UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
Case No.

ALLEN BRASH,

)

)

Plaintiff,

)

)

v.

)

)

WEXFORD HEALTH SOURCES, INC., )

a Florida corporation, DAVID )

ROWE, and MICHAEL MOORE, in )

his official capacity as

)

Secretary of the Florida

)

Department of Corrections, )

)

Defendants.

)

)

VERIFIED COMPLAINT Plaintiff, Allen Brash, sues defendants and states: 1. Plaintiff seeks temporary, preliminary, and permanent injunctive relief arising from the defendants' deliberate indifference to his serious medical needs in violation of the Eighth Amendment to the United States Constitution.
Jurisdiction 2. Jurisdiction of this Court is invoked pursuant to 28 U.S.C. § 1331 in that this is a civil action arising under the Constitution of the United States. 3. Jurisdiction of the Court is invoked pursuant to 28 U.S.C. § 1343(a)(3) in that this action seeks to redress the deprivation, under color of state law, of rights secured to the plaintiff by the Eighth Amendment to the Constitution of the United States of America.

4. The plaintiff's claims for relief are predicated upon 42 U.S.C. § 1983 which authorizes actions to redress the deprivation, under color of state law, of rights, privileges, and immunities secured by the Constitution and laws of the United States, and upon 42 U.S.C. § 1988 which authorizes the award of attorney's fees and costs to prevailing plaintiffs in actions brought pursuant to 42 U.S.C. § 1983.
5. Plaintiff seeks temporary, preliminary and permanent injunctive relief pursuant to Rule 65, Federal Rules of Civil Procedure.
Parties 6. Plaintiff, Allen Brash, is a prisoner in the custody of defendant Moore, Secretary of the Florida Department of Corrections, currently confined at Okeechobee Correctional Institution. 7. Defendant, Wexford Health Resources, Inc., (hereinafter Wexford) is a Florida corporation operating under color of state law under contract with defendant Moore to provide medical and health care services to the inmates confined at Okeechobee Correctional Institution. 8. Defendant, David Rowe, is Vice President and Chief Medical Director for defendant Wexford Health Sources, Inc. As Chief Medical Director, defendant Rowe makes policy under color of state law for Wexford by determining who is allowed to receive medical care recommended by defendant Wexford’s prison doctors. 9. Defendant Michael Moore, is the Secretary of the Florida Department of Corrections. He acts under color of state law. As
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Secretary, he is the highest ranking official of the Department of Corrections and is responsible for the medical care of all inmates. He is sued in his official capacity for injunctive relief, attorneys fees and costs.
Factual Allegations 10. Plaintiff came into the custody of the Florida Department of Corrections in 1987. 11. Plaintiff has an advanced stage of Hepatitis C and is in the early stage of cirrhosis, a condition which can be caused by the Hepatitis C virus (HCV). If Hepatitis C is left untreated, it may lead to liver failure, cancer of the liver, and death. 12. Until December 2001, the plaintiff was housed at Union Correctional Institution under the care of Dr. Shah, a Gastroenterologist at the North Florida Reception Center employed by the Florida Department of Corrections. Dr. Shah treated the plaintiff with Interferon and plaintiff’s condition improved. 13. A hepatitis patient is deemed cured when his viral loads fall to zero. Although plaintiff responded favorably to treatment, the treatment did not eliminate the virus completely, his viral counts fell to less than 600IU/ml. At the end of the 11 month treatment period, in August 2001, Dr. Shah charted that the plaintiff should be checked after 6 months for a liver profile and presumably be restarted on a treatment regimen for Hepatitis C. On October 10, 2001, Dr. Shah charted that the plaintiff should be scheduled to see a Gastroenterologist by
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December 10, 2001. Before plaintiff could see a Gastroenterologist, Mr. Brash was transferred to Okeechobee Correctional Institution.
14. Plaintiff came under the medical care of defendant Wexford and its prison doctor, Dr. Bhadja, at Okeechobee Correctional Institution. Another Gastroenterologist Consult was recommended for the plaintiff on January 23, 2002, this time by Dr. Bhadja. The consult recommendation was denied by defendant David Rowe on January 28, 2002. On January 30, 2002, Dr. Diaz, another Wexford prison doctor at Okeechobee Correctional Institution charted, “this patient [Mr. Brash] is a treatment failure. He should not be treated again. Follow up yearly for Hep C.”
15. Plaintiff has not seen a Gastroenterologist after his medical care was assumed by defendants Wexford and Rowe from midDecember 2001 until the present despite the recommendations of three prison doctors, two of whom are employed by defendant Wexford and one by defendant Moore.
16. Plaintiff’s condition is such that if he is not provided the FDA approved PEG Interferon with Ribavirin combination therapy, there is a 50%-50% chance that he will not survive another 10 years.
17. Plaintiff is a curable patient. But since he has severe fibrosis, plaintiff needs treatment to prevent his premature death. Cirrhosis, or a massive scarring of the liver, follows long-term infection from the virus. Cirrhosis leads to
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liver cancer or liver failure. Absent a transplant, death follows.
18. Liver disease and especially end stage liver failure is a prolonged, and often gruesome, death. As scar tissue replaces healthy cells, liver function starts to fail and a person may experience the following symptoms: exhaustion, fatigue, loss of appetite, nausea, weakness and weight loss. These are usually early signs of liver failure which can lead to the complications of cirrhosis and end-stage liver disease.
19. Plaintiff’s HCV virus will not be eradicated without treatment. In August 2001 the FDA approved the combination of Peginterferon and the nucleoside analogue Ribaviron for patients with chronic HCV infection.
20. Unless plaintiff receives immediate treatment with Pegylated Interferon and Ribavirin therapy, plaintiff will die a premature death due to liver failure or to liver cancer. If he is successfully treated, he has a normal life expectancy.
21. In June 2002, Dr. Robert Smith, regional medical director for defendant Wexford recommended that the plaintiff be restarted on Pegintron and Ribaviron therapy treatment. Plaintiff was told that he could expect treatment to begin in 8 weeks.
In late June, plaintiff was informed that someone countered Dr. Smith’s recommendation, and plaintiff would not be restarted on treatment as promised.
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22. Defendant David Rowe rejected Dr. Robert Smith’s recommendation that the plaintiff receive Pegintron with Ribaviron treatment for Hepatitis C.
23. Defendant Moore has similarly denied plaintiff’s administrative remedies for medical care using the inmate grievance procedure and after requests to his regional medical director seeking treatment for Hepatitis C. Plaintiff has also written personal letters to defendants requesting reconsideration that treatment be restarted albeit without success.
24. Defendants Wexford, Rowe and Moore have refused to approve plaintiff’s need for a consult with a Gastroenterologist and appropriate medication for the treatment of Hepatitis C for non-medical reasons just to save money.
Claim for Relief 25. With full knowledge of plaintiff's history of Hepatitis C and his need to start a retreatment regimen within 6 months from the date he ceased treatment, and with full knowledge that Dr. Shah, plaintiff’s treating physician at North Florida Reception Center had recommended that plaintiff see a Gastroenterologist in mid-December, 2002, defendants Wexford and Rowe disapproved Dr. Shah’s recommendation that plaintiff have a specialist [Gastroenterologist] consult for plaintiff’s Hepatitis C so he might restart his treatment regimen. 26. With full knowledge of plaintiff's history of Hepatitis C, and with full knowledge that Dr. Bhadja had recommended that plaintiff see a Gastroenterologist for a consult, defendants
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Wexford and Rowe disapproved Dr. Bhadja’s recommendation that the plaintiff see a Gastroenterologist for plaintiff’s Hepatitis C so he might restart a treatment regimen.
27. With full knowledge of plaintiff's history of Hepatitis C, and with full knowledge that defendant Wexford’s Regional Medical Director in Miami, Dr. Robert Smith, had recommended that plaintiff be restarted on Pegintron with Ribavirin medication for Hepatitis C, defendants Wexford and Rowe disapproved the plaintiff from restarting his treatment regimen as Dr. Smith had recommended for financial, not medical, reasons. Defendant Moore has also refused to restart the plaintiff on a treatment regimen after similar requests that he intervene.
28. Defendants Wexford, Rowe, and Moore know that Hepatitis C is a progressive disease and that, absent treatment, the plaintiff’s liver will eventually stop functioning and unless he has a liver transplant, he will die.
29. In refusing to approve the Gastroenterologist consultations recommended by Dr. Shah and Dr. Bhadja, defendants Wexford,
Rowe, and Moore are being deliberately indifferent to the serious medical needs of plaintiff, in violation of the Eighth Amendment.
30. In refusing to approve the medication regimen for Hepatitis C recommended by Dr. Robert Smith, defendants Wexford, Rowe, and Moore are being deliberately indifferent to the serious medical needs of plaintiff, in violation of the Eighth Amendment.
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31. As the direct result of the refusal of defendants Wexford, Rowe, and Moore, plaintiff’s Hepatitis C has gone untreated for nearly a year, his liver is being damaged, and his life expectancy shortened.
32. Absent intervention of this Court, plaintiff’s Hepatitis C will continue to worsen to the point that he will have to have a liver transplant or he will die prematurely.
33. The acts of defendants have caused plaintiff great discomfort, pain, disfigurement, disability, and mental and emotional suffering.
WHEREFORE, plaintiff requests that this Court: A. Declare that the conduct of the defendants, as alleged, violates plaintiff's right to be free from cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution; B. Enter temporary, preliminary, and permanent injunctive relief requiring defendants Wexford, Rowe, and Moore, their successors in office, and their servants, agents and employees, and those acting in concert with him, to immediately schedule the recommended consultant review by a Gastroenterologist and the medication regimen needed for Hepatitis C for plaintiff; C. Award attorneys' fees and costs pursuant to 42 U.S.C. § 1988; and D. Grant plaintiff such other and further relief as the Court may deem just and equitable.
Respectfully submitted,
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Randall C. Berg, Jr., Esq. Peter M. Siegel, Esq. Florida Justice Institute, Inc. 2870 First Union Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-2309 305-358-2081 305-358-0910 (FAX) E-mail: rcberg@bellsouth.net Attorneys for the Plaintiff ______________________________ By: Randall C. Berg, Jr., Esq. Florida Bar No. 318371
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DECLARATION OF ALLEN BRASH
I, Allen Brash, pursuant to 28 U.S.C. § 1746, make this Unsworn Declaration Under Penalty of Perjury, and declare that the statements made below are true, and state:
1. I have reviewed the Verified Complaint set forth above and I find the facts contained therein which pertain to me to be true and accurate to the best of my knowledge and belief.
I understand that a false statement in this declaration will subject me to penalties for perjury.
I declare under penalty of perjury that the foregoing is true and correct.

Brash\complaint.wpd

Allen Brash Date:

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Certificate of Service I HEREBY CERTIFY that a true copy of the foregoing document has been furnished to Mitchel Chusid, Esq., Ritter Chusid Bivona & Cohen, L.L.P., 7000 West Palmetto Park Road, Suite 305, Boca Raton, Florida 33433, counsel for the defendants Wexford and Rowe, and Louis Vargas, Esq., General Counsel, Florida Department of Corrections, 2601 Blairstone Road, Tallahassee, Florida 323992500, counsel for defendant Moore by First Class U.S. Mail on December 6, 2002.
Randall C. Berg, Jr., Esq.
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 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
Case No.

ALLEN BRASH,

)

)

Plaintiff,

)

)

v.

)

)

WEXFORD HEALTH SOURCES, INC., )

a Florida corporation, DAVID )

ROWE, and MICHAEL MOORE, in )

his official capacity as

)

Secretary of the Florida

)

Department of Corrections, )

)

Defendants.

