Johnson v. Wright

• Decision Date: 24 June 2005
• Docket Number: Docket No. 04-3234.
• Parties: James JOHNSON, Plaintiff-Appellant, v. Lester WRIGHT, Assoc. Commissioner Health Services, Department of Correctional Services, Jointly, Severally and Individually, Respectively, Glen S. Goord, Department of Correctional Services, Jointly, Severally and Individually, Respectively, Carl J. Koenigsmann, Facility Health Services Director, Green Haven Correctional Facility, Jointly, Severally and Individually, Respectively, Great Meadow Correctional Facility, and George B. Duncan, Great Meadow Correctional Facility, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

412 F.3d 398

James JOHNSON, Plaintiff-Appellant, v. Lester WRIGHT, Assoc. Commissioner Health Services, Department of Correctional Services, Jointly, Severally and Individually, Respectively, Glen S. Goord, Department of Correctional Services, Jointly, Severally and Individually, Respectively, Carl J. Koenigsmann, Facility Health Services Director, Green Haven Correctional Facility, Jointly, Severally and Individually, Respectively, Great Meadow Correctional Facility, and George B. Duncan, Great Meadow Correctional Facility, Defendants-Appellees.

Docket No. 04-3234.

United States Court of Appeals, Second Circuit.

Argued: May 20, 2005.

Decided: June 24, 2005.

Catherine C. Montjar, Kornstein, Veisz, Wexler & Pollard LLP, New York, N.Y. (Susanna M. Buergel, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, NY, on the brief), for Plaintiff-Appellant.

Michelle Aronowitz, Assistant Solicitor General, (Melanie L. Oxhorn, Assistant Solicitor General, of counsel) for Eliot Spitzer, Attorney General of the State of New York, New York, NY, for Defendants-Appellees.

Before: KATZMANN, HALL, Circuit Judges. and MURTHA, District Judge.^*

KATZMANN, Circuit Judge.

New York State Department of Corrections ("DOCS") policy generally forbids the prescription of hepatitis C medication to any prisoner with evidence of active substance abuse within the preceding two years. Consistent with DOCS policy, the defendants in this case refused to prescribe plaintiff—who suffers from chronic hepatitis C—with a new regimen of medication because he had, on one occasion in the relevant time period, tested positive for marijuana use. Here, however, all of plaintiff's treating physicians, including prison physicians, believed that the medically appropriate course of treatment was to prescribe him the new regimen of hepatitis C medication, and they expressly and repeatedly recommended that DOCS approve a prescription for the medication notwithstanding the fact that DOCS policy suggested otherwise.

Because the defendants reflexively applied DOCS policy in the face of the unanimous, express, and repeated—but contrary —recommendations of plaintiff's treating physicians, including prison physicians, we believe a jury could reasonably find that the defendants here acted with deliberate indifference to the plaintiff's medical needs. Accordingly, we vacate the district court's grant of summary judgment to the defendants on that basis, and we remand the case for further proceedings consistent with this opinion.

I. BACKGROUND

A. Factual History

The pertinent facts—either undisputed or, where disputed, taken most favorably to the plaintiff—are as follows. The plaintiff, James Johnson, is an inmate in the custody of the New York State Department of Corrections ("DOCS") and is currently incarcerated at the Great Meadow Correctional Facility. From February 28, 1997 to November 9, 1999, Johnson was incarcerated at Green Haven Correctional Facility ("Green Haven").

In May 1997, following a liver biopsy, plaintiff learned that he suffers from chronic hepatitis C, a serious liver disease, and that his disease was in advanced Stage III with bridging fibrosis, approaching cirrhosis. At the time of his diagnosis, Johnson's treating physician at Green Haven was Tom Scales, M.D. Johnson also visited regularly with an outside gastroenterologist named "Dr. Antonelle."

In February 1998, Johnson began "Interferon therapy" as treatment for his hepatitis C, i.e., Johnson began receiving the drug alpha interferon at a dosage of 3 million units, three times per week. At first, Johnson responded quite positively to this therapeutic regimen: When Johnson began Interferon therapy in February 1998, he had a viral load count of 1.5 million units, but by June 1998, Johnson's viral load count had decreased to 943,396 units, and by October 1998, his viral load was classified as undetectable (less than 2000). However, Johnson's condition soon worsened. In December 1998, for example, Dr. Antonelle (Johnson's outside gastroenterologist) noted that Johnson's liver enzyme counts were increasing. Lab tests performed in January 1999 showed a further increase in Johnson's liver enzyme count and also revealed that Johnson's viral load had dramatically increased from previously undetectable levels to a viral load of over 500,000 units.

