BROWN,CASE-CLOSED,PROTECTIVE-ORDER
U.S. District Court Middle District of Tennessee (Nashville) CIVIL DOCKET FOR CASE #: 3:16-cv-01954

Atkins et al v. Parker et al Assigned to: Chief Judge Waverly D. Crenshaw, Jr Referred to: Magistrate Judge Joe Brown Case in other court: 6CCA, 19-06243 Cause: 42:1983 Prisoner Civil Rights

Date Filed: 07/25/2016 Date Terminated: 09/30/2019 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Plaintiff
Charles Graham TERMINATED: 07/05/2019 also known as Charles Stevenson TERMINATED: 07/05/2019

represented by Anthony A. Orlandi Branstetter, Stranch & Jennings, PLLC The Freedom Center 223 Rosa L. Parks Avenue Suite 200 Nashville, TN 37203 (615) 254-8801 Fax: (615) 255-5419 Email: aorlandi@bsjfirm.com ATTORNEY TO BE NOTICED

Callie Kate Barker Jennings Branstetter, Stranch & Jennings, PLLC The Freedom Center 223 Rosa L. Parks Avenue Suite 200 Nashville, TN 37203 (615) 254-8801 Fax: (615) 255-5419 Email: calliej@bsjfirm.com ATTORNEY TO BE NOTICED

Elizabeth S. Logsdon Disability Rights Tennessee 2 International Plaza Suite 825 Nashville, TN 37217 (615) 298-1080

Fax: (615) 298-2046 Email: lizl@disabilityrightstn.org TERMINATED: 07/27/2018
James Gerard Stranch , III Branstetter, Stranch & Jennings, PLLC The Freedom Center 223 Rosa L. Parks Avenue Suite 200 Nashville, TN 37203 (615) 254-8801 Email: jims@bsjfirm.com ATTORNEY TO BE NOTICED
Karla M. Campbell Branstetter, Stranch & Jennings, PLLC The Freedom Center 223 Rosa L. Parks Avenue Suite 200 Nashville, TN 37203 (615) 254-8801 Fax: (615) 255-5419 Email: karlac@bsjfirm.com ATTORNEY TO BE NOTICED
Sherry A. Wilds Disability Rights Tennesse 2 International Plaza Suite 825 Nashville, TN 37217 (615) 298-1080 Fax: (615) 298-2046 Email: sherryw@disabilityrightstn.org ATTORNEY TO BE NOTICED
Stacie L. Price Disability Rights Tennesse 2 International Plaza Suite 825 Nashville, TN 37217 615-732-6982 Fax: 615-298-2046 Email:

Plaintiff Russell L. Davis on behalf of themselves and all others similarly situated TERMINATED: 07/05/2019
Plaintiff

staciep@disabilityrightstn.org ATTORNEY TO BE NOTICED
Thomas H. Castelli ACLU (Nashville Office) P O Box 120160 Nashville, TN 37212 (615) 320-7142 Ext. 303 Fax: (615) 691-7219 Email: tcastelli@aclu-tn.org ATTORNEY TO BE NOTICED
represented by Anthony A. Orlandi (See above for address) ATTORNEY TO BE NOTICED
Callie Kate Barker Jennings (See above for address) ATTORNEY TO BE NOTICED
Elizabeth S. Logsdon (See above for address) TERMINATED: 07/27/2018
James Gerard Stranch , III (See above for address) ATTORNEY TO BE NOTICED
Karla M. Campbell (See above for address) ATTORNEY TO BE NOTICED
Sherry A. Wilds (See above for address) ATTORNEY TO BE NOTICED
Stacie L. Price (See above for address) ATTORNEY TO BE NOTICED
Thomas H. Castelli (See above for address) ATTORNEY TO BE NOTICED

Calvin Landers TERMINATED: 08/24/2017
Plaintiff Christopher Gooch

represented by Calvin Landers #417289 NWCX 960 State Route 212 Tiptonville, TN 38079 PRO SE
represented by Anthony A. Orlandi (See above for address) ATTORNEY TO BE NOTICED
Callie Kate Barker Jennings (See above for address) ATTORNEY TO BE NOTICED
James Gerard Stranch , III (See above for address) ATTORNEY TO BE NOTICED
Karla M. Campbell (See above for address) ATTORNEY TO BE NOTICED
Michael J. Wall Branstetter, Stranch & Jennings, PLLC 223 Rosa L. Parks Avenue Suite 200 Nashville, TN 37203 (615) 254-8801 Fax: (615) 255-5419 Email: michaelw@bsjfirm.com ATTORNEY TO BE NOTICED
Sherry A. Wilds (See above for address) ATTORNEY TO BE NOTICED
Stacie L. Price (See above for address) ATTORNEY TO BE NOTICED
Thomas H. Castelli (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Gregory Atkins
Plaintiff Kevin Proffitt

represented by Anthony A. Orlandi (See above for address) ATTORNEY TO BE NOTICED
Callie Kate Barker Jennings (See above for address) ATTORNEY TO BE NOTICED
James Gerard Stranch , III (See above for address) ATTORNEY TO BE NOTICED
Karla M. Campbell (See above for address) ATTORNEY TO BE NOTICED
Michael J. Wall (See above for address) ATTORNEY TO BE NOTICED
Sherry A. Wilds (See above for address) ATTORNEY TO BE NOTICED
Stacie L. Price (See above for address) ATTORNEY TO BE NOTICED
Thomas H. Castelli (See above for address) ATTORNEY TO BE NOTICED
represented by Anthony A. Orlandi (See above for address) ATTORNEY TO BE NOTICED
Callie Kate Barker Jennings (See above for address) ATTORNEY TO BE NOTICED
James Gerard Stranch , III (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Thomas Rollins, Jr.

Karla M. Campbell (See above for address) ATTORNEY TO BE NOTICED
Michael J. Wall (See above for address) ATTORNEY TO BE NOTICED
Sherry A. Wilds (See above for address) ATTORNEY TO BE NOTICED
Stacie L. Price (See above for address) ATTORNEY TO BE NOTICED
Thomas H. Castelli (See above for address) ATTORNEY TO BE NOTICED
represented by Anthony A. Orlandi (See above for address) ATTORNEY TO BE NOTICED
Callie Kate Barker Jennings (See above for address) ATTORNEY TO BE NOTICED
James Gerard Stranch , III (See above for address) ATTORNEY TO BE NOTICED
Karla M. Campbell (See above for address) ATTORNEY TO BE NOTICED
Michael J. Wall (See above for address) ATTORNEY TO BE NOTICED
Sherry A. Wilds (See above for address) ATTORNEY TO BE NOTICED

V.
Defendant
Tony C. Parker Commissioner, Tennessee Department of Corrections, in his official capacity

Stacie L. Price (See above for address) ATTORNEY TO BE NOTICED
Thomas H. Castelli (See above for address) ATTORNEY TO BE NOTICED
represented by James R. Newsom , III Harris, Shelton, Hanover & Walsh, PLLC One Commerce Square Suite 2700 Memphis, TN 38103-2555 (901) 525-1455 Email: jim.newsom@ag.tn.gov ATTORNEY TO BE NOTICED
Madeline B. Brough Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202-0207 (615) 523-2551 Email: madeline.brough@ag.tn.gov TERMINATED: 03/30/2017
Matthew R. Dowty Office of the Tennessee Attorney General and Reporter 40 South Main Street, Suite 1014 Memphis, TN 38103 (901) 543-9039 Fax: (901) 543-9025 Email: matthew.dowty@ag.tn.gov ATTORNEY TO BE NOTICED
Pamela S. Lorch Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202-0207 (615) 741-3491 Email: pam.lorch@ag.tn.gov

Defendant Marina Cadreche Dr., Assistant Commissioner of Rehabilitative Services, Tennessee Department of Corrections, in her official capacity TERMINATED: 07/05/2019
Defendant Kenneth Williams Dr., Medical Director, Tennessee Department of Corrections, in his official capacity

ATTORNEY TO BE NOTICED
Steven Ashley Hart Tennessee Attorney General's Office P O Box 20207 Nashville, TN 37202 (615) 741-3491 Email: steve.hart@ag.tn.gov ATTORNEY TO BE NOTICED
represented by James R. Newsom , III (See above for address) ATTORNEY TO BE NOTICED
Madeline B. Brough (See above for address) TERMINATED: 03/30/2017
Matthew R. Dowty (See above for address) ATTORNEY TO BE NOTICED
Pamela S. Lorch (See above for address) ATTORNEY TO BE NOTICED
Steven Ashley Hart (See above for address) ATTORNEY TO BE NOTICED
represented by James R. Newsom , III (See above for address) ATTORNEY TO BE NOTICED
Madeline B. Brough (See above for address) TERMINATED: 03/30/2017
Matthew R. Dowty (See above for address) ATTORNEY TO BE NOTICED
Pamela S. Lorch

V. Intervenor Plaintiff Omowale Ashanti Shabazz TERMINATED: 01/29/2018
Interested Party William D. Hamby, Jr. TERMINATED: 11/06/2018
Interested Party Gary William Holt #105031 WCFA P. O. Box 679 Whiteville, TN 38075 TERMINATED: 11/06/2018 Interested Party Robert L. Hall TERMINATED: 11/06/2018
Interested Party

(See above for address) ATTORNEY TO BE NOTICED Steven Ashley Hart (See above for address) ATTORNEY TO BE NOTICED
represented by Omowale Ashanti Shabazz #244104 NWCX 960 State Route 212 Tiptonville, TN 38079 PRO SE
represented by William D. Hamby, Jr. #135146 MCCX P.O. Box 2000 Wartburg, TN 37887 PRO SE
represented by Robert L. Hall #115346 N.W.C.X. 960 State Route 212 Tiptonville, TN 38079 PRO SE

Timothy Barbee TERMINATED: 11/06/2018
V. Mediator William E. Young

represented by Timothy Barbee #143599 NWCX 960 State Rt. 212 Tiptonville, TN 38079 PRO SE
represented by William Edwin Young Harris / Shelton 414 Union Street Suite 1007 Nashville, TN 37219 (615) 377-2526 Email: byoung@harrisshelton.com ATTORNEY TO BE NOTICED

Date Filed 07/25/201 6
07/26/201 6
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# Docket Text

COMPLAINT filed by Charles Graham & Russell L. Davis against

1

Tony C. Parker, et al. (Filing fee $400, Receipt number 0650-

2249245). (Attachments: # 1 Exhibit A-Dept of Corrections protocol

re testing/treating Hepatitus C dated 1/1/16, # 2 Exhibit B-Schofield 3-

9-16 letter to TN House Finance, Ways and Means Committee,

# 3 Exhibit C-TN Dept of Corrections Hepatitus C Management

Guidance dated 5-20-16, # 4 Attachment Civil Cover Sheet)(af)

(Entered: 07/25/2016)

2 Summons issued as to Marina Cadreche, Tony C. Parker, Kenneth Williams. Summons fwd to Intake Dept. for pick up by counsel. (hb) (Entered: 07/26/2016)

3 NOTICE/INFORMATION regarding Consent of the Parties to the Magistrate Judge. (hb) (Entered: 07/26/2016)

4 NOTICE of Initial Case Management Conference set for 9/22/2016 at 10:30 AM in Courtroom 661 before Magistrate Judge E. Clifton Knowles. (hb) (Entered: 07/26/2016)

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TN BAR STATUS for Attys. Karla M. Campbell, Thomas H. Castelli, and Elizabeth S. Logsdon verified as active. (hb) (Entered: 07/26/2016)
5 ORDER OF RECUSAL. Magistrate Judge E. Clifton Knowles recused. Case reassigned to Magistrate Judge Joe Brown for all further proceedings. Signed by Magistrate Judge E. Clifton Knowles on 7/26/2016. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 07/26/2016)
6 NOTICE of Initial Case Management Conference RESET for 9/22/2016 at 10:30 AM in Courtroom 783 before Magistrate Judge Joe Brown. (hb) (Entered: 07/28/2016)
7 Letter from William J. Ferris, Inmate at Trousdale Turner Correctional Facility, Registration Inmate #348288, requesting copy of complaint. (af) (Entered: 08/03/2016)
8 ORDER: This case is REFERRED to the Magistrate Judge for customized case management in accordance with Local Rule 16.01. Signed by District Judge Waverly D. Crenshaw, Jr on 8/3/2016. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 08/03/2016)
9 SUMMONS returned executed by Russell L. Davis, Charles Graham. Marina Cadreche served on 8/22/2016; Tony C. Parker served on 8/22/2016; Kenneth Williams served on 8/22/2016. (Campbell, Karla) (Entered: 08/22/2016)
10 MOTION to Continue by Marina Cadreche, Tony C. Parker, Kenneth Williams. (Lorch, Pamela) (Entered: 08/31/2016)
11 NOTICE of Appearance by Madeline B. Brough on behalf of Marina Cadreche, Tony C. Parker, Kenneth Williams (Brough, Madeline) (Entered: 09/01/2016)
12 ORDER: Pending in this matter is Defendants' motion to continue the initial case management conference (Docket Entry 10 ) presently set for 10:30 a.m. on Thursday, September 22, 2016. The motion is GRANTED, and the Initial Case Management Conference is reset for 10:00 a.m. on Thursday, October 27, 2016. It is so ORDERED. Signed by Magistrate Judge Joe Brown on 9/1/2016. (hb) (Entered: 09/01/2016)

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13 ANSWER to 1 Complaint, by Marina Cadreche, Tony C. Parker, Kenneth Williams.(Lorch, Pamela) (Entered: 09/12/2016)
14 MOTION to Certify Class by Russell L. Davis, Charles Graham. (Attachments: # 1 Attachment Proposed Order)(Campbell, Karla) (Entered: 09/16/2016)
15 MEMORANDUM in Support of 14 MOTION to Certify Class filed by Russell L. Davis, Charles Graham . (Campbell, Karla) (Entered: 09/16/2016)
16 DECLARATION of Thomas H. Castelli filed by Russell L. Davis, Charles Graham re: 14 MOTION to Certify Class . (Campbell, Karla) (Entered: 09/16/2016)
17 MOTION for Extension of Time to File Response/Reply as to 14 MOTION to Certify Class by Marina Cadreche, Tony C. Parker, Kenneth Williams. (Lorch, Pamela) (Entered: 09/28/2016)
18 ORDER The defendant has requested an extension of time to respond (Docket Entry 17). Counsel should comply with local rules and in the case caption include the names of the judges assigned to the case and if there is a jury demand. On motions for extension of time counsel should state if the opposing party(s) have been consulted and whether they agree or not. The Plaintiff will advise the court if they oppose this motion by October 3, 2017. Absent objection by that date the motion will be granted. (Brown, Joe) (Entered: 09/28/2016)
19 ORDER granting 17 Motion for Extension of Time to File Response to 14 MOTION to Certify Class . Signed by Magistrate Judge Joe Brown on 10/3/16. (DOCKET TEXT SUMMARY ONLYATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 10/04/2016)
20 RESPONSE in Opposition re 14 MOTION to Certify Class filed by Marina Cadreche, Tony C. Parker, Kenneth Williams. (Attachments: # 1 Attachment Affidavit of Dr. Williams)(Lorch, Pamela) (Entered: 10/11/2016)
21 PROPOSED CASE MANAGEMENT ORDER filed by Russell L. Davis, Charles Graham. (Campbell, Karla) (Entered: 10/24/2016)
Minute Entry for proceedings held before Magistrate Judge Joe Brown: Case Management Conference held on 10/27/2016. ICMO to enter. (Digital Audio: 27oct2016) (rd) (Entered: 10/27/2016)

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22 CASE MANAGEMENT ORDER: Amended Pleadings due by 4/10/2017. Discovery due by 7/21/2017. Dispositive Motions due by 12/29/2017. Telephone Conference set for 2/23/2017 10:00 AM before Magistrate Judge Joe Brown. Signed by Magistrate Judge Joe Brown on 10/28/2016. (DOCKET TEXT SUMMARY ONLYATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 10/28/2016)
23 ORDER: Bench Trial set for 6/19/2018 09:00 AM in Courtroom A859 before District Judge Waverly D. Crenshaw Jr. Pretrial Conference set for 6/4/2018 10:30 AM in Courtroom A859 before District Judge Waverly D. Crenshaw Jr. Exhibit List due by 5/25/2018. Witness List due by 5/25/2018. Joint Proposed Pretrial Order due by 5/25/2018. Signed by District Judge Waverly D. Crenshaw, Jr on 11/4/2016. (DOCKET TEXT SUMMARY ONLYATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 11/04/2016)
24 REPLY to Response to Motion re 14 MOTION to Certify Class filed by Russell L. Davis, Charles Graham. (Attachments: # 1 Exhibit Declaration of Dr. Michael S. Saag, M.D., # 2 Attachment Johannes v. Washington, 2015 WL 5634446 (E.D. Mich.), # 3 Attachment Turner v. Grant Cty. Det. Ctr., 2008 WL 821895 (E.D. Ky), # 4 Attachment Dowdy-El v. Caruso, 2012 WL 6642793 (E.D. Mich.), # 5 Attachment Dowdy-El v. Caruso, 2012 WL 6642763 (E.D. Mich.), # 6 Attachment Flynn v. Doyle, 2007 WL 805788 (E.D. Wis.))(Castelli, Thomas) (Entered: 11/30/2016)
25 Letter to the Court requesting copy of docket sheet from Michael B. Lester. Docket sheet mailed to Mr. Lester. (hb) (Entered: 12/20/2016)
26 MOTION for Extension of Time to Complete Discovery by Marina Cadreche, Tony C. Parker, Kenneth Williams. (Lorch, Pamela) (Entered: 01/31/2017)
27 ORDER granting 26 Motion for Extension of Time to Complete Discovery. Signed by Magistrate Judge Joe Brown on 1/31/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 01/31/2017)
Minute Entry for proceedings held before Magistrate Judge Joe Brown: Telephone Conference held on 2/23/2017. Order to enter. (rd) (Entered: 02/23/2017)
28 ORDER: A telephone conference was held with the parties in this matter on February 23, 2017. The parties have been discussing ADR

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and the possibility of resolving this case. They have advised that in order to undertake complete resolution of this case they need to know whether this matter will be a class action or not. A motion to certify the class (Docket Entry 14) is presently pending. Signed by Magistrate Judge Joe Brown on 2/27/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(eh) (Entered: 02/28/2017)
29 Letter requesting copy of docket sheet from Mark Owen White. Copy of docket sheet mailed. (hb) (Entered: 03/21/2017)
30 Letter from Michael B. Lester requesting copy of docket sheet. Copy of docket sheet mailed. (hb) (Entered: 04/04/2017)
31 MOTION for Leave to Extension of time to file motion to decertify class by Marina Cadreche, Tony C. Parker, Kenneth Williams. (Lorch, Pamela) (Entered: 04/28/2017)
32 MEMORANDUM signed by Chief Judge Waverly D. Crenshaw, Jr on 5/4/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 05/04/2017)
33 ORDER: Pending before the Court is Plaintiffs' Motion for Class Certification (Doc. No. 14 ). For the reasons stated in the accompanying Memorandum, Plaintiffs' Motion is GRANTED. Signed by Chief Judge Waverly D. Crenshaw, Jr on 5/4/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 05/04/2017)
34 ORDER: Presently pending is the Defendants' motion for additional time to file a motion to decertify the class (Docket Entry 31 ). The motion is GRANTED. Plaintiff filed a motion to certify the class (Docket Entry 14) on September 16, 2016. That motion is fully briefed, but has not yet been decided by the District Judge. The scheduling order (Docket Entry 22 ) provided in paragraph G that the Defendants' motion to decertify the class should be filed on or before April 28, 2017. In the event a class is certified, the Defendants may have 60 days after such an order to move to decertify the class, or until December 29, 2017, whichever is earlier. It is so ORDERED. Signed by Magistrate Judge Joe Brown on 5/4/2017. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 05/04/2017)
35 Joint MOTION for Extension of Time to Complete Discovery and extend scheduling order deadlines and trial date by Marina Cadreche,

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Tony C. Parker, Kenneth Williams. (Lorch, Pamela) (Entered: 06/09/2017)
36 ORDER granting 35 Motion for Extension of Time to Complete Discovery. The parties have stated they are discussing ADR. They are encouraged to continue those efforts and to request assistance from the court if they belief it would be of any assistance. DISCOVERY: The parties shall complete all written discovery and depositions of all fact witnesses on or before January 22, 2018. DISCLOSURE OF EXPERTS: Plaintiffs shall identify and disclose all expert witnesses and expert reports on or before February 19, 2018. The defendants shall identify and disclose all expert witnesses and reports on or before March 19, 2018. Plaintiffs shall identify and disclose all rebuttal expert witnesses and rebuttal reports on or before April 6, 2018. DEPOSITIONS OF EXPERT WITNESSES: All experts shall be deposed by no later than April 27, 2018. DISPOSITIVE MOTIONS: Dispositive motions shall be filed by no later than June 29, 2018. Responses will be due 28 days after any such motions and replies limited to 10 pages will be due 14 days after responses. TRIAL DATE: The trial and final pretrial dates (Socket Entry 23) are cancelled and the Magistrate Judges recommends a new trial date be reset on or after 4 December 2018. (JBB) Modified on 6/16/2017 (dt). (Entered: 06/15/2017)
37 NOTICE of Appearance by Steven Ashley Hart on behalf of All Defendants (Hart, Steven) (Entered: 06/19/2017)
38 NOTICE of Appearance by James R. Newsom, III on behalf of Marina Cadreche, Tony C. Parker, Kenneth Williams (Newsom, James) (Entered: 06/20/2017)
TN State Bar status verified as active for James R. Newsom, III. (dt) (Entered: 06/21/2017)
TN State Bar status verified as active for Steven Ashley Hart. (dt) (Entered: 06/21/2017)
39 **VACATED PER ORDER 137 ** ORDER: Bench Trial set for 12/4/2018 at 9:00 AM in Courtroom A859 before Chief Judge Waverly D. Crenshaw Jr. Pretrial Conference set for 11/19/2018 at 10:00 AM in Courtroom A859 before Chief Judge Waverly D. Crenshaw Jr. Signed by Chief Judge Waverly D. Crenshaw, Jr on 6/28/17. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) Modified on 11/1/2018 (dt). (Entered: 06/29/2017)

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40 MOTION TO BE INCLUDED IN CLASS ACTION LAWSUIT by Calvin Landers. (am) (Entered: 07/12/2017)
41 ORDER of USCA: The defendants' petition for leave to appeal is DENIED. (No Mandate to Issue.)(dt) (Entered: 08/10/2017)
42 ORDER: Motion from Calvin Landers to be included in this class action lawsuit 40 is Denied at this point as moot. The Clerk will include with the mailing of this order a copy of Judge Crenshaw's order 33 . Signed by Magistrate Judge Joe Brown on 8/24/17. (xc:Pro se party by regular mail w/ copy of Order 33 .) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 08/24/2017)
43 MOTION to Intervene by Omowale Ashanti Shabazz. (Attachments: # 1 Attachment - Proposed Verified Complaint)(dt) (Entered: 01/26/2018)
44 ORDER: The Plaintiff Omowale Ashanti Shabazz has filed a motion to intervene (Docket Entry 43 ). He has attached to his motion a complete complaint. This motion is DENIED at this point as moot. Signed by Magistrate Judge Joe Brown on 1/29/18. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLYATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 01/29/2018)
45 MOTION to Alter or Amend Judgment by Omowale Ashanti Shabazz. (dt) (Entered: 02/06/2018)
46 MOTION to Compel Discovery Responses by Russell L. Davis, Charles Graham. (Attachments: # 1 Exhibit First Requests for Production/Responses, # 2 Exhibit Second Requests for Production/Responses, # 3 Exhibit Williams Interrogatories/Responses, # 4 Exhibit Parker Interrogatories/Responses, # 5 Exhibit Third Requests for Production/Responses, # 6 Exhibit Williams Deposition Excerpts, # 7 Exhibit First Meet and Confer Ltr, # 8 Exhibit Second Meet and Confer Ltr, # 9 Exhibit Johnson Deposition Excerpts, # 10
Exhibit Wiley Deposition Excerpts)(Campbell, Karla) (Entered: 02/06/2018)
47 MEMORANDUM in Support of 46 MOTION to Compel Discovery Responses filed by Russell L. Davis, Charles Graham . (Campbell, Karla) (Entered: 02/06/2018)

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48 ORDER: Omowale Ashanti Shabazz (Plaintiff) had previously filed a motion to intervene, which was denied as moot (Docket Entry 43). He has now filed a motion to alter or amend judgment (Docket Entry 45). If Plaintiff wishes to appeal the Magistrate Judge's order finding his motion moot he should follow the procedures set out in Federal Rule of Civil Procedure 72 and Local Rule 72.02 or 72.03. The motion, to the extent he has intended to file this as a motion to reconsider, is DENIED. Chief Judge Crenshaw has previously defined the class in this case (Docket Entry 33). The Clerk will send the Plaintiff a copy of that order. Signed by Magistrate Judge Joe Brown on 2/7/18. (xc:Pro se party by regular mail w/ Order DE#33) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) Modified on 2/8/2018 (dt). (Entered: 02/07/2018)
49 NOTICE of Appearance by Callie Kate Barker Jennings on behalf of Russell L. Davis, Charles Graham (Jennings, Callie) (Entered: 02/07/2018)
50 Joint MOTION to Amend Scheduling Order re: 36 Order by Russell L. Davis, Charles Graham. (Attachments: # 1 Attachment proposed Order)(Campbell, Karla) Modified on 2/8/2018 (dt). (Entered: 02/07/2018)
51 ORDER: The Motion to Compel 46 is therefore DENIED, pending a telephone call with the Magistrate Judge in which the parties will set out the specific requests in question, the responses, and the Plaintiffs' statements as to why the responses are inadequate. Signed by Magistrate Judge Joe Brown on 2/8/18. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 02/08/2018)
52 ORDER: The parties have filed a joint motion to amend the scheduling order (Docket Entry 50 ). Since at this point the motion does not affect the bench trial set for December 4, 2018 (Docket Entry 39 ) the motion is GRANTED. Signed by Magistrate Judge Joe Brown on 2/8/18. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 02/08/2018)
TN State Bar status verified as active for Callie Kate Barker Jennings. (dt) (Entered: 02/08/2018)
53 Letter from Michael Vaughan requesting docket sheet. (Docket sheet sent to Mr. Vaughan by regular mail.) (dt) (Entered: 02/13/2018)

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54 Joint MOTION for Protective Order (s) by Russell L. Davis, Charles Graham. (Attachments: # 1 Attachment proposed Order, # 2 Attachment proposed Order)(Campbell, Karla) (Entered: 03/09/2018)
55 Letter from Calvin Landers. (Docket Sheet sent to Mr. Landers by regular mail.) (dt) (Entered: 03/13/2018)
56 PROTECTIVE ORDER Signed by Magistrate Judge Joe Brown on 3/14/18. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 03/14/2018)
57 HIPPAA QUALIFIED PROTECTIVE ORDER Signed by Magistrate Judge Joe Brown on 3/14/18. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 03/14/2018)
58 ORDER: Telephone Conference set for 5/2/2018 at 3:00 PM before Magistrate Judge Joe Brown. Signed by Magistrate Judge Joe Brown on 5/1/18. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 05/01/2018)
Minute Entry for proceedings held before Magistrate Judge Joe Brown: Telephone Conference held on 5/2/2018. Order to enter. (Time in Court: 30 minutes) (rd) (Entered: 05/02/2018)
59 ORDER: A telephone conference was held with the parties on May 2, 2018, to discuss some discovery issues. As an initial matter, the times for taking expert depositions is extended until May 31, 2018. This extension will not affect subsequent deadlines. Signed by Magistrate Judge Joe Brown on 5/7/18. (DOCKET TEXT SUMMARY ONLYATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 05/07/2018)
60 MOTION to Amend My Section of Class Action Suit by William D. Hamby, Jr. (dt) (Entered: 06/01/2018)
61 ORDER denying 60 Motion to Amend/Correct complaint. The plaintiff to the extent he is a member of the class may not file pleadings to modify the complaint as the individual plaintiff Graham and the class are represented by attorneys. Plaintiff may represent himself is a case where he is an individual plaintiff. If a proposed resolution is reached in the case he may file objections if he is a member of the class. If he wishes to sue individuallly he will need to

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sue in a separate case and opt out of the class. Any thing he files with the court must leave a one inch margin on all sides. (JBB) (xc: Pro se party by regular mail.) Modified on 6/4/2018 (dt). (Entered: 06/02/2018)

62 MOTION to Exclude Opinions and Testimony by Russell L. Davis, Charles Graham. (Campbell, Karla) (Entered: 06/15/2018)

63 MEMORANDUM in Support of 62 MOTION to Exclude Opinions and Testimony filed by Russell L. Davis, Charles Graham . (Attachments: # 1 Attachment deposition transcript excerpts)(Campbell, Karla) (Entered: 06/15/2018)

64 Letter from William Hamby, Jr. re: medical issues. (dt) Modified on 6/25/2018 (dt). (Entered: 06/18/2018)

65 MOTION to Amend 1 (Entered: 06/18/2018)

Complaint, by William D. Hamby, Jr. (dt)

66 ORDER denying 65 Motion to Amend complaint. For the reasons previously stated in the courts order (Docket Entry 61) the plaintiff may not file pleadings on his own while he is a member of a class action. If he wants to sue on his own then he needs to file a separate lawsuit. Plaintiff needs to leave a one inch margin on anything he files with the court. This is critical at the bottom as the courts filing system prints information in the bottom inch and anything the plaintiff writes there will be overprinted and may not be readable. Counsel for the class should consider if any action should be taken in the case in light of the plaintiffs letter about his medical condition. (JBB) Modified on 6/18/2018 (dt). (Entered: 06/18/2018)

67 DECLARATION of Kenneth L. Williams, M.D., Ph.D. filed by Marina Cadreche, Tony C. Parker, Kenneth Williams. (Lorch, Pamela) (Entered: 06/25/2018)

68 MOTION for Sanctions Under Rule 37(B)(2) by Russell L. Davis, Charles Graham. (Campbell, Karla) (Entered: 06/26/2018)

69 MEMORANDUM in Support of 68 MOTION for Sanctions Under Rule 37(B)(2) filed by Russell L. Davis, Charles Graham . (Attachments: # 1 Exhibit A - minutes, # 2 Exhibit B declaration)(Campbell, Karla) (Entered: 06/26/2018)

70 ORDER: In order to get a handle on whether any sanctions are appropriate and if so what, given the short deadline for dispositive motions, a hearing is set in this matter in Courtroom 783, on Monday,

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July 2, 2018, at 1:30 p.m. Given the nebulous affidavit of Dr. Williams, Dr. Williams should attend or if he is unavailable someone in his place who can specifically testify about when they met and whether minutes for the meetings have been produced or cannot be produced. Signed by Magistrate Judge Joe Brown on 6/28/18. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLYATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 06/28/2018)
71 NOTICE of Appearance by Anthony A. Orlandi on behalf of Russell L. Davis, Charles Graham (Orlandi, Anthony) (Entered: 06/29/2018)
72 RESPONSE in Opposition re 62 MOTION to Exclude Opinions and Testimony filed by Marina Cadreche, Tony C. Parker, Kenneth Williams. (Attachments: # 1 Exhibit Exhibit A Gerrity Report, # 2 Attachment Gerrity Report Exhibit A, # 3 Attachment Gerrity Report Exhibit B Metavir Score and Clinical Outcomes, # 4 Attachment Gerrity Report Exhibit C Treating at F2 vs F3, # 5 Attachment Gerrity Report Exhibit D Non-Invasive Tests, # 6 Attachment Gerrity Report Exhibit E AASLD Guidance Update, # 7 Attachment Gerrity Report Exhibit G Yudkin Idolatry of the Surrogate, # 8 Exhibit Exhibit B Plaintiffs' Expert Disclosures, # 9
Exhibit Exhibit C Yao Report, # 10 Exhibit Exhibit D Excerpt from AASLD/IDSN Guideline, # 11 Exhibit Exhibit E Excerpt from Deposition of Dr. Yao, # 12 Exhibit Exhibit F Excerpt from Dr. Gerrity Deposition)(Lorch, Pamela) (Entered: 06/29/2018)
73 SUPPLEMENT filed by Russell L. Davis, Charles Graham re 68 Motion for Sanctions. (Attachments: # 1 Exhibit C email)(Campbell, Karla) (Entered: 06/29/2018)
74 MOTION for Leave to File Document Under Seal pursuant to Protective Order by Russell L. Davis, Charles Graham. (Campbell, Karla) (Entered: 06/29/2018)
75 Sealed Document Exhibit(s) 7-11 filed by Russell L. Davis, Charles Graham. (Campbell, Karla) (Entered: 06/29/2018)
76 Sealed Document Exhibit 12 filed by Russell L. Davis, Charles Graham. (Campbell, Karla) (Entered: 06/29/2018)
77 MOTION for Summary Judgment by Russell L. Davis, Charles Graham. (Campbell, Karla) (Entered: 06/29/2018)

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78 MEMORANDUM in Support of 77 MOTION for Summary Judgment filed by Russell L. Davis, Charles Graham . (Campbell, Karla) (Entered: 06/29/2018)
79 DECLARATION of Karla M. Campbell filed by Russell L. Davis,
Charles Graham re: 77 MOTION for Summary Judgment . (Campbell, Karla) (Entered: 06/29/2018)
80 STATEMENT of facts filed by Russell L. Davis, Charles Graham in
support of 77 Motion for Summary Judgment. (Attachments: # 1 Exhibit Koretz Declaration, # 2 Exhibit Gerrity Deposition, # 3 Exhibit Williams Deposition, # 4 Exhibit Koretz Deposition, # 5 Exhibit Ivens Deposition, # 6 Exhibit Johnson Deposition)(Campbell, Karla) (Entered: 06/29/2018)
81 Letter from William Hamby, Jr., re: prison conditions. (dt) (Entered: 07/02/2018)
TN State Bar status verified as active for Anthony A. Orlandi. (dt) (Entered: 07/02/2018)
82 ORDER: Mr. Hamby continues to file letters and other pleadings in this case that have nothing to do with the merits of the litigation filed by the original Plaintiff in this matter. If Mr. Hamby wishes to file a lawsuit against the correctional officer, he will need to exhaust his administrative remedies and file his own separate lawsuit. As the Court has already pointed out, to the extent he is a member of the class he is represented by attorneys. To the extent he is out of the class, he will be responsible for filing his own lawsuit about Hepatitis C. Signed by Magistrate Judge Joe Brown on 7/2/18. (xc: Pro se party by regular mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 07/02/2018)
83 Minute Entry for proceedings held before Magistrate Judge Joe Brown: Hearing held on Plaintiffs' Motion for Sanctions Under Rule 37(B)(2) (Docket Entry 68 ); Witness/Exhibit List attached; Proposed Agreed Order to be submitted to the Court for consideration by Monday, July 9, 2018. (Recording #2jul2018.) (dt) (Entered: 07/02/2018)
84 MOTION to Substitute Attorney Elizabeth Logsdon by Russell L. Davis, Charles Graham. (Attachments: # 1 Attachment Declaration of Elizabeth Logsdon, # 2 Attachment Declaration of Stacie Price,

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# 3 Attachment Declaration of Sherry Wilds, # 4 Attachment Letter to Charles Graham, # 5 Attachment Letter to Russell Davis)(Logsdon, Elizabeth) (Entered: 07/03/2018)
85 ORDER: Plaintiffs' Motion to Exclude Opinions and Testimony (Doc. No. 68) is REFERRED to the Magistrate Judge for a Report and Recommendation. Signed by Chief Judge Waverly D. Crenshaw, Jr on 7/5/2018. (xc:Pro se party by regular mail. ) (am) (Entered: 07/06/2018)
86 MOTION for Temporary Restraining Order by William D. Hamby, Jr. (gb) (Entered: 07/06/2018)
87 ORDER granting 74 Motion for Leave to File Document Under Seal. Signed by Chief Judge Waverly D. Crenshaw, Jr on 7/6/18. (xc:Pro se party by regular mail.) (gb) (Entered: 07/06/2018)
88 ORDER terminating 86 Motion for TRO Mr. Hamby continues to file pleading In this case in which the plaintiffs are represented by attorneys. This was explained to Mr. Hamby in Docket Entry 82. The clerk will include another copy of that order with this order sent to Mr. Hamby. If Mr Hamby has complaints about his treatment in the institution where he is held he should file a separate action in the Eastern District of Tennessee or in a state court. By contuning to file them in this case he is wasting his and this courts time. (JBB) (xc:Pro se party by regular mail w/ Order 82 .) Modified on 7/9/2018 (dt). (Entered: 07/07/2018)
89 MOTION for Leave to File Reply in Support re 62 MOTION to Exclude Opinions and Testimony by Russell L. Davis, Charles Graham. (Attachments: # 1 Attachment Reply in Support of Plaintiffs' Motion to Exclude)(Campbell, Karla) (Entered: 07/09/2018)
90 ORDER: Telephone Conference set for 7/16/2018 at 2:00 PM before Magistrate Judge Joe Brown. Signed by Magistrate Judge Joe Brown on 7/12/18. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) Modified on 7/12/2018 (dt). (Entered: 07/12/2018)
91 JOINT Statement concerning proposed Order filed by Russell L. Davis, Charles Graham in support of 90 Order,, Set Hearings,. (Attachments: # 1 Exhibit proposed Order)(Orlandi, Anthony) (Entered: 07/13/2018)

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92 Amended MOTION for Summary Judgment by Russell L. Davis, Charles Graham. (Campbell, Karla) (Entered: 07/13/2018)
93 MEMORANDUM in Support of 92 Amended MOTION for Summary Judgment filed by Russell L. Davis, Charles Graham . (Campbell, Karla) (Entered: 07/13/2018)
94 DECLARATION of Karla M. Campbell filed by Russell L. Davis,
Charles Graham re: 92 Amended MOTION for Summary Judgment . (Campbell, Karla) (Entered: 07/13/2018)
95 STATEMENT of facts filed by Russell L. Davis, Charles Graham in
support of 92 Motion for Summary Judgment. (Campbell, Karla) (Entered: 07/13/2018)
96 ORDER granting 89 Motion for Leave to File a Reply. Signed by Magistrate Judge Joe Brown on 7/16/2018. (xc:Pro se party by regular mail. ) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(hb) (Entered: 07/16/2018)
97 REPLY to Response to Motion re 62 MOTION to Exclude Opinions and Testimony filed by Russell L. Davis, Charles Graham. (hb) (Entered: 07/16/2018)
Minute Entry for proceedings held before Magistrate Judge Joe Brown: Telephone Conference held on 7/16/2018. Order to enter. (Time in Court: 15 minutes) (rd) (Entered: 07/16/2018)
98 ORDER: Relative to forthcoming TACHH meetings, Defendants also have agreed to produce, on an ongoing basis, TACHH minutes, agendas, associated TACHH Medical Records, and all other documents that the TACHH reviews, within fourteen (14) days of the date of any future meeting. Defendants will notify Plaintiffs if there is any problem meeting this fourteen (14) day production deadline. This Order addresses Plaintiffs' Motion for Sanctions (D.E. 68 ), with the following exception. Plaintiffs shall withdraw, without prejudice and with leave to refile, including after trial, the request in their Motion for Sanctions (D.E. 68) asking for an award of attorneys' fees associated with bringing the motion. The Court reserves judgment on whether fee shifting is warranted under the circumstances until such time as the motion is refiled, if at all. Signed by Magistrate Judge Joe Brown on 7/16/18. (xc:Pro se party by regular mail.) (DOCKET TEXT

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SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 07/17/2018)
99 MOTION to Join Lawsuit as Named Plaintiff by Gary William Holt. (dt) (Entered: 07/19/2018)
100 Letter from Gary William Holt requesting copies and docket sheet. (Docket sheet sent to Gary William Holt by regular mail.). (dt) (Entered: 07/19/2018)
101 MOTION to Seal Document by Marina Cadreche, Tony C. Parker, Kenneth Williams. (Lorch, Pamela) (Entered: 07/27/2018)
102 Sealed Document filed by Marina Cadreche, Tony C. Parker, Kenneth Williams. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit medical record chart, # 4 Exhibit medical record)(Lorch, Pamela) (Entered: 07/27/2018)
103 MOTION to Seal Document by Marina Cadreche, Tony C. Parker, Kenneth Williams. (Lorch, Pamela) (Entered: 07/27/2018)
104 ORDER granting 101 Motion to Seal Document as requested. Good cause has been shown in the motion to seal. (JBB) (xc:Pro se party by regular mail.) Modified on 7/30/2018 (dt). (Entered: 07/27/2018)
105 ORDER granting 103 Motion to Seal Document as requested. Good cause has been shown in the motion to seal. (JBB)(xc:Pro se party by regular mail.) Modified on 7/30/2018 (dt). (Entered: 07/27/2018)
106 ORDER granting 84 Motion to Substitute and add Attorneys as requested. Clerk will make the necessary changes. (JBB) (xc:Pro se party by regular mail.) Modified on 7/30/2018 (dt). (Entered: 07/27/2018)
107 ORDER denying 99 Motion for Joinder as requested. This case involves what Chief Judge Crenshaw defined in Docket Entry 33 as: "All persons currently incarcerated in any facility under the supervision or control of the Tennessee Department of Corrections or persons incarcerated in a public or privately owned facility for whom the Tennessee Department of Corrections has ultimate responsibility for their medical care and who have at least 90 days or more remaining to serve on their sentences and are either currently diagnosed with Hepatitis C infection or are determined to have Hepatitis C after a screening test has been administered by the Department of Corrections." If Mr. Holt meets the definition of the class he is included and represented by the class counsel. If he is not in the class he will need to be sure he has exhausted his administrative

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remedies and file his own lawsuit. (JBB) (xc:Pro se party by regular mail.) Modified on 7/30/2018 (dt). Modified on 7/30/2018 (rd). (Entered: 07/27/2018)
108 RESPONSE in Opposition re 77 MOTION for Summary Judgment filed by Marina Cadreche, Tony C. Parker, Kenneth Williams. (Lorch, Pamela) (Entered: 07/27/2018)
109 RESPONSE to Plaintiffs' Amended Statement of Facts and Defendants' Statement of Additional Material Facts. (Lorch, Pamela) (Entered: 07/27/2018)
110 NOTICE of Filing by Marina Cadreche, Tony C. Parker, Kenneth Williams Of Documents in Support of Response of Defendants to Plaintiffs' Amended Motion for Summary Judgment and Amended Statement of Facts and Defendants' Statement of Additional Disputed Material Facts (Attachments: # 1 Attachment Declaration and Report of Koretz, # 2 Attachment Declaration and Report of Gerrity, # 3 Attachment Excerpts Koretz Deposition, # 4 Attachment Excerpts Gerrity Deposition, # 5 Attachment Dr. Williams' Declaration, # 6 Attachment Excerpts Williams' Deposition, # 7 Attachment Excerpt Williams' Deposition, # 8 Attachment Excerpts Wiley Deposition, # 9 Attachment Excerpt Yao Deposition, # 10 Attachment Excerpt Yao Deposition, # 11 Attachment Excerpt Yao Deposition, # 12 Attachment Excerpt Parker Deposition, # 13 Attachment Excerpt Welch Deposition)(Lorch, Pamela) (Entered: 07/27/2018)
111 Sealed Document Medical record of Plaintiff Russell Davis filed by Marina Cadreche, Tony C. Parker, Kenneth Williams. (Lorch, Pamela) (Entered: 07/27/2018)
STATEMENT of Additional Material Facts filed by Marina Cadreche, Tony C. Parker, Kenneth Williams. (FILED FOR TRACKING PURPOSES, SEE 109 FOR PDF) (dt) (Entered: 07/31/2018)
112 NOTICE of Filing by Marina Cadreche, Tony C. Parker, Kenneth Williams re 110 Notice (Other),,, (Attachments: # 1 Exhibit Excerpts fro Deposition of Dr. Williams, # 2 Exhibit Excerpts from Deposition of Dr. Yao)(Lorch, Pamela) (Entered: 07/30/2018)
113 RESPONSE to Defendants' Statement of Disputed Facts. (Campbell, Karla) (Entered: 08/10/2018)
114 REPLY to Response to Motion re 92 Amended MOTION for Summary Judgment filed by Russell L. Davis, Charles Graham.