)

)

MOTION FOR PRELIMINARY INJUNCTION WITH INCORPORATED MEMORANDUM OF LAW

Plaintiff, through undersigned counsel, moves this Court, pursuant to Rule 65, Federal Rules of Civil Procedure, for a preliminary injunction ordering defendants to immediately send plaintiff to a Gastroenterologist to reinstitute medication for Hepatitis C.
In support of this Motion, Plaintiff relies upon his Verified Complaint, the Declarations of Dr. Bennet Cecil and Dr. Richard Stone, and his medical records. Each of the items upon which plaintiff relies is being filed simultaneously with this Motion.
Plaintiff contends that absent injunctive relief he will continue to be denied a Gastroenterologist consult and will continue to be denied the medication necessary to combat Hepati-

tis C, that he will suffer irreparable injury up to and including liver cancer and premature death, that there is a substantial likelihood that he will ultimately prevail on the merits, that there is a greater injustice to him if the injunction is denied than harm to defendants if it is granted, and that granting the requested relief will not disserve the public interest.
A prompt hearing is requested to put an end to the defendants' unlawful conduct. Filed with this Motion are a Request for a Prompt Hearing and a proposed Writ of Habeas Corpus ad Testificandum requiring the Florida Department of Corrections to produce the plaintiff at a prompt hearing to be scheduled by the Court.
STATEMENT OF FACTS Plaintiff, Allen Brash, is a prisoner in the custody of the Florida Department of Corrections, currently confined at Okeechobee Correctional Institution. Verified Complaint, ¶ 6. Defendant, Wexford Health Resources, Inc., (hereinafter Wexford) is a Florida corporation operating under color of state law under contract with the Florida Department of Corrections to provide medical and health care services to the inmates confined at Okeechobee Correctional Institution. Verified Complaint, ¶ 7. Defendant, David Rowe, is Vice President and Chief Medical Director for defendant Wexford Health Sources, Inc. Verified Complaint, ¶ 8. As Chief Medical Director, defendant Rowe makes policy under color of state law for defendant Wexford by determining who is allowed to receive medical care recommended by
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defendant Wexford’s prison doctors. Id. Defendant Moore as Secretary of the Florida Department of Corrections is responsible for the medical care of all inmates. Verified Complaint, ¶ 9.
Mr. Brash came into the custody of the Florida Department of Corrections in 1987. Verified Complaint, ¶ 10. Mr. Brash has Hepatitis C and is in the second stage of cirrhosis, a condition which can be caused by the Hepatitis C virus (HCV). Dr. Cecil’s Declaration, ¶ 3. If Hepatitis C is left untreated, it may lead to cirrhosis of the liver, cancer of the liver, and death. Id.
Until December 2001, Mr. Brash was housed at Union Correctional Institution under the care of Dr. Shah, a Gastroenterologist at the North Florida Reception Center employed by the Florida Department of Corrections. Verified Complaint, ¶ 12. Dr. Shah treated the plaintiff with Interferon with Ribaviron. Id.
A hepatitis patient is deemed cured when his viral load falls to zero. Although Mr. Brash responded favorably to treatment, the treatment did not eliminate the virus completely, his viral counts fell to less than 600IU/ml. Dr. Cecil’s Declaration, ¶ 4. At the end of the 11 month treatment period, in August 2001, Dr. Shah charted that the plaintiff should be checked after 6 months for a liver profile and presumably be restarted on a treatment regimen for Hepatitis C. Verified Complaint, ¶ 13 and Medical Records. On October 10, 2001, Dr. Shah charted that Mr. Brash should be scheduled to see a Gastroenterologist by December 10, 2001. Id. Before Mr. Brash could
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see a Gastroenterologist, Mr. Brash was transferred to Okeechobee Correctional Institution. Verified Complaint, ¶ 13.
Mr. Brash came under the care of defendant Wexford and its prison doctor, Dr. Bhadja, at Okeechobee Correctional Institution. Verified Complaint, ¶ 14. Another Gastroenterologist Consult was recommended for the plaintiff on January 23, 2002, this time by Dr. Bhadja. Id. The consult recommendation was denied by defendant David Rowe in corporate headquarters in Pittsburgh on January 28, 2002. Dr. Cecil’s Declaration, ¶ 5. On January 30, 2002, Dr. Diaz, another Wexford prison doctor at Okeechobee Correctional Institution charted, “this patient [Mr. Brash] is a treatment failure. He should not be treated again. Follow up yearly for Hep C.” Dr. Cecil’s Declaration, ¶ 5.
Mr. Brash has not seen a Gastroenterologist after his medical care was assumed by defendants Wexford and Rowe from midDecember 2001 until the present despite the recommendations of three doctors, two of whom are employed by defendant Wexford and one by defendant Moore. Verified Complaint, ¶ 15.
Mr. Brash’s condition is such that if he is not provided the FDA approved PEG Interferon with Ribavirin combination therapy, there is a 50%-50% chance that he will not survive another 10 years. Dr. Cecil’s Declaration, ¶ 6.
Mr. Brash is a curable patient. Dr. Cecil’s Declaration, ¶ 7. But since he has severe fibrosis, Mr. Brash needs treatment to prevent his premature death. Id. Cirrhosis, or a massive scarring of the liver, follows long-term infection from the
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virus. Id. Cirrhosis leads to liver cancer or liver failure. Absent a transplant, death follows. Id.
Liver disease and especially end stage liver failure is a prolonged, and often gruesome, death. Id. As scar tissue replaces healthy cells, liver function starts to fail and a person may experience the following symptoms: exhaustion, fatigue, loss of appetite, nausea, weakness and weight loss. Id. These are usually early signs of liver failure which can lead to the complications of cirrhosis and end-stage liver disease. Id.
Mr. Brash’s HCV virus will not be eradicated without treatment. Dr. Cecil’s Declaration, ¶ 9. The acceptable treatment protocol available involves the use of interferon. Id. The goal of HCV therapy is permanent eradication of the virus in the serum. Id. Sustained virologic responses, the usual standard of successful therapy is defined as the absence of the HCV RNA in the serum during therapy and six months after the completion of therapy. Id. Sustained viral responders have a 97% chance of cure. Id. A patient who is cured will have a negative HCV-RNA for the rest of his or her life. Id.
In August 2001 the FDA approved the combination of Peginterferon and the nucleoside analogue Ribavirin for patients with chronic HCV infection. Dr. Cecil’s Declaration, ¶ 10. This combination of Peginterferon plus Rebetol permits a sustained virologic response to approximately 40% in genotype 1 with higher rates in genotypes 2 and 3. Id. Mr. Brash is genotype 1. Id. The FDA approved Pegasys for treatment of HCV cirrhosis on
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October 16, 2002. Id. Mr. Brash should start on Pegasys immediately. Id. Ribavirin should be added in January when the FDA approves it. Id. He should be treated for 18-24 months to prevent relapse when the treatment is completed. Id.
Since the approval of Pegylated interferon, its use has become the standard of care for treatment of HCV. Dr. Cecil’s Declaration, ¶ 11. Pegylated Interferons are superior to ordinary Interferons. Id.
The chance of successful treatment is greater than 40% for Mr. Brash because he had a good response to interferon in the past. Dr. Cecil’s Declaration, ¶ 12. He has an excellent chance of responding to Pegylated interferon. Id.
Unless Mr. Brash receives immediate treatment with Pegylated interferon and Ribaviron therapy, he will die a premature death due to liver failure or liver cancer. Dr. Cecil’s Declaration, ¶ 13. If he is successfully treated, he has a normal life expectancy. Id.
In June 2002, Dr. Robert Smith, regional medical director for defendant Wexford in Miami recommended that Mr. Brash be restarted on PegIntron and Ribaviron therapy treatment. Medical Records. Mr. Brash was told that he could expect treatment to begin in 8 weeks. Verified Complaint, ¶ 21. In late June, Mr. Brash was informed that someone countered Dr. Smith’s recommendation, and Mr. Brash would not be restarted on treatment as promised. Id.
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Defendant David Rowe rejected Dr. Robert Smith’s recommendation that the plaintiff receive PegIntron with Ribaviron treatment for Hepatitis C. Medical Records.
Plaintiff has used the established inmate grievance process seeking treatment for Hepatitis C, albeit without success. Verified Complaint, ¶ 23. Mr. Brash’s attorneys and his sister have has also written personal letters to defendants requesting reconsideration that treatment be restarted without success. Id.
Defendants Wexford, Rowe, and Moore have refused to approve Mr. Brash’s need for a consult with a Gastroenterologist and appropriate medication for the treatment of Hepatitis C for nonmedical reasons just to save money. Verified Complaint, ¶ 24.
Despite the recommendations of three doctors that Mr. Brash have a Gastroenterologist consult, recommendations which were endorsed by two of the defendant Wexford’s own doctors, and despite the recommendation of Wexford’s own regional medical director Dr. Richard Smith of Miami that Mr. Brash be restarted on medication, defendant Rowe, the official at Wexford charged with the duty of determining whether consults and medical regimens should be approved, rejected the recommendation. Mr. Brash’s prior history, as well as the opinions of Drs. Cecil and Stone, all point to a clear indication that this court order a Gastroenterologist consult and that the plaintiff be restarted on medication.
ARGUMENT
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Plaintiff seeks a preliminary injunction to require the
defendants to approve a Gastroenterologist consult and to immedi-
ately restart him on a medication regimen for his Hepatitis C. A
preliminary injunction should issue if the plaintiff successfully
demonstrates:
(1) a substantial likelihood that he will ultimately prevail on the merits;
(2) that he will suffer irreparable injury if the injunction is not issued;
(3) that the threatened harm to the plaintiff outweighs the potential harm to the opposing party; and
(4) that the injunction, if issued, would not be adverse to the public interest.
Haitian Refugee Center, Inc. v. Nelson, 872 F.2d 1555, 1561-62
(11th Cir. 1989), aff’d, 498 U.S. 479 (1991); Shatel Corp. v.
Maota Lumber and Yacht Corp., 697 F.2d 1352, 1354-1355 (11th Cir.
1983); Canal Authority v. Callaway, 489 F.2d 567 (5th Cir. 1974).
The entry or denial of a preliminary injunction is a decision
within the discretion of the trial court. Haitian Refugee
Center, Inc. v. Nelson, 872 F.2d at 1561.
There is a substantial likelihood of success on the merits. Refusal to approve the recommended consult with a Gastroenterologist and a medication regimen for Hepatitis C leads to potentially irremediable injury, namely liver failure and a premature death. No remedy at law can adequately compensate plaintiff for the loss of his liver caused by the refusal of defendants Wexford and Rowe to approve consult recommended by three prison doctors, and to restart him on a mediation regimen recommended by defendant Wexford’s medical regional director. Only injunctive relief can provide a meaningful remedy for the plaintiff.
A. A SUBSTANTIAL LIKELIHOOD EXISTS THAT PLAINTIFF WILL PREVAIL ON THE MERITS
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To prevail, plaintiff must establish that one or more of the defendants were deliberately indifferent to a serious medical need. A medical need is serious if it "has been diagnosed by a physician as mandating treatment or . . . is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Duran v. Anaya, 642 F. Supp. 510, 524 (D.N.M. 1986).
See also, Johnson v. Busbee, 953 F.2d 349, 351 (8th Cir. 1991); Gaudreault v. Municipality of Salem, Mass., 923 F.2d 203, 208 (1st Cir. 1990). “The existence of an injury that a reasonable doctor or patient would find important and worthy of comment or treatment" supports a finding of seriousness. McGuckin v. Smith, 974 F.2d 1050, 1059-60 (9th Cir. 1992). Twice, recommendations for a Gastroenterlogist consult have been rejected, and the recommendation that the plaintiff be restarted on a medication regimen has also been rejected.
A medical need is serious if absent treatment there is a risk of long-term or permanent injury. Greason v. Kemp, 891 F.2d 829, 836 (11th Cir. 1990). The risk here is even more grievous. If left untreated, plaintiff’s Hepatitis C will cause Mr. Brash’s liver to not function and, unless he gets a transplant, he will die prematurely.
The hallmark of deliberate indifference is knowledge of the need for care and the intentional refusal to provide that care. Ancata v. Prison Health Services, Inc., 769 F.2d 700, 704 (11th Cir. 1985). In the instant matter, each defendant is fully aware of plaintiff's need. Yet, with full knowledge, for a period of
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nearly a year, defendants have failed and refused to provide necessary treatment. During this period of time, plaintiff’s condition has steadily worsened.
Deliberate indifference can be evidenced in many ways. Where prison doctors and other prison officials ignore the recommendations of specialists, they can be found to be guilty of deliberate indifference. Harris v. Coweta County, 21 F.3d 388 (11th Cir. 1994), superseding 5 F.3d 507 (11th Cir. 1993)(failure to follow doctor’s recommendation of a nerve conduction study); Washington v. Dugger, 860 F.2d 1018, 1021 (11th Cir. 1988) (failure to return patient to VA hospital for treatment for Agent Orange exposure). See also, Durmer v. O'Carroll, 991 F.2d 64 (3d Cir. 1993)(failure to provide prescribed physical therapy); Ellis v. Butler, 890 F.2d 1001 (8th Cir. 1989)(cancellation of appointment with knee specialist); Kaminsky v. Rosenblum, 929 F.2d 922 (2d Cir. 1991)(failure to act on an outside doctor's recommendation of immediate hospitalization); Miltier v. Beorn, 896 F.2d 848 (4th Cir. 1990)(failure of prison system's chief physician to ensure that a recommended transfer to a cardiology unit was carried out); Johnson v. Bowers, 884 F.2d 1053 (8th Cir. 1989) (failure to provide corrective surgery recommended by a prison doctor provides basis for injunctive relief even where jury finds no deliberate indifference on damages claim); Payne v. Lynaugh, 843 F.2d 177 (5th Cir. 1988)(failure to transfer prisoner to facility with oxygen equipment required for his emphysema); Lafaut v. Smith, 834 F.2d 389 (4th Cir. 1987)(failure to provide
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rehabilitation therapy despite the recommendation of an orthopedic specialist); Shapley v. Nevada Board of State Prison Commissioners, 766 F.2d 404 (9th Cir. 1985)(denial of knee surgery despite the repeated recommendations of physicians).
If prison officials send prisoners with special needs to outside specialists, they are obliged to carry out the specialists' orders. Hamilton v. Endell, 981 F.2d 1063, 1066 (9th Cir. 1992)(disregard of ear surgeon's direction not to transfer prisoner by airplane could constitute deliberate indifference); Washington v. Dugger, 860 F.2d at 1019-21 (failure to carry out recommendations of Veterans Administration hospital staff for prisoner exposed to Agent Orange could constitute deliberate indifference); Martinez v. Mancusi, 443 F.2d 921, 923-25 (2d Cir. 1970) (removal of surgical patient from hospital against doctor's orders could constitute deliberate indifference), cert. denied, 401 U.S. 983 (1971).
Defendants Wexford and Rowe have adopted the head in the sand approach: despite being under state contract to provide inmates with medical care, they are not doing so. As the Supreme Court held in Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 1981, 128 L.Ed.2d 811 (1994):
Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inferences from circumstantial evidence . . . and a factfinder may conclude
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that a prison official knew of a substantial
risk from the very fact that the risk was
obvious.
One Florida Department of Corrections doctor and two of defendant
Wexford’s own doctors have recommended that the plaintiff see a
gastroenterologist and resume treatment for Hepatitis C.
Delaying treatment for a known, potentially fatal problem
provides a foundation for a court to find deliberate indiffer-
ence. Brown v. Hughes, 894 F.2d 1533 (11th Cir. 1990), cert.
denied, 496 U.S. 928, 110 S.Ct. 2624, 110 L.Ed.2d 645 (1990) ("a
deliberate delay on the order of hours in providing care for a
serious and painful broken foot is sufficient to state a consti-
tutional claim"); Carswell v. Bay County, 854 F.2d 454 (11th Cir.
1988) (failure of physician's assistant to notify jail doctor of
medical problems).
When defendant Wexford’s Regional Medical Director in Miami, Dr. Smith, ordered that the plaintiff resume treatment, his recommendation was countermanded by defendant Wexford’s Vice President and Chief Medical Director in Pittsburgh, defendant Rowe, for financial, not medical reasons. Since several of the defendants’ doctors have opined that treatment be resumed for the plaintiff, it is a fair inference that the only reason he has not been given the treatment is monetary. Failing to provide necessary medical care for non-medical reasons is, as the cases hold, deliberate indifference. Ancata v. Prison Health Services, Inc., 769 F.2d 700, 704 (11th Cir. 1985). Moreover, cost is not a defense. Hamm v. Dekalb County, 774 F.2d 1567, 1573 (11th Cir. 1985); Newman v. Alabama, 559 F.2d 283, 286 (5th Cir. 1977), rev'd on other grounds sub nom. Alabama v. Pugh, 438 U.S. 781, 98 S.Ct. 3057, 57 L.Ed.2d 1114 (1978); Gates v. Collier, 501 F.2d 1291 (5th Cir. 1974). And see, Mitchell v. Untreiner, 421 F.Supp. 886, 896 (N.D. Fla. 1976) ("It can be succinctly stated that `[l]ack of funds is not an acceptable excuse for unconstitutional conditions of incarceration.'").
B. PLAINTIFF WILL CONTINUE TO SUFFER IRREPARABLE INJURY ABSENT INJUNCTIVE RELIEF
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Defendants persist in refusing to approve plaintiff for treatment despite numerous inmate grievances, letters to the officials from the plaintiff’s sister, and formal efforts of undersigned counsel. Absent intervention of the court, it is sure that plaintiff will continue to suffer from this progressive disease which, at some point — assuming that point has not been already reached, may become irreversible. No after-the-fact monetary remedy can cure plaintiff's injury. Money damages will not make the plaintiff whole if he eventually loses his liver and dies prematurely.
By refusing to approve the necessary treatment, as recommended by qualified specialists, defendants are guilty of deliberate indifference to plaintiff’s serious medical needs. Where a deprivation of constitutional rights is involved, many courts hold that no further showing of irreparable harm is necessary. Here, however, plaintiff's injury is concrete and real. Absent injunctive relief, he has no way to obtain medical care that several specialists have deemed necessary. Instead, he will continue to suffer pain and discomfort, and the risk of significant permanent injury and eventually death, if relief is not provided by this Court.
C. THE HARM TO THE PLAINTIFF FAR OUTWEIGHS ANY HARM WHICH THE INJUNCTION MAY CAUSE
The harm to plaintiff is clear. On the other hand, defendants can show no legally recognizable harm whatsoever to themselves or others if they are required to take steps necessary to
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provide plaintiff with treatment for Hepatitis C. That it may cost money to provide treatment is not the type of harm which would counsel against the granting of a preliminary injunction. Indeed, to permit defendants to defend against the granting of a preliminary injunction by arguing the relatively minimal cost here involved is to legitimatize their unconstitutional conduct.
Plaintiff has no adequate remedy at law. He has suffered and will continue to suffer irreparable injury absent injunctive relief. On the other hand, providing the necessary care will not harm defendants.
D. HARM TO DEFENDANTS OR THE PUBLIC GENERALLY There simply can be no question of any harm to the defendants or the public by insuring that the defendants comply with the mandates of the Eighth Amendment. To the contrary, it is in the public's interest that our officials not believe themselves to be above the laws. As the late U.S. District Court Judge Charles Scott stated:
A free democratic society cannot cage inmates like animals in a zoo or stack them like chattels in a warehouse and expect them to emerge as decent, law abiding, contributing members of the community. In the end, society becomes the loser. Costello v. Wainwright, 397 F.Supp. 20, 38 (M.D. Fla. 1975) (footnotes omitted).
CONCLUSION Overall, there is a substantial likelihood that plaintiff will prevail on the merits; that he will continue to suffer irreparable injury if an injunction is denied; that granting the
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injunction is unlikely to cause injury to others; and that the public interest can only be advanced by granting the injunction.
Plaintiff is without funds. There are no financial consequences to defendants should the issuance of a preliminary injunction later be reversed. Therefore, plaintiff requests that no bond for security be required. Orantes-Hernandez v. Smith, 541 F.Supp. 351, 385-86 n.42 (C.D. Cal. 1982).
Wherefore, for the foregoing reasons, plaintiff respectfully requests that this Court:
1. Promptly schedule a hearing; 2. Issue a writ of habeas corpus ad testificandum requiring the Warden at Okeechobee Correctional Institution to produce plaintiff at the hearing; 3. Issue a Preliminary Injunction ordering defendants to forthwith send plaintiff to a consult with a qualified gastroenterologist to reinstitute medication for his Hepatitis C; 4. Waive the posting of a bond for security; and 5. Grant such other relief as may be equitable and just.
Respectfully submitted, Randall C. Berg, Jr., Esq. Peter M. Siegel, Esq. Florida Justice Institute, Inc. 2870 Wachovia Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-2309 305-358-2081 305-358-0910 (FAX) E-Mail: rcberg@bellsouth.net Attorneys for Plaintiff
- 15 -

