UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ----------------------------------------------------------------------X ROBERT HILTON and LOUIS VASQUEZ, on behalf of themselves and all others similarly situated,

–against–

Plaintiffs,

FIRST AMENDED CLASS ACTION COMPLAINT

LESTER N. WRIGHT, M.D., M.P.H., Associate Commissioner/ Chief Medical Officer, for the New York State Department of Correctional Services; and the NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES,

JURY TRIAL DEMANDED 05 Civ. 1038 (DNH) (DEP)

Defendants. ----------------------------------------------------------------------X

Plaintiffs ROBERT HILTON and LOUIS VASQUEZ, by their attorneys KOOB &

MAGOOLAGHAN, hereby allege as follows upon information and belief:

PRELIMINARY STATEMENT

1. ROBERT HILTON and LOUIS VASQUEZ, inmates who suffer from Hepatitis C and

have repeatedly been identified by treating physicians as patients in need of combination antiviral

therapy, commence this action on behalf of themselves and other similarly situated inmates as a

result of defendants’ unlawful and abhorrent pattern and practice of refusing to provide treatment

to those individuals known to be suffering from this potentially fatal disease. The action is

commenced pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983, the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act

(“Section 504”), 29 U.S.C. § 794, and seeks to immediately remedy defendants’ persistent

violations of plaintiffs’ Eighth and Fourteenth Amendment rights and their rights to be free of

arbitrary discrimination.

2. Treatment by medically indicated combination antiviral therapy has consistently been refused to those inmates confined under the care and custody of the New York State Department of Correctional Services (“DOCS”) who suffer from Hepatitis C because of a DOCS Hepatitis C Protocol that unconstitutionally and irrationally requires any prisoner who has used drugs or alcohol at any time in their life to participate in a non-medical prison-run substance abuse counseling program prior to receiving antiviral therapy.
3. Although attendance in and completion of the substance abuse program has no foundation in the generally accepted medical approach to Hepatitis C, defendants have imposed the requirement as a means of limiting the number of prisoners who receive the antiviral therapy in order to avoid the substantial expenses associated with the treatment. Thus, absent medical justification, defendants impose their unprecedented Hepatitis C Protocol on all prisoners with Hepatitis C, regardless of how far their illness has progressed and how much time has elapsed since the prisoner last used drugs or alcohol; regardless of whether the prisoner has ever abused drugs or alcohol in a clinical sense; regardless of whether the prisoner has ever been found using drugs or alcohol while in prison, and regardless of whether the prisoner has ever participated in drug and alcohol treatment programs in the past.
4. Moreover, defendants impose their Hepatitis C Protocol on all prisoners with Hepatitis C despite the fact that the substance abuse program is not available to hundreds of patients in immediate need of treatment because only a very limited number of inmates can attend the program at one time. Thus, due to the backlog in applications for the program, even Hepatitis C patients who agree to attend the program, like Mr. HILTON, must nevertheless wait an extensive period of time before they even have the opportunity to comply with DOCS’ Hepatitis C Protocol. During the waiting period, all treatment is denied.
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5. Furthermore, once an inmate finally has the opportunity to enroll in the substance abuse program, defendants nevertheless deny their participation in the program if, by that time, there is a speculative possibility that the inmate might be released on parole before finishing the substance abuse program. Thus any Hepatitis C patient who has even the remotest possibility of release on parole within six months of the time they have the opportunity to enroll in the substance abuse program is categorically denied access to treatment for their Hepatitis C until such time as they are actually released from DOCS’ custody.
6. Additionally, many inmates are denied Hepatitis C treatment even after they have participated in drug and alcohol counseling programs while in prison. For instance, Mr. VASQUEZ completed a three month drug and alcohol counseling program while in prison that was sanctioned by the Deputy Superintendent of Programs at Elmira Correctional Facility, yet defendant WRIGHT has declared that, because Mr. VASQUEZ participated in the program in 1991, he must participate in a new program now even though there is no evidence that Mr. VASQUEZ has used any drugs or alcohol since 1991.
7. Defendants’ actions are contrary to law, contrary to sound medical practice, and contrary to the norms of a civilized society. As a result of defendants’ conduct, plaintiffs have suffered and will continue to suffer permanent physical harm, emotional distress and mental anguish, and an increased risk of death. Accordingly, plaintiffs bring this action seeking compensatory and punitive damages, and declaratory and injunctive relief for defendants’ violations of their Eighth and Fourteenth Amendment rights and their rights under the ADA and Section 504.
JURISDICTION AND VENUE 8. This action arises under the Eighth and Fourteenth Amendments to the United States
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Constitution, the ADA, Section 504, and under 42 U.S.C. §§ 1983 and 1988. 9. The jurisdiction of this Court is predicated upon 28 U.S.C. §§ 1331 and 1343. 10. The acts complained of occurred in the Northern District of New York and venue is
properly lodged in this Court pursuant to 28 U.S.C. § 1391(b). JURY DEMAND
11. Plaintiffs demand trial by jury in this action. THE PARTIES
12. Plaintiff ROBERT HILTON has been under DOCS’ care and custody since August, 2004, and is and was at all relevant times confined at either the Washington Correctional Facility (“Washington”), located in Comstock, New York, or the Altona Correctional Facility (“Altona”), located in Altona, New York. As of August 2005, Mr. HILTON was confined in Washington.
13. Plaintiff LOUIS VASQUEZ has been under DOCS’ care and custody since April 1992 and is and was at all relevant times confined at Great Meadow Correctional Facility (“Great Meadow”), located in Comstock, New York and Southport Correctional Facility (“Southport”), located in Pine City, New York. As of August 2005, Mr. VASQUEZ was confined at Great Meadow.
14. Defendant LESTER N. WRIGHT, M.D., M.P.H. is and was at all relevant times herein the Associate Commissioner and Chief Medical Officer for the New York State Department of Correctional Services (“DOCS”) and as such he is and was responsible for the supervision and administration of the provision of medical services at the State’s correctional facilities. Defendant WRIGHT is and was responsible for the development and implementation of medical policies and practices for prisoners in the custody of DOCS, including Mr. HILTON and Mr. VASQUEZ. Defendant WRIGHT is personally responsible for the development and
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implementation of the Hepatitis C treatment eligibility guidelines challenged in this case. Defendant WRIGHT is sued in his individual and official capacity.
15. Defendant NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES is the agency created by the State of New York for the purpose of operating prison facilities within New York State and is a “public entity” as that term is used in 42 U.S.C. § 12131(1). At all relevant times herein, DOCS received federal financial assistance for the operation of prison facilities within New York State, including the Great Meadow, Southport, Washington, and Altona facilities.
16. All defendants named herein acted under color of state law at all relevant times. FACTUAL ALLEGATIONS
Progression and Treatment of Hepatitis C 17. Hepatitis C is a progressive viral disease that attacks the liver, often with fatal consequences. 18. About one fifth of individuals with chronic Hepatitis C eventually develop cirrhosis of the liver. 19. Because so many Hepatis C patients develop cirrhosis of the liver, Hepatitis C is a leading cause of liver transplantation in the United States. 20. Treatment of chronic Hepatitis C in patients at risk of progression to cirrhosis is generally achieved through combination therapy (a combination of the antiviral drugs interferon and ribavirin). 21. Pegylated interferon, which is a type of interferon administered once per week, has achieved the highest response rates when combined with ribavirin and is currently recognized by a consensus of the medical community as the standard treatment for Hepatitis C.
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22. The effectiveness of treatment for Hepatitis C is dependent on many factors. Where treatment is delayed, it becomes less effective because chronic Hepatitis C causes increased fibrosis, or scarring, of liver tissue and eventually cirrhosis of the liver.
23. If a patient develops liver cirrhosis, there is a substantial likelihood that antiviral therapy will be ineffective and the only alternative to a painful death will be liver transplantation.
24. In addition to making treatment ineffective, progression to cirrhosis or advanced fibrosis exposes patients to an increased risk of developing hepatocellular carcinoma, a cancer of the liver.
25. In light of the foregoing, any delay in providing treatment to individuals with chronic Hepatitis C exposes them to an elevated risk of serious physical harm, grave and substantial pain and suffering, and death.
26. In light of the foregoing, it is well-accepted within the medical community that Hepatitis C should be diagnosed as soon as possible, and treated promptly where medically indicated.
Defendants’ Hepatitis C Protocol 27. Hepatitis C is a serious health problem for prisoners in DOCS custody, with at least 14% of men and 23% of women entering DOCS custody infected with Hepatitis C. 28. Defendants DOCS and WRIGHT have developed and implemented guidelines for deciding whether to provide treatment to Hepatitis-C-infected prisoners, and have set forth those guidelines in the Hepatitis C Primary Care Practice Guideline (“Hepatitis C Protocol”). 29. Of particular relevance to this case, one of the guidelines contained in the Hepatitis C Protocol developed and applied by defendants WRIGHT and DOCS requires anyone who has ever admitted to using drugs or alcohol in the past to participate in a prison-run alcohol and
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substance abuse counseling program before receiving Hepatitis C treatment. 30. There are two principal prison-run alcohol and substance abuse counseling programs:
ASAT, which consists of daily classes over a period of six months; and RSAT, which is similar to ASAT but which requires participants to reside in a particular cell-block during the program.
31. Neither RSAT nor ASAT is supervised by medical staff, nor does either program require that instructors be accredited substance abuse counselors.
32. The Hepatitis C Protocol has for several years contained the ASAT/RSAT requirement described in paragraph 29, supra.
33. Defendants DOCS and WRIGHT have demonstrated a pattern and practice of applying the ASAT/RSAT requirement in a manner indicating disregard for reasoned and universally shared medical opinion regarding the treatment of Hepatitis C. Specifically, defendants DOCS and WRIGHT have applied the ASAT/RSAT requirement, and denied treatment for Hepatitis C, to patients until they have completed the substance abuse counseling program:
a. regardless of the stage to which the disease has progressed; b. regardless of whether the requirement contravenes the treatment recommendations of DOCS’ own treating physicians and specialists; c. regardless of how much time has passed since the prisoner last used drugs, and even upon prisoners who have not used drugs for more than a decade; d. regardless of whether a prisoner’s past use of drugs or alcohol constituted substance abuse under clinical diagnostic criteria such as those enumerated in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, also known as the DSM-IV; e. regardless of whether the ASAT or RSAT programming is actually available in
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the correctional facility in which the prisoner is confined; f. regardless of whether the prisoner had previously completed a substance
abuse treatment program, such as Alcoholics Anonymous, Narcotics Anonymous and the like, even if the program was offered at and sanctioned by a DOCS facility;
g. regardless of whether DOCS actually has space available in its ASAT or RSAT programs to allow the prisoner to fulfill the requirement; and
h. regardless of whether the prisoner has previously satisfied the ASAT/RSAT requirement and completed an earlier course of antiviral therapy, but requires a second course of therapy in order to make a complete recovery.
34. Both plaintiffs HILTON and VASQUEZ have been denied medically necessary Hepatitis C treatment as a result of the ASAT/RSAT requirement contained in the Hepatitis C protocol.
35. Defendants’ categorical denial of necessary medical treatment to prisoners infected with Hepatitis C, including plaintiffs, on the basis of the ASAT/RSAT requirement is unsupported by sound medical judgment and constitutes deliberate indifference to prisoners’ serious medical needs.
Denial of Treatment to ROBERT HILTON Due to DOCS’ Hepatitis C Treatment Protocol 36. Prior to Mr. HILTON’s current incarceration, and in or around December, 1999, Mr. HILTON had a biopsy that revealed that he has Hepatitis C and that his liver disease had progressed to Grade 2 Stage 2 portal tract fibrosis. 37. The Grade 2 Stage 2 designation reflects the standard classification spectrum developed to grade the progress of liver deterioration, whereby incipient damage is classified as
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Grade 1, Stage 1 and cirrhosis rates at Grade 4, Stage 4. 38. The degree of fibrosis and inflammation reflected in Mr. HILTON’s December 1999
liver biopsy indicated a risk that his liver disease would progress to cirrhosis. 39. The December 1999 biopsy diagnosis, combined with other clinical indicators, led
doctors at Bellevue Hospital, in New York City, to institute a course of antiviral treatment for Mr. HILTON in or about 2002.
40. At all times relevant to this complaint, it was universally accepted within the medical community that a continuous 48 week course of treatment combining pegylated interferon and ribavirin is necessary to effectively treat Hepatitis C virus of the Type 1 genotype (the genotype of Mr. HILTON’s Hepatitis C).
41. The antiviral treatment commenced at Bellevue in 2002 was interrupted after approximately 12 weeks of treatment after Mr. HILTON became homeless.
42. Mr. HILTON entered DOCS custody on or about August 18, 2004, and after being held in reception at Downstate Correctional Facility for two or three days, was confined at Altona.
43. When Mr. HILTON entered DOCS custody, he underwent a physical examination and a battery of blood tests.
44. In the course of Mr. HILTON’s physical examinations at Downstate and Altona, he reported to the medical staff that he suffered from Hepatitis C and that his earlier antiviral therapy, initiated at Bellevue Hospital, had been interrupted prior to completion.
45. Mr. HILTON additionally informed Altona medical staff that, following his interrupted treatment at Bellevue, he had consulted medical providers at Metropolitan Hospital in New York City who, prior to his incarceration, recommended that he undergo a new course of
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antiviral therapy. 46. Laboratory tests conducted while Mr. HILTON was in the custody of the New York
City Department of Correction revealed that, on May 8, 2004, Mr. HILTON’s liver function was not within normal limits and he was positive for Hepatitis C. Records of these tests accompanied Mr. HILTON when he entered DOCS custody and provided additional evidence of the need to institute antiviral therapy.
47. Despite Mr. HILTON’s presenting symptoms in August, 2004, the Altona medical staff did not begin to screen and evaluate Mr. HILTON for Hepatitis C treatment until on or about October 6, 2004. Once the screening and evaluation process was begun, it was not completed until March, 2005, seven months later, at which time Mr. HILTON was finally medically cleared for Hepatitis C treatment.
48. Under all accepted medical standards, it should take no longer than six weeks to evaluate an individual for Hepatitis C treatment.
49. The delay in screening Mr. HILTON for Hepatitis C treatment upon his confinement in Altona was caused by the failure of defendants DOCS and WRIGHT to establish an effective system for promptly evaluating individuals with Hepatitis C for treatment.
50. Defendants DOCS and WRIGHT have intentionally failed to provide for the prompt testing and evaluation of individuals with Hepatitis C in order to reduce the number of individuals who are treated by DOCS for Hepatitis C.
51. The delay between August, 2004, and March, 2005, in medically clearing Mr. HILTON for Hepatitis C treatment upon his transfer from the custody of the New York City Department of Correction to the New York State Department of Correctional Services constituted deliberate indifference to Mr. HILTON’s serious and potentially fatal medical
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condition. 52. After Mr. HILTON was medically cleared for Hepatitis C treatment, and on or before
March 23, 2005, the medical staff at Altona referred Mr. HILTON for evaluation by a gastroenterologist.
53. On or about April 22, 2005, Mr. HILTON was sent to Coxsackie Correctional Facility to be examined by a gastroenterologist, who recommended that Mr. HILTON begin treatment with a combination of pegylated interferon and ribavirin. The gastroenterologist made no recommendation whatsoever that Mr. HILTON attend a substance abuse program.
54. On or about May 2, 2005, medical providers at Altona completed a “Health Services Hepatitis C Form.” On the form the providers entered various notations relating to Mr. HILTON’s presentation, including information relating to laboratory measures of viral infection and liver function.
55. One space on the Health Services Hepatitis C Form, which the Altona providers did not complete, referred to enrollment in or completion of a prison-run substance abuse counseling program.
56. At the time the Health Services Hepatitis C Form was completed by the Altona providers, there had been no recommendation by any medical or other staff that Mr. HILTON enroll in or complete a prison-run substance abuse counseling program as a condition of receiving the antiviral treatment recommended by the outside specialist.
57. On or about May 4, 2005, Mr. HILTON was cleared to receive Hepatitis C treatment by New York State Office of Mental Health personnel, and Mr. HILTON signed a Hepatitis C Treatment Consent Form, consenting to the initiation of combination antiviral therapy.
58. On or about May 4, 2005, all DOCS and outside medical staff who had individually 11

evaluated Mr. HILTON for treatment with antiviral therapy uniformly had determined that he was both eligible to receive treatment and that it was medically appropriate for him to receive treatment.
59. At the time Altona medical staff recommended treatment for Mr. HILTON, he had not used any illicit drug for at least twelve years.
60. Notwithstanding the foregoing, Mr. HILTON was denied treatment for Hepatitis C because of the Hepatitis C Protocol that was developed and promulgated for DOCS by WRIGHT. Specifically, with callous and calculated disregard for Mr. HILTON’s serious medical illness, defendants, by decision rendered in May, 2005, denied Mr. HILTON treatment for Hepatitis C until such time as he completed DOCS’ substance abuse counseling program.
61. Defendants’ May, 2005 callous determination to deny Mr. HILTON’s treatment for his Hepatitis C until such time as he completed ASAT/RSAT was without medical justification.
62. In records available to defendants DOCS and WRIGHT at the time of their callous determination to deny Mr. HILTON treatment for Hepatitis C, the only basis for attributing any history of drug use to Mr. HILTON was Mr. HILTON’s own admission, upon a previous commitment to DOCS custody in 1993, that he had as a teenager smoked marijuana and sniffed cocaine.
63. Mr. HILTON has spent much of the period since 1993 either in DOCS custody or under the supervision of the New York State Division of Parole. As a result, Mr. HILTON was periodically required to submit to drug tests, which uniformly showed him to be drug free.
64. When Mr. HILTON returned to DOCS custody in August 2004, he denied any ongoing drug use or abuse, and there is no evidence to call this denial into question.
65. Nonetheless, after Mr. HILTON was informed that he must participate in a prison12

run substance abuse counseling program in order to receive Hepatitis C medication, he elected to comply with defendants’ policy in an effort to expedite his treatment.
66. Mr. HILTON elected to participate in a substance abuse counseling program even though the requirement was wholly extraneous not only to the treatment indicated for his Hepatitis C but also, in light of his lengthy abstinence from drug use, to his overall health needs.
67. Mr. HILTON was placed on the wait list for participation in RSAT at Altona because of the high demand for participation in the program.
68. On or about May 10, 2005, defendant WRIGHT informed medical staff at Altona that Mr. HILTON’s presence on the wait list for RSAT did not qualify him to receive medication for his Hepatitis C, because he was not actively enrolled in RSAT.
69. Thus, despite Mr. HILTON’s agreement to complete the ASAT/RSAT requirement, he was denied participation in same, and remained without medical care.
70. On or about May 16, 2005 Mr. HILTON was transferred to Washington. Upon his transfer Mr. HILTON filed a prison grievance demanding immediate antiviral therapy.
71. The Washington Inmate Grievance Resolution Committee, composed of two prisoners and two staffpersons, unanimously found that Mr. HILTON’s grievance was warranted and that he should be provided with the antiviral therapy recommended by Mr. HILTON’s treating physicians.
72. On or about June 8, 2005, the grievance committee’s recommendation was rejected by Superintendent James Plescia of Washington, whose decision was upheld by DOCS’ Central Office Review Committee upon Mr. HILTON’s appeal.
73. The Central Office Review Committee rejected the recommendation of the Grievance Committee because the Hepatitis C Protocol developed and applied by defendants WRIGHT and
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DOCS prohibits the administration of antiviral therapy to Mr. HILTON until such time as he satisfies the ASAT/RSAT requirement set forth in the Hepatitis C Protocol.
74. While confined at Washington, counseling staff attempted to enroll Mr. HILTON in ASAT, the Washington facility’s analogue to the RSAT programming for which Mr. HILTON had been wait-listed at Altona.
75. On or about July 28, Mr. HILTON was informed that his application to enroll in ASAT was rejected because his parole eligibility date of November 2, 2005 would be reached prior to the conclusion of the six months of participation usually required of enrollees. Mr. HILTON thus remained without treatment, and without access to treatment, as a direct result of defendants’ Hepatitis C Protocol.
76. Mr. HILTON was denied the antiviral treatment prescribed by a consultant, and sought by his doctors at Altona and Washington, because DOCS predicated his eligibility for treatment on enrollment in unrelated, unnecessary, and, in fact, unavailable substance abuse programming.
77. As antiviral treatment was denied on the basis of this Catch 22, Mr. HILTON’s liver continued to deteriorate.
78. In August 2005, in response to Mr. HILTON’s filing of the initial Complaint in this action and an accompanying Order to Show Cause seeking preliminary injunctive relief, defendants authorized the commencement of antiviral therapy for Mr. HILTON.
79. Mr. HILTON continues to be subject to defendants’ unconstitutional Hepatitis C Protocol. Should Mr. HILTON, upon completing a course of antiviral therapy, require retreatment in the future while in DOCS custody, he will again be subjected to the ASAT/RSAT requirement.
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80. Mr. HILTON has exhausted administrative remedies, to the extent they were made available.
Denial of Treatment to LOUIS VASQUEZ Due to DOCS’ Hepatitis C Protocol 81. Mr. VASQUEZ was first tested for Hepatitis C in August 2004, while he was confined at Southport Correctional Facility. 82. On or about August 31, 2004, Mr. VASQUEZ received a biopsy which confirmed his diagnosis of Hepatitis C. 83. On or about October 25, 2004, Mr. VASQUEZ was transferred from Southport to Great Meadow. 84. The medical providers at Southport assured Mr. VASQUEZ that he would receive treatment for his Hepatitis C at Great Meadow. 85. Nonetheless, Mr. VASQUEZ was not approved for Hepatitis C treatment until in or around January 2005, when he was provided with a Hepatitis C Treatment Consent Form to sign. 86. Under all accepted medical standards, it should take no longer than six weeks to evaluate an individual for Hepatitis C treatment. 87. The delay in screening Mr. VASQUEZ for Hepatitis C treatment was caused by the failure of defendants DOCS and WRIGHT to provide a prompt system for evaluating individuals with Hepatitis C for treatment. 88. Defendants DOCS and WRIGHT have intentionally failed to provide for the prompt testing and evaluation of individuals with Hepatitis C in order to reduce the number of individuals who are treated by DOCS for Hepatitis C. 89. The delay between August, 2004 and January, 2005 in medically clearing Mr. VASQUEZ for Hepatitis C treatment constituted deliberate indifference to Mr. VASQUEZ’s
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serious and potentially fatal medical condition. 90. Even after Mr. VASQUEZ was cleared to receive treatment for his Hepatitis C, he
continued to be denied access to the antiviral medications necessary to treat his disease. 91. On or about March 6, 2005, Mr. VASQUEZ filed a grievance requesting that he start
receiving his treatment as soon as possible. 92. On or about March 25, 2005, the Inmate Grievance Resolution Committee (“IGRC”)
unanimously recommended that Mr. VASQUEZ’s grievance be granted and noted that he was scheduled to see a doctor on March 29, 2005. At this doctor’s appointment, Mr. VASQUEZ presented his signed copy of the Hepatitis C Treatment Consent Form to Doctor Paolano.
93. Nonetheless, Mr. VASQUEZ still was not prescribed any antiviral medication for his Hepatitis C, and he appealed the IGRC’s decision to the Superintendent.
94. On or about April 6, 2005, Dr. Paolano informed Mr. VASQUEZ by memo that defendant WRIGHT had suspended Dr. Paoloano’s request that Mr. VASQUEZ receive antiviral therapy because defendant WRIGHT could not confirm that Mr. VASQUEZ had completed a prison-run substance abuse counseling program.
95. On or about April 7, 2005, Superintendent Gary Greene found that Mr. VASQUEZ’s grievance had been satisfied because he was seen by a physician on March 29, 2005. Superintendent Greene indicated that a treatment plan had been recommended and that Great Meadow medical staff were awaiting approval from DOCS’ central office to proceed.
96. Mr. VASQUEZ appealed the Superintendent’s decision because he still had not received any medication for his Hepatitis C.
97. On or about May 18, 2005, the Central Office Review Committee unanimously denied Mr. VASQUEZ’s appeal, stating that Mr. VASQUEZ could not receive Hepatitis C
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treatment until he is enrolled in a prison-run substance abuse counseling program. 98. In addition to filing grievances, Mr. VASQUEZ has personally appealed to defendant
WRIGHT, in writing, seeking to understand why he must participate in a substance abuse program to receive medical treatment for his Hepatitis C.
99. In his letters to defendant WRIGHT, Mr. VASQUEZ explained that he completed a three month drug treatment program while in prison in 1991.
100. The drug treatment program Mr. VASQUEZ attended in 1991, called Project Renacer, was endorsed by the Deputy Superintendent of Programs at Elmira Correctional Facility.
101. Defendant WRIGHT responded to Mr. VASQUEZ via letter dated May 11, 2005, stating that the 1991 program was not sufficient and that Mr. VASQUEZ will not receive Hepatitis C treatment until he is currently enrolled in a prison-run drug counseling program.
102. Defendant WRIGHT has failed and refused to authorize the commencement of Hepatitis C treatment for Mr. VASQUEZ even though there is no evidence that Mr. VASQUEZ has ever used drugs since his participation in Project Renacer in 1991.
103. By on or about March 29, 2005, all DOCS and outside medical staff who had individually evaluated Mr. VASQUEZ for treatment with antiviral therapy uniformly had determined that he was both eligible to receive treatment and that it was medically appropriate for him to receive treatment.
104. At the time Great Meadow medical staff recommended treatment for Mr. VASQUEZ, he had not used any illicit drug in the past 25 years.
105. Despite the foregoing, Mr. VASQUEZ was denied treatment for Hepatitis C because of the Hepatitis C Protocol that was developed and promulgated for DOCS by defendant
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WRIGHT. Specifically, with callous and calculated disregard for Mr. VASQUEZ’s serious medical illness, Defendants DOCS and WRIGHT, by decision rendered in May 2005, denied him treatment for Hepatitis C until such time as he completed a DOCS substance abuse counseling program.
106. Mr. VASQUEZ has exhausted administrative remedies, to the extent they were made available.
Defendants’ Irrational, Discriminatory and Deliberately Indifferent Application of the Hepatitis C Protocol 107. Both Mr. HILTON and Mr. VASQUEZ were denied treatment for Hepatitis C pursuant to the ASAT/RSAT requirement contained in the Hepatitis C Protocol developed and applied by defendants DOCS and WRIGHT. 108. The ASAT/RSAT requirement developed and applied by defendants WRIGHT and DOCS is irrational and has no foundation in medical science. 109. There is no medical support for denying treatment for Hepatitis C to a patient who has admitted to drug or alcohol use in the past but who is not contemporaneously participating in a drug treatment program. 110. Informed medical judgment recognizes that even active drug users may be appropriate candidates for Hepatitis C treatment, whether they participate in drug abuse counseling programs or not. 111. Defendants have applied their medically unjustified Hepatitis C Protocol despite the unavailability of ASAT or RSAT programming to many prisoners. 112. At the time plaintiffs were denied Hepatitis C treatment there were extremely long waiting lists to get into both ASAT and RSAT programs.
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113. Prisoners, including those confined at Great Meadow, Altona and Washington, continue to be denied access to substance abuse programs because the ASAT and RSAT programs remain subject to long waiting lists that include many prisoners seeking to participate in the programs to comply with recommendations made by programming and counseling staff.
114. At least one correctional facility had more than one thousand (1,000) prisoners on their ASAT/RSAT waiting lists in 2004.
115. Great Meadow Correctional Facility did not begin offering a RSAT program until in or around 2002, and because of the programming needs of the population, experiences significant waiting lists for participation in the program.
116. Because of limited enrollment space, it can take several years before an inmate becomes eligible to participate in a substance abuse program at some DOCS facilities.
117. The refusal to treat Mr. HILTON and Mr. VASQUEZ is a result of defendants’ policy and practice of deliberately disregarding the risk to prisoners’ health caused by delays in treatment of Hepatitis C, and of defendants’ deliberate disregard of the risk to categorically refusing to treat prisoners with Hepatitis C.
118. As a direct result of defendants’ policy and practice, Mr. HILTON and Mr. VASQUEZ have been denied access to treatment for Hepatitis C.
119. As a direct result of defendants’ policy and practice, Mr. HILTON and Mr. VASQUEZ have been denied medical treatment for a progressive, potentially fatal, liver disease.
120. Defendants’ denial of medical care to Mr. HILTON and Mr. VASQUEZ has resulted in serious physical harm, as well as an increased risk of death.
121. The policy, pattern and practice of defendants DOCS and WRIGHT of delaying the diagnosis of and treatment for Hepatitis C to any prisoner who has ever admitted to using drugs
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or alcohol in the past is irrational and in contravention of good and accepted medical practice. 122. Defendants’ conduct in delaying and refusing treatment of Mr. HILTON and Mr.
VASQUEZ’s Hepatitis C evidences defendants’ deliberate indifference to plaintiff’s serious medical needs and defendants’ cruel and unusual treatment in violation of the Eighth Amendment to the United States Constitution.
123. As a result of defendants’ deliberate indifference, Mr. HILTON and Mr. VASQUEZ have experienced an increased risk of death, extreme pain and suffering, and emotional distress.
124. DOCS and WRIGHT have maintained their policy, pattern and practice regarding Hepatitis C for the purpose of avoiding the costs inherent in offering Hepatitis C treatment to prisoners in DOCS custody.
125. The refusal by defendants WRIGHT and DOCS to treat Mr. HILTON and Mr. VASQUEZ is not medically justified and evidences defendants’ callous disregard to the threat presented to plaintiff’s health by Hepatitis C.
126. The policy and practice of DOCS and WRIGHT bears no rational relationship to any legitimate governmental interest and/or is motivated by ill will or animus toward prisoners with a past history of drug or alcohol use, including Mr. HILTON and Mr. VASQUEZ.
127. By imposing the ASAT/RSAT requirement blindly upon all past drug users, Defendants DOCS and WRIGHT have demonstrated that they regard all persons who have ever used drugs, including Mr. HILTON and Mr. VASQUEZ, to have a physical or mental impairment that substantially limits one or more of the major life activities of such individuals.
128. By imposing the ASAT/RSAT requirement upon all prisoners who have ever admitted to using drugs, defendants have discriminated against such prisoners, including Mr. HILTON and Mr. VASQUEZ, on the basis of their perception that such prisoners have a
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disability. 129. In addition, defendants’ policy discriminates against prisoners on the basis of prior
drug use and/or abuse, which discrimination is separately prohibited by the ADA and Section 504.
130. Defendants DOCS and WRIGHT have maintained their policy and practice of discrimination in the face of substantial risk of serious physical harm to Mr. HILTON, Mr. VASQUEZ, and other similarly situated prisoners.
CLASS ACTION ALLEGATIONS 131. Plaintiffs bring this action on their own behalf and, pursuant to Rule 23(b)(1), Rule 23(b)(2), and Rule 23(b)(3) of the Federal Rules of Civil Procedure, on behalf of all prisoners with Hepatitis C who must now or in the future meet defendants’ ASAT/RSAT requirement to obtain treatment.
a. The exact size of the class is unknown to plaintiffs but upon information and belief more than 8,500 male inmates and more than 700 female inmates are infected with Hepatitis C. Upon information and belief, less than 2% of these prisoners receive antiviral therapy, though it is likely that between at least 6% and 12% of prisoners with Hepatitis C are medically appropriate candidates for treatment. Accordingly, plaintiffs conservatively estimate that the size of the class is larger than 500 prisoners.
b. The conditions, practices and omissions that form the basis of this complaint are common to all members and the relief sought – voiding defendant DOCS and WRIGHT’s categorical ASAT/RSAT requirement – 21

will apply to the entire class. c. The claims of plaintiffs are typical of the claims of the entire class. d. The prosecution of separate actions by individual members of the class
would create a risk of inconsistent and varying adjudications that would establish incompatible standards of conduct for the defendants. e. The prosecution of separate actions by individual members of the class would create a risk of adjudications with respect to individual members which would, as a practical matter, substantially impair the ability of other members to protect their interests. f. Defendants have acted or refused to act on grounds generally applicable to the class, making appropriate injunctive and declaratory relief with respect to the class as a whole. g. There are questions of law and fact common to the members of the class, including defendants’ violations of the Constitution of the United States, the Americans with Disabilities Act and Section 504 of the Rehabilitation Act, based on their failure to provide prisoners with Hepatitis C antiviral therapy necessary to treat their disease. h. The questions of law and fact common to the members of the class predominate over questions affecting individual class members. I. Proceeding as a class action is superior to other available methods for the fair and efficient adjudication of the controversy. j. The named plaintiffs are capable of fairly and adequately representing the class and protecting its interests. Koob & Magoolaghan, counsel for
22

plaintiffs, is a private civil rights law firm experienced in prisoners’ civil rights litigation that, through prior litigation has secured court-ordered institutional reform within several DOCS-operated prisons. Koob & Magoolaghan also has recently secured Hepatitis C treatment for individual DOCS prisoners through federal and state court litigation. 132. Plaintiffs have exhausted their administrative remedies, to the extent they were made available.
FIRST CAUSE OF ACTION 133. Plaintiffs repeats and realleges as if fully set forth herein the allegations contained in paragraphs numbered 1 through 132. 134. Defendant WRIGHT’s past and continuing failure to provide plaintiffs ROBERT HILTON and LOUIS VASQUEZ with adequate treatment for Hepatitis C during plaintiffs’ period of confinement in DOCS custody demonstrates deliberate indifference to and/or willful neglect of plaintiffs’ serious medical needs constituting cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments of the United States Constitution. 135. As a result of defendants’ violation of plaintiffs’ constitutional rights, plaintiffs have suffered severe pain and suffering, including unnecessary pain and discomfort, a deterioration of health, loss of future earnings, permanent disability, mental and emotional distress, and an increased risk of death, and accordingly plaintiffs are entitled to compensatory damages against defendant WRIGHT in an amount to be determined at trial, punitive damages in an amount to be determined at trial, and appropriate injunctive and declaratory relief against defendant WRIGHT, including but not limited to the provision of treatment with pegylated interferon combination therapy.
23

SECOND CAUSE OF ACTION 136. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 135. 137. Under the policy imposed and applied by Defendants DOCS and WRIGHT, all past drug or alcohol users, including Mr. HILTON and Mr. VASQUEZ, are regarded by defendants as having a disability under the Americans With Disabilities Act. See 42 U.S.C. § 12102 (2)(C). 138. Defendants WRIGHT and DOCS’s past and continuing failure to provide plaintiffs ROBERT HILTON and LOUIS VASQUEZ with adequate treatment for Hepatitis C during their period of confinement in DOCS custody discriminates against qualified individuals with disabilities, including plaintiffs, in violation of the Americans With Disabilities Act, 42 U.S.C. § 12132. 139. As a result of defendants’ violation of plaintiffs’ statutory rights, plaintiffs have suffered severe pain and suffering, including unnecessary pain and discomfort, a deterioration of health, loss of future earnings, permanent disability, mental and emotional distress, and an increased risk of death, and accordingly plaintiffs are entitled to compensatory damages against Defendants WRIGHT and DOCS in an amount to be determined at trial, punitive damages in an amount to be determined at trial, and appropriate injunctive and declaratory relief against Defendants WRIGHT and DOCS, including but not limited to the provision of treatment with pegylated interferon combination therapy.
THIRD CAUSE OF ACTION 140. Plaintiffs repeat and reallege as if fully set forth herein the allegations contained in paragraphs numbered 1 through 139. 141. Under the policy imposed and applied by Defendants DOCS and WRIGHT, all past
24

drug or alcohol users, including Mr. HILTON and Mr. VASQUEZ, are regarded by defendants as having a disability under Section 504 of the Rehabilitation Act. See 29 U.S.C. § 705(20)(B)(iii).
142. Defendants WRIGHT and DOCS’s past and continuing failure to provide plaintiffs ROBERT HILTON and LOUIS VASQUEZ with adequate treatment for Hepatitis C during their period of confinement in DOCS custody discriminates against qualified individuals with disabilities, including plaintiffs, in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794.
143. As a result of defendants’ violation of plaintiffs’ statutory rights, plaintiffs have suffered severe pain and suffering, including unnecessary pain and discomfort, a deterioration of health, loss of future earnings, permanent disability, mental and emotional distress, and an increased risk of death, and accordingly plaintiffs are entitled to compensatory damages against Defendants WRIGHT and DOCS in an amount to be determined at trial, punitive damages in an amount to be determined at trial, and appropriate injunctive and declaratory relief against defendants WRIGHT and DOCS, including but not limited to the provision of treatment with pegylated interferon combination therapy.
WHEREFORE, plaintiffs respectfully request judgment be entered against defendants and that this Court enter an Order:
(A) granting plaintiffs’ request for certification of this action as a class action; (B) awarding compensatory damages in an amount to be determined at trial; (C) awarding punitive damages against defendants in an amount to be determined at trial; (D) awarding appropriate injunctive relief, including that defendants WRIGHT and DOCS treat plaintiffs with pegylated interferon and ribavirin; (E) declaring unconstitutional the policy and practice of denying Mr. HILTON and Mr.
25

VASQUEZ access to treatment for his Hepatitis C; (F) declaring unconstitutional defendants’ policy and practice of predicating eligibility for
Hepatitis C treatment on enrollment in substance abuse programming; (G) awarding reasonable attorneys’ fees, costs, and disbursements under 29 U.S.C. §
794a, 42 U.S.C. § 12205; and 42 U.S.C. § 1988; and (H) directing such other and further relief as the Court may deem just and proper, together
with attorneys’ fees, interest, costs and disbursements of this action. Dated: New York, New York
September 2, 2005 KOOB & MAGOOLAGHAN
/s/ Alexander A. Reinert By: Alexander A. Reinert (Bar No. 512945) Keith M. Donoghue (Bar No. 513215) Elizabeth L. Koob (Bar No. 506158) Joan Magoolaghan (Bar No. 501543) Attorneys for Plaintiffs 19 Fulton Street, Suite 408 New York, New York 10038 (212) 406-3095
26

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
ROBERT HILTON, on Behalf of Himself and All Others Similarly Situated; and LOUIS VASQUEZ,
Plaintiffs, vs
LESTER N. WRIGHT, M.D., M.P.H., Associate Commissioner/Chief Medical Officer, for the New York State Department of Correctional Services; and NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES,
Defendants.

U.S. DISTRICT COURT N.D. OF N.Y. FILED
FEB 27 2006
lAWRENCE K. BAERMAN. CJert j
UTICA
9:05-CV-1038

APPEARANCES:
KOOB & MAGOOLAGHAN Attorneys for Plaintiffs Suite 408 19 Fulton Street New York, New York 10038

OF COUNSEL:
ALEXANDER A. REINERT, ESQ. KEITH M. DONOGHUE, ESQ.

HON. ELIOT SPITZER

Attorney General of the

State of New York

Attorney for Defendants

Department of Law

The Capitol

~.

Albany, New York 122~

NELSON SHEINGOLD, ESQ. Asst. Attorney General

DAVID N. HURD United States District Judge

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

Plaintiffs Robert Hilton ("Hilton") and Louis Vasquez ("Vasquez") bring suit against

Lester N. Wright, M.D. ("Dr. Wright"), Associate Commissioner/Chief Medical Officer for the

New York State Department of Correctional Services ("DOCS"), and DOCS itself (collectively referred to as "defendants"). Both Hilton and Vasquez have Hepatitis C and are inmates under defendants' care and custody; they claim that defendants refused to administer necessary treatment for their Hepatitis C because they had not completed a DOCSsponsored substance abuse program. Plaintiffs assert that defendants' failure to administer treatment was tantamount to a deprivation of their right to be free from cruel and unusual punishment under the Eighth and Fourteenth Amendments of the United States Constitution. They filed suit against defendants pursuant to the Civil Rights Act of 1871, 42 U.S.C. § 1983; the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132; and Section 504 of the Rehabilitation Act ("Section 504"), 29 U.S.C. § 794, seeking injunctive and declaratory relief, as well as compensatory and punitive damages, based on defendants' failure to provide combination treatment for their Hepatitis C.
Plaintiffs move to certify the class pursuant to Rule 23 of the Federal Rules of Civil Procedure. Defendants oppose and cross-move for dismissal. They argue that because the prior substance abuse policy has been rescinded and plaintiffs are currently receiving the necessary treatment, plaintiffs' equitable claims should be dismissed as moot. Plaintiffs oppose.
Oral argument was heard on November 10, 2005, in Utica, New York. Decision was reserved. II. FACTS
Hilton and Vasquez are inmates who suffer from Hepatitis C and are under defendants' care and custody. They were identified by their treating physicians as patients in need of treatment for this progressive disease - specifically, combination antiviral therapy that
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----------------
is currently recognized as the standard treatment for Hepatitis C. Despite being repeatedly recommended for treatment by their attending physicians, defendants denied plaintiffs the standard combination treatment for their Hepatitis C because of DOCS' Hepatitis C Primary Care Practice Guideline ("Guideline").
Pursuant to the Guideline, when an inmate diagnosed with Hepatitis C has admitted to using drugs or alcohol in the past, defendants conditioned receipt of the standard combination treatment on completion of a DOCS substance abuse counseling program. DOCS' Guideline specified that in order to receive treatment, inmates must have "[n]o evidence of active substance abuse ... during the past 6 months ... [and] [t]hose who have a substance use history must successfully complete or be enrolled in an ASAT/RSAT program." (Docket No. 13, Ex. B, Guideline at 4.) Alcohol and Substance Abuse Treatment ("ASAT") and Residential Substance Abuse Treatment ("RSAT") are DOCS' principal prisonrun substance abuse counseling programs; each spans a six-month period. Typically, there are long waiting lists to get into either program. 1 Because they had not met the ASAT/RSAT requirement, plaintiffs were denied the standard combination treatment for their Hepatitis C.
Hilton was diagnosed with Hepatitis C in late 1999. In 2002, his doctors at a New York City hospital commenced the combination antiviral treatment of his disease. He was to receive a 48-week course of the combination treatment; however, it was interrupted after 12 weeks, when he became homeless. He entered defendants' custody on or about August 18, 2004, and reported to their medical staff that he suffered from Hepatitis C and had previously been undergoing combination therapy. However, defendants did not begin to evaluate him
1 In fact, in 2004, at least one DOCS facility had more than 1,000 prisoners on the waiting list for their ASAT/RSAT program. (Docket No. 11, Am. Compl. ~ 114.)
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for Hepatitis C treatment until October 2004 - that process was not completed until March 2005, when he was medically cleared for Hepatitis C treatment. Plaintiffs claim that this process should take no longer than six weeks, yet defendants did not complete Hilton's evaluation for seven months.
After being medically cleared for treatment, Hilton was examined by a gastroenterologist in late April 2005, who recommended that he begin treatment with the combination therapy. He was cleared to receive the combination therapy on or about May 4, 2005, yet defendants subsequently denied him treatment because he had not completed an ASAT/RSAT program.2 He was placed on a waiting list for the RSAT program at Altona Correctional Facility, but Dr. Wright informed Altona's medical staff that Hilton was still not qualified for the treatment because he was not actively enrolled in RSAT. Shortly after that, Hilton was transferred to Washington Correctional Facility, where he filed a prison grievance demanding immediate combination treatment. The Washington Inmate Grievance Resolution Committee unanimously recommended that DOCS provide him with the standard combination treatment, but that recommendation was rejected both by the superintendent of the Washington facility and by DOCS' Central Review Committee, after Hilton appealed. During the appeal process, staff at Washington attempted to enroll Hilton in its ASAT program. However, at the end of July 2005, his application to enroll was rejected because he was eligible for parole on November 2, 2005, which would be prior to the six-month conclusion of the program.
2 In 1993, when previously in DOCS' custody, Hilton admitted that he had smoked marijuana and sniffed cocaine as a teenager. Subsequent drug tests, while he was in the custody of DOCS or on parole, showed Hilton to be drug free. When he was taken into custody in August 2004, he denied any ongoing drug
use or abuse. (Am. Compl. 1m 62-64.)
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In August 2005, Hilton commenced this action. Pursuant to a stipulation and order dated August 23, 2005, Dr. Wright finally agreed to direct his physician to administer the combination treatment.
Vasquez's story is similar. He was first diagnosed with Hepatitis C at the end of August 2004, while he was in DOCS' custody, but was not approved for treatment until January 2005. When he hadn't received treatment by March 2005, he filed a grievance with the Inmate Grievance Resolution Committee, which unanimously recommended that his grievance be granted. However, at his next doctor's appointment, Vasquez was still not given any medication; he was later informed by his doctor that Dr. Wright had suspended the doctor's request that he receive treatment because Dr. Wright couldn't confirm that he had completed the ASAT/RSAT requirement. All of his appeals for treatment were denied.
Vasquez then wrote to Dr. Wright, questioning why he was required to participate in an ASAT/RSAT program in order to receive treatment for his Hepatitis C. He informed Dr. Wright that in 1991, while he was in custody, he completed a three-month prison-run drug treatment program, and had been drug-free for 25 years. Dr. Wright responded that the 1991 program was insufficient, and reiterated that Vasquez would not receive treatment until he fulfilled the ASAT/RSAT requirement. Only when he was joined as a plaintiff in this action did Dr. Wright allow Vasquez to receive the combination treatment for his Hepatitis C.
On October 13,2005, Dr. Wright rescinded the ASAT/RSAT requirement from the Guideline; the new provision ("Revised Guideline") now reads: "Those who have a SUbstance abuse history are strongly encouraged to complete an ASAT/RSAT program since dealing with alcohol or SUbstance use issues is an essential part of their Hepatitis C treatment and protection program." (Docket No. 17, Defs.' Mem. Ex. B at 4.) He forwarded the Revised
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Guideline bye-mail ("Wright e-mail") to medical officials throughout DOCS on October 18, 2005, instructing them to "review any Hepatitis C patients for whom [ASAT/RSAT] issues may have been the contraindication for treatment and submit/resubmit Request for Treatment e-forms for those who medically qualify for treatment according to the revised care guideline." (Defs.' Mem. Ex. C.) Additionally, Dr. Wright submitted an affidavit ("Wright Decl.") stating that he has "no intention of re-instituting the repealed ASAT/RSAT requirement." (Defs.' Mem. Decl. 119.)
Prior to Dr. Wright's revision, DOCS' ASAT/RSAT policy had been dealt severe judicial blows by the New York state and federal courts. In cases with fact patterns analogous to the instant case, two federal courts found that inmate plaintiffs stated allegations sufficient to survive defendants' motions to dismiss and for summary judgment, respectively. See McKenna v. Wright, 386 F.3d 432 (2d Cir. 2004); Johnson v. Wright, 412 F.3d 398 (2d Cir. 2005). Additionally, two state courts found the ASAT/RSAT policy unconstitutional and ordered defendants to provide treatment to the inmate plaintiffs bringing suit. See Domenech v. Goord, 797 N.Y.S.2d 313 (N.Y. App. Div. 2d Dep't 2005); Docket No. 13, Reinert Supp. Aff. Ex. C (unpublished opinion in Rodriguez v. Goord, Index No. 6940-04 (N.Y. Sup. Ct. Albany Cty. 2005)). Defendants resisted the court orders. Rather than treat the inmates infected with Hepatitis C immediately, as the state courts ordered, in each case, defendants delayed treatment and obtained a stay pending appeal. (See Docket No. 20, PI. Opp'n. Mem. at 8.) Only after defendants lost the appeal did Domenech receive treatment. Rodriguez is still awaiting treatment. 3
3 By a motion dated October 25, 2005 - 12 days after Dr. Wright made the change to the Guideline defendants requested relief from the ruling ordering defendants to treat Rodriguez. (PI. opp. Mem. at 9.)
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Defendants made it clear, in both Dr. Wright's communication with DOCS' medical personnel and in his Declaration, that the renunciation of the ASAT/RSAT requirement was solely because of litigation, and not because they view the ASAT/RSAT requirement to be
inappropriate.4 (See Wright Decl. 11 8). Dr. Wright himself stated: "I revised the Guideline in
response to guidance provided by several appellate court decisions regarding application of the former guideline's ASAT/RSAT component in individual cases." Id.
Currently, there are over 9,000 prisoners under defendants' care who have been diagnosed with Hepatitis C. Prior to Dr. Wright's revocation of the ASAT/RSAT requirement, although 6-12% of the inmates with Hepatitis C were medically appropriate candidates for the standard combination therapy, less than 2% of those prisoners received the combination treatment. All 9,000 were subjected to the ASAT/RSAT requirement. III. DISCUSSION
Although defendants' motion to dismiss was made by cross-motion, it will be addressed first, since a disposition in defendants' favor would render plaintiffs' motion for class certification moot.
4 Indeed, in a letter to Domenech's counsel, dated July 25, 2005, notifying them of Domenech's Hepatitis C treatment, Assistant Solicitor General David Lawrence III stated that "[p]rovision of the medication is solely to comply with the court decision and order, and not because DOCS believes it is medically appropriate." (Reinert Supp. Aft. Ex. B (emphasis added)).
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A. Defendants' Cross-Motion to Dismiss
Defendants submit that because the ASAT/RSAT requirement has been rescinded, plaintiffs' claims for equitable relief should be dismissed as moot, and their motion for class certification should be denied.s
Parties seeking to have claims dismissed as moot bear a heavy burden, as the test for mootness is stringent. See United States v. W.T. Grant Co., 345 U.S. 629, 632, 73 S. Ct. 894,897 (1953); Lillbask v. Connecticut Dep't of Educ., 397 F.3d 77, 84 (2d Cir. 2005). "Mere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave '[t)he defendant ... free to return to his old ways.''' United States v. Concentrated Phosphate Exp. Ass'n, 393 U.S. 199,203,89 S. Ct. 361,364 (1968) (quoting W.T. Grant, 345 U.S. at 632, 73 S. Ct. at 897). If, however, after voluntary ceasing to engage in the allegedly illegal activities, "the defendant can demonstrate that (1) there is no reasonable expectation that the alleged violation will recur and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation," such cessation will usually render a case moot. Tsombanidis v. West Haven Fire Dep't, 352 F.3d 565,574 (2d Cir. 2003) (quoting Campbell v. Greisberger, 80 F.3d 703,706 (2d Cir. 1996)). A determination of whether a case is moot as a result of voluntary cessation lies within the sound discretion of the district court. Harrison & Burrowes Bridge Constructors, Inc. v. Cuomo, 981 F.2d 50, 59 (2d Cir. 1992).
5 Plaintiffs originally sought to certify as a class "plaintiffs and all Hepatitis-C-infected prisoners in DOCS custody who must now or in the future meet defendants' ASAT/RSAT requirement to obtain treatment." (Docket No. 13, PI. Mem. at 5.) However, given that the ASAT/RSAT requirement has been rescinded, plaintiffs were permitted to amend the class at oral argument.
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1. Recurrence
A case is not moot unless there is "no reasonable expectation" that the challenged
actions will be repeated. See,~, W.T. Grant, 345 U.S. at 633,73 S. Ct. at 897. A
defendant's voluntary cessation of a policy will render a case moot only if it is "absolutely
clear that the alleged wrongful behavior could not reasonably be expected to recur." Friends
of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189, 120 S. Ct. 693, 708
(2000) (quoting Concentrated Phosphate Exp. Ass'n, 393 U.S. at 203, 89 S. ct. at 364).
Defendants rely heavily on Tawwab v. Metz, 554 F.2d 22, 24 (2d Cir. 1977) and
Armstrong V. Ward, 529 F.2d 1132, 1135-36 (2d Cir. 1976) in arguing that Dr. Wright's
change in policy and his unconditional statement that he has no intention of reinstituting the
ASAT/RSAT requirement eliminates any "reasonable expectation" that the provision will be
reinstated.6 However, those cases are factually distinguishable from the events in this case.
In Tawwab, prisoners in the Great Meadow Correctional Facility brought suit
challenging a Great Meadow policy that only allowed one prisoner at a time to see his
attorney. 554 F.2d at 23. The complaint was dismissed by the district court, and the
6 In their papers and at oral argument, defendants also relied on these cases in arguing that because Dr. Wright is a state official, deference should be given to his statement that he "has no intention
of re-instituting the repealed ASAT/RSAT requirement." (Wright Decl. ,-r 9.) However, while "[s]ome
deference must be accorded to a state's representations that certain conduct has been discontinued," Harrison & Burrowes Bridge Constructors, 981 F.2d at 59, in Armstrong itself, the Second Circuit made clear that "determination of whether there is a 'reasonable expectation that the wrong will be repeated' is not foreclosed by the expressions of intention by the State officials," 529 F.2d at 1136.
Additionally, defendants cite Lamar Adver. of Penn. LLC v. Town of Orchard Park, 356 F.3d 365, 377 (2d Cir. 2004), for the proposition that "mootness based upon deference to the state actors' decision to amend or rescind the challenged provision is the rule, not the exception." (Defs' Mem. at 6.) However, this proposition is overbroad; further examination of Lamar indicates that the Second Circuit intended this rule to be limited to a legislative body's decision to amend a challenged law. See Lamar, 356 F.3d at 377. As the court limited its analysis to the repeal and/or amendment of legislative enactments, there is no indication that the Second Circuit intended its holding to be broadly extended to state actors categorically.
- 9-

plaintiffs appealed; at oral argument before the Second Circuit, the attorney for Great Meadow informed the court that the policy had been changed, anq the prisoners were no longer subject to the restriction at issue. Id. at 23-24. The Second Circuit held that the change in policy "embodied in an official prison document ... handed up to the Court during oral argument" made it clear that the wrongful behavior could not reasonably be expected to recur; thus, the prisoners' claim for injunctive relief was moot. Id. at 24.
Defendants also rely on Armstrong, where a complaint filed by female inmates at the Bedford Hills Correctional Facility seeking an injunction against further transfers from Bedford Hills to Fishkill Correctional Facility was dismissed as moot. 529 F.2d at 1135. After the suit commenced, the State closed the women's unit of Fishkill, and although it gave no assurances that the unit would remain closed, the State made clear that if reopened, Fishkill's conditions would be improved. Id. at 1133-34. Further, no inmate at Bedford Hills would be transferred to Fishkill without her consent. Id. at 1134.
Here, Dr. Wright's repeal of the ASAT/RSAT requirement is a change in defendants' policy regarding the treatment of inmates infected with Hepatitis C - on that fact alone, Tawwab and Armstrong would appear to control. However, a number of circumstances in this case, absent from the facts both of Tawwab and Armstrong, dictate a different result. While Dr. Wright transmitted the change in policy via a memorandum on DOCS letterhead and a follow-up e-mail and has stated that he has no intention of re-instituting the ASAT/RSAT requirement, his motivation for the change is questionable at best. Dr. Wright himself has stated that he was motivated to change the ASAT/RSAT requirement, not because of his belief that prisoners should be treated without completing the program and not because he believed that making treatment contingent upon the completion of an
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ASAT/RSAT program violated inmates' constitutional rights, but because of "guidance" given by the appellate courts. This "guidance" came in the form of losses in three appellate cases challenging the ASAT/RSAT requirement as applied to different inmates.7
Additionally, it is significant that Dr. Wright's repudiation of the ASAT/RSAT requirement came on the eve of the filing of defendants' opposition papers - his original memo rescinding the requirement was dated October 13, 2005, the e-mail to DOCS officials detailing the change went out on October 18, 2005, and defendants' memorandum of law in opposition to plaintiffs' motion for class certification was dated October 21,2005. This swift change in policy, as argument was swiftly approaching in a case challenging the same policy that had I.ed to three losses in state and federal appellate courts, prompts questions of defendants' credibility and gives rise to suspicions that defendants have simply manufactured an argument of mootness. See United States v. New York City Transit Auth., 97 F.3d 672, 676 (2d Cir. 1996) ("We also think it is significant that the change of policy was instituted on the eve of the lawsuit."); Ahrens v. Bowen, 852 F.2d 49, 53 (2d Cir. 1988) ("The fact that the Secretary, who had repeatedly refused to waive recoupment in the present case over a five year period, suddenly elected to do so on the eve of plaintiffs' motion for summary judgment ... suggests an attempt by the Secretary to conjure up an argument for mootness and thwart adjudication of the issue."). Based on the above exigent circumstances, Tawwab and Armstrong are distinguishable and thus, not controlling.
The facts of this case are more in line with the facts in Tsombanidis v. West Haven Fire Dep't, 352 F.3d 565 (2d Cir. 2003) and New York City Transit Auth., 97 F.3d 672. In
7 See Johnson v. Wright, 412 F.3d 398 (2d Cir. 2005); McKenna v. Wright, 386 F.3d 432 (2d Cir. 2004); Domenech v. Goord, 797 N.Y.S.2d 313 (N.Y. App. Div. 2d Dep't 2005).
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Tsombanidis, the plaintiff challenged a provision of the fire code addressing whether residents could be considered members of a single-family dwelling for purposes of the fire code. 352 F.3d at 573. Despite testimony by the Deputy State Fire Marshal that he had changed the interpretation of the code so that it wouldn't impact the plaintiff, and the fire inspector had stated he would follow the new interpretation, the Second Circuit rejected the Fire Department's mootness argument. Id. at 574. The court found that the Fire Department had not met its heavy burden "because the interpretation of the code might change again for example, upon a change in the State Fire Marshal's administration." Id.
Additionally, in New York City Transit Auth., the EEOC challenged a Transit Authority policy as violative of Title VII. 97 F.3d at 674. After negotiations during which the Transit Authority refused to sign either a conciliation agreement or a consent decree, the Transit Authority unilaterally changed the policy at issue and "represented that it had no plans to reinstitute it." Id. The Second Circuit rejected the Transit Authority's mootness argument, largely because although the Transit Authority had changed the policy, it had expressed reservations as to the effectiveness of the new policy, which "foreshadow[ed] the eventual abandonment of the policy or the modification of it in ways that would present again the same issues." Id. at 676. 8
Here, defendants have not met their heavy burden of demonstrating that there is no reasonable expectation that the challenged actions will recur. After years of insisting that completion of the ASAT/RSAT requirement was a mandatory requirement for those who
a In reaching the conclusion that the case was not moot, the Second Circuit considered and distinguished both Tawwab and Armstrong, finding that although changes in official policy in those cases rendered the controversy moot, circumstances surrounding the Transit Authority's change in policy that were not present in those cases dictated a different result.
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were infected w,. ith Hepatitis C and wished to receive the combination treatment, Dr. Wright
rescinded the requirement on the eve of defendants' submission of their opposition papers. However, his recission was not necessarily a complete recission of the policy - while Dr. Wright no longer makes receiving the combination treatment contingent upon completion of the ASAT/RSAT requirement, his revised policy still states that completion of the ASAT/RSAT program is "essential" to proper Hepatitis C treatment. Similar to the defendants in New York City Transit Auth., Dr. Wright has changed a policy, but he has made it clear that he doesn't believe in the change. Rescinding a requirement, yet maintaining that it is "essential" to proper treatment leads to speculation that at some point in the future, the program could again become mandatory, given that in the past, Dr. Wright apparently only treated inmates who had not met his ASAT/RSAT requirement when he was under court order.
Furthermore, lik~ in Tsombanidis, Dr. Wright's actions cannot bind all future Associate Commissioner/Chief Medical Officers of DOCS. There, in rejecting the Fire Department's mootness argument, the Second Circuit highlighted the possibility that a change in the State Fire Marshal's administration could lead to a return to the challenged conduct; the same possibility exists in this case. While Dr. Wright has averred that he has no intention of reinstating the ASAT/RSAT requirement, future commissioners, who have broad discretion in policymaking and interpretation, could again hinge receipt of the standard combination treatment on completion of an ASAT/RSAT program.
Circumstances surrounding Dr. Wright's repudiation of the requirement, and his inability to bind future commissioners of DOCS, demonstrate that the change in policy did not render this case moot. Defendants have not demonstrated that there is "no reasonable
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expectation" that the ASAT/RSAT requirement will be reinstated; thus, it is not clear that the defendants' conduct will not recur.
2. Interim Relief Even if defendants had demonstrated that there is no reasonable expectation that the challenged conduct will recur, defendants' mootness claim would fail because they have not shown that "interim relief or events have completely and irrevocably eradicated the effects of the alleged violation," a finding that is required in order to succeed on their mootness argument. Tsombanidis, 352 F.3d at 574. Although both Hilton and Vasquez are now receiving the combination treatment, it does not follow that all Hepatitis C-infected inmates medically eligible for the treatment will in fact receive the treatment. As previously noted, there are over 9,000 inmates in DOCS custody that have been diagnosed with Hepatitis C - and only two percent of them are currently receiving the standard combination treatment. While not all inmates are medically eligible for the combination treatment (approximately 6-12% of the infected inmates currently in DOCS custody are eligible), many inmates that are eligible were denied treatment solely because of the prior ASATIRSAT requirement. Defendants have repudiated the mandatory aspect of the ASAT/RSAT requirement, and Dr. Wright has ordered DOCS medical personnel to "review any Hepatitis C patients for whom [ASAT/RSAT] issues may have been the contraindication for treatment and submit/resubmit Request for Treatment e-forms for those who medically qualify for treatment according to the revised care guideline." (Wright e-mail.) But, review does not necessarily translate into treatment - while some inmates will invariably receive the treatment based on
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Dr. Wright's directive, it is not clear that all the inmates that were denied the treatment based on their failure to complete an ASAT/RSAT program will now receive the treatment.
Defendants have given no assurance that each member of the class that plaintiffs seek to certify - all Hepatitis C-infected prisoners in defendants' custody, including plaintiffs, who were subject to defendants' substance abuse policy, and but for that policy, would have received the standard combination treatment - will be treated fairly and now receive treatment. A general directive to "review" the files of the thousands of inmates infected with Hepatitis C currently in DOCS care and custody does not "completely and irrevocably" eradicate the effects of the prior ASAT/RSAT requirement. It may be a beginning, but it is far from an eradication.
Because defendants have not shown that (1) "no reasonable expectation" remains that the ASAT/RSAT requirement will be reinstated, and (2) Dr. Wright's October 18,2005, e-mail announcement of the Guideline change resulted in a complete eradication of the effects of the prior ASAT/RSAT requirement, defendants have not established that plaintiffs' equitable claims and motion for class certification are moot. Therefore, their cross-motion to dismiss will be denied.
B. Plaintiffs' Motion for Class Certification '''In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 have been met.", Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 178,94 S. Ct. 2140, 2153 (1974) (quoting Miller v. Mackey Int'l, 452 F.2d 424 (5th Cir. 1971)). Thus, when deciding a motion to certify a class, the allegations in the complaint are accepted as true. See Shelter Realty Corp. v. Allied Maint. Corp., 574 F.2d 656,661
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....----------~~~"---------~~

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n.15 (2d Cir. 1978). "Rule 23 requires a litigant who would bring a class action to overcome two hurdles. First, he must satisfy all the conditions of 23(a) and then he must also convince the court that his action is appropriate under one of the three subdivisions of 23(b)." Green V. Wolf Corp., 406 F.2d 291, 298 (2d Cir. 1968); Amchem Prods.! Inc. V. Windsor, 521 U.S. 591,614,117 S. Ct. 2231, 2245 (1997).
The plaintiffs, as the party seeking class certification, bear the burden of proof in demonstrating that the requirements have been met. Caridad V. Metro-North Commuter R.R., 191 F.3d 283, 291 (2d Cir. 1999); Verdow V. Sutkowy, 209 F.RD. 309, 311 (N.D.N.Y. 2002). However, plaintiffs are not required to make an extensive evidentiary showing. Verdow, 209 F.RD. at 311. Further, courts are implored to construe liberally the Rule 23 requirements. Eisen V. Carlisle & Jacquelin, 391 F.2d 555, 563 (2d Cir. 1968); Verdow ,209 F.RD. at 311.
1. Rule 23(a) Prerequisites The Rule 23(a) prerequisites to a class action are: "(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class." Fed. R. Civ. P. 23(a). In common legal parlance, these requirements are generally referred to as numerosity, commonality, typicality, and adequacy of representation. See General Tel. CO. V. EEOC, 446 U.S. 318, 330, 100 S. Ct. 1698, 1706 (1980). Defendants assert that there is no prospective class. They argue that "the ASAT/RSAT requirement is the sole basis upon which plaintiffs assert commonality,
- 16-

typicality, and adequacy of representation under Rule 23," and that because defendants have repudiated the ASAT/RSAT requirement, plaintiffs' equitable claims and petition for class certification are moot. (Docket No. 22, Defs.' Reply Mem. at 3.) However, as discussed supra, plaintiffs' claims are not moot. Thus, their motion for class certification will be considered.
The first requirement that plaintiffs must prove under Rule 23(a) is that the prospective class is so numerous that joinder is "impracticable." Fed. R. Civ. P. 23(a)(1). "Impracticable" in this context is not equivalent to "impossible," and plaintiffs need not even precisely quantify the prospective class so long as they reasonably estimate the number of potential class members. See Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993); Verdow, 209 F.R.D. at 311. The Second Circuit has held that a prospective class of forty or more raises a presumption of numerosity. See Consolo Rail Corp. v. Town of Hyde Park, 47 F.3d 473, 483 (2d Cir. 1995).
Plaintiffs assert that the class consists of at least 500 Hepatitis C-infected prisoners in defendants' custody, including plaintiffs, who were subject to defendants' previous ASAT/RSAT requirement, and but for that policy, would have received the standard combination treatment. Currently, there are over 9,000 inmates with Hepatitis C in defendants' custody, and all were subjected to the ASAT/RSAT requirement. At the time of litigation, only 2% were receiving the standard combination treatment, although anywhere from 6-12% of the infected inmates were medically eligible. These potential class members are located in DOCS facilities throughout New York State. Defendants do not challenge these numbers.
- 17 -

Plaintiffs have demonstrated sufficient numerosity - a class consisting of at least 500 inmates meets the numerosity requirement. See Consol. Rail. Corp., 47 F.3d at 483. Further, joinder here would be extremely impracticable, given that the estimated class members are dispersed throughout the state of New York.
The second requirement of commonality requires a showing that the prospective class members share common questions of law or fact. Fed. R. Civ. P. 23(a)(2). Where the "claims of all proposed class members derive from the same [] policies and procedures, and are based on the same legal theories," the commonality requirement is met. McNeill v. New York City Hous. Auth., 719 F. Supp. 233, 252 (S.D.N.Y. 1989).
Here, the named plaintiffs and the members of the proposed class base their Eighth and Fourteenth Amendment cruel and unusual punishment, ADA, and Section 504 claims on defendants' prior ASAT/RSAT requirement. That is, but for defendants' ASAT/RSAT requirement, plaintiffs and the proposed members of the class would have received the standard combination treatment. The representative parties and the putative class members have the same legal claims based on the same official procedure. Accordingly, the commonality requirement is met. See id.
The third requirement, typicality, requires that claims or defenses of the representative party or parties are typical of those of the prospective class. Fed. R. Civ. P. 23(a)(3). The representative claims need not be identical to the claims of every class member in order to meet the typicality requirement. McNeill, 719 F. Supp. at 252. But, the "disputed issue of law or fact [must] occupy essentially the same degree of centrality to the named plaintiffs claim as to that of other members of the proposed class." Caridad, 191 F.3d at 293 (internal quotations omitted). Here, the claims of the representative parties and
- 18 -

the members of the prospective class all center around defendants' application of the nowrescinded ASAT/RSAT requirement, which defendants applied to all Hepatitis C-infected prisoners in their custody. Therefore, the typicality requirement is met.
The final requirement under Rule 23(a) is that the representative parties will fairly and adequately protect the interests of the prospective class. Fed. R. Civ. P. 23(a)(4). When determining if this requirement is met, a plaintiff must make two showings: (1) that counsel for the prospective class is qualified, experienced, and generally able to conduct the litigation; and (2) that the class members, especially the representative party, do not have interests antagonistic to one another. See In re Joint Eastern & Southern Dist. Asbestos Litigation, 78 F.3d 764, 778 (2d Cir. 1996). The attorneys representing the named plaintiffs and seeking to represent the putative class have established that they are qualified, experienced, and are generally able to conduct this litigation. Defendants make no viable arguments to the contrary. Nor do the class members have interests antagonistic to one another. Plaintiffs, like the members of the proposed class, have been refused the standard combination treatment for their Hepatitis C because of defendants' prior ASAT/RSAT policy. The claims of plaintiffs are consistent and complementary to those of the prospective class. Accordingly, plaintiffs have demonstrated that they can adequately represent the interests of the proposed class.
Plaintiffs have met the prerequisites of Rule 23(a). Consideration of the requirements of Rules 23(b)(2) and 23(b)(1), upon which plaintiffs base their motion for class certification, will be determinative of the motion.
- 19 -

2. Rule 23(b)(2)
This subsection permits class certification if "the party opposing the class has acted
or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole."
Fed. R Civ. P. 23(b)(2). In other words, a class will be certified if "broad, class-wide
injunctive or declaratory relief is necessary to redress a group-wide injury." Robinson v.
Metro-North Commuter RR Co., 267 F.3d 147, 162 (2d Cir. 2001).
Where class-wide injunctive or declaratory relief is sought in a (b)(2) class action for an alleged group harm, there is a presumption of cohesion and unity between absent class members and the class representatives such that adequate representation will generally safeguard absent class members' interests and thereby satisfy the strictures of due process. This presumption of cohesion and unity continues where incidental damages are also sought because entitlement to such damages does not vary based on the subjective considerations of each class member's claim, but flows directly from a finding of liability on the claims for class-wide injunctive and declaratory relief.
Id. at 165 (internal quotations and citations omitted).
In this case, the prior ASAT/RSAT requirement was generally applicable to all Hepatitis C-infected inmates in defendants' care and custody, thus is generally applicable to all prospective class members, not just the named plaintiffs. In fact, the ASAT/RSAT requirement effectively defines members of the potential class - those that but for the ASAT/RSAT requirement would have received the standard combination treatment. Therefore, final injunctive relief or corresponding declaratory relief with respect to the class as a whole is appropriate. See id. at 162. Moreover, while the named plaintiffs also seek monetary damages, this litigation centers around the application of the previous ASAT/RSAT
- 20-

policy, which was applicable to all inmates infected with Hepatitis C. Accordingly, class
certification under Rule 23(b)(2) is appropriate.
3. Rule 23(b)(1)
Plaintiffs contend that even if class certification under Rule 23(b)(2) is not
appropriate, class certification would be maintainable under Rule 23(b)(1)(8) or 23(b)(1)(A).
Rule 23(b)(1 )(8) permits class certifications where
the prosecution of separate actions by or against individual members of the class would create a risk of ... adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests.
Fed. R. Civ. P. 23(b)(1)(8). Typically, certification of these classes is based on a "limited
fund" theory, where certification is proper where the putative class members' only source of legal recovery comes from a limited fund. See~, Ortiz v. Fibreboard Corp., 527 U.S. 815,
834-838, 119 S. Ct. 2295, 2309 (1999). However, while "the limited fund scenario is the
'paradigm suit' under Rule 23(b)(1)(8), courts have also granted certification under this
subsection to classes of inmates seeking injunctive relief." Ingles v. City of New York, No. 01
Civ. 8279(DC), 2003 WL 402565, at *8 (S.D.N.Y. Feb. 20, 2003) (citing cases).9
Here, plaintiffs argue that a ruling in this case awarding/denying injunctive and
declaratory relief would affect the rights of the absent class members, enhancing or curtailing
their ability to bring similar claims; thus, class certification would be proper under Rule
9 In Ortiz, the Supreme Court also gave other examples of cases where the rights of absent plaintiffs may be affected by disposition of an individual suit: "suits brought to reorganize fraternal-benefit societies; ... actions by shareholders to declare a dividend or otherwise to fix [their] rights; .,. and actions charging a breach of trust by an indenture trustee or other fiduciary similarly affecting the members of a large class of beneficiaries." 527 U.S. at 834, 119 S. Ct. at 2309 (internal citations and quotations omitted).
- 21 -

23(b)(1)(8). Plaintiffs' allegations illustrate that an individual adjudication of the equitable claims raised by plaintiffs would indeed affect the interests of the absent class members. Further, the members of the potential class are currently inmates, and the equitable relief sought would apply equally to the prospective and named plaintiffs in this action. Certification under Rule 23(b)(1)(8) is not reserved only for those bringing "limited fund" claims. See Ortiz, 527 U.S. at 834, 119 S. Ct. at 2308-09; Ingles, 2003 WL 402565, at *8. Thus, class certification under Rule 23(b)(1)(8) is also appropriate.
Additionally, plaintiffs alternatively maintain that class certification would also be proper under Rule 23(b)(1)(A), which authorizes a class action if "the prosecution of separate actions by or against individual members of the class would create a risk of ... inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class." Fed. R. Civ. P.23(b)(1)(A). "Courts are still struggling to develop guidelines governing the scope of Rule 23(b)(1)(A)." In re Simon II Litig., 407 F.3d 125, 133 n.6 (2d Cir. 2005) (internal citations and quotations omitted).10 However, examples of where certification under Rule 23(b)(1 )(A) would be appropriate include "'where the [defendant] is obliged by law to treat the members of the class alike (a utility acting toward customers; a government imposing a tax), or where the [defendant] must treat all alike as a matter of practical necessity (a riparian owner using water as against downriver owners).'" Amchem Prods.. Inc. v. Windsor, 521 U.S. 591, 614, 117 S. Ct. 2231,2245 (1997) (quoting 8enjamin Kaplan, Continuing Work of the Civil
10 In fact, the Second Circuit expressly declined to decide whether the plaintiffs in Simon II satisfied the requirements of 23(b)(1 )(A). 407 F.3d at 133 n.6.
- 22-

Committee: 1966 Amendments of the Federal Rules of Civil Procedure (I), 81 HARV. L. REV.
356,388 (1967) (citations omitted)). In the instant case, certification under Rule 23(b)(1)(A) would also be proper, as
there is a risk of inconsistent adjudication that may "establish incompatible standards of conduct" for the defendants. Fed. R. Civ. P. 23(b)(1)(A). The members of the proposed class of plaintiffs are scattered throughout the state of New York; individual cases would inevitably be brought in a variety of state and federal courts, where there is a definite possibility of inconsistent results. Such litigation - where hundreds of plaintiffs would bring the same claims against the defendants in a multitude of state and federal courts - can only prejudice both parties. Additionally, defendants are "obliged by law to treat the members of the class alike," which only strengthens plaintiffs case for certification under Rule 23(b)(1)(A). See Amchem Prods., 521 U.S. at 614, 117 S. Ct. at 2245. Here, defendants did treat the members of the potential class alike - they made the standard combination treatment for Hepatitis C contingent upon meeting the former ASAT/RSAT requirement. It is the blanket imposition of that policy that is at issue here. Accordingly, class certification is also proper under Rule 23(b)(1 )(A).
4. Appointment of Class Counsel Plaintiffs' attorneys have also petitioned to be appointed class counsel, pursuant to Rule 23(g)(2)(b), as they are the only applicant for appointment. To be appointed, plaintiffs' counsel "must fairly and adequately represent the interests of the class" and meet the requirements of Rule 23(g)(1 )(8) and (C), which state, inter alia, that a court must consider (1) "the work counsel has done in identifying or investigating potential claims in the action"; (2) "counsel's experience in handling class actions, other complex litigation, and claims of the
- 23-

type asserted in the action"; (3) "counsel's knowledge of the applicable law"; and (4) "the resources counsel will commit to representing the class." Fed. R. Civ. P. 23(g)(1)(8) and (C).
After consideration of the requirements of Rule 23(g), given their experience and expertise in this area of law, especially with cases involving defendants' former ASAT/RSAT requirement - and in the absence of objection by defendants, plaintiffs' counsel will be appointed as class counsel. IV. CONCLUSION
Dr. Wright and DOCS have failed to demonstrate that (1) "no reasonable expectation" remains that the ASAT/RSAT requirement will not be reinstated or retained in fact, and (2) Dr. Wright's October 18, 2005, e-mail notification of the ASAT/RSAT Guideline change resulted in a complete eradication of the effects of the previous ASAT/RSAT policy. Thus, plaintiffs' equitable claims and motion for class certification are not moot, and defendants' cross-motion to dismiss is denied.
Hilton and Vasquez meet the numerosity, commonality, typicality, and adequacy of representation prerequisites of Rule 23(a). Additionally, final injunctive or declaratory relief would be appropriate to the class as a whole pertaining to the prior ASAT/RSAT policy, which meets the requirements for certification of Rule 23(b)(2). Adjudication of plaintiffs' claims for injunctive and declaratory relief would enhance or curtail the absent plaintiffs' ability to bring similar claims, which also meets the requirements for certification under Rule 23(b)(1)(8). The circumstances of this case present a situation evincing a risk of inconsistent adjudication that may "establish incompatible standards of conduct" for the defendants, were the putative class members to individually bring injunctive and declaratory claims against the defendants.
- 24-

Thus, the putative class is also appropriate for certification pursuant to Rule 23(b)(1)(A). Plaintiffs' counsel is appointed class counsel pursuant to Rule 23(g).
Therefore, it is ORDERED that 1. Defendants' cross-motion to dismiss is DENIED; 2. Plaintiffs' motion for class certification is GRANTED; 3. Plaintiffs' counsel is appointed as class counsel. IT IS SO ORDERED.
Dated: February 27,2006 Utica, New York.
- 25-

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
----------------------------------------------------------------------)(
ROBERT HILTON, on behalf of himself and all others similarly situated,
Plaintiff,
-against-

u.s. DISTRICT COURT N.D. OF N.Y. FILe£)
lAWRE#N;2CAsEU-GoK"1BPA7~M2-A0~0N-5, CLERk
- , CLASS ACTION ALBANY
COMPLAINT $~~k.$ is" s ;J.

LESTER N. WRIGHT, M.D., M.P.H., Associate Commissioner! Chief Medieal Officer, for the New Yark State Department of Correctional Services; and the NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES,
Defendants.
----------------------------------------------------------------------)(

JURY TRIAL DEMANDED
05 -cv- 1038
lEK IGJO

Plaintiff ROBERT HILTON, by his attorneys KOOB & MAGOOLAGHAN, hereby

alleges as follows:

PRELIMINARY STATEMENT

l. ROBERT HILTON, an inmate who suffers from Hepatitis C and has repeatedly been

identified by treating physicians as a patient in need of combination antiviral therapy,

commences this action on behalf of himself and other similarly situated inmates as a result of

defendants' unlawful and abhorrent pattern and practice of refusing to provide treatment to those

individuals known to be suffering from this potentially fatal disease. The action is commenced

pursuant to the Civil Rights Act of 1871,42 U.S.c. § 1983, the Americans with Disabilities Act

("ADA"), 42 U.S.C. § 12132, and Section 504 of the Rehabilitation Act ("Section 504"), 29

U.S.C. § 794, and seeks to immediately remedy defendants' persistent violations of plaintiff

ROBERT HILTON'S Eighth and Fourteenth Amendment rights and his rights to be free of

arbitrary discrimination.

