Bernier v. Trump

• Decision Date: 08 March 2018
• Docket Number: Case No. 16–cv–00828 (APM)
• Citation: 299 F.Supp.3d 150
• Parties: Jean–Gabriel BERNIER, Plaintiff, v. Donald J. TRUMP, et al., Defendants.
• Court: U.S. District Court — District of Columbia

299 F.Supp.3d 150

Jean–Gabriel BERNIER, Plaintiff,

v.Donald J. TRUMP, et al., Defendants.

Case No. 16–cv–00828 (APM)

United States District Court, District of Columbia.

Signed March 8, 2018

Jean–Gabriel Bernier, Butner, NC, pro se.

Theodore A. Howard, Wiley Rein LLP, Washington, DC, for Plaintiff.

Kenneth A. Adebonojo, U.S. Attorney's Office for the District of Columbia, Robert Neil Weiner, Arnold & Porter Kay Scholer LLP, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

Amit P. Mehta, United States District Judge

I. INTRODUCTION

Plaintiff Jean–Gabriel Bernier, a federal prisoner, brought this action against the Federal Defendants¹ alleging, among other things, that the Federal Bureau of Prisons violated his Eighth Amendment right to be free from cruel and unusual punishment by refusing to prescribe him the drug Harvoni to treat his Hepatitis C

. The court previously dismissed Plaintiff's Bivens claims for money damages on qualified immunity grounds, but allowed his claim seeking injunctive relief in the form of Harvoni treatment to move forward.

This matter is before the court on the Federal Defendants' Motion to Dismiss the remaining claim for injunctive relief as moot, and Plaintiff's Motion for Reconsideration of the court's dismissal of his damages claim against Defendant Allen, Chief Physician of the Federal Bureau of Prisons. For the reasons discussed below, the Federal Defendants' Motion to Dismiss is granted and Plaintiff's Motion for Reconsideration is granted in part and denied in part.

II. BACKGROUND

A. The Federal Defendants' Initial Motion to Dismiss

The court described the facts alleged in Plaintiff's pro se Complaint in its March 2017 opinion granting in part and denying in part the Federal Defendants' Motion to Dismiss, and it need not repeat them at length here. See generally Bernier v. Trump , 242 F.Supp.3d 31 (D.D.C. 2017). To summarize, Plaintiff challenged two aspects of his confinement in his Complaint, seeking both injunctive relief and money damages. See id. at 34–37. Only one of those challenges is at issue here.² That challenge is premised upon the decision by the Federal Bureau of Prisons ("BOP") to deny Plaintiff the drug Harvoni to treat his Hepatitis C

. See generally Defs.' Mot. to Dismiss, ECF No. 50 [hereinafter Defs.' Second Mot. to Dismiss]; Pl.'s Mot. for Reconsideration Regarding Court's Dismissal of Pl.'s Eighth Amendment Bivens Claim on Grounds of Qualified Immunity, ECF No. 57 [hereinafter Pl.'s Mot. & Opp'n]. Plaintiff alleges that "the Federal Defendants subjected him to cruel and unusual punishment in violation of the Eighth Amendment by ‘deny[ing] Plaintiff treatment for Hepatitis C

pursuant to the BOP treatment guidelines and allowing [him] to suffer from the debilitating effects of [Hepatitis C ].’ " Bernier , 242 F.Supp.3d at 39 (alterations in original) (quoting Compl., ECF No. 1, ¶¶ 45–46).

The Federal Defendants ("Defendants") previously moved to dismiss Plaintiff's Eighth Amendment claims. See Bernier , 242 F.Supp.3d at 34, 38–40. Defendants sought dismissal on multiple grounds, but the court's opinion focused on only two. First, Defendants sought dismissal of Plaintiff's Eighth Amendment claim for injunctive relief, asserted against Defendants in their official capacities, for failure to state a claim. Id. at 40 ; see Compl. ¶¶ 1–7, 45–46; see also id. at 16 (requesting that the BOP Director direct Defendant Allen to approve Plaintiff's treatment with Harvoni). The court, however, found that Plaintiff had stated a cognizable claim under the Eighth Amendment. See Bernier , 242 F.Supp.3d at 40–41. Specifically, after concluding that Plaintiff had sufficiently alleged a serious medical need, the court found the following allegations "more than adequate" to satisfy the Rule 8(a) pleading standard with respect to Defendants' deliberate indifference to Plaintiff's serious medical need:

Plaintiff alleges that the BOP has violated its own policies and the standard of care in the medical profession by ignoring test results—his FibroSure scores from 2012, 2014, and 2015—indicating he has cirrhosis

that requires treatment with Harvoni. Compl. ¶¶ 13, 15, 18–19. The BOP's exclusive reliance on APRI scores and old biopsy results to deny him Harvoni, he further contends, is not premised on valid medical criteria, but instead driven by "avoiding the costs of the Harvoni treatment by denying mostly all prisoners who presently suffer from Hep[atitis] C." Id. ¶ 25. Plaintiff posits that if he were to receive Harvoni now, then "the liver damage already done to the liver will most likely be reversed and the painful [symptoms] which he Plaintiff suffers as a result of the present liver damage will cease to exist." Id. ¶ 24.