______________________________ By: Randall C. Berg, Jr., Esq. Florida Bar No. 0318371
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing document has been furnished to Mitchel Chusid, Esq., Ritter Chusid Bivona & Cohen, L.L.P., 7000 West Palmetto park Road, Suite 305, Boca Raton, Florida 33433, counsel for the defendants Wexford and Rowe, and Louis Vargas, Esq., General Counsel, Florida Department of Corrections, 2601 Blairstone Road, Tallahassee, Florida 323992500, counsel for defendant Moore by First Class U.S. Mail on December 6, 2002.

Brash\m-pi.wpd

______________________________ By: Randall C. Berg, Jr., Esq.

- 16 -

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
Ft. Pierce Division
Case No. 02-14331-Civ-Paine/Lynch

ALLEN BRASH,

)

)

Plaintiff,

)

)

v.

)

)

WEXFORD HEALTH SOURCES, INC., )

a Florida corporation, DAVID )

ROWE, and MICHAEL MOORE, in )

his official capacity as

)

Secretary of the Florida

)

Department of Corrections, )

)

Defendants.

)

)

PLAINTIFF’S REPLY MEMORANDUM IN OPPOSITION TO DEFENDANTS’ RESPONSES TO PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION

Defendants Wexford, Rowe and Moore have improperly framed

the issue before this Court on plaintiff’s motion for a prelimi-

nary injunction. All defendants would like to characterize the

issue as whether the “propriety of a certain course” or “type of

treatment” is actionable under § 1983 as an 8th Amendment viola-

tion. That mischaracterizes the facts as alleged in the verified

complaint and plaintiff’s medical records, and could well lead

this Court into error, not to mention shorten plaintiff’s life

span due to defendants’ continued intentional delay in his

obtaining medication.

1. Three Doctors Employed by the Defendants Have

Recommended Treatment; All to be Denied by Dr.

Rowe For Monetary -- Not Medical -- Reasons.

The factual record to date demonstrates -- and defendants have not produced one scintilla of evidence to refute it -- that three doctors, all employed by these defendants, have recommended that Mr. Brash be retreated for Hepatitis C. Thus, the argument is not over the “type” or “propriety of treatment” the plaintiff desires or needs, it is over whether the plaintiff is getting the very treatment that his treating physicians have recommended.
It bears repeating here which treating physicians have recommended that Mr. Brash should be retreated, only to have their recommendations denied by Dr. Rowe. First, Dr. Shah, a Gastroenterologist at the North Florida Reception Center employed by the Florida Department of Corrections, charted that the plaintiff should be scheduled to see a Gastroenterologist by December 10, 2001. Before plaintiff could see a Gastroenterologist, Mr. Brash was transferred to Okeechobee Correctional Institution. (Comp., ¶ 13).
Plaintiff then came under the medical care of defendant Wexford and its prison doctor, Dr. Bhadja, at Okeechobee Correctional Institution. Another Gastroenterologist Consult was recommended for the plaintiff on January 23, 2002, this time by Dr. Bhadja. The consult recommendation was denied by defendant David Rowe on January 28, 2002.
On June 12, 2002, Dr. Robert Smith, defendant Wexford’s Regional Medical Director in Miami, recommended that Mr. Brash be retreated with Pegasys plus Ribavirin. Indeed, it is charted in Mr. Brash’s medical records on June 12, 2002, that Dr. Bhadja,
- 2 -

Wexford’s Medical Director at Okeechobee Correctional Institution, that the plaintiff receive “Peginterferon and Ribavirin,” just as Dr. Smith had ordered. See, Exhibit A, attached prescription form.1 Then just 6 days later on June 18, 2002, there is another entry in the medication and prescription orders to “hold Ribavirin and Interferon until further order from Dr. Smith.” Id. No further order to dispense Ribavirin and Interferon has been forthcoming. This prescription order, just like the order of Dr. Brash to see a Gastroenterologist, was countermanded by Dr. Rowe, Wexford’s Corporate Vice President and Medical Director, purely for cost saving reasons. In short, Mr. Brash has not received any medical care or treatment for his Hepatitis C since he arrived at OCI in December 2001.
The Eleventh Circuit has consistently held that “knowledge of the need for medical and the intentional refusal to provide it constitutes deliberate indifference to one’s serious health care needs.” Ancata v. Prison Health Services, 769 F.2d 700, 703-704 (11th Cir. 1985). “A core principle of Eighth Amendment jurisprudence in the area of medical care is that prison officials with knowledge of the need for care may not, by failing to provide care, delaying care, or providing grossly inadequate care, cause a prisoner to needlessly suffer the pain resulting from his or her illness.” McElligott v. Foley, 182 F.3d 1248,
1This prescription form and all plaintiff’s medical records were previously filed on December 6, 2002. DE 5.
- 3 -

1257 (11th Cir. 1999). The failure to follow the recommendations of treating physicians is clearly recognized as rising to the level of a constitutional claim. Washington v. Dugger, 860 F.2d 1018, 1021 (11th Cir. 1988)(refusal of Department of Corrections’ doctors to follow the recommendations of treating physicians from the Veterans Administration). And failure to provide or to delay medical care for non-medical reasons [costs] makes out a case for deliberate indifference. Ancata, 769 F.2d 704.
2. Defendants Wexford and Rowe Fail to Counter the Actions of Dr. Rowe Through the Submissions of Expert Declarations and a Memo
Defendants Wexford’s and Rowe’s submission of three experts fail to counter the actions of Dr. Rowe’s denial of medical treatment. Each submission is fraught with glaring omissions and problems.
First, defendants Wexford and Rowe submitted as Exhibit A to their Response a memo of Dr. Robert Smith dated April 2, 2002. It should first be noted that this is simply a memo, not an affidavit or declaration. More importantly, as set forth above and in the verified complaint at bar, Dr. Smith changed his opinion after writing this April memo. On June 12, 2002 he ordered the plaintiff be retreated with Peg interferon with Ribavirin, only later to have his recommendation countered by Dr. Rowe on June 18, 2002. Dr. Smith could not submit an affidavit or declaration countering or calling into question what the
- 4 -

plaintiff alleged in the verified complaint without committing perjury.
Second, defendant Rowe submits his own self-serving declaration as Exhibit B to defendants’ Response to Plaintiff’s Motion for a preliminary Injunction. Dr. Rowe’s declaration fails to challenge the verified complaint’s allegations that he countered Dr. Bhadja’s recommendations for further treatment on not one, but two occasions, and that he has refused to provide Mr. Brash with Pegintron with Ribavirin solely to save money. Instead, he attempts to justify his decision that Mr. Brash does not need treatment for Hepatitis C. As the Rebuttal Declaration of Dr. Cecil being filed contemporaneously with this submission attests:
Dr. Rowe’s statement that “there is no factual evidence in Mr. Brash’s records to suggest that his current condition may lead to cirrhosis of the liver, cancer of the liver, and death. This is purely hypothetical,” is simply incorrect. It is indicative of Dr. Rowe’s lack of knowledge of Hepatitis C, Mr. Brash’s condition, and his immediate need for treatment. If the progression of this disease were not of any concern, or “purely hypothetical” as Dr. Rowe suggests, then one has to answer the question why did Dr. Shah put Mr. Brash on interferon and Ribaviron for 11 months from September 2000 to August 2001?
- 5 -

