Case: 1:18-cv-352 As of: 06/18/2019 02:36 PM EDT 1 of 16
CONFIDENTIALITY ORDER,COURTEXHIBITS,STANDARD,TRIALLIST
U.S. District Court District of Maine (Bangor) CIVIL DOCKET FOR CASE #: 1:18−cv−00352−NT

SMITH v. AROOSTOOK COUNTY et al Assigned to: JUDGE NANCY TORRESEN Referred to: MAGISTRATE JUDGE JOHN C. NIVISON related Case: 1:18−cv−00288−NT
Case in other court: First Circuit Court of Appeals, 19−01340 Cause: 42:12101 American Disabilities Act
Plaintiff

Date Filed: 09/06/2018 Jury Demand: Defendant Nature of Suit: 446 Civil Rights: Americans with Disabilities − Other Jurisdiction: Federal Question

BRENDA SMITH

represented by EMMA EATON BOND AMERICAN CIVIL LIBERTIES UNION OF MAINE 121 MIDDLE STREET SUITE 200 PORTLAND, ME 04101 207−619−8687 Email: ebond@aclumaine.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

PETER G. MANCUSO ANDREW SCHMIDT LAW PLLC 97 INDIA STREET PORTLAND, ME 04101 207−619−0884 Email: peter@maineworkerjustice.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

DAVID SOLEY BERNSTEIN SHUR SAWYER & NELSON 100 MIDDLE STREET, WEST TOWER P.O. BOX 9729 PORTLAND, ME 04104−5029 207−774−1200 Fax: 2070227−1127 Email: dsoley@bssn.com ATTORNEY TO BE NOTICED

JAMES G. MONTELEONE BERNSTEIN SHUR SAWYER & NELSON 100 MIDDLE STREET, WEST TOWER P.O. BOX 9729 PORTLAND, ME 04104−5029 207−228−7198 Email: jmonteleone@bernsteinshur.com ATTORNEY TO BE NOTICED

ZACHARY L. HEIDEN AMERICAN CIVIL LIBERTIES UNION OF MAINE 121 MIDDLE STREET SUITE 200 PORTLAND, ME 04101 207−774−5444 Fax: 207−774−1103 Email: zheiden@aclumaine.org

Case: 1:18-cv-352 As of: 06/18/2019 02:36 PM EDT 2 of 16 ATTORNEY TO BE NOTICED

V. Defendant AROOSTOOK COUNTY
Defendant SHAWN D GILLEN Chief Deputy and Acting Aroostook County Sheriff
Amicus MAINE MEDICAL ASSOCIATION
Movant PUBLIC HEALTH SCHOLARS TERMINATED: 03/27/2019

represented by PETER T. MARCHESI WHEELER & AREY, P.A. 27 TEMPLE STREET P. O. BOX 376 WATERVILLE, ME 04901 207−660−9201 Email: peter@wheelerlegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
CASSANDRA S. SHAFFER WHEELER & AREY, P.A. 27 TEMPLE STREET WATERVILLE, ME 04901 207−660−9201 Email: cshaffer@wheelerlegal.com ATTORNEY TO BE NOTICED
represented by PETER T. MARCHESI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
CASSANDRA S. SHAFFER (See above for address) ATTORNEY TO BE NOTICED
represented by RICHARD L. O'MEARA MURRAY PLUMB & MURRAY 75 PEARL STREET P.O. BOX 9785 PORTLAND, ME 04104−5085 773−5651 Fax: 207−773−8023 Email: romeara@mpmlaw.com ATTORNEY TO BE NOTICED
represented by ADAM W. AXLER AKIN, GUMP, STRAUSS, HAUER & FELD LLP ROBERT S. STRAUSS BUILDING 2001 K STREET N.W. WASHINGTON, DC 20006 202−887−4000 Email: aaxler@akingump.com TERMINATED: 04/19/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
BRETT R. LELAND VERRILL DANA LLP ONE PORTLAND SQUARE P.O. BOX 586

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PORTLAND, ME 04112 (207) 253−4556 Email: bleland@verrilldana.com TERMINATED: 04/19/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

COLETTE L. MCCRONE AKIN, GUMP, STRAUSS, HAUER & FELD LLP ROBERT S. STRAUSS BUILDING 2001 K STREET N.W. WASHINGTON, DC 200306 202−887−4000 Email: cmccrone@akingump.com TERMINATED: 04/19/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

HOWARD R. SKLAMBERG AKIN, GUMP, STRAUSS, HAUER & FELD LLP ROBERT S. STRAUSS BUILDING 2001 K STREET N.W. WASHINGTON, DC 20006 202−887−4000 Email: hsklamberg@akingump.com TERMINATED: 04/19/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Movant
MAINE MEDICAL ASSOCIATION TERMINATED: 03/27/2019

represented by JOEL K. GOLOSKIE PANNONE LOPES DEVEREAUX & O'GARA LLC 1301 ATWOOD AVENUE SUITE 215N JOHNSTON, RI 02919 401−824−5100 Email: jgoloskie@pldolaw.com TERMINATED: 04/16/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

MEAGAN L. THOMSON PANNONE LOPES DEVEREAUX & O'GARA LLC ONE INTERNATIONAL PLACE SUITE 1400 BOSTON, MA 02110 617−771−1154 Email: mthomson@pldolaw.com TERMINATED: 04/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

RICHARD L. O'MEARA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Movant
NORTHERN NEW ENGLAND SOCIETY OF ADDICTION MEDICINE TERMINATED: 03/27/2019

represented by JOEL K. GOLOSKIE (See above for address) TERMINATED: 04/16/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

MEAGAN L. THOMSON (See above for address) TERMINATED: 04/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

RICHARD L. O'MEARA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant
MAINE ASSOCIATION OF PSYCHIATRIC PHYSICIANS TERMINATED: 03/27/2019

represented by JOEL K. GOLOSKIE (See above for address) TERMINATED: 04/16/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

MEAGAN L. THOMSON (See above for address) TERMINATED: 04/16/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

RICHARD L. O'MEARA (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant
KATAHDIN VALLEY HEALTH CENTER TERMINATED: 03/27/2019

represented by PETER F. HERZOG BERNSTEIN SHUR 100 MIDDLE STREET, WEST TOWER P.O. BOX 9729 PORTLAND, ME 04104−5029 207−774−1200 Fax: 207−775−6407 Email: pherzog@bernsteinshur.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant
CLAUDETTE HUMPHREY TERMINATED: 02/10/2019

represented by PETER F. HERZOG (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 09/06/2018

# Docket Text
1 COMPLAINT with Jury Demand against AROOSTOOK COUNTY, SHAWN D GILLEN PAYMENT OF FILING FEE DUE WITHIN 48 HOURS. IF FILING FEE IS BEING
PAID WITH A CREDIT CARD COUNSEL ARE INSTRUCTED TO LOGIN TO CMECF AND DOCKET Case Opening Filing Fee Paid FOUND IN THE Complaints and Other Initiating

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09/06/2018 09/06/2018
09/06/2018 09/07/2018 09/18/2018
09/28/2018 10/01/2018 11/05/2018 11/05/2018
11/06/2018 11/16/2018 11/16/2018

Documents CATEGORY. CHECK PAYMENTS DUE WITHIN 48 HOURS., filed by BRENDA SMITH. (Service of Process Deadline 12/5/2018) Fee due by 9/10/2018.(mjlt) Modified on 9/17/2018 to reflect a jury is demanded (mjlt). (Entered: 09/06/2018)
2 CIVIL COVER SHEET. (mjlt) (Entered: 09/06/2018)
3 MOTION for Temporary Restraining Order, MOTION for Preliminary Injunction by BRENDA SMITH (Attachments: # 1 Exhibit A− Declaration of Jonathan C. Fellers, MD filed in 1:18−CV−288−NT, # 2 Exhibit B− Declaration of Brenda Smith, # 3 Exhibit C− Defendant Gillen's Memorandum in Opposition to Plaintiff's Motion For Preliminary Injunction filed in 1:18−CV−288−NT, # 4 Exhibit D− Declaration of David Conner, MD filed in 1:18−CV−288−NT)(mjlt) (Entered: 09/06/2018)
4 WITHDRAWAL of : 3 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction by BRENDA SMITH . (MANCUSO, PETER) (Entered: 09/06/2018)
Filing Fee Paid via Credit Card ( Filing fee $ 400 receipt number 0100−1896582.), filed by BRENDA SMITH.(MANCUSO, PETER) (Entered: 09/07/2018)
5 Summons Issued as to AROOSTOOK COUNTY, SHAWN D GILLEN.
Counsel shall print the embossed summons and effect service in the manner in accordance with Fed.R.Civ.P.4.
Note−If you are using Version 6 of Adobe Acrobat, be sure the PRINT WHAT field is set to DOCUMENTS AND COMMENTS (Click File, then Print to check this setting).
(Attachments: # 1 Shawn D. Gillen summons)(bfa) (Entered: 09/18/2018)
6 ANSWER to 1 Complaint,, by AROOSTOOK COUNTY, SHAWN D GILLEN.(MARCHESI, PETER) (Entered: 09/28/2018)
7 SCHEDULING ORDER: Discovery due by 2/15/2019. Written Notice of Intent to File Summary Judgment Motion and Request for Pre−Filing Conference due by 2/22/2019. Motions due by 3/8/2019. Ready for Trial on 5/7/2019. By MAGISTRATE JUDGE JOHN C. NIVISON. (MFS) (Entered: 10/01/2018)
8 NOTICE of Appearance by EMMA EATON BOND on behalf of BRENDA SMITH (BOND, EMMA) (Entered: 11/05/2018)
9 MOTION for Preliminary Injunction by BRENDA SMITH Responses due by 11/26/2018. (Attachments: # 1 Attachment A − Smith Affidavit, # 2 Attachment B − Fellers Affidavit, # 3 Exhibit 1 to Attachment B − Fellers CV, # 4 Attachment C − Hayes Affidavit, # 5 Exhibit 1 to Attachment C − Hayes Resume, # 6 Exhibit 2 to Attachment C − Protocols, # 7 Exhibit 3 to Attachment C − Dispensing Protocol, # 8 Exhibit 4 to Attachment C − SAMHSA, # 9 Exhibit 5 to Attachment C − lead case planner, # 10 Exhibit 6 to Attachment C − overdose deaths, # 11 Exhibit 7 to Attachment C − drug assays, # 12 Attachment D − MacDonald Affidavit, # 13 Exhibit 1 to Attachment D − MacDonald CV, # 14 Attachment E − ACJ Policies, # 15 Attachment F − Opiate Withdrawal Procedure)(BOND, EMMA) (Entered: 11/05/2018)
RESET Deadlines as to 9 MOTION for Preliminary Injunction Expedited briefing requested by US Chief District Judge Nancy Torresen: Responses due by 11/19/2018. Reply due by 11/26/2018. (slg) (Entered: 11/06/2018)
10 MOTION to Extend Time to File Objection to Motion for Preliminary Injunction by AROOSTOOK COUNTY, SHAWN D GILLEN Responses due by 12/7/2018. (MARCHESI, PETER) (Entered: 11/16/2018)
11 NOTICE of Hearing on Motion re 10 MOTION to Extend Time to File Objection to Motion for Preliminary Injunction : Telephone Conference set for 11/16/2018 03:00 PM in Judge Torresen's Chambers before JUDGE NANCY TORRESEN. The parties are instructed to call chambers with the number provided once all the parties are on the line.(slg) (Entered: 11/16/2018)

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11/16/2018
11/16/2018 11/19/2018
11/20/2018 11/20/2018 11/21/2018 11/26/2018 11/26/2018 11/27/2018 12/03/2018 12/04/2018 12/04/2018 12/04/2018
12/04/2018 12/10/2018 12/12/2018 12/20/2018

12 ORDER withdrawing 10 Motion to Extend Time. The Defendants have withdrawn their Motion for Enlargement of Time. Given the complex issues raised in the Plaintiffs Motion for Preliminary Injunction, completing the necessary factual and expert discovery, scheduling and holding the evidentiary hearing, and providing for post−trial briefing before Ms. Smiths January 14, 2019 self−report date would be difficult to accomplish. Accordingly, I DIRECT the parties to consult with the Aroostook County District Attorney and the Plaintiffs defense counsel to see if they can secure an extension of the time that Ms. Smith is required to report. By JUDGE NANCY TORRESEN. (MMB) (Entered: 11/16/2018)
13 Minute Entry for proceedings held before JUDGE NANCY TORRESEN. Telephone Conference held. (Court Reporter: Lori Dunbar) (mnw) (Entered: 11/19/2018)
14 RESPONSE in Opposition re 9 MOTION for Preliminary Injunction filed by AROOSTOOK COUNTY, SHAWN D GILLEN. Reply due by 12/3/2018. (Attachments: # 1 Affidavit of Alison Willette, # 2 Exhibit 1 to Willette Affidavit − COWS, # 3 Exhibit 2 to Willette Affidavit − Opiate Withdrawal Protocol, # 4 Affidavit of Craig Clossey, # 5 Exhibit 1 − Policies and Procedures, # 6 Exhibit 2 − Agreement, # 7 Exhibit 3 − COWS, # 8 Exhibit 4 − Opiate Withdrawal Protocol)(MARCHESI, PETER) (Entered: 11/19/2018)
RESET Deadlines as to 9 MOTION for Preliminary Injunction Per Judge Torresen's request for expedited briefing: Reply due by 11/26/2018. (slg) (Entered: 11/20/2018)
15 NOTICE of Appearance by ZACHARY L. HEIDEN on behalf of BRENDA SMITH (HEIDEN, ZACHARY) (Entered: 11/20/2018)
16 Consent MOTION for Confidentiality Order and status update on extension of reporting date by BRENDA SMITH Responses due by 12/12/2018. (Attachments: # 1 Attachment A − Draft Confidentiality Order)(BOND, EMMA) (Entered: 11/21/2018)
17 ADDITIONAL ATTACHMENTS filed by BRENDA SMITH re 16 Motion for Confidentiality Order Corrected Proposed Confidentiality Order.. (BOND, EMMA) (Entered: 11/26/2018)
18 REPLY to Response to Motion re 9 MOTION for Preliminary Injunction filed by BRENDA SMITH. (BOND, EMMA) (Entered: 11/26/2018)
19 ORDER granting 16 Motion for Confidentiality Order By JUDGE NANCY TORRESEN. (slg) (Entered: 11/27/2018)
20 Consent MOTION for Order setting deadlines for preliminary discovery and dates for evidentiary hearing by BRENDA SMITH Responses due by 12/24/2018. (BOND, EMMA) (Entered: 12/03/2018)
21 ORDER granting 20 Consent Motion for Entry of Scheduling Order By JUDGE NANCY TORRESEN. (MMB) (Entered: 12/04/2018)
22 NOTICE of Hearing: Telephone Conference re Hearing Prep set for 1/25/2019 at 10:00 AM before JUDGE NANCY TORRESEN. (slg) (Entered: 12/04/2018)
23 NOTICE of Hearing on Motion 9 MOTION for Preliminary Injunction : Evidentiary Hearing set to begin on 2/11/2019 at 08:30 AM in Portland Courtroom 1 before JUDGE NANCY TORRESEN. The Court has reserved 5 days for this hearing. Schedule to be discussed at the 1/25/2019 teleconference.(slg) (Entered: 12/04/2018)
SET Deadlines Per Order #21: Close of Preliminary Discovery on 1/24/2019. Post−Hearing Briefs due by 2/22/2019. (slg) (Entered: 12/04/2018)
24 NOTICE of Appearance by DAVID SOLEY on behalf of BRENDA SMITH (SOLEY, DAVID) (Entered: 12/10/2018)
25 NOTICE of Appearance by JAMES G. MONTELEONE on behalf of BRENDA SMITH (MONTELEONE, JAMES) (Entered: 12/12/2018)
26 MOTION to Amend Scheduling Order (Partially Unopposed) by BRENDA SMITH Responses due by 1/10/2019. (Attachments: # 1 Exhibit Topics for Additional Requests for Admission)(HEIDEN, ZACHARY) (Entered: 12/20/2018)