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(Attachments: # 1 Exhibit 1 - Parker and Welch depo excerpts, # 2 Exhibit 2 - Johnson depo excerpts, # 3 Exhibit 3 - Tucker depo excerpts, # 4 Exhibit 4 - Gerrity depo excerpts, # 5 Exhibit 5 - Koretz depo excerpts)(Campbell, Karla) (Entered: 08/10/2018)
115 MOTION to Strike 110 Notice (Other),,, Williams Declaration by Russell L. Davis, Charles Graham. (Campbell, Karla) (Entered: 08/11/2018)
116 REPORT AND RECOMMENDATION: Magistrate Judge Brown RECOMMENDS for the reasons explained above that plaintiffs' motion to exclude the opinions and testimony of Dr. Gerrity 62 be DENIED. Signed by Magistrate Judge Joe Brown on 8/21/18. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLYATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 08/21/2018)
117 RESPONSE in Opposition re 115 MOTION to Strike 110 Notice (Other),,, Williams Declaration filed by Marina Cadreche, Tony C. Parker, Kenneth Williams. (Lorch, Pamela) (Entered: 08/24/2018)
Notice to Filer re DE 117 : Pursuant to Local Rule 5.01, all filings shall include a Certificate of Service and it shall identify by name the person served, what was served, the method of service, and date of service. Counsel SHALL FILE a conformed Certificate of Service for this document using the Certificate event located under Other Documents. (dt) (Entered: 08/27/2018)
118 CERTIFICATE Certificate of Service filed by Marina Cadreche, Tony C. Parker, Kenneth Williams re 117 Response in Opposition to Motion filed by Kenneth Williams, Marina Cadreche, Tony C. Parker. (Lorch, Pamela) (Entered: 08/27/2018)
119 MOTION for Leave to File Document Under Seal by Russell L. Davis, Charles Graham. (Campbell, Karla) (Entered: 08/31/2018)
120 Sealed Document filed by Russell L. Davis, Charles Graham. (Attachments: # 1 Exhibit A - excerpts of TACHH Committee meeting minutes)(Campbell, Karla) (Entered: 08/31/2018)
121 DECLARATION of Callie K. Jennings filed by Russell L. Davis, Charles Graham re: 120 Sealed Document. (Campbell, Karla) (Entered: 08/31/2018)
122 ORDER granting 119 Motion for Leave to File Document Under Seal. The records of the medical condition and treatment of the inmates is properly sealed. The Plaintiff should however file a redacted copy of

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the statement and attached records with the patient name changed to initials and the and medical history and treatment redacted. (JBB) (xc: Pro se party by regular mail.) Modified text on 9/7/2018 (mg). (Entered: 09/06/2018)
123 ORDER: The Report and Recommendation (Doc. No. 116 ) is APPROVED AND ADOPTED and the Motion to Exclude Opinions and Testimony (Doc. No. 62 ) is DENIED. Signed by Chief Judge Waverly D. Crenshaw, Jr on 9/13/18. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 09/13/2018)
124 ORDER denying as moot 77 Motion for Summary Judgment. Signed by Chief Judge Waverly D. Crenshaw, Jr on 9/13/18. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLYATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 09/13/2018)
125 ORDER: Plaintiffs' Motion to Strike the Williams Declaration (Doc. No. 115 ) is REFERRED to the Magistrate Judge for a Report and Recommendation. Signed by Chief Judge Waverly D. Crenshaw, Jr on 9/13/18. (xc:Pro se party by regular mail.) (dt) (Entered: 09/13/2018)
126 NOTICE of Filing Note to Judge Crenshaw, by Russell L. Davis (afs) (Entered: 09/14/2018)
127 NOTICE of Filing by Russell L. Davis, Charles Graham re 92
Amended MOTION for Summary Judgment , 93
Memorandum in Support Supplemental Authority (Attachments: # 1 Exhibit A - Stafford v. Carter decision)(Campbell, Karla) (Entered: 09/24/2018)
128 RESPONSE in Opposition re 92 Amended MOTION for Summary Judgment and re 127 Notice of Supplemental Authority filed by Marina Cadreche, Tony C. Parker, Kenneth Williams. (Lorch, Pamela) (Entered: 09/27/2018)
129 MOTION (unsigned) to be apart of this case by Robert L. Hall. (dt) (Entered: 10/09/2018)
130 ORDER finding as moot 129 Motion to be member of class. The clerk will send the moving party a copy of the docket sheet and Docket

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Entry 33. If the plaintiff meets the requirements of the class he is a member, if not he would need to file a separate law suit and it appears likely that the one year statute of limitation and the need to file a grievance would have long since run. All motions for the court must be signed. This one was not signed. (JBB) (xc: Robert Hall by regular mail w/ copy of docket sheet and DE#33) Modified on 10/9/2018 (dt). (Entered: 10/09/2018)
131 REPORT AND RECOMMENDATION: Magistrate Judge Brown RECOMMENDS that the Plaintiff's motion to strike (Docket Entry 115 ) be GRANTED IN PART. Signed by Magistrate Judge Joe Brown on 10/22/18. (xc:Pro se party by regular mail.) (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) Modified on 11/1/2018 (dt). Modified on 11/6/2018 (dt). (Entered: 10/22/2018)
132 NOTICE of Filing by Russell L. Davis, Charles Graham re 122 Order on Motion for Leave to File Document Under Seal, (Campbell, Karla) (Entered: 10/25/2018)
133 Sealed Document with redactions filed by Russell L. Davis, Charles Graham. (Campbell, Karla) (Entered: 10/25/2018)
134 MOTION to be a party in this case by Timothy Barbee. (Docket sheet sent to Timothy Barbee by regular mail.)(dt) (Entered: 10/30/2018)
135 ORDER finding as moot 134 Motion to be member of class. The clerk will send the moving party a copy of the docket sheet and Docket Entry 33. If the plaintiff meets the requirements of the class he is a member, if not he would need to file a separate law suit. (JBB) (xc: Timothy Barbee by regular mail with copy of docket sheet and DE# 33 .) Modified on 10/31/2018 (dt). (Entered: 10/31/2018)
136 NOTICE of Appearance by James Gerard Stranch, III on behalf of Russell L. Davis, Charles Graham (Stranch, James) (Entered: 10/31/2018)
137 ORDER: Due to the Court's crowded criminal docket and the pending (a) Report and Recommendation on Plaintiff's Motion to Strike the Williams Declaration and (b) Amended Motion for Summary Judgment, the Scheduling Order dated June 28, 2017 (Doc. No. 39 ) is VACATED and, among other things, the pretrial conference scheduled for November 19, 2018 and bench trial scheduled for December 4, 2018, are POSTPONED. The parties are DIRECTED to confer and together provide the Court with five dates of mutual availability for a rescheduled bench trial within the next four to eight months. The Court will issue a new scheduling order as appropriate. Signed by

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Chief Judge Waverly D. Crenshaw, Jr on 10/31/18. (xc:Pro se party by regular mail.) (dt) (Entered: 11/01/2018)
TN State Bar status verified as active for James Gerard Stranch, III. (dt) (Entered: 11/01/2018)
138 MOTION for Review re 131 REPORT AND RECOMMENDATION re 115 MOTION to Strike 110 Notice (Other),,, Williams Declaration filed by Russell L. Davis, Charles Graham by Marina Cadreche, Tony C. Parker, Kenneth Williams. (Attachments: # 1 Attachment Declaration of Dr. Williams, # 2 Exhibit Exhibit A to Dr. Williams' Declaration, Redacted)(Lorch, Pamela) (Entered: 11/05/2018)
139 MEMORANDUM in Support of 131 REPORT AND RECOMMENDATION re 115 MOTION to Strike 110 Notice (Other),,, Williams Declaration filed by Russell L. Davis, Charles Graham, 138 MOTION for Review re 131 REPORT AND RECOMMENDATION re 115 MOTION to Strike 110 Notice (Other),,, Williams Declaration filed by Russell L. Davis, Charles Graham filed by Marina Cadreche, Tony C. Parker, Kenneth Williams . (Lorch, Pamela) (Entered: 11/05/2018)
140 MOTION for Leave to File Document Under Seal by Marina Cadreche, Tony C. Parker, Kenneth Williams. (Lorch, Pamela) (Entered: 11/05/2018)
141 Sealed Document filed by Marina Cadreche, Tony C. Parker, Kenneth Williams. (Lorch, Pamela) (Entered: 11/05/2018)
142 ORDER granting 140 Motion for Leave to File Document Under Seal (JBB) (Entered: 11/06/2018)
143 ORDER: Pending before the Court is a Report and Recommendation from the Magistrate Judge (Doc. No. 131 ) concerning Plaintiff's Motion to Strike (Doc. No. 115 ). Defendants have filed objections in the form of a Motion for Review. (Doc. No. 138 .) Plaintiffs SHALL file a response by November 19, 2018. Signed by Chief Judge Waverly D. Crenshaw, Jr on 11/7/18. (dt) (Entered: 11/07/2018)
144 JOINT Statement Regarding Mutual Availability for Trial. (Castelli, Thomas) (Entered: 11/09/2018)
145 RESPONSE in Opposition re 138 MOTION for Review re 131 REPORT AND RECOMMENDATION re 115 MOTION to Strike 110 Notice (Other),,, Williams Declaration filed by Russell L. Davis, Charles Graham filed by Russell L. Davis, Charles Graham.

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(Attachments: # 1 Exhibit A - Spreadsheet, # 2 Exhibit B - Response to Interrogatory, # 3 Exhibit C - Deposition Excerpt)(Campbell, Karla) (Entered: 11/14/2018)
146 ORDER: Bench Trial set for 7/16/2019 at 9:00 AM in Courtroom A859 before Chief Judge Waverly D. Crenshaw Jr. Pretrial Conference set for 7/1/2019 at 3:00 PM in Courtroom A859 before Chief Judge Waverly D. Crenshaw Jr. Exhibit List due by 6/24/2019. Witness List due by 6/24/2019. Proposed Pretrial Order due by 6/24/2019. Signed by Chief Judge Waverly D. Crenshaw, Jr on 11/16/18. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 11/16/2018)
147 ORDER: Given his familiarity with these issues, this matter is hereby RETURNED to the Magistrate Judge for reconsideration of the Report and Recommendation in light of recently-filed documents (Doc. Nos. 138-1, 138-2, 139, 141, 145), in particular the Supplemental Williams Declaration. The Magistrate Judge SHALL resubmit the Report and Recommendation to the Court with modifications (if any) that he deems appropriate. Signed by Chief Judge Waverly D. Crenshaw, Jr on 11/16/18. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 11/19/2018)
148 MOTION to Amend/Correct Scheduling Order (trial date) by Russell L. Davis, Charles Graham. (Campbell, Karla) (Entered: 11/21/2018)
149 ORDER: An in-court hearing is set for 1:30 p.m. on Monday, December 10, 2018, in Courtroom 783, U.S. Courthouse, 801 Broadway, Nashville, Tennessee. Signed by Magistrate Judge Joe Brown on 11/26/18. (DOCKET TEXT SUMMARY ONLYATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 11/26/2018)
150 ORDER denying 148 Motion to Amend Scheduling Order. Signed by Chief Judge Waverly D. Crenshaw, Jr on 11/29/18. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 11/30/2018)
166 Minute Entry for proceedings held before Magistrate Judge Joe Brown: Status Conference held on 12/10/2018 re reconsideration of R&R. Order to enter. (Tape #dec10218.) (hv) (Additional attachment(s) added on 1/7/2019: # 1 Attachment Exhibit and Witness List) (rd). (Attachment 1 replaced on 1/23/2019) (rd). (Entered: 12/10/2018)

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151 ORDER: I respectfully adhere to my original Report and Recommendation/decision that the two statements in question be stricken. Signed by Magistrate Judge Joe Brown on 12/12/18. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(gb) (Entered: 12/12/2018)
152 MOTION to Produce Documents by William D. Hamby, Jr. (dt) (Entered: 12/13/2018)
153 ORDER denying 152 Motion to Produce records and receive information about his status in the class action. Mr. Hamby alleges he suffers from stage 4 Cirrhosis of the liver and has received no treatment. Mr. Hamby is not listed as receiving treatment on Docket Entry 141. Counsel for the Plaintiff is directed to advise the court within 7 days of this order if they believe Mr. Hamby is a member of the class and copy him with their response. Mr Hamby's earlier efforts to join the case were denied and he was advised of his right to file a separate suit if he wanted to. (Docket Entries 60 and 61) Mr. Hamby continues to write on the bottom inch of his pleadings and the bottom line is overwritten. The clerk will send Mr. Hamby a copy of DE 60, 61, a blank 1983 complaint form along with an IFP application. He may file his own suit if he is not a member of the class or withdraws from it if he is a member. Before filing his own suit he should be sure he has exhausted his administrative grievances about the matter. As long as he is a member of the class he may not file separate pleadings on his own. The defendant is directed within 7 days of this order to advise if Mr. Hamby's case has been reviewed by the TACHH committee and if so the result of the review. (JBB)(xc: William D. Hamby, Jr. with DE#60, 61, a blank 1983 complaint form along with an IFP application by regular mail.) Modified on 12/14/2018 (dt). (Entered: 12/13/2018)
154 MOTION for Leave to File Document Under Seal by Russell L. Davis, Charles Graham. (Campbell, Karla) (Entered: 12/14/2018)
155 Sealed Document Statement filed by Russell L. Davis, Charles Graham. (Attachments: # 1 Exhibit A-Excerpt of Medical Records, # 2 Exhibit B-Excerpt of Medical Records)(Campbell, Karla) (Entered: 12/14/2018)
156 ORDER granting 154 Motion for Leave to File Document Under Seal (JBB) (Entered: 12/14/2018)
157 MOTION to Seal Report by Marina Cadreche, Tony C. Parker, Kenneth Williams. (Lorch, Pamela) (Entered: 12/20/2018)

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158 Sealed Document filed by Marina Cadreche, Tony C. Parker, Kenneth Williams. (Lorch, Pamela) (Entered: 12/20/2018)
159 MOTION for Review re 151 Order, Nondispositive, by Magistrate Judge by Marina Cadreche, Tony C. Parker, Kenneth Williams. (Lorch, Pamela) (Entered: 12/20/2018)
160 MEMORANDUM in Support of 159 MOTION for Review re 151
Order, Nondispositive, by Magistrate Judge filed by Marina Cadreche, Tony C. Parker, Kenneth Williams . (Lorch, Pamela) (Entered: 12/20/2018)
161 ORDER granting 157 Motion to Seal. Defendants have provided adequate justification in their motion. (JBB) (Entered: 12/20/2018)
162 MOTION for Extension of Time by Calvin Landers. (dt) (Entered: 12/28/2018)
163 ORDER denying 162 Motion for Extension of Time to File. Mr. Landers is not a party to this case (See Docket Entry 42) there is nothing in this case to extend for him. (JBB) (xc: Mr. Landers by regular mail at address provided in DE# 162) Modified on 1/3/2019 (rd). (Entered: 12/28/2018)
164 Transcript (*sealed per redacted version filed at DE 172*) filed for date of December 10, 2018, before Judge Joe Brown. Court Reporter/Transcriber: Patty Jennings, 615-939-5450, patty_jennings@tnmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM-ECF LINK at: http://www.tnmd.uscourts.gov/files/20091201Notice_to_the_Bar_Tra nscripts.pdf. Intent to Request Transcript Redaction due 1/7/2019. Redaction Request due 1/22/2019. Redacted Transcript Deadline set for 1/30/2019. Release of Transcript Restriction set for 4/1/2019. (Jennings, Patty) Modified on 1/24/2019 (af). (Entered: 12/30/2018)

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165 RESPONSE in Opposition re 159 MOTION for Review re 151
Order, Nondispositive, by Magistrate Judge filed by Russell L. Davis, Charles Graham. (Campbell, Karla) (Entered: 01/03/2019)
167 NOTICE of Intent to Request Transcript Redaction by Pamela S. Lorch re 164 Transcript,,, (Lorch, Pamela) (Entered: 01/07/2019)
168 NOTICE of Intent to Request Transcript Redaction by Karla M. Campbell re 164 Transcript,,, (Campbell, Karla) (Entered: 01/07/2019)
169 NOTICE of Appearance by Matthew R. Dowty on behalf of All Defendants (Dowty, Matthew) (Entered: 01/08/2019)
TN State Bar status verified as active for Matthew R. Dowty. (dt) (Entered: 01/09/2019)
170 MOTION Requesting Transcript Redaction re 164 Transcript, by attorney Karla M. Campbell. (Campbell, Karla) Modified on 1/23/2019 (dt). (Entered: 01/22/2019)
171 MOTION to Redact 164 Transcript,,, by Marina Cadreche, Tony C. Parker, Kenneth Williams. (Attachments: # 1 Exhibit redacted transcript)(Lorch, Pamela) (Entered: 01/22/2019)
172 Redacted Transcript filed for date of December 10, 2018, before Judge Joe Brown re 164 Transcript. Court Reporter/Transcriber: Patty Jennings, 615-939-5450, patty_jennings@tnmd.uscourts.gov. (Jennings, Patty) (Entered: 01/23/2019)
173 ORDER granting 170 Plaintiffs' Motion Requesting 164 Transcript Redaction; granting 171 Defendants' Redaction Request. Signed by Magistrate Judge Joe Brown on 1/24/19. (rd) (Entered: 01/24/2019)
174 Supplement, per Order Doc. No. 153 filed UNDER SEAL by Marina Cadreche, Tony C. Parker, Kenneth Williams. (Lorch, Pamela) Modified on 2/25/2019 (rd). (Entered: 02/25/2019)
175 ORDER: The Clerk is therefore directed to terminate the Motion to Strike 115 . The Court will consider Defendant's two Motions to Review the Magistrate Judge's decision, in conjunction with the pending Motion for Summary Judgment. Signed by Chief Judge Waverly D. Crenshaw, Jr on 3/4/19. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 03/05/2019)

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176 (SEALED PER ORDER 177 ) Letter from William Hamby, Jr. re: medical issues. (dt) Modified on 3/14/2019 (dt). (Entered: 03/13/2019)
177 ORDER: A member of the class, Mr. Hamby, has sent the Court a letter about his medical treatment (DE 176). Since the letter deals with his medical condition, the Clerk will file it under seal with copies to the parties to this litigation. Counsel for the class should take whatever action he deems appropriate based on this letter. Since Mr. Hamby is a member of the class, he should not write the Court directly, but send his materials to counsel for the Class: Anthony A. Orlandi, Branstetter, Stranch & Jennings, PLLC, The Freedom Center, 223 Rosa L. Parks Avenue, Suite 200, Nashville, TN 37203, (615) 254-8801. The Magistrate Judge trusts treatment directed by the committee is being administered by the medical provider and the DOC is following up on its committee's directions. The Clerk will send Mr. Hamby a copy of this order. (JBB)(xc: William Hamby by regular mail.) (Letter DE#176 sent to counsel of record by email.) Modified on 3/14/2019 (dt). Modified on 3/14/2019 (rd). (Entered: 03/13/2019)
178 NOTICE of Filing by Russell L. Davis, Charles Graham re 92
Amended MOTION for Summary Judgment , 93
Memorandum in Support Supplemental Authority (Attachments: # 1 Attachment Exhibit A - Hoffer et al. v. Inch decision)(Campbell, Karla) (Entered: 05/01/2019)
179 NOTICE of Filing by Marina Cadreche, Tony C. Parker, Kenneth
Williams re 108 Response in Opposition to Motion Supplemental Authority (Attachments: # 1 Attachment Buffkin v. Hooks Memorandum Opinion and Order)(Dowty, Matthew) (Entered: 05/01/2019)
180 Letter from William Hamby requesting the Court to take his name off this case, since he is receiving Hepatitis C Medicine. (dt) (Entered: 06/04/2019)
181 MEMORANDUM OPINION Signed by Chief Judge Waverly D. Crenshaw, Jr on 6/6/19. (DOCKET TEXT SUMMARY ONLYATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 06/06/2019)
182 ORDER: For the reasons stated in the accompanying Memorandum Opinion, Plaintiffs' Amended Motion for Summary Judgment (Doc.
No. 92 ) is DENIED; and Defendants' First Motion for Review

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(Doc. No. 138 ) and Second Motion for Review (Doc. No. 159 ) are DENIED AS MOOT. The Court's trial-setting Order (Doc. No. 146 ) remains in effect. Signed by Chief Judge Waverly D. Crenshaw, Jr on 6/6/2019. (dt) (Entered: 06/06/2019)
183 Letter from Calvin Landers re: status of the case. (Docket Sheet sent to Calvin Landers by regular mail.). (dt) (Entered: 06/10/2019)
184 MOTION to Substitute Party by Russell L. Davis, Charles Graham. (Attachments: # 1 Attachment Declaration of Thomas Castelli)(Castelli, Thomas) (Entered: 06/17/2019)
185 MEMORANDUM in Support of 184 MOTION to Substitute Party filed by Russell L. Davis, Charles Graham . (Castelli, Thomas) (Entered: 06/17/2019)
186 MOTION in Limine to Exclude Trial Testimony of Certain Persons by Marina Cadreche, Tony C. Parker, Kenneth Williams. (Dowty, Matthew) (Entered: 06/17/2019)
187 MEMORANDUM in Support of 186 MOTION in Limine to Exclude Trial Testimony of Certain Persons filed by Marina Cadreche, Tony C. Parker, Kenneth Williams . (Attachments: # 1 Exhibit Plaintiffs' Supplementation to Rule 26(a) Initial Disclosure, # 2 Exhibit Plaintiffs' Second Supplementation to Rule 26(a) Initial Disclosure, # 3 Exhibit Response to Defendants First Set of Interrogatories to Plaintiffs, # 4 Exhibit Supplemental Response to Defendants First Set of Interrogatories to Plaintiffs)(Dowty, Matthew) (Entered: 06/17/2019)
188 MOTION in Limine to Exclude Certain Opinions of Plaintiffs' Expert Witness by Marina Cadreche, Tony C. Parker, Kenneth Williams. (Dowty, Matthew) (Entered: 06/17/2019)
189 MEMORANDUM in Support of 188 MOTION in Limine to Exclude Certain Opinions of Plaintiffs' Expert Witness filed by Marina Cadreche, Tony C. Parker, Kenneth Williams . (Attachments: # 1 Exhibit Report of Dr. Zhi Q. Yao, M.D., Ph.D., # 2 Exhibit Supplemental Report of Dr. Zhi Q. Yao, M.D., Ph.D., # 3 Exhibit Excerpts from the Deposition of Zhi Q. Yao, M.D., Ph.D.)(Dowty, Matthew) (Entered: 06/17/2019)
190 MOTION in Limine to Exclude Certain Policy Documents by Russell L. Davis, Charles Graham. (Campbell, Karla) (Entered: 06/17/2019)
191 ORDER: Pretrial Conference reset for 7/5/2019 at 1:30 PM in Courtroom A859 before Chief Judge Waverly D. Crenshaw Jr. Signed

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by Chief Judge Waverly D. Crenshaw, Jr on 6/21/19. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 06/21/2019)
192 Joint MOTION to Continue /Amend Scheduling Order by Marina Cadreche, Tony C. Parker, Kenneth Williams. (Lorch, Pamela) (Entered: 06/21/2019)
193 ORDER: The Joint Motion For Amendment of Scheduling Order (Doc. No. 192 ) is GRANTED. The deadline for the parties to submit their Joint Proposed Pretrial Order, witness lists, exhibit lists, stipulations and expert reports is extended to June 26, 2019. Signed by Chief Judge Waverly D. Crenshaw, Jr on 6/24/19. (dt) (Entered: 06/24/2019)
194 RESPONSE in Opposition re 190 MOTION in Limine to Exclude Certain Policy Documents filed by Marina Cadreche, Tony C. Parker, Kenneth Williams. (Attachments: # 1 Exhibit Letter of Plaintiffs' Counsel dated May 8, 2019, # 2 Exhibit Letter of Plaintiffs' Counsel dated May 31, 2019, # 3 Exhibit Letter of Defendants' Counsel dated June 7, 2019)(Dowty, Matthew) (Entered: 06/24/2019)
195 RESPONSE in Opposition re 188 MOTION in Limine to Exclude Certain Opinions of Plaintiffs' Expert Witness filed by Russell L. Davis, Charles Graham. (Attachments: # 1 Exhibit A - PubMed searches dated June 11, 2019)(Campbell, Karla) (Entered: 06/24/2019)
196 RESPONSE in Opposition re 186 MOTION in Limine to Exclude Trial Testimony of Certain Persons filed by Russell L. Davis, Charles Graham. (Campbell, Karla) (Entered: 06/24/2019)
197 Proposed Pretrial Order Joint Proposed Pretrial Order by Russell L. Davis, Charles Graham. (Castelli, Thomas) (Entered: 06/26/2019)
198 STIPULATION of the Parties for Trial by Russell L. Davis, Charles Graham. (Castelli, Thomas) (Entered: 06/26/2019)
199 NOTICE of Filing by Marina Cadreche, Tony C. Parker, Kenneth Williams Defendants' Expert Reports (Attachments: # 1 Attachment 1.Declaration and Report of Martha S. Gerrity, M.D., M.P.H., Ph.D., # 2 Attachment 2.Declaration and Report of Ronald L. Koretz, M.D., # 3 Attachment 3.Addendum to Declaration and Report of Ronald L. Koretz, M.D., # 4 Attachment 4.Defendants Supplemental Submission in Support of Declaration and Report of Ronald L. Koretz, M.D.)(Dowty, Matthew) (Entered: 06/26/2019)

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200 Witness List by Marina Cadreche, Tony C. Parker, Kenneth Williams. (Dowty, Matthew) (Entered: 06/26/2019)
201 Exhibit List by Marina Cadreche, Tony C. Parker, Kenneth Williams.. (Dowty, Matthew) (Entered: 06/26/2019)
202 Witness List for Plaintiffs by Russell L. Davis, Charles Graham. (Castelli, Thomas) (Entered: 06/26/2019)
203 Exhibit List for Plaintiffs by Russell L. Davis, Charles Graham.. (Castelli, Thomas) (Entered: 06/26/2019)
204 NOTICE of Filing by Russell L. Davis, Charles Graham Plaintiffs' Expert Report (Attachments: # 1 Attachment Expert Report of Dr. Yao, # 2 Attachment Supplemental Expert Report of Dr. Yao)(Campbell, Karla) (Entered: 06/26/2019)
205 MOTION for Writ of Habeas Corpus ad testificandum for Gregory Kenneth Atkins by Russell L. Davis. (Attachments: # 1 Attachment Notice and Order for Atkins, # 2 Attachment Order for Atkins)(Price, Stacie) (Entered: 07/02/2019)
206 MOTION for Writ of Habeas Corpus ad testificandum for Russell L. Davis by Russell L. Davis. (Attachments: # 1 Attachment Notice and Order for Davis, # 2 Attachment Order for Davis)(Price, Stacie) (Entered: 07/02/2019)
207 MOTION for Writ of Habeas Corpus ad testificandum for Christopher Gooch by Russell L. Davis. (Attachments: # 1 Attachment Notice and Order for Gooch, # 2 Attachment Order for Gooch)(Price, Stacie) (Entered: 07/02/2019)
208 MOTION for Writ of Habeas Corpus ad testificandum For Samuel Hensley by Russell L. Davis. (Attachments: # 1 Attachment Notice and Order for Hensley, # 2 Attachment Order for Hensley)(Price, Stacie) (Entered: 07/02/2019)
209 (DISREGARD - FILED IN ERROR - ATTORNEY TO REFILE) MOTION for Writ of Habeas Corpus ad testificandum for Kevin Proffitt by Russell L. Davis. (Attachments: # 1 Attachment Notice and Order for Proffitt, # 2 Attachment Order for Proffitt)(Price, Stacie) Modified on 7/2/2019 (dt). (Entered: 07/02/2019)
210 MOTION for Writ of Habeas Corpus ad testificandum for Thomas Edward Rollins Jr. by Russell L. Davis. (Attachments: # 1 Attachment

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Notice and Order for Rollins, # 2 Attachment Order for Rollins)(Price, Stacie) (Entered: 07/02/2019)
211 MOTION for Writ of Habeas Corpus ad testificandum for Scott Spangler by Russell L. Davis. (Attachments: # 1 Attachment Notice and Order Spangler, # 2 Attachment Order for Spangler)(Price, Stacie) (Entered: 07/02/2019)
212 MOTION for Writ of Habeas Corpus ad testificandum for Wesley Earl Stover by Russell L. Davis. (Attachments: # 1 Attachment Notice and Order for Stover, # 2 Attachment Order for Stover)(Price, Stacie) (Entered: 07/02/2019)
213 MEMORANDUM in Support of 205 MOTION for Writ of Habeas Corpus ad testificandum for Gregory Kenneth Atkins, 206 MOTION for Writ of Habeas Corpus ad testificandum for Russell L. Davis, 211 MOTION for Writ of Habeas Corpus ad testificandum for Scott Spangler, 210 MOTION for Writ of Habeas Corpus ad testificandum for Thomas Edward Rollins Jr., 209 MOTION for Writ of Habeas Corpus ad testificandum for Kevin Proffitt, 208 MOTION for Writ of Habeas Corpus ad testificandum For Samuel Hensley, 207 MOTION for Writ of Habeas Corpus ad testificandum for Christopher Gooch, 212 MOTION for Writ of Habeas Corpus ad testificandum for Wesley Earl Stover filed by Russell L. Davis . (Price, Stacie) (Entered: 07/02/2019)
214 MOTION for Writ of Habeas Corpus ad testificandum for Kevin Proffitt by Russell L. Davis. (Attachments: # 1 Attachment Notice and Order for Proffitt, # 2 Attachment Order for Proffitt)(Price, Stacie) (Entered: 07/02/2019)
215 SUBPOENA issued to Tony Parker and returned executed on July 1, 2019 as to Tony Parker by Russell L. Davis, Charles Graham (Campbell, Karla) (Entered: 07/02/2019)
216 SUBPOENA issued to Dr. Kenneth Williams and returned executed on July 1, 2019 as to Dr. Kenneth Williams by Russell L. Davis, Charles Graham (Campbell, Karla) (Entered: 07/02/2019)
217 SUBPOENA issued to Dr. Kenneth Wiley and returned executed on July 1, 2019 as to Dr. Kenneth Wiley by Russell L. Davis, Charles Graham (Campbell, Karla) (Entered: 07/02/2019)
218 PRETRIAL ORDER Signed by Chief Judge Waverly D. Crenshaw, Jr on 7/5/19. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 07/05/2019)

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Minute Entry for proceedings held before Chief Judge Waverly D. Crenshaw, Jr: Pretrial Conference held on 7/5/2019. Exhibits and witnesses discussed. Rulings on Motions. Deadlines set. Order to enter. (Court Reporter Patty Jennings.)(Hearing lasted :55)(Parise, Kelly) (Entered: 07/05/2019)
219 ORDER: Pretrial Conference held on July 5, 2019. For the reasons stated on the record and below, which are incorporated herein, the Court confirms the following: The Court approves the agreed dismissal of Defendant Assistant Commissioner Marina Cadreche,
(Doc. No. 198 ), who is DISMISSED. Plaintiff's Motion to Substitute Class Representatives (Doc. No. 184 ) is GRANTED as unopposed. Defendant's Motion in Limine to Exclude Trial Testimony of Certain Persons (Doc. No. 186 ) is DENIED. Plaintiffs' Motion in Limine to Exclude Certain Policy Documents (Doc. No. 190 ) is DENIED. Dr. Yao SHALL serve a second supplemental report and file it with the Court no later than 12:00 p.m. on Friday, July 12, 2019. Defendants' Motion in Limine to Exclude Certain Opinions of Plaintiffs' Expert Witness (Doc. No. 188 ) is DENIED. Signed by Chief Judge Waverly D. Crenshaw, Jr on 7/5/19. (xc: U.S. Marshal by hand delivery.)(DOCKET TEXT SUMMARY ONLYATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 07/05/2019)
220 NOTICE AND ORDER: The Director of the Department of Corrections for the State of Tennessee, and that Acting Warden Darren Settles, or whoever is the current and acting Warden of Bledsoe County Correctional Complex, arrange to have Gregory Kenneth Atkins (Inmate No. 361535) presented on July 15, 2019, at 9:00 a.m., for preparation of and for trial proceedings, and for each day thereafter until concluded. Signed by Chief Judge Waverly D. Crenshaw, Jr on 7/5/19. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) Modified on 7/8/2019 (dt). (Entered: 07/08/2019)
221 NOTICE AND ORDER: The Director of the Department of Corrections for the State of Tennessee, and that Warden Shawn Phillips, or whoever is the current and acting Warden of Northwest Correctional Complex, arrange to have Russel L. Davis (Inmate No. 113337) presented on July 15, 2019, at 9:00 a.m., for preparation of and for trial proceedings, and for each day thereafter until concluded. Signed by Chief Judge Waverly D. Crenshaw, Jr on 7/5/19. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 07/08/2019)

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222 NOTICE AND ORDER: The Director of the Department of Corrections for the State of Tennessee, and that Acting Warden Darren Settles, or whoever is the current and acting Warden of Bledsoe County Correctional Complex, arrange to have Christopher Gooch (Inmate No. 545760) presented on July 15, 2019, at 9:00 a.m., for preparation of and for trial proceedings, and for each day thereafter until concluded. Signed by Chief Judge Waverly D. Crenshaw, Jr on 7/5/19. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) Modified on 7/8/2019 (dt). (Entered: 07/08/2019)
223 NOTICE AND ORDER: The Director of the Department of Corrections for the State of Tennessee, and that Warden Hilton Hall, Jr., or whoever is the current and acting Warden of Hardeman County Correctional Facility, arrange to have Samuel Hensley (Inmate No. 207312) presented on July 15, 2019, at 9:00 a.m., for preparation of and for trial proceedings, and for each day thereafter until concluded. Signed by Chief Judge Waverly D. Crenshaw, Jr on 7/5/19. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 07/08/2019)
224 NOTICE AND ORDER: The Director of the Department of Corrections for the State of Tennessee, and that Acting Warden Darren Settles, or whoever is the current and acting Warden of Bledsoe County Correctional Complex, arrange to have Kevin Proffitt (Inmate No. 328313) presented on July 15, 2019, at 9:00 a.m., for preparation of and for trial proceedings, and for each day thereafter until concluded. Signed by Chief Judge Waverly D. Crenshaw, Jr on 7/5/19. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 07/08/2019)
225 NOTICE AND ORDER: The Director of the Department of Corrections for the State of Tennessee, and that Warden Mike Parris, or whoever is the current and acting Warden of Morgan County Correctional Complex, arrange to have Thomas Edward Rollins, Jr. (Inmate No. 205709) presented on July 15, 2019, at 9:00 a.m., for preparation of and for trial proceedings, and for each day thereafter until concluded. Signed by Chief Judge Waverly D. Crenshaw, Jr on 7/5/19. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 07/08/2019)
226 NOTICE AND ORDER: The Director of the Department of Corrections for the State of Tennessee, and that Warden Hilton Hall,

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Jr., or whoever is the current and acting Warden of Hardeman County Correctional Facility, arrange to have Scott Spangler (Inmate No. 536377) presented on July 15, 2019, at 9:00 a.m., for preparation of and for trial proceedings, and for each day thereafter until concluded. Signed by Chief Judge Waverly D. Crenshaw, Jr on 7/5/19. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 07/08/2019)
227 ORDER FOR WRIT OF HABEAS CORPUS AD TESTIFICANDUM: Petition for Writ of Habeas Corpus Ad Testificandum (Doc. No. 205 ) is GRANTED. Signed by Chief Judge Waverly D. Crenshaw, Jr on 7/5/19. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 07/08/2019)
228 ORDER FOR WRIT OF HABEAS CORPUS AD TESTIFICANDUM: Petition for Writ of Habeas Corpus Ad Testificandum (Doc. No. 206 ) is GRANTED. Signed by Chief Judge Waverly D. Crenshaw, Jr on 7/5/19. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) Modified on 7/8/2019 (dt). (Entered: 07/08/2019)
229 ORDER FOR WRIT OF HABEAS CORPUS AD TESTIFICANDUM: Petition for Writ of Habeas Corpus Ad Testificandum (Doc. No. 207 ) is GRANTED. Signed by Chief Judge Waverly D. Crenshaw, Jr on 7/5/19. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 07/08/2019)
230 ORDER FOR WRIT OF HABEAS CORPUS AD TESTIFICANDUM: Petition for Writ of Habeas Corpus Ad Testificandum (Doc. No. 208 ) is GRANTED. Signed by Chief Judge Waverly D. Crenshaw, Jr on 7/5/19. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 07/08/2019)
231 ORDER FOR WRIT OF HABEAS CORPUS AD TESTIFICANDUM: Petition for Writ of Habeas Corpus Ad Testificandum (Doc. No. 214 ) is GRANTED. Plaintiff's Petition for Writ of Habeas Corpus Ad Testificandum (Doc. No. 209) DENIED AS MOOT. Signed by Chief Judge Waverly D. Crenshaw, Jr on 7/5/19. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 07/08/2019)

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232 ORDER FOR WRIT OF HABEAS CORPUS AD TESTIFICANDUM: Petition for Writ of Habeas Corpus Ad Testificandum (Doc. No. 210 ) is GRANTED. Signed by Chief Judge Waverly D. Crenshaw, Jr on 7/5/19. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 07/08/2019)
233 ORDER FOR WRIT OF HABEAS CORPUS AD TESTIFICANDUM: Petition for Writ of Habeas Corpus Ad Testificandum (Doc. No. 211 ) is GRANTED. Signed by Chief Judge Waverly D. Crenshaw, Jr on 7/5/19. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 07/08/2019)
234 Transcript (sealed - redacted version filed at 249) filed for date of July 5, 2019, before Judge Waverly D. Crenshaw Jr. Court Reporter: Patty Jennings, 615-939-5450, patty_jennings@tnmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM-ECF CASE INFO LINK, GENERAL INFORMATION, ELECTRONIC TRANSCRIPTS NOTICE. Intent to Request Transcript Redaction due 7/18/2019. Redaction Request due 8/1/2019. Redacted Transcript Deadline set for 8/12/2019. Release of Transcript Restriction set for 10/9/2019. (Jennings, Patty) Modified on 8/5/2019 (af). (Entered: 07/11/2019)
235 NOTICE of Filing by Gregory Atkins, Christopher Gooch, Kevin Proffitt, Thomas Rollins, Jr of the Second Supplemental Expert Report of Dr. Zhi Yao (Attachments: # 1 Attachment Second Supplemental Report of Dr. Zhi Yao, # 2 Exhibit Ex. 1- May 2019 HCV Guidance, # 3 Exhibit Ex. 2- TDOC Work Flow Protocol, # 4 Exhibit Ex. 3TDOC Peer-to-Peer Policy, # 5 Exhibit Ex. 4- May 29, 2019 TACHH meeting minutes)(Campbell, Karla) (Entered: 07/12/2019)
236 TRIAL BRIEF by Tony C. Parker, Kenneth Williams. (Dowty, Matthew) (Entered: 07/12/2019)

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237 PRETRIAL MEMORANDUM by Gregory Atkins, Christopher Gooch, Kevin Proffitt, Thomas Rollins, Jr. (Campbell, Karla) (Entered: 07/12/2019)
238 TRIAL BRIEF [Exhibit Numbers Revised] by Tony C. Parker, Kenneth Williams. (Dowty, Matthew) (Entered: 07/12/2019)
241 Letter from Calvin Landers requesting status of case. (xc: Docket Sheet sent to Calvin Landers by regular mail.) (dt) (Entered: 07/15/2019)
239 OBJECTIONS to and Request to Revise the Court's Order 219 filed by Tony C. Parker and Kenneth Williams. (Attachments: # 1 Exhibit A: Excerpts of Transcript of Proceedings 07.05.19)(Hart, Steven) Modified on 7/16/2019 (dt). (Entered: 07/15/2019)
240 Exhibit List Amended by Tony C. Parker, Kenneth Williams.. (Hart, Steven) (Entered: 07/15/2019)
242 Exhibit List Amended by Gregory Atkins, Christopher Gooch, Kevin Proffitt, Thomas Rollins, Jr.. (Campbell, Karla) (Entered: 07/15/2019)
Minute Entry for proceedings held before Chief Judge Waverly D. Crenshaw, Jr: Bench Trial held on 7/16/2019. Exhibits admitted. Trial will resume on 7/17/2019. (Court Reporter Lise Matthews.) (Hearing lasted 6:15)(Parise, Kelly) Modified on 7/17/2019 (af). (Entered: 07/17/2019)
Minute Entry for proceedings held before Chief Judge Waverly D. Crenshaw, Jr: Bench Trial held on 7/17/2019. Evidence Entered. Trial will resume on 7/18/2019. (Court Reporter Lise Matthews.)(Hearing lasted 8:5)(Parise, Kelly) (Entered: 07/17/2019)
Minute Entry for proceedings held before Chief Judge Waverly D. Crenshaw, Jr: Bench Trial held on 7/18/2019. Exhibits admitted. Trial will resume on 7/19/2019. (Court Reporter Roxann Harkins.)(Hearing lasted 5:30)(Parise, Kelly) (Entered: 07/18/2019)
243 NOTICE of Intent to Request Transcript Redaction by Karla M. Campbell re 234 Transcript,,, (Campbell, Karla) (Entered: 07/18/2019)
Minute Entry for proceedings held before Chief Judge Waverly D. Crenshaw, Jr: Bench Trial completed on 7/19/2019. Findings of Fact and Conclusions of Law to be submitted by August 19, 2019. Parties shall attend mediation. Order to enter.(Court Reporter Roxann Harkins.)(Hearing lasted 2:40)(Parise, Kelly) (Entered: 07/19/2019)

