Free Motion for Summary Judgment - District Court of Arizona - Arizona

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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, pursuant to Rule 56, Federal Rules of Civil Procedure and LRCiv Rule 56.1, hereby move for summary judgment. Defendants' Motion is supported by the following Memorandum of Points and Authorities and concurrently filed Defendants' Statement of Facts ("DSOF"). MEMORANDUM OF POINTS AND AUTHORITIES I. The Facts Plaintiff is serving a nine year, three month sentence in the custody of the Arizona Department of Corrections ("ADC") for armed robbery. (DSOF at ¶ 1.) In his Second Amended Complaint, Plaintiff alleges that he is being denied treatment for hepatitis C. (DSOF at ¶ 2). Plaintiff also alleges that the Defendants have denied him DEFENDANTS' MOTION FOR SUMMARY JUDGMENT No. CV 03-1729-PHX-RCB (LOA)

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treatment arbitrarily and unjustifiably in violation of the Fifth and Fourteenth Amendments. (Id.) Dr. Jones was the Deputy Director of ADC Health Services from August, 2001 to December, 2003; however, he was on active military duty from July, 2002 to January, 2003. (DSOF at ¶ 3.) Dr. Baird is employed by the ADC as the Medical Program Manager. (DSOF at ¶ 5.) Dr. Macabuhay is employed by the ADC as a Physician, and has been the Key Contact Physician from, 2003 to present. (DSOF at ¶ 7.) Defendant Siers was a Medical Investigator with the ADC from April, 2003 to August, 2003. (SOF at ¶ 9.) Hepatitis C is a viral infection which is transmitted through exposure to blood or bodily fluids contaminated with blood. (DSOF at ¶ 14.) Needle sharing (IV drugs and tattoos) is the most common mode of transmission of hepatitis C. (Id.) Plaintiff has used intravenous drugs and has numerous tattoos, 60 percent of which were received while in prison. (DSOF at ¶¶ 15-17.) Hepatitis C progresses very slowly to cirrhosis, requiring 10 to 30 years for this complication to develop. (DSOF at ¶ 18.) More than 80% of infected individuals never advance from having chronic hepatitis C to any cirrhosis. (Id.) There is no urgency to initiate treatment. (Id.) Hepatitis C is sometimes treated by administering Rebetron (Interferon and Ribavirin), which has serious potential side effects, i.e. irritability, behavioral changes, depression, suicidal ideation, completed suicide, and death. (DSOF at ¶ 19.) The treatment for hepatitis C is continuously evolving as medical experts acquire more information about the disease. (DSOF at ¶ 21.) The criteria for liver biopsies and ALT (liver enzymes) use have varied over the past several years. (Id.) The ADC has had a Hepatitis C treatment guideline since the 1990s. (DSOF at ¶ 22.) 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.

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(Id.) In August, 2000, the liver enzymes (ALT and AST) criteria changed from 2-3 times normal to 1.5 times normal. (DSOF at ¶ 23.) In August 2001, the current recommendations for treatment for hepatitis C were being reviewed and changed. (DSOF at ¶ 24.) Most clinicians were waiting for improved Interferon (peglated) to be approved by the FDA. (Id.) In January, 2003, at the recommendation of the CDC, the ADC again utilized the criteria that an inmate's ALT levels should be 2 times normal on at least 3 occasions to be considered for treatment. (DSOF at ¶ 25.) 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. (DSOF at ¶ 29.) On June 19, 1998, Plaintiff was seen in the Health Unit by Dr. Ben Terry. (DSOF at ¶ 30.) A complete laboratory workup was ordered to determine Plaintiff's liver functions and to determine how much of the hepatitis virus was in his blood. (Id.) Plaintiff also received counseling on hepatitis C. (Id.) On July 7, 1998, Plaintiff reported that his last IV drug use was in 1996. (DSOF at ¶ 31.) Labwork collected on June 25, 1998 revealed that Plaintiff's HCV viral load was 1351.62, PT/INR was normal ANA negative, anti-TSH antibody negative. (SOF at ¶ 32.) On January 6, 1999, Plaintiff's liver functions test was slightly elevated at 105. (DSOF at ¶ 33.) On February 9, 1999, treatment for hepatitis C was explained to Plaintiff, specifically, Interferon, and the indications and risks associated therewith. (DSOF at ¶ 34.) A request for an ultrasound was submitted to the Outside Review Committee ("ORC"), which approved the request on February 11, 1999. (DSOF at ¶¶ 34-35.) On March 5, 1999, Dr. Scheetz filled out a consultation request for an ultrasound of Plaintiff's liver and spleen. (DSOF at ¶ 37.) Labwork collected from Plaintiff on March 31, 1999, revealed an ALT of 65. (DSOF at ¶ 39.) An ultrasound of Plaintiff's abdomen was conducted on April 2, 1999, which was essentially an unremarkable study of the liver, spleen, and biliary tract. (DSOF at ¶ 40.) Labwork