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12/21/2018 12/21/2018 01/08/2019 01/11/2019 01/29/2019 01/29/2019 01/29/2019 01/29/2019 01/29/2019
01/30/2019 01/31/2019
01/31/2019
01/31/2019

27 ORDER granting 26 Motion to Amend Scheduling Order By JUDGE NANCY TORRESEN. (MMB) (Entered: 12/21/2018)
28 NOTICE OF RESCHEDULED HEARING : Telephone Conference re Hearing Prep rescheduled to 1/31/2019 at 2:00 PM before JUDGE NANCY TORRESEN. (mnw) (Entered: 12/21/2018)
29 RESPONSE to Motion re 26 MOTION to Amend Scheduling Order (Partially Unopposed) filed by AROOSTOOK COUNTY, SHAWN D GILLEN. Reply due by 1/22/2019. (MARCHESI, PETER) (Entered: 01/08/2019)
30 NOTICE OF HEARING: Please be advised that the conference set for 1/31/2019 at 2:00 PM will now be an in person conference in Judge Torresen's Chambers. (mnw) (Entered: 01/11/2019)
31 MOTION for Leave to File Amici Curiae Brief in Support of Plaintiff's Motion for Preliminary Injunction by PUBLIC HEALTH SCHOLARS. Responses due by 2/19/2019. (Attachments: # 1 Exhibit Proposed Amici Curiae Brief)(LELAND, BRETT) Modified on 1/29/2019 to correct filer to be Public Health Scholars (mnw). (Entered: 01/29/2019)
32 CERTIFICATION for Admission Pro Hac Vice of Howard R. Sklamberg filed by BRETT R. LELAND on behalf of PUBLIC HEALTH SCHOLARS (Total admission fee $ 100 receipt number 0100−1966453.) (LELAND, BRETT) Modified on 1/29/2019 to correct filer to be Public Health Scholars (mnw). (Entered: 01/29/2019)
33 CERTIFICATION for Admission Pro Hac Vice of Colette L. McCrone filed by BRETT R. LELAND on behalf of PUBLIC HEALTH SCHOLARS (Total admission fee $ 100 receipt number 0100−1966460.) (LELAND, BRETT) Modified on 1/29/2019 to correct filer to be Public Health Scholars (mnw). (Entered: 01/29/2019)
34 CERTIFICATION for Admission Pro Hac Vice of Adam W. Axler filed by BRETT R. LELAND on behalf of PUBLIC HEALTH SCHOLARS (Total admission fee $ 100 receipt number 0100−1966464.) (LELAND, BRETT) Modified on 1/29/2019 to correct filer to be Public Health Scholars (mnw). (Entered: 01/29/2019)
35 NOTICE of Docket Entry Modification regarding 31 MOTION for Leave to File Amici Curiae Brief in Support of Plaintiff's Motion for Preliminary Injunction, 32 Certification for Admission Pro Hac Vice, 33 Certification for Admission Pro Hac Vice and 34 Certification for Admission Pro Hac Vice : Docket entry modified by the Clerk's Office to correct filer to be Public Health Scholars. (mnw) (Entered: 01/29/2019)
36 MOTION for Leave to File Amici Brief in Support of Plaintiff's Motion for a Preliminary Injunction by MAINE ASSOCIATION OF PSYCHIATRIC PHYSICIANS, MAINE MEDICAL ASSOCIATION, NORTHERN NEW ENGLAND SOCIETY OF ADDICTION MEDICINE Responses due by 2/20/2019. (O'MEARA, RICHARD) (Entered: 01/30/2019)
Set Deadlines: Attorney JOEL K. GOLOSKIE shall register for the District of Maine's Electronic Case Filing (ECF) System by 2/7/2019. Registration Forms are available on the Court's website http://www.med.uscourts.gov/ecf−registration under the Electronic Case Files, ECF Registration Section. Pro Hac Vice Certificate due from JOEL K. GOLOSKIE by 2/7/2019. The Certification for Admission Pro Hac Vice form can be downloaded from our website at http://www.med.uscourts.gov/forms. (slg) (Entered: 01/31/2019)
37 Minute Entry for proceedings held before JUDGE NANCY TORRESEN: Conference of Counsel held. Set Deadlines: Exhibit and Witness Lists and deposition designations, with the exception of Dr. Conner due by 2/6/2019. Objections to deposition designations and deposition designation of Dr. Conner due by 2/8/2019. Motions in Limine due by 2/6/2019. Responses due by 2/8/19. Post−hearing Briefs due by 2/22/2019. Counsel for the plaintiff orally withdrew jury demand. Ruling reserved on the request to consolidate trial on the merits with the preliminary injunction hearing. (Court Reporter: Dennis Ford) (slg) (Entered: 01/31/2019)
Reset Deadlines as to 31 MOTION for Leave to File Amici Curiae Brief in Support of Plaintiff's Motion for Preliminary Injunction and 36 MOTION for Leave to File Amici

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02/01/2019 02/04/2019 02/04/2019
02/05/2019
02/05/2019 02/06/2019 02/06/2019
02/06/2019 02/06/2019
02/06/2019 02/06/2019 02/07/2019 02/07/2019 02/07/2019
02/07/2019 02/07/2019

Brief in Support of Plaintiff's Motion for a Preliminary Injunction, per Judge Torresen at 1/31/19 conference of counsel: Responses due by 2/22/2019. (slg) (Entered: 01/31/2019)
38 Witness List by BRENDA SMITH . (SOLEY, DAVID) (Entered: 02/01/2019)
39 (Document sealed from public view) MOTION to Seal trial exhibit and testimony of childhood trauma by BRENDA SMITH Responses due by 2/25/2019. (BOND, EMMA) (Entered: 02/04/2019)
40 MOTION in Limine to exclude testimony from James Foss and limit testimony from Shawn Gillen by BRENDA SMITH Responses due by 2/25/2019. (Attachments: # 1 Exhibit A − Defendants' Initial Disclosures, # 2 Exhibit B − Defendants' Interrogatory Responses, # 3 Exhibit C − Amended 30(b)(6) Notice to Defendants)(BOND, EMMA) (Entered: 02/04/2019)
Reset Deadlines as to 40 MOTION in Limine to exclude testimony from James Foss and limit testimony from Shawn Gillen Per deadlines set by Judge Torresen at 1/31/20/19 Conference of Counsel: Responses due by 2/8/2019. (slg) (Entered: 02/05/2019)
41 Witness List by AROOSTOOK COUNTY, SHAWN D GILLEN . (MARCHESI, PETER) (Entered: 02/05/2019)
42 MOTION in Limine to exclude Audie Horne and find Dr. Conner and KVHC unavailable under Rule 32(a)(4)(B) by BRENDA SMITH Responses due by 2/27/2019. (BOND, EMMA) (Entered: 02/06/2019)
43 MOTION in Limine re admission of evidence related to the opiod crisis and Motion in Limine re admission of testimony from Dr. Conner to the extent it constituted expert testimony by AROOSTOOK COUNTY, SHAWN D GILLEN Responses due by 2/27/2019. (MARCHESI, PETER). Added MOTION re admission of testimony from Dr. Conner to the extent it constituted expert testimony on 2/12/2019 (mnw). (Entered: 02/06/2019)
44 Exhibit List (Jointly Filed) by BRENDA SMITH.. (SOLEY, DAVID) (Entered: 02/06/2019)
45 DEPOSITION DESIGNATION of Alison Willette and Claudette Humphrey by BRENDA SMITH. (Attachments: # 1 Testimony of Willette o/b/o Aroostook County, # 2 Testimony of Humphrey o/b/o KVHC)(HEIDEN, ZACHARY) (Entered: 02/06/2019)
46 DEPOSITION DESIGNATION of Alison Willette by AROOSTOOK COUNTY, SHAWN D GILLEN. (MARCHESI, PETER) (Entered: 02/06/2019)
47 MOTION for Order consolidating the preliminary injunction hearing with trial on the merits by BRENDA SMITH Responses due by 2/27/2019. (BOND, EMMA) (Entered: 02/06/2019)
48 DEPOSITION DESIGNATION (Amended) of Alison Willette by AROOSTOOK COUNTY, SHAWN D GILLEN. (MARCHESI, PETER) (Entered: 02/07/2019)
49 DEPOSITION of Alison Willette taken on December 21, 2018 filed by AROOSTOOK COUNTY, SHAWN D GILLEN. (MARCHESI, PETER) (Entered: 02/07/2019)
Reset Deadlines as to 42 MOTION in Limine to exclude Audie Horne and find Dr. Conner and KVHC unavailable under Rule 32(a)(4)(B) per deadlines set by Judge Torresen at Conference of Counsel held on 1/31/19: Responses due by 2/8/2019. (slg) (Entered: 02/07/2019)
Reset Deadlines as to 43 MOTION in Limine Per deadlines set by Judge Torresen at 1/31/19 Conference of Counsel: Responses due by 2/8/2019. (slg) (Entered: 02/07/2019)
50 Exhibit List (Amended) by AROOSTOOK COUNTY, SHAWN D GILLEN.. (MARCHESI, PETER) (Entered: 02/07/2019)

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02/07/2019 02/07/2019
02/07/2019 02/08/2019 02/08/2019 02/08/2019 02/08/2019 02/08/2019 02/08/2019 02/08/2019 02/08/2019 02/08/2019 02/08/2019 02/08/2019 02/08/2019

51 DEMAND for Trial by Jury by AROOSTOOK COUNTY, SHAWN D GILLEN. (MARCHESI, PETER) (Entered: 02/07/2019)
52 ORDER re 47 Motion for Order consolidating the preliminary injunction hearing with trial on the merits. I hereby ORDER that the hearing on the Plaintiff's motion for a preliminary injunction is conditionally consolidated with trial on the merits. The parties should prepare for and proceed during the hearing as they would for a bench trial on the merits. As part of their post−hearing briefs due February 22, 2019, the parties will address whether the Defendants are entitled to a jury trial on the merits in this action. Should the Court determine that the Defendants are entitled to a jury trial, the Court will schedule that proceeding. By JUDGE NANCY TORRESEN. (mnw) (Entered: 02/07/2019)
53 RESPONSE in Opposition re 47 MOTION for Order consolidating the preliminary injunction hearing with trial on the merits filed by AROOSTOOK COUNTY, SHAWN D GILLEN. Reply due by 2/21/2019. (MARCHESI, PETER) (Entered: 02/07/2019)
54 Exhibit List (Second Amended) by AROOSTOOK COUNTY, SHAWN D GILLEN.. (MARCHESI, PETER) (Entered: 02/08/2019)
55 RESPONSE in Opposition re 43 MOTION in Limine filed by BRENDA SMITH. Reply due by 2/22/2019. (BOND, EMMA) (Entered: 02/08/2019)
Reset Deadlines: Attorney JOEL K. GOLOSKIE shall register for the District of Maine's Electronic Case Filing (ECF) System by 2/15/2019. Registration Forms are available on the Court's website http://www.med.uscourts.gov/ecf−registration under the Electronic Case Files, ECF Registration Section. (slg) (Entered: 02/08/2019)
56 RESPONSE in Opposition re 40 MOTION in Limine to exclude testimony from James Foss and limit testimony from Shawn Gillen filed by AROOSTOOK COUNTY, SHAWN D GILLEN. Reply due by 2/22/2019. (MARCHESI, PETER) (Entered: 02/08/2019)
57 RESPONSE in Opposition re 42 MOTION in Limine to exclude Audie Horne and find Dr. Conner and KVHC unavailable under Rule 32(a)(4)(B) filed by AROOSTOOK COUNTY, SHAWN D GILLEN. Reply due by 2/22/2019. (Attachments: # 1 Exhibit A − Subpoena to Claudette Humphrey)(MARCHESI, PETER) (Entered: 02/08/2019)
58 OBJECTION to 45 Deposition Designation filed by AROOSTOOK COUNTY, SHAWN D GILLEN. Responses due by 2/22/2019. (MARCHESI, PETER) (Entered: 02/08/2019)
59 DEPOSITION DESIGNATION (Second Amended) of Kathadin Valley Health Center by AROOSTOOK COUNTY, SHAWN D GILLEN. (MARCHESI, PETER) (Entered: 02/08/2019)
60 DEPOSITION of Katahdin Valley Health Center taken on January 30, 2019 filed by AROOSTOOK COUNTY, SHAWN D GILLEN. (MARCHESI, PETER) (Entered: 02/08/2019)
61 DEPOSITION DESIGNATION of David Conner by AROOSTOOK COUNTY, SHAWN D GILLEN. (MARCHESI, PETER) (Entered: 02/08/2019)
62 DEPOSITION of David Conner taken on February 6, 2019 filed by AROOSTOOK COUNTY, SHAWN D GILLEN. (MARCHESI, PETER) (Entered: 02/08/2019)
63 SECOND AMENDED DEPOSITION DESIGNATION of David Conner, M.D. by BRENDA SMITH. (Attachments: # 1 Designated Deposition Testimony of Conner)(HEIDEN, ZACHARY) Modified on 2/8/2019 to reflect this is second amended disposition designation (slg). (Entered: 02/08/2019)
64 ***FILED IN ERROR*** NOTICE of Appearance by JOEL K. GOLOSKIE on behalf of MAINE ASSOCIATION OF PSYCHIATRIC PHYSICIANS, MAINE MEDICAL ASSOCIATION, NORTHERN NEW ENGLAND SOCIETY OF ADDICTION MEDICINE (GOLOSKIE, JOEL) Modified on 2/8/2019 to indicate it was filed in error and was refiled at ECF #66 (slg). (Entered: 02/08/2019)

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02/08/2019 02/08/2019 02/08/2019 02/08/2019 02/08/2019 02/08/2019 02/08/2019 02/08/2019 02/09/2019 02/09/2019 02/09/2019 02/10/2019
02/10/2019