2. Treatment by combination antiviral therapy has consistently been refused to those inmates confined under the care and custody of the New York State Department of Correctional Services ("DOCS") who suffer from Hepatitis C because of a DOCS' Hepatitis C Protocol that unconstitutionally and irrationally requires any prisoner who has used drugs or alcohol at any time in their life to participate in a non-medical prison-run substance abuse treatment program prior to receiving Hepatitis C treatment.
3. Although attendance in and completion of the substance abuse program has no foundation in the medical treatment of Hepatitis C, defendants have imposed the requirement as a means of limiting the number of prisoners who receive the antiviral therapy in order to avoid the substantial expenses associated with the treatment. Thus, absent medical justification, defendants impose their unprecedented Hepatitis C Protocol on all prisoners with Hepatitis C, regardless of how advanced their illness has progressed, how much time has elapsed since the prisoner last used drugs or alcohol, regardless of whether the prisoner ever abused drugs or alcohol in a clinical sense, regardless of whether the prisoner had ever been found using drugs or alcohol while in prison, and regardless of whether the prisoner had ever participated in drug and alcohol treatment programs in the past.
4. Moreover, defendants' impose their Hepatitis C Protocol on all prisoners with Hepatitis C despite the fact that the substance abuse program is not available to hundreds of patients in immediate need of treatm(!nt because only a very limited number of inmates can attend the program at one time. Thus" due to the backlog in applications for the program, even Hepatitis C patients who agree to attend the program, like Mr. HILTON, must nevertheless wait an extensive period of time before they even have the opportunity to comply with DOCS' Hepatitis C Protocol. During the waiting period, all treatment is denied.
2

5. Furthermore, once an inmate finally becomes eligible to attend the substance abuse program, defendants' nevertheless deny their participation in the program if, by that time, there is a speculative possibility that the inmate might be released on parole before finishing the substance abuse program. Thus any Hepatitis C patient who has even the remotest possibility of release on parole within six months of the time they become eligible to attend the substance abuse program is categorically denied access to treatment for their Hepatitis C until such time as they are actually released from DOCS' custody.
6. Defendants' actions are contrary to law, contrary to sound medical practice, and contrary to the norms of a civilized society. As a result of defendants' conduct, plaintiff has suffered and will continue to suffer permanent physical harm, emotional distress and mental anguish, and an increased risk of death. Accordingly, plaintiff brings this action seeking compensatory and punitive damages, and declaratory and injunctive relief for defendants' violations of his Eighth and Fourteenth Amendment rights and his rights under the ADA and Section 504.
JURISDICTION AND VENUE 7. This action arises under thE: Eighth and Fourteenth Amendments to the United States Constitution, the ADA, Section 504, Imd under 42 U.S.C. §§ 1983 and 1988. 8. The jurisdiction of this Court is predicated upon 28 U.S.C. §§ 1331 and 1343. 9. The acts complained of occurred in the Northern District of New York and venue is properly lodged in this Court pursuant to 28 U.S.C. § 1391(b).
JURY DEMAND 10. Plaintiff demands trial by jury in this action.
3

THE PARTIES 11. Plaintiff ROBERT HILTON has been under DOCS' care and custody since August, 2004, and is and was at all relevant times confined at either the Washington Correctional Facility ("Washington"), located in Comstock, New York, or the Altona Correctional Facility ("Altona"), located in Altona, New York. 12. Defendant LESTER N. WRIGHT, M.D., M.P.H. is and was at all relevant times herein the Associate Commissioner and Chief Medical Officer for the New York State Department of Correctional Services ("DOCS") and as such he is and was responsible for the supervision and administration of the provision of medical services at the State's correctional facilities. Defendant WRIGHT is and was responsible for the development and implementation of medical policies and practices for prisoners in the custody of DOCS, including Mr. HILTON. Defendant WRIGHT is personally responsible for the development and implementation of the Hepatitis C treatment eligibility guidelines challenged in this case. Defendant WRIGHT is sued in his individual and official capacity. 13. Defendant NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES is the agency created by the State of New York for the purpose of operating prison facilities within New York State and is a "public entity" as that term is used in 42 U.S.c. § 12131 (1). Upon information and belief, at all relevant times herein, DOCS received federal financial assistance for the operation of prison facilities within New York State, including the Washington and Altona facilities. 14. All defendants named hen~in acted under color of state law at all relevant times.
4

FACTUAL ALLEGATIONS Progression and Treatment of Hepatitis C 15. Hepatitis C is a progressive viral disease that attacks the liver, often with fatal consequences. 16. About one fifth of individuals with chronic Hepatitis C eventually develop cirrhosis of the liver. 17. Because so many Hepatis C patients develop cirrhosis of the liver, Hepatitis C is a leading cause of liver transplantation in the United States. 18. Treatment of chronic Hepatitis C is generally achieved through combination therapy (a combination of the drugs interferon and ribavirin). 19. Pegylated interferon, whic:h is a type of interferon administered once per week, has achieved the highest response rates when combined with ribavirin and is currently recognized by a consensus of the medical community as the standard treatment for Hepatitis C. 20. The effectiveness oftreatment for Hepatitis C is dependent on many factors. Where treatment is delayed, it becomes less effective because chronic Hepatitis C causes increased fibrosis, or scarring of liver tissue, and eventual cirrhosis of the liver. 21. If a patient develops liver cirrhosis, there is a substantial likelihood that antiviral therapy will be ineffective and the only alternative to a painful death will be liver transplantation. 22. In addition to making treatment ineffective, progression to cirrhosis or advanced fibrosis exposes patients to an increased risk of developing hepatocellular carcinoma, a cancer of the liver. 23. In light of the foregoing, any delay in providing treatment to individuals with chronic Hepatitis C exposes them to an elevated risk of serious physical harm, grave and substantial pain
5

and suffering, and death. 24. In light of the foregoing, it is well-accepted within the medical community that
Hepatitis C should be diagnosed as soon as possible, and treated promptly where medically indicated.
Mr. HILTON's Medical Condition Prior to His Current Incarceration 25. Prior to Mr. HILTON's current incarceration, and in or around December, 1999, Mr. HILTON had a biopsy that revealed that he has Hepatitis C and that his liver disease by then had progressed to Grade 2 Stage 2 portal tract fibrosis. 26. The Grade 2 Stage 2 designation reflects the standard classification spectrum developed to grade the progress of liver deterioration, whereby incipient damage is classified as Grade 1, Stage 1 and pervasive inflammation and scarring, or cirrhosis, rates at Grade 4, Stage 4. 27. The moderate fibrosis and inflammation reflected in Mr. HILTON's December 1999 liver biopsy indicated a risk that his liver disease would progress to cirrhosis. 28. The December 1999 biopsy diagnosis, combined with other clinical indicators, led doctors at Bellevue Hospital to institute a course of antiviral treatment for Mr. HILTON in 2002. 29. At all times relevant to this complaint, it was universally accepted within the medical community that a continuous 48 week course of treatment combining pegylated interferon and ribavirin is necessary to completely treat Hepatitis C virus of the Type 1 genotype (the genotype of Mr. HILTON's Hepatitis C). 30. The antiviral treatment commenced at Bellevue in 2002 was interrupted after approximately 12 weeks of treatment after Mr. HILTON became homeless. 31. Mr. HILTON entered DOCS custody on or about August 18, 2004, and after being held in reception at Downstate Correctional Facility for two or three days, was confined at
6

Altona. 32. When Mr. HILTON enten!d DOCS custody, he underwent a physical examination
and a battery of blood tests. 33. At Mr. HILTON's physical examinations at Downstate and Altona, he reported to the
medical staff that he suffered from Hepatitis C and that his initial antiviral therapy, initiated at Bellevue Hospital, had been interrupt~:d prior to completion.
34. Mr. HILTON additionally informed Altona medical staff that medical providers he consulted with at Metropolitan Hospital in New York City had, prior to his incarceration, recommended that his antiviral therapy be commenced again.
35. Medical records generated while Mr. HILTON was in the custody of the New York City Department of Correction revealed that, on May 8, 2004, Mr. HILTON had elevated liver function tests and had tested positive for Hepatitis C. Upon information and belief, these medical records accompanied Mr. HILTON when he entered DOCS custody and provided additional evidence of the need to institute antiviral therapy.
Denial of Treatment to Robert HILTON Due to DOCS' Hepatitis C Treatment Protocol 36. Despite Mr. HILTON's presenting symptoms in August, 2004, the Altona medical staff did not even begin to screen and evaluate Mr. HILTON for Hepatitis C treatment until on or about October 6,2004. Once the screening and evaluation process was begun, it was not completed until March, 2005, seven months later, at which time Mr. HILTON was finally medically cleared for Hepatitis C treatment. 37. Under all accepted medic:al standards, it should take no longer than six weeks to evaluate an individual for Hepatitis C treatment. 38. Upon information and belief, the delay in screening Mr. HILTON for Hepatitis C
7

treatment upon his confinement in Altona was caused by the failure of DOCS and Dr. WRIGHT to provide a prompt system for evaluating individuals with Hepatitis for treatment.
39. Upon information and belief, DOCS and Dr. WRIGHT have intentionally failed to provide for the prompt testing and evaluation of individuals with Hepatitis C as a means to reduce the number of individuals who are treated by DOCS for Hepatitis C.
40. The delay between August 2004 and March, 2005, in medically clearing Mr. HILTON for Hepatitis C treatment upon his transfer from the custody of the New York City Department of Corrections to the New York State Department of Correctional Services constituted deliberate indifference to Mr. HILTON's serious and potentially fatal medical condition.
41. After Mr. HILTON was medically cleared for Hepatitis C treatment, and on or before March 23, 2005, the medical staff at Altona referred plaintiff for evaluation by a gastroenterologist.
42. On or about April 22, 2005, Mr. HILTON was sent to Coxsackie Correctional Facility to be examined by a gastroenterologist, who recommended that Mr. HILTON begin treatment with a combination of pegylated interferon and ribavirin. The gastroenterologist made no recommendation whatsoever that Mr. HILTON was required to attend a substance abuse program.
43. On or about May 2,2005, medical providers at Altona completed a "Health Services Hepatitis C Form." On the form the providers entered various notations relating to Mr. HILTON's presentation, including information relating to laboratory measures of viral infection and liver function.
44. One space on the Health Services Hepatitis C Form which the Altona providers did 8

not complete, referred to enrollment in or completion of a prison-run substance abuse treatment program.
45. At the time the Health Services Hepatitis C Form was completed by the Altona providers, there had been no recommendation by any medical or other staff that Mr. HILTON enroll in or complete a prison-run substance abuse program as a condition of receiving the antiviral treatment recommended by the outside specialist.
46. On or about May 4, 2005, Mr. HILTON was cleared to receive Hepatitis C treatment by New York State Office of Mental Health personnel, and Mr. HILTON signed a Hepatitis C Treatment Consent Form, consenting to the initiation of combination antiviral therapy.
47. On or about May 4,2005, all DOCS and outside medical staff who had individually evaluated Mr. HILTON for treatment with antiviral therapy uniformly had determined that he was both eligible to receive treatment and that it was medically appropriate for him to receive treatment.
48. Despite the foregoing, Mr. HILTON, who by May, 2005 had not used any illicit drugs for more than 13 years, was denied treatment for Hepatitis C because of the Hepatitis C Protocol that was developed and promulgated for DOCS by Dr. WRIGHT. Specifically, with callous and calculated disregard for Mr. HILTON's serious medical illness defendants, by decision rendered in May, 2005, deni,~d him treatment for Hepatitis C until such time as he completed DOCS substance abuse program.
Defendants' Hepatitis C Protocol 49. The Hepatitis C protocol developed and/or utilized by Dr. WRIGHT and DOCS requires anyone who has ever admitkd to using drugs or alcohol in the past to participate in a prison-run alcohol and substance abuse treatment program before receiving Hepatitis C
9

treatment. 50. There are two principal prison-run alcohol and substance abuse treatment programs:
ASAT, which consists of daily classes over a period of six months; and RSAT, which is similar to ASAT but which requires participalllts to reside in a particular cell-block during the program.
51. Neither RSAT nor ASAT is supervised by medical staff, nor does either program require that instructors be accredited substance abuse counselors.
52. DOCS and Dr. WRIGHT have demonstrated a pattern and practice of applying the ASAT/RSAT requirement in a manner indicating defendants' disregard for reasoned and universally shared medical opinion regarding the treatment of Hepatitis C. Specifically, DOCS and Dr. WRIGHT have applied the ASAT/RSAT requirement, and denied treatment for Hepatitis C to patients until they have completed the substance abuse program:
a. regardless of the stage at which the disease has progressed; b. regardless of whether the requirement contravenes the treatment recommendations of DOCS' own treating physicians and specialists; c. regardless of how much time has passed since the prisoner last used drugs; d. even upon prisoners who have not used drugs for more than a decade; e. regardless of whether a prisoner's past use of drugs or alcohol constituted "abuse" under clinical diagnostic crit(:ria such as those enumerated in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, also known as the DSM-IV; f. regardless of whether the ASAT or RSAT programming is actually available in the correctional facility in which the prisoner is confined; g. regardless of whether the prisoner had previously completed a substance abuse treatment program, such as Alcoholics Anonymous, Narcotics Anonymous and the like,
10

even if the program completed was offered at and sanctioned by a DOCS' facility; and h. regardless of whethl~r DOCS actually has space available in its ASAT or RSAT
programs to allow the prisoner to fulfill the requirement. 53. At the time Mr. HILTON was denied Hepatitis C treatment there was an extremely
long waiting list to get into both ASAT and RSAT programs. 54. Upon information and belief prisoners, including those confined at Altona and
Washington, continue to be denied access to substance abuse programs because the ASAT and RSAT programs remain subject to long waiting lists that include many prisoners seeking to participate in the programs to comply with recommendations made by programming and counseling staff.
55. Upon information and belief some correctional facilities had more than one thousand (1,000) prisoners on their ASATI RSAT waiting lists in 2004.
56. Upon information and belief, because of limited enrollment space, it could take several years before an inmate could become eligible to participate in a substance abuse program at some DOCS facilities.
57. The Hepatitis C protocol developed and/or utilized by Dr. WRIGHT and DOCS is applied irrationally and has no foundation in medical science.
58. There is no medical support for denying treatment for Hepatitis C to a patient who has admitted to drug or alcohol use in the past but who is not contemporaneously participating in a drug treatment program.
59. Informed medical judgment recognizes that even active drug users may be appropriate candidates for Hepatitis C treatment, whether they participate in drug abuse treatment programs or not.
11

Plaintiffs Attempt to Satisfy Defendants' Unconstitutional and Illegal Protocol 60. Defendants' May, 2005 callous determination to deny Mr. HILTON's treatment for his Hepatitis C until such time as he completed the ASATIRSAT was without medical justification. 61. At the time that Altona medical staff recommended treatment for Mr. HILTON, he had not used any illicit drugs for more than a decade. In fact, in 1993, upon a previous commitment to DOCS custody, Mr. HILTON reported that he had last smoked marijuana and sniffed cocaine when he was a teenager. 62. Mr. HILTON spent much of the time since 1993 either in DOCS custody or under the supervision by the New York State Division of Parole. As a result, Mr. HILTON was periodically required to submit to drug tests, and those drug tests uniformly showed him to be drug free. 63. When Mr. HILTON retumed to DOCS custody in August 2004, he denied any ongoing drug use or abuse, and there is no evidence to call this denial into question. 64. Nonetheless, after Mr. HILTON was informed that, to receive Hepatitis C medication, he had to participate in a prison-run substance abuse treatment program, he elected to comply with defendant WRIGHT's and DOCS policy in an effort to expedite his treatment. 65. Mr. HILTON elected to participate in a substance abuse program even though the requirement was wholly extraneous not only to the treatment indicated for his Hepatitis C but also, in light of his lengthy abstinence: from drug use, to his overall health needs. 66. Mr. HILTON was placed on the wait list for participation in RSAT at Altona because of the high demand for participation in the program. 67. Upon information and belief, on or about May 10,2005, Dr. WRIGHT informed
12

medical staff at Altona that Mr. HILTON's presence on the wait list for RSAT did not qualify him to receive medication for his Hepatitis C, because he was not actively enrolled in RSAT.
68. Thus despite Mr. HILTON's agreement to complete the ASATIRSAT requirement, he was denied participation in same, cmd remained without medical care.
69. On or about May 16,2005 Mr. HILTON was transferred to Washington. Upon his transfer Mr. HILTON filed a prison grievance demanding immediate antiviral therapy.
70. The Washington Inmate Grievance Resolution Committee, composed of two prisoners and two staffpersons, unanimously found that Mr. HILTON's grievance was warranted and that he should be provided with the antiviral therapy recommended by Mr. HILTON's treating physicians.
71. On or about June 8, 2005, the grievance committee's recommendation was rejected by Superintendent James Plescia ofVlashington, whose decision was upheld by the Central Office Review Committee upon Mr. HILTON's appeal.
72. The Central Office Review Committee rejected the recommendation of the Grievance Committee because the Hepatitis C protocol developed and/or utilized by Dr. WRIGHT and DOCS' prohibits the administration of antiviral therapy to Mr. HILTON until such time as he satisfies the ASATIRSAT requirement set forth in the Hepatitis C Protocol.
73. While confined at Washington, counseling staff attempted to enroll Mr. HILTON in ASAT, the Washington facility's analogue to the RSAT programming for which he had been wait-listed at Altona.
74. On or about July 28, Mr. HILTON was informed that his application to enroll in ASAT was rejected because his paroh~ eligibility date of November 2, 2005 would be reached prior to the conclusion of the six months of participation usually required of enrollees. Mr.
13

HILTON thus remains without treatment, and without access to treatment, as a direct result of defendants' Hepatitis C Protocol.
75. Mr. HILTON continues to be denied the antiviral treatment prescribed by a consultant, and sought by his doctors at Altona and Washington, because DOCS has predicated his eligibility for treatment on enrollment in unrelated, unnecessary, and, in fact, unavailable substance abuse programming.
76. As antiviral treatment continues to be denied on the basis of this Catch 22, Mr. HILTON's liver continues to deteriorate.
77. The refusal to treat Mr. HILTON is a result of defendants' policy and practice of deliberately disregarding the risk to prisoners' health caused by delays in treatment of Hepatitis C and defendants' deliberate disregard of the risk to categorically refusing to treat prisoners with Hepatitis C.
78. Upon information and belief, the policy, pattern and practice of defendants DOCS and WRIGHT of delaying the diagnosis of and treatment for Hepatitis C to any prisoner who has ever admitted to using drugs or alcohol in the past is unnecessarily and in contravention of good and accepted medical practice.
79. Upon information and belief, DOCS and WRIGHT have maintained their policy, pattern and practice regarding Hepatitis C for the purpose of avoiding the costs inherent in offering Hepatitis C treatment to prisoners in DOCS custody.
80. As a direct result of defendants' policy and practice, Mr. HILTON has been denied access to treatment for Hepatitis C.
81. As a direct result of defendants' policy and practice, Mr. HILTON has been denied medical treatment for a progressive, potentially fatal, liver disease.
14

82. Defendants' denial of medical care to Mr. HILTON results in serious physical harm to plaintiff, as well as an increased risk of death.
83. The refusal by defendants WRIGHT and DOCS to treat Mr. HILTON is not medically justified and evidences def(~ndants' callous disregard to the threat presented to plaintiff s health by Hepatitis C.
84. Upon information and belief, defendants DOCS and Dr. WRIGHT have maintained their policy and practice of discrimination in the face of substantial risk of serious physical harm to Mr. HILTON and other similarly situated prisoners.
85. Upon information and belief, the policy and practice of DOCS and WRIGHT bears no rational relationship to any legitimate governmental interest and/or is motivated by ill will or animus toward prisoners with a past history of drug or alcohol use, including Mr. HILTON.
86. By imposing the ASAT/RSAT requirement blindly on all past drug and alcohol users, defendants DOCS and WRIGHT have demonstrated that they regard all persons who have ever used drugs, including Mr. HILTON, to have a physical or mental impairment that substantially limits one or more of the: major life activities of such individuals.
87. Accordingly, under the policy imposed and applied by defendants DOCS and WRIGHT, all past drug or alcohol us~~rs, including Mr. HILTON, are regarded by defendants as having a disability under the ADA and Section 504. See 29 U.S.C. § 705(20)(B)(iii); 42 U.S.C. § 12102 (2)(C).
88. In addition, defendants' policy discriminates against prisoners on the basis of prior drug use and/or abuse, which discrimination is separately prohibited by the ADA and Section 504.
89. By imposing the ASAT/RSAT requirement upon all prisoners who have ever 15

admitted to using drugs or alcohol, defendants have discriminated against such prisoners, including Mr. HILTON, on the basis of their perception that such prisoners have a disability and on the basis of their prior drug use or abuse.
90. Defendants' conduct in refusing treatment ofMr. HILTON's Hepatitis C evidences defendants' deliberate indifference to plaintiffs serious medical needs and defendants' cruel and unusual treatment in violation of the Eighth Amendment to the United States Constitution.
91. As a result of defendants' deliberate indifference, Mr. HILTON has experienced an increased risk of death, extreme pain and suffering, and emotional distress.
92. Plaintiff has exhausted his administrative remedies, to the extent they were made available to him.
CLASS ACTION ALLEGATIONS 93. Plaintiff brings this action on his own behalf and, pursuant to Rule 23(b)( 1), Rule 23(b)(2), and Rule 23(b)(3) of the Federal Rules of Civil Procedure, on behalf of all prisoners with Hepatitis C who must now or in the future meet defendants' ASAT/RSAT requirement to obtain treatment.
a. The exact size of the class is unknown to plaintiff but upon information and belief more than 8,500 male inmates and more than 700 female inmates are infected with Hepatitis C. Upon information and belief, less than 2% of these prisoners receive antiviral therapy, though it is likely that at least 20% of prisoners with Hepatitis C are deemed medically appropriate candidates for treatment. Accordingly, plaintiff conservatively estimates that the size ofthe class is larger than 1500 prisoners.
b. The conditions,. practices and omissions that form the basis of this 16

complaint are common to all members and the relief sought - voiding

defendant DOCS and WRIGHT's categorical ASATIRSAT requirement-

will apply to the entire class.

c. The claims of plaintiff are typical of the claims of the entire class.

d. The prosecution of separate actions by individual members of the class

would create a risk of inconsistent and varying adjudications that would

establish incompatible standards of conduct for the defendants.

e. The prosecution of separate actions by individual members of the class

would create a risk of adjudications with respect to individual members

which would, as a practical matter, substantially impair the ability of other

members to protect their interests.

f.

Defendants have acted or refused to act on grounds generally applicable to

the class, making appropriate injunctive and declaratory relief with respect

to the class as a whole.

g. There are questions of law and fact common to the members of the class,

including defendants' violations of the Constitution of the United States,

the Americans with Disabilities Act and Section 504 of the Rehabilitation

Act, based on their failure to provide prisoners with Hepatitis C antiviral

therapy necessary to treat their disease.

h. The questions of law and fact common to the members of the class

predominate over questions affecting individual class members.

I.

Proceeding as a class action is superior to other available methods for the

fair and efficient adjudication of the controversy.

17

J.

The named plaintiff is capable of fairly and adequately representing the

class and protecting its interests. Koob & Magoolaghan, counsel for

plaintiff, is a private civil rights law finn experienced in prisoners' civil

rights litigation that, through prior litigation has secured court-ordered

institutional refonn within several DOCS-operated prisons. Koob &

Magoolaghan also has recently secured Hepatitis C treatment for

individual DOCS prisoners through federal and state court litigation.

FIRST CAUSE OF ACTION 94. Plaintiff repeats and realkges as if fully set forth herein the allegations contained in paragraphs numbered 1 through 93. 95. Defendant WRIGHT's past and continuing failure to provide plaintiff ROBERT HILTON with adequate treatment for Hepatitis C during his period of confinement in DOCS custody demonstrates deliberate indifference to and/or willful neglect ofplaintiffs serious medical needs constituting cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments of the United States Constitution. 96. As a result of defendant's violation of plaintiffs constitutional rights, plaintiff has suffered severe pain and suffering, including unnecessary pain and discomfort, a deterioration of his health, loss of future earnings, penmanent disability, and mental and emotional distress, and accordingly plaintiff is entitled to compensatory damages against defendant WRIGHT in an amount to be detennined at trial, punitive damages in an amount to be detennined at trial, and appropriate injunctive and declaratory relief against defendants WRIGHT, including but not limited to the provision of treatment with pegylated interferon combination therapy.
18

SECOND CAUSE OF ACTION 97. Plaintiff repeats and realleges as if fully set forth herein the allegations contained in paragraphs numbered 1 through 96. 98. Defendants WRIGHT and DOCS's past and continuing failure to provide plaintiff ROBERT HILTON with adequate treatment for Hepatitis C during his period of confinement in DOCS custody discriminates against qualified individuals with disabilities, including Plaintiff ROBERT HILTON, in violation of the Americans With Disabilities Act, 42 U.S.C. § 12132. 99. As a result of defendants' violation of plaintiffs constitutional rights, plaintiff has suffered severe pain and suffering, including unnecessary pain and discomfort, a deterioration of his health, loss of future earnings, permanent disability, and mental and emotional distress, and accordingly plaintiff is entitled to compensatory damages against defendant WRIGHT in an amount to be determined at trial, punitive damages in an amount to be determined at trial, and appropriate injunctive and declaratory relief against defendants WRIGHT and DOCS, including but not limited to the provision of treatment with pegylated interferon combination therapy.
THIRD CAUSE OF ACTION 100. Plaintiff repeats and realleges as if fully set forth herein the allegations contained in paragraphs numbered 1 through 99. 101. Defendants WRIGHT and DOCS's past and continuing failure to provide plaintiff ROBERT HILTON with adequate treatment for Hepatitis C during his period of confinement in DOCS custody discriminates against qualified individuals with disabilities, including Plaintiff ROBERT HILTON, in violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794. 102. As a result of defendants' violation of plaintiff s constitutional rights, plaintiff has
19

suffered severe pain and suffering, including unnecessary pain and discomfort, a deterioration of his health, loss of future earnings, pennanent disability, and mental and emotional distress, and accordingly plaintiff is entitled to compensatory damages against defendant WRIGHT in an amount to be detennined at trial, punitive damages in an amount to be detennined at trial, and appropriate injunctive and declaratory relief against defendants WRIGHT and DOCS, including but not limited to the provision of treatment with pegylated interferon combination therapy.
WHEREFORE, plaintiff respectfully request judgment be entered against defendants and that this Court enter an Order:
(A) granting plaintiffs request for certification ofthis action as a class action; (B) awarding compensatory damages in an amount to be detennined at trial; (C) awarding punitive damage:s against defendants in an amount to be detennined at trial; (D) awarding appropriate injunctive relief, including that defendants WRIGHT and DOCS treat plaintiff with pegylated interferon and ribavirin; (E) declaring unconstitutional the policy and practice of denying Mr. HILTON access to treatment for his Hepatitis C; (F) declaring unconstitutional defendants' policy and practice of predicating eligibility for Hepatitis C treatment on enrollment in substance abuse programming; (G) awarding reasonable attorneys' fees, costs, and disbursements under 29 U.S.c. § 794a, 42 U.S.C. § 12205; and 42 U.S,C. § 1988; and (H) directing such other and further relief as the Court may deem just and proper, together with attorneys' fees, interest, costs and disbursements of this action.
20

Dated: New York, New York August 16, 2005

,
~~:::::;r'l~~r--"'\::r~====:::;-- --By: A exan er A. Reinert (B No. 512944) Keith M. Donoghue (BarNo. 513215) Elizabeth L. Koob (Bar No. 506158) Joan Magoolaghan (Bar No. 501543) Attorneys for Plaintiff 19 Fulton Street, Suite 408 New York, New York 10038 (212) 406-3095

21

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
----------------------------------------------------------------------)(
ROBERT HILTON and LOUIS VASQUEZ, on behalf of themselves and all others similarly situated,

j,~

U.S. DISTRICT COURT (~.;i: lJ

N.D. OF N.Y.. ,,,,,,,,.,,, ' \"

FILED'

'!

JUL 25 2001
J LAWlRIENCE K. 8AERMAN. Clerk UTICA ' ., J

-against-

Plaintiffs,

INTERIM SETTLEMENT AGREEMENT

LESTER N. WRIGHT, M.D., M.P.H., Associate Commissioner/ Chief Medical Officer, for the New York State Department of Correctional Services; and the NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES,

05 Civ. 1038 (DNH) (DEP)

Defendants.
--------------------------------------------------------,--------------)(

The parties, by their attorneys, hereby stipulate and agree as follows:

WHEREAS plaintiff Robert Hilton commenced this action on August 17,2005, on behalf

of himself and a class of others similarly situated to challenge defendants' alleged policy and

practice of refusing to provide adequate medical care to New York State prisoners with Hepatitis

C, alleging that defendants' conduct violated the Eighth and Fourteenth Amendments, the

Americans with Disabilities Act ("ADA") 42 U.S.C. § 12131, and Section 504 ofthe Rehabilitation

Act 29 U.S.c. § 794 ("Section 504"); and

WHEREAS plaintiff Robert Hilton amended his complaint on September 2, 2005, to add

plaintiff Louis Vasquez as a named plaintiff; and

WHEREAS plaintiffs alleged that defendants violated the Eighth and Fourteenth

Amendments, the ADA, and/or Section 504 by requiring all prisoners with a past history of drug

and/or alcohol use and/or abuse to participate in facility based substance abuse counseling programs

as a condition of receiving antiviral therapy; and

WHEREAS the defendants have answered the amended complaint and denied that they have violated the Eighth and Fourteenth Amendments, the ADA and/or Section 504; and
WHEREAS the Court certified the plaintiff class by Decision and Order dated February 27,2006; and
WHEREAS on October 13,2005, defendants announced the recision ofthe aforementioned prior requirement of substance abuse treatment as a condition for receipt of antiviral therapy in certain circumstances, and the parties being in agreement that upon such recision an inmate's participation in ASATIRSAT is and will be irrelevant in determining whether that inmate should receive antiviral therapy for Hepatitis C, or for making any other detennination regarding the treatment or screening of an inmate for Hepatitis C treatment; and
WHEREAS counsel for the plaintiffs and the defendants, without conceding any infinnity in their claims or defenses, have subsequently engaged in negotiations to resolve plaintiffs' claims for equitable relief; and
WHEREAS counsel for both parties have agreed to seek the Court's approval ofthe interim settlement ofthis case, in accordance with Rule 23(e) ofthe Federal Rules of Civil Procedure, and to file this Interim Settlement Agreement with the Court as the statement identifying the interim agreement made between the parties in connection with the proposed settlement pursuant to FRCP Rule 23(e)(2);
It is STIPULATED AND AGREED by and between the parties and their respective counsel as follows;
1. The within Interim Settlement Agreement ("Agreement") is intended to implement the
2

parties' joint agreement as to the resolution of the injunctive and equitable claims at issue in the within case.
2. The following definitions apply to the within Agreement: a. "DOCS": The New York State Department of Correctional Services, including its employees. b. "ASATIRSAT": The facility-based drug and alcohol counseling program offered throughout DOCS facilities, whether as a residential program ("RSAT") or as a non-residential program ("ASAT"). c. "Hepatitis C Protocol": A treatment protocol developed and implemented by DOCS to guide correctional facility physicians in the treatment of prisoners with Hepatitis C. d. "ASAT requirement": That element of the Hepatitis C Protocol which required that prisoners with a history of substance abuse participate in ASATIRSAT programs to obtain antiviral therapy for Hepatitis C, most recently expressed in paragraph 11 of the Hepatitis C Protocol dated July 20, 2004. e. "Class": Prisoners with Hepatitis C who were subjected to DOCS' previous ASATIRSAT requirements, and, but for the policy, would have obtained standard combination therapy for Hepatitis C. f. "Class Counsel": Koob & Magoolaghan
3. The parties agree that the following steps will be taken by DOCS to eliminate the ASAT requirement:
a. All facility physicians will again be informed by DOCS that the ASAT
3

requirement was rescinded in October, 2005 and a prisoner's participation in
ASATIRSAT is irrelevant in and may no longer be used as a criteria for
determining whether that prisoner may receive antiviral therapy for Hepatitis C,
or for making any other determination regarding the treatment or screening of a
prisoner for Hepatitis C treatment.
b. Paragraph 11 of the Hepatitis C Protocol will be revised to read as follows:
No evidence of active substance abuse (alcohol, heroin, cocaine, methamphetamine) during the past 6 months. Inmates with active substance use will be required to submit drug test samples routinely at least monthly (at random intervals) until they have been free of identified substance use for 6 months. The demonstrable 6 month period of abstinence is deemed to commence on the day following the last incident of substance use.
If you have an inmate/patient who might otherwise qualify for Hepatitis C treatment except for a drug or alcohol-related incident in the past 6 months, please submit the Approval for Treatment form as you would for anyone without such incident. The details of the incident and the urgency of treatment will be evaluated individually to determine whether or not the incident results in temporary disqualification for treatment.
c. The revised Hepatitis C Protocol will be distributed by defendants to all DOCS
health care providers (physicians, physician assistants, and nurse practitioners)
with a cover memo reiterating that participation in RSAT or ASAT is not to be
considered when evaluating an individual patient for standard combination
therapy.
d. All DOCS prisoners identified by DOCS as testing positive for Hepatitis C
will be informed that the ASAT requirement is no longer in effect, by being
personally provided with the Notice to Class.
4

4. The parties agree that the following steps will be taken to reevaluate any prisoner who was denied treatment for Hepatitis C because of the ASAT requirement:
a. The notification referred to in Paragraph 3(d) shall take place as described in the Stipulation Regarding Notice to the Plaintiff Class and Scheduling of Faimess Hearing (Stipulation). b. DOCS shall reevaluate any prisoner who was denied treatment for Hepatitis C because of the ASAT requirement within sixty ("60") days of the earlier of the following events: (i) a prisoner is identified by DOCS as an individual who was previously denied Hepatitis C treatment because of the ASAT requirement; or (ii) a prisoner requests reevaluation, personally or through class counsel, and it is confirmed that the prisoner at the last evaluation has previously been deni~d treatment because of the ASAT requirement. c. If DOCS is unable to reevaluate the prisoner within the period specified in Paragraph 4(b) of the Agreement, upon DOCS' receipt of a proper authorization for release of medical information, Class Counsel shall have the right to request an explanation as to why the reevaluation did not take place within the specified time. The prisoner and Class Counsel shall have the right to seek the Court's intervention to require a reevaluation in a timely manner. Prior to seeking such intervention, the prisoner and Class Counsel have an obligation to confer with DOCS' counsel to seek an informal resolution of any dispute. d. Should DOCS determine, after conducting any reevaluation contemplated by Paragraphs 4(b) and (c), that it is not medically appropriate to institute treatment
5

for a member of the class, DOCS shall provide a written explanation to the inmate and Class Counsel upon receipt by DOCS of a properly executed authorization for release of medical information. The prisoner and Class Counsel shall have the right to seek the Court's intervention to determine whether the decision not to treat is based upon a prisoner's participation or non-participation in ASATIRSAT. Prior to seeking such intervention, the prisoner and Class Counsel have an obligation to confer with DOCS' counsel to seek an informal resolution of any dispute. 5. The parties agree that Class Counsel will be apprised of DOCS' compliance with paragraphs 3 and 4 of this Agreement through the use of a questionnaire found in the Notice to Class as described in the Stipulation. Upon receipt of questionnaires from prisoners, Class Counsel will arrange for it to be tabulated and will provide a summary of the infonnation to DOCS' counsel, including infonnation sufficient for DOCS to conclude whether the prisoner is actually a member of the certified class and whether individual DOCS' facilities are in compliance with the time deadlines detailed in paragraph 4(b). 6. Class Counsel will be reimbursed $38,000 in attorneys' fees and $2,413.06 in costs in full satisfaction of the hours and costs incurred to date in this litigation. Class Counsel will further be paid at a rate of $160 an hour for attorney time and $80 an hour for paralegal time for hours incurred during the two year monitoring period described herein. Fees for the herein described monitoring period will capped at $20,000. Class Counsel reserves the right to seek Court intervention to enlarge this limit upon a showing that such enlargement is reasonable to
6

enforce the terms of this Agreement. The parties further reserve the right to seek Court intervention to modify the aforementioned rate in regard to the time expended in an individual matter arising during the monitoring period that requires motion practice before the Court. Fees will only be assessed in regard to hours incurred on behalf of inmates determined to be members of the class.
7. The parties agree that, absent mutual consent, this Agreement will be in effect for two years from the date this it is executed by the parties. If this Agreement is not so ordered by the Court, the Agreement will be null and void. After two years from the date that this Agreement is executed by the parties, the terms and conditions of this Agreement shall expire and all equitable claims on behalf of plaintiffs discontinued and dismissed with prejudice unless the parties either agree to voluntarily extend this Agreement or if extension is ordered by the Court. Such an extension shall only be ordered by the Court upon a showing that defendants have not been in substantial compliance with the terms of this Agreement meaning that any alleged omissions or failures were not minimal or isolated but were substantial and frequent enough to warrant continued jurisdiction and oversight under prevailing federal law. The parties agree to confer prior to seeking a Court order regarding extension of this agreement and seek a conference with the Court pursuant to the Local Rules ofthe Northern DistriCt of New York prior to filing any motion.
8. This Agreement constitutes a final determination of the claims on behalf of the class and all claims for equitable relief contained in the Complaint and will bind class members, DOCS, and their successors, agents, employees, assigns and those acting in concert with them. This Agreement will not restrict or affect the claims or defenses of the parties in the named class representatives' actions for non-equitable relief nor will it restrict or have any affect upon the
7

representatives. actions fOJ non<quilable rcliefnor will it restrict or have any affect upon the

claims or defenses of any pany to actions irivoJvins claims for non-eqwtable reliefhrought by

class members either pending or subsequently filed, To the extent the parties have any dispute

regarding the applicability. enforcement, or interpretation afthis agreement, they arc obliged to

seek an informal resolution prior to seeking any Coun intervention. No party waives its right to

seek Court assistance in resolving any dispute regarding the applicability, enforcement, or

interpretation of this agreement.

Dated: New York, New York: July 19. 2007

KOOB & MAGOOLAGHAN Attorneys for Plaintiffs
19 Fulton Sueer, Suite 408 New York, NY 1003& (212) 406-3095
By: ~1f. Rci~!rt. th~/ Bar RoU No. 512945 aar@kmlaw-ny.com

Dated: Albany, New York July 19, 2007

ANDREW M. CUOMO Attorney Qeneral of the State of New York AttOrney for DefendantS Office of the Attorney General The Capi~ol Albany. NY 12224

By: Belinda A. Wasner Assistant Attorney General, of Counsel Bar R.oll No. 103901 (518) 474-8158 Belinda. Wagner@oa@.statc.ny.us
8 .

TOTAl.. P,OO:3

Al Dated: b",,\ ') , NY
July l.1-+="~, 2007:

~$-'~J.,S PO~NE. NOTARY PUBlIC·STATE OF NEW YORK No,OlP06156266 QuaUlhtd In Columbia County MV Comminion Expire. November 27,2010

SO ORDERED: Dated: Utica, NY ______ ,2007

HONORABLE DAVID N. HURD United States District Court

9

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ------------------------------------------------------------X ROBERT HILTON and LOUIS VASQUEZ, on behalf of themselves and all others similarly situated,

Plaintiffs,

–against–

Case No. 05 Civ. 1038 (DNH) (DEP)

LESTER N. WRIGHT, M.D., M.P.H., Associate Commissioner/ Chief Medical Officer, for the New York State Department of Correctional Services; and the NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES,

Defendants. ------------------------------------------------------------X

PLAINTIFFS’ MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR CLASS CERTIFICATION

KOOB & MAGOOLAGHAN Alexander A. Reinert, Bar Roll No. 512945 Attorneys for Plaintiffs 19 Fulton Street, Suite 408 New York, New York 10038 (212) 406-3095

TABLE OF CONTENTS
TABLE OF AUTHORITIES ........................................................................................................ ii PRELIMINARY STATEMENT ................................................................................................... 1 STATEMENT OF FACTS ............................................................................................................ 1 STATEMENT OF THE CLASS SOUGHT TO BE CERTIFIED ................................................ 5 ARGUMENT ................................................................................................................................. 5
I. THE COURT SHOULD GRANT CLASS CERTIFICATION .................................... 5 A. The Class Is Sufficiently Definite .............................................................. 7 B. The Proposed Class Satisfies the Prerequisites of Rule 23(a) ................... 8 1. The proposed class is sufficiently numerous ................................. 8 2. There are questions of law and fact common to the class ........... 11 3. Plaintiff’s claims are typical of the class ..................................... 12 4. Plaintiffs can adequately represent the proposed class ................ 14 C. The Class Action is Maintainable Under Fed. R. Civ. P. 23(b) ............... 16 1. The proposed class action is maintainable under Rule 23(b)(2) ...................................................................................................... 16 2. The proposed class action is maintainable under Rule 23(b)(1)(B) ...................................................................................................... 17 3. The proposed class action is maintainable under Rule 23(b)(1)(A) ...................................................................................................... 18 D. Plaintiff’s Counsel Should Be Appointed Class Counsel Pursuant to Rule 23(g)(2)(b) ............................................................................................... 19
CONCLUSION ............................................................................................................................ 19
i

TABLE OF AUTHORITIES CASES Amchem Products, Inc. v. Windsor, 521 U.S. 591 (1997) ......................................................... 14 Baffa v. Donaldson, Lufkin & Jenrette Securities Corp., 222 F.3d 52 (2d Cir. 2000) ........... 6, 14 Caridad v. Metro-North Commuter R.R., 191 F.3d 283 (2d Cir. 1999) ..................................... 12 Caroline C. by and through Carter v. Johnson, 174 F.R.D. 452 (D. Neb. 1996) ........................ 17 Clarkson v. Coughlin, 145 F.R.D. 339 (S.D.N.Y. 1993) .................................................... 5, 9, 12 Coleman v. Wilson, 912 F. Supp. 1282 (E.D. Cal. 1995) ........................................................... 18 County of Riverside v. McLaughlin, 500 U.S. 44 (1991) .......................................................... 15 Dean v. Coughlin, 107 F.R.D. 331 (S.D.N.Y. 1985) .............................................................. 5, 12 Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326 (1980) .......................................................... 10 Dodge v. County of Orange, 208 F.R.D. 79 (S.D.N.Y. 2002) .................................................. 7, 8 Doe v. Coughlin, 697 F. Supp. 1234 (N.D.N.Y. 1988) .......................................................... 5, 12 Doe v. Karadzic, 192 F.R.D. 133 (S.D.N.Y. 2000) ...................................................................... 7 Domenech v. Goord, 797 N.Y.S.2d 313 (2d Dept. 2005), affirming 766 N.Y.S.2d 287 (Sup. Ct. 2003) ........................................................................................................................................... 13 Eisen v. Carlisle and Jacquelin, 417 U.S. 156 (1974) ............................................................ 6, 15 Fogarazzao v. Lehman Bros., Inc., No. 03 Civ. 5194, 2005 WL 1802851 (S.D.N.Y. July 29, 2005) ............................................................................................................................................. 7 Ford v. Reynolds, 316 F.3d 351 (2d Cir. 2003) .......................................................................... 15 Gesicki v. Oswald, 336 F. Supp. 371 (S.D.N.Y. 1971) .............................................................. 18 In re Visa Check/MasterMoney Antitrust Litigation, 280 F.3d 124 (2d Cir. 2001) ................. 6, 7 Ingles v. City of New York, No. 01 Civ. 8279, 2003 WL 402565 (S.D.N.Y. Feb. 20, 2003) .... 7,
10, 14, 16-18 Macera v. Chinlund, 91 F.R.D. 579 (W.D.N.Y. 1981) ............................................................... 10
ii

Maneely v. City of Newburgh, 208 F.R.D. 69 (S.D.N.Y. 2002) ................................................ 11 Marisol A. ex rel. v. Giuliani, 929 F. Supp. 662 (S.D.N.Y.1996), aff’d, 126 F.3d 372 (2d Cir.1997) ..................................................................................................................................... 11 Marriott v. County of Montgomery, 227 F.R.D. 159 (N.D.N.Y. 2005) ................................. 5, 16 Matyasovszky v. Housing Authority of City of Bridgeport, 226 F.R.D. 35 (D. Conn. 2005) .... 9,
10 McCoy v. Ithaca Housing Authority, 559 F. Supp. 1351 (N.D.N.Y. 1983) ................................. 9 McKenna v. Wright, 386 F.3d 432 (2d Cir. 2004) ..................................................................... 13 Meriwether v. Coughlin, 879 F.2d 1037 (2d Cir. 1989) ............................................................... 9 Morgan v. Koenigsmann, 03 Civ. 3987, slip op. (KMW)(AJP) (S.D.N.Y. 2004) ..................... 13 Nicholson v. Williams, 205 F.R.D. 92 (E.D.N.Y. 2001) ............................................................ 11 Robidoux v. Celani, 987 F.2d 931 (2d Cir. 1993) ........................................................ 8, 9, 11, 13 Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147 (2d Cir. 2001) ............................ 12 Smith v. Armstrong, 968 F. Supp. 50 (D. Conn. 1997) ................................................................ 5 Todaro v. Ward, 432 F. Supp. 1192 (S.D.N.Y. 1977) ................................................................ 12 Trief v. Dun & Bradstreet Corp., 144 F.R.D. 193 (S.D.N.Y. 1992) ............................................. 9 United States ex rel. Walker v. Mancusi, 338 F. Supp. 311 (W.D.N.Y.1971), aff’d, 467 F.2d 51 (2d Cir. 1972) .............................................................................................................................. 10 Weigmann v. Glorious Food, Inc., 169 F.R.D. 280 (S.D.N.Y. 1996) ...................................... 7, 9 Woe ex rel. Woe v. Cuomo, 729 F.2d 96 (2d Cir. 1984) .............................................................. 7
STATUTES Fed. R. Civ. P. 23 .................................................................................................... 6, 8, 11, 16-19
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OTHER SOURCES C. Wright et al., Federal Practice & Procedure (2d ed.1986) ....................................................... 7 Herbert B. Newberg & Alba Conte, 1 Newberg on Class Actions (3d ed.1992) ....................... 18
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PRELIMINARY STATEMENT This brief is submitted in support of plaintiffs Robert Hilton and Louis Vasquez’s motion for class certification in this action challenging defendants’ creation and application of an unlawful and unconstitutional treatment protocol for prisoners with Hepatitis C, a progressive and potentially fatal liver disease. Plaintiffs, who suffer from Hepatitis C but who have been denied treatment by defendants, seek injunctive relief on behalf of themselves and all other similarly situated prisoners in correctional facilities administered by defendant New York State Department of Correctional Services (“DOCS”). Plaintiffs specifically challenge the Hepatitis C treatment protocol created and implemented by defendant Lester Wright, inasmuch as it has resulted in the categorical denial of treatment for Hepatitis C to numerous prisoners in DOCS custody. Defendants Wright and DOCS have adopted and implemented a policy that is unsupported by medical science, and is only directed at reducing the number of prisoners who are eligible for treatment with the antiviral medications that can successfully treat Hepatitis C. Class certification is appropriate because the policies that plaintiffs challenge in the instant case have been and will be applied to all prisoners dispersed throughout New York State.
STATEMENT OF FACTS Hepatitis C is a blood-borne virus that if left untreated will lead, in many individuals, to cirrhosis, a scarring of the liver tissue that irreparably impairs functioning, an increased risk of hepatocellular carcinoma, and an increased likelihood of death. (First Amended Complaint (“Compl.”) ¶¶ 17–24; Affirmation of Alexander A. Reinert dated September 2, 2005 (“Reinert Aff.”), at ¶ 3–4. ) Because of Hepatitis C’s toxic effect on the liver, it is a leading cause of liver transplantation in the United States. (Compl. ¶ 19.) Provided that Hepatitis C is treated early
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enough, damage to the liver can be effectively stopped through antiviral therapy. (Compl. ¶ 21–22; Reinert Aff. ¶ 5.) However, when left untreated the virus will increasingly damage the liver in a substantial number of patients, and in some cases liver function will be so substantially impaired that the only treatment available will be transplantation. (Compl. ¶ 23; Reinert Aff. ¶ 5) Withholding treatment therefore both allows damage to the liver to progress and endangers the success of future antiviral therapy.
Plaintiff Robert Hilton has been diagnosed with chronic Hepatitis C since 1999, and prior to entering the custody of DOCS, he had been approved for treatment with antiviral therapy at Bellevue Hospital. (Compl. ¶¶ 36, 39.) But while in the custody of defendant DOCS and under the care of defendant Wright, Mr. Hilton was until recently provided with no treatment for his Hepatitis C, because of defendant Wright’s policy of refusing to provide Hepatitis C treatment to any prisoner who has ever used drugs or alcohol and who has not participated in a prison-run substance abuse treatment program. (Compl. ¶¶ 29, 32–34, 60.)
Plaintiff Louis Vasquez has been in DOCS custody since 1992, and tested positive for Hepatitis C in August 2004, while he was confined at Southport Correctional Facility. (Compl. ¶¶ 81–82.) Although Mr. Vasquez’s treating prison physicians have recommended that he receive antiviral therapy, Dr. Wright has denied approval for the therapy because Mr. Vasquez is not currently participating in a prison-run substance abuse counseling program. (Compl. ¶¶ 94, 97, 101.) Notably, Mr. Vasquez participated in a counseling program sanctioned by staff at Elmira Correctional Facility many years ago, and has shown no signs of relapse into drug abuse since that time. (Compl. ¶ 102.) Nonetheless, Mr. Vasquez continues to be denied treatment because of defendant Wright’s policy of refusing to provide Hepatitis C treatment to any prisoner who has ever used drugs or alcohol and who is not currently participating in a prison-
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run substance abuse counseling program. (Compl. ¶¶ 29, 32–34.) The substance abuse counseling programs, called ASAT in some facilities and RSAT in
those facilities where participants must reside on a particular cell block while taking classes, lasts six months and are often oversubscribed. (Compl. ¶¶ 30, 111-116; Reinert Aff. ¶ 13.) Defendants Wright and DOCS have applied a policy of requiring participation in ASAT or RSAT to all prisoners who wish to receive treatment for Hepatitis C. (Compl. ¶¶ 29, 32–33; Reinert Aff. ¶ 13-14.) Defendants’ policy is a blanket one, applying to prisoners who, like Messrs. Hilton and Vasquez, have not used drugs for several years; or who, like Mr. Hilton, have been housed in correctional facilities which either do not offer ASAT/RSAT or do not have sufficient resources to provide ASAT/RSAT to all prisoners who seek to participate in the program; or who, like Mr. Vasquez, have completed prison-sanctioned substance abuse counseling programs in the past. (Compl. ¶ 33; Reinert Aff. ¶ 14.) Defendants Wright and DOCS apply their policy despite the fact that prisoners like plaintiffs have been evaluated for Hepatitis C treatment by DOCS physicians and specialists, and have been approved for such treatment without regard to whether they are participating in a substance abuse treatment program.
Indeed, although DOCS physicians recommended that Mr. Hilton be offered treatment for Hepatitis C since May 2005, Dr. Wright refused to dispense the medication, solely on the ground that Mr. Hilton has not participated in a prison-run substance abuse treatment program. (Compl. ¶¶ 58, 60.) Dr. Wright adopted this position despite the fact that, in both prisons in which Mr. Hilton has been incarcerated, he was not permitted to participate in either RSAT or ASAT. (Compl. ¶¶ 66–67, 74–75.) Thus, even though Mr. Hilton was thwarted in his attempt to comply with the unconstitutional policy created and implemented by defendants DOCS and
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Wright, he remained untreated for this serious medical problem. The same is true for Mr. Vasquez, who has been denied treatment since March 2005
because of his failure to participate in ASAT or RSAT. (Compl. ¶¶ 94–101.) Mr. Vasquez has not used drugs for more than 25 years, and actually completed in a three month drug and alcohol counseling program in 1991. (Compl. ¶¶ 102, 104.) This program was endorsed by the Deputy Superintendent of Programs at Elmira Correctional Facility. (Compl. ¶ 100.) Defendants have no reason to believe that Mr. Vasquez has used drugs or alcohol while in their custody. (Compl. ¶ 102.) Nonetheless, he remains untreated for his potentially fatal condition because of defendants’ unconstitutional policy.
The policy which DOCS and Dr. Wright rely on in denying necessary medical care to prisoners like plaintiffs is found in the Hepatitis C Primary Care Practice Guideline. The 2003 version of this guideline provides that prisoner-patients “who have a substance use history must successfully complete or be enrolled in an ASAT program” in order to receive Hepatitis C treatment. (Reinert Aff. ¶ 10 & Ex. 3 at p. 4 n.11.) DOCS and Dr. Wright rely on this guideline to deny treatment to any prisoner who admits to using drugs in the past. By conservative estimates, there are currently over 9,000 prisoners in New York State correctional facilities who have been diagnosed with Hepatitis C. (Compl. ¶ 131; Reinert Aff. ¶ 6.) While not all of these prisoners are medically appropriate candidates for treatment, it is likely that at least 500 of them will develop chronic Hepatitis C which will merit treatment with antiviral therapy. (Reinert Aff. ¶ 8.) All of these prisoners have been or will be subjected to the same policies that resulted in the denial of treatment to Mr. Hilton and Mr. Vasquez.
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STATEMENT OF THE CLASS SOUGHT TO BE CERTIFIED The class sought to be certified comprises plaintiffs and all Hepatitis-C-infected prisoners in DOCS custody who must now or in the future meet defendants’ ASAT/RSAT requirement to obtain treatment.
ARGUMENT I. THE COURT SHOULD GRANT CLASS CERTIFICATION The court should grant certification for the plaintiff class because the requested injunctive relief applies to all similarly situated persons who are in the custody and care of DOCS, are diagnosed with Hepatitis C, require medical attention, and are not receiving it due to the failure to actively participate in the ASAT or RSAT drug counseling program. Class certification is especially appropriate for prisoners when policies and procedures that affect a large population are being litigated. Marriott v. County of Montgomery, 227 F.R.D. 159 (N.D.N.Y. 2005) (certification appropriate for jail inmates challenging policy of strip searches); Smith v. Armstrong, 968 F. Supp. 50 (D. Conn. 1997) (certification appropriate for inmates challenging policy limiting access to courts); Clarkson v. Coughlin, 145 F.R.D. 339 (S.D.N.Y. 1993) (certification appropriate for deaf and hearing impaired prisoners challenging accommodation policies of Department of Corrections); Doe v. Coughlin, 697 F. Supp. 1234 (N.D.N.Y. 1988) (Certification appropriate for HIV-infected inmates challenging policy segregating them from general population). As one court noted, “[t]he fluid composition of a prison population is particularly well-suited for class status, because, although the identity of the individuals involved may change, the nature of the wrong and the basic parameters of the group remain constant.” Dean v. Coughlin, 107 F.R.D. 331, 332 (S.D.N.Y. 1985). In this case,
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plaintiffs and all other current and future similarly situated inmates are being or will be denied
treatment based on defendants’ policies that are applied without regard to factors uniquely
relevant to any individual prisoner.
In order for a class to be certified, the prospective class must meet all four elements of
Fed. R. Civ. P. 23(a), as well as at least one element of Rule 23(b). See In re Visa
Check/MasterMoney Antitrust Litigation, 280 F.3d 124, 132-33 (2d Cir. 2001). Under Fed. R.
Civ. P. 23(a),
[o]ne or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
As will be demonstrated below, plaintiffs and the proposed class easily meet these
requirements. Federal Rule of Civil Procedure 23(b) additionally holds that class actions are
maintainable when
(1) the prosecution of separate actions by or against individual members of the class would create a risk of (A) inconsistent or varying adjudications with respect to individual members of the class which would establish incompatible standards of conduct for the party opposing the class, or (B) adjudications with respect to individual members of the class which would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interests; or (2) the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole . . . .
In determining the propriety of a class certification motion, the Court must accept
plaintiffs’ allegations as true and refrain from conducting an examination of the merits of the
case. Eisen v. Carlisle and Jacquelin, 417 U.S. 156, 177 (1974) (motion for class certification
not an occasion to examine merits of the case); accord Baffa v. Donaldson, Lufkin & Jenrette
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Securities Corp., 222 F.3d 52, 58 (2d Cir. 2000); Ingles v. City of New York, No. 01 Civ. 8279, 2003 WL 402565, *1 (S.D.N.Y. Feb. 20, 2003); Dodge v. County of Orange, 208 F.R.D. 79, 87 (S.D.N.Y. 2002). Furthermore, the requirements for class certification are liberally construed in the early stages of a case. Woe ex rel. Woe v. Cuomo, 729 F.2d 96, 107 (2d Cir. 1984); Doe v. Karadzic, 192 F.R.D. 133, 136 (S.D.N.Y. 2000); Weigmann v. Glorious Food, Inc., 169 F.R.D. 280, 284 (S.D.N.Y. 1996). In short, when faced with a motion for class certification, “the question [for the Court] is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met.” In re Visa Check/MasterMoney Antitrust Litigation, 280 F.3d at 133 (internal quotation marks and citation omitted). For the reasons given below, plaintiffs’ proposed class meets all the requirements of Rule 23.
A. The Class Is Sufficiently Definite Although class definition is not a specific requirement of Rule 23, a requirement that a class be identifiable has been implied by courts. Fogarazzao v. Lehman Bros., Inc., No. 03 Civ. 5194, 2005 WL 1802851, *3 (S.D.N.Y. July 29, 2005). A class is sufficiently definite if “it is administratively feasible for the court to determine whether an individual is a member.” 7A C. Wright et al., Federal Practice & Procedure § 1760 (2d ed.1986). Membership in the class should be able to be ascertained “without having to answer numerous [individualized] fact-intensive questions.” Fogarazzao, 2005 WL 1802851 at *3. Here, plaintiffs propose a class of all prisoners with Hepatitis C who must now or in the future meet defendants’ ASAT/RSAT requirement to obtain treatment. (Compl. ¶ 131; Reinert Aff. ¶ 16.) This definition is remarkably feasible, because defendants themselves have applied
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the ASAT/RSAT requirement as an absolute exclusion criteria for prisoners with Hepatitis C who meet designated medical criteria for treatment. (Compl. ¶ 33; Reinert Aff. ¶ 14.) Accordingly, the Court should find that the proposed class is sufficiently definite for the purposes of class certification.
B. The Proposed Class Satisfies the Prerequisites of Rule 23(a) Rule 23(a) imposes four overlapping requirements for a class: numerosity, commonality, typicality, and adequacy of representation. All of these factors are easily satisfied here.
1. The proposed class is sufficiently numerous A class must be “so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). It is not necessary for plaintiffs to “prove the exact number of class members, only that the class is so numerous that the joinder of all potential plaintiffs would be difficult or inconvenient.” Dodge, 208 F.R.D. at 88. See also Robidoux v. Celani, 987 F.2d 931, 935 (2d Cir. 1993) (stating that “[a]lthough the party seeking class certification need not present evidence of the ‘exact class size or identity of class members’ to establish that the proposed class is so numerous that joinder is impracticable, a reasonable estimate thereof is still required.”). Moreover, impracticability is not equivalent to impossibility. Robidoux, 987 F.2d at 936. A determination of impracticability depends on all the circumstances surrounding a case, not on mere numbers. Relevant considerations include: (1) judicial economy arising from the avoidance of a multiplicity of actions; (2) geographic dispersion of class members; (3) financial resources of class members; (4) the ability of claimants to institute individual suits; and (5) requests for prospective injunctive relief which would involve future class members. Id. All of
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these considerations counsel in favor of finding that plaintiff’s proposed class is sufficiently numerous.
First, the class is sufficiently numerous because it consists of at least 500 prisoners in the care and custody of DOCS. (Compl. ¶ 131; Reinert Aff. ¶ 8.) The number of future prisoners who would be included in this class is unknown, but would nonetheless contribute to the overall size of the class. It is well established that classes of more than 100 estimated members generally satisfy the numerosity requirement because they clearly serve interests of judicial economy. Robidoux, 987 F.2d at 936; Matyasovszky v. Housing Authority of City of Bridgeport, 226 F.R.D. 35, 41 (D. Conn. 2005) (class of 100 to 200 members sufficiently numerous); Weigmann, 169 F.R.D. at 284 (“Numbers between 100 and 1,000 generally satisfy the numerosity requirement.”); Trief v. Dun & Bradstreet Corp., 144 F.R.D. 193, 198 (S.D.N.Y. 1992) (classes in excess of forty or one hundred members sufficiently numerous). Class actions have been certified in prisoners’ rights cases where as few as seven members populated the class. E.g., Clarkson, 145 F.R.D. at 348 (7 member female subclass sufficient because future inmates will be subject to same policy); Meriwether v. Coughlin, 879 F.2d 1037 (2d Cir. 1989) (15 members sufficient).
As plaintiffs’ proposed class, by conservative estimates, contains at least 500 members, consolidating the claims into one action serves judicial economy. Indeed, “[e]ven if plaintiff’s estimate . . . is substantially overstated to the point that there are only 100 to 200 persons that fit the class definition, such a number would make joinder clearly impracticable.” McCoy v. Ithaca Housing Authority, 559 F. Supp. 1351, 1355 (N.D.N.Y. 1983). Further, were plaintiffs to prevail on the merits without class certification, the Court would be limited in its ability to ensure that the judgment would apply to all similarly situated prisoners. As a result, multiple
9

actions, potentially over five hundred, could ensue. The granting of certification would thus ensure that enforcement of a successful judgment would be readily applicable to all similarlysituated persons, and thus be far more efficient and cost-effective.
Second, the class members are dispersed throughout the state of New York, which would make joinder of all class members impracticable. See Ingles, 2003 WL 402565, at *5 (holding that joinder is impracticable and numerosity satisfied when class members consisted of some twelve detention facilities throughout New York City); Macera v. Chinlund, 91 F.R.D. 579, 583 (W.D.N.Y. 1981) (holding that statewide distribution of a defendant class was sufficient to find that joinder would be impracticable). Class members are situated in correctional facilities throughout New York, and as such, class members would not easily be able to participate in the litigation were class certification to be denied.
Third, the class members are limited financially in their ability to institute individual suits, due to their confinement by DOCS. See Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 339 (1980) (“Where it is not economically feasible to obtain relief within the traditional framework of a multiplicity of small individual suits for damages, aggrieved persons may be without any effective redress unless they may employ the class-action device.”). Were DOCS to continue to refuse to treat all similarly situated Hepatitis-C-infected prisoners, the at least 500 similarly situated prisoners would have to institute individual suits or intervene in plaintiffs’ lawsuit, an impossible task given the indigency of the vast majority of New York State prisoners. See Matyasovszky, 226 F.R.D. at 40 (noting low income status of proposed class members); see also United States ex rel. Walker v. Mancusi, 338 F. Supp. 311, 315-16 (W.D.N.Y.1971), aff’d, 467 F.2d 51 (2d Cir. 1972) (proposed class of 38 prison inmates considered sufficient to satisfy numerosity requirement).
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Finally, plaintiffs’ request for prospective injunctive relief would involve future class members, thus making joinder of such future members impracticable. An injunction requiring DOCS to cease imposing the ASAT/RSAT requirement on prisoners who seek Hepatitis C treatment would affect all potential class members, present and future, as the relief would apply not only to Hepatitis-C-infected prisoners with some evidence of past drug use who are currently in the custody of DOCS, but also to similarly situated prisoners who will be in the custody of DOCS and require medical treatment in the future. See Robidoux, 987 F.2d at 936. For all of these reasons, plaintiffs’ proposed class satisfies the numerosity requirement.
2. There are questions of law and fact common to the class To certify a class plaintiffs must also show that “there are questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). Commonality is presumed where plaintiffs “seek certification of an injunctive class . . . to right alleged constitutional wrongs.” Marisol A. ex rel. v. Giuliani, 929 F. Supp. 662, 690 (S.D.N.Y.1996), aff’d, 126 F.3d 372 (2d Cir.1997); see also Nicholson v. Williams, 205 F.R.D. 92, 98 (E.D.N.Y. 2001). The Second Circuit, for instance, has affirmed that commonality may be satisfied where a named plaintiff shares only one common question of law or fact with the members of the prospective class, despite the presence of differences among the questions raised by individual class members. Marisol A., 126 F.3d at 377; See also Maneely v. City of Newburgh, 208 F.R.D. 69, 75 (S.D.N.Y. 2002) (granting partial class action status, and holding that commonality was satisfied when the common legal issue was whether the defendants implemented a uniform, indiscriminate policy of strip searching all detainees, in the absence of reasonable suspicion). Here, the named plaintiffs share common questions of both law and fact with the
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proposed class. The named plaintiffs challenge the failure of defendants to adequately treat Hepatitis-C for the non-medical reason of failure to participate in the ASAT or RSAT drug treatment programs. The relevant portion of the DOCS Hepatitis C Primary Care Practice Guideline that is being challenged applies equally to all proposed class members. Plaintiffs’ claim is therefore identical in both fact and law to the claim of all other members of the proposed class, who have also been or will also be denied Hepatitis-C treatment for the same reason. Cf. Clarkson, supra (certification appropriate for deaf and hearing impaired prisoners challenging accommodation policies of Department of Corrections); Doe v. Coughlin, supra (certifying class challenging segregation of HIV-infected prisoners); Dean, supra (certification appropriate for prisoners challenging dental care in correctional facilities); Todaro v. Ward, 432 F. Supp. 1192 (S.D.N.Y. 1977) (certifying class challenging provision of medical care to prisoners at Bedford Hills Correctional Facility).
3. Plaintiff’s claims are typical of the class Typicality “is satisfied when each class member’s claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant’s liability.” Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 155 (2d Cir. 2001) (internal quotation marks omitted). The typicality criterion “does not require that the factual background of each named plaintiff’s claim be identical to that of all class members; rather, it requires that the disputed issue of law or fact occupy essentially the same degree of centrality to the named plaintiff’s claim as to that of other members of the proposed class.” Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 293 (2d Cir. 1999) (internal quotation marks omitted). When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff
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and the class sought to be represented, the typicality requirement is usually met. Robidoux, 987 F.2d at 936-37.
In the instant case, the typicality requirement is met because plaintiffs’ claims arise from the same course of events that endanger all members of the class. Any Hepatitis-C-infected prisoner in the custody of DOCS will be subjected to the ASAT/RSAT requirement prior to obtaining treatment, regardless of whether the prisoner has used or abused drugs in the recent past, regardless of whether the prisoner ever has participated in a substance abuse treatment program, regardless of the availability ASAT and RSAT in the facility where the prisoner is incarcerated, and regardless of the recommendations of the prisoner’s treating and specialist physicians. Indeed, by applying the same ASAT/RSAT requirement to so many different prisoners, defendants have themselves guaranteed that plaintiff’s claims are typical of the class’s claims. See e.g., Morgan v. Koenigsmann, 03 Civ. 3987, slip op. (KMW)(AJP) (S.D.N.Y. 2004) (application of ASAT requirement to prisoner who had been drug and alcohol free for more than a decade and who had completed Narcotics Anonymous and Alcoholics Anonymous programs); Conti v. Goord, 59 Fed. Appx. 434 (2d Cir. 2003) (same); Domenech v. Goord, 797 N.Y.S.2d 313, 314 (2d Dept. 2005), affirming 766 N.Y.S.2d 287 (Sup. Ct. 2003) (application of ASAT requirement to prisoner who had been drug free for more than 30 years); McKenna v. Wright, 386 F.3d 432, 434 (2d Cir. 2004) (application of ASAT requirement to prison who previously had been deemed ineligible for ASAT due to medical condition); see also Reinert Aff. ¶ 14.
Thus, any prisoner with an admitted past history of drug use will be subjected to the same unconstitutional and illegal policy as plaintiffs. Plaintiffs’ claims that this policy violates the Eighth Amendment, the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act arise out of the promulgation and enforcement of the relevant section of the DOCS Hepatitis
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C Primary Care Practice Guideline, and thus the legal grievance of each class member will arise from one single course of action taken by the defendant.
4. Plaintiffs can adequately represent the proposed class The adequacy of representation requirement compels an inquiry “as to whether: 1) plaintiff’s interests are antagonistic to the interest of other members of the class and 2) plaintiff’s attorneys are qualified, experienced and able to conduct the litigation.” Baffa, 222 F.3d at 60. To meet the first requirement, a class representative “must be part of the class and possess the same interest and suffer the same injury as the class members.” Amchem Products, Inc. v. Windsor, 521 U.S. 591, 625–26 (1997) (internal quotation marks omitted). Plaintiffs easily satisfy that requirement here. Like the proposed class, plaintiffs are in the custody of DOCS, have Hepatitis C, require treatment for this disease, and have been denied treatment because of the ASAT/RSAT policy challenged here. Like the proposed class, plaintiffs will and have suffered injuries by defendants’ failure to provide Hepatitis C treatment. There is no conflict of interest between the named plaintiffs and the proposed class, because plaintiffs’ desire to void the ASAT/RSAT requirement is entirely consistent and complimentary to the interest of all other class members in achieving the same. Moreover, plaintiffs’ claims rest on the same theory of liability as do the claims of the proposed class. The injunctive relief sought by plaintiffs – the voiding of defendants’ ASAT/RSAT requirement – will benefit all Hepatitis-C-infected prisoners who seek treatment for their disease.1 That Mr. Hilton is currently receiving treatment for his Hepatitis C despite his inability to
1 The fact that plaintiffs seek damages for themselves, which might be measured differently from individual to individual, and injunctive relief on behalf of the class, is no barrier to certification. Ingles, 2003 WL 402565, at *6.
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comply with defendants’ ASAT/RSAT requirement does not affect his suitability as a named plaintiff for the class. First, Mr. Hilton retains an interest in enjoining the application of the policy in the event that he requires retreatment for his Hepatitis C. (Reinert Aff. ¶ 14(i).) Thus, Mr. Hilton’s claim for injunctive relief is not mooted by the fact that he currently is being offered treatment, at defendants’ discretion, for Hepatitis C. Second, Mr. Hilton retains an interest in obtaining declaratory relief establishing the unconstitutionality of defendants’ policy, relief which is separate from his request for injunctive relief ordering defendants to provide Hepatitis C treatment. Ford v. Reynolds, 316 F.3d 351, 356 n.3 (2d Cir. 2003) (finding claims for injunctive relief moot but remanding for decision on claims for declaratory relief). Finally, even if Mr. Hilton’s injunctive relief claim is considered moot prior to a ruling on class certification, he remains an appropriate named plaintiff under well-established exceptions to the mootness doctrine for class actions. See County of Riverside v. McLaughlin, 500 U.S. 44, 51–52 (1991).2
The second requirement, that the plaintiffs’ attorney be competent to handle the case, is met when the attorney is qualified, experienced, and generally able to conduct the proposed litigation. Eisen, 391 F.2d at 562. In the instant case, plaintiff’s counsel is free from conflicts of interest, is qualified, experienced, and able to conduct the litigation. Plaintiff’s counsel has litigated numerous successful cases concerning the Eighth Amendment rights of prisoners, and has a specific expertise in healthcare matters. (Reinert Aff. ¶¶ 26-27.) In addition, plaintiff’s counsel is one of the few private counsel in New York State that has experience challenging the
2Pursuant to this Court’s Local Civil Rule 7.1(b)(2), plaintiffs’ motion for class certification could not have been filed without first consulting with counsel for defendants and the Court. As a practical matter, therefore, plaintiffs could not have brought their class certification prior to defendants’ unilateral decision to provide treatment to Mr. Hilton.
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ASAT/RSAT requirement as it applies to Hepatitis C-infected prisoners. (Reinert Aff. ¶ 27.) Counsel also has sufficient time and resources to devote to this case. (Reinert Aff. ¶ 28.)
C. The Class Action is Maintainable Under Fed. R. Civ. P. 23(b) In addition to satisfying all of the requirements of Rule 23(a), a party seeking class certification must also meet one of the requirements of Rule 23(b). In the instant case, plaintiffs can satisfy at least three of the possible requirements imposed by Rule 23(b).
1. The proposed class action is maintainable under Rule 23(b)(2) A class action is maintainable under Rule 23(b)(2) if “the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole.” This rule “was intended to assist litigants seeking widespread institutional reform through injunctive and/or declaratory relief.” Ingles, 2003 WL 402565, at *8. “[S]everal courts have found that Rule 23(b)(2) will generally be satisfied in cases where injunctive relief is sought and would benefit the entire class.” Id. Here, class certification is maintainable under subdivision (b)(2) because plaintiffs challenge the practices and policies employed by defendants in treating prisoners infected with Hepatitis C, and therefore seek injunctive and declaratory relief that would benefit the class as a whole. Marriott, 227 F.R.D. at 172-173 (even where monetary damages are sought, class certification was appropriate under 23(b)(2) because strip search policy being challenged was applicable to all members of class.) The relevant DOCS Hepatitis C Primary Care Practice Guideline applies to all prisoners generally, not merely to the named plaintiffs in this action.
16

Thus plaintiffs are seeking the precise “widespread institutional reform” that is central to Rule 23(b)(2)’s purpose. Ingles, 2003 WL 402565, at *8. Furthermore, because the injunctive and declaratory relief would simply mandate that defendants adequately treat Hepatitis-C-infected prisoners, the management of such relief would not be complicated and judicial economy would be served.
2. The proposed class action is maintainable under Rule 23(b)(1)(B) In the alternative, the class action is maintainable under Fed. R. Civ. P. 23(b)(1)(B), which permits class actions where “adjudications with respect to individual members of the class . . . would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interest.” Were the court to grant injunctive and declaratory relief to plaintiffs, the rights of all other similarly situated potential plaintiffs would be profoundly affected because a rule that applied to all prospective class members would have been struck down by the court as a violation of the Eighth Amendment, the ADA, or the Rehabilitation Act. Conversely, were the court to deny plaintiffs’ claim, the right of all other prospective plaintiffs to make similar claims would be severely curtailed. Cf. Ingles, 2003 WL 402565, at *7. Further, the court in Ingles expressly rejected the contention that Rule 23(b)(1)(B) existed only to protect defendants or that it applied in only “limited fund” cases (those cases where a specific pool of money would be depleted by an individual verdict, thereby affecting the possible amount future plaintiffs could receive). Id. at *8. The Ingles court specifically found that certification under this subsection could be granted to classes of inmates seeking injunctive relief. Id.; see also, e.g., Caroline C. by and through Carter v. Johnson, 174 F.R.D. 452, 467 (D.
17

Neb. 1996); Coleman v. Wilson, 912 F. Supp. 1282, 1293 (E.D. Cal. 1995); Gesicki v. Oswald, 336 F. Supp. 371, 374 (S.D.N.Y. 1971).
Here, plaintiffs seek to represent a class of inmates seeking injunctive and declaratory relief. The injunctive and declaratory relief they seek would apply equally with respect to all individual Hepatitis-C-infected prisoners who have been subjected to defendants’ ASAT/RSAT policy, and would be dispositive of the interests of the other members who are not yet a party to this litigation. Therefore, maintenance under Fed. R. Civ. P. 23(b)(1)(B) is appropriate.
3. The proposed class action is maintainable under Rule 23(b)(1)(A) Rule 23(b)(1)(A) authorizes a class action if “the prosecution of separate actions by . . . individual members of the class would create a risk of . . . inconsistent or varying adjudications with respect to individual members of the class.” Fed. R. Civ. P. 23(b)(1)(A). It cannot be disputed that, should individual members of the class pursue individual actions seeking injunctive and declaratory relief, there is a risk of “inconsistent or varying adjudications with respect to individual members of the class.” Id. Although some defendants have argued that Rule 23(b)(1)(A) is intended to protect defendants’ interests in avoiding inconsistent adjudications, the Court has an independent interest in avoiding inconsistent adjudications of the same controversy. Herbert B. Newberg & Alba Conte, 1 Newberg on Class Actions § 4.07 (3d ed.1992). Here, consistency of the adjudication of the proposed class’s claims is especially important, because it involves the application of a system-wide policy related to medical treatment. Accordingly, certification under Rule 23(b)(1)(A) is also proper. See Ingles, 2003 WL 402565, at * 7 (certifying class action under Rule 23(b)(1)(A) for jail detainees seeking
18

injunctive relief).
D. Plaintiff’s Counsel Should Be Appointed Class Counsel Pursuant to Rule 23(g)(2)(b)
Since plaintiffs’ counsel has no conflict of interest and can adequately represent all class members, has already devoted significant resources to identifying and investigating the legal claim, has experience in handling class actions and other complex litigation, is knowledgeable about the applicable law, and is willing and able to devote the necessary resources to the litigation, and is the only applicant for class counsel, it is respectfully requested that plaintiffs’ counsel be appointed class counsel pursuant to Fed. R. Civ. P. 23(g)(2)(b).
CONCLUSION In conclusion, plaintiffs respectfully requests that the Court, as soon as is practicable, grant plaintiffs’ request that a class be certified with respect to plaintiffs’ claims for injunctive and declaratory relief. Dated: New York, New York September 2, 2005
Respectfully submitted, KOOB & MAGOOLAGHAN
/s/ Alexander A. Reinert By: Alexander A. Reinert (Bar No. 512945) Keith M. Donoghue (Bar No. 513215) Elizabeth L. Koob (Bar No. 506158) Joan Magoolaghan (Bar No. 501543) Attorneys for Plaintiffs 19 Fulton Street, Suite 408 New York, New York 10038 (212) 406-3095
19

UNPUBLISHED AUTHORITY

© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.

Slip Copy Slip Copy, 2005 WL 1802851 (S.D.N.Y.) (Cite as: 2005 WL 1802851 (S.D.N.Y.))

Motions, Pleadings and Filings
Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Lawrence FOGARAZZO and Carolyn Fogarazzo, Joint Tenants With Rights of
Survivorship, Stephen L. Hopkins, and Don Engel on behalf of themselves, and
all others similarly situated, Plaintiffs, v.
LEHMAN BROTHERS, INC., Goldman Sachs & Co., and Morgan Stanley & Co., Inc., Defendants. No. 03 Civ. 5194(SAS).
July 29, 2005. Curtis V. Trinko, Neal A. DeYoung, Jeffrey B. Silverstein, Law Offices of Curtis V. Trinko, LLP, New York, New York, for Plaintiffs.
Alexander Dimitrief, P.C., Peter D. Doyle, Katherine J. Alprin, Kirkland & Ellis LLP, New York, New York, for Defendant Morgan Stanley & Co., Inc.
Moses Silverman, H. Christopher Boehning, Paul, Weiss, Rifkind, Wharton & Garrison LLP, New York, New York, for Defendant Lehman Brothers, Inc.
David H. Braff, Stephanie G. Wheeler, Sullivan & Cromwell LLP, New York, New York, for Defendant Goldman Sachs & Co.
OPINION AND ORDER
SCHEINDLIN, J.
I. INTRODUCTION
*1 Plaintiffs, a class of investors who bought shares of RSL Communications, Inc. ("RSL"), allege that defendants, three investment banks, fraudulently manipulated the price of RSL stock by issuing materially misleading analyst reports. Plaintiffs now move for class certification and defendants oppose the motion, asserting that individual questions of law and fact predominate over common questions.