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244 WITNESS/EXHIBIT LIST prepared by Deputy Clerk. re: Bench Trial held.(dt) (Entered: 07/19/2019)
245 ORDER: Trial of this case concluded on July 19, 2019. The parties shall file proposed findings of fact and conclusions of law by August 19, 2019. The Court is of the opinion that this case may benefit from mediation. Accordingly, the parties shall engage in mediation and the Court APPOINTS the Honorable William E. Young to serve as mediator. The parties shall cover the costs for same. The Court believes that mediation will be advanced if Dr. Kenneth L. Williams, Steven Hart, Esq. and James Gerard Stranch, III, Esq., attend the mediation and accordingly each are ORDERED to be present for the mediation unless excused by Chancellor Young. The Clerk shall send a copy of this order to Chancellor William E. Young. Signed by Chief Judge Waverly D. Crenshaw, Jr on 7/19/19. (dt) Modified on 7/22/2019 (dt). (Entered: 07/19/2019)
246 MOTION to Redact 234 Transcript,,, by Gregory Atkins, Christopher Gooch, Kevin Proffitt, Thomas Rollins, Jr. (Attachments: # 1 Exhibit A - redacted transcript page)(Campbell, Karla) (Entered: 07/26/2019)
247 Letter from Calvin Landers re: becoming a party to this case. (dt) (Entered: 08/01/2019)
248 ORDER granting 246 Motion to Redact 234 Transcript. The Court Reporter is directed to file the July 5, 2019 hearing transcript with the redactions reflected on Exhibit A to this motion (Doc. No. 246-1). A copy of this Order shall be provided to the Court Reporter and the Clerk's office. Signed by Chief Judge Waverly D. Crenshaw, Jr on 8/2/19. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 08/02/2019)
249 Redacted Transcript filed for date of July 5, 2019, before Judge Waverly D. Crenshaw Jr. re 234 Transcript. Court Reporter: Patty Jennings, 615-939-5450, patty_jennings@tnmd.uscourts.gov. (Jennings, Patty) (Entered: 08/02/2019)
250 Transcript (Vol. 1) filed for date of July 16, 2019 before Judge Waverly D. Crenshaw Jr.. Court Reporter: Lise Matthews, 615-5897601, lise_matthews@tnmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporte before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS

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OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM-ECF CASE INFO LINK, GENERAL INFORMATION, ELECTRONIC TRANSCRIPTS NOTICE. Intent to Request Transcript Redaction due 8/12/2019. Redaction Request due 8/26/2019. Redacted Transcript Deadline set for 9/4/2019. Release of Transcript Restriction set for 11/4/2019. (Matthews, Lise) (Entered: 08/04/2019)
251 Transcript (Vol. 2) filed for date of July 17, 2019 before Judge Waverly D. Crenshaw Jr.. Court Reporter: Lise Matthews, 615-5897601, lise_matthews@tnmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM-ECF CASE INFO LINK, GENERAL INFORMATION, ELECTRONIC TRANSCRIPTS NOTICE. Intent to Request Transcript Redaction due 8/12/2019. Redaction Request due 8/26/2019. Redacted Transcript Deadline set for 9/4/2019. Release of Transcript Restriction set for 11/4/2019. (Matthews, Lise) (Entered: 08/04/2019)
252 Transcript filed (Vol 3) for date of July 18, 2019, before Judge Waverly D. Crenshaw Jr.. Court Reporter: Roxann Harkins, 615-4038314, roxann_harkins@tnmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM-ECF CASE INFO LINK, GENERAL INFORMATION, ELECTRONIC TRANSCRIPTS NOTICE. Intent to Request Transcript Redaction due 8/12/2019. Redaction Request due 8/26/2019. Redacted Transcript Deadline set for 9/5/2019. Release of Transcript Restriction set for 11/4/2019. (RH) (Entered: 08/05/2019)

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253 Transcript filed (Vol 4) for date of July 19, 2019, before Judge Waverly D. Crenshaw Jr.. Court Reporter: Roxann Harkins, 615-4038314, roxann_harkins@tnmd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. IT IS THE RESPONSIBILITY OF COUNSEL TO REVIEW THE TRANSCRIPT AND REQUEST REDACTION OF CONTENT CLASSIFIED AS PRIVATE UNDER THE NOTICE TO MEMBERS OF THE BAR, ELECTRONIC AVAILABILITY OF TRANSCRIPTS OF COURT PROCEEDINGS, EFFECTIVE MAY 5, 2008, AVAILABLE ON THE COURT'S WEBSITE UNDER THE CM-ECF CASE INFO LINK, GENERAL INFORMATION, ELECTRONIC TRANSCRIPTS NOTICE. Intent to Request Transcript Redaction due 8/12/2019. Redaction Request due 8/26/2019. Redacted Transcript Deadline set for 9/5/2019. Release of Transcript Restriction set for 11/4/2019. (RH) (Entered: 08/05/2019)
254 NOTICE of Intent to Request Transcript Redaction by Karla M. Campbell re 252 Transcript,,, 251 Transcript,,, 253 Transcript,,, 250 Transcript,,, (Campbell, Karla) (Entered: 08/12/2019)
255 POST TRIAL BRIEF by Gregory Atkins, Christopher Gooch, Kevin Proffitt, Thomas Rollins, Jr. (Campbell, Karla) Modified on 8/22/2019 (dt). (Entered: 08/19/2019)
256 POST TRIAL PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW by Tony C. Parker, Kenneth Williams. (Dowty, Matthew) Modified on 8/22/2019 (dt). (Entered: 08/19/2019)
257 REPORT of Mediation by William E. Young(Young, William) (Entered: 08/26/2019)
258 MOTION Requesting Transcript Redaction re 252 Transcript,,, 251 Transcript,,, 253 Transcript,,, 250 Transcript,,, by attorney Karla M. Campbell. (Campbell, Karla) Modified on 9/5/2019 (dt). (Entered: 08/26/2019)
259 Letter from Calvin Landers re: member of the class. (dt) (Entered: 09/05/2019)
260 FINDINGS OF FACT AND CONCLUSIONS OF LAW Signed by Chief Judge Waverly D. Crenshaw, Jr on 9/30/19. (DOCKET TEXT

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SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(dt) (Entered: 09/30/2019)
261 ORDER: For the reasons discussed in the accompanying Findings of Fact and Conclusions of Law, the Court hereby directs the Clerk to enter judgment for Defendants Tony C. Parker and Dr. Kenneth Williams. This is a final order Federal Rule of Civil Procedure 58. Signed by Chief Judge Waverly D. Crenshaw, Jr on 9/30/19. (dt) (Entered: 09/30/2019)
262 ENTRY OF JUDGMENT re: 261 Order. (dt) (Entered: 10/01/2019)
263 Letter from Samuel Hensley requesting copies from this case. (xc: copy clerk)(dt) (Entered: 10/03/2019)
264 ORDER Mr. Hensley has sent the court a letter [DE 263] requesting a copy of the entire courts file in this case. The file consists of over 4100 pages some of which consists of sealed medical and other records as well as exhibits which were admitted in evidence during various hearings. The clerk will send Mr. Hensley a copy of the docket sheet. He has not tendered payment for copies and since he does not have a case pending where he has been approved as a pauper he is not entitled to free copies of so many records. Court files are retained after the close of a case for a substantial time should he need the files at a later date. (JBB) (xc: Samuel Hensley by regular mail w/ copy of docket sheet.) Modified on 10/4/2019 (dt). (Entered: 10/03/2019)
265 NOTICE of Appearance by Michael J. Wall on behalf of Gregory Atkins, Christopher Gooch, Kevin Proffitt, Thomas Rollins, Jr (Wall, Michael) (Entered: 10/30/2019)
266 NOTICE OF APPEAL as to 261 Order Dismissing Case, by Gregory Atkins, Christopher Gooch, Kevin Proffitt, Thomas Rollins, Jr. Filing fee $ 505, receipt number 0650-3022425. (Wall, Michael) (Entered: 10/30/2019)
267 USCA Case Number 19-6243 for 266 Notice of Appeal filed by Thomas Rollins, Jr., Kevin Proffitt, Gregory Atkins, Christopher Gooch. Case Manager Karen S. Fultz. (dt) (Entered: 11/05/2019)
268 INFORMATION COPY from 6CCA. OPINION and JUDGMENT filed : AFFIRMED. Decision for publication. Ronald Lee Gilman (DISSENTING), Raymond M. Kethledge (AUTHORING), and Eric E. Murphy, Circuit Judges. (Cathryn Lovely) MANDATE TO ISSUE. (bs) (Entered: 08/24/2020)

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269 MANDATE of USCA as to 266 Notice of Appeal filed by Thomas Rollins, Jr., Kevin Proffitt, Gregory Atkins, Christopher Gooch. (bs) (Entered: 09/16/2020)

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 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

CHARLES GRAHAM aka CHARLES

)

STEVENSON and

)

RUSSELL L. DAVIS, on behalf of

)

themselves and all others similarly situated, )

)

Plaintiffs,

)

)

v.

) No. _______________

)

TONY C. PARKER, Commissioner,

)

Tennessee Department of Corrections;

)

DR. MARINA CADRECHE, Assistant

)

Commissioner of Rehabilitative Services, )

Tennessee Department of Corrections;

)

and DR. KENNETH WILLIAMS, Medical )

Director, Tennessee Department of

)

Corrections, in their official capacities,

)

)

Defendants.

)

______________________________________________________________________________

CLASS ACTION COMPLAINT ______________________________________________________________________________

Plaintiffs Charles Graham aka Charles Stevenson and Russell L. Davis bring this complaint

against Defendants Tony C. Parker, Dr. Marina Cadreche, and Dr. Kenneth Williams in their official

capacities as Commissioner, Assistant Commissioner, and Medical Director, respectively, of the

Tennessee Department of Corrections, for declaratory and injunctive relief on behalf of themselves

and all others similarly situated, and would allege as follows:

INTRODUCTION

1. Plaintiffs bring this action under 42 U.S.C. § 1983 to uphold the Eighth and

Fourteenth Amendments of the United States Constitution. Plaintiffs and members of the

putative class are inmates in the custody of the Tennessee Department of Corrections

(“Department”) who are infected with the Hepatitis C virus (“HCV”). Hepatitis C is a viral

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infection that causes liver inflammation, leading to a host of medical complications, and ultimately death. Despite knowledge of Plaintiffs’ HCV infection and the fatal effects of the disease, the Department has consistently and systematically denied them treatment. The Department’s HCV policies, written and unwritten, and its implementation of those policies constitute deliberate indifference to the suffering of Plaintiffs and the putative Class and violates their right to be free of cruel and unusual punishments as guaranteed by the U.S. Constitution.
JURISDICTION AND VENUE 2. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a). 3. Venue in this judicial district is proper pursuant to 28 U.S.C. § 1391(b) because Defendants have their official residence in this district.
PARTIES 4. Plaintiff Russell L. Davis is an inmate in the Department’s Northwest Correctional Complex, 960 Negro Graveyard Road/State Route 212, Tiptonville, Tennessee 38079. He was diagnosed with HCV in 2009 while an inmate in another Department facility. Since that time, Defendants have refused to provide Mr. Davis with any form of treatment for his illness, despite his repeated requests for medical care. 5. Plaintiff Charles Graham aka Charles Stevenson1 is an inmate in the Department’s Hardeman County Correctional Facility, 2520 Union Springs Rd, Whiteville, Tennessee 38075. He was diagnosed with HCV in 2005 while an inmate in another Department facility. Since that time, Defendants have refused to provide Mr. Stevenson with any form of treatment for his illness, despite his repeated requests for medical care. 6. Defendant Tony C. Parker is the Department’s Commissioner. In that capacity, 1 Plaintiff’s legal name is Charles Graham. However, his name appears as Charles Stevenson in most of the Department’s internal documentation. For ease of reference, Plaintiff will refer to himself as “Charles Stevenson” in the remainder of the Complaint.
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he has authority over all aspects of the management and governance of all Tennessee penitentiaries, including the provision of constitutionally adequate medical, mental health, and dental care for all prisoners committed to the custody of the Department. The Department’s primary business location is 320 Sixth Avenue North, Nashville, Tennessee 37243, and Defendant Parker serves in his official capacity at this location.
7. Dr. Marina Cadreche is the Department’s Assistant Commissioner of Rehabilitative Services. In that capacity, she has authority over all aspects of health care for inmates in the Department’s custody. The Department’s primary business location is 320 Sixth Avenue North, Nashville, Tennessee 37243, and Defendant Cadreche serves in her official capacity at this location.
8. Dr. Kenneth Williams is the Department’s Medical Director. In that capacity, he has authority over various aspects of medical care for inmates in the Department’s custody. Specifically Dr. Williams has direct control over the TDOC Advisory Committee on HIV and Viral Hepatitis Prevention and Treatment (“TACHH”), which works to establish and update Department policies on HCV treatment in Tennessee penitentiaries. The Department’s primary business location is 320 Sixth Avenue North, Nashville, Tennessee 37243, and Defendant Williams serves in his official capacity at this location.
9. In their official and related capacities, Defendants act under color of state law. See Tenn. Code Ann. § 4-6-101 et seq.
FACTS 10. Defendants commit themselves to offering quality health care to inmates that meets “the community standard of care.” They claim to do so through “performance-based monitoring,” which involves “extremely detailed and exhaustive reviews of offender treatment
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and health records.” See Offender Health Care, Tennessee Department of Corrections, available at https://www.tn.gov/correction/topic/The Department-rehabilitation-offender-healthcare#sthash.4lktEXst.STBmeP4D.dpuf (last reviewed July 13, 2016).
11. In reality, Defendants ignore the medical needs of Plaintiffs and Class members in order to save costs. Defendants’ written policies for HCV diagnosis, assessment and treatment utilize outdated standards of care and normalize the practice of refusing treatment for unjust and medically unsound reasons. Defendants’ unwritten policies, customs, and actual practices in diagnosing and treating HCV fall short even of the outdated and unreasonable written protocols.
12. Prior to 2013, HCV infection was treated with interferons, which are proteins that work on the immune system. Interferon treatment lasts 48 weeks, has a low rate of effectiveness, and causes debilitating side effects similar to chemotherapy treatment.
13. The medical community has achieved amazing advances in the treatment of HCV infection in the last few years. In late 2013, the U.S. Food and Drug Administration approved the use of direct-acting anti-viral drugs (“DAAs”) for the treatment of HCV infection. DAA treatment lasts 12 weeks, has a high rate of effectiveness in curing HCV infection without the harsh side effects of interferon treatment, and is effective at any stage of the disease.
14. In order to guide medical professionals in the rapidly developing world of HCV treatment, the American Association for the Study of Liver Disease (“AASLD”) and the Infectious Disease Society of America (“IDSA”), the two relevant professional medical associations concerned with the study of HCV, formed the HCV Guidance Panel in mid-2013. The AASLD/IDSA HCV Guidance Panel sets standards for the diagnosis and treatment of HCV infection. Those standards are widely accepted throughout the medical community as the current standard of care and result in a 90+% cure rate depending on genotype and other factors.
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15. In its first report, issued in March 2014, the HCV Guidance Panel stated that the 48-week interferon treatment “has been superseded by treatments incorporating DAAs and should not be used.” Recommendations for Testing, Managing and Treating Hepatitis C, March 17, 2014, http://www.hcvguidelines.org/sites/default/files/full_report.pdf, at p. 20.
16. The HCV Guidance Panel has updated its recommendations several times since its initial report to reflect newly approved DAAs entering the market. The current guidance was issued on July 6, 2016 and definitively establishes a 12-week treatment regimen with DAAs as the medically accepted standard of care. Recommendations for Testing, Managing, and Treating Hepatitis C, July 6, 2016, http://hcvguidelines.org/sites/default/files/HCVGuidance_July_2016_b.pdf. Each iteration of the Panel’s guidance has consistently stated that 48-week interferon treatment is “inferior” to DAA treatment and is “not recommended.”
17. Defendants are keenly aware of the epidemic levels of HCV infection among inmates in Tennessee and nationally. The Department has faced intense media and legislative scrutiny over the epidemic levels of HCV infection in its facilities during the past 6 months. The Department’s current HCV protocol recognizes that HCV is a “silent epidemic” which disproportionately affects “correctional populations.” See Tennessee Department of Corrections, Chronic HCV Guidance: Recommendations for Testing, Managing, and Treating Hepatitis C (January 1, 2016), attached hereto as Exhibit A (hereinafter the “Protocol”). In March 2016, the Department placed the number of its inmates testing positive for HCV at 3,487, or nearly 1 in 6 prisoners, while conceding that this number is likely far below true infection rates due to a lack of routine testing and inaccurate testing. See, e.g., Letter from Schofield to Tennessee House Finance, Ways and Means Committee, March 9, 2016, attached hereto as Exhibit B. The
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Department further acknowledges that nearly half of the inmates tested in 2015 for HCV showed positive test results, a statistic that puts the likely number of inmates infected near 10,000.
18. Defendants are also keenly aware of the community standard of care in the treatment of HCV infection in the prison setting. The Department’s Protocol references the guidance of the AASLD/IDSA HCV Guidance Panel as well as Federal Bureau of Prisons (“FBOP”) guidance, which is consistent with the Guidance Panel’s recommendations. Defendants also acknowledge that the Guidance Panel advises treating all HCV positive individuals, a recommendation that has been adopted by the U.S. Department of Veteran’s Affairs and Medicare. Tennessee Department of Corrections, Management of Chronic Hepatitis C Virus (HCV), May 20, 2016, attached hereto as Exhibit C (hereinafter “Management Guidance”), at p. 7. Defendants further acknowledge that the FBOP’s current policy is to screen all inmates for HCV infection and treat them with DAAs. See Management Guidance at p. 8.
19. Despite Defendants’ knowledge of the epidemic rates of HCV infection in their facilities and their knowledge of the standard of care for treatment of HCV infection, Defendants fail to provide medically accepted care to the vast majority of HCV+ inmates. In fact, as of May 2016, only eight (8) of the 3,487 diagnosed inmates were receiving treatment with DAAs.
20. Defendants’ HCV Protocol establishes an endless loop of procedures and eligibility criteria not based on sound medicine with the end goal of denying inmates treatment. The Protocol establishes a convoluted, multi-step assessment procedure between diagnosis and treatment lasting roughly 45 months. Protocol at pp. 18-20. In practice, that wait time is greatly extended by delays in making appointments, receiving the results of laboratory tests, etc.
21. During this assessment period, a sick inmate risks losing eligibility – and either not receiving treatment or having to start the process over again – for a variety of missteps, none
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of which are based on sound medical reasoning. For example, an inmate who has been disciplined becomes ineligible to continue the process to receive treatment. So does an inmate who has received a tattoo, who has used drugs or alcohol, or who is generally considered by the Department a behavioral risk. Inmates who are not capable of giving informed consent and those with certain mental illnesses will be denied treatment. An inmate who does not understand the multiple pages of technical consent forms will be denied treatment. Id.
22. Defendants conduct this assessment and provide treatment only at certain approved facilities. Inmates housed in other facilities are ineligible for treatment.
23. Further, the Protocol states that an inmate who does not have at least 27 months left on his sentence will be denied treatment. This policy, in addition to being indifferent to the suffering of sick inmates and arbitrary in light of the 12-week course of treatment, creates the risk of an HCV pandemic among the general population, as HCV positive inmates will be released into the broader Tennessee community and will likely infect others.
24. Even if an inmate perseveres and is able to receive treatment, the treatment offered by Defendants falls far below community standards of care. For example, Defendants consider drawing blood to be an appropriate form of HCV treatment. Defendants also consider provision of the hepatitis B vaccine to be an appropriate form of HCV treatment. The Protocol specifically contemplates use of interferons, even though those drugs are widely considered “inferior” and are disfavored for treatment of HCV infection.
25. Defendants have no written policies governing treatment of inmates with DAAs, and instead have intentionally omitted DAA treatment from the Protocol and other policies in order to justify their routine denial of treatment with these life-saving medications.
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26. The Protocol, as well as the policies, recommendations, and guidance established by Defendants and/or the TACHH, govern the management, diagnosis and treatment of HCV infection in all Tennessee penitentiaries. The Protocol and other policies and practices established by Defendants apply both to the Department and all of its vendors, such as Corrections Corporation of America, Corizon, and Centurion.
27. Plaintiffs have been fighting an uphill battle with Defendants to receive treatment for their HCV infection for years without success.
28. Defendants transferred Plaintiff Davis to DeBerry Special Needs Facility in order for him to receive treatment for his HCV infection in 2013. However, he was subsequently transferred out of DeBerry, without explanation, to a different Department facility that does not offer HCV treatment. Since that time, Defendants have denied Plaintiff Davis treatment, explaining to him that the Department has no protocols in place for HCV treatment.
29. Defendants have also denied Mr. Stevenson treatment, although they have refused to provide an explanation for that denial. Instead, Defendants repeatedly tell Mr. Stevenson to schedule an appointment to assess his medical needs, although assessment never progresses to treatment after his appointments.
30. Defendants’ willful indifference to Plaintiffs’ disease causes Plaintiffs prolonged physical and mental pain. Plaintiffs are forced to endure the physical effects of HCV, including pain, cramping, and fatigue. Plaintiffs’ physical suffering is exacerbated by the mental anguish of knowing that the infection will continue indefinitely and the disease will eventually kill them.
31. Both Plaintiffs suffer from constant fatigue due to their infection. Mr. Davis also suffers from acute symptoms, such as diarrhea, constipation, and gastrointestinal pain. Plaintiffs and potential Class members will suffer irreversible harm, such as liver damage, due to
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Defendants’ indifference. Many HCV+ inmates have already died from the disease left untreated while in Department custody.
32. Plaintiffs have filed and exhausted all grievance procedures available to them related to Defendants’ failure to provide adequate treatment to them for HCV. In the event Plaintiffs’ exhaustion efforts suffer from some unknown defect, the relief sought is still warranted absent complete exhaustion to prevent irreparable injury to Plaintiffs and the Class.
CLASS ALLEGATIONS 33. Plaintiffs bring this claim on behalf of themselves and, pursuant to Fed. R. Civ. P. 23(b)(1) and (b)(2), a class of
All persons currently incarcerated in any facility under the supervision or control of the Tennessee Department of Corrections or persons incarcerated in a public or privately owned facility for whom the Tennessee Department of Corrections has ultimate responsibility for their medical care and who have at least twelve weeks or more remaining to serve on their sentences and are either currently diagnosed with Hepatitis C infection or are determined to have Hepatitis C after an appropriate screening test has been administered by The Department of Corrections.
34. This class of persons shall hereinafter be referred to as the “Inmate Class.” Excluded from the Inmate Class are Defendants and any members of their immediate family, as well as immediate family members of the judges.
35. Plaintiffs seek relief from the wrongdoing of Defendants for themselves and for all members of the Inmate Class through Rule 23 of the Federal Rules of Civil Procedure. The putative classes meet the statutory prerequisites of Fed. R. Civ. P. 23(a), as set forth herein.
36. As of May 2016, there were 3,487 known prisoners with Hepatitis C. However, with more than 20,000 inmates currently in Department custody, Plaintiffs believe that the actual
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number of individuals infected with HCV could be three times the number of known cases. Therefore, members of the class are so numerous that joinder would be impracticable.
37. The number and identity of putative class members is easily ascertainable through discovery. Any notice to class members could be given through the already-established channels Defendants use to communicate with individuals in their custody.
38. Plaintiffs’ claims are typical of the claims of the Class, as Defendants’ policies and practices apply to all HCV positive prisoners in Department facilities. Plaintiffs will fairly and adequately represent the interests of all Class members and do not have any interests antagonistic to those of the Class. Plaintiffs have retained counsel with competence and experience in class action and Constitutional litigation.
39. Inmate Class members’ claims involve common questions of both law and fact. The facts relevant to this action are limited simply to the evidence of Defendants’ written policies and unwritten policies, practices and customs regarding the diagnosis and treatment of HCV infection. The injuries sustained by Plaintiffs and all putative class members flow from a common nucleus of operative facts – Defendants’ willful failure to offer adequate medical care. Similarly, this action raises common questions of law regarding the rights of Plaintiffs and Class members to receive adequate medical care and specific contours of Defendants’ obligations under the Eighth Amendment of the U.S. Constitution.
40. This action is maintainable as a class action pursuant to Fed. R. Civ. P. 23(b)(1) because the number of class members is at least 3,487 and may be as much as three times that amount, and the prosecution of separate actions by individuals would create a risk of inconsistent and varying adjudications, which in turn would establish incompatible standards of conduct for Defendants. Additionally, the prosecution of separate actions by individual members could result
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in adjudications with respect to individual members that, as a practical matter, would substantially impair the ability of other members to protect their interests.
41. This action is also maintainable as a class action pursuant to Fed. R. Civ. P. 23(b)(2) because Defendants’ policies and practices that form the basis of this complaint are common to and apply generally to all members of the Inmate Class, regardless of what entity runs the particular facility where an inmate is housed or what entity provides medical care in that facility. All Class members have sustained uniform injury – a lack of adequate medical care – and that injury can be remedied by the Class-wide injunctive and declaratory relief sought.
CAUSE OF ACTION 42 U.S.C. § 1983
VIOLATION OF THE EIGHTH AMENDMENT 42. Plaintiffs hereby re-allege and incorporate each and every allegation set forth above as if fully set forth herein. 43. The Eighth Amendment to the United States Constitution, made applicable to states by the Fourteenth Amendment, guarantees all citizens, including Plaintiffs and the Inmate Class, the right to be free from cruel and unusual punishments. 44. By their policies and practices described herein, Defendants subject Plaintiffs and the members of the putative Class to a substantial risk of serious harm and ultimately death from inadequate medical care. These policies and practices have been and continue to be implemented by Defendants and their agents, officials, employees, and all persons acting in concert with them under color of state law, in their official capacities, and are the proximate cause of the Plaintiffs’ and Class members’ ongoing deprivation of rights secured by the United States Constitution under the Eighth Amendment. 45. Defendants have been and are aware of all the deprivations complained of herein,
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have adopted policies and practices that institutionalize those deprivations, and have been and are deliberately indifferent to the deprivations.
46. Under 42 U.S.C. § 1983, Plaintiffs and the Class are entitled to a declaration that the Defendants’ written policies and unwritten policies, customs and practices are unconstitutional and an injunction requiring Defendants to adopt policies and practices consistent with the accepted standard of care for HCV infection and the public interest.
47. Plaintiffs and Inmate Class members have no adequate remedy at law to redress the wrongs suffered as set forth in this complaint. Plaintiffs have suffered and will continue to suffer irreparable injury, both in the form of physical and mental harm and deprivation of Constitutional rights, as a result of the unlawful policies, and practices of Defendants, as alleged herein, unless Plaintiffs Inmate Class members are granted the relief they request.
WHEREFORE, Plaintiffs and the Class pray for the following relief: 1. Declaration that the suit is maintainable as a class action pursuant to Federal Rule of Civil Procedure 23(a) and 23(b)(1) and (2); 2. Declaration that the policies and practices of Defendants, and their agents, employees, officials, and all persons acting in concert with them, as described herein, are in violation of the rights of Plaintiffs and members of the Inmate Class under the Eighth Amendment to the U.S. Constitution, which prohibits Defendants from inflicting cruel and unusual punishments under color of state law; 3. Preliminarily and permanently enjoin Defendants, their agents, employees, officials, and all persons acting in concert with them under color of state law, from subjecting Plaintiffs and the Inmate Class to the unconstitutional policies and practices described herein;
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4. Order Defendants and their agents, employees, officials, and all persons acting in

concert with them under color of state law, to develop and implement, as soon as practical, a plan

to eliminate the substantial risk of serious harm that prisoner Plaintiffs and members of the

Plaintiff Class suffer due to Defendants’ inadequate diagnosis, assessment and treatment of HCV

infection. Defendants’ plan shall comport with the community standard of care and the advice

of medical experts.

5. Award Plaintiffs the costs of this suit, and reasonable attorneys’ fees and litigation

expenses pursuant to 42 U.S.C. § 1988, and other applicable law;

6. Retain jurisdiction of this case until Defendants have fully complied with the

orders of this Court, and there is a reasonable assurance that Defendants will continue to comply

in the future absent continuing jurisdiction; and

7. All other relief, legal or equitable, that the Court deems just and proper.

Dated: July 25, 2016

Respectfully submitted,

/s/ Karla M. Campbell Karla M. Campbell (BPR 27132) BRANSTETTER, STRANCH
& JENNINGS, PLLC The Freedom Center 223 Rosa L. Parks Avenue, Suite 200 Nashville, TN 37203 Phone: (615) 254-8801 Fax: (615) 255-5419 karlac@bsjfirm.com

Thomas H. Castelli (BPR 24849) AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF TENNESEEE P.O. Box 120160 Nashville, Tennessee 37212 Phone: (615) 320-7142 Fax: (615) 691-7219 tcastelli@aclu-tn.org

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Elizabeth S. Logsdon (BPR 32066) DISABILITY RIGHTS TENNESSEE 2 International Plaza, Suite 825 Nashville, Tennessee 37217 Phone: (615) 298-1080 Fax: (615) 298-2046 lizl@disabilityrightstn.org
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Chronic HCV Guidance:
Recommendations for Testing, Managing, and Treating Hepatitis C
EXHIBIT A
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Table of Contents
Chronic HCV Guidance: ........................................................................................................................................................... 1 Recommendations for Testing, Managing, and Treating Hepatitis C ..................................................................................... 1 Introduction ............................................................................................................................................................................ 3 Disease Progression ................................................................................................................................................................ 3 HCV Infection: Screening Criteria, Risk Factors, and Recommended Testing......................................................................... 4 Initial Evaluation of HCV+ ....................................................................................................................................................... 5 Assess for Hepatic Cirrhosis and Decompensation................................................................................................................. 5 TDOC Criteria for HCV Treatment ......................................................................................................................................... 10 Pretreatment Assessment .................................................................................................................................................... 11 Antiviral Treatment............................................................................................................................................................... 11 Post-Treatment Monitoring .................................................................................................................................................. 13 Ongoing Monitoring.............................................................................................................................................................. 13 Appendix ............................................................................................................................................................................... 13 Hepatitis C Patient Counseling.............................................................................................................................................. 15 Initial Lab Studies to Order ................................................................................................................................................... 13 Hepatitis C Treatment Consent/Agreement ......................................................................................................................... 13 Hepatitis C Treatment Algorithm .......................................................................................................................................... 13 Hepatitis C Pre-Treatment Evaluation Work Sheet .............................................................................................................. 13 Hepatitis C Treatment Monitoring Schedule ........................................................................................................................ 13 Works Cited........................................................................................................................................................................... 24
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Introduction
Viral Hepatitis has been labeled “the silent epidemic” by the United States Department of Health and Human Services, but we in correctional healthcare have known little silence from this prevalent disease. (HHS) Hepatitis C Virus (HCV) Infection has become the most common cause of death from a viral illness in the United States surpassing HIV. Correctional populations have a much higher burden of disease related to HCV infection than the general population. Many who are affected may exhibit little to no symptoms of the infection. This guideline will assist providers in screening, diagnosis, and managing chronic hepatitis C patients within the Tennessee Department of Corrections. This document will serve as a replacement of the Pre-Treatment HCV Program last updated in April 2014.
Disease Progression
Those affected by HCV often progress gradually through different stages of disease. About 15-25% may resolve the initial infection and resolve the infection. Another 75-85% will progress to chronic hepatitis C infection. This is the main target patient population for this guideline.
Figure 1 Natural Progression of HCV Infection
Reference: Medscape: http://emedicine.medscape.com/article/177792-overview Acute Hepatitis C infection also known as “acute phase” should be treated on a case by case basis with supportive treatment being paramount. Some patients may need an admission into infirmary with serial laboratories drawn and IVF. Those patients that go on to resolution (Negative HCV RNA 6 months or more out from initial infection) should be followed like any other inmate in a preventative health program but should not be enrolled in Q90 day hepatitis C chronic care program, so long as he or she has no cirrhosis, complications, or related comorbidities. They should have clearly documented on the problem list that Hepatitis C has resolved and the date of resolution documented on CR Form 1894 Major Medical Conditions Problem List.
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HCV Infection: Screening Criteria, Risk Factors, and Recommended Testing
Screening Criteria for testing for HCV infection is recommended for: x Sentenced inmates with risk factors for HCV infection x All inmates with certain clinical conditions x Inmates who request testing.
Testing for HCV infection at the prevention baseline visit is recommended for sentenced inmates who have the following risk factors:
x Ever injected illegal drugs or shared equipment (including intranasal use of illicit drugs) x Received tattoos or body piercings while in jail or prison, or from any unregulated source x HIV or chronic hepatitis B virus (HBV) infection x Received a blood transfusion or an organ transplant before 1992, or received clotting factor transfusion prior to
1987 x History of percutaneous exposure to blood x Ever received hemodialysis x Born to a mother who had HCV infection at the time of delivery
HCV testing is recommended for all inmates with the following clinical conditions, regardless of sentencing status: x A reported history of HCV infection without prior medical records to confirm the diagnosis x chronic hemodialysis – screen alanine aminotransferase (ALT) monthly and anti-HCV semiannually x Elevated ALT levels of unknown etiology x Evidence of extrahepatic manifestations of HCV – mixed cryoglobulinemia, membranoproliferative glomerulonephritis, porphyria cutanea tarda, vasculitis
The preferred screening test for HCV infection is an immunoassay that measures the presence of antibodies to HCV antigens, referred to as HCV Ab or anti-HCV.
Note: Unless clinically indicated (see clinical conditions under Screening Criteria above), screening should ordinarily not be pursued for asymptomatic, highly mobile, nonsentenced inmates. Refusal of testing of sentenced inmates who have risk factors for HCV infection, but who refuse testing at the baseline visit, should be counseled about and offered HCV testing during periodic preventive health visits
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Initial Evaluation of HCV+
Initial evaluation of anti-HCV positive (antibody positive) inmates includes:
x a baseline history and physical examination x lab tests (see below) x calculation of the APRI score to determine fibrosis x Assessment of the need for preventive health interventions such as vaccines and screenings for other
conditions x Counseling on information related to HCV infection1
Recommended Lab Tests 2:
x Complete blood count (CBC); prothrombin time (PT) with International Normalization Ratio (INR); liver panel (albumin, total and direct bilirubin, serum alanine aminotransferase [ALT] and aspartate aminotransferase [AST], and alkaline phosphatase); serum creatinine; and calculated glomerular filtration rate (GFR).
x Hepatitis B surface antigen (HBsAg) and HIV antibody (anti-HIV or HIV Ab). x Quantitative HCV RNA viral load testing to determine if the inmate has active or resolved HCV infection. x Ordinarily, testing for HCV genotype may be deferred until the time of pretreatment evaluation. x Unless otherwise clinically indicated, testing for other causes of liver disease—e.g., antinuclear antibody (ANA),
ferritin, iron saturation, ceruloplasmin—are not routinely ordered in the evaluation of a positive HCV Ab test.
All inmates who are anti-HCV positive should be evaluated to assess the need for the preventive health interventions, including the following:
x Hepatitis B vaccine: Indicated for susceptible inmates with chronic HCV infection. For foreign-born inmates, consider prescreening for hepatitis B immunity prior to vaccination.
x Inmates with evidence of liver disease should be priority candidates for hepatitis B vaccination. x Hepatitis A vaccine: Indicated for susceptible inmates with chronic HCV infection who have other evidence of
liver disease. For foreign-born inmates, consider prescreening for hepatitis A immunity prior to vaccination. x Influenza vaccine: Offer to all HCV-infected inmates annually. x Inmates with cirrhosis are high priority for influenza vaccine.
Assess for Hepatic Cirrhosis and Decompensation
Cirrhosis is a condition of chronic liver disease marked by inflammation, degeneration of hepatocytes, and replacement with fibrotic scar tissue. The natural history of HCV is such that 50–80% of HCV infections become chronic. (FBOP, 2015) Progression of chronic HCV infection to fibrosis and cirrhosis may take years in some patients and decades in others—or, in some cases, may not occur at all.

1 See Attachment I 2 See Attachment II

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STAGES OF FIBROSIS — Noninvasive tests of hepatic fibrosis attempt to predict the stage of hepatic fibrosis that would be seen histologically. There are several histologic scoring systems for chronic liver disease. Many use five-point scales such as the METAVIR score. Many authors will drop the “F” prefix and simple call F3, for example, Stage 3.
x F0: No fibrosis x F1: Portal fibrosis without septa x F2: Few septa x F3: Numerous septa without cirrhosis x F4: Cirrhosis
Patients are typically considered to have significant fibrosis if their fibrosis score is ≥F2. (UpToDate)
Most complications from HCV infection occur in people with cirrhosis. Patients with advanced hepatic fibrosis (primarily stage 3) have a 10% per year rate of progressing to cirrhosis (stage 4). Those with cirrhosis have a 4% per year rate of developing decompensated cirrhosis, and a 3% per year rate of developing hepatocellular carcinoma.
Physical exam in a hepatitis C patient may be normal until end-stage disease. Some common findings of end-stage disease include:
x Skin changes: Spider angiomata, palmar erythema, jaundice, scleral icterus, ecchymoses, caput medusa, hyperpigmentation
x Hepatomegaly (small liver in end-stage disease) x Splenomegaly if portal hypertension x Central obesity x Abdominal fluid wave, shifting dullness if ascites x Gynecomastia x Dupuytren contractures x Pretibial, presacral pitting edema and clubbing (especially in hepatopulmonary syndrome) x Asterixis; mental status changes x Muscle wasting, weakness
Assessing for cirrhosis is important for prioritizing inmates for treatment of HCV and in determining the need for additional health care interventions.
Cirrhosis may be diagnosed in several ways:
x Symptoms and signs that support the diagnosis of cirrhosis may include: low albumin or platelets, elevated bilirubin or INR, ascites, esophageal varices, and hepatic encephalopathy. However, isolated lab abnormalities may require additional diagnostic evaluation to determine the etiology.
x The AST to Platelet Ratio Index (APRI) or APRI score has been used by both the AASLD and BOP as the preferred method for non-invasive assessment of hepatic fibrosis and cirrhosis: o The APRI score, a calculation based on results from two blood tests (the AST and the platelet count), is a less invasive and less expensive means of assessing fibrosis than a liver biopsy. The formula for calculating the APRI score is [(AST/AST ULN) x 100 / (platelet count x 103/μL / 1,000). o An APRI score ≥ 2.0 may be used to predict the presence of cirrhosis. At this cutoff, the APRI score has a sensitivity of 48%, but a specificity of 94%, for predicting cirrhosis. Inmates with an APRI score ≥ 2.0 should have an abdominal ultrasound performed to identify other findings consistent with cirrhosis (see
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abdominal imaging studies below in this list). Lower APRI scores have different sensitivities and specificities for cirrhosis. For example, an APRI score ≥ 1 has a sensitivity of 77% and a specificity of 75% for predicting cirrhosis.
 An APRI score is not necessary for diagnosing cirrhosis if cirrhosis has been diagnosed by other means.
o The APRI may also be used to predict the presence of significant fibrosis (stages 2 to 4, out of 4). Using a cutoff of ≥ 1.5, the sensitivity is 37% and specificity is 95% for significant fibrosis.
o APRI calculators (click here for APRI Score) are readily available on the Internet at: http://www.hepatitisc.uw.edu/page/clinical-calculators/apri. This is an AST to Platelet Ratio Index calculator tool. Enter the required values to calculate the APRI value. The APRI Score will appear in the oval on the far right (highlighted in yellow). Most laboratories use 40 IU/L as the value for the AST upper limit of normal.
Source: http://www.hepatitisc.uw.edu/page/clinical-calculators/apri
x Abdominal imaging studies such as ultrasound or CT scan may identify findings consistent with or suggestive of cirrhosis (nodular contour of the liver), portal hypertension (ascites, splenomegaly, varices), or hepatocellular carcinoma (HCC). o Initiation of a referral for assessment for cirrhosis by onsite ultrasound will be necessary.
x A Liver biopsy is no longer required to confirm diagnosis unless otherwise clinically indicated. However, the presence of cirrhosis on a prior liver biopsy may be used to meet the criteria for HCV treatment.
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Decompensation of liver disease has been closely linked to prognosis. Decompensation can be differentiated from compensated through the following method:
x The AASLD and FBOP have used the Child-Turcotte-Pugh (CTP) score as a tool to help determine the severity of cirrhosis and is used by to distinguish between compensated and decompensated liver disease. (AASLD) o CTP calculators are readily available on the Internet at: http://www.hepatitisc.uw.edu/page/clinical-
calculators/ctp
o Once cirrhosis has been determined, the CTP can assess the severity of cirrhosis and help in distinguishing between compensated and decompensated liver disease.
o The CTP score includes five parameters (albumin, bilirubin, INR, ascites, and hepatic encephalopathy), each of which is given a score of 1, 2, or 3. The sum of the five scores is the CTP score, which is classified as shown in the table below:

CTP Score
5–6 7–9 ≥ 10

CTP Class
Class A Class B Class C

Hepatic Compensation
Compensated cirrhosis
Decompensated cirrhosis

o A CTP score of 5 or 6 is considered to be compensated cirrhosis, while a score of 7 or greater is considered decompensated. Please note CTP class or CTP grade can be used interchangeably.
o It is recommended that cases of decompensated cirrhosis be managed in consultation with a clinician experienced in the treatment of this condition because the dosages of DAA medications are not wellestablished with severe hepatic impairment. These cases should be referred to the TACHH3.
o Inmates with CTP Class C decompensated cirrhosis may have a reduced life expectancy and should be considered for medical furlough in accordance with current TDOC Policy Medical Furloughs( Policy# 511.01.1)
o Consider all patient with a CTP >7 for medical furlough as prognosis increases with increased score. o On all patient with CTP>7 please provide MELD score for further prognosis
 Prognosis for patient with liver disease can be estimated based on CTP and MELD score  Found at: http://www.hepatitisc.uw.edu/page/clinical-calculators/meld

Prognosis

CTP Score

½ year Survival

Total 5-6 = Class A or well compensated:

100%/85%

Total 7-9 = Class B or significant functional compromise:

80%/60%

Total 10-15 = Class C or decompensated:

45%/35%

3 TDOC Advisory Committee on Hepatitis C and HIV

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 Consider all patient with a CTP >7 for medical furlough as prognosis increases with increased score.
 On all patient with CTP>7 please provide MELD score for further prognosis o The Model for End Stage Liver Disease (MELD) predicts survival for patients with advanced liver disease.
It has been used to estimate 3-month mortality for severe liver disease patients.  Prognosis for patient with liver disease can be estimated based on CTP and MELD score  Source found at: http://www.hepatitisc.uw.edu/page/clinical-calculators/meld
o The estimated 3-month mortality is based on the MELD score. The higher the score the higher likelihood of mortality within the time range.