In light of these changes, on February 2, 1999, Dr. Antonelle recommended that Johnson commence "Rebetron therapy," that is, treatment with both the drug alpha interferon (given in Interferon therapy) and the drug Ribavirin. Similarly, on February 4, 1999, Dr. Tom Scales, Johnson's treating physician at Green Haven Correctional Facility, indicated that in light of plaintiff's January 1999 lab reports, Johnson was "to be started on Ribovarin [sic] as soon as approval can be obtained." Dr. Scales also noted that he "anticipate[d] a new set of" tests "to evaluate for any developing anemia."

In a report dated either May 19, 1999 or May 24, 1999 — the document contains conflicting dates — Dr. Antonelle reiterated his belief that Johnson should be given Rebetron therapy, and shortly thereafter, on May 24, 1999, a note was made in Johnson's file that a request for Ribavirin would be submitted to the central prison pharmacy. Pursuant to DOCS policies at the time, such a request was made to defendant Lester Wright, M.D., DOCS Deputy Commissioner and Chief Medical Officer, by defendant Carl Koenigsmann, M.D., the Health Service Director of Green Haven Correctional Facility. On June 1, 1999, however, Dr. Koenigsmann was informed by Rita Gavin that Dr. Wright "denied the request for Ribavaron [sic] due to drug use within the past year."

At this point, a word about plaintiff's "drug use" is in order. In May 1998 — roughly one year before the request to provide Johnson with Ribavirin was denied — Johnson tested positive for marijuana use following the administration of a urine toxicology screen, i.e. a urinalysis test. It is undisputed that this single, positive urinalysis test is the only evidence in the record on summary judgment indicating that plaintiff took drugs at any time after he was diagnosed with hepatitis C. It is also undisputed that internal Department of Corrections policy permits prison physicians to deny hepatitis C treatment, in certain circumstances, to prisoners who show "evidence of active substance abuse." To wit, on March 31, 1999, the Department of Corrections issued its initial Hepatitis C Primary Care Practice Guideline ("the Guideline"). The Guideline represents, as stated in the Introduction, "an approach to the current management of hepatitis C disease which is consistent with community standards of care and is appropriate in our corrections settings." The Guideline expressly notes, however, that "the treatment plans recommended in this document are not necessarily all inclusive" and that the Guideline "represents the current state of knowledge regarding treatment agents for the management of hepatitis C."

Under the Guideline, hepatitis C treatment (specifically Interferon therapy) is to be considered in accordance with various criteria, one of which is "10. No evidence of active substance abuse (drug and/or alcohol) during the past 2 years (check urine toxicology screen if drug use is suspected)." Moreover, a "Hepatitis C Treatment Referral Checklist" attached to the Guideline — a Checklist whose completion is, at least according to the Guideline, intended to "assist the clinician in evaluating the inmate for possible treatment" further provides, as one of its eleven exclusion criteria, "Active alcohol or other substance abuse within past two years." The Checklist then provides space for an inmate's primary care physician to verify (when recommending hepatitis C treatment) that the "inmate has met all the inclusion criteria and does not have any of the exclusion criteria (exceptions may be HIV or psychiatric disease)."

On August 17, 1999, after Dr. Antonelle had learned that the request for Rebetron therapy had been denied due to Johnson's drug use, Dr. Antonelle renewed his request to prescribe Ribavirin to Johnson, notwithstanding the fact that DOCS policy provided otherwise. Dr. Antonelle wrote:

Request for ribavirin was refused because of bad urine test for marijuana. Do not feel that this should preclude [prescription for] ribavirin.

Had initially responded to alpha interferon [but] relapsed [with] last viral load > 500,000.

Would again request approval for ribavirin [prescription]. Will [increase alpha interferon] to 5 M units ... in interim.

Repeat viral load in 2 mos.

On October 2, 1999, Dr. Antonelle yet again indicated in his notes that he "still feel[s Johnson] should be on ribavirin in spite of drug policy."

On November 9, 1999, Johnson was transferred from Green Haven to Great Meadow Correctional Facility and William Smith, M.D., became Johnson's treating physician there. On January 21, 2000, Dr. Smith recorded in his notes that Johnson had been denied Ribavirin and indicated his disapproval of this denial, noting that he would "call Dr. Wright to obtain approval for Ribavarin [sic]." As of March 10, 2000, however, Dr. Smith still had not received an "update" from Dr. Wright regarding "possible use of Ribavarin [sic]."

Johnson then took matters into his own hands. On June 15, 2000, Johnson filed an "Inmate Grievance Complaint" in which he requested that DOCS's drug use policy be retracted and that he be permitted to begin Rebetron therapy immediately. The next day, Johnson proceeded to contact Dr. Wright directly, writing a letter requesting that he begin such therapy. On July 10, 2000, in response to Johnson's grievance, P. Bundrick, R.N., N.A. prepared an investigation sheet indicating that "Mr. Johnson is correct," that Rebetron had been recommended, that "there were other mitigating factors to receiving approval for this therapy" and that further lab work needed to be conducted.

On July 25,...