II. FACTS
On May 21, 2004, I issued an Opinion denying defendants' motions to dismiss and summarizing plaintiffs' claims. [FN1] Familiarity with that Opinion is assumed.
FN1. See Fogarazzo v. Lehman Bros., Inc., 341 F.Supp.2d 274 (S . D.N.Y.2004).
Plaintiffs assert that defendants Lehman Brothers, Inc. ("Lehman"), Goldman Sachs & Co. ("Goldman") and Morgan Stanley & Co. ("Morgan") engaged in a fraudulent scheme "to distort, falsify, or otherwise manipulate their equity analyst reports on RSL Communications, Inc. ("RSL" [ ] ), in exchange for lucrative investment banking business, fees, and other [ ] profits as a result of their relationships with RSL." [FN2] "In sum, the Banks, knowing that RSL was actually in decline, inflated the price of RSL shares and then worked doubly hard to conceal or obfuscate the meaning of every fact that would have revealed that decline to the investing public." [FN3]
FN2. Memorandum of Law in Support of Motion for Class Certification ("Pl.Mem.") at 2.
FN3. Fogarazzo, 341 F.Supp.2d at 292.
Plaintiffs seek certification of a purported class that includes "all persons who purchased or otherwise acquired shares of RSL equities during the period from April 30, 1999 through December 29, 2000, both dates inclusive." [FN4] Plaintiffs assert that "hundreds, if not thousands, of geographically dispersed members" belong to the proposed class. [FN5] Plaintiffs seek appointment of the named plaintiffs as class representatives and assert that the named plaintiffs have claims "virtually identical to [ ] those of the members of the Class." [FN6] Plaintiffs also assert that the named plaintiffs "have been actively committed to litigating this case for at least two years," "are committed to conducting the vigorous prosecution required to remedy those damages [ ] suffered," and are subject to no unique defenses. [FN7]
FN4. Complaint ¶ 13.

FN5. Pl. Mem. at 7.
FN6. Id. at 11.
FN7. Id.
III. LEGAL STANDARD
A. Standard of Review
The Second Circuit requires a "liberal" construction of Rule 23 of the Federal Rules of Civil Procedure ("Rule 23"). [FN8] Thus, "to deny a class action simply because all of the allegations of the class do not fit together like pieces in a jigsaw puzzle [ ] would destroy much of the utility of Rule 23." [FN9] Notwithstanding the general liberality in this circuit towards class certification motions, the Supreme Court unequivocally requires district courts to undertake a "rigorous analysis" that the requirements of Rule 23 have been satisfied. [FN10]
FN8. See Korn v. Franchard Corp., 456 F.2d 1206 (2d Cir.1972); In re Lloyd's Am. Trust Fund Litig., No. 96 Civ. 1262, 1998 WL 50211, at * 5 (S.D.N.Y. Feb. 6, 1998) ("The Second Circuit has directed district courts to apply Rule 23 according to a liberal rather than a restrictive interpretation.").
FN9. Green v. Wolf Corp., 406 F.2d 291, 300 (2d Cir.1968).
FN10. General Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 161 (1982).
In ruling on class certification, a district court may not simply accept the allegations of plaintiffs' complaint as true. [FN11] Rather, it must determine, after a "rigorous analysis," whether the proposed class comports with all of the elements of Rule 23. "[S]ometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.... [A]ctual, not presumed, conformance with Rule 23(a) remains ... indispensable." [FN12]
FN11. See In re Initial Public Offering Sec. Litig. ("In re IPO"), 227 F.R.D. 65, 91 (S.D.N.Y.2004).
FN12. Falcon, 457 U.S. at 161.
*2 "In order to pass muster, plaintiffs--who have the burden of proof at class certification--must make 'some showing" ' that the proposed class comports

with Rule 23. [FN13] That showing may take the form of, for example, expert opinions, evidence (by document, affidavit, live testimony, or otherwise), or the uncontested allegations of the complaint. However, "a district court is forbidden to weigh the evidence on class certification [and] plaintiffs need not establish the elements of Rule 23 by a preponderance of the evidence." [FN14]
FN13. In re IPO, 227 F.R.D. at 93 (quoting Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 292 (2d Cir.1999)) (emphasis in original).
FN14. Id. (citing Caridad, 191 F.3d at 293).
B. The Requirements of Rule 23
Rule 23 governs class certification. To be certified, a putative class must meet all four requirements of Rule 23(a) as well as the requirements of one of the three subsections of Rule 23(b). In this case, as in most cases seeking money damages, plaintiffs bear the burden of demonstrating that the class meets the requirements of Rule 23(a)--referred to as numerosity, commonality, typicality, and adequacy [FN15]--and that the action is "maintainable" under Rule 23(b)(3). [FN16] Under Rule 23(b)(3)--the only applicable subsection of Rule 23(b)--"common" issues of law or fact must "predominate over any questions affecting only individual members," and a class action must be demonstrably "superior" to other methods of adjudication. [FN17]
FN15. See Caridad, 191 F.3d at 291.
FN16. See Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997).
FN17. Fed.R.Civ.P. 23(b)(3).
1. Rule 23(a)
a. Numerosity
Rule 23 requires that the class be "so numerous that joinder of all members is impracticable." [FN18] "Impracticability does not mean impossibility of joinder, but refers to the difficulty or inconvenience of joinder." [FN19] Although precise calculation of the number of class members is not required, and it is permissible for the court to rely on reasonable inferences drawn from available facts, numbers in excess of forty generally satisfy the numerosity requirement. [FN20]

FN18. Fed.R.Civ.P. 23(a)(1).
FN19. In re Independent Energy Holdings PLC Sec. Litig., 210 F.R . D. 476, 479 (S.D.N.Y.2002) (citing In re Avon Sec. Litig., No. 91 Civ. 2287, 1998 WL 834366, at *5 (S.D.N.Y. Nov. 30, 1998)).
FN20. See Trief v. Dun & Bradstreet Corp., 144 F.R.D. 193, 198 (S.D.N.Y.1992).
b. Commonality
Commonality requires a showing that common issues of fact or law affect all class members. [FN21] A single common question may be sufficient to satisfy the commonality requirement. [FN22] "The critical inquiry is whether the common questions are at the core of the cause of action alleged." [FN23]
FN21. See Fed.R.Civ.P. 23(a)(2); see also Trief, 144 F.R.D. at 198.
FN22. See German v. Federal Home Loan Mortgage Corp., 885 F.Supp. 537, 553 (S.D.N.Y.1995).
FN23. D'Alauro v. GC Services Ltd. P'ship, 168 F.R.D. 451, 456 (E.D.N.Y.1996) (quotation omitted). See also In re "Agent Orange" Prod. Liab. Litig., 818 F.2d 145, 166-67 (2d Cir.1987).
The commonality requirement has been applied permissively in securities fraud litigation. [FN24] In general, where putative class members have been injured by similar material misrepresentations and omissions, the commonality requirement is satisfied. [FN25]
FN24. See In re Blech Sec. Litig., 187 F.R.D. 97, 104 (S.D.N.Y.1999).
FN25. See, e.g., Blackie v. Barrack, 524 F.2d 891, 902 (9th Cir.1975) ("Confronted with a class of purchasers allegedly defrauded over a period of time by similar misrepresentations, courts have taken the common sense approach that the class is united by a common interest in determining whether a defendant's course of conduct is in its broad outlines actionable...."); In re Baldwin-United Corp. Litig., 122 F.R.D. 424, 426 (S.D.N.Y.1986) ("The nub of plaintiffs' claims is that material information was withheld from the entire putative class in

each action, either by written or oral communication. Essentially, this is a course of conduct case, which as pled satisfies the commonality requirement of Rule 23....").
c. Typicality
The typicality requirement "is not demanding." [FN26] A named plaintiff's claims are "typical" pursuant to Rule 23(a)(3) where each class member's claims arise from the same course of events and each class member makes similar legal arguments to prove the defendants' liability. [FN27] "The rule is satisfied ... if the claims of the named plaintiffs arise from the same practice or course of conduct that gives rise to the claims of the proposed class members." [FN28]
FN26. Forbush v. J.C. Penney Co., 994 F.2d 1101, 1106 (5th Cir.1993) (citing Shipes v. Trinity Indus., 987 F.2d 311, 316 (5th Cir.1993)).
FN27. See Robinson v. Metro-North Commuter R.R. Co., 267 F.3d 147, 155 (2d Cir.2001).
FN28. Marisol A. v. Giuliani, 929 F.Supp. 662, 691 (S.D.N.Y.1996), aff'd, 126 F.3d 372 (2d Cir.1997).
In addition, a putative class representative's claims are not typical if that representative is subject to unique defenses. [FN29] The test is whether the defenses will become the focus of the litigation, overshadowing the primary claims and prejudicing other class members. [FN30] Accordingly, the commonality and typicality requirements " 'tend to merge' because '[b]oth serve as guideposts for determining whether ... the named plaintiff's claim and the class claims are so inter-related that the interests of the class members will be fairly and adequately protected in their absence." ' [FN31]
FN29. See Baffa v. Donaldson, Lufkin & Jenrette Sec. Corp., 222 F.3d 52, 59 (2d Cir.2000).
FN30. See Landry v. Price Waterhouse Chartered Accountants, 123 F.R.D. 474, 476 (S.D.N.Y.1989).
FN31. Caridad, 191 F.3d at 291 (alterations in original) (quoting Falcon, 457 U.S. at 157 n. 13).
d. Adequacy

*3 Plaintiffs must also show that "the representative parties will fairly and adequately protect the interests of the class." [FN32] To do so, plaintiffs must demonstrate that the proposed class representatives have no "interests [that] are antagonistic to the interest of other members of the class." [FN33] Courts have also considered "whether the putative representative is familiar with the action, whether he has abdicated control of the litigation to class counsel, and whether he is of sufficient moral character to represent a class." [FN34]
FN32. Fed.R.Civ.P. 23(a)(4). See also Banyai v. Mazur, 205 F.R.D. 160, 164 (S.D.N.Y.2002).
FN33. Baffa, 222 F.3d at 60. An antagonistic interest arises when there is a "fundamental conflict or inconsistency between the claims of the proposed class members" that is "so palpable as to outweigh the substantial interest of every class member in proceeding with the litigation." In re NASDAQ MarketMakers Antitrust Litig., 169 F.R.D. 493, 514-15 (S.D.N.Y.1996). See also Robinson, 267 F.3d at 170 (holding that Rule 23(a)(4) requires "absence of conflict" between named representatives and class, as well as "vigorous prosecution").
FN34. Noble v. 93 University Place Corp., No. 02 Civ. 1803, 2004 WL 944543, at *4 (S.D.N.Y. May 3, 2004) (citations omitted).
Class representatives cannot satisfy Rule 23(a)(4)'s adequacy requirement if they "have so little knowledge of and involvement in the class action that they would be unable or unwilling to protect the interests of the class against the possibly competing interest of the attorneys." [FN35] However, it is well established that "in complex litigations such as securities actions, a plaintiff need not have expert knowledge of all aspects of the case to qualify as a class representative, and a great deal of reliance upon the expertise of counsel is to be expected." [FN36]
FN35. Baffa, 222 F.3d at 61 (quotations and citation omitted).
FN36. In re AM Int'l, Inc. Sec. Litig. 108 F.R.D. 190, 196-97 (S . D.N.Y.1985).
e. Ascertainability
Although " 'Rule 23(a) does not expressly require that a class be definite in order to be certified[,] a

requirement that there be an identifiable class has been implied by the courts." ' [FN37] "This implied requirement is often referred to as 'ascertainability." ' [FN38]
FN37. In re Methyl Tertiary Butyl Ether Prod. Liab. Litig., 209 F.R.D. 323, 336 (S.D.N.Y.2002) (quoting Zapka v. CocaCola Co., No. 99 Civ. 8238, 2000 WL 1644539, at *2 (N.D.Ill. Oct. 27, 2000)).
FN38. Id. (citing Van West v. Midland Nat'l Life Ins. Co., 199 F.R.D. 448, 451 (D.R.I.2001); In re Copper Antitrust Litig., 196 F.R.D. 348, 358 (D.Wis.2000)).
"An identifiable class exists if its members can be ascertained by reference to objective criteria." [FN39] "Class members need not be ascertained prior to certification, but 'the exact membership of the class must be ascertainable at some point in the case." ' [FN40] It must thus be "administratively feasible for a court to determine whether a particular individual is a member" of the class. [FN41] "The Court must be able to make this determination without having to answer numerous [individualized] fact-intensive questions." [FN42]
FN39. Id. at 337 (quoting Zapka, 2000 WL 1644539, at *2). See also Clay v. American Tobacco Co., 188 F.R.D. 483, 490 (S.D.Ill.1999); Gomez v. Illinois State Bd. of Educ., 117 F.R.D. 394, 397 (N.D.Ill.1987).
FN40. Id. (quoting Rios v. Marshall, 100 F.R.D. 395, 403 (S.D.N.Y.1983)).
FN41. Rios, 100 F.R.D. at 403 (citing 7 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Fed. Prac. & Proc. § 1760 at 581 (1972)).
FN42. Daniels v. City of New York, 198 F.R.D. 409, 414 (S.D.N.Y.2001) (quotation omitted). A plaintiff's failure to plead a class that can be ascertained without subjective individual inquiries may cause individual issues (i.e., whether each individual class member belongs in the class) to predominate. Consequently, the question of ascertainability takes on great importance in 23(b)(3) class actions, which may only be certified if common questions--not individual inquiries--predominate. See infra Part IV.B.
2. Rule 23(b)

If plaintiffs can demonstrate that the proposed class satisfies the elements of Rule 23(a), they must then establish that the action is "maintainable" as defined by Rule 23(b). Rule 23(b) provides that "an action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and in addition" one of three alternative definitions of maintainability is met. Plaintiffs argue that these putative class actions are maintainable under subsection (b)(3), which requires "that questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy." [FN43] Rule 23(b)(3) thus has two elements: "predominance" and "superiority."
FN43. Fed.R.Civ.P. 23(b)(3).
a. Predominance
"In order to meet the predominance requirement of Rule 23(b)(3), a plaintiff must establish that the issues in the class action that are subject to generalized proof, and thus applicable to the class as a whole ... predominate over those issues that are subject only to individualized proof." [FN44] "The 23(b)(3) predominance requirement is 'more stringent' and 'far more demanding than' the commonality requirement of Rule 23(a)." [FN45] Courts frequently have found that the requirement was not met where, notwithstanding the presence of common legal and factual issues that satisfy the commonality requirement, individualized inquiries predominate. [FN46] Nonetheless, the Supreme Court has noted that "[p]redominance is a test readily met in certain cases alleging consumer or securities fraud...." [FN47]
FN44. In re VISA Check/MasterMoney Antitrust Litig., 280 F.3d 124, 136 (2d Cir.2001) (quotation marks and citation omitted).
FN45. Maneely v. City of Newburgh, 208 F.R.D. 69, 76 (S.D.N.Y.2002) (quoting Amchem Prods., 521 U.S. at 623-24).
FN46. See, e.g., In re MTBE, 209 F.R.D. at 350 (finding individual issues predominate although defendants conceded commonality); Augustin v. Jablonsky, No. 99-CV-3126, 2001 WL 770839, at *13 (E.D.N.Y. Mar. 8, 2001) (finding individualized issues of proximate causation predominate despite

plaintiffs' showing of commonality under Rule 23(a)(2)); Martin v. Shell Oil Co., 198 F.R.D. 580, 592-93 (D.Conn.2000) (finding individualized proof of breach, causation, and trespass predominates where commonality was not contested).
FN47. Amchem Prods., 521 U.S. at 625.
b. Superiority
*4 The superiority prong of Rule 23(b)(3) requires a court to consider whether a class action is superior to other methods of adjudication. [FN48] The court should consider, inter alia, "the interest of the members of the class in individually controlling the prosecution or defense of separate actions" and "the difficulties likely to be encountered in the management of a class action." [FN49]
FN48. See Fed.R.Civ.P. 23(b)(3); see also Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 164 (1974).
FN49. Fed.R.Civ.P. 23(b)(3).
3. Rule 23(g)
Rule 23(g) requires a court to assess the adequacy of proposed class counsel. To that end, the court must consider the following: (1) the work counsel has done in identifying or investigating potential claims in the action, (2) counsel's experience in handling class actions, other complex litigation, and claims of the type asserted in the action, (3) counsel's knowledge of the applicable law, and (4) the resources counsel will commit to representing the class. [FN50] "The court may also consider any other matter pertinent to counsel's ability to fairly and adequately represent the interests of the class." [FN51]
FN50. See In re IPO, 227 F.R.D. at 89 (quotation marks and citation omitted). See also In re Drexel Burnham Lambert Group, Inc., 960 F.2d 285, 291 (2d Cir.1992) ("[C]lass counsel must be qualified, experienced and generally able to conduct the litigation.") (quotation marks and citation omitted).
FN51. Rule 23(g)(1)(C)(ii) (emphasis added).
IV. DISCUSSION
A. Rule 23(a) and Rule 23(g)

Defendants do not argue that the purported class fails to comply with the requirements of Rule 23(a). [FN52] I find that plaintiffs have met their burden to make "some showing" that the proposed class satisfies Rule 23(a).
FN52. See Defendants' Memorandum of Law in Opposition to Plaintiffs' Motion for Class Certification ("Def.Opp.") at 1 (noting that defendants address "two fundamental reasons" why plaintiffs' class might not be certified--transaction causation and loss causation--both of which address the Rule 23(b)(3) predominance requirement).
With respect to numerosity, plaintiffs assert "that there are many hundreds, if not thousands, of geographically dispersed members of the proposed class." [FN53] Indeed, because plaintiffs allege fraud in connection with publicly traded securities, common sense dictates that the purported plaintiff class is likely quite numerous . [FN54] Accordingly, plaintiffs have satisfied the Rule 23(a)(1) numerosity requirement. Similarly, because the proposed class includes all purchasers of RSL securities during a given time period, it presents no unusual difficulties in ascertaining class membership. [FN55]
FN53. Pl. Mem. at 7.
FN54. See In re Blech Sec. Litig., 187 F.R.D. 97, 103 (S.D.N.Y.1999).
FN55. Cf. In re IPO, 227 F.R.D. at 100-01 (addressing ascertainability difficulties where some purchasers of the subject securities were active participants in the alleged scheme; certifying class definition that screened out likely participants).
With respect to the Rule 23(a)(2) commonality requirement, plaintiffs note that the following questions are common to all class members: whether defendants' analyst reports contained misrepresentations or omissions; whether those misstatements were material; whether those misstatements were issued as part of improper quid pro quo arrangements; whether those misstatements artificially inflated securities prices; and whether class members sustained damages when artificial inflation dissipated. [FN56] Although defendants contend that individual questions predominate over these common questions, plaintiffs have satisfied Rule 23(a)(2)'s requirement that "there are questions of law or fact common to the class."

FN56. See Pl. Mem. at 8-9.
The proposed class representatives--Lawrence Fogarazzo, Carolyn Fogarazzo, Stephen L. Hopkins and Don Engel--satisfy the remaining Rule 23(a) requirements of typicality and adequacy. The representatives' claims are based on the same allegations of misconduct as those of all other class members, and no class representative appears to have any conflicts of interest with other members of the class. [FN57] Moreover, defendants have not asserted any unique defenses with respect to any of the class representatives, and the representatives have fulfilled their duties throughout the course of this litigation.
FN57. See id. at 9-12.
*5 Similarly, the representatives' choice of counsel, the Law Offices of Curtis V. Trinko, LLP ("Trinko"), is adequate to represent the interests of the class. Class counsel has more than 23 years of experience prosecuting securities fraud class actions. [FN58] Furthermore, class counsel has actively represented the purported class throughout this litigation. Accordingly, the class representatives' selection of Trinko as lead counsel satisfies Rule 23(g).
FN58. See Firm Resume, Ex. E to Declaration of Curtis V. Trinko, counsel for plaintiffs, in Support of Motion for Class Certification ("Trinko Decl.").
B. Predominance
Defendants oppose plaintiffs' motion for class certification on two grounds: first, that "common issues do not predominate because plaintiffs cannot establish transaction causation on a class-wide basis;" and second, that "common issues do not predominate because plaintiffs cannot establish loss causation by class-wide proof." [FN59] Both arguments rest on the predominance requirement of Rule 23(b)(3).
FN59. Def. Opp. at 7, 15.
1. Transaction Causation
In the securities fraud context, plaintiffs may prove transaction causation either on an individual basis or by showing that they are entitled to an established presumption of reliance. The distinction is crucial at the class certification stage. If transaction causation turns on whether the class as a whole is entitled to a presumption of reliance, then transaction causation is a common issue. If, on the other hand, each class member must individually prove reliance, then the

individualized transaction causation inquiry threatens to overwhelm any common issues that may be adjudicated, and class certification will likely be denied. [FN60]
FN60. See In re PolyMedica Corp. Sec. Litig., 224 F.R.D. 27, 38- 39 (D.Mass.2004) (noting that individual showings of reliance would "overwhelm the common questions of fact and law," but that resort to a presumption obviates the need to prove reliance individually).
Plaintiffs assert that they are entitled to prove reliance through resort to two judicially established presumptions: (1) the fraud on the market presumption; and (2) the Affiliated Ute presumption. [FN61] Defendants contest the applicability of both presumptions.
FN61. See Affiliated Ute Citizens v. United States, 406 U.S. 128, 151 (1972). Accord Castellano v. Young & Rubicam, Inc., 257 F.3d 171, 186 (2d Cir.2001); Press v. Chemical Inv. Servs. Corp., 166 F.3d 529, 539 (2d Cir.1999)).
a. The Fraud on the Market Presumption
In Basic, Inc. v. Levinson, [FN62] the Supreme Court established the validity of the fraud on the market presumption:
FN62. 485 U.S. 224 (1988).
The fraud on the market theory is based on the hypothesis that, in an open and developed securities market, the price of a company's stock is determined by the available material information regarding the company and its business.... Misleading statements will therefore defraud purchasers of stock even if the purchasers do not directly rely on the misstatements.... The causal connection between the defendants' fraud and the plaintiffs' purchase of stock in such a case is no less significant than in a case of direct reliance on misrepresentations. [FN63]
FN63. Id. at 241 -42 (quotation marks and citation omitted).
Defendants "submit that the Basic presumption does not apply to analyst reports." [FN64] Defendants acknowledge that no binding precedent compels such a conclusion, but point to the Second Circuit's Rule 23(f) grant of interlocutory review in Hevesi v.

Citigroup Inc. [FN65] as evidence that "[t]he Second Circuit has recognized that substantial issues exist as to the applicability of the Basic presumption to analyst reports." [FN66] Defendants also rely on DeMarco v. Lehman Bros., Inc., [FN67] in which Judge Jed Rakoff stated that "there is a qualitative difference between a statement of fact emanating from an issuer and a statement of opinion emanating from a research analyst." [FN68]
FN64. Def. Opp. at 17.
FN65. 366 F.3d 70, 77 (2d Cir.2004).
FN66. Def. Opp. at 16. The Second Circuit never decided the issues, though, because the parties in Hevesi settled before a decision was filed. See DeMarco v. Robertson Stephens Inc., No. 03 Civ. 590, 2005 WL 120233, at *6 (S.D.N.Y. Jan 20, 2005). The Second Circuit has again granted review to determine "[w]hether the presumption of reliance established in Basic ... was properly extended to plaintiffs' claims against [ ] nonissuer defendants...." Order granting interlocutory appeal in Miles v. Merrill Lynch & Co., No. 04-8026 (2d Cir. June 30, 2005). See also Pamela A. MacLean, Investor Suits May Face New Challenge, Nat'l L.J., July 18, 2005 (discussing the Miles order and collecting cases).
FN67. 222 F.R.D. 243 (S.D.N.Y.2004).
FN68. Id. at 246; but see DeMarco v. Robertson Stephens, 2005 WL 120233, at *7 (holding that the fraud on the market theory is applicable to material misstatements made by analysts).
*6 However, although the court found that the presumption did not apply in that case, it nonetheless "conclude[d] that the fraud-on-the-market doctrine may in certain conditions apply to analyst reports...." [FN69] Indeed, there is nothing in the language of Basic that suggests that the presumption should be limited to statements made by issuers themselves. [FN70] Rather, the fraud on the market presumption holds that "[b]ecause most publicly available information is reflected in market price, an investor's reliance on any public material misrepresentations, therefore, may be presumed for purposes of a Rule 10b-5 action." [FN71] Thus, the fraud on the market inquiry is dependent not on who made a misstatement, but whether the statement was material. [FN72] A blanket prohibition on applying the fraud on the

market presumption to analyst reports is thus inconsistent with the requirements of Basic.
FN69. DeMarco v. Lehman Bros., 222 F.R.D. at 245.
FN70. See DeMarco v. Robertson Stephens, 2005 WL 120233, at *7 (noting that "[n]othing in the language of Basic limits its holding to issuer statements alone"); but see Hevesi, 366 F.3d at 77 ("Although the fraudon-the-market doctrine clearly applies to statements made by issuers, as in Basic, we have never addressed whether it also applies to reports by analysts." ) (emphasis in original).
FN71. Basic, 485 U.S. at 247 (emphasis added).
FN72. See, e.g., DeMarco v. Robertson Stephens, 2005 WL 120233, at *8 (holding that "the fraud-on-the-market theory must apply to any material false information" and that, "[w]hile not every opinion by every self-proclaimed analyst will be material, the significant role of respected analysts as intermediaries in investors' assessments of value, and the lengths to which some analysts have allegedly gone to disguise their true opinions of stocks they wish to promote, make clear that such opinions will sometimes be material") (emphasis in original).
Defendants argue, in the alternative, that "[e]ven if Basic were held to apply to analyst reports, Plaintiffs would not be entitled to the presumption because they have not demonstrated that the price of RSL was actually distorted by Defendants' analyst reports." [FN73] However, there is no requirement at the class certification stage that plaintiffs prove that they are entitled to damages; rather, plaintiffs must make "some showing" that the class comports with Rule 23. Nonetheless, defendants argue that plaintiffs must first prove that a "material misrepresentation actually distort[ed] the market price," and only then are they entitled to use the fraud on the market presumption to establish that they relied on that price. [FN74]
FN73. Def. Opp. at 18.
FN74. Id. See also id. ("This theory is available only if the plaintiff actually relied on a market price that was actually distorted by the defendant.") (emphasis in original).

I disagree. The question at the class certification stage is not whether plaintiffs will ultimately be able to prove that the price of securities was manipulated, but whether questions of transaction causation may be resolved on a common basis. Where a material misrepresentation is alleged to have affected the prices of securities traded on a efficient market, the fraud on the market doctrine is applicable, and plaintiffs' allegations of transaction causation rely on common proof. [FN75]
FN75. Defendants do not dispute that RSL was traded on an efficient market. Moreover, RSL shares "were traded on the NASDAQ National Market ... were traded at high volumes during the class period ... [and were] extensively followed by analysts and received extensive media attention." Pl. Mem. at 19 (citing In re IPO, 227 F.R.D. at 106 (analyzing market efficiency regarding securities with similar characteristics)).
Thus, defendants' argument that plaintiffs are not entitled to the presumption because they "have offered no evidence that Defendants' analyst reports actually distorted the market price of RSL throughout the class period" is unavailing. [FN76] The fraud on the market presumption is simply a "useful device[ ] for allocating the burdens of proof between parties;" [FN77] in the class certification context, it allows plaintiffs to prove reliance by proving "that the scheme as a whole artificially inflated prices." [FN78] Whether alleged misrepresentations in fact altered securities prices is a question of fact, not a Rule 23 inquiry. If, at a later stage of litigation, plaintiffs are unable to prove that the alleged misrepresentations were material, and hence that they did not affect securities prices, then the common question of transaction causation will be answered in the negative. If, on the other hand, plaintiffs successfully prove that the alleged fraud inflated securities prices, that common question will be answered in the affirmative. Accordingly, I find that plaintiffs may employ the fraud on the market presumption to prove transaction causation on a common basis.
FN76. Def. Opp. at 18. Indeed, plaintiffs have submitted some evidence that the alleged scheme affected stock prices. See Report of Paul J. Irvine ("Irvine Report"), Ex. D to Trinko Decl., at 47 (applying cumulative abnormal return methodology, see infra Part IV.B., to determine that several positive and negative announcements by defendants were associated with abnormal

movements in RSL share prices). Defendants challenge Dr. Irvine's findings, but class certification proceedings are not the proper time to argue the weight of the evidence.
FN77. Basic, 485 U.S. at 245.
FN78. In re IPO, 227 F.R.D at 106 n. 319.
b. The Affiliated Ute Presumption
*7 Under the Affiliated Ute presumption, "[i]n securities fraud claims, reliance is presumed when the claim rests on the omission of a material fact." [FN79] This presumption of reliance is not conclusive. [FN80] Rather, "once the plaintiff establishes the materiality of the omission ... the burden shifts to the defendant to establish ... that the plaintiff did not rely on the omission in making the investment decision." [FN81] To satisfy this burden, a defendant must prove "that 'even if the material facts had been disclosed, plaintiff's decision as to the transaction would not have been different from what it was." ' [FN82]
FN79. In re Worldcom, Inc. Sec. Litig., 219 F.R.D. 267, 291 (S.D . N.Y.2003) (citing Affiliated Ute, 406 U.S. at 153-54). Accord Castellano, 257 F.3d at 186.
FN80. See DuPont v. Brady, 828 F.2d 75, 78 (2d Cir.1987).
FN81. Id. at 76.
FN82. Id. at 78 (quoting Rochez Bros. v. Rhoades, 491 F.2d 402, 410 (3d Cir.1974)).
Defendants assert that "the Affiliated Ute presumption of reliance applies only in cases that are premised entirely or primarily on omissions." [FN83] Defendants cite decisions of the Fifth, Ninth and Tenth Circuits for this proposition. [FN84] However, where plaintiffs' claims are based on a combination of omissions and misstatements, courts in this Circuit have acknowledged the applicability of the Affiliated Ute presumption. [FN85] Indeed, the theory behind the Affiliated Ute presumption--that, when material information is concealed, plaintiffs should only have to prove that "a reasonable investor might have considered the omitted facts important in the making of [her] investment decision" [FN86]--is not undermined simply because a defendant makes misstatements at the same time it omits material information. In this case, plaintiffs allege that defendants omitted their own quid pro quo

arrangements in addition to deliberately misrepresenting their opinions. If plaintiffs prove that a reasonable investor might have considered the omitted facts material in making an investment decision, then plaintiffs may employ the Affiliated Ute presumption to establish reliance on a common basis with respect to the alleged omissions. [FN87]
FN83. Def. Opp. at 19.
FN84. See id. at 20 (citing Joseph v. Wiles, 223 F.3d 1155, 1162 (10th Cir.2000) (holding that a court must "analyze the complaint to determine whether the offenses it alleges can be characterized primarily as omissions or misrepresentations in order to determine whether the Affiliated Ute presumption should apply"); Binder v. Gillespie, 184 F.3d 1059, 1064 (9th Cir.1999) ("We agree with these circuits that the Affiliated Ute presumption should not be applied to cases that allege both misstatements and omissions unless the case can be characterized as one that primarily alleges omissions."); Finkel v. Docutel/Olivetti Corp., 817 F.2d 356, 359 (5th Cir.1987) (asserting, before Basic was decided, that "[a] court must, therefore, analytically characterize a 10b-5 action as either primarily a nondisclosure case (which would make the [Affiliated Ute ] presumption applicable), or a positive misrepresentation case")). Defendants also cite the Second Circuit's 1981 opinion in Wilson v. Comtech Telecomms. Corp., 648 F.2d 88, 93 (2d Cir.1981), which opined that "[w]hat is important is to understand the rationale for a presumption of causation in fact in cases like Affiliated Ute, in which no positive statements exist: reliance as a practical matter is impossible to prove." Wilson, which preceded Basic, did not purport to limit Affiliated Ute to cases in which "no positive statements exist;" rather, it compared the factual situation of Affiliated Ute to the facts of Wilson, an appeal of judgment after trial in which the factual record showed that the plaintiff had not proved reliance on any alleged misstatements. Indeed, Wilson notes that "[t]o characterize this, for purposes of establishing reliance [under Affiliated Ute ], as either an omission or a misrepresentation case is to beg the question." Id. at 93. Rather, in Wilson, plaintiff's theory of liability was based on defendant's alleged "duty to correct

[earnings] projections once new information made them inaccurate." Id.
FN85. See, e.g., In re IPO, 227 F.R.D. at 105; In re WorldCom, 219 F.R.D. at 291. The Second Circuit has repeatedly noted that Basic and Affiliated Ute are available when there are "unusual 'problems of proof," ' such as where "the integrity of the market is alleged to have been compromised" and "where total non-disclosure of material information was alleged." Harsco Corp. v. Sequi, 91 F.3d 337 (2d Cir.1996) (quoting Feinman v. Dean Witter Reynolds, 84 F.3d 539, 541-42 (2d Cir.1996)). The Second Circuit has never adopted an either/or requirement for applicability of the fraud on the market or Affiliated Ute presumptions.
FN86. Affiliated Ute, 406 U.S. at 153-54.
FN87. In any event, the fraud on the market and Affiliated Ute presumptions will likely be coextensive in this case. Both presumptions depend on whether the omitted information or the misstated information is material. If plaintiffs cannot establish that the misrepresentations were material, then neither presumption will save plaintiffs' claims; if, on the other hand, plaintiffs can prove that some, but not all, of the alleged omissions and misstatements were material, then the availability of both presumptions allows plaintiffs to be fairly compensated for each material misstatement and omission.
It can be argued that the Affiliated Ute presumption is simply the fraud on the market presumption applied to material omissions. Both presumptions depend on the materiality of the undisclosed or misstated information. [FN88] If reasonable investors might have considered a fact material in making investment decisions, then it stands to reason that such material facts, if known, would have affected the stock prices. Thus, an investor who buys artificially inflated shares relying on the market price to reflect all material information about a security is harmed whether the shares are inflated by misstatements or by omissions. In any event, plaintiffs may use either presumption to prove transaction causation on a common basis.
FN88. See, e.g., Finkel, 817 F.2d at 360 (noting that the fraud on the market presumption "constructs an environment which is hospitable to the reliance presumption of Affiliated Ute" and that the

two presumptions "interact"); see also Panzirer v. Wolf, 663 F.2d 365, 368 (2d Cir.1981) (noting, before Basic approved the fraud on the market theory, that "[r]elying on Affiliated Ute, this and other circuits do not require direct reliance where the fraud affects the market, on the ground that an investor relies generally on the supposition that the market price is validly set and that no unsuspected fraud has affected the price."), vacated as moot by Price Waterhouse v. Panzirer, 459 U.S. 1027, 1027 (1982).
2. Loss Causation
In a securities fraud case based on misrepresentations or omissions, plaintiffs must prove that defendants' alleged wrongdoing concealed some risk from plaintiffs. [FN89] To prove loss causation, plaintiffs must then show "both that the loss [was] foreseeable and that the loss [was] caused by the materialization of the concealed risk." [FN90]
FN89. See Lentell v. Merrill Lynch & Co., Inc., 396 F.3d 161, 173 (2d Cir.2005) (plaintiffs must allege "that the misstatement or omission concealed something from the market....").
FN90. Id. See also In re IPO ("Liu v. CSFB" ), No. 21 MC 92, 2005 WL 1529659, at *5 (S.D.N.Y. June 28, 2005).
*8 Under Rule 23(b)(3), plaintiffs must make some showing that common questions will predominate over individual questions. Because individual adjudication of loss causation would cause individual issues to predominate, plaintiffs in securities fraud actions "must present a methodology for determining loss causation that may be commonly applied to all members of the class." [FN91] Plaintiffs may submit an expert report suggesting a methodology for determining such a link. [FN92] "A district court must ensure that the basis of [such an] expert opinion is not so flawed that it would be inadmissible as a matter of law." [FN93] At the class certification stage, the question "is whether plaintiffs' expert evidence is sufficient to demonstrate common questions of fact warranting certification of the proposed class, not whether the evidence will ultimately be persuasive;" a district court should therefore refrain from "weigh[ing] conflicting expert evidence or engag[ing] in 'statistical dueling' of experts." [FN94]
FN91. In re IPO, 227 F.R.D. at 111 (citing

VISA Check, 280 F . 3d at 134-35). See also In re Sumitomo Copper Litig., 182 F.R.D. 85, 91 (S.D.N.Y.1998) (granting class certification upon finding that "plaintiffs' econometric methodologies have a reasonable probability of establishing" plaintiffs' claims by common proof). But see Newton v. Merrill, Lynch, Pierce, Fenner & Smith, Inc., 259 F.3d 154, 189 (3d Cir.2001) (where determining the existence of loss would require individual analysis of each investor's trades, "[t]he individual questions ... are overpowering").
FN92. See, e.g., VISA Check, 280 F.3d at 134-35 (examining submission of expert report to show loss causation in the antitrust class action context); In re IPO, 227 F.R.D. at 111 (same, in securities fraud context).
FN93. VISA Check, 280 F.3d at 135.
FN94. Id. (citing Caridad, 191 F.3d at 29293).
Plaintiffs have submitted the declaration of Dr. Paul J. Irvine, "an expert on security analysts and the markets," who has published and peer-reviewed several articles regarding securities analysts, in support of their contention that loss causation is susceptible to class-wide proof. [FN95] Defendants have countered with the report of Dr. John W. Peavy III, a professor of finance, financial consultant and investment advisor, [FN96] addressing the question of "whether Plaintiffs [and Dr. Irvine] have offered a scientific methodology that can be used to establish whether or not the Defendants' reports had at least some sustained impact on RSL's stock price throughout the Proposed Class Period." [FN97] Plaintiffs have also submitted a reply report by Dr. Irvine that responds to methodological criticisms levied by Dr. Peavy and demonstrates how losses could be calculated using the methodologies described in the Irvine Report. [FN98]
FN95. Irvine Report at 4.
FN96. See Expert Report of John W. Peavy III ("Peavy Report"), Ex. A to 3/14/05 Declaration of Stephanie G. Wheeler, counsel for defendants, at 3.
FN97. Peavy Report at 1.
FN98. See 4/27/05 Reply Report of Dr. Paul J. Irvine ("Irvine Reply Report"). The parties

have disagreed regarding whether plaintiffs were permitted to submit the Irvine Report. See 6/10/05 Letter from Defendants to the Court (asserting that the Irvine Reply Report was not permitted under the parties' scheduling agreement and moving to strike, or in the alternative requesting leave to file a sur-reply); 6/15/05 Letter from Plaintiffs to the Court (showing that the Irvine Reply Report, though not explicitly authorized by the parties' agreement, was nonetheless contemplated by the parties and the Court). To the extent the Irvine Reply Report provides examples and demonstrates the robustness of the methodology proposed in the Irvine Report, it is permissible. However, to the extent that the Irvine Reply Report proposes new methodologies or quibbles with defendants' briefs and the methodology of defendants' expert report, see, e.g., Irvine Reply Report at 14-15, 18, the Irvine Reply Report has been disregarded.
In my May 21, 2004 Opinion denying defendants' motions to dismiss, I summarized plaintiffs' loss causation allegations as follows: "the Banks, knowing that RSL was actually in decline, inflated the price of RSL shares and then worked doubly hard to conceal or obfuscate the meaning of every fact that would have revealed that decline to the investing public." [FN99] When facts contradicting defendants' reports became public, under plaintiffs' theory, some of the artificial inflation caused by defendants' reports would have dissipated; by contrast, when defendants issued fraudulent reports, the level of artificial inflation increased. [FN100] Thus, the allegedly concealed risk--i.e., that RSL was failing--materialized as RSL declined, and plaintiffs' losses were caused when news of that decline caused the artificial inflation created by fraudulent analyst reports to dissipate.
FN99. Fogarazzo, 341 F.Supp.2d at 292.
FN100. See Irvine Report at 48.
The Irvine Report proposes two possible methods by which plaintiffs might prove loss causation on a common basis. The Irvine Report first suggests that price dissipation throughout the class period might be proved by providing " 'first, an analysis of the initial inflation caused by alleged [fraudulent reports]; and second, an analysis of the dissipation of that inflation over time." ' [FN101]
FN101. See id. at 46 (quoting In re IPO, 227 F.R.D. at 112).

*9 This methodology, approved in my October 13, 2004 Opinion granting class certification in six focus cases that are part of the In re IPO proceedings, is inapplicable to the present case. The alleged fraud in In re IPO involves a scheme of market manipulation through which customers purchasing securities in IPOs were required to commit to purchasing more shares in the aftermarket, increasing demand for shares and causing artificial inflation. [FN102] In re IPO is thus primarily a case about market manipulation, as opposed to misstatements and omissions. The mechanisms of loss causation differ:
FN102. See In re IPO, 227 F.R.D. at 112 (noting that "[i]n a market manipulation case, plaintiffs can satisfy their burden by presenting a means to determine that the scheme caused an increase in price that dissipated throughout the class period.").
Once a misstatement or omission infects the pool of available information, it continues to affect the stock price until contradictory information becomes available. The inflationary effect of misstatements or omissions, therefore, should be constant. Manipulative conduct is different. A market manipulation is a discrete act that influences stock price. Once the manipulation ceases, however, the information available to the market is the same as before, and the stock price gradually returns to its true value. [FN103]
FN103. In re IPO, 297 F.Supp.2d 668, 674 (S.D.N.Y.2003) (citations omitted).
The instant case, unlike In re IPO, is premised on misrepresentations and omissions. Accordingly, plaintiffs may not avail themselves of the loss causation methodology used in In re IPO; rather, a valid loss causation methodology in this case must be able to analyze the inflationary effects of the alleged misrepresentations or omissions and the alleged corrective events. [FN104]
FN104. See In re IPO ("Liu v. CSFB" ), No. 21 MC 92, 2005 WL 1162445, at *3-4 (S.D.N.Y. May 16, 2005).
The Irvine Report also suggests an analysis that focuses on market price reactions to specific analyst recommendations:
In addition, unlike the IPO Securities Litigation case, a more interesting estimation procedure is available. If the court accepts the Plaintiffs' demonstration that the Defendants' analysts' reports

were successful in 'propping up' the price of the stock, then an estimate of the degree to which the Defendants were successful can be obtained by an analysis of the price reaction when the props were partially removed. [FN105]
FN105. Irvine Report at 48.
The Irvine Report analyzes the price effects of several analyst reports through application of a "cumulative abnormal return" analysis. Essentially, Irvine's analysis takes a three-day snapshot of securities prices, including the day preceding an event, the day of the event itself, and the day after the event. This period of time is known as the "event window." [FN106] The return of the relevant security--i.e., the change in price of that security during the event window--is calculated and compared to a "market benchmark." The market benchmark consists of the combined performances of several securities; in his report, Dr. Irvine compared RSL prices over each event window to three market benchmarks, including the overall performance of the S & P 500 Composite Index. The "cumulative abnormal return" is the amount by which the subject security's return differed from the return of the market benchmark over the event window. [FN107] For example, if, on the day of an event, the stock price of RSL opened at $10 and closed at $20, while the S & P 500 Composite Index opened at $10 and closed at $15, a 100% abnormal return is associated with the event. [FN108]
FN106. Dr. Irvine notes that event windows need not be three days long. Event windows comprising only the day of the event, or the day of the event and the day immediately following the event, may also be used. The three-day event window technique used by Dr. Irvine, which extends the window to the day preceding the event, is able to incorporate returns that may be attributable to an event that is recorded on the event date, but actually occurred the day before the event date. Although Dr. Irvine notes that the three-day window is "very conservative," "reduces the statistical significance of the results" and "will less frequently report statistically significant results than ... event studies using only [the] event day," it is the technique "that is generally followed." Irvine Reply Report at 3.
FN107. See id. at 2-3.
FN108. The return of RSL in this

hypothetical is twice as much, or 100% more, than the return of the market benchmark.
*10 The Irvine Report asserts that "[t]he market responses to analysts' recommendations for RSL indicate an unusually large reliance of the market on the recommendations of Defendants' analysts." [FN109] For example, "[o]n March 28, 2000, Morgan Stanley issued [a] Strong Buy recommendation and the stock responded with a 13.5% 3-day abnormal return." [FN110] By contrast "on October 6, 2000, Morgan downgraded the stock to a Hold recommendation. The market responded negatively to the news[,] falling by 22.3%." [FN111]
FN109. Irvine Report at 47.
FN110. Id. It is somewhat unclear from this statement whether Dr. Irvine meant that RSL did 22.3% worse than the market benchmark, or whether the stock price simply fell 22.3%. However, Dr. Irvine's inclusion of this statement in a section describing "[e]vidence ... from an analysis of the abnormal returns surrounding the release of these reports" implies that 22.3% refers to the abnormal return associated with Morgan's downgrading. Id.
FN111. Id.
The Peavy Report criticizes Dr. Irvine's proposed methodology, asserting that accurate price impact "cannot be scientifically determined in the presence of confounding events." [FN112] The thrust of Dr. Peavy's argument is that "confounding events"--i .e., events separate from defendants' analyst reports that may have affected RSL prices--mask the effects of the alleged misrepresentations. Such confounding events include, inter alia, earnings reports issued by RSL, announcements of new mergers, acquisitions and joint ventures involving RSL, and announcements of new RSL products. [FN113]
FN112. Peavy Report at 7.
FN113. See id. at 10.
However, class certification is not the time to wage a battle of the experts; nor is it a time to engage in the weighing of contradictory facts. [FN114] Defendants will have the opportunity to present their own analyses of the effects of the alleged misrepresentations, which may include alternative theories as to exactly what caused the price effects

cited by Dr. Irvine. Dr. Irvine's analysis of the cumulative abnormal returns associated with events in defendants' analyst coverage of RSL provides a satisfactory methodology for determining loss causation on a common basis. Indeed, defendants' arguments that confounding events are responsible for the price changes in RSL shares, or make it impossible to quantify the precise impact of the alleged fraud, are arguments that address the weight of plaintiffs' common evidence. If plaintiffs cannot ultimately prove that the alleged fraud artificially inflated RSL's stock prices, then they will fail on a common basis. At the class certification stage, plaintiffs need only show that their claims are susceptible to common proof. Plaintiffs have done so with respect to loss causation.
FN114. See In re IPO, 227 F.R.D. at 111.
C. Superiority
Rule 23 suggests a number of nonexclusive factors the trial judge can weigh to determine superiority, including "the interest of members of the class in individually controlling the prosecution." [FN115] Where thousands of potential claimants assert claims based on predominantly common issues, though, "a class member's interest in aggregating the claims substantially outweighs her interest in individual control of the litigation." [FN116] Adjudicating the claims of class members in this case as individual claims would waste substantial judicial resources. In addition, because many of the members of the proposed class may not have invested heavily in RSL securities, litigating an individual case would likely cost far more than the potential recovery. Moreover, because there will likely be no difficulty in ascertaining the membership of the class, and because common questions predominate over individual questions. I find that the class form is superior to any alternative method of adjudication in this case.
FN115. Fed.R.Civ.P. 23(b)(3)(A).
FN116. In re IPO, 227 F.R.D. at 121.
V. CONCLUSION
*11 Plaintiffs' motion is granted. The proposed class, which includes "all persons who purchased or otherwise acquired shares of RSL equities during the period from April 30, 1999 through December 29, 2000, both dates inclusive," is hereby certified. Lawrence Fogarazzo, Carolyn Fogarazzo, Stephen L. Hopkins and Don Engel are appointed class representatives, and the Law Offices of Curtis V.

Trinko, LLP is appointed Class Counsel. A conference is scheduled for 5:00 P.M. on August 4, 2005, in Courtroom 15C.
SO ORDERED: S.D.N.Y.,2005. Fogarazzao v. Lehman Bros., Inc. Slip Copy, 2005 WL 1802851 (S.D.N.Y.)
END OF DOCUMENT

© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.

Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2003 WL 402565 (S.D.N.Y.) (Cite as: 2003 WL 402565 (S.D.N.Y.)) <KeyCite History>
Motions, Pleadings and Filings

impracticable. Fed.Rules Civ.Proc.Rule 23(a)(1), 28 U.S.C.A.

Only the Westlaw citation is currently available.
United States District Court, S.D. New York.
Adam INGLES et al., Plaintiffs, v.
THE CITY OF NEW YORK et al., Defendants. No. 01 Civ. 8279(DC).
Feb. 20, 2003.
Current and former inmates brought action charging city prison officials with engaging in pattern and practice of excessive force. On inmates motion for certification of plaintiff class, the District Court, Chin, J., held that: (1) proposed class was sufficiently definite; (2) lead plaintiffs were adequate class representatives, and (3) prosecution of separate actions risked inconsistent judgments.
Motion granted.
West Headnotes
[1] Federal Civil Procedure k186.10 170Ak186.10 Proposed class consisting of all prisoners who were or would be confined in New York City Department of Correction institutions and commands which were not already subject to court order based on prior use of excessive force litigation was sufficiently definite; although there was dispute as to extent to which prior orders had been implemented, it was clear which facilities were covered. Fed.Rules Civ.Proc.Rule 23(a), 28 U.S.C.A.

[3] Federal Civil Procedure k186.10 170Ak186.10 Lead plaintiffs, in class action suit seeking injunction against use of excessive force in New York City Department of Correction institutions, were adequate class representatives, even though they were also asserting individual claims for damages, one lead plaintiff had psychiatric condition and another was being confined in punitive segregation; all plaintiffs' claims rested on same theory of liability and lead plaintiffs stood to benefit from any injunctive relief obtained. Fed.Rules Civ.Proc.Rule 23(a)(4), 28 U.S.C.A.
[4] Federal Civil Procedure k186.10 170Ak186.10 Certification of plaintiff class, in prisoner suit seeking injunction against use of excessive force in New York City Department of Correction institutions, was warranted; prosecution of separate actions risked inconsistent judgments, and injunctive relief being sought would benefit entire class. Fed.Rules Civ.Proc.Rule 23(b)(1, 2), 28 U.S.C.A. The Legal Aid Society, Prisoners' Rights Project, By: John Boston, Jonathan Chasan, Mary Lynne Werlwas, Madeline DeLone, Brooklyn, NY-- and--Sullivan & Cromwell LLP, By: Penny Shane, Stacy Stoller, J. Andrew Kent, New York, NY--and--Emery Cuti Brinckerhoff & Abady, By: Jonathan Abady, Ilann M. Maazel, New York, NY, for Plaintiffs.
Michael A. Cardozo, Corporation Counsel of the City of New York, By: Stacy Laine Matthews, Susan Scharfstein, John Graziadei, New York, NY, for Defendants.

[2] Federal Civil Procedure k186.10 170Ak186.10 Proposed class consisting of all prisoners who were or would be confined in New York City Department of Correction institutions and commands which were not already subject to court order based on prior use of excessive force litigation satisfied numerosity requirement for class certification; because proposed class would consist of prisoners of some twelve detention facilities throughout city, joinder was

MEMORANDUM DECISION
CHIN, J.
*1 In this prisoners' rights case, plaintiffs allege that defendants, the New York City Department of Correction ("DOC") and certain of its employees, engaged in a pattern and practice of excessive force in violation of the Eighth and Fourteenth Amendments to the United States Constitution and the laws and

Constitution of the State of New York. The named plaintiffs are inmates at several DOC detention facilities. They seek money damages and injunctive and declaratory relief.
In four class actions over the past fifteen years, federal courts have approved remedial orders governing the use of force at certain DOC facilities. [FN1] Plaintiffs in this case move pursuant to Fed.R.Civ.P. 23 for an order certifying a class consisting of present and future DOC inmates to seek redress for similar alleged violations at the remaining DOC locations.
FN1. See Sheppard v. Phoenix, No. 91 Civ. 4148(RPP), 2002 WL 1603138, at *10 (S.D.N.Y. July 18, 2002) (Central Punitive Segregation Unit); Jackson v. Montemagno, No. 85. Civ. 2384(AS) (E.D.N.Y.1991) (Order Approving Stipulation for Entry of Judgment, November 26, 1991) (Brooklyn House of Detention); Reynolds v. Ward, No. 81 Civ. 101(PNL) (S.D.N.Y.1990) (Order and Consent Judgment ¶¶ 42-48, October 1, 1990) (Bellevue Prison Psychiatric Ward); Fisher v. Koehler, 718 F.Supp. 1111 (S.D.N.Y.1989) (Correctional Institute for Men).
For the reasons set forth below, plaintiffs' motion is granted.
STATEMENT OF THE CASE A. Summary of the Facts
DOC operates institutions on Rikers Island and in Manhattan, Queens, and the Bronx that are not currently subject to court order resulting from litigation of excessive force claims against DOC staff. [FN2] (Am.Compl.¶ 2). The individual defendants include the uniformed staff, supervisory staff, and wardens of the several DOC institutions alleged to be engaged in a pattern and practice of excessive force against plaintiffs and other inmates. (Id. ¶¶ 6- 17).
FN2. According to plaintiffs, the facilities and commands that are not subject to ongoing injunctive orders are the Adolescent Reception and Detention Center ("ARDC"), Anna M. Kross Center ("AMKC"), George Motchan Detention Center ("GMDC"), George R. Vierno Center ("GRVC"), Manhattan Detention Complex ("MDC"), North Infirmary Command ("NIC"), Otis Bantum Correctional Center ("OBCC"), Rose M. Singer Center ("RMSC"), West Facility, Bronx House of Detention ("BxHDM"),

Queens House of Detention ("QHDM"), Transportation Division, Emergency Services Unit ("ESU") and Vernon C. Bain Correctional Facility ("VCBC" or "the Barge"). (Am.Compl.¶ 18).
Plaintiffs allege that they have suffered unjustified beatings at the hands of DOC personnel, as punishment for minor misconduct, verbal complaints, protests, or perceived disrespect. (Id. ¶ 19). They allege that DOC personnel routinely falsify documents and fabricate claims of provocation to cover up the assaults. (Id. ¶ 22). Plaintiffs contend that defendants have either ordered, participated in, or acted in complicity with or acquiescence towards this pattern of force, and that DOC training procedures establish a system-wide policy of excessive force.
B. Plaintiffs
Plaintiffs are twenty-two present and former DOC inmates who allege that they have suffered physical injury as a result of defendants' use of excessive force while in DOC custody. Lead plaintiffs Shawn Davis, Ed Sykes, Paul Person, Lamont Bradley, and Al Smith seek to represent the proposed class. [FN3]
FN3. Plaintiffs added Al Smith as a proposed class representative after the motion for class certification was filed. (Supplemental Decl. in Supp. of Motion to Amend Compl., August 9, 2002).
For the purposes of this motion, I accept plaintiffs' allegations as true. See Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 177, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974); Baffa v. Donaldson, Lufkin & Jenrette Secs. Corp., 222 F.3d 52, 58 (2d Cir.2000). The allegations as to the lead plaintiffs are summarized as follows:
1. Shawn Davis
On or about May 28, 2002, Davis returned from a court appearance in the Bronx to pre-trial detention at AMKC. Upon arriving, he asked an officer if he could receive his psychiatric medication for that day. The officer informed Davis that she could not deal with his problem. Davis complained to a captain, but received no response. (Am.Compl.¶¶ 57-58).
*2 Davis became angry and threw a plastic chair. Three correction officers then punched him, handcuffed his arms behind his back, and escorted him outside the area where another officer hit him in the stomach with a baton. Afterwards, Davis was placed alone in a cell,

where four of the officers struck Davis numerous times in the face and body, causing him to fall to the floor. One officer kicked him in the left eye, causing his eyeball to rupture. (Id. ¶¶ 58-60). Davis alleges that he was beaten by eight officers in total.
Davis alleges that as a result of this assault he sustained severe emotional and physical injuries, including impaired vision in his left eye. (Id. ¶ 61).
2. Ed Sykes
On or about March 28, 2002, Sykes was housed in pretrial detention in a punitive segregation area of GRVC, where he remained in his cell for 23 hours a day. The water in his cell had been turned off for two days, preventing him from flushing the toilet or washing himself. When Officer Hershaway served Sykes a meal through the food slot in his cell, Sykes held the slot open and asked for his water to be restored. Hershaway slammed the slot down on Sykes's arm, telling him that Ramos, the area captain, did not want Sykes's water turned on. Sykes then requested to go to the jail clinic. (Id. ¶ 64).
Defendants Hershaway, Ramos, Dice, Lewis and Yates entered the cell and handcuffed Sykes. Ramos asked Sykes if he really wanted to go to the clinic. When Sykes answered affirmatively, Ramos told Dice to "talk to him" and left the cell. Dice told Sykes that he could go to the clinic only if he was injured. Hershaway and Dice then struck Sykes in the face and body in the presence of Lewis and Yates. Dice emptied a bucket of water on Sykes, telling him that he was injured by falling in water in his flooded cell. On the way to the clinic, Dice pushed Sykes's head into a wall and slammed his face into a glass partition, gashing open his nose. Sykes's nose was sutured at the clinic, and X-rays confirmed fractures of his nose and wrist. (Id. ¶¶ 6567).
An injury to inmate report prepared by Ramos, or at his direction, claimed that Sykes's injuries occurred when he slipped and fell upon leaving his cell and when he ran into the clinic door. Sykes alleges that he has sustained emotional and physical injuries, including extensive facial scars, as a result of the assault. (Id. ¶¶ 68-69).
3. Al Smith
Following a hearing on his parole status on or about February 13, 2001, Smith was being kept in a holding pen along with other inmates at the Rikers Island Judicial Center. Some other inmates repeatedly kicked

the door of the pen. Officer Givens entered the doorway and told Smith to come out, but Smith refused because he was fearful that he would be assaulted and falsely accused of kicking the door. Officers Givens, McConnon, and Doe 13 entered the pen and took Smith to a hallway, where they set him on the floor. They were joined in the hallway by Officer McKeller and Captain Cardo. Givens punched him in the eye while the remaining defendants struck him several times in the back, side, and head. (Id. ¶ 80).
*3 Afterwards, Smith was taken to an empty holding pen. He asked an officer to see a doctor, but the officer cursed at him and advised him that he was lucky to be alive. (Id. ¶ 81). Thereafter, Smith was taken to a clinic and treated for a possible fracture to his right orbital rim and contusions, hemorrhaging, and lacerations to his face. (Id. ¶ 82).
Smith alleges that he suffered severe emotional and physical injuries, including back pain, bleeding from his left outer ear and blurred vision, as a result of the assault. (Id.).
4. Paul Person
While in pre-trial detention at GRVC on or about May 2, 2000, Person was confronted in a hallway by Officers Swetokas and Mastroainni. One of them held Person while the other punched him in the nose. Additional officers arrived. While Person was handcuffed, one of the defendants kicked him in the mouth. Daniels, a captain, witnessed the assault but took no steps to protect Person. Person alleges that Swetokas and Mastroainni were angry with him for arguing with them the previous evening, and because he observed them being chastised by a captain. (Id. ¶¶ 140-41, 143).
At the clinic, Person was treated for a nasal fracture, lip lacerations, back strain, and lumbar and wrist contusions. Thereafter, Person was administratively charged, and found guilty of assaulting staff. He also pled guilty to a criminal charge of harassment in the second degree. He asserts that these charges were fabricated. Person alleges that he suffered severe physical and emotional injuries as a result of the assault. (Id. ¶¶ 142-43).
5. Lamont Bradley
On or about December 5, 2001, Bradley was in pretrial detention at GRVC, awaiting an escort officer to accompany him to the visiting room. Bradley asked Officer Chapman to expedite his escort. Half an hour later, Chapman released Bradley from his cell, and

Officer R. Jackson cuffed his hands behind his back. Officer K. Jackson cursed at Bradley and punched him in the mouth, causing him to fall to one knee, and then kicked him in the back and face. While this was happening, Officers Chapman and R. Jackson observed but took no steps to protect Bradley. (Id. ¶¶ 171-72).
At the clinic, Bradley was treated for a large bruise and swelling to the back of his head, a contusion and swelling of the left upper eyelid, tenderness to the cheek, and three discrete lacerations to his lower lip, which were sutured. As a result of the assault, he was unable to enter the visit area. GRVC supervisor Captain Hernandez advised Bradley to tell his family that he had injured his face "playing ball." (Id. ¶ 173).
C. Prior Proceedings
This case was filed on September 5, 2001 by Adam Ingles pro se. Ingles thereafter obtained counsel. On July 19, 2002, he filed a motion to amend the complaint, which defendants did not oppose. On July 31, 2002, plaintiffs filed this motion for class certification. On September 6, 2002, Ingles filed an amended complaint adding twenty-one additional plaintiffs and asserting class allegations.
DISCUSSION A. Class Certification
*4 In moving for class certification, plaintiffs must first demonstrate that all the requirements of Fed.R.Civ.P. 23(a) have been satisfied. See In re VISA Check/Mastermoney Antitrust Litig., 280 F.3d 124, 132-33 (2d Cir.2001); Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 291 (2d Cir.1999). Second, plaintiffs must show that the putative class falls within one of the three categories set forth in Rule 23(b). In re VISA Check/Mastermoney, 280 F.3d at 133. Plaintiffs here seek certification under Rules 23(b)(1)(A), 23(b)(1)(B), and 23(b)(2).
Although a court must conduct a rigorous inquiry to determine whether the requirements of Rule 23 have been satisfied, see Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982), it must accept plaintiffs' allegations as true and refrain from conducting an examination of the merits when determining the propriety of class certification. See Eisen, 417 U.S. at 178; Baffa, 222 F.3d at 58. Furthermore, because courts are given discretion to tailor the scope of the class later in the litigation, the requirements for class certification are liberally construed in the early stages of a case. See Woe ex rel. Woe v.. Cuomo, 729 F.2d 96, 107 (2d Cir.),

cert. denied, 469 U.S. 936, 105 S.Ct. 339, 83 L.Ed.2d 274 (1984); Doe v. Karadzic, 192 F.R.D. 133, 136 (S.D.N.Y.2000) (citing cases); see also Weigmann v. Glorious Food, Inc., 169 F.R.D. 280, 284 (S.D.N.Y.1996).
I first address defendants' contention that plaintiffs' proposed class definition is insufficiently definite. Next I consider whether plaintiffs have satisfied the criteria for certification set forth by Rule 23(a). Finally, I decide whether the putative class falls within any of the categories set forth in Rule 23(b).
B. Class Definition
[1] A class is sufficiently definite if "it is administratively feasible for the court to determine whether an individual is a member." 7A C. Wright et al., Federal Practice & Procedure § 1760 (2d ed.1986). Here, plaintiffs propose a class consisting of all prisoners who are or will be confined in DOC institutions and commands not already subject to court order based on prior use of force litigation.
Defendants contend that plaintiffs' class definition is inadequate because plaintiffs fail to say what remedial measures in the prior cases were not implemented department-wide. The parties dispute whether DOC has refused to implement court-ordered remedies throughout its jail facilities. For the purposes of class certification, however, plaintiffs have clearly identified the DOC facilities covered by consent orders entered in the prior actions, and those facilities which it believes are not covered. Hence, I find the proposed class to be sufficiently definite.
C. Rule 23(a)
Rule 23(a) provides that: One or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. *5 Fed.R.Civ.P. 23(a).
1. Numerosity
[2] Under Rule 23(a)(1), the class must be "so numerous that joinder of all members is impracticable." Fed.R.Civ.P. 23(a)(1); see Amchem Prods., Inc. v.

Windsor, 521 U.S. 591, 607 n. 8, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997); Marisol A. v. Giuliani, 126 F.3d 372, 376 (2d Cir.1997) (per curiam). Defendants concede that the numerosity requirement is met. As the putative class members would consist of prisoners of some twelve detention facilities throughout New York City, joinder is impracticable and I conclude that the numerosity requirement is satisfied.
2. Commonality
Under Rule 23(a)(2), there must be questions of law or fact common to the class. Fed.R.Civ.P. 23(a)(2); see Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 155 (2d Cir.2001) (" 'The commonality requirement is met if plaintiffs' grievances share a common question of law or of fact." ' (quoting Marisol A., 126 F.3d at 376)). Here, defendants do not dispute that the commonality requirement is satisfied, and indeed plaintiffs' allegations present common questions of law and fact.
3. Typicality
Rule 23(a)(3) requires that "the claims or defenses of the representative parties [be] typical of the claims or defenses of the class." Fed.R.Civ.P. 23(a)(3); see Amchem, 521 U.S. at 607 n. 11. Typicality "is satisfied when each class member's claim arises from the same course of events, and each class member makes similar legal arguments to prove the defendant's liability." Robinson, 267 F.3d at 155 (internal quotation omitted). The purpose of Rule 23(a)(3) "is to ensure that 'maintenance of a class action is economical and that the named plaintiff's claims and the class claims are so interrelated [that] the interests of the class members will be fairly and adequately protected in their absence." ' Cromer Finance Ltd. v. Berger, 205 F.R.D. 113, 122 (S.D.N.Y.2001) (quoting Falcon, 457 U.S. at 158 n. 13); see Marisol A. v. Giuliani, 929 F.Supp. 662, 691 (S.D.N.Y.1996) (citing Baby Neal ex rel. Kanter v. Casey, 43 F.3d 48, 57 (3d Cir.1994)), aff'd, 126 F.3d 372 (2d Cir.1997).
There is no requirement that "the factual background of each named plaintiff's claim be identical to that of all class members." Caridad, 191 F.3d at 293; see Cromer, 205 F.R.D. at 122. Rather, typicality "requires that the disputed issue of law or fact occupy essentially the same degree of centrality to the named plaintiff's claim as to that of other members of the proposed class." Caridad, 191 F.3d at 293 (internal quotations omitted). Defendants do not oppose certification on this basis, and plaintiffs present claims grounded in the same legal arguments and arising from sufficiently similar events

to satisfy the requirement.
4. Adequacy of Representation
[3] To determine whether the requirement of adequacy has been satisfied, courts must look to whether "the representative parties will fairly and adequately protect the interests of the class." Fed.R.Civ.P. 23(a)(4). To establish adequacy of representation, plaintiffs must show that (1) plaintiffs' counsel are competent to handle the case and (2) there are no conflicts of interest among class members. Baffa, 222 F.3d at 60; Cromer, 205 F.R.D. at 123.
*6 Evidence that relates to the requirements of typicality and commonality can reflect on the adequacy of representation requirement. Amchem, 521 U.S. at 626 n. 20 (citing Falcon, 457 U.S. at 158 n. 13); Marisol A., 126 F.3d at 378. "[A] class representative must be part of the class and 'possess the same interest and suffer the same injury' as the class members." Amchem, 521 U.S. at 625-26 (quoting East Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977) (citation omitted)).
Defendants do not challenge the competency of counsel; hence I will address only defendants' challenges to the named plaintiffs as adequate representatives. Defendants assert that the proposed class representatives are inadequate because a conflict of interest exists between their individual claims for damages and their class claims for institutional reform. Defendants also assert that plaintiffs Sykes, Davis, and Daniels lack the necessary personal qualities to adequately represent the class. I address each contention in turn.
a. Conflict of Interest
Defendants contend that the proposed class representatives do not fairly and adequately represent the class because they seek individual damages along with class-wide injunctive relief, resulting in a conflict of interest between themselves and the class. Specifically, defendants contend that plaintiffs have an incentive to settle on terms "favor[ing] their damages claims over class-wide institutional claims." (Def. Opp. at 11). This argument is rejected for several reasons. First, regardless of the relief sought, the proposed lead plaintiffs' claims rest on the same theory of liability as do the claims of other class members. Second, lead plaintiffs are incarcerated at facilities operated by the defendants, and thus they will benefit from injunctive relief as well. Third, any settlement must be approved by the Court. Fourth, to the extent any conflicts do

arise, I can adjust the definition of the class at that time.
b. Credibility
Defendants assert that plaintiffs Davis and Sykes lack the credibility, competence, and familiarity with the claims or underlying facts required to competently interact with counsel and direct the litigation on behalf of the class. [FN4] This argument is rejected.
FN4. Defendants also contend that Calvin Daniels lacks credibility, and that this illustrates the need to examine the credibility of the proposed lead plaintiffs. (Def. Mem. at 14). As Daniels is not a proposed lead plaintiff, the Court does not address this argument.
To determine whether plaintiffs are adequate class representatives,
courts have looked to factors such as their honesty, conscientiousness, and other affirmative personal qualities. If the representative displays a lack of credibility regarding the allegations [being] made or a lack of knowledge or understanding concerning what the suit is about, then the court may conclude that Rule 23(a)(4) is not satisfied. Jane B. by Martin v. N.Y.C. Dept. of Social Services, 117 F.R.D. 64, 70- 71 (S.D.N.Y.1987) (quoting 7A C. Wright et al, supra, § 1766 at 308-310). Courts are reluctant, however, to deny class certification based on allegations of immorality or improper conduct not "arising out of or touching upon the very prosecution of the lawsuit." Jane B. at 71. As the court in Jane B. stated, *7 If the courts prevent persons with questionable moral characters from acting as class representatives, prisoners, mental patients, juvenile offenders or others capable of socially deviant behavior could never have an adequate representative and thus could never be certified. Id. I reject defendants' contentions that plaintiffs Davis and Sykes are not adequate representatives. Davis's psychiatric condition does not render him unable to represent the class; nor does Sykes's confinement in punitive segregation disqualify him. See Daniels v. City of New York, 198 F.R.D. 409, 418-19 (S.D.N.Y.2001) (holding that one plaintiff's lack of mental competence and another's outstanding warrant for public consumption of alcohol were "minor infirmities" that did not disqualify them from acting as class representatives).
Hence, I hold that plaintiffs have satisfied the requirements of Rule 23(a).

D. Rule 23(b)
[4] I now consider whether the class falls within one of the categories set forth in Rule 23(b). For the reasons set forth below, I hold that plaintiffs' proposed class qualifies under Rules 23(b)(1)(A), 23(b)(1)(B), and 23(b)(2).
1. Rule 23(b)(1)(A)
Plaintiffs seek class certification under Rule 23(b)(1)(A), which authorizes a class action if "the prosecution of separate actions by ... individual members of the class would create a risk of ... inconsistent or varying adjudications with respect to individual members of the class." Fed.R.Civ.P. 23(b)(1)(A). Defendants contend that because Rule 23(b)(1)(A) was designed to protect their interests, and they are willing to risk incompatible judgments resulting from individual claims, it is not available to plaintiffs.
Although some courts interpret Rule 23(b)(1)(A) as protecting defendants only, clearly all litigants as well as the courts benefit from consistency in the adjudication of claims of individual class members. [FN5] Here, consistency in the adjudication of these claims is important. Hence, defendants' objection on this basis is overruled and I conclude that plaintiffs qualify for class certification under Rule 23(b)(1)(A).
FN5. Compare Pettco Enterprises, Inc. v. White, 162 F.R.D. 151, 155 (M.D.Ala.1995), and Pruitt v. Allied Chemical Corp., 85 F.R.D. 100, 106-07 (E.D.Va.1980) (also noting that plaintiffs were primarily seeking monetary damages), and Alsup v. Montgomery Ward & Co., 57 F.R.D. 89, 92 (N.D.Cal.1972) (also noting that "there is no danger that the defendant will be faced with incompatible standards of conduct and ... such risks are imaginary") with Hernandez v. M/V Skyward, 61 F.R.D. 558 (S.D.Fla.1973) (certifying mass tort class action under Rule 23(b)(1)(A) despite defendants' objection, on grounds that denial would result in separate actions and would create the risk of inconsistent adjudications). Although the Second Circuit has not ruled on whether Rule 23(b)(1)(A) remains available where defendants refuse its protection, Professor Newberg persuasively argues that "the needs of the judicial system to avoid inconsistent adjudications in a single controversy must be respected, despite the willingness of a litigant to assume the risk."

Herbert B. Newberg & Alba Conte, 1 Newberg on Class Actions § 4.07 (3d ed.1992).
2. Rule 23(b)(1)(B)
Plaintiffs also seek certification under Rule 23(b)(1)(B), which applies where "adjudications with respect to individual members of the class ... would as a practical matter be dispositive of the interests of the other members not parties to the adjudications." Fed.R.Civ.P. 23(b)(1)(B). Defendants contend that (1) plaintiffs fail to demonstrate how individual actions by class members would alter the rights of other class members, and (2) plaintiffs cannot avail themselves of this subsection because the claims do not involve a limited fund that may be exhausted by individual claims. For the following reasons, I reject both contentions.
First, plaintiffs' allegations clearly illustrate that an individual adjudication would affect the interests of other putative class members. Should I grant--or deny-injunctive relief against the use of excessive force, the rights of absent class members would be determined. The question whether defendants' use of force is constitutional may be dispositive of the claims of other class members.
*8 Second, defendants' contention that Rule 23(b)(1)(B) applies only in "limited fund" situations where "claims are made by numerous persons against a fund insufficient to satisfy all claims" is incorrect. Karadzic, 192 F.R.D. at 139. Although the limited fund scenario is the "paradigm suit" under Rule 23(b)(1)(B), courts have also granted certification under this subsection to classes of inmates seeking injunctive relief. See, e.g., Caroline C. by and through Carter v. Johnson, 174 F.R.D. 452, 467 (D.Neb.1996); Coleman v. Wilson, 912 F.Supp. 1282, 1293 (E.D.Cal.1995); Gesicki v. Oswald, 336 F.Supp. 371, 374 (S.D.N.Y.1971). Plaintiffs may maintain a class under Rule 23(b)(1)(B).
3. Rule 23(b)(2)
Finally, plaintiffs assert that their class should be certified under Rule 23(b)(2), which provides for certification if:
the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to the class as a whole. Fed.R.Civ.P. 23(b)(2).