MELD Scoring

MELD Score

Mortality Risk

40 or more

71.3% mortality

30-39

52.6% mortality

20-29

19.6% mortality

10-19

6.0% mortality

<9

1.9% mortality

Source: Kamath PS, Kim WR; Advanced Liver Disease Study Group. The model for end-stage liver disease (MELD). Hepatology. 2007;45:797-805

Special Considerations for Patients with Cirrhosis:
• Pneumococcal vaccine: Offer to all HCV-infected patients with cirrhosis who are 19 through 64 years of age
• Hepatocellular carcinoma (HCC) screening: Liver ultrasound is recommended every six months for patients with both cirrhosis and chronic HCV infection.
• Esophageal varices screening: Screening for esophageal and gastric varices with esophagogastroduodenoscopy (EGD) is recommended for patients diagnosed with cirrhosis. Initiation of a referral to GI or Hepatology will be necessary.
Other healthcare interventions recommended for patients with cirrhosis may include:
• Nonselective beta blockers for prevention of variceal bleeding in patients with esophageal varices. • Antibiotic prophylaxis if risk factors are present for spontaneous bacterial peritonitis. • Optimized diuretic therapy for ascites. • Lactulose and rifaximin therapy for encephalopathy.
In general, NSAIDs should be avoided in advanced liver disease/cirrhosis, and metformin should be avoided in decompensated cirrhosis. The detailed management of cirrhosis is beyond the scope of these guidelines. Other resources should be consulted for more specific recommendations related to this condition.
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TDOC Criteria for HCV Treatment4
Priority Level 1- Highest x Cirrhotics x CTP 7-9 are highest priority x Liver transplant candidates x Hepatocellular Carcinoma* x Comorbid conditions like certain lymphomas, hematologic malignancies and cryoglobulinemia with renal disease or vasculitis x Continuity of Care for those already on medications prior to incarceration
Priority Level 2- High Priority x APRI ≥ 2.0 without other clinical findings x HBV x HIV x Comorbid liver disease x Advanced fibrosis of F3 (Metavir Stage, bridging fibrosis) or worse
Priority Level 3- Intermediate Priority x Stage 2 Fibrosis on liver biopsy x APRI score 1.5 to < 2 x DM
x Porphyria cutanea tarda
Priority Level 4- Routine Priority x Stage 0 to Stage 1 fibrosis on liver biopsy x All other cases of HCV infection meeting the eligibility criteria for treatment.

4 Based on FBOP Priority Levels (FBOP, 2015)

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Pretreatment Assessment
Recommended Treatment Regimens for HCV continue to evolve, but still depend on several factors: x HCV genotype x Prior HCV treatment history x Compensated vs. decompensated liver disease
Pretreatment assessment should be accomplished within three months of the projected start of treatment and should include the following:
x Laboratory tests including CBC, PT/INR, liver panel, serum creatinine, calculated GFR, quantitative HCV RNA viral load sensitive to ≤ 25 IU/ml, HCV genotype, and urine drug screen.
x Calculation of the APRI score using results from the pretreatment labs. (An APRI score is not needed if there is confirmed cirrhosis.)
x Calculation of current CTP score for inmates with known or suspected cirrhosis. x Assessment for significant drug-drug interactions and current/prior medication adherence. x Review of incident report history for high-risk behaviors (alcohol/drug possession/use; tattooing). x For ribavirin-containing regimens: In addition to the above, a pretreatment ECG is recommended for inmates
with preexisting coronary heart disease. x For interferon-containing regimens: In addition to the above, pretreatment evaluation should include a WBC
with differential, TSH/free T4. Such regimens should also include a mental health evaluation.
Antiviral Treatment5
Patient should be referred to the TDOC Advisory Committee on Hep C and HIV (TACHH) for antivirals. Those patients found to qualify for treatment will be referred to our hepatitis C consultant. Preferred treatment regimens are beyond the scope of this document and will be determined by the TACHH and hepatitis C consultant. Please refer to the AASLD/IDSA/IAS-USA guidelines (www.hcvguidelines.org) for recommended treatment regimens. Based on the Centurion Guideline, updated on March 2015, patients currently being considered for antiviral treatments will be qualified based on fibrosis and staging. (Centurion, 2015) Those that have moderate to high risk for advanced hepatic fibrosis are worked up and staged using APRI/FIB4 and other modalities to ensure proper staging. Those with F3 to F4 staging should be referred to the TACHH to be qualified for antiviral administration.
5 Review information noted in the Attachment III: HEPATITIS C TREATMENT CONSENT/AGREEMENT Page 11 of 24
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Special Consideration for antiviral treatment. Patient should have:
x No contraindications to or significant drug interactions with any component of the treatment regimen x GFR ≥ 30 x Not to be pregnant, especially for riba and IFN regimen x Life expectancy of greater than 18 months x Willingness and ability to adhere to a rigorous treatment regimen and abstain from risky behaviors x At least 9 months on prison sentence from the start of medications
Contraindications to antivirals treatment include (at the time of medication administration):
x GFR less than 30. x Contraindications to, or significant drug interactions with, any component of the treatment regimen x Life expectancy of less than 18 months x Less than 9 months remaining on their sentence in the TDOC to complete a course of treatment (relative
contraindication). x Pregnancy is a relative contraindication, especially for any regimen that would require ribavirin or interferon x Received a tattoo within the last year x Caught using/or in possession of illicit drugs, non-prescribed medications, alcohol or injectable drug apparatus in
the last year x Inability to give informed consent x Solid organ transplant recipient x Non-compliant or prefers to continue risky behavior
 Demonstrate an unwillingness and an inability to adhere to a rigorous treatment regimen and to abstain from high-risk activities while incarcerated
On-Treatment Monitoring
On-treatment monitoring should include the following:
x An outpatient clinic visit at 2 weeks and 4 weeks after starting therapy, and monthly thereafter; more frequently as clinically indicated.
x Labs drawn 4 weeks after the start of therapy should include CBC, creatinine, calculated GFR, liver panel, and quantitative HCV viral load; others as clinically indicated.
x For regimens containing interferon and/or ribavirin: A CBC should also be drawn 2 weeks after starting therapy, then at 4 weeks, then monthly; more frequently as clinically indicated. Interferon and/or ribavirin dosage adjustments may be required.
x Increases in the ALT may require more frequent monitoring or early discontinuation.Early discontinuation of HCV treatment is recommended if ALT increases by tenfold, or by a less than tenfold increase if accompanied by symptoms related to hepatic dysfunction. Asymptomatic ALT increases of less than tenfold should be monitored approximately every 2 weeks.
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x If the quantitative HCV viral load is detectable after 4 weeks of treatment, it should be repeated 2 weeks later. Early discontinuation of HCV treatment is recommended only if there is > 1 log increase from the nadir in HCV viral load after 6 weeks or more of treatment.
Note: HCV viral load testing is no longer required at the end of treatment, but should be obtained in all cases that failed to achieve undetectable levels during treatment.
x A test for thyroid stimulating hormone (TSH) is recommended every 12 weeks only for patients receiving regimens containing interferon. For a 12-week regimen, a TSH should be drawn at the end of treatment, in addition to the pretreatment baseline.
x Pregnancy testing is required prior to treatment with ribavirin-containing regimens, and then periodically during and after treatment—usually monthly during treatment and for 6 months after completion of treatment.
x Testing for HCV drug-resistant mutations is not routinely recommended at this time.
Post-Treatment Monitoring
x A quantitative HCV RNA viral load assessment is recommended at 12 weeks after completion of treatment; if HCV is undetectable, it defines a sustained virologic response (SVR).
x If the HCV viral load is again undetectable at 6 to 12 months after the end of treatment, the inmate may be removed from the chronic care clinic, so long as he or she has no cirrhosis, complications, or related comorbidities.
x Recurrent viremia following an SVR may be due to relapse or reinfection. To help distinguish between the two in such cases, an HCV genotype, along with subtyping for genotype 1, should be obtained.
Ongoing Monitoring
Periodic monitoring is recommended for all those with active infection, including acute HCV infection, HCV treatment failures, relapse of HCV infection or reinfection, and those with chronic HCV infection who are not yet treated.
x For cases without advanced fibrosis, cirrhosis, or complications, annual evaluation is appropriate. This evaluation should include a focused review of systems and patient education relevant to HCV, vital signs and a focused physical examination, and lab monitoring (CBC, PT/INR, liver panel, serum creatinine, calculated GFR, and calculation of the APRI score).
x For patients with cirrhosis or significant comorbidities, evaluation is recommended at least every six months; more frequently as clinically indicated.
x In cases of acute HCV infection, monitoring for spontaneous clearance of the infection with ALT and quantitative HCV RNA levels every four to eight weeks, for six to twelve months, is recommended. If viremia persists after that time, continue to monitor and manage the case as a chronic infection.
x In most cases of acute HCV infection, treatment may be deferred to allow for spontaneous clearance of viremia. However, in some cases there may be a compelling reason to treat the acute infection in order to prevent severe complications, e.g., HCV infection superimposed on established cirrhosis or advanced fibrosis.
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Appendix
x Attachment I: Hepatitis C Patient Counseling x Attachment II: Initial Lab Studies to Order x Attachment III: Hepatitis C Treatment Consent/Agreement x Attachment IV: Hepatitis C Pre-Treatment Evaluation Work Sheet x Attachment V: Hepatitis C Treatment Algorithm x Attachment VI: Hepatitis C Treatment Monitoring Schedule
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Attachment I
HEPATITIS C PATIENT COUNSELING
1. Information on Disease Natural History:  Most people with Hepatitis C can remain healthy, manage the disease and lead full, active lives.  The risk of developing serious liver disease is small ranging from 5% to 25% over a period of 25-30 years in most cases.  It is difficult to predict which HCV-infected persons will develop cirrhosis or who will respond to treatment.
2. Information on Evaluation:  The provider may have to extract a sample of the patient’s liver with a needle to determine the extent of liver damage. In most instances, there are no complications, however rarely internal bleeding may occur, as well as leak of bile from the liver and gallbladder.  It is mandatory that the patient makes it to his/her scheduled provider visits as well as allow for blood draws during evaluation and treatment. Patients who refuse a blood draw will be terminated from the treatment program.  Patient may undergo random blood or urine testing for illegal substances and that any positive test may result in stopping, or loss of eligibility for, treatment.  Certain medical-mental health conditions/medication intolerance/pregnancy many prevent a patient from being treated safely and effectively.  An adequate amount of time must be available to safely and effectively treat the patient while incarcerated to maximize good patient outcomes while minimizing side effects.
3. Information on Treatment:
 Current treatment is very effective with some risk of serious side effects.  Initial (first few weeks) side effects may include flu-like symptoms with some drug regimens, but should gradually improve.  Current treatment regimens include a medication that may be injected every week for up to 48 weeks.  Adherence to the drug regimen is mandatory to increase the likelihood of cure. Patients who are non-compliant will be terminated
from the treatment program.  Treatment will continue to evolve over the next few years as experts develop new medications that will work even better, and
better tolerated by the patient.
4. Prevention:  The infection can be spread even if the patient “feels fine”.  Patient should not shoot drugs, use alcohol, have sex with other inmates, get a tattoo or body piercing.  Patient should not share personal items that might have be tainted with blood, such as; tooth brushes, nail files, clippers or razors.  Patient should cover cuts and skin sores to keep blood from contacting other people.
My signature below signifies my understanding of, and agreement to comply with the information above. I understand that failure to comply may result in loss of eligibility for treatment or discontinuation of treatment in progress. Reconsideration for treatment is not guaranteed but may occur on a case by case basis if activity is stopped.
Patient Name: _____________________________________________________________TDOC ID#___________________________________
Patient Signature: __________________________________________________________
Clinician Name: ______________________________________________
Clinician Signature: _____________________Date______/______/_______
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Attachment II
INITIAL LAB STUDIES TO ORDER *

1. CBC with Differential x Includes red blood cell indices (MCV) and platelet count
2. CMP (Complete Metabolic Profile) x Includes creatinine, alkaline phosphatase., total bilirubin, ALT, AST and albumin (Calculated GFR)
3. PT/INR

4.

TSH

5. Hep C Antibody

6. If Hep C antibody is positive then check for below: x Hepatitis B Antigen

o If not done in previous 6 months. Do not repeat if previously positive

x HIV Antibody Screen

o If not done in previous 6 months. Do not repeat if previously positive

7.

x HCV RNA

* If not obtained within last 90 days Note: see attachment VI for recommendations for labs pre-treatment and during antiviral therapy.

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Attachment III

HEPATITIS C TREATMENT CONSENT/AGREEMENT

Treatment of Hepatitis C is reserved for eligible patients who understand the commitment to therapy, will tolerate and comply with the course of treatment, and agree to avoid all activities that may worsen their liver disease or infect themselves or others with the Hepatitis C virus or other blood borne pathogens. Every patient who is considered for treatment must complete this agreement before a liver biopsy is performed and/or before initiation of therapy.

Patient’s Initials

I understand that the therapy may be of no benefit to me, and that it may not free or clear me of the Hepatitis C infection.
I have been informed that side effects of treatment of Hepatitis C may include fatigue, body aches and other serious side effects that may continue throughout my treatment with the medication.
I understand that I may be tested for HIV before beginning treatment as the presence of the HIV virus could seriously affect my Hepatitis C infection and its treatment.
I understand that the treatment with medication may continue for up to 12 months and that frequent blood testing will be needed to check for side effects or other problems.

I understand that treatment for Hepatitis C may cause mental health side effects, especially depression.

I understand that I must not become pregnant or attempt to impregnate my partner during my Hepatitis C antiviral treatment or for 6 months after stopping treatment. I understand that I must use two forms of birth control during heterosexual activity while taking medication, and for 6 months after medication ends.
I understand that my failure to comply with the medication, blood testing, or regular appointments may result in my provider stopping the therapy.*
I understand that alcohol injures the liver and drinking alcohol is forbidden.

I understand that I must abstain from any activity that may transmit the Hepatitis C virus or other blood borne pathogens. This includes tattooing, sexual activity in prison, IV drug use and intranasal drug use. This activity may result in loss of eligibility for treatment or stopping treatment in progress.*
I understand that I may be required to undergo random blood and urine testing for illegal substances and that any positive test may result in stopping, or loss of eligibility for treatment . *
I understand that completion of this agreement does not guarantee that I will be approved for Hepatitis C treatment.
My initials and my signature below signify my understanding of, and agreement to comply with the requirements. I understand that failure to comply may result in loss of eligibility for treatment or discontinuation of treatment in progress. *
* Loss of eligibility or treatment stopped for minimum of 1 year. Reconsideration for treatment not guaranteed, but may occur on case by case basis if activity is stopped.

Patient Name

Patient Signature:___________________________________

Last:_____________________________________________ First: _____________________________MI______________
TDOC# _____________________ D.O.B._________________

Clinician Name:______________________ Date:___/___/___
Clinician Signature:_________________________________

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Attachment IV Recommended Initial Pathway for HCV Management

LFTs Noted on intake

Assess for Screening Criteria (See Table 1)

HCV Antibody Negative

HCV Antibody Positive

Reassess as needed based on screening criteria. Consider other causes besides HCV

Assess for acute Hep C? Symptoms Worsen

No findings support acute exposure/ infection

Acute Hep C present. Provide supportive care as
needed

Continue Chronic Care every 90 days,
check viral load.

Positive Chronic Hep C
Chronic Care for HCV Q 90 Days
Go to next page

At 6 months post diagnosis repeat viral load HCV RNA Levels

Negative (Resolved Hep C)
Mark as “Resolved” on Major Medical Conditions, check LFTs annually. Follow
up as needed.

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1st Visit CCC (Infectious Disease)
(Nurse)
No
Provider Education and Counseling
Does inmate wish to be considered a treatment
candidate

Is sentence remaining less than 9 months? (at the time of medication
administration)

Yes
Not eligible for Rx due to continuity of care
interruption
Provider Education/ Counseling

No
2nd Visit (Provider)

Documentation F/U 6 mos./PRN

Yes

Are there known disqualifiers

See pg. 12

No

Q & A w. Provider

See pg. 17

Pt Signs Rx consent agreement

Refuses

Yes
Provider Counsels Pt

3rd Visit (Provider)

Medical Hx Reviewed/Classified

See pg. 12

Apply Exclusion Criteria

Excluded?

Yes

F/U as indicated

Physical Exam
Reconfirms Pt’s Desire to Remain RX Candidate

See pg. 12

Apply Exclusion Criteria

Excluded?

Yes

Order Initial Lab Screen for Next Visit

See pg. 16

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APRI/CTP MELD if needed

Cirrhosis

YES

NO

4th Visit (Provider)

Decompensated?
YES – If > 9, Refer to medical furlough process, refer to TACHH
5-7, refer to TACHH
NO – Refer to TACHH

Reconfirm Pt’s Desire to remain Rx Candidate

Apply exclusion criteria

Order Viral Load

Resolved Hep C Early in disease

Negative

No need for Hep C Rx

Positive

Active Hep C Chronic Hep C

Recheck viral load in 6 months. And supportive care/CCC
If still positive
/HIV Order HBV
antibody/ surface Ag

Negative
Begin HCV Vaccination
Series

Positive

US/EGD
Continue Chronic Care Q 90 Days

If negative

If positive

Order HCV Genotype

Check Genotype

Provider reviews all
evaluation results and Yes
presents Pt to Committee
via teleconference (TACHH)

At least 12 mos. Left on sentence?
No
Not eligible for RX due to treatment
interruptions

F/U with Chronic Care
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Refer to Pre-Treatment Evaluation Flow Chart

Attachment V

HEPATITIS C PRE-TREATMENT EVALUATION WORK SHEET

Submit with request for consult TDOC Advisory Committee on Hepatitis and HIV (TACHH)

Patient Name:______________________________
(Last Name, First Name)
TDOC #:___________________________________

Date of Projected Parole/Sentence expiration
_____________________

Previous Antiviral Treatment (Y/N)? If so, what med? How long?

1.0 Patient educated and counseled about Hepatitis treatment

Consent Form signed 2.0
HIV/HBV co-infection or other liver disease?

Labs ordered

Medical History reviewed/Exclusion criteria applied  Sentenced inmate with 9 months remaining on sentence to complete a course of treatment prior to

hallway house (RRC), home confinement, or GCT/Full Term release.

3.0

 No sanctions for drug or alcohol/intoxicant possession/use, or tattooing within previous 1 year.

 No documented non-adherence to prior therapy, failure to complete pretreatment evaluation process,

or unwillingness to commit or consent to HCV treatment.

 No contraindications or drug interactions with requested treatment regimen

 No uncontrolled or unstable medical or mental health conditions  No current pregnancy

Physical Completed

Age: DOB: Race:
TSH: PT-INR:
Albumin (g/dl):

Bilirubin (MG/dl):

Creatinine:

Yes/No Yes/No Yes/No Yes/No
Yes/No
Yes/No

4.0

Platelets Count: AST:

APRI:

APRI Date:

Child-Turcotte-Pugh Score (CTP):

Stage (0-5) : ______ ☐N/A ☐None Amount of Fibrosis:
☐Portal ☐ Periportal ☐ Bridging ☐Cirrhosis
MELD:

Yes/No

Viral load ordered

Viral load:

Hepatitis B antibody/surface antigen ordered

Hepatitis B vaccine given 5.0
Genotype:

EQ/ml

Yes/No Yes/No Yes/No

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TDOC HIV-HEP C Advisory Committee

Liver biopsy Fibroscan 6.0
Treatment Approved

Fibrotest

Date:

Required Documentation – include copies of the following with this request:  CBC, serum creatinine and eGFR, liver panel, INR (dated within 90 days of request)  HCV RNA viral load (reported as IU/ml) and genotype (dated with 90 days of request)  HIV Ab – if positive, include CD4 and HIV viral load (dated within 90 days of request) and current
antiretroviral medication regimen  Hepatitis B serology (sAb and sAg) – if sAg reactive, include eAg, eAb, and HBV DNA viral load  Liver biopsy report (if performed)  For regimens with peginterferon include WBC differential, TSH & free T4 (dated within 90 days of
request) and a mental health assessment (dated within 6 months of request)  If cirrhosis (defined by pathology or clinical findings), include abdominal US or CT and EGD  Pregnancy test if woman with child-bearing potential (dated within 90 days of request)  Signed consent to Hepatitis C Treatment form
Comments: (other pertinent diagnosis or facts that will affect Treatment)

Yes/No Yes/No Yes/No

Submit with request for TACHH/Hepatitis C consultant

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Attachment VI Hep C Treatment Monitoring Schedule
Source: FBOP Guidance on Evaluation and Management of Chronic HCV Infection Note: TDOC guidance follows baseline labs evaluation with the addition of TSH
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Works Cited
AASLD. (n.d.). HCV Guidance: Recommendation for Testing, Managing, and Treating Hepatitis C. Retrieved September 09, 2015, from http://www.hcvguidelines.org/
Centurion. (2015, March). Centurion Disease Management Guidelines: HCV-Infected Patients. Retrieved September 09, 2015, from MHM Services Portal: https://portal.mhmservices.com/Clinical%20Operations/CenturionGuidelines/Forms/AllItems.aspx?RootFolder=%2FClinical%20Ope rations%2FCenturionGuidelines%2FCenturion%20Medical%20Management%20Program%2FCenturion%20Chro nic%20Disease%20Management%20Protocols%2
FBOP. (2015, July ). Evaluation and Management of Chronic Hepatitis C Virus Infection. Retrieved September 09, 2015, from www.bop.gov: http://www.bop.gov/resources/pdfs/hepatitis_c.pdf
HHS. (n.d.). Retrieved September 09, 2015, from https://aids.gov/pdf/viral-hepatitis-action-plan.pdf UpToDate. (n.d.). Noninvasive assessment of hepatic fibrosis: Overview of serologic and radiographic tests. Retrieved
September 11, 2015, from http://www.uptodate.com/contents/noninvasive-assessment-of-hepatic-fibrosisoverview-of-serologic-and-radiographictests?source=search_result&search=stages+of+fibrosis&selectedTitle=1~150
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EXHIBIT C
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 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

CHARLES GRAHAM aka CHARLES

)

STEVENSON and

)

RUSSELL L. DAVIS, on behalf of

)

themselves and all others similarly situated, )

)

Plaintiffs,

)

)

v.

) No. 3:16-CV-1954

)

TONY C. PARKER, Commissioner,

) Judge Crenshaw

Tennessee Department of Corrections;

) Magistrate Judge Brown

DR. MARINA CADRECHE, Assistant

)

Commissioner of Rehabilitative Services, )

Tennessee Department of Corrections;

)

and DR. KENNETH WILLIAMS, Medical )

Director, Tennessee Department of

)

Corrections, in their official capacities,

)

)

Defendants.

)

______________________________________________________________________________

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR CLASS CERTIFICATION ______________________________________________________________________________

Plaintiffs, through undersigned counsel, submit this memorandum in support of their

motion for class certification under Rule 23 of the Federal Rules of Civil Procedure. The Court

should grant Plaintiffs’ motion for class certification because Plaintiffs satisfy the requirements

of Rule 23 and this action can be most efficiently resolved as a class action.

INTRODUCTION

Plaintiffs, as individuals and on behalf of the proposed class, have sued Defendants to

stop ongoing violations of the Eighth Amendment rights of all inmates infected with the

Hepatitis C virus (“HCV”) incarcerated in the state of Tennessee under the jurisdiction of the

Tennessee Department of Corrections (“Department”).

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Unfortunately, HCV infection rates have skyrocketed within Tennessee prisons. However, Defendants have confronted this epidemic with little more than indifference, sweeping the medical needs of infected inmates under the rug. Specifically, the Department has failed to institute policies and protocols to any medical treatment to the vast majority of HCV-positive inmates, let alone the most effective treatments widely adopted by the medical community as the current standard of care. In effect, the Department has denied a readily-available cure for a chronic, painful and deadly disease to inmates who are completely reliant on the Department for their medical care.
In order to remedy these inhumane and unconstitutional deficiencies, Named Plaintiffs seek to represent a class of inmates pursuant to Rule 23(b)(2) and/or Rule 23(b)(1) of the Federal Rules of Civil Procedure. The proposed Inmate Class consists of all persons currently incarcerated in facilities under the control or jurisdiction of the Department.
CLASS DEFINITION Plaintiffs seek to certify a class, referred to as the “Inmate Class,” which is defined as:
All persons currently incarcerated in any facility under the supervision or control of the Tennessee Department of Corrections or persons incarcerated in a public or privately owned facility for whom the Tennessee Department of Corrections has ultimate responsibility for their medical care and who have at least twelve weeks or more remaining to serve on their sentences and are either currently diagnosed with Hepatitis C infection or are determined to have Hepatitis C after an appropriate screening test has been administered by the Department of Corrections. Named Plaintiffs seek to represent the Inmate Class, with their counsel of record serving as Class counsel.
STATEMENT OF FACTS HCV is a viral infection primarily spread through the transmission of blood from a person infected with the disease to another person. HCV attacks the liver and causes an inflammation of
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the liver called hepatitis. The inflammation can significantly impair the liver’s ability to filter toxins from the blood, digest essential nutrients, and prevent disease. Chronic HCV can also lead to chronic liver disease, liver fibrosis, and death. Complaint, Dkt. 1 (“Compl.”), ¶¶ 1, 31; Compl., Exhibit A, Dkt. 1-1.
Approximately twenty percent of the inmates under the supervision of the Department, 3,487 as of May 2016, are known to be infected with HCV. Id. ¶ 17. Statistically, it is likely that as many as half of the roughly 22,000 individuals in the Department’s custody are infected with HCV. Id. The Department releases several thousand inmates back into Tennessee communities every year. Most of those are not screened or treated for HCV infection.
In the past, the standard treatment for HCV infections, which included the use of interferon and ribavirin medications, failed to cure large numbers of patients and was associated with painful and other adverse side-effects, including psychiatric and autoimmune disorders, flulike symptoms, and gastrointestinal distress. Id. ¶ 12. Over the past few years, the Federal Drug Administration (“FDA”) has approved new direct-acting antiviral drugs (“DAA”) to treat HCV infections. DAAs have few side effects, have greater efficacy than older treatments for HCV, and can be taken for significantly less time (75% less) than prior HCV treatments. Id. ¶¶ 13, 14. Use of the latest DAA medications is now the standard of care in the community for the treatment of HCV infections. Id. ¶ 41. The CDC has recommended these new treatment modules and the Federal Bureau of Prisons (BOP), in 2014, adopted new Clinical Practice Guidelines that incorporate these new DAA treatment modules. Id. ¶ 18.
Defendants have not implemented these new treatment modules for the treatment of HCV infections within the Department. Id. ¶ 43. In fact, the current Department Protocol on the treatment of HCV expressly excludes DAA treatment, relying instead on outdated treatment
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methods that fall below the community standard of care. In practice, Defendants have largely ceased providing any treatment to inmates with HCV infections, including interferon and ribavirin therapy. Id. ¶ 44. Defendants have denied requests by the Named Plaintiffs and others for DAA medications to treat their HCV infections. Id. ¶ 45. Inmates who seek medical treatment for their HCV infections have been given a variety of excuses, including that no protocol for treatment is currently in place and that treatment is not provided in certain Department facilities. Id. Consequently, Named Plaintiffs and other inmates have not received the necessary medical treatment for HCV, including the latest DAA, and have a substantially increased risk of continued HCV infection, liver disease, liver cancer, cirrhosis, and death. Id.
ARGUMENT For a class to be certified and litigation to proceed as a class action, the party seeking certification must satisfy all four requirements of Rule 23(a) and at least one of the three requirements in Rule 23(b) of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 23(b); In re Am. Med. Sys., Inc., 75 F.3d 1069, 1079 (6th Cir. 1996). Although the court must conduct a “rigorous analysis” to determine if the Rule 23 prerequisites are met, Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 161 (1982), class certification depends only on the requirements of Rule 23, and not on the plaintiff stating a claim or the likely success on the merits of the case. Weathers v. Peters Realty Corp., 499 F.2d 1197, 1201 (6th Cir. 1974) (citing Miller v. Mackey Int’l., 452 F.2d 424, 427 (5th Cir. 1971)). Plaintiffs’ motion to certify the Inmate Class as defined should be granted because Plaintiffs, as the class representatives, and this proposed Class satisfy the requirements of Fed. R. Civ. P. 23. I. PLAINTIFFS SATISFY THE RULE 23(a) REQUIREMENTS A proposed class meets the requirements in Fed. R. Civ. P. 23(a) if:
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(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims of the class representative is typical of the claims of the class, and (4) the class representative will fairly and adequately protect the interests of the class. See Am. Med. Sys., Inc., 75 F.3d at 1079. Rule 23(a)’s requirements effectively limit the class claims to claims that are fairly encompassed by the named plaintiff’s claim. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 349 (2011). The proposed Class satisfies the Rule 23(a) requirements of numerosity, commonality, typicality, and adequacy of representation and therefore Plaintiffs may sue as Class representatives. See Fed. R. Civ. P. 23(a). A. The Inmate Class satisfies Rule 23(a)(1) because joinder of all Class
members would be impracticable. The Inmate Class satisfies Rule 23(a)(1) because joinder of all Class members is impracticable based on the large number of Class members, the geographic diversity of Class members, and the inability of many Class members to bring individual suits. To be certified as a class, Rule 23(a)(1) requires that the class be “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). There is no strict numerical test for determining that joinder is impracticable; therefore, the impracticability of joinder is determined based on the circumstances of the case. Am. Med. Sys., Inc., 75 F.3d at 1079 (citing Senter v. GMC, 532 F.2d 511, 523 n.24 (6th Cir. 1976)). A “substantial number” of class members will satisfy the numerosity requirement, however the Sixth Circuit grants a “presumption that joinder is impracticable” for classes in which the number of class members reaches forty. Daffin v. Ford Motor Co., 458 F.3d 549, 552 (6th Cir. 2006); City of Goodlettsville v. Priceline.com, Inc., 267 F.R.D. 523, 529 (M.D. Tenn. 2010).
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Even if the exact size of the class is unknown, the proposed class satisfies the numerosity requirement if “general knowledge and common sense indicate that it is large.” Olden v. LaFarge Corp., 203 F.R.D. 254, 269 (E.D. Mich.), aff’d, 383 F.3d 495 (6th Cir. 2004). In terms of size, a “substantial number” of class members satisfies the numerosity requirement of Rule 23(a)(1) and a class with forty or more members is presumed to satisfy the numerosity requirement based on its size alone.
In addition to the size of the proposed class, factors such as the ease of identifying class members, the geographic dispersion of class members, and judicial economy may indicate that joinder of all class members is impracticable. Mays v. Tenn. Valley Auth., 274 F.R.D. 614, 621 (E.D. Tenn. May 10, 2011). In Mays, the court denied class certification under Rule 23(a)(1) because the Plaintiffs did not show that joinder was impracticable because the class members were in close geographic proximity to one another and a number of the class members had already filed suits on their own. Id. at 621-22. Thus, a class with a substantial number of members combined with geographic disparity of the members or the inability of the members to bring separate suits weighs in favor of class certification under Fed. R. Civ. P. 23(a)(1).
The Inmate Class includes a substantial number of Class members in several different prisons across the state, making joinder of all members in a single suit impracticable. The total number of Class members well exceeds forty. According to a recent report, 3,487 inmates in Tennessee prisons currently have a diagnosis of HCV infection. Id. ¶¶ 17, 19. The actual number of infected inmates is likely closer to 11,000, given that approximately half of inmates tested are positive. Id.1 The Inmate Class numbers well into the thousands of plaintiffs and,
1 The Department has in its custody approximately 22,000 inmates. Of 901 inmates tested in 2015 for HCV, 424 tested positive. Id. ¶ 17. From that number and from professional estimates,
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therefore, should be presumed to be impractical because of its size alone. See Daffin, 458 F.3d at 552; see also Priceline.com, Inc., 267 F.R.D. at 529.
Furthermore, the Class members are geographically dispersed across the state of Tennessee and most, if not all, Class members do not have the resources to bring individual suits to vindicate their Eighth Amendment rights. They are held in Department facilities, in countyowned or privately-owned facilities that contract with the Department or in county jails awaiting transfer. Inmates in all prisons operated by the Department or private contractors under Department authority have reported inmates with HCV diagnoses. Id. ¶ 26. Additionally, the inmates who comprise this class likely have no resources of their own and could not bring separate, individual suits should they desire and were aware that their rights are being violated.
The Inmate Class satisfies Rule 23(a)(1)’s numerosity requirement. The substantial size of the Class, the geographic diversity of the Class members, and the unlikelihood that the Class members would – or could – bring separate suits weigh in favor of certification under Fed. R. Civ. P. 23(a)(1).
B. Rule 23(a)(2) is satisfied because there are questions of law and fact common to each member of the Inmate Class.
Injunctive actions, by their very nature, often present common questions satisfying Rule 23(a)(2) because there are “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). They also do not involve an individualized inquiry for the determination of damages. A proposed class satisfies the commonality requirement of Rule 23(a)(2) if the class members’ claims “depend on a common contention” and that common contention is “of such a nature that it is capable of classwide resolution.” Wal-Mart Stores, Inc., 564 U.S. at 350. Stated another way, a
Plaintiffs extrapolate that approximately half of the incarcerated population are infected with HCV. Id.
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proposed class satisfies the commonality requirement if there exists a “common issue the resolution of which will advance the litigation.” Sprague v. GMC, 133 F.3d 388, 397 (6th Cir. 1998). Although there may be many common issues of law or fact, Rule 23(a)(2) only requires that a single issue of law or fact be common to all members of the class. Am. Med. Sys., Inc., 75 F.3d at 1080. Factual discrepancies between class members are not fatal to a showing of commonality as long as the common questions predominate over questions affecting only individual class members. See id.; see also In re Whirlpool Corp. Front-Loading Washer Products Liab. Litig., 722 F.3d 838, 858 (6th Cir. 2013). The commonality requirement of Fed. R. Civ. P. 23(a)(2) is satisfied if there is at least one question of law or fact common to all members of the class and its resolution will advance the litigation.
Plaintiffs satisfy Rule 23(a)(2) because there are questions of both law and fact that pertain to all members of the Inmate Class and are capable of class-wide resolution such that it will advance the litigation. The central legal question at issue in this case is whether the failure to diagnosis and treat HCV in inmates with the most recent and generally accepted standard of treatment violates the Eighth Amendment to the United States Constitution. This question is common to all Class members because all are incarcerated and subject to treatment protocols and policies regarding treatment for HCV. This question can be resolved with respect to all Class members at the same time. Id. ¶¶ 44-47; see Sprague, 133 F.3d at 397.
Questions of fact further satisfy the commonality requirement. The factual question of whether the Department treatment protocols and policies adequately screen for, diagnose and treat inmates with HCV applies to all proposed Class members. Questions regarding the standard of care for treating HCV likewise apply to all Class members. Resolution of these
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questions, and others, will involve facts common to all members of the Class and will materially advance the litigation.
Even though there may be factual discrepancies among the Class members regarding when they were diagnosed with HCV, to what degree the disease has progressed, what treatment they may have received in the past, and what other treatment or monitoring may be indicated based on the progression of the disease, these discrepancies do not defeat a showing of commonality. See Am. Med. Sys., Inc., 75 F.3d at 1080; see also Whirlpool Corp. Front-Loading Washer Products Liab. Litig., 722 F.3d at 858. Such factual discrepancies are not central or essential to the remedy sought by the complaint.
The central facts relevant to all Class members are that the Department has failed to adopt a medically sound treatment protocol and that Department facilities have failed utterly to screen, diagnose and treat inmates for HCV. Of approximately 22,000 inmates in the system in 2015, including 11,000 entering the system and 5,000 exiting, the Department screened only 901 inmates. Despite almost half of those screened testing positive, no additional screening was implemented. Of the approximately 3,400 inmates currently diagnosed with the disease, only eight are receiving treatment at all. No inmate is receiving the generally accepted DAA treatment for HCV, which had been found to cure the disease in 90+% of cases. Id. ¶ 14.
Plaintiffs satisfy the commonality requirement of Fed. R. Civ. P. 23(a)(2). Multiple issues of both law and fact are common to all members of the Inmate Class. These questions can be uniformly resolved on a class-wide basis such that judicial economy is achieved.
C. Plaintiffs satisfy Rule 23(a)(3) because their claim is typical of the class they seek to represent.
Plaintiffs satisfy Rule 23(a)(3) because their claim—that Defendants’ failure to diagnose and provide medically accepted treatment of HCV to infected inmates violates the Eighth
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Amendment to the United States Constitution —is typical of the Class that they seek to represent. Rule 23(a)(3) requires that the “claims or defenses of the representative parties are typical of the claims or defenses of the class.” Fed. R. Civ. P. 23(a)(3). Typicality does not require the claims of the class representative to be identical to the claims of other class members. See Falcon, 457 U.S. at 155. A claim is typical if it: (1) arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and (2) is based on the same legal theory as their claims. Craft v. Vanderbilt Univ., 174 F.R.D. 396, 404 (M.D. Tenn. 1996) (citations omitted).
The typicality requirement determines whether there exists a “sufficient relationship” between the injury to the named plaintiffs and the conduct affecting the class such that there is a “collective nature” to the challenged conduct. Stout v. J.D. Byrider, 228 F.3d 709, 717 (6th Cir. 2000) (quoting Sprague, 133 F.3d at 399). In other words, “[a]s goes the claim of the named plaintiff, so go the claims of the class.” Id. (citations omitted). The typicality requirement of Rule 23(a)(3) is satisfied if the plaintiff’s claim arises from a common practice, conduct, or event as gives rise to potential claims by other class members and plaintiff’s claim is based on the same legal theory as the claims of the other class members.
Plaintiffs’ claims satisfy Rule 23(a)(3). Plaintiffs’ claims are typical of – indeed identical to – the Class claims because all claims involve the constitutionality of the Department’s treatment protocols, polices, and practices regarding HCV. Plaintiffs’ claims involve the same legal theory as the Class claims. If Plaintiffs establish that the Department’s treatment, or lack thereof, of HCV is unconstitutional, and that they are entitled to injunctive and declaratory relief, the claims of the Class will necessarily succeed and the Class members will reap the benefits of the same injunctive and declaratory relief.
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D. Plaintiffs satisfy Rule 23(a)(4) because they are members of the Class with common interests to the unnamed Class members and will vigorously prosecute the interests of the Class through qualified counsel.
Finally, Plaintiffs satisfy Rule 23(a)(4) because their interests are synonymous with the interests of the Class and they have a strong, life-or-death incentive to litigate this issue to the fullest extent possible. Rule 23(a)(4) requires that “the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a)(4). There are two criteria for determining whether a class will be adequately represented: (1) the class representative must have common interests with unnamed members of the class, and (2) the class representative will vigorously prosecute the interests of the case through qualified counsel. Rutherford v. City of Cleveland, 137 F.3d 905, 909 (6th Cir. 1998); Am. Med. Sys., Inc., 75 F.3d at 1083 (citing Senter, 532 F.2d at 525).
A plaintiff’s interests must be coextensive with, and not antagonistic to, the interests of the class on all issues which relate to the class; otherwise, the interests of unnamed class members may not be adequately protected. Senter, 532 F.2d at 525; see, e.g., Hansberry v. Lee, 311 U.S. 32, 85 (1940). The adequate representation requirement is interrelated with the typicality requirement because, without the class representative having a typical claim, he has no incentive to pursue the claims of other class members. Am. Med. Sys., Inc., 75 F.3d at 1083. Rule 23(a)(4) is satisfied if the class representative’s interests are synonymous with the unnamed class members and the class representative will vigorously prosecute the interests of the class through qualified counsel.
Plaintiffs satisfy the requirements of Rule 23(a)(4) because their interests are identical to the unnamed Class members’ interests. They have an incentive to vigorously litigate their claims to the fullest extent possible – indeed, their lives literally depend on it. Plaintiffs are currently
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incarcerated in Department facilities. Compl. ¶¶ 4, 5. Both will be incarcerated for a long time. Declaration of Thomas Castelli, filed contemporaneously (“Castelli Decl.”), ¶ 5. While incarcerated, Plaintiffs are subjected to the treatment protocols and policies as proscribed by the Defendants. They are both completely reliant on the Department for their medical care. Plaintiffs’ interest in the present litigation is to obtain declaratory and injunctive relief that will compel the Department to properly treat, if not cure, their otherwise fatal disease in accordance with relevant current medical standards. Compl. ¶¶ 40, 64, 78, 89.
The unnamed Class members are also subject to the same treatment protocols and policies as Plaintiffs. Plaintiffs’ interests are coextensive to the unnamed Class members’ interests. Favorable relief in this case will provide relief to all Class members. Plaintiffs seek the same relief as the unnamed Class members, namely to protect their constitutional rights to receive adequate medical care and treatment for a chronic, painful condition that can, and often will, lead to death. Because Plaintiffs’ physical health is at stake, they have the highest incentive to vigorously litigate this case to achieve favorable relief from the Court.
Named Plaintiffs have HCV and both are committed to receiving treatment before their prison terms expire. Castelli Decl., ¶ 3. Plaintiffs are both personally and morally committed to this cause and have expressed to the undersigned a strong commitment to pursuing this litigation. Named Plaintiffs are meticulous and well informed; they have pursued grievances and other available outlets, made persuasive arguments to Departmental authorities, documented those grievances, and independently researched many aspects of their disease and its treatment. Id. ¶¶ 3-5. In fact, Plaintiff Graham works at the prison law library and is knowledgeable regarding judicial processes. Id. ¶ 4.
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Finally, the proposed Class counsel is qualified to litigate this case and will adequately protect the interests of the Class. Plaintiffs’ attorneys have extensive experience litigating complex civil rights matters in federal court. Castelli Decl. ¶¶ 1-2. Proposed Class counsel has the time and resources to vigorously litigate this case and are familiar with the federal laws and procedures that will be relevant during the course of the litigation. Id. Rule 23(a)(4) is therefore satisfied because Plaintiffs have the same interests as the unnamed Class members and will vigorously litigate the case through experienced counsel to secure appropriate relief for all members of the Inmate Class. II. PLAINTIFFS SATISFY THE REQUIREMENT OF 23(b)(2) BECAUSE
INJUNCTIVE AND DECLARATORY RELIEF WOULD PROVIDE RELIEF TO ALL CLASS MEMBERS Plaintiffs, in addition to satisfying the requirements of Rule 23(a), also satisfy the requirements of Rule 23(b)(2) because final injunctive and declaratory relief would be appropriate for the entire Class. Indeed, certification under Rule 23(b)(2) is for injunctive classes. See, e.g., Thrope v. Ohio, 173 F.R.D. 483, 490-491 (S.D. Ohio 1997); Bremiller v. Cleveland Psychiatric Inst., 879 F. Supp. 782, 797 (N.D. Ohio 1995). Favorable injunctive relief in this case would eliminate the unconstitutional withholding of adequate medical care to Plaintiffs and all Class members, making certification under this Rule appropriate. Once the Court determines that the requirements of Rule 23(a) are met, the Court should certify a class under Rule 23(b)(2) if “the party opposing the class has acted… on grounds that apply generally to the class, so that final injunctive relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2). Cases are particularly well-suited for 23(b)(2) treatment if they contain a common claim that is susceptible to a single proof and are subject to a single injunctive
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remedy. See Senter, 532 F.2d at 525. Rule 23(b)(2) is satisfied when final injunctive relief would be appropriate to the class as a whole based on the facts of the case.
In the present case, Defendants have acted in the same way towards all of the Class members. Plaintiffs and all members of the Class are being denied the constitutionally mandated medical treatment for HCV. Compl. ¶¶ 29, 31, 41. Defendants’ treatment protocols, policies, and behavior towards all members of the Class is susceptible to a single proof in the same way that the common questions of law and fact can be resolved with respect to the Class as whole. If Plaintiffs show Defendants have violated the Class members’ constitutional rights, then favorable injunctive and declaratory relief would provide appropriate relief to all Class members simultaneously, namely the institution of proper screening and treatment for their disease. The declaratory and injunctive relief sought satisfies the requirements of Rule 23(b)(2) for class certification. Indeed, the Ninth Circuit recently approved of certification under Rule 23(b)(2) in a case in which a class of inmates sought injunctive relief for inadequate medical care. Parsons v. Ryan, 754 F.3d 657, 678, 686-87 (9th Cir. 2014). III. ALTERNATIVELY, THE CLASS SHOULD BE CERTIFIED UNDER RULE
23(b)(1) BECAUSE DEFENDANTS MUST TREAT ALL INFECTED INMATES While Named Plaintiffs believe that Rule 23(b)(2) certification is appropriate and adequate, the Inmate Class also satisfies the requirements of Rule 23(b)(1)(A). Rule 23(b)(1)(A) covers cases in which separate actions by individual class members would pose the risk of establishing “incompatible standards of conduct for the party opposing the class.” Fed. Rule Civ. Proc. 23(b)(1)(A). Rule 23(b)(1)(A) generally applies where the defendant is obliged by law to treat the members of the class alike. See Amchem Products, Inc., 521 U.S. at 614. Incompatible standards of conduct arise where different results in separate actions would impair the defendant’s “ability to pursue a uniform continuing course of conduct.” In re Telectronics
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Pacing Sys., Inc., 172 F.R.D. 271, 284 (S.D. Ohio 1997) (quoting Charles A. Wright, et al., 7A Federal Practice & Procedure, § 1773 at 431 (2d ed.1986)).
The claims of Class members in this suit are connected not only because of common factual and legal issues, but also because they arise from a system of medical treatment that is applied to all Department inmates. The central legal question at issue in this case is whether Defendants’ failure to diagnose and treat HCV in inmates with the most recent and generally accepted standard of treatment falls below constitutional standards. Named Plaintiffs and Class members are, literally, a captive audience. They all rely exclusively on Defendants to provide medical treatment for their illness; they cannot seek alternative treatment. Because constitutional standards require Defendants to provide medical treatment equally to all infected inmates, Defendants’ policies and treatment protocols are generally applicable to all Class members. In fact, separate lawsuits on this issue would pose the very real risk of establishing varying standards of treatment and applying differing protocols to individual inmates. This would thwart the very purpose of this lawsuit – to require Defendants to provide adequate and undiscriminating medical care to all HCV-positive inmates. For this reason, Rule 23(b)(1)(A) certification is appropriate in the alternative. IV. THE INMATE CLASS IS APPROPRIATELY DEFINED
In addition to complying with Rule 23, the Sixth Circuit requires that the class definition be “sufficiently definite” so that it is administratively feasible for the court to determine whether a particular individual is a member of the proposed class or not. Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 537-38 (6th Cir. 2012) (citations omitted). To assist the court in making this determination, the class must be defined using “objective criteria” such that when a person
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presents him- or herself, the court can determine whether or not he or she is a class member. Id.

at 538 (citations omitted).

