Nunes v. Mass. Dep't of Corr.

• Decision Date: 12 September 2014
• Docket Number: No. 13–2346.,13–2346.
• Citation: 766 F.3d 136
• Parties: Richard NUNES; Carl Coe; John Doe; Peter Poe; Richard Roe, on behalf of themselves and others similarly situated, Plaintiffs, Appellants, v. MASSACHUSETTS DEPARTMENT OF CORRECTION; Thomas Groblewski; Mark Waitkevich, Defendants, Appellees, Umass Correctional Health; Leonard McGuire; Warren Ferguson; Judith Steinberg, Defendants.
• Court: U.S. Court of Appeals — First Circuit

766 F.3d 136

Richard NUNES; Carl Coe; John Doe; Peter Poe; Richard Roe, on behalf of themselves and others similarly situated, Plaintiffs, Appellants,

v.MASSACHUSETTS DEPARTMENT OF CORRECTION; Thomas Groblewski; Mark Waitkevich, Defendants, Appellees,Umass Correctional Health; Leonard McGuire; Warren Ferguson; Judith Steinberg, Defendants.

No. 13–2346.

United States Court of Appeals,First Circuit.

Sept. 12, 2014.

Joel H. Thompson, with whom Tatum A. Pritchard and Prisoners' Legal Services were on brief, for appellants.

Tory A. Weigand, with whom James A. Bello and Morrison Mahoney LLP were on brief, for appellee Thomas Groblewski.

Nancy Ankers White, Special Assistant Attorney General, and Sheryl F. Grant on brief for appellees Massachusetts Department of Corrections and Mark Waitkevich.

Before KAYATTA, BALDOCK,^* and SELYA, Circuit Judges.

KAYATTA, Circuit Judge.

Massachusetts prisons provide inmates with semi-monthly or monthly supplies of some medications, which the prisoners then store in their cells and take on their own. Other medications are dispensed in single doses to prisoners, to be ingested at the dispensing window. Five prisoners with HIV challenge the decision of prison officials to dispense HIV medication only in single doses at the dispensing window. The plaintiffs claim violations of the Eighth and Fourteenth Amendments to the United States Constitution, the Americans with Disabilities Act, and the Rehabilitation Act. We affirm the district court's grant of summary judgment against the plaintiffs on each of their claims.

I. Background

Because the district court granted summary judgment, we “describe the facts giving rise to this lawsuit in a light as favorable to [the plaintiffs] as the record will reasonably allow.” Travers v. Flight Servs. & Sys., Inc., 737 F.3d 144, 145 (1st Cir.2013).

The plaintiffs in this case are inmates in the Massachusetts state prison system who suffer from HIV. They sue, among others, the Massachusetts Department of Corrections, which administers the state's prisons. Because it makes no difference to our analysis, we refer to the department as if it were the sole defendant and the sole entity responsible for the state's acts at issue here.

This case arose when the department changed the manner by which inmates receive medication for HIV. Prior to the change, many inmates could receive their HIV medication through the “Keep on Person” program, which we will refer to as the “KOP program.” When receiving medication through the program, inmates pick up packages of medicine once or twice a month, then store the medicine in their cells and take it on their own initiative. [App. at 66.] In contrast, HIV medication is now available only through the “daily med line,” where inmates report for each dose to a dispensing window, then ingest the medication at the window while prison staff observe. [App. at 65.] Both the daily med line and the KOP program are common ways for inmates to receive medications in Massachusetts prisons, depending on what medication they are receiving and whether they satisfy various eligibility requirements.

A. The Department's Decision to Remove HIV Medication from the Program

The department first announced its decision to remove HIV medication from the program in August 2008 and implemented the change in February 2009. [App. at 77, 83–84.] The parties agree that the department's primary aim in initiating the change in dispensing practices for HIV medication was to save money. Medication for HIV is expensive, occupying more than 40 percent of the department's pharmacy budget, although fewer than 3 percent of the prisoners have HIV. [App. at 266.] Faced with budget cuts in 2008, the department examined its expenses and determined that some of the cost of HIV medications arose from “wasted” medication: medication that was dispensed to an inmate through the KOP program, but not used by that inmate while in prison. [App. at 269–271.] Such medication cannot be reused because it has left the hands of licensed medical staff. [App. at 270.] Medication scheduled to be dispensed through the daily med line, however, can be reused if not picked up by the patient. [App. at 270–71.] The department therefore concluded that it could reduce waste and save money by distributing all HIV medication through the daily med line. [App. at 271.]