65 CERTIFICATION for Admission Pro Hac Vice of Megan Thomson filed by JOEL K. GOLOSKIE on behalf of MAINE ASSOCIATION OF PSYCHIATRIC PHYSICIANS, MAINE MEDICAL ASSOCIATION, NORTHERN NEW ENGLAND SOCIETY OF ADDICTION MEDICINE (Total admission fee $ 100 receipt number 0100−1972833.) (GOLOSKIE, JOEL) (Entered: 02/08/2019)
66 CERTIFICATION for Admission Pro Hac Vice of JOEL K. GOLOSKIE filed by JOEL K. GOLOSKIE on behalf of MAINE ASSOCIATION OF PSYCHIATRIC PHYSICIANS, MAINE MEDICAL ASSOCIATION, NORTHERN NEW ENGLAND SOCIETY OF ADDICTION MEDICINE (Total admission fee $ 100 receipt number 0100−1972842.) (GOLOSKIE, JOEL) (Entered: 02/08/2019)
67 OBJECTION to 63 Deposition Designation filed by AROOSTOOK COUNTY, SHAWN D GILLEN. Responses due by 2/22/2019. (MARCHESI, PETER) (Entered: 02/08/2019)
68 NOTICE of Docket Entry Modification regarding 64 Notice of Appearance. The docket entry was modified by the Clerk's Office to indicate it was filed in error. It was refiled at ECF #66. (slg) (Entered: 02/08/2019)
69 OBJECTION to 60 Deposition, 59 Deposition Designation of Katahdin Valley Health Center filed by BRENDA SMITH. Responses due by 2/22/2019. (HEIDEN, ZACHARY) (Entered: 02/08/2019)
70 Third Party MOTION to Quash Subpoena of Witness Claudette Humphrey by CLAUDETTE HUMPHREYS Responses due by 3/1/2019. (Attachments: # 1 Supplement Declaration of Claudette Humphrey w Ex A)(HERZOG, PETER) (Entered: 02/08/2019)
Set Deadlines: Attorney Meagan L Thomson shall register for the District of Maine's Electronic Case Filing (ECF) System by 2/15/2019. Registration Forms are available on the Court's website http://www.med.uscourts.gov/ecf−registration under the Electronic Case Files, ECF Registration Section. (slg) (Entered: 02/08/2019)
71 ORDER reserving ruling 70 Motion to Quash. The parties are directed to file any response by midnight on 2/9/19. By JUDGE NANCY TORRESEN. (TORRESEN, NANCY) (Entered: 02/08/2019)
72 DEPOSITION DESIGNATION (Supplemental) of Alison Willette by BRENDA SMITH. (Attachments: # 1 Supplemental Designation of Willette)(HEIDEN, ZACHARY) (Entered: 02/09/2019)
73 RESPONSE in Opposition re 70 Third Party MOTION to Quash Subpoena of Witness Claudette Humphrey filed by AROOSTOOK COUNTY, SHAWN D GILLEN. Reply due by 2/25/2019. (Attachments: # 1 Exhibit 1 − Letter to Atty Herzog 1/29/19, # 2 Exhibit 2 − Email from Atty Herzog 1/30/19, # 3 Exhibit 3 − Letter to Atty Herzog 2/5/19)(MARCHESI, PETER) (Entered: 02/09/2019)
74 REPLY to Response to Motion re 70 Third Party MOTION to Quash Subpoena of Witness Claudette Humphrey filed by BRENDA SMITH. (BOND, EMMA) (Entered: 02/09/2019)
75 ORDER granting in part and denying in part 70 Motion to Quash. Ms. Humphrey is not required to appear in Bangor on February 11 or 12, 2019. The Court reserves ruling on whether Ms. Humphrey must appear in Bangor on February 13, 2019 or thereafter. Counsel for all parties and the witness are directed to contact the Court's IT representative for this trial (Robert Guptill) to inquire about creating a video connection for Ms. Humphrey from her office computer. The parties are further directed to coordinate a time for Ms. Humphrey's testimony that will minimize disruption of her schedule. The Court will consider expanding the trial hours to accommodate the witness. The motion for sanctions is denied. By JUDGE NANCY TORRESEN. (TORRESEN, NANCY) (Entered: 02/10/2019)
76 DEPOSITION DESIGNATION (Plaintiff's Amended Designation) of David Conner, M.D. by BRENDA SMITH. (Attachments: # 1 Exhibit David Conner Deposition with highlighted testimony)(SOLEY, DAVID) (Entered: 02/10/2019)

Case: 1:18-cv-352 As of: 06/18/2019 02:36 PM EDT 11 of 16

02/10/2019
02/11/2019 02/11/2019 02/11/2019 02/11/2019 02/11/2019 02/11/2019 02/11/2019 02/11/2019 02/12/2019 02/12/2019 02/12/2019 02/13/2019 02/14/2019
02/15/2019 02/15/2019

77 MOTION to Amend 54 Exhibit List , Substitute Exhibits, and Admit Certain Exhibits Into Evidence by BRENDA SMITH Responses due by 3/4/2019. (Attachments: # 1 Exhibit Joint Trial Exhibit 17, # 2 Exhibit Joint Trial Exhibit 18)(SOLEY, DAVID). Added MOTION to Substitute Exhibits and MOTION to Admit Certain Exhibits on 2/11/2019 (mnw). (Entered: 02/10/2019)
78 Minute Entry for proceedings held before JUDGE NANCY TORRESEN: Motion Hearing begun re 9 MOTION for Preliminary Injunction filed by BRENDA SMITH. (Court Reporter: Tammy Martell) (slg) (Entered: 02/12/2019)
79 ORAL ORDER denying 40 Motion in Limine to Exclude Testimony as to James Foss. Ruling reserved as to Shawn Gillen. By JUDGE NANCY TORRESEN. (slg) (Entered: 02/12/2019)
80 ORAL ORDER finding 42 Motion in Limine moot as to Audie Horne, reserving ruling as to KVHC, and the Court finds Dr. Conner unavailable. By JUDGE NANCY TORRESEN. (slg) (Entered: 02/12/2019)
81 ORAL ORDER reserving ruling on 43 Motion in Limine as the admission of evidence related to the opioid crisis and overruled as to the admission of testimony from Dr. Conner to the extent it constituted expert testimony. By JUDGE NANCY TORRESEN. (slg) (Entered: 02/12/2019)
82 ORAL ORDER reserving ruling as to 58 Objection to #45 Deposition Designation. By JUDGE NANCY TORRESEN. (slg) (Entered: 02/12/2019)
83 ORAL ORDER overruling for reasons stated on the record 67 Objection to #63 Deposition Designation of Dr. David Conner. By JUDGE NANCY TORRESEN. (slg) Modified on 2/12/2019 text corrected to reflect the deposition designation to be Dr. David Conner, not KVHC (slg). (Entered: 02/12/2019)
84 ORAL ORDER reserving ruling 69 Objection to #60 Deposition and #59 Deposition Designation of Katahdin Valley Health Center. By JUDGE NANCY TORRESEN. (slg) (Entered: 02/12/2019)
85 ORAL ORDER granting 77 Motion to Amend #54 Exhibit List, Substitute Exhibits, and Admit Certain Exhibits into Evidence. By JUDGE NANCY TORRESEN. (slg) (Entered: 02/12/2019)
86 ORAL ORDER overruling 58 Objection to #45 Deposition Designation. By JUDGE NANCY TORRESEN. (slg) (Entered: 02/12/2019)
87 NOTICE of Docket Entry Modification regarding 83 Order on Objection. This was modified by the Clerk's Office to correct the deposition designation to be Dr. David Conner, not KVHC. (slg) (Entered: 02/12/2019)
88 Minute Entry for proceedings held before JUDGE NANCY TORRESEN: Motion Hearing continued re 9 MOTION for Preliminary Injunction filed by BRENDA SMITH. (Court Reporter: Tammy Martell) (slg) (Entered: 02/13/2019)
89 Minute Entry for proceedings held before JUDGE NANCY TORRESEN: Motion Hearing continued re 9 MOTION for Preliminary Injunction filed by BRENDA SMITH. (Court Reporter: Tammy Martell) (slg) (Entered: 02/13/2019)
90 Minute Entry for proceedings held before JUDGE NANCY TORRESEN: Motion Hearing continued re 9 MOTION for Preliminary Injunction filed by BRENDA SMITH. The following deadlines were set for the reasons stated on the record: post−trial briefs due by 2/22/2019 with a 25 page limit. Responses to post−trial brief due by 2/27/2019, with a 10 page limit. (Court Reporter: Tammy Martell) (slg) (Entered: 02/14/2019)
91 Minute Entry for proceedings held before JUDGE NANCY TORRESEN: Motion Hearing concluded re 9 MOTION for Preliminary Injunction filed by BRENDA SMITH. (Court Reporter: Tammy Martell) (slg) (Entered: 02/15/2019)
92 ORAL MOTION for partial Judgment pursuant to Rule 52 by BRENDA SMITH (slg) (Entered: 02/15/2019)

Case: 1:18-cv-352 As of: 06/18/2019 02:36 PM EDT 12 of 16

02/15/2019 02/15/2019 02/15/2019 02/19/2019 02/19/2019
02/19/2019
02/20/2019 02/21/2019 02/22/2019
02/22/2019

93 ORAL ORDER denying 92 Motion for Partial Judgment for the reasons stated on the record By JUDGE NANCY TORRESEN. (slg) (Entered: 02/15/2019)
94 Court Exhibit List from Evidentiary Hearing re Motion for Preliminary Injunction held on 2/11/19 to 2/15/19 (Exhibits listed on the Court Exhibit List are not remotely electronically available). (slg) Main Document 94 replaced on 2/25/2019 to add hearing type and remove certificate of service page. (Entered: 02/15/2019)
95 Court Witness List from Evidentiary Hearing re Motion for Preliminary Injunction held on 2/11/19 to 2/15/19. (slg) (Entered: 02/15/2019)
Reset Deadlines: Attorney Meagan L. Thomson, Esq shall register for the District of Maine's Electronic Case Filing (ECF) System by 2/25/2019. Registration Forms are available on the Court's website http://www.med.uscourts.gov/ecf−registration under the Electronic Case Files, ECF Registration Section. (slg) (Entered: 02/19/2019)
96 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings Motion For Preliminary Injunction held on February 11, 2019 before Judge Nancy Torresen. Court Reporter/Transcriber: Tammy Martell, Telephone Number: 207.272.5566. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.med.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. Release of Transcript Restriction set for 5/20/2019. (MARTELL, TAMMY) (Entered: 02/19/2019)
97 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings Motion For Preliminary Injunction held on February 12, 2019 before Judge Nancy Torresen. Court Reporter/Transcriber: Tammy Martell, Telephone Number: 207.272.5566. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.med.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. Release of Transcript Restriction set for 5/20/2019. (MARTELL, TAMMY) (Entered: 02/19/2019)
98 MOTION for Leave to File Separate Memorandum by AROOSTOOK COUNTY, SHAWN D GILLEN Responses due by 3/13/2019. (MARCHESI, PETER) (Entered: 02/20/2019)
99 ORDER granting 98 Motion for Leave to File a Separate Memorandum. Defendants' memorandum shall be no more than five (5) pages. By JUDGE NANCY TORRESEN. (MMB) (Entered: 02/21/2019)
100 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings Motion For Preliminary Injunction held on February 13, 2019 before Judge Nancy Torresen. Court Reporter/Transcriber: Tammy Martell, Telephone Number: 207−272−5566. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.med.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. Release of Transcript Restriction set for 5/23/2019. (MARTELL, TAMMY) (Entered: 02/22/2019)
101 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings Evidentiary Hearing On Motion For Preliminary Injunction held on February 14, 2019 before Judge Nancy Torresen. Court Reporter/Transcriber: Tammy Martell, Telephone Number: 207−272−5566. NOTICE RE REDACTION OF TRANSCRIPTS: The

Case: 1:18-cv-352 As of: 06/18/2019 02:36 PM EDT 13 of 16

02/22/2019
02/22/2019 02/22/2019
02/22/2019 02/25/2019 02/25/2019 02/26/2019 02/27/2019 02/28/2019 02/28/2019 02/28/2019 02/28/2019 03/06/2019

parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.med.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. Release of Transcript Restriction set for 5/23/2019. (MARTELL, TAMMY) (Entered: 02/22/2019)
102 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings Evidentiary Hearing On Motion For Preliminary Injunction held on February 15, 2019 before Judge Nancy Torresen. Court Reporter/Transcriber: Tammy Martell, Telephone Number: 207−272−5566. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.med.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. Release of Transcript Restriction set for 5/23/2019. (MARTELL, TAMMY) (Entered: 02/22/2019)
103 BRIEF on Plaintiff's Request for Preliminary Injunction, et al by AROOSTOOK COUNTY, SHAWN D GILLEN. (MARCHESI, PETER) (Entered: 02/22/2019)
104 RESPONSE in Opposition re 31 MOTION for Leave to File Amici Curiae Brief in Support of Plaintiff's Motion for Preliminary Injunction, 36 MOTION for Leave to File Amici Brief in Support of Plaintiff's Motion for a Preliminary Injunction filed by AROOSTOOK COUNTY, SHAWN D GILLEN. Reply due by 3/8/2019. (MARCHESI, PETER) (Entered: 02/22/2019)
105 TRIAL BRIEF in support of injunctive relief by BRENDA SMITH. (BOND, EMMA) (Entered: 02/22/2019)
106 NOTICE of Docket Entry Modification regarding 94 Court Exhibit List. The Clerk's Office replaced the main document to add the hearing type and remove the certificate of service page. (slg) (Entered: 02/25/2019)
107 NOTICE/CORRESPONDENCE Re: Correction of Citation by AROOSTOOK COUNTY, SHAWN D GILLEN (MARCHESI, PETER) (Entered: 02/25/2019)
108 AMENDED Court Exhibit List from Evidentiary Hearing re Motion for Preliminary Injunction held on 2/11/19 to 2/15/19 (Exhibits listed on the Court Exhibit List are not remotely electronically available). This list was amended to reflect that Plaintiff Exhibit 72 was admitted on 2/15/19.(slg) (Entered: 02/26/2019)
109 TRIAL BRIEF REPLY by BRENDA SMITH. (HEIDEN, ZACHARY) (Entered: 02/27/2019)
110 MOTION to Extend Time to File Reply Brief by AROOSTOOK COUNTY, SHAWN D GILLEN Responses due by 3/21/2019. (MARCHESI, PETER) (Entered: 02/28/2019)
111 Without need for a response, I ORDER the 110 Motion to Extend Time to be Granted. By JUDGE NANCY TORRESEN. (MMB) (Entered: 02/28/2019)
Set Deadlines/Hearings: Per Order #111, Defendant's reply brief due by 2/28/2019. (slg) (Entered: 02/28/2019)
112 REPLY TO PLAINTIFF'S POST−TRIAL MEMORANDUM filed by AROOSTOOK COUNTY, SHAWN D GILLEN. (MARCHESI, PETER) Modified on 3/1/2019 to clean up text (mnw). (Entered: 02/28/2019)
113 REPLY to Response to Motion re 31 MOTION for Leave to File Amici Curiae Brief in Support of Plaintiff's Motion for Preliminary Injunction filed by PUBLIC HEALTH SCHOLARS. (LELAND, BRETT) (Entered: 03/06/2019)

Case: 1:18-cv-352 As of: 06/18/2019 02:36 PM EDT 14 of 16

03/21/2019
03/21/2019 03/22/2019 03/27/2019 03/27/2019
03/28/2019 04/03/2019
04/03/2019
04/03/2019
04/04/2019 04/04/2019 04/05/2019

114 ORDER reserving ruling on 39 Motion to Seal trial exhibit and testimony of childhood trauma. Plaintiff's counsel is directed to provide, under seal, a proposed redacted transcript within seven days. By JUDGE NANCY TORRESEN. (mnw) (Entered: 03/21/2019)
Set Deadlines − Per Order #114: Plaintiff's counsel to provide, under seal, a proposed redacted transcript by 3/28/2019. (mnw) (Entered: 03/21/2019)
115 WITHDRAWAL of : 39 (Document sealed from public view) MOTION to Seal trial exhibit and testimony of childhood trauma by BRENDA SMITH . (BOND, EMMA) (Entered: 03/22/2019)
116 ORDER granting 9 Motion for Preliminary Injunction By JUDGE NANCY TORRESEN. (MMB) (Entered: 03/27/2019)
117 ORDER denying 31 Motion for Leave to File Amicus Brief; denying 36 Motion for Leave to File Amicus Brief. Because the amicus briefs contain facts not in evidence, I have given them no weight in my determination. The motions for leave to file amicus briefs are denied. By JUDGE NANCY TORRESEN. (MMB) (Entered: 03/27/2019)
Set Deadlines: Ready for Trial on 6/4/2019. (slg) (Entered: 03/28/2019)
118 Emergency MOTION to Stay and MOTION for Expedited Briefing by AROOSTOOK COUNTY, SHAWN D GILLEN Responses due by 4/24/2019. (MARCHESI, PETER). Added MOTION for expedited briefing on 4/3/2019 (mjlt). (Entered: 04/03/2019)
119 NOTICE of Hearing on Motion 118 Emergency MOTION to Stay : Telephone Conference set for 4/4/2019 11:30 AM in Judge Torresen's Chambers before JUDGE NANCY TORRESEN. Attorney Marchesi to initiate the call to chambers. (mjlt) (Entered: 04/03/2019)
120 AMENDED NOTICE of Hearing on Motion Re: 118 Emergency MOTION to Stay and MOTION for Expedited Briefing: Hearing previously set as a Telephone Conference is reset as a Conference of Counsel to be held in Judge Torresen's Chambers before JUDGE NANCY TORRESEN on 4/4/2019 11:30 AM. (mlm) (Entered: 04/03/2019)
121 Minute Entry for proceedings held before JUDGE NANCY TORRESEN. Conference of Counsel held re: Emergency Motion #118. (Court Reporter: Tammy Martell) (mnw) (Entered: 04/04/2019)
122 ORAL ORDER denying for reasons stated on the record 118 Motion to Stay − By JUDGE NANCY TORRESEN. (mnw) (Entered: 04/04/2019)
123 INTERLOCUTORY APPEAL as to 116 Order on Plaintiff's Motion for a Preliminary Injunction filed by AROOSTOOK COUNTY, SHAWN D GILLEN . ( Filing fee $ 505 receipt number 0100−2001109.)