The Inmate Class is definite and objectively measured such that the Court can easily

determine whether a particular individual is a member of the Class. Compl. ¶ 33. The Class is

limited in time to persons who are presently incarcerated in a facility operated or supervised by

the Department and who have a current diagnosis of HCV or who are diagnosed with the virus

after proper screening by the Department. Essentially, inmates either have the virus or they do

not. If they have contracted the virus, they are part of the Class. An inmate who meets the

objective criteria would be a Class member because they are subject to unconstitutionally

deficient medical care by the Department for their HCV. As such, the Inmate Class should be

certified as consistent with the requirements of Fed. R. Civ. P. 23.

CONCLUSION

For the reasons set forth in this memorandum, the Court should permit this matter to

proceed as a class action under Fed. R. Civ. P. 23(b)(2) and 23(b)(1). Plaintiffs respectfully

request that the Court grant Plaintiffs’ Motion to Certify Class by certifying the Inmate Class.

Plaintiffs also ask that their counsel of record be approved as counsel for the Class.

Dated: September 16, 2016

Respectfully submitted,

/s/ Karla M. Campbell Karla M. Campbell (BPR 27132) BRANSTETTER, STRANCH
& JENNINGS, PLLC The Freedom Center 223 Rosa L. Parks Avenue, Suite 200 Nashville, TN 37203 Phone: (615) 254-8801 Fax: (615) 255-5419 karlac@bsjfirm.com

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Thomas H. Castelli (BPR 24849) AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF TENNESEEE P.O. Box 120160 Nashville, Tennessee 37212 Phone: (615) 320-7142 Fax: (615) 691-7219 tcastelli@aclu-tn.org Elizabeth S. Logsdon (BPR 32066) DISABILITY RIGHTS TENNESSEE 2 International Plaza, Suite 825 Nashville, Tennessee 37217 Phone: (615) 298-1080 Fax: (615) 298-2046 lizl@disabilityrightstn.org
CERTIFICATE OF SERVICE I hereby certify that a true and exact copy of the foregoing has been served by ECF upon the following counsel for defendants, on this the 16th day of September, 2016. Madeline Bertasi Brough Pamela S. Lorch Office of the Attorney General & Reporter P.O. Box 20207 Nashville, TN 37202-0207 Attorneys for Defendants
/s/ Karla M. Campbell Karla M. Campbell
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 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

CHARLES GRAHAM, et al., Plaintiffs,
v. TONY C. PARKER, et al.,
Defendants.

)

)

)

)

)

No. 3:16-cv-01954

)

Judge Waverly D. Crenshaw, Jr.

)

Magistrate Judge Joe Brown

)

)

JURY TRIAL NOT DEMANDED

RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO CERTIFY CLASS

Plaintiffs have brought an action challenging the Tennessee Department of Correction’s Hepatitis C Protocol as unconstitutional under the Eighth Amendment. Plaintiffs seek class certification (D.E. No. 14). The Court should deny class certification because Plaintiffs cannot satisfy the requirements of Federal Rule of Civil Procedure 23 and cannot proceed efficiently as a class action.
FACTS The Department’s current Hepatitis C Virus (“HCV”) Protocol (the “Protocol”) (See D.E. No. 1-1, Ex. A to the Complaint), sets forth a detailed procedure for screening and treatment of Hepatitis C. The screening procedure is set forth at page 4 of the Protocol: Screening Criteria for testing for HCV infection is recommended for:
• Sentenced inmates with risk factors for HCV infection • All inmates with certain clinical conditions • Inmates who request testing. Testing for HCV infection at the prevention baseline visit is recommended for sentenced inmates who have the following risk factors:

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• Ever injected illegal drugs or shared equipment (including intranasal use of illicit drugs)
• Received tattoos or body piercings while in jail or prison, or from any unregulated source
• HIV or chronic hepatitis B virus (HBV) infection • Received a blood transfusion or an organ transplant before 1992, or
received clotting factor transfusion prior to 1987 • History of percutaneous exposure to blood • Ever received hemodialysis • Born to a mother who had HCV infection at the time of delivery
HCV testing is recommended for all inmates with the following clinical conditions, regardless of sentencing status:
• A reported history of HCV infection without prior medical records to confirm the diagnosis
• Chronic hemodialysis—screen alanine aminotransferase (ALT) monthly and anti-HCV semiannually
• Elevated ALT levels of unknown etiology • Evidence of extrahepatic manifestations of HCV—mixed
cryoglobulinemia, membranoproliferative glomerulonephritis, porphyria cutanea tarda, vasculitis
(D.E. No. 1-1, Complaint, Ex. A at p. 4).
Thus, under the Protocol, every inmate who requests testing and every inmate with risk
factors or certain clinical conditions, is tested for HCV. If an inmate tests positive for HCV, the
Department provides the following initial treatment:
• A baseline history and physical examination • Lab tests • Calculation of the APRI score to determine fibrosis • Assessment of the need for preventive health interventions such as
vaccines and screenings for other conditions • Counseling on information related to HCV infection
(Id. at p. 5). After the initial treatment, the Department provides ongoing monitoring treatment as
follows:
Periodic monitoring is recommended for all those with active infection, including acute HCV infection, HCV treatment failures, relapse of HCV
2
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infection or reinfection, and those with chronic HCV infection who are not yet treated.
• For cases without advanced fibrosis, cirrhosis, or complications, annual evaluation is appropriate. This evaluation should include a focused review of systems and patient education relevant to HCV, vital signs and a focused physical examination, and lab monitoring (CBC, PT/INR, liver panel, serum creatinine, calculated GFR, and calculation of the APRI score).
• For patients with cirrhosis or significant comorbidities, evaluation is recommended at least every six months; more frequently as clinically indicated.
• In cases of acute HCV infection, monitoring for spontaneous clearance of the infection with ALT and quantitative HCV RNA levels every four to eight weeks, for six to twelve months, is recommended. If viremia persists after that time, continue to monitor and manage the case as a chronic infection.
• In most cases of acute HCV infection, treatment may be deferred to allow for spontaneous clearance of viremia. However, in some cases there may be a compelling reason to treat the acute infection in order to prevent severe complications, e.g., HCV infection superimposed on established cirrhosis or advanced fibrosis.
(Id. at p. 13 (emphasis in original)). The Department has set forth detailed guidance for proper
management and treatment of HCV in Attachment IV to the Protocol. (Id. at pp. 18-20). It
provides a step-by-step procedure for treating inmates with HCV.
The Department follows the Federal Bureau of Prisons protocol for HCV treatment,
including its Priority Levels criteria for treatment. (Id. at p. 10). Medical treatment employs direct
acting antiviral (“DAA”) drugs, such as Harvoni and Solvaldi—the most current recommended
prescription medications. (Affidavit of Dr. Williams). The current price for Harvoni and Solvaldi
is approximately $55,000.00 and $75,000.00 per patient, respectively. (D.E. No. 1-1, Complaint,
Ex. C at p. 15).
Notably, not everyone with the HCV requires treatment with medication. Between fifteen
and twenty-five percent of the patient population will spontaneously resolve the infection without
medication. (D.E. No. 1-1, Complaint, Ex. A at p. 3). Progression of chronic HCV infection to
3
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fibrosis and cirrhosis may take years in some patients and decades in others—or, in some cases, may not occur at all. (Id. at p. 5). The risk of developing serious liver disease is small, ranging from five to twenty-five percent over a period of twenty-five to thirty years, in most cases. (Id. at p. 15). Most people with Hepatitis C can remain healthy, manage the disease and lead full, active lives. (Id. at p. 15).
LAW AND ARGUMENT Plaintiffs Cannot Meet The Rule 23 Criteria For Class Designation.
“[Federal Rule of Civil Procedure] 23(a) states four threshold requirements applicable to all class actions: (1) numerosity (a ‘class [so large] that joinder of all members is impracticable’); (2) commonality (‘questions of law or fact common to the class’); (3) typicality (named parties’ claims or defenses ‘are typical . . . of the class’); and (4) adequacy of representation (representatives ‘will fairly and adequately protect the interests of the class’).” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 613 (1997). “In addition to satisfying Rule 23(a)’s prerequisites, parties seeking class certification must show that the action is maintainable under Rule 23(b)(1), (2), or (3).” Id. at 614. Plaintiffs proceed under Rule 23(b)(1) or (2). “Rule 23(b)(1) covers cases in which separate actions by or against individual class members would risk establishing ‘incompatible standards of conduct for the party opposing the class,’ Fed. Rule Civ. Proc. 23(b)(1)(A), or would ‘as a practical matter be dispositive of the interests’ of nonparty members ‘or substantially impair or impede their ability to protect their interests,’ Rule 23(b)(1)(B) . . . . Rule 23(b)(2) permits class actions for declaratory or injunctive relief where ‘the party opposing the class has acted or refused to act on grounds generally applicable to the class.’ Id.
“The class action is an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Wal-Mart Stores v. Dukes, 564 U.S. 338, 348 (2011)
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(quotation omitted). “Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently numerous parties, common questions of law or fact, etc. Id. at 350 (emphasis in original). “[T]he district court should not merely presume that the plaintiffs’ allegations in the complaint are true for the purposes of class motion without resolving factual and legal issues.” Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 537 (6th Cir. 2012).
We recognized in Falcon that ‘sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question,” and that certification is proper only if ‘the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied,’. . . Frequently that ‘rigorous analysis’ will entail some overlap with the merits of the plaintiff’s underlying claim. That cannot be helped. ‘[T]he class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.’ Walmart, 564 U.S. at 350-51 (internal citations omitted). “[T]he burden of establishing the elements of a class action rests on the party seeking certification.” In Re Am. Med. Sys., Inc., 75 F.3d 1069, 1086 (6th Cir. 1996). Rule 23 must not “be ‘liberally construed’ and read ‘to favor class actions.’ Recent Supreme Court cases . . . show that Rule 23 must be construed neither liberally nor grudgingly, but carefully applied in accordance with its express terms.” Rockey v. Courtesy Motors, Inc., 199 F.R.D. 578, 597 n. 1 (W.D. Mich. 2001) (emphasis added). “The trial court has broad discretion in deciding whether to certify a class, but that discretion must be exercised within the framework of Rule 23.” In Re Am. Med. Sys., Inc., 75 F.3d at 1079. The principal purpose of class actions is to achieve efficiency and economy of litigation, with respect to both the parties and the courts. See Gen. Tel. Co. v. Falcon, 457 U.S.
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147, 159 (1982); see also City of Goodlettsville v. Priceline.com, Inc., 267 F.R.D. 523, 528 (M.D. Tenn. 2010). I. Numerosity.
“[T]he numerosity requirement requires examination of the specific facts of each case.” In Re Am. Med. Sys., Inc., 75 F.3d at 1080 (quotation omitted). “The joinder inquiry, like that required for the entire class certification inquiry, requires a fact-specific analysis that turns on the unique circumstances of each case and not on a single factor, such as the number of potential claimants.” Mays v. Tenn. Valley Auth., 274 F.R.D. 614, 621 (E.D. Tenn. 2011). “Some of the factors a court may consider are class size, ease of identification of members of the proposed class, geographic distribution of class members, and the ability of the class members to pursue individual actions.” Krieger v. Gast, 197 F.R.D. 310, 314 (W.D. Mich. 2000).
In this case, inmates can bring their own individualized actions. “[P]laintiffs have not demonstrated to the Court that . . . potential claimants could not bring suit on their own.” Mays, 274 F.R.D. at 622. Inmates can and do bring claims pro se and in forma pauperis. Class action status is unnecessary. Further, as will be described in more detail below, each inmate’s case requires an individual evaluation to determine whether there has been an Eighth Amendment deliberate indifference to serious medical need violation. This inquiry is more suitable to an individualized action and there is not any judicial economy served in creating a class action.
Further, the class definition is not sufficiently definite. “[T]he class definition must be sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member of the proposed class.” Young, 693 F.3d at 537-38 (quotation omitted). Plaintiffs’ proposed class definition is:
All persons currently incarcerated in any facility under the supervision or control of the Tennessee Department of Corrections or persons incarcerated in a public or
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privately owned facility for whom the Tennessee Department of Corrections has ultimate responsibility for their medical care and who have at least twelve weeks or more remaining to serve on their sentences and are either currently diagnosed with Hepatitis C infection or are determined to have Hepatitis C after an appropriate screening test has been administered by the Department of Corrections. (D.E. No. 15 at p. 2). One problem with plaintiffs’ definition is the fluidity of the contours of the class. If a “currently incarcerated” date is fixed, it would not cover inmates coming into the prison system thereafter. If a “currently incarcerated” date is not fixed, it could not be determined which inmates have twelve or more weeks remaining on their sentences. Further, inmates’ sentences can be shortened by sentence reduction credits, which are individualized and continuously calculated. Further, some inmates will have pending parole hearings and if released, will be outside the range of the Department’s medical treatment. A determination of who belongs in the Class would require individualized, continuous calculation. With over 20,000 inmates in the system, such a task would be extremely taxing and not serve the essential purpose of Rule 23. II. Typicality. “In order to satisfy the typicality requirement, the class representatives’ claims must have the same essential characteristics as the claims of other members of the class. [T]ypicality determines whether a sufficient relationship exists between the injury to the named plaintiff[s] and conduct affecting the class, so that the court may properly attribute a collective nature to the challenged conduct.” Rockey, 199 F.R.D. at 584 (quotations and citations omitted). This test “limit[s] the class claims to those fairly encompassed by the named plaintiffs’ claims.” In re Am. Med. Sys., 75 F.3d at 1082 (citing Gen. Tel. Co. v. EEOC, 446 U.S. 318, 330 (1980)). “[U]nder the typicality prong, a court must ask whether, despite the presence of common questions, each class member’s claim involves so many distinct factual or legal questions as to make class certification inappropriate.” In Re Welding Fume Products Liability Litig., 245 F.R.D.
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279, 303 (N.D. Ohio 2007) (emphasis in original); see Spencer v. Central States, SE & SWAreas
Pension Fund, 778 F. Supp. 985, 990 (N.D.Ill 1991) (“[M]erely pointing to common issues of law
is insufficient to meet the typicality requirement when the facts required to prove the claims are
markedly different between class members.”). “[T]oo many meaningful differences across the
plaintiff class can preclude certification” because “each class member’s claims involve so many
distinct factual questions that class certification becomes inappropriate.” In Re Welding Fume
Products Liability Litig., 245 F.R.D. at 303.
In this case, the typicality requirement cannot be met because each individual plaintiff’s
claim depends on the individual merits of his own case.
In pursuing their own claims, the named plaintiffs could not advance the interests of the entire . . . class. Each claim, after all, depend[s] on each individual’s particular [medical history] and these. . . var[y] from person to person. A named plaintiff who proved his own claim would not necessarily have proved anybody else’s claim.
Sprague v. Gen. Motors Corp., 133 F.3d 388, 399 (6th Cir. 1998) (concluding that the district court
abused its discretion in certifying a class when each claim depended on facts that varied from
person to person).
The contours of an Eighth Amendment deliberate indifference to medical claim are as
follows:
To succeed on his Eighth Amendment claim, [plaintiff] must be able to prove “ ‘deliberate indifference’ to his ‘serious’ medical needs.” Wilson v. Seiter, 501 U.S. 294, 297, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991) (quoting Estelle, 429 U.S. at 106, 97 S.Ct. 285). An Eighth Amendment claim of denial of medical care has both objective and subjective components, the objective component requiring proof of a ‘sufficiently serious’ medical need, and the subjective component requiring proof of ‘a sufficiently culpable state of mind in denying medical care.’” Blackmore v. Kalamazoo County, 390 F.3d 890, 895 (6th Cir. 2004) (quoting Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994); Estelle, 429 U.S. at 104, 97 S.Ct. 285; and Brown v.
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Bargery, 207 F.3d 863, 867 (6th Cir. 2000)). “[A] medical need is objectively serious if it is ‘one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.’” Blackmore, 390 F.3d at 897 (quoting Gaudreault v. Mun. of Salem, 923 F.2d 203, 208 (1st Cir. 1990) (emphasis in original)). With regard to the subjective component:
[T]he official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference. Knowledge of the asserted serious needs or of circumstances clearly indicating the existence of such needs is essential to a finding of deliberate indifference.
Blackmore, 390 F.3d at 896 (quoting Farmer, 511 U.S. at 837, 114 S.Ct. 1970); and Horn v. Madison County Fiscal Court, 22 F.3d 653, 660 (6th Cir. 1994) (internal quotations omitted).
An Eighth Amendment claim may be premised on deliberate indifference to exposing an inmate to an unreasonable risk of serious harm in the future. Helling v. McKinney, 509 U.S. 25, 36, 113 S.Ct. 2475, 125 L.Ed.2d 22 (1993). A claim of deliberate indifference to future serious harm requires proof of both the objective and subjective elements of an Eighth Amendment claim. Id. at 35, 113 S.Ct. 2475. An alleged delay in receiving treatment requires an examination of the effects of the delay. Napier, 238 F.3d at 742. “[A]n inmate who complains that delay in medical treatment rose to a constitutional violation must place verifying medical evidence in the record to establish the detrimental effect of the delay in medical treatment to succeed.” Id. (quoting Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1188 (11th Cir. 1994).
Dodson v. Wilkinson, 304 Fed. Appx. 434, 438-39 (6th Cir. 2008).
In Dotson, a state prisoner brought a claim pursuant to 42 U.S.C. § 1983 alleging that delays
in testing and treatment for the Hepatitis C Virus violated his Eighth Amendment rights. Id. at 436.
According to the Dotson plaintiff, a prison doctor allegedly told him that, pursuant to prison policy,
he would not receive treatment for the Hepatitis C virus until his liver showed signs of cirrhosis or
failure. Id. Plaintiff received examinations and testing. Id. Plaintiff claimed he suffered from
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Hepatitis C symptoms. Id. He alleged that his constitutional rights were violated “by intentionally
delaying and denying [him and other inmates] immediate Hepatitis C testing, treatment, and
education.” Id. at 437. His demand for relief “included ‘immediate first class medical treatment,’
injunctive relief requiring the [Department] to test and treat all prison inmates for Hepatitis C,”
and damages. Id. The Sixth Circuit affirmed the district court’s order granting summary judgment
for the defendants, finding in relevant part that
Contrary to [plaintiff’s] allegations, the record demonstrates that [he] has received continuous testing and treatment since being diagnosed with Hepatitis C. . . . [He] received testing and a chronic liver disease baseline evaluation. . . which lead to his vaccination against Hepatitis A and Hepatitis B, more testing, and his enrollment at the Chronic Care Clinic. A liver biopsy was performed. . . which. . . “indicated that [he] has a Histologic Grade 1 of 4, which means that he has minimal inflammatory activity and no hepatocyte necrosis (or no liver cell death), and a Histologic Stage 1 of 4, which means that he has minimal fibrosis and no bridging fibrosis.”. . . “[e]ven though his disease is expected to progress over the next 20 to 30 years it may not progress at all”, the testing “results and [his] prognosis indicate that he should be continuously monitored and reevaluated by a repeat liver biopsy every three to five years”; and “[b]ased on the results of the biopsy, it is unnecessary for [him] to receive any kind of medication at this time.” . . . . On this record, [plaintiff] cannot prove that the [Department]. . . was deliberately and culpably indifferent to a need for testing and treatment after [plaintiff] was first objectively diagnosed with the Hepatitis C virus. . . .
[Further, plaintiff] has failed to proffer verifying medical evidence of a ‘detrimental effect’ caused by a delay in treatment that exposes [him] to an unreasonable risk of serious harm in the future. See Helling, 509 U.S. at 25, 13 S.Ct. 2475; Napier, 238 F.3d at 742. . . . [Plaintiff’s] disagreement with the testing and treatment he has received since being diagnosed with Hepatitis C does not rise to the level of an Eighth Amendment violation. Estelle, 429 U.S. at 107, 97 S.Ct. 285; Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir. 1976) (recognizing that “[w]here a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess
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medical judgments and to constitutionalize claims which sound in state tort law.”). Id. at 439-40. See also Edmonds v. Robbins, 67 Fed. Appx. 872, 873 (6th Cir. 2003) (“The record establishes that [the doctor] saw [plaintiff] on a monthly basis . . . [and] . . . feels that at this time, [plaintiff’s] condition does not warrant medication. . . . Furthermore, the medical literature. . . establishes that medication is not always required for the treatment of hepatitis C. . . . [Plaintiff] has not established that [the doctor] is subjecting him to cruel and unusual punishment.”); Hix v. Tenn. Dept. of Corr., 196 Fed. Appx. 350, 357 (6th Cir. 2006) (Allegations that prison doctors did not prescribe the course of treatment for hepatitis C that prisoner desired, and opted to treat his symptoms rather than the underlying disease, “established nothing more than a mere difference of opinion with the doctors’ diagnoses and prescribed treatment,” and were insufficient to support a claim under § 1983 for deliberate indifference to his serious medical needs.); Johnson v. Million, 60 Fed. Appx. 548 (6th Cir. 2003) (Prison medical officials were not deliberately indifferent to inmate’s medical condition after he contracted hepatitis C virus, where inmate was seen in prison hepatitis C clinic every three to four months, but was not provided drug treatment because his liver enzyme levels had stayed within normal range.); Dotson v. Wilkinson, 477 F. Supp.2d 838, 849 (N.D. Ohio 2007) (“The medical records. . . show that [plaintiff] has received the appropriate treatment for his condition within the medical protocols established for treatment of Hepatitis C, given [plaintiff’s] high blood pressure and elevated creatinine levels. The delay in placing the plaintiff in the Hepatitis C treatment program does not ‘constitute an unnecessary and wanton infliction of pain.’”); White v. Secure Care Co., No. 09-13787, 2011 WL 900296, *4 (E.D. Mich. Jan. 21, 2011) (“The case law is clear that the mere existence of a Hepatitis C infection is not necessarily a ‘serious medical need’ warranting treatment such that the failure to provide treatment violates the Eighth Amendment. . . . [Plaintiff’s] ‘verifying medical evidence’ of merely having
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Hepatitis C does not establish any ‘detrimental effect of the delay in medical treatment.’); Fetterhoff v. Kerney, No. 07-15027, 2009 WL 612346, *7-8 (E.D. Mich. Mar. 6, 2009) (“[M]erely being diagnosed with HCV is not, by itself, a sufficiently serious medical need. . . . [P]laintiff’s claim is really that his condition was not treated adequately. . . . As many courts have acknowledged, HCV does not require treatment in all cases. . . . [P]laintiff’s claim and evidence establish nothing more than a mere difference of opinion with the medical providers’ assessment and prescribed treatment.”); Villarreal v. Holland, No. 14-9-DLB, 2016 WL 208310, *8 (E.D. Ky. Jan. 15, 2016) (Plaintiff failed to produce medical records showing “that he has suffered actual harm due to the denial of the requested drug therapy treatment. . . . Ultimately, [plaintiff] has not shown that he had a ‘sufficiently serious’ medical need.. . . [Plaintiff] was examined, tested, and monitored on numerous occasions through the Chronic Care Clinic for his Hepatitis C condition. . . . Such ongoing and responsive medical treatment is the antithesis of deliberate indifference.”); Howze v. Hickey, No. 10-CV-094-KKC, 2011 WL 673750, *7 (E.D. Ky. Feb. 17, 2011) (“Courts have recognized that Hepatitis C may require interferon or another treatment regimen in some, but not all, situations. There is no uniform rule applicable to all cases.”); Allen v. Shawney, No. 1110942, 2014 WL 1089618, *11 (E.D. Mich. Mar. 18, 2014) (“A medical need is sufficiently serious if it is ‘one that has been diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person would easily recognize the necessity for a doctor’s attention. Alternatively, a medical need is sufficiently serious if a plaintiff ‘[p]laces verifying medical evidence in the record. . . establish[ing] the detrimental effect of the delay in medical treatment. . . . [N]ot all cases of hepatitis C require treatment. . . . There is no evidence to suggest that state 2 fibrosis requires urgent treatment, and in fact, Plaintiff’s expert. . . agrees that state 2 fibrosis does not require urgent treatment. . . . Plaintiff has not shown that there was a ‘sufficiently serious’ medical need. . .
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.[Further] Plaintiff has failed to show that any of the defendants had a subjectively sufficiently culpable state of mind. . . . [T]he evidence in the record merely shows that there was a difference in medical opinion between [the doctors]. . . . [W]here a prisoner has received some medical attention and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second guess medical judgments and to constitutionalize clams which sound in state tort law.”) (citations omitted); Fitts v. Burt, No. 05-CV-73112, 2009 WL 1213075, **3-4 (E.D. Mich. April 30, 2009) (Plaintiff’s “‘verifying medical evidence’ of merely having Hepatitis C does not establish any ‘detrimental effect of the delay in medical treatment’. . . . Accordingly. . . Plaintiff has not established the objective component of his deliberate indifference claim.”); Whitington v. Moschetti, 423 Fed. Appx. 767 (10th Cir. 2011) (Inmate was not substantially harmed by a delay in treating his Hepatitis C condition, as required to prevail on his claim of an Eighth Amendment violation. There was no evidence of substantial progression of liver disease); Cowan v. Allen, No. 4:11-cv-00245-JHH-TMP, 2012 WL 3042438, *5-6 (N.D. Ala. July 5, 2012) (“It is clear that the decision to administer drug therapy for Hepatitis C is an extremely complicated one which involves consideration of numerous individual factors that differ from patient to patient. . . . It is clear that the plaintiff has no right to insist on a particular course of treatment, and his disagreement with the medical professionals’ decision to withhold interferon treatment does not present an Eighth Amendment claim. . . . [A]ge is one of the factors used in making a medical determination regarding the appropriateness of Interferon therapy. It seems clear that States have a legitimate interest in . . . avoiding unnecessary expenditures of vital resources.”); Johnson v. Frakes, No. 8:16CV155, 2016 WL 4148231, *3 (D. Neb. Aug. 4, 2016) (“Defendants’ failure to provide Plaintiff with Harvoni, his requested course of treatment, does not constitute an Eighth
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Amendment violation.”); Smith v. Corizon, No. JFM-15-743, 2015 WL 9274915, *6 (D. Md. Dec. 17, 2015) (same).
As the above cases show, an inmate’s Eighth Amendment deliberate indifference claim requires individualized proof that under the facts of his case, his medical condition is serious and a delay in treatment will harm him. Given that in many cases, medication is not necessary because the HCV is not progressing as a disease, many inmates’ cases will fail because the condition is not a “serious medical need” and the plaintiff cannot show that a delay in treatment is harmful. “[T]he likelihood that some significant proportion of class members experienced no injury at all, defeat[s] the named plaintiff’s representation that [his] claims were typical of the class.” Phillips v. Phillip Morris Co., Inc., 298 F.R.D. 355, 363 (N.D. Ohio 2014).
Further, the Sixth Circuit requires an inmate to put medical proof in the record with his complaint, showing harm from a delay in treatment. Each class member would have to submit medical records and proof to the Court, with the complaint, for the Court’s review. See, e.g., Dotson, 304 Fed. Appx. at 439.
Further, the Protocol has exclusionary provisions. Each case where treatment has been denied for an exclusionary reason must be individually examined. Further, some inmates have comorbidities, and that unique circumstance must be individually evaluated.
In sum, there are “too many meaningful differences across the plaintiff class [which] preclude[s] certification. . . . [E]ach class member’s claims involve so many distinct factual questions that class certification becomes inappropriate. In re Welding Fume Products Liability Litig., 245 F.R.D. at 303. Also, “[a] defense which is peculiar to the named plaintiff can destroy the named plaintiff’s typicality.” Ballan v. Upjohn Co., 159 F.R.D. 473, 480 (W.D. Mich. So. Div. 1994). “[T]he defendants’ conduct. . . cannot be examined consistently across the class.” In Re
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Welding Fume products Liability Litig., 245 F.R.D. at 309. The defendants’ conduct will vary according to the unique contours of the different cases.
“Where numerous mini-trials are necessary to resolve individual questions. . . the benefits of a class action disappear.” Rockey, 199 F.R.D. at 593. “[W]here plaintiffs’ claims depend on individual facts, the typicality requirement is not met.” Jones v. Allercare, Inc., 203 F.R.D. 290 (N.D. Ohio 2001). See also, Mays, 274 F.R.D. at 625 (“[P]laintiff’s claims are not typical because the analysis and ultimate determination of each plaintiff’s claim will turn primarily on individualized inquiries.”).
In Kress v. CCA of Tennessee, LLC, 694 F.3d 890 (7th Cir. 2012), the Seventh Circuit ruled that the district court properly denied the inmates’ motion for class certification because the inmates failed to satisfy the typicality requirement since claims of inadequate medical care required individual determinations, as the level of care required to comport with constitutional standards varied depending on each inmate’s circumstances. In Elizabeth M. v. Montenez, 458 F.3d 779 (8th Cir. 2006), the Court vacated the lower court’s order certifying the class, because, “[t]hough plaintiffs’ . . . claims focus on the institutional policies defendants adopted in their official capacities, each . . . claim initially requires proof that [defendants]. . . violated that class member’s . . . [constitutional] right[s]. The presence of a common legal theory does not establish typicality when proof of a violation requires individualized inquiry.” Id. at 786-87 (emphasis in original).
In Chapman v. Hardin County, No. 3:05-CV-433-S, 2009 WL 366521 (W.D. Ky. Feb. 13, 2009), the Court denied class certification of all persons who contracted MRSA while incarcerated at a detention center and all persons who were or would be confined at the jail. Plaintiff alleged that defendant failed to implement and enforce internal policies regarding the protection of inmates
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from exposure to MRSA and provide treatment during their incarceration. Because individualized
inquiry was required, the question of injury would vary from class member to class member,
making class certification inappropriate. The Court found that the proposed class lacked
commonality and typicality:
In this case, there is no single set of operative facts that establishes liability on Defendants, or proximate cause with respect to each proposed class member. Individualized inquiry is required to determine whether [defendant] failed to protect any one given inmate. . . . The commonality has not been met.
Typicality, like commonality, “serve[s] as [a] guidepost[] for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 158 n. 13, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982).
. . . .
As discussed with regard to commonality, a consistent theory of liability on the [Defendant’s] part is rather tenuous due to situational differences from one proposed class member to the next. All class members’ claims do not arise from the same course of events. Therefore, the court cannot conclude that [plaintiff’s] claims are typical of those of the proposed class. . . . The typicality requirement has not been met.
Id. at *7.
In this case, each class member’s HCV claim is unique and requires individualized inquiry.
Plaintiffs fail to meet the typicality requirement.
III. Commonality.
Rule 23(a)(2) requires “commonality,” which is “the rule requiring a plaintiff to
show that ‘there are questions of law or fact common to the class.’” Wal-Mart Stores, Inc.,
564 U.S. at 349 (citing Fed. R. Civ. P. 23(a)(2)).
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That language is easy to misread, since ‘[a]ny competently crafted class complaint literally raises common ‘questions.’. . . . Reciting these questions is not sufficient to obtain class certification. Commonality requires the plaintiff to demonstrate that the class members ‘have suffered the same injury,’ Falcon, supra, at 157, 102 S.Ct. 2364. This does not mean merely that they have all suffered a violation of the same provision of law. . . . their claims must depend upon a common contention. . . . That common contention, moreover, must be of such a nature that it is capable of classwide resolution—which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke. . . . . What matters to class certification . . . is not the raising of common ‘questions’—even in droves—but, rather the capacity of a classwide proceeding to generate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the generation of common answers . . . . We consider dissimilarities [in individual cases] not in order to determine (as Rule 23(b) requires) whether common questions predominate, but in order to determine (as Rule 23(a)(2) requires) whether there is ‘[e]ven a single [common] question.
Wal-Mart Stores, Inc., 564 U.S. at 349-59. See also Sprague, 133 F.3d at 397 (“It is not every
common question that will suffice, however; at a sufficiently abstract level of generalization,
almost any set of claims can be said to display commonality. What we are looking for is a common
issue the resolution of which will advance the litigation.”).
In this case, Plaintiffs appear to claim that the common issue is the constitutionality of the
Department’s Protocol under the Eighth Amendment. However, as shown in Section II, the
constitutionality of the Protocol as applied depends on the specific facts of each individual case.
As to the constitutionality of the Protocol on its face, plaintiffs fail to state a claim. “Where a
prisoner has received some medical attention and the dispute is over the adequacy of the treatment,
federal courts are reluctant to second guess medical judgments and to constitutionalize claims
which sound in state tort law.” Westlake v. Lucas, 537 F.2d 857, 860 n. 5 (6th Cir. 1976). “The
fact that [plaintiffs] disagree[] with the criteria set forth in [the] Protocol. . . and would have
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preferred to have been treated with antiviral therapy from the onset of his diagnosis does not
constitute cruel and unusual punishment.” Collins v. Wilkerson, No. 2:05-cv-0367, 2008 WL
1844320, *4 (S.D. Ohio Apr. 22, 2008). “Plaintiff has stated no claim under the Eighth
Amendment based on deliberate indifference to serious medical needs because he has not been
denied medical treatment but rather merely disputes the adequacy of the treatment provided.”
Loukas v. Michigan Dept. of Corrections, No. 2:07-cv-142, 2008 WL 544639, *1 (W.D. Mich.
Feb. 27, 2008). “The question whether. . . additional diagnostic techniques or forms of treatment
is indicated is a classic example of a matter for medical judgment.” Estelle v. Gamble, 429 U.S.
97, 107 (1976). “A medical decision not to [take certain] measures, does not represent cruel and
unusual punishment. Id.
Here, pursuant to the Protocol, all inmates who request HCV screening or have clinical
indications or risk factors, are screened for HCV. Those who have HCV are monitored. When an
inmate is “continuously monitored[; h]e has received medical attention and merely disputes the
adequacy of the treatment.” Loukas, 2008 WL 544639 at *3.
Because [plaintiff’s] allegations simply constitute a difference of opinion between himself and medical personnel regarding his medical condition, he has failed to allege facts that, if proven, would rise to the level of deliberate indifference in order to support an Eighth Amendment claim. See [Hix] at *6 (where complaint alleged only that doctors prescribed treatment for symptoms rather than treatment prisoner requested, allegations ‘established nothing more than a mere difference of opinion with the doctors’ diagnoses and prescribed treatment’ and failed to state a claim for deliberate indifference to prisoner’s serious medical needs).
Id. at *3 (citation omitted).
When inmates with hepatitis C are medically monitored, pursuant to Department Protocol,
they are receiving medical treatment. Edmonds v. Rees, No. 3:06-CV-P301-H, 2008 WL 754727,
*10 (W.D. Ky. Mar. 19, 2008). That they do not receive the antiviral therapy on demand does not
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state an Eighth Amendment deliberate indifference claim. Id. “Plaintiff has only stated a disagreement with his treatment, which does not give rise to a constitutional claim.” Id. at *8. See also Outlaw v. Turner, 54 Fed. Appx. 229 (7th Cir. 2002) (State prison officials’ implementation of directive establishing procedures for treating hepatitis C did not demonstrate deliberate indifference to inmate’s medical needs under Eighth Amendment claim); Black v. Alabama Dept. of Corr., 578 Fed. Appx. 794 (11th Cir. 2014) (same); Taylor v. Ortiz, 410 Fed. Appx. 76, 77 (10th Cir. 2010) (Protocol excluded persons over age 65 from drug treatment for Hepatitis C because “for the majority of patients, Hepatitis C causes only mild liver damage. The primary danger of Hepatitis C is the increased risk of developing liver cirrhosis or liver cancer, which generally takes decades to occur.” Plaintiff received periodic blood labs which monitored his liver condition and not antiviral drug therapy. Court found no Eighth Amendment violation.); Carlson v. Weber, No. CIV. 08-4101-KES, 2010 WL 3701359, *6 (D. S. D. Sept. 14, 2010) (Where inmate challenged failure to provide drug treatment because he did not meet the eligibility criteria for the Department’s Protocol on treating hepatitis C, he failed to state an Eighth Amendment claim, as “[I]nmates have no constitutional right to receive a particular or requested course of treatment and prison doctors remain free to exercise their independent medical judgment.”); Briley v. Weber, No. Civ. 12-4169-KES, 2014 WL 2592590 (D. S. D. June 10, 2014) (same); Mulkey v. Schweitzer, No. CV 08-75-DWM-RKS, 2009 WL 1451694 (D. Mont. May 20, 2009) (Monitoring liver constituted treatment; plaintiff was not a candidate for therapy treatment under protocol; Court found no Eighth Amendment violation); Baumann v. Buttarazzi, No. 9:05-CV-0690, 2008 WL 4000412, *25 n.31 (N.D. N.Y. Aug. 22, 2008) (collecting cases showing that monitoring Hepatitis C constitutes treatment); Runkle v. Penn. Dept. of Corr., No. 13-137, 2013 WL 6485344, *8 (W.D.
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Penn. Dec. 10, 2013) (Inclusion of inmate with Hepatitis C in chronic care clinic for monitoring
of blood and vital signs constituted treatment).
The Tennessee Department of Corrections’ Protocol provides for treatment of inmates with
HCV. The Department provides screening and monitoring treatment of inmates with the virus,
and the provision of direct acting antiviral drugs when medically indicated. That plaintiffs may
disagree with the Department’s Protocol is a medical difference of opinion. A difference of
medical opinion regarding proper diagnosis and treatment does not state an Eighth Amendment
claim. Thus, plaintiff’s proposed common question: whether the Protocol is unconstitutional on
its face under the Eighth Amendment does not advance the litigation of the case. Instead, it
warrants dismissal of the case.
IV. The Class Representative Requirement.
There are two prongs to the adequacy of representation inquiry: “1) the representative must
have common interests with unnamed members of the class, and 2) it must appear that the
representatives will vigorously prosecute the interests of the class through qualified counsel.”
Senter v. Gen. Motors Corp., 532 F.2d 51, 525 (6th Cir. 1976) (citation omitted).
“The bedrock requirement of adequacy is that the named representative be a member of the
class. . . . The adequacy of class representatives in this regard is primarily a factual issue for
determination by the trial court.” Rockey, 199 F.R.D. at 585.
A claim of deliberate indifference to future serious harm requires proof of both the objective and subjective elements of an Eighth Amendment claim. Id. at 35, 113 S.Ct. 2475. An alleged delay in receiving treatment requires an examination of the effects of the delay. Napier, 238 F.3d at 742. “[A]n inmate who complains that delay in medical treatment rose to a constitutional violation must place verifying medical evidence in the record to establish the detrimental effect of the delay in medical treatment to succeed.” Id. (quoting Hill v. Dekalb Reg’l Youth Det. Ctr., 40 F.3d 1176, 1188 (11th Cir. 1994).
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Dodson v. Wilkinson, 304 Fed. Appx. 434, 438-39 (6th Cir. 2008) (emphasis added). Plaintiffs have failed to show that they are members of the class, with legitimate claims,
because Plaintiffs have failed to submit medical records showing that their Hepatitis C condition is serious and that an alleged delay in their medical treatment is causing harm. “The plaintiffs have no basis for complaining of a refusal to certify a proposed class where the representatives of the class [has not shown he can] prevail on the merits.” Sprague, 133 F.3d at 397. V. Rule 23(b)(1).
“Rule 23(b)(1) applies where separate actions by or against individual class members would create a risk of ‘establish[ing] incompatible standards of conduct for the party opposing the class,’ Rule 23(b)(1)(A), such as ‘where the party is obliged by law to treat the members alike,’ or where individual adjudications ‘as a practical matter, would be dispositive of the interests of the other members not parties to the individual adjudications or would substantially impair or impede their ability to protect their interests,’ Rule 23(b)(1)(B), such as ‘ “limited fund” cases, . . . in which numerous persons make claims against a fund insufficient to satisfy all claims.’” Wal-Mart Stores, Inc., 564 U.S. at 361 n.11 (internal citations omitted). “Classes certified under (b)(1) . . . [apply where] individual adjudications would be impossible or unworkable.” Id. at 361.
Rule 23(b)(1) does not apply to this case. Under Eighth Amendment deliberate indifference to serious medical needs law, each class member’s claim is grounded upon its own individual facts. Further, defendants do not treat all plaintiffs alike, but according to the needs of each individual case. Individual adjudications are not impossible; indeed, individual adjudications are required. No adjudication in one case will have res judicata effect on another.
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VI. Rule 23(b)(2). “The key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy
warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them. In other words, Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant.” Wal-Mart Stores, Inc., 564 U.S. at 360. “The relief sought must perforce affect the entire class at once.” Id. at 361-62. “A rule 23(b)(2) action cannot resolve individualized issues of fact, nor provide different types of relief required to redress individual injuries.” In re Welding Fume Products Liability Litig., 245 F.R.D. at 313.
Rule 23(b)(2) does not apply to this case. Plaintiffs appear to seek a single injunctive order that all inmates with HCV receive Harvoni or Solvaldi direct acting anti-viral drugs immediately upon their diagnosis. Such an order would be wholly inappropriate, given that many persons with Hepatitis C require no drug treatment at all, but only monitoring, because in most cases, the illness progresses slowly over the course of many years and in many cases, will resolve itself without any drug treatment whatsoever. The only proper disposition of the inmates’ cases is by individualized inquiry to determine whether specific injunctive relief is warranted at all.
22 Case 3:16-cv-01954 Document 20 Filed 10/11/16 Page 22 of 24 PageID #: 158

CONCLUSION For the foregoing reasons, the Court should deny plaintiffs’ motion for class certification.
Respectfully submitted, HERBERT H. SLATERY III Attorney General and Reporter /s/ Pamela S. Lorch PAMELA S. LORCH BPR No. 8968 Senior Counsel /s/ Madeline Bertasi Brough MADELINE BERTASI BROUGH BPR No. 31022 Assistant Attorney General Attorney General’s Office PO Box 20207 Nashville, TN 37202 (615) 532-2500
23 Case 3:16-cv-01954 Document 20 Filed 10/11/16 Page 23 of 24 PageID #: 159

CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing was filed electronically on October 11, 2016. Notice of this filing will be sent by operation of the Court’s electronic filing system to all parties indicated on the electronic filing receipt, including: Elizabeth S. Logsdon Disability Rights Tennessee 2 International Plaza Suite 825 Nashville, TN 37217 Karla M. Campbell Branstetter, Stranch & Jennings, PLLC The Freedom Center 233 Rosa Parks Avenue Suite 200 Nashville, TN 37203 Thomas H. Castelli ACLU (Nashville Office) PO Box 120160 Nashville, TN 37212 Parties may access this filing through the Court’s electronic filing system.
/s/ Pamela S. Lorch PAMELA S. LORCH
24 Case 3:16-cv-01954 Document 20 Filed 10/11/16 Page 24 of 24 PageID #: 160

 
 UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

CHARLES GRAHAM aka CHARLES

)

STEVENSON and

)

RUSSELL L. DAVIS, on behalf of

)

themselves and all others similarly situated, )

)

Plaintiffs,

)

)

v.