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collected from Plaintiff on May 4, 1999 revealed HCV RNA PCR Quant. of 408.60. (DSOF at ¶ 42.) A CT scan of Plaintiff's abdomen was conducted on May 24, 1999, which was negative. (DSOF at ¶ 44.) On June 10, 1999, Plaintiff's labwork revealed an ALT of 119. (DSOF at ¶ 45.) Labwork collected from Plaintiff on August 20, 2002, revealed an ALT of 109, and HCV Quant of 798, 000. (DSOF at ¶ 50.) On October 24, 2002, Dr. Macabuhay submitted a consultation request for an ultrasound of Plaintiff's abdomen and genotyping. (DSOF at ¶ 53.) This request was approved at the institution and sent to the ADC Central Office on October 25, 2002. (Id.) Labwork collected from Plaintiff on October 30, 2002, revealed HCV Quant. of 3,200,000 IU/ml. (DSOF at ¶ 54.) 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. (DSOF at ¶ 56.) Plaintiff's AST levels were 42, ALT levels were 66 and his genotype is 1A. (Id.) On September 23, 2003, October 24, 2003, and April 5, 2004, Plaintiff received vaccine injections for hepatitis A & B. (DSOF at ¶¶ 57, 61.) 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. (DSOF at ¶ 59.) An examination was essentially unremarkable. (Id.) His liver was normal in size. (Id.) The plan for treatment was to complete papers for submission for treatment for hepatitis C. (Id.) 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, because Plaintiff did not meet the treatment protocol, he was not submitted for consideration for hepatitis C treatment. (DSOF at ¶ 60.) Plaintiff's ALT on April 14, 2004 was 72. (DSOF at ¶ 62.) On October 14, 2004, Plaintiff was seen by Dr. Vinluan for hepatitis C counseling. (DSOF at ¶ 66.)

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Plaintiff was thereafter seen by Dr. Vinluan on November 18, 2004, February 1, 2005, and February 11, 2005, for a methicillin-resistant staphylococcus aureus ("MRSA") infection. (DSOF at ¶¶ 67.) Plaintiff was released to his term of community supervision on March 20, 2005. (DSOF at ¶ 68.) Plaintiff absconded and was returned to ADC's custody on July 1, 2005. (Id.) II. The Law A. Defendants Were Not Deliberately Indifferent to Plaintiff's Medical Needs. To assert a proper §1983 medical claim under the Eighth Amendment, Plaintiff must show Defendants acted with "deliberate indifference to his serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). The Supreme Court has set out a two part test for deliberate indifference. First, the alleged constitutional deprivation must be, "objectively, `sufficiently serious'" i.e., the official's act or omission must result in the denial of the "minimal civilized measure of life's necessities." Farmer v. Brennan, 511 U.S. 825, 834 (1994). Second, the prison official must have a "sufficiently culpable state of mind," i.e. he must act with deliberate indifference to inmate health or safety. Id. The Supreme Court has further defined this subjective test: the official must both be aware of the facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. Id. at 837. Prison officials may not be held liable if they respond reasonably to the risk, even if the harm is not ultimately averted. Id. at 826. Deliberate indifference may occur if "prison officials deny, delay or intentionally interfere with medical treatment." Hutchinson v. United States, 838 F.2d 390, 394 (9th Cir. 1988). However, "state prison authorities have wide discretion regarding the nature and extent of medical treatment." Jones v. Johnson, 781 F.2d