04/05/2019 04/05/2019

NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from our web site at http://www.med.uscourts.gov/forms/ MUST be completed and submitted to the Court of Appeals. Counsel should also register for a First Circuit CM/ECF Appellate Filer Account at https://pacer.psc.uscourts.gov/pscof/regWizard.jsf and review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/cmecf (MARCHESI, PETER) Modified on 4/5/2019 to clean up text (mnw). (Entered: 04/05/2019)
COPIES of Notice of Appeal Sent to Counsel Re: 123 Notice of Appeal, filed by SHAWN D GILLEN, AROOSTOOK COUNTY. (bfa) (Entered: 04/05/2019)
124 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings Conference of Counsel held on April 4, 2019 before Judge Nancy Torresen. Court Reporter/Transcriber: Tammy Martell, Telephone Number: 207.272.5566. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is

Case: 1:18-cv-352 As of: 06/18/2019 02:36 PM EDT 15 of 16

04/05/2019 04/05/2019 04/05/2019 04/05/2019 04/09/2019
04/11/2019
04/12/2019 04/12/2019 04/12/2019 04/15/2019 04/15/2019 04/16/2019 04/16/2019 04/18/2019 04/18/2019 04/18/2019 04/18/2019

located on our website at www.med.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. Release of Transcript Restriction set for 7/5/2019. (MARTELL, TAMMY) (Entered: 04/05/2019)
125 APPEAL COVER SHEET Re: 123 Notice of Appeal (bfa) (Entered: 04/05/2019)
126 CLERK'S CERTIFICATE Re: 123 Notice of Appeal. Documents sent to the U.S. Court of Appeals. (bfa) (Entered: 04/05/2019)
Abbreviated Appeal Record Transmitted Electronically to U.S. Court of Appeals re 123 Notice of Appeal (bfa) (Entered: 04/05/2019)
127 USCA Case Number 19−1340 for 123 Notice of Appeal filed by SHAWN D GILLEN, AROOSTOOK COUNTY. (jwr) (Entered: 04/05/2019)
128 TRIAL LIST: On Trial List for 6/4/2019. Final Pretrial Conference set for 4/30/2019 at 09:30 AM in Portland Visiting Judge's Chambers before MAGISTRATE JUDGE JOHN C. NIVISON. Final Pretrial Memo due by 4/16/2019.(slg) (Entered: 04/09/2019)
Reset Deadlines: Final Pretrial Memo due by 4/23/2019. Previous deadline was calculated in error. Final pretrial memos are due 7 days prior to Final Pretrial Conference and therefore the correct deadline is 4/23/2019. (slg) (Entered: 04/11/2019)
129 Consent MOTION to Amend Scheduling Order to extend trial ready date to August 2019 by BRENDA SMITH Responses due by 5/3/2019. (BOND, EMMA) (Entered: 04/12/2019)
130 ORDER granting 129 Motion to Amend Scheduling Order to extend trial ready date to August 2019 − By JUDGE NANCY TORRESEN. (mnw) (Entered: 04/12/2019)
Reset Deadlines − Per Order #130: Ready for Trial on 8/6/2019. New final pretrial conference and final pretrial memo deadlines will be established upon publication of the August 2019 trial list. (mnw) (Entered: 04/12/2019)
131 MOTION for Joel K. Goloskie to Withdraw as Attorney by MAINE MEDICAL ASSOCIATION (O'MEARA, RICHARD) Modified on 4/16/2019 to change event type to Motion to Withdraw (mnw). (Entered: 04/15/2019)
132 MOTION for Meagan L. Thomson to Withdraw as Attorney by MAINE MEDICAL ASSOCIATION (O'MEARA, RICHARD) Modified on 4/16/2019 to change event type to Motion to Withdraw (mnw). (Entered: 04/15/2019)
133 ORDER granting 131 Motion to Withdraw as Attorney. Attorney Goloskie is withdrawn as counsel. By MAGISTRATE JUDGE JOHN C. NIVISON. (NIVISON, JOHN) (Entered: 04/16/2019)
134 ORDER granting 132 Motion to Withdraw as Attorney. Attorney Thomson is withdrawn as counsel. By MAGISTRATE JUDGE JOHN C. NIVISON. (NIVISON, JOHN) (Entered: 04/16/2019)
135 MOTION by Attorney Colette McCrone to Withdraw as Attorney by PUBLIC HEALTH SCHOLARS Responses due by 5/9/2019. (LELAND, BRETT) (Entered: 04/18/2019)
136 MOTION by Attorney Adam Axler to Withdraw as Attorney by PUBLIC HEALTH SCHOLARS Responses due by 5/9/2019. (LELAND, BRETT) (Entered: 04/18/2019)
137 MOTION by Attorney Howard Sklamberg to Withdraw as Attorney by PUBLIC HEALTH SCHOLARS Responses due by 5/9/2019. (LELAND, BRETT) (Entered: 04/18/2019)
138 MOTION by Attorney Brett Leland to Withdraw as Attorney by PUBLIC HEALTH SCHOLARS Responses due by 5/9/2019. (LELAND, BRETT) (Entered: 04/18/2019)

Case: 1:18-cv-352 As of: 06/18/2019 02:36 PM EDT 16 of 16

04/19/2019 04/19/2019 04/19/2019 04/19/2019 04/30/2019 04/30/2019 05/21/2019 06/10/2019 06/12/2019
06/12/2019
06/17/2019 06/17/2019

139 ORDER granting 135 Motion to Withdraw as Attorney. Attorney McCrone is withdrawn as counsel. By MAGISTRATE JUDGE JOHN C. NIVISON. (NIVISON, JOHN) (Entered: 04/19/2019)
140 ORDER granting 136 Motion to Withdraw as Attorney. Attorney Axler is withdrawn as counsel. By MAGISTRATE JUDGE JOHN C. NIVISON. (NIVISON, JOHN) (Entered: 04/19/2019)
141 ORDER granting 137 Motion to Withdraw as Attorney. Attorney Sklamberg is withdrawn as counsel. By MAGISTRATE JUDGE JOHN C. NIVISON. (NIVISON, JOHN) (Entered: 04/19/2019)
142 ORDER granting 138 Motion to Withdraw as Attorney. Attorney Leland is withdrawn as counsel. By MAGISTRATE JUDGE JOHN C. NIVISON. (NIVISON, JOHN) (Entered: 04/19/2019)
143 Opinion of USCA Re: 123 Notice of Appeal filed by SHAWN D GILLEN, AROOSTOOK COUNTY. Check for Receipt of Mandate on 5/30/2019. (mnw) (Entered: 05/01/2019)
144 JUDGMENT of USCA re 123 Notice of Appeal. Check for Receipt of Mandate on 5/30/2019. (mnw) (Entered: 05/01/2019)
145 MANDATE of USCA as to 123 Notice of Appeal filed by SHAWN D GILLEN, AROOSTOOK COUNTY (slg) (Entered: 05/22/2019)
146 TRIAL LIST:. On Trial List for 8/6/2019. Final Pretrial Conference set for 7/8/2019 11:00 AM in Magistrate Judge Nivison's Chambers before MAGISTRATE JUDGE JOHN C. NIVISON. Final Pretrial Memo due by 7/1/2019.(jwr) (Entered: 06/10/2019)
147 MOTION for Order to dismiss merits as moot and set briefing for fee petition by BRENDA SMITH Responses due by 7/3/2019. (Attachments: # 1 Attachment A − State Court Order)(BOND, EMMA). Added MOTION to set briefing for fee petition on 6/12/2019 (mnw). (Entered: 06/12/2019)
Reset Deadlines as to 147 MOTION for Order to dismiss merits as moot and MOTION to set briefing for fee petition : Expedited briefing requested by U.S. District Judge Nancy Torresen − Response due by 6/17/2019. No Reply Permitted. (mnw) (Entered: 06/12/2019)
148 RESPONSE to Motion re 147 MOTION for Order to dismiss merits as moot MOTION to set briefing for fee petition filed by AROOSTOOK COUNTY, SHAWN D GILLEN. Reply due by 7/1/2019. (MARCHESI, PETER) (Entered: 06/17/2019)
149 NOTICE OF HEARING re 147 MOTION for Order to dismiss merits as moot and MOTION to set briefing for fee petition : Telephone Conference set for 6/18/2019 at 10:00 AM before JUDGE NANCY TORRESEN. (mnw) (Entered: 06/17/2019)

 
 Case 1:18-cv-00352-NT Document 1 Filed 09/06/18 Page 1 of 12 PageID #: 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

BRENDA SMITH,

Civil Action No.

Plaintiff, v.

AROOSTOOK COUNTY; and SHAWN D. GILLEN, Chief Deputy and Acting Aroostook County Sheriff,

Defendants.

COMPLAINT (JURY DEMAND AND INJUNCTIVE RELIEF REQUESTED)

Plaintiff Brenda Smith complains against Defendant Aroostook County, and Defendant Shawn D. Gillen, Chief Deputy and Acting Aroostook County Sheriff (collectively, “Defendants”):
INTRODUCTION 1. Aroostook County and the Aroostook County Sheriff’s Department, which is overseen by Chief Deputy Gillen, routinely and systematically fail to provide adequate medical care to those in their custody. Plaintiff Smith files this lawsuit to ensure she is able to receive the care she needs. 2. Ms. Smith suffers from opioid use disorder, a chronic brain disease. She has been in recovery for almost ten years and has done everything in her power to remain in recovery. A big part of her treatment has been medication-assisted treatment (“MAT”), which is the standard of care for opioid use disorder. As part of her MAT, Ms. Hodgkin takes a maintenance dosage of

Case 1:18-cv-00352-NT Document 1 Filed 09/06/18 Page 2 of 12 PageID #: 2
buprenorphine, which operate to block opioid receptors in the brain, suppressing drug cravings and withdrawal symptoms.
3. There is substantial medical consensus that MAT is the standard of care for opioid use disorder. Nonetheless, the Aroostook County Sheriff’s Office and Maine Department of Corrections both have policies prohibiting MAT for opioid use disorder, even for those who are presently taking prescribed buprenorphine prescribed by their doctor, like Ms. Hodgkin.
4. Ms. Hodgkin will enter the Defendants’ care when she is required to report to prison on September 7, 2018.
5. Defendants’ policies will force Ms. Smith into acute withdrawal, which is extremely painful and carries a heightened risk for numerous serious medical conditions. Forced withdrawal could also trigger relapse, leading to complications such as overdose and death.
6. The Defendants’ denial of necessary medical care to Ms. Smith violates her right to be free from discrimination based upon her disability as guaranteed by the Americans with Disabilities Act. Further, Defendants’ deliberate indifference to Ms. Smith’s suffering and longterm consequences of forced withdrawal violate her constitutional right to be free from cruel and unusual punishment as guaranteed by the Eighth Amendment to the United States Constitution.
7. Ms. Smith seeks compensatory, declaratory and injunctive relief to enjoin the Defendants to provide her with necessary medical care and prevent suffering.
PARTIES 8. Plaintiff Brenda Smith is a resident of Madawaska, Maine. 9. Defendant Shawn D. Gillen is the Chief Deputy and Acting Sheriff of the Aroostook County Sheriff’s Department. As such, he is the legal custodian of all prisoners
2

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housed at Aroostook County Jail and is responsible for the safe, secure, and humane treatment of those prisoners, including medical care. Chief Deputy Gillen is sued in his official capacity.
10. At all times relevant to this complaint, Chief Deputy Gillen was acting under color of state law.
11. Defendant Aroostook County is a political subdivision of the State of Maine. JURISDICTION
12. This action seeks to vindicate rights guaranteed by the Eighth Amendment to the United States Constitution, pursuant to 42 U.S.C. § 1983.
13. This action is also brought pursuant to Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131-12134.
14. This Court has original jurisdiction over this action pursuant to 28 U.S.C. § 1331, because this action arises under federal law. Jurisdiction is also authorized pursuant to 28 U.S.C. § 1343(a)(3).
15. Venue is proper pursuant to 28 U.S.C. § 1391(b) because all the events and omissions giving rise to this action occurred within this judicial district and because the Defendants are subject to personal jurisdiction in this District.
FACTS Opioid Use Disorder Is a Serious Disability
16. Opioid use disorder is a chronic brain disease with potentially deadly complication Signs of opioid use disorder include craving, increasing tolerance to opioids, withdrawal symptoms, and a loss of control.
17. Like other chronic diseases, opioid use disorder often involves cycles of relapse and remission. Without treatment or other recovery, patients with opioid use disorder are
3

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frequently unable to control their use of opioids. Opioid use disorder is progressive and can result in disability or premature death.
18. There is an opioid epidemic in Maine, with an average of 1.14 overdose deaths per day reported in 2017. That figure marks an 11 percent increase in opioid overdose deaths over the previous year. As these figures show, opioid use disorder is a serious public health crisis in Maine.
19. Drug addiction is a “disability” under the Americans With Disabilities Act. See 42 U.S.C. §§ 12102 and 12131(2); 28 C.F.R. § 35.108 (“The phrase physical or mental impairment includes, but is not limited to . . . drug addiction, and alcoholism.”).
20. Although the Americans with Disabilities Act does not apply to current active users of illegal drugs, it does apply to people like Mr. Smith who are participating in a supervised drug rehabilitation program. See 42 U.S.C. § 12210(a) & (b); Thompson v. Davis, 295 F.3d 890, 896 (9th Cir. 2002); Collings v. Longview Fiber Co., 63 F.3d 828, 831-32 (9th Cir. 1995). Medication-Assisted Treatment Provides Life-saving Treatment for Opioid Use Disorder
21. Medication-assisted treatment is the standard of care for opioid use disorder. Although some patients can treat their opioid use disorder using other methods, most patients need medication-assisted treatment (“MAT”) to achieve long-term recovery.1
22. MAT is an opioid treatment that combines medication and counseling. Two medications used in MAT are methadone and buprenorphine. Both have been approved by the United States Food and Drug Administration for treatment of opioid dependence.
1 Frequently Asked Questions about Opioid Use Disorder and IMAT, MaineHealth, https://mainehealth.org//media/mainehealth/pdfs/opioids/frequently-asked-questions-about-opioid-use-disorder-and-imat.pdf?la=en (last visited August 28, 2018).
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23. The results of treatment with MAT are dramatically superior to other treatment options, with studies showing improved retention in treatment, abstinence from illicit drugs, and decreased mortality.
24. The medication element of MAT, including buprenorphine and methadone, helps to prevent the “high” of taking opioids, suppresses withdrawal, and reduces cravings.
25. Methadone is a full agonist at the opioid receptor, and buprenorphine is a partial agonist. In other words, methadone activates the opioid receptor at 100 percent, and buprenorphine activates opioid receptors approximately 20 to 40 percent.
26. Both buprenorphine and methadone bind tightly to the opioid receptor so that someone taking one of these medications is not able to feel a “high” from taking heroin or fentanyl because those drugs are not able to activate the opioid receptor. Both methadone and buprenorphine also facilitate extinction learning, because patients learn that they will not get the same “high” from taking drugs like heroin or fentanyl.
27. Buprenorphine and methadone have been clinically proven to reduce opioid use more than (1) no treatment, (2) outpatient treatment without medication, (3) outpatient treatment with placebo medication, and (4) detoxification only.
28. MAT is far more effective than detoxification alone, which produces very poor outcomes. For example, one study documented the treatment outcomes from a detoxification facility, and showed (1) a 29 percent relapse on the day of discharge, (2) a 60 percent relapse after one month, and (3) a success rate of between only 5 to 10 percent after one year.
29. Forced detoxification is especially dangerous for people with opioid use disorder who are incarcerated. Prisoners with opioid use disorder have a heightened risk for relapse and
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overdose, with overdose and death especially high in the two-week period immediately

following release.