) No. 3:16-CV-1954

)

TONY C. PARKER, Commissioner,

) Judge Crenshaw

Tennessee Department of Corrections;

) Magistrate Judge Brown

DR. MARINA CADRECHE, Assistant

)

Commissioner of Rehabilitative Services, )

Tennessee Department of Corrections;

)

and DR. KENNETH WILLIAMS, Medical )

Director, Tennessee Department of

)

Corrections, in their official capacities,

)

)

Defendants.

)

______________________________________________________________________________

PLAINTIFFS’ REPLY TO DEFENDANTS’ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO CERTIFY CLASS
______________________________________________________________________________

Plaintiffs, through undersigned counsel, submit this reply to Defendants’ Response in

Opposition to Plaintiffs’ Motion to Certify, Dkt. No. 20 (“Response”), under Rule 23 of the Federal

Rules of Civil Procedure. The Court should grant Plaintiffs’ motion for class certification because

Plaintiffs satisfy the requirements of Rule 23 and this action can be most efficiently resolved as a

class action.

STATEMENT OF FACTS

Defendants’ response seeks to downplay the harm caused by the Tennessee Department of

Corrections’ (“TDOC” or “Department”) failure to treat inmates with the Hepatitis C virus

(“HCV”) with direct acting antiviral (“DAA”) medications now widely available on the market.

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Simultaneously, Defendants overstate TDOC’s protocol for treating HCV by equating testing and monitoring with treatment.
HCV attacks the liver and causes an inflammation of the liver called hepatitis. The inflammation can significantly impair the liver’s ability to filter toxins from the blood, digest essential nutrients, and prevent disease. TDOC’s current guidance on the testing, managing and treatment of HCV acknowledges that chronic HCV can also lead to chronic liver disease, liver fibrosis, and death. Complaint, Dkt. 1 (“Compl.”), ¶¶ 1, 31; Compl., Exhibit A, Dkt. 1-1. HCV infections occur in two stages. Acute HCV infection is the initial phase within the first six months of contracting the virus. (Declaration of Michael S. Saag, M.D. ¶ 5, Attached as Exhibit “A”) [hereinafter Saag Dec.]). During this initial period, roughly 15% to 20% of infected individuals resolve the infection. Id.
After this initial period, the infection moves into the chronic phase. Id. at ¶ 6. Chronic HCV does not resolve. Infected individuals will have HCV for life if not treated with appropriate medications. Id. DAAs can cure the infection. Current guidance from the HCV Guidance Panel, a joint panel comprised of individuals from the American Association for the Study of Liver Diseases (“AASLD”) and the Infectious Diseases Society of America (“IDSA”) (the “Panel”), recommends treatment with DAAs for all patients diagnosed with chronic HCV. Id. ¶¶ 2, 7. The AASLD/IDSA Panel convened in 2013 to address the rapidly changing landscape of HCV treatment due to the introduction of DAA therapies around 2011. Id. ¶ 2 The Panel publishes guidance entitled HCV Guidance: Recommendations for Testing, Managing, and Treating Hepatitis C, the latest iteration of which was released in October 2016. Id.
The current Panel guidance is for every person with chronic HCV to be treated with one of the many DAAs now available. While earlier iterations of the guidance suggested prioritizing
2 Case 3:16-cv-01954 Document 24 Filed 11/30/16 Page 2 of 15 PageID #: 181

treatment for those in the most advanced stages of the disease, given the rapid advancement in DAAs, there is simply no medical reason not to treat everyone.1 Id. at ¶ 7. TDOC’s protocol does not follow the Panel’s guidance and instead prioritizes treatment among inmates based on the severity of complications from the virus. In their response, Defendants state that all inmates that test positive for HCV receive “monitoring treatment.” This is not treatment. Id. ¶ 11. Monitoring serves no purpose unless it leads to treatment with medication. Id. The Response admits that TDOC’s protocol denies meaningful treatment to all inmates except those with the most advanced damage from HCV. The protocol therefore varies wildly from the accepted and recommended treatment standards for chronic HCV that all person’s infected should be treated with DAAs, which have a high likelihood of curing the infection and avoiding any further complications or damage from the virus.
Consequently, Named Plaintiffs and other inmates have not received the necessary medical treatment for HCV, including the latest DAA, and have a substantially increased risk of continued HCV infection, liver disease, liver cancer, cirrhosis, and death. See Compl. Dkt. 1 ¶¶ 1, 31; Compl., Exhibit A, Dkt. 1-1.
ARGUMENT Defendants attack Plaintiffs’ Motion on all four requirements of Rule 23(a) and at least one of the three requirements in Rule 23(b)(2) of the Federal Rules of Civil Procedure. While the court must conduct a “rigorous analysis” to determine if the Rule 23 prerequisites are met, Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 161 (1982), class certification depends only on the requirements of Rule 23, and not on the plaintiff’s likely success on the merits of the case.
1 The Panel recognizes certain medical exclusions to this general rule, such as: life expectancy < 12 – 18 months owing to other diseases; pregnancy (which by definition is self-limited); and willingness to take or adhere to the medical regimen. Saag Decl. ¶ 7.
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Weathers v. Peters Realty Corp., 499 F.2d 1197, 1201 (6th Cir. 1974) (citing Miller v. Mackey Int’l., 452 F.2d 424, 427 (5th Cir. 1971)). Defendants’ Response seeks to claim victory on the merits of the case and, thereby, argues that certification of a class would be improper. Defendants are putting the cart before the horse.
A. The Inmate Class satisfies Rule 23(a)(1) because joinder of all Class members would be impracticable.
Defendants argue that Plaintiffs fail to meet the numerosity requirement of Rule 23(a)(1) because the potential class members could each, individually bring their own lawsuit, stating that inmates “can and do bring claims pro se and in forma pauperis.” Response, p. 6. While it is undoubtedly true that inmates can and often do bring claims, this argument is universal to all class actions on whatever topic. Numerosity is not defeated simply because individuals can, in theory, bring a separate lawsuit seeking relief.
The purpose of the requirement is to ensure that a Class Action lawsuit is an effective vehicle to resolve many claims at once. For this reason, the Sixth Circuit grants a “presumption that joinder is impracticable” for classes in which the number of class members reaches forty. Daffin v. Ford Motor Co., 458 F.3d 549, 552 (6th Cir. 2006); City of Goodlettsville v. Priceline.com, Inc., 267 F.R.D. 523, 529 (M.D. Tenn. 2010). The Inmate Class numbers well into the thousands of plaintiffs and, therefore, should be presumed to be impractical because of its size alone. See Daffin, 458 F.3d at 552; see also Priceline.com, Inc., 267 F.R.D. at 529. In fact, Defendants concede that there are “over 20,000 inmates in the system,” a number so high as to make some litigation tasks “extremely taxing.” Response, p. 7.
Joinder is impracticable not just because of the substantial size of the putative Class, but because of the situation in which potential Class members find themselves. In fact, courts have often observed that joinder of prisoners is particularly onerous.
4 Case 3:16-cv-01954 Document 24 Filed 11/30/16 Page 4 of 15 PageID #: 183

[There are] pervasive impracticalities associated with multiple-plaintiff prisoner litigation, which militates against permissive joinder even if it were otherwise allowed by Rule 20(a). Among the difficulties noted are the need for each plaintiff to sign every pleading, and the consequent possibilities that documents may be changed as they are circulated, or that prisoners may seek to compel prison authorities to permit them to gather to discuss the joint litigation. . . . Moreover, it often results in pleadings being filed on behalf of plaintiffs without their consent. Proctor v. Applegate, 661 F. Supp. 2d 743, 779-80 (E.D. Mich. 2009) (internal citations and quotations omitted). It is difficult to imagine that proceeding with thousands of pro se litigations, each of whom will commence litigation with his or her own in forma pauperis petition, would be an efficient use of the Court’s resources. For all these reasons, the Inmate Class satisfies Rule 23(a)(1)’s numerosity requirement. The substantial size of the Class, the geographic diversity of the Class members, and the unlikelihood that the Class members would – or could – bring separate suits, or join together in a non-class suit, weigh in favor of certification under Fed. R. Civ. P. 23(a)(1). Defendants also attack Plaintiffs’ class definition, claiming that it is not definite enough to satisfy Rule 23(a). Defendants complain that the term “currently” is not definite enough without a fixed date and that inmate release dates vary and may require individualized and continuous calculations. Response, p. 7. Defendants are complaining, in essence, that Plaintiffs’ class is a “fluid class,” meaning that members of the class, including the named Plaintiffs, may become moot because of the transitory nature of the class or because Defendant has the ability to moot claims by providing the requested relief. See Lebron v. Wilkins, 277 F.R.D. 664, 667 (M.D. Fla. 2011)(“The Court finds that there is specific evidence in the record to conclude that the putative class members are so numerous that joinder would be impracticable, especially where, as here, Plaintiff alleges a class-wide constitutional violation across a highly fluid class of citizens.”). Classes made up of individuals in institutions, whether prisons, schools, or medical facilities, all
5 Case 3:16-cv-01954 Document 24 Filed 11/30/16 Page 5 of 15 PageID #: 184

face this common issue. Class members may leave the institution and no longer be part of the Class. This feature of the class as defined in Plaintiffs’ complaint does not weigh against certification. It weighs in favor of certification. Reynolds v. Giuliani, 118 F. Supp. 2d 352, 391– 92 (S.D.N.Y. 2000)(“This case involves a fluid class where the claims of the named plaintiffs may become moot prior to completion of this litigation”).
The very nature of injunctive relief often includes an outcome where relief is granted for current and future class members. In Jackson v., Danberg, the district court found that the numerosity requirement had been met by a class of sixteen inmates because the nature of the class, and the relief sought, lends itself to an ever changing class. 240 F.R.D. 145, 147 (D.Del. 2007). “[A]lthough the identity of the members of the putative class may change, the defining characteristics and the parameters of the class will remain the same.”
The Inmate Class is definite and objectively measurable such that the Court can easily determine whether a particular individual is a member of the Class. The Class is limited in time to persons who are incarcerated in a facility operated or supervised by the Department and who have a current diagnosis of HCV or who are diagnosed with the virus after proper screening by TDOC.
Essentially, inmates either have the virus or they do not. If they have contracted the virus, they are part of the Class. An inmate who meets this objective criteria would be a Class member because they are subject to unconstitutionally deficient medical care by the Department for their HCV.
The size of a potential class and the need to review individual files to identify its members are not reasons to deny class certification. See Young v. Nationwide Mut. Ins. Co., 693 F.3d 532, 539–40 (6th Cir. 2012)(“Several other courts have found that the size of a potential class and the
6 Case 3:16-cv-01954 Document 24 Filed 11/30/16 Page 6 of 15 PageID #: 185

need to review individual files to identify its members are not reasons to deny class certification.”) Therefore, while some current Class members may be released for varying reasons, Defendants and TDOC should have no trouble determining which inmates have the disease and would be subject to any injunctive relief won at the conclusion of the lawsuit.
B. Plaintiffs satisfy Rule 23(a)(3) because their claim is typical of the class they seek to represent.
Defendants next assert that each Class member’s claim relies on the individual merit of their own case and, therefore, fails to meet the typicality and commonality requirements of Rule 23(a)(2) and (3). Response, pp. 9-14. However, injunctive actions, by their very nature, present common questions satisfying Rule 23(a)(2) because there are “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). They also do not involve an individualized inquiry for the determination of damages. A proposed class satisfies the commonality requirement of Rule 23(a)(2) if the class members’ claims “depend on a common contention” and that common contention is “of such a nature that it is capable of classwide resolution.” Wal-Mart Stores, Inc., 564 U.S. at 350.
Plaintiffs satisfy Rule 23(a)(2) because there are questions of both law and fact that pertain to all members of the Inmate Class and are capable of class-wide resolution such that it will advance the litigation. Defendants cite several cases concerning HCV treatment to demonstrate the individual proof needed to determine whether treatment was warranted. Response, pp. 10-13. These cases are wholly irrelevant to the question of certifiability. First, these cases go to the constitutionality of individualized courses of treatment provided to particular prison litigants suffering from HCV infection. In other words, these are merits cases that do not inform the Court’s analysis of whether the currently proposed Class satisfies the strictures of Rule 23. For example, Defendants repeat throughout their brief that that they provide “monitoring” of the progression of
7 Case 3:16-cv-01954 Document 24 Filed 11/30/16 Page 7 of 15 PageID #: 186

the disease, which, they argue, is sufficient treatment for many. See Response, pp. 2 (“the Department provides ongoing monitoring treatment”), 19 (“monitoring liver constituted treatment”), 20 (same), 22 (“many persons with Hepatitis C require no drug treatment at all, but only monitoring”). Of course, from a medical standpoint, this is patently incorrect. Monitoring is not treatment. Saag Dec., ¶ 11. In fact, “[m]onitoring serves no purpose unless it leads to treatment with medication.” Id. However, questions about the appropriate type of treatment to provide members of the Class is a merits question to be resolved after both fact and expert discovery. That Defendants already provide some medical attention, even if wholly inadequate, is not relevant to the question of class certification.
Second, many of these cases predate the introduction of DAA medications and the change in treatment standards for those infected with HCV. See Saag Dec., ¶ 7 (explaining that “earlier iterations of the guidance suggested prioritizing treatment for those in the most advanced stages of the disease,” which differentiation has been mooted by the current guidance). In fact, Dr. Williams himself concedes that the currently accepted medical standard is “to treat all patients diagnosed with HCV.” Affidavit of Kenneth Williams, Dkt. No. 20-1, ¶ 5. Because guidance on DAAs is so new, case law that predates this medical advancement are inapplicable given the current treatment standards.
Finally, the cases cited by Defendants are not applicable to the central questions presented in suit. In fact, these cases wholly mischaracterize Plaintiffs’ claims in this case. The cases Defendants cite involve requests for specific treatment for an individual inmate with HCV and, often, monetary damages. In this case, however, Plaintiffs make a blanket challenge to the Department’s official protocol and system-wide practices for HCV diagnosis and treatment, seeking only non-monetary forms of relief. In other words, Plaintiffs challenge the
8 Case 3:16-cv-01954 Document 24 Filed 11/30/16 Page 8 of 15 PageID #: 187

constitutionality of the Department’s policies, not individual courses of treatment. Whether the Defendants’ failure to diagnosis and treat HCV in inmates with the most recent and generally accepted standard of treatment violates the Eighth Amendment to the United States Constitution is a question of general applicability to the Class and does not depend on individualized medical determinations. This question is common to all Class members because all are incarcerated and subject to TDOC’s treatment protocols and policies regarding treatment for HCV. See Saur v. Snappy Apple Farms, Inc., 203 F.R.D. 281, 287 (W.D. Mich. 2001) (“In cases involving the question of whether a defendant has acted through an illegal policy or procedure, commonality is readily shown because the common question becomes whether the defendant in fact acted through the illegal policy or procedure.”) (citing Van Vels v. Premier Athletic Ctr. of Plainfield, Inc., 182 F.R.D. 500, 507 (W.D.Mich. 1998) (collecting cases)).
Questions of fact further satisfy the commonality requirement. The factual question of whether the Department’s treatment protocols and policies adequately screen for, diagnose and treat inmates with HCV applies to all proposed Class members. Questions regarding what is the standard of care for treating HCV likewise apply to all Class members. Resolution of these questions, and others, will involve facts common to all members of the Class and will materially advance the litigation.
For these reasons, courts in this Circuit routinely certify as class actions challenges to a correctional department’s policies and blanket practices. See, e.g., Johannes v. Washington, No. 14-CV-11691, 2015 WL 5634446, at *6 (E.D. Mich. Sept. 25, 2015) (“As for typicality and commonality, if the legal claims in this case are merely challenges to the constitutionality of MDOC’s dental policies in the abstract, there would be no difference between any class member's claims . . . . This is the essence of commonality and typicality.”) (citing Wal-Mart, 131 S. Ct. at
9 Case 3:16-cv-01954 Document 24 Filed 11/30/16 Page 9 of 15 PageID #: 188

2551 & n.5); Turner v. Grant Cty. Det. Ctr., No. CIV.A. 05-148-DLB, 2008 WL 821895, at *15 (E.D. Ky. Mar. 26, 2008) (“Ordinarily, whether Defendants' alleged policies and/or practices for each class violate the Eighth Amendment would be a question common to Plaintiffs' proposed classes.”).
Cases involving enforcement of a uniform policy or procedure, including those relating to prisoners, are often approved as class actions because they involved questions of fact and law common to all members. Clearly each individual member of the class has a unique situation and has been affected in diverse ways by the alleged discriminatory policy. That there are differences in situation and effect does not preclude a finding by this Court of commonality. That each class member's case is in other ways unique does not affect the commonality of the action, as long as the members of the class have allegedly been affected by a general policy of the defendant, and the general policy is the focus of the litigation. Dowdy-El v. Caruso, No. 06-11765, 2012 WL 6642793, at *4 (E.D. Mich. Aug. 15, 2012), report and recommendation adopted, No. 06-11765, 2012 WL 6642763 (E.D. Mich. Dec. 20, 2012) (citing Glover v. Johnson, 85 F.R.D. 1 (E.D.Mich.1977)) (internal citations omitted) (collecting cases).
For the same reasons, courts across the country routinely certify as class actions challenges to a correctional department’s policies and blanket practices. See, e.g., Parsons v. Ryan, 754 F.3d 657, 678 (9th Cir. 2014) (citing Wal–Mart, 131 S.Ct. at 2551) (“What all members of the putative class and subclass have in common is their alleged exposure, as a result of specified statewide ADC policies and practices that govern the overall conditions of health care services and confinement, to a substantial risk of serious future harm to which the defendants are allegedly deliberately indifferent.”); Hernandez v. Cty. of Monterey, 305 F.R.D. 132, 154–56 (N.D. Cal. 2015); Scott v. Clarke, 61 F. Supp. 3d 569, 587–88 (W.D. Va. 2014) (“[The] analytical regime concerning ‘commonality’ does not serve as a barrier to the certification of class actions in cases involving prisoners' claims alleging a pattern and practice of
10 Case 3:16-cv-01954 Document 24 Filed 11/30/16 Page 10 of 15 PageID #: 189

conduct resulting in unconstitutional conditions of confinement.”); Jones v. Gusman, 296 F.R.D. 416, 465–67 (E.D.La.2013); Butler v. Suffolk Cnty., 289 F.R.D. 80, 96–101 (E.D.N.Y.2013); Flynn v. Doyle, No. 06-C-537, 2007 WL 805788, *4 (E.D. Wis. Mar. 14, 2007) (“The commonality and typicality requirements are also more easily met when the class members only seek injunctive relief, rather than monetary damages…. [W]hen, as is the case here, the plaintiffs only seek injunctive relief, the possibility of individualized determinations is removed.”).
Likewise, typicality does not require the claims of the class representative to be identical to the claims of other class members. See Falcon, 457 U.S. at 155. A claim is typical if it: (1) arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and (2) is based on the same legal theory as their claims. Craft v. Vanderbilt Univ., 174 F.R.D. 396, 404 (M.D. Tenn. 1996) (citations omitted).
Plaintiffs’ claims satisfy Rule 23(a)(3). Plaintiffs’ claims are typical of – indeed identical to – the Class claims because all claims involve the constitutionality of the Department’s treatment protocols, polices, and practices regarding HCV. Plaintiffs’ claims involve the same legal theory as the Class claims. If Plaintiffs establish that the Department’s treatment, or lack thereof, of HCV is unconstitutional, and that they are entitled to injunctive and declaratory relief, the claims of the Class will necessarily succeed and the Class members will reap the benefits of the same injunctive and declaratory relief.
C. Plaintiffs satisfy Rule 23(a)(4) because they are members of the Class with common interests to the unnamed Class members and will vigorously prosecute the interests of the Class through qualified counsel.
Defendants assert that Plaintiffs cannot represent the class because they have not submitted “medical records showing their Hepatitis C condition is serious and an alleged delay in treatment is causing harm.” Again, Defendants assert that their protocols pass constitutional muster and,
11 Case 3:16-cv-01954 Document 24 Filed 11/30/16 Page 11 of 15 PageID #: 190

therefore, Plaintiffs cannot represent a class of plaintiffs because their individual complications from HCV may be different from other class members. However, the only relevant inquiry is whether Plaintiffs suffer from chronic Hepatitis C, which they have alleged in the Complaint and which the medical records in TDOC’s possession clearly show they do. See Compl. ¶¶ 4-5.
Plaintiffs and the unnamed Class members all suffer from chronic HCV infection and are all subject to the same treatment protocols and policies. Plaintiffs’ claims attack the constitutionality of these policies, which withholds treatment from those for whom it is medically indicated. Current medical standards require treatment with DAAs for all inmates who have chronic HCV. Failure to cure HCV may have more or less severe consequences according to an individual’s progression, but the fact remains that TDOC protocols run contrary to the most current medical standards and leave all Class members, including the named Plaintiffs, without treatment of their chronic infection. Plaintiffs’ interests are coextensive to the unnamed Class members’ interests.
Favorable relief in this case will provide relief to all Class members. Plaintiffs seek the same relief as the unnamed Class members, namely to protect their constitutional rights to receive adequate medical care and treatment for a chronic, painful condition that can, and often will, lead to death. Because Plaintiffs’ physical health is at stake, they have the highest incentive to vigorously litigate this case to achieve favorable relief from the Court. See Compl., ¶¶ 31, 38, .
D. Plaintiffs Satisfy The Requirement Of 23(b)(2) Because Injunctive And Declaratory Relief Would Provide Relief To All Class Members
Defendants claim Plaintiffs fail to meet the requirements of Rule 23(b)(2) because an injunction ordering that inmates be treated with DAAs for HCV would be inappropriate because such treatment is not required. Defendants again assert that if the Court assumes that they will ultimately prevail on the merits of the case then Plaintiffs’ request for injunctive relief is
12 Case 3:16-cv-01954 Document 24 Filed 11/30/16 Page 12 of 15 PageID #: 191

unnecessary. While this is certainly true, the standard for certification of an injunctive class does
not assume the Defendant will prevail. If Plaintiffs show Defendants have violated the Class
members’ constitutional rights, then favorable injunctive and declaratory relief would provide
appropriate relief to all Class members simultaneously, namely the institution of proper screening
and treatment for their disease. The declaratory and injunctive relief sought satisfies the
requirements of Rule 23(b)(2) for class certification. Indeed, the Ninth Circuit recently approved
of certification under Rule 23(b)(2) in a case in which a class of inmates sought injunctive relief
for inadequate medical care. Parsons v. Ryan, 754 F.3d 657, 678, 686-87 (9th Cir. 2014).
CONCLUSION
For the reasons set forth in this reply and in Plaintiffs’ Memorandum in Support of the
Motion to Certify Class, the Court should permit this matter to proceed as a class action under Fed.
R. Civ. P. 23(b)(2). Plaintiffs respectfully request that the Court grant Plaintiffs’ Motion to Certify
Class by certifying the Inmate Class. Plaintiffs also ask that their counsel of record be approved as
counsel for the Class.
Dated: November 30, 2016
Respectfully submitted,
/s/ Thomas H. Castelli Karla M. Campbell (BPR 27132) BRANSTETTER, STRANCH
& JENNINGS, PLLC The Freedom Center 223 Rosa L. Parks Avenue, Suite 200 Nashville, TN 37203 Phone: (615) 254-8801 Fax: (615) 255-5419 karlac@bsjfirm.com
Thomas H. Castelli (BPR 24849) AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF TENNESEEE
13 Case 3:16-cv-01954 Document 24 Filed 11/30/16 Page 13 of 15 PageID #: 192

P.O. Box 120160 Nashville, Tennessee 37212 Phone: (615) 320-7142 Fax: (615) 691-7219 tcastelli@aclu-tn.org Elizabeth S. Logsdon (BPR 32066) DISABILITY RIGHTS TENNESSEE 2 International Plaza, Suite 825 Nashville, Tennessee 37217 Phone: (615) 298-1080 Fax: (615) 298-2046 lizl@disabilityrightstn.org
14 Case 3:16-cv-01954 Document 24 Filed 11/30/16 Page 14 of 15 PageID #: 193

CERTIFICATE OF SERVICE I hereby certify that on November 30 2016, a true and exact copy of the foregoing document has been served by ECF upon the following counsel for defendants:
Madeline Bertasi Bough Pamela S. Lorch Office of the Attorney General P.O. Box 20207 Nashville, Tennessee 37202-0207
/s/ Thomas H. Castelli Thomas H. Castelli
15 Case 3:16-cv-01954 Document 24 Filed 11/30/16 Page 15 of 15 PageID #: 194

UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

CHARLES GRAHAM aka CHARLES

)

STEVENSON and

)

RUSSELL L. DAVIS, on behalf of

)

themselves and all others similarly situated, )

)

Plaintiffs,

)

)

v.

) No. 3:16-CV-1954

)

TONY C. PARKER, Commissioner,

) Judge Crenshaw

Tennessee Department of Corrections;

) Magistrate Judge Brown

DR. MARINA CADRECHE, Assistant

)

Commissioner of Rehabilitative Services, )

Tennessee Department of Corrections;

)

and DR. KENNETH WILLIAMS, Medical )

Director, Tennessee Department of

)

Corrections, in their official capacities,

)

)

Defendants.

)

______________________________________________________________________________

DECLARATION OF MICHAEL S. SAAG, M.D. ______________________________________________________________________________

I, Michael S. Saag, M.D., have personal knowledge of the following matters, would so

testify in open court if called to do so, and am competent to render this testimony:

1. I am the Associate Dean for Global Health at the University of Alabama School

of Medicine. I also serve as the Director for the Center for AIDS Research, University of

Alabama at Birmingham. I have been principally involved in HIV research since the 1980s, and

approximately 6-8 years ago I transitioned into research on the Hepatitis C Virus (“HCV”),

which was a natural transition because many similarities between the two viruses, including the

disease progression of both. Of course, unlike HIV, there is now a cure for HCV.

EXHIBIT A

{005144/16221/00407826.DOCX / Ver.1}1 Case 3:16-cv-01954 Document 24-1 Filed 11/30/16 Page 1 of 4 PageID #: 195

2. I am also a founding Co-Chair and current member of what is commonly known as the HCV Guidance Panel, which is a joint panel comprised of individuals from the American Association for the Study of Liver Diseases (AASLD) and the Infectious Diseases Society of America (IDSA) (“Panel”). The AASLD/IDSA Panel convened in 2013 to address the rapidly changing landscape of HCV treatment due to the introduction of direct-acting anti-viral (“DAA”) therapies around 2011. I was one of five original co-chairs of the Panel. The Panel publishes guidance entitled HCV Guidance: Recommendations for Testing, Managing, and Treating Hepatitis C, the latest iteration of which was released in October 2016.
3. I have reviewed Defendants’ Response in Opposition to Plaintiffs’ Motion to Certify Class, Dkt. 20. I have also reviewed the Affidavit of Kenneth Williams, Dkt. 20-1.
4. I found interesting Dr. Williams statement that “The Tennessee Department of Correction follows the recommendation of the AASLD to treat all patients diagnosed with HCV.” Dkt. 20-1, ¶ 5. In fact, this is precisely the current guidance recommended by the AASLD/IDSA Panel.
5. Generally speaking, HCV infection occurs in two stages. Acute HCV infection is the initial phase within the first six months of exposure to the virus. During this period, roughly 15-20% of infected individuals self-resolve. Therefore, there is no reason to treat the virus during the acute phase of infection.
6. Approximately six months after infection, the remaining 80-85% of infected individuals move into the chronic phase of infection. Chronic HCV does not self-correct; these individuals are infected for life if not treated with appropriate medication.
7. The current Panel guidance is for every person with chronic HCV to be treated with one of the many DAA regimens now available. While earlier iterations of the guidance
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suggested prioritizing treatment for those in the most advanced stages of the disease, given the rapid advancement in DAAs, there is simply no medical reason not to treat everyone who has HCV (except those with medical exclusions, such as: life expectancy < 12 – 18 months owing to other diseases; pregnancy (which by definition is self-limited); and willingness to take or adhere to the medical regimen).
8. The Hepatitis C virus replicates very rapidly in the body. In fact, the level of viral replication can reach into the trillions of viral participles per day. This high level of replication causes substantial inflammation. In other words, people with untreated chronic HCV have chronic inflammation. Chronic inflammation shortens life expectancy and leads to a number of secondary conditions, such as heart disease, stroke, liver disease, kidney disease, and cognitive impairment at earlier ages. Approximately 30-50% of individuals with Chronic HCV will develop advanced liver disease over 20 – 30 years, and most people with chronic HCV will develop some symptoms or chronic conditions due to inflammation. The difficulty clinically is that there are no tests can predict whether a given patient with HCV will progress to end stage liver disease nor at what rate; hence, the recommendation in the HCV Guidelines to treat all persons with chronic HCV infection, who do not have exclusions to treatment ( supra), regardless of current stage of liver fibrosis.
9. A number of the medical assertions made by Defendants in their Response are wildly inaccurate. For example, Defendants state that the risk of developing liver disease is small, Dkt. 20, p. 4. This is simply incorrect, given the risk ranges from 30-50% and other nonliver disease end points occur at a higher rate. Also, Defendants state that medicine is often not necessary because the disease is not progressing, and so in those cases delay is not harmful, Dkt. 20, p. 14. This is false. Daily viral replication means that the disease – and inflammation and
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the chronic illnesses it causes – is always progressing. Hepatitis C is a serious disease, and so of

course delay in treatment causes harm.

10. Additionally, Defendants list priorities of treatment based on individual health, for

example, people with fibrosis or cirrhosis. Dkt. 20, p. 3. However, current medical standards

moot these priorities, as treatment is recommended for everyone with chronic infection (unless a

treatment exclusion exists).

11. Finally, Defendants say throughout their Response that they provide treatment in

the form of monitoring. Monitoring is not treatment. Monitoring serves no purpose unless it

leads to treatment with medication. A good analogy for this argument is cancer: a doctor would

not recommend monitoring the progression of cancer until it reaches a late stage to begin

treatment, because the risks are much greater at that point. The same is true for HCV; there is no

medical reason to delay treatment for chronic HCV with a DAA that can cure the disease.

FURTHER DECLARANT SAYETH NOT

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true

and correct.

Dated: November 29, 2016

/s/ Michael S. Saag MICHAEL S. SAAG, M.D.

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 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

CHARLES GRAHAM a/k/a CHARLES STEVENSON, et al., Plaintiffs v. TONY C. PARKER, et al., Defendants

)

)

)

)

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NO. 3-16-cv-01954

)

CHIEF JUDGE CRENSHAW

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)

MEMORANDUM

Pending before the Court is Plaintiffs’ Motion for Class Certification (Doc. No. 14). They

challenge whether the State of Tennessee’s policies and procedures for inmates with Hepatitis C

satisfies constitutional standards. For the reasons stated herein, Plaintiffs’ Motion is GRANTED.

INTRODUCTION

Plaintiffs Charles Graham and Russell Davis are inmates in facilities operated by the

Tennessee Department of Corrections (“TDOC”). Both Graham and Davis have been diagnosed with

the Hepatitis C virus. The Class Action Complaint (Doc. No. 1) alleges that Hepatitis C is a viral

infection that causes liver inflammation that may lead to a host of medical complications and

sometimes death.

Graham and Davis brought this action, on behalf of themselves and others similarly situated,

against Tony Parker, TDOC Commissioner, Dr. Marina Cadreche, TDOC Assistant Commissioner

of Rehabilitative Services, and Dr. Kenneth Williams, TDOC Medical Director. They allege ongoing

violations of their Eighth and Fourteenth Amendment rights by Defendants’ deliberate indifference

to their medical needs and to the medical needs of all inmates infected with the Hepatitis C virus.

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Plaintiffs take issue with Defendants’ practices and procedures for addressing inmates with the Hepatitis C virus.
Plaintiffs seek to enjoin Defendants’ current practices and procedures related to the diagnosis and treatment of inmates with Hepatitis C and to have the Court order Defendants to develop and implement a plan to eliminate the substantial risk of serious harm to inmates with Hepatitis C in accordance with the community standards of care and the advice of medical experts. Plaintiffs contend that Defendants’ current written policies for Hepatitis C diagnosis, assessment and treatment “utilize outdated standards of care and normalize the practice of refusing treatment for unjust and medically unsound reasons.” (Doc. No. 1 at 4.) In addition, Plaintiffs allege that Defendants’ unwritten policies, customs and actual practices in diagnosing and treating Hepatitis C “fall short even of the outdated and unreasonable written protocols.” (Id.)
For example, Plaintiffs argue that the HCV (Hepatitis C Virus) Guidance Panel1 has definitively established a 12-week treatment regimen with the use of direct-acting anti-viral drugs (“DAAs”) as the medically accepted standard of care for Hepatitis C and that Defendants fail to follow the HCV Guidance Panel’s recommendations and have intentionally omitted DAA treatment from their Protocol and other policies.
Defendants argue that their policies concerning Hepatitis C are constitutional. They claim that TDOC has set forth a detailed procedure for the screening and treatment of Hepatitis C2 and

1

The HVC Guidance Panel is an organization formed by the American Association

for the Study of Liver Disease (“AASLD”) and the Infectious Disease Society of America

(“IDSA”) in order to guide medical professionals in the world of Hepatitis C treatment.

2

TDOC’s Chronic HCV Guidance: Recommendations for Testing, Managing, and

Treating Hepatitis C (“the Protocol”) is attached to the Class Action Complaint as Exhibit A

(Doc. No. 1-1). The 24-page document indicates it was updated on January 1, 2016. Exhibit C to

2

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follows the Federal Bureau of Prisons’ protocol for Hepatitis C treatment. Defendants maintain that
not everyone with Hepatitis C requires treatment with medication and that the cost of DAAs is
approximately $55,000 to $75,000 per patient. (Doc. No. 20 at 5.)
CLASS CERTIFICATION
Plaintiffs ask that the Court certify a class of inmates who have been diagnosed with
Hepatitis C, defined as follows:
All persons currently incarcerated in any facility under the supervision or control of the Tennessee Department of Corrections or persons incarcerated in a public or privately owned facility for whom the Tennessee Department of Corrections has ultimate responsibility for their medical care and who have at least 12 weeks or more remaining to serve on their sentences and are either currently diagnosed with Hepatitis C infection or are determined to have Hepatitis C after an appropriate screening test has been administered by the Department of Corrections.3
In order to certify a class, the Court must be satisfied that Plaintiffs have met the
requirements of both Rule 23(a) and Rule 23(b) of the Federal Rules of Civil Procedure. Rule 23(a)
establishes four requirements for class certification: (1) the class is so numerous that joinder of all
members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims
or defenses of the representative parties are typical of those of the class; and (4) the representative
parties will fairly and adequately protect the interests of the class. FED. R. CIV. P. 23(a).
A class action will be certified only if, after rigorous analysis, the Court is satisfied that the
prerequisites of Rule 23(a) have been met and that the action falls within one of the categories under
Rule 23(b). Castillo v. Envoy Corp., 206 F.R.D. 464, 467-68 (M.D. Tenn. 2002). The decision

the Class Action Complaint is a 32-page TDOC document entitled “Management of Chronic Hepatitis C Virus,” dated May 20, 2016. (Doc. No. 1-3.)

3
families.