Rule 23(b)(2) was intended to assist litigants seeking wide-spread institutional reform through injunctive and/or declaratory relief. See Marisol A., 929 F.Supp. at 692 (citing Baby Neal, 43 F.3d at 58-59). In fact, several courts have found that Rule 23(b)(2) will generally be satisfied in cases where injunctive relief is sought and would benefit the entire class. See e.g., Boucher, 1996 WL 328441, at *3; Brown v. Guiliani, 158 F.R.D. 251, 269 (E.D.N.Y.1994); Non-Traditional Employment for Women v. Tishman Realty and Const. Corp., 1989 WL 101940, at *4 ("Since defendants have allegedly acted 'on grounds generally applicable to the class' and the court finds injunctive relief appropriate should plaintiffs prevail on their claims, plaintiffs have satisfied Rule 23(b)(2)."); Jane B., 117 F.R.D. at 71.
Defendants contend that because the named plaintiffs allege only isolated past instances of excessive force by DOC officers, under Los Angeles v. Lyons, 461 U.S. 95, 103, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983), they lack standing to pursue claims for injunctive relief. The argument is rejected, for Lyons is distinguishable.
In Lyons, the plaintiff had been placed in a chokehold by Los Angeles police officers without justification after being stopped for a minor traffic violation. He sought an injunction prohibiting Los Angeles police officers from using chokeholds, alleging that the City of Los Angeles authorized them to routinely apply chokeholds "in innumerable situations where they are not threatened by the use of any deadly force whatsoever." Lyons, 461 U.S. at 103. The Court held that Lyons lacked standing to seek injunctive relief because his assertion that he would be subject to a chokehold in the future was speculative. Id. at 107-08.
The Court found that Lyons would have to disobey the law to have contact with Los Angeles police officers again. In accordance with the assumption that individuals will conduct their activities within the law, the Court found that the likelihood that Lyons would again suffer an unjustified chokehold at the hands of Los Angeles police was too remote. Id. at 103 (citing O'Shea v. Littleton, 414 U.S. 488, 497, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974)). In other words, Lyons was no more likely than any other citizen of Los Angeles to be subjected to a chokehold in the future. Id. at 108.
*9 For the following reasons, Lyons is different from this case. First, plaintiffs have alleged much more than an isolated instance of abuse by one or two DOC officers. Plaintiffs' amended complaint alleges supervisory complicity or acquiescence in abuse committed by officers and efforts by DOC personnel to cover up unprovoked assaults. Plaintiffs contend that a

policy of excessive force existed at DOC facilities, and that inmates will suffer irreparable harm as so long as the policy exists. See Nat'l Cong. for Puerto Rican Rights v. City of New York, 75 F.Supp.2d 154, 162 (S.D.N.Y.1999) (distinguishing Lyons where several plaintiffs presented colorable allegations of numerous constitutional violations demonstrating the allegedly unconstitutional practices of police officers). At this stage in the litigation, that is enough to confer standing.
Second, where Lyons was a member of the public, the instant plaintiffs are prisoners subject to the continual control of DOC staff. See Williams v. Wilkinson, 132 F.Supp.2d 601, 606 (S.D.Ohio 2001) (holding Lyons inapplicable to prison discipline case because the prisoner "is in continual contact with corrections officers whose job it is to scrutinize closely his behavior for possible rule infractions"). Courts have held that plaintiffs who are members of "an identified class of targeted individuals" have standing. Roe v. City of New York, 151 F.Supp.2d 495, 503-04 (S.D.N.Y.2001) (citing Thomas v. County of Los Angeles, 978 F.2d 504, 508 (9th Cir.1992) (holding that Black and Latino residents within a specified area had standing to enjoin conduct aimed at them)); Nat'l Cong. for Puerto Rican Rights, 75 F.Supp.2d at 162 (holding that residents of a small six by seven block area had standing to enjoin a racially discriminatory stop and frisk policy). Here, plaintiffs are members of an identified class of "targeted individuals."
Hence, I hold that Lyons is distinguishable and that plaintiffs qualify for class certification under Rule 23(b)(2).
CONCLUSION The courts have concluded that class certification was appropriate in four other cases challenging the use of excessive force at DOC facilities. Here, I likewise hold that plaintiffs satisfy the criteria for class certification under Rule 23 and hence their motion for class certification is granted. Plaintiffs shall submit a proposed order on notice within five business days hereof.
SO ORDERED.
Not Reported in F.Supp.2d, 2003 WL 402565 (S.D.N.Y.)
Motions, Pleadings and Filings (Back to top)
. 2003 WL 23951586 (Trial Pleading) Answer for Defendant Keith Jackson to Plaintiffs' Fourth Amended Complaint (Dec. 24, 2003)

. 2003 WL 23951593 (Trial Pleading) Answer for Defendant Jaime Torres, Joseph Debblay, Benjamin Echiveria, Shamon Clark, and James Turrisi to Plaintiffs' Fourth Amended Complaint (Dec. 24, 2003)
. 1:01cv08279 (Docket) (Sep. 05, 2001)
END OF DOCUMENT

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -------------------------------------------------------------X ROBERT HILTON, on behalf of himself and all others similarly situated,

Plaintiff,

–against–

LESTER N. WRIGHT, M.D., M.P.H., Associate Commissioner/ Chief Medical Officer, for the New York State Department of Correctional Services; and the NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES,

Case No. 9:05cv1038 (LEK) (GJD)

Defendants. -------------------------------------------------------------X

PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF APPLICATION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

KOOB & MAGOOLAGHAN Keith M. Donoghue, Bar Roll No. 513215 Attorneys for Plaintiff 19 Fulton Street, Suite 408 New York, New York 10038 (212) 406-3095

TABLE OF CONTENTS TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
I. A Temporary Restraining Order Is Necessary to Ensure That Mr. Hilton’s Liver Disease Progresses No Further During the Pendency of His Application for a Preliminary Injunction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
II. Preliminary Injunctive Relief is Warranted by Mr. Hilton’s Demonstration of Irreparable Injury and His Potent Probability of Success on the Merits . . . . . . . 10 A. Mr. Hilton’s Progressive Liver Deterioration, Mental Anguish, and Subjection to Cruel and Unusual Punishment Are Each Irreparable Injuries Warranting Injunctive Relief . . . . . . . . . . . . . . . . . . . . . 11 B. Mr. Hilton Is Likely to Succeed on the Merits Under the Doctrine of Collateral Estoppel And Recently Decided Eighth Amendment Precedent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 1. The Defendants’ Prior Litigation of Eighth Amendment Challenges to the ASAT Requirement Entitles Mr. Hilton to Prevail Under the Doctrine of Collateral Estoppel . . . 13 2. The Mandatory Substance Abuse Programming Requirement Violates the Eighth Amendment . . . . . . . . 19
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
i

TABLE OF AUTHORITIES
CASES Anonymous v. Dobbs Ferry Union Free School District, 797 N.Y.S.2d 120 (2d Dept. 2005) . . 16 Belknap v. Leary, 314 F. Supp. 574 (S.D.N.Y. 1970), rev’d and vacated on other ground, 472 F.2d 496 (2d Cir. 1970). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Covino v. Patrissi, 967 F.2d 73 (2d Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 13 Detroit Medical Center v. GEAC Computer Systems, Inc., 103 F. Supp. 2d 1019 (E.D. Mich. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Doe v. Barron, 92 F. Supp. 2d 694, 696 (S.D. Ohio 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8, 9 Domenech v. Goord, 766 N.Y.S.2d 287 (Sup. Ct. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . passim Domenech v. Goord, 797 N.Y.S.2d 313 (2d Dept. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . passim Environmental Defense Fund, Inc. v. EPA, 485 F.2d 780 (D.C. Cir. 1980) . . . . . . . . . . . . . . . . . 9 Erebia v. Chrysler Plastic Products Corp., 891 F.2d 1212 (6th Cir. 1989) . . . . . . . . . . . . . . . . . . 16 Estelle v. Gamble, 429 U.S. 97 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 19 Fair Housing in Huntington Comm. v. Town of Huntington, 316 F.3d 357 (2d Cir. 2004). . . . 13 Galusha v. New York State Dep’t of Env. Conserv., 27 F. Supp. 2d 117 (N.D.N.Y. 1998) . . . . 11 Graham v. Wright, No. 01 Civ. 9613, 2003 WL 22126764 (S.D.N.Y. Sept. 12, 2003) . . . . . . . 18 Grant v. United States, 282 F.2d 165 (2d Cir. 1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Harris v. Blue Cross Blue Shield, 995 F.2d 877 (8th Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . 11 In re Abady, __ N.Y.S.2d ___, 2005 WL 1529725 (1st Dept. 2005) . . . . . . . . . . . . . . . . . . . . . . 16 Johnson v. Wright, 412 F.3d 398 (2d Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim Jolly v. Coughlin, 76 F.3d 468 (2d Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Kamerling v. Massanari, 295 F.3d 206 (2d Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
ii

Kamine/Besicorp Allegany L.P. v. Rochester Gas & Electric Corp., 908 F. Supp. 1180 (W.D.N.Y. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449 (1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Kremer v. Chemical Construction Corp., 456 U.S. 461 (1982) . . . . . . . . . . . . . . . . . . . . . . . 14, 16 Lewis v. Alves, No. 01 Civ. 0640, 2004 WL 941532 (W.D.N.Y. Mar. 22, 2004) . . . . . . . . . . . 18 Lewis v. Casey, 518 U.S. 343 (1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 McFarlane v. Village of Scotia, 86 F. Supp. 2d 60 (N.D.N.Y. 2000) . . . . . . . . . . . . . . . . . . . . . 16 McKenna v. Wright, 386 F.3d 432 (2d Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim McLaughlin v. Williams, 801 F. Supp. 633 (S.D. Fla. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Miller v. Fisher, No. 92-CV-973, 1993 WL 438761 (N.D.N.Y. Oct. 26, 1993) . . . . . . . . . . . 7, 18 Morgan v. Koenigsmann, No. 03 Civ. 3987 (S.D.N.Y. Sept. 30, 2004) . . . . . . . . . . . . . . . passim Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 17 People ex rel. Sandson v. Duncan, 761 N.Y.S.2d 369 (3d Dept. 2003) . . . . . . . . . . . . . . . . . . . 18 Rabin v. Wilson-Coker, No. 03 Civ. 555, 2003 WL 1741883 (D. Conn. 2003) . . . . . . . . . . . . . . 8 Reynolds v. Giuliani, 35 F. Supp. 2d 331 (S.D.N.Y. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Rose v. Alves, No. 01 Civ. 0648, 2004 WL 2026481 (W.D.N.Y. Sept. 9, 2004) . . . . . . . . . . . . 18 Roso-Lino Beverage Distributors v. Coca-Cola Bottling Co., 749 F.2d 124 (2d Cir. 1984) . . . 11 SEC v. Monarch Funding Corp., 192 F.3d 295 (2d Cir. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Synder v. Farnsworth, 896 F. Supp. 96 (N.D.N.Y. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11 Trop v. Dulles, 356 U.S. 86 (1958). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Verley v. Goord, No. 02 Civ.1182, 2004 WL 526740 (S.D.N.Y. Jan. 23, 2004) . . . . . . . . . . . . 18
STATUTES 28 U.S.C. § 1738 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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42 U.S.C. § 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 42 U.S.C. § 274 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 N.Y. Corr. L. § 139 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
REGULATIONS 7 N.Y.C.R.R. 701.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
RULES Fed. R. Civ. P. R. 24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Fed. R. Civ. P. R. 65 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
OTHER AUTHORITIES Centers for Disease Control and Prevention, Recommendations for Prevention and Control of Infections with Hepatitis Viruses in Correctional Settings (2003) (available at http://www.cdc.gov/mmwr/PDF/rr/rr5201.pdf) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Centers for Disease Control and Prevention, “Recommendations for Prevention and Control of Hepatitis C Virus (HCV) Infection and HCV-Related Chronic Disease” (1998) (available at http://www.cdc.gov/mmwr/PDF/RR/RR4719.pdf) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Georg M. Lauer and Bruce D. Walker, Hepatitis C Virus Infection, 345 New Engl. J. Med. 41 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 National Institute of Diabetes and Digestive and Kidney Diseases, Chronic Hepatitis C: Current Disease Management, NIH Pub. No. 03-4230 (May 1999) (available at http://www.medhelp.org/NIHlib/GF-483.html) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 National Institutes of Health, Consensus Development Conference Statement, “Management of Hepatitis C” (2002) (available at http://www.hepprograms.org/drug/hepcconfer.pdf) . . . . 3, 4, 21 National Institutes of Health, Consensus Development Conference Statement, “Management of Hepatitis C” (1997) (available at http://consensus.nih.gov/cons/105/105_intro.htm) . . . . . . . . 21 Organ Procurement and Transplantation Network, Data, available at http://www.optn.org/latestData/advancedData.asp . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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PRELIMINARY STATEMENT Plaintiff Robert Hilton, a prisoner in the custody of the New York State Department of Correctional Services (“DOCS”), seeks a temporary restraining order and preliminary injunction compelling defendants to authorize a standard course of antiviral therapy to stop the progressive liver deterioration he suffers as a result of a chronic Hepatitis C infection. Prison physicians employed by DOCS have uniformly recommended that Mr. Hilton receive such treatment without delay. Nonetheless, defendants have denied the treatment under a policy that categorically requires inmates such as Mr. Hilton to enroll and participate in substance abuse programming before receiving medically indicated antiviral therapy. The policy was recently declared unconstitutional by New York State’s Appellate Division, Second Department. The United States Court of Appeals for the Second Circuit has likewise affirmed in recent months that conditioning Hepatitis C treatment on uniform substance abuse criteria, rather than particularized medical judgment, violates the Eighth Amendment. Because defendants refuse to alter their longstanding policy, resulting in the denial of necessary medical care for a progressive and potentially fatal disease, Mr. Hilton brings this action under, inter alia, 42 U.S.C. § 1983, to challenge the violation of his rights under the Eighth and Fourteenth Amendments to the United States Constitution. Hepatitis C is a blood-borne virus that attacks and, if not treated, commonly destroys the liver. Liver damage progresses through a series of stages beginning with isolated fibrosis, or scarring, and often culminating in cirrhosis, or pervasive scarring and inflammation. If treated soon enough with the course of antiviral therapy prescribed by Mr. Hilton’s doctors, Hepatitis C can be contained before liver function becomes impaired. Yet once a patient crosses an identifiable clinical threshold to exhibit “decompensated” cirrhosis, liver function deteriorates
1

beyond repair, leaving organ replacement as the only treatment capable of restoring a patient to health. The development of cirrhosis is not only life-threatening in and of itself, but also increases the risk that a patient will develop hepatocellular carcinoma, a type of cancer.
Under DOCS policy, any prisoner suspected to have a history of illicit substance use, no matter how ancient the history or limited the use, must at the discretion of defendant Lester Wright, Chief Medical Officer for defendant Department of Correctional Services, enroll and participate in substance abuse programming to qualify for antiviral therapy. As shown in the declaration of Dr. Brian R. Edlin, submitted herewith, this policy is not supported by any medical rationale in the case of prisoners like Mr. Hilton. Rather, the application of established clinical criteria properly led DOCS’ own consulting physician to recommend in April of this year that Mr. Hilton begin antiviral therapy. Notwithstanding the efforts of Mr. Hilton’s primary care providers to carry out the prescribed regimen, treatment has been denied because Mr. Hilton, who last used an illicit drug more than 13 years ago, has been refused enrollment in the requisite substance abuse programming. Absent the provisional remedies of a temporary restraining order (“TRO”) and preliminary injunction, the DOCS policy denying medically indicated antiviral therapy will cause irreparable injury stemming from Mr. Hilton’s progressive liver deterioration and the prospect for it to become incurable.
Mr. Hilton is likely to succeed on the merits of his claims in light of the medical consensus that antiviral therapy is indicated for his condition, as well as a string of recent decisions applying established Eighth Amendment principles to bar defendants from conditioning Hepatitis C treatment on medically inessential substance abuse criteria. See Johnson v. Wright, 412 F.3d 398 (2d Cir. 2005); McKenna v. Wright, 386 F.3d 432 (2d Cir. 2004); Domenech v. Goord, 797 N.Y.S.2d 313, 314 (2d Dept. 2005), affirming 766 N.Y.S.2d
2

287 (Sup. Ct. 2003); Morgan v. Koenigsmann, No. 03 Civ. 3987 (S.D.N.Y. Sept. 30, 2004) (annexed hereto) (appeal pending).
Plaintiff accordingly asks the Court to grant injunctive relief compelling the defendants to authorize the prescribed treatment immediately.
STATEMENT OF FACTS Mr. Hilton suffers from a chronic infection with the Hepatitis C virus, Type 1 genotype. See Affirmation of Alexander A. Reinert, Esq. (“Reinert Aff.”) at Ex. E (Final Report dated Nov 5, 2004). From the time of his commitment to DOCS custody in August 2004,1 standard clinical criteria have indicated treatment with a 48-week course of medication combining two antiviral agents, pegylated interferon and ribavirin. Reinert Aff. ¶¶ 2, 5-11, Ex. A-F; see generally National Institutes of Health, Consensus Development Conference Statement, “Management of Hepatitis C: 2002” [hereinafter NIH Consensus Statement] (available at http://www.hepprograms.org/drug/hepcconfer.pdf). The use of such “combination” interferonribavirin therapy is now generally considered the standard of care for the treatment of Hepatitis C in patients whose liver deterioration has not reached the stage of decompensated cirrhosis. See NIH Consensus Statement at 14. When successful, combination antiviral therapy can effectively cure sufferers of Hepatitis C, rendering the disease no longer a threat to their health. See NIH Consensus Statement at 15-16. Once a patient develops decompensated cirrhosis, however, antiviral therapy becomes ineffective and Hepatitis C incurable by any means short of liver transplant. See NIH Consensus Statement at 7. Moreover, even in patients who have not developed decompensated cirrhosis, combination antiviral therapy becomes less effective as the
1Before DOCS assumed custody, Mr. Hilton had spent three months at Rikers Island in New York City. See Reinert Aff. ¶ 6.
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liver disease progresses. See NIH Consensus Statement at 20-21; DOCS Primary Care Practice Guideline, attached as Ex. I to Reinert Aff., at 5 ¶ 4.
Prior to his commitment to DOCS custody, Mr. Hilton submitted in December 1999 to a liver biopsy to assess the extent of histological deterioration associated with his Hepatitis C infection. Reinert Aff. ¶ 10, Ex. F. At that time, the damage to Mr. Hilton’s liver was diagnosed as Grade 2, Stage 2. Id. That designation reflects the standard classification spectrum developed to grade the progress of liver deterioration, whereby incipient damage rates at Grade 1, Stage 1 and pervasive inflammation and scarring, or cirrhosis, rates at Grade 4, Stage 4. Declaration of Brian R. Edlin, M.D. [hereinafter “Edlin Decl.”], attached as Ex. A to Reinert Aff., at ¶ 13. As of Mr. Hilton’s December 1999 assessment, there remained two clinically recognized thresholds between the fibrosis observed in his liver and the condition of patients in whom liver damage has progressed to the point of requiring a transplant. Id.
As stated in the Declaration of Dr. Brian R. Edlin, there is no reliable means, apart from biopsy, of detecting whether Hepatitis C has progressed in a particular patient from Grade 2, Stage 2 to decompensated cirrhosis. Edlin Decl. ¶ 13. It is clear, however, that Mr. Hilton is among the category of patients at an increased risk for progression to cirrhosis, as indicated by HCV RNA (ribonucleic acid) levels higher than 50 IU/mL, a liver biopsy with portal or bridging fibrosis, and at least moderate inflammation and necrosis. NIH Consensus Statement at 19; Edlin Decl. ¶ 13. A laboratory analysis conducted on blood drawn from Mr. Hilton on March 30, 2005 showed him to have an HCV RNA level of more than 2.54 million IU/mL. Reinert Aff. Ex. E (Final Report dated April 5, 2005). Mr. Hilton’s 1999 biopsy revealed both portal fibrosis and portal inflammation. Reinert Aff. Ex. F. In light of these symptoms, a medical consensus recognizes combination antiviral therapy to be indicated. NIH Consensus Statement at 19.
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On April 22, 2005, pursuant to a referral from Mr. Hilton’s doctor at the Altona Correctional Facility, a DOCS consulting physician examined Mr. Hilton and conducted a review of his medical history, including the 1999 liver biopsy and March 2005 lab results. Reinert Aff. ¶ 10, Ex. F. The physician determined that Mr. Hilton should begin receiving combination therapy with pegylated interferon and ribavirin. Id. Upon receiving the consultant’s recommendation, Mr. Hilton’s health care providers at the Altona facility secured Mr. Hilton’s consent to treatment and sought departmental approval for the recommended antiviral therapy. Reinert Aff. ¶ 11, Ex. D, G-H.
On or about May 2, a provider at Altona completed a “Health Services Hepatitis C Form,” which designated spaces for information relating to various criteria, such as blood-work measures of viral infection and liver function. Reinert Aff. Ex. E (bearing handwritten notation of date). One space on the form, which Mr. Hilton’s providers did not complete, sought confirmation of the inmate’s participation in substance abuse programming, which DOCS refers to as “ASAT” or “RSAT” for, respectively, “Alcohol and Substance Abuse Treatment” and “Residential Substance Abuse Treatment.” At the time of the form’s completion, Mr. Hilton had not used any illicit drug for more than a decade. Affidavit of Robert Hilton [hereinafter “Hilton Affidavit”], attached as Ex. M to Reinert Aff., at ¶¶ 3-6. Some twelve years earlier, however, in 1993, Mr. Hilton had admitted to DOCS personnel that he had, as a teenager, smoked marijuana and sniffed cocaine. Hilton Affidavit ¶ 16. Over the following years of confinement and parole, Mr. Hilton submitted to drug tests that uniformly showed him to be drug free. Id. ¶¶ 3, 5. DOCS own communications with Mr. Hilton make clear that corrections personnel regard his 1993 statement and his assessment at that time via the Michigan Alcohol Screening Test (“MAST”) as the only indication of drug use. Reinert Aff. ¶ 27-28, Ex. Q.
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Notwithstanding Mr. Hilton’s abstinence from drug use for well over a decade, he was required, pursuant to a Hepatitis C Primary Care Practice Guideline adopted by DOCS (“Guideline”), to enroll in Altona’s RSAT program as a condition of receiving antiviral therapy. Reinert Aff. ¶¶ 24, 26, 29 Ex. N, P, S. Mr. Hilton elected to comply with the Guideline in an effort to expedite his treatment, even though substance abuse counseling was wholly extraneous both to the treatment indicated for his Hepatitis C and to his general health. Hilton Affidavit ¶¶ 10-11, 21-22. Although Mr. Hilton promptly had his name placed on Altona’s RSAT waiting list, he was subsequently informed by Thomas Flynn, a supervising nurse, that his antiviral therapy would not commence until enough spaces opened in the program to permit his enrollment. Reinert Aff. Ex. N. In a May 10 memorandum to Mr. Hilton, Nurse Flynn advised as follows:
Dr. Wright will not approve the medication order until you are actively enrolled in RSAT. I thought the waiting list would be good enough. As soon as you start RSAT let me know and I will try again. Id. Nurse Flynn subsequently advised another DOCS health care provider that Mr. Hilton “was not approved by Dr. Wright because he is not enrolled in ASAT,” and that “until he is in ASAT [he] cannot resubmit for approval per Dr. Wright.” Reinert Aff. ¶ 29, Ex. S. On or about May 16, 2005, Mr. Hilton was transferred from Altona to the Washington Correctional Facility. Reinert Aff. ¶ 26. There, he filed a grievance pursuant to N.Y. Corr. L. § 139 demanding immediate antiviral treatment. Id. ¶ 26, Ex. O. The facility’s Inmate Grievance Resolution Committee, which included two members of the prison’s staff, see 7 N.Y.C.R.R. 701.4, found Mr. Hilton’s complaint warranted and recommended that antiviral therapy be commenced. Reinert Aff. ¶ 26, Ex. O. On June 8, the committee’s recommendation was rejected by Superintendent James Plescia, who stated that, pursuant to defendants’ policy, Mr.
6

Hilton could not receive Hepatitis C treatment unless he enrolled in ASAT or RSAT. Id. ¶ 26, Ex. P. Superintendent Plescia’s decision was upheld on July 6 by the DOCS Central Office Review Committee upon Mr. Hilton’s appeal. Id. ¶ 26.
Subsequent to the rejection of Mr. Hilton’s grievance by the Central Office Review Committee, he was for a second time denied enrollment in the substance abuse treatment program imposed as a necessary prerequisite to Hepatitis C treatment. Specifically, on or about July 26, Mr. Hilton was informed that he could not enroll in Washington’s ASAT program because his parole eligibility date of November 2 creates a possibility that he might not be confined throughout the six-month term of participation generally required of enrollees.2 Reinert Aff. ¶ 28, Ex. R; Hilton Affidavit ¶¶ 20-21.
Mr. Hilton therefore continues to be denied combination antiviral therapy prescribed by a consulting physician, and sought by his doctors at Altona and Washington, because DOCS has predicated his eligibility for treatment on enrollment in unrelated, unnecessary, and, in fact, unavailable substance abuse programming. As antiviral treatment eludes Mr. Hilton on the basis of this Catch 22, his liver deterioration continues unimpeded.
ARGUMENT I. A Temporary Restraining Order Is Necessary to Ensure That Mr. Hilton’s Liver
Disease Progresses No Further During the Pendency of His Application for a Preliminary Injunction “[T]he purpose of a temporary restraining order is to preserve the status quo and prevent irreparable harm until the court has an opportunity to pass on the merits of the demand for a preliminary injunction.” Miller v. Fisher, No. 92-CV-973, 1993 WL 438761 at *1 (N.D.N.Y.
2Mr. Hilton will be incarcerated until October 30, 2008, if he is not granted parole. Reinert Aff. ¶ 3.
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Oct. 26, 1993) (Report and Recommendation adopted by order of Mar. 23, 1995) (citation omitted).
In order to preserve the status quo, the Court may in its discretion order DOCS to take the affirmative step of initiating medical treatment. Doe v. Barron, 92 F. Supp. 2d 694, 696 (S.D. Ohio 1999) (confirming TRO compelling prison personnel to transport plaintiff to medical provider for abortion services); McLaughlin v. Williams, 801 F. Supp. 633 (S.D. Fla. 1992) (confirming TRO compelling defendant to facilitate plaintiff’s placement on waiting list for liver transplant); cf. Detroit Medical Center v. GEAC Computer Systems, Inc., 103 F. Supp. 2d 1019 (E.D. Mich. 2000) (enjoining contractor to resume maintenance of computer systems); Reynolds v. Giuliani, 35 F. Supp. 2d 331 (S.D.N.Y. 1999) (confirming TRO compelling defendant to provide emergency food stamps and cash assistance); Belknap v. Leary, 314 F. Supp. 574, 575 (S.D.N.Y.) (enjoining New York City Police Department “to take all reasonable precaution and means” to protect anti-war protesters who had been attacked by private citizens at earlier demonstration), rev’d and vacated on other ground, 472 F.2d 496 (2d Cir. 1970).
In the context of health risks whereby a known harm may come to pass at an unknown time, an application for a temporary restraining order need not establish the exact hour and minute at which health will deteriorate beyond repair. For example, in Rabin v. Wilson-Coker, No. 03 Civ. 555, 2003 WL 1741883 at *1 (D. Conn. 2003), the Court ordered the defendant to maintain plaintiffs’ Medicaid eligibility because termination of benefits created a serious risk that, on losing access to health care, plaintiffs would develop “significant adverse consequences” including seizures, swelling, and pain. Similarly, in Doe v. Barron, 92 F. Supp. 2d 694, 696 (S.D. Ohio 1999), the court compelled a defendant to provide the plaintiff immediate access to an abortion provider because “a delay will unnecessarily increase the health risks imposed on
8

Plaintiff.” The court expressly rejected the defendant’s argument that the several weeks remaining in plaintiff’s first trimester could accommodate a later hearing date. Id.
Due notice of plaintiff’s application for a temporary restraining order (TRO) has been given. See Reinert Aff. ¶ 33; Fed. R. Civ. P. R. 65(b), advisory committee note to 1966 amendment (recognizing proper role of informal notice in TRO proceedings); Environmental Defense Fund, Inc. v. EPA, 485 F.2d 780, 784 n.2 (D.C. Cir. 1980) (actual notice of TRO sufficient to bind non-party).
The temporary retraining order sought by plaintiff should issue because it is necessary to preserve the status quo. In light of the progressive course of Hepatitis C, maintenance of the status quo requires the immediate commencement of antiviral treatment. The longer Mr. Hilton awaits treatment, the less likely that treatment is to be effective once commenced, a danger recognized in DOCS’ own treatment guidelines. See Edlin Decl. ¶ 13; Hepatitis C Primary Care Practice Guideline, attached to Reinert Aff. as Ex. I, at 5 ¶ 4. Furthermore, the danger of decompensated cirrhosis, incurable without liver transplant, threatens to alter the critical feature of plaintiff’s present medical condition, namely, his opportunity to permanently contain his Hepatitis C infection by adhering to a 48-week course of medication. The possibility that a delay in treatment will upend this status quo vests this Court with full discretion to temporarily restrain defendants in the manner requested by plaintiff.
Pursuant to the immediacy of the harm demonstrated by plaintiff and the actual notice afforded to defendant, the determination of plaintiff’s TRO application should be guided by the same substantive standard controlling his application for a preliminary injunction. Grant v. United States, 282 F.2d 165, 167-68 (2d Cir. 1960) (discussing circumstances under which TRO may be functional equivalent of preliminary injunction); Synder v. Farnsworth, 896 F. Supp. 96,
9

98 (N.D.N.Y. 1995) (Cholakis, J.). The distinction is simply that a TRO is needed to protect Mr. Hilton from irreparable injury pending determination of his application for a preliminary injunction, whereas a preliminary injunction is needed to protect him pending final determination of his statutory and constitutional claims.3 Plaintiff will hereinafter discuss the pertinent standard under the rubric of “preliminary injunctive relief,” which phrase plaintiff uses to encompass both the TRO and the preliminary injunction presently sought. II. Preliminary Injunctive Relief is Warranted by Mr. Hilton’s Demonstration of
Irreparable Injury and His Potent Probability of Success on the Merits “The standard for issuing a preliminary injunction is well-settled in this Circuit. The moving party must show (1) irreparable harm and (2) either (a) likelihood of success on the merits or (b) sufficiently serious questions going to the merits and a balance of hardships tipping decidedly toward the party seeking the injunctive relief.” Covino v. Patrissi, 967 F.2d 73, 76-77 (2d Cir. 1992). The irreparable harm Mr. Hilton will suffer absent immediate treatment is sufficient to satisfy the first prong of this standard, while his likelihood of success is assured by the medical consensus that his condition warrants treatment with antiviral therapy and the preclusive and precedential force of federal and state decisions issued over the past ten months. See, e.g., Domenech v. Goord, 797 N.Y.S.2d 313, 314 (2d Dept. 2005), affirming 766 N.Y.S.2d 287 (Sup. Ct. 2003); Morgan v. Koenigsmann, No. 03 Civ. 3987 (S.D.N.Y. Sept. 30, 2004) (annexed hereto).
3Insofar as the Court is ready to decide plaintiff’s motion for a preliminary injunction at the conclusion of argument on an Order to Show Cause, plaintiff’s TRO application will become moot. If, however, the Court requires further opportunity to deliberate, plaintiff asks the Court to enter a temporary restraining order forthwith.
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A. Mr. Hilton’s Progressive Liver Deterioration, Mental Anguish, and Subjection to Cruel and Unusual Punishment Are Each Irreparable Injuries Warranting Injunctive Relief
Defendants’ policy of conditioning antiviral treatment on participation in ASAT programming causes Mr. Hilton irreparable injury stemming from his progressive liver deterioration.
“To establish irreparable harm, a party seeking preliminary injunctive relief must show that there is a continuing harm which cannot be adequately redressed by final relief on the merits and for which money damages cannot provide adequate compensation.” Kamerling v. Massanari, 295 F.3d 206, 214 (2d Cir. 2002) (citations omitted). In other words, the injury must be “present, actual, and not calculable.” Galusha v. New York State Dep’t of Env. Conservation, 27 F. Supp. 2d 117, 122 (N.D.N.Y. 1998) (Kahn, J.). The prosecution of injunctive and damages claims in tandem does not foreclose a showing that the damages sought will not adequately remedy the incalcuable, non-monetary component of the contemplated harm. See, e.g., RosoLino Beverage Distributors v. Coca-Cola Bottling Co., 749 F.2d 124, 125-26 (2d Cir. 1984) (granting preliminary injunction because “loss of. . . an ongoing business representing many years of effort and the livelihood of its husband and wife owners. . . cannot be fully compensated by subsequent monetary damages”). Examples of irreparable harm recognized by this Court include, among others, a student’s suspension from school, Snyder, 896 F. Supp. at 98, and the exclusion of disabled persons from portions of a public park closed to motor vehicle traffic, Galusha, 27 F. Supp. 2d at 122.
Plaintiff has satisfied the first prong of the test for preliminary injunctive relief in at least three ways. First, Mr. Hilton’s ongoing liver deterioration as his Hepatitis C goes untreated is an irreparable injury. See Harris v. Blue Cross Blue Shield, 995 F.2d 877, 879 (8th Cir. 1993)
11

(exhorting that “[w]e entertain no question but that irreparable injury existed” at time plaintiff
challenged denial of treatment for metastatic breast cancer).
Second, the prospects associated with further delay cause Mr. Hilton to suffer the
additional actual harms of acute anxiety, mental anguish, helplessness, and frustration. Delay in
the commencement of antiviral therapy decreases the probability of ever containing Mr. Hilton’s
life-threatening illness. Should liver deterioration continue unimpeded, Mr. Hilton’s survival
may come to depend upon an expensive, intrusive, and uncertain liver transplant, which he is by
no means assured of receiving either in prison or out.4 As a result, Mr. Hilton suffers emotional
and mental hardship which, like the deterioration of his health, is a continuing harm that can be
adequately redressed only by the immediate provision of antiviral therapy, not by any final relief
on the merits in the nature of money damages.5
Third, the denial of a constitutional right is itself irreparable injury. Jolly v. Coughlin, 76
F.3d 468, 482 (2d Cir. 1996). Plaintiff has been denied recommended medical treatment for a
serious medical need, which is a textbook Eighth Amendment violation. See Estelle v. Gamble,
429 U.S. 97, 104 (1976); McKenna v. Wright, 386 F.3d 432, 436-37 (2d Cir. 2004). Indeed, as
4Data published by the Organ Procurement and Transplantation Network, which maintains a national organ transplant waiting list pursuant to statutory authority, see 42 U.S.C. § 274(b)(2), indicates that more than 17,000 persons currently await liver transplants in the United States. See Organ Procurement and Transplantation Network, Data, available at http://www.optn.org/latestData/advancedData.asp (visited Aug. 15, 2005). More than 40 percent of these candidates have been waiting for three or more years. Id.
5The uniquely definitive and fundamental injury caused by failing to halt the course of a progressive, life-threatening disease is so serious that this Court may relax the showing to which Mr. Hilton is held on the likelihood-of-success prong. See Kamine/Besicorp Allegany L.P. v. Rochester Gas & Electric Corp., 908 F. Supp. 1180, 1187 (W.D.N.Y. 1995). For the reasons set forth in the following subpart, however, Plaintiff has in any event demonstrated a sufficient likelihood of success on the merits to obtain injunctive relief no matter how rigorously the second prong is applied.
12

indicated above and discussed more fully in the next sub-part, authoritative precedent published in recent months expressly holds that defendants have violated the Eighth Amendment by conditioning Mr. Hilton’s access to Hepatitis C treatment on ASAT programming. Accordingly, Mr. Hilton has suffered and continues to suffer irreparable injury in his subjection to a condition of confinement that cannot be reconciled with “the evolving standards of decency that mark the progress of a maturing society.” Trop v. Dulles, 356 U.S. 86, 101 (1958).
B. Mr. Hilton Is Likely to Succeed on the Merits Under the Doctrine of Collateral Estoppel And Recently Decided Eighth Amendment Precedent
A likelihood of success entitling Mr. Hilton to preliminary injunctive relief, see Covino, 967 F.2d at 76-77, is assured by four recent decisions and a medical consensus that Mr. Hilton’s condition warrants treatment with antiviral therapy.6
1. The Defendants’ Prior Litigation of Eighth Amendment Challenges to the ASAT Requirement Entitles Mr. Hilton to Prevail Under the Doctrine of Collateral Estoppel
Defendants have in recent months defended a string of federal and state actions addressing the constitutionality, under the Eighth Amendment, of conditioning Hepatitis C treatment on criteria related to substance abuse, including the requirement that candidates for antiviral therapy participate in ASAT programming if they have ever used any illicit drug. Most recently, in Domenech v. Goord, 797 N.Y.S.2d 313, 314 (2d Dept. 2005), the Appellate Division of the New York Supreme Court held that defendants’ policy of conditioning medical treatment on ASAT participation violates the Eighth Amendment bar on cruel and unusual punishments.
6Plaintiff submits that the discussion hereinafter indicates his “substantial” likelihood of success on the merits insofar as this Court deems the relief he seeks to be in the nature of a “mandatory” injunction warranting application of that heightened standard. Compare Fair Housing in Huntington Comm. v. Town of Huntington, 316 F.3d 357, 365 (2d Cir. 2003).
13

Over the preceding nine months, the Second Circuit U.S. Court of Appeals had likewise instructed, in two published decisions, that defendants violate inmates’ constitutional rights insofar as they condition Hepatitis C treatment on substance abuse criteria not essential to the determination of whether antiviral therapy is medically indicated. Johnson v. Wright, 412 F.3d 398 (2d Cir. 2005); McKenna v. Wright, 386 F.3d 432 (2d Cir. 2004). Shortly before the earlier Second Circuit decision, Judge Kimba M. Wood of the Southern District of New York had also recognized an Eighth Amendment violation to inhere in any policy requiring an inmate who had abstained from drug use for 13 years to enroll in ASAT programming before receiving antiviral therapy. Morgan v. Koenigsmann, No. 03 Civ. 3987 (S.D.N.Y. Sept. 30, 2004) (annexed hereto).
While the freestanding authority and rationale of these precedents, as discussed more fully below, demonstrates Mr. Hilton’s substantial likelihood of success, Dr. Wright’s prior litigation of the merits simultaneously triggers application of the doctrine of collateral estoppel, also known as issue preclusion. See Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979). Under this doctrine, Mr. Hilton is assured a substantial likelihood of success because defendants are barred from again revisiting the constitutionality of the ASAT requirement.
A prior decision’s resolution of an issue of law may merit preclusive effect. Kremer v. Chemical Construction Corp., 456 U.S. 461, 466-67 n.6 (1982) (citing cases). For the doctrine of collateral estoppel to apply, “(1) the issues in both proceedings must be identical; (2) the issue in the prior proceeding must have been actually litigated and actually decided; (3) there must have been a full and fair opportunity for litigation in the prior proceeding; and (4) the issue previously litigated must have been necessary to support a valid and final judgment on the merits.” SEC v. Monarch Funding Corp., 192 F.3d 295, 304 (2d Cir. 1999).
Each of the requisite elements obtains here. The recent cases litigated by defendants have 14

addressed the constitutionality of denying Hepatitis C treatment on the basis of substance abuse criteria not essential to the determination of whether antiviral therapy is medically indicated. See Johnson, 412 F.3d at 405-06; McKenna, 386 F.3d at 437; Domenech v. Goord, 766 N.Y.S.2d 287, 293 (Sup. Ct. 2003), aff’d, 797 N.Y.S.2d 313; Morgan, No. 03 Civ. 3987 at 19-22. That issue was actually litigated and decided against defendants in each action, and the range of procedural rights asserted by defendants in the several proceedings amply confirms their full and fair opportunity for litigation. Compare McKenna, 386 F.3d at 433 (appeal from denial of motion under Rule 12(b)(6)) with Johnson, 412 F.3d at 403 (appeal from denial of summary judgment) with Domenech, 797 N.Y.S.2d at 313-14 (appeal from judgment in Article 78 proceeding). The constitutionality of conditioning antiviral therapy on criteria relating to substance abuse was the core substantive issue addressed on each appeal, and as such was plainly necessary to support valid and final judgments on the merits.
At a minimum, the Domenech and Morgan decisions held unconstitutional any reflexive application of the ASAT requirement to prisoners who have not used alcohol or drugs for many years. In Domenech, the court specifically relied on the absence of any evidence that the petitioner inmate was currently abusing drugs or alcohol, 766 N.Y.S.2d at 288, as well as the indication in defendants’ own records that the inmate had not used drugs or alcohol within the preceding two years, id. at 293, to hold that conditioning medically indicated antiviral therapy on ASAT participation “is arbitrary and capricious and results in a deliberate denial of medical attention to [the inmate’s] serious medical condition in violation of the Eighth Amendment.” Id. at 294, aff’d, 797 N.Y.S. 2d 313. The court reasoned that participation in ASAT is “irrelevant” and that defendants “cannot, as a matter of law, provide a medical justification for the continued
15

denial of medical treatment.” Domenech, 766 N.Y.S.2d at 293.7 Similarly, in Morgan, the court
held that reflexive application of the ASAT requirement to an inmate who had been drug-free for
13 years would amount to a “denial of necessary medical care to plaintiff without any medical
justification” and could thus support a jury’s conclusion that defendants acted with deliberate
indifference. Morgan, No. 03 Civ. 3987 at 21-22 & n.23 (annexed hereto) (appeal pending).8
The same facts defining the constitutional issue decided against defendants in Domenech
and Morgan hold here. There is no evidence that Mr. Hilton has used drugs at any time since he
was a teenager, see Hilton Affidavit, attached as Ex. M to Reinert Aff., at ¶¶ 3-6, 16, and DOCS’
own records corroborate his abstinence since entering custody in 1993. See Reinert Aff. Ex. Q
(correction counselor’s memorandum reciting drug use history considered in evaluation of Mr.
Hilton’s application to enroll in ASAT).
7Above and beyond the federal doctrine of collateral estoppel, Article IV of the United States Constitution and 28 U.S.C. § 1738 require that the state court decision in Domenech be given the same preclusive effect in this proceeding as it would have under state law. Kremer, 456 U.S. at 466. Under New York law, the “doctrine of collateral estoppel precludes a party from relitigating an issue which has previously been decided against him in a proceeding in which he had a fair opportunity to fully litigate the point.” Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 455 (1985) (citation omitted). The state doctrine imposes “but two requirements”: the “identical issue necessarily must have been decided in the prior action and be decisive of the present action,” and “the party to be precluded from relitigating the issue must have had a full and fair opportunity to contest the prior determination.” Id.; In re Abady, __ N.Y.S.2d ___, 2005 WL 1529725 at *7 (1st Dept. 2005). New York law also affords full preclusive effect to a judgment notwithstanding the pendency of an appeal therefrom. Anonymous v. Dobbs Ferry Union Free School District, 797 N.Y.S.2d 120, 121 (2d Dept. 2005). Because New York law is for purposes of this case functionally equivalent to the federal doctrine of collateral estoppel, plaintiff rests on the discussion in this memorandum’s text with respect to the Domenech decision.
8For collateral estoppel purposes, “a judgment may be final, despite the fact that an appeal from it has not been decided.” McFarlane v. Village of Scotia, 86 F. Supp. 2d 60, 65 (N.D.N.Y. 2000) (Hurd, J.); see also Erebia v. Chrysler Plastic Products Corp., 891 F.2d 1212, 1215 n.1 (6th Cir. 1989) (“[T]he established rule in the federal courts is that a final judgment retains all of its preclusive effect pending appeal.”).
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That Mr. Hilton was not party to the previous litigation does not deprive him of opportunity to rely on the collateral estoppel bar. Notwithstanding the traditional requirement of “privity,” the Supreme Court has made clear that neither courts nor new plaintiffs should be required to expend resources in the needless litigation of issues previously resolved pursuant to a defendant’s full and fair opportunity to be heard. Parklane Hosiery, 439 U.S. at 326-27, 332-33. Only insofar as special considerations warrant rehearing is a district court deprived of broad discretion to preclude a defendant from the serial re-litigation of the same issue against new plaintiffs. Among these special considerations are the ease with which a plaintiff might have joined the prior action, the existence of multiple judgments resolving the same issue inconsistently, and such circumstances as may have prevented or discouraged a defendant from contesting the prior action with due vigor. Id. at 330-31.
None of these considerations is present here. As a confined prisoner with neither regular counsel nor opportunity to monitor newly filed claims in state and federal courts, Mr. Hilton had no means of learning that other prisoners, confined in other facilities, had challenged denials of treatment under defendants’ ASAT requirement. Even were Mr. Hilton to have learned of such an action, the limitations which the fact of confinement imposes on inmates’ access to courts would have impaired his ability to navigate the procedural requirements governing intervention. See, e.g., Lewis v. Casey, 518 U.S. 343, 362 (1996) (delays in delivery of legal materials not of “constitutional significance” so long as they owe to “prison regulations reasonably related to legitimate penological interests”); Fed. R. Civ. P. R. 24 (conditioning intervention on “timely application”). For both reasons, it cannot be said that he might “easily have joined” in the prior actions. Parklane Hosiery, 439 U.S. at 331.
As already discussed, the decisions hold that defendants violate the Eighth Amendment 17

insofar as they apply the ASAT requirement to withhold medically indicated treatment.9 Thus
application of the doctrine of collateral estoppel will not limit the judicial encounter with any
constitutional question nor work any inequity upon defendants.
Finally, defendants can point to no circumstances that prevented or discouraged them
from vigorously defending the prior actions by which has been established the constitutional
infirmity in their policy. They have been ably represented in each action by counsel from the
Office of the Attorney General, whose special expertise in defending representatives of the
Department of Correctional Services has been noted by this Court. Miller v. Fisher, No. 92 Civ.
973, 1993 WL 438761 at *6 (N.D.N.Y. Oct. 26, 1993) (Hurd, J.) (Report and Recommendation
adopted by order of Mar. 23, 1995). The inmates who prosecuted the prior actions have sought
both damages and injunctive relief. Compare, e.g., Domenech, 766 N.Y.S.2d at 288 with
Morgan, 03 Civ. 3987 at 1. The lengthy periods of time over which defendants allegedly acted
with deliberate indifference to progressive, ongoing liver deterioration provided ample notice of
9Although several pro se challenges to the ASAT requirement have been unsuccessful, none of these cases has examined a denial of medically indicated treatment on the basis of a past drug history. See Rose v. Alves, No. 01 Civ. 0648, 2004 WL 2026481 at *6-7 (W.D.N.Y. Sept. 9, 2004) (plaintiff did not dispute material fact that numerous factors contraindicated Hepatitis C treatment); Lewis v. Alves, No. 01 Civ. 0640, 2004 WL 941532 at *6 (W.D.N.Y. Mar. 22, 2004) (plaintiff had tested positive for drug use while in prison and therefore doctor concluded that treatment was contraindicated); Verley v. Goord, No. 02 Civ.1182, 2004 WL 526740 at *20 (S.D.N.Y. Jan. 23, 2004) (prisoner had completed ASAT program and therefore did not have standing to challenge ASAT requirement); People ex rel. Sandson v. Duncan, 761 N.Y.S.2d 369, 371 (3d Dept. 2003) (inmate’s “medical condition has been continuously assessed and monitored by health care professionals” and inmate “has continued to abuse controlled substances during his incarceration”). One court has remarked in dictum that the ASAT requirement appears “highly rational” insofar as active substance abuse can cause life-threatening consequences, see Graham v. Wright, No. 01 Civ. 9613, 2003 WL 22126764 at *2 n.5 (S.D.N.Y. Sept. 12, 2003), but the reasoning of that court’s confessed “aside” has now been rejected by the Second Circuit. See Johnson, 412 F.3d at 405-06; McKenna, 386 F.3d at 437. It is plain from the unpublished decisions in the pro se cases that the inmates failed to raise and brief the Eighth Amendment issue that has been decided against defendants by every court to have considered it.
18

the substantial damages that might be claimed. See Johnson, 412 F.3d at 402 (indicating delay of 18 months following consulting physician’s initial recommendation, such that prescribed therapy did not commence until 39 months after liver biopsy showed fibrosis); Domenech, 766 N.Y.S.2d at 288 (indicating delay of 15 months after biopsy showing fibrosis); Morgan, No. 03 Civ. 3987 at 4, 7 (indicating ongoing delay of nearly five years after biopsy showing fibrosis). Indeed, in McKenna, the court read the inmate’s complaint to allege that delay had rendered antiviral therapy entirely unavailable. McKenna, 386 F.3d at 434-35.
Because Mr. Hilton could not easily have intervened in the prior actions, which Doctor Wright vigorously defended on the merits and which have concluded with judgments against him, the doctrine of collateral estoppel should be applied to save both Mr. Hilton and this Court the effort of establishing the rule of law which defendants have unsuccessfully resisted on a sustained basis. Mr. Hilton has thus shown a substantial likelihood of success on his Eighth Amendment claim.
2. The Mandatory Substance Abuse Programming Requirement Violates the Eighth Amendment
Independently of the doctrine of collateral estoppel, Mr. Hilton has a substantial likelihood of success under well-settled case law interpreting the Eighth Amendment, as recognized in the recently decided challenges to the defendants’ substance abuse criteria. It is uncontroversial that the Eight Amendment’s bar on cruel and unusual punishments protects inmates from deliberate indifference to their serious medical needs on the part of prison officials. Estelle v. Gamble, 429 U.S. 97, 104 (1976); McKenna v. Wright, 386 F.3d at 436-37. The series of federal and state challenges decided over the last ten months have each recognized “deliberate
19

indifference” in any categorical policy conditioning Hepatitis C treatment on substance abuse criteria not essential to the determination of whether antiviral therapy is medically indicated. See Johnson, 412 F.3d at 405-06; McKenna, 386 F.3d at 437; Domenech, 766 N.Y.S.2d at 293, aff’d, 797 N.Y.S.2d 313; Morgan, No. 03 Civ. 3987 at 19-22.
The cases have been decided in the context of a medical consensus that past drug use has no bearing on whether combination antiviral therapy is medically indicated. See Morgan, No. 03 Civ. 3987 at 19 (explaining that medical authorities “all indicate that complications may arise when treatment is given to persons who actively use drugs or alcohol”) (emphasis in original). As noted by Judge Wood, the authorities contemplate only that a patient’s ongoing, active substance abuse may be a counter-indication to antiviral therapy. Simply put, the “use of alcohol or substance abuse treatment as a prerequisite for hepatitis C treatment in patients who are past alcohol or substance users is not consistent with the standard of care for hepatitis C.” Edlin Decl. ¶ 9, attached as Ex. A to Reinert Aff.
The very medical authorities referenced in defendants’ own Hepatitis C Primary Care Practice Guideline confirm this judgment. See Reinert Aff. Ex. I at 8. For instance, the Guideline refers to recommendations published by the Centers for Disease Control and Prevention (“CDC”) in 1998, but that publication expressly promotes treatment for individuals, like Mr. Hilton, who are at the greatest risk of progressing to cirrhosis and who have not actively used intravenous drugs or alcohol for more than six months. See CDC, “Recommendations for Prevention and Control of Hepatitis C Virus (HCV) Infection and HCV-Related Chronic Disease” at 14 (1998) (available at http://www.cdc.gov/mmwr/PDF/RR/RR4719.pdf). Similarly, a 2003 CDC report referenced by the Guideline, addressing Hepatitis C in correctional settings,
20

specifically recommends that candidates for antiviral therapy participate concurrently in substance abuse treatment only insofar as they are actively engaged in drug or alcohol abuse. See CDC, Recommendations for Prevention and Control of Infections with Hepatitis Viruses in Correctional Settings (2003) (available at http://www.cdc.gov/mmwr/PDF/rr/rr5201.pdf).
A 1997 National Institutes of Health (“NIH”) Consensus Statement referenced by the Guideline is to the same effect, sounding a cautionary note only with respect to individuals who have used illicit drugs or alcohol within six months of contemplated antiviral therapy. See NIH, Consensus Development Conference Statement, “Management of Hepatitis C” (1997) (available at http://consensus.nih.gov/cons/105/105_intro.htm). An updated NIH Consensus Statement is even less supportive of defendants’ policy in that it expressly recommends efforts to increase the availability of antiviral therapy to injecting drug users and further declares that active drug use “in and of itself [should] not be used to exclude such patients from antiviral therapy.” See NIH Consensus Development Conference Statement, “Management of Hepatitis C” at 19 (2002) (available at http://www.hepprograms.org/drug/hepcconfer.pdf).
The two remaining medical references relied upon by the Guideline similarly establish, at most, that active, not past, substance abuse may be a contraindication to antiviral therapy in some patients. See National Institute of Diabetes and Digestive and Kidney Diseases, Chronic Hepatitis C: Current Disease Management, NIH Pub. No. 03-4230 (May 1999) (available at http://www.medhelp.org/NIHlib/GF-483.html); Georg M. Lauer and Bruce D. Walker, Hepatitis C Virus Infection, 345 New Engl. J. Med. 41 (2001), attached to Reinert Aff. as Ex. K. In sum, the very medical references cited in defendants’ own Guideline uniformly indicate that substance abuse programming is not necessarily a favored concomitant, much less a proper condition, of
21

antiviral therapy indicated for individuals who, like Mr. Hilton, have not used drugs for substantial periods of time.
Consistent with the medical consensus, courts have found deliberate indifference in any reflexive application of substance abuse criteria that neglects a patient’s particular circumstances. As discussed in the previous subpart, the Domenech and Morgan decisions both make clear that the Eighth Amendment forbids defendants from applying the ASAT requirement to inmates whose lengthy abstinence from drug use plainly renders substance abuse programming medically irrelevant. Domenech, 766 N.Y.S.2d at 293; Morgan, No. 03 Civ. 3987 at 21-22 & n.23. A recent precedent of the Second Circuit establishes that abstinence of far shorter duration may also suffice to demonstrate deliberate indifference. In Johnson v. Wright, an inmate at the Green Haven and Great Meadow correctional facilities brought a Section 1983 action challenging the denial of antiviral therapy under a criterion requiring that patients have engaged in no active alcohol or substance abuse within the past two years. Johnson, 412 F.3d at 401. Mr. Johnson had tested positive for marijuana use roughly one year before defendants applied the criterion to overrule the unanimous recommendation of treating physicians that he receive antiviral therapy. Id. Yet if defendants had “reflexively follow[ed] the Guideline’s substance abuse policy in the face of the unanimous, express, and repeated recommendations of plaintiff’s treating physicians, including prison physicians,” then even recent, confirmed marijuana use could not excuse the deliberate indifference manifest in failing to provide medically indicated treatment. Id. at 406.
In the present case, Mr. Hilton’s personal and medical history is composed of facts materially indistinguishable from those cited in the recent federal and state decisions. DOCS’ own records indicate no drug use more recent than 1993. See Reinert Aff. at Ex. ____
22

(correction counselor’s memorandum reciting drug use history pursuant to which Mr. Hilton’s ASAT application was reviewed). Mr. Hilton’s affidavit confirms that he has in fact never used drugs since an even earlier period in his life. Hilton Affidavit ¶¶ 3-6, 16. Each of the physicians engaged by DOCS has recommended that he receive combination therapy without further delay, only to see their unanimous recommendation rejected by defendants on the basis of a categorical policy lacking medical justification in Mr. Hilton’s case. In light of Mr. Hilton’s lengthy abstinence from drug use and the medical consensus that antiviral therapy is indicated, defendants’ reliance on the ASAT requirement to withhold needed treatment is intolerable under the Eighth Amendment.
Furthermore, defendants have denied treatment while simultaneously thwarting Mr. Hilton’s best efforts to comply with the pointless ASAT requirement. Despite his lengthy record of abstinence from drug use, Mr. Hilton has sought at both the Altona and Washington correctional facilities to participate in substance abuse programming, only to be placed on a waiting list and then informed that his upcoming eligibility for parole disqualifies him from enrollment. Compare Domenech, 766 N.Y.S.2d at 288-89 & n.1 (inmate enrolled in, but failed to complete, ASAT programming), Morgan, No. 03 Civ. 3987, at 8-9 & n.10 (inmate sought to avoid ASAT programming entirely). The irony of this record cruelly underscores the evidence showing that application of the ASAT requirement owes in Mr. Hilton’s case not to medical judgment, but to a categorical policy developed without regard for the health of prisoners known to require immediate treatment to remedy a progressive, life-threatening illness.
Both because defendants are barred by the doctrine of issue preclusion from defending the constitutionality of applying the ASAT requirement to Mr. Hilton, and because the precedents
23

uniformly recognize that it violates the Eighth Amendment to condition Hepatitis C treatment on medically inessential substance abuse criteria, Mr. Hilton has shown a likelihood of success on the merits of his claims. Along with the irreparable injury he will suffer absent treatment, this showing entitles him to preliminary injunctive relief.
CONCLUSION For the reasons stated in the foregoing, plaintiff Robert Hilton asks the Court to enter a temporary restraining order and preliminary injunction compelling defendants to approve immediate commencement of the course of combination antiviral therapy which Mr. Hilton’s physicians have prescribed to treat Hepatitis C.
Dated: New York, New York August 17, 2005
KOOB & MAGOOLAGHAN /s/ Keith M. Donoghue By: Keith M. Donoghue (Bar No. 513215) Alexander A. Reinert (Bar No. 512945) Elizabeth L. Koob (Bar No. 506158) Joan Magoolaghan (Bar No. 501543) Attorneys for Plaintiff 19 Fulton Street, Suite 408 New York, New York 10038 (212) 406-3095
24

UNPUBLISHED AUTHORITY

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -------------------------------------------------------------X ROBERT HILTON, on behalf of himself and all others similarly situated,

Plaintiff,

–against–

LESTER N. WRIGHT, M.D., M.P.H., Associate Commissioner/ Chief Medical Officer, for the New York State Department of Correctional Services; and the NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES,

ORDER TO SHOW CAUSE WHY APPLICATION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION SHOULD NOT BE GRANTED
Case No.: 05 Civ. 1038 (LEK) (GJD)

Defendants. -------------------------------------------------------------X

Pursuant to Rule 65 of the Federal Rules of Civil Procedure and Local Civil Rule 7.1, and upon the Complaint and Summons herein, as well as the Affirmation of Alexander A. Reinert, the exhibits attached thereto, and Plaintiff’s Memorandum of Law in Support of Application for Temporary Restraining Order and Preliminary Injunction, let the defendants or their attorneys show cause, before the Honorable ______________________, United States District Judge, why this Court should not, pending determination of this action, enter a temporary restraining order and preliminary injunction compelling defendants to authorize the immediate commencement of a course of antiviral therapy to treat plaintiff Robert Hilton for a chronic Hepatitis C infection. It is accordingly,
ORDERED, that defendants shall file papers answering this Order to Show Cause on or before __________ AM / PM, August _____, 2005; and
ORDERED, that plaintiff shall file any reply papers in further support of his application -1-

for a temporary restraining order and preliminary injunction before _____________ AM / PM, August _____, 2005; and
ORDERED, that oral argument shall be heard on plaintiff’s application for a temporary restraining order and preliminary injunction at ______ AM / PM, ______________________, 2005, at the United States District Court, Northern District of New York, Room _____, James T. Foley United States Courthouse, 445 Broadway, Albany, New York; and
ORDERED, that this Order to Show Cause be served upon defendants or their attorneys on or before _______ AM / PM, August _________, 2005.

Dated: August ______, 2005

________________________________ UNITED STATES DISTRICT JUDGE

-2-

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ------------------------------------------------------------X ROBERT HILTON and LOUIS VASQUEZ, on behalf of themselves and all others similarly situated,

Plaintiffs,

–against–

Case No. 05 Civ. 1038 (DNH) (DEP)

LESTER N. WRIGHT, M.D., M.P.H., Associate Commissioner/ Chief Medical Officer, for the New York State Department of Correctional Services; and the NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES,

Defendants. ------------------------------------------------------------X

PLAINTIFFS’ MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ CROSS-MOTION TO DISMISS AND IN FURTHER SUPPORT OF MOTION FOR
CLASS CERTIFICATION

KOOB & MAGOOLAGHAN Alexander A. Reinert, Bar Roll No. 512945 Attorneys for Plaintiffs 19 Fulton Street, Suite 408 New York, New York 10038 (212) 406-3095

TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -iiPRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I. PLAINTIFFS’ CLAIMS FOR INJUNCTIVE RELIEF HAVE NOT BEEN MOOTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
II. DEFENDANTS’ AMENDED POLICY DOES NOT MEET THEIR BURDEN OF ESTABLISHING MOOTNESS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 A. Defendants Have Not Shown That No Reasonable Expectation Remains That the ASAT/RSAT Requirement Will Be Reinstated . . . . . . . . . . . . . 6 B. Defendants Have Not Made Any Attempt to Show That the October 18 Announcement Resulted in a Complete Eradication of the Effects of the ASAT/RSAT Requirement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
-i-

TABLE OF AUTHORITIES CASES Ahrens v. Bowen, 852 F.2d 49 (2d Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 10, 15 Allstate Ins. Co. v. Serio, No. 97 Civ. 670, 2003 WL 21418198 (S.D.N.Y. May 7, 2003) . . . . 14 Armstrong v. Ward, 529 F.2d 1132 (2d Cir. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13 Church of Scientology v. United States, 506 U.S. 9 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 5 County of Los Angeles v. Davis, 440 U.S. 625 (1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 15 County of Riverside v. McLaughlin, 500 U.S. 44 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Cronin v. Browner, 90 F. Supp. 2d 364 (S.D.N.Y. 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Dodge v. County of Orange, 208 F.R.D. 79 (S.D.N.Y. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . 4, 12 Domenech v. Goord, 797 N.Y.S.2d 313 (2d Dept. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Eng v. Smith, 849 F.2d 80 (2d Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Etuk v. Slattery, 936 F.2d 1433 (2d Cir. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 5 Fisher v. Koehler, 692 F. Supp. 1519 (S.D.N.Y. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Ford v. Reynolds, 316 F.3d 351 (2d Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000) . . . . . . . . . 5 Harrison & Burrows Bridge Constructors, Inc. v. Cuomo, 981 F.2d 50 (2d Cir. 1991) . . . . . . 2, 6 Johnson v. Wright, 412 F.3d 398 (2d Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Krimstock v. Kelly, 306 F.3d 40 (2d Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Lamar Advertising of Penn, LLC v. Town of Orchard Park, 356 F.3d 365 (2d Cir. 2004) . . . . 13 Lillbask v. State of Conn. Dept. Of Education, 397 F.3d 77 (2d Cir. 2005) . . . . . . . . . . . . . . . . 13 Maneely v. City of Newburgh, 208 F.R.D. 69 (S.D.N.Y. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . 9 McKenna v. Wright, 386 F.3d 432 (2d Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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Monroe v. Bombard, 422 F. Supp. 211 (S.D.N.Y. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 Najera-Borja v. McElroy, No. 89 Civ. 2320, 1995 WL 151775 (E.D.N.Y. March 29, 1995) . . . 4 New York State Nat. Organization for Women v. Terry, 159 F.3d 86 (2d Cir. 1998) . . . . . . . . . 6 Santiago v. Miles, 774 F. Supp. 775 (W.D.N.Y. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 12 Tawwab v. Metz, 554 F.2d 22 (2d Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 Tsombanidis v. West Haven Fire Dept., 352 F.3d 565 (2d Cir. 2003) . . . . . . . . . . . . . . . . . 12, 14 United States v. New York City Transit Authority, 97 F.3d 672 (2d Cir. 1996) . . . . . . . . . . . 6, 9 United States v. W.T. Grant Co., 345 U.S. 629 (1953) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Yassky v. Kings County Democratic County Committee, 259 F. Supp. 2d 210 (E.D.N.Y. 2003) .............................................................................9 STATUTES AND RULES Fed. R. Civ. P. 23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
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PRELIMINARY STATEMENT This brief is submitted in opposition to defendants’ cross-motion to dismiss plaintiffs’ claims for injunctive relief and in further support of plaintiffs’ motion for class certification.1 Defendants argue that, because they recently modified the Hepatitis C Protocol challenged by plaintiffs Robert Hilton and Louis Vasquez, plaintiffs’ injunctive and declaratory relief claims are moot. Defendants’ argument both misconstrues the nature of the relief sought by plaintiffs on behalf of themselves and the class, and mischaracterizes the change in policy purported to moot plaintiffs’ claims for equitable relief. Accordingly, plaintiffs’ motion for class certification should be granted and defendants’ motion to dismiss should be denied.
ARGUMENT Defendants’ sole argument in opposition to plaintiffs’ motion for class certification is that plaintiffs’ equitable claims have been mooted by an announcement transmitted on October 18, 2005 by defendant Wright concerning the New York State Department of Correctional Services’ (“DOCS”) Hepatitis C protocol.2 Defendants’ argument should be rejected for at least two reasons. First, defendants incorrectly assume that the only injunctive relief sought by plaintiffs on behalf of the class is the elimination of the longstanding requirement that prisoners participate in prison-run substance abuse counseling programs as a condition of receiving Hepatitis C
1Pursuant to Local Rule 7.1(c), plaintiffs submit this brief in opposition to defendants’ cross-motion to dismiss and in reply to defendants’ opposition to plaintiffs’ motion for class certification.
2Defendants rebut none of plaintiffs’ arguments regarding the propriety of class certification in this action. By their omission, defendants concede that all the requirements enumerated by Fed. R. Civ. P. 23 have been met by plaintiffs.
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treatment (referred to herein as the “ASAT/RSAT requirement”). In fact, plaintiffs’ First Amended Class Action Complaint demands “injunctive relief, including that defendants Wright and DOCS treat plaintiffs with pegylated interferon and ribavirin,” as well as a judgment declaring unconstitutional defendants’ conduct in denying treatment to the plaintiff class. (First Amend. Compl. (“Compl.”), “Wherefore Clause”). Second, even if plaintiffs only sought a change in policy to conform defendants’ Hepatitis C Protocol to accepted medical judgment, defendants’ recent announcement, assuming it instantiates a real change in practice, would not moot plaintiffs’ request for injunctive relief on behalf of the class. Defendants face a “heavy burden” of demonstrating that the recent change should moot the class’s request for injunctive relief, Harrison & Burrows Bridge Constructors, Inc. v. Cuomo, 981 F.2d 50, 59 (2d Cir. 1991), a burden that they cannot meet given their prior conduct and the context in which the October 18 announcement was made. Moreover, defendants’ announcement itself does not clarify the illegality of the Hepatitis C Protocol, and does nothing to assure plaintiffs that class members will receive appropriate medical care for Hepatitis C.
I. PLAINTIFFS’ CLAIMS FOR INJUNCTIVE RELIEF HAVE NOT BEEN MOOTED The heart of defendants’ argument is that the only equitable relief sought by plaintiffs is
the elimination of defendants’ practice of conditioning Hepatitis C treatment on participation in prison-run substance abuse programs. (Mem. Of Law in Support of Defendants’ Cross-Motion to Dismiss and in Opposition to Plaintiffs’ Motion for Class Certification (“Defs.’ Mem.”) at 1.) According to defendants, because they have announced that they will no longer predicate eligibility for Hepatitis C treatment on enrollment in substance abuse programming, they have
2

satisfied this request for equitable relief and mooted plaintiffs’ injunctive claims. This is a crabbed reading of plaintiffs’ First Amended Complaint, however. On behalf of the class, plaintiffs seek “appropriate injunctive relief,” including treatment with pegylated interferon and ribavirin (Compl. “Wherefore Clause” ¶ (D)), and a declaration that defendants’ prior Hepatitis C Protocol was unconstitutional (Compl. “Wherefore Clause” ¶ (F).) Plaintiffs do not purport to limit their request for equitable relief only to a change in policy, much less an announcement that policy has been changed.3 Instead, plaintiffs have stated their goals more broadly, as a “mandate that defendants adequately treat Hepatitis-C infected prisoners.” (Pls.’ Mem. of Law in Support of Mot. for Class Certification 17.)
With this understanding of the equitable relief sought by plaintiffs, it is clear that defendants’ October 18 announcement does not moot these claims. The test for mootness is succinctly stated as whether events have occurred which “make[] it impossible for the court to grant ‘any effectual relief whatever’ to a prevailing party.” Church of Scientology v. United States, 506 U.S. 9, 12 (1992). Defendants’ announcement does not exhaust the universe of injunctive relief available to the class, and leaves many questions unanswered. For instance, while Dr. Wright has asked medical personnel to reevaluate prisoners for treatment under the new policy (Declaration of Lester Wright dated October 18, 2005 (“Wright Decl.”) ¶ 10 and Ex. C), he has imposed no deadlines for when this review is to take place, how this review is to take
3As defendants concede, even if the named plaintiffs’ equitable claims have been fully satisfied, this would not moot the putative class’s claims for the same injunctive relief. County of Riverside v. McLaughlin, 500 U.S. 44, 52 (1991) (class claims not moot even though class was not certified until after named plaintiffs’ claims were mooted); Krimstock v. Kelly, 306 F.3d 40, 70 n.34 (2d Cir. 2002) (reviewing cases). Therefore, for the purposes of this motion, plaintiffs do not distinguish between the injunctive and equitable relief which remains to be granted to the class, and that which remains to be granted to the plaintiffs.
3

place, and whether prisoners will be notified of the review and be permitted to challenge any decision not to institute treatment. There are thus many possible remedial measures by which the Court might enforce the injunctive relief sought, including ordering treatment of all prisoners who have been denied Hepatitis C treatment because of the ASAT/RSAT requirement, imposing deadlines for reviewing the files of prisoners who previously have been denied treatment, establishing a process for outside review of decisions by DOCS personnel to deny treatment under the terms of the October 18 announcement, or notifying prisoners with Hepatitis C of their entitlement to the care previously denied. All of these issues, among others, would be appropriate subjects for resolution in a class action. See, e.g., Cronin v. Browner, 90 F. Supp. 2d 364, 377 (S.D.N.Y. 2000) (describing possible court-ordered relief to coordinate compliance with consent decree); Najera-Borja v. McElroy, No. 89 Civ. 2320, 1995 WL 151775, *6 (E.D.N.Y. March 29, 1995) (modifying previous court-ordered injunctive relief to account for problems with defendants’ compliance). Thus, even where a government agency announces a change in policy, if the adequacy of relief provided to individual class members remains “an unresolved issue,” the government’s mootness argument should be rejected. Etuk v. Slattery, 936 F.2d 1433, 1442–43 (2d Cir. 1991).
Moreover, defendants’ October 17 announcement does not explicitly repudiate the prior ASAT/RSAT requirement, and instead continues to attest that ASAT/RSAT participation is “an essential part” of Hepatitis C treatment. (See Ex. B to Wright decl. Dated October 18, 2005.) The plaintiff class is entitled to have class counsel and the Court oversee the application of Hepatitis C protocols to ensure that the prior de jure restrictions do not continue de facto. See Dodge v. County of Orange, 208 F.R.D. 79, 85 (S.D.N.Y. 2002) (defendants’ strong mootness argument was defeated because plaintiff asserted that even if formal written policy had changed,
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practice had not). Plaintiffs also share an interest with the public in “having the legality of the practices settled.” United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953), quoted in Etuk, 936 F.2d at 1443.
Defendants’ change in policy also does not satisfy plaintiffs’ request for a declaration that the ASAT/RSAT requirement violated and/or violates the constitution. Indeed, defendants clearly continue to believe that the policy of linking substance abuse treatment with Hepatitis C treatment is appropriate and even “essential” to proper medical care. Even if the October 18 announcement brings about a sufficient alteration of past practices to satisfy the plaintiff class’s requests for injunctive relief, defendants cannot seriously claim that the announcement is equivalent to a clear declaration of illegality of the ASAT/RSAT requirement alleged by plaintiffs’ complaint. See Ford v. Reynolds, 316 F.3d 351, 356 n.3 (2d Cir. 2003) (finding claims for injunctive relief moot but remanding for decision on claims for declaratory relief). As the Supreme Court has made clear, “a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of that practice.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000).
Defendants seek to evade court oversight of its Hepatitis C Protocol by attesting to a change in policy that does not encompass all of the injunctive and declaratory relief which the plaintiff class seeks. Defendants therefore simply have not met their burden of showing that the October 18 announcement “makes it impossible for the court to grant ‘any effectual relief whatever’” to the plaintiff class. Church of Scientology, 506 U.S. at 12.
5

II. DEFENDANTS’ AMENDED POLICY DOES NOT MEET THEIR BURDEN OF ESTABLISHING MOOTNESS Even were the Court to agree with defendants that plaintiffs have not stated a claim for
any relief beyond a de jure elimination of the absolute ASAT/RSAT requirement, defendants’ mootness argument should be rejected. As defendants recognize, to moot this case as a result of their unilateral conduct, they bear a “heavy burden.” Harrison, 981 F.2d at 59. A “voluntary cessation of the challenged conduct” by defendants is only “one factor that a court should consider in determining whether to adjudicate the controversy before it.” Ahrens v. Bowen, 852 F.2d 49, 52 (2d Cir. 1998). Defendants must also show both that “no reasonable expectation remains that the policy will be reinstituted,” United States v. New York City Transit Authority, 97 F.3d 672, 676 (2d Cir. 1996), and that “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation,” County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979), quoted in New York State Nat. Organization for Women v. Terry, 159 F.3d 86, 91 (2d Cir. 1998). Defendants have not met either requirement.
A. Defendants Have Not Shown That No Reasonable Expectation Remains That the ASAT/RSAT Requirement Will Be Reinstated
To moot a case based on voluntary cessation of challenged conduct, a defendant must show that it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Ahrens, 852 F.2d at 52 (internal quotation marks omitted). Both the history of the defendants’ actions with respect to the Hepatitis C policy and the context of the October 18 announcement counsel caution before accepting defendants’ statement that there is no possibility of resumption of the challenged ASAT/RSAT requirement.
The history of defendants’ reliance on the Hepatitis C Protocol to irrationally restrict 6

access to Hepatitis C treatment is particularly troubling. Since the adoption of defendants’ first Hepatitis C Protocol in 1999, there has been no medical support for defendants’ conscious decision to deny necessary medical treatment to prisoners with Hepatitis C solely because of their failure to participate in ASAT or RSAT. (Supplemental Affirmation of Alexander A. Reinert dated October 28, 2005 (“Reinert Supp. Aff.”) ¶ 32.) Indeed, even after 2002, when the National Institutes of Health recommended that active injection drug users be treated for Hepatitis C, defendants continued to deny needed Hepatitis C treatment to past substance users who had abstained from drug use for several years. (Id.) As plaintiffs allege in their complaint, Compl. ¶ 124, this policy was driven more by fiscal concerns than by medical judgment.
Moreover, it is class counsel’s experience that only the threat or reality of litigation has caused defendants to agree, after years of intransigence, to treat prisoners regardless of their ASAT/RSAT participation. One need not look very far to see evidence of this conduct. For instance, as late as July 28, 2005, defendants continued to deny Hepatitis C treatment to plaintiff Robert Hilton despite the fact that it was defendants themselves who had made it impossible for him to even satisfy the ASAT requirement. (Compl. ¶¶ 75–77; Affirmation of Alexander A. Reinert dated August 17, 2005, ¶¶ 26–29.) And plaintiff Louis Vasquez was not provided with treatment for his Hepatitis C, despite having completed a prison-approved drug treatment program more than 10 years ago, until this action was filed and Mr. Vasquez was represented by counsel. (Reinert Supp. Aff. ¶ 21.) Before this action was instituted plaintiffs had brought their complaints regarding the lack of treatment to defendants’ attention through every level of internal prison grievance procedures. (Compl. ¶¶ 71–75, 91–97.) Only in response to litigation did defendants reverse course and provide Hepatitis C treatment to the named plaintiffs.
Even where prisoners have been represented by counsel and obtained direct court orders 7

for Hepatitis C treatment, defendants have resisted providing medically approved medication. Defendants’ litigation conduct in Domenech v. Goord, 797 N.Y.S.2d 313 (2d Dept. 2005), affirming 766 N.Y.S.2d 287 (Sup. Ct. 2003), is reflective of this pattern. In Domenech, defendants had applied the ASAT/RSAT requirement to deny treatment to a prisoner, Angel Domenech, who had not used drugs for more than 30 years. Mr. Domenech filed an Article 78 petition pro se, and defendants’ conduct was declared unconstitutional by a New York State trial court in May 2003. Rather than treat Mr. Domenech at that time, defendants obtained a stay of the order while appealing the decision to the Second Department. (Reinert Supp. Aff. ¶ 8.) Even after Koob & Magoolaghan appeared on Mr. Domenech’s behalf and moved to vacate the stay so that he could obtain treatment in early 2005, defendants resisted the application and argued that the ASAT/RSAT requirement was too important to abandon. (Reinert Supp. Aff. ¶ 9.) And even after the Second Department rejected defendants’ arguments and affirmed the trial court’s decision that defendants had unconstitutionally denied treatment to Mr. Domenech, defendants stated to Koob & Magoolaghan that they were providing Hepatitis C treatment “solely to comply with the court decision and order, and not because DOCS believes it is medically appropriate.” (Letter of Assistant Solicitor General David Lawrence III, dated July 27, 2005, attached as Ex. B to Reinert Supp. Aff.)
More recently, DOCS’ conduct in the case of Nelson Rodriguez raises questions about defendants’ readiness to review past denials of treatment and render appropriate medical care without regard for a prisoner’s ASAT/RSAT participation. Mr. Rodriguez, like Mr. Domenech, had prevailed while proceeding pro se in an Article 78 proceeding challenging defendants’ Hepatitis C policies. (Reinert Supp. Aff. ¶ 13.) Defendants again obtained a stay of the proceedings when they filed a notice of appeal. (Id.) After Koob & Magoolaghan appeared on
8

Mr. Rodriguez’s behalf and requested that he receive treatment for his Hepatitis C, defendants stated through counsel that they would review his treatment without regard for his ASAT/RSAT participation. (Reinert Supp. Aff. ¶ 14.) Upon completing that review, defendants determined, contrary to the 2002 recommendations of a DOCS specialist, that Mr. Rodriguez is not a medically appropriate candidate for Hepatitis C treatment. (Reinert Supp. Aff. ¶¶ 15–16.) By Notice of Motion dated October 25, 2005, defendants have now requested relief from the original judgment in Albany Supreme Court, requesting that the Court’s original order be modified to omit an order that Mr. Rodriguez receive antiviral therapy.
This history suggests that Dr. Wright’s October 18 announcement is rooted more in litigation strategy than in sincere reappraisal of defendants’ position.4 Moreover, the mere fact that defendants made the announcement on the eve of filing an opposition to plaintiffs’ motion for class certification counsels against finding the matter mooted. New York City Transit Authority, 97 F.3d at 676 (“We also think it is significant that the change of policy was instituted on the eve of the lawsuit.”); Yassky v. Kings County Democratic County Committee, 259 F. Supp. 2d 210, 215 (E.D.N.Y. 2003) (expressing suspicion of change in rule “only hours before the court was scheduled to hold a preliminary injunction hearing”); Maneely v. City of Newburgh, 208 F.R.D. 69, 73 (S.D.N.Y. 2002) (finding no mootness despite defendants’ change of policy, in part because defendants changed their policy after being notified of plaintiff’s intention to file suit). A defendant’s change of heart shortly before a significant motion suggests
4Defendants suggest that, because the new policy alters two other aspects of the Hepatitis C protocol – those dealing with the Continuity Program and the treatment of active drug users – the Court should infer that they are not merely responding to litigation pressure. But these two aspects of the protocol are also the subject of recent federal court decisions that defendants have lost. See Johnson v. Wright, 412 F.3d 398 (2d Cir. 2005); McKenna v. Wright, 386 F.3d 432 (2d Cir. 2004).
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a strategic maneuver to manufacture a mootness argument and avoid judicial review of an issue. Ahrens, 852 F.2d at 53; Santiago v. Miles, 774 F. Supp. 775, 793 (W.D.N.Y. 1991) (finding no mootness where “[m]any of the changes in policy occurred subsequent to commencement of this lawsuit” and “some of the changes were implemented solely because of the pendency of this action”).
Defendants’ statement, shortly after the Second Department announced its decision in Domenech, that the only reason they were providing Hepatitis C treatment was because of the pending court order, and not because of their belief in the medical appropriateness of the treatment, strongly suggests that the October 18 announcement is motivated solely by litigation concerns. Defendants have admitted as much, by stating that the October 18 announcement was motivated by the court decisions in Johnson, McKenna, and Domenech. (Wright Decl. dated October 18, 2005, ¶ 8.) Defendants have yet to concede that the October 18 announcement is the product of a sincere reappraisal of the relevant medical literature.
Creating more concern that the professed change in policy may be superficial is the fact that DOCS has not repudiated its policy of requiring ASAT or RSAT as a condition of receiving treatment. Monroe v. Bombard, 422 F. Supp. 211, 215 n.5 (S.D.N.Y. 1976) (rejecting mootness argument despite change in policy where defendants “have not admitted that the challenged activity is illegal”). Indeed, the October 18 announcement hews closely to the philosophy embraced by the ASAT/RSAT requirement as described in plaintiffs’ complaint: while Dr. Wright has announced that ASAT/RSAT participation is no longer required, it is “strongly encouraged” and considered “essential” to the proper treatment of Hepatitis C.5 (See Ex. B to
5Moroever, defendants argue that the new policy is “consistent” with standards developed by the American Association for the Study of Liver Diseases (“AASLD”), (Defs.’ Mem. 2 n.2)
10

Wright Decl. Dated October 18, 2005.) Defendants’ failure to explicitly repudiate their former policy is noteworthy because plaintiffs’ counsel explicitly requested such a repudiation when first contacted regarding the policy change. (Reinert Supp. Aff. ¶ 24.) Plaintiffs’ counsel requested that Dr. Wright make it clear that failure to participate in ASAT or RSAT could not be a justification for denying treatment and that there be adequate assurance that prisoners denied treatment in the past would now be provided with treatment (not mere reevaluation), but these suggestions were not adopted by defendants. (Id.).
Plaintiffs’ concern that the ASAT/RSAT requirement will continue to lurk as a condition for receiving treatment is not hypothetical. For example, the newly announced protocol continues to require that prisoners be “highly motivated” in order to receive combination antiviral therapy. (See Ex. A to Wright Decl. dated October 18, 2005.) In the past, Dr. Wright has argued that, even if the ASAT/RSAT requirement is not medically necessary as an absolute precondition to treatment, prisoners who will not voluntarily participate in substance abuse treatment programs are by definition not “highly motivated” and therefore are less likely to “strictly adhere to a long and complicated treatment regimen with potentially serious side effects.” (See Reinert Supp. Aff. ¶ 28 & Ex. E.) Because Dr. Wright continues to refer to ASAT/RSAT participation as “essential” to proper Hepatitis C treatment, there is no barrier to DOCS medical personnel imposing the requirement de facto on the ground that only participation in substance abuse counseling demonstrates the requisite motivation for undertaking antiviral
but this is far from true. The AASLD Hepatitis C Practice Guidelines offers no support for defendants’ position that substance abuse treatment programming is “essential” for individuals who are not actively using injection drugs. (Reinert Supp. Aff. ¶ 31.) Moreover, as to active users of drugs by means other than injection, the AASLD suggests that they be evaluated for treatment like anyone else. (Id.) Defendants’ new policy, however, categorizes all drug and alcohol users together, without regard for the distinctions present in the AASLD policy.
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therapy. See Dodge, 208 F.R.D. at 85 (defendants’ mootness argument based on change in policy before plaintiffs brought lawsuit was rejected on basis that practice had not been altered by announcement of formal change in written policy).
The fact that the plaintiff class is comprised of prisoners also strongly counsels against accepting defendants’ mootness argument. Santiago, 774 F. Supp. at 793 (“In cases involving challenges to prison practices, federal courts in this Circuit have not been reluctant to issue injunctive relief in spite of substantial voluntary improvements by prison officials.”); see also Eng v. Smith, 849 F.2d 80, 83 (2d Cir. 1988) (rejecting mootness argument in prison case where “defendants claim to have voluntarily implemented all of the ordered relief,” but where “without a preliminary injunction there is nothing to prevent defendants from abandoning procedures which the court determined to be necessary to protect plaintiffs’ constitutional rights”); Fisher v. Koehler, 692 F. Supp. 1519, 1566 (S.D.N.Y. 1988) (no mootness where reforms were adopted during litigation, absent “assurance” that the changes had “significantly reduced” the complained of problems). As the Fisher Court pointed out, despite the commitment of prison administrators to particular changes, “the depressing reality is that while commissioners come and go, problems linger on, and present and future inmates are entitled to the assurance that these problems will be, and remain, redressed.”6 Id.
None of the cases cited by defendants supports a different outcome. In Armstrong v. Ward, 529 F.2d 1132 (2d Cir. 1976), the case was found to be moot because the change in policy accomplished all of the relief sought by the plaintiff class, and because the Court found that the
6Notwithstanding Dr. Wright’s assurance that he has no intention of reverting to the former ASAT/RSAT requirement, he cannot bind future commissioners. Tsombanidis v. West Haven Fire Dept., 352 F.3d 565, 574 (2d Cir. 2003) (rejecting mootness argument where future State Fire Marshal could change policy).
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possibility that the State would reverse course was too speculative to defeat the mootness
argument. Id. at 1135–36. Here defendants have not provided all of the injunctive relief to
which the class is entitled, and there is more than a speculative possibility that ASAT/RSAT
participation will continue to influence the provision of Hepatitis C treatment to the plaintiff class.7
Defendants’ reliance on Lillbask v. State of Conn. Dept. Of Education, 397 F.3d 77 (2d
Cir. 2005), is also inapposite for numerous reasons. First, the court’s analysis in that case was
focused on whether the plaintiff had satisfied the “capable of repetition yet evading review”
exception to the mootness doctrine. Id. at 84–88. Second, the conduct challenged in Lillbask –
implementation of an educational plan for a student with a disability – had only been proposed, and never even implemented.8 Id. at 88. And finally, the defendants in Lillbask frankly admitted
that their original proposed plan was wrong and that the plaintiff had “flourished” without
imposition of the challenged plan. Id. This is in contrast to the instant case, where defendants
have only recently announced an intended change in policy after several years of resistance and where defendants have not come close to conceding the illegality of the challenged policy.9
7This same fact distinguishes Tawwab v. Metz, 554 F.2d 22 (2d Cir. 1977), in which a new policy provided all of the injunctive relief sought by the plaintiffs. Id. at 23–24.
8For this reason, the Court had no need to consider whether the State had demonstrated that the adverse effects of the challenged conduct had been entirely eradicated. 397 F.3d at 88.
9Defendants rely on the Second Circuit’s decision in Lamar Advertising of Penn, LLC v. Town of Orchard Park, 356 F.3d 365 (2d Cir. 2004), for the proposition that deference to state defendants is the “rule, not the exception.” (Defs.’ Mem. 6.) This overstates Lamar’s holding, which stated that, where a legislature repeals an existing law, “deference to the legislative body's decision to amend is the rule, not the exception.” 356 F.3d at 377. This deference, the Second Circuit held, is only appropriate where the legislative amendments explicitly reject the challenged law and do not suffer from “similar infirmities” as the original law. Id. at 378. Therefore, even if prison officials may be entitled to the deference described in Lamar,
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Indeed, this case presents facts much more analogous to Tsombanidis v. West Haven Fire Dept., 352 F.3d 565 (2d Cir. 2003). There, a Fire Department’s mootness argument was rejected because, despite testimony that the fire marshal had changed his interpretation of a code, that interpretation “might change again--for example, upon a change in the State Fire Marshal's administration.” Id. at 574.
And in Allstate Ins. Co. v. Serio, No. 97 Civ. 670, 2003 WL 21418198 (S.D.N.Y. May 7, 2003), the State had explicitly repealed the policy challenged by the plaintiffs, and the New York Court of Appeals had ruled that the State did not have legal authority to issue the challenged policy. Id. at *5. This repeal allowed the plaintiffs to “resume the actions for which they originally sought protection,” thereby providing all of the injunctive relief they sought. Id. at *5. As demonstrated above, defendants’ October 18 announcement, even assuming it is fully operationalized in practice, has not provided all of the injunctive relief sought by the plaintiffs here. Nor does a proper application of the five factors listed in Allstate suggest that defendants are unlikely to revisit their ASAT/RSAT requirement. While defendants have distributed an official document announcing a change in policy, the newly announced protocol has not “sufficiently altered” the challenged policy, and the defendants’ insistence that ASAT/RSAT is “essential” to Hepatitis C treatment indicates a continued belief in the “validity of the challenged [Protocol].” Id. Moreover, the newly announced protocol does not provide any safeguards against its “highly selective” application. Id.
In this case, where defendants have only announced a change in policy on the eve of
defendants cannot rely on that deference having, to this day, shown resistance to abandoning the ASAT/RSAT requirement.
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filing their opposition to a class certification motion, have not acknowledged the illegality of the challenged policy, have formerly expressed vigorous resistance to the proposition that their challenged policy is unconstitutional, and where defendants’ announcement reflects the same erroneous medical judgment as the challenged policy, defendants simply have not met their high burden of showing that it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Ahrens, 852 F.2d at 52 (internal quotation marks omitted). For this reason, defendants’ mootness argument should be rejected.
B. Defendants Have Not Made Any Attempt to Show That the October 18 Announcement Resulted in a Complete Eradication of the Effects of the ASAT/RSAT Requirement
Even if the Court is convinced that there is no reasonable possibility that defendants will revert to their former practices after the termination of litigation, defendants have not made any attempt to show that “interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.” Davis, 440 U.S. at 631. Defendants have only stated that medical personnel at all facilities within DOCS have been asked to “review the records of their patients suffering from Hepatitis C and to resubmit any requests for treatment denied or not submitted as a result of the former requirement.” (Defs.’ Mem. 3.) Defendants have not stated how this review will be accomplished, whether Dr. Wright has ordered personnel to complete the review by a date certain, and whether there will be any review process to ensure that all appropriate requests for treatment have been submitted.
This omission is notable because, for the past several years, defendants have applied an unconstitutional and illegal policy to thousands of prisoners with Hepatitis C. The plaintiff class is entitled to have class counsel represent their interests as defendants determine how to eradicate
15

the effects of the violation. Without accepting some monitoring of how the October 18 announcement is applied, defendants should not be permitted to evade further judicial review of their conduct.
CONCLUSION For the foregoing reasons, defendants’ cross motion to dismiss should be denied and plaintiffs’ motion for class certification should be granted.