30. Numerous authorities have recognized the serious risks of the opioid crisis and

recommended providing MAT in prison to help address those risks.

31. For example, the President’s Commission on Combating Drug Addiction and the

Opioid Crisis found that “[i]n the weeks following release from jail or prison, individuals with or in recovery from [opioid use disorder] are at elevated risk of overdose and associated fatality.”2

32. As the commission further recognized, “MAT has been found to be correlated

with reduced risk of mortality in the weeks following release and in supporting other positive

outcomes.” Id. “A large study of individuals with [opioid use disorder] released from prison

found that individuals receiving MAT were 75% less likely to die of any cause and 85% less

likely to die of drug poisoning in the first month after release.” Id.

33. The American Society of Addiction Medicine, the leading professional society in

the country on addiction medicine, also recommends treatment with MAT for people with opioid use disorder in the criminal justice system.3

34. The National Commission on Correctional Health Care has also adopted a

position statement calling for the “continuation of prescribed medications for substance use disorders,” such as buprenorphine and methadone.4

35. The United States Department of Justice’s Adult Drug Court Discretionary Grant Program has gone even further, requiring grantees to permit the use of MAT.5

2

Final

Report

72

(2017),

available

at

https://www.whitehouse.gov/sites/whitehouse.gov/files/images/Final_Report_Draft_11-1-2017.pdf

3 Kyle Kampman & Margaret Jarvis, American Society of Addiction Medicine (ASAM) National Practice

Guideline for the Use of Medications in the Treatment of Addiction Involving Opioid Use, 9 J. Addict Med. 1, 8

(2015), available at FILL IN

4 National Commission on Correction Health Care, Substance Use Disorder Treatment for Adults and

Adolescents, NCCHC (Oct. 23, 2016), available at https://www.ncchc.org/substance-use-disorder-treatment-

for-adults-and-adolescents.

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36. As recognized by these authorities, opioid use disorder is a chronic relapsing condition that requires medically appropriate treatment just like other chronic diseases. Once patients start on MAT, they need to be maintained on that treatment under medical supervision to give them the best chances of success.
37. Forced withdrawal is not medically appropriate for patients being treated with MAT. It disrupts their treatment plan, leading to a seven-fold decrease in continuing MAT after release. Death is three times as likely for people out of treatment versus when in treatment.
38. Numerous jails and prisons follow medical and policy authorities and allow prisoners to continue with MAT during incarceration. Examples include Bernalilo County Metropolitan Detention Center (New Mexico); Rikers Island Correctional Facility (New York); Kings County Jail (Washington State); Orange County Jail (Florida).
39. The Rhode Island Department of Corrections makes medication-assisted treatment available to all its prisoners, even those (unlike Ms. Smith) who were not receiving MAT before being admitted to prison. Ms. Smith’s Medical History
40. Brenda Smith suffers from opioid use disorder. With the help of MAT, Ms. Smith has been in recovery for almost ten years and is not an active user of narcotics.
41. Ms. Smith is under presently the care of Dr. David Conner, M.D., a family medicine doctor whose practice includes the treatment of drug addiction.
42. As part of Ms. Smith’s treatment, Dr. Connor has continued her prescription of buprenorphine, which Ms. Smith takes orally, in the form of a sublingual pill. Ms. Smith takes 16 milligrams of buprenorphoine per day.
5 U.S. Dep’t of Justice, Adult Court Discretionary Grant Program FY 2018 Competitive Grant Announcement, OMB No. 1121-0329 (2018), available at https://www.bja.gov/funding/DrugCourts18.pdf.
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43. Buprenorphine has helped Ms. Smith remain clean and sober for almost ten years. 44. If Ms. Smith is abruptly withdrawn from her prescribed buprenorphine, she will enter acute withdrawal, which will create a potentially life-threatening crisis and place her at risk for numerous serious health conditions including suicide and overdose. The dangers of withdrawal are especially acute for Ms. Smith. 45. The physical symptoms of abrupt withdrawal will likely include severe body aches, nausea, shaking, sweating, dizziness, dehydration, and vomiting. 46. The psychological symptoms of withdrawal for Ms. Smith may include decompensation, severe depression, and suicidality. 47. Discontinuation of buprenorphine puts Ms. Smith at a substantially greater risk of relapse of opioid use disorder, which she has managed successfully for almost ten years. With a relapse of addiction would come the attendant danger of Ms. Smith becoming unable to control her cravings for opioids, potentially resulting in overdose and death. Defendants’ Policies Place Ms. Smith in Imminent Danger 48. Ms. Smith faces an imminent prison sentence at the Aroostook County Jail, where Defendants’ policies will force Ms. Smith into dangerous and potentially life-threatening withdrawal. 49. Ms. Smith pleaded guilty to charges in a criminal case in Aroostook County District Court. Ms. Smith was sentenced to forty (40) days imprisonment in Aroostook County Jail. 50. Aroostook County Jail provides necessary medical care to prisoners in its custody, except for prisoners who suffer from opioid use disorder. The Aroostook County Jail prohibits
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the use of MAT, even for individuals who suffer from opioid use disorder and are already undergoing treatment with MAT at the time of admission to prison or jail.
51. Chief Deputy Gillen oversees prisoners at Aroostook County Jail and is responsible for setting policy governing the treatment of prisoners, including their access to medical care.
52. It is the policy and custom of the Aroostook County Jail to prohibit prisoners from taking buprenorphine or any other forms of MAT.
53. Upon information and belief, it is the policy and custom of the Aroostook County Sheriff’s Office to forbid the medical staff and contractors at Aroostook County Jail from administering MAT to prisoners.
54. Ms. Smith has personal experience with being denied buprenorphine. She was previously incarcerated for seven days in the York County Jail and was denied access to buprenorphine. In this period she suffered painful and psychologically harmful withdrawal.
55. Defendant Commissioner Fitzpatrick is responsible for prisoners in Maine state custody.
56. Immediately after learning of Ms. Smith’s situation, counsel for Mr. Smith sent a letter dated August 29, 2018 to Assistant District Attorney Kari Wells Pluckett and District Attorney Todd Collins requesting that Ms. Smith either be provided with buprenorphine during her incarceration or be permitted to delay her admission to jail until after the resolution of a preliminary injunction motion in Smith v. Fitzpatrick, U.S. District Court for the District of Maine, Case No. 1:18-cv-288-NT, a related case espousing essentially identical issues.
57. Counsel for Ms. Smith consulted with ADA Wells Plucket and was advised to communicate direction with Commander Craig Clossey of the Aroostook County Jail.
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58. Between August 30, 2018 and September 5, 2018, Counsel for Ms. Smith contacted the Aroostook County Jail to find out whether she would be allowed to continue taking her medication in prison. She was told that the Maine Department of Corrections does not allow prisoners, except for pregnant prisoners, to be treated with buprenorphine or methadone.
59. Counsel for Ms. Smith was able to confer with Commander Clossey, but as of the filing of this complaint was unable to come to an arrangement through which either Ms. Smith would be permitted to remain on her buprenorphine medication or her admission to jail was delayed.
60. Accordingly, Ms. Smith remains in fear that she will undergo forced withdrawal upon admission to jail or prison on September 7, 2018.
FIRST CAUSE OF ACTION Eighth Amendment: Deliberate Indifference to Serious Medical Need 61. Plaintiff Brenda Smith reasserts and realleges the allegations in the preceeding paragraphs. 62. Defendants, while acting under color of state law, deliberate, purposefully, and knowingly deny Ms. Smith access to necessary medical treatment for her opioid use disorder, which is a serious medical need. 63. Denying Ms. Smith access to her prescribed maintenance dosage of buprenorphine will cause her physical and psychological suffering, will expose her to heightened risk for other serious medical conditions, and could trigger relapse into active addiction, potentially resulting in overdose and death. 64. As applied to Ms. Smith, the denial of treatment by Defendants amounts to deliberate indifference to a serious medical need, which is prohibited by the Eighth
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Amendment’s provision on cruel and unusual punishment. See, e.g., Farmer v. Brennan, 511 U.S. 825, 832 (1994); Davis v. Carter, 452 F.3d 686, 696 (7th Cir., 2006).
SECOND CAUSE OF ACTION Americans with Disabilities Act – Discrimination Against Qualified Individuals with
Disabilities 65. Plaintiff Brenda Smith reasserts and realleges the preceding paragraphs. Aroostook County Jail is a “public entity” subject to the Americans with Disabiliteis Act. See Pennsylvania Dep’t of Corrections v. Yeskey, 524 U.S. 206, 210 (1998). 66. Defendants Chief Deputy Gillen and Commissioner Fitzpatrick deny Ms. Smith the benefits of the jail’s and prison’s medical programs on the basis of Mr. Smith’s disability. 67. Defendants Chief Deputy Gillen and Commissioner Fitzpatrick refuse to make a reasonable accommodation for Ms. Smith by providing her with her prescribed maintenance dosage of buprenorphine during her incarceration, thereby discriminating against him on the basis of disability, even though accommodation would in no way alter the nature of the healthcare program. See Kiman v. New Hampshire Dep’t of Corrections, 451 F.3d 274, 283-84 (1st Cir. 2006)
PRAYER FOR RELIEF Wherefore, Brenda Smith, respectfully requests that this Honorable Court:
68. Issue an injunction ordering Defendants to provide Plaintiff with buprenorphine or an equivalent medication during the course of her incarceration.
69. Award Plaintiff monetary damages to fairly compensate her for her injuries, including for the denial of constitutional rights;
70. Award Plaintiff attorneys fees and costs;
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71. Grant such further relief as the Court may deem just and proper. DEMAND FOR A JURY TRIAL
Plaintiff Smith demands a jury for all issues so triable.

Dated: September 6, 2018

Respectfully Submitted,
/s/Peter Mancuso Peter Mancuso, Esq. Andrew Schmidt, Esq. Andrew Schmidt Law, PLLC 97 India St. Portland, Maine 04101 (207) 619-0884 peter@maineworkerjustice.com

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 Case 1:18-cv-00352-NT Document 116 Filed 03/27/19 Page 1 of 28 PageID #: 2331

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

BRENDA SMITH, Plaintiff,
v. AROOSTOOK COUNTY and SHAWN D. GILLEN in his official capacity as Sheriff of Aroostook County,
Defendants.

) ) ) ) ) Docket No. 1:18-cv-352-NT ) ) ) ) ) )

ORDER ON PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION Plaintiff Brenda Smith’s doctor has prescribed her a twice-daily dose of
buprenorphine as part of a medication-assisted treatment (“MAT”) program for her opioid use disorder. Ms. Smith brings this lawsuit against Defendant Aroostook County and against Defendant Shawn Gillen, in his official capacity as Sheriff of Aroostook County, alleging that the Defendants’ refusal to allow her to continue taking her medication during her impending 40-day term of incarceration at the Aroostook County Jail (the “Jail”) violates the Americans with Disabilities Act (“ADA”) and the Eighth Amendment. Before me is the Plaintiff’s motion for a preliminary injunction requiring the Defendants to provide her with access to her prescribed medication. Pl.’s Mot. for Prelim. Inj. (ECF No. 9). For the reasons that follow I GRANT the Plaintiff’s motion for a preliminary injunction.

Case 1:18-cv-00352-NT Document 116 Filed 03/27/19 Page 2 of 28 PageID #: 2332
FINDINGS OF FACT From February 11th to February 15th, 2019, I held an evidentiary hearing on the Plaintiff’s motion. I make the following findings of fact based on the testimony and exhibits presented during the hearing and on admissions made by the parties in their preliminary injunction filings. I. Diagnosis and Treatment of Ms. Smith’s Opioid Use Disorder Ms. Smith began abusing opioids at the age of 18. Tr. 41:10-11, 42:4-43:7.1 She recalls her use starting with prescribed medication, but quickly escalating into illicit use of hydrocodone, Percocet, morphine, and eventually heroin. Tr. 41:12-19, 66:5-20. Ms. Smith’s dependence left her unable to maintain employment or to care for her family, culminating in the loss of custody over her children. Tr. 39:4-7. In 2009, Ms. Smith’s doctor diagnosed her with opioid use disorder and prescribed her with Suboxone as part of an MAT program to treat that condition. Tr. 45:1-5, 48:14.2 In 2014, Ms. Smith’s provider switched her prescription to buprenorphine, which she continues to take to this day. Tr. 48:10-17. Ms. Smith’s current physician, Dr. David Conner, has prescribed her to take 8 milligrams of buprenorphine twice daily. Dr. Conner has attempted to taper Ms. Smith’s buprenorphine dosage on multiple occasions. Conner Dep. 21:1-8. Those efforts were

1

All “Tr.” citations refer to the official transcript of the preliminary injunction hearing, available

at ECF Numbers 96, 97, 100, 101, and 102. The cited page numbers refer to the page numbers of the

full, consecutively-paginated transcript.

2

Opioid use disorder is a chronic disease characterized by compulsive use of opioids and an

increasing need for additional doses over time that becomes damaging to a person’s life. Tr. 124:25-

125:2.

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not successful, and Ms. Smith’s maintenance dose of buprenorphine remains necessary. Conner Dep. 21:1-8, 22:22-23:2, 43:12-24, 54:11-20; Tr. 48:18-22. Ms. Smith’s condition is currently stable on her medication, and Dr. Conner considers her one of his success stories. Conner Dep. 34:11-13.
With the help of her medication, Ms. Smith has been in active recovery for her opioid use disorder for approximately ten years. During that time, Smith has regained custody of her four children, secured stable housing for her family, and obtained employment. Tr. 34:5-9, 35:19-36:4. She has earned her high school diploma and has begun to take college courses. Tr. 36:2-4, 330:5-14. Like many people with opioid use disorder, Ms. Smith’s recovery has not been entirely smooth, and in the early years she occasionally relapsed. Tr. 47:10-12, 69:18-70:7. However, it has been five years since her last use. Tr. 48:5-6.
In 2014, Ms. Smith was incarcerated in the York County Jail for seven days. Tr. 53:24-54:2. During that time, she was not allowed to continue taking her daily prescription of Suboxone. Tr. 53:18-23. Ms. Smith describes her ensuing withdrawal as the worst pain she has ever endured and recalls experiencing suicidal thoughts for the first time in her life. Tr. 54: 3-14,18-20. Although Ms. Smith returned to her provider and resumed her MAT the day after she left the York County Jail, she is personally aware that one of her cellmates, who did not return to treatment, overdosed and died shortly after her release. Tr. 54:21-56:22. II. Opioid Use Disorder Risks and Treatment in Correctional Facilities
Ms. Smith’s anecdote about her cellmate is consistent with broader national trends. Numerous governmental and health organizations have warned that opioid
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overdose death has reached crisis levels in the United States. Tr. 125:14-21; Pl.’s Ex. 98. In 2017, Maine’s overdose death rate reached a record high, exceeding the nationwide average and representing a greater year-on-year increase than the surrounding New England states. Tr. 670:9-14, 672:3-7; Pl.’s Ex. 62. Most of these deaths were caused by fentanyl, a powerful opioid that can be deadly even in minute doses and that has seen a surge in availability in recent years. Tr. 126:22-127:8, 127:9-14, 670:16-671:19, 673:16-674:8. Opioid dealers will routinely mix fentanyl into their product, leaving unwitting people to ingest or inject the more dangerous narcotic and die. Tr. 127:9-21, 671:3-671:7, 674:9-13. While Maine’s overall overdose death rate ticked down in 2018, the proportion of deaths from fentanyl increased. Tr. 673:16-674:8. Based on these statistics, the Plaintiff’s expert Dr. Jonathan Fellers opined that it is more dangerous than it has ever been to be using opioids. Tr. 674:913. And the risk of overdose death is even higher among recently-incarcerated people and others who have just undergone a period of detoxification, because opioid tolerance decreases in the absence of use. Tr. 149:10-150:22, 151:20-152:2, 679:3-15.
Given the well-documented risk of death associated with opioid use disorder, appropriate treatment is crucial. People who are engaged in treatment are three times less likely to die than those who remain untreated. Tr. 678:10-14; Pl.’s Ex. 72. For some people with opioid use disorder, MAT is essential for successful recovery. Tr. 129:11-16. Dr. Fellers estimated that less than five percent of his patients could achieve and maintain recovery through counseling or abstinence alone. Tr. 667:2124.
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A body of evidence has emerged that permitting MAT in correctional facilities offers substantial, and possibly essential, benefits to incarcerated people. One study of English correctional facilities found that treatment with buprenorphine or methadone was associated with an 80 to 85 percent reduction in post-release drugrelated mortality. Tr. 161:3-10; Pl.’s Ex. 82; see also Tr. 154:14-156:20; Pl.’s Ex. 77 (similar results from study of impact of MAT on post-release mortality in Australia). Participation in MAT during incarceration has also been associated with a reduced likelihood of in-custody deaths by overdose or suicide and an overall 75 percent reduction in all-cause in-custody mortality. Tr. 184:5-188:9, 1009:21-23, 1068-6-16; Pl.’s Ex. 79. And in a randomized, controlled trial conducted in the Rhode Island correctional system, incarcerated people who were permitted to continue taking their prescribed methadone were seven times more likely to continue treatment after release than were inmates who were forcibly withdrawn from MAT. Tr. 171:12-172:9, 176:13-20; Pl.’s Ex. 80.3 The evidence of MAT’s benefits has become so compelling that it would no longer be possible to conduct the kind of randomized trial that was