Rebuttal Declaration of Dr. Bennet Cecil, February 13, 2003, ¶ 6.2
2Dr. Cecil it should be noted feels so strongly that Mr. Brash is an excellent candidate for retreatment, he has provided his services here to date pro bono and has agreed to consult pro bono on Mr. Brash’s retreatment if so ordered by the court.
- 6 -

Third, defendants Wexford and Rowe later filed the declaration of Dr. Michael Fried. Dr. Fried’s declaration is also faulty and extremely questionable. It contains improper conclusory statements about the NIH Consensus Panel Statement’s factors concerning the “retreatment of patients” which should be stricken. As Dr. Cecil points out in his declaration, the NIH Statement lists five factors which a doctor should consider in determining whether a patient needs retreatment. See Declaration of Dr. Cecil, ¶ 4. Dr. Fried notes the existence of these factors in the Panel Statement and then leaps to the conclusion that Mr. Brash is not deserving of retreatment. Conclusory statements are improper. Dr. Cecil then goes through the five factors, weighs the plaintiff’s status as to each factor, and then concludes Mr. Brash is a curable patient who if not treated in the very near future will suffer an early death as the result of Hepatitis C and the associated medical problems, including liver cancer and liver failure, that it causes. Id. He concludes that “[t]ime is of the essence in Mr. Brash’s instance, and retreatment with Pegasys with Ribavirin should be started right away.” Id. Based on the reasons set forth in Dr. Cecil’s declaration, Dr. Fried’s declaration should be ignored if not stricken.3
3. Plaintiff Has Satisfied the Four Prongs Required for the Issuance of a Preliminary Injunction
3Plaintiff is filing contemporaneously with this Reply a Motion to Strike Dr. Fried’s Declaration as being conclusory.
- 7 -

Plaintiff has met the four requirements for the issuance of a preliminary injunction. And, if there is still any doubt, plaintiff would welcome an evidentiary hearing as requested on December 6th’s Motion for a Prompt Hearing.
Defendants are really just arguing over the preliminary injunction requirements of one and two -- likelihood of success on the merits, and irreparable injury. As to the first prong, likelihood of success on the merits, there can be no doubt that the plaintiff has not received the first ounce of medical treatment for Hepatitis C since he arrived at OCI in December 2001. The only treatments which were recommended were (1) that he receive a Gastroenterologist consult, ordered on January 23, 2002, and (2) that he receive peg intron and Ribavirin, ordered on June 12, 2002. Both treatments were denied by Dr. Rowe.
Thus, all of the defendants’ statements that this is really just an argument over the “propriety” and “type of treatment” is simply hot air. The same is true for their statement that he has received “some” medical treatment since arriving at OCI. Instead, this is a lawsuit about a man who will die an early death if he does receive the very medical treatment the defendants’ three treating physicians have recommended.
As to the second prong -- irreparable injury will be suffered unless the injunction issues -- there can be no doubt that Hepatitis C is a deadly disease. And if Mr. Brash is not treated in the very near future, he will suffer an early death as the result of Hepatitis C and the associated medical problems,
- 8 -

including liver cancer and liver failure, that it causes. As Dr.

Cecil states “time is of the essence in Mr. Brash’s instance, and

retreatment with Pegasys with Ribavirin should be started right

away.” Id. He can not wait until the “completion of specific

studies in the field of treatment of Hepatitis C” as Dr. Fried

suggests in ¶ 12 of his Declaration. For Mr. Brash does not have

any alternatives. He can not just walk out of prison and be

treated with Pegasys with Ribavirin. If this Court does not

issue a preliminary injunction, Mr. Brash will suffer an early

death.

For the reasons set forth above and in the other pleadings

filed herein, plaintiff requests the issuance of a preliminary

injunction ordering that he receive treatment and medication for

his Hepatitis C.

Respectfully submitted,

Randall C. Berg, Jr., Esq. Peter M. Siegel, Esq.

Florida Justice Institute, Inc.

2870 Wachovia Financial Center

200 South Biscayne Boulevard

Miami, Florida 33131-2309

305-358-2081

305-358-0910 (FAX)

‘

E-Mail: rcberg@bellsouth.net

Attorneys for Plaintiff

______________________________ By: Randall C. Berg, Jr., Esq. Florida Bar No. 0318371

- 9 -

CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing document and any attachments have been furnished to Mitchel Chusid, Esq., Ritter Chusid Bivona & Cohen, L.L.P., 7000 West Palmetto park Road, Suite 305, Boca Raton, Florida 33433, counsel for the defendants Wexford and Rowe, and Valerie Martin, Esq., Assistant Attorney General, Florida Department of Legal Affairs, 1515 North Flagler Drive, Suite 900, West Palm Beach, Florida 33401, counsel for defendant Moore by Fed Ex overnight mail on February 17, 2003.
_____________________________ Randall C. Berg, Jr., Esq.
- 10 -

 
 '~;
)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
CASE NO. 02-14331-CIV-PAINEILYNCH
ALLEN BRASH,
Plaintiff,
vs.
WEXFORD HEALTH SOURCES, INC., A Florida corporation, DAVID ROWE, and MICHAEL MOORE, in his official capacity as Secretary of the Florida Department of Corrections,

RECEIVED
MAY 0 1 2003
FLO!!!!lAJ!l8TIG~ IIlSTl11Im, INC.
FILED by <R .C.
APR 2.9 2003
CL.ARE-NCE MADDOX CLERK U.S. DIST. CT.
S.D. OF FLA•• W.P.B.

Defendants.
------------------------~/
ORDER
TillS CAUSE comes before the Court upon the March 4, 2003, Report and Recommendation

of the Honorable Frank J. Lynch Jr., United States Magistrate Judge, recommending that the

Plaintiffs Motion for Preliminary Injunction be denied. (D.E. 46). The Plaintiff filed Objections

on March 14, 2003, (D.E. 49), the Defendants filed a Response to the Plaintiffs Objections on

March 24,2003 (D.E 52), and March 252003 (D.E. 53), and the Plaintiff replied on April 2, 2003

(D.E.54).

Having made a de novo review ofthe Magistrate Judge's Report and Recommendation, this

Court concludes that it should be reversed as explained below. 28 U.S.C. §636(b)(l), United States

v. Raddatz, 447 U.S. 667, 673 (1980), Jeffrey S. v. State Bd. ofEduc., 896 F.2d 507, 512-13 (lIth

Cir. 1990).

1

.J
In the Report and Recommendation, the Honorable Frank J. Lycnh Jr. found! :
I. The Plaintiff has been in the custody of the Florida Department of Corrections ("DOC") since 1987. He currently suffers from Hepatitis C and is in the second stage ofcirrhosis ofthe liver. IfHepatitis C is left untreated, it may lead to death from either further cirrhosis ofthe liver or cancer of the liver. 2. The Plaintiff was housed at the Union Correctional Institution and received medical care from Dr. Shah, a gastroenterologist specialist employed by the DOC. Dr. Shah placed the Plaintiff on an eleven month treatment of Interferon. At the end the treatment period, in August 200 I, Dr. Shah examined the Plaintiff, fmding that although he had responded favorably, the medication did not completely eliminate the virus. Dr. Shah charted the Plaintiff to have a liver profile in six months, and the Plaintiffpresumes that his treatment regimen was to be restarted then. In October 10,2001, Dr. Shah charted that the Plaintiff be scheduled to see a gastroenterologist by December of that year. 3. Before he was able to see a gastroenterologist, the Plaintiff was transferred to the Okeechobee Correctional Institution where he is currently housed. There he came under the medical care ofthe Defendant Wexford Health Sources, Inc., and its prison doctor, Dr. Bhadja. Dr. Bhadja also recommended that the Plaintiffsee a gastroenterologist but the recommendation was denied by the Defendant Dr. David Rowe on January 28, 2002. Dr. Rowe is the Vice President and Chief
!Neither the Plaintiff nor the Defendants objected to the statement offacts issued in the Report and Recommendation.
2Specifically, Dr. Robert Smith, Regional Director of Wexford Health Source, states that the Plaintiff was diagnosed with Chronic Hepatitis C, Grade II (Mild Periportal Inflammation) and Stage III (Early Septal Fibrosis).
2

'.>

.. )

Medical Director for Wexford Health Sources, Inc., at its Pittsburgh head office, and as such, he
makes determinations regarding the provision of medical care. Soon thereafter, on January 30,
2002, another Wexford prison doctor, Dr. Diaz, charted that the Plaintiff"is a treatment failure. He
should not be treated again. Follow up yearly for Hep C." In April 2002, Dr. Robert Smith,
Wexford's regional medical director, wrote a memorandum concurring with Dr. Diaz's assessment
that the Plaintiff is a treatment failure in light of his relapse.
4. However, in June 2002, Dr. Robert Smith changed his opinion and recommended that the
Plaintiff be restarted on pegylated interferon with ribavirin, for which Dr. Bhadja charted him for
such treatment. Six days later on June 18,2002, Dr. Rowe rejected this recommended course of
treatment, instructing that the medication be held until further order. The Plaintiff has not been
examined by a gastroenterologist since being under the care ofDr. Shah at the Union Correctional
Institution.
5. In his Declaration in support of the Plaintiffs Motion, Dr. Bennet Cecil, a Hepatitis
specialist, explained this new treatment as such:
"in August 2001 the FDA approved the combination of Peginterferon and the nucleoside analogue Ribavirin for patients with chronic HCV infection. This combination ofPeginterferon plus Rebetol permits a sustained virologic response of approximately 40% in genotype 1 with higherrates in genotypes 2 and 3. Mr. Brash is a genotype 1. The FDA approved Pegasys for treatment of HCV cirrhosis on October 16, 2002... Ribavirin should be added in January when the FDA approves it ... Since the approval of pegylated interferon, they have become the standard of care for treatment of HCV. Pegylated interferon are superior to ordinary interferons."
6. The Plaintiff has used the established inmate grievance process to request treatment but
without success, and his attorneys and sister have also written letters to the Defendants. The

3

)
Plaintiffalleges that the Defendants have denied this treatment for non-medical reasons, namely to save money.
In the Report and Recommendation, the Honorable Frank J. Lynch Jr., found that the Plaintiffhad not made the requisite showing to support the issuance ofa preliminary injunction. He further stated that, "while this court is cognizant ofthe Plaintiff's medical condition, this Court fmds no immediate urgency that carmot wait further deliberation." (D.E. 46). In his objection, the Plaintiff argues several errors were made below, and that the Plaintiff did make the requisite showing in support of the issuance of a preliminary injunction. This Court is persuaded by the Plaintiff's arguments.
This Court finds that the Plaintiffhas established a substantial likelihood ofsuccess on the merits. The Eleventh Circuit has held that [i]n order to state a cognizable claim, a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate indifference to serious medical needs. McElligott v. Foley, 182 F.3d 1248, 1254 (11th Cir. 1999). An official acts with deliberate indifference when he or she knows that an inmate is in serious need of medical care, but fails or refuses to obtain medical treatment for the inmate. Id. at 1255. The Defendants in the case at bar know the Plaintiffhas Hepatitis C, and Cirrhosis ofthe liver, yet they have not provided any medical treatment or care for the Plaintiff in regard to his Hepatitis or Cirrhosis. Furthermore, all of the Plaintiff's treating physicians, save Dr. Diaz, have specifically requested that he be examined by a specialist and/or be placed on the FDA's new treatment for Hepatitis C.
This Court also finds that the Plaintiff has established a substantial threat of irreparable injury if relief is not granted. The Plaintiff has already been diagnosed with cirrhosis of the liver.
4

" ,.
The Court notes that the Defendants do not dispute that the Hepatitis is currently causing the cirrhosis (if not to the degree of death) or that the damage caused by the cirrhosis is permanent.
Upon due consideration of said motion, the opposition thereto, and the record, the Court finds that the Plaintiffhas a cause ofaction for a violation ofhis Eight Amendment right to medical care, and has met the four requirements3for the issuance of a preliminary injunction; namely:
(1) substantial likelihood of success on the merits; (2) substantial threat of irreparable injury if relief
is not granted; (3) the threatened injury to the movant outweighs the
harm the injunction would do to the defendant; and (4) the granting of the injunction is in the public
interest. Therefore, it is hereby
ORDERED AND ADJUDGED as follows: (1) The Magistrate Judge's Report and Recommendation of March 4,2003, is REVERSED. The Plaintiffs motion for a preliminary injunction is GRANTED. (2) Pursuant to Rule 65 of the Federal Rules of Civil Procedure, the Defendants shall:
(a) immediately send the Plaintiff to a Gastroenterologist; (b) should said Gastroenterologist find that future medical treatment for the Plaintiff's Hepatitis C and cirrhosis of the liver is required, such treatment shall immediately be
3Neither Defendants address the issues, or point to any harm that would result ifthe injunction were to be granted or harm to the public interest.
5

 
 ./33 ~(p
r)

7/ z1j

F

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
Ft. Pierce Division
Case No. 02-14331-Civ-Paine/Lynch

JUt 2 B 711111'1
I1Q[1I1l!lJ~~nGf m&T!Til!f, !!'II:.

