognized based upon lab results, they are scheduled and addressed accordingly. The guidelines for treatment are under continuing revision, as treatment options become more favorable with research. Newer and more effective drugs are being developed to treat this disease, and future options for treatment are expected to be far superior and more effective than those in existence at this time. Your disease is not questioned. Managing Hepatitis in a correctional facility is a daunting proposition. The fact that a diagnosis of Hepatitis is made does not automatically indicate that treatment with certain medications is deemed to be necessary or appropriate. Arizona Department of Corrections Health Services Division is committed to providing adequate and appropriate health care to inmates. Please continue to contact your Health Care Provided (HCP) via the Health Needs Request (HNR) system." (Siers at ¶ 10.) 74. Plaintiff filed an inmate letter dated November 3, 2003 addressed to

Wade Siers, Medical Administrator stating that "on 9/5/02 Dr. Macabuhay and or Dr. Hurowitz wrote in my medical record that I met the criteria for Hep C treatment. A review of ADOC HCV treatment protocols (algorithms 18-12 thru 18-19) compared with my lab results, also reflect HCV treatment eligibility. I've grieved the fact that ADOC still will not treat my HVC (recently I even sued you and others for denying me the treatment) - If I met treatment criteria (which is documented) why then wont ADOC treat me?" (Siers at ¶ 11.) 75. Sherry Mullen, Medical Investigator, responded to Plaintiff's inmate

letter on December 17, 2003, stating "I have reviewed relevant portions of your

Case 2:03-cv-01729-RCB

Document 83

14

Filed 10/31/2005

Page 14 of 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

medical records, which have provided information for this response. The issue you bring forth has already been addressed in correspondence dated June 19, 2003, as a response to Grievance Appeal #L13-034-003. Once an issue has been addressed, it is considered resolved. There is no indication that you are recommended for treatment by your local medical professionals. If you have additional questions or concerns regarding health care please submit a Health Needs Request to your Local health Care provider (HCP). Your HCP would be the one to discuss the status of your treatment." (Siers at ¶ 12.) V. Conclusion 76. Plaintiff admits that Defendant Siers does not provide medical treatment

nor make ADC policy. (Deposition at p. 47, lines 3-5, 17-19 attached as Exhibit J.) 77. Plaintiff contends that he is suing Defendant Siers because he believes he

would be responsible for formulating or investigating inmate grievances. (Deposition at p. 50, lines 11-20 attached as Exhibit K.) 78. Plaintiff admits that Defendant Siers has not denied him medical

treatment. (Deposition at p. 51, lines 10-11 attached as Exhibit L.) 79. Plaintiff admits that he has not had any personal treatment with

Defendants Jones or Baird, nor has he written to them or received correspondence from them. (Deposition at p. 39, lines 17-25, p. 40, lines 1-8, p. 42, lines 17-25, p. 43, lines 1-9 attached as Exhibit M; Baird at ¶ 30.) 80. Plaintiff admits that he is suing Dr. Jones because he was the Deputy

Director of ADC Health Services. (Exhibit M at p. 40, lines 20-22.) 81. Plaintiff admits that his own research, specifically The National Institute

of Health Conference in 2002 stated "HCV therapy has been successful even when the patients have not abstained from continued use of alcohol or daily methadone. Thus, it is recommended that treatment of active injection drug use be considered on a case-

Case 2:03-cv-01729-RCB

Document 83

15

Filed 10/31/2005

Page 15 of 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

by-case basis and that active injection drug use, in and of itself, not be used to exclude such patients from anti-viral therapy." (emphasis added) (Deposition at p. 44, 11-25, 45, lines 1-16 attached as Exhibit N.) 82. Plaintiff admits that although he has completed approximately ten drug

and alcohol classes while in prison, he continues to use drugs. (Deposition at p. 46, lines 7-22 attached as Exhibit O.) 83. The ADC does not exclude those patients with a past history of IV drug

use. ADC requires 1 year sobriety from drugs, with no tickets for drug possession. (Baird at ¶ 32.) 84. In order to be considered for treatment, the patient's ALT levels must be

2 times normal on three consecutive occasions. Plaintiff's ALT levels have not been consistently elevated. (Baird at ¶ 33; Macabuhay at ¶ 45.) 85. Plaintiff admits that he was told that his liver enzymes did not meet the

criteria for treatment for hepatitis C. (Deposition at p. 35, lines 22-24.) 86. The ADC does not consider cost when evaluating an inmate for hepatitis

C treatment. (Jones at ¶ 15; Baird at ¶ 34.) 87. Inmates seeking treatment for hepatitis C are evaluated on a case-by case

basis in accordance with the ADC Hepatitis C protocol. (Jones at ¶ 16; Baird at ¶ 35; Macabuhay at ¶ 46.) 88. At no time have Defendants denied Plaintiff medical treatment or been

deliberately indifferent to his medical needs. (Jones at ¶ 17, Baird at ¶ 36; Macabuhay at ¶ 47; Siers at ¶ 13.) ... ... ...

Case 2:03-cv-01729-RCB

Document 83

16

Filed 10/31/2005

Page 16 of 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

89.

All care provided to Plaintiff has met the community standard of care.

(Baird at ¶ 37; Macabuhay at ¶ 48.) RESPECTFULLY SUBMITTED on this 31st day of October, 2005. TERRY GODDARD Attorney General

s/Kelley J. Morrissey KELLEY J. MORRISSEY Assistant Attorney General Attorneys for Defendants

Case 2:03-cv-01729-RCB

Document 83

17

Filed 10/31/2005

Page 17 of 18

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

ORIGINAL and One copy of the foregoing filed this 31st day of October, 2005, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Phoenix, AZ 85003 Copy of the foregoing has been mailed this 31st day of October, 2005, to: Felipe J. Martinez, #102001 ASPC-Tucson-Santa Rita Unit P.O. Box 24406 Tucson, AZ 85734 Plaintiff Pro Per

s/ A. Palumbo Secretary to Kelley J. Morrissey IDS03-0579/RM#G03-04130 932264

Case 2:03-cv-01729-RCB

Document 83

18

Filed 10/31/2005

Page 18 of 18