3

The Defendants’ expert Dr. Donald Kern pointed to several aspects of these studies that make

them imperfect sources from which to draw scientific conclusions relevant to the facts of this case. For

example, several of the studies involved methadone instead of buprenorphine, others did not

distinguish between individuals who had been on MAT when they entered prison and those who began

treatment while incarcerated, and some were hedged in their conclusions—finding only correlations

between observed trends rather than a causal link. On balance, however, these studies support the

inference that MAT, abruptly withdrawn, can lead to post-release issues including failure to return to

treatment, relapse, overdose, and death. See Tr. 178:13-25 (big picture takeaways of methadone

studies are instructive on buprenorphine because “they are both agonist therapies that work in a very

similar way”); Tr. 263:25-264:6 (“[T]he process of integrating the medical literature with clinical care

is one of taking broader principles than the evidence that’s available to us and applying it to the patient

in front of us, and it is never the case that you have an entire study of only the patient in front of

you.”); Tr. 1020:25-1021:15; 1062:8-18 (while studies did not allow a scientific conclusion that someone

going into jail for 40 days who is taken off MAT during that period would experience an increased risk

of overdose or death, the studies did support that inference).

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used in Rhode Island. Tr. 177:11-178:12, 680:15-24. As explained by Dr. Fellers, researchers would not consider it “ethically feasible to deny a group a medication that has such [a] proven track record at improving outcomes.” Tr. 680:20-24.
Despite this growing evidence, only a limited number of facilities in the United States have programs in place to routinely provide MAT to inmates. The Plaintiff’s witness Edmond Hayes, who developed and runs an MAT program at the Franklin County Jail in Massachusetts and who consults with other facilities about implementing such programs, offered some explanation of why this may be the case. Drawing on his experience working to encourage corrections personnel to put MAT programs in place, Mr. Hayes explained that law enforcement pushback often arises out of two interrelated fears: First, that opioid replacement medications are “drugs,” not medicine, and that “bad” people should not be given “drugs”; and second, that opioid replacement medications are sought-after contraband in correctional facilities, and it does not make sense to introduce more “drugs” into a facility. Tr. 605:2-17. III. Treatment of Opioid Use Disorder in Aroostook County Jail
The Jail generally prohibits inmates from continuing to use opioid replacements such as buprenorphine while they are incarcerated in the facility. Clossey Aff. ¶ 2 (ECF No. 14-4) (“Suboxone and its generic equivalent forms (hereafter ‘suboxone’) is prohibited in the Aroostook County Jail.”); Pl.’s Ex. 8; Pl.’s Ex. 95. The Jail has departed from this prohibition only in one instance, for a pregnant woman with opioid use disorder who had been prescribed MAT by her treating physician. Tr. 376:21-377:1; Willette Dep. 21:15-23, 72:2-5 (ECF No. 49). In that case, the Jail continued to provide the woman with her medication to avoid fetal harm. Tr. 835:11-
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16; Willette Dep. 37:14-21. All other individuals who have been prescribed MAT and who have been incarcerated in the Jail have been required to go undergo withdrawal. Willette Dep. 72:2-5; KVHC Dep. 15:9-12; see also Willette Dep. 34:3-14; 39:21-40:15, 75:14-25, 77:16-78:22, 123:24-25.
The Jail contracts with Katahdin Valley Health Center (“KVHC”) for the provision of medical services including management of medications. See Pl.’s Ex. 95. The Jail’s contract with KVHC includes a set of policies that govern provision of health services at the Jail. Pl.’s Ex. 95. Among these policies is the Jail’s opioid withdrawal protocol. The version of this protocol in effect when Ms. Smith was originally scheduled to report to the Jail stated that “[a]s we do not use opioid, or opioid replacements in the Aroostook County Jail, this protocol is designed to assist inmates during the withdrawal process.” Pl.’s Ex. 8 (emphasis added).4 The withdrawal protocol goes on to describe the steps that KVHC is to initiate “[i]f documented opioid use is found on entry.” Pl.’s Ex. 8. These steps include assessing the presence and severity of the patient’s withdrawal symptoms and, where indicated, providing the patient with medication that eases the symptoms of withdrawal. Pl.’s Ex. 8. As explained by Claudette Humphrey, who testified on behalf of KVHC, and by Alison Willette, a nurse employed by KVHC and the Defendants’ 30(b)(6) representative, the decision not to use opioid replacements in the Jail was made at the Jail’s direction, purportedly for security reasons. KVHC Dep. 27:18-22,

4

The protocol has been amended since the initiation of this litigation. It now states that “as we

do not regularly use opioid or opioid replacements in the Aroostook County Jail, this protocol is

designed to assist inmates during the withdrawal process.” Pl.’s Ex. 95 (emphasis added).

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72:21-73:17, 79:11-80:8, 81:6-17 (ECF No. 60); see also Willette Dep. 21:15-22:1, 41:18-42:3, 71:10-72:5.5
The withdrawal protocol is not a treatment for opioid use disorder. See KVHC Dep. 78:2-7; Defs.’ Post-Trial Br. 16 (ECF No. 103). The only treatment that the Jail offers for opioid use disorder is substance abuse counseling. Willette Dep. 122:5-23.6 Ms. Willette testified that she was unaware of opioid use disorder’s symptoms or the standard of care for opioid use disorder. Willette Dep. 93:8-24. When asked whether she was aware of studies suggesting that forced withdrawal from MAT can lead to long-term negative outcomes for patients with opioid use disorder, Ms. Willette not only answered in the negative but stated that she tends not to read studies because she “find[s] them boring.” Willette Dep. 99:13-19.7 Commander Craig Clossey, the Jail’s Administrator, was unfamiliar with the term “opioid use disorder” before the hearing in this action. Tr. 390:3-6.
In April of 2018, the Maine Office of Substance Abuse and Mental Health Services informed Cmdr. Clossey that the state had significant funds available to

5

Ms. Willette’s answers on cross-examination during her deposition tended to undercut some of

her answers on direct. Where her answers are contradictory, I credit Ms. Willette’s spontaneous

answers to the open-ended questions posed by Plaintiff’s counsel on direct examination rather than

her responses to leading questions on cross.

6

The Jail testified that Narcotics Anonymous meetings occur in the facility, and that the Jail

contracts with Aroostook Mental Health Services to provide individual and group counseling programs

to inmates with substance use disorders. Tr. 447:8-24; Willette Dep. 122:5-23. The exact nature and

intensity of the offered counseling services is not in evidence.

7

While Ms. Willette’s testimony displayed a lack of understanding of or interest in opioid use

disorder and MAT, I do not mean to lay the Jail’s actions in this case at her feet. From Ms. Willette’s

testimony, it is apparent that part of the reason that she did not educate herself about MAT and opioid

use disorder was that she was under the correct impression that the Jail does not allow MAT except

for pregnant inmates.

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implement an MAT program at the Jail. Tr. 467:1-6, 469:16-21. Cmdr. Clossey contacted the Jail’s medical providers, and they occasionally revisited the idea for several months without making forward progress. Tr. 467:7-470:3. Cmdr. Clossey indicated that the process was delayed because KVHC and Aroostook Mental Health Services (the Jail’s mental health services provider) had difficulty finding someone licensed to prescribe and administer buprenorphine. Tr. 467:7-470:3. However, Ms. Humphrey testified that KVHC offered to have one of its providers certified to prescribe buprenorphine in the Jail and that the Jail did not accept that proposal. KVHC Dep.13:5-14, 13:25-14:1, 35:11-14. As of Ms. Humphrey’s deposition on January 30, 2019, KVHC still had no personnel certified to prescribe buprenorphine. KVHC Dep. 13:8-10. IV. Ms. Smith’s Pending Incarceration at Aroostook County Jail
On December 24, 2017, Ms. Smith was using a self-checkout terminal at a Walmart when she noticed 40 dollars in change that another customer had failed to collect from the terminal. Tr: 57:12-58:10. Ms. Smith pocketed the money, completed her own transaction, and left. Tr. 58:4-58:10. Based on this conduct, Ms. Smith was later arrested and charged with theft. Tr. 57:4-13. Ms. Smith was convicted and sentenced to spend 40 days in the Aroostook County Jail. Tr. 56:25-7:5. While Ms. Smith was originally scheduled to report to the Jail on September 7, 2018, that surrender date was extended to April 1, 2019, to allow the further development of the case at bar.
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V. Defendants’ Denial of Ms. Smith’s Request to Continue Receiving Buprenorphine While Incarcerated Upon learning that Ms. Smith would be incarcerated at the Jail, her counsel
contacted the facility multiple times to ask whether she would be allowed to continue to take her buprenorphine. Two of counsel’s phone calls reached Cmdr. Clossey. Tr. 474:5-475:8. On both occasions, Cmdr. Clossey told counsel that it was unlikely Ms. Smith would be allowed to continue taking her medication, but that the decision rested with “medical” (that is, KVHC). Tr. 474:5-475:8. Cmdr. Clossey transferred counsel’s calls to KVHC. Tr. 474:5-475:8. When he reached KVHC, counsel repeated his question of how Ms. Smith’s need for buprenorphine would be handled while she was at the Jail. Ms. Willette, who took counsel’s call, informed him that Ms. Smith would undergo withdrawal and her symptoms would be treated in accordance with the Jail’s withdrawal protocol. Willett Dep. 123:15-124:3. This was the same information that Ms. Willette had previously given to any other opioid use disorder patient who called to ask if they could continue on MAT while at the Jail. Willette Dep. 75:14-25; see also Willette Dep. 77:16-78:22, 123:24-25; Tr. 499:6-19.8
Ms. Smith’s attorney also reached out to the Jail via fax. In the cover sheet of a letter faxed to Cmdr. Clossey on August 31, 2018, counsel asked Cmdr. Clossey to “please let me know if you need anything further in order to allow Ms. Smith to remain on her buprenorphine program when in your jail.” Pl.’s Ex. 5 at 1. The letter

8

On September 6, 2018, Cmdr. Clossey left counsel a voicemail stating that he had spoken about

Ms. Smith’s situation with Sheriff Gillen, and that Cmdr. Clossey would relate the contents of that

conversation to counsel on a later call. Tr. 500:8-22. Cmdr. Clossey eventually reconnected with

counsel, but he does not recall what they discussed. Tr. 500:20-25.

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itself was a statement from Dr. Conner that generally addressed Ms. Smith’s history of treatment with Suboxone and expressed concern about requiring a patient to withdraw from buprenorphine. Pl.’s Ex. 5 at 2.
Based on the evidence offered by the Plaintiff’s experts, the available scientific evidence, and Ms. Smith’s medical history, I find that forcing Ms. Smith to withdraw from her buprenorphine would cause her to suffer painful physical consequences and would increase her risk of relapse, overdose, and death. Tr. 131:24-132:14, 137:17138:25, 693:5-19.
PROCEDURAL HISTORY On September 6, 2018, the day before she was to report to the Jail, Ms. Smith filed this lawsuit along with a motion for a temporary restraining order or a preliminary injunction. Compl. (ECF No. 1); Mot. for TRO or PI (ECF No. 3). The parties conferred and secured an extension of Ms. Smith’s surrender date until January 14, 2019. See Order (ECF No. 12). The Plaintiff then withdrew her motion for a temporary restraining order, and the parties proceeded to brief the motion for a preliminary injunction. On December 3, 2018, the parties informed me that the Maine District Court again had allowed Ms. Smith to extend her surrender date, this time until April 1, 2019. Consent Mot. for Scheduling Order (ECF No. 20). To allow the parties to use this additional time for discovery, I set the motion for a preliminary injunction for a five-day evidentiary hearing beginning on February 11, 2019. Notice of Hearing (ECF No. 23).
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On January 31, 2019, I held a pre-hearing conference of counsel. (ECF No. 37.) During that conference, counsel for the Plaintiff stated that she wished to withdraw her jury demand and requested that the upcoming preliminary injunction hearing be consolidated with a bench trial on the merits. The Defendants objected, arguing that the Plaintiff could not now withdraw her jury demand and that the preliminary injunction hearing could not fully resolve all issues in the case because additional facts remained to be developed. Specifically, for the first time the Defendants asserted that it was possible that the Jail would allow Ms. Smith access to her medication upon her surrender to the facility. I reserved ruling on the request to consolidate pending briefing by the parties. (See ECF No. 37.)
On February 6, 2019, the Plaintiffs moved for immediate decision on the issue of consolidation on the basis that I could not consolidate a preliminary hearing with a trial on the merits without providing notice to the parties. Pl.’s Mot. for Order Consolidating PI Hearing with Trial on the Merits (ECF No. 47). I conditionally granted the Plaintiff’s motion, again pending full briefing, and instructed the parties to proceed at the hearing in the same manner they would at a bench trial. Order (ECF No. 52). The evidentiary hearing took place as scheduled.
The matter now being fully briefed, I DENY the Plaintiff’s request to consolidate the preliminary injunction hearing with trial on the merits. The Plaintiff’s Complaint demanded a jury trial and requested damages as a remedy for both of her claims. Compl. 11-12 (ECF No. 1). The Plaintiff’s Complaint therefore included a valid jury demand predicated on a legal claim, which the Plaintiff may not
12

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withdraw without the Defendants’ consent.9 Fed. R. Civ. Pro. 38(d) (“A proper [jury] demand may be withdrawn only if the parties consent.”). As such, it would be inappropriate to consolidate the Plaintiff’s claim for preliminary relief with final resolution on the merits. Fed. R. Civ. Pro. 65(a)(2) (“Before or after beginning the hearing on a motion for a preliminary injunction, the court may advance the trial on the merits and consolidate it with the hearing. . . . But the court must preserve any party’s right to a jury trial.”); Lytle v. Household Mfg., Inc., 494 U.S. 545, 553 (1990) (indicating that it would be error for a trial court to conclude “that resolution of an equitable claim can precede resolution of a legal claim”). I therefore solely address the Plaintiff’s request for a preliminary, and not a permanent, injunction.
DISCUSSION I. Ripeness
Before turning to the Plaintiff’s showing on her preliminary injunction motion, I must first address the Defendants’ contention that this matter is not yet ripe for review. The Defendants assert that the Plaintiff’s request for preliminary relief is unripe because it is uncertain whether Ms. Smith will be denied access to her buprenorphine while she is incarcerated. Because an injunction may therefore be unnecessary, the Defendants argue, none should issue.
“[T]he doctrine of ripeness . . . asks whether an injury that has not yet happened is sufficiently likely to happen to warrant judicial review.” Mangual v.