ALLEN BRASH,

)

)

Plaintiff,

)

)

v.

)

)

WEXFORD HEALTH SOURCES, INC., )

a Florida corporation, DAVID )

ROWE, and JAMES CROSBY, in )

his official capacity as

)

Secretary of the Florida

)

Department of Corrections,

)

)

Defendants.

)

~-------------)

FILED by "'k D.C.

JUL 24 2003

CC\.lE.A.R"KENuC.sE.

MAPDO~ DIST. CT.

S.D. OF flA•• W.P.B.

ORDER THIS CAUSE comes before this Court upon the Plaintiff's Emergency Motion for the Conversion of the Preliminary Injunction to a Permanent Injunction as to Defendant Crosby. Having heard argument and reviewed this Emergency Motion and the pertinent portions of the record, and being otherwise advised in the premises, it is hereby, ORDERED AND ADJUDGED that the Court finds that the preliminary injunction entered April 28, 2003, and as clarified on May 6, 2003, is hereby modified and made a permanent injunction pursuant to 18 U.S.C. §3626(b) (4). It is further ORDERED AND ADJUDGED that Defendant Crosby shall ensure that the Plaintiff be fully retreated with Pegylated Interferon and Ribavirin. It is further

ORDERED AND ADJUDGED that Plaintiff's rights under the Eight

Amendment to the U. S. Constitution will be violated unless the

Plaintiff continues to receive retreatment for his Hepatitis C and

cirrhosis at Okeechobbe Correctional Institution, or any other

facility where suitable retreatment can be provided. It is further

ORDERED AND ADJUDGED that this Order is narrowly drawn and

extends no further than necessary to correct the violation of the

alleged federal right of which this Court previously found there

was a likelihood of success on the merits and is the least

intrusive means necessary to correct that federal right without

adversely impacting public safety or the operation of the criminal

justice system. It is further

ORDERED AND ADJUDGED that the Plaintiff is the prevailing

party for purposes of awarding attorneys' fees ans costs. It is further

ORDERED AND ADJUDGED that the parties shall attempt to resolve

the Plaintiff's attorneys' claim for fees and costs within sixty

(60) days of the entry of this Order. In the event that the

parties are unable to resolve Plaintiff's claim for attorneys' fees

and costs within sixty (60) days from the entry of this Order, the

Plaintiff shall file his motion for attorneys' fees and costs

\11

within ninety (90) days from the entry of this Order. It is

further

ORDERED AND ADJUDGED that all pending motions are denied as

-2-

')

moot. It is further

ORDERED AND ADJUDGED that the Court shall retain jurisdiction

to consider and decide whether the Plaintiff's attorneys' fees,

expenses, and costs are to be recovered. It is further

ORDERED AND ADJUDGED that the Court shall retain jurisdiction

over this Order for the full term of the Plaintiff's retreatment

for Hepatitis C and cirrhosis.

;t4~~ay DONE AND ORDERED at West Palm Beach, Florida, this

of

July, 2003.

,
DISTRICT JUDGE

cc: Randall C. Berg, Jr., Esq. Valerie J. Martin, AAG Mitchel Chusid, Esq. Patrick Patrissi, Esq. Lynn Sharon, Esq.

-3-

 
 Case 2:02-cv-14331-JCP Document 111 Entered on FLSD Docket 11/20/2003 Page 1 of 2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
Ft. Pierce Division
Case No. 02-14331-Civ-Paine/Lynch

ALLEN BRASH,
Plaintiff,
v.
WEXFORD HEALTH SOURCES, INC., a Florida corporation, DAVID ROWE, and JAMES CROSBY, in his official capacity as Secretary of the Florida Department of Corrections,
Defendants.

FILED by _ _ _ D.C.
NOV 18 2003
Cli\II,NCl MADDOX CLERI< U.s. OIST. CT. S.D. OF FLA. • W.P.B.

PLAINTIFF'S NOTICE OF SETTLEMENT OF ATTORNEYS' FEES
Plaintiff, by and through undersigned counsel, gives notice
the parties have settled the issue of plaintiff's attorneys' fees
and costs, and as soon as payment is completed for Defendant
James Crosby, a Stipulation of Payment will be filed.
Respectfully submitted,
Randall C. Berg, Jr., Esq. Peter M. Siegel, Esq.
Florida Justice Institute, Inc. 2870 Wachovia Financial Center 200 South Biscayne Boulevard Miami, Florida 33131-2309 305-358-2081 305-358-0910 (FAX) E-Mail: rcberg@bellsouth.net
Plaintiff
!!'

y:

ndall C.

Florida Bar No.

! \ \ Esq.

Case 2:02-cv-14331-JCP Document 111 Entered on FLSD Docket 11/20/2003 Page 2 of 2 CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing document and all attachments have been furnished to Lynn Sharon, Esq., Ritter Chusid Bivona & Cohen, L.L.P., 7000 West Palmetto park Road, Suite 305, Boca Raton, Florida 33433, counsel for the defendants Wexford and Rowe, and Valerie Martin, Esq., Assistant Attorney General, Florida Department of Legal Affairs, 1515 North Flagler Drive, Suite 900, West Palm Beach, Florida 33401, counsel for defendant Crosby by First Class U.S. Mail on November 17, 2003.
Brash/notice4.wpd
-2-

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA

ALLEN BRASH,

Case No: 02-14331 CIV-PAINE Magistrate Judge: Lynch

Plaintiff,

v.

WEXFORD HEALTH SOURCES, INC., a Florida corporation, DAVID ROWE, and MICHAEL MOORE, in his official capacity as Secretary of the Florida Department of Corrections,

Defendants. _________________________________/

DEFENDANTS’ WEXFORD HEALTH SOURCES, INC. and DAVID ROWE’S MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY
INJUNCTION AND MOTION FOR A PROMPT HEARING

Defendants, WEXFORD HEALTH SOURCES, INC. (“Wexford”) and DAVID ROWE

(“Rowe”), by and through undersigned counsel, hereby file their Memorandum in Opposition to

Plaintiff’s Motion Preliminary Injunction and Motion for Prompt Hearing, and state the following:

I. INTRODUCTION

Plaintiff, Allen Brash, is currently incarcerated at Okeechobee Correctional Institution.

Plaintiff seeks to enjoin Defendants by ordering them to refer Plaintiff to a Gastroenterologist so that

he may be restarted on Interferon plus Ribavirin for the treatment of his Hepatitis C.

In support of his motion, Plaintiff alleges that while he was an inmate at Union Correctional

Facility, he received Interferon and Ribaviron for an eleventh month period (July 2000 to August

1

2001), which did not eliminate the virus, but lowered his viral count to 600IU/ml. In August of 2001, Plaintiff’s Interferon treatment was terminated and Dr. Shah, a Board Certified Internist, stated that he should be rechecked in six months, according to Plaintiff, “presumably [to] be restarted on a treatment regimen for Hepatitis C.” Additionally, Dr. Shah charted that Plaintiff should be seen by a gastroenterologist by December 10, 2001. See Plaintiff’s Verified Complaint, ¶13.
Plaintiff was transferred to Okeechobee Correctional Institution in December of 2001. Plaintiff alleges that Wexford and Rowe have refused to refer him to a Gastroenterologist and restart his Interferon treatment and that said refusal amounts to a deliberate indifference to Plaintiff’s serious medical needs and is in violation of the Eighth Amendment of the United States Constitution. Defendant submits the opinion of Dr. Robert Smith, Regional Director of Wexford, who opined that Plaintiff is not a candidate for further Interferon treatment because Plaintiff has subtype 1b Hepatitis C (which is very resistant to Interferon), his biopsy revealed early cirrhosis of the liver (responds poorly to treatment) and eight months following treatment, Plaintiff suffered from rebounding viral loads to pretreatment levels. II. STANDARD FOR PRELIMINARY INJUNCTION
In order to warrant a preliminary injunction, Plaintiff bears the burden of proving four separate elements: (1) a substantial likelihood of the success on the merits; (2) irreparable harm if an injunction does not issue; (3) the threatened injury outweighs any harm that might result to the Plaintiff; and (4) that public interest will not be served. See Cuban American Bar Association v. Christopher, 43 F. 3d 1412, 1424 (11th Cir.) cert. denied, 515 US 1142 (1995); Church v. City of Huntsville, 30 F. 3d 1332, 1341-42 (11th Cir. 1994), NNADI v. Richter, 976 F. 2d 682, 690 (11th Cir. 1992); Northeastern Florida Chapter Association General Contractors of America v. City of
2

Jacksonville, 896 F.2d 1283, 1284 (11th Cir. 1990). If any one of these elements is not met, the Court need not address the other elements and should deny injunctive relief. See Church, 30 F. 3d at 1342.
As the granting of a preliminary injunction is “an extraordinary and drastic remedy”, plaintiff must demonstrate that the irreparable harm he will suffer is actual and imminent, and not remote or speculative. See Tucker Anthony Realty Corp. v. Schesinger, 888 F2d 969, 973 (2nd Cir. 1989). A preliminary injunction must be the only way of protecting a plaintiff from harm. See Rey v. Guy Gannett Publishing Co., 766 F.Supp. 1142 (S.D.Fla. 1991). “The possibility that adequate . . . corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against the claim for irreparable harm.” Samson v. Murray, 415 U.S. 61, 90 (1974). II. PLAINTIFF CANNOT MEET HIS BURDEN OF PROOF
An Eighth Amendment claim of denied of medical care requires a showing that the acts or omissions were sufficiently harmful to evidence deliberate indifference to serious medical needs or the unnecessary and wanton infliction of pain. See Estelle v. Gamble, 429 U.S. 97 (1976). See also, Brown v. USA, 894 F.2d 1533 (11th Cir. 1990)(an action under 42 U.S.C. 1983 for denial of adequate medical care will be dismissed if it does not allege sufficient facts which would support a charge with deliberate indifference to serious medical needs); Payne v. Monroe Company, 779 F.Supp. 1330 (S.D.Fla. 1991); Vaughn v. Kerley, 897 F.Supp 1413 (M.D.Fla. 1995). It is well established that the courts are hesitant to find an Eighth Amendment violation once an inmate has received medical care. See Hamm v. DeKalb County, supra. Actions or inactions involving medical treatment violate the Eighth Amendment only if they involve “something more than a medical judgment call, an accident, or an inadvertent failure,” Murrell v. Bennett, 615 F.2d 306, 310
3

n. 4 (5th Cir. 1980). It must be “so grossly incompetent, inadequate, or excessive as to shock the conscience or to be intolerable to fundamental fairness.” Rogers v. Evans, supra at 1058.
The courts have long recognized that a difference of opinion between an inmate and the prison medical staff regarding medical matters, including the diagnosis or treatment which the inmate receives, cannot in itself rise to the level of a cause of action for cruel and unusual punishment. The propriety of a certain course of medical treatment is not a proper subject for review in a civil rights action. Estelle v. Gamble, supra, at 107 (matters of medical judgment do not give rise to a §1983 claim). See also, Ledoux v. Davies, 961 F.2d 1536 (10th Cir. 1992) (inmate’s belief that he needed additional medication other than that prescribed by treating physician was insufficient to establish constitutional violation); Ramos v. Lamm, 639 F.2d 559, 575 (10th Cir. 1980), cert. denied, 450 U.S. 1041 (1981)(difference of opinion between inmate and prison medical staff regarding treatment or diagnosis does not itself state a constitutional violation); Burns v. Head Jailor of LaSalle County Jail, 576 F.Supp. 618, 620 (N.D. Ill., E.D. 1984) (exercise of prison doctor’s professional judgment to discontinue prescription for certain drugs not actionable under §1983). See also, Christy v. Robinson, 216 F.Supp.2d 398, 416 (D.C.N.J. 2002), wherein the court held that “the Constitution does not guarantee that every prisoner will receive every type of treatment he desires, or even may need.”
It cannot be disputed that the Plaintiff has received medical care. According to Dr. Robert Smith, Regional Director of Wexford Health Sources, Plaintiff was diagnosed with Chronic Hepatitis C, Grade II (Mild Periportal Inflammation) and Stage III (Early Septal Fibrosis)(See Memorandum from Dr. Robert Smith to T.R. Sucher, III attached hereto as Exhibit “A”). Testing also revealed the Genotype to be 1b. (Exhibit “A”.) Dr. Rowe states that this type of Hepatitis is
4