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769, 771 (9th Cir. 1986). "A difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a § 1983 claim." Franklin v. State of Or., State Welfare Div., 662 F. 2d 1337, 1344 (9th Cir. 1981); see also Sanchez v. Vild, 891 F.2d 240, 242 (9th Cir. 1989). Additionally, a mere delay in medical care, without more, is insufficient to state a claim against prison officials for deliberate indifference. Shapley v. Nevada Bd. Of State Prison Comm'rs, 766 F.2d 404, 407 (9th Cir. 1985). Plaintiff must show the delay in treatment was harmful. Id. The indifference must be substantial, and the conduct must rise to a level of "unnecessary and wanton infliction of pain." Estelle, 429 U.S. at 104-105. Inadequate treatment due to malpractice or even gross negligence does not constitute an Eighth Amendment violation. Wood v. Housewright, 900 F.2d 1332, 1334 (9th Cir. 1990). The factual record demonstrates that the Defendants are not being deliberately indifferent to Plaintiff's medical needs. 1. Hepatitis C

Hepatitis C is a viral infection which is transmitted through exposure to blood or bodily fluids contaminated with blood. (DSOF at ¶ 14.) Needle sharing (IV drugs and tattoos) is the most common mode of transmission of hepatitis C. (Id.) Hepatitis C progresses very slowly to cirrhosis, requiring 10 to 30 years for this complication to develop. (DSOF at ¶ 18.) More than 80% of infected individuals never advance from having chronic hepatitis C to any cirrhosis. (Id.) There is no urgency to initiate treatment. (Id.) Hepatitis C is treated by administering Rebetron (Interferon and Ribavirin). (DSOF at ¶ 19.) 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. (Id.) The drugs can also cause anemia and suppression of white blood cells (neutropenia) and platelets (thrombocytopenia). (Id.)

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The treatment for hepatitis C is continuously evolving as medical experts acquire more information about the disease. (DSOF at ¶ 21.) It has varied, over the past several years, regarding the criteria for liver biopsies and ALT (liver enzymes) use. (Id.) Most medical professionals look to the recommendations of the Centers for Disease Control and Prevention ("CDC") regarding treatment guidelines for hepatitis C. (Id.) The ADC has had a hepatitis C treatment guideline since the 1990s. (DSOF at ¶ 22.) 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. (Id.) In August, 2000, the liver enzymes (ALT and AST) criteria changed from 2-3 times normal to 1.5 times normal. (DSOF at ¶ 23.) In August 2001, current recommendations for treatment for hepatitis C were being reviewed and changed. (DSOF at ¶ 24.) Most clinicians were waiting for improved Interferon (peglated) to be approved by the FDA. (Id.) Peglated is a long acting form of Interferon. (Id.) It is administered once a week as opposed to interferon which is administered three times a week. (Id.) Peglated is more effective in the treatment of hepatitis C genotypes 1A and B. (Id.) Genotype refers to the genetic make-up of an organism or a virus. (DSOF at ¶ 20.) There are at least 6 distinct HCV genotypes identified for hepatitis C. (Id.) Genotype 1 is the most common genotype seen in the United States. (Id.) In January, 2003, at the recommendation of the CDC, the ADC again utilized the criteria that an inmate's ALT level should be 2 times normal on at least 3 occasions to be considered for treatment. (DSOF at ¶ 25.) 2. Plaintiff is Not a Candidate for Hepatitis C Treatment.