Dated: New York, New York October 28, 2005

KOOB & MAGOOLAGHAN
By: s/Alexander A. Reinert Alexander A. Reinert (Bar No. 512945) Attorneys for Plaintiffs 19 Fulton Street, Suite 408 New York, New York 10038 (212) 406-3095

16

UNPUBLISHED AUTHORITY

© 2005 Thomson/West. No Claim to Orig. U.S. Govt. Works.

Not Reported in F.Supp. Not Reported in F.Supp., 1995 WL 151775 (E.D.N.Y.) (Cite as: 1995 WL 151775 (E.D.N.Y.)) <KeyCite Citations> Only the Westlaw citation is currently available.
United States District Court, E.D. New York. Pablo Antonio NAJERA-BORJA, et al., Plaintiffs,
v. Edward McELROY, et al., Defendants.
No. 89 CV 2320.
March 29, 1995. American Civil Liberties Union, Immigrants' Rights Project, New York City (Lucas Guttentag, Judy Rabinovitz, Lee Gelernt, Thomas E. Fox, Ann Parrent, of counsel), Central American Refugee Center, Hempstead, NY (Patrick Young, of counsel), Lawyers Committee for Human Rights (John Asadi, of counsel), and Whitman Breed Abbott & Morgan, New York City (Lisa M. Gomberg, of counsel), for Lawyers Committee for Human Rights.
New York Civil Liberties Union, New York City, (Arthur Eisenberg, of counsel), for plaintiffs.
Zachary W. Carter, U.S. Atty., Brooklyn, NY (Scott Dunn, of counsel), Dept. of Justice, Washington, DC (William J. Howard, of counsel), for defendants.
MEMORANDUM AND ORDER
NICKERSON, District Judge:
*1 Plaintiffs, applicants for political asylum in the United States, bring this action against defendants-the Immigration and Naturalization Service, its officials, and the Attorney General of the United States (collectively "INS")-- for declaratory and injunctive relief alleging that INS has improperly delayed or denied plaintiffs' requests for work authorization in violation of federal laws and regulations and the United States Constitution.
By Memorandum and Order dated August 23, 1993, familiarity with which is assumed, this court granted plaintiffs' motion for class certification and a preliminary injunction. Najera-Borja v. Slattery, No. 89 CV 2320 (E.D.N.Y. Aug. 23, 1993) ("NajeraBoria I") The pertinent facts are recited in that opinion. Id. at 2-6.
Plaintiffs now move for an order of civil contempt, monetary sanctions, appointment of a special master,

and additional injunctive relief to protect class members' rights.
I. In Najera-Borja I, this court certified as a class:
[a]ll persons applying for work authorization based on a pending application for political asylum whose 1) renewal work authorization requests are denied because INS cannot locate their records, 2) initial work request is not adjudicated within 90 days because they fail or failed to appear at an interview of which they had no notice, or 3) work authorization request is denied and who receive inadequate notice of the reasons for the denial. Id. at 28.
The court also granted plaintiffs' motion for a preliminary injunction. First, with respect to those class members requesting work authorization renewal whose records do not appear on INS' asylum computer system ("no-record class members"), the court ordered that:
INS shall promptly perform a thorough search of all its computer and paper files. If the records cannot be found, INS shall inform the applicant, within five days of the renewal request, that it cannot locate his or her records and that he or she must submit a new asylum application within 30 days of receipt of INS's response. INS shall then determine work authorization within 60 days from the date of the initial renewal request. If INS fails timely to adjudicate such request then it shall issue interim work authorization pursuant to 8 C.F.R. § 274a.13(d). INS shall inform applicants and their attorneys how and where to request such interim authorization. Id. at 17. The court also said "[p]laintiffs may request further relief should the above prove inadequate or if INS fails to correct inaccuracies in its asylum computer system revealed by the audit." Id.
Second, with respect to those class members whose initial work authorization requests are not adjudicated because they fail to appear at an interview of which they had no notice ("missed-interview class members"), the court ordered INS to implement the following procedure:
when it learns that an applicant has failed to appear at an interview because he or she failed to receive notice despite having provided INS with a correct

address and 90 days has not already passed since work authorization was requested, INS shall immediately schedule an interview and adjudicate the work authorization request within that 90 days. If the 90 days has already passed or will pass before the application may be adjudicated, INS shall immediately grant interim work authorization, at least until the request is adjudicated. *2 Id. at 23-24.
Finally, with respect to those class members whose work authorization requests are denied ("denied class members"), the court ordered that:
INS is enjoined from issuing denial notices that fail to provide the specific reason for the denial and directed to issue notices that conform to [INS' internal memorandum requiring that specific reasons be given and INS's recommended denial form, which lists three grounds for denial], with one modification--if INS denies work authorization because it cannot locate the asylum file it must so unambiguously state. Id. at 27-28.
II Plaintiffs say INS has made "only minimal efforts" to comply with the terms of the injunction, specifically alleging that INS: has not adequately instructed its employees on procedures for compliance; has not maintained adequate records or accurate logs of asylum applications and work authorization requests; has failed to notify class members of procedures available to obtain relief; has not provided a meaningful procedure for resolving individual cases of noncompliance; and has not cooperated with plaintiffs' efforts to ensure compliance.
Plaintiffs offer affidavits from more than twenty immigration attorneys who represent named plaintiffs and other class members and supporting documents. These show that INS has violated the injunction by failing in some cases: (1) to adjudicate class members' work authorization requests within the time periods required by the injunction or to issue interim authorization; (2) to inform class members how to obtain interim work authorization; (3) to notify class members within five days when a record of an asylum application could not be located; (4) to conduct a thorough search for missing asylum applications; and (5) in at least one case, to issue a proper denial notice. See Pls.' Mem. of P. & A. at 4-13, Ex. A-M; and Pls.' Reply Mem. of Law at 1-7, Ex. N-Z, Ex. 1-6, Ex. AA.
Plaintiffs also say that numerous class members who are unrepresented in their individual asylum and work authorization applications are similarly deprived of

their rights under the terms of the injunction, but that exact numbers are difficult to determine, largely because INS has failed to consider the needs of unrepresented class members in implementing the injunction.
INS has submitted several affidavits from those responsible for implementing the injunction and various exhibits to show that it has "expended considerable energy and expense to comply[,] ... established a comprehensive program [,] ... provide[d] extensive training to INS personnel," and is, "at the very least, in substantial compliance with the injunction."
The relevant evidence offered by INS can be summarized as follows. In May 1993 an internal audit revealed all asylum applications in the Newark Asylum Office ("the Newark Office") with no record in the Refugee Asylum and Parole System ("RAPS") computer database. All "no-record" files were then entered into RAPS. Audits of RAPS are regularly conducted.
*3 Shortly after the court issued the preliminary injunction, representatives from INS offices affected by the injunction--the Eastern Service Center ("the Eastern Center"), the Newark Office, and the New York INS District Office ("the New York Office")-met with representatives from the Central Office in Washington, D.C. to discuss implementation of the injunction.
As a result, the Eastern Center established a system to separate asylum-based work authorization requests from others and to further separate out no-record cases. A "review desk" was created at the Eastern Center's Lemnah Drive office solely to deal with asylum-based work authorization requests. Under this system, the Eastern Center would ask the Newark Office to search its computer and paper files for records of asylum applicants not entered in RAPS. These requests first were made by federal express and later by facsimile. The new system required INS personnel to send a "no-record notice" to the applicant within five days, and to send the entire file to a "Central Coordination Unit" for a "30-day call-up." A flowchart was produced and sent to personnel involved in the new system. See Yates Decl. at ¶ 3 and Exh. 1.
In September 1993 the Eastern Center allocated more employees to the Lemnah Drive office to facilitate compliance and designated 22 specially trained officers to work on the project. See Yates Decl. at ¶ 4, 5.

In February 1994 the Newark Office initiated a tracking and monitoring system, put three employees on no-record requests, and started a log-in system, which included a record of the date a no-record request was received from the Eastern Center and the date the Newark Office responded. The Director of the Newark Office, Joseph Langlois, also asked the Eastern Center to use a form for no-record requests that would allow the Newark Office to annotate it and fax it back. See Jan. 31, 1993 Mem. from J. Langlois to Richard Crandlemire, Yates Decl., Exh. 13.
At a meeting held on March 9, 1994 to address compliance concerns, INS decided to create a more specific form for no-record requests. On March 31, 1994 this form was circulated to INS personnel involved in overseeing compliance. See March 31, 1994 Mem. from J. Langlois to R. Crandlemire, Langlois Decl., Exh. 1. The form requires Eastern Center personnel to mark the date an application is received by the Eastern Center and the date some "final action"--either sending a no-record notice or adjudicating the request--is taken. The form also employs nine codes to indicate the results of each norecord search. INS immediately began to use the updated form and continues to do so.
The current process for no-record cases is as follows. The Eastern Center sends a list of no-record requests by fax to the Newark Office, where personnel search computer and paper files, record the results of the search, and return the annotated fax to the Eastern Center with the date of response noted.
*4 If the Newark Office determines that a file may be found in the New York Office the fax is also sent there. Upon receipt of the fax, the New York Office searches its files and the files of the Executive Office of Immigration Review ("the Executive Office"), where an asylum application may be pending before an Immigration Judge or the Board of Immigration Appeals. The New York Office then forwards the search results to the Eastern Center, also via fax. See Berryman Decl., at ¶ 4.
Because the New York Office observed that a high percentage of no-record cases were asylum applications that had been filed before an Immigration Judge or the Board of Immigration Appeals, both part of the Executive Office, INS instituted a policy whereby an alien with an asylum claim before the Executive Office would be directed to file his or her work authorization request with the New York Office. See Yates Decl. at ¶ 13, Exh. 10. INS provided notice of this policy to applicants on an instruction sheet issued to work authorization applicants, see

Berryman Decl. Exh. 3, and to immigration lawyers and volunteer agencies.
In a letter dated February 3, 1995, INS' counsel informed the court that the Eastern Center recently obtained direct access to the filing system of the Executive Office for Immigration Review in order to further streamline the no-record search process.
INS says the entire process of searching for no-record cases is completed within one day and that a log is kept of all faxes.
With respect to missed-interview cases, since August 1993 the Newark Office has "encouraged" missedinterview applicants to come in to reopen their cases. This apparently is done by communicating directly to applicants who show up at the Newark office and through bi-monthly meetings with volunteer agencies, plaintiffs' counsel and immigration attorneys. INS also alerts work authorization applicants if their cases have been administratively closed and tells them to contact the Newark Office to reopen their cases. See December 1, 1993 Mem. from James Puleo, Yates Decl. at ¶ 13 and Exh. 10; see also, "(C) (8) I-765's and Administratively Closed I-589's" Mem., Langlois Decl., Exh. 2.
INS assures the court that if any missed-interview applicants "come to the attention" of an INS office their cases are reopened. Since February 1994 the Newark Office says it also has not administratively closed any case where an alien failed to appear at an interview, see Langlois Decl., at ¶ 10, has improved its system for maintaining records on missedinterview cases, see Langlois Decl. Exh. 3, and has issued written instructions to employees, see Langlois Decl., Exh. 4.
More generally, INS says it has provided instructions to employees on implementing the injunction, see Yates Decl., Exh. 6, 9, 11, 16; Langlois Decl., Exh. 4, and has provided notices to class members in compliance with the terms of the injunction, see Yates Decl., Exh. 5 (no-record notice), Berryman Decl., Exh. 3 (supplemental instructions for work authorization applicants).
*5 Plaintiffs say that the experiences of class members, submitted through numerous affidavits, plainly show that INS' efforts are deficient, that INS has made most changes only in response to the constant pressure of plaintiffs' counsel, and that plaintiffs' counsel is not responsible for helping INS to comply with the injunction.

II A party may be held in civil contempt for failure to comply with an order of the court if (1) the order being enforced is clear and unambiguous, (2) proof of noncompliance is clear and convincing, and (3) the party has not been reasonably diligent and energetic in attempting to accomplish what was ordered. See EEOC v. Local 638 ... Local 28 of Sheet Metal Workers' International Ass'n, 753 F.2d 1172, 1178 (2d Cir.1985) (citations omitted).
INS does not contest that the court's August 23, 1993 preliminary injunction order is clear and unambiguous, and the court concludes that plaintiffs have presented enough examples of noncompliance to satisfy the clear and convincing standard.
The court does not believe, and plaintiffs do not suggest, that INS has acted in bad faith or has been wilfully disobedient. But "[i]t is not necessary to show that [INS] disobeyed the district court's orders wilfully" in order to find INS in contempt. Local 638, at 1178. The main question before the court with respect to the contempt motion is whether INS has been reasonably diligent in its compliance efforts.
In assessing reasonable diligence, the court looks at whether a defendant has "marshal[led] its own resources, ... assert[ed] its own authority, ... demand [ed] needed results from subordinate individuals and agencies acted in the defendant's actions[,] and whether the defendant has 'displayed an evident sense of nonurgency bordering on indifference.' " Schmitz v. St. Regis Paper Co., 758 F.Supp. 922, 927 (S.D.N.Y.1991) (quoting Aspira of New York, Inc. v. Board of Education of the City of New York, 423 F.Supp. 647, 654 (S.D.N.Y.1976)).
Contempt may be avoided if a party's good faith efforts result in substantial, though not complete, compliance. See Aspira, at 649; Langston v. Johnston, 928 F.2d 1206, 1220 (1st Cir.1991); Balla v. Idaho State Bd. of Corrections, 869 F.2d 461, 466 (9th Cir.1989).
Upon review of the numerous affidavits and exhibits submitted by plaintiffs and INS, the court concludes that INS' efforts to comply with the preliminary injunction order, while not complete, are sufficient to escape a contempt order. Some of these efforts were not communicated to plaintiffs until after plaintiffs filed this motion. Moreover, there is much to be done to improve compliance. But the court is reluctant to impose the harsh remedy of contempt in the face of INS' efforts to date.

The court concludes that a contempt order and monetary sanctions are not appropriate at this point.
III An order of contempt is not a prerequisite to further equitable relief. "Ensuring compliance with a prior order is an equitable goal which a court is empowered to pursue even absent a finding of contempt." Berger v. Heckler, 771 F.2d 1556, 1569 (2d Cir.1985); see also, Dunn v. New York State Dep't of Labor, 1994 WL 48799, at *3 (S.D.N.Y.1994).
*6 Plaintiffs seek appointment of a special master. Under Fed.R.Civ.P. 53 the court has the authority to appoint a "special master" in any pending action. But appointment of a special master should be the exception, not the rule, and in non-jury actions Rule 53(b) provides that "a reference shall be made only upon a showing that some exceptional condition requires it." Id. The court concludes that plaintiffs have not established that such an "exceptional condition" exists at this stage in the litigation.
Noncompliance with a court order may be sufficient grounds for appointment of a special master. See New York State Ass'n for Retarded Children v. Carey, 706 F.2d 956 (2d Cir.1983), cert. denied, 464 U.S. 915 (defendants' noncompliance with consent judgment warranted a special master). Moreover, the complicated task of monitoring compliance is made more difficult in this case by INS' failure to timely and regularly supply plaintiffs with evidence of its efforts.
But the court concludes that INS' substantial efforts thus far and the burdens, financial and otherwise, that such an appointment would impose on INS at this early stage of the litigation, militate against appointing a special master. The court retains the discretion to revisit this issue if, at a later stage, plaintiffs are able to establish that INS' compliance efforts have not improved.
IV As discussed earlier, the court has the power to grant further equitable relief to plaintiffs to ensure compliance with the letter and spirit of the preliminary injunction despite the court's decision not to hold INS in contempt. See Berger, at 1569 (2d Cir.1985); Dunn at *3. Plaintiffs have demonstrated the following continuing problems with INS' implementation of the injunction: (1) INS has not adequately instructed its employees on procedures for compliance; (2) INS has not adequately notified class members of procedures available to obtain relief; (3) INS needs a consistent and clear procedure for resolving individual cases of noncompliance; and (4)

INS has failed to take proper account of those class members who, though represented by counsel in this class action, are unrepresented in their individual asylum and work authorization applications.
The court concludes that, despite INS' efforts to comply with the terms of the preliminary injunction, the court should supplement its preliminary injunction order with further directions. Specifically, INS shall, within 30 days of the date of this order:
(1) Revise its "no-record" notices to include (a) the date an applicant's work authorization request was received; (b) a full explanation of the rights of norecord class members under the terms of the injunction; (c) the specific requirements for submitting new asylum applications; (d) how and where to request interim work authorization; and (e) the names, phone numbers and addresses of an INS contact person and plaintiffs' counsel.
(2) Revise its "missed interview" notices to include (a) an explanation of an applicant's right to reopen her case if she never received notice of the interview despite having provided INS with the correct address; (b) the procedure for reopening such cases; and (c) the names, addresses and phone numbers of an INS contact and plaintiffs' counsel.
*7 (3) Issue written instructions to all INS employees involved in implementing the court's orders setting forth the proper procedures for handling class members' applications, including but not limited to: (a) a description of the computer and paper files to be searched at each INS office when an application does not appear in RAPS, including the files of the Executive Office of Immigration Appeals and other district offices; and (b) procedures for logging in asylum and work authorization requests and complying with time frames and other directions set forth in the court's orders.
(4) Provide the Magistrate Judge assigned to this case and plaintiffs' counsel with copies of all INS memoranda, instructions, and other documents relating to INS' implementation of the court's orders.
(5) Provide the Magistrate Judge and plaintiffs' counsel with monthly reports setting forth sufficient data to assess compliance progress.
The court also directs INS to reimburse plaintiffs for reasonable attorneys' fees and costs incurred in bringing this motion to secure INS' compliance with the preliminary injunction order. See, e.g., Harrison Baking v. Bakery & Confectionery Workers, Local

No. 3, 777 F.Supp. 306, 311 (S.D.N.Y.1991) ("Even where contempt is not appropriate courts have awarded the expense incurred ... to secure compliance"); Littlejohn v. BIC Corp., 697 F.Supp. 192, 194 (E.D.Pa.1988).
As a final matter, the court addresses the question of whether the class certified by the court includes individuals whose asylum applications are before the Executive Office for Immigration Review ("Executive Office") because they are in deportation proceedings.
According to INS, asylum applications pending before an Immigration Judge or the Board of Immigration Appeals are not reflected in INS' RAPS system because they were filed with the Executive Office. INS says that because the Executive Office is an agency separate and distinct from INS, 8 C.F.R. § 3.1, these individuals are not class members and as such their work authorization requests do not fall within the terms of the court's order.
But the court certified as the "no-record" class "[a]ll persons applying for work authorization based on a pending application for political asylum whose ... renewal work authorization requests are denied because INS cannot locate their records," and by using that language the court intended to include those individuals who filed their asylum applications in immigration court. In order to avoid any further confusion, the court amends its class certification to read as follows:
All persons applying for work authorization based on a pending application for political asylum-whether that application is pending before INS or the Executive Office of Immigration Review-whose 1) renewal work authorization requests are denied because INS cannot locate their records, 2) initial work request is not adjudicated within 90 days because they fail or failed to appear at an interview of which they had no notice, or 3) work authorization request is denied and who receive inadequate notice of the reasons for the denial.
V *8 Plaintiffs' motion for an order of contempt, monetary sanctions, and appointment of a special master is denied. Plaintiffs' motion for further injunctive relief is granted to the extent stated above.
So Ordered.
Not Reported in F.Supp., 1995 WL 151775 (E.D.N.Y.)
END OF DOCUMENT

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ------------------------ ------------

ROBERT HILTON and LOUIS VASQUEZ, on behalf of themselves and all others similarly situated,

Plaintiffs,

vs

9:05-CV-1038

LESTER N. WRIGHT, M.D., M.P.H., Associate Commissioner/Chief Medical Officer, for the New York State Department of Correctional Services; and NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES,
Defendants.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

APPEARANCES:

OF COUNSEL:

KOOB & MAGOOLAGHAN Attorneys for Plaintiffs 221 Devoe Avenue Yonkers, New York 10705

ELIZABETH L. KOOB, ESQ. JOAN MAGOOLAGHAN, ESQ.

HON. ANDREW M. CUOMO Attorney General of the
State of New York Attorney for Defendants Department of Law The Capitol Albany, New York 12224

BELINDA A. WAGNER, ESQ. Asst. Attorney General

DAVID N. HURD United States District Judge

O R D E R

By amended complaint dated September 2, 2005, plaintiffs allege that defendants

violated the Eighth and Fourteenth Amendments, the ADA, and/or Section 504 by requiring

all prisoners with a past history of drug and/or alcohol use and/or abuse to participate in

facility based substance abuse counseling programs known as ASAT and RSAT, as a condition of receiving antiviral therapy.
By Memorandum-Decision filed February 27, 2006, the plaintiff class was certified pursuant to Fed. R. Civ. P. 23(b)(1) and 23(b)(2). (235 F.R.D. 40)
On July 19, 2007, the parties entered into an Interim Settlement Agreement which resolves the injunctive and equitable claims in this action. The Interim Settlement Agreement provided for notification of the elimination of the ASAT requirement and of the terms of the agreement, to every DOCS' inmate who tested positive for Hepatitis C.
On July 19, 2007, the parties entered into a "Stipulation Regarding Notice to the Plaintiff Class and Scheduling of Fairness Hearing" that: (a) scheduled a hearing for December 12, 2007, to determine whether the Agreement would be approved; and (b) directed that a Notice to the Class of the settlement, as well as copies of the Agreement, be distributed to each class member. The Stipulation was “So Ordered” by this Court on July 25, 2007.
Potential class members were provided an opportunity to file objections with respect to the Interim Settlement Agreement and approximately 53 objections or other comments were received.
On October 2, 2007, a fairness hearing was scheduled for December 14, 2007. On November 7, 2007, the court extended the time for the submission of written objections, and set November 30, 2007, as the deadline upon which the parties were to submit their responses and objections to the Interim Settlement Agreement.
In submissions filed on November 30, 2007, counsel for the parties asked to "So Order" the July 19, 2007 Interim Settlement Agreement.
- 2 -

Upon review of the papers submitted in this matter, and all papers filed in this action, it is
ORDERED that 1. The Interim Settlement Agreement executed by the parties in July 2007, is hereby approved as a final settlement of all claims in the action for equitable and injunctive relief; 2. DOCS shall reevaluate any prisoner who was denied treatment for Hepatitis C because of the ASAT requirement within sixty (60) days of the earlier of the following events: (a) a prisoner is identified by DOCS as an individual who was previously denied Hepatitis C treatment because of the ASAT requirement; or (b) a prisoner requests reevaluation, personally or through class counsel, and it is confirmed that the prisoner at the last evaluation had previously been denied treatment because of the ASAT requirement; 3. Every two weeks commencing January 21, 2008, DOCS shall in writing, report to plaintiff’s counsel: (a) The names of each proposed class member whose medical chart has been reviewed; (b) DOCS' conclusion as to whether the individuals named are within the class; and (c) the basis upon which DOCS' concludes that any person named on the Amended Masterchart is not a member of the class. This requirement shall continue until such time as the medical record of each individual named in the Amended Masterchart has been reviewed. The reviews shall be completed no later than March 31, 2008. In the event DOCS’ determines that a person named on the Amended Masterchart is a member of the class, then DOCS’ shall effectuate a reevaluation of that class member’s Hepatitis C treatment needs within sixty (60) days of that determination; and
- 3 -

4. The application of the plaintiff class for permission to move to amend their complaint to assert a claim for damages is DENIED.
IT IS SO ORDERED. Dated: January 2, 2008
Utica, New York.
- 4 -

 
 Case 9:05-cv-01038-DNH-DEP Document 124 Filed 04/20/12 Page 1 of 1 UNITED STATES COURT OF APPEALS
MANDATEFOR THE SECOND CIRCUIT ______________________________________________

At a Stated Term of the United States Court of Appeals for the Second Circuit, held at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 7th day of March, two thousand twelve.

Before:

RALPH K. WINTER,

ROSEMARY S. POOLER,

PETER W. HALL,

Circuit Judges.

_________________________________________

Robert Hilton, on behalf of himself

and all others similarly situated.,

Plaintiff-Appellant,

Louis Vasquez,

JUDGMENT Docket No.: 10-135 (Lead)
10-2245 (Con.)

Plaintiff,

v.

Lester N.Wright, M.D., M.P.H., Associate Commissionser, Chief Medical Officer for the New York State Department of Correctional Services and New York State Department of Correctional Services,

Defendants-Appellees.

__________________________________________

The appeal in the above captioned case from an order of the United States District Court for the Northern District of New York was argued on the district court's record and the parties' briefs. Upon consideration thereof,

IT IS HEREBY ORDERED, ADJUDGED and DECREED that the order of the district court is VACATED in part, and the case is REMANDED, in accordance with the opinion of this court.

For The Court,

Catherine O’Hagan Wolfe, Clerk of Court

MANDATE ISSUED ON 04/20/2012

Case 9:05-cv-01038-DNH-DEP Document 124-1 Filed 04/20/12 Page 1 of 17

IO-135-cv (l). 1O-2245-cv (Con) Hilton v. Wright
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT

August Term, 20 II

(Argued: March 10, 20 II

Decided: March 9, 2012)

Docket Nos. 10-135-cv(L), 10-2245-cv (Con)

ROBERT HILTON, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, Plaintiff-Appellanl,
LOUIS VASQUEZ, Plaintiff,
-V.-
LESTER N. WRIGHT, M.D., M.P.H., ASSOCIATE COMMISSIONER, CHIEF MEDICAL OFFICER FOR THE NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES AND NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES,
Defendants-Appellees.

Before:

WINTER, POOLER, and HALL, Circuit Judges.

Plaintiff-Appellant Robert Hilton appeals from the judgment ofthe United States District Court for the Northern District of New York (Hurd, 1.), dismissing his complaint against Dr.

Case 9:05-cv-01038-DNH-DEP Document 124-1 Filed 04/20/12 Page 2 of 17
Lester N. Wright and the New York Department of Correctional Services after granting the defendants' motion for summary judgment on Hilton's individual claims for damages arising from asserted violations of his rights under the Eighth Amendment of the United States Constitution, the Americans with Disabilities Act, and the Rehabilitation Act. Hilton also appeals from that portion of a separate order of the district court denying his application, on behalf of a class, for the award of certain costs incurred by his counsel in connection with monitoring a settlement between the class and the defendants. Because the district court did not adequately explain why it granted the defendants' motion for summary judgment on Hilt(;m's claims for damages, we vacate the judgment and remand the case for the district court to address more fully the defendants' motion. Additionally, because the district court misinterpreted the parties' settlement agreement with respect to the recovery of reasonable costs, we vacate that part of its order denying Hilton's application for reimbursement of out-of-pocket expenses and remand the issue to the district court for it to determine in its discretion whether to grant, fully or partially, Hilton's application for such costs.
VACATED AND REMANDED.
ELIZABETH L. KOOB, Koob & Magoolaghan, Yonkers, NY,jor Plaintif[Appellant. OWEN DEMUTH, Assistant Solicitor General, ojcounsel,jor Eric T. Schneiderman, Attorney General of the State of New York, Barbara D. Underwood, Solicitor General, Andrea Oser, Deputy Solicitor General, Albany, NY,jor Defendants-Appellees.

Case 9:05-cv-01038-DNH-DEP Document 124-1 Filed 04/20/12 Page 3 of 17
Per Curiam: Plaintiff-Appellant Robert Hilton appeals from the judgment of the United States District
Court for the Northern District of New York (Hurd, J.), dismissing his complaint against Dr. Lester N. Wright and the New York Department of Correctional Services after granting the defendants' motion for summary judgment on Hilton's individual claims for damages arising from asserted violations of his rights under the Eighth Amendment of the United States Constitution, the Americans with Disabilities Act, and the Rehabilitation Act. Hilton also appeals from that portion of a separate order of the district court denying his application, on behalf of a class, for the award of certain costs incurred by his counsel in connection with monitoring a settlement between the class and the defendants. Because the district court did not adequately explain why it granted the defendants' motion for summary judgment on Hilton's claims for damages, we vacate the judgment and remand the case for the district court to address more fully the defendants' motion. Additionally, because the district court misinterpreted the parties' settlement agreement with respect to the recovery of reasonable costs, we vacate that part of its order denying Hilton's application for reimbursement of out-of-pocket expenses and remand the issue to the district court for it to determine in its discretion whether to grant, fully or partially, Hilton's application for such costs.
Background Plaintiff-Appellant Robert Hilton, a former state prisoner, is infected with the Hepatitis C virus ("HCV"), a slowly progressive but potentially fatal disease affecting the liver. DefendantAppellee New York State Department of Correctional Services ("DOCS") was aware of Hilton's condition when he was placed in its custody in April 2003. Hilton served about a year in prison
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but did not receive treatment for his condition allegedly because DOCS determined, pursuant to its guidelines then in effect, that Hilton's period of incarceration was not long enough to allow for proper evaluation and treatment. Shortly after Hilton was released, he was convicted of a new crime and returned to DOCS in August 2004.
In May 2005, after a lengthy screening process, certain members of the DOeS medical staff recommended that he be treated with antiviral drugs to combat his HeV. Hilton was not allowed to receive such treatment, however, without the express authorization of DefendantAppellee Dr. Lester Wright, Chief Medical Officer and Assistant Commissioner of DOeS. Wright refused to allow treatment because he determined that Hilton was ineligible under existing DOCS guidelines-guidelines which he himself had promulgated. Specifically, because Hilton had admitted to using drugs in the past,! his HeV antiviral treatment was conditioned on his completion of or enrollment in one of two select DOeS substance abuse programs ("Program Requirement,,).2 After Hilton was denied treatment, he sought to enroll in one of the programs, but he soon learned that he was ineligible because, as gauged by the earliest date of possible release, he was not going to be in prison long enough to complete that program. Around that time, Hilton complained to members of the prison medical staff about symptoms related to his Hev. The staff forwarded this information to Wright, noting that Hilton was again requesting antiviral treatment. Wright asked for Hilton's medical records and, after studying those related
I Hilton admitted in 1993 to having used marijuana and cocaine as a teenager. Periodic drug tests since 1993 have shown him to be drug free. 2 These programs often had limited space available for new enrollees.
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to prior HCY treatment at Bellevue Hospital in New York City, concluded that Hilton was a "non-responder" who would not benefit from antiviral treatment.
On August 17, 2005, a little more than three months after Hilton's original request for treatment was denied, Hilton filed this lawsuit against Wright and DOCS and moved for a temporary restraining order that would require Wright to authorize antiviral treatment. Shortly thereafter, Wright stipulated that he would authorize treatment for Hilton.3
On September 2, 2005, Hilton amended his complaint to join another inmate as a plaintiff and to assert claims on behalf of all similarly situated prisoners in the custody of DOCS. The complaint asserted three causes of action. First, under 42 U.S.C § 1983 and the Eighth and Fourteenth Amendments of the Constitution, it sought damages and equitable relief based on the defendants' asserted deliberate indifference to the plaintiffs' serious medical needs. The complaint alleged that the policy conditioning HCY antiviral treatment for former alcohol and drug users on their participation in the Program was without medical justification. The requirement's true aim, the complaint asserted, was to limit the number of inmates receiving such treatment and, thereby, save money. The complaint also asserted that DOCS had an unusually long HCY screening process in place for the same reason.4 The second and third causes of action sought damages and equitable relief based on asserted violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132, and the Rehabilitation Act, 29
3 Hilton began receiving treatment immediately after Wright's stipulation and continued until September 2006, when his treatment was officially deemed a "failure." Subsequent to his release, Hilton again tried treatment, but without success. 4 On appeal, Hilton does complain about the length of his screening process, but does not appear to argue that it amounted to cruel and unusual punishment under the Eighth Amendment.
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u.S.C. § 705. They alleged that the defendants regarded the plaintiffs as disabled on the basis of their former drug or alcohol use, and discriminated against them through the Program Requirement.
The district court certified the class with respect to the plaintiffs' claims for injunctive relief in February 2006, and the parties began settlement discussions. In July 2007, they reached an interim settlement agreement, which became final in January 2008 ("Settlement Agreement"). The Settlement Agreement resolved all of the class's injunctive and equitable claims. It permanently eliminated the Program Requirement and provided steps to identify and treat those prisoners that had been previously denied medication because of their failure to participate in the Program.S The Settlement Agreement also called for payment to class counsel of fees for attorney and paralegal time used monitoring the Agreement's implementation for a two-year period. The award of those fees was capped at $20,000, subject to discretionary upward adjustment by the district court.
One method of such monitoring was the distribution of a questionnaire to affected prisoners. Hilton's lawyers agreed to collect and analyze the questionnaires and share the results with DOCS. This information was intended to give DOCS a definitive class list and a mechanism to monitor its own compliance with the Settlement Agreement. Because DOCS did not know which inmates had been denied treatment pursuant to the Program Requirement, the questionnaire was mailed to all HCV infected inmates and served as the class members' only form of notification about the Settlement Agreement. The expanded number of inmate responses
S Although DOCS had voluntarily suspended the Program Requirement shortly after the initiation of this suit, the district court ruled that the prospect of reinstatement did not moot the case.
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to the questionnaire greatly increased the administrative burden on Hilton's lawyers, who, according to Hilton, became essentially responsible for coordinating relief under the Settlement Agreement. They hired an assistant to enter data and manage correspondence with the inmates. This latter function also required retaining translation services and engineering several massmailings. Eventually Hilton's lawyers sent DOCS a list of around 700 potential class members, and DOCS, through its own records, was able to reduce the list to 302.6
The Settlement Agreement left Hilton and the other named plaintiff with claims against Wright and DOCS for damages only. The defendants moved for summary judgement on these claims. In a two-page order the district court granted the motion. As all of the plaintiffs' claims had either settled or been disposed of by summary judgment, the district court entered judgment dismissing Hilton's complaint. Hilton appealed and his co-plaintiff settled.
While Hilton's appeal was pending, his attorneys moved the district court for fees and costs incurred monitoring the Settlement Agreement. They applied for the maximum amount of attorneys' fees-$20,000-and also $17,000 in additional out-of-pocket expenses mostly incurred paying the hired assistant to administer the questionnaires and compile the original class list. The district court granted the full amount of documented attorneys' fees-$23,152-but denied the out-of-pocket expenses.
Discussion Section 1983 Claims Against Dr. Wright
6 Ultimately DOCS determined that fifty-eight inmates were true class members-i.e., prisoners who, like Hilton, had HCY treatment denied or delayed because ofthe Program Requirement.
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Hilton appeals the district court's decision to grant summary judgment against him on his Section 1983 claim for damages against Dr. Wright. The district court disposed of that claim in one paragraph. It concluded that there was not a genuine issue of material fact about whether Dr. Wright's conduct violated the Eighth Amendment because:
Plaintiffs Robert Hilton and Louis Vasquez [not a party to this appeal] had three and four months [sic] delay respectively for treatment of their Hepatitis C because of the requirement to enroll in an ASAT or RSAT program. The plaintiffs' submitted records fail to establish that either received a serious injury because of the delays. Additionally, the district court held that even if there were a genuine issue of material fact about whether Hilton's constitutional rights were violated, Dr. Wright nevertheless would be entitled to qualified immunity. Although we review grants of summary judgment de novo, the opinion of the district court is often helpful in guiding our examination of the record. In this case, the extreme brevity of the district court's opinion with respect to Hilton's Section 1983 claim denies us this usual assistance. Indeed, the district court's determination that Dr. Wright enjoys qualified immunity from Hilton's claim is entirely conclusory and essentially requires this court to consider the issue in the first instance. Under these circumstances, we elect to vacate the district court's grant of summary judgement against Hilton on his Eighth Amendment claim and remand the issue for further explanation as to one or both of the following questions: (1) why, given the evidence on the record, there is no genuine issue of material fact about whether Dr. Wright is entitled to qualified and immunity, and (2) why there is no genuine issue of material fact about whether the doctor's conduct violated the Eighth Amendment. When clarifying these aspects of its decision, the district court should bear in mind the following. In Pearson v. Callahan, 555 U.S. 223, 236 (2009), the Supreme Court revised the
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traditional two-step qualified immunity analysis set out in Saucier v. Katz, 533 U.S. 194 (200 I). Saucier had instructed courts considering a defendant's qualified immunity from suit to first determine whether the plaintiff had a viable claim that one or more of his or her constitutional rights had been violated. See id. at 20 I. If the court was satisfied that the plainti ff had indeed alleged-or, in the context of a motion for summary judgement, shown a genuine issue of material fact regarding-a constitutional violation, then the next step under Saucier was to determine whether the conduct alleged violated a clearly established constitutional right about which an objectively reasonable person would have known. See id.; Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). This was to ensure that government officials are not held liable for conduct that, prior to the case at hand, was generally thought to be acceptable. Pearson freed courts from the mandatory nature of Saucier's two-step process and allowed them to do the second, and often dispositive, step first. 555 U.S. at 236-37. Henceforth courts may avoid reaching difficult questions of constitutional law where there is no question that an objectively reasonable government official would not have known his conduct was in violation of the Constitution, that is, where the right asserted by the plaintiff is not clearly established.
As it stands now, "judges of the district court ... should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand." Id. at 236. Thus, we do not pass on which step of the qualified immunity analysis the district court should first undertake. It may begin its analysis by considering whether conditioning medical treatment for a progressive disease on participation in a prison program violates a clearly established right that
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an objectively reasonable person would have known about, or it may first address whether such a practice in fact violates the Eighth Amendment.
If the district court decides, or is eventually compelled, to consider the underlying constitutionality of Dr. Wright's conduct, we note there may well be genuine issues of material fact. The Supreme Court has interpreted the Eighth Amendment as guaranteeing a prisoner medical treatment for serious medical needs. Estelle v. Gamble, 429 U.S. 97, 103 (1976). Deliberate indifference by the government to such medical needs thus violates the Constitution. See id. at 104-05. No party disputes that Hilton's medical needs were serious, but the two sides disagree about whether Dr. Wright's response to these needs (or lack thereof) rose to the level of deliberate indifference. To establish deliberate indifference, Hilton must show that Dr. Wright harbored the requisite mental state while he denied Hilton treatment. He must show that Dr. Wright knew of and disregarded an excessive risk to Hilton's safety; that he not only was aware of facts from which a reasonable person would conclude Hilton faced an excessive risk, but that he personally actually drew that inference. Farmer v. Brennan, 511 U.S. 825, 837-38 (1994). This mental state is akin to subjective recklessness; it need not be shown that Dr. Wright intended for Hilton to suffer harm, but Dr. Wright's actions in this regard must have been more than merely negligent. Salahuddin v. Goord, 467 F.3d 263, 280 (2d Cir. 2006). Relevant to this inquiry are questions of fact such as: what did Dr. Wright know about how long Hilton's treatment had been delayed and what did Dr. Wright know about the likely medical consequences of such a delay?
Hilton points to evidence in the record that might contradict the district court's implicit holding that there were no genuine issues of material fact about (1) how long Hilton was denied
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treatment (three months) or (2) how seriously Hilton was injured as a result of such delay (not seriously). These facts, while not necessarily material in and of themselves, may be material in the district court's overall analysis because they bear on what Dr. Wright knew about the health risks facing Hilton.
First, it is not clear from the record that there is no genuine issue of fact about how long Hilton was denied treatment by DOCS. Hilton points to evidence that DOCS was aware that he had HCY when he was incarcerated in 2003 and 2004. Although DOCS did not rely on the Program Requirement as a justification for denying Hilton treatment during this first period of incarceration, the fact-if proved-that Hilton was denied treatment at that time may be relevant to the question of what Dr. Wright knew about Hilton's conditions and medical history when he denied Hilton treatment in the summer of2005.
Second, and relatedly, Hilton argues that there is evidence in the record indicating that a three-month delay in treatment for HCY could be seriously harmful for a person like him whose infection was advanced and, for the most part, previously untreated. Again, if Hilton could establish that the delay in treatment caused him harm, this fact might bear on Dr. Wright's knowledge of the risks to which he was subjecting Hilton.
Finally, we note with respect to Hilton's experience during his first period of incarceration, it appears from Hilton's brief that he is now alleging that his Eighth Amendment rights were violated not only by the Program Requirement, but also by DOCS's policy of denying HCY treatment to certain prisoners whose expected prison terms are less than fifteen months. Hilton did not raise this issue in his complaint for he only learned for the first time through the defendants' Statement of Material Facts that the fifteen-month minimum was
II

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DOCS's basis for denying treatment in 2003 and 2004. At that point, Hilton argued the claim to the district court as part of his opposition to the defendants' motion for summary judgment. When the district court is briefed on an issue that can be understood as implicit in the larger challenge, the opposing party does not argue waiver, and the district court considers the issue, then that issue is not waived. See Dickerson v. Napolitano, 604 F.3d 732, 741 (2d Cir. 2010). We have no indication from the district court's decision whether it regarded the issue as waived, and we decline to make such a determination on appeal. On remand, the district court is instructed to consider whether Hilton's Eighth Amendment argument based on DOCS's initial denial of treatment in 2003 and 2004 has been waived, and if it has not been waived, then to decide it. ADA and Rehabilitation Act Claims Against DOCS and Dr. Wright
Hilton also challenges the district court's dismissal of his claims against DOCS and Dr. Wright in his official capacity under the ADA and Rehabilitation Act.' Defendants argue that the dismissal should be affirmed because Hilton has failed to produce any evidence that Dr. Wright or DOCS regarded him personally as being substantially limited in a major life activity. Until January 1,2009, when amendments to 42 U.S.C § 12102 went into effect, see ADA Amendments Act of2008, Pub. L. 110-325,§§ 4(a), 8, 122 Stat. 3555, (2008), the defendants would have been correct, as Hilton would not have been able to demonstrate that he was "disabled" within the meaning of the ADA. Prior to that point, a plaintiff, such as Hilton, seeking to avail himself of the "regarded as" prong of the definition of "disability" needed to
, When brought together, claims under these two statutes may be treated identically. Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003).
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show that he was perceived as both "impaired" and "substantially limited in one or more major life activity." See Flasza v. TNT Holland Motor Express, Inc., 159 F.R.D. 672,678 (N.D. Ill. 1994) ("TNT ... must perceive that Flasza has a physical defect and that the defect substantially limits one or more ofFlasza's major life activities."); accord Thompson v. Davis, 295 F.3d 890, 896 (9th Cir. 2002); Katz v. City Metal Co., 87 F.3d 26,32 (1st Cir. 1996). Because we determine disability on an "individualized, case-by-case basis," Reeves v. Johnson Controls World Services, Inc., 140 F.3d 144, 151 (2d Cir. 1998), under the old regime, Hilton could survive summary judgment on his ADA claim only if he could raise a genuine issue of material fact about whether Dr. Wright and/or DOCS regarded him personally as being substantially limited in a major life activity. The record is devoid of any such evidence.
In 2008, however, Congress passed the ADA Amendments Act, which substantially reworked the language of Section 12102. Among other things, what was formerly subsection (2)(C) became subsection (I)(C) and was amended to include the following parenthetical: "as described in in paragraph (3)." Compare 42 U.S.C. § 12102 (2006) with ADA Amendments Act § 4(a). Paragraph (3), in turn, was completely new and reads in relevant part:
(3) Regarded as having such an impairment For purposes of paragraph (l )(C):
(A) An individual meets the requirement of "being regarded as having such an impairment" if the individual establishes that he or she has been subjected to an action prohibited under this Act because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity. Id. (emphasis added). Lest there be any confusion about the amendment's effect on subsection (I )(C), the Committee Report states:
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The Committee therefore restores Congress's original intent by making clear that an individual meets the requirement of "being regarded as having such an impairment" if the individual shows that an action (e.g. disqualification from a job, program, or service) was taken because of an actual or perceived impairment, whether or not that impairment actually limits or is believed to limit a major life activity.
H.R. Rep. No. 110-730, pt. 1, at 14 (2008) (emphasis added).
Although both parties thought that Hilton needed to demonstrate that the defendants regarded him as being substantially limited in a major life activity, it is clear that he was only required to raise a genuine issue of material fact about whether Dr. Wright and/or DOCS
regarded him as having a mental or physical impairment. Hilton was not required to present
evidence of how or to what degree they believed the impairment affected him. Regulations promulgated by the Department of Justice ("DOJ") continue to include "drug
addiction" among the conditions qualifying as a "physical or mental impairment," 28 C.F.R.
§ 35.1 04( l)(ii) (2011), and there is no dispute that the defendants regarded Hilton as a former
drug user. There thus seems to be a genuine issue of material fact as to whether the defendants regarded Hilton as having a "drug addition," which, to the extent that the DOl's definition is persuasive,8 would constitute a physical or mental impairment for the purposes of Section 12102.
8 We note that the Department of Justice regulations have not tracked the ADA Amendments Act of2008, and continue to define disability as Section 12102 did before the Amendments. See 28 C.F.R. § 35.104. That is, there is nothing in the regulations analogous to Section 12102(3) indicating that a substantial limitation on major life activities need not be perceived or believed for a "disability" to be established under the "regarded as" prong. The regulation does, however, define "is regarded as" as reaching situations where the victim "has none of the impairments defined in paragraph (I) [including drug addiction] but is treated by a public entity as having such an impairment." 28 C.F.R. § 35.1 04(4)(iii). On remand, the district court should resolve, with the benefit of further briefing, what effect, ifany, this regulation should have on its interpretation of Section 121 02( I )(C).
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Obviously, none of this would matter if Hilton's suit for damages is precluded by the Eleventh Amendment as the district court appears to have held. The district court, however, was not express in its reasoning and did not even refer directly to the Constitution. Given that Hilton may have presented an otherwise triable issue of fact regarding his ADA claim, we are not inclined to affinn summary judgment upon so thin a reed. Instead, we remand Hilton's ADA claim for clarification and for expansion of the district court's Eleventh Amendment analysis. If the district court determines that Dr. Wright and DOCS are not protected by the Eleventh Amendment, the court may move on to consider whether drug addition constitutes a "physical or
mental impainnent," see supra note 8, and, if so, whether there are genuine issues of material fact with respect to the other elements of a Title II ADA claim, cf 42 U.S.c. § 12132.
Award of Attorney's Costs Under the Settlement Agreement Finally, Hilton argues that pursuant to 42 U.S.C. § 1988, and a number of cases
interpreting that statute, he is entitled to recover the reasonable expenses of the litigation. The defendants argue that the provisions of the Settlement Agreement displaced Section 1988 to the extent that it would otherwise apply.9 We agree, as a plain reading of the Settlement Agreement favors this interpretation. After providing for Hilton's lawyers' ("Class Counsel") full reimbursement for fees and costs up until the Agreement was signed, it states in relevant part:
9 Defendants also assert that Hilton's out-of-pocket expenses are unreasonable and pertain to work outside the scope of the Settlement Agreement. This argument is without merit. The Settlement Agreement expressly called for Hilton's lawyers to collect the questionnaires from potential class members, tabulate the infonnation collected, and share a summary of the infonnation with DOCS so that DOCS could ascertain a definitive class member list. Nearly all of Hilton's lawyers' out-of-pocket expenses were incurred complying with this provision of the Settlement Agreement.
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Class Counsel will further be paid at a rate of $160 an hour for attorney time and $80 an hour for paralegal time for hours incurred during the two year monitoring period described herein. Fees for the herein described monitoring period will capped [sic] at $20,000. Class Counsel reserves the right to seek Court intervention to enlarge this limit upon a showing that such enlargement is reasonable to enforce the terms of this Agreement. Although Hilton argues that the parties contracted only as to "fees" and not "costs," the language ofthe Agreement shows an intent to cap all reimbursement at $20,000 subject to the district court's discretion to enlarge the limit. The Section 1988 jurisprudence relied upon by Hilton in his claim for out-of-pocket costs actually buttresses this interpretation of the Settlement Agreement. Under that statute, the term "Attorney's Fees" includes reasonable litigation
u.s. expenses. See, e.g., Football League v. Nat'l Football League, 887 F.2d 408, 416 (2d Cir.
1989); Reichman v. Bonsignore, Brignati & Mazzotta P.e., 818 F.2d 278, 283 (2d Cir. 1987). Moreover, there is no question that the Settlement Agreement covered paralegal fees. Hilton concedes that a substantial portion of the out-of-pocket costs was for paralegal work that, if billed at the Settlement Agreement's rate, would far exceed the $20,000 cap. Hilton's repackaging of the paralegal work as "out-of-pocket" at cost, rather than at the higher agreed upon paralegal rate, is insufficient to circumvent the terms of the Agreement.
Insofar as the district court seems to have interpreted the Agreement to affirmatively preclude recovery of such costs, we find no support for this position in the language of the Agreement. Thus, to the extent that out-of-pocket costs combined with attorney's fees exceeded the Agreement's $20,000 limit, the district court has discretion to raise the limit. As it does not appear that the court exercised this discretion, we remand for further consideration of the issue of Hilton's out-of-pocket expenses and instruct the district court to consider whether such costs should be awarded pursuant to paragraph six of the Settlement Agreement.
Conclusion 16

Case 9:05-cv-01038-DNH-DEP Document 124-1 Filed 04/20/12 Page 17 of 17 Accordingly, the judgment of the district court dismissing Hilton's complaint and that
portion of the district's court's order denying Hilton costs under the Settlement Agreement are VACATED and REMANDED for further consideration in light of this opinion.
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 Case 9:05-cv-01038-DNH-DEP Document 134 Filed 03/11/13 Page 1 of 43

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
ROBERT HILTON and LOUIS VASQUEZ, on behalf of themselves and all others similarly situated,
Plaintiffs,
-v-

9:05-CV-1038

LESTER N. WRIGHT, M.D., M.P.H., Associate Commissioner/Chief Medical Officer, for the New York State Department of Correctional Services; and NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES,1
Defendants.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
APPEARANCES:
KOOB & MAGOOLAGHAN Attorneys for Plaintiffs 221 Devoe Avenue Yonkers, NY 10705
HON. ERIC T. SCHNEIDERMAN Attorney General for the State of New York Attorney for Defendants The Capitol Albany, NY 12224
DAVID N. HURD United States District Judge

OF COUNSEL: ELIZABETH L. KOOB, ESQ. JOAN MAGOOLAGHAN, ESQ.
BELINDA A. WAGNER, ESQ. JAMES SEAMAN, ESQ. Ass't Attorneys General

1 The New York State Department of Correctional Services has since been renamed the New York State Department of Correctional Services and Community Supervision, and will be referred to as such.

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TABLE OF CONTENTS
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 3 -
BACKGROUND. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 3 Factual History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 3 The Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 3 The Hepatitis C Virus. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 4 DOCCS' Hepatitis C Primary Care Practice Guidelines. . . . . . . . . . . . . . . . - 5 Plaintiff's Medical History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 9 Procedural History. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 13 -
GENERAL STANDARDS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 16 Summary Judgment.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 16 Capacity of Claims against Dr. Wright. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 16 Sovereign Immunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 17 -
DISCUSSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 18 Section 1983 Claim: Dr. Wright. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 18 Capacity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 19 Merits of Eighth Amendment Claim.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 19 Serious Medical Condition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 20 Deliberate Indifference. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 22 July 2003 Denial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 24 May 2005 Denial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 28 Qualified Immunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 30 Americans with Disabilities Act Claim: Dr. Wright and DOCCS. . . . . . . . . . . . . . - 32 Capacity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 32 Merits of Title II Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 32 Sovereign Immunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 35 Rehabilitation Act Claim: Dr. Wright and DOCCS.. . . . . . . . . . . . . . . . . . . . . . . . - 37 Capacity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 37 Merits of Section 504 Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 38 Award of Fees and Costs.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 38 -
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . - 42 -
- 2 -