very resistant to treatment with Interferon, has a higher failure rate and requires longer periods of treatment. (See Declaration of Dr. Rowe attached hereto as Exhibit “A”.) Further, Plaintiff’s liver biopsy revealed pathologic changes indicating that he had early cirrhosis. (Exhibit “A”.) Patients with cirrhosis or advanced fibrosis respond poorly to treatment. (Exhibit “A”.) Nonetheless, Plaintiff was treated by Dr. Shah, an internist, for eleven months September 2000 to August 2001 with Interferon and Ribaviron. Dr. Smith opined that Plaintiff’s treatment more than met the established standards of care for his condition and in fact, should have been discontinued at six months since Plaintiff had detectable serum levels in virus. (Exhibit “A”.)
Eight months post treatment, a Hepatitis C Virus Ribonucleic Acid (HCV RNA) viral load test was markedly positive. (Composite Exhibit “B”.) These results mean that Plaintiff was an end of treatment responder (ETR), but relapsed as evidenced by rebounding viral load pretreatment levels. (Composite Exhibit “B”.) Plaintiff is not a candidate for further re-treatment in the form of Pegylated Interferon Ribaviron therapy for his Hepatitis C condition. (Composite Exhibit “B”.)
Plaintiff files the Affidavit of Dr. Richard Stone, a Board Certified Internist. Dr Stone is not a Board Certified Gastroenterogist and according to his Curriculum Vitae, he has no education or training relevant to treating Hepatitis. There is nothing in the record to support Dr. Stone’s opinion that unless Plaintiff receives PEG intron and ribaviron therapy, Plaintiff will die a premature death due to liver failure. In fact, this opinion is quite different from Dr. Stone’s letter to the Plaintiff’ sister dated March 27, 2002, wherein Dr. Stone states that based on a review of Plaintiff’s medical records, “I find him to be a candidate for PEG intron and ribaviron therapy. His viral load responded, albeit, transiently to intron. Although he failed treatment on intron – PEG intron therapy would still be indicated in his case.” (A copy of said letter is attached hereto as Exhibit “C”.) This
5

is far a cry from Dr. Stone’s plea for Plaintiff’s life. Furthermore, there is nothing in Plaintiff’s medical records to suggest Dr. Shah’s ever recommended that Plaintiff would be restarted on Interferon treatment as suggested by Plaintiff.
Plaintiff has also filed the affidavit of Dr. Bennet Cecil. While Dr. Cecil does have experience in the area of Hepatitis C, his declaration is vague in several regards. In paragraph (3) three of his declaration, Dr. cecil opines that “Hepatitis C left untreated may lead to cirrhosis of the liver, cancer of the liver and death.” Dr. Cecil’s use of the term “may” illustrates the speculative nature of his opinion. In paragraph (6) Six of the Declaration, Dr. Cecil contends that if Plaintiff is “not provided the FDA approved PEG Interferon w/ Ribarvin combination therapy, there is a 50%50% chance that he will not survive another 10 years.” In a light most favorable to Plaintiff, this aspect of Dr. Cecil’s opinion clearly does not warrant the granting of a Preliminary Injunction. In Paragraphs (9) nine and (10) ten, Dr. Cecil, discusses sustained viral responses to the treatment as well as the use of recent and soon to be FDA approved uses of a combination of drugs. He completely fails to address the fact that Plaintiff relapsed following his initial treatment of ribaviron and interferon. The failure to institute recently and soon to be FDA approved combination of drug treatment does not come close to rising to the level of “deliberate indifference.” Additionally, Dr. Cecil never examined Plaintiff while he was in fact examined by physicians from Wexford.
This amounts to nothing more than a difference of opinion of how to properly treat Plaintiff’s Hepatitis C condition. As differences of opinion do not rise to the level of deliberate indifference to serious medical needs under the Eighth Amendment of the Constitution, Plaintiff cannot establish that there is a substantial likelihood he will prevail on the merits. Where some medical attention has been provided, allegations of inadequate or improper treatment are insufficient to constitute “cruel
6

and unusual punishment.” Englerth v. Hetrick, 1988 WL 11660 (S.D. Pa.) quoting Estelle, supra at 107. Furthermore, as previously stated, Plaintiff is a non-responder and that further treatment is simply not indicated. There is nothing in the record to suggest that Plaintiff’s current condition may lead to cirrhosis of the liver, cancer of the liver, or death. This is purely hypothetical.1 IV. MOTION FOR A PROMPT HEARING
Pursuant to Local Rule 7.1B, the granting of a hearing is discretionary and any request shall set forth in detail the reasons why a hearing is desired. Plaintiff has failed to allege circumstances that warrant a prompt hearing or any hearing for that matter. Plaintiff has failed to allege how a hearing will aid the court. Instead, Plaintiff merely alleges that a prompt hearing is necessary because Defendants will not provide the Plaintiff with the medication regimen he desperately needs. Defendants respectfully submit that a hearing is not necessary as the written submissions by the parties have adequately addressed all of the issues in this case.
WHEREFORE, Defendants Wexford and Rowe respectfully request this Court enter an
1In that Plaintiff has failed to establish the two of the elements for a preliminary injunction, it is unnecessary to address the last two requirement (i.e., that the threatened injury outweighs any harm that might result to the plaintiff and that the public interest will not be served).
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Order denying Plaintiff’s Motion for Preliminary Injunction and denying Plaintiff Motion for a Prompt Hearing, together with any and other relief this Court deems just and proper.
Respectfully submitted, RITTER CHUSID BIVONA & COHEN LLP Attorneys for Wexford and Rowe 7000 W. Palmetto Park Road, Suite 305 Boca Raton, Florida 33433 Telephone: (561) 394-2180 Facsimile: (561) 394-2582
By: _____________________________________ MITCHEL CHUSID, ESQUIRE Fla. Bar No: 879282 PATRICK PATRISSI, ESQUIRE Fla. Bar No: 302996
CERTIFICATE OF SERVICE WE HEREBY CERTIFIED that a copy of the foregoing was mailed, postage prepaid, this ____ day of January, 2003, to: Randall C. Berg, Jr., Esq., Florida Justice Institute, Inc., 2870 Wachovia Financial Center, 200 South Biscayne Boulevard, Miami, Florida 33131-2309; and Valerie Martin, Assistant Attorney General, 1515 North Flagler Drive, Suite 900, West Palm Beach, Florida 33401.
_____________________________________ MITCHEL CHUSID, ESQUIRE Fla. Bar No: 879282 PATRICK PATRISSI, ESQUIRE Fla. Bar No: 302996
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U.S. District Court Southern District of Florida (Ft. Pierce) CIVIL DOCKET FOR CASE #: 2:02-cv-14331-JCP

CLOSED

Brash v. Wexford Health, et al Assigned to: Senior Judge James C. Paine Demand: $0 Cause: 28:1343 Violation of Civil Rights Plaintiff Allen Brash
V. Defendant Wexford Health Sources Inc. a Florida corporation

Date Filed: 12/06/2002 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Randall Challen Berg, Jr. Florida Justice Institute 100 SE 2nd Street 4320 Bank of America Tower Miami, FL 33131-2309 305-358-2081 Fax: 358-0910 Email: rberg@floridajusticeinstitute.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lynn Eileen Sharon Ritter Chusid Bivona & Cohen, LLP. 7000 W Palmetto Park Road Suite 305 Boca Raton, FL 33433 561-394-2180 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mitchel Chusid Ritter Chusid Bivona & Cohen, LLP. 7000 W Palmetto Park Road Suite 305 Boca Raton, FL 33433 561-394-2180 Fax: 394-2582 Email: mchusid@ritterchusid.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick Patrissi Ritter Chusid Bivona & Cohen, LLP.

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Defendant David Rowe
Defendant Secretary for the Department of Corrections in his official capacity as Secretary of the Florida Department of Corrections

7000 W Palmetto Park Road Suite 305 Boca Raton, FL 33433 561-394-2180 Fax: 394-2582 Email: snakepp2002@yahoo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lynn Eileen Sharon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Mitchel Chusid (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Patrick Patrissi (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Valerie Jo Martin Office of the Attorney General 110 SE 6 Street 10th Floor Fort Lauderdale, FL 33301 954-712-4600 Fax: 712-4708 Email: valerie.martin@myfloridalegal.com
LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 12/06/2002 12/06/2002 12/06/2002 12/06/2002

#

Docket Text

1 VERIFIED COMPLAINT filed; FILING FEE $150.00 RECEIPT #873709; Magistrate Judge Linnea R. Johnson (mh, Deputy Clerk) (Entered: 12/09/2002)

2 MOTION with memorandum in support by Allen Brash for preliminary injunction (mh, Deputy Clerk) (Entered: 12/09/2002)

3 MOTION by Allen Brash for prompt hearing on [2-1] motion for preliminary injunction (mh, Deputy Clerk) (Entered: 12/09/2002)

4 MOTION by Allen Brash for writ of habeas corpus ad testificandum (mh,

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12/06/2002 12/06/2002 12/06/2002 12/06/2002 12/10/2002 12/10/2002 12/13/2002 12/13/2002
12/16/2002 12/16/2002 12/18/2002 12/23/2002
12/24/2002 12/27/2002
12/30/2002

Deputy Clerk) (Entered: 12/09/2002)
6 SUMMONS(ES) issued for Wexford Health (mh, Deputy Clerk) (Entered: 12/09/2002)
7 SUMMONS(ES) issued for David Rowe (mh, Deputy Clerk) (Entered: 12/09/2002)
8 SUMMONS(ES) issued for Dept. of Corrections (mh, Deputy Clerk) (Entered: 12/09/2002)
5 Notice of filing EXHIBITS to: [2-1] motion for preliminary injunction by Allen Brash (mh, Deputy Clerk) Modified on 12/10/2002 (Entered: 12/10/2002)
Magistrate identification: Magistrate Judge Frank J. Lynch, Jr (at, Deputy Clerk) (Entered: 12/10/2002)
9 CLERK's NOTICE CORRECTING MAGISTRATE JUDGE ASSIGNMENT (gp, Deputy Clerk) (Entered: 12/11/2002)
10 SUMMONS(ES) issued for Wexford Health (gp, Deputy Clerk) (Entered: 12/16/2002)
11 ORDER OF REFERENCE Referring Motion(s) [4-1] motion for writ of habeas corpus ad testificandum referred to Magistrate Frank J. Lynch, [3-1] motion for prompt hearing on [2-1] motion for preliminary injunction referred to Magistrate Frank J. Lynch, [2-1] motion for preliminary injunction referred to Magistrate Frank J. Lynch (signed by Judge James C. Paine on 12/10/02) [EOD Date: 12/16/02] (at, Deputy Clerk) (Entered: 12/16/2002)
12 NOTICE of Filing Dr. Stone's Declaration In Support of Plaintiff's Motion for Preliminary Injunction by Allen Brash (at, Deputy Clerk) (Entered: 12/17/2002)
13 Declaration of Richard I. Stone, MD by Allen Brash re: [2-1] motion for preliminary injunction (at, Deputy Clerk) (Entered: 12/17/2002)
14 NOTICE OF FILING RETURN OF SERVICE executed for Dept. of Corrections on 12/10/02 Answer due on 12/30/02 for Dept. of Corrections (at, Deputy Clerk) (Entered: 12/19/2002)
15 UNOPPOSED MOTION by Wexford Health, David Rowe to extend time to file opposition to plaintiff's motion for preliminary injunction, for hearing and petition for writ of habeas corpus ad testificandum (at, Deputy Clerk) (Entered: 12/26/2002)
16 NOTICE OF FILING RETURN OF SERVICE executed for Wexford Health on 12/18/02 Answer due on 1/7/03 for Wexford Health (at, Deputy Clerk) Modified on 12/26/2002 (Entered: 12/26/2002)
17 UNOPPOSED MOTION by Michael Moore to extend time to serve response to plaintiff's complaint, Motion for preliminary injunction with incorporated memorandum of law and Motion for a prompt hearing on plaintiff's Motion for a preliminary injunction (Former Deputy Clerk) (Entered: 12/27/2002)
18 ORDER granting [17-1] motion to extend time to serve response to plaintiff's