Id. at 41 (first alteration in original). Thus, the court allowed Plaintiff's Eighth Amendment claim seeking injunctive relief in the form of Harvoni treatment to proceed. See id. at 44–45.

Second, Defendants also moved to dismiss Plaintiff's claim against Defendant Jeff Allen, then-Chief Physician of BOP, in his individual capacity, seeking money damages pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). See Compl. ¶¶ 1, 7, 45–46; see also id. at 16 (seeking $50,000 in damages assessed against Defendant Allen for the denial of medical treatment). The court dismissed this claim on the ground of qualified immunity. Bernier , 242 F.Supp.3d at 38–40. The court held:

Plaintiff's Bivens claims are easily dismissed on the second prong of the qualified immunity test because the rights Plaintiff claims were violated were not clearly established at the time the alleged violations occurred. Plaintiff has cited no binding case, and the court is aware of none, holding that denying a prisoner Harvoni to treat Hepatitis C

based only on his APRI score violates the Eighth Amendment ....

Id. at 39. So, in summary, following Defendants' initial motion to dismiss, the court permitted Plaintiff to proceed with his Eighth Amendment claim for injunctive relief, but dismissed his Bivens claim for damages against Defendant Allen. In light of this conclusion, the court appointed pro bono counsel to represent Plaintiff with respect to his remaining claim.³ Id. at 45.

B. The Present Motions

Following the court's ruling, instead of answering Plaintiff's Complaint, Defendants moved once more to dismiss Plaintiff's Eighth Amendment claim for injunctive relief. In their present motion, Defendants argue that Plaintiff's claim is now moot because "Plaintiff's (and other inmates') priority level(s) have been adjusted and Plaintiff is now receiving treatment for his Hepatitis C

condition." Defs.' Second Mot. to Dismiss at 1. Plaintiff appears to concede that his claim for injunctive relief is now moot. See Pl.'s Mot. & Opp'n, Pl.'s Consolidated Mem. of Points & Authorities in Supp. of Mot. for Reconsideration and in Opp'n to Federal Defs.' Mot. to Dismiss, ECF No. 57 [hereinafter Pl.'s Mem.], at 22–23.

Plaintiff, however, seeks to revive his previously dismissed Eighth Amendment Bivens claim against Defendant Allen and, thus, avoid the end of this action. See id. Plaintiff asks the court to reconsider its dismissal of the Bivens claim on the ground that the court erred in recognizing Defendant Allen's entitlement to qualified immunity, or at least did so prematurely. See id. at 6–22. If the court were to grant his Motion for Reconsideration, Plaintiff reasons, then there would be no basis for dismissal of his claim under the Eighth Amendment. Id. at 23.

III. DISCUSSION

A. Defendants' Motion to Dismiss Under Rule 12(b)(1)

The court begins with Defendants' Motion to Dismiss, which arises under Rule 12(b)(1) of the Federal Rules of Civil Procedure. A motion filed under Rule 12(b)(1) challenges a court's subject matter jurisdiction. Fed. R. Civ. P. 12(b)(1). When deciding a motion under Rule 12(b)(1), a court must accept all well-pleaded factual allegations in the complaint as true. See Jerome Stevens Pharm., Inc. v. Food & Drug Admin. , 402 F.3d 1249, 1253–54 (D.C. Cir. 2005). In addition, the court may consider "such materials outside the pleadings as it deems appropriate to resolve the question whether it has jurisdiction to hear the case." Scolaro v. D.C. Bd. of Elections & Ethics , 104 F.Supp.2d 18, 22 (D.D.C. 2000) (citing Herbert v. Nat'l Acad. of Scis. , 974 F.2d 192, 197 (D.C. Cir. 1992) ); see also Mykonos v. United States , 59 F.Supp.3d 100, 103–04 (D.D.C. 2014) (applying rule in mootness context). Specifically, when it is necessary to look beyond the face of the complaint to determine whether the court has subject matter jurisdiction, the court may consider "the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts." See Coal. for Underground Expansion v. Mineta , 333 F.3d 193, 198 (D.C. Cir. 2003) (internal quotation mark omitted).

Mootness is one ground for dismissal for lack of subject matter jurisdiction under Rule 12(b)(1). Indian River Cty. v. Rogoff , 254 F.Supp.3d 15, 18 (D.D.C. 2017) ("A motion to dismiss for mootness is properly brought under Rule 12(b)(1) because mootness itself deprives the court of jurisdiction."). "Federal courts lack jurisdiction to decide moot cases because their constitutional authority extends only to actual cases or controversies." Conservation Force, Inc. v. Jewell , 733 F.3d 1200, 1204 (D.C. Cir. 2013) (quoting Iron Arrow Honor Soc'y v. Heckler , 464 U.S. 67, 70, 104 S.Ct. 373, 78 L.Ed.2d 58 (1983) ). "A case is moot when ‘the challenged conduct ceases such that there is no reasonable expectation that the wrong will be repeated’ in circumstances where ‘it becomes impossible for the court to grant any effectual relief whatever to the prevailing party.’ " United States v. Philip Morris USA, Inc. , 566 F.3d 1095, 1135 (D.C. Cir. 2009) (quoting City of Erie v. Pap's A.M. , ...