Despite his contentions, Plaintiff is not a candidate for hepatitis C treatment. Plaintiff tested positive for hepatitis C on May 19, 1998. (DSOF at ¶ 29.) At the time his ALT was 86, with 0-40 being normal. (Id.) On March 31, 1999, Plaintiff's ALT was 65. (DSOF at ¶ 39.) On June 10, 1999, Plaintiff's ALT was 119. (DSOF at

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¶ 45.) On August 20, 2002, Plaintiff's ALT was 109. (DSOF at ¶ 50.) Plaintiff's ALT on May 20, 2003, was 66. (DSOF at ¶ 56.) On April 14, 2004, Plaintiff's ALT was 72. (DSOF at ¶ 62.) In January, 2003, at the recommendation of the CDC, the ADC treatment protocol for hepatitis C utilized ALT levels which should be 2 times normal on at least 3 occasions to be considered for treatment. (DSOF at ¶ 25.) Plaintiff has not met this criteria; therefore, he is not a candidate for hepatitis C treatment. (DSOF at ¶¶ 60, 84.) 3. Defendants Jones, Baird and Macabuhay.

The ADC has had a hepatitis C treatment protocol in effect since the 1990's. (DSOF at ¶ 22.) Defendant Jones did not become the Deputy Director of ADC Health Services until August, 2001, three years after Plaintiff tested positive for hepatitis C. (DSOF at ¶ 3.) Although he was the Deputy Director of ADC Health Services from August, 2001 to December, 2003, Defendant Jones was away from that position from July, 2002 to January, 2003, when he was on active military duty. (Id.) Although the Deputy Director for ADC Health Services makes medical treatment guidelines, the guidelines for hepatitis C were revised based on the recommendations of the CDC. (DSOF at ¶¶ 23-25.) Plaintiff admits that he has not received any personal treatment by Defendant Jones, nor has he written to him or received correspondence from him. (DSOF at ¶ 79.) Plaintiff admits that he is suing Defendant Jones merely because he was the Deputy Director of ADC Health Services. (DSOF at ¶ 80.) When Defendant Baird became the ADC Medical Program Manager, there were existing hepatitis C medical treatment guidelines. (DSOF at ¶¶ 5, 22-23 .) As stated above, the guidelines for hepatitis C were revised based on the recommendations of the CDC. (DSOF at ¶¶ 23-25.) Plaintiff admits that he has not received any personal treatment from Defendant Baird, nor has he written to him or received correspondence from him (DSOF at ¶ 79.)

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Defendant Macabuhay is a Physician with the ADC and has been a Key Contact Physician since 2003. (DSOF at ¶ 7.) He is assigned to the ASPC-Lewis. (DSOF at Exhibit C at ¶ 1.) Plaintiff was housed at the Lewis Complex from November 17, 1999 to June 23, 2005. (DSOF at Exhibit I.) Plaintiff tested positive for hepatitis C in May, 1998, while he was housed at the ASPC-Winslow. (DSOF at ¶¶ 28-29.) At the Lewis Complex, Plaintiff submitted an HNR dated July 18, 2002, stating that he wanted to begin Interferon/Ribavirin treatment for hepatitis C. (DSOF at ¶ 48.) Defendant Macabuhay saw Plaintiff on August 1, 2002, at which time he requested treatment for hepatitis C. (DSOF at ¶ 49) Plaintiff stated that he had completed the protocol but had not been started on treatment. (Id.) The examination was unremarkable and lab work was ordered. (Id.) The lab work collected from Plaintiff on August 20, 2002 revealed an ALT of 109 and HCV Quant of 798, 000. (DSOF at ¶ 50.) Plaintiff submitted an HNR dated October 10, 2002, stating that he was undergoing evaluation for treatment for placement on Interferon therapy for hepatitis C. (DSOF at ¶ 52.) He stated that he had not had blood tests performed in nearly two months and asked if there was a reason for the delay. (Id.) Defendant Macabuhay responded on October 24, 2002 stating, "The blood tests are done every three months. Your last test was done on 8/20/02." (Id.) On October 24, 2002, Dr. Macabuhay submitted a consultation request for an ultrasound of Plaintiff's abdomen and genotyping. (DSOF at ¶ 53.) Lab work collected from Plaintiff on October 30, 2002, revealed HCV Quant. of 3,200,000 IU/ml. (DSOF at ¶ 54.) On January 23, 2003, Dr. Macabuhay noted that Plaintiff's HVC viral load was over 3 million. (DSOF at ¶ 55.) He also noted that Plaintiff had an ultrasound and CT scan of abdomen done in 1999 which were negative. (Id.) Plaintiff reported that his last IV drug use had been about one year ago and that he had