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MEMORANDUM-DECISION and ORDER I. INTRODUCTION
Plaintiff Robert Hilton ("Hilton" or "plaintiff")2 brought suit against defendant Lester N. Wright, M.D., M.P.H. ("Dr. Wright") and the New York State Department of Correctional Services and Community Supervision ("DOCCS") (collectively "defendants") pursuant to the Civil Rights Act, 42 U.S.C. § 1983; Title II of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12132 ("Title II")3; and Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 ("Section 504"), alleging that Dr. Wright was deliberately indifferent to his serious medical needs in violation of the Eighth Amendment to the Unites States Constitution, and that both Dr. Wright and DOCCS discriminated against him in violation of Title II and Section 504 by failing to treat his chronic Hepatitis C ("HCV"). Currently under consideration is defendants' motion for summary judgment. II. BACKGROUND
A. Factual History 1. The Parties Plaintiff is a 58 year old African-American male with HCV, genotype 1. He was first diagnosed with HCV in 1999 at Bellevue Hospital in New York City ("Bellevue"), where a liver biopsy revealed scarring and fibrosis and rated his liver disease as Stage 2 fibrosis, and
2 Louis Vasquez ("Vasquez") was also a named plaintiff but has since settled with defendants and is not a party to this appeal nor this decision.
3 The ADA is comprised of the following five Titles: Title I—Employment; Title II—Public entities (and public transportation); Title III—Public accommodations (and commercial facilities); Title IV— Telecommunications; and Title V—Miscellaneous provisions. Title II is at issue here.
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Grade 2 inflammation.4 According to plaintiff, he received HCV treatment at Bellevue in 1999 for almost one year. The record is unclear whether he completed the full course of treatment.5
Plaintiff entered DOCCS custody on April 14, 2003, and was released on April 29, 2004. He was incarcerated again from August 18, 2004, to May 1, 2007.6 He alleges defendants denied him HCV treatment since 2003 on the basis that he failed to complete an alcohol and substance abuse treatment ("ASAT") program. Plaintiff argues there is no medical basis for conditioning HCV treatment on enrollment in an ASAT program.
Dr. Wright is the Deputy Commissioner and Chief Medical Officer of DOCCS. As Chief Medical Officer, he is responsible for the development and implementation of medical policies and practices for inmates in DOCCS' custody. Dr. Wright must approve every request by a treating physician to have an inmate receive any medical treatment for HCV. Individual facility physicians do not have the authority to prescribe HCV treatment without Dr. Wright's approval.
2. The Hepatitis C Virus HCV is a blood-borne virus which affects the liver. It attacks, and if not treated, commonly destroys the liver. Liver damage progresses through a series of stages beginning
4 Fibrosis is scored from stage 0 (no fibrosis) to stage 4 (cirrhosis). Inflammation is scored from grade 0 (no inflammation) to grade 4 (extensive inflammation).
5 According to plaintiff's 2005 affidavit, he claimed he was unable to complete treatment because he became homeless. However, according to his 2008 deposition, he completed treatment and saw his doctor regularly, but his treatment was unsuccessful and was told to wait a year before trying again because of the side effects.
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with fibrosis, or scarring, and often ending in cirrhosis, or pervasive scarring and inflammation. Cirrhosis often leads to liver cancer.
As of 2002, the standard clinical treatment for HCV patients with genotype 1 was a forty-eight week course of medication combining two antiviral agents, Pegylated Interferon and Ribavirin ("combination therapy"). Like many diseases, the treatment for HCV has side effects. It can cause further damage to the liver, harm the kidneys, and affect platelets and red and white blood cells.7 Other side effects of combination therapy include headaches, soreness of muscles, sore joints, fatigue, hair loss, skin rash, depression, and suicidal feelings.
When successful, combination therapy can effectively cure HCV. If a patient's viral levels remain undetectable six months after the completion of HCV therapy, they are considered to have achieved a "sustained viral response" and are considered cured. A patient who at first responds positively with HCV treatment, but upon completion of the treatment, the viral load returns to its previous levels is considered to be a "relapser." Finally, a patient who never responds during treatment is considered to be "non-responder."
3. DOCCS' Hepatitis C Primary Care Practice Guidelines DOCCS develops and regularly updates clinical practice guidelines for various diseases in an effort to maintain consistency of care throughout the correctional setting and to stay current with scientific advances and community standards of treatment. DOCCS houses a large number of inmates who are infected with HCV and accordingly developed
7 A low platelet count increases the chances for serious bleeding in the event of an injury. A low red blood cell count can increase the likelihood of a heart attack or stroke due to insufficient delivery of oxygen to the heart or brain. A low white blood cell count can compromise the patient's ability to fight infections.
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guidelines relating to the primary care of inmates with HCV. The Hepatitis C Primary Care Practice Guideline was initially developed and approved on March 31, 1999, and was based upon information from many sources including national guidelines, consensus statements, and recommendations, along with peer-reviewed medical journals (the "Guidelines"). Specifically, Dr. Wright cites three governmental studies in support of the Guidelines: (1) the Centers for Disease Control and Prevention's ("CDC") "Recommendations for Prevention and Control of Hepatitis C Virus (HCV) Infection and HCV-Related Chronic Disease"; (2) the 1997 National Institutes of Health ("NIH") consensus statement on management of HCV; and (3) the CDC Prevention and Control of Infections with Hepatitis Viruses in Correctional Settings, 52 MMWR 1, 25 (2003). Wright Decl., Apr. 16, 2009, ¶¶ 9–10. According to defendants, the Guidelines have been modified consistent with the evolution of care and treatment for HCV. Dr. Wright, as Chief Medical Officer, was responsible for the approval and implementation of the guidelines. Integral to this case are the Guidelines that were in effect at the time of plaintiff's two relevant periods of incarceration: April 14, 2003 to April 29, 2004, and August 18, 2004, to May 1, 2007.8
Before an inmate can receive combination therapy, the treating facility physician must submit a request to Dr. Wright's office. The Guidelines set forth preconditions for approval of treatment. Two of those preconditions are at issue here. The first requirement relates to an inmate's anticipated term of incarceration. It provided:
Anticipated incarceration adequate to complete evaluation and treatment; 9 months of genotype 2 and 3, 15 months for genotype 1 or 4, from the time of referral (this includes the 12 month treatment course.). Inmates who will not predictably complete
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a course of treatment should receive a baseline evaluation and be referred for medical follow-up and treatment upon release. Wright Decl., Ex. A at 6, ¶ 13 ("Length of incarceration Requirement"). Defendants assert this criterion was developed based upon medical judgment that interrupted treatment was apt to be not only ineffective, but also dangerous, and was based on a NIH recommendation. The second precondition for HCV treatment required that any former drug or alcohol user complete a substance abuse program. That requirement stated: "No evidence of active substance abuse (drug and/or alcohol) during the past 6 months (check urine toxicology screen if drug use is suspected). Those who have a substance use history must successfully complete or be enrolled in an ASAT/RSAT program." Id. at 6, ¶ 11. That precondition was revised on July 20, 2004, to state: No evidence of active substance abuse (drug and/or alcohol) during the past 6 months. In order to be sure that this is applied uniformly throughout the system, if you have an inmate/patient who might otherwise qualify for Hepatitis C treatment except for a drug or alcohol-related incident in the past six months, please submit the Approval for Treatment" [sic] form as you would for anyone without such incident. The incident will be evaluated individually to determine what it consisted of and whether or not it results in temporary disqualification for treatment. Those who have a substance use history must successfully complete or be enrolled in an ASAT/RSAT [Alcohol Substance Abuse Treatment/Residential Substance Abuse Treatment] program. Id. at 23–24, ¶ 11 ("ASAT Requirement"). According to defendants, nearly all of DOCCS inmates with HCV contracted it through substance abuse. Because continued use of alcohol or other liver toxic substances greatly accelerates liver damage and may cause new infection in even those for whom HCV treatment was successful, defendants maintain that substance abuse treatment and abstinence from substance abuse are critical to the success of combination therapy as well as for the long-term success of HCV treatment. As a result, defendants contend it was
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medically prudent and reasonable to require that inmates who have had prior drug or alcohol involvement pursue a multi-dimensional and multi-disciplinary course of substance abuse treatment to ensure success in the HCV treatment regimen. Defendants assert the ASAT Requirement was supported by medical literature available at the time. As explained below, the ASAT Requirement, although encouraged for the benefit of the inmate, is no longer a prerequisite to receiving HCV treatment.
According to plaintiff, the ASAT Requirement did not comply with NIH standards. Instead, NIH standards recommended treatment for any patient with elevated alanine aminotransferase ("ALT"),9 portal or bridging fibrosis, or at least moderate degrees of inflammation. With respect to substance abuse, plaintiff asserts the NIH recommended that the treatment of patients who are drinking significant amounts of alcohol or who are actively using illicit drugs should be delayed until such habits are discontinued for at least six months. The reasoning behind delaying treatment is the risk of a toxic effect from the alcohol and drugs when taken with the combination therapy, and potential problems of non-compliance. Plaintiff also contends that by 2003, the NIH recommended treatment be commenced for all people testing positive for HCV, even those actively abusing alcohol or drugs, but not patients whose illness had advanced to compensated cirrhosis.
9 ALT and aspartate aminotransferase ("AST") are two liver enzymes. They are both proteins made by liver cells; ALT is only made by liver cells while AST is found in parts of the body other than the liver, including the heart, kidneys, muscles, and brain. When liver cells are damaged, ALT and AST leak out into the bloodstream and the levels of ALT and AST in the blood become higher than normal. A high ALT level often means there is some liver damage. A high AST level could indicate damage in many different parts of the body. ALT and AST levels do not tell you how much liver damage there is, or whether the liver is getting better or worse, and small changes are expected. Decrease in levels however are helpful to analyze the success of HCV treatment. See Understanding Lab Tests, United States Department of Veterans Affairs (Mar. 1, 2013), http://www.hepatitis.va.gov/patient/diagnosis/labtests-AST.asp.
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4. Plaintiff's Medical History Hilton was transferred to DOCCS custody April 14, 2003 from the New York City Department of Corrections ("NYCDOC"). On intake at Washington Correctional Facility, his health record noted his diagnosis of HCV and included the results of blood tests showing elevated ALT levels. Laboratory tests the following day confirmed his HCV infection and showed an elevated ALT. He was scheduled to meet with a doctor on May 19, 2003 to discuss his HCV status and other medical conditions (including hypertension, high cholesterol, depression, and diabetes). That appointment took place on May 30, 2003. At that time, Hilton indicated that he had been previously treated for HCV outside the correctional setting, and DOCCS scheduled follow-up labs. On July 21, 2003, it was noted that an estimate of Hilton's possible release date was needed. On July 23, 2003, a chart review was completed and it was noted that plaintiff's conditional release date was October 2004 but that he may get released early, and it was recommended he follow-up with HCV treatment outside of DOCCS. According to the Length of incarceration Requirement in the Guidelines, the anticipated incarceration for genotype 1 needed to be at least fifteen months for time to evaluate and treat HCV. Because Hilton did not have fifteen months remaining before his conditional release date of October 2004, he was denied HCV treatment (the "July 2003 denial"). A later blood test confirmed Hilton had genotype 1 of the virus. This was noted on his medical chart on August 27, 2003. He was released from DOCCS' custody on April 29, 2004. Plaintiff reentered DOCCS custody at Downstate Correctional Facility on August 18, 2004 for his final term of incarceration. Again, prior to this term, Hilton was confined under
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the custody of NYCDOC.10 Upon intake at Downstate, plaintiff's medical history was again reviewed, which contained NYCDOC records as well as DOCCS records from Hilton's earlier incarceration. These records showed Hilton's HCV genotype and persistent elevated ALT and AST levels. Despite these records, DOCCS initiated a new screening process for HCV treatment. According to defendants, Hilton reported during intake that he had abused alcohol.
Plaintiff was thereafter transferred to Altona Correctional Facility where additional HCV testing was conducted. Blood tests in October 2004 indicated a high viral load compared to his reference range, but his liver function tests and ALT and AST levels were within normal limits. Further tests were conducted on November 3, 2004 (reconfirming his HCV genotype of 1); January 5 and 26, 2005 (reconfirming abnormal liver test results, including high ALT and AST levels), and March 30, 2005 (borderline ALT level and high viral load). Pursuant to the Guidelines, one of the criteria for HCV treatment was elevated ALT. Plaintiff disputes that elevated ALT is even a requirement for HCV treatment in the medical community.
Defendants assert an additional concern in treating plaintiff's HCV was determining the extent to which he received prior HCV treatment and what kind of treatment it was. Plaintiff's medical records were requested from Bellevue on December 30, 2004, although plaintiff disputes that this was done. As of March 2, 2005, the records still had not been received from Bellevue.11 April 5, 2005 test results showed a high viral load and slightly elevated AST and ALT. On April 22, 2005, plaintiff had a consultation with a
10 In May 2004 while in the custody of NYCDOC, Hilton tested positive for HCV and blood tests showed elevated ALT and AST levels.
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gastroenterologist who recommended that DOCCS begin treating Hilton with combination therapy. The doctor noted the 1999 liver biopsy which showed fibrosis and inflammation. In his opinion, Hilton was an appropriate candidate for treatment.
On May 4, 2005, a mental health referral was made so that Hilton could get cleared to begin HCV treatment. The same day, the facility physician completed the Approval for Treatment form request, which indicated that ASAT was requested on March 2005 (due to plaintiff's admitted alcohol use), but had not yet begun. The facility physician also noted that plaintiff had been treated for HCV in 2002 but that the medical records relating to that treatment were spotty. Dr. Wright responded the same day approving combination therapy upon Hilton's enrollment in ASAT, and directed the physician to expedite his ASAT enrollment. On May 10, 2005 plaintiff was notified that his placement on an ASAT waiting list was not good enough and his HCV treatment was thus denied.
Plaintiff was thereafter transferred to Washington Correctional Facility on or about May 16, 2005. His medical chart was reviewed by Washington staff on June 8, 2005. Staff learned that plaintiff's HCV treatment had been denied because he was not enrolled in ASAT. Until he was enrolled, he could not be treated. There was further confusion at Washington about plaintiff's prior HCV treatment at Bellevue. Plaintiff's next lab results from June 22, 2005 showed elevated AST and ALT levels.
On July 14, 2005 Hilton complained of pain at night in the liver area, and again of severe pain in the liver area three to four times a week with nausea, vomiting, and weakness a few days later. On July 24, 2005 the facility physician submitted an Approval for Treatment form to Dr. Wright regarding plaintiff's HCV treatment. The physician indicated that plaintiff had six months of combination therapy in 2000 at home. The form also indicated that the
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ASAT Requirement was waived by guidance staff and that plaintiff did not have a substance abuse problem. The following day, Dr. Wright inquired about the degree of fibrosis on plaintiff's 1999 biopsy, his viral response to prior treatment, and whether DOCCS had his prior medical records. The next day the facility nurse administrator responded that the Bellevue records were incomplete and difficult to decipher. The Bellevue records included a reference to HCV treatment started on January 3, 2000, and an August 2000 note indicated Hilton finished six months of combination therapy. However, Bellevue records from 2002 indicated his treatment continued until February 2002.
Dr. Wright replied the following day, on July 26, 2005 stating: [T]here is no evidence that his prior treatment was successful (viral load undetectable) but only evidence that is [sic] was not . . . Published studies show that retreatment absent complete response is not useful and it is not recommended . . . Based on his history of lack of response to prior treatment, there is no medical indication for treatment at this time. Defs.' Statement of Material Facts, ¶ 58, Dkt. No. 97–25. Dr. Wright further noted that Hilton had a substance abuse history. Also on that day, Hilton was informed that although he was initially placed on an ASAT waiting list, his request would now be denied because he did not have enough time to complete the ASAT program before his earliest release date. On August 17, 2005, plaintiff initiated this lawsuit and moved for a temporary restraining order and preliminary injunction compelling defendants to authorize his HCV treatment. Dr. Wright contends that in light of the motion, he reviewed plaintiff's complete medical chart and could not determine that plaintiff had twenty-four weeks of treatment in the past and that the result after twenty-four weeks of completed treatment was treatment failure, thus Hilton could not be classified as a non-responder nor a relapser. Instead, Dr. Wright classified plaintiff as having incomplete treatment in the past, and approved him to receive
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combination therapy. Plaintiff began receiving treatment on August 25, 2005. Although Hilton first achieved positive results with treatment, by September 2006 he was informed that the treatment had failed. In January 2007 plaintiff was classified as a relapser.
After his release from DOCCS in May 2007, Hilton received HCV treatment from a private physician but discontinued treatment after a short time because of the side effects.
B. Procedural History As previously noted, Hilton commenced this action on August 17, 2005 on behalf of himself and a class of others similarly situated. See Compl. On September 2, 2005 he amended the complaint to add Vasquez as a named plaintiff. See Am. Compl. At that time, both plaintiffs had HCV and were inmates under defendants' care and custody. Plaintiffs alleged defendants refused to administer necessary HCV treatment based on DOCCS' Guidelines. They asserted that defendants' refusal resulted in a deprivation of their right to be free from cruel and unusual punishment under the Eighth Amendment to the United States Constitution. Plaintiffs sought injunctive and declaratory relief, as well as compensatory and punitive damages. On October 18, 2005, defendants announced the recision of the ASAT Requirement as a prerequisite for combination therapy. By Memorandum-Decision and Order filed February 27, 2006, the plaintiff class was certified. Hilton v. Wright, 235 F.R.D. 40 (N.D.N.Y. 2006). The parties thereafter engaged in settlement negotiations relating to the class claims. On July 19, 2007, the parties entered into an Interim Settlement Agreement, which became final on January 2, 2008. Koob Decl., Jan. 12, 2010, Ex. A, Dkt. No. 115–2 ("Settlement Agreement"); Hilton v. Wright, 2008 WL 53670, No. 9:05-CV-1038 (N.D.N.Y. Jan. 2, 2008). The Settlement Agreement resolved all of the class's injunctive and equitable claims. It permanently eliminated the ASAT
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Requirement and provided steps to identify and treat those prisoners that had been previously denied HCV treatment because of their failure to satisfy the ASAT Requirement. The Settlement Agreement also created a two year monitoring period for defendants' compliance12 and set forth payment to class counsel for that period. Fees for the monitoring period were capped at $20,000.00, subject to upward adjustment within the trial court's discretion. Finally, the plaintiff class was denied permission to move to amend their complaint to assert a class claim for damages. Id.
On April 17, 2009, defendants moved for summary judgment dismissing the individual plaintiffs' claims for damages. Plaintiffs opposed and defendants replied. The motion was considered on its submissions without oral argument. On December 14, 2009, an Order was issued granting defendants' motion for summary judgment and dismissing the Amended Complaint in its entirety. It was found that because plaintiffs were subject to only three and four month delays in receiving HCV treatment based on the ASAT Requirement, they could not demonstrate they suffered a serious injury and their Eighth Amendment claim could not survive. It was also determined that Dr. Wright was entitled to qualified immunity, and that plaintiffs' Title II and Section 504 claims had to be dismissed because Dr. Wright did not consider either plaintiff disabled. Hilton appealed and Vasquez settled.
12 The parties agreed that the Settlement Agreement would be in effect for two years from the date it was executed. Thus, the terms and conditions of the Settlement Agreement were set to expire and all equitable claims on behalf of plaintiffs discontinued and dismissed with prejudice in July 2009 unless the parties either agreed to voluntarily extend the Settlement Agreement or if extension was ordered by the court.
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Plaintiffs thereafter filed a motion for attorneys' fees, requesting $20,000.00 in fees and $17,385.45 in expenses for a total award of $37,385.45.13 Defendants opposed in part and plaintiffs replied. The motion was considered on its submissions without oral argument. On May 25, 2010, an Order was issued awarding attorneys' fees in the sum of $23,152.00, finding it appropriate to enlarge the $20,000.00 cap but denying expenses because the Settlement Agreement made no provision for the payment of costs incurred by the plaintiff-class during the two year monitoring period. Dkt. No. 121. Hilton appealed.
On March 9, 2012, the Second Circuit Court of Appeals issued a decision regarding both of Hilton's appeals. Hilton v. Wright, 673 F.3d 120 (2d Cir. 2012) (per curiam). The decision vacated the December 14, 2009 grant of summary judgment to defendants and remanded the case in accordance with the Second Circuit's opinion. The Court also vacated that part of the May 25, 2010 Order denying plaintiffs' application for expenses and remanded the issue for it to be determined whether to grant, fully or partially, the application for such expenses. The corresponding Mandate was issued on April 20, 2012.
In accordance with the Order and Mandate, the December 14, 2009 Judgment in defendants' favor will be vacated and the May 25, 2010, Order denying plaintiffs' costs will be vacated. Upon remand, the parties filed supplemental briefs relating to the issues discussed in Hilton, 673 F.3d 120. The matter has now been briefed and is ready for consideration.
13 The additional out-of-pocket expenses were mostly incurred paying an assistant whom plaintiffs' firm hired to enter data and manage correspondence with the inmates in the course of coordinating relief under the Settlement Agreement.
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III. GENERAL STANDARDS A. Summary Judgment Summary judgment is warranted when "the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S. Ct. 2505, 2509–10 (1986). All facts, inferences, and ambiguities must be viewed in a light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986).
Initially, the burden is on the moving party to demonstrate the absence of a genuine issue of material fact. Fed. R. Civ. P. 56; Liberty Lobby, Inc., 477 U.S. at 250, 106 S. Ct. at 2511. A fact is "material" if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248, 106 S. Ct. at 2510; see also Jeffreys v. City of N.Y., 426 F.3d 549, 553 (2d Cir. 2005). The non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., 475 U.S. at 586, 106 S. Ct. at 1356. There must be sufficient evidence upon which a reasonable fact finder could return a verdict for the non-moving party. Liberty Lobby, Inc., 477 U.S. at 248–49, 106 S. Ct. at 2510; Matsushita Elec. Indus. Co., 475 U.S. at 587, 106 S. Ct. at 1356.
B. Capacity of Claims against Dr. Wright At the outset, it should be noted that the Amended Complaint is silent as to the capacity in which Dr. Wright is sued. "The distinction [between official and individual capacity suits] hinges upon from whom the plaintiff seeks a remedy." Yorktown Med. Lab., Inc. v.
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Perales, 948 F.2d 84, 87 (2d Cir. 1991). Often, the course of proceedings indicates the nature of the liability to be imposed. Oliver Sch., Inc. v. Foley, 930 F.2d 248, 252 (2d Cir. 1991) (citing Kentucky v. Graham, 473 U.S. 159, 167 n.14, 105 S. Ct. 3099, 3106 n.14, (1985)).14 "Official capacity suits seek, in all aspects other than the party named as defendant, to impose liability on the government. Personal capacity suits, in contrast, aim to impose liability directly on officials for actions taken under color of state law." Yorktown Med. Lab., Inc., 948 F.2d at 87. Thus, the real party in interest in any official capacity suit against Dr. Wright is DOCCS, the government entity. For the purposes of this motion, it will be assumed that plaintiff intended to assert claims against Dr. Wright in both his official and individual capacities.
C. Sovereign Immunity The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." State Emp. Bargaining Agent Coalition v. Rowland, 494 F.3d 71, 95 (2d Cir. 2007) (citing U.S. Const. amend. XI). "The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in federal court." Bd. of Tr. of Univ. of Ala. v. Garrett, 531 U.S. 356, 363, 121 S. Ct. 955, 962 (2001). However, this guarantee is not absolute. "Congress may abrogate the 'immunity when it both unequivocally intends to do so and acts pursuant to a valid grant of constitutional authority.'" Garcia v.
14 The proceedings and the motion papers suggest that plaintiff intended to sue Dr. Wright in both his official and individual capacities. For example, the parties litigate the doctrine of qualified immunity on plaintiff's deliberate indifference claim, which only relates to Dr. Wright's individual capacity. However, with respect to the Title II and Section 504 claims, the parties argue as to Dr. Wright's official capacity.
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S.U.N.Y. Health Sciences Center of Brooklyn, 280 F.3d 98, 108 (2d Cir. 2001) (quoting Garrett, 531 U.S. at 363, 121 S. Ct. at 962). Specifically, under section five of the Fourteenth Amendment, Congress may abrogate Eleventh Amendment immunity to enforce the substantive rights guaranteed by the Fourteenth Amendment. Bolmer v. Oliveira, 594 F.3d 134, 146 (2d Cir. 2010). IV. DISCUSSION
Dr. Wright and DOCCS argue they are entitled to summary judgment dismissing all claims because: (1) any delay in plaintiff's HCV treatment did not cause him injury and disagreement with prison officials regarding his course of treatment does not constitute deliberate indifference; (2) plaintiff waived any claim relating to the July 2003 denial of treatment based on the Length of incarceration Requirement; (3) Dr. Wright is entitled to qualified immunity; (4) plaintiff cannot maintain a cause of action under the Title II nor Section 504 against Dr. Wright; (5) Eleventh Amendment immunity shields DOCCS from liability under Title II; (6) plaintiff is not "disabled" as defined by Title II nor Section 504; (7) plaintiff cannot show causation on any of his claims; and (8) the record does not support a recovery of compensatory nor punitive damages.
A. Section 1983 Claim: Dr. Wright Dr. Wright contends the first cause of action against him must be dismissed because it cannot be established that he was deliberately indifferent to Hilton's serious medical needs. In the alternative, Dr. Wright contends he is entitled to qualified immunity. Plaintiff asserts that there are disputed issues of fact and thus summary judgment should be denied on both the deliberate indifference claim and qualified immunity.
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1. Capacity First, to the extent plaintiff asserts a deliberate indifference claim against Dr. Wright in his official capacity, that claim must be dismissed because it is barred by the Eleventh Amendment. Such a claim against Dr. Wright in his official capacity would seek to impose liability on the government. Section 1983 imposes liability for "conduct which 'subjects, or causes to be subjected' the complainant to a deprivation of a right secured by the Constitution and laws." Rizzo v. Goode, 423 U.S. 362, 370–71, 96 S. Ct. 598, 604 (1976) (quoting 42 U.S.C. § 1983). It is well-settled that states and governments are not "persons" under § 1983 and, therefore, Eleventh Amendment immunity is not abrogated by § 1983. See Will v. Mich. Dep't of State Police, 491 U.S. 58, 71, 109 S. Ct. 2304, 2312 (1989).15 Thus, the deliberate indifference claim against Dr. Wright in his official capacity will be dismissed and will remain against Dr. Wright in his individual capacity subject to the analysis below. 2. Merits of Eighth Amendment Claim Hilton contends Dr. Wright violated his Eighth Amendment right to receive adequate medical care for HCV by implementing the Length of incarceration Requirement and the ASAT Requirement, which resulted in plaintiff being denied treatment. The Eighth Amendment, made applicable to the states by the Fourteenth Amendment, provides that: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." U.S. Const. amend. VIII. Through the prohibition on
15 A state official sued in his official capacity for injunctive relief would be a person under § 1983 because "official-capacity actions for prospective relief are not treated as actions against the State." Graham, 473 U.S. at 167, n.14, 105 S. Ct. at 3106, n.14. However, all claims for injunctive relief in this case were resolved by the Settlement Agreement. The only claims that remain are those for money damages.
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cruel and unusual punishment, the Eighth Amendment guarantees a prisoner medical treatment for serious medical needs. Estelle v. Gamble, 429 U.S. 97, 103 (1976). Therefore, deliberate indifference by the government to such serious medical needs violates the Constitution. Id. at 104–05. A deliberate indifference claim must include both an objective and a subjective component; a plaintiff must satisfy both components to prevail. Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir. 1998). First, a plaintiff must show that "his medical condition is objectively a serious one." Brock v. Wright, 315 F.3d 158, 162 (2d Cir. 2003). Second, a plaintiff must show that the defendant acted with deliberate indifference to his medical needs. Id.
a. Serious Medical Condition The objective component requires that "the deprivation alleged must be, objectively, sufficiently serious." Farmer v. Brennan, 511 U.S. 825, 834, 114 S. Ct. 1970, 1977 (1994) (quotations omitted). Analyzing the objective element of a deliberate indifference claim requires two inquires. "The first inquiry is whether the prisoner was actually deprived of adequate medical care." Salahuddin v. Goord, 467 F.3d 263, 279 (2d Cir. 2006). The word "adequate" reflects that "[p]rison officials are not obligated to provide inmates with whatever care the inmates desire. Rather, prison officials fulfill their obligations under the Eighth Amendment when the care provided is reasonable." Jones v. Westchester Cnty. Dep't of Corrs., 557 F. Supp. 2d 408, 413 (S.D.N.Y. 2008). The second inquiry of the objective component is "whether the inadequacy in medical care is sufficiently serious. This inquiry requires the court to examine how the offending conduct is inadequate and what harm, if any, the inadequacy has caused or will likely cause the prisoner." Salahuddin, 476 F.3d at 280. The focus of this inquiry depends on whether
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the prisoner claims he was completely deprived of treatment or whether he claims the treatment he received was inadequate. Id. When the alleged deprivation is that the defendant failed to provide any treatment for the medical condition, "courts examine whether the inmate's medical condition is sufficiently serious." Id. A medical need is serious for constitutional purposes if it presents "a condition of urgency that may result in degeneration or extreme pain." Chance, 143 F.3d at 702 (quotations omitted). If the claim is that treatment was provided, but that the treatment was inadequate, the inquiry is narrower. Salahuddin, 476 F.3d at 280. For example, if the claim is that treatment was delayed or interrupted, courts must focus on the challenged delay or interruption, rather than the severity of the prisoner's underlying medical condition. Smith v. Carpenter, 316 F.3d 178, 185 (2d Cir. 2003).
The parties disagree over the characterization of the objective component here. According to plaintiff, this is a case of denied medical treatment, and thus the "serious" inquiry goes to the seriousness of his medical condition. Defendants characterize this as a case of delayed medical treatment—because Hilton was eventually provided treatment after the commencement of this lawsuit—thus the "serious" inquiry goes to the seriousness of his injury resulting from the delay.
Dr. Wright's conduct is appropriately characterized as a complete deprivation.16 Plaintiff was denied treatment in 2003 based on the Length of incarceration Requirement and again in 2005 based on the ASAT Requirement. Hilton only eventually received HCV treatment due to the commencement of this lawsuit. Because the alleged deprivation is that
16 Notably, the Second Circuit explained: "To establish deliberate indifference, Hilton must show that Dr. Wright harbored the requisite mental state while he denied Hilton treatment." Hilton, 673 F.3d at 127 (emphasis added).
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defendants failed to provide any treatment for Hilton's medical condition, the focus must be on the nature of his medical condition. It is well-established that HCV is a serious medical condition.17 See e.g., Hatzfeld v. Eagen, 9:08–CV–283, 2010 WL 5579883, at *10 (N.D.N.Y. Dec. 10, 2010) (Homer, M.J.) (collecting cases) Report-Rec adopted by 2011 WL 124535 (N.D.N.Y. Jan. 14, 2011) (Strom, S.J.). Accordingly, Hilton has satisfied the objective component and shown that "the inadequacy in medical care [was] sufficiently serious." Salahuddin, 476 F.3d at 280. It must be determined whether Dr. Wright's response (or lack thereof) to plaintiff's serious medical need constituted deliberate indifference.
b. Deliberate Indifference To satisfy the subjective prong of an Eighth Amendment claim, an inmate must demonstrate that the defendant acted with the requisite culpable mental state, that is, with reckless disregard to a known substantial risk of harm. Farmer, 511 U.S. at 836, 114 S. Ct. at 1978. "'Deliberate indifference' is 'a mental state more blameworthy than negligence'—it is 'a state of mind that is the equivalent of criminal recklessness.'" Kelsey v. City of N.Y., 306 F. App'x 700, 702 (2d Cir. 2009) (summary order) (quoting Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003)). As the Second Circuit pointed out here, "it need not be shown that Dr. Wright intended for Hilton to suffer harm, but Dr. Wright's actions in this regard must have been more than merely negligent." Hilton, 673 F.3d at 127. To establish deliberate indifference, a plaintiff must prove that (1) the defendant medical provider was aware of facts from which the inference could be drawn that the plaintiff had a serious medical need; and (2) the defendant medical provider actually drew that
17 Moreover, the Second Circuit noted that "[n]o party disputes that Hilton's medical needs were serious." Hilton, 673 F.3d at 127.
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inference. Farmer, 511 U.S. at 837, 114 S. Ct. at 1979. The plaintiff must then demonstrate that the defendant medical provider consciously and intentionally disregarded or ignored that serious medical need. Id. at 835–36, 114 S. Ct. at 1978. "Prison officials may, of course, introduce proof that they were not so aware, such as testimony that 'they knew the underlying facts but believed (albeit unsoundly) that the risk to which the facts gave rise was insubstantial or nonexistent.'" Salahuddin, 467 F.3d at 281 (quoting Farmer, 511 U.S. at 844, 114 S. Ct. at 1982). A jury could find a defendant lacking the requisite culpable state of mind if the jury accepted "that the defendant denied the plaintiff medical treatment 'because the defendant[ ] sincerely and honestly believed . . . that applying [a prison policy mandating the denial of treatment] was, in plaintiff's case, medically justifiable.'" Id. (quoting Johnson v. Wright, 412 F.3d 398, 404 (2d Cir. 2005)).
Thus, the issue is not whether a medical policy is generally justifiable, "but whether a jury could find that the application of the policy in plaintiff's case could have amounted to deliberate indifference to plaintiff's medical needs." Johnson, 412 F.3d at 404. In Johnson, the Second Circuit held that the denial of HCV treatment based solely on an inmate's failure to fulfill the ASAT Requirement could create a triable issue of fact in three circumstances:
(1) [W]here there is consensus among the prisoners' medical providers that treatment is necessary regardless of the prerequisite, (2) where prison officials fail to determine whether the justifications for the ASAT prerequisite apply to the individual patient, and (3) where prison officials "reflexively" rely on the purported soundness of the guideline itself, even where they are on notice that a departure might be medically appropriate. Ippolito v. Goord, No. 05–CV–6683, 2012 WL 4210125, at *13 (W.D.N.Y. Sept. 19, 2012) (quoting Johnson, 412 F.3d at 404–06).
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Dr. Wright asserts the ASAT Requirement had a rational basis and was properly applied in Hilton's case. He contends the Guidelines were developed after considering national guidelines, consensus statements, and recommendations, along with peer-reviewed medical journals which all supported the belief that substance abuse treatment and abstinence were critical to the success of combination therapy.
Although the majority of the parties' initial briefing focused on Dr. Wright's denial of HCV treatment based on Hilton's failure to satisfy the ASAT requirement during his final term of incarceration, the denial of treatment based on the Length of incarceration Requirement must also be considered.
i. July 2003 Denial In its decision, the Second Circuit noted "it appears from Hilton's brief that he is now alleging that his Eighth Amendment rights were violated not only by the [ASAT] Program Requirement, but also by DOCS's policy of denying HCV treatment to certain prisoners whose expected prison terms are less than fifteen months." Hilton, 673 F.3d at 128. The Second Circuit further explained that Hilton did not raise the issue in the Amended Complaint because he only learned for the first time through the defendants' Statement of Material Facts in support of summary judgment that the fifteen-month minimum was the basis for denying him treatment in 2003 and 2004. The Second Circuit then instructed, upon remand, to consider whether this claim had been waived, and if it was not waived, to decide it. As the Court indicated, "[w]hen the district court is briefed on an issue that can be understood as implicit in the larger challenge, the opposing party does not argue waiver, and the district court considers the issue, then that issue is not waived." Id. (citing Dickerson v. Napolitano, 604 F.3d 732, 741 (2d Cir. 2010)).
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Hilton did not allege in the Amended Complaint that the July 2003 denial based on the Length of incarceration Requirement violated his Eighth Amendment rights. However, he raised the issue in opposition to defendants' motion for summary judgment. Plaintiff admitted that "[a]lthough plaintiffs' pleadings focused primarily on the ASAT requirement because it is what led to their denials of treatment at immediate issue at the time of filing, the complaint also raised other failings in defendant's guidelines for the delivery of medical care to HCV infected prisoners." Pls.' Opp'n to Summ. J. at 13. In their reply papers, defendants objected to the belated allegation, asserting that the Amended Complaint did not raise any allegation of wrongdoing involving Dr. Wright prior to August 2004. Defendants further asserted that if plaintiffs were allowed to proceed with the pre-August 2004 events, they would be unduly prejudiced without the opportunity to conduct discovery on the additional claim.
Following the Second Circuit's instruction to consider whether the claim was waived, defendants again objected and asserted that plaintiff was provided a copy of his prison medical records ten months before the summary judgment motion, which indicated that when considering HCV treatment for him, DOCCS staff reviewed his release date and upon discovering that he was available for early release, decided his treatment would be provided after his release into the community. Plaintiff contends defendants cannot show they would be prejudiced by the addition of this claim and any assertion that plaintiff should have known of the claim at an earlier point is irrelevant.
Under Federal Rule of Civil Procedure 15(b), a district court may consider claims outside those raised in the pleadings so long as doing so does not cause prejudice. See Fed. R. Civ. P. 15(b) ("When issues not raised by the pleadings are tried by express or
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implied consent of the parties, they shall be treated in all respects as if they had been raised by the pleadings."); see also Jund v. Town of Hempstead, 941 F.2d 1271, 1287 (2d Cir. 1991) (refusing to exclude claims not alleged in pleadings because claims had been addressed on the merits both on summary judgment and at trial). In opposing a Rule 15(b) amendment, "a party cannot normally show that it suffered prejudice simply because of a change in its opponent's legal theory. Instead, a party's failure to plead an issue it later presented must have disadvantaged its opponent in presenting its case." N.Y.S. Elec. & Gas Corp. v. Sec'y of Labor, 88 F.3d 98, 104 (2d Cir.1996).
Defendants assert they would be unduly prejudiced without the opportunity of conducting discovery on this claim. Discovery proceeded with the focus of litigation on the ASAT Requirement.18 The majority of the parties' expert submissions and other testimony centers around the medical reasons in support of, and in opposition to, the ASAT Requirement. It was not until defendants' motion for summary judgment did plaintiff argue this claim. In response to the new allegation, defendants did not defend the claim on the merits but instead argued the claim was not preserved. Contra Jund, 941 F.2d at 1287 (finding claims had been addressed on the merits at summary judgment). Further, in Jund, the plaintiff sought to add evidence of events alleged to have occurred after the service of the amended complaint. The Court found that "the claims arise out of the scheme that was the focus of the pleadings, the claims are directly related to the earlier violation, and there was no undue prejudice to the defendants." Id. By contrast here, any claim arising from the 2003 denial based on the Length of incarceration Requirement is not part of the same scheme as
18 Had defendants been on notice of a claim based on the Length of incarceration Requirement, they may have produced discovery demonstrating that an individualized assessment was conducted to determine Hilton's actual chances of parole. See e.g., Salahuddin, 467 F.3d at 281.
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the denial based on the ASAT Requirement. Instead, the claims involve two entirely different requirements.
This matter is also distinguishable from Cruz v. Coach Stores, Inc., 202 F.3d 560, 568–70 (2d Cir. 2000), on which plaintiff relies. In that case, the Second Circuit affirmed the district court's consideration of an unpleaded hostile work environment claim raised in summary judgment proceedings where defendants objected but failed to demonstrate any prejudice. In that case, although the complaint did not refer specifically to "hostile work environment harassment," it described the plaintiff's harassment in enough detail to put the court and the parties on notice to the claim. Id. at 568. The Court "acknowledge[d] that [while] Cruz might have stated her claim of hostile work environment harassment more artfully, the essential elements of the charge do appear in the complaint." Id. at 569. Here, the issue is not that plaintiff failed to include a title to his cause of action or lacked the proper description of his claim. Instead, the Amended Complaint wholly fails to include any facts based on the Length of incarceration Requirement. There are no facts in the Amended Complaint which could put the court nor the defendants on notice that the Length of incarceration Requirement gave rise to an Eighth Amendment deliberate indifference claim.
Thus, any Eighth Amendment claim based on DOCCS' initial denial of treatment in 2003 due to plaintiff's short prison term has been waived. While plaintiff may not pursue this claim as an independent basis for relief, evidence that DOCCS and/or Dr. Wright were aware of his HCV status in 2003 and evidence that he was denied treatment at that time may be relevant in determining what Dr. Wright knew about Hilton's conditions and medical history when he denied HCV treatment in 2005 based on the ASAT Requirement.
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ii. May 2005 Denial Dr. Wright insists the application of the ASAT Requirement to plaintiff was medically justified because plaintiff had a history of drug and alcohol use. While defendants have proffered evidence demonstrating that active alcohol and drug use increase the dangerousness of HCV treatment as well as decrease the effectiveness of such treatment, that evidence relates to active alcohol and drug use. Moreover, the applicable Guidelines stated that to qualify for HCV treatment, there must be "[n]o evidence of active substance abuse (drug and/or alcohol) during the past 6 months." See ASAT Requirement (emphasis added). Hilton began his final period of incarceration on August 18, 2004. Therefore it is impossible for Dr. Wright, in May 2005, to have found that plaintiff used alcohol or drugs during the past six months as he was in DOCCS custody for the preceding nine months, and it is undisputed that plaintiff never used illegal drugs while incarcerated by DOCCS. Moreover, while Hilton self-reported in August 2004 during intake at Downstate that he had abused alcohol, any alcohol use would have been beyond the six month Guidelines period by the time Hilton was denied treatment in May 2005. It is undisputed Hilton admitted to using marijuana as a teenager and trying cocaine once, and admitted to drinking alcohol in the 1970s or 1980s. None of this conduct could qualify to preclude Hilton from receiving HCV treatment based on the ASAT Requirement. Based on these facts, Dr. Wright failed to determine whether the justifications for the ASAT Requirement applied specifically to plaintiff. This is particularly incredible in light of the July 20, 2004, Guidelines update which provided that, in cases where an inmate would otherwise qualify for HCV treatment except for evidence of substance abuse, "[t]he incident will be evaluated individually to determine what it consisted of and whether or not it results in
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temporary disqualification for treatment." See ASAT Requirement. There is no evidence Dr. Wright inquired into plaintiff's alcohol or drug use history to determine whether the ASAT Requirement should be applied in plaintiff's case. Moreover, according to plaintiff's expert Dr. Carroll B. Leevy, M.D., the NIH recommended treatment be commenced for all people testing positive for HCV, even those actively abusing alcohol or drugs. Instead, Dr. Wright reflexively relied on the Guidelines. Finally, based on what Dr. Wright knew about plaintiff's medical condition (that he was diagnosed in 1999 and that his liver biopsy showed stage 2 or more advanced fibrosis) and how long he had been denied HCV treatment (allegedly at least since his incarceration in 2003), there are issues of fact as to what Dr. Wright knew about the likely medical consequences of continuing to deny plaintiff HCV treatment. By 2002, medical research and literature was clear that HCV was a progressive disease that could lead to serious harm including cirrhosis of the liver, and death. As Chief Medical Officer of DOCCS and the person responsible for promulgating and implementing the Guidelines, Dr. Wright was well aware of the risks occasioned by denying HCV treatment.
The denial of HCV treatment based only plaintiff's failure to complete the ASAT Requirement creates a triable issue of fact as to whether the application of the policy in plaintiff's case could have amounted to deliberate indifference to plaintiff's medical needs. See Johnson, 412 F.3d at 404. Dr. Wright points to no evidence that is sufficient to establish as a matter of law the propriety of conditioning HCV treatment on Hilton's satisfaction of the ASAT Requirement, simply because he had a history—however far removed or minimal—of alcohol or drug use. A reasonable jury could conclude that Dr. Wright promulgated an
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ambiguous set of Guidelines that resulted in the denial of necessary medical care to plaintiff
without justification.19
3. Qualified Immunity
The doctrine of qualified immunity protects state actors from liability if their conduct
"does not violate clearly established statutory or constitutional rights of which a reasonable
person would have known." Pearson v. Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 815
(2009). In determining whether a right was clearly established, courts look to whether:
"(1) the right was defined with reasonable clarity; (2) Supreme Court or Second Circuit
precedent has confirmed the existence of the right; and (3) a reasonable defendant would
have understood from the existing law that his conduct was unlawful." Turkmen v. Ashcroft,
--- F. Supp. 2d ----, No. 02–CV–2307, 2013 WL 153158, at *12 (E.D.N.Y. Jan. 15, 2013)
19 Finally, to the extent the July 2005 denial of treatment could be viewed as giving rise to a separate claim for deliberate indifference based on the ASAT Requirement, such claim would also survive summary judgment. At that time, Dr. Wright denied HCV treatment based primarily on the lack of records relating to Hilton's prior HCV treatment, although Hilton disputes that he was advised of this reason. Dr. Wright also cited plaintiff's failure to complete the ASAT Requirement.
Dr. Wright asserts it was not clear from the Bellevue records whether Hilton was a relapser or a non-responder. According to defendants' expert, Dr. John B. Rodgers, M.D., a patient's likelihood of a relapse depends upon many individualized factors including the virus genotype, ethnicity, gender, age, the duration of their disease, and alcohol use. Dr. Rodgers testified that the success rate for treatment of HCV genotype 1 is approximately 50%, but drops to 19% in African American males such as plaintiff. By contrast, genotypes 2 and 3 achieve a sustained response rate of 70–80%. Plaintiff disputes these statistics. According to Dr. Leevy, racial disparities may reflect differences in social class, healthcare access, and quality of care, and a more recent study found a 29% success rate in African American males with genotype 1. Dr. Rodgers and Dr. Wright further explained that it was important to know, if plaintiff was to be retreated for HCV, what his tolerance and compliance were, the side effects he previously encountered, and whether the risks outweighed the benefits. Plaintiff disputes the importance of the Bellevue records and asserts that it was known in 2002 that patients who fail to complete a full course of therapy often benefit from the repeat administration of combination therapy for the full course of treatment. Hilton also contends that any potential complications could have been closely monitored and addressed in DOCCS, and therefore possible side effects should not have been a deterrent to treatment.
Accordingly, there are disputed issues of fact regarding the relevance of past treatment and the likelihood of success for repeat treatment. A reasonable jury could find that Dr. Wright was deliberately indifferent in July 2005 by again reflexively relying on the ASAT Requirement to deny treatment as well as summarily denying treatment based on incomplete medical records without inquiring further into plaintiff's prior HCV treatment.
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(citing Young v. Cnty. of Fulton, 160 F.3d 899, 903 (2d Cir. 1998)). A convicted prisoner's right not to be recklessly denied treatment for a serious medical condition was clearly established at the time these events transpired. Estelle, 429 U.S. at 103, 97 S. Ct. at 290.
Even if the right was clearly defined, qualified immunity might still be available as a bar to a plaintiff's suit if the government official "can establish that it was objectively reasonable for them to believe their actions were lawful at the time," Moore v. Vega, 371 F.3d 110, 114 (2d Cir. 2004) (emphasis added), or in other words, "for them to believe that they had not acted with the requisite deliberate indifference." McKenna v. Wright, 386 F.3d 432, 437 (2d Cir. 2004). A government official's actions are objectively unreasonable "when no officer of reasonable competence could have made the same choice in similar circumstances." Lennon v. Miller, 66 F.3d 416, 420–21 (2d Cir. 1995) (citing Malley v. Briggs, 475 U.S. 335, 341, 106 S. Ct.1092, 1096 (1986)). Because the right in question here was clearly established, Dr. Wright will only be entitled to qualified immunity if it was objectively reasonable for him at the time of the challenged action to believe his acts were lawful. When "there are facts in dispute that are material to a determination of reasonableness," summary judgment on the basis of qualified immunity is inappropriate. Thomas v. Roach, 165 F.3d 137, 143 (2d Cir. 1999).
Dr. Wright argues the Guidelines were substantiated by medical literature and research and have evolved since their inception in 1999. Therefore he contends it was objectively reasonable for him to rely on the Guidelines in denying plaintiff HCV treatment based on the ASAT Requirement. Given that there are disputed issues of fact which could lead a reasonable jury to find that Dr. Wright was deliberately indifferent to plaintiff's serious medical needs by conditioning HCV treatment on his satisfaction of the ASAT Requirement,
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and moreover, conflicting expert testimony as to whether the ASAT Requirement comported with accepted medical standards at the relevant time, there are issues of fact as to whether Dr. Wright's denial of treatment, until forced by litigation, was objectively reasonable conduct. Qualified immunity will therefore be denied without prejudice.
B. Americans with Disabilities Act Claim: Dr. Wright and DOCCS In the second cause of action, plaintiff alleges that Dr. Wright and DOCCS violated Title II of the ADA. Specifically, plaintiff contends that he was regarded as a past drug or alcohol user and denied HCV treatment because of that claimed disability based on the ASAT Requirement. Defendants contend plaintiff is not disabled within the meaning of the statute. 1. Capacity Any ADA claim against Dr. Wright in his individual capacity must be dismissed because he is an individual, not a public entity. See Green v. City of N.Y., 465 F.3d 65, 76 (2d Cir. 2006); 42 U.S.C. § 12131(1). Insofar as plaintiff is suing Dr. Wright in his official capacity, he is seeking damages from New York, and the Eleventh Amendment therefore shields him to the same extent that it may shield DOCCS. Dr. Wright will remain as a defendant in his official capacity subject to the below analysis. 2. Merits of Title II Claim20 Title II of the ADA prohibits disability discrimination by public entities at the local and state level. 42 U.S.C. § 12132. That section provides that "no qualified individual with a
20 "While courts normally consider Eleventh Amendment issues before the merits, in the ADA context, an examination of the merits is the first step of the Eleventh Amendment analysis." Elbert v. N.Y.S. Dep't of Corr., 751 F. Supp. 2d 590, 596 n.5 (S.D.N.Y. 2010) (citing United States v. Georgia, 546 U.S. 151, 159, 126 S. Ct. 877, 882 (2006)).
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disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." Id. To prove a violation under Title II, a plaintiff must show that: he is a "qualified individual with a disability" pursuant to 42 U.S.C. § 12102; he is being excluded from participation in or being denied benefits of some service, program or activity by reason of his disability; and the entity which provides the service, program or activity is a public entity. See Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003).
The term "disability" with respect to an individual, means "a physical or mental impairment that substantially limits one or more major life activities of such individual"; "a record of such impairment"; or "being regarded as having such an impairment." 42 U.S.C. § 12102(1). For purposes of "being regarded as having such an impairment," an individual need only establish "that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity." Id. § 12102(3).21 Thus, Hilton need only "raise a genuine issue of material fact about whether Dr. Wright and/or DOCS regarded him as having a mental or physical impairment." Hilton, 673 F.3d at 129. He is "not required to present evidence of how or to what degree they believed the impairment affected him." Id.
21 In 2008, Congress passed the ADA Amendments Act, which revised the language of § 12102. One major change involved the definition of "regarded as" disabled. The new definition, stated above, was implemented to restore Congress's original intent that individuals need only show that the discriminatory action "'was taken because of an actual or perceived impairment, whether or not that impairment actually limits or is believed to limit a major life activity.'" Hilton, 673 F.3d at 129 (quoting H.R. Rep. No. 110–730, pt. 1, at 14 (2008) (emphasis added)).
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Following the ADA's passage in 1990, Congress charged the United States Department of Justice with issuing regulations implementing Title II of the ADA. See 42 U.S.C. § 12134(a). Those regulations currently include "drug addiction" and "alcoholism" among the conditions qualifying as a "physical or mental impairment." 28 C.F.R. § 35.104(ii)(2012)). While the regulations "have not tracked the ADA Amendments Act of 2008, and continue to define disability as Section 12102 did before the Amendments," Hilton, 673 F.3d at 129, n.8, the regulations are still entitled to substantial deference. Blum v. Bacon, 457 U.S. 132, 141, 102 S. Ct. 2355, 2361 (1982) ("[T]he interpretation of [the] agency charged with the administration of [this] statute is entitled to substantial deference."). "Unless the regulations are 'arbitrary, capricious or manifestly contrary to the statute,' the agency's regulations are 'given controlling weight.'" Helen L. v. DiDario, 46 F.3d 325, 332 (3d Cir. 1995) (quoting Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844, 104 S. Ct. 2778, 2782 (1984)). Neither party has demonstrated that the regulations are arbitrary, capricious or manifestly contrary to the ADA Amendments Act of 2008, and thus the definitions found in Section 35.104 of Title 28 of the Code of Federal Regulations are persuasive.
There is no dispute that defendants regarded Hilton as a former drug and alcohol user. Hilton, 673 F.3d at 129. Thus, there is an issue of fact as to whether defendants regarded Hilton as having a "drug addiction" or "alcoholism," which would constitute a physical or mental impairment for purposes of being regarded as disabled under § 12102. Id. As to the remaining elements Hilton must prove to sustain a Title II claim, it is undisputed he was denied HCV treatment by reason of his past alcohol and/or drug use. Finally, a "public entity" includes "any State or local government" and "any department, agency, . . . or
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other instrumentality of a State." 42 U.S.C. § 12131(1). This term includes state prisons. Georgia, 546 U.S. at 154, 126 S. Ct. at 879.
Defendants' request for summary judgment dismissing the Title II claim will be denied because there is a genuine issue of material fact as to whether defendants regarded Hilton as disabled and plaintiff has satisfied the remaining elements of a Title II claim.
3. Sovereign Immunity Defendants argue that Eleventh Amendment immunity limits their liability for money damages under Title II of the ADA. Congress unambiguously expressed its intent to abrogate states' immunity from claims under Title II. See 42 U.S.C. § 12202 ("A State shall not be immune under the eleventh amendment to the Constitution of the United States from an action in Federal or State court of competent jurisdiction for a violation of this chapter."). However, "[t]he extent to which Congress's abrogation is a constitutional exercise of its section five authority has been the subject of much debate." Bolmer, 594 F.3d at 146. In Garcia, the Second Circuit explained that under section five of the Fourteenth Amendment, Congress may prohibit conduct which actually violates the Fourteenth Amendment, as well as "a somewhat broader swath of conduct" that is constitutional but which Congress may prohibit in order to remedy or deter actual violations. Garcia, 280 F.3d at 108 (quotations omitted). The Second Circuit found that in enacting Title II, Congress had exceeded its authority under section five. Id. at 109–10. Despite this, sovereign immunity may still be abrogated under Title II if a plaintiff can establish "that the Title II violation was motivated by discriminatory animus or ill will based on the plaintiff's disability." Id. at 111. "Government actions based on discriminatory animus or ill will towards the disabled are
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generally the same actions that are proscribed by the Fourteenth Amendment—i.e., conduct that is based on irrational prejudice or wholly lacking a legitimate government interest." Id.
The Supreme Court later reaffirmed that "insofar as Title II creates a private cause of action for damages against the States for conduct that actually violates the Fourteenth Amendment, Title II validly abrogates state sovereign immunity." Georgia, 546 U.S. at 159, 126 S. Ct. at 882. In Georgia, the plaintiff asserted claims under Title II based on the state prison's alleged failure to accommodate his needs, including his medical needs. Id. at 157, 126 S. Ct. at 881. He alleged that same conduct violated the Eighth Amendment proscription against cruel and unusual punishment. Id. at 157, 126 S. Ct. at 880. In determining that sovereign immunity was abrogated on those facts, the Supreme Court found that the Title II claims "were evidently based, at least in large part, on conduct that independently violated the provisions of § 1 of the Fourteenth Amendment [incorporating the Eighth Amendment's prohibition against cruel and unusual punishment]." Id. at 157, 126 S. Ct. at 881. Georgia left open the question of whether Title II validly abrogates sovereign immunity for conduct that violates Title II but does not violate the Constitution. Id. at 159, 126 S. Ct. at 882.
The Second Circuit again considered the issue in 2010 in Bolmer, 594 F.3d 134. In that case, the Second Circuit clarified that Garcia and its discriminatory animus requirement were based on Congress's enforcement of the Equal Protection Clause. Bolmer, 594 F.3d at 146. The Court held that the additional showing of discriminatory animus or ill will based on the plaintiff's disability is not applicable when abrogation is supported by the enforcement of substantive due process rights, such as the right at issue in Bolmer—the right not to be involuntarily committed absent a danger to self or others. Id. at 147–48. The Bolmer Court concluded that the district court properly disregarded Garcia and decided the issue under
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Georgia since the claim was basely solely on substantive due process and not equal protection. Id. at 147. The Court declined to reach the question of whether or not Garcia survived Tennessee v. Lane, 541 U.S. 509, 124 S. Ct. 1978 (2004) (upholding abrogation in the context of courtroom accessibility on the basis that in enacting Title II, Congress sought to enforce not only equal protection, but also a variety of other basic constitutional guarantees) and Georgia. See Bolmer, 594 F.3d at 148.
What is clear, is that after Georgia, sovereign immunity will be abrogated under Title II when a plaintiff can demonstrate an actual Fourteenth Amendment violation. Here, like in Georgia, Hilton alleges that the same conduct which violates Title II also violates the Eighth Amendment. As explained above, there are disputed issues of fact as to plaintiff's Eighth Amendment claim. Because it cannot be determined as a matter of law at this juncture whether there was a constitutional violation sufficient to abrogate sovereign immunity under Title II, defendants' sovereign immunity defense will be rejected without prejudice to renew at a later time.
C. Rehabilitation Act Claim: Dr. Wright and DOCCS In the third cause of action, plaintiff alleges that Dr. Wright and DOCCS violated Section 504 of the Rehabilitation Act. Specifically, plaintiff contends that he was regarded as a past drug or alcohol user and denied HCV treatment because of that claimed disability based on the ASAT Requirement. Defendants contend plaintiff is not disabled within the meaning of the statute. 1. Capacity First, any claim against Dr. Wright in his individual capacity must be dismissed because Section 504 does not provide for individual capacity suits against state officials.
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Garcia, 280 F.3d at 107; 29 U.S.C. § 794(a) (statute's non-discrimination requirements only apply to entities receiving federal funds). As for the claim against Dr. Wright in his official capacity and DOCCS, it is well-established that sovereign immunity has been validly abrogated under Section 504 and the claim may proceed subject to the analysis below. See e.g., Degrafinreid v. Ricks, 417 F. Supp. 2d 403, 414 (S.D.N.Y. 2006) (holding that New York's continued acceptance of federal funds after Garrett, 531 U.S. 356, 121 S. Ct. 955 is a knowing relinquishment of its Eleventh Amendment immunity).
2. Merits of Section 504 Claim Similar to Title II, Section 504 prohibits discrimination against a qualified individual with a disability "solely by reason of her or his disability," in excluding them "from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 29 U.S.C. § 794(a). The main difference between the statutes is that coverage under Rehabilitation Act is limited to entities receiving federal financial assistance, while ADA's reach extends to private entities. When brought together, claims under Title II and Section 504 may be treated identically. See Henrietta D., 331 F.3d at 272. Therefore, summary judgment on this claim will be denied for the same reason it will be denied on the Title II claim—there are disputed issues of fact as to whether defendants regarded plaintiff as disabled. D. Award of Fees and Costs Class counsel's initial motion for attorneys' fees sought $20,000.00 in attorneys' fees and $17,385.45 in expenses for a total award of $37,385.45 for the two year monitoring period. An upward adjustment of the $20,000.00 cap was granted to account for the $23,152.00 in attorneys' fees actually incurred, and expenses were denied.
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Case 9:05-cv-01038-DNH-DEP Document 134 Filed 03/11/13 Page 39 of 43
The Settlement Agreement states in relevant part: Class Counsel will further be paid at a rate of $160 an hour for attorney time and $80 an hour for paralegal time for hours incurred during the two year monitoring period described herein. Fees for the herein described monitoring period will capped [sic] at $20,000. Class Counsel reserves the right to seek Court intervention to enlarge this limit upon a showing that such enlargement is reasonable to enforce the terms of this Agreement. Settlement Agreement ¶ 6. The Second Circuit concluded that the language shows an intent to cap all reimbursement at $20,000.00 subject to the district court's discretion to enlarge the limit. Hilton, 673 F.3d at 130. Such reimbursement thus includes attorneys' fees, paralegal fees, and out-of-pocket expenses. The Second Circuit remanded the issue with instructions to decide whether the denied costs should be awarded pursuant to paragraph six of the Settlement Agreement. Id. at 130–31. On appeal, plaintiff conceded that a substantial portion of the documented out-ofpocket expenses was for paralegal work. In fact, $15,230.00 of the requested $17,385.45 in expenses accounted for a paralegal and a consultant's work on the case. However, the $15,230.00 sought reflected the actual cost to plaintiff's law firm of employing the two individuals for 466.20 hours. As detailed by plaintiff, the two employees' work actually totals $37,296.00 in paralegal fees if calculated at the agreed upon billable rate of $80.00 an hour for paralegal work. It is clear that class counsel repackaged the paralegal work as an out-ofpocket expense, calculated only at cost to them. Despite labeling the paralegal work an "outof-pocket expense," it must be calculated at the $80.00 an hour rate because there is no question that the Settlement Agreement covered paralegal fees. In urging that an enlargement of the cap is reasonable, class counsel explained that at the time of the Settlement Agreement, they believed that defendants—who made all
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Case 9:05-cv-01038-DNH-DEP Document 134 Filed 03/11/13 Page 40 of 43
treatment decisions—would take on the primary responsibility of identifying those prisoners who had been denied treatment based on the ASAT Requirement. However, there was no central collection of the forms Dr. Wright used to notify facilities of HCV treatment denials based on the ASAT Requirement, and no other means of identifying those who were so denied because the records were maintained only in each individual prisoner's medical file. While DOCCS had a method of identifying those prisoners who had tested positive for HCV, they had no manageable way of separating out those who were denied treatment due to the ASAT Requirement. Due to privacy rights, DOCCS would not release the list of HCV infected prisoners to class counsel. As class counsel explained,
[t]he reason that the costs exceeded the parties' expectations arose as a result of apparent concerns by defendants as to privacy requirements. This unforeseen development led to defendants' complete reliance on plaintiffs' compilation of the class responses to the Notice to the Class for a determination of those class members entitled to injunctive relief. Pls.' Mem. of Law in Supp. of Mot. for Att'ys Fees, at 9, Dkt. No. 115–12. Essentially, class counsel asserts they were responsible for identification of class members, in addition to monitoring defendants' compliance during the two year period. Defendants dispute this contention and opposed the initial $37,385.45 request on the basis that the Settlement Agreement only provides for the award of fees for those hours incurred on behalf of inmates determined to be members of the class. Defendants contend the parties did not agree that there would be payment for hours spent determining which inmates comprised the class; instead payment was to be made for monitoring the class. Moreover, defendants allege the Settlement Agreement placed the burden upon them to seek out inmates to reevaluate for HCV treatment based upon the revised Guidelines, but
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Case 9:05-cv-01038-DNH-DEP Document 134 Filed 03/11/13 Page 41 of 43
there was no requirement to compile a list of actual class members. They note that class counsel never determined actual class members, only potential class members.
The Settlement Agreement permits enlargement of the $20,000.00 cap upon a showing that such enlargement is reasonable to enforce the terms of the Settlement Agreement. As the Second Circuit noted:
Defendants also assert that Hilton's out-of-pocket expenses are unreasonable and pertain to work outside the scope of the Settlement Agreement. This argument is without merit. The Settlement Agreement expressly called for Hilton's lawyers to collect the questionnaires from potential class members, tabulate the information collected, and share a summary of the information with DOCS so that DOCS could ascertain a definitive class member list. Nearly all of Hilton's lawyers' out-of-pocket expenses were incurred complying with this provision of the Settlement Agreement. Hilton, 673 F.3d at 130, n.9. It is clear that class counsel incurred the documented fees and expenses in accordance with their responsibilities under the Settlement Agreement and in furtherance of the goals thereunder. Class counsel has already been awarded $23,152.00 in attorneys' fees to account for the 144.70 hours spent by partners during the monitoring period. Now under consideration is whether to award any or all of the $17,385.45 "out-of-pocket expenses" initially sought by class counsel. While the documented paralegal fees would total $37,296.00 if calculated pursuant to the Settlement Agreement, class counsel only requested $15,230.00 for that work, plus $2,155.45 in other costs including rental of a United States postal box for class correspondence, copying and postage costs for class mailings, and Spanish translations of client correspondences. Class counsel has demonstrated that an enlargement of the cap is appropriate, and as the Second Circuit noted, plaintiff's out-of-pocket expenses are reasonable. Therefore,
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Case 9:05-cv-01038-DNH-DEP Document 134 Filed 03/11/13 Page 42 of 43
class counsel's motion for attorneys' fees will be granted in full and class counsel will be awarded $15,230.00 for the paralegal work and $2,155.45 for other costs, for a total of $17,385.45. Thus, in addition to the $23,152.00 already awarded in attorneys' fees, defendants are ordered to pay class counsel $17,385.45. A total award of $40,537.45 is reasonable considering the time spent on this matter. V. CONCLUSION
Therefore, it is ORDERED that 1. The December 14, 2009, Judgment dismissing the First Amended Complaint is VACATED; 2. That portion of the May 25, 2010, Order denying attorneys' fees beyond the sum of $23,152.00 is VACATED; 3. Defendants' motion for summary judgment is GRANTED in part and DENIED in part; 4. Any claim relating to the 2003 denial of Hepatitis C treatment based on the Length of incarceration Requirement is WAIVED; 5. The following claims are DISMISSED:
(a) Section 1983 claim against Dr. Wright in his official capacity; (b) ADA claim against Dr. Wright in his individual capacity; and (c) Rehabilitation Act claim against Dr. Wright in his individual capacity; 6. Plaintiff's motion for attorneys' fees is granted and class counsel is awarded an additional $17,385.45, for a total fee award of $40,537.45;
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Case 9:05-cv-01038-DNH-DEP Document 134 Filed 03/11/13 Page 43 of 43
7. Defendants are to make payment in the sum of $17,385.45 to "Koob & Magoolaghan" on or before March 25, 2013;
8. Upon the defendants' failure to make the above payment, the Clerk is directed to enter judgment in favor of the plaintiff class and against the defendants in the sum of $17,385.45; and
9. Trial is scheduled for August 12, 2013. Pre-trial papers are due by noon on July 26, 2013.
IT IS SO ORDERED.
Dated: March 11, 2013 Utica, New York.
The following claims remain for trial: (1) Section 1983 claim against Dr. Wright in his individual capacity; (2) ADA claim against Dr. Wright in his official capacity and DOCCS; and (3) Rehabilitation Act claim against Dr. Wright in his official capacity and DOCCS.
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 Case 9:05-cv-01038-DNH-DEP Document 143 Filed 08/28/13 Page 1 of 5

AUS 272013

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
ROBERT HILTON and LOUIS VASQUEZ. on behalf of themselves and all others similarly situated,
Plaintiffs,
.. against-
LESTER N. WRIGHT, M.D., M.P.H,. Associate Commissioner/Chief Medical Office.' fol' the New York State Department of COITectional Services; and the NEW YORK. STATE DEPARTMENT OF CORRECTIONAL SERVICES,
Defendants.

SO-ORDERED STIPULATION OF DISMISSAL PURSUANT TO
FRCP41(a)
05-CV.. I038 (DNHlDEP)

WHEREAS, the plaintiff, Robert Hilton, commenced the above..captioned civil action

(the "ActiontJ) to redress alleged violations of the Eighth and Fourteenth Amendments ofthe

Ullited States Constitution t111'ough 42 USC §1983; Title II ofthe Ame.'icans with Disabilities

Act, 42 USC §12132; and Section 504 of the Rehabilitation Act. 29 USC §794 on behalf of

himself and other inmates seeking treatment for the Hepatitis C vil'lls. and

WHEREAS, by order of Febl'uary 27. 2006. the court in this mattel' certified, pursuant to

FRep 23(b)(1) Rnd (2). a class of Hepatitis C-infected pl'isoneJ's in defendants· cllstody who, but

for defendants' policy ofrequiring alcohol and substance abuse training as a pret'eql.lisite to

treatment, would allegedly have received treatment, and

WHEREAS, in all interim settlement agt'eement dated July 19.2007" the parties agreed

that class members who had previously been denied Hep C treatment for having not satisfied the

alcohol and substance abuse requirement were to be reviewed medically again and treated. where

medically appropriate, without consideration ofthose fOl'mer prerequisites" and

WHBREAS, by order of Janua)'y 2. 2008 the court appJ'oved the Interim Settlement

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Case 9:05-cv-01038-DNH-DEP Document 143 Filed 08/28/13 Page 2 of 5

Agl'eement as a final settlement ofall clnhns in the action £01' equitable and injunotive l-eliefand

denied plaintiffs' motion to amend their complaint to seek damages on behalfofplaintiff class,

and

I o/,..(p/~Of{)

WHEREAS. on or about -A-' Plaintiff Vasquez settled all claims against defendants

Rnd is no longel' a party to tbis Rction, and

WHBREAS. without admitting any wrongdoing or liability ofany kind on the part of any

party, the Phli nt iffRobert Hilton and the defendants - Lester N. Wright and the New York State

Department of COlTections and Community Supervision (UDOCCS--), formerly the New York

State Department of Correctional Services - desire to voluntarily resolve any and all remaining

claims undel' the tenns set forth in this Stipulation of Dismissal Pursuant to FRCP 41 (a)

"tStipulation"). and

WHEREAS, no party hereto is an infant or incompetent perSOll for whom a cOlmnittee

has been appointed. and no person 110t a party has an intel'est in the subject 11latter of the action,

it is hereby.

STIPULATED AND AGREED. by and between the pal1ies and their respective counsel

of record as follows:

1. This action. including any and all claims and counterclaims which have 01' could

have been brought. is hereby discontinued with prejudice pursuant to Rule 41 (a) of the Federal

Rules of Civil Pl'ocedure ("FRepll) without any damages, costs, intel'est or attOlueys' fees, except

as hereinafter set fOlth.

2. Plaintifffl.llly discha.·ges and releases aU defendants and the State ofNew York as

set forth more fully in the General Release executed in considel'ation of the terms in this

Stipulation ofDismissal Pursuant to PRCP 41 (a) ("Stipulation").

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Case 9:05-cv-01038-DNH-DEP Document 143 Filed 08/28/13 Page 3 of 5

3. No provision of this Stipulation shaH be interpreted to be an acknowledgment of

the validity of any of the allegations, claims or defenses that have been made in this action. Nor

shall this Stipulation be interpreted as a determination ofor an admission by any pal1y

concellling the merits of any underlying fact or allegation.

4. The settlement ofthis action is limited to the circumstances in this case alone and

shall not be given effect or have any legal precedential value in any other Inattel', either between

the parties hereto or any other parties.

5. After this Stipulation is fully executed, so-ordered and filed on the court docket.

defendants shall pay to the plaintiffthe sum of$120,000.00 in filiI settlement of any and all

claims, inclusive of allY and all damages, fees and costs of any kind 01' natm·e.

6. This payment shall constitute all sums to which plaintiff, his attorneys and any

other agents are entitled in this action and plaintiff acknowledges that he is not entitled to any

other monies from any defendant or the State of New York.

7. Payment shall be made by check payable to "Robert Hilton and Koob and

MagoolaghanU and will be mailed to Kooh & Magoolaghan. 22] Devoe Avenue, Yonkers, New

York 10705.

8. The final settlement ofthis matter and payment ofthe sum set fOl'th above is

conditioned upon the approval of all appropriate state officials in accordance with the provisions

fOl' indemnification unde.' New YOl'k Public omCet'S Law §17 and all applicable laws, This

Stipulation shall be Ilull and void ifsaid approvals alOC not fully obtained, and this action shaH

then be placed back on the trial calendal' wiUtout prejudice,

9. Payment ofthe above amount shall be considered timely ifnlade within 120 days

after the fully executed, so-ordered StipUlation is entered on the court docket. In the event the

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approvals in the immediately preceding paragraph are satisfied. but timely payment is not made. interest shall begin to accrue on the outstanding principal balance at the statutory rate 011 the one hundred and twenty-fu'St day after this so-ordered Stipulation is entered on dlC court docket.
10. This Stipulation constitutes the entire agreement between the parties. No othel' pl'omises, Bgl'Cements or l"epresentations of any kind or nature have been made by any party 01' the State ofNew York, or any attorney. employee or agent of any party or the State ofNew York, No other tenns shaH be binding or modify tbis Stipulation unless reduced to wl'iting and signed by counsel for all parties to this action,
Dated: Albany, New York August 23, 2013

FOR PLAINTIFF: t 2013

KOOB & MAGOOLAGHAN 221 Devoe Avenue
bY~(fu~ Yonk~. New York 107~ 914/964-8888

FOR DEFENDANTS:

ERIC T, SCHNEIDERMAN,

AttOl'ney General of the State ofNew York

The Capitol

Albany, New York 12224

~ 1,) _~-.111;"'-"_ _ _ _ ---' 2013

a_L..._ by----.lzt___ __

Belinda A. Wagner

Assistant Attonley General. of Counsel 518/486-9718 (I (J J '101 )

,

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Case 9:05-cv-01038-DNH-DEP Document 143 Filed 08/28/13 Page 5 of 5

SO ORDERED:

AJust: :<7. Utica, New York 2013

1

DAVID N. HURD,

ENTER ()t I~((../ At!

5

 
 Case: 9:05-cv-1038 As of: 02/14/2014 01:23 PM EST 1 of 20
CLOSED
U.S. District Court Northern District of New York − Main Office (Syracuse) [LIVE − Version 6.1]
(Prisoner) CIVIL DOCKET FOR CASE #: 9:05−cv−01038−DNH−DEP

Hilton v. Wright et al Assigned to: Judge David N. Hurd Referred to: Magistrate Judge David E. Peebles Case in other court: 2nd Circuit, 10−00135−pr
2nd Circuit, 10−02245 Cause: 42:1983 Prisoner Civil Rights
Plaintiff
Robert Hilton on behalf of himself and all others similarly situated

Date Filed: 08/17/2005 Date Terminated: 08/28/2013 Jury Demand: Both Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Elizabeth L. Koob Koob, Magoolaghan Law Firm − Yonkers Office 221 Devoe Avenue Yonkers, NY 10705 914−964−8888 Fax: 914−964−8801 Email: nykoob@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joan Magoolaghan Koob, Magoolaghan Law Firm − Yonkers Office 221 Devoe Avenue Yonkers, NY 10705 914−964−8888 Fax: 914−964−8801 Email: nymagoo@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Alexander A. Reinert Koob, Magoolaghan Law Firm − NYC Office 19 Fulton Street Suite 408 New York, NY 10038 212−406−3095 Fax: 212−349−4658 Email: aar@kmlaw−ny.com TERMINATED: 08/31/2007

Keith M. Donoghue Federal Public Defender Office − Eastern District of PA The Curtis Center 601 Walnut Street Suite 540 West Philadelphia, PA 19106 215−928−1100 Fax: 215−928−1112 Email: keith_donoghue@fd.org TERMINATED: 06/22/2006

Plaintiff Louis Vasquez

represented by Elizabeth L. Koob (See above for address)

Case: 9:05-cv-1038 As of: 02/14/2014 01:23 PM EST 2 of 20
LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joan Magoolaghan (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexander A. Reinert (See above for address) TERMINATED: 08/31/2007

V. Defendant Lester N. Wright M.D., M.P.H., Associate Commissioner/Chief Medical Officer, for the New York State Department of Correctional Services
Defendant

represented by Belinda A. Wagner New York State Attorney General − Albany Office The Capitol Albany, NY 12224 518−474−8370 (Main) Fax: 518−474−7172 Email: Belinda.Wagner@oag.state.ny.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
James Seaman New York State Attorney General − Albany Office The Capitol Albany, NY 12224 518−474−7642 (direct) Fax: 518−473−1572 Email: james.seaman@ag.ny.gov ATTORNEY TO BE NOTICED
Karen Marcoux Mankes Office of Karen M. Mankes 141 Mohawk Drive Schenectady, NY 12303 518−355−1330 Email: Karen.Mankes@yahoo.com ATTORNEY TO BE NOTICED
Nelson Sheingold New York State Office of the State Comptroller 110 State Street 14th Floor Albany, NY 12236 518−474−0588 Email: nsheingold@osc.state.ny.us TERMINATED: 06/21/2007
Risa L. Viglucci Office of Attorney General − Albany State of New York The Capitol Albany, NY 12224 518−474−8370 (Main) Fax: 518−473−1572 TERMINATED: 12/03/2008

Case: 9:05-cv-1038 As of: 02/14/2014 01:23 PM EST 3 of 20

New York State Department of Correctional Services

represented by Belinda A. Wagner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

James Seaman (See above for address) ATTORNEY TO BE NOTICED

Karen Marcoux Mankes (See above for address) ATTORNEY TO BE NOTICED

Nelson Sheingold (See above for address) TERMINATED: 06/21/2007

Risa L. Viglucci (See above for address) TERMINATED: 12/03/2008

Date Filed 08/17/2005 08/17/2005 08/17/2005 08/17/2005
08/17/2005 08/18/2005 08/18/2005 08/18/2005
08/22/2005 08/23/2005

# Docket Text
1 COMPLAINT against Lester N. Wright, New York State Department of Correctional Services ( Filing fee $ 250 receipt number ALB001185) filed by Robert Hilton.(wbl, ) (Entered: 08/17/2005)
Summons Issued as to Lester N. Wright, New York State Department of Correctional Services. (wbl, ) (Entered: 08/17/2005)
2 G.O. 25 FILING ORDER ISSUED Initial Conference set for 1/4/2006 10:00 AM in Syracuse before Magistrate Judge Gustave J. DiBianco. Civil Case Management Plan due by 12/27/2005. (wbl, ) (Entered: 08/17/2005)
3 Emergency MOTION for Preliminary Injunction by Order to Show Cause, Emergency MOTION for Temporary Restraining Order by Order to Show Cause by Robert Hilton. (Attachments: # 1 Affirmation of Alexander A. Reinert, Esq.# 2 Exhibit(s) A to U to Affirmation of Alexander A. Reinert, Esq.# 3 Declaration Certificate of Service)(Donoghue, Keith) (Entered: 08/17/2005)
4 MEMORANDUM OF LAW in Support of 3 Emergency MOTION for Temporary Restraining Order by Robert Hilton. (Attachments: # 1 Declaration Certificate of Service)(Donoghue, Keith) Modified on 8/18/2005 (rjb, ). (Entered: 08/17/2005)
CLERK'S CORRECTION OF DOCKET ENTRY. Edited docket text for entry number 4 to reflect that it is a memorandum of law in support of the 3 motion for TRO, not another motion as filed. Also, terminated the motion associated with docket number 4. (rjb, ) (Entered: 08/18/2005)
5 Amended G.O. 25 FILING ORDER ISSUED Initial Conference set for 12/15/2005 10:00 AM in Syracuse before Magistrate Judge David E. Peebles. Civil Case Management Plan due by 12/5/2005. (wbl, ) (Entered: 08/18/2005)
6 ORDER TO SHOW CAUSE: that this Order to Show Cause &the supporting papers shall be served upon the defts or on their attys on or before 5:00 p.m. on 8/19/2005; defts shall file &serve answering papers, if any, on or before 5:00 p.m. on 8/23/2005; the pltf shall file &serve reply papers, if any, on or before 11:00 a.m. on 8/25/2005; ORAL Argument shall be heard at 1:00 p.m. on 8/26/2005 in Utica.Signed by Judge David N. Hurd on 8/18/2005. (see) (Entered: 08/18/2005)
7 AFFIDAVIT of Service for Summons and Complaint served on Defendants DOCS and Wright on August 22, 2005, filed by Robert Hilton. (Attachments: # 1 Affidavit Affidavit of Service)(Reinert, Alexander) (Entered: 08/22/2005)
8 STIPULATION re 6 Order Setting Hearing on Motion,, 3 Emergency MOTION for Preliminary Injunction by Order to Show CauseEmergency MOTION for

Case: 9:05-cv-1038 As of: 02/14/2014 01:23 PM EST 4 of 20

08/23/2005
08/25/2005 09/02/2005 09/02/2005 09/02/2005 09/16/2005 09/16/2005 09/20/2005 09/22/2005 10/21/2005
10/21/2005

Temporary Restraining Order by Order to Show CauseEmergency MOTION for Temporary Restraining Order by Order to Show Cause by Robert Hilton submitted to Judge David N. Hurd. (Attachments: # 1 Exhibit(s) Letter to Judge Hurd)(Reinert, Alexander) (Entered: 08/23/2005)
9 STIPULATION &ORDER: that deft Lester N. Wright, M.D., M.P.H., shall transmit to Robert Hilton's primary care provider at Washington Correctional Facility written authorization to initiate a course of combination antiviral therapy featuring pegylated interferon &ribavirin; that written confirmation of the status of pltf's treatment w/combination antiviral therapy shall be served upon pltf's counsel by 9/9/2005. Signed by Judge David N. Hurd on 8/23/2005. (see) (Entered: 08/23/2005)
10 Endorsement ORDER granting pltf's 8 letter requesting permission to be excused from the Local Rules for filing non−dispositive motions (for class certification) filed by Robert Hilton. Signed by Judge David N. Hurd on 8/25/2005. (see) (Entered: 08/25/2005)
11 AMENDED COMPLAINT filed as of right against Lester N. Wright, New York State Department of Correctional Services filed by Louis Vasquez, Robert Hilton.(Reinert, Alexander) (Entered: 09/02/2005)
12 CERTIFICATE OF SERVICE by Robert Hilton, Louis Vasquez re 11 Amended Complaint (Reinert, Alexander) (Entered: 09/02/2005)
13 MOTION to Certify Class with supporting Affirmation and exhibits Motion Hearing set for 10/14/2005 02:00 PM in Utica before Judge David N. Hurd. Response to Motion due by 9/27/2005 Reply to Response to Motion due by 10/3/2005. by Robert Hilton, Louis Vasquez. (Attachments: # 1 Certificate of Service# 2 Memorandum of Law # 3 Certificate of Service)(Reinert, Alexander) (Entered: 09/02/2005)
14 Letter from Nelson R. Sheingold for Lester N. Wright, New York State Department of Correctional Services requesting an extension of defendants' time to respond to the Amended Complaint until October 21, 2005 submitted to Judge Peebles. (Sheingold, Nelson) (Entered: 09/16/2005)
15 ORDER extending time to respond to the amended complaint. Answer due date updated for Lester N. Wright answer due 10/21/2005; New York State Department of Correctional Services answer due 10/21/2005. Signed by RB per direction of Judge David E. Peebles on 9/16/05. (rjb, ) (Entered: 09/16/2005)
16 Letter from Nelson R. Sheingold for Lester N. Wright, New York State Department of Correctional Services requesting an adjournment of the return date of plaintiffs' motion for class certification until November 10, 2005 submitted to Judge Hurd. (Sheingold, Nelson) (Entered: 09/20/2005)
Set/Reset Deadlines as to 13 MOTION to Certify Class with supporting Affirmation and exhibits. Response to Motion due by 10/21/2005 Reply to Response to Motion due by 10/28/2005. Motion Hearing reset for 11/10/2005 10:00 AM in Utica before Judge David N. Hurd. Per request of counsel and verbal order of Judge David N. Hurd.Please adjust your calendars accordingly. (cmr, ) (Entered: 09/22/2005)
17 Cross MOTION to Dismiss for Lack of Subject Matter Jurisdiction and opposition to plaintiffs' motion for class certification Motion Hearing set for 11/10/2005 10:00 AM in Utica before Judge David N. Hurd. Response to Motion due by 10/24/2005 Reply to Response to Motion due by 10/31/2005. by Lester N. Wright, New York State Department of Correctional Services. (Attachments: # 1 Memorandum of Law in support of cross motion to dismiss and in opposition to plaintiffs' motion for class certification# 2 Declaration of Lester Wright# 3 Exhibit(s) A to Wright Dec−2004 Repealed Guideline# 4 Exhibit(s) B to Wright Dec−Revised Guideline# 5 Exhibit(s) C to Wright Dec−E Mail to Providers# 6 Exhibit(s) Allstate Unpublished Decision)(Sheingold, Nelson) (Entered: 10/21/2005)
18 CERTIFICATE OF SERVICE by Lester N. Wright, New York State Department of Correctional Services re 17 Cross MOTION to Dismiss for Lack of Subject

Case: 9:05-cv-1038 As of: 02/14/2014 01:23 PM EST 5 of 20

10/28/2005 10/28/2005 11/01/2005 11/02/2005
11/04/2005
11/04/2005 11/12/2005
11/23/2005 11/28/2005 11/28/2005 11/29/2005

Matter Jurisdiction and opposition to plaintiffs' motion for class certification (Sheingold, Nelson) (Entered: 10/21/2005)
19 Supplemental AFFIRMATION in further Support of pltfs' 13 MOTION to Certify Class and in opposition to defts' 17 Cross MOTION to Dismiss for Lack of Subject Matter Jurisdiction. (Attachments: # 1 Certificate of Service)(Reinert, Alexander) (Entered: 10/28/2005)
20 MEMO OF LAW in Opposition to defts' 17 Cross MOTION to Dismiss and in further support of 13 MOTION to Certify Class (Attachments: # 1 Certificate of Service)(Reinert, Alexander) (Entered: 10/28/2005)
21 Letter Motion from Nelson R. Sheingold for Lester N. Wright, New York State Department of Correctional Services requesting permission to file a brief reply memorandum of law submitted to Judge Hurd. (Sheingold, Nelson) (Entered: 11/01/2005)
NOTICE of Hearing on Motion 17 Cross MOTION to Dismiss for Lack of Subject Matter Jurisdiction and opposition to plaintiffs' motion for class certification, 13 MOTION to Certify Class with supporting Affirmation and exhibits: Motion Hearing set for 11/10/2005 10:00 AM in Utica before Judge David N. Hurd. Appearance required. The letter request of 11/1/05 from Atty. Nelson Sheingold to Judge Hurd is hereby granted. The brief must be filed by 12:00 noon on 11/4/05 per oral order of Judge Hurd.(cmr, ) (Entered: 11/02/2005)
22 REPLY to Response to Motion re 21 Letter Motion from Nelson R. Sheingold for Lester N. Wright, New York State Department of Correctional Services requesting permission to file a brief reply memorandum of law submitted to Judge Hurd, 17 Cross MOTION to Dismiss for Lack of Subject Matter Jurisdiction and opposition to plaintiffs' motion for class certification, 13 MOTION to Certify Class with supporting Affirmation and exhibits pursuant to permission of the Court filed by Lester N. Wright, New York State Department of Correctional Services. (Sheingold, Nelson) (Entered: 11/04/2005)
23 CERTIFICATE OF SERVICE by Lester N. Wright, New York State Department of Correctional Services re 22 Reply to Response to Motion,, via CM/ECF (Sheingold, Nelson) (Entered: 11/04/2005)
24 Minute Entry for proceedings held before Judge David N. Hurd : Motion Hearing held on 11/10/2005 in Utica, NY re 17 Cross MOTION to Dismiss for Lack of Subject Matter Jurisdiction and opposition to plaintiffs' motion for class certification filed by New York State Department of Correctional Services,, Lester N. Wright,, 13 MOTION to Certify Class with supporting Affirmation and exhibits filed by Robert Hilton,, Louis Vasquez,, Motions Taken Under Advisement: 17 Cross MOTION to Dismiss for Lack of Subject Matter Jurisdiction and opposition to plaintiffs' motion for class certification, 13 MOTION to Certify Class with supporting Affirmation and exhibits (Court Reporter Nancy Freddoso) (cmr, ) (Entered: 11/12/2005)
25 ***STRICKEN FROM THE RECORD BY ORDER OF JUDGE HURD FILED 11/29/05*** LETTER BRIEF Regarding Plaintiffs' Motion for Class Certification by Robert Hilton, Louis Vasquez. (Reinert, Alexander) Modified on 12/1/2005 (rjb, ). (Entered: 11/23/2005)
26 Letter Motion from Nelson R. Sheingold for Lester N. Wright, New York State Department of Correctional Services requesting that the Court either reject plaintiffs' 11/23/05 letter brief or provide defendants with the same opportunity to supplement their motion to dismiss plaintiffs' equitable claims submitted to Judge Hurd. (Sheingold, Nelson) (Entered: 11/28/2005)
27 CIVIL CASE MANAGEMENT PLAN [Proposed] by Robert Hilton, Louis Vasquez. (Reinert, Alexander) (Entered: 11/28/2005)
28 ORDER STRIKING 25 LETTER BRIEF filed by Atty. Reinert for not having Court permission to file. Signed by Judge David N. Hurd on 11/29/05. (rjb, ) (Entered: 12/01/2005)

Case: 9:05-cv-1038 As of: 02/14/2014 01:23 PM EST 6 of 20

12/07/2005 02/02/2006 02/02/2006
02/27/2006 02/27/2006
03/06/2006 03/10/2006
03/13/2006 03/13/2006 03/13/2006 04/13/2006 04/18/2006

TEXT NOTICE of Hearing: Due to the pending motion in this case, the Initial Conference set for 12/15/05 at 10:00 AM has been adjourned to 2/16/2006 at 10:00 AM before Magistrate Judge David E. Peebles. (sal, ) (Entered: 12/07/2005)
29 Letter Motion from Nelson R. Sheingold for Lester N. Wright, New York State Department of Correctional Services requesting an adjournment of the scheduled Rule 16 conference without date submitted to Judge Peebles on behalf of all parties. (Sheingold, Nelson) (Entered: 02/02/2006)
30 ORDER re 29 Letter Motion from Nelson R. Sheingold for Lester N. Wright, New York State Department of Correctional Services requesting an adjournment of the scheduled Rule 16 conference. ORDERED In−Person Conference is set for 4/20/2006 10:00 AM in Syracuse before Magistrate Judge David E. Peebles. Civil Case Management Plan due by 4/10/2006. Signed by Judge David E. Peebles on 2/2/06. (alh) (Entered: 02/02/2006)
31 MEMORANDUM−DECISION &ORDER granting pltfs' 13 Motion to Certify Class; denying defts' 17 Cross−Motion to Dismiss for Lack of Subject Matter Jurisdiction; &pltfs' counsel is appointed as class counsel. Signed by Judge David N. Hurd on 2/27/2006. (see) (Entered: 02/27/2006)
32 ORDER: that defts elect, on or before 3/7/2006, whether to provide to the prospective class or provide the information necessary to pltfs so they can provide such notice; the parties confer on or before 3/17/2006. At such conference, the party providing notice to the prospective class inform the other party of whether the notice to the prospective class will be individual or general. The parties attempt to agree upon a definition of the class, including specific time parameters, &the contents of a proposed notice; On or before 3/27/2006, the parties submit for approval a proposed definition of the class, including time parameters, or, if an agreement as to the definition of the class cannot be reached, the parties submit separate proposed class definitions; &On or before 3/27/2006, the parties submit for approval a proposed joint order setting forth the contents of the proposed notice, or, if an agreement as to content cannot be reached, the parties submit separate proposed notices. Signed by Judge David N. Hurd on 2/27/2006. (see) (Entered: 02/27/2006)
33 Letter Motion from Nelson R. Sheingold for Lester N. Wright, New York State Department of Correctional Services requesting advising the Court pursuant to its February 27, 2006 Order that defendants have elected to notify the prospective class submitted to Judge Hurd. (Sheingold, Nelson) (Entered: 03/06/2006)
34 Letter Motion from Nelson R. Sheingold for Lester N. Wright, New York State Department of Correctional Services requesting on behalf of all parties an extension of the deadlines set forth in the Court's February 27, 2006 Order to allow the parties time to continue to attempt to settle the equitable claims which are the subject of class certification submitted to Judge Hurd. (Sheingold, Nelson) (Entered: 03/10/2006)
35 ANSWER to Amended Complaint by Lester N. Wright, New York State Department of Correctional Services.(Sheingold, Nelson) (Entered: 03/13/2006)
36 CERTIFICATE OF SERVICE by Lester N. Wright, New York State Department of Correctional Services re 35 Answer to Amended Complaint via ECM/CF (Sheingold, Nelson) (Entered: 03/13/2006)
37 Endorsement ORDER granting 34 Letter Request to extend the ddl for submission of a proposed class definition &notice to the class to 4/28/2006. Signed by Judge David N. Hurd on 3/13/2006. (see) (Entered: 03/13/2006)
Parties are directed to submit a new civil case management plan in preparation of the in−person conference scheduled for 4/20/06 before Judge Peebles. The deadline for this submission passed on 4/10/06. (sal, ) (Entered: 04/13/2006)
TEXT NOTICE of Hearing: A Settlement Conference will be conducted in this matter on 5/17/2006 at 10:00 AM in chambers the U.S. Courthouse, 445 Broadway, in Albany, New York before Magistrate Judge David E. Peebles. At that conference the parties are directed to appear in person, through counsel and, unless specifically excused by the court prior to the time of the conference, by a

Case: 9:05-cv-1038 As of: 02/14/2014 01:23 PM EST 7 of 20

04/19/2006 04/24/2006
04/25/2006 05/17/2006
05/19/2006 06/29/2006
08/11/2006 08/17/2006
09/26/2006 10/13/2006

representative of the party with full authority to enter into binding agreements on behalf of that party in connection with this litigation. In preparation for the scheduled settlement conference, not later than one week prior to the conference date, the parties shall submit directly to chambers a short, concise statement setting forth the material facts of the case, together with an indication of which if any are disputed; providing a synopsis of the parties' respective legal positions concerning any issues presented in the case; and outlining any settlement discussions which have occurred. That confidential statement, which shall not be filed with the court clerk and need not be served upon opposing counsel, should also include an assessment of the strength and weaknesses of the party's position in the case together with a candid indication of the party's settlement position.(sal, ) (Entered: 04/18/2006)
Since a settlement conference has been scheduled in this matter, the Rule 16 Conference scheduled for tomorrow has been canceled. (sal, ) (Entered: 04/19/2006)
38 Letter Motion from Nelson R. Sheingold for Lester N. Wright, New York State Department of Correctional Services requesting that the date to submit a proposed class definition be held in abeyance pending the parties' efforts to settle the equitable claims and the scheduled settlement conference with Magistrate Judge Peebles submitted to Judge Hurd on behalf of all parties. (Sheingold, Nelson) (Entered: 04/24/2006)
39 Endorsement ORDER granting the 38 Letter requesting that the date to submit a proposed class definition be held in abeyance pending the parties' efforts to settle the equitable claims and the scheduled settlement conference with Magistrate Judge Peebles Signed by Judge David N. Hurd on 4/25/2006. (see) (Entered: 04/25/2006)
TEXT Minute Entry for proceedings held before Judge David E. Peebles : Settlement Conference held in Albany on 5/17/2006. Parties have settled several of the equitable claims, however, they will continue to work together on resolving the disputed claims that remain. A telephone conference will be scheduled within thirty days w/ Judge Peebles to discuss their progress. APP: Alexander Reinert, Esq., Keith Donoghue, Esq. for Pltfs.. Nelson Sheingold, Esq., Amy Mahar and Tony Annucci (DOCS counsel), and Belinda Wagner (NYS AG's office) for Defts.. (sal, ) (Entered: 05/17/2006)
TEXT NOTICE of Hearing: Status Telephone Conference set for 6/19/2006 at 3:00 PM before Magistrate Judge David E. Peebles. Defendants' attorney is directed to make arrangements for initiating the call to counsel for all parties and the court which should be contacted at (315) 234−8620.(sal, ) (Entered: 05/19/2006)
TEXT Minute Entry for proceedings held before Judge David E. Peebles : Status Conference held on 6/29/2006. Parties are making progress regarding settlement. Next telephone conference is scheduled for 8/10/06 at 3:30 PM. Defendant's counsel is to initiate the call. Parties will have more specifics regarding settlement at that time. APP: Nelson Sheingold, Esq., Alexander Reinert, Esq., Belinda Wagner, Esq., Amy Mahar, Esq.. (sal, ) (Entered: 06/29/2006)
NOTICE TO COUNSEL: The telephone conference that was scheduled for yesterday has been rescheduled for 8/17/06 at 3:00 PM. Defendant's counsel will be providing a call−in number for this conference call. (sal, ) (Entered: 08/11/2006)
TEXT Minute Entry for proceedings held before Judge David E. Peebles : Status Conference held on 8/17/2006. Proposed settlement documents have been provided to defendant's counsel. The parties are just working on some final issues and should be able to submit this settlement agreement to the court w/in 30 days. No new conference is scheduled. Case will be tracked for 45 days. APP: Nelson Sheingold, Esq. &Alexander Reinert, Esq.. (sal, ) (Entered: 08/17/2006)
40 LETTER BRIEF dtd 9/14/2006 to Judge Hurd from a Class Member. (see) (Entered: 09/27/2006)
NOTICE TO COUNSEL: CRD for Judge Peebles spoke w/ Nelson Sheingold, AAG today regarding the status of settlement. Atty. Sheingold states that

Case: 9:05-cv-1038 As of: 02/14/2014 01:23 PM EST 8 of 20

11/30/2006 12/01/2006 12/01/2006 12/18/2006 12/20/2006 01/09/2007
02/22/2007
03/22/2007 05/23/2007

settlement is progressing, however, the parties are still working on details of the settlement and will need more time for everyone to sign off on it. After that is done, the parties will be discussing settlement of attorneys fees. CRD advises counsel that if the parties are having difficulty with any part of the settlement of this case, particularly the attorney fee issue, then they may request a conference before Judge Peebles. CRD for Judge Peebles will track case for another 45 days and will contact the parties at that time regarding status of this case. (sal, ) (Entered: 10/13/2006)
41 Letter w/attachments, from Frank DiChiara to Judge Hurd. (cbm, ) (Entered: 11/30/2006)
TEXT NOTICE of Hearing: A Status Telephone Conference is set for 12/21/2006 at 2:00 PM before Magistrate Judge David E. Peebles to discuss what issues remain in this case. Defendant's counsel is directed to initiate this call. (sal, ) (Entered: 12/01/2006)
42 Letter to Counsel from Judge Peebles regarding a letter from inmate DiChiara. (rjb, ) (Entered: 12/01/2006)
NOTICE TO COUNSEL: Due to a conflict w/ Judge Peebles schedule, the telephone conference scheduled for 12/21/06 at 2:00 PM has been adjourned without date. After CRD for Judge Peebles spoke w/ defendant's counsel, it was decided that a status letter will be submitted by 1/8/07 to inform the court what issues remain. At that time, Judge Peebles will decide whether a telephone conference should be scheduled. (sal, ) (Entered: 12/18/2006)
43 Letter from Frank Di Chiara, enclosing a copy of a letter for the Court's review. (see) (Entered: 12/20/2006)
TEXT NOTICE of Hearing: A Settlement Conference, with counsel ONLY, is set for 2/22/2007 at 11:00 AM in Albany before Magistrate Judge David E. Peebles. In preparation for the scheduled settlement conference, not later than 2/15/07, the parties shall submit directly to my chambers in Syracuse, New York by facsimile (315−234−8621) or by mail, a short, concise statement setting forth the material facts of the case, together with an indication of which if any are disputed., including attorneys fees; providing a synopsis of the parties' respective legal positions concerning any issues presented in the case; and outlining any settlement discussions which have occurred. That confidential statement, which will not be filed with the court clerk and need not be served upon opposing counsel, should also include an assessment of the strength and weaknesses of the party's position in the case together with a candid indication of the party's settlement position.(sal, ) (Entered: 01/09/2007)
TEXT Minute Entry for proceedings held before Judge David E. Peebles : Settlement Conference held on 2/22/2007. Parties advise that an interim settlement has been reached between the parties. They are currently discussing the specific wording of the settlement agreement. This settlement agreement will be submitted to Judge Hurd for approval since class certification is involved. Judge discusses w/ counsel the attorneys fees issue and ultimately resolves it. Parties settle as to the attorneys fees issue subject to the approval by the NYS Attorney General's Office. Judge directs parties to submit a status report by 3/22/07 regarding the progress of the interim settlement and, if the settlement agreement is not filed by that time, as to why the agreement has not been filed w/ the court. APP: Alexander Reinert, Esq., and Nelson Sheingold, AAG. (sal, ) (Entered: 02/23/2007)
44 STATUS REPORT on behalf of all parties by Lester N. Wright, New York State Department of Correctional Services. (Sheingold, Nelson) (Entered: 03/22/2007)
CRD for Judge Peebles spoke w/ Nelson Sheingold, Esq. today re: settlement of this case. Attorney Sheingold stated that he has approval from the State and they have now signed off on the settlement. DOCS will be taking one final look at the settlement agreement and will most likely confirm w/ Attorney Sheingold today. A settlement agreement is expected to be filed w/ the court for Judge Hurd's signature by the end of the week. After the attorneys' fee issue is resolved and the settlement agreement is entered, the parties will then turn to settling the individual plaintiff's claims. At that time, the parties are directed to file a joint status letter and then