9

The Plaintiff’s argument that no right to a jury trial exists in this action because she does not

“currently” seek damages misses the mark. See Pl.’s Br. 24 (ECF No. 105). The Plaintiff’s Complaint,

rather than her whims, controls the scope of this action.

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Rotger-Sabat, 317 F.3d 45, 60 (1st Cir. 2003) (quotation marks omitted). Ripeness analysis aims to “prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements.” Ernst & Young v. Depositors Econ. Prot. Corp., 45 F.3d 530, 535 (1st Cir. 1995). “When a litigant seeks relief that is primarily prospective in character, questions of ripeness are analyzed under a familiar framework that considers the fitness of the issue for immediate review and the hardship to the litigant should review be postponed.” Riva v. Com. of Mass., 61 F.3d 1003, 1009 (1st Cir. 1995). “The critical question concerning fitness for review is whether the claim involves uncertain and contingent events that may not occur as anticipated or may not occur at all.” McInnis-Misenor v. Me. Med. Ctr., 319 F.3d 63, 70 (1st Cir. 2003) (quoting Ernst & Young, 45 F.3d at 536). “The hardship prong . . . is wholly prudential and concerns the harm to the parties seeking relief that would come to those parties from [the] withholding of a decision.” Reddy v. Foster, 845 F.3d 493, 501 (1st Cir. 2017) (citations and quotation marks omitted).
To understand the Defendants’ ripeness argument and why it fails, a more indepth review of the history of this action is in order. This case first came before me because when the Plaintiff’s attorney approached the Defendants to ask whether she would be allowed to continue to take her prescribed buprenorphine while she was incarcerated, the Defendants said that she would not. This denial is reflected in the Defendants’ earlier filings, which state categorically that buprenorphine is not allowed in the Defendants’ facility and which do not mention the possibility that the Defendants would in any way accommodate Ms. Smith’s request for her medication.
14

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Clossey Aff. ¶ 2; Defs.’ Obj. to PI Mot. 2 (ECF No. 14). The Defendants argued that MAT is “but one means of treating opiate addiction,” with others including “withdrawal protocols . . . through which symptoms of withdrawal . . . are managed medically,” and that the Jail was entitled to deference in its choice between those two methods of treatment. See, e.g., Defs.’ Obj. to PI Mot. 3-4, 6.10
Then, just over a week before the evidentiary hearing on the Plaintiff’s preliminary injunction motion was scheduled to begin, the Defendants changed tack. They now argue that the Jail has always made a case-by-case assessment of the medical needs of inmates who have been prescribed MAT by outside providers, and that the Defendants will do the same for Ms. Smith. The Defendants have gone so far as to hypothesize a variety of ways in which they might allow Ms. Smith to continue receiving her medication without ever needing to bring buprenorphine within the Jail’s walls, including taking her into the community for treatment, procuring a longlasting buprenorphine shot, or medically furloughing her from her sentence. Tr. 478:10-479:12. On these facts, the Defendants argue, the Plaintiff’s claims are not ripe because she has yet to be denied access to her buprenorphine and she may never be so denied.
But, as I have found above, the Jail denied Ms. Smith’s request to continue her buprenorphine in August of 2018. The Plaintiff filed this suit after that denial, and her claims were ripe for adjudication at that time. See Pesce v. Coppinger, No. CV 18-

10

While the Defendants’ preliminary injunction response included a ripeness argument, the

Defendants merely asserted that the Plaintiff’s claims were not ripe because her jail sentence had

twice been postponed.

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11972-DJC, 2018 WL 6171881, at *5 (D. Mass. Nov. 26, 2018) (plaintiff’s ADA and Eighth Amendment claims were ripe because plaintiff had prescription for methadone, his physician recommended continued treatment, and defendants’ policy prohibited providing plaintiff with methadone during his incarceration).
The Defendants’ insinuation that this is all merely a misunderstanding is unsupported. The credible evidence is that, with a single exception, the Defendants have summarily denied every prospective inmate’s request to continue MAT, not because KVHC made some determination that MAT was not medically necessary, but at the Jail’s direction. As to the Jail’s single exception, in which a pregnant woman was allowed to continue MAT, the Jail was concerned about preventing fetal harm rather than the inmate’s medical needs. Moreover, I cannot believe that the Defendants would have put themselves, the Plaintiff, and the Court through five months of expedited discovery and a five-day evidentiary hearing over a miscommunication. The more probable story is that the Defendants realized that they faced a greater risk of losing this lawsuit than they first thought, and that their efforts to rewrite the history of this case are meant to muddy the waters and avoid an unfavorable ruling.11

11

It is not lost on me that the Defendants’ tactical shift came shortly after Judge Casper issued

her recent decision in Pesce v. Coppinger, which granted the plaintiff’s motion for a preliminary

injunction allowing him to continue to take MAT while incarcerated in an action involving nearly-

identical facts and claims to the case at bar. No. CV 18-11972-DJC, 2018 WL 6171881, at *7 (D. Mass.

Nov. 26, 2018). The Defendants’ evolved position appears intended to avoid the finding, dispositive in

Pesce, that the defendants likely violated the ADA and the Eighth Amendment when they decided to

require the plaintiff to be treated solely through withdrawal and counseling without ever evaluating

his need for MAT. See id.

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The question becomes whether the Defendants’ indeterminate suggestions that they might walk back their earlier denial have left the Plaintiff’s claims injusticiable. In some circumstances, “post-filing events will cause a case that was previously ripe for review to become unripe.” Pub. Serv. Co. of N.H. v. Patch, 962 F. Supp. 222, 232 (D.N.H. 1997) (citing Regional Rail Reorganization Act Cases, 419 U.S. 102, 139-40 (1974)).12 However, “a litigant seeking shelter behind a ripeness defense must demonstrate more than a theoretical possibility that harm may be averted.” Riva, 61 F.3d at 1011.
Here, the Defendants have stopped short of telling the Plaintiff that they will provide her with buprenorphine during her sentence.13 It is no more than a theoretical possibility that the Jail will provide MAT after a medical evaluation of the Plaintiff. First, as I have found, the evidence shows that the Defendants’ practice of denying individuals their prescribed MAT is the product of a directive from the Jail, not a medical decision by KVHC. No medical assessment is therefore necessary for

12

In this case, the Defendants allegedly engaged in discriminatory conduct when they first

denied the Plaintiff’s request to continue her medication. It is not clear to me that ripeness can be

destroyed in such an action. See Project B A.S.I.C. v. City of Providence, No. CIV. A. 89-248P, 1990 WL

429846, at *3 (D.R.I. Apr. 25, 1990) (defendants’ suggestion that they would reconsider location of

shelter did not render plaintiff’s civil rights claims unripe, where defendants’ “alleged capitulation to

racially motivated opposition” had already taken place, and reconsideration “would not erase the

alleged harm of the first action”); see also Jones v. Nationwide Life Ins. Co., 847 F. Supp. 2d 218, 223

(D. Mass. 2012) (ADA violation occurs at the time a request for accommodation is denied).

13

I asked the parties to brief the issue of whether the voluntary cessation exception to mootness

might apply in this case. The Plaintiffs rightly noted that the voluntary cessation doctrine does not

come into play until a Defendant has volunteered to cease unlawful conduct and that, in this case, the

Defendants have made no such offer. See Project B A.S.I.C. v. Providence, Civ. A. No. 89-248P, 1990

WL 429846, at *3 (D.R.I. April 25, 1990) (“This situation is even more tenuous than that in cases where

courts have refused to consider a voluntary cessation of challenged actions as mooting the case. In

those cases, the courts have reasoned that the case is not moot because the defendant is free to return

to his old ways. In this case, the defendant has not even changed from his old ways yet.”).

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the Defendants to change their position. Second, it is unclear whether KVHC is even capable of such a medical assessment. None of KVHC’s providers is licensed to prescribe buprenorphine, and one of its nurses, Ms. Willette, testified that she knew neither the symptoms nor the standard of care for opioid use disorder. Third, to the extent that the Defendants believed they needed a medical assessment to decide whether the Plaintiff requires her medication, they have had five months in which to request that assessment.14 It has always been within the Defendants’ power to change their decision. Their failure to act leads me to conclude that the possibility they will do so now is purely “theoretical.” See id.; see also Patch, 962 F. Supp. at 232 (defendant’s post-filing suggestion that it would reconsider ratemaking decision did not render plaintiff’s claim unripe, where defendant had already been presented with and had weighed all proposed arguments concerning ratemaking methodology at the time that it issued final regulation). The Plaintiff’s motion is, accordingly, fit for adjudication.
As to whether the Plaintiff will suffer hardship absent immediate review, unless the Defendants’ decision is definitively unwound, she faces an imminent, painful, and dangerous withdrawal and an attendant risk of discontinued treatment, overdose, and death. See Defs.’ Br. 4 (describing “worst [case] scenario” in which “the Plaintiff will be withdrawn from buprenorphine”); see also infra, Section II.C. Both

14

At the prehearing conference, when defense counsel indicated that the Jail might actually

provide Ms. Smith her medication if they determine it medically necessary, I suggested that the

Defendants could get an assessment of Ms. Smith ahead of time. Defendant’s counsel rejected that

idea as contrary to his client’s position.

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prongs of the ripeness inquiry therefore are satisfied, and the Plaintiff’s motion is ripe. II. Preliminary Injunction
A. Legal Standard “In determining whether to grant a preliminary injunction, the district court must consider: (i) the movant’s likelihood of success on the merits of its claims; (ii) whether and to what extent the movant will suffer irreparable harm if the injunction is withheld; (iii) the balance of hardships as between the parties; and (iv) the effect, if any, that an injunction (or the withholding of one) may have on the public interest.” Corp. Techs., Inc. v. Harnett, 731 F.3d 6, 9 (1st Cir. 2013). The Plaintiff bears the burden of establishing that these factors weigh in her favor. Esso Standard Oil Co. (P.R.) v. Monroig-Zayas, 445 F.3d 13, 18 (1st Cir. 2006). B. Likelihood of Success The Plaintiff claims that the Defendants have violated the ADA either by denying her the benefit of the jail’s health care programs because of her disability or by refusing to make reasonable modifications to a policy or practice in order to allow her to access necessary treatment for her disability. Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. A Title II plaintiff therefore must establish:
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(1) that [s]he is a qualified individual with a disability; (2) that [s]he was either excluded from participation in or denied the benefits of some public entity’s services, programs, or activities or was otherwise discriminated against; and (3) that such exclusion, denial of benefits, or discrimination was by reason of the plaintiff's disability. Gray v. Cummings, 917 F.3d 1, 15 (1st Cir. 2019). Title II plaintiffs can pursue “several different types of claims of disability discrimination,” including claims for “disparate treatment . . . , i.e., that the disability actually motivated the defendant’s adverse conduct,” and claims that the defendant “refused to affirmatively accommodate his or her disability where such accommodation was needed to provide ‘meaningful access to a public service.’ ” Nunes v. Mass. Dep’t of Corr., 766 F.3d 136, 145-46 (1st Cir. 2014); see also 28 C.F.R. § 35.130(b)(7) (under the ADA, public entities must “make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity”).15 Disparate treatment claims are generally governed by the familiar McDonnell Douglas framework. Id. at 145. In contrast, a plaintiff pursuing a claim for denial of reasonable accommodation “need not directly address and satisfy the elements or methods for proving” a disparate treatment theory. Id. When considering whether a correctional facility’s medical decisions violated the ADA, the First Circuit has “differentiated ADA claims based on negligent medical

15

While the Title II regulations refer to “reasonable modification” rather than “reasonable

accommodation,” courts treat those terms interchangeably. Nunes v. Mass. Dep’t of Corr., 766 F.3d

136, 146 n.6 (1st Cir. 2014).

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care from those based on discriminatory medical care.” Kiman v. N.H. Dep’t of Corr., 451 F.3d 274, 284 (1st Cir. 2006). The First Circuit has allowed that treatment decisions can be so unreasonable as to constitute evidence of discrimination under the ADA, but has clarified that the
showing of medical unreasonableness . . . must be framed within some larger theory of disability discrimination. For example, a plaintiff may argue that her physician’s decision was so unreasonable—in the sense of being arbitrary and capricious—as to imply that it was pretext for some discriminatory motive, such as animus, fear, or apathetic attitudes. Or, instead of arguing pretext, a plaintiff may argue that her physician’s decision was discriminatory on its face, because it rested on stereotypes of the disabled rather than an individualized inquiry into the patient’s condition—and hence was unreasonable in that sense. Id. at 284-85. Here, the Defendants do not dispute that they are public entities or that the Plaintiff is a qualified individual with a disability. See Defs.’ Post-Trial Br. 21.16 The Defendants also allow that the Plaintiff is entitled to adequate medical care while she is incarcerated. Defs.’ Post-Trial Br. 21; see Penn. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 210 (1998). Instead, the Defendants argue that they have yet to deny the Plaintiff any benefit or accommodation, and that if they do so it will be because their medical staff has made an individualized determination that she does not need her medication and not because of her disability. Defs.’ Post-Trial Br. 21-22. The evidence, however, supports an inference that Ms. Smith was denied necessary medication because she suffers from OUD. Because the Defendants have

16

“Individuals who are recovering from an addiction to drugs may be disabled in the meaning of

the ADA” unless they are “currently using drugs, whether addicted or not.” Jones v. City of Boston,

752 F.3d 38, 58 (1st Cir. 2014); see also 28 C.F.R. § 35.108(b)(2) (“drug addiction” may be a disability

under the ADA). Here, there is no dispute that the Plaintiff is in recovery and not actively using.

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never asked to assess Ms. Smith’s medical needs, they have left Dr. Conner’s conclusions uncontroverted. The evidence before me therefore establishes that prior efforts to take the Plaintiff off her medication have not been successful and that the Plaintiff’s medication is necessary to her continued health. The Defendants informed the Plaintiff in August of 2018 that she would not be permitted to continue her MAT. The Defendants denied Ms. Smith’s requests for buprenorphine without regard to her medical needs and without any true justification. The Defendants suggest that they generally disallow inmates from continuing MAT to prevent diversion of buprenorphine. But the Defendants themselves have described a variety of ways in which the Jail could provide Ms. Smith’s buprenorphine outside of the Jail, thereby avoiding the security concerns associated with drug diversion. The Defendants have also allowed that, on the one past occasion when they provided MAT to a pregnant woman, they did so in the Jail itself without any known problems. The Defendants have offered no reason that the same could not be done for Ms. Smith.
The Defendants’ out-of-hand, unjustified denial of the Plaintiff’s request for her prescribed, necessary medication—and the general practice that precipitated that denial—is so unreasonable as to raise an inference that the Defendants denied the Plaintiff’s request because of her disability. Kiman, 451 F.3d at 284; see also id. at 286 (correctional facility’s withholding of plaintiff’s prescribed medications was not “a medical ‘judgment’ subject to differing opinion[, but] an outright denial of medical services” that could constitute a violation of the ADA); Pesce, 2018 WL 6171881,at *7 (plaintiff was likely to succeed on ADA claim, where defendant intended to apply its
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blanket prohibition on MAT to plaintiff despite plaintiff’s past failure to overcome opioid use disorder through detoxification); McNally v. Prison Health Servs., 46 F. Supp. 2d 49, 58 (D. Me. 1999) (denying summary judgment on plaintiff’s ADA claim where defendant offered no justification for its practice of giving inmates immediate access to their prescribed medication unless that medication was for HIV).
This inference is bolstered by the Defendants’ general attitude towards opioid use disorder. The Defendants’ representatives lacked a baseline awareness of what opioid use disorder was despite serving a population that disproportionately dies of that condition. Ms. Willette suggested that learning more about how to treat the disorder was boring. And the facts show that despite an April 2018 offer of significant funds from the State to start an MAT program, the Jail and KVHC have not progressed beyond initial discussions about what such a program would entail and still have not taken steps toward having a provider certified to prescribe buprenorphine.17 The Defendants’ statements and actions suggest the kind of “apathetic attitude” towards individuals with disabilities that the ADA intends to remedy. See Kiman, 451 F.3d at 284. The Defendants’ conduct is consistent with the broader stigma against MAT observed by Mr. Hayes, who noted that correctional staff often resist providing MAT because they equate MAT to giving addicts drugs rather than giving people treatment. See Kiman, 451 F.3d at 284 (treatment decisions based on “stereotypes of the disabled rather than an individualized inquiry into the

17

By way of contrast, Mr. Hayes’ team at the Franklin County Jail moved from conception to

implementation of an MAT program in three to four months. Tr. 563:21-564:2.