The parties agree that there are several sources of wasted HIV medication, but disagree on their relative importance, and on whether the department chose the best approach to mitigate waste. Waste can arise when a prisoner simply chooses not to take medication that he has received through the KOP program. [App. at 73.] It can also arise when an inmate is given too much medication when he picks up his refills. [App. at 275–76.] In addition, waste can result when an inmate is released from prison, is transferred within the system, dies, or has his treatment regimen changed.¹ [App. at 73, 274–76.]

When the department announced the change in August 2008, it received complaints from medical staffers concerned about the effect on inmates with HIV. Two doctors who treated inmates with HIV, David Stone and James Quirk, objected to the change and have continued to oppose it. Their chief concern has been that some inmates will be unwilling or unable to take their medication consistently due to the time and effort required to wait at the dispensing window, which some inmates would have to do more than once per day. [App. at 281–83, 97.] The parties agree that it is very important for HIV patients to be “adherent” (or “compliant”), meaning that they take their medication consistently as prescribed. When a patient misses doses, the virus can develop resistance to the medication, for which there will be few alternatives. [See, e.g., App. at 255.] Stone and Quirk also worried that the change would exacerbate the side effects of HIV medication, as inmates would have less flexibility in timing their doses to coincide with meals or sleep. [See, e.g., App. at 1408–09.]

As a result of these complaints, the department initially put the change on hold to study its potential impacts. The department then reviewed data indicating that 93 percent of HIV-positive inmates already reported to the daily med line for other medications. The department also considered data indicating that 44 percent of inmates with HIV requested refills of their HIV medication late or not at all under the KOP program. Given the procedural posture of the case, we do not assume that this particular data was accurate. Rather, because the plaintiffs do not cite any evidence to the contrary, we assume that the department believed the data to be accurate as a product of a sincere effort to gauge the effects of the policy change. After reviewing this information, the department decided to adopt the change.

B. The Effects of the Policy Change

Since the new policy was implemented, the department has monitored its effects. It has collected data showing that patient outcomes have held steady or improved since the change. The plaintiffs do not dispute the raw numbers collected by the department, though the parties differ on their significance.

A common measure of health for HIV patients is “viral load.” Doctors aim to achieve an “undetectable viral load,” meaning that the patient has such a low level of HIV in his blood that standard tests cannot detect it. In the last reporting period before the policy change, 83 percent of inmates with HIV had undetectable viral loads. That rate rose to 87 percent immediately after the change and has been documented most recently at 95 percent. While accepting this data as accurate, the plaintiffs contend that it cannot be used to establish that the policy has actually improved health outcomes because the improvement in the first six months of the new policy was not large enough to be statistically significant and the eventual larger improvement may be the product of other factors. [App. at 365–66.]

The department has also monitored late refills as a measure of nonadherence.² Late refills have remained more or less steady since before the policy change, starting at 30 percent in December 2008, and fluctuating between 25 percent and 35 percent (with one outlier month at 39 percent) after the change. [App. at 2020, 2036.] The plaintiffs accept these figures as accurate, and admit that late refills are a “proxy” that “potentially reflect nonadherence.” [App. at 306–07.] They nevertheless argue that current adherence falls below acceptable standards, without offering any evidence that returning HIV medication to the KOP program would increase adherence.³ [App. at 364–65.]

The plaintiffs offer no alternative quantitative metric for assessing the health of inmates with HIV, for determining their adherence, or for otherwise gauging the effects of the policy change. In sum, the undisputed data that exists provides credible support for the department to conclude that the dispensing policy contributed to a material improvement in the health of HIV prisoners as a group, and provides no basis to claim that the change worsened the health of that group of prisoners. It is also undisputed that the change led to significant cost savings. [App. at 293, 317–319.]

C. The Plaintiffs' Situations

The plaintiffs present relatively little evidence regarding their own situations, focusing instead on the broader population of prisoners with HIV. No medical professional or expert testified specifically about any plaintiff's situation. In describing the consequences of the policy change for the plaintiffs, we can therefore refer only to the plaintiffs' own testimony, along with written complaints they submitted to the prison.

Plaintiff Richard Nunes has not taken any HIV medication since the change, contending that he cannot wait on the daily med line. He cites a painful lower back condition that makes it difficult for him to move or stand, chronic diarrhea, and other...