Case: 9:05-cv-1038 As of: 02/14/2014 01:23 PM EST 9 of 20

06/21/2007
07/20/2007 07/20/2007
07/25/2007
07/25/2007 07/25/2007 07/27/2007 08/30/2007 09/10/2007 09/11/2007 09/13/2007 09/18/2007 09/18/2007

Judge Peebles will schedule a telephone conference. (NOTE: Nelson Sheingold, Esq. will be leaving the AG's office as of 6/1/07 and this case will be reassigned to someone else.) (sal, ) (Entered: 05/23/2007)
CRD for Judge Peebles spoke w/ Belinda Wagner, AAG today who has been recently substituted as counsel in place of Nelson Sheingold, AAG in this case (the docket has now been adjusted to reflect this). She advised that plaintiff's counsel has been out of the country and has just recently returned to work, but he is also on part−time status now w/ his firm. The parties have been working together to clear up some typos within the settlement agreement before filing it w/ the court for Judge Hurd's review. Atty. Wagner indicates that she normally deals w/ state court proceedings and Risa Viglucci, AAG, who normally deals w/ federal proceedings, has been helping her w/ this case, however, she has been recently out of the office and is expected to return shortly. Since there seems to be a delay that is acceptable to the court at this time, Judge Peebles has directed the parties to file the settlement agreement w/ the court BY JULY 20, 2007. The parties are advised that no further extensions will be granted, unless unforeseen circumstances occur. (sal, ) (Entered: 06/21/2007)
45 NOTICE of Appearance by Risa L. Viglucci on behalf of Lester N. Wright, New York State Department of Correctional Services (Viglucci, Risa) (Entered: 07/20/2007)
46 Letter Motion from Belinda A. Wagner, Assistant Attorney General for Lester N. Wright, New York State Department of Correctional Services requesting a review of documents, so ordering the stipulation, scheduling a date for party submissions in support of the agreement, scheduling a date for a fairness hearing and scheduling a date for objections from the class, and sealing of the class objections submitted to Judge Hurd. (Attachments: # 1 Declaration of Service# 2 Proposed Order/Judgment Interim Settlement Agreement# 3 Exhibit(s) Notice to Class# 4 Exhibit(s) Stipulation)(Viglucci, Risa) (Entered: 07/20/2007)
47 STIPULATION &ORDER Regarding Notice to the Plaintiff Class and Scheduling of Fairness Hearing: A "Fairness Hearing" is scheduled to be held pursuant to FRCivP 23(e), before the Court at the US Courthouse in Utica, NY on December 14, 2007 at 9:00 a.m., after which the Court shall determine whether the Agreement shall be approved as a settlement of this class action. Signed by Judge David N. Hurd on 7/25/2007. (see) (Entered: 07/25/2007)
48 INTERIM SETTLEMENT AGREEMENT. (see) (Entered: 07/25/2007)
49 NOTICE to the Class. (see) (Entered: 07/25/2007)
50 Minute Entry for proceedings held before Judge David N. Hurd : Telephone Conference held on 7/25/2007. (Court Reporter None) (cmr, ) (Entered: 07/27/2007)
51 NOTICE by Robert Hilton Substitution of Lead Counsel &Change of Address (Magoolaghan, Joan) (Entered: 08/30/2007)
52 SEALED inmate letters objecting to proposed interim settlement agreement − maintained in Clerk's Office and not available for electronic viewing (see) (Entered: 09/10/2007)
53 SEALED DOCUMENT/Agreement − maintained in Clerk's Office and not available for electronic viewing. [Sealed per Oral Order of Judge Hurd on 9/11/2007] (see) (Entered: 09/12/2007)
54 SEALED inmate letters objecting to interim settlement agreement − maintained in Clerk's Office and not available for electronic viewing. (see) (Entered: 09/13/2007)
55 SEALED Inmate Objections to Interim Settlement − maintained in Clerk's Office and not available for electronic viewing. (see) (Entered: 09/18/2007)
TEXT NOTICE of Hearing: An In−Person Settlement Conference is set for 11/29/2007 at 10:30 AM in Albany before Magistrate Judge David E. Peebles to discuss the individual plaintiffs' claims. In preparation for the scheduled settlement conference, not later than 11/20/07, the parties shall submit directly to Judge

Case: 9:05-cv-1038 As of: 02/14/2014 01:23 PM EST 10 of 20

09/19/2007 09/20/2007 09/24/2007 09/26/2007
09/27/2007 10/03/2007
10/04/2007 10/11/2007 10/12/2007 10/15/2007 10/17/2007 10/18/2007 10/22/2007 10/24/2007 10/25/2007
11/08/2007
11/08/2007 11/15/2007 11/20/2007

Peebles' chambers a short, concise statement setting forth the material facts of the case, together with an indication of which if any are disputed; providing a synopsis of the parties' respective legal positions concerning any issues presented in the case; and outlining any settlement discussions which have occurred. That confidential statement, which shall not be filed with the court clerk and need not be served upon opposing counsel, should also include an assessment of the strength and weaknesses of the party's position in the case together with a candid indication of the party's settlement position.(sal, ) (Entered: 09/18/2007)
56 SEALED inmate letters, re: proposed class action settlement − maintained in Clerk's Office and not available for electronic viewing. (see) (Entered: 09/19/2007)
57 SEALED letter from inmate, re: proposed class action settlement − maintained in Clerk's Office and not available for electronic viewing. (see) (Entered: 09/20/2007)
58 SEALED inmate letters, re: proposed class action settlement − maintained in Clerk's Office and not available for electronic viewing. (see) (Entered: 09/24/2007)
59 Letter Motion from Belinda A. Wagner, AAG for Lester N. Wright, New York State Department of Correctional Services requesting copies of objections submitted to Judge Hurd. (Wagner, Belinda) (Entered: 09/26/2007)
60 SEALED Inmate letter, re: proposed class settlement − maintained in Clerk's Office and not available for electronic viewing. (see) (Entered: 09/27/2007)
61 Minute Entry for proceedings held before Judge David N. Hurd : Telephone Conference held on 10/2/2007 (Court Reporter None) (cmr, ) (Entered: 10/03/2007)
62 SEALED Inmate letter, re: proposed class action settlement − maintained in Clerk's Office and not available for electronic viewing. (see) (Entered: 10/04/2007)
63 SEALED Inmate letters, re: proposed class action settlement − maintained in Clerk's Office and not available for electronic viewing. (see) (Entered: 10/11/2007)
64 SEALED Inmate letter, re: proposed class action settlement − maintained in Clerk's Office and not available for electronic viewing. (see) (Entered: 10/12/2007)
65 SEALED Inmate letters, re: proposed class action settlement − maintained in Clerk's Office and not available for electronic viewing. (see) (Entered: 10/15/2007)
66 SEALED Inmate letters, re: proposed class action settlement − maintained in Clerk's Office and not available for electronic viewing. (see) (Entered: 10/18/2007)
67 SEALED Inmate letter, re: proposed class action settlement − maintained in Clerk's Office and not available for electronic viewing. (see) (Entered: 10/19/2007)
68 SEALED Inmate letters, re: proposed class action settlement − maintained in Clerk's Office and not available for electronic viewing. (see) (Entered: 10/23/2007)
69 SEALED Inmate letters, re: proposed class action settlement − maintained in Clerk's Office and not available for electronic viewing. (see) (Entered: 10/24/2007)
70 SEALED Supplement to previous submission included in document #68 − maintained in Clerk's Office and not available for electronic viewing. (see) (Entered: 10/25/2007)
71 Minute Entry for proceedings held before Judge David N. Hurd : Telephone Conference held on 11/7/2007 (Court Reporter None) (cmr, ) (Entered: 11/08/2007)
72 SEALED Inmate letter, re: proposed class action settlement − maintained in Clerk's Office and not available for electronic viewing. (see) (Entered: 11/08/2007)
73 SEALED Inmate letter, re: proposed class action settlement − maintained in Clerk's Office and not available for electronic viewing. (see) (Entered: 11/15/2007)
TEXT SCHEDULING NOTICE. Due to a conversation chambers had with counsel in this matter the settlement conference scheduled to be held in Albany, NY on 11/29/07 at 10:30 am has been adjourned without date. A status telephone

Case: 9:05-cv-1038 As of: 02/14/2014 01:23 PM EST 11 of 20

11/27/2007 11/30/2007
11/30/2007 12/03/2007 12/04/2007 12/06/2007 12/14/2007 12/14/2007 12/14/2007
12/21/2007 01/02/2008 01/04/2008

conference has been scheduled for 12/19/07 at 3:00 pm. Attorney Magoolaghan will initiate the call. Authorized by the Hon. David E. Peebles. (cam, ) (Entered: 11/20/2007)
74 SEALED Inmate letter, re: proposed class action settlement − maintained in Clerk's Office and not available for electronic viewing. (see) (Entered: 11/27/2007)
75 MOTION to Approve Consent Judgment [Interim Settlement Agreement] Motion Hearing set for 12/14/2007 09:30 AM in Utica before Judge David N. Hurd. by Lester N. Wright, New York State Department of Correctional Services. (Attachments: # 1 Declaration Wagner decl. in support# 2 Exhibit(s) Exhibit A (Interim Settlement Agt.)# 3 Exhibit(s) Stipulation# 4 Exhibit(s) Exhibit C − Notice# 5 Exhibit(s) Exhibit D − Notice (Spanish)# 6 Declaration Heywood Declartion# 7 Exhibit(s) Exhibit A (Notice−English)# 8 Exhibit(s) Exhibit B (Notice−Spanish)# 9 Exhibit(s) Settlement Agreement# 10 Exhibit(s) Exhibit D ( Agreement−Spanish)# 11 Memorandum of Law In Support of Motion to Approve Settlement) (Viglucci, Risa) (Entered: 11/30/2007)
76 SETTLEMENT AGREEMENT Plaintiffs Submission in Support of Interim Settlement Agreement by Robert Hilton. (Attachments: # 1 Exhibit(s) Exhibit A# 2 Exhibit(s) Exhibit B# 3 Exhibit C# 4 # 5 Exhibit E# 6 Memorandum of Law # 7 Affidavit Affidavit of Service)(Magoolaghan, Joan) (Entered: 11/30/2007)
77 CERTIFICATE OF SERVICE by Lester N. Wright, New York State Department of Correctional Services re 75 MOTION to Approve Consent Judgment [Interim Settlement Agreement] MOTION to Approve Consent Judgment [Interim Settlement Agreement] MOTION to Approve Consent Judgment [Interim Settlement Agreement] (Viglucci, Risa) (Entered: 12/03/2007)
Set/Reset Deadlines as to 75 MOTION to Approve Consent Judgment [Interim Settlement Agreement] MOTION to Approve Consent Judgment [Interim Settlement Agreement] MOTION to Approve Consent Judgment [Interim Settlement Agreement]. Motion Hearing set for 12/14/2007 ON SUBMIT. No need to appear. Ct. to issue written order. (cmr, ) (Entered: 12/04/2007)
78 SEALED Inmate letter − maintained in Clerk's Office and not available for electronic viewing. (see) (Entered: 12/06/2007)
79 Letter Motion from Joan Magoolaghan, Esq. for Robert Hilton requesting Consideration of Plaintiffs' Proposed Order submitted to Judge Hurd. (Attachments: # 1 Plaintiffs' Proposed Order)(Magoolaghan, Joan) (Entered: 12/14/2007)
80 AFFIDAVIT re 79 Letter Motion from Joan Magoolaghan, Esq. for Robert Hilton requesting Consideration of Plaintiffs' Proposed Order submitted to Judge Hurd Affidavit of Service by Robert Hilton. (Magoolaghan, Joan) (Entered: 12/14/2007)
81 AFFIDAVIT in Support re 75 MOTION to Approve Consent Judgment [Interim Settlement Agreement] MOTION to Approve Consent Judgment [Interim Settlement Agreement] MOTION to Approve Consent Judgment [Interim Settlement Agreement] filed by Lester N. Wright, New York State Department of Correctional Services. (Attachments: # 1 Proposed Order/Judgment to approve Interim Settlement Agreement# 2 Exhibit(s) # 3 # 4 # 5 Affirmation Certificate of service)(Wagner, Belinda) (Entered: 12/14/2007)
TEXT SCHEDULING ORDER. Due to the non−appearance of both counsel, the telephone conference that was scheduled for 12/19/07 at 3:00 pm has been rescheduled to 1/3/2008 03:30 PM before Magistrate Judge David E. Peebles. Attorney Wagner is asked to initiate the call. Authorized by Judge David E. Peebles on 12/21/07. (cam, ) (Entered: 12/21/2007)
82 ORDER granting 75 Motion to Approve Consent Judgment; granting 79 Letter Request; denying the plaintiff class' application for permission to amend their complaint to assert a claim for damages. Signed by Judge David N. Hurd on 1/2/08. (rjb, ) (Entered: 01/03/2008)
TEXT Minute Entry for proceedings held before Judge David E. Peebles : Status Conference held on 1/3/2008. Judge Hurd has issued an Order denying the plaintiff

Case: 9:05-cv-1038 As of: 02/14/2014 01:23 PM EST 12 of 20

01/04/2008 01/11/2008 01/18/2008 03/06/2008
03/07/2008 03/18/2008 03/25/2008 04/01/2008 04/30/2008 05/28/2008
05/28/2008 06/16/2008

class permission to move to amend the complaint as to damages and approved the interim settlement agreement executed by the parties in July of 2007 as a final settlement for all claims for equitable and injunctive relief. All that remains in this case is the individual claims for damages. Counsel notes that Mr. Hilton is now out of custody and defendants' counsel may have him complete a Rule 35 exam. Medical authorizations will be provided by defendants' counsel to the plaintiff for signature shortly. Next telephone conference is set for 3/6/08 at 4:30 PM. Plaintiff's counsel is directed to initiate the call. APP: Elizabeth Koob, Esq., Belinda Wagner, Esq., and Risa Viglucci, Esq.. (sal, ) (Entered: 01/04/2008)
Set Hearings: Status Telephone Conference set for 3/6/2008 at 4:30 PM before Magistrate Judge David E. Peebles. Plaintiff's counsel is directed to initiate the call. (sal, ) (Entered: 01/04/2008)
83 SEALED Inmate letter, re: class action settlement − maintained in Clerk's Office and not available for electronic viewing. (see) (Entered: 01/11/2008)
84 SEALED Inmate Letter, re: class action settlement − maintained in Clerk's Office and not available for electronic viewing. (see) (Entered: 01/22/2008)
TEXT Minute Entry for proceedings held before Magistrate Judge David E. Peebles: Status Conference held on 3/6/2008. Settlement demand and authorizations were served in January. Defendants' expert will review the records and advise whether or not an exam of the plaintiff will be required. Judge urges parties to get the depositions completed. Next telephone conference is set for 4/17/08 at 4:00 PM. Defendants' counsel is directed to initiate the call to Chambers who can be reached at (315) 234−8620. APP: Elizabeth Koob, Esq., and Belinda Wagner, Esq.. (sal, ) (Entered: 03/07/2008)
Set Hearings: Status Telephone Conference set for 4/17/2008 at 4:00 PM before Magistrate Judge David E. Peebles. Defendants' counsel is directed to initiate the call to Chambers. (sal, ) (Entered: 03/07/2008)
85 ***SEALED Inmate letter, re: class action settlement not available for public view. (see) (Entered: 03/18/2008)
86 ***SEALED Inmate Letter. (see) (Entered: 03/25/2008)
87 ***SEALED Inmate Letter, re: Class Participation (see) (Entered: 04/01/2008)
TEXT SCHEDULING ORDER. Due to a conflict in Judge Peebles' calendar the telephone conference that was scheduled for 4/17/08 has been rescheduled to 5/28/08 at 3:00 pm. Defendant's counsel is asked to initiate the call. Authorized by Magistrate Judge David E. Peebles on 4/30/08. (cam, ) (Entered: 04/30/2008)
TEXT Minute Entry for proceedings held before Magistrate Judge David E. Peebles: Status Conference held on 5/28/2008. On 4/14/08, plaintiff Robert Hilton's deposition was completed. Defendants' counsel states that during the deposition the plaintiff advised he has been examined by other medical providers. Medical authorizations have been provided to the plaintiff and signed. Some of the medical records from these providers have already been sent to defendants' counsel. The deposition for plaintiff Louis Vasquez has been rescheduled, since he was recently released from DOCS the beginning of May. Defendants' counsel does not intend to take Rule 35 exams of the plaintiffs. Plaintiffs' counsel may be retaining an expert. Once all the medical records are received by defendants' counsel and the deposition of plaintiff Vasquez is completed, the parties will be able to discuss settlement. Judge sets a telephone conference for 7/17/08 at 3:00 PM. Plaintiffs' counsel is directed to initiate the call. Unless the parties are optimistic about settlement at that time, deadlines for discovery, expert disclosures, and motion filing will be set. APP: Elizabeth Koob, Esq., Belinda Wagner, AAG, and Nancy Haywood, AAG. (sal, ) (Entered: 05/28/2008)
Set Hearings: Status Telephone Conference set for 7/17/2008 at 3:00 PM before Magistrate Judge David E. Peebles. Plaintiffs' counsel is directed to initiate the call. (sal, ) (Entered: 05/28/2008)
88 ***SEALED DOCUMENT/Inmate letter, re: settlement. (see) (Entered: 06/16/2008)

Case: 9:05-cv-1038 As of: 02/14/2014 01:23 PM EST 13 of 20

07/17/2008
07/18/2008 07/18/2008 08/18/2008 08/18/2008 11/12/2008 11/14/2008 12/03/2008
12/03/2008 01/30/2009 01/30/2009 02/09/2009

TEXT Minute Entry for proceedings held before Magistrate Judge David E. Peebles: Status Conference held on 7/17/2008. Depositions have been taken of the plaintiffs. Plaintiffs' counsel has had some problems getting the medical records from various hospitals regarding Vasquez. Plaintiffs' counsel also states that some information was disclosed during Hilton's deposition that may have an impact on this case. Parties will be retaining experts, however, expert reports have not yet been exchanged. Plaintiffs' expert report is due by 8/15/08. Defendants' expert report is due by 9/12/08. Rebuttal expert reports are due by 9/26/08. Completion of expert depositions is due by 10/31/08. Motion filing deadline is set for 12/31/08. THIS IS A FINAL SCHEDULE. Next telephone conference is set for 11/13/08 at 3:00 PM. Defendants' counsel is directed to initiate the call. APP: Elizabeth Koob, Esq., and Belinda Wagner, Esq.. (sal, ) (Entered: 07/18/2008)
Set/Reset Hearings: Status Telephone Conference set for 11/13/2008 03:00 PM before Magistrate Judge David E. Peebles. Defendants' counsel is directed to initiate the call. (sal, ) (Entered: 07/18/2008)
TEXT SCHEDULING ORDER: Plaintiffs' expert report is due by 8/15/08. Defendants' expert report is due by 9/12/08. Rebuttal expert reports are due by 9/26/08. Completion of expert depositions is due by 10/31/08. Motions to be filed by 12/31/2008. THIS IS A FINAL SCHEDULE. Authorized by Magistrate Judge David E. Peebles on 7/18/08. (sal, ) (Entered: 07/18/2008)
89 Letter Motion from plaintiffs for Robert Hilton requesting Extension of time for expert reports submitted to Judge Peebles. (Magoolaghan, Joan) (Entered: 08/18/2008)
TEXT ORDER granting 89 Letter Request. Plaintiffs' expert report is due by 9/5/08. Defendants' expert report is due by 10/3/08. Rebuttal expert reports are due by 10/13/08. Completion of expert depositions is due by 11/14/08. Motion filing deadline remains at 12/31/08. Authorized by Magistrate Judge David E. Peebles on 8/15/08. (cam, ) (Entered: 08/18/2008)
90 Letter Motion from Karen Marcoux Mankes for Lester N. Wright, New York State Department of Correctional Services requesting an adjournment of the November 13, 2008 telephone conference submitted to Judge Peebles. (Mankes, Karen) (Entered: 11/12/2008)
TEXT ORDER granting 90 Letter Request. The telephone conference scheduled in this matter for 11/13/08 has been rescheduled to 12/3/2008 at 3:30 PM before Magistrate Judge David E. Peebles. Defendants counsel is directed to initiate the call. Authorized by Magistrate Judge David E. Peebles on 11/14/08. (cam, ) (Entered: 11/14/2008)
TEXT Minute Entry for proceedings held before Magistrate Judge David E. Peebles: Status Conference held on 12/3/2008. Consent Judgment has been fully complied with. Plaintiff's counsel will file a final report regarding this at the end of January. Due to unforeseen circumstances, parties have not completed expert depositions, however, they have exchanged expert reports. Parties have given possible dates in January to complete expert depositions. Judge extends discovery deadline to 1/31/09. Motion deadline is extended until 3/16/09. Case cannot be settled. APP: Elizabeth Koob, Esq., Belinda Wagner, Esq., and Karen Marcoux Mankes, Esq.. (sal, ) (Entered: 12/03/2008)
TEXT SCHEDULING ORDER: Discovery deadline extended until 1/31/2009. Motions to be filed deadline extended until 3/16/2009. Authorized by Magistrate Judge David E. Peebles on 12/3/08. (sal, ) (Entered: 12/03/2008)
91 Letter Motion from Plaintiffs' Counsel for Robert Hilton requesting Extension of Time to File Final Report submitted to Judge Peebles. (Magoolaghan, Joan) (Entered: 01/30/2009)
TEXT ORDER GRANTING 91 Letter Request. Extension granted to 2/13/09 for the filing of a final report. Authorized by Magistrate Judge David E. Peebles on 1/30/09. (cam, ) (Entered: 01/30/2009)
92 STATUS REPORT by Lester N. Wright, New York State Department of Correctional Services. (Attachments: # 1 Exhibit(s) A)(Wagner, Belinda) (Entered:

Case: 9:05-cv-1038 As of: 02/14/2014 01:23 PM EST 14 of 20

02/13/2009 02/19/2009 02/20/2009 02/20/2009 02/24/2009
02/25/2009 02/25/2009 03/16/2009
04/01/2009 04/02/2009

02/09/2009)
93 STATUS REPORT and Fee Application by Robert Hilton. (Attachments: # 1 Exhibit(s), # 2 Exhibit(s), # 3 Exhibit(s), # 4 Exhibit(s), # 5 Exhibit(s), # 6 Exhibit(s), # 7 Exhibit(s))(Magoolaghan, Joan) (Entered: 02/13/2009)
94 Letter Motion from Belinda Wagner for Lester N. Wright, New York State Department of Correctional Services requesting advice submitted to Judge Peebles. (Wagner, Belinda) (Entered: 02/19/2009)
95 RESPONSE TO LETTER BRIEF filed by Robert Hilton as to 94 Letter Request/Motion filed by Lester N. Wright, New York State Department of Correctional Services. (Magoolaghan, Joan) (Entered: 02/20/2009)
TEXT ORDER re: 94 Letter Request and 95 Response Letter Brief. A Telephone Conference is set for 2/24/2009 at 4:00 PM before Magistrate Judge David E. Peebles to discuss these letters, as well as the final reports 92 and 93 , recently submitted. Defendants' counsel is directed to initiate the call to Chambers. Parties are advised that no further briefing shall be submitted until this conference is conducted. Authorized by Magistrate Judge David E. Peebles on 2/20/09. (sal, ) (Entered: 02/20/2009)
TEXT Minute Entry for proceedings held before Magistrate Judge David E. Peebles: Status Conference held on 2/24/2009. There are three issues that need to be discussed. First issue is whether or not all of the requirements of the consent judgment have been complied with. Plaintiffs' counsel has recently submitted a list to defendants' counsel with names of individuals that may be part of the class. Defendants' will respond to this list and then parties will have a dialogue to try and resolve some of these issues informally before presenting them to the court at the next conference. As to the second issue, plaintiff's counsel has requested to increase the fee application that was previously detailed in paragraph 6 of the Interim Agreement. Judge holds this in abeyance until the end of the period listed in the stipulation that is in place. Parties will discuss, at that time, possible options to try and resolve the matter before a motion for attorneys fees is filed. As to the third issue regarding where the parties stand w/ a trial date, defendants' counsel states that they will be filing a motion for summary judgment in this action. Judge extends the motion filing deadline to 4/3/09. Next telephone conference is set for 3/16/09 at 4:00 PM. Defendants' counsel is directed to initiate the call. APP: Elizabeth Koob, Esq., and Belinda Wagner, Esq.. (sal, ) (Entered: 02/25/2009)
Set/Reset Hearings: Status Telephone Conference set for 3/16/2009 04:00 PM before Magistrate Judge David E. Peebles. Defendants' counsel is directed to initiate the call. (sal, ) (Entered: 02/25/2009)
TEXT SCHEDULING ORDER: Motions to be filed deadline is extended until 4/3/2009. Authorized by Magistrate Judge David E. Peebles on 2/25/09. (sal, ) (Entered: 02/25/2009)
TEXT Minute Entry for proceedings held before Magistrate Judge David E. Peebles: Status Conference held on 3/16/2009. Judge notes that the motion deadline remains set for 4/3/09 and defendants' counsel intends to file a dispositive motion to address the individual claims for damages. The Consent Judgment expires in July, unless an extension is given by Judge Hurd upon request. Plaintiffs' counsel will negotiate w/ defendants' counsel and DOCS to settle attorneys' fees issue. If they can resolve this issue, then they will file a stipulation w/ the court. If they cannot resolve this, then they are to apply to Judge Hurd for relief. No new conference is set before Judge Peebles. APP: Elizabeth Koob, Esq., and Belinda Wagner, Esq.. (sal, ) (Entered: 03/17/2009)
96 Letter Motion from Belinda A. Wagner for Lester N. Wright, New York State Department of Correctional Services requesting extension from 4/3/09 to 4/17/09 for Defendants' Motion for Summary Judgment submitted to Judge David E. Peebles. (Wagner, Belinda) (Entered: 04/01/2009)
TEXT ORDER granting 96 Letter Request. The filing of defendants' summary judgment motion has been extended to 4/17/09. Authorized by Magistrate Judge David E. Peebles on 4/2/09. (cam, ) (Entered: 04/02/2009)

Case: 9:05-cv-1038 As of: 02/14/2014 01:23 PM EST 15 of 20

04/17/2009
04/22/2009 04/23/2009 04/24/2009 06/05/2009 06/08/2009 06/08/2009 07/14/2009 07/20/2009

97 MOTION for Summary Judgment Motion Hearing set for 5/22/2009 10:00 AM in Albany before Judge David N. Hurd Response to Motion due by 5/5/2009 Reply to Response to Motion due by 5/11/2009. filed by Lester N. Wright, New York State Department of Correctional Services. (Attachments: # 1 Declaration of Belinda Wagner, # 2 Exhibit(s) A to Wagner Dcl, # 3 Exhibit(s) B to Wagner Dcl, # 4 Exhibit(s) C to Wagner Dcl, # 5 Exhibit(s) D to Wagner Dcl, # 6 Exhibit(s) E to Wagner Dcl, # 7 Exhibit(s) F to Wagner Dcl, # 8 Exhibit(s) G to Wagner Dcl, # 9 Declaration of Dr. Lester Wright, # 10 Exhibit(s) A to Wright Dcl, # 11 Exhibit(s) B to Wright Dcl, # 12 Exhibit(s) C to Wright Dcl, # 13 Exhibit(s) D to Wright Dcl, # 14 Exhibit(s) E to Wright Dcl, # 15 Exhibit(s) F to Wright Dcl, # 16 Exhibit(s) G to Wright Dcl, # 17 Exhibit(s) H to Wright Dcl, # 18 Exhibit(s) I to Wright Dcl, # 19 Exhibit(s) J to Wright Dcl, # 20 Exhibit(s) K to Wright Dcl, # 21 Declaration of Dr. John Rodgers, # 22 Exhibit(s) A to Rodgers Dcl, # 23 Exhibit(s) B to Rodgers Dcl, # 24 Statement of Material Facts, # 25 Memorandum of Law, # 26 Appendix 1 to memo of law, # 27 Appendix 2 to memo of law, # 28 Appendix 3 to memo of law, # 29 Appendix 4 to memo of law, # 30 Appendix 5 to memo of law, # 31 Appendix 6 to memo of law, # 32 Appendix 7 to memo of law, # 33 Appendix 8 to memo of law, # 34 Appendix 9 to memo of law, # 35 Appendix 10 to memo of law, # 36 Appendix 11 to memo of law, # 37 Appendix 12 to memo of law, # 38 Appendix 13 to memo of law, # 39 Appendix 14 to memo of law, # 40 Appendix 15 to memo of law, # 41 Appendix 16 to memo of law, # 42 Appendix 17 to memo of law, # 43 Appendix 18 to memo of law, # 44 Appendix 19 to memo of law, # 45 Declaration of Service of a copy of all of the above on counsel for plaintiffs) (Wagner, Belinda) (Entered: 04/17/2009)
98 NOTICE of Appearance by James Seaman on behalf of all defendants (Seaman, James) (Entered: 04/22/2009)
99 Letter Motion from Plaintiffs' Counsel for Robert Hilton requesting Modification of motion schedule submitted to Judge Peebles. (Magoolaghan, Joan) (Entered: 04/23/2009)
TEXT ORDER granting 99 Letter Request, 97 MOTION for Summary Judgment : Motion Hearing set for 6/26/2009 at 10:00 AM in Albany before Judge David N. Hurd. Response to Motion due by 6/5/2009. Reply to Response to Motion due by 6/19/2009. Authorized by Magistrate Judge David E. Peebles on 4/24/09. (sal, ) (Entered: 04/24/2009)
100 Letter Motion from Elizabeth Koob for Robert Hilton requesting rescheduling of motion submitted to Judge Peebles. (Koob, Elizabeth) (Entered: 06/05/2009)
101 Endorsement ORDER granting 100 Letter Request to reschedule deft's motion for summary judgment. Signed by Judge David N. Hurd on 6/8/2009. (see) (Entered: 06/08/2009)
Reset Deadlines as to 97 MOTION for Summary Judgment. Response to Motion due by 8/10/2009. Reply to Response to Motion due by 9/14/2009. Motion Hearing set for 9/25/2009 10:00 AM in Albany before Judge David N. Hurd. (see) (Entered: 06/08/2009)
102 Joint letter request. Letter Motion from Elizabeth Koob for Robert Hilton requesting settlement conference and rescheduling of pending motion submitted to Judge Peebles. (Koob, Elizabeth) (Entered: 07/14/2009)
TEXT ORDER granting 102 Letter Request. An in−person Settlement Conference is set for 8/27/2009 at 10:00 AM in Albany before Magistrate Judge David E. Peebles. In preparation for the scheduled settlement conference, not later than 8/17/09, the parties shall submit directly to Judge Peebles' chambers a short, concise statement setting forth the material facts of the case providing a synopsis of the parties' respective legal positions concerning any issues presented in the case and outlining any settlement discussions which have occurred. That confidential statement, which shall not be filed with the court clerk and need not be served upon opposing counsel, should also include an assessment of the strength and weaknesses of the party's position in the case together with a candid indication of the party's settlement position. Authorized by Magistrate Judge David E. Peebles on 7/20/09. (sal, ) (Entered: 07/20/2009)

Case: 9:05-cv-1038 As of: 02/14/2014 01:23 PM EST 16 of 20

07/20/2009
07/20/2009 07/21/2009 08/27/2009
08/28/2009 09/15/2009 10/06/2009 10/07/2009 10/08/2009 10/08/2009
10/08/2009 10/14/2009 10/14/2009 10/14/2009 10/19/2009

NOTICE TO COUNSEL re: 102 Joint Letter requesting that the motion 97 for summary judgment be held in abeyance pending the outcome of the settlement conference set before Judge Peebles on 8/27/09. The parties are directed to make this request to Judge Hurd, since he is handling this motion. (sal, ) (Entered: 07/20/2009)
103 Letter Motion from Elizabeth L. Koob, Esq. for Robert Hilton requesting Summary Judgment Schedule be held in abeyance pending settlement conference submitted to Judge Hurd. (Magoolaghan, Joan) (Entered: 07/20/2009)
104 ORDER granting 103 Letter Request for the motion to dismiss to be held in abeyance. Signed by Judge David N. Hurd on 7/21/09. (nas) (Entered: 07/21/2009)
TEXT Minute Entry for proceedings held before Magistrate Judge David E. Peebles: Settlement Conference held on 8/27/2009 in Albany. Judge discusses settlement options w/ the parties. Case does not settle. Motion for summary judgment is pending before Judge Hurd and a decision will be forthcoming. Plaintiffs' counsel notes that costs and attorneys' fees remain as an open issue. APP: Joan Magoolaghan, Esq., Elizabeth Koob, Esq., James Seaman, Esq., Nancy Haywood, Esq., and Belinda Wagner. (sal, ) (Entered: 08/28/2009)
CLERK'S CORRECTION OF DOCKET ENTRY of 8/27/09. Clerk modified text of minutes to include case did not settle. (sal, ) (Entered: 08/28/2009)
NOTICE of Hearing on 97 MOTION for Summary Judgment : Motion Hearing set for 10/23/2009 at 10:00 AM in Albany before Judge David N. Hurd. Response to Motion due by 10/6/2009, Reply to Response to Motion due by 10/12/2009. (cbm ) (Entered: 09/15/2009)
105 Letter Motion from James Seaman for Lester N. Wright, New York State Department of Correctional Services requesting short extension of summary judgment deadlines submitted to Judge Hurd. (Seaman, James) (Entered: 10/06/2009)
106 ORDER granting 105 Letter Request. Response to 97 MOTION for Summary Judgment due by 10/8/2009; Reply due by 10/19/2009. Signed by Judge David N. Hurd on 10/7/2009. (mgh) (Entered: 10/07/2009)
107 MEMORANDUM OF LAW filed by Robert Hilton. (Attachments: # 1 Decision Morgan v Koenigsmann)(Magoolaghan, Joan) (Entered: 10/08/2009)
108 AFFIDAVIT in Opposition re 97 MOTION for Summary Judgment filed by Robert Hilton. (Attachments: # 1 Declaration of Dr. Leevy, # 2 Declaration of Robert Hilton, # 3 Exhibit 1, # 4 Exhibit 2, # 5 Exhibit 3, # 6 Exhibit 4, # 7 Exhibit 5, # 8 Exhibit 6, # 9 Exhibit 7, # 10 Exhibit 8, # 11 Exhibit 9, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Plaintiffs' Rule 56 Statement)(Magoolaghan, Joan) (Entered: 10/08/2009)
109 AFFIDAVIT re 108 Affidavit in Opposition to Motion, Affidavit of Service by Robert Hilton. (Magoolaghan, Joan) (Entered: 10/08/2009)
Access to the medical records contained as exhibits to doc. 97 have been restricted to court users and case participants. (dictcbm ) (Entered: 10/14/2009)
Access to medical records contained as exhibits to doc. 108 have been restricted to court users and case participants. (dictcbm ) (Entered: 10/14/2009)
Set/Reset Deadlines as to 97 MOTION for Summary Judgment. Motion Hearing reset for 10/23/2009 ON SUBMIT. No need to appear. (cmr, ) (Entered: 10/14/2009)
110 REPLY to Response to Motion re 97 MOTION for Summary Judgment filed by Lester N. Wright, New York State Department of Correctional Services. (Attachments: # 1 Exhibit(s) A to Wagner Aff, # 2 Exhibit(s) B to Wagner Aff, # 3 Exhibit(s) C to Wagner Aff, # 4 Statement of Material Facts, # 5 Memorandum of Law, # 6 Appendix 1 to Memo of Law, # 7 Appendix 2 to Memo of Law, # 8 Declaration of Service of a copy of all the above documents upon attorneys for plaintiffs)(Seaman, James) (Entered: 10/19/2009)

Case: 9:05-cv-1038 As of: 02/14/2014 01:23 PM EST 17 of 20

12/14/2009 12/14/2009 12/17/2009 12/23/2009 01/12/2010
01/12/2010 01/12/2010 01/25/2010 02/16/2010
02/26/2010 03/01/2010 03/01/2010 03/01/2010 03/05/2010 05/25/2010

111 ORDER: Ordered, that the First Amended Complaint is Dismissed in its entirety; Ordered, that the Clerk is directed to enter judgment accordingly and close the file. Signed by Judge David N. Hurd on 12/10/09. (mnc) (Entered: 12/14/2009)
112 ***VACATED*** JUDGMENT in favor of New York State Department of Correctional Services, Lester N. Wright against Louis Vasquez, Robert Hilton. (mnc) Modified on 3/11/2013 per order entered 3/11/13 (alh, ). (Entered: 12/14/2009)
113 Letter Motion from Elizabeth L. Koob for Robert Hilton requesting Extension of time to file application for fees for monitoring class injunctive relief submitted to Judge Hurd. (Koob, Elizabeth) (Entered: 12/17/2009)
114 ORDER granting 113 Letter Request. Pltfs' motion for attorney fees is to be filed by 1/15/2010, response by 2/19/10, and any reply by 2/26/10. Signed by Judge David N. Hurd on 12/23/09. (cbm ) (Entered: 12/23/2009)
115 MOTION for Attorney Fees Motion Hearing set for 3/5/2010 10:00 AM in Utica before Judge David N. Hurd Response to Motion due by 2/16/2010 Reply to Response to Motion due by 2/22/2010. filed by Robert Hilton. (Attachments: # 1 Declaration, # 2 Exhibit A, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I, # 11 Exhibit J, # 12 Memorandum of Law, # 13 Declaration of Service) (Magoolaghan, Joan) (Entered: 01/12/2010)
116 NOTICE OF APPEAL as to 112 Judgment, 111 Order on Motion for Summary Judgment by Robert Hilton. Filing fee $ 455, receipt number 0206−1474800. (Koob, Elizabeth) (Entered: 01/12/2010)
117 ELECTRONIC NOTICE AND CERTIFICATION sent to US Court of Appeals re 116 Notice of Appeal (mnc) (Entered: 01/12/2010)
USCA Case Number is 10−0135−pr for 116 Appeal filed by Robert Hilton. (cbm ) (Entered: 01/25/2010)
118 RESPONSE in Opposition re 115 MOTION for Attorney Fees filed by New York State Department of Correctional Services, Lester N. Wright. (Attachments: # 1 Exhibit(s) A to Wagner Dcl, # 2 Exhibit(s) B to Wagner Dcl, # 3 Memorandum of Law, # 4 Declaration of service of a copy of the above on counsel for plaintiffs)(Seaman, James) (Entered: 02/16/2010)
119 REPLY re 115 Motion for Attorney Fees, Plaintiffs' Reply Memorandum filed by Robert Hilton. (Attachments: # 1 Reply Declaration in Support of Attorneys Fees)(Magoolaghan, Joan) Modified on 3/1/2010 (mnc). (Entered: 02/26/2010)
CLERK'S CORRECTION OF DOCKET ENTRY re 119 REPLY. Clerk modified the docket text to reflect that the entry is a Reply to Response to Motion and not a Memorandum of Law. (mnc) (Entered: 03/01/2010)
120 Certificate of Service re 119 Memorandum of Law Affidavit of Service of Memorandum and Declaration by Robert Hilton. (Magoolaghan, Joan) Modified on 3/1/2010 (mnc). (Entered: 03/01/2010)
CLERK'S CORRECTION OF DOCKET ENTRY re 120 Certificate of Service. The Clerk modified the docket entry to reflect that the submission is a Certificate of Service and not an Affidavit. (mnc) (Entered: 03/01/2010)
Pltf's motion for attorneys fees' docket #115 returnable on 3/5/10 is on submit. Ct. to issue written decision. (cmr, ) (Entered: 03/05/2010)
121 ORDER ***VACATED IN PART***: ORDERED, that Plaintiff−class is awarded attorney's fees in the sum of $23,152.00; ORDERED, that Defendants are to make payment of that sum to "Koob &Magoolaghan" on or before June 25, 2010; ORDERED, that upon the defendant's failure to make the above payment, the Clerk is directed to enter judgment in favor of the Plaintiff−class and against the defendants in the sum of $23,152.00. Signed by Judge David N. Hurd on 5/24/10. (mnc) Modified on 3/11/2013 to correct typographical error in docket entry, order signed 5/24/10 (alh, ). Modified PER ORDER DATED 3/11/2013, VACATED portion denying attorneys' fees beyond the sum of $23,152.00 (alh, ). (Entered:

Case: 9:05-cv-1038 As of: 02/14/2014 01:23 PM EST 18 of 20

05/25/2010 06/07/2010 06/07/2010 10/07/2010 04/20/2012 04/23/2012
04/26/2012 04/27/2012 05/29/2012
06/18/2012 06/18/2012 01/08/2013 01/11/2013 03/07/2013

05/25/2010)
Set Deadline: Notice of Compliance Deadline 6/25/2010 (mnc) (Entered: 05/25/2010)
122 NOTICE OF APPEAL as to 121 Order on Motion for Attorney Fees, by Robert Hilton. Filing fee $ 455, receipt number 0206−1587194. (Attachments: # 1 Exhibit(s) decision below, # 2 Declaration)(Koob, Elizabeth) (Entered: 06/07/2010)
123 ELECTRONIC NOTICE AND CERTIFICATION sent to US Court of Appeals re 122 Notice of Appeal (mnc) (Entered: 06/07/2010)
USCA Case Number 10−2245 for 122 Notice of Appeal filed by Robert Hilton. (mnc) (Entered: 10/07/2010)
124 MANDATE of USCA, issued 4/20/12, as to 116 and 122 Appeals filed by Robert Hilton; VACATING IN PART the judgment of the district court and REMANDING, in accordance w/attached slip opinion. (Attachments: # 1 slip opinion)(cbm ) (Entered: 04/20/2012)
125 ORDER: ORDERED, that Defendant may file a supplemental brief not to exceed fifteen (15) pages in length, limited to the issues discussed in the March 9, 2012, opinion of the Second Circuit, on or before May 7, 2012. ORDERED, that Plaintiff may file a responding brief not to exceed fifteen (15) pages in length, on or before May 21, 2012. ORDERED, that the matter will be taken on submission on May 25, 2012, without oral argument. Signed by Judge David N. Hurd on 4/23/12. (alh, ) (Entered: 04/23/2012)
126 Letter Motion from James Seaman for New York State Department of Correctional Services, Lester N. Wright requesting requesting revised briefing schedule on consent submitted to Judge Hurd . (Seaman, James) (Entered: 04/26/2012)
127 ORDER granting 126 Letter Request: defts' Brief due by 5/28/2012, pltf's Brief due by 6/18/2012. Signed by Judge David N. Hurd on 4/27/12. (cbm ) (Entered: 04/27/2012)
128 MEMORANDUM OF LAW re 97 Motion for Summary Judgment,,,,,,, filed by New York State Department of Correctional Services, Lester N. Wright. (Attachments: # 1 Appendix 1 to memo of law, # 2 Appendix 2 to memo of law, # 3 Appendix 3 to memo of law, # 4 Appendix 4 to memo of law, # 5 Appendix 5 to memo of law, # 6 Appendix 6 to memo of law, # 7 Appendix 7 to memo of law, # 8 Appendix 8 to memo of law, # 9 Appendix 9 to memo of law, # 10 Appendix 10 to memo of law, # 11 Appendix 11 to memo of law, # 12 Appendix 12 to memo of law, # 13 Appendix 13 to memo of law, # 14 Appendix 14 to memo of law, # 15 Appendix 15 to memo of law, # 16 Appendix 16 to memo of law, # 17 Affirmation of Belinda Wagner, # 18 Exhibit(s) 1 &2 to Wagner Aff)(Seaman, James) (Entered: 05/29/2012)
129 MEMORANDUM OF LAW filed by Robert Hilton. (Attachments: # 1 Cabassa v Smith, # 2 Chambers v Wright, # 3 DiChiara v Wright, # 4 Hallett v NYSDOC, # 5 Hatzfeld v Eagen RR, # 6 Hatzfeld v Eagen DC, # 7 Lighthall v Vadlamudi, # 8 Toney v Goord)(Magoolaghan, Joan) (Entered: 06/18/2012)
130 AFFIDAVIT Of ElizabethL. Koob in Opposition by Robert Hilton. (Attachments: # 1 Ex A, # 2 Ex B, # 3 Ex C, # 4 Ex D, # 5 Ex E, # 6 Ex F, # 7 Ex G, # 8 Ex H, # 9 Ex I, # 10 Ex J, # 11 Ex K, # 12 Ex L, # 13 Ex M, # 14 Ex N, # 15 Thomsen v Stantec)(Magoolaghan, Joan) (Entered: 06/18/2012)
131 MEMORANDUM OF LAW re 129 Memorandum of Law, corrected filing filed by Robert Hilton. (Koob, Elizabeth) (Entered: 01/08/2013)
132 REPLY to Response to Motion re 97 MOTION for Summary Judgment objecting to late filing of Dkt #131 filed by New York State Department of Correctional Services, Lester N. Wright. (Seaman, James) (Entered: 01/11/2013)
133 STATUS REPORT request to consider recent decision by Robert Hilton. (Attachments: # 1 Exhibit(s))(Koob, Elizabeth) (Entered: 03/07/2013)

Case: 9:05-cv-1038 As of: 02/14/2014 01:23 PM EST 19 of 20

03/11/2013
03/26/2013 03/26/2013 03/26/2013 03/29/2013 04/12/2013 05/24/2013 05/30/2013 06/05/2013 06/05/2013 07/30/2013 08/05/2013

134 MEMORANDUM−DECISION AND ORDER: ORDERED, that the December 14, 2009, Judgment (Dkt. No. 112 ) dismissing the First Amended Complaint is VACATED. ORDERED, that the portion of the May 25, 2010, Order denying attorneys' fees beyond the sum of $23,152.00 (Dkt. No. 121 ) is VACATED. ORDERED, that Defendants' motion for summary judgment (Dkt. No. 97 ) is GRANTED in part and DENIED in part. ORDERED, that any claim relating to the 2003 denial of Hepatitis C treatment based on the Length of incarceration Requirement is WAIVED. ORDERED, that the following claims are DISMISSED: (a) Section 1983 claim against Dr. Wright in his official capacity; (b) ADA claim against Dr. Wright in his individual capacity; and (c) Rehabilitation Act claim against Dr. Wright in his individual capacity. ORDERED, that Plaintiff's motion for attorneys' fees (Dkt. No. 115 ) is granted and class counsel is awarded an additional $17,385.45, for a total fee award of $40,537.45. ORDERED, that Defendants are to make payment in the sum of $17,385.45 to "Koob &Magoolaghan" on or before March 25, 2013. ORDERED, that upon the defendants' failure to make the above payment, the Clerk is directed to enter judgment in favor of the plaintiff class and against the defendants in the sum of $17,385.45. ORDERED, that trial is scheduled for August 12, 2013. Pre−trial papers are due by noon on July 26, 2013. Signed by Judge David N. Hurd on 3/11/13. (alh, ) (Entered: 03/11/2013)
135 STATUS REPORT on fee payment non−compliance and request that judgment also be entered in favor of the plaintiff class and against the defendants in the sum of $23,152.00 with interest accruing from June 26, 2010 filed by Robert Hilton. (Koob, Elizabeth) Modified on 3/26/2013 (alh, ). (Entered: 03/26/2013)
CLERK'S CORRECTION OF DOCKET ENTRY re 135 Status Report: Clerk modified docket entry to indicate the request contained within submission. (alh, ) (Entered: 03/26/2013)
TEXT NOTICE ON 135 STATUS REPORT with request: Defendants are directed to file a response to the submission by 4/5/13. (alh, ) (Entered: 03/26/2013)
136 RESPONSE in Opposition re 135 STATUS REPORT with request filed by New York State Department of Correctional Services, Lester N. Wright. (Seaman, James) (Entered: 03/29/2013)
137 DECISION and ORDER: ORDERED that Class counsel Koob &Magoolaghan's request that interest run from June 26, 2010, on the sum of $23,152.00 is REJECTED. Signed by Judge David N. Hurd on 4/12/13. (nas) (Entered: 04/12/2013)
138 Letter Motion from plaintiff's counsel for Robert Hilton requesting new trial date submitted to Judge Hurd written on behalf of both parties. (Koob, Elizabeth) (Entered: 05/24/2013)
NOTICE of Hearing: Status Telephone Conference set for 6/5/2013 10:30 AM with Judge David N. Hurd. Atty. Koob is hereby directed to make the necessary arrangements for completion of the conference call. Judge Hurd will be available 315−793−9571 to confer with counsel. Letter dated 5/24/13 from Atty. Koob requesting adjournment of trial scheduled for 8/12/13 to be addressed.(cmr, ) (Entered: 05/30/2013)
139 Minute Entry for proceedings held before Judge David N. Hurd: Telephone Conference held on 6/5/2013. Trial rescheduled for 9/4/13 @ 9:30 a.m. in Utica, NY. (Court Reporter None) (cmr, ) (Entered: 06/05/2013)
NOTICE of Hearing: Final pretrial conference, jury selection and Trial reset for 9/4/2013 09:30 AM in Utica before Judge David N. Hurd. Appearance required. Pretrial papers due by 12:00 Noon on 8/24/13.(cmr, ) (Entered: 06/05/2013)
Reset Pre−Trial Papers Deadlines: Exhibit List due by 8/24/2013. Pretrial Submissions due by 8/24/2013 Expert Witness List due by 8/24/2013, per Minute Entry, dkt. no. 139. (alh, ) (Entered: 07/30/2013)
140 STATUS REPORT with request for Magistrate by Robert Hilton. (Koob, Elizabeth) (Entered: 08/05/2013)

Case: 9:05-cv-1038 As of: 02/14/2014 01:23 PM EST 20 of 20

08/05/2013 08/06/2013 08/13/2013 08/15/2013
08/16/2013 08/23/2013 08/28/2013

141 STATUS REPORT regarding settlement as per text order of 6/28/13 (Dkt #139) by New York State Department of Correctional Services, Lester N. Wright. (Seaman, James) (Entered: 08/05/2013)
Due to a network issue at the internet gateway, certain Notices of Electronic Filings (NEFs) dated August 5−6 were regenerated by the Court to ensure successful delivery. If you have any questions or concerns, please contact the Court at 315−234−8505. (dictplp) (Entered: 08/06/2013)
Please note pretrial papers are due by 12:00 noon on 8/23/13 and the Court will not entertain any requests for adjournment of trial or pretrial submissions. (cmr, ) (Entered: 08/13/2013)
NOTICE of Hearing: Status Telephone Conference set for 8/26/2013 11:30 AM before Judge David N. Hurd. The Court will contact the parties. Counsel for the parties are hereby directed to call Mr. Craig B. Minor at 315−793−8271 and provide a telephone number where they can be reached for the teleconf on 8/26/13.(cmr, ) (Entered: 08/15/2013)
TEXT NOTICE: Rec'd TFC from counsel indicating that action is SETTLED. Stipulation of discontinuance to be filed in due course. Telephone conference scheduled for 8/26/13 marked off. (cmr, ) (Entered: 08/16/2013)
142 STIPULATION of Dismissal Proposed by New York State Department of Correctional Services, Lester N. Wright submitted to Judge Hurd. (Munkwitz, Kelly) (Entered: 08/23/2013)
143 STIPULATION AND ORDER OF DISMISSAL pursuant to FRCP 41(a). Signed by Judge David N. Hurd on 8/27/13. (alh, ) (Entered: 08/28/2013)

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -------------------------------------------------------------------------X ROBERT HILTON and LOUIS VASQUEZ, on behalf of themselves and all others similarly situated,

Plaintiffs,
–against–
LESTER N. WRIGHT, M.D., M.P.H., Associate Commissioner/ Chief Medical Officer, for the New York State Department of Correctional Services; and the NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES,

AFFIRMATION 05 Civ. 1038 (DNH)(DEP)

Defendants. -------------------------------------------------------------------------X

ALEXANDER A REINERT, an attorney duly admitted to the practice of law in the

State of New York and in this Court, affirms under penalty of perjury as follows:

1. I am an associate with the law firm of Koob & Magoolaghan, attorneys for plaintiffs

Robert Hilton and Louis Vasquez, and as such am fully familiar with the facts and circumstances

of this case. I make this affirmation in support of plaintiffs’ Motion for Class Certification

seeking permission to bring this action as the representatives of the class of all prisoners in the

custody of New York State who suffer from Hepatitis C and have been denied medically

prescribed treatment pursuant to Department of Correctional Services policies in violation of

their rights under the Eighth and Fourteenth Amendments to be free from cruel and unusual

punishment.

2. The instant action was commenced by plaintiff Hilton by complaint filed August 17,

2005. Simultaneous with the filing of his complaint, Mr. Hilton moved for a temporary

restraining order seeking to compel defendants to immediately to authorize the combination

antiviral therapy prescribed by his physicians to treat his Hepatitis C. Within days of the filing of Mr. Hilton’s application, a Stipulation was executed by the parties, and So Ordered by the court, which provides for the treatment sought by Mr. Hilton. The instant application for class certification is made by Mr. Hilton and Louis Vasquez pursuant to an Amended Complaint filed August 31, 2005.1 Mr. Vasquez is confined in the Great Meadow Correctional Facility and, like Mr. Hilton, was denied critically necessary treatment for his Hepatitis C as a direct result of defendants’ Hepatitis C Protocol, which has no foundation in medical science. See ¶¶ 11-13, infra.
3. Hepatitis C is a blood-borne virus which affects the liver. It is detected through laboratory testing of a person’s blood sample. By conservative estimates, there are currently over 9,000 prisoners in New York State correctional facilities who have been diagnosed with Hepatitis C. (Compl. ¶ 131.)
4. Hepatitis C virus attacks and, if not treated, commonly destroys the liver. Liver damage progresses through a series of stages beginning with isolated fibrosis, or scarring, and often culminating in cirrhosis, or pervasive scarring and inflammation. The development of cirrhosis is not only life-threatening in and of itself, but also increases the risk that a patient will develop hepatocellular carcinoma, a type of cancer.
5. The standard clinical treatment of Hepatitis C is a 48-week course of medication combining two antiviral agents, pegylated interferon and ribavirin. The use of such “combination” interferon-ribavirin therapy is now generally considered the standard of care in
1By letter dated September 2, 2005, plaintiffs have requested that defendants immediately initiate treatment for Mr. Vasquez’ Hepatitis C. In the event such treatment is not forthcoming, plaintiffs shall file a motion for a temporary restraining order and preliminary injunction on Mr. Vasquez’ behalf.
2

treating Hepatitis C in patients whose liver deterioration has not reached the stage of decompensated cirrhosis. See National Institutes of Health Consensus Development Conference Statement, “Management of Hepatitis C” [hereinafter “NIH Consensus Statement”], at 14 (2002), available at http://www.hepprograms.org/drug/hepcconfer.pdf.2 When successful, such combination antiviral therapy can effectively cure sufferers of Hepatitis C, rendering the disease no longer a threat to their health. See NIH Consensus Statement at 15-16. Yet once a patient crosses an identifiable clinical threshold to exhibit “decompensated” cirrhosis, liver function deteriorates beyond repair by antiviral therapy, leaving organ replacement the only treatment capable of restoring a patient to health. See NIH Consensus Statement at 7. Moreover, even in patients who have not developed decompensated cirrhosis, combination antiviral therapy becomes less effective as the liver disease progresses. See NIH Consensus Statement at 20-21.
6. According to figures provided by the New York State Department of Correctional Services (“DOCS”) to the Correctional Association of New York, at least 14% of men and 23% of women entering DOCS custody are infected with Hepatitis C. See The Correctional Association of New York, Conditions of Confinement in 14 New York State Correctional Facilities (“Correctional Association Report”), at 6–7 (June 2005), available at http://www.correctionalassociation.org/PVP/publications/State_of_prisons_02-03.pdf. Men constitute 95% of the New York State prison population, and 64,022 individuals were incarcerated in New York State as of January 2005. Id. at 5–6. Therefore, at least 8,500 men and 700 women infected with Hepatitis C are in DOCS custody.
2The NIH Consensus Statement also indicates that patients who fail to complete a full course of antiviral therapy commonly stand to benefit from the repeat administration of therapy for the full course of treatment. See NIH Consensus Statement at 16-17.
3

7. Of these approximately 9,200 prisoners infected with Hepatitis C, only 1.4% receive antiviral therapy for Hepatitis C. Id. at 14. However, assuming that the prisoners with Hepatitis C in DOCS custody are similar to other populations infected with Hepatitis C, some 60 to 85% of these prisoners have chronic Hepatitis C and therefore may be candidates for antiviral therapy. See NIH Consensus Statement at 6. Treatment is essential for the 10 to 15% of patients with chronic Hepatitis C who will develop cirrhosis, and should be considered for any patient with chronic Hepatitis C who is at an increased risk of developing cirrhosis. Id. at 6, 19
8. Therefore, while not all of the estimated 9,200 prisoners infected with Hepatitis C are medically appropriate candidates for treatment, it is likely that between 550 and 1100 of them have or will develop chronic Hepatitis C to a degree which merits treatment with antiviral therapy. This class of prisoners, who meet all medical criteria for treatment, will nonetheless be subjected to the same Hepatitis C Protocol that resulted in the denial of treatment to Mr. Hilton and Mr. Vasquez.
Defendants’ Hepatitis C Protocol 9. There are two prison-run alcohol and substance abuse treatment programs that are maintained by DOCS: ASAT, which consists of daily classes over a period of six months; and RSAT, which is similar to ASAT but which requires participants to reside in a particular cellblock during the program. 10. Defendants’ Hepatitis C protocol requires anyone who has ever admitted to using drugs or alcohol in the past to participate in a prison-run alcohol and substance abuse treatment program before receiving Hepatitis C treatment. See Affirmation of Alexander A. Reinert ¶14
4

(dated August 17, 2005), attached hereto as Ex. A;3 see also Hepatitis C Primary Care Practice Guideline (March 2003) at p.4 n.11, attached hereto as Ex. B.
11. Significantly, the Hepatitis C protocol has no foundation in medical science. Specifically, as plaintiff Hilton established in the moving papers in support of his Order to Show Cause, there is no medical support for denying treatment for Hepatitis C to a patient who has admitted to drug or alcohol use in the past but who is not contemporaneously participating in a drug treatment program. See Affirmation of Alexander A. Reinert ¶15 (dated August 17, 2005). Informed medical judgment recognizes that even active drug users may be appropriate candidates for Hepatitis C treatment, whether they participate in drug abuse treatment programs or not. Id.
12. Not one of the medical references which purports to support defendants’ Hepatitis C Protocol stands for the proposition that completion of a substance abuse program is necessary prior to the initiation of antiviral treatment for Hepatitis C. Instead, each of these references confirms that past substance abuse is never a contraindication to antiviral therapy, and that conditioning receipt of Hepatitis C treatment on contemporaneous substance abuse treatment is only justified, if ever, where a prisoner is actively engaged in substance abuse. See Affirmation of Alexander A. Reinert ¶¶17–21 (dated August 17, 2005).
13. Significantly, DOCS refuses to initiate Hepatitis C treatment unless the patient participates in ASAT or RSAT, even though RSAT and/or ASAT programs are not even offered at many correctional facilities. Moreover, where offered, the programs often have waiting lists for enrollment as participation in the programs is sought after by prisoners attempting to meet
3This affirmation was submitted in support of plaintiff Hilton’s application for injunctive relief and is attached hereto for the Court’s convenience.
5

required or recommended programing goals to augment their parole applications.4 The programs require full day attendance for a six month period, and preclude the inmates’ participation in any other day program or work assignment. RSAT participants must also agree to reside on a particular cell block for the six month period, and therefore forfeit more favorable cell placements such as Honor Block.
14. DOCS and Dr. WRIGHT have applied the ASAT/RSAT requirement, and denied treatment for Hepatitis C to patients until they have participated in or completed the substance abuse counseling programs:
a. regardless of the stage at which the disease has progressed; b. regardless of whether the requirement contravenes the treatment recommendations of DOCS’ own treating physicians and specialists; c. regardless of how much time has passed since the prisoner last used drugs; d. even upon prisoners who have not used drugs for more than a decade; e. regardless of whether a prisoner’s past use of drugs or alcohol constituted “abuse” under clinical diagnostic criteria such as those enumerated in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, also known as the DSM-IV; f. regardless of whether the ASAT or RSAT programming is actually available in the correctional facility in which the prisoner is confined; g. regardless of whether the prisoner had previously completed a substance abuse treatment program, such as Alcoholics Anonymous, Narcotics Anonymous and the like, even if the program completed was offered at and sanctioned by a DOCS’ facility;
4For example, Mr. Hilton tried to enroll in the program at Altona Correctional Facility but was placed on the waiting list due to popular demand for the program.
6

h. regardless of whether DOCS actually has space available in its ASAT or RSAT programs to allow the prisoner to fulfill the requirement; and
I. to prisoners who require a second treatment with antiviral therapy, regardless of whether such individuals met the ASAT/RSAT requirement when they were given their first course of treatment with antiviral therapy.
15. Plaintiffs bring this class action to enjoin defendants from continuing to apply the ASAT/RSAT requirement as a condition of receiving antiviral therapy for Hepatitis C.
STATEMENT OF THE CLASS SOUGHT TO BE CERTIFIED 16. The class sought to be certified comprises plaintiffs and all Hepatitis-C-infected prisoners in DOCS custody who must now or in the future meet defendants’ ASAT/RSAT requirement to obtain combination antiviral therapy treatment. 17. The class as defined meets the requirements of Fed. R. Civ. P. 23(a), as well as at least one element of Fed. R. Civ. P. 23(b). 18. Under Rule 23(a), [o]ne or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. 19. Given the large number of inmates who are infected with the Hepatitis C virus, with at least 500 medically eligible for anti-viral treatment, it would be impracticable to join all members in the suit. Moreover, due to the nature of the illness, and the fluidity of the prison population, class membership will necessarily change as new class members are incarcerated, new cases are diagnosed, individual conditions progress beyond a stage receptive to treatment,
7

and prisoners are discharged. Therefore the numerosity requirement of Rule 23(a)(1) is satisfied. Further, membership in the class can be easily identified through DOCS’ own records. If this is administratively burdensome, a simple questionnaire could be distributed to those prisoners identified as Hepatitis C infected patients.
20. Individual litigation of the issues presented here would further be impracticable due to the dispersion of class members throughout the DOCS facilities, the difficulty for many class members to institute litigation due to their confined status, and the need for prospective injunctive relief to protect future class members.
21. There are questions of law and fact common to the class in that all DOCS prisoners with Hepatitis C are reviewed for medical treatment under the same policy and procedures. Moreover, the standard medical knowledge of the treatment of the disease applies equally to all those infected even though individual patients may be at different stages of the illness. Finally, the class members’ right to medical care is an entitlement well established in our constitutional jurisprudence and equally applicable to all proposed class members.
22. Any prisoner with an admitted past history of drug use will be subjected to the same unconstitutional and illegal policy as Mr. Hilton and Mr. Vasquez, both of whom maintain that DOCS’ Hepatitis C Protocol violates the Eighth Amendment, the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act. Plaintiffs’ claims arise out of the promulgation and enforcement of the relevant section of the DOCS Hepatitis C Primary Care Practice Guideline, and thus the legal grievance of each class member will arise from one single course of action taken by the defendant. Thus the Rule 23(a)(2) requirement of commonality of claims is satisfied.
23. In the instant case, the typicality requirement of Rule 23(a)(3) is met because 8

plaintiff’s claims arise from the same course of events that endanger all members of the class. Any Hepatitis-C-infected prisoner in the custody of DOCS will be subjected to the ASAT/RSAT requirement prior to obtaining treatment, regardless of whether the prisoner has used or abused drugs in the recent past, regardless of whether the prisoner ever has participated in a substance abuse treatment program, regardless of the availability ASAT and RSAT in the facility where the prisoner is incarcerated, and regardless of the recommendations of the prisoner’s treating and specialist physicians. Indeed, by treating so many different prisoners the same, defendants themselves have guaranteed that plaintiffs’ claims are typical of the class’s claims.
24. As plaintiffs contend that treatment should never be conditioned upon an inmate’s participation in a substance abuse program, the claims of Mr. Hilton and Mr. Vasquez are typical of the class, regardless of the individual class member’s particular history of drug abuse or ability to attend a substance abuse program. It is plaintiffs’ position that requiring substance abuse behavior training is an unlawful barrier to the constitutionally required provision of standard medical treatment of a prisoner who has been diagnosed with serious, life-threatening, physical illness.
25. Plaintiffs have no conflict of interest with other potential class members and the denial of treatment will cause them the same injuries as other prisoners who are denied treatment of their Hepatitis C infections. The goal of removing the ASAT/RSAT requirement as a barrier to obtaining treatment is in the interest of all prisoners who are medically eligible for treatment. Those who want to participate in such programs will still be allowed to do so. Thus the first prong of Rule 23(a)(4) is satisfied by Mr. Hilton and Mr. Vasquez acting as the named representatives of the proposed class.
26. The second prong of Rule 23(a)(4) requires a showing that plaintiff’s counsel is 9

“qualified, experienced and able to conduct the litigation.” Plaintiff’s counsel, Koob & Magoolaghan, has over twenty years experience specializing in civil rights litigation, with particular emphasis on the rights of New York State prisoners, and has served as counsel for plaintiff classes in prisoner civil rights actions. See Langley v. Coughlin, 715 F. Supp. 522 (S.D.N.Y. 1989); 709 F. Supp. 482 (S.D.N.Y. 1989), aff’d 888 F.2d 252 (2d Cir. 1989) (decisions denying challenge to class certification, qualified immunity & summary judgment); Powell v. Ward, 487 F. Supp. 917 (1980), aff’d as mod. 643 F.2d 924 (1981), cert. denied, 454 U.S. 832 (1981) (motion on contempt); 540 F. Supp. 515 (S.D.N.Y. 1982) (monitoring of contempt decision); 562 F. Supp. 274 (S.D.N.Y. 1983) (same); sub nom 1993 WL 328837 (S.D.N.Y.), aff’d 22 F.3d 1092 (2d Cir.1994) (same); 1994 WL 673507 (S.D.N.Y.) (final attorney’s fees award), aff’d sub nom, 122 F.3d 1057 (2d Cir. 1995); see also list of representative cases annexed hereto as Exhibit C.
27. The firm also has litigated numerous Eighth Amendment claims for denied medical care, including ongoing challenges to the DOCS Hepatitis C Guideline which is the subject of this lawsuit. While appearing pro bono, counsel have successfully challenged the ASAT/RSAT requirement in the Appellate Division, Second Department. See Domenech v. Goord, 797 N.Y.S.2d 313, 314 (2d Dept. 2005), affirming 766 N.Y.S.2d 287 (Sup. Ct. 2003). Counsel also have appeared as pro bono counsel for a prisoner who has challenged the ASAT/RSAT requirement in federal court, in Morgan v. Koenigsmann, et al., 03 Civ. 3987 (S.D.N.Y.) (KMW) (AJP), and Morgan v. Wright, 04-5651-pr (2d Cir.). Indeed, after Koob & Magoolaghan filed its brief on Mr. Morgan’s behalf in the Second Circuit, Dr. Wright withdrew his appeal rather than file a reply brief or argue the merits of his qualified immunity defense. Finally, counsel have appeared pro bono and secured Hepatitis C treatment for a prisoner who challenged DOCS’
10

failure to provide a second course of Hepatitis C treatment, in Higgs v. Wright, et al., 04 Civ. 4727 (E.D.N.Y.) (NG) (LB). It is respectfully submitted that counsel’s experience with prisoner Hepatitis C cases would be of singular benefit to the class sought to be represented herein.
28. Indeed, Koob & Magoolaghan is one of the few private law firms in the State with a history of prisoners rights litigation. Moreover, counsel have sufficient time and resources to devote to this case, and is free from any conflict which might impede pursuit of the litigation.
29. Class certification here also meets the requirements of Rule 23 (b) under subdivision (2) because plaintiffs challenge the practices and policies employed by defendants in treating prisoners infected with Hepatitis C, and therefore seek injunctive relief that would benefit the class as a whole. The relevant DOCS Hepatitis C Primary Care Practice Guideline rules at issue apply to all prisoners generally, not merely to the named plaintiffs in this action. Furthermore, because the injunctive relief would simply mandate that defendants adequately treat Hepatitis-Cinfected prisoners, the management of such relief would not be complicated and judicial economy would be served.
30. In the alternative, the class action is maintainable under Fed. R. Civ. P. 23(b)(1)(B), which permits class actions where “adjudications with respect to individual members of the class . . . would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interest.” Were the court to grant injunctive relief to plaintiffs, the rights of all other similarly situated potential plaintiffs would be profoundly affected because a rule that applied to all prospective class members would have been struck down by the court as a violation of the Eighth Amendment, the ADA, or the Rehabilitation Act. Conversely, were the court to deny plaintiffs’ claim, the right of all other prospective plaintiffs to make similar claims would be severely curtailed.
11

31. The proposed class action is also certifiable under Rule 23(b)(1)(A) which authorizes a class action if “the prosecution of separate actions by . . . individual members of the class would create a risk of . . . inconsistent or varying adjudications with respect to individual members of the class.” Should individual members of the class pursue individual actions seeking injunctive relief, there is a risk of “inconsistent or varying adjudications with respect to individual members of the class.” Id. Here, consistency of the adjudication of the proposed class’s claims is especially important, because it involves the application of a system-wide policy related to medical treatment.
32. Since plaintiffs’ counsel has no conflict of interest and can adequately represent all class members, has already devoted significant resources to identifying and investigating the legal claim, has experience in handling class actions and other complex litigation, is knowledgeable about the applicable law, and is willing and able to devote the necessary resources to the litigation, and is the only applicant for class counsel, plaintiffs’ counsel should be appointed class counsel pursuant to Fed. R. Civ. P. 23(g)(2)(b).
WHEREFORE, affirmant respectfully requests that this Court certify the plaintiff class as all Hepatitis-C-infected prisoners in DOCS custody who must now or in the future meet defendants’ ASAT/RSAT requirement to obtain treatment, and grant plaintiffs such other and further relief as the Court deems just and proper. Dated: New York, New York
September 2, 2005 s:/Alexander A. Reinert ALEXANDER A REINERT [Bar No. 512945]
12

EXHIBIT A

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ----------------------------------------------------------------------X ROBERT HILTON, on behalf of himself and all others similarly situated,

Plaintiffs,
–against–
LESTER N. WRIGHT, M.D., M.P.H., Associate Commissioner/ Chief Medical Officer, for the New York State Department of Correctional Services; and the NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES,

AFFIRMATION 9:05-CV-1038 (LEK)(GJD)

Defendants. ----------------------------------------------------------------------X

ALEXANDER A REINERT, an attorney duly admitted to the practice of law in the

State of New York and in this Court, affirms under penalty of perjury as follows:

1. I am an associate with the law firm of KOOB & MAGOOLAGHAN, attorneys for

plaintiff Robert Hilton, and as such am fully familiar with the facts and circumstances of this

case. I make this affirmation in support of plaintiff’s application by for a Temporary Restraining

Order (“TRO”) and Preliminary Injunction directing that defendants effectuate the

recommendations of plaintiff’s treating physicians and immediately initiate antiviral therapy to

treat Mr. Hilton’s Hepatitis C.

2. Mr. Hilton was diagnosed with Hepatitis C as early as 1999. Treatment of chronic

Hepatitis C is generally achieved through combination therapy (a combination of the drugs

interferon and ribavirin). Pegylated interferon, which is a type of interferon administered once

per week, has achieved the highest response rates when combined with ribavirin and is currently

recognized by a consensus of the medical community as the standard treatment for Hepatitis C.