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01/07/2003 01/07/2003 01/07/2003 01/08/2003 01/09/2003 01/09/2003 01/09/2003 01/13/2003
01/13/2003
01/15/2003 01/22/2003

complaint, Motion for preliminary injunction and Motion for a prompt hearing on plaintiff's Motion for a injunction to and including 1/6/2003( Signed by Magistrate Frank J. Lynch on 12/20/02) [EOD Date: 12/30/02] (Former Deputy Clerk) (Entered: 12/30/2002)
20 MOTION with memorandum in support by Dept. of Corrections to dismiss verified complaint (cg, Deputy Clerk) (Entered: 01/09/2003)
21 RESPONSE/MOTION by Dept. of Corrections in opposition to [3-1] motion for prompt hearing on [2-1] motion for preliminary injunction (cg, Deputy Clerk) (Entered: 01/09/2003)
22 RESPONSE by Dept. of Corrections in opposition to [2-1] motion for preliminary injunction (cg, Deputy Clerk) (Entered: 01/09/2003)
19 MOTION by Wexford Health, David Rowe to extend time to file supplemental affidavit in support of memorandum in opposition to plaintiff's motion for preliminary injunction and prompt hearing (at, Deputy Clerk) (Entered: 01/08/2003)
23 MOTION by Wexford Health, David Rowe to extend time to file supplemental affidavit in support of memorandum in opposition to plaintiff's motion for preliminary injunction and for a prompt hearing (at, Deputy Clerk) (Entered: 01/09/2003)
24 MOTION with memorandum in support by Wexford Health, David Rowe to dismiss complaint (at, Deputy Clerk) (Entered: 01/09/2003)
25 MEMORANDUM by Wexford Health, David Rowe in opposition to [3-1] motion for prompt hearing on [2-1] motion for preliminary injunction, [2-1] motion for preliminary injunction (at, Deputy Clerk) (Entered: 01/09/2003)
26 MEMORANDUM by Allen Brash in opposition to [23-1] motion to extend time to file supplemental affidavit in support of memorandum in opposition to plaintiff's motion for preliminary injunction and for a prompt hearing, [19-1] motion to extend time to file supplemental affidavit in support of memorandum in opposition to plaintiff's motion for preliminary injunction and prompt hearing (at, Deputy Clerk) (Entered: 01/14/2003)
28 ORDER granting nunc pro tunc [15-1] motion to extend time to file opposition to plaintiff's motion for preliminary injunction, for hearing and petition for writ of habeas corpus ad testificandum granting [19-1] motion to extend time to file supplemental affidavit in support of memorandum in opposition to plaintiff's motion for preliminary injunction and prompt hearing, granting [23-1] motion to extend time to file supplemental affidavit in support of memorandum in opposition to plaintiff's motion for preliminary injunction and for a prompt hearing ( Signed by Magistrate Frank J. Lynch on 1/13/03) [EOD Date: 1/16/03] (cg, Deputy Clerk) (Entered: 01/16/2003)
27 NOTICE OF FILING RETURN OF SERVICE executed for David Rowe on 12/23/02 Answer due on 1/13/03 for David Rowe (at, Deputy Clerk) (Entered: 01/16/2003)
29 UNOPPOSED MOTION by Allen Brash to extend time to file responses to

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01/22/2003
01/24/2003 01/27/2003
01/29/2003
02/03/2003 02/04/2003 02/10/2003 02/12/2003 02/18/2003 02/18/2003 02/18/2003

defendants' motions to dismiss [DE 20 & 25] and replies to defendants' opposing memos to plaintiff's motion for a preliminary injunction [DE 22 & 25] (at, Deputy Clerk) (Entered: 01/23/2003)
30 ORDER OF REFERENCE Referring Motion(s) [24-1] motion to dismiss complaint referred to Magistrate Frank J. Lynch, [20-1] motion to dismiss verified complaint referred to Magistrate Frank J. Lynch (signed by Judge James C. Paine on 1/22/03) [EOD Date: 1/23/03] (at, Deputy Clerk) (Entered: 01/23/2003)
31 UNOPPOSED SECOND MOTION by Wexford Health, David Rowe to extend time to file supplemental affidavit in support of memorandum in opposition to plaintiff's motion for preliminary injunction and motion for a prompt hearing (at, Deputy Clerk) (Entered: 01/27/2003)
32 ORDER granting [29-1] motion to extend time to 1/31/03 to file responses to defendants' motions to dismiss [DE 20 & 25] and replies to defendants' opposing memos to plaintiff's motion for a preliminary injunction [DE 22 & 25] ( Signed by Magistrate Frank J. Lynch on 1/27/03) [EOD Date: 1/29/03] (cg, Deputy Clerk) (Entered: 01/29/2003)
33 ORDER granting [31-1] motion to extend time to 2/18/03 to file supplemental affidavit in support of memorandum in opposition to plaintiff's motion for preliminary injunction and motion for a prompt hearing ( Signed by Magistrate Frank J. Lynch on 1/29/03) [EOD Date: 1/30/03] (cg, Deputy Clerk) (Entered: 01/30/2003)
34 SECOND UNOPPOSED MOTION by Allen Brash to extend time to file responses to defendants' motions to dismiss and replies to defendants' opposing memos to plaintiff's motion for preliminary injunction (at, Deputy Clerk) (Entered: 02/04/2003)
35 NOTICE of Filing Dr Michael W. Fried's Declaration In Support of Their Memorandum by Wexford Health, David Rowe (at, Deputy Clerk) (Entered: 02/05/2003)
42 ORDER granting [34-1] motion to extend time to file responses to defendants' motions to dismiss and replies to defendants' opposing memos to plaintiff's motion for preliminary injunction ( Signed by Magistrate Frank J. Lynch on 2/10/03) [EOD Date: 2/25/03] (cg, Deputy Clerk) (Entered: 02/25/2003)
36 NOTICE of Filing Dr. Michael W. Fried's Original Declaration by Wexford Health, David Rowe (at, Deputy Clerk) (Entered: 02/14/2003)
37 MEMORANDUM by Allen Brash in opposition to [24-1] motion to dismiss complaint, [20-1] motion to dismiss verified complaint (at, Deputy Clerk) (Entered: 02/18/2003)
38 REPLY MEMORANDUM by Allen Brash to response to [2-1] motion for preliminary injunction (at, Deputy Clerk) (Entered: 02/18/2003)
39 MOTION with memorandum in support by Allen Brash to strike conclusory declaration of Michael W. Fried M.D. (at, Deputy Clerk) (Entered: 02/18/2003)

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02/18/2003 02/18/2003 02/27/2003 03/04/2003
03/04/2003 03/04/2003
03/04/2003
03/06/2003 03/14/2003 03/17/2003 03/20/2003 03/24/2003 03/25/2003 04/02/2003 04/09/2003

40 NOTICE of Filing Rebuttal Declaration of Bennet Cecil by Allen Brash (at, Deputy Clerk) (Entered: 02/18/2003)
41 REBUTTAL DECLARATION of Bennet Cecil, M.D. by Allen Brash re: [38-1] response reply (at, Deputy Clerk) (Entered: 02/19/2003)
43 REPLY by Wexford Health, David Rowe to response to [24-1] motion to dismiss complaint (at, Deputy Clerk) (Entered: 02/27/2003)
44 ORDER denying [3-1] motion for prompt hearing on [2-1] motion for preliminary injunction denying [4-1] motion for writ of habeas corpus ad testificandum ( Signed by Magistrate Frank J. Lynch on 3/4/03) [EOD Date: 3/5/03] (cg, Deputy Clerk) (Entered: 03/05/2003)
45 ORDER denying [39-1] motion to strike conclusory declaration of Michael W. Fried M.D. ( Signed by Magistrate Frank J. Lynch on 3/4/03) [EOD Date: 3/5/03] (cg, Deputy Clerk) (Entered: 03/05/2003)
46 REPORT AND RECOMMENDATIONS of Magistrate Frank J. Lynch recommending that [2-1] motion for preliminary injunction be DENIED. Motion no longer referred. Signed on: 3/4/03 Objections to R and R due by 3/14/03 CCAP (cg, Deputy Clerk) (Entered: 03/05/2003)
47 REPORT AND RECOMMENDATIONS of Magistrate Frank J. Lynch recommending that [20-1] motion to dismiss verified complaint, [24-1] motion to dismiss complaint be DENIED. Motion no longer referred. Signed on: 3/4/03 Objections to R and R due by 3/14/03 CCAP (cg, Deputy Clerk) (Entered: 03/05/2003)
48 OPPOSITION by Wexford Health, David Rowe TO [39-1] motion to strike conclusory declaration of Michael Fried M.D. (at, Deputy Clerk) (Entered: 03/07/2003)
49 OBJECTION by Allen Brash to [46-1] report and recommendations (at, Deputy Clerk) (Entered: 03/14/2003)
50 OBJECTION by Wexford Health, David Rowe to [47-1] report and recommendations (Former Deputy Clerk) (Entered: 03/21/2003)
51 RESPONSE by Allen Brash to [50-1] objection (at, Deputy Clerk) (Entered: 03/21/2003)
52 RESPONSE by Dept. of Corrections to [49-1] objection to Report and Recommendation Denying Plaintiff's Motion for Preliminary Injunction (at, Deputy Clerk) (Entered: 03/25/2003)
53 RESPONSE by Wexford Health, David Rowe to Objections to [46-1] report and recommendations (at, Deputy Clerk) (Entered: 03/26/2003)
54 REPLY by Allen Brash to Defendants' Responses To Plaintiff's Objections [531] report & recommendations response (at, Deputy Clerk) (Entered: 04/03/2003)
55 Joint Scheduling Report of Scheduling Meeting by Allen Brash, Wexford Health, David Rowe, Dept. of Corrections (at, Deputy Clerk) (Entered: 04/10/2003)

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04/15/2003 04/21/2003 04/21/2003 04/21/2003 04/21/2003 04/23/2003 04/25/2003 04/28/2003
04/29/2003
04/29/2003
04/29/2003 04/29/2003

56 EMERGENCY MOTION with memorandum in support by Allen Brash to shorten time to respond to request for production , and to set on expedited track , and for completion of discovery within 90 days , and for set trial date certain within 110 days (at, Deputy Clerk) (Entered: 04/16/2003)
57 NOTICE of Filing Second Supplemental Declaration of Dr. Cecil In support of plaintiff's motion for preliminary injunction by Allen Brash (at, Deputy Clerk) (Entered: 04/22/2003)
58 SUPPLEMENTAL DECLARATION OF BENNET CECIL, MD by Allen Brash to: [2-1] motion for preliminary injunction (at, Deputy Clerk) (Entered: 04/22/2003)
59 MOTION by Dept. of Corrections depose incarcerated plaintiff (cg, Deputy Clerk) (Entered: 04/22/2003)
60 NOTICE of Unavailability by Dept. of Corrections for dates of: 5/19/03 thru 5/30/03 (cg, Deputy Clerk) (Entered: 04/22/2003)
61 NOTICE of filing Rule 26(A)(1) initial disclosures by Dept. of Corrections (cg, Deputy Clerk) (Entered: 04/24/2003)
62 NOTICE of NON-OBJECTION TO THE DEPARTMENT OF CORRECTIONS MOTION TO DEPOSE INCARCERATED PLAINTIFF by Wexford Health, David Rowe (at, Deputy Clerk) (Entered: 04/25/2003)
63 ORDER ADOPTING THE REPORT AND RECOMMENDATION OF DEFENDANT MOORE'S MOTION TO DISMISS VERIFIED COMPLAINT AND DEFENDANTS WEXFORD HEALTH SOURCES, INC'S AND DAVID ROWE'S MOTION TO DISMISS PLAINTIFF'S VERIFIED COMPLAINT adopting [47-1] report and recommendations denying [20-1] motion to dismiss verified complaint, denying [24-1] motion to dismiss complaint (Signed by Judge James C. Paine on 4/25/03) [EOD Date: 4/28/03] CCAP (at, Deputy Clerk) (Entered: 04/28/2003)
64 MEMORANDUM OF LAW by Wexford Health, David Rowe in opposition to [56-1] motion to shorten time to respond to request for production, [56-2] motion to set on expedited track, [56-3] motion for completion of discovery within 90 days, [56-4] motion for set trial date certain within 110 days (at, Deputy Clerk) (Entered: 04/29/2003)
65 ORDER SETTING NON-JURY TRIAL AND DIRECTING PRETRIAL PROCEDURES setting Deadline for filing of all Pretrial Motions by 8/14/03; A non-Jury Trial set for 9:30 a.m. on 10/14/03 Pretrial Stipulation due on or before 9/29/03; Calendar Call set for 9:00 a.m. on 10/2/03; All Discovery must be completed by 7/31/03; (Signed by Judge James C. Paine on 4/28/03) [EOD Date: 4/30/03] CCAP (at, Deputy Clerk) (Entered: 04/30/2003)
66 ORDER MANDATING MEDIATION referring case to mediation. 15 days to appoint mediator (Signed by Judge James C. Paine on 4/28/03) [EOD Date: 4/30/03] (at, Deputy Clerk) (Entered: 04/30/2003)
67 ORDER The Magistrate Judge's 3/4/03 [46-1] Report and Recommendations is REVERSED. Plaintiff's [2-1] motion for preliminary injunction is GRANTED.