Excluded from this class are Defendants and any members of their immediate

3

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whether to certify a class, committed to the sound discretion of the district judge, turns on the particular facts and circumstances of each individual case. Ballan v. Upjohn Co., 159 F.R.D. 473, 479 (W.D. Mich. 1994). The parties seeking class certification bear the burden of showing that the requirements for class certification are met. Bridging Communities Inc. v. Top Flite Financial Inc., 843 F.3d 1119, 1124 (6th Cir. 2016). Class Definition
In Young v. Nationwide Ins. Co., 693 F.3d 532 (6th Cir. 2012), the Sixth Circuit held that before a court may certify a class pursuant to Rule 23, the class definition must be sufficiently definite so that it is administratively feasible for the court to determine whether a particular individual is a member of the proposed class. Id. at 537-38. The court stated that although the text of Rule 23(a) is silent on the matter, a class must not only exist, but also the class must be susceptible of precise definition. There can be no class action if the proposed class is “amorphous” or “imprecise.” Id.
Defendants argue that Plaintiffs’ proposed class definition is not sufficiently definite. Defendants state that because the “fluidity” of the class (all current inmates), determination of who belongs in the class would require individualized, continuous calculation. Defendants overlook that Plaintiffs are seeking injunctive relief only. That injunctive relief, if obtained, would affect all current and future inmates with Hepatitis C, with no need to make individualized determinations.
Moreover, the Court notes that class certification of this action, especially if the class is “fluid,” will insure against the danger of the action becoming moot. See, e.g., Reynolds v. Giuliani, 118 F.Supp.2d 352 at 391-92 (S.D. N.Y. 2000) (involved a fluid class where claims of named plaintiffs could become moot prior to completion of the litigation).
4
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Numerosity To satisfy the numerosity requirement, Plaintiffs must show that the numerosity of injured
persons makes joinder of all class members impracticable. FED. R. CIV. P. 23(a)(1); Russo v. CVS Pharmacy, Inc., 201 F.R.D. 291, 294 (D. Conn. 2001). Impracticable does not mean impossible, but simply difficult or inconvenient. Id. While there is no strict numerical test, “substantial” numbers usually satisfy the numerosity requirement. In re Polyurethane Foam Antitrust Litigation, 314 F.R.D. 226, 237 (N.D. Ohio 2014) (citing Daffin v. Ford Motor Co., 458 F.3d 549, 552 (6th Cir. 2006)).
The Class Action Complaint alleges that in March 2016, TDOC placed the number of its inmates testing positive for Hepatitis C at 3,487, or nearly one in six prisoners. Plaintiffs contend that the number is even higher, given the lack of routine testing and inaccurate testing.
Plaintiffs allege that the proposed class satisfies the numerosity requirement because joinder of this large number of members is impracticable. Plaintiffs also note the geographic diversity of those members, in facilities all across the State of Tennessee. In addition, Plaintiffs contend that individual members would likely not be able to bring individual lawsuits.
Defendants argue that inmates could bring their own individual lawsuits. Even though the proposed class members could bring individualized actions, the Court finds that a class action is a much better vehicle for more than 3000 inmates to seek to obtain class-wide injunctive relief, saving judicial resources and avoiding inconsistent judgments. Plaintiffs have sufficiently met the numerosity requirement. Commonality
The second requirement for class certification is that there be questions of law or fact common to the class. FED. R. CIV. P. 23(a)(2). To demonstrate commonality, Plaintiffs must show
5
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that class members have suffered the same injury. Wal-Mart Stores, Inc. v. Dukes, 131 S.Ct. 2541, 2551 (2011). Their claims must depend upon a common contention of such a nature that it is capable of class-wide resolution, which means that determination of its truth or falsity will resolve an issue that is central to the validity of each claim in one stroke. Id. What matters to the commonality requirement of class certification is the capacity of a class-wide proceeding to generate common answers apt to drive the resolution of the litigation. Id.; see also Davis v. Cintas Corp., 717 F.3d 476, 485 (6th Cir. 2013) (same).
Plaintiffs submit that the central and common legal question at issue in this case is whether the failure to diagnose and treat Hepatitis C in inmates with the most recent and generally accepted standards of treatment violates the Eighth Amendment. Plaintiffs contend that the central and common factual question at issue here is whether TDOC’s treatment protocols and policies adequately screen for, diagnose and treat inmates with Hepatitis C. Plaintiffs allege that questions regarding the appropriate standard of care for treating Hepatitis C would apply to all class members and resolution of these issues would involve facts common to all members of the class.
Defendants argue that commonality is not met because each individual plaintiff’s claim depends upon the individual merits of his own case. If Plaintiffs were asking for money damages, then individualized analysis might be required. Here, however, Plaintiffs are not seeking money damages for their particular injuries. Plaintiffs’ proposed class is every inmate who has contracted Hepatitis C. It is the official policies and practices applicable to all inmates with Hepatitis C which Plaintiffs allege are unconstitutional.
Defendants assert that Plaintiffs have failed to state a claim as to the constitutionality of Defendants’ protocols, but that is a merits issue. Whether the Class Action Complaint has
6
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sufficiently alleged a claim is not before the Court on this motion. The cases Defendants cite on this point involve motions to dismiss, not motions to certify a class.
Defendants also argue the merits of whether persons with Hepatitis C actually need certain treatments,4 but that also is not the issue presented on this motion. The cases Defendants cite relate to summary judgment motions and/or cases in which the courts were reaching the merits of the plaintiffs’ claims - whether the defendants were deliberately indifferent to an inmate’s particular medical needs and whether certain treatments were warranted. Plaintiffs here are not challenging individual courses of treatment; they are challenging Defendants’ official protocols and system-wide practices for Hepatitis C diagnosis and treatment, as they are alleged in the Class Action Complaint. (Doc. No. 1 at 5-8.) Plaintiffs are not simply disagreeing with a doctor’s course of treatment for a particular person. They are attacking TDOC’s state-wide policies and procedures applicable to all inmates with Hepatitis C.
An action seeking injunctive relief, by its nature, presents common questions of law and/or fact. Scott v. Clarke, 61 F. Supp. 3d 569, 585 (E.D. Va. 2014). In order to obtain the injunctive relief sought, Plaintiffs will have to show that Defendants’ practices and procedures related to all inmates who have Hepatitis C are unconstitutional and that Defendants’ practices and procedures for all inmates with Hepatitis C should be revised. Plaintiffs contend that Defendants’ current protocols and the failure to diagnose and treat Hepatitis C with the most recent and generally

4

For example, Defendants argue that medication is not always required for the

treatment of Hepatitis C and that Hepatitis C does not require treatment in all cases. Those issues

are merits issues, not issues for determining class certification.

7

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accepted community standards of treatment violate the U.S. Constitution. This question can be resolved with respect to all class members at the same time.
For these reasons, the Court finds that questions of fact and law are common to all class members. The requirement of commonality has been met. Typicality
In order to meet the requirements of Rule 23(a)(3), the claims of the representative party must be typical of the claims of the class. In other words, there must be a nexus between the class representative’s claims or defenses and the common questions of law or fact which unite the class. Wilson v. Gordon, 2014 WL 4347585, at * 3 (M.D. Tenn. Sept. 2, 2014). A plaintiff’s claim is typical if it arises from the same event, practice, or course of action that gives rise to the claims of other class members or if it is based on the same legal theory. Ross v. Abercrombie & Fitch Co., 257 F.R.D. 435, 443 (S.D. Ohio 2009). The commonality and typicality requirements are closely related because they both help determine whether the claims of the named plaintiffs and those of the class are so interrelated that the interests of the absent class members will be protected. Id. at 444.
Plaintiffs argue that their claims are typical of - indeed identical to - the claims of the class because all claims involve the constitutionality of TDOC’s treatment protocols, policies and practices regarding Hepatitis C and because if Plaintiffs succeed in obtaining injunctive and declaratory relief for themselves, the claims of all class members will also succeed and the class members will all benefit from the same injunctive and declaratory relief.
Defendants, on the other hand, argue that typicality cannot be met because each individual class member’s claim depends on the individual merits of his own case. As explained above, however, Plaintiffs are alleging a TDOC-wide constitutional challenge and seeking TDOC-wide
8
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declaratory and injunctive relief. Plaintiffs’ claims are typical of the claims of the class because they are seeking declaratory, injunctive, class-wide relief only that may benefit the entire class. Adequacy
In order to show adequacy, the class representative must be part of the class and possess the same interest and suffer the same injury as the class members. Young, 693 F.3d at 543. In other words, the named plaintiffs must have common interests with unnamed members of the class and must be able to rigorously prosecute the interests of the class through qualified counsel. Id.
Defendants do not appear to dispute that the named Plaintiffs would vigorously prosecute the interests of the class through qualified counsel, and the Court finds no reason to believe they would not. In addition, as explained above, Plaintiffs, being inmates with Hepatitis C, share common interests with the potential class members, regardless of any differences in the stages of their illnesses. Plaintiffs are seeking to change all policies for all inmates with Hepatitis C, and the injunctive relief they seek, if obtained, would benefit all such inmates. Rule 23(b)(1)
If Plaintiffs satisfy the requirements of Rule 23(a), the Court must then determine whether their action falls within one of the categories of Rule 23(b). Rule 23(b)(1) provides that a class action may be maintained if Rule 23(a) is satisfied and prosecuting separate actions by individual class members would create a risk of inconsistent or varying adjudications that would establish incompatible standards of conduct for the parties opposing class certification. FED. R. CIV.P. 23(b)(1)(A). Rule 23(b)(1) covers cases in which separate actions by individual class members would risk establishing incompatible standards of conduct for the party opposing a class. Amchem Products, Inc. v. Windsor, 521 U.S. 591, 614 (1997).
9
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A class action is appropriate under Rule 23(b)(1)(A) when the party is obligated by law to treat the members of the class alike. Pipefitters Local 636 Ins. Fund v. Blue Cross Blue Shield of Michigan, 654 F.3d 618, 633 (6th Cir. 2011). Certification is not appropriate simply because some plaintiffs may be successful in their suits while others may not, but instead requires that adjudications in separate suits would impair the defendant’s ability to pursue a uniform course of conduct. Spurlock v. Fox, 2012 WL 1461361, at * 3 (M.D. Tenn. April 27, 2012) (citing Pipefitters and Amchem). For example, courts have certified 23(b)(1)(A) classes in equal protection cases where the government agency’s course of conduct must be consistent as to all class members. Id. (citing cases).
Plaintiffs maintain that the claims of class members in this action arise from a system of medical treatment that is applied to all TDOC inmates, and having separate lawsuits on the same issue would pose the very real risk of establishing varying standards of diagnosis, assessment and treatment for TDOC inmates.
Defendants raise the same issue as described above, that each class member’s claim is grounded in its own individual facts and, therefore, Rule 23(b)(1) does not apply. That argument is not persuasive when the relief sought is class-wide injunctive and declaratory relief.
Certainly if different courts in Tennessee ruled separately on the constitutionality of Defendants’ state-wide protocols, procedures and policies dealing with Hepatitis C, Defendants could be subject to inconsistent judgments that would create unmanageable and conflicting standards within this state. This subsection of the Rule is generally satisfied in the event that inconsistent judgments in separate suits would trap the party opposing the class in the inescapable legal quagmire of not being able to comply with one such judgment without violating the terms of another. Jones
10
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v. American Gen. Life and Acc. Ins. Co., 213 F.R.D. 689, 697 (S.D. Ga. 2002); see also Amchem, Pipefitters and Spurlock, cited above. The Court finds that the requirements of Rule 23(b)(1) are met. Rule 23(b)(2)
Rule 23(b)(2) authorizes a class action if Rule 23(a) is satisfied and the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole. FED. R. CIV. P. 23(b)(2). Rule 23(b)(2) has been liberally applied in the area of civil rights, including suits challenging conditions and practices at various detention facilities. Bumgarner v. NCDOC, 276 F.R.D. 452, 457-58 (E.D. N.C. 2011). The essential consideration is whether the complaint alleges that the plaintiffs have been injured by defendants’ conduct which is based on policies and practices applicable to the entire class. Id.
Plaintiffs allege that they satisfy the requirement of Rule 23(b)(2) because injunctive and declaratory relief would provide relief to all class members. The requirements of Rule 23(b)(2) are almost automatically satisfied in actions primarily seeking injunctive relief. Williams v. City of Philadelphia, 270 F.R.D. 208, 222 (E.D. Pa. 2010). Plaintiffs here challenge policies and practices through which Defendants have acted or refused to act on grounds that apply generally to all inmates with Hepatitis C, and final injunctive relief would apply to the class as a whole.
Defendants argue that Rule 23(b)(2) does not apply in this case because each individual class member would be entitled to different declaratory or injunctive relief to redress individual injuries. Again, Plaintiffs are not seeking redress for individual injuries. (Doc. No. 1 at 12-13.) They are
11
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seeking declaratory and injunctive relief for all inmates in TDOC facilities who have Hepatitis C. (Id.)
The requirements of Rule 23(b)(2) are satisfied when (1) the class as a whole is generally affected by an act or refusal to act or policy of the opposing party and the primary relief sought is in the nature of injunctive relief. Ledford ex. rel. Epperson v. Colbert, 2012 WL 1207211, at * 6 (S.D. Ohio April 11, 2012) (citing Hiatt v. County of Adams, 155 F.R.D. 605, 610 (S.D. Ohio 1994)). Plaintiffs have shown that TDOC has acted or refused to act on grounds that apply generally to the class of inmates with Hepatitis C, and Plaintiffs seek only final declaratory and injunctive relief that would apply to the class as a whole. Therefore, Plaintiffs have satisfied the requirements of Rule 23(b)(2).
CONCLUSION Plaintiffs satisfy Rule 23, and class certification should be granted. For these reasons, Plaintiffs’ Motion for Class Certification (Doc. No. 14) is GRANTED. An appropriate Order will enter.
___________________________________ WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE
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 UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION

GREGORY ATKINS, et al., on behalf of themselves and all others similarly situated,
Plaintiffs,
v.
TONY C. PARKER and DR. KENNETH WILLIAMS,
Defendants.

) ) ) ) ) ) ) NO. 3:16-cv-1954 ) ) ) ) )

FINDINGS OF FACT AND CONCLUSIONS OF LAW This case, at its heart, is about the adequacy of medical treatment for state inmates with chronic Hepatitis C (“HCV”) viral infections. Plaintiffs challenge the failure of current Tennessee Department of Corrections (“TDOC”) policies and protocols to timely provide Direct Acting Antiviral drugs (“DAAs”) to treat all HCV inmates constitutes deliberate indifference to their serious medical needs in violation of the Eighth and Fourteenth Amendments. Plaintiffs and their class seek prospective injunctive and declaratory relief under 42 U.S.C. § 1983 against TDOC Commissioner Tony C. Parker and Chief Medical Officer Dr. Kenneth Williams (“Defendants”). In response, Defendants contend TDOC’s 2019 HCV treatment policies and protocols are improved, objectively reasonable, and the result of subjective medical judgment. The Court held a bench trial on July 16, 2019 through July 19, 2019. Based on the record before the Court, the Court finds that Defendant’s HCV treatment policies as written and as applied are not perfect, but Plaintiffs have failed to prove, by a preponderance of the evidence, that TDOC’s current HCV treatment policy and protocols violate Plaintiffs’ Eighth Amendment rights.

The Court enters the following Findings of Fact and Conclusions of Law in accordance with Rule 52(a) of the Federal Rules of Civil Procedure.1
FINDINGS OF FACT
I. The Class and Claim
1. Plaintiffs are a class of TDOC inmates diagnosed with HCV who have not yet
received treatment at the time of trial. (Doc. No. 219.) Specifically, the class consists of:
All persons currently incarcerated in any facility under the supervision or control of [TDOC] or persons incarcerated in a public or privately owned facility for whom [TDOC] has ultimate responsibility for their medical care and who have at least 12 weeks or more remaining to serve on their sentences and are either currently diagnosed with [HCV] or are determined to have [HCV] after an appropriate screening test has been administered by [TDOC].
(Doc. No. 32.)
2. Specifically, Plaintiffs allege that the practices and procedures implemented by
Defendants for the diagnosis, evaluation, and approval for treatment with DAAs of HCV inmates,
do not meet the current medical standard of care, subject HCV inmates to a substantial risk of harm
or death, and constitute deliberate indifference in violation of the right to be free from cruel and
unusual punishment guaranteed by the Eighth and Fourteenth Amendments. (Id.)
3. There are approximately 21,000 inmates in TDOC custody. (Doc. No. 198, Tr. Stip.
No. 20.)
4. At the time of trial, there were approximately 4,740 inmates known to be infected
with chronic HCV. (Id., Trial Stip. No. 21.)
1 This is not a complete recitation of the record. Except where the Court discusses differing testimony on a specific issue, any contrary testimony on that matter has been considered and rejected in favor of the specific facts found. Further, to the extent that either a finding of fact or conclusion of law may constitute the other, the Court reaches that conclusion.
2

5. The number may be higher because a number of inmates have not yet been tested. (No. 250, Tr. Vol. 1 at 115-117 (Wiley); Doc. No. 251, Tr. Vol. 2 at 199-200 (Williams)).
6. As of July 16, 2019, TDOC has prescribed DAAs for approximately 450 inmates (P. Ex. 84; Doc. No. 251, Tr. Vol. 2 at 166 (Williams)), which is approximately 10% of the known number of inmates with chronic HCV. (Id.)
7. At least 109 inmates have died from complications of HCV in TDOC custody since 2009, although (1) DAAs have only been available for part of that time and (2) DAAs would not necessarily have changed all of those specific outcomes given the combination of the long pathology of HCV and the time at which inmates could have been treated by TDOC. (Doc. No. 251, Tr. Vol. 2 at 169-170 (Williams)). II. HCV
A. Background 8. HCV is a contagious virus spread through contact with infected blood or bodily fluids. (Doc. No. 198, Tr. Stip. No. 1.) 9. The HCV virus travels to and infects the liver, the largest organ in the body, causing an inflammatory process referred to as “hepatitis.” (Id.) 10. An HCV infection occurs in two stages: acute and chronic. (Doc. No. 251, Tr. Vol. 2 at 16 (Yao)). 11. For the first approximately six months following initial HCV infection, persons are in the “acute” phase. (Doc. No. 198, Tr. Stip. No. 2; Doc. No. 251, Tr. Vol. 2 at 9-10 (Yao)). 12. During the acute HCV stage, approximately 15 to 25% of patients will spontaneously clear or resolve. (Doc. No. 198, Tr. Stip. No. 3.)
3

13. For the majority of patients, however, HCV infections do not spontaneously resolve and result in chronic HCV infection. (Id., Tr. Stip. No. 4.)
14. Chronic HCV is a serious health condition that requires medical attention. (Doc. No. 234 at 16-17 (pretrial conf. stip.); Doc. No. 251, Tr. Vol. 2 at 9-14 (Yao)).
15. Chronic HCV is a progressive disease. Specifically, chronic HCV damages the liver by causing progressive scarring of the liver, known as fibrosis. A five-point score is used for measuring the degree of fibrosis: F0 (no fibrosis), F1 (mild fibrosis), F2 (moderate fibrosis), F3 (advanced fibrosis), and F4 (cirrhosis). Doc. No. 251, Tr. Vol. 2 at 33 (Yao)). Chronic HCV also affects other organs in the human body. (Id. at 9-10). Beginning as early as the acute stage and continuing through the chronic stage, HCV patients may experience fatigue, jaundice, nausea, and pain. (Id. at 10.) In advanced stages, HCV patients may experience vasculitis, skin lesions, kidney, heart, and cognitive symptoms. (Id. at 11.) The rate of fibrosis progression is not the same in all HCV patients. (Doc. No. 198, Tr. Stip. Nos. 5-6; Doc. No. 251, Tr. Vol. 2 at 259 (Williams)). The FibroSure score (a combination of age, platelet count, and blood tests) and AST to Platelet Ratio Index (“APRI”) are non-invasive methods used to determine a patient’s fibrosis stage. (Doc. No. 251, Tr. Vol. 2 at 14 (Yao)). These methods fail to detect severe liver fibrosis a significant percent of the time. (Id.) The FibroScan is a non-invasive, more accurate method of determining a patient’s fibrosis stage utilizing sound waves to measure liver stiffness. (Id. at 15; Def. Ex. 2.)
16. Cirrhosis is the late stage (F4) of liver scarring caused by chronic HCV. There are two types of cirrhosis: compensated cirrhosis, which is asymptomatic (i.e., adequate liver function), and decompensated cirrhosis, which is symptomatic (i.e., inadequate liver function). (Doc. No. 198, Tr. Stip. No. 7.) During decompensated cirrhosis, the liver has deteriorated such that it cannot support the other organs required for the body to function. (Doc. No. 251, Tr. Vol. 2
4

at 13 (Yao)). Individuals with cirrhosis are also at risk of developing primary liver cancer (i.e., hepatocellular cancer). (Doc. No. 198, Tr. Stip. No. 7.) The occurrence of either decompensated cirrhosis or liver cancer is referred to as end-stage liver disease. (Id.)
17. Chronic HCV symptoms can vary and are not dependent on a patient’s fibrosis or cirrhosis stage. For example, some patients may have very severe symptoms, but only have mild liver fibrosis, while others may progress to liver cirrhosis but, if compensated, may have normal liver function. (Doc. No. 251, Tr. Vol. 2 at 12 (Yao)).
18. Chronic HCV is a major cause of liver failure. (Id. at 13). When the liver is failing, it cannot process toxins, raising the body’s ammonia level and hepatoencephalopathy with attendant mental impairment. (Id. at 12-13.) Chronic HCV is also the number one reason for liver transplantation in the United States. (Id. at 13.)
19. Approximately 20 to 40 percent of chronic HCV patients will progress to F4 cirrhosis and approximately 4% will develop liver cancer. (Id. at 10, 97.)
20. For those patients who progress to decompensated liver cirrhosis, the liver will ultimately fail and be unable to support the body. (Id. at 36-37.)
B. Treating HCV 21. There is no vaccine for HCV. (Id. at 39.) 22. Diagnosis of HCV starts with an antibody screening by means of a blood test. (Id. at 13-14.) If that is positive, a second blood test is conducted for HCV-RNA (ribonucleic acid) to determine whether the virus is active. (Id.) 23. In the past, the standard treatment for chronic HCV infections involved injections of a drug called interferon, which activates the immune system. However, the interferon treatment
5

process was long, resulted in lower success rates, and caused severe side effects. (Doc. No. 198, Tr. Stip. No. 8.)
24. In 2011, the U.S. Food and Drug Administration (“FDA”) approved DAAs to treat HCV. (Id., Tr. Stip. No. 9.) DAAs are taken in pill form once a day and have minimal side effects. (Doc. No. 251, Tr. Vol. 2 at 9-10, 19-21 (Yao)). Upon the approval of DAAs, interferon treatment for HCV was effectively abandoned.2 (Id. at 21.)
25. There are several different genetic types of HCV, known as “genotypes” (e.g., genotype 1, genotype 2, etc.). (Id. at 15.) DAAs are now available for treatment of all known HCV genotypes (i.e., “pan-genotype” DAAs). (Id. at 21.)
26. The aim of DAAs is to remove detectable HCV-RNA from blood serum. (Id. at 22.) The absence of HCV-RNA after 12 weeks is known as sustained virologic response (“SVR”), or a “virologic cure.” (Id.)
27. SVR, also known as a “surrogate outcome,” is a “marker” of the end goal of HCV treatment, which is preventing end-stage liver disease and HCV-related mortality. (Id. at 87-88.) The FDA, NIH, and AASLD/IDSA use SVR as the marker for the success of DAA treatment. (Id. at 88.)
28. All things being equal, the HCV virus rarely reappears after SVR. (Id. at 22-23.) 29. To proceed with DAA treatment, a physician needs limited information: (Id. at 1416) a face-to-face physical examination to evaluate symptoms, (Id. at 44-45) and confirmation that a patient has active HCV-RNA and is chronic (i.e., has had the infection for six months or more).
2 A previously-used medication called ribavirin is still sometimes used, but only in conjunction with DAAs for patients that have advanced cirrhosis. (Doc. No. 251, Tr. Vol. 2 at 30 (Yao)).
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(Id. at 16.) Because of the effectiveness of DAAs, a fibrosis score is less important to treatment or management decision. (Id.)
30. The significant decision is whether DAA treatment is needed for 8 weeks or 12 weeks. (Id. at 16-17.)
C. “Standard of Care” for HCV 31. Dr. Zhiqiang Yao presented his expert opinion regarding the “standard of care” for treating chronic HCV. Dr. Yao, M.D., PhD., is a Distinguished Professor at East Tennessee State University, Quillen College of Medicine and Director of the hepatitis program at the James H. Quillen Veterans’ Administration (“VA”) Medical Center. He specializes in the treatment of HCV, is board-certified in both internal medicine and infectious diseases, and is a member of the American Association for the Study of Liver Diseases (“AASLD”) and the Infectious Diseases Society of America (“IDSA”). In addition to conducting prolific research, Dr. Yao oversees the treatment of 3,000 to 4,000 HCV patients each year. (Id. at 5-9.) The Court finds Dr. Yao highly knowledgeable and credible on the subjects of HCV and its treatment. He explained that the “standard of care” means the “best practice” physicians should follow. (Id. at 121.) 32. According to Dr. Yao, because early treatment of chronic HCV stops the progression of the damage to patient’s liver and prevents damage to other organs, there is no reason to not treat mildly symptomatic patients. (Id. at 29, 102.) 33. Dr. Yao believes that the standard of care or best practice, requires a physician to wait six months for the acute phase to spontaneously clear the HCV infection. If it does not, the physician should treat the patient with DAAs “as early as possible” (id. at 21, 103, 107, 121), or “in a timely manner” (Pl. Ex. 8 at 8-10 (Yao Rep.) (emphasis added); P. Ex. 9 at 2 (Yao Supp. Rep.) (emphasis added)), regardless of fibrosis stage. He does not believe that there is any basis
7

for prioritizing care “for only stage F4 and F3 patients.” (Id. (emphasis added)). Delaying care, in Dr. Yao’s opinion, may have “adverse effects.” (P. Ex. 8 at 11 (Yao Rep.))
34. The AASLD, the professional organization primarily comprised of gastroenterologists and hepatologists; the IDSA, the professional organization primarily comprised of infectious disease specialists; the Centers for Disease Control, the National Institute for Health (“NIH”), the Veteran Administration (“VA”), Medicare, state Medicaid programs, and multiple private insurance companies agree that immediate treatment of DAA’s is the standard of care for chronic HCV. (Doc. No. 251, Tr. Vol. 2 at 26-27 (Yao)).
35. An AASLD/IDSA panel has published the “Recommendations for Testing, Managing, and Treating Hepatitis C” (“AASLD/IDSA Guideline”) since 2014. (P. Ex. 8.) The AASLD/IDSA Guideline contains treatment “recommendations.” (Id.) Since 2015, the AASLD/IDSA Guideline has stated that evidence supports DAA treatment for all HCV patients regardless of their liver fibrosis stage (except those with short life expectancies that cannot be remediated by treating HCV or by other directed therapy). (Doc. No. 251, Tr. Vol. 2 at 27-28 (Yao)).
36. A majority of medical providers in the United States who treat HCV follow the AASLD/IDSA Guidance recommendations. (Id. at 101-102.)
37. TDOC called two experts regarding the HCV standard of care. Dr. Martha S. Gerrity is a Professor of Medicine in the Department of Medicine Division of General Medicine at Oregon Health and Sciences University who also works at the Portland VA and the Scientific Resource Center for the Agency for Healthcare Research. (Doc. No. 252, Tr. Vol. 3 at 184-185 (Gerrity)). She is board certified in internal medicine and is an academic general internist with training in clinical epidemiology, clinical research methods and education. (Id. at 184-186.) She is
8

not a gastroenterologist, infectious disease specialist, hepatologist, expert in the field of HCV, or HCV researcher, and she has never prescribed DAAs. (Doc. No. 252, Tr. Vol. 3 at 219-220 (Gerrity).) Dr. Ronald Koretz is an emeritus professor of clinical medicine at the David Geffen UCLA School of Medicine and former gastroenterologist at the Olive View UCLA Medical Center in Los Angeles County, California. (Doc. No. 253, Tr. Vol. 4 at 5-7 (Koretz).) He is board-certified in internal medicine and gastroenterology, which includes general familiarity with treatment of liver disease. (Id. at 7.) However, he is neither an infectious disease specialist nor a hepatologist, and has never prescribed DAAs. (Id. at 63-67.)
38. Dr. Gerrity offered an opinion criticizing the trustworthiness and methodology of the AASLD/IDSA Guideline. She opined that it is of poor methodological quality and untrustworthy because its authors did not take a systematic approach to make it sufficiently evidence-based. (Doc. No. 252, Tr. Vol. 3 at 184-216 (Gerrity)). The Court finds Dr. Gerrity’s opinion weak. Specifically, based on her demeanor at trial she appears to be advocating a personal cause. She did not offer any convincing explanation regarding why she does not accept the AASLD/IDSA Guideline, that has been accepted by the general scientific community. Her testimony was also evasive. For example, when asked if she knew about the National Institutes of Health adherence to the AASLD/IDSA Guideline, Dr. Gerrity responded, “I’m not sure what institute you’re describing.” (Id. at 230.) She was curiously unfamiliar with the positions of Medicare/Medicaid and World Health Organization, even though she recently prepared an academic report on the AASLD/IDSA Guideline at the request of state Medicaid directors because it was a “very important issue” to them. (Id. at 203-204, 230.) Dr. Gerrity did not provide a sufficiently credible explanation of her opinion, failed to sufficiently discredit Dr. Yao’s opinion, and appeared to be advancing a personal, albeit academically-based, agenda.
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39. The Court also rejects Dr. Gerrity’s opinion because of a conflict of interest. Upon direct examination, Dr. Gerrity led the Court to believe that she was not compensated for her work on this case and attended the trial on her personal vacation. (Id. at 186.) She attempted to lead the Court to believe she was testifying free of any bias and only due to the strength of her beliefs. However, on cross-examination it was revealed that Dr. Gerrity is employed by the Center for Evidence-Based Policy, which encompasses the Medicaid Evidence-Based Decision Project. (Id. at 185, 221, 236.) The State of Tennessee is a member of this group and pays a fee of approximately $120,000 to $150,000 per year that goes, in part, directly to pay Dr. Gerrity’s salary. (Id. at 185, 221, 236.) The Court disapproves of her gross lack of candor.
40. Dr. Koretz offered a similar opinion regarding the lack of evidence supporting the AASLD/IDSA Guideline, as well as what he believes to be a lack of proof that DAA treatment actually affects the clinical outcomes of HCV patients. (Doc. No. 253, Tr. Vol. 4. at 12-63 (Koretz)). The Court also declines to credit Dr. Koretz’s opinion. His demeanor and tone reflected deeply held extreme personal opinions that affected his conclusions. He rejects the use of SVR as a marker of HCV treatment success. He overenthusiastically believes that there is “no evidence that [DAA] treatment is beneficial for anybody.” (Id. at 70-71.) Not only is there no support in the record for these extreme positions, they are directly contradicted by established medicine. The FDA has approved DAAs, and DAAs are accepted, used, and considered successful by the medical community in treating HCV. Dr. Yao testified that he has a 100% SVR (i.e., virologic cure rate) in his HCV practice after DAA administration. Even TDOC’s own Medical Director and Associate Medical Director consider DAAs to be a cure for chronic HCV measured by SVR. (Id. at 91-92.) The Court finds that, on balance, Dr. Koretz’s personal beliefs have clouded his judgment and call into question his entire analysis.
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III. TDOC’s HCV Treatment Policy 41. TDOC has written policies and practices for medical treatment of chronic HCV.
(Doc. No. 250, Tr. Vol. 1 at 193 (Williams)). 42. TDOC is led by Commissioner Tony C. Parker. (Doc. No. 198, Tr. Stip. No. 12.)
Parker is essentially the chief executive officer of TDOC and is charged with overseeing the administrative functions of the Department. (Doc. No. 250, Tr. Vol. 1 at 27 (Parker)). He is vested with ultimate supervisory authority over all TDOC employees. (Id. at 28-29). Parker has ultimate authority over the TDOC Director of Medical Services. (Id. at 27-28, 34, 173-74.) He has no medical training and does not participate in any TDOC medical or clinical decisions. (Id. at 6667.) Neither does he participate in developing or approving any medical clinical guidelines, protocols or practices, including those regarding HCV. (Id. at 67.) Parker relies on TDOC’s medical health care professionals to determine TDOC’s policies for medical treatment and making decisions regarding the particular care inmates receive, including the treatment of HCV in TDOC facilities. (Id. at 51-52, 67-80.) He has little substantive knowledge of HCV policy and treatment aside from what he is told by the medical staff. (Id. at 67-89.) While Parker broadly supports the requests of Dr. Williams for funding related to HCV treatment, he does not become involved with the specifics. (Id. at 93 (Parker); id. at 182-83 (Williams)).
43. TDOC’s Director of Medical Services and Chief Medical Officer is Dr. Kenneth Williams. (Doc. No. 198, Tr. Stip. No. 10.) He is responsible for developing, updating, and ensuring adherence to TDOC’s policies and practices for inmate medical treatment. (Id., Tr. Stip. No. 11; Doc. No. 250, Tr. Vol. 1 at 67 (Parker)). Under the direction of Dr. Williams, Centurion provides contracted medical care in the 10 facilities operated by TDOC, while CoreCivic provides medical care in the facilities it operates under contract with TDOC. (Doc. No. 250, Tr. Vol. 1 at
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150-151, 185-190 (Williams)). He manages the medical aspects of these contracts providing frontline care at TDOC facilities subject to TDOC policies and practices. (Id.) Dr. Williams supervises and works closely on HCV treatment policy with TDOC Associate Medical Director Dr. Kenneth Wiley. (Id. at 174 (Williams); Id. at 109 (Wiley)).
44. TDOC’s HCV policies and protocols, devised under the leadership of Dr. Williams, are contained in: “Evaluation and Management of Chronic Hepatitis C Virus (HCV) Infection” (“2019 HCV Guidance”). (Doc. No. 198, Tr. Stip. No. 14; J. Ex. 38.)
45. The 2019 HCV Guidance replaces the first TDOC HCV policy of 2016, entitled “Chronic HCV Guidance: Recommendations for Testing, Managing, and Treating Hepatitis C” (“2016 HCV Guidance”). (Doc. No. 198, Tr. Stip. No. 13.) The 2016 HCV Guidance reflects TDOC’s transition from interferon treatment to administration of DAAs. (Doc. No. 250, Tr. Vol. 1 at 197 (Williams)).
46. The 2019 HCV Guidance is augmented by an HCV treatment workflow outline (“2019 HCV Workflow”) that provides a summary of TDOC protocols for medical practitioners. (J. Ex. 40.)
47. TDOC’s policies reflect its recognition that HCV inmates may die from the disease. (Doc. No. 250, Tr. Vol. 1 at 170-171 (Williams)). As described by Dr. Williams and Dr. Wiley, TDOC seeks to provide treatment for inmates in a cost effective manner that is most efficient for the greatest number of individual inmates. (Id. at 222 (Williams); Id. at 117-119, 144 (Wiley)). This is consistent with TDOC’s belief that it is responsible medicine to address the sickest patients first. (Id. at 117, 145 (Wiley); Doc. No. 251, Tr. Vol. 2 at 214, 259-60 (Williams)).
48. The cornerstone of TDOC’s HCV policy and the 2019 HCV Guidance is the TDOC Advisory Committee on HIV and Viral Hepatitis Prevention and Treatment (“TACHH”). This
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special committee makes DAA treatment determinations for HCV inmates based upon their medical records. (Doc. No. 198, Tr. Stip. No. 17.) TACHH is chaired by Dr. Williams and was formed by him in 2015 to facilitate the treatment of HCV inmates. (Id., Tr. Stip. No. 18; Doc. No. 251, Tr. Vol. 2 at 139-145, 241 (Williams)). Dr. Wiley has always been a key member, and TACHH includes an infectious disease specialist. (Doc. No. 250, Tr. Vol. 1 at 126-129 (Wiley); Doc. No. 251, Tr. Vol. 2 at 176-177 (Williams)). Notably, Parker is neither involved in, nor familiar with, the details of TACHH. (Doc. No. 250, Tr. Vol. 1 at 59 (Wiley)). TACHH reviews laboratory data, test results, and medical provider reports. (Id. at 130.) TACHH does not interface with patients, but a “complete workup” is done by front-line providers prior to an inmate’s referral to TACHH for consideration for DAAs. (Id. at 137-138 (Wiley); Doc. No. 251, Tr. Vol. 2 at 171 (Williams)).
A. The 2019 HCV Guidance 49. The 2019 HCV Guidance applies to all healthcare professionals who treat inmates in TDOC-operated or privately-operated facilities. (Doc. No. 198, Tr. Stip. No. 15.) It is “mandatory” because it provides the baseline that medical practitioners are expected to adhere. (Doc. No. 251, Tr. Vol. 2 at 190-192 (Williams)). A provider may deviate from the 2019 HCV Guidance only with Dr. Williams’ permission. (Id.) He does not allow providers to deviate below TDOC protocols. (Id.) 50. The 2019 HCV Guidance controls the testing, evaluation, staging, prioritization, treatment, and monitoring of TDOC inmates with chronic HCV. (Doc. No. 198, Tr. Stip. No. 16; J. Ex. 38.) It is being continuously improved. (Doc. No. 251, Tr. Vol. 2 at 189 (Williams)). 51. Dr. Yao believes that the 2019 HCV Guidance is a “significant” and “positive” improvement over the 2016 HCV Guidance. (Doc. No. 250, Tr. Vol. 1 at 42, 120, 155 (Yao)).
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52. Under the 2019 HCV Guidance, inmates are now tested for HCV at intake to TDOC unless they specifically decline to be tested. (Doc. No. 251, Tr. Vol. 2 at 176-179, 199-200 (Williams); J. Ex. 38 at 2.) The new “opt-out” protocol is informed refusal of HCV testing as opposed to informed consent. (Id.) However, inmates may request HCV testing at any time after intake. (J. Ex. at 3; Doc. No. 250, Tr. Vol. 2 at 270 (Williams)). During subsequent periodic health visits, HCV testing is recommended to inmates with clinical conditions or risk factors associated with a higher prevalence of HCV infection. (J. Ex. 38 at 2-3.)
53. Under the 2019 HCV Guidance, inmates undergo a baseline evaluation within two months of a blood test confirming an active HCV infection. (Id. at 4.)
54. The baseline evaluation includes a history and physical examination related to signs, symptoms, and other possible causes of liver disease, the likely date of infection, and any past HCV treatment. (Id.) Lab tests are also performed to detect the presence of coinfections and comorbid conditions, viral load, HCV genotype, and treatment resistance. (Id.) The baseline evaluation also includes blood tests to assess liver fibrosis unless the inmate is already known to have cirrhosis. (Id. at 5-6.) TDOC uses the results of APRI and FibroSure blood tests to assess fibrosis progression. (Id. at 6.) These tests are an improvement in the 2016 HCV Guidance. (Doc. No. 251, Tr. Vol. 2 at 131 (Williams)).
55. TDOC uses FibroScan to scan every HCV inmate in TDOC custody. (Id. at 236.) Once the necessary baseline information is collected, inmate medical records are reviewed for a treatment regime. (Id. at 132.) Of known HCV inmates that have been evaluated and staged by fibrosis level (based upon FibroSure and FibroScan testing), at the time of trial, approximately 63% are in the F0 or F1 stage; 9% are in the F2 stage; and 29% are in the F3 or F4 stage. (Id. at 227.)
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1. Prioritization and Treatment 56. TDOC made a significant change to HCV inmates’ eligibility for DAAs in May 2019. As opposed to the 2016 HCV Guidance, which provided that only inmates with F3 or F4 fibrosis stages should be referred to TACHH for DAA treatment (P. Ex. 60 at 11), the 2019 HCV Guidance provides that all HCV inmates are eligible to be referred to the TACHH for possible DAA treatment regardless of fibrosis stage. (J. Ex. 38 at 9; Doc. No. 251, Tr. Vol. 2 at 133-134 (Williams)). 57. In keeping with TDOC’s policy of treating the sickest first, the 2019 HCV Guidance provides criteria for prioritizing DAA treatment among HCV inmates. (J. Ex. 38 at 9.) 58. The highest prioritization is given to inmates with “advanced pathology” – that is, fibrosis stage F4 or F3 (as diagnosed by an APRI score, FibroSure, FibroScan, ultrasound, or liver biopsy), cirrhosis, coinfection regardless of fibrosis score, and comorbid conditions regardless of fibrosis score. (Id.) 59. Intermediate prioritization is given to inmates with “moderate pathology” – that is, fibrosis stage F2 (diagnosed by the above methods) or comorbid chronic kidney disease. (Id. at 910.) 60. Ultimately, which inmates receive DAA treatment is determined by the TACHH, which evaluates HCV inmates and makes treatment decisions that are “patient-specific.” (Id.) As Dr. Williams explains, it is “not just whether [inmates] were F1, F2, F3, F4, but also what else was going on [that] was taken into consideration and then a decision was made.” (Doc. No. 251, Tr. Vol. 2 at 251 (Williams)). As a result, lower fibrosis stage patients can be approved for DAA treatment. For example, and coincidentally right before trial, TACHH approved multiple F1/F2 inmates for DAA treatment at its May 29, 2019 meeting. (J. Ex. 37.) As Drs. William and Wiley
15