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completed drug awareness programs. (Id.) Dr. Macabuhay provided Plaintiff with hepatitis C counseling, to which the Plaintiff stated he understood. (Id.) Dr. Macabuhay noted that he was currently awaiting ADC Central Office approval for drug screens and genotyping. (Id.) 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. (DSOF at ¶ 56.) Plaintiff's AST levels were 42, ALT levels were 66 and his genotype is 1A. (Id.) Patients with hepatitis C are often at risk for contracting hepatitis A and B; therefore, Dr. Macabuhay ordered that Plaintiff be given a preventative vaccination, Twinrex, against those strains. (DSOF at ¶ 57.) The injections were administered on September 23, 2003, October 24, 2003, and April 5, 2004. (DSOF at ¶¶ 57, 61.) Plaintiff submitted an HNR dated September 29, 2003, requesting to be seen for his hepatitis C. (DSOF at ¶ 58.) On October 1, 2003, Plaintiff was seen in the Health Unit by Dr. Macabuhay for complaints of fatigue, night sweats, and dull rightsided upper abdominal pain. (DSOF at ¶ 59.) He stated that he has lost 40 pounds. (Id.) It was noted that an ultrasound of the liver and a CT scan of the spleen in 1999 were within normal limits. (Id.) Plaintiff wanted to be considered for hepatitis C treatment. (Id.) An examination performed by Dr. Macabuhay was essentially unremarkable. (Id.) His liver was normal in size. (Id.) The plan for treatment was to complete papers for submission for treatment for hepatitis C. (Id.) The ADC guidelines for treatment in October, 2003 indicated that the ALT levels needed to be at least twice the normal value. (DSOF at ¶ 60.) 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, because he did not meet the treatment protocol, Plaintiff was not submitted for consideration for hepatitis C treatment. (Id.)

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Plaintiff's ALT on April 14, 2004 was 72. (DSOF at ¶ 62.) Plaintiff was thereafter treated by Dr. Vinluan who provided Plaintiff with hepatitis C counseling and treated Plaintiff for an ongoing MRSA (methicillin-resistant staphylococcus aureus) infection. (DSOF at ¶¶ 63, 65-67.) Plaintiff was released to his term of community supervision on March 20, 2005. (DSOF at ¶ 68.) Plaintiff absconded and was returned to ADC's custody on July 1, 2005. (Id.) Dr. Macabuhay did not deny Plaintiff treatment for hepatitis C. Dr. Macabuhay ordered numerous blood tests for Plaintiff. He submitted a request for an ultrasound of Plaintiff's abdomen, requested approval for genotyping and drug screening; and he provided Plaintiff with a preventative vaccine against hepatitis A and B. (DSOF at ¶¶ 53, 56, 57.) Dr. Macabuhay noted that an ultrasound and CT scan of Plaintiff's abdomen in 1999 were negative. (DSOF at ¶55.) Due to the serious potential side effects of treatment, one must be certain that treatment is truly indicated and that the benefit is greater than the risk. (DSOF at ¶ 19.) Plaintiff's ALT levels simply do not meet the criteria for hepatitis C treatment. Plaintiff implies that he that he has been denied treatment for hepatitis C because he is a drug user. (DSOF at ¶ 81.) ADC does not exclude those patients with a past history of IV drug use from receiving hepatitis C treatments. (DSOF at ¶ 83.) To be considered for treatment, ADC requires an inmate to have one year sobriety from drugs, as well as no disciplinary violations for drug possession. (Id.) Plaintiff's last disciplinary violation involving drugs was August 18, 2004. (DSOF at Exhibit I.) Even if Plaintiff had a one year sobriety from drugs, his ALT levels do not meet ADC's treatment protocol for hepatitis C, i.e., two times normal on at least three occasions. Plaintiff admits that he was been told his liver enzymes did not meet the criteria for hepatitis C treatment. (DSOF at ¶ 85.)