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04/29/2003
04/29/2003 05/01/2003 05/07/2003 05/08/2003 05/09/2003 05/12/2003 05/16/2003 05/16/2003 05/19/2003 05/21/2003 05/21/2003
05/22/2003

(Signed by Judge James C. Paine on 4/28/03) [EOD Date: 4/30/03] CCAP (at, Deputy Clerk) (Entered: 04/30/2003)
68 MOTION with memorandum in support by Dept. of Corrections in opposition to plaintiff's emergency motion to shorten time to respond to request for production of documents and interrogatories, emergency motion to set expedited track and order completion of discovery within 90 days and motion to set trial date within 110 days (at, Deputy Clerk) (Entered: 04/30/2003)
69 ORDER granting [59-1] motion depose incarcerated plaintiff ( Signed by Magistrate Frank J. Lynch on 4/29/03) [EOD Date: 5/2/03] (cg, Deputy Clerk) (Entered: 05/02/2003)
70 EMERGENCY MOTION by Allen Brash for clarification of [67-1] order (at, Deputy Clerk) (Entered: 05/02/2003)
71 ORDER granting [70-1] motion for clarification of [67-1] order (Signed by Judge James C. Paine on 5/6/03) [EOD Date: 5/8/03] (at, Deputy Clerk) (Entered: 05/08/2003)
72 OPPOSITION by Wexford Health, David Rowe to [70-1] motion for clarification of [67-1] order (at, Deputy Clerk) (Entered: 05/09/2003)
73 Answer and Affirmative Defenses by Wexford Health, David Rowe, (at, Deputy Clerk) (Entered: 05/12/2003)
74 Answer and affirmative defenses by Dept. of Corrections (cg, Deputy Clerk) (Entered: 05/13/2003)
75 NOTICE of selection of Leslie W. Langbein as Mediator by Allen Brash (at, Deputy Clerk) (Entered: 05/16/2003)
76 RESPONSE by Dept. of Corrections in opposition to [70-1] motion for clarification of [67-1] order (cg, Deputy Clerk) (Entered: 05/20/2003)
77 Unopposed MOTION by Dept. of Corrections to extend time to depose incarcerated pltf (cg, Deputy Clerk) (Entered: 05/20/2003)
78 MOTION by Wexford Health, David Rowe for protective order , and/or to extend time to respond to plaintiff's discovery requests (at, Deputy Clerk) (Entered: 05/21/2003)
79 ORDER denying [56-1] motion to shorten time to respond to request for production, denying [56-2] motion to set on expedited track, denying [56-3] motion for completion of discovery within 90 days, denying [56-4] motion for set trial date certain within 110 days, Court contrues as a response re: [68-1] motion in opposition to plaintiff's emergency motion to shorten time to respond to request for production of documents and interrogatories, emergency motion to set expedited track and order completion of discovery within 90 days and motion to set trial date within 110 days granting [77-1] motion to extend time to depose incarcerated pltf until 7/11/03 ( Signed by Magistrate Frank J. Lynch on 5/21/03) [EOD Date: 5/22/03] (cg, Deputy Clerk) (Entered: 05/22/2003)
80 ORDER in re: [78-1] motion for protective order, granting [78-2] motion to

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05/29/2003 06/09/2003 07/08/2003 07/08/2003 07/08/2003 07/09/2003 07/09/2003
07/09/2003 07/11/2003
07/15/2003 07/16/2003 07/16/2003 07/16/2003

extend time for add'l 30 days to respond to plaintiff's discovery requests ( Signed by Magistrate Frank J. Lynch on 5/22/03) [EOD Date: 5/28/03] (cg, Deputy Clerk) (Entered: 05/28/2003)
81 NOTICE by Dept. of Corrections to take deposition of Allen Brash 7/1/03 at 1:00 (cg, Deputy Clerk) (Entered: 05/30/2003)
82 NOTICE of Filing Consultant Report of Defendants' Gastroenterologist Recommending Plaintiff's Retreatment by Allen Brash (at, Deputy Clerk) (Entered: 06/10/2003)
83 EMERGENCY MOTION with memorandum in support by Allen Brash to compel responses to first request for production of documents to defendant Michael Moore (at, Deputy Clerk) (Entered: 07/09/2003)
84 EMERGENCY MOTION by Allen Brash to compel responses to plaintiff's first set of interrogatories to defendant Michael Moore (at, Deputy Clerk) (Entered: 07/09/2003)
85 EMERGENCY MOTION with memorandum in support by Allen Brash for reasonable cause shown for leave to file out of time emergency motions to compel (at, Deputy Clerk) (Entered: 07/09/2003)
87 MOTION by Allen Brash for order of substitution (at, Deputy Clerk) (Entered: 07/10/2003)
88 EMERGENCY MOTION by Allen Brash for conversion of Preliminary Injunction into a permanent Injunction , or in the alternative for Evidentiary Hearing prior to the entry of a permanent injunction (at, Deputy Clerk) (Entered: 07/10/2003)
86 MOTION by Allen Brash, Wexford Health, David Rowe for entry of order (Former Deputy Clerk) (Entered: 07/24/2003)
89 ORDER OF REFERENCE Referring Motion(s) [83-1] motion to compel responses to first request for production of documents to defendant Michael Moore referred to Magistrate Frank J. Lynch, [84-1] motion to compel responses to plaintiff's first set of interrogatories to defendant Michael Moore referred to Magistrate Frank J. Lynch, [85-1] motion for reasonable cause shown for leave to file out of time emergency motions to compel referred to Magistrate Frank J. Lynch (signed by Judge James C. Paine on 7/10/03) [EOD Date: 7/14/03] (at, Deputy Clerk) (Entered: 07/14/2003)
90 MOTION by Dept. of Corrections for entry of order (at, Deputy Clerk) (Entered: 07/16/2003)
91 RESPONSE by Dept. of Corrections to [85-1] motion for reasonable cause shown for leave to file out of time emergency motions to compel (at, Deputy Clerk) (Entered: 07/16/2003)
92 MEMORANDUM by Allen Brash in opposition to [90-1] motion for entry of order (at, Deputy Clerk) (Entered: 07/17/2003)
96 ORDER granting [83-1] motion to compel responses to first request for

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07/17/2003 07/17/2003 07/17/2003 07/17/2003 07/18/2003 07/18/2003 07/21/2003
07/21/2003 07/21/2003

production of documents to defendant Michael Moore granting [84-1] motion to compel responses to plaintiff's first set of interrogatories to defendant Michael Moore granting [85-1] motion for reasonable cause shown for leave to file out of time emergency motions to compel ( Signed by Magistrate Frank J. Lynch on 7/16/03) [EOD Date: 7/18/03] (cg, Deputy Clerk) (Entered: 07/18/2003)
93 EMERGENCY MOTION with memorandum in support by Dept. of Corrections for protective order regarding deposition (at, Deputy Clerk) (Entered: 07/17/2003)
94 EMERGENCY MOTION with memorandum in support by Dept. of Corrections for protective order regarding deposition of secretary James V. Crosby (at, Deputy Clerk) (Entered: 07/17/2003)
95 EMERGENCY MOTION with memorandum in support by Dept. of Corrections to quash subpoena , and for protective order regarding deposition of Dianne Rechtine (at, Deputy Clerk) (Entered: 07/17/2003)
97 MEMORANDUM by Allen Brash in opposition to [95-2] motion for protective order regarding deposition of Dianne Rechtine, [94-1] motion for protective order regarding deposition of secretary James V. Crosby, [93-1] motion for protective order regarding deposition (Former Deputy Clerk) (Entered: 07/18/2003)
98 OBJECTION by Wexford Health, David Rowe TO PLAINTIFF'S PROPOSED ORDER ATTACHED TO EMERGENCY MOTION FOR CONVERSION OF PRELIMINARY INJUNCTION INTO A PERMANENT INJUNCTION (at, Deputy Clerk) (Entered: 07/21/2003)
99 REPLY by Dept. of Corrections to response to [95-2] motion for protective order regarding deposition of Dianne Rechtine, [94-1] motion for protective order regarding deposition of secretary James V. Crosby, [93-1] motion for protective order regarding deposition (at, Deputy Clerk) (Entered: 07/21/2003)
100 OMNIBUS ORDER DENYING DEFENDANT'S EMERGENCY MOTIONS FOR PROTECTIVE ORDER REGARDING DEPOSITION OF SECRETARY JAMES V. CROSBY, JR FOR PROTECTIVE ORDER REGARDING DEPOSITION PURSUANT TO RULE 30(B)(6) AND TO QUASH SUBPOENA AND FOR PROTECTIVE ORDER REGARDING DEPOSITION OF DIANNE RECHTINE denying [94-1] motion for protective order regarding deposition of secretary James V. Crosby, denying [93-1] motion for protective order regarding deposition, denying [95-2] motion for protective order regarding deposition of Dianne Rechtine (Signed by Judge James C. Paine on 7/21/03) [EOD Date: 7/21/03] (at, Deputy Clerk) (Entered: 07/21/2003)
101 REPLY by Allen Brash to Defendants [98-1] objection to plaintiff's proposed order attached to emergency motion (at, Deputy Clerk) (Entered: 07/21/2003)
102 RESPONSE by Dept. of Corrections to [88-1] motion for conversion of Preliminary Injunction into a permanent Injunction, [88-2] motion for Evidentiary Hearing prior to the entry of a permanent injunction (at, Deputy Clerk) (Entered: 07/22/2003)

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07/29/2003 10/17/2003

103 NOTICE of NON-OBJECTION TO PLAINTIFF'S MOTION FOR ORDER OF SUBSTITUTION by Dept. of Corrections (at, Deputy Clerk) (Entered: 07/22/2003)
104 REPLY by Allen Brash to response to [88-1] motion for conversion of Preliminary Injunction into a permanent Injunction, [88-2] motion for Evidentiary Hearing prior to the entry of a permanent injunction (at, Deputy Clerk) (Entered: 07/23/2003)
105 ORDER DENYING DEFNEDANT JAMES V. CROSBY, JR'S MOTION FOR ENTRY OF ORDER: ORDER denying [90-1] motion for entry of order (Signed by Judge James C. Paine on 7/24/03) [EOD Date: 7/24/03] (Former Deputy Clerk) (Entered: 07/24/2003)
106 ORDER granting [86-1] motion for entry of order, denying as mott [88-1] motion for conversion of Preliminary Injunction into a permanent Injunction, denying as moot [88-2] motion for Evidentiary Hearing prior to the entry of a permanent injunction. The Court finds that the preliminary injunction entered 4/28/03 and as clarified on 5/6/03 is hereby modified and made a permanent injunction pursuant to 18 USC 3626 (b)(4). Defendant Crosby shall ensure that the plaintiff be fully retreated with Pegylated Interferon and Ribavirin. Plaintiff is the prevailing party for purposes of awarding attorneys' fees and costs. The parties shall attempt to resolve the plaintiff's attorneys' claim for fees and costs within sixty (60) days of the entry of this Order. In the event that the parties are unable to resolve Plaintiff's claim for attorneys' fees and costs within sixty (60) days from the entry of this Order, the plaintiff shall file his motion for attorneys' fees and costs within ninety (90) days from the entry of this Order. All pending motions are denied as moot. The Court shall retain jurisdiction to consider and decide whether the Plaitniff's attorneys' fees, expenses, and costs are to be recovered. The Court shall retain jurisdiction over this Order for the full term of the Plaintiff's retreatment for Hepatitis C and cirrhosis. (Signed by Judge James C. Paine on 7/24/03) Date: 7/25/03] (at, Deputy Clerk) (Entered: 07/25/2003)
107 ORDER The Court's preliminary injunction as to Defendants Wexford and Rowe shall be deemed a permanent injunction and that the plaintiff shall be provided one full course of retreatment with Pegylated Interferon and Ribavirin for his Hepatitis C and cirrhosis at Okeechobee Correctional Institution or any other facility under contract with Defendant Wexford where said retreatment can be properly provided. The Court shall retain jurisdiction to award attorneys' fees and costs, if any. The Court shall retain jurisdiction over this Order for one full course of the Plaintiff's retreatment with Pegylated Interferon and Ribavirin for Hepatitis C and cirrhosis. (Signed by Judge James C. Paine on 7/24/03) [EOD Date: 7/25/03] (at, Deputy Clerk) (Entered: 07/25/2003)
108 ORDER ON PLAINTIFF'S MOTION FOR SUBSTITUTION:ORDER granting [87-1] motion for order of substitution. James Crosby shall hereinafter be substuted for defendant Michael Moore, Secretary, Florida Department of Corrections (Signed by Judge James C. Paine on 7/28/03) [EOD Date: 7/30/03] (Former Deputy Clerk) (Entered: 07/30/2003)
109 MOTION WITH CONSENT by Allen Brash to extend time in which to file motion for attorney's fees and costs (at, Deputy Clerk) (Entered: 10/20/2003)

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110 ORDER granting [109-1] motion to extend time in which to file motion for attorney's fees and costs ( Signed by Judge James C. Paine on 10/27/03) [EOD Date: 10/28/03] (Former Deputy Clerk) (Entered: 10/28/2003)
111 NOTICE OF SETTLEMENT OF ATTORNEYS' FEES filed by Allen Brash (at, Deputy Clerk) (Entered: 11/20/2003)
112 ORDER DIRECTING CLERK'S OFFICE TO CLOSE CASE The Court reserves jurisdiction to enforce the previously entered injunction and the settlement of the attorneys' fees issue. The Clerk's Office CLOSE this case and deny all pending motions without prejudice as MOOT. (Signed by Judge James C. Paine on 1/12/04) [EOD Date: 1/13/04] (at, Deputy Clerk) (Entered: 01/13/2004)
CASE CLOSED. Case and Motions no longer referred to Magistrate. (at, Deputy Clerk) (Entered: 01/13/2004)
113 REQUEST copies by Allen Brash (tb, Deputy Clerk) (Entered: 06/16/2004)

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