Free Reply - 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 reply in support of their motion for summary judgment ("Defendants' Motion"), and respond, in opposition, to Plaintiff's cross-motion for summary judgment ("Plaintiff's Motion"). I. Plaintiff Is Not a Candidate for Hepatitis C Treatment. Plaintiff alleges that Defendants have been deliberately indifferent to his medical needs by failing to provide him with treatment for hepatitis C. (Defendants' Statement of Facts "DSOF" at ¶ 2). Plaintiff argues, without admissible evidence to support his position, that Defendant Macabuhay knew of serious risks to Plaintiff's health and took no measure to abate the harm; that Defendant Siers did not properly investigate his medical grievance; and that Defendants Baird and Jones have adopted a hepatitis treatment policy that violates his constitutional rights, have failed to DEFENDANTS' REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AND RESPONSE TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT No. CV 03-1729-PHX-RCB (LOA)

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adequately train and supervise their subordinates1, and have established committees which give them the unlawful authority to approve or deny the recommendations of other physicians. (Plaintiff's Motion at 10-16.) Despite Plaintiff's diversionary arguments, the focus of this case remains the same ­ Plaintiff is not a candidate for treatment for hepatitis C. A. Testing and Treatment.

The Arizona Department of Corrections ("ADC") has had a hepatitis C treatment guideline since the 1990s. (DSOF at ¶ 22.) As the treatment for hepatitis C is continuously evolving, the criteria for liver biopsies and ALT (liver enzymes) use have varied over the past several years. (DSOF at ¶ 21.) 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. (DSOF at ¶ 22.) 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.) Despite his contentions, Plaintiff has not met the criteria to become 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 ¶ 45.) On August 20, 2002, Plaintiff's ALT was
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Plaintiff's Second Amended Complaint does not include a training and supervision claim. Accordingly, this claim should not be considered by the Court.
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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.) As noted above, in January, 2003, at the recommendation of the CDC, the ADC treatment protocol for hepatitis C again 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 the criteria; therefore, he is not a candidate for hepatitis C treatment. (DSOF at ¶¶ 60, 84.) Plaintiff fails to present any admissible evidence which indicates that the ADC's criteria for evaluating and treating hepatitis C is contradictory to the community standard of care and the recommendations of the Centers for Disease Control and National Institutes of Health or that ADC has adopted a harsh criteria in an attempt to save money and eliminate seventy percent of inmates with hepatitis C from qualifying for a liver biopsy and treatment. Plaintiff also fails to provide any admissible evidence which indicates that the committee system utilized by ADC to assess inmate treatment and testing needs is unlawful and fails to provide any admissible evidence to show that Defendants violated his constitutional rights by not providing him with a liver biopsy. B. Continued Drug Use.

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.) ADC does not exclude those patients with a past history of IV drug use from receiving hepatitis C treatments; however, 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. (DSOF at ¶ 83.) Logically, the longer an inmate abstains from drug use, the less likely it is that he or she will become re-infected with hepatitis C through IV drug use. Plaintiff admits to drug use, which continued even after he filed this lawsuit.

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Plaintiff admits that he has used intravenous drugs, i.e., cocaine, heroin, methamphetamines, LSD, as well as marijuana. (DSOF at ¶ 15.) Plaintiff filed this action in September, 2003; however, at the time of his deposition in December, 2004, he admitted that the last time he used drugs was August, 2004. (DSOF at ¶ 16.) At that time he had used heroin and had tested positive for methamphetamines and opiates. (Id.) Plaintiff also has numerous tattoos, with approximately 60 percent received in prison by a homemade tattoo gun. (DSOF at ¶ 17.) Even if Plaintiff's ALT met ADC's hepatitis C treatment criteria, his behavior, i.e., continued drug use, prevented him from being a candidate for treatment. II. Defendants Did Not Deny Plaintiff's His Right to Equal Protection. Plaintiff contends that Defendants Baird, Jones, and Macabuhay arbitrarily and unjustifiably denied him medical care for his hepatitis C and associated symptoms, but authorized and approved medical treatment for other similarly situated hepatitis sufferers at the Arizona State Prison Complex--Lewis. (Plaintiff's Second Amended Complaint.) Plaintiff's contentions lack merit. In an attempt to show inappropriately disparate treatment, Plaintiff has included the affidavits of four inmates2 as Exhibit 67 to his Plaintiff's Declaration in Support of His Motion for Summary Judgment. Plaintiff contends that these inmates receive hepatitis C treatment while housed at ASPC--Lewis. Defendants have objected to these affidavits and moved to strike same. The affidavits suffer from a variety of evidentiary problems, including their lack of relevance to this case. 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.) None of the inmate affiants indicated that they had the same or similar personal background, medical history, drug use history, or medical test results as Plaintiff.
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Plaintiff has moved to strike the affidavit of inmate Johnson.
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Plaintiff does not cite to disparate treatment or in any way demonstrate that he is being treated differently than any other inmate housed in ADC's custody. Accordingly, Plaintiff's equal protection claim should be dismissed. III. Defendants Are Entitled to Qualified Immunity. Based upon the standard set forth in Saucier v. Katz, 533 U.S. 194, 201 (2001), should the Court construe Defendants' actions as involving a constitutional violation, Defendants are entitled to qualified immunity. 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. Additionally, 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. Additionally, Plaintiff had not had one year sobriety from IV drug use. Accordingly, Plaintiff was not submitted for treatment. Plaintiff, like any ADC inmate seeking hepatitis C treatment, must meet the requirements established by the ADC hepatitis C treatment protocol. Based on the foregoing, Defendants are entitled to qualified immunity. Plaintiff's Request for Injunctive Relief Against Defendants Jones, Macabuhay, and Siers Must be Denied. Defendants reiterate that Defendants Jones, Macabuhay, and Siers cannot provide Plaintiff with the treatment he seeks. Accordingly, Plaintiff's request for

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V.

The Eleventh Amendment Bars Plaintiff's Monetary Claim Against Defendants in Their Official Capacity. 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. VI. Conclusion For the above stated reasons, Plaintiff's Motion for Summary Judgment should be denied, and Defendants' Motion for Summary Judgment should be granted, dismissing Plaintiff's Second Amended Complaint in its entirety. RESPECTFULLY SUBMITTED on this 22nd day of March, 2006. 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 22nd day of March, 2006, 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 22nd day of March, 2006, 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 952589

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