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Plaintiff merely has a difference of opinion with ADC medical staff as to how he should be treated for hepatitis C. "A difference of opinion between a prisoner-patient and prison medical authorities regarding treatment does not give rise to a § 1983 claim." Franklin, 662 at 1344 (9th Cir. 1981); see also Sanchez, 891 F.2d at 242 (9th Cir. 1989). Defendants were not deliberately indifferent to Plaintiff's medical needs. (DSOF at ¶ 88.) 4. Defendant Siers.

Defendant Siers was a Medical Investigator with the ADC from April, 2003 to August, 2003. (DSOF at ¶ 9.) His duties were to investigate allegations brought by the general public and inmate population regarding delivery of health care services within the ADC. (Id.) 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. (DSOF at ¶ 10.) A Medical Investigator does not formulate the response to inmate grievance appeals where issues of medical expertise are concerned. (DSOF at ¶ 11.) Primarily, the Medical Investigator assists in the grievance response in areas of grammar and phrasing. (Id.) Defendant Siers is not a licensed medical professional and did not provide medical care or prescribe medical treatment while employed by the ADC. (DSOF at ¶ 12.) Defendant Siers did not make ADC policy. (DSOF at ¶ 13.) Plaintiff submitted an inmate grievance in case no. L13-034-003, dated May 9, 2003, requesting treatment for hepatitis C. (DSOF at ¶ 71.) Facility Health Administrator ("FHA") Sloan responded to Plaintiff's inmate grievance in case no. L13-034-003 on May 20, 2003. (DSOF at ¶ 72.) Plaintiff appealed FHA Sloan's inmate grievance response in case no. L13-034-003 to the Director on May 29, 2003. (DSOF at ¶ 73.) To assist Acting Director Ryan in responding to Plaintiff's grievance

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appeal, Defendant Siers provided Ryan with information on hepatitis C, i.e., how hepatitis C is spread, factors impacting recommendations for treatment, the potential for side effects from treatment and the necessity for continuous lab work, etc. (Id.) Acting Director Ryan incorporated this information into his response to Plaintiff's inmate grievance appeal. (Id.) Plaintiff submitted an inmate letter, dated November 3, 2003, addressed to Defendant Siers. (DSOF at ¶ 74.) Defendant Siers was no longer employed by the ADC at that time. (DSOF at ¶ 9.) This letter was responded to by Medical Investigator Sherry Mullen, on December 17, 2003. (DSOF at ¶ 75.) Plaintiff admits that Defendant Siers did not provide medical treatment nor make ADC policy. (DSOF at ¶ 76.) Plaintiff contends that he is suing Defendant Siers because he believes he would be responsible for formulating or investigating inmate grievances. (DSOF at ¶ 77.) However, as stated above, the Medical Investigator does not formulate the response to inmate grievances or appeals. (DSOF at ¶¶ 10, 11.) Plaintiff admits that Defendant Siers has not denied him medical treatment. (DSOF at ¶ 78.) B. Defendants Did Not Deny Plaintiff His Right to Equal Protection.