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patient’s condition” can constitute evidence of discrimination because of disability). Accordingly, I find that the Plaintiff is likely to succeed on her ADA claim under a disparate treatment theory.
In the alternative, I find that the Plaintiff is likely to succeed on the theory that she was denied a reasonable accommodation. The Plaintiff made multiple clear requests to be exempted from the Jail’s practice of prohibiting buprenorphine and requiring individuals on MAT to undergo withdrawal.18 Those requests were denied. Without her desired accommodation, the Plaintiff will be deprived of the only form of treatment shown to be effective at managing her disability and therefore will be denied “meaningful access” to the Jail’s health care services. Nunes, 766 F.3d at 145. The Plaintiff’s request was not unreasonable, as evidenced by the fact that the Defendants previously provided the same accommodation to a pregnant inmate without issue and by the Defendants’ acknowledgement that they could grant the requested exemption in a way that would obviate any security concerns. For the same reasons, the Defendants have not “demonstrate[d] that making [this] modification[]” to its practice “would fundamentally alter the nature of” its healthcare or prescription services. 28 C.F.R. § 35.130(b)(7).19 Because I find that the Plaintiff’s ADA claim is

18

Remarkably, the Defendants claim that “[t]here is no evidence in the record that anyone

contacted the jail with a specific request seeking advance approval for a medication for the Plaintiff.”

Defs.’ Post-Trial Reply 6 (ECF No. 112). The record in this case shows with striking clarity that the

Plaintiff’s counsel contacted the Jail by both phone and fax with unambiguous requests for approval

of the Plaintiff’s MAT.

19

This case does not call upon me to find that the Defendants must institute a program that

provides MAT for all individuals in the Jail who have opioid use disorder. All that is before me is the

request to ensure MAT access for Ms. Smith, an individual who has successfully managed her opioid

use disorder with MAT for the last decade.

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likely to succeed under either or both of these theories, I do not address the Plaintiff’s likelihood of success on her Eighth Amendment claim.20
C. Irreparable Harm Irreparable injury is harm that “cannot adequately be compensated for either by a later-issued permanent injunction, after a full adjudication on the merits, or by a later-issued damages remedy.” Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 76 (1st Cir. 2005). Here, the Plaintiff has presented evidence that if the Defendants curtail her MAT, she will be forced into withdrawal with painful physical symptoms and an increased risk of later relapse, overdose, and death.21 Studies in the United States and abroad have observed that access to MAT during incarceration is associated with a decreased risk of post-release overdose death. Access to MAT is also correlated with a 75 percent decrease in all-cause mortality while the patient is incarcerated.22 On the other hand, forced withdrawal from MAT during incarceration

20

The evidence presented in this action suggests that a scientific consensus is growing that

refusing to provide individuals with their prescribed MAT is a medically, ethically, and

constitutionally unsupportable denial of care. E.g., Pl.’s Ex. 32. Cognizant of the principle of judicial

restraint and given my ruling that the Plaintiff is likely to succeed on her ADA claim, I sidestep the

constitutional issue at this time. See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 347 (1936)

(Brandeis, J., concurring) (“The Court will not pass upon a constitutional question although properly

presented by the record, if there is also present some other ground upon which the case may be

disposed of.”).

21

The Defendants illogically insist that withdrawal does not amount to an injury because the

Jail has a protocol in place to mitigate withdrawal symptoms. Defs.’ Post-Trial Br. 3. This argument

misses the mark in two respects. First, there is no indication in the record that the withdrawal protocol

eliminates symptoms—in fact, the protocol accounts for the fact that symptoms may persist for days.

Second, the Defendants’ view assumes that withdrawal is a necessary evil. For incoming inmates who

are active users of illicit opioids, withdrawal may be a necessary starting point for any treatment.

However, for people like Ms. Smith, whose opioid use disorder is being successfully managed by MAT,

withdrawal is a counterproductive, painful experience that is easily identified as an injury.

22

In an attempt to convince me of the dangers of allowing buprenorphine in the Jail’s formulary,

the Defendants explained that Suboxone, like many other illicit drugs, is commonly and creatively

smuggled into the Jail and used illegally by inmates. There is no question that Suboxone can be abused

by people who are not prescribed it to control opioid use disorder. But in describing this reality, the

25

Case 1:18-cv-00352-NT Document 116 Filed 03/27/19 Page 26 of 28 PageID #: 2356
has been linked to a significant decrease in post-release resumption of treatment, with lack of treatment in turn being associated with increased risk of overdose and death.
The Defendants claim that these risks are overblown, in large part because the Plaintiff did not relapse, overdose, or die after her first forced withdrawal in 2014.23 However, as Dr. MacDonald testified, that the Plaintiff was lucky enough to avoid the worst possible outcomes of forced withdrawal in the past does not mean she is immune to risk. See Tr. 138:1-14. Moreover, the Defendants do not account for the changes in the market for illicit opioids in recent years, which have seen the introduction of fentanyl into the supply and an attendant increase in risk that a single relapse may result in overdose and death. Considering all the evidence, I find that the Plaintiff has established a reasonable likelihood that she will suffer irreparable harm absent injunctive relief.
D. Public Interest and Balance of Hardships I find that the final two factors of the preliminary injunction analysis, public interest and the balance of the hardships, both favor allowing Ms. Smith to continue taking her medication. Ms. Smith will personally benefit from receiving her medication, as she will avoid the wrenching side effects of withdrawal and continue

Defendants strengthen the Plaintiff’s argument that she is likely to be harmed if her buprenorphine is abruptly stopped. Without her MAT, the Plaintiff will likely experience cravings for opiates and she will be in a facility where illicit drugs are available.

23

The Defendants also latch on to Dr. MacDonald’s statement that the absolute risks of overdose

and death are less than 50 percent. But as Dr. MacDonald observed, practitioners consider even a very

low absolute risk of death to be medically unacceptable. Tr. 303:15-25.

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to mitigate her likelihood of relapse. The public interest likewise favors encouraging Ms. Smith to remain on MAT and to continue her recovery. Society will be well served if Ms. Smith is able to continue to care for her children, maintain her housing, and work. History has shown that if she relapses into active use, she will lose all that she has worked so hard to achieve.
While I must accord substantial deference to the professional judgment of prison administrators, Overton v. Bazzetta, 539 U.S. 126, 132 (2003), I find that in this individual case, granting the Plaintiff’s requested injunction will place a limited burden on the Defendants. The Defendants have offered several ways in which Ms. Smith could be given her medication that would avoid any risk of diversion, the Defendants have previously permitted one inmate to receive MAT in-facility with no apparent security impact, and my findings in this case will do little to undermine the Defendants’ broader policies or regulations. In particular, the Defendants will be free, going forward, to make exactly the kind of individualized assessments of inmates’ medical needs for MAT that they have failed to make here.
Having found that all four preliminary injunction factors favor the Plaintiff, I will grant the Plaintiff’s motion.
CONCLUSION For the reasons stated above, the Court GRANTS the Plaintiff’s motion for a preliminary injunction. Pending final adjudication on the merits of this action, the Defendants are hereby ORDERED to provide the Plaintiff with her prescribed buprenorphine during her sentence at the Aroostook County Jail in whatever way
27

Case 1:18-cv-00352-NT Document 116 Filed 03/27/19 Page 28 of 28 PageID #: 2358 the Defendants deem most appropriate in light of the Aroostook County Jail’s security needs, including, but not limited to, (1) providing the medication to the Plaintiff in the Aroostook County Jail, (2) taking the Plaintiff into the community on a daily basis to receive her medication, (3) transferring the Plaintiff to another facility capable of providing the Plaintiff her medication, or (4) releasing the Plaintiff on medical furlough if the jail is otherwise unable to accommodate her needs. The Court also DENIES the Plaintiff’s motion to consolidate the preliminary injunction hearing with trial on the merits of this action. SO ORDERED. /s/ Nancy Torresen United States District Judge Dated this 27th day of March, 2019.
28

 
 CCasaes:e119:-1183-4c0v-00D35o2c-uNmTenDt: o4c8umePnatg1e4:31 FileDdat0e4F/3il0e/d1:904P/3a0g/e2011o9f 4 EPnatrgyeIIDD: #6:2254018473
United States Court of Appeals
For the First Circuit
No. 19-1340 BRENDA SMITH
Plaintiff, Appellee, v.
AROOSTOOK COUNTY; SHAWN D. GILLEN, in his official capacity as Sheriff of Aroostook County Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE
[Hon. Nancy Torresen, Chief U.S. District Judge]
Before Howard, Chief Judge, Lynch and Kayatta, Circuit Judges.
Peter T. Marchesi, Cassandra S. Shaffer, and Wheeler & Arey, P.A., on brief for appellants.
Zachary L. Heiden, Emma E. Bond, ACLU of Maine Foundation, Peter Mancuso, Andrew Schmidt Law PLLC, David A. Soley, James G. Monteleone, and Bernstein Shur, on brief for appellees.
April 30, 2019

CCasaes:e119:-1183-4c0v-00D35o2c-uNmTenDt: o4c8umePnatg1e4:32 FileDdat0e4F/3il0e/d1:904P/3a0g/e2021o9f 4 EPnatrgyeIIDD: #6:2254018573

Per curiam. In considering the defendants' appeal of

a preliminary injunction entered by the district court, we will

set aside the ruling only if the court clearly erred in assessing

the facts, misapprehended the applicable legal principles, or

otherwise is shown to have abused its discretion. See Wine and

Spirits Retailers, Inc. v. Rhode Island, 418 F.3d 36, 46 (1st Cir.

2005).

Brenda Smith receives a twice daily dose of buprenorphine

prescribed by her doctor as treatment for what her doctor

classifies as an opioid use disorder. Smith is due to be

incarcerated for forty days at the Aroostook County Jail. Jail

officials informed her counsel that she would not receive her

medication while incarcerated. Her physician opines without serious

contradiction that prior efforts to take Smith off her medication

have not been successful and that her medication is necessary

to her continued health; he and other witnesses opine that, given

her medical history, forced and immediate withdrawal from

buprenorphine will cause her painful symptoms and increase her

risk of relapse, overdose, and death. She therefore brought this

suit seeking, among other things, injunctive relief compelling the

defendants to provide her medication while she is incarcerated.

Defendants replied, in part, that whether she receives the medication

will depend on a case-by-case medical assessment. Defendants,

though, do not actually plan to obtain such an assessment from a

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CCasaes:e119:-1183-4c0v-00D35o2c-uNmTenDt: o4c8umePnatg1e4:33 FileDdat0e4F/3il0e/d1:904P/3a0g/e2031o9f 4 EPnatrgyeIIDD: #6:2254018673
qualified doctor prior to incarcerating Smith. On this preliminary record, the district court considered
the likelihood of Smith prevailing on a claim for discrimination under Title II of the Americans with Disabilities Act, 42 U.S.C. § 12132; the potential for irreparable harm; t h e balance of harms; and the public interest. Noting that defendants' own submissions tout the variety of reasonable alternatives at their disposal for providing Smith with her medication in a manner that alleviates any security concerns, the district court found a sufficient likelihood of success combined with both a strong balance of harms and a public interest in favor of Smith so as to warrant a preliminary injunction ordering the jail to provide Smith with her medication as prescribed while she is incarcerated.
We previously denied the defendants' request for a stay of the district court's order. Now we address the merits of the defendants' appeal of that order.
Having carefully considered the record and the parties' briefs, we find no abuse of discretion by the district court in its preliminary assessment of the issues that must be balanced in deciding a request for preliminary injunctive relief.
The preliminary injunction is affirmed. The motions of the American Medical Association, American Society for Addiction
- 3 -

CCasaes:e119:-1183-4c0v-00D35o2c-uNmTenDt: o4c8umePnatg1e4:34 FileDdat0e4F/3il0e/d1:904P/3a0g/e2041o9f 4 EPnatrgyeIIDD: #6:2254018773 Medicine, Maine Medical Association, Connecticut Society for Addiction Medicine, Connecticut State Medical Society, Maine Association of Psychiatric Physicians, Massachusetts Medical Society, Massachusetts Society of Addiction Medicine, New Hampshire Medical Society, Northern New England Society for Addiction Medicine, Rhode Island Medical Society, Rhode Island Society for Addiction Medicine, Vermont Medical Society, Joshua M. Sharfstein, Brendan Saloner, Colleen Barry, Noa Krawczyk, Jenny Wen, and Jia Ahmad for leave to file amicus briefs on behalf of Smith are denied as moot.
- 4 -

 
 Case 1:18-cv-00352-NT Document 158 Filed 08/19/19 Page 1 of 3 PageID #: 2567

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

BRENDA SMITH,

Plaintiff,

v.
AROOSTOOK COUNTY and SHAWN D. GILLEN,

CIVIL NO. 18-cv-00352-NT

Defendants.

WITHDRAWAL OF MOTION PURSUANT TO SETTLEMENT AGREEMENT

Plaintiff, Brenda Smith, respectfully seeks to withdraw the Plaintiff’s Motion for Award

of Attorney’s Fees and Expenses, ECF No. 154 (June. 19, 2019). The parties have resolved the

request for attorney’s fees and costs in return for Defendant-Appellees’ payment of $175,000 and

other terms enclosed in Attachment A.

Dated: August 19, 2019.

Respectfully submitted,

/s/ Emma E. Bond Emma E. Bond Zachary Heiden American Civil Liberties Union of Maine Foundation 121 Middle Street, Suite 200 Portland, Maine 04101 (207) 619-6224 ebond@aclumaine.org

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Case 1:18-cv-00352-NT Document 158 Filed 08/19/19 Page 2 of 3 PageID #: 2568
David Soley, Esq. James Monteleone, Esq. Bernstein Shur 100 Middle Street Portland, ME 04101 (207) 228-7300 dsoley@bernsteinshur.com (207) 228-7198 jmonteleone@bernsteinshur.com Peter Mancuso, Esq. Andrew Schmidt Law PLLC 97 India St. Portland, ME 0410 207-619-0320 peter@maineworkerjustice.com Counsel for Plaintiff
2

Case 1:18-cv-00352-NT Document 158 Filed 08/19/19 Page 3 of 3 PageID #: 2569

CERTIFICATE OF SERVICE The undersigned certifies that he has electronically filed this date the foregoing WITHDRAWAL OF MOTION PURSUANT TO SETTLEMENT AGREEMENT with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all counsel of record. This filing is available for viewing and downloading from the ECF system.

Dated: August 19, 2019

/s/ Emma E. Bond Emma E. Bond American Civil Liberties Union of Maine Foundation 121 Middle Street, Suite 200 Portland, ME 04103 (207) 619-8687 ebond@aclumaine.org
Counsel for Plaintiff Brenda Smith

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Case 1:18-cv-00352-NT Document 158-1 Filed 08/19/19 Page 1 of 1 PageID #: 2570