explained, the 2019 HCV Guidance does not exclude any HCV cases from review on an individual basis for administration of DAAs. (Doc. No. 251, Tr. Vol. 2 at 142-143 (Williams); Doc. No. 250, Tr. Vol. 1 at 158-159 (Wiley)). If patients with lower fibrosis stages have concerning aspects to their condition, they receive more detailed consideration. (Id.)
61. TACHH meets at least once a month, and recently twice a month, to review medical records and make DAA treatment decisions. (Doc. No. 251, Tr. Vol. 2 at 142 (Williams); Doc. No. 250, Tr. Vol. 1 at 129 (Wiley)). During the first monthly meeting it reviews cases of patients in lower stages of fibrosis. (Doc. No. 251, Tr. Vol. 2 at 142, 244, 252 (Williams)). If DAA treatment may be appropriate that case is considered at the second meeting with an infectious disease specialist present (Id. at 142, 252), along with inmates with F3 or F4 stage fibrosis or other complicating factors. (Id.)
62. The number of inmates considered for DAA treatment at TACHH meetings is increasing. (J. Ex. 37; Doc. No. 251, Tr. Vol. 2 at 140-141 (Williams)). Dr. Williams expects that under the 2019 HCV Guidance TACHH will soon consider up to four times as many patients per month for treatment as in the past. (Doc. No. 251, Tr. Vol. 2 at 140-141 (Williams)).
63. Dr. Yao opined that the 2019 HCV Guidance prioritization structure is “under the standard of care” because it does not apply the AASLD/ISLD Guideline and does not explicitly recommend early DAA treatment of all HCV patients. (Doc. No. 250, Tr. Vol. 1 at 42-43, 102, 119, 120-121 (Yao)). However, it is apparent to the Court that while the 2019 HCV Guidance does not “explicitly” recommend immediate treatment of all HCV inmates, neither does it preclude immediate treatment of any HCV inmate with DAAs. And, Dr. Yao concedes that a prioritization structure is “understandable” when there are finite resources and staffing. (Id. at 102.)
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64. Dr. Koretz endorsed only the staged treatment of F3 and F4 inmates. However, his analysis takes a weird and somewhat inhumane theoretical approach. He recommends that the sickest HCV inmates not be administered DAAs at all, but placed into long-term (i.e., multi-year) randomized trials, even though many would receive a placebo and die. (Doc. No. 253, Tr. Vol. 4 at 70-75, 87-89 (Koretz)). Dr. Koretz describes his approach as his “dream world.” He concedes it is not possible because he “can’t do research on prisoners,” so he would not “stand in the way” of HCV inmates with F3 or F4 fibrosis scores being treated with DAAs. (Id. at 74-75.) Neither party disputes that treatment of inmates with F3 or F4 fibrosis scores is appropriate.
65. Dr. Koretz’s extreme approach is troubling. He is a member of a subgroup of the Cochrane Collaboration, an international, evidence-based medicine group, that has espoused highly controversial views on this particular subject. (Id. at 10, 95-98.) As explained at trial, the European Association for Study of the Liver (“EASL”) 3 published an editorial in which it analogized Dr. Koretz’s position regarding withholding DAAs in favor of long-term studies to the “ethical anathema of the infamous Tuskegee study conducted by the U.S. Public Health Service in which patients with syphilis were left untreated to observe the natural history even after advent of and proven efficacy of penicillin.” (Id. at 95-96.) EASL concluded that “[t]he premise . . . will be viewed as so egregiously mistaken that the conclusions will rightly be disregarded. As the findings do not assist or advance the field, they will not be pertinent to clinical decision-making or guidelines.” (Id. at 98.) Dr. Koretz’s opinion is too extreme for this Court.
66. TDOC’s 2019 HCV Guidance’s prioritization structure mirrors that of the U.S. Bureau of Prisons as memorialized in “Evaluation and Management of Chronic Hepatitis C Virus (HCV) Infection Clinic Guidance,” published in August 2018 (“2018 BOP Guidance”). (P. Ex. 11
3 EASL is the European counterpart of the AASLD. (Doc. No. 253, Tr. Vol. 4 at 95 (Koretz)). 17

at 8-9.) The 2018 BOP Guidance states that the “Bureau of Prisons has established priority criteria
to ensure that inmates with the greatest need are identified and treated first.” (Id. at 8.) Similar to
the 2019 HCV Guidance, the 2018 BOP Guidance classifies patients with fibrosis stages F3 or F4
as “high priority”; stage F2 as “intermediate priority”; and F1 or F0 as “low priority.” (Id. at 8-9.)
67. This same type of prioritization was historically recommended by the
AASLD/IDSA and the VA. (Doc. No. 250, Tr. Vol. 1 at 29-30 (Yao); P. Ex. 8 at 62.) In fact, the
AASLD/IDSA Guidelines continue to recommend prioritization when resources are finite:
Although treatment is best administered early in the course of the disease before fibrosis progression and the development of complications, the most immediate benefits will be realized by populations at highest risk for liver-related complications. Thus, where resources limit the ability to treat all infected patients immediately as recommended, it is most appropriate to treat first those at great risk of disease complications and those at risk of disease complications and those at risk for transmitting HCV or in whom treatment may reduce transmission risk. Where such limitations exist, prioritization of immediate treatment for those . . . is recommended, including patients with progressive liver disease (Metavir stage F3 or F4), transplant recipients, or those with severe extrahepatic manifestations. . . .
Recommendations . . . If resources limit the ability to treat all infected patients immediately as recommended, then it is most appropriate to treat those at greatest risk of disease complications before treating those with less advanced disease.
(P. Ex. 8 at 62-63 (emphasis added)).
2. Monitoring
68. Under the 2019 HCV Guidance, all HCV inmates are enrolled in the chronic care
clinic and evaluated at least every six months. (J. Ex. 38 at 13.) These monitoring visits include
(1) education and review of systems; (2) vital signs and a physical examination; (3) laboratory
testing, including a complete blood count (“CBC”), prothrombin time and international normalized
ratio (“PT/INR”), a liver panel, serum creatinine; calculated glomular filtration rate (“calculated
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GFR”); and (4) calculation of fibrosis progression by APRI, FibroSure and FibroScan scores. (Ex. 38 at 13.) Monitoring of untreated inmates with advanced fibrosis (F3) or cirrhosis (F4) also include an ultrasound to screen for hepatocellular carcinoma. (Id.)
69. The Court finds that TDOC’s regular monitoring of HCV inmates is impressive because it utilizes a comprehensive approach and demonstrates a willingness to update an inmates’ staging for TACHH priority consideration based on changes in fibrosis level. It critically reflects TDOC’s subjective intent to provide ongoing assessment of all HCV inmates.
B. The 2019 HCV Workflow 70. Dr. Williams designed the 2019 HCV Workflow as a set of detailed medical practitioner expectations that translate the 2019 HCV Guidance into practice and help “get[ ] patients in front of TACHH faster.” (Doc. No. 251, Tr. Vol. 2 at 270 (Williams); J. Ex. 40.) 71. The 2019 HCV Workflow provides specific steps health care providers must take to (1) test for HCV; (2) diagnose chronic versus acute HCV; and (3) enroll chronic HCV patients in the chronic care clinic. (J. Ex. 40 at 1.) It then provides detailed steps for the implementation of the prioritization plan. (Id. at 2.) It dictates that inmates staged as F4 or F3 fibrosis level will be referred to TACHH with all supporting diagnostic results. (Id.) Inmates staged as F2, F1, or F0 fibrosis level can also be referred for TACHH evaluation, but full supporting documentation need not be sent until requested by TACHH. (Id.) 72. The 2019 HCV Workflow also created specific procedures to ensure (1) prompt communication of TACHH orders to infection control nurses at TDOC facilities; (2) issuance of orders based on TACHH recommendations; (3) follow-up of TACHH orders; and (4) follow-up to verify that DAA treatment has started without any delay. (Id. at 3.)
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73. The 2019 HCV Workflow also provides specific procedures for the monitoring of HCV inmates by means of extensive laboratory testing, both before, during, and after DAA administration. (Id. at 1, 4.)
C. TDOC’s Progress 74. Plaintiffs have introduced evidence that, prior to the 2019 HCV Guidance and 2019 HCV Workflow, TDOC has been inconsistent and slow in evaluating, staging, and treating inmates with chronic HCV with DAAs. This is born out in the minutes of TACHH meetings that considered and approved a very few inmates for DAA treatment. (Doc. No. 250, Tr. Vol. 1 at 131 (Wiley)). 75. Plaintiffs presented compelling proof through individual inmates that TDOC’s treatment of HCV inmates has been erratic, uneven, and poor, resulting in denial of DAA treatment where it was clearly appropriate. There is convincing evidence that TDOC’s DAA past treatment protocols have been uneven, and have bordered on deliberate indifference to serious medical needs of individual inmates. The Court finds by a preponderance of the evidence that:
i. Scott Spangler was diagnosed with HCV and F4 cirrhosis in March 2018. (Doc. No. 252, Tr. Vol. 3 at 58-69 (Spangler); P. Ex. 46.) TACHH reviewed his case in August 2018 and denied DAA treatment in lieu of investigation of possible acute hepatic necrosis. (Doc. No. 252, Tr. Vol. 3 at 73 (Spangler); P. Ex. 46.)
ii. Gregory Atkins entered TDOC custody as an HCV inmate in 2005. (Doc. No. 252, Tr. Vol. 3 at 78-85, 97 (Atkins)). Atkins refused FibroSure testing in September 2018, but December 2018 testing showed that he had F4 stage cirrhosis. (Id. at 106-107.) He has never received any treatment despite
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seeking it between 2013 and 2017 and being approved for interferon treatment in 2013. (Id. at 79, 83, 86-91; P. Ex. 36.) iii. Thomas Rollins, Jr. was diagnosed with HCV in 2001 or 2004. (Doc. No. 252, Tr. Vol. 3 at 130 (Rollins)). He had unsuccessful interferon and ribavirin treatment in 2012. (Id.) He has been seeking HCV treatment from TDOC since he became incarcerated in 2016. (Id. at 131-133.) TACHH reviewed Rollins’s case in March 2019. (Id. at 151.) The minutes for that meeting staged Rollins at F3 (P. Ex. 47), but his blood tests and medical records reflected only F2. (P. Ex. 43.) TACHH denied treatment with reconsideration in one year. (Doc. No. 252, Tr. Vol. 3 at 143 (Rollins); P. Ex. 47.) iv. Samuel Hensley was unsuccessful in obtaining treatment for HCV from 2006 to 2017. (Doc. No. 252, Tr. Vol. 3 at 40-47 (Hensley)). His facilitylevel providers may not have appropriately recorded his symptoms or forwarded his case to TACHH. (Id. at 46-47.) Hensley was approved by TACHH for DAA treatment in May 2018, but it was delayed until December 2018. (Id. at 41-42; P. Ex. 41, 42.) v. Russell Davis was unsuccessful in seeking treatment for HCV from 2009 to 2017. (Doc. No. 252, Tr. Vol. 3 at 7-26 (Davis)). Davis was tested at the F2 stage in May 2016. (P. Ex. 39 at 361.) He was finally considered by TACHH after reaching F4 cirrhosis stage in 2018, approved for DAA treatment, and received that treatment. (P. Ex. 39; Doc. No. 252, Tr. Vol. 3 at 16, 22, 3334 (Davis)).
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vi. Kevin Profitt was diagnosed with an HCV and Hepatitis B co-infection in August 2017. (Doc. No. 252, Tr. Vol. 3 at 115 (Profitt); P. Ex. 42.) In May 2018, TACHH reviewed his case and recommended that he be treated for Hepatitis B prior to administration of DAAs. (J. Ex. 26 at 4.) In December 2018, TDOC began treating Profitt for Hepatitis B. (Doc. No. 252, Tr. Vol. 3 at 115 (Profitt)). Profitt’s body cleared the HCV during Hepatitis B treatment and does not need to be considered further by TACHH. (Id. at 115-119.)
vii. Christopher Gooch unsuccessfully sought treatment after being diagnosed with chronic HCV at intake in May 2016. (Doc. No. 252, Tr. Vol. 3 at 157165 (Gooch)). His December 2018 FibroScan results indicated F2 fibrosis. (Id. at 165, 173.) In May 2019, his FibroScan results indicated progression to F3 fibrosis. (Id. at 165-167, 174; P. Ex. 38.) Shortly after getting these results (and shortly before trial), Gooch first filled out paperwork for referral to TACHH and is eligible for consideration for DAAs. (Doc. No. 252, Tr. Vol. 3 at 174-175 (Gooch); J. Ex. 38.)
viii. Several of these individual inmates and their relatives complained about their perceived treatment delays, including filing grievances and communicating to TDOC officials such as Parker and Dr. Williams. (See, e.g., Doc. No. 252, Tr. Vol. 3 at 10, 13, 26 (Davis); 141 (Rollins)).
76. The Court credits the testimony of these witnesses, who demonstrated the personal impact of chronic HCV and the need for timely consideration for DAA treatment. However, except
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to the extent delays are continuing past May 2019, their testimony concerns events that occurred before the 2019 HCV Guidance and 2019 HCV Workflow.
77. Indeed, several of these witnesses have encountered changed circumstances in 2019. Spangler was never monitored for HCV by the chronic care clinic prior to 2019, but he is currently enrolled for monitoring. (Doc. No. 252, Tr. Vol. 3 at 67 (Spangler)). At the time of trial, Spangler and Atkins have been placed on the agenda of an upcoming TACHH meeting for consideration. (Doc. No. 251, Tr. Vol. 2 at 255 (Williams)). Hensley and Davis achieved SVR (i.e., virologic cure) after DAA treatment approved by TACHH and do not need to be considered further by TACHH. (Doc. No. 252, Tr. Vol. 3 at 33-34 (Davis); 55 (Hensley)).
78. Dr. Williams reassigned the TDOC coordinator of continuous quality improvement to be the TDOC HCV treatment management coordinator, with sole responsibility to move patients to the TACHH for assessment and treatment decision. (Doc. No. 251, Tr. Vol. 2 at 244 (Williams)).
79. Dr. Williams estimates that TACHH will review all F3 and F4 stage HCV inmates for treatment in the next nine to twelve months. (Id. at 228.)
80. In connection with the 2019 HCV Guidance and 2019 HCV Workflow, Dr. Williams also ordered development and implementation of an online recordkeeping resource known as HepCOR, which is intended to supplant older paper recordkeeping. (Doc. No. 251, Tr. Vol. 2 at 237 (Williams)). Using HepCOR, providers, at all points in the delivery of care system, enter HCV inmate records and information online. (Id. at 237-240.) This facilitates the work of TACHH and the delivery of treatment. (Id.) Patient information is in the process of being loaded into HepCOR. (Id. at 272.) Once this is fully implemented, it will assist TACHH. (Id. at 271-72.)
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D. Funding for TDOC HCV Treatment 81. In 2015, a course of DAA treatment cost approximately $80,000 for a simple case and $189,000 for a complicated case. (Doc. No. 251, Tr. Vol. 1 at 221 (Williams)). In 2019, a course of DAAs now costs TDOC between $13,000 and $32,000, depending on the brand. (Id. at 222.) 82. TDOC secured $4.6 million in recurring funds for DAA treatment over the course of the 2016-2017 and 2017-2018 legislative years. (D. Ex. 22; Doc. No. 251, Tr. Vol. 2 at 229 (Williams)). 83. At Dr. William’s request, TDOC obtained a one-time allocation of $26.4 million for DAA medications for the 2019-2020 fiscal year. (Id. at 167.) 84. TDOC’s total budget from all sources for the 2019-2020 fiscal year for DAA treatment is thus approximately $31 million. (Doc. No. 251, Tr. Vol. 2 at 229-230 (Williams)). 85. Dr. Williams anticipates that funding can provide treatment for approximately 1,800 to 1,900 inmates with chronic HCV. (Id.) 86. TDOC has always used all of its budgeted HCV funds to purchase DAAs. (Id. at 230.) In fact, TDOC has run over budget on DAA medication spending. (Id.)
CONCLUSIONS OF LAW I. Eighth Amendment Deliberate Indifference
87. The Eighth Amendment bars the “inflict[ion]” of “cruel and unusual punishments” to HCV inmates. U.S. Const. amend. VIII.
88. There is no question that TDOC has an obligation to provide “adequate” medical care for HCV inmates. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Estelle v. Gamble, 429 U.S. 97, 103 (1976).
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89. In Rhinehart v. Scutt, the Sixth Circuit clarified how the Eighth Amendment
framework “appl[ies] in today’s prison context.” 894 F.3d, 721, 736 (2018). There, an inmate with
end-stage liver disease (“ESLD”) claimed deliberate indifference by several prison medical
provider defendants based on being denied adequate medical care. The Court of Appeals
summarized the inmate’s Eighth Amendment burden as follows:
The government has an obligation to provide medical care for those whom it is punishing by incarceration. But mere failure to provide adequate medical care to a prisoner will not violate the Eighth Amendment. In those circumstances, a constitutional violation arises only when the doctor exhibits deliberate indifference to a prisoner’s serious illness or injury, that can be characterized as obduracy and wantonness rather than inadvertence or error in good faith[.] To establish a prison official’s deliberate indifference to a serious medical need, an inmate must show two components, one objective and the other subjective. The plaintiff must show both that the alleged wrongdoing was objectively harmful enough to establish a constitutional violation and that the official acted with a culpable enough state of mind, rising above gross negligence.
Id. at 737 (emphasis added) (citations and internal quotation marks omitted). This is the standard
because “only the unnecessary and wanton infliction of pain implicates the Eighth Amendment.”
Id. quoting Wilson v. Seiter, 501 U.S. 294, 297 (1991)) (internal quotation marks and citation
omitted).
A. The Objective Component
90. The Court of Appeals explained that the objective component requires an inmate to
prove two things. The first is that they have a “serious medical need,” Rhinehart, 894 F.3d at 736
(citing Estelle, 429 U.S. at 106). “[A] serious medical condition carries with it a serious medical
need[.]” Rhinehart, 894 F.3d at 737.
91. The second is that “the alleged deprivation of medical care was serious enough to
violate the Eighth Amendment.” Id. at 737 (citing Farmer, 511 U.S. at 834-35); see also Bostic v.
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Biggs, Civil No. 3:14-CV-1068, 2015 WL 1190177, at *3 (M.D. Tenn. Mar. 13, 2015) (same). Where the claim is that a particular treatment should be provided, an inmate must demonstrate that “the inmate’s symptoms ‘would [ ] be[ ] alleviated by’ the treatment and the inmate’s condition ‘require[s]’ that treatment.” Id. at 749 (citing Anthony, 701 F. App’x at 464). If that is established, the inmate must further show that the treatment actually being provided is “’so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.’” Id. (citing Miller v. Calhoun Cty., 408 F.3d 803, 819 (6th Cir. 2005)). To meet this burden, Plaintiffs must present two types of medical proof: (1) that the provided treatment was not adequate medical treatment for the inmate’s condition, and (2) the treatment provided had a detrimental effect. Id. (citing Santiago v. Ringle, 734 F.3d 585, 591 (6th Cir. 2013); Blackmore v. Kalamazoo Cty., 390 F.3d 890, 898 (6th Cir. 2004); Napier v. Madison Cty., Ky., 238 F.3d 739, 742 (6th Cir. 2001); Anthony v. Swanson, 701 F. App’x 460, 464 (6th Cir. 2017)).
92. In making this determination in Rhinehart, the Court of Appeals noted the wellestablished legal principles that: (1) the Eighth Amendment does not require that prisoners receive “unqualified access to health care” of their choice. Rhinehart, 894 F.3d at 750 (quoting Hudson v. McMillian, 503 U.S. 1, 9 (1992); and (2) an inmate is entitled to adequate medical care, but “not the best care possible.” (Id. (citing Miller, 408 F.3d at 819). Neither an inmate’s “disagreement with the testing and treatment he has received,” nor “a desire for additional or different treatment,” rises to the level of an Eighth Amendment violation unless the treatment actually being provided is objectively harmful enough to establish a constitutional violation. Id. at 740 (quoting Dodson v. Wilkinson, 304 F. App’x 434, 440 (6th Cir. 2008); Anthony, 701 F. App’x at 464); see also Darrah v. Krishar, 865 F.3d 361, 372 (6th Cir. 2017) (“As a general rule, a patient’s disagreement with
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his physicians over the proper course of treatment alleges, at most, a medical-malpractice claim, which is not cognizable under § 1983.”).
93. The Sixth Circuit applied these principles in Rhinehart. The inmate sought a specific procedure (a TIPS procedure) to treat his ESLD. Rhinehart, 894 F.3d at 750. In its objective component analysis, the Court of Appeals acknowledged that the plaintiffs’ expert “testified that a TIPS procedure is the ‘gold standard’ of treatment for patients with ESLD.” Id. However, it found that the “alternative treatment” provided to the inmate, which included “regular monitoring and pain medication,” did not rise to the level of constitutional inadequacy. Id. (citing Johnson v. Million, 60 F. App’x 548, 549 (6th Cir. 2003) (holding that an inmate with liver disease could not establish deliberate-indifference claim against his prison healthcare providers when the inmate was repeatedly examined for his pain and prescribed medications, ordered blood tests, and advised about his diet).
B. The Subjective Component 94. The subjective component of deliberate indifference requires Plaintiffs and the class to show that Defendants acted with a sufficiently culpable state of mind. Farmer, 511 U.S. at 834; Rhinehart, 894 F.3d at 738. This requires proof that the defendant “subjectively perceived facts from which to infer substantial risk to the prisoner, that he did in fact draw the inference, and that he then disregarded that risk” by failing to take reasonable measures to abate it. Rhinehart, 894 F.3d at 738 (quoting Comstock, 273 F.3d at 703); Phillips v. Roane Cty., Tenn., 534 F.3d 531, 540 (6th Cir. 2008)). 95. This a “high bar.” Id. Plaintiffs and the class must establish that the defendant “consciously expos[ed]” them to an “excessive risk” of “serious harm.” Rhinehart, 894 F.3d at 738 (emphases in original) (citation and internal quotation marks omitted). The Sixth Circuit has
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described this mental state as “equivalent to criminal recklessness.” Id. (quoting Santiago, 734 F.3d at 591 and citing Farmer, 511 U.S. at 834). While a court is entitled to “conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious,” Farmer, 511 U.S. at 842, “a plaintiff also must present sufficient evidence from which the court could conclude that a defendant ‘so recklessly ignored the risk that he was deliberately indifferent to it.’” Rhinehart, 894 F.3d at 738 (quoting Cairelli v. Vakilian, 80 F. App’x 979, 983 (6th Cir. 2003)). In this case where Plaintiffs challenge the adequacy of their medical treatment, the subjective component “must be determined in light of the prison authorities’ current attitudes and conduct, including attitudes and conduct at the time suit is brought and persisting thereafter.” Farmer, 511 U.S. at 845 (quoting Helling v. McKinney, 509 U.S. 25, 36 (1993)).
96. The Court of Appeals has explained that, in considering culpable state of mind, courts, especially in an inadequate medical treatment context, must be “deferential to the judgments of medical professionals.” Rhinehart, 894 F.3d at 738 (quoting Richmond v. Huq, 885 F.3d 928, 940 (6th Cir. 2018)). A doctor is not immune from a deliberate indifference claim simply because he provided “some treatment for the inmates’ medical needs,” but, on the other hand, a doctor “is not liable under the Eighth Amendment if he or she provides reasonable treatment, even if the outcome of the treatment is insufficient or even harmful.” Id. (citing Farmer, 511 U.S. at 844).
97. In Rhinehart, for example, the plaintiffs could not establish the subjective component of their claim against a doctor who declined to order a medical procedure for the inmate with ESLD. Id. at 751. There, the doctor was familiar with ESLD and the procedure at issue, would evaluate inmates to see if they were a candidate for the procedure, and made his decisions after weighing potential health benefits – “a process that required medical judgment.” Id. In Rhinehart,
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the Court of Appeals held that because the record showed that the doctor “made a medical judgment in declining to refer [the inmate] for [the] procedure, the [plaintiffs] cannot establish the subjective component of their claim against him.” Id. (emphasis added). II. Analysis
98. Plaintiffs proceed under Section 1983 that provides a federal cause of action against government officials who, while acting under color of state law, “deprived the claimant of rights, privileges or immunities secured by the Constitution or laws of the United States.” Bennett v. City of Eastpointe, 410 F.3d 810, 817 (6th Cir. 2005) (citing McKnight v. Rees, 88 F.3d 417, 419 (6th Cir. 1996)).
99. The parties have stipulated that Defendants were acting under color of state law at all times relevant to this case. (Doc. No. 234 at 20 (pretrial conf. stip)).
100. Plaintiffs’ bring this Section 1983 action against two state officials. The Court considers the culpability of each defendant separately. See Rhinehart, 894 F.3d at 738; Garretson v. City of Madison Heights, 407 F.3d 789, 797 (6th Cir. 2005).
101. While ultimately in charge of TDOC, Parker is not personally involved in administration of TDOC’s HCV treatment policies. He has not participated in developing the 2019 HCV Guidance or 2019 HCV Workflow, has only a passing familiarity with TACHH, is not involved in the consideration of patients for treatment with DAAs, and is not involved in the details of Dr. Williams’ medical budget requests.
102. As TDOC’s Director of Medical Services and Chief Medical Officer, Dr. Williams is directly responsible for all aspects of TDOC inmate medical care and HCV treatment policies. He developed and drafted the 2019 HCV Guidance and 2019 HCV Workflow and is responsible
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for overseeing implementation and administration of each. He formed and is chair of TACHH, which decides whether an inmate receives DAA treatment.
A. Commissioner Parker 103. Plaintiffs have not established that Commissioner Parker, a supervisory official, violated their Eighth Amendment rights. 104. “[Section] 1983 liability must be based on more than respondeat superior, or the right to control employees.” Shehee v. Luttell, 199 F.3d 295, 300 (6th Cir. 1999); Howell v. Sanders, 668 F.3d 344, 351 n.3 (6th Cir. 2012). A plaintiff must prove that a supervisory official “caused” a violation of his or her constitutional rights, Thomas v. Nationwide Children’s Hosp., 882 F.3d 608, 612 (6th Cir. 2018), by demonstrating that the supervisory official “either encouraged the [ ] misconduct or in some other way directly participated in it.” Shehee, 199 F.3d at 300; Howell, 668 F.3d at 351 n.3. “At a minimum a plaintiff must show that the official at least implicitly authorized, approved, or knowingly acquiesced in [ ] unconstitutional conduct[.]” Shehee, 199 F.3d at 300. Liability also “cannot be based upon ‘a mere failure to act.’” Id. (citing Salehpour v. Univ. of Tenn., 159 F.3d 199, 206 (6th Cir. 1998)). 105. Plaintiffs have not established by a preponderance of the evidence that Parker encouraged, actively participated in, or knowingly approved any particular aspect of TDOC’s policy concerning treatment of HCV inmates. This is consistent with the conclusions of other courts on liability of the head of the department of corrections.4
4 See, e.g., Pevia v. Wexford Health Source, Inc., No. CV ELH-16-1950 and ELH-17-631, 2018 WL 999964, at *13 (D. Md. Feb. 20, 2018), aff’d sub nom. Pevia v. Comm’r of Corr., 731 F. App’x 243 (4th Cir. 2018) (dismissing claim against Commissioner of Correction due to inadequate involvement in HCV treatment policy as supervisory official); Abu-Jamal v. Kerestes, Case No. 3:15-cv-00967, 2016 WL 4574646, at *12 (M.D. Pa. Aug. 31, 2016) (dismissing claim against Department of Corrections officials not personally involved in “the [HCV] Treatment
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106. Plaintiffs have also failed to establish the subjective component of their deliberate indifference claim against Parker. This is because a prison official who lacks medical training does not act with the necessary culpable state of mind when he “reasonably defer[s] to the medical professionals’ opinions.” Olmstead v. Fentress Cty., No. 2:16-cv-46, 2019 WL 1556657, at *8 (M.D. Tenn. Apr. 10, 2019); see also Spears v. Ruth, 589 F.3d 249, 255 (6th Cir. 2009) (concluding that nonmedical jail personnel are entitled to reasonably rely on medical staff); McGaw v. Sevier Cty., 715 F. App’x 495, 498-99 (6th Cir. 2017) (collecting cases holding same).
107. Parker has no medical training, lacks substantive medical knowledge regarding HCV, and relies exclusively on Dr. Williams, Dr. Wiley, and other TDOC medical health care professionals to create policies and procedures for the treatment of HCV inmates. Because Parker has reasonably relied on these TDOC medical professionals to create the TDOC HCV policies at issue in this case, devise the 2019 HCV Guidance and 2019 HCV Workflow, and direct TACHH, he has not formed a mental state exceeding gross negligence.
108. Plaintiffs’ Section 1983 claim against Parker will be dismissed. B. Dr. Williams
1. Objective Component 109. The class is defined to include all inmates who have or will be diagnosed with HCV. (Doc. No. 32.) As Dr. Yao explained, HCV is a progressive illness from which the liver and other organs are subject to serious risks. These risks are many, including: progressive liver fibrosis potentially leading to cirrhosis; pain; extrahepatic (non-liver) manifestations including bleeding, skin, kidney, heart, and cognitive symptoms; accumulation of fluid in the body; serious infections;
Review Committee, the “development, adoption, or implementation of the [ ] [HCV] protocol or the protocol’s application to [the] [p]laintiff”).
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cancer; multi-organ failure; and death. It is not surprising that Dr. Yao describes HCV as very dangerous. While not all HCV inmates develop the same symptoms, or progress at the same rate, for many the disease will continue to worsen over time.
110. The proof establishes by an overwhelming preponderance of the evidence that chronic HCV is a serious medical condition. (See Doc. No. 219 at ¶ 4 (pretrial conf. stip.)). Other courts agree. See Stafford v. Carter, No. 1:17-cv-00289-JMS-MJD, 2018 WL 4361639, at *12 (S.D. Ind. Sept. 13, 2018) (“[T]he Court concludes, as have many other courts that have considered the issue, that chronic HCV constitutes a serious medical condition.”); Pevia, 2018 WL 999964, at *16 (finding chronic HCV “to be sure . . . constitutes a serious medical need”); Hoffer v. Jones, 290 F. Supp. 3d 1292, 1299 (N.D. Fla. 2017) (“Nor should it be surprising that this Court finds chronic HCV to be a serious medical need.”); Coleman-Bey v. United States, 512 F. Supp. 2d 44, 47 (D.D.C. 2007) (“[C]hronic [HCV] infection presents a serious medical need as the condition may lead to liver disease, including cirrhosis.”). Indeed, courts have so found about the hepatitis C virus regardless of whether infection has reached the chronic stage. See, e.g., Hix v. Tennessee Dep’t of Corr., 196 F. App’x 350, 356 (6th Cir. 2006) (“[H]epatitis C likely constitutes a serious medical need sufficient to satisfy the objective component of our Eighth Amendment analysis[.]”); Owens v. Hutchinson, 79 F. App’x 159, 161 (6th Cir. 2003) (“Owens has adequately alleged that he suffered from an objectively serious medical condition – [HCV].”); Parks v. Blanchette, 144 F. Supp. 3d 282, 314 (D. Conn. 2015) (holding that “[i]t is well-established that Hepatitis C is sufficiently serious” for purposes of the objective prong); Hilton v. Wright, 928 F. Supp. 2d 530, 547-48 (N.D.N.Y. 2013) (“It is well-established that HCV is a serious medical condition[.]”).
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111. Plaintiffs have also demonstrated by a preponderance of the evidence, especially through the impressive testimony of Dr. Yao, that DAAs alleviate HCV by achieving SVR for the vast majority of HCV patients.
112. The Court must determine whether TDOC’s HCV treatment policy, as reflected in the 2019 HCV Guidance and 2019 HCV Workflow, is “so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.” The Court cannot make that conclusion.
113. Plaintiffs’ rely upon the AASLD/IDSA Guideline and Dr. Yao’s expert opinion testimony that favor administering DAAs to inmates with chronic HCV as soon as possible. Plaintiffs then reason that TDOC’s HCV treatment policies fall short of the prevailing standard of care because they do not guarantee immediate, universal treatment of all HCV inmates with DAAs. (Doc. No. 255 at 10, 26-28, 42.) Less than that best practice standard of care, Plaintiffs maintain, is a deprivation of medical care that violates the Eighth Amendment. (Id. at 40-43.)
114. More specifically, Dr. Yao opined that treatment with DAAs “as early as possible” after diagnosis of chronic HCV is the generally accepted standard of care or “best practice.” He further opined that prioritization of patients or delayed administration of DAAs has no benefit and may be detrimental to HCV patients in the long-term because earlier treatment of chronic HCV stops the progression of the damage to patient’s liver and prevents damage to other organs.
115. Notably, however, Dr. Yao also believes that the 2019 HCV Guidance was a “significant improvement” over prior TDOC policies. He concedes that TDOC’s prioritization structure is a practical strategy for HCV care when resources are limited. Indeed, Dr. Yao utilized a prioritization method at the VA before Congress approved a new strategy and funding for universal care.
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116. The AASLD/IDSA Guideline consists of treatment recommendations, not mandatory practice requirements. (P. Ex. 8.) To the extent that Plaintiffs rely upon the AASLD/IDSA Guideline, the Court finds that its recommendations are helpful understanding the “best possible” practice, and provide “evidence of a preferred public health policy,” but do “not necessarily determine the standard for judging [constitutional] deliberate indifference.” See Buffkin v. Hooks, No. 1:18CV502, 2019 WL 1282785, at *6 (M.D.N.C. Mar. 20, 2019) (noting that the AASLD/IDSA disclaims that its guidelines “should not be relied on to suggest a course of treatment for a particular individual” and cautioning against use of the AASLD/IDSA Guideline as a legal measure of Eighth Amendment deliberate indifference).
117. Notably, even the AASLD/IDSA Guideline acknowledges the logic of a prioritization system when resources are limited. In such a case, it recognizes that “it is most appropriate to treat those at greatest risk of disease complications before treating those with less advanced disease,” because “the most immediate benefits will be realized by populations at highest risk for liver-related complications.” (P. Ex. 8 at 62-63).
118. The Court does not take issue with Dr. Yao’s view of the “best practice” for treating HCV, as reflected in the AASLD/IDSA Guideline. However, it is well established that HCV inmates are entitled to adequate care, not the “best care possible” or the “gold standard.” Rhinehart, 894 F.3d at 750.
119. When considered together, the 2019 HCV Guidance and 2019 HCV Workflow create a multifaceted set of policies and protocols for DAA treatment of chronic HCV inmates that includes: evaluation, staging for referral to TACHH, consideration by and designation for treatment by TACHH, monitoring and regular testing by the chronic care clinic, and use of HepCOR to streamline and facilitate inmate monitoring and treatment. Importantly, the 2019 HCV
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Guidance is an improvement from past treatment protocols. It serves the dual goals of maximizing and prioritizing treatment for HCV inmates. First, it allows inmates to opt-out, as opposed to optin, of HCV testing at intake. This testing at intake begins the HCV treatment process. Second, it provides that, upon diagnosis, HCV inmates undergo a prompt and more comprehensive baseline evaluation, including blood and fibrosis tests. Third, it provides for referral of “all” HCV inmates, and does not preclude referral of any HCV inmates, to TACHH. Fourth, it implements a flexible prioritization system for TACHH to order DAA treatment. While TACHH utilizes a three-tier prioritization system, lower priority inmates are still eligible for DAAs. While Plaintiffs complain that the prioritization system does not “guarantee” DAA treatment for anyone at any level (Doc. No. 255 at ¶ 15), such a guarantee is not required under current Eighth Amendment jurisprudence. Finally, the 2019 HCV Guidance directs that all HCV inmates be enrolled in the chronic care clinic for close, regular, and comprehensive monitoring. The results of this monitoring and testing are used, in part, to update inmates’ TACHH staging for DAA treatment. Treatment by the chronic care clinic continues until an inmate is administered DAAs and achieves SVR.
120. Dr. Williams has requested and obtained an increased budget for treatment of HCV inmates with DAAs and expects that funding, in tandem with the 2019 HCV Guidance and accelerated work of TACHH, to increase the number of inmates that will be administered DAAs.
121. Dr. Williams has devised a reasonable structure for the diagnosis, evaluation, staging, treatment, and monitoring of inmates with chronic HCV. True, Dr. Williams and TDOC have not put forth the “gold standard” of immediate, universal DAA treatment regardless of fibrosis stage recommended by AASLD/IDSA and advocated by Dr. Yao. But the 2019 HCV Guidance and 2019 HCV Workflow are not so unreasonable or so contrary to medical standards that no competent medical professional would make similar choices, particularly given the
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resources available to TDOC. Plaintiffs have not established, by a preponderance of the evidence, that the policies and protocols to treat chronic HCV inmates with DAAs set forth in the 2019 HCV Guidance and 2019 HCV Workflow are “grossly incompetent” or “conscience shocking.”
122. Other courts have rejected similar claims for DAA treatment on the same basis relied upon by the Court. For example, in Roy v. Lawson, 739 F. App’x 266, 266-67 (5th Cir. 2018), the Fifth Circuit rejected an HCV inmate’s claim that the defendants were deliberately indifferent when they failed to refer him for immediate treatment based on a low fibrosis score and instead performed only blood work, labs, and monitoring “despite the high-risk nature of the disease.” The Court noted that there was no evidence the inmate was deprived of adequate medical care “particularly in the absence of any medical evidence showing that his condition required immediate care or subjected him to any wanton infliction of pain.” In Spiers v. Perry, Civil Action No. 1:17CV281-RHW, 2019 WL 2373199, at *2 (S.D. Miss. June 5, 2019), an HCV inmate complained of being denied DAAs. The Court found that “constant, routine monitoring” was sufficient to defeat a claim of constitutionally inadequate medical care. Id. In Pevia v. Wexford Health Source, Inc., the court rejected the objective component argument that an HCV inmate was entitled to receive a DAA “as soon as [it] became available,” because the inmate was stable and being “monitored, as required by existing protocols.” Pevia, 2018 WL 999964, at *16. The Court focused on “medical necessity,” “not simply that which may be considered . . . desirable.” Id. Likewise, in Walton v. Person, Case No. 1:16-cv-00157-TWP-TAB, 2017 WL 2807326, at *5 (S.D. Ind. June 28, 2017), an HCV inmate with no lab tests showing development of fibrosis sued for being denied DAAs. The Court held that “while fears of developing liver damage are understandable,” testing and placing inmate on lower end of treatment priority scale was not “so contrary to accepted professional standards.” Id. Finally, in Phelps v. Wexford Health Sources,
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Inc., Civil Action No. ELH-16-2675, 2017 WL 528424, at *9 (D. Md. Feb. 8, 2017), an HCV inmate claimed his medical treatment was objectively inadequate because he had not been treated with DAAs. The Court rejected the claim because the inmate was enrolled in chronic care clinic, received regular tests and monitoring, and individual treatments could be considered by a special panel. Id.
123. The Court’s analysis of the objective component differentiates this case from three cases that found in favor of HCV inmates who challenged state prison HCV treatment policies. These cases are distinguishable on either the particulars of the policies at issue or the objective component analysis. First, in Abu-Jamal v. Wetzel, the court enjoined a Pennsylvania Department of Corrections (“PDOC”) HCV policy. No. 3:16-CV-2000, 2017 WL 34700, at *15 (M.D. Pa. Jan. 3, 2017). There, the PDOC policy contained a prioritization system, but it also had two important limitations: inmates had to have cirrhosis to be considered for DAA treatment, and had to have dangerous esophageal varices to be granted DAA treatment. (Id.) The court noted that “[s]imply prioritizing [HCV] treatment so that those in the greatest need are treated first likely would not constitute a constitutional violation.” (Id. (emphasis added)). However, with those additional requirements, those with mild or moderate fibrosis unacceptably “ha[d] no chance of receiving [DAAs].” Id. at *16. Not so here. While TDOC has a prioritization system, no inmate is foreclosed from consideration by TACHH, and there are no exclusions from DAA treatment.
124. In Hoffer v. Jones, 290 F. Supp. 3d at 1305-06, and Stafford v. Carter, 2018 WL 4361639, at *12, HCV inmates challenged the treatment policies of the Florida and Indiana Departments of Corrections, respectively. However, in these out-of-circuit cases, the analysis of the objective component consisted of no more than deeming chronic HCV to be a serious medical need. Hoffer, 290 F. Supp. 3d at 1299; Stafford, 2018 WL 4361639, at *11-*12. Those courts did
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not discuss the further issue, required in the Sixth Circuit where the adequacy of care is at issue, the degree to which there has been an objective deprivation of medical care. This is likely because those cases arrived in a different posture. For example, in Hoffer, the court was faced with a “sordid” state of affairs in which funding was essentially “not available” to treat anyone with HCV and only 13 of perhaps as many as 20,000 inmates had been treated with DAAs. Hoffer, 290 F. Supp. 3d at 1293, 1298. And in Stafford, the Department of Corrections had “not stated that it [wa]s their intention to treat even the individuals who [we]re categorized as high priority.” Id. at *17-*18. Again, not so here. It is TDOC’s current policy to treat all HCV inmates. The 2019 HCV Guidance and 2019 HCV Workflow are a set of treatment policies and protocols intended and designed to steadily increase the number of HCV inmates treated with DAAs. This case does not fit within Abu-Jamal, Hoffer, or Stafford.
125. Plaintiffs have not satisfied the objective component of the Eighth Amendment deliberate indifference analysis by a preponderance of the evidence.
2. Subjective Component 126. Plaintiffs have also not met their burden on the subjective component of Eighth Amendment deliberate indifference. 127. The proof does not establish, by a preponderance of the evidence, that Dr. Williams has acted with a culpable state of mind equivalent to criminal recklessness. Indeed, the proof is the opposite. Dr. Williams has used, and is using, his medical judgment to provide reasonable care for TDOC HCV inmates through creation, administration, and modification of TDOC policies and treatment protocols for HCV inmates. All of this is a process that involves his reasoned medical judgment. Id.
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128. Because the evidence reflects that Dr. Williams’ medical judgment has been consciously exercised regarding TDOC’s HCV treatment policies and protocols, the Court cannot conclude that Dr. Williams has acted or will act with a culpable state of mind approaching “criminal recklessness” regarding the inmates’ HCV treatment. See, e.g., Roy, 739 F. App’x at 266-267 (finding that “[t]he true nature of [plaintiff’s] complaint is a challenge to the medical judgment exercised by prison medical staff in determining the appropriate course of his [HCV] treatment, which does not give rise to a constitutional violation”); Loeber, 487 F. App’x at 549 (“Plaintiff’s disagreement with the course of treatment employed fails to support an inference that Defendants acted with disregard for the harm posed to Plaintiff by Hepatitis C.”); Parks, 144 F. Supp. 3d at 315 (“If medical judgment was consciously exercised, even if that judgment was ‘objectively unreasonable,’ the defendant’s conduct does not constitute deliberate indifference.”); King v. Calderwood, Case No. 2:13-cv-02080-GMN-PAL, 2016 WL 4771065, at *6 (D. Nev. Sept. 12, 2016) (concluding disagreement over DAA treatment does not amount to deliberate indifference unless the medical director chose a course of treatment that was “medically unacceptable” under the circumstances).
CONCLUSION There is room for much continued improvement in TDOC’s treatment of HCV inmates with DAAs. The Eighth Amendment is not frozen in time. The evidence at trial made clear that HCV is serious and progressive health condition; that this area of medicine continues to evolve; that DAAs are a virologic cure; and that DAAs are becoming increasingly more affordable. The Court notes that Dr. Williams made a number of promises and projections about anticipated success under the 2019 HCV Guidance. The time it takes to treat HCV inmates with DAAs should continue to dwindle. In time HCV should be no different than other illnesses such as HIV and
39

tuberculosis for which treatment lingered in nascent stages before reaching a critical mass. Time will tell whether TDOC implements the 2019 HCV Guidance in the dedicated manner it has represented and continues to accelerate approval of inmates for treatment with DAAs. It would behoove TDOC to do so and to engage Dr. Yao to assist in maintaining this progress, lest treatment that is not grossly inadequate today be subject to that renewed claim in the future.
The Court will issue an appropriate order. ____________________________________ WAVERLY D. CRENSHAW, JR. CHIEF UNITED STATES DISTRICT JUDGE
40

 
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