The Fourteenth Amendment states that "[n]o state shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. Amend. XIV. "To state a claim under 42 U.S.C. § 1983 for a violation of the Equal Protection Clause of the Fourteenth Amendment a plaintiff must show that the defendants acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class." Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998). State prisoners are not a suspect class. Cromwell v. Coughlin, 773 F. Supp. 606 n.4 (S.D.N.Y. 1991). Therefore, there need only be a rational basis for the disparate treatment of prisoners. McQuery v. Blodgett, 924 F.2d 829, 834 (9th Cir.1991). In the present case, Plaintiff does not cite to disparate treatment or in any way demonstrate
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that he is being treated any differently than any other inmate housed in ADC's custody. Plaintiff argues that Defendants Baird, Jones, and Macabuhay violated his equal protection rights when they arbitrarily and unjustifiably denied him treatment for hepatitis C, but authorized and approved medical treatment for other similarly situated hepatitis sufferers. (Second Amended Complaint.) Plaintiff's claim lacks merit. ADC has an established hepatitis C treatment protocol. (DSOF at ¶¶ 22-25.) Inmates must have an ALT level which should be 2 times normal on at least 3 occasions to be considered for treatment. (DSOF at ¶ 25.) Inmates seeking treatment for hepatitis C are evaluated on a case-by case basis in accordance with the ADC hepatitis C treatment protocol. (DSOF at ¶ 87.) If an inmate meets the requirements of the hepatitis C treatment protocol, then he/she will be treated for hepatitis C. Defendants did not arbitrarily and unjustifiably denied him treatment for hepatitis C. Based on his ALT levels, Plaintiff did not meet the criteria for hepatitis C treatment. There is no evidence that any of the Defendants treated Plaintiff differently than any other inmate regarding evaluating and providing treatment for hepatitis C. Accordingly, the Defendants have not violated Plaintiff's equal protection rights, and this claim should be dismissed. C. Defendants Are Entitled to Qualified Immunity.

In determining whether a state actor is entitled to qualified immunity, the Court first asks whether the plaintiff has made a prima facie showing that the state actor violated plaintiff's constitutional rights. Saucier v. Katz, 533 U.S. 194, 201 (2001). If the facts alleged show a constitutional violation, the Court next determines whether the law was clearly established. Id. Finally, if the law was clearly established, yet based on other circumstances, the officer made a mistake regarding what the law required, the officer will be entitled to immunity if the mistake was reasonable. Id. at 205.

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Under this last prong, the Court, applying a "reasonable officer" standard, determines whether the officer's conduct was reasonable. Hunter v. Bryant, 502 U.S. 224, 227 (1991). The Court makes this final determination based on the information the officer possesses at the time. Hunter, 502 U.S. at 227. None of the Defendants violated Plaintiff's constitutional rights. With regard to Plaintiff's claims that Defendants acted with deliberate indifference to his serious medical needs, there is no indication that Plaintiff was confined under conditions posing a risk of "objectively, sufficiently serious" harm and that the Defendants had a "sufficiently culpable state of mind." Wallis v. Baldwin, 70 F.3d 1074, 1076 (9th Cir. 1995). All the evidence reveals that Plaintiff was evaluated for treatment for hepatitis C and that his ALT level did not meet the criteria for treatment. With regard to his equal protection claim, there is no evidence of disparate treatment nor does Plaintiff in any way demonstrate that he is being treated any differently than any other inmate housed in ADC's custody. Because there is no constitutional violation, "there is no necessity for further inquiries concerning qualified immunity." Saucier, 533 U.S. at 201. Nonetheless, assuming arguendo that Plaintiff has alleged facts sufficient to establish a constitutional violation, qualified immunity, under the Saucier analysis protects the individual Defendants and dismissal is still appropriate. The "next, sequential step" in the qualified immunity analysis "is to ask whether the right was clearly established." Saucier, 533 U.S. at 202. Plaintiffs bear the burden of proving the existence of a "clearly established" right at the time of the allegedly impermissible conduct. LSO, Ltd. v. Stroh, 205 F.3d 1146, 1157 (9th Cir. 2000); Maraziti v. First Interstate Bank, 953 F.2d 520, 523 (9th Cir. 1992). If Plaintiff cannot meet this burden, the inquiry ends. Saucier, 533 U.S. at 202; Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991). "The relevant, dispositive inquiry in determining whether a right is clearly established is whether it would be clear to a

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reasonable officer that his conduct was unlawful in the situation he confronted," Saucier, 533 U.S. at 202, or "whether the state of the law [at the time of the challenged action] gave `fair warning' to the officials that their conduct was unconstitutional." Clement v. Gomez, 298 F.3d 898, 906 (9th Cir. 2002). If the Court construes Defendants' actions as involving a constitutional violation, Defendants had no way of knowing that their conduct was constitutionally inappropriate. ADC's procedures for providing medical care to prisoners have withstood constitutional scrutiny. Furthermore, Defendants are unaware of any circuit precedent holding that the conduct at issue in this matter violated a clearly established law. Plaintiff had repeated lab work that revealed that his ALT level does not meet the ADC treatment protocol, which is based on recommendations from the CDC, for hepatitis C treatment. Plaintiff admits that Defendants Jones, Baird, and Siers did not personally treat him. Dr. Macabuhay ordered lab work which confirmed that Plaintiff did not meet the treatment protocol for hepatitis C. Therefore, Plaintiff was not submitted for treatment. Plaintiff, like every other ADC inmate seeking hepatitis C treatment, must meet the requirements established by the ADC hepatitis C treatment protocol. If an inmate meets the criteria, he/she will be treated. Defendants Jones, Baird, and Macabuhay treated Plaintiff like any other ADC inmate seeking hepatitis C treatment. Based on the foregoing, Defendants are entitled to qualified immunity. D. Plaintiff's Request for Injunctive Relief Against Defendants Jones, Macabuhay and Seirs Must be Denied.

In his request for relief, Plaintiff seeks an injunction ordering the Defendants to provide him with immediate medical treatment. Defendant Jones and Siers are no longer employed by the ADC and are, therefore, unable to provide Plaintiff with the medical treatment he seeks. Additionally, Plaintiff is housed at the ASPC-Tucson and

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Dr. Macabuhay is assigned to the Lewis Complex. Dr. Macabuhay does not have access to Plaintiff at the Tucson facility and is, therefore, unable to provide him with the treatment he seeks. E. The Eleventh Amendment Bars Plaintiff's Monetary Claim Against Defendants in Their Official Capacity.

The Eleventh Amendment to the United States Constitution bars suits brought against a state in federal court, and extends to suits for monetary or retroactive injunctive relief against a state official acting in his official capacity. Edelman v. Jordan, 415 U.S. 651, 662-63, 677-78 (1974); Missouri v. Fiske, 290 U.S. 18, 28 (1933); Hans v. Louisiana, 134 U.S. 1, 15 (1890). Eleventh Amendment immunity is a jurisdictional issue. Edelman, 415 U.S. at 662-63 (1974); Missouri, 290 U.S. at 28 (1933). 42 U.S.C. § 1983 does not abrogate Eleventh Amendment immunity from suit. See Quern v. Jordan, 440 U.S. 332, 341 (1979). Therefore, to the extent this action may be deemed an official capacity suit, the monetary claim against Defendants must be dismissed. III. Conclusion Plaintiff failed to state a claim for deliberate indifference to his serious medical needs. Further, Plaintiff's equal protection claim fails as none of the Defendants has treated Plaintiff differently than any other inmate regarding evaluating and providing treatment for hepatitis C. Accordingly, Plaintiff's Second Amended Complaint should be dismissed in its entirety. 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
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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 932231

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