3. The effectiveness of treatment for Hepatitis C is dependent on many factors. Where treatment is delayed, it becomes less effective because chronic Hepatitis C causes increased fibrosis, or scarring of liver tissue, and eventual cirrhosis of the liver. See Declaration of Dr. Brian R. Edlin dated August 16, 2005 (“Edlin Decl.”), at ¶ 13, annexed as Exhibit A. Dr. Edlin is a board-certified internist and infectious diseases specialist who has conducted extensive research on Hepatitis C. Id. ¶¶ 1–5.
4. In addition to making treatment ineffective, progression to cirrhosis or advanced fibrosis exposes patients to an increased risk of developing hepatocellular carcinoma, a cancer of the liver.
5. In light of the foregoing, it is well-accepted within the medical community that Hepatitis C should be treated promptly where medically indicated. This is particularly true because any delay in providing treatment to individuals with chronic Hepatitis C exposes them to an elevated risk of serious physical harm, grave and substantial pain and suffering, and death.
6. Mr. Hilton entered the custody of the New York State Department of Correctional Services (“DOCS”) on August 18, 2004. Immediately prior to his confinement at DOCS’ Downstate Correctional Facility, Mr. Hilton was confined under the custody of the New York City Department of Correction (“NYCDOC”). In May, 2004, while in the custody of NYCDOC, Mr. Hilton tested positive for Hepatitis C, and laboratory test results evidenced that his liver function tests (ALT and AST levels) were elevated. See Exhibit B.
7. Within days of his transfer to Downstate Correctional Facility, DOCS’ medical personnel, who were in possession of the medical records generated at NYCDOC, became aware that Mr. Hilton suffers from Hepatitis C, and that his ALT and AST levels were elevated. See Exhibit C (evidencing the disclosure of Mr. Hilton’s past medical history upon his confinement
2

to Downstate Correctional Facility). 8. Despite Mr. Hilton’s presenting need for the initiation of treatment for his Hepatitis C
upon his August, 2004 transfer into DOCS’ custody, DOCS scheduled Mr. Hilton to participate in their own Hepatitis screening process, which was not initiated until October, 2004. See Exhibit D (screening documentation generated at the Altona Correctional Facility); Exhibit E (periodic blood test results taken during the screening process, which all similarly evidence his chronic Hepatitis C infection).
9. The screening process initiated by DOCS in October, 2004, which contained both a medical component and a psychological component, was not completed until May, 2005, nine (9) months after Mr. Hilton was transferred into DOCS custody.
10. While the screening process dragged on until May, 2005, Mr. Hilton was referred to a gastroenterologist as early as March 23, 2005 upon the medical finding that Mr. Hilton “meets criteria for [treatment] for HEP C.” See Exhibit F. The gastroenterologist substantiated that conclusion on April 22, 2005 when he recommended, consistent with good and accepted medical practice, that DOCS begin treating Mr. Hilton with pegylated interferon and ribavirin. Id. In that recommendation, the gastroenterologist noted that Mr. Hilton had received a liver biopsy in December 1999 which reflected fibrosis and inflammation characterized as Grade 2/Stage 2. Id. As Dr. Edlin notes, fibrosis and inflammation at the level observed on Mr. Hilton’s December 1999 biopsy makes treatment “more urgent.” Edlin Decl. ¶ 13.
11. Even after Mr. Hilton proceeded through the remainder of the screening process, and obtained clearance for Hepatitis C treatment from the Office of Mental Health, he was not scheduled to commence the critical treatment necessary to address his Hepatitis C. See Exhibit G (evidencing OMH clearance); Exhibit H (evidencing Mr. Hilton’s consent for treatment with
3

antiviral Hepatitis C medication). 12. To date, fifteen (15) months after the NYCDOC tests evidenced a need for treatment,
and twelve (12) months after Mr. Hilton was transferred into DOCS custody, Robert Hilton remains without treatment for his Hepatitis C. And, absent judicial intervention, Mr. Hilton will remain without treatment for his Hepatitis C until his release from DOCS custody due to the provisions of DOCS’ Hepatitis C Protocol. Significantly, if required to serve the maximum term of his sentence, Mr. Hilton will remain in custody until October 30, 2008.
Defendants’ Hepatitis C Protocol 13. There are two prison-run alcohol and substance abuse treatment programs that are maintained by DOCS: ASAT, which consists of daily classes over a period of six months; and RSAT, which is similar to ASAT but which requires participants to reside in a particular cellblock during the program. 14. DOCS Hepatitis C protocol requires anyone who has ever admitted to using drugs or alcohol in the past to participate in a prison-run alcohol and substance abuse treatment program before receiving Hepatitis C treatment. See DOCS Hepatitis C Primary Care Practice Guideline dated March 10, 2003, p.4 at criteria number 11, annexed as Exhibit I; Exhibit J (Memo from Dr. Wright dated March 25, 2003 summarizing the major changes in the revised 2003 guideline)1. 15. Significantly, the Hepatitis C protocol has no foundation in medical science. Specifically, there is no medical support for denying treatment for Hepatitis C to a patient who has admitted to drug or alcohol use in the past but who is not contemporaneously participating in a drug treatment program. See Edlin Decl. ¶9. Informed medical judgment recognizes that even
1Upon information and belief, DOCS has subsequently modified its March 10, 2003 guideline, but those modifications are not implicated by the issues presented here.
4

active drug users may be appropriate candidates for Hepatitis C treatment, whether they participate in drug abuse treatment programs or not. Id. ¶¶9-11.
16. The Hepatitis C Primary Care Practice Guideline purports to be based on the following medical references: Centers for Disease Control and Prevention, Recommendations for Prevention and Control of Hepatitis C Virus (HCV) Infection and HCV-Related Chronic Disease, 47 MMWR 1 (1998) (available at http://www.cdc.gov/mmwr/PDF/RR/RR4719.pdf); Centers for Disease Control, Prevention and Control of Infections with Hepatitis Viruses in Correctional Settings, 52 MMWR 1 (2003) (available at http://www.cdc.gov/mmwr/PDF/rr/rr5201.pdf); Chronic Hepatitis C: Current Disease Management, National Institute of Diabetes and Digestive and Kidney Diseases, NIH Pub. No. 99-4230 (May 1999) (available at http://www.medhelp.org/NIHlib/GF-483.html); Management of Hepatitis C, National Institutes of Health Consensus Statement (March 24-26, 1997) (available at http://consensus.nih.gov/cons/105/105_intro.htm); and Georg M. Lauer and Bruce D. Walker, Hepatitis C Virus Infection, 345 New Engl. J. Med. 41 (2001), attached hereto at Exhibit K. See Exhibit I, at 8. In addition, as of April 21, 2003, the Hepatitis C Primary Care Practice Guideline also purports to be based on the National Institutes of Health Consensus Development Conference Statement, Management of Hepatitis C (2002) (available at http://www.hepprograms.org/drug/hepcconfer.pdf). See Exhibit L (memorandum dated April 21, 2003).
17. Not one of the references supplied by defendants provide any medical support for that portion of DOCS’ Hepatitis C Protocol that requires completion of a substance abuse program prior to the initiation of treatment for the illness. Instead, each of these references confirms that past substance abuse is never a contraindication to antiviral therapy, and that conditioning receipt
5

of Hepatitis C treatment on contemporaneous substance abuse treatment is only justified, if ever, where a prisoner is actively engaged in substance abuse.
18. In 1998, for instance, the Centers for Disease Control and Prevention (“CDC”) expressly approved of antiviral therapy for individuals like Mr. Hilton who are at the greatest risk of progressing to cirrhosis and have not actively used intravenous drugs or alcohol for more than six months. See Centers for Disease Control and Prevention, Recommendations for Prevention and Control of Hepatitis C Virus (HCV) Infection and HCV-Related Chronic Disease, 47 MMWR 1, 14 (1998) (available at http://www.cdc.gov/mmwr/PDF/RR/RR4719.pdf). Similarly, in 2003 the CDC addressed the treatment of Hepatitis C in correctional settings and specifically recommended that candidates for antiviral therapy participate concurrently in substance abuse treatment only insofar as they are actively engaged in drug or alcohol abuse. See Centers for Disease Control, Prevention and Control of Infections with Hepatitis Viruses in Correctional Settings, 52 MMWR 1, 25 (2003) (available at http://www.cdc.gov/mmwr/PDF/rr/rr5201.pdf).
19. The National Institutes of Health (“NIH”) have been similarly consistent in only recommending substance abuse treatment for those individuals with Hepatitis C who are actively engaged in substance use. The 1997 NIH Consensus Statement referenced by the Guideline sounded a cautionary note only with respect to individuals who have used illicit drugs or alcohol within six months of contemplated antiviral therapy. Management of Hepatitis C, National Institutes of Health Consensus Statement, at 18 (March 24-26, 1997) (available at http://consensus.nih.gov/cons/105/105_intro.htm). The 2002 NIH Consensus Statement is even less supportive of defendants’ policy in that it expressly recommends efforts to increase the availability of antiviral therapy to injecting drug users and further declares that active drug use “in and of itself [should] not be used to exclude such patients from antiviral therapy.” National
6

Institutes of Health Consensus Development Conference Statement, Management of Hepatitis C, at 19 (2002) (available at http://www.hepprograms.org/drug/hepcconfer.pdf).
20. The two remaining medical references relied upon by the Guideline similarly establish, at most, that active, not past, substance abuse may be a contraindication to antiviral therapy in some patients. See Chronic Hepatitis C: Current Disease Management, National Institute of Diabetes and Digestive and Kidney Diseases, NIH Pub. No. 99-4230 (May 1999) (available at http://www.medhelp.org/NIHlib/GF-483.html) (describing active substance abuse as a potential contraindication to antiviral therapy); Georg M. Lauer and Bruce D. Walker, Hepatitis C Virus Infection, 345 New Engl. J. Med. 41, 48 (Table 1) (2001), attached at Exhibit K (not listing active or past substance abuse as a contraindication to antiviral therapy).
21. In sum, the medical references which allegedly support the Guideline uniformly indicate that substance abuse programming is not a proper prerequisite to antiviral therapy indicated for individuals who once, but no longer, used drugs. To the contrary, the medical authorities hold that no justification exists for withholding antiviral therapy from candidates, such as Mr. Hilton, whose last drug use predates 1993.
22. Despite the lack of medical support for the Hepatitis C Protocol, defendants have applied the ASAT/RSAT requirement, and denied treatment for Hepatitis C to patients until they have completed the substance abuse program:
a. regardless of the stage at which the disease has progressed; b. regardless of whether the requirement contravenes the treatment recommendations of DOCS’ own treating physicians and specialists; c. regardless of how much time has passed since the prisoner last used drugs; d. even upon prisoners who have not used drugs for more than a decade;
7

e. regardless of whether a prisoner’s past use of drugs or alcohol constituted “abuse” under clinical diagnostic criteria such as those enumerated in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, also known as the DSM-IV;
f. regardless of whether the ASAT or RSAT programming is actually available in the correctional facility in which the prisoner is confined;
g. regardless of whether the prisoner had previously completed a substance abuse treatment program, such as Alcoholics Anonymous, Narcotics Anonymous and the like, even if the program completed was offered at and sanctioned by a DOCS’ facility; and
h. regardless of whether DOCS actually has space available in its ASAT or RSAT programs to allow the prisoner to fulfill the requirement.
23. The application of the Hepatitis C Protocol, and concomitant denial of critical medical treatment, was particularly abhorrent in Mr. Hilton’s case because he has not used drugs for more than a decade and had openly admitted to DOCS in 1993 that he used marijuana and sniffed cocaine when he was a teenager. See Affidavit of Robert Hilton (“Hilton Aff.”) dated August 10, 2005, at ¶¶ 3–5, 16, attached hereto at Exhibit M.
24. After being informed by medical staff that he was required to participate in a substance abuse treatment program to obtain Hepatitis C treatment, Mr. Hilton immediately attempted to gain entry into a substance abuse program, but was denied same due to the excessively long waiting lists that were in place while at Altona. See Exhibit N. Mr. Hilton’s presence on the wait list, and willingness to participate in a substance abuse program to obtain Hepatitis C treatment, was not sufficient to obtain Dr. Wright’s approval to initiate antiviral therapy. See id. (stating “Dr. Wright will not approve the medication order until you are actively enrolled in RSAT. I thought the waiting list would be good enough.”).
8

25. Some correctional facilities had more than one thousand (1,000) prisoners on their ASAT/ RSAT waiting lists at or around the time Mr. Hilton applied for entry into the programs. Because of the limited enrollment space, it can take several years before an inmate could become eligible to participate in a substance abuse program. See December 14, 2004 Report by Correctional Association of New York on Clinton Correctional Facility at 4 (available at http://www.correctionalassociation.org/PVP/publications/facility_reports/Clinton12-14-04.pdf).
26. Shortly after Dr. Wright made the decision to deny Mr. Hilton treatment, Mr. Hilton was transferred from the Altona Correctional Facility to the Washington Correctional Facility. Upon his May 16, 2005 transfer Mr. Hilton filed a prison grievance demanding immediate antiviral therapy. The Washington Inmate Grievance Resolution Committee, composed of two prisoners and two staff members, unanimously found that Mr. Hilton’s grievance was warranted and that he should be provided with the antiviral therapy, noting that “Grievant should not have to participate in ASAT if not needed in order to receive [sic] treatment for any health related issues.” See Exhibit O. The Committee’s recommendation, however, was rejected by the facility’s superintendent, in reliance upon the Hepatitis C Protocol. See Exhibit P. Thereafter, on July 6, 2005, DOCS Central Office Review Committee upheld the superintendent’s decision.
27. On or about July 26, 2005, Mr. Hilton was referred to Washington’s ASAT program solely on the basis of information that Mr. Hilton provided to DOCS when he entered DOCS custody in 1993. See Exhibit Q (Guidance and Counseling memo to Mr. Hilton dated July 26, 2005).
28. On or about July 26, 2005, Mr. Hilton nonetheless was denied entry to Washington’s ASAT program because he would not be able to complete the six-month ASAT program if he were released on parole on November 2, 2005. See Exhibit R (ASAT Referral form
9

documenting the denial of Mr. Hilton’s application). If Mr. Hilton is not released on parole and serves his maximum sentence, he will not be released until October 30, 2008.
29. Accordingly, first because he was placed on the wait list for RSAT at Altona, and then because of the speculative possibility that he would be paroled three years before his maximum sentence, Mr. Hilton has been denied Hepatitis C treatment because of the unavailability of the substance abuse programs which Dr. Wright has determined are necessary for Mr. Hilton to receive treatment. Dr. Wright has consistently insisted that Mr. Hilton participate in ASAT or RSAT as a condition of receiving the Hepatitis C treatment recommended by the prisons’ medical providers. See Exhibit N; see also Exhibit S (Ambulatory Health Record documenting that Mr. Hilton “was not approved by Dr. Wright because he is not enrolled in ASAT”).
30. Defendants’ refusal to treat Mr. Hilton is contrary to all dictates of a civilized society. Indeed, any further delay in treating Mr. Hilton is unconscionable, as his fibrosis in 1999 had progressed to Stage 2, making treatment “more urgent”. Edlin Decl. ¶ 13. Moreover, because successful treatment is less likely as the disease progresses and as a patient ages, id., it is imperative that treatment commence forthwith.
31. For these reasons, plaintiff respectfully requests that this Court schedule a hearing on plaintiff’s request for preliminary injunctive relief, and upon such hearing enter an order compelling defendants to immediately initiate Hepatitis C treatment for Mr. Hilton.
32. Mr. Hilton is not proceeding via a Notice of Motion because the illness from which he suffers, Hepatitis C, is a progressive disease that requires the initiation of critical medical care without further delay, which result cannot be achieved pursuant to the briefing and hearing schedule prescribed by Local Civil Rule 7.1. Because of the importance of minimizing any
10

additional delay in the initiation of treatment for Mr. Hilton’s Hepatitis C, it is respectfully requested that a hearing on plaintiff’s requested emergency relief be held as soon as is practicable, and no later than Friday, August 26, 2005. Attached hereto as Exhibit T is plaintiff’s Proposed Temporary Restraining Order. Attached hereto as Exhibit U is plaintiff’s Proposed Preliminary Injunction.
33. On August 15, 2005, I contacted Roger Kinsey, in the Albany office of the New York State Office of Attorney General, and informed him of plaintiff’s intention to seek the emergency relief requested herein. I spoke with Mr. Kinsey again today and he instructed me that service of papers should be accomplished by emailing the relevant papers to Mr. Kinsey, and sending via overnight mail hard copies to the New York State Department of Correctional Services’ central office.
WHEREFORE, affirmant respectfully requests that this Court schedule a hearing on plaintiff’s request for preliminary injunctive relief as soon as is practicable, and upon such hearing enter an order compelling defendants to immediately initiate Hepatitis C treatment for Mr. Hilton, and grant Mr. Hilton such other and further relief as the Court deems just and proper. Dated: New York, New York
August 17, 2005 s:/Alexander A. Reinert ALEXANDER A REINERT [Bar No. 512945]
11

EXHIBIT B

EXHIBIT C

KOOB & MAGOOLAGHAN
Notable Case List
PRISONERS’ RIGHTS CASES
A. Reported Cases of Interest
Tortorici v. Goord, 216 F.R.D. 256 (S.D.N.Y. 2003) (decision holding quality assurance documents discoverable). This civil rights action was commenced on behalf of the mother, father, brothers, sister and Estate of Ralph Tortorici after Ralph tragically committed suicide at the age of 31. The case settled for $800,000.00 plus attorneys’ fees in the amount of $375,000.00, upon substantial evidence regarding the systemic deficiencies in the delivery of mental health treatment to inmates who suffer serious psychiatric illnesses, and upon the shocking revelation that Ralph Tortorici was all but abandoned by the mental health practitioners responsible for his treatment and care.
Jackson v. Johnson, 118 F. Supp. 2d 278 (N.D.N.Y. 2000), aff’d in part, appeal dismissed in part, 2001 WL 735902 (2nd Cir. 2001). This case was a civil rights action on behalf of a 14 year old who, while confined in a medium security youth facility owned and operated by the New York State Division for Youth, was subjected to two violent and unlawful assaults by Youth Division Aides that left him with permanent brain damage and quadriplegia. The case settled on the eve of trial for $9,750,000, the largest award in a civil rights action in the history of the Northern District of New York. See N.Y.L.J., 2/26/02, p.1 (announcing the settlement). One result of the case was a new policy initiated by State Attorney General Eliot L. Spitzer, who ordered the 521 lawyers in his office to terminate their use of race-based mortality tables in assessing damages for plaintiffs who sue the State (see NYLJ, 4/21/99, p.1) (announcing the change in policy at the Attorney General’s office). The case also resulted in the implementation of a new Physical Restraint Technique throughout the Division for Youth to assure that another youth would not suffer similar injuries.
Smith v. Goord, 222 F.R.D. 238 (N.D.N.Y. 2004) (decision granting plaintiff discovery of personnel files, and training and job performance documents). This civil rights action was commenced on behalf of a former inmate who suffers from a serious psychiatric illness but was nevertheless housed in solitary confinement under horrific and inhumane conditions, and warehoused without treatment in "mental health" observation cells, under equally appalling conditions. After the District Court granted plaintiff’s motion seeking access to very valuable discovery materials the case settled for $115,000.00 plus attorneys’ fees.
Baker v. Coughlin, et al., 77 F.3d 12 (2nd Cir. 1996) (decision finds N.Y. Corr. L. § 24 a bar to state negligence claims). This was a civil rights action for the death of 18 year old prisoner at a boot camp correctional facility who was subjected to excessive force and the denial of emergency medical treatment. The case settled for $1,000,000 in damages to the deceased’s mother for
1

KOOB & MAGOOLAGHAN Notable Case List
wrongful death and payment of $300,000 in attorneys fees. Included in the settlement was an agreement for a meeting between the deceased’s mother, the Commissioner of the Department of Correctional Services and a Governor’s representative to discuss the problematic use of excessive force in State boot camps. The case resulted in a new training initiative by the Department of Corrections.
Brown v. Coughlin, 758 F. Supp. 876 (S.D.N.Y. 1991) (denial of summary judgment motion), later reported at 869 F. Supp. 196 (S.D.N.Y. 1994). This case was brought for the deliberate indifference of municipal defendants to a prisoner's need for adequate medical treatment for a simple fracture of the leg, which resulted in a below-the-knee amputation. The case was settled for $600,000.
D’Angelo v. New York City Health and Hospitals Corp., 929 F. Supp. 129 (S.D.N.Y. 1996) (denial of summary judgment). This civil rights action arose from the August 1982 death of Sonia Yglesias, who at the age of 33 and while in the custody of the City of New York, died approximately 24 hours after her admission to the secure psychiatric unit at Elmhurst Hospital. The action, brought twelve years after her death on the theory that the claims did not accrue and/or were tolled because of a coverup masterminded by the city relating to the cause of death, included claims for loss of the parent-child relationship. The case settled for $750,000 inclusive of attorneys’ fees.
Langley v. Coughlin, 715 F. Supp. 522 (S.D.N.Y. 1989); 709 F. Supp. 482 (S.D.N.Y. 1989), aff'd 888 F.2d 252 (2d Cir. 1989) (decisions denying challenge to class certification, qualified immunity & summary judgment). This was a class action challenge to punitive segregation and the inadequate mental health treatment given mentally ill prisoners. The case settled with an injunction and damage fund of $350,000 for all class members who had been confined in solitary confinement during the relevant period, with additional damages to those prisoners denied mental health care. The case resulted in payment in excess of $900,000 in attorneys fees and $100,000 in costs, primarily for expert witness testimony, awarded as requested. The case led to new protocols for the delivery of mental health services and new protections for prisoners confined to solitary throughout the New York State Department of Correctional Services.
Powell v. Ward, 487 F. Supp. 917 (1980), aff'd as mod. 643 F.2d 924 (1981), cert. den'd, 454 U.S. 832 (1981) (motion on contempt); 540 F. Supp. 515 (S.D.N.Y. 1982) (monitoring of contempt decision); 562 F. Supp. 274 (S.D.N.Y. 1983) (same); sub nom 1993 WL 328837 (S.D.N.Y.), aff’d 22 F.3d 1092 (2d Cir.1994) (same); 1994 WL 673507 (S.D.N.Y.) (final attorney’s fees award), aff’d sub nom, 122 F.3d 1057 (2d Cir. 1995). This class action sought contempt and a permanent injunction for violations of due process in prison disciplinary proceedings. A settlement fund was established in the amount of $125,000 in lieu of civil contempt fines. Over $1 million dollars was paid in attorney’s fees in the case, which proceeded
2

KOOB & MAGOOLAGHAN Notable Case List
over the course of two decades and changed the entire system of disciplinary hearings throughout the New York State Department of Correctional Services and developed the law on civil contempt. Before it concluded, well over 100 Court orders were entered.
Kagan v. State of New York, 221 A.D.2d 7, 646 N.Y.S.2d 336 (2nd Dept. 1996). This case was commenced after claimant, an inmate at the Bedford Hills Correctional Facility, lost her hearing in one ear because of the prison’s negligent provision of medical care. After trial, a judge in the Court of Claims awarded $304,000 to our client. See $304,000 Negligence Award Won by Inmate Rendered Deaf, NYLJ, 8/3/92, p.1. The award was affirmed on appeal.
McCormick v. Gray, 1993 WL 437788 (S.D.N.Y.) This case was a challenge to the State’s attempt to prevent a husband and wife from residing together after both were released from prison. After our law firm successfully challenged the policy, the District Court awarded attorneys’ fees in full.
B. Unreported Decisions & Settlements
Almodovar v. Andrews, 00CV0599 (W.D.N.Y.) This civil rights action was commenced after Sarah Almodovar was brutally assaulted by correction officers because she cooperated in an investigation conducted by the Inspector General’s office into sexual harassment by guards at the Albion Correctional Facility. After months of pre-trial discovery, the case settled for $135,000.00.
Rosado v. Graceffo, 99-Civ.-551 (W.D.N.Y.) This civil rights action was commenced on behalf of an inmate who was denied medical treatment for a painful and disfiguring dermatological condition which grotesquely scarred his face and body, thus subjecting him to continuous ridicule during his period of incarceration. After appropriate treatment was obtained, a settlement was reached in the amount of $139,241, including attorney’s fees of $49,241.
Battiste v. Artuz, et al., 99 Civ. 0503 (RWS) (S.D.N.Y.). This civil rights action arose from the State’s failure to provide a prisoner with adequate psychiatric care for his serious mental illness. As a result, the prisoner committed suicide. The case was settled for $350,000 inclusive of attorneys’ fees.
Gray v. The State of New York, Claim No. 75070-A (N.Y. Ct. Claims). This case was brought in the Court of Claims after a prisoner died because of delayed treatment and diagnosis of colon cancer. The Court of Claims judge awarded $505,000 in 1993 after trial.
Davidson, et al. v. Artuz, et al., 98 Civ 6019 (JSM) (S.D.N.Y.). This civil rights action arose from the death of a 29-year-old prisoner who, while serving lengthy consecutive sentences,
3

KOOB & MAGOOLAGHAN Notable Case List
suffered from an asthma attack and died as a result of defendants’ refusal to respond to the vociferous pleas for help from the prisoner population. The case, which included claims for loss of companionship for decedent’s mother and three children, settled for $900,000 inclusive of attorneys fees.
Morales v. Curley, 93 Civ. 4734 (RPP) (S.D.N.Y.). This case was brought for the wrongful death of a psychiatrically ill prisoner who had been placed in a seclusion cell within a mental health unit without proper medical treatment or review for a two day period and subsequently died from dehydration while in transit to a psychiatric hospital. The case settled at trial for $950,000 to the parents and payment of $100,000 in attorneys’ fees. A complaint filed by counsel post-settlement regarding the licensure of the responsible psychologist resulted in the imposition of disciplinary action.
Ortiz v. Stancari, 94 Civ. 1685 (DAB) (S.D.N.Y.). In this case, we represented a prisoner who was sodomized and raped by another prisoner known to officials at Westchester County Jail for his violent propensities. The case settled for a total of $295,000.
Rosario v. Coughlin, 91 Civ. 1664 (KMW) (S.D.N.Y.). This civil rights action was brought on behalf of six prisoner paraplegics for instances of denied or delayed medical care. The case settled prior to expert discovery, prior to any pre-trial order, and without the expense of defending any dispositive motions by defendant, for total damages of $1,000,000 and $200,000 in attorneys’ fees.
EMPLOYMENT DISCRIMINATION CASES
Petrovits v. New York City Transit Authority, 2003 WL 22349676 (S.D.N.Y.) (denying the defendant’s motion for judgment notwithstanding the verdict); 2004 WL 42258 (granting attorneys’ fees). This sex discrimination case was tried over six days, and resulted in a jury finding that Joan Petrovits was denied a promotion due to her sex. The jury awarded Ms. Petrovits $150,000.00 in compensatory damages, and Magistrate Judge Eaton thereafter entered an Order compelling the defendants to promote her, awarding back pay, and awarding attorneys’ fees to Koob & Magoolaghan and our trial co-counsel, the New York University Civil Rights Clinic.
Pfeiffer v. Lewis County, 308 F. Supp. 2d 88 (N.D.N.Y. 2004) (denying defendants’ motion for summary judgment). This case was litigated on behalf of the only woman ever employed in the Lewis County Sheriff’s Department in a supervisory position after she was demoted from her position as Dispatch Supervisor and denied equal terms and conditions of employment due to her sex. After we defeated the County’s motion for summary judgment the case settled very favorably for an undisclosed amount.
4

KOOB & MAGOOLAGHAN Notable Case List
Hernandez, et al. v. Cite, et al., 03 Civ. 8822 (S.D.N.Y.); Anzures, et al. v. Park Avenue Café, et al., 04 Civ. 2993 (S.D.N.Y.); Baizan et al v. Cite Restaurant et al., 04 Civ. 10134 (S.D.N.Y.): These civil rights lawsuits were commenced on behalf of 23 restaurant workers who alleged that they were underpaid in violation of federal and state wage and hour laws, and, in some cases, discriminated against due to their race while working at two fashionable Manhattan restaurants, Cité and Park Avenue Café, managed by Smith & Wollensky Restaurant Group. Represented by the Urban Justice Center, the CUNY Law School Immigrant Rights Clinic, and Koob & Magoolaghan, the workers settled their claims in exchange for financial compensation and changes in workplace policies and procedures.
Karibian v. Columbia University, 812 F. Supp. 413 (S.D.N.Y. 1993), rev’d 14 F.3d 773 (2nd Cir. 1994), cert denied 512 U.S. 1213, 114 S. CT. 2693. This lawsuit was brought under Title VII against university and supervisors for sexual harassment. The District Court held that a discrimination plaintiff who submits to her employer’s demands for sexual favors can never recover in a sexual harassment suit. The Second Circuit reversed, noting that such a rule would have the effect of rewarding the most successful harassers, and in doing so announced a new, liberal theory of liability in instances where harassment is by supervisors. The decision resulted in amendments to the EEOC guidelines in such cases. See NYLJ, 2/26/94 p.1 ("The Second Circuit Court of Appeals yesterday announced a new liberal theory of employer liability for a supervisor’s sexual harassment of an employee. . . [e]mployers are liable for abusive work environment if the supervisor ‘uses his actual or apparent authority to further the harassment’. . . complainants in such circumstances need not show an employer’s failure to respond to a complaint or no reasonable avenue for complaints"). After a jury verdict of $450,000, the District Court granted judgment n.o.v. to defendants.
Romei v. Shell Oil Company, 1991 WL 692884 (Sup. Ct. N.Y. Cty.) (decision on summary judgement motion). In this disability discrimination case, we represented an employee who alleged that Shell Oil discriminated against him based upon the belief that the plaintiff had AIDS. In 1994 a jury awarded plaintiff compensatory and punitive damages in the amount of $121,000.
Goordineer v. Greenville Board of Fire Commissioners, 234 A.D2d 371, 651 N.Y.S.2d 92 (2d Dept. 1996), leave to appeal denied, 89 N.Y.2d 812, 657 N.Y.S.2d 405 (1997) (finding plaintiff’s complaint timely because of "continuing nature" of discrimination), after remand, 277 A.D.2d 314, 716 N.Y.S.2d 685 (2d Dept. 2000) leave to appeal dismissed, 96 N.Y.2d 792, 725 N.Y.S.2d 642 (2001) (successfully defending challenges NYS Division of Human Rights’ decision finding plaintiff, a decorated volunteer fire fighter, had been discriminated against on the basis of her sex in her application for work as a full time paid fire fighter). The case was resolved by a confidential settlement.
5

KOOB & MAGOOLAGHAN Notable Case List
Burke v. Lord & Taylor (S.D.N.Y.). This civil rights action challenged plaintiff’s termination on the ground that defendant had discriminated against him because he had AIDS. After the Court denied defendants’ motion for summary judgment, a confidential settlement was reached.
Woodley v. Macy’s, (S.D.N.Y.). This case involved a Macy’s employee who annually played Santa Clause, but who was denied re-employment after he disclosed that he was taking AZT. A confidential settlement was negotiated in 1995 by the Hon. Mario Cuomo, who was appointed to mediate the case by the U.S. Bankruptcy Court. See A Bittersweet Visit By an Ailing Santa: An AIDS Patient Dusts Off His Costume, and His Lawsuit, New York Times, 12/16/94, p. B1.
DISABILITY RIGHTS CASES
Locher v. UNUM Life Insurance Company of America, 389 F.3d 288 (2d Cir., 2004) (clarifying standard to be applied by the District Courts in determining whether to consider evidence outside the administrative record). This ERISA litigation was commenced on behalf of a legal secretary who was compelled to resign her position after developing Chronic Fatigue Syndrome. More than a decade after she was first diagnosed, and after prevailing at trial before the Hon. Laura Swain, Ms. Locher was finally awarded benefits. Locher v. UNUM Life Insurance Co. of America, 126 F. Supp. 2d 769 (S.D.N.Y. 2001). Because of the importance of the case to the rights of the disabled, the Second Circuit decision was reported on the front page of the New York Law Journal on November 16, 2004, and in follow-up articles on ERISA litigation as well. See Rights of Disability Insurance Claimants Boosted With Decision, N.Y.L.J., 2/15/2005, p4. Ms. Locher was awarded back benefits with interest and Koob & Magoolaghan was awarded attorneys fees of $268,000.
Sansevera v. DuPont , 859 F. Supp. 106 (S.D.N.Y., 1994). In this ERISA action on behalf of an individual with chronic fatigue syndrome, the Court awarded back benefits, interest and attorneys’ fees to our client. See Benefits’ Denial For Disability Held Arbitrary, N.Y.L.J., 8/8/94, p.1.
Mermelstein v. NYU Medical Center, 89 Civ. 4003 (MLJ) (S.D.N.Y.). This action for discrimination on the basis of disability, commenced on behalf of a psychiatric resident, was settled pursuant to a confidential stipulation.
OTHER CIVIL RIGHTS CASES
The Mount Kisco Worker’s Project v. The Village/Town of Mount Kisco, 96 Civ. 8335 (BDP) (S.D.N.Y.). This class action was brought on behalf of the day laborers of Mount Kisco who successfully challenged the Village’s mandatory hiring site for day laborers, the midnight housing raids conducted on Latino homes, and the summary eviction of Latinos from the public
6

KOOB & MAGOOLAGHAN Notable Case List
park as violative of their rights under the First Amendment and the Due Process and Equal Protection clauses of the U.S. Constitution. Years later, plaintiffs successfully prevailed on a motion to hold the defendants in contempt of the Consent Decree entered in the case. Melchor v. The Village/Town of Mount Kisco, 97 Civ. 0010 (BDP) (S.D.N.Y.). This civil rights action was brought on behalf of eleven Latinos who were summarily ejected from their home during an illegal housing raid, not allowed to re-enter for a period of seven hours, and subjected to criminal prosecution. The criminal charges against our clients were either withdrawn or dismissed, and in the civil rights action, damages were awarded to each plaintiff in the amount of $20,000. Stern v. Resnick, 99 Civ. 10053 (CM) (S.D.N.Y.). In this case, a preliminary injunction was granted against a landlord who, at the request and support of the Village of Mount Kisco, sought to evict the owner of a Chinese restaurant who had altered her menu to attract a Latino clientele. The case resulted in a confidential settlement. Ramos v. New York City, 05 Civ. 637 (S.D.N.Y.). This civil rights action was commenced after seventeen (17) year old Jose Ramos was handcuffed and arrested by a security officer at the New York City public high school he attended because of the officer’s unlawful and discriminatory animus against Mr. Ramos. Not long after the litigation was commenced, the courage of this young man was rewarded when the city agreed to compensate him in the amount of $12,500 for the harm suffered as the result of the officer’s actions. Hammonds v. Schweiker, 535 F. Supp. 276 (S.D.N.Y. 1982); 652 F. Supp. 491 (S.D.N.Y. 1987). In this case, we successfully sought social security survivor’s benefits for an "illegitimate" child. See U.S., Teenager In 10-Year Battle Over Child Benefits, NYLJ, 2/3/97, p.1.
7

 
 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ----------------------------------------------------------------------X ROBERT HILTON and LOUIS VASQUEZ, on behalf of themselves and all others similarly situated,

–against–

Plaintiffs,

NOTICE OF MOTION

LESTER N. WRIGHT, M.D., M.P.H., Associate Commissioner/ Chief Medical Officer, for the New York State Department of Correctional Services; and the NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES,

05 Civ. 1038 (DNH)(DEP)

Defendants. ----------------------------------------------------------------------X

PLEASE TAKE NOTICE that, pursuant to Fed. R. Civ. P. 23, Local Civil Rules 7.1(b)(2)

and 23.2, and upon the annexed Affirmation of Alexander A. Reinert dated September 2, 2005,

the exhibits attached thereto, Plaintiff’s Memorandum of Law in Support of Motion for Class

Certification, and all pleadings and prior proceedings relating thereto, plaintiffs will move before

the Hon. David N. Hurd at the United States District Court for the Northern District of New

York, 10 Broad Street, Utica, New York, on the 14th day of October, 2005 at 2:00 p.m., for an

Order pursuant to Fed. R. Civ. P. 23 certifying that the within action may be maintained as a

class action on behalf of all prisoners in the custody of the New York State Department of

Correctional Services infected with Hepatitis C who must now or in the future meet defendants’

substance abuse counseling requirement to obtain treatment; and for such other and further relief

to the plaintiffs as this Court deems just and proper. By order of the Court dated August 25,

2005, plaintiffs have been excused from the requirements of Local Civil Rule 7.1(b)(2) with

respect to conferencing this matter before a magistrate judge prior to filing the within motion.

PLEASE TAKE FURTHER NOTICE that opposition papers must be served no later than
17 days prior to the return date of the motion, pursuant to Local Rule 7.1(b).
Dated: September 2, 2005 New York, New York
KOOB & MAGOOLAGHAN
s/ Alexander A. Reinert By: Alexander A. Reinert (Bar No. 512945) Attorneys for Plaintiffs 19 Fulton Street, Suite 408 New York, New York 10038 (212) 406-3095 aar@kmlaw-ny.com
To:
CLERK OF COURT James T. Foley United States Courthouse 445 Broadway, Room 509 Albany, NY 12207-2924
ATTORNEY GENERAL ELIOT SPITZER Attn: Nelson Sheingold Assistant Attorney General Attorney for Defendants The Capitol Albany, New York 12224-0341

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -------------------------------------------------------------------------X ROBERT HILTON and LOUIS VASQUEZ, on behalf of themselves and all others similarly situated,

Plaintiffs,
–against–
LESTER N. WRIGHT, M.D., M.P.H., Associate Commissioner/ Chief Medical Officer, for the New York State Department of Correctional Services; and the NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES,

AFFIRMATION 05 Civ. 1038 (DNH)(DEP)

Defendants. -------------------------------------------------------------------------X

ALEXANDER A REINERT, an attorney duly admitted to the practice of law in the

State of New York and in this Court, affirms under penalty of perjury as follows:

1. I am an associate with the law firm of Koob & Magoolaghan, attorneys for plaintiffs

Robert Hilton and Louis Vasquez, and as such am fully familiar with the facts and circumstances

of this case. I make this affirmation in support of plaintiffs’ Motion for Class Certification

seeking permission to bring this action as the representatives of the class of all prisoners in the

custody of New York State who suffer from Hepatitis C and have been denied medically

prescribed treatment pursuant to Department of Correctional Services policies in violation of

their rights under the Eighth and Fourteenth Amendments to be free from cruel and unusual

punishment.

2. The instant action was commenced by plaintiff Hilton by complaint filed August 17,

2005. Simultaneous with the filing of his complaint, Mr. Hilton moved for a temporary

restraining order seeking to compel defendants to immediately to authorize the combination

antiviral therapy prescribed by his physicians to treat his Hepatitis C. Within days of the filing of Mr. Hilton’s application, a Stipulation was executed by the parties, and So Ordered by the court, which provides for the treatment sought by Mr. Hilton. The instant application for class certification is made by Mr. Hilton and Louis Vasquez pursuant to an Amended Complaint filed August 31, 2005.1 Mr. Vasquez is confined in the Great Meadow Correctional Facility and, like Mr. Hilton, was denied critically necessary treatment for his Hepatitis C as a direct result of defendants’ Hepatitis C Protocol, which has no foundation in medical science. See ¶¶ 11-13, infra.
3. Hepatitis C is a blood-borne virus which affects the liver. It is detected through laboratory testing of a person’s blood sample. By conservative estimates, there are currently over 9,000 prisoners in New York State correctional facilities who have been diagnosed with Hepatitis C. (Compl. ¶ 131.)
4. Hepatitis C virus attacks and, if not treated, commonly destroys the liver. Liver damage progresses through a series of stages beginning with isolated fibrosis, or scarring, and often culminating in cirrhosis, or pervasive scarring and inflammation. The development of cirrhosis is not only life-threatening in and of itself, but also increases the risk that a patient will develop hepatocellular carcinoma, a type of cancer.
5. The standard clinical treatment of Hepatitis C is a 48-week course of medication combining two antiviral agents, pegylated interferon and ribavirin. The use of such “combination” interferon-ribavirin therapy is now generally considered the standard of care in
1By letter dated September 2, 2005, plaintiffs have requested that defendants immediately initiate treatment for Mr. Vasquez’ Hepatitis C. In the event such treatment is not forthcoming, plaintiffs shall file a motion for a temporary restraining order and preliminary injunction on Mr. Vasquez’ behalf.
2

treating Hepatitis C in patients whose liver deterioration has not reached the stage of decompensated cirrhosis. See National Institutes of Health Consensus Development Conference Statement, “Management of Hepatitis C” [hereinafter “NIH Consensus Statement”], at 14 (2002), available at http://www.hepprograms.org/drug/hepcconfer.pdf.2 When successful, such combination antiviral therapy can effectively cure sufferers of Hepatitis C, rendering the disease no longer a threat to their health. See NIH Consensus Statement at 15-16. Yet once a patient crosses an identifiable clinical threshold to exhibit “decompensated” cirrhosis, liver function deteriorates beyond repair by antiviral therapy, leaving organ replacement the only treatment capable of restoring a patient to health. See NIH Consensus Statement at 7. Moreover, even in patients who have not developed decompensated cirrhosis, combination antiviral therapy becomes less effective as the liver disease progresses. See NIH Consensus Statement at 20-21.
6. According to figures provided by the New York State Department of Correctional Services (“DOCS”) to the Correctional Association of New York, at least 14% of men and 23% of women entering DOCS custody are infected with Hepatitis C. See The Correctional Association of New York, Conditions of Confinement in 14 New York State Correctional Facilities (“Correctional Association Report”), at 6–7 (June 2005), available at http://www.correctionalassociation.org/PVP/publications/State_of_prisons_02-03.pdf. Men constitute 95% of the New York State prison population, and 64,022 individuals were incarcerated in New York State as of January 2005. Id. at 5–6. Therefore, at least 8,500 men and 700 women infected with Hepatitis C are in DOCS custody.
2The NIH Consensus Statement also indicates that patients who fail to complete a full course of antiviral therapy commonly stand to benefit from the repeat administration of therapy for the full course of treatment. See NIH Consensus Statement at 16-17.
3

7. Of these approximately 9,200 prisoners infected with Hepatitis C, only 1.4% receive antiviral therapy for Hepatitis C. Id. at 14. However, assuming that the prisoners with Hepatitis C in DOCS custody are similar to other populations infected with Hepatitis C, some 60 to 85% of these prisoners have chronic Hepatitis C and therefore may be candidates for antiviral therapy. See NIH Consensus Statement at 6. Treatment is essential for the 10 to 15% of patients with chronic Hepatitis C who will develop cirrhosis, and should be considered for any patient with chronic Hepatitis C who is at an increased risk of developing cirrhosis. Id. at 6, 19
8. Therefore, while not all of the estimated 9,200 prisoners infected with Hepatitis C are medically appropriate candidates for treatment, it is likely that between 550 and 1100 of them have or will develop chronic Hepatitis C to a degree which merits treatment with antiviral therapy. This class of prisoners, who meet all medical criteria for treatment, will nonetheless be subjected to the same Hepatitis C Protocol that resulted in the denial of treatment to Mr. Hilton and Mr. Vasquez.
Defendants’ Hepatitis C Protocol 9. There are two prison-run alcohol and substance abuse treatment programs that are maintained by DOCS: ASAT, which consists of daily classes over a period of six months; and RSAT, which is similar to ASAT but which requires participants to reside in a particular cellblock during the program. 10. Defendants’ Hepatitis C protocol requires anyone who has ever admitted to using drugs or alcohol in the past to participate in a prison-run alcohol and substance abuse treatment program before receiving Hepatitis C treatment. See Affirmation of Alexander A. Reinert ¶14
4

(dated August 17, 2005), attached hereto as Ex. A;3 see also Hepatitis C Primary Care Practice Guideline (March 2003) at p.4 n.11, attached hereto as Ex. B.
11. Significantly, the Hepatitis C protocol has no foundation in medical science. Specifically, as plaintiff Hilton established in the moving papers in support of his Order to Show Cause, there is no medical support for denying treatment for Hepatitis C to a patient who has admitted to drug or alcohol use in the past but who is not contemporaneously participating in a drug treatment program. See Affirmation of Alexander A. Reinert ¶15 (dated August 17, 2005). Informed medical judgment recognizes that even active drug users may be appropriate candidates for Hepatitis C treatment, whether they participate in drug abuse treatment programs or not. Id.
12. Not one of the medical references which purports to support defendants’ Hepatitis C Protocol stands for the proposition that completion of a substance abuse program is necessary prior to the initiation of antiviral treatment for Hepatitis C. Instead, each of these references confirms that past substance abuse is never a contraindication to antiviral therapy, and that conditioning receipt of Hepatitis C treatment on contemporaneous substance abuse treatment is only justified, if ever, where a prisoner is actively engaged in substance abuse. See Affirmation of Alexander A. Reinert ¶¶17–21 (dated August 17, 2005).
13. Significantly, DOCS refuses to initiate Hepatitis C treatment unless the patient participates in ASAT or RSAT, even though RSAT and/or ASAT programs are not even offered at many correctional facilities. Moreover, where offered, the programs often have waiting lists for enrollment as participation in the programs is sought after by prisoners attempting to meet
3This affirmation was submitted in support of plaintiff Hilton’s application for injunctive relief and is attached hereto for the Court’s convenience.
5

required or recommended programing goals to augment their parole applications.4 The programs require full day attendance for a six month period, and preclude the inmates’ participation in any other day program or work assignment. RSAT participants must also agree to reside on a particular cell block for the six month period, and therefore forfeit more favorable cell placements such as Honor Block.
14. DOCS and Dr. WRIGHT have applied the ASAT/RSAT requirement, and denied treatment for Hepatitis C to patients until they have participated in or completed the substance abuse counseling programs:
a. regardless of the stage at which the disease has progressed; b. regardless of whether the requirement contravenes the treatment recommendations of DOCS’ own treating physicians and specialists; c. regardless of how much time has passed since the prisoner last used drugs; d. even upon prisoners who have not used drugs for more than a decade; e. regardless of whether a prisoner’s past use of drugs or alcohol constituted “abuse” under clinical diagnostic criteria such as those enumerated in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, also known as the DSM-IV; f. regardless of whether the ASAT or RSAT programming is actually available in the correctional facility in which the prisoner is confined; g. regardless of whether the prisoner had previously completed a substance abuse treatment program, such as Alcoholics Anonymous, Narcotics Anonymous and the like, even if the program completed was offered at and sanctioned by a DOCS’ facility;
4For example, Mr. Hilton tried to enroll in the program at Altona Correctional Facility but was placed on the waiting list due to popular demand for the program.
6

h. regardless of whether DOCS actually has space available in its ASAT or RSAT programs to allow the prisoner to fulfill the requirement; and
I. to prisoners who require a second treatment with antiviral therapy, regardless of whether such individuals met the ASAT/RSAT requirement when they were given their first course of treatment with antiviral therapy.
15. Plaintiffs bring this class action to enjoin defendants from continuing to apply the ASAT/RSAT requirement as a condition of receiving antiviral therapy for Hepatitis C.
STATEMENT OF THE CLASS SOUGHT TO BE CERTIFIED 16. The class sought to be certified comprises plaintiffs and all Hepatitis-C-infected prisoners in DOCS custody who must now or in the future meet defendants’ ASAT/RSAT requirement to obtain combination antiviral therapy treatment. 17. The class as defined meets the requirements of Fed. R. Civ. P. 23(a), as well as at least one element of Fed. R. Civ. P. 23(b). 18. Under Rule 23(a), [o]ne or more members of a class may sue or be sued as representative parties on behalf of all only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class. 19. Given the large number of inmates who are infected with the Hepatitis C virus, with at least 500 medically eligible for anti-viral treatment, it would be impracticable to join all members in the suit. Moreover, due to the nature of the illness, and the fluidity of the prison population, class membership will necessarily change as new class members are incarcerated, new cases are diagnosed, individual conditions progress beyond a stage receptive to treatment,
7

and prisoners are discharged. Therefore the numerosity requirement of Rule 23(a)(1) is satisfied. Further, membership in the class can be easily identified through DOCS’ own records. If this is administratively burdensome, a simple questionnaire could be distributed to those prisoners identified as Hepatitis C infected patients.
20. Individual litigation of the issues presented here would further be impracticable due to the dispersion of class members throughout the DOCS facilities, the difficulty for many class members to institute litigation due to their confined status, and the need for prospective injunctive relief to protect future class members.
21. There are questions of law and fact common to the class in that all DOCS prisoners with Hepatitis C are reviewed for medical treatment under the same policy and procedures. Moreover, the standard medical knowledge of the treatment of the disease applies equally to all those infected even though individual patients may be at different stages of the illness. Finally, the class members’ right to medical care is an entitlement well established in our constitutional jurisprudence and equally applicable to all proposed class members.
22. Any prisoner with an admitted past history of drug use will be subjected to the same unconstitutional and illegal policy as Mr. Hilton and Mr. Vasquez, both of whom maintain that DOCS’ Hepatitis C Protocol violates the Eighth Amendment, the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act. Plaintiffs’ claims arise out of the promulgation and enforcement of the relevant section of the DOCS Hepatitis C Primary Care Practice Guideline, and thus the legal grievance of each class member will arise from one single course of action taken by the defendant. Thus the Rule 23(a)(2) requirement of commonality of claims is satisfied.
23. In the instant case, the typicality requirement of Rule 23(a)(3) is met because 8

plaintiff’s claims arise from the same course of events that endanger all members of the class. Any Hepatitis-C-infected prisoner in the custody of DOCS will be subjected to the ASAT/RSAT requirement prior to obtaining treatment, regardless of whether the prisoner has used or abused drugs in the recent past, regardless of whether the prisoner ever has participated in a substance abuse treatment program, regardless of the availability ASAT and RSAT in the facility where the prisoner is incarcerated, and regardless of the recommendations of the prisoner’s treating and specialist physicians. Indeed, by treating so many different prisoners the same, defendants themselves have guaranteed that plaintiffs’ claims are typical of the class’s claims.
24. As plaintiffs contend that treatment should never be conditioned upon an inmate’s participation in a substance abuse program, the claims of Mr. Hilton and Mr. Vasquez are typical of the class, regardless of the individual class member’s particular history of drug abuse or ability to attend a substance abuse program. It is plaintiffs’ position that requiring substance abuse behavior training is an unlawful barrier to the constitutionally required provision of standard medical treatment of a prisoner who has been diagnosed with serious, life-threatening, physical illness.
25. Plaintiffs have no conflict of interest with other potential class members and the denial of treatment will cause them the same injuries as other prisoners who are denied treatment of their Hepatitis C infections. The goal of removing the ASAT/RSAT requirement as a barrier to obtaining treatment is in the interest of all prisoners who are medically eligible for treatment. Those who want to participate in such programs will still be allowed to do so. Thus the first prong of Rule 23(a)(4) is satisfied by Mr. Hilton and Mr. Vasquez acting as the named representatives of the proposed class.
26. The second prong of Rule 23(a)(4) requires a showing that plaintiff’s counsel is 9

“qualified, experienced and able to conduct the litigation.” Plaintiff’s counsel, Koob & Magoolaghan, has over twenty years experience specializing in civil rights litigation, with particular emphasis on the rights of New York State prisoners, and has served as counsel for plaintiff classes in prisoner civil rights actions. See Langley v. Coughlin, 715 F. Supp. 522 (S.D.N.Y. 1989); 709 F. Supp. 482 (S.D.N.Y. 1989), aff’d 888 F.2d 252 (2d Cir. 1989) (decisions denying challenge to class certification, qualified immunity & summary judgment); Powell v. Ward, 487 F. Supp. 917 (1980), aff’d as mod. 643 F.2d 924 (1981), cert. denied, 454 U.S. 832 (1981) (motion on contempt); 540 F. Supp. 515 (S.D.N.Y. 1982) (monitoring of contempt decision); 562 F. Supp. 274 (S.D.N.Y. 1983) (same); sub nom 1993 WL 328837 (S.D.N.Y.), aff’d 22 F.3d 1092 (2d Cir.1994) (same); 1994 WL 673507 (S.D.N.Y.) (final attorney’s fees award), aff’d sub nom, 122 F.3d 1057 (2d Cir. 1995); see also list of representative cases annexed hereto as Exhibit C.
27. The firm also has litigated numerous Eighth Amendment claims for denied medical care, including ongoing challenges to the DOCS Hepatitis C Guideline which is the subject of this lawsuit. While appearing pro bono, counsel have successfully challenged the ASAT/RSAT requirement in the Appellate Division, Second Department. See Domenech v. Goord, 797 N.Y.S.2d 313, 314 (2d Dept. 2005), affirming 766 N.Y.S.2d 287 (Sup. Ct. 2003). Counsel also have appeared as pro bono counsel for a prisoner who has challenged the ASAT/RSAT requirement in federal court, in Morgan v. Koenigsmann, et al., 03 Civ. 3987 (S.D.N.Y.) (KMW) (AJP), and Morgan v. Wright, 04-5651-pr (2d Cir.). Indeed, after Koob & Magoolaghan filed its brief on Mr. Morgan’s behalf in the Second Circuit, Dr. Wright withdrew his appeal rather than file a reply brief or argue the merits of his qualified immunity defense. Finally, counsel have appeared pro bono and secured Hepatitis C treatment for a prisoner who challenged DOCS’
10

failure to provide a second course of Hepatitis C treatment, in Higgs v. Wright, et al., 04 Civ. 4727 (E.D.N.Y.) (NG) (LB). It is respectfully submitted that counsel’s experience with prisoner Hepatitis C cases would be of singular benefit to the class sought to be represented herein.
28. Indeed, Koob & Magoolaghan is one of the few private law firms in the State with a history of prisoners rights litigation. Moreover, counsel have sufficient time and resources to devote to this case, and is free from any conflict which might impede pursuit of the litigation.
29. Class certification here also meets the requirements of Rule 23 (b) under subdivision (2) because plaintiffs challenge the practices and policies employed by defendants in treating prisoners infected with Hepatitis C, and therefore seek injunctive relief that would benefit the class as a whole. The relevant DOCS Hepatitis C Primary Care Practice Guideline rules at issue apply to all prisoners generally, not merely to the named plaintiffs in this action. Furthermore, because the injunctive relief would simply mandate that defendants adequately treat Hepatitis-Cinfected prisoners, the management of such relief would not be complicated and judicial economy would be served.
30. In the alternative, the class action is maintainable under Fed. R. Civ. P. 23(b)(1)(B), which permits class actions where “adjudications with respect to individual members of the class . . . would as a practical matter be dispositive of the interests of the other members not parties to the adjudications or substantially impair or impede their ability to protect their interest.” Were the court to grant injunctive relief to plaintiffs, the rights of all other similarly situated potential plaintiffs would be profoundly affected because a rule that applied to all prospective class members would have been struck down by the court as a violation of the Eighth Amendment, the ADA, or the Rehabilitation Act. Conversely, were the court to deny plaintiffs’ claim, the right of all other prospective plaintiffs to make similar claims would be severely curtailed.
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31. The proposed class action is also certifiable under Rule 23(b)(1)(A) which authorizes a class action if “the prosecution of separate actions by . . . individual members of the class would create a risk of . . . inconsistent or varying adjudications with respect to individual members of the class.” Should individual members of the class pursue individual actions seeking injunctive relief, there is a risk of “inconsistent or varying adjudications with respect to individual members of the class.” Id. Here, consistency of the adjudication of the proposed class’s claims is especially important, because it involves the application of a system-wide policy related to medical treatment.
32. Since plaintiffs’ counsel has no conflict of interest and can adequately represent all class members, has already devoted significant resources to identifying and investigating the legal claim, has experience in handling class actions and other complex litigation, is knowledgeable about the applicable law, and is willing and able to devote the necessary resources to the litigation, and is the only applicant for class counsel, plaintiffs’ counsel should be appointed class counsel pursuant to Fed. R. Civ. P. 23(g)(2)(b).
WHEREFORE, affirmant respectfully requests that this Court certify the plaintiff class as all Hepatitis-C-infected prisoners in DOCS custody who must now or in the future meet defendants’ ASAT/RSAT requirement to obtain treatment, and grant plaintiffs such other and further relief as the Court deems just and proper. Dated: New York, New York
September 2, 2005 s:/Alexander A. Reinert ALEXANDER A REINERT [Bar No. 512945]
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EXHIBIT A

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ----------------------------------------------------------------------X ROBERT HILTON, on behalf of himself and all others similarly situated,

Plaintiffs,
–against–
LESTER N. WRIGHT, M.D., M.P.H., Associate Commissioner/ Chief Medical Officer, for the New York State Department of Correctional Services; and the NEW YORK STATE DEPARTMENT OF CORRECTIONAL SERVICES,

AFFIRMATION 9:05-CV-1038 (LEK)(GJD)

Defendants. ----------------------------------------------------------------------X

ALEXANDER A REINERT, an attorney duly admitted to the practice of law in the

State of New York and in this Court, affirms under penalty of perjury as follows:

1. I am an associate with the law firm of KOOB & MAGOOLAGHAN, attorneys for

plaintiff Robert Hilton, and as such am fully familiar with the facts and circumstances of this

case. I make this affirmation in support of plaintiff’s application by for a Temporary Restraining

Order (“TRO”) and Preliminary Injunction directing that defendants effectuate the

recommendations of plaintiff’s treating physicians and immediately initiate antiviral therapy to

treat Mr. Hilton’s Hepatitis C.

2. Mr. Hilton was diagnosed with Hepatitis C as early as 1999. Treatment of chronic

Hepatitis C is generally achieved through combination therapy (a combination of the drugs

interferon and ribavirin). Pegylated interferon, which is a type of interferon administered once

per week, has achieved the highest response rates when combined with ribavirin and is currently

recognized by a consensus of the medical community as the standard treatment for Hepatitis C.

3. The effectiveness of treatment for Hepatitis C is dependent on many factors. Where treatment is delayed, it becomes less effective because chronic Hepatitis C causes increased fibrosis, or scarring of liver tissue, and eventual cirrhosis of the liver. See Declaration of Dr. Brian R. Edlin dated August 16, 2005 (“Edlin Decl.”), at ¶ 13, annexed as Exhibit A. Dr. Edlin is a board-certified internist and infectious diseases specialist who has conducted extensive research on Hepatitis C. Id. ¶¶ 1–5.
4. In addition to making treatment ineffective, progression to cirrhosis or advanced fibrosis exposes patients to an increased risk of developing hepatocellular carcinoma, a cancer of the liver.
5. In light of the foregoing, it is well-accepted within the medical community that Hepatitis C should be treated promptly where medically indicated. This is particularly true because any delay in providing treatment to individuals with chronic Hepatitis C exposes them to an elevated risk of serious physical harm, grave and substantial pain and suffering, and death.
6. Mr. Hilton entered the custody of the New York State Department of Correctional Services (“DOCS”) on August 18, 2004. Immediately prior to his confinement at DOCS’ Downstate Correctional Facility, Mr. Hilton was confined under the custody of the New York City Department of Correction (“NYCDOC”). In May, 2004, while in the custody of NYCDOC, Mr. Hilton tested positive for Hepatitis C, and laboratory test results evidenced that his liver function tests (ALT and AST levels) were elevated. See Exhibit B.
7. Within days of his transfer to Downstate Correctional Facility, DOCS’ medical personnel, who were in possession of the medical records generated at NYCDOC, became aware that Mr. Hilton suffers from Hepatitis C, and that his ALT and AST levels were elevated. See Exhibit C (evidencing the disclosure of Mr. Hilton’s past medical history upon his confinement
2

to Downstate Correctional Facility). 8. Despite Mr. Hilton’s presenting need for the initiation of treatment for his Hepatitis C
upon his August, 2004 transfer into DOCS’ custody, DOCS scheduled Mr. Hilton to participate in their own Hepatitis screening process, which was not initiated until October, 2004. See Exhibit D (screening documentation generated at the Altona Correctional Facility); Exhibit E (periodic blood test results taken during the screening process, which all similarly evidence his chronic Hepatitis C infection).
9. The screening process initiated by DOCS in October, 2004, which contained both a medical component and a psychological component, was not completed until May, 2005, nine (9) months after Mr. Hilton was transferred into DOCS custody.
10. While the screening process dragged on until May, 2005, Mr. Hilton was referred to a gastroenterologist as early as March 23, 2005 upon the medical finding that Mr. Hilton “meets criteria for [treatment] for HEP C.” See Exhibit F. The gastroenterologist substantiated that conclusion on April 22, 2005 when he recommended, consistent with good and accepted medical practice, that DOCS begin treating Mr. Hilton with pegylated interferon and ribavirin. Id. In that recommendation, the gastroenterologist noted that Mr. Hilton had received a liver biopsy in December 1999 which reflected fibrosis and inflammation characterized as Grade 2/Stage 2. Id. As Dr. Edlin notes, fibrosis and inflammation at the level observed on Mr. Hilton’s December 1999 biopsy makes treatment “more urgent.” Edlin Decl. ¶ 13.
11. Even after Mr. Hilton proceeded through the remainder of the screening process, and obtained clearance for Hepatitis C treatment from the Office of Mental Health, he was not scheduled to commence the critical treatment necessary to address his Hepatitis C. See Exhibit G (evidencing OMH clearance); Exhibit H (evidencing Mr. Hilton’s consent for treatment with
3

antiviral Hepatitis C medication). 12. To date, fifteen (15) months after the NYCDOC tests evidenced a need for treatment,
and twelve (12) months after Mr. Hilton was transferred into DOCS custody, Robert Hilton remains without treatment for his Hepatitis C. And, absent judicial intervention, Mr. Hilton will remain without treatment for his Hepatitis C until his release from DOCS custody due to the provisions of DOCS’ Hepatitis C Protocol. Significantly, if required to serve the maximum term of his sentence, Mr. Hilton will remain in custody until October 30, 2008.
Defendants’ Hepatitis C Protocol 13. There are two prison-run alcohol and substance abuse treatment programs that are maintained by DOCS: ASAT, which consists of daily classes over a period of six months; and RSAT, which is similar to ASAT but which requires participants to reside in a particular cellblock during the program. 14. DOCS Hepatitis C protocol requires anyone who has ever admitted to using drugs or alcohol in the past to participate in a prison-run alcohol and substance abuse treatment program before receiving Hepatitis C treatment. See DOCS Hepatitis C Primary Care Practice Guideline dated March 10, 2003, p.4 at criteria number 11, annexed as Exhibit I; Exhibit J (Memo from Dr. Wright dated March 25, 2003 summarizing the major changes in the revised 2003 guideline)1. 15. Significantly, the Hepatitis C protocol has no foundation in medical science. Specifically, there is no medical support for denying treatment for Hepatitis C to a patient who has admitted to drug or alcohol use in the past but who is not contemporaneously participating in a drug treatment program. See Edlin Decl. ¶9. Informed medical judgment recognizes that even
1Upon information and belief, DOCS has subsequently modified its March 10, 2003 guideline, but those modifications are not implicated by the issues presented here.
4

active drug users may be appropriate candidates for Hepatitis C treatment, whether they participate in drug abuse treatment programs or not. Id. ¶¶9-11.
16. The Hepatitis C Primary Care Practice Guideline purports to be based on the following medical references: Centers for Disease Control and Prevention, Recommendations for Prevention and Control of Hepatitis C Virus (HCV) Infection and HCV-Related Chronic Disease, 47 MMWR 1 (1998) (available at http://www.cdc.gov/mmwr/PDF/RR/RR4719.pdf); Centers for Disease Control, Prevention and Control of Infections with Hepatitis Viruses in Correctional Settings, 52 MMWR 1 (2003) (available at http://www.cdc.gov/mmwr/PDF/rr/rr5201.pdf); Chronic Hepatitis C: Current Disease Management, National Institute of Diabetes and Digestive and Kidney Diseases, NIH Pub. No. 99-4230 (May 1999) (available at http://www.medhelp.org/NIHlib/GF-483.html); Management of Hepatitis C, National Institutes of Health Consensus Statement (March 24-26, 1997) (available at http://consensus.nih.gov/cons/105/105_intro.htm); and Georg M. Lauer and Bruce D. Walker, Hepatitis C Virus Infection, 345 New Engl. J. Med. 41 (2001), attached hereto at Exhibit K. See Exhibit I, at 8. In addition, as of April 21, 2003, the Hepatitis C Primary Care Practice Guideline also purports to be based on the National Institutes of Health Consensus Development Conference Statement, Management of Hepatitis C (2002) (available at http://www.hepprograms.org/drug/hepcconfer.pdf). See Exhibit L (memorandum dated April 21, 2003).
17. Not one of the references supplied by defendants provide any medical support for that portion of DOCS’ Hepatitis C Protocol that requires completion of a substance abuse program prior to the initiation of treatment for the illness. Instead, each of these references confirms that past substance abuse is never a contraindication to antiviral therapy, and that conditioning receipt
5

of Hepatitis C treatment on contemporaneous substance abuse treatment is only justified, if ever, where a prisoner is actively engaged in substance abuse.
18. In 1998, for instance, the Centers for Disease Control and Prevention (“CDC”) expressly approved of antiviral therapy for individuals like Mr. Hilton who are at the greatest risk of progressing to cirrhosis and have not actively used intravenous drugs or alcohol for more than six months. See Centers for Disease Control and Prevention, Recommendations for Prevention and Control of Hepatitis C Virus (HCV) Infection and HCV-Related Chronic Disease, 47 MMWR 1, 14 (1998) (available at http://www.cdc.gov/mmwr/PDF/RR/RR4719.pdf). Similarly, in 2003 the CDC addressed the treatment of Hepatitis C in correctional settings and specifically recommended that candidates for antiviral therapy participate concurrently in substance abuse treatment only insofar as they are actively engaged in drug or alcohol abuse. See Centers for Disease Control, Prevention and Control of Infections with Hepatitis Viruses in Correctional Settings, 52 MMWR 1, 25 (2003) (available at http://www.cdc.gov/mmwr/PDF/rr/rr5201.pdf).
19. The National Institutes of Health (“NIH”) have been similarly consistent in only recommending substance abuse treatment for those individuals with Hepatitis C who are actively engaged in substance use. The 1997 NIH Consensus Statement referenced by the Guideline sounded a cautionary note only with respect to individuals who have used illicit drugs or alcohol within six months of contemplated antiviral therapy. Management of Hepatitis C, National Institutes of Health Consensus Statement, at 18 (March 24-26, 1997) (available at http://consensus.nih.gov/cons/105/105_intro.htm). The 2002 NIH Consensus Statement is even less supportive of defendants’ policy in that it expressly recommends efforts to increase the availability of antiviral therapy to injecting drug users and further declares that active drug use “in and of itself [should] not be used to exclude such patients from antiviral therapy.” National
6

Institutes of Health Consensus Development Conference Statement, Management of Hepatitis C, at 19 (2002) (available at http://www.hepprograms.org/drug/hepcconfer.pdf).
20. The two remaining medical references relied upon by the Guideline similarly establish, at most, that active, not past, substance abuse may be a contraindication to antiviral therapy in some patients. See Chronic Hepatitis C: Current Disease Management, National Institute of Diabetes and Digestive and Kidney Diseases, NIH Pub. No. 99-4230 (May 1999) (available at http://www.medhelp.org/NIHlib/GF-483.html) (describing active substance abuse as a potential contraindication to antiviral therapy); Georg M. Lauer and Bruce D. Walker, Hepatitis C Virus Infection, 345 New Engl. J. Med. 41, 48 (Table 1) (2001), attached at Exhibit K (not listing active or past substance abuse as a contraindication to antiviral therapy).
21. In sum, the medical references which allegedly support the Guideline uniformly indicate that substance abuse programming is not a proper prerequisite to antiviral therapy indicated for individuals who once, but no longer, used drugs. To the contrary, the medical authorities hold that no justification exists for withholding antiviral therapy from candidates, such as Mr. Hilton, whose last drug use predates 1993.
22. Despite the lack of medical support for the Hepatitis C Protocol, defendants have applied the ASAT/RSAT requirement, and denied treatment for Hepatitis C to patients until they have completed the substance abuse program:
a. regardless of the stage at which the disease has progressed; b. regardless of whether the requirement contravenes the treatment recommendations of DOCS’ own treating physicians and specialists; c. regardless of how much time has passed since the prisoner last used drugs; d. even upon prisoners who have not used drugs for more than a decade;
7

e. regardless of whether a prisoner’s past use of drugs or alcohol constituted “abuse” under clinical diagnostic criteria such as those enumerated in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, also known as the DSM-IV;
f. regardless of whether the ASAT or RSAT programming is actually available in the correctional facility in which the prisoner is confined;
g. regardless of whether the prisoner had previously completed a substance abuse treatment program, such as Alcoholics Anonymous, Narcotics Anonymous and the like, even if the program completed was offered at and sanctioned by a DOCS’ facility; and
h. regardless of whether DOCS actually has space available in its ASAT or RSAT programs to allow the prisoner to fulfill the requirement.
23. The application of the Hepatitis C Protocol, and concomitant denial of critical medical treatment, was particularly abhorrent in Mr. Hilton’s case because he has not used drugs for more than a decade and had openly admitted to DOCS in 1993 that he used marijuana and sniffed cocaine when he was a teenager. See Affidavit of Robert Hilton (“Hilton Aff.”) dated August 10, 2005, at ¶¶ 3–5, 16, attached hereto at Exhibit M.
24. After being informed by medical staff that he was required to participate in a substance abuse treatment program to obtain Hepatitis C treatment, Mr. Hilton immediately attempted to gain entry into a substance abuse program, but was denied same due to the excessively long waiting lists that were in place while at Altona. See Exhibit N. Mr. Hilton’s presence on the wait list, and willingness to participate in a substance abuse program to obtain Hepatitis C treatment, was not sufficient to obtain Dr. Wright’s approval to initiate antiviral therapy. See id. (stating “Dr. Wright will not approve the medication order until you are actively enrolled in RSAT. I thought the waiting list would be good enough.”).
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25. Some correctional facilities had more than one thousand (1,000) prisoners on their ASAT/ RSAT waiting lists at or around the time Mr. Hilton applied for entry into the programs. Because of the limited enrollment space, it can take several years before an inmate could become eligible to participate in a substance abuse program. See December 14, 2004 Report by Correctional Association of New York on Clinton Correctional Facility at 4 (available at http://www.correctionalassociation.org/PVP/publications/facility_reports/Clinton12-14-04.pdf).
26. Shortly after Dr. Wright made the decision to deny Mr. Hilton treatment, Mr. Hilton was transferred from the Altona Correctional Facility to the Washington Correctional Facility. Upon his May 16, 2005 transfer Mr. Hilton filed a prison grievance demanding immediate antiviral therapy. The Washington Inmate Grievance Resolution Committee, composed of two prisoners and two staff members, unanimously found that Mr. Hilton’s grievance was warranted and that he should be provided with the antiviral therapy, noting that “Grievant should not have to participate in ASAT if not needed in order to receive [sic] treatment for any health related issues.” See Exhibit O. The Committee’s recommendation, however, was rejected by the facility’s superintendent, in reliance upon the Hepatitis C Protocol. See Exhibit P. Thereafter, on July 6, 2005, DOCS Central Office Review Committee upheld the superintendent’s decision.
27. On or about July 26, 2005, Mr. Hilton was referred to Washington’s ASAT program solely on the basis of information that Mr. Hilton provided to DOCS when he entered DOCS custody in 1993. See Exhibit Q (Guidance and Counseling memo to Mr. Hilton dated July 26, 2005).
28. On or about July 26, 2005, Mr. Hilton nonetheless was denied entry to Washington’s ASAT program because he would not be able to complete the six-month ASAT program if he were released on parole on November 2, 2005. See Exhibit R (ASAT Referral form
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documenting the denial of Mr. Hilton’s application). If Mr. Hilton is not released on parole and serves his maximum sentence, he will not be released until October 30, 2008.
29. Accordingly, first because he was placed on the wait list for RSAT at Altona, and then because of the speculative possibility that he would be paroled three years before his maximum sentence, Mr. Hilton has been denied Hepatitis C treatment because of the unavailability of the substance abuse programs which Dr. Wright has determined are necessary for Mr. Hilton to receive treatment. Dr. Wright has consistently insisted that Mr. Hilton participate in ASAT or RSAT as a condition of receiving the Hepatitis C treatment recommended by the prisons’ medical providers. See Exhibit N; see also Exhibit S (Ambulatory Health Record documenting that Mr. Hilton “was not approved by Dr. Wright because he is not enrolled in ASAT”).
30. Defendants’ refusal to treat Mr. Hilton is contrary to all dictates of a civilized society. Indeed, any further delay in treating Mr. Hilton is unconscionable, as his fibrosis in 1999 had progressed to Stage 2, making treatment “more urgent”. Edlin Decl. ¶ 13. Moreover, because successful treatment is less likely as the disease progresses and as a patient ages, id., it is imperative that treatment commence forthwith.
31. For these reasons, plaintiff respectfully requests that this Court schedule a hearing on plaintiff’s request for preliminary injunctive relief, and upon such hearing enter an order compelling defendants to immediately initiate Hepatitis C treatment for Mr. Hilton.
32. Mr. Hilton is not proceeding via a Notice of Motion because the illness from which he suffers, Hepatitis C, is a progressive disease that requires the initiation of critical medical care without further delay, which result cannot be achieved pursuant to the briefing and hearing schedule prescribed by Local Civil Rule 7.1. Because of the importance of minimizing any
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additional delay in the initiation of treatment for Mr. Hilton’s Hepatitis C, it is respectfully requested that a hearing on plaintiff’s requested emergency relief be held as soon as is practicable, and no later than Friday, August 26, 2005. Attached hereto as Exhibit T is plaintiff’s Proposed Temporary Restraining Order. Attached hereto as Exhibit U is plaintiff’s Proposed Preliminary Injunction.
33. On August 15, 2005, I contacted Roger Kinsey, in the Albany office of the New York State Office of Attorney General, and informed him of plaintiff’s intention to seek the emergency relief requested herein. I spoke with Mr. Kinsey again today and he instructed me that service of papers should be accomplished by emailing the relevant papers to Mr. Kinsey, and sending via overnight mail hard copies to the New York State Department of Correctional Services’ central office.
WHEREFORE, affirmant respectfully requests that this Court schedule a hearing on plaintiff’s request for preliminary injunctive relief as soon as is practicable, and upon such hearing enter an order compelling defendants to immediately initiate Hepatitis C treatment for Mr. Hilton, and grant Mr. Hilton such other and further relief as the Court deems just and proper. Dated: New York, New York
August 17, 2005 s:/Alexander A. Reinert ALEXANDER A REINERT [Bar No. 512945]
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EXHIBIT B

EXHIBIT C

KOOB & MAGOOLAGHAN
Notable Case List
PRISONERS’ RIGHTS CASES
A. Reported Cases of Interest
Tortorici v. Goord, 216 F.R.D. 256 (S.D.N.Y. 2003) (decision holding quality assurance documents discoverable). This civil rights action was commenced on behalf of the mother, father, brothers, sister and Estate of Ralph Tortorici after Ralph tragically committed suicide at the age of 31. The case settled for $800,000.00 plus attorneys’ fees in the amount of $375,000.00, upon substantial evidence regarding the systemic deficiencies in the delivery of mental health treatment to inmates who suffer serious psychiatric illnesses, and upon the shocking revelation that Ralph Tortorici was all but abandoned by the mental health practitioners responsible for his treatment and care.
Jackson v. Johnson, 118 F. Supp. 2d 278 (N.D.N.Y. 2000), aff’d in part, appeal dismissed in part, 2001 WL 735902 (2nd Cir. 2001). This case was a civil rights action on behalf of a 14 year old who, while confined in a medium security youth facility owned and operated by the New York State Division for Youth, was subjected to two violent and unlawful assaults by Youth Division Aides that left him with permanent brain damage and quadriplegia. The case settled on the eve of trial for $9,750,000, the largest award in a civil rights action in the history of the Northern District of New York. See N.Y.L.J., 2/26/02, p.1 (announcing the settlement). One result of the case was a new policy initiated by State Attorney General Eliot L. Spitzer, who ordered the 521 lawyers in his office to terminate their use of race-based mortality tables in assessing damages for plaintiffs who sue the State (see NYLJ, 4/21/99, p.1) (announcing the change in policy at the Attorney General’s office). The case also resulted in the implementation of a new Physical Restraint Technique throughout the Division for Youth to assure that another youth would not suffer similar injuries.
Smith v. Goord, 222 F.R.D. 238 (N.D.N.Y. 2004) (decision granting plaintiff discovery of personnel files, and training and job performance documents). This civil rights action was commenced on behalf of a former inmate who suffers from a serious psychiatric illness but was nevertheless housed in solitary confinement under horrific and inhumane conditions, and warehoused without treatment in "mental health" observation cells, under equally appalling conditions. After the District Court granted plaintiff’s motion seeking access to very valuable discovery materials the case settled for $115,000.00 plus attorneys’ fees.
Baker v. Coughlin, et al., 77 F.3d 12 (2nd Cir. 1996) (decision finds N.Y. Corr. L. § 24 a bar to state negligence claims). This was a civil rights action for the death of 18 year old prisoner at a boot camp correctional facility who was subjected to excessive force and the denial of emergency medical treatment. The case settled for $1,000,000 in damages to the deceased’s mother for
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KOOB & MAGOOLAGHAN Notable Case List
wrongful death and payment of $300,000 in attorneys fees. Included in the settlement was an agreement for a meeting between the deceased’s mother, the Commissioner of the Department of Correctional Services and a Governor’s representative to discuss the problematic use of excessive force in State boot camps. The case resulted in a new training initiative by the Department of Corrections.
Brown v. Coughlin, 758 F. Supp. 876 (S.D.N.Y. 1991) (denial of summary judgment motion), later reported at 869 F. Supp. 196 (S.D.N.Y. 1994). This case was brought for the deliberate indifference of municipal defendants to a prisoner's need for adequate medical treatment for a simple fracture of the leg, which resulted in a below-the-knee amputation. The case was settled for $600,000.
D’Angelo v. New York City Health and Hospitals Corp., 929 F. Supp. 129 (S.D.N.Y. 1996) (denial of summary judgment). This civil rights action arose from the August 1982 death of Sonia Yglesias, who at the age of 33 and while in the custody of the City of New York, died approximately 24 hours after her admission to the secure psychiatric unit at Elmhurst Hospital. The action, brought twelve years after her death on the theory that the claims did not accrue and/or were tolled because of a coverup masterminded by the city relating to the cause of death, included claims for loss of the parent-child relationship. The case settled for $750,000 inclusive of attorneys’ fees.
Langley v. Coughlin, 715 F. Supp. 522 (S.D.N.Y. 1989); 709 F. Supp. 482 (S.D.N.Y. 1989), aff'd 888 F.2d 252 (2d Cir. 1989) (decisions denying challenge to class certification, qualified immunity & summary judgment). This was a class action challenge to punitive segregation and the inadequate mental health treatment given mentally ill prisoners. The case settled with an injunction and damage fund of $350,000 for all class members who had been confined in solitary confinement during the relevant period, with additional damages to those prisoners denied mental health care. The case resulted in payment in excess of $900,000 in attorneys fees and $100,000 in costs, primarily for expert witness testimony, awarded as requested. The case led to new protocols for the delivery of mental health services and new protections for prisoners confined to solitary throughout the New York State Department of Correctional Services.
Powell v. Ward, 487 F. Supp. 917 (1980), aff'd as mod. 643 F.2d 924 (1981), cert. den'd, 454 U.S. 832 (1981) (motion on contempt); 540 F. Supp. 515 (S.D.N.Y. 1982) (monitoring of contempt decision); 562 F. Supp. 274 (S.D.N.Y. 1983) (same); sub nom 1993 WL 328837 (S.D.N.Y.), aff’d 22 F.3d 1092 (2d Cir.1994) (same); 1994 WL 673507 (S.D.N.Y.) (final attorney’s fees award), aff’d sub nom, 122 F.3d 1057 (2d Cir. 1995). This class action sought contempt and a permanent injunction for violations of due process in prison disciplinary proceedings. A settlement fund was established in the amount of $125,000 in lieu of civil contempt fines. Over $1 million dollars was paid in attorney’s fees in the case, which proceeded
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KOOB & MAGOOLAGHAN Notable Case List
over the course of two decades and changed the entire system of disciplinary hearings throughout the New York State Department of Correctional Services and developed the law on civil contempt. Before it concluded, well over 100 Court orders were entered.
Kagan v. State of New York, 221 A.D.2d 7, 646 N.Y.S.2d 336 (2nd Dept. 1996). This case was commenced after claimant, an inmate at the Bedford Hills Correctional Facility, lost her hearing in one ear because of the prison’s negligent provision of medical care. After trial, a judge in the Court of Claims awarded $304,000 to our client. See $304,000 Negligence Award Won by Inmate Rendered Deaf, NYLJ, 8/3/92, p.1. The award was affirmed on appeal.
McCormick v. Gray, 1993 WL 437788 (S.D.N.Y.) This case was a challenge to the State’s attempt to prevent a husband and wife from residing together after both were released from prison. After our law firm successfully challenged the policy, the District Court awarded attorneys’ fees in full.
B. Unreported Decisions & Settlements
Almodovar v. Andrews, 00CV0599 (W.D.N.Y.) This civil rights action was commenced after Sarah Almodovar was brutally assaulted by correction officers because she cooperated in an investigation conducted by the Inspector General’s office into sexual harassment by guards at the Albion Correctional Facility. After months of pre-trial discovery, the case settled for $135,000.00.
Rosado v. Graceffo, 99-Civ.-551 (W.D.N.Y.) This civil rights action was commenced on behalf of an inmate who was denied medical treatment for a painful and disfiguring dermatological condition which grotesquely scarred his face and body, thus subjecting him to continuous ridicule during his period of incarceration. After appropriate treatment was obtained, a settlement was reached in the amount of $139,241, including attorney’s fees of $49,241.
Battiste v. Artuz, et al., 99 Civ. 0503 (RWS) (S.D.N.Y.). This civil rights action arose from the State’s failure to provide a prisoner with adequate psychiatric care for his serious mental illness. As a result, the prisoner committed suicide. The case was settled for $350,000 inclusive of attorneys’ fees.
Gray v. The State of New York, Claim No. 75070-A (N.Y. Ct. Claims). This case was brought in the Court of Claims after a prisoner died because of delayed treatment and diagnosis of colon cancer. The Court of Claims judge awarded $505,000 in 1993 after trial.
Davidson, et al. v. Artuz, et al., 98 Civ 6019 (JSM) (S.D.N.Y.). This civil rights action arose from the death of a 29-year-old prisoner who, while serving lengthy consecutive sentences,
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KOOB & MAGOOLAGHAN Notable Case List
suffered from an asthma attack and died as a result of defendants’ refusal to respond to the vociferous pleas for help from the prisoner population. The case, which included claims for loss of companionship for decedent’s mother and three children, settled for $900,000 inclusive of attorneys fees.
Morales v. Curley, 93 Civ. 4734 (RPP) (S.D.N.Y.). This case was brought for the wrongful death of a psychiatrically ill prisoner who had been placed in a seclusion cell within a mental health unit without proper medical treatment or review for a two day period and subsequently died from dehydration while in transit to a psychiatric hospital. The case settled at trial for $950,000 to the parents and payment of $100,000 in attorneys’ fees. A complaint filed by counsel post-settlement regarding the licensure of the responsible psychologist resulted in the imposition of disciplinary action.
Ortiz v. Stancari, 94 Civ. 1685 (DAB) (S.D.N.Y.). In this case, we represented a prisoner who was sodomized and raped by another prisoner known to officials at Westchester County Jail for his violent propensities. The case settled for a total of $295,000.
Rosario v. Coughlin, 91 Civ. 1664 (KMW) (S.D.N.Y.). This civil rights action was brought on behalf of six prisoner paraplegics for instances of denied or delayed medical care. The case settled prior to expert discovery, prior to any pre-trial order, and without the expense of defending any dispositive motions by defendant, for total damages of $1,000,000 and $200,000 in attorneys’ fees.
EMPLOYMENT DISCRIMINATION CASES
Petrovits v. New York City Transit Authority, 2003 WL 22349676 (S.D.N.Y.) (denying the defendant’s motion for judgment notwithstanding the verdict); 2004 WL 42258 (granting attorneys’ fees). This sex discrimination case was tried over six days, and resulted in a jury finding that Joan Petrovits was denied a promotion due to her sex. The jury awarded Ms. Petrovits $150,000.00 in compensatory damages, and Magistrate Judge Eaton thereafter entered an Order compelling the defendants to promote her, awarding back pay, and awarding attorneys’ fees to Koob & Magoolaghan and our trial co-counsel, the New York University Civil Rights Clinic.
Pfeiffer v. Lewis County, 308 F. Supp. 2d 88 (N.D.N.Y. 2004) (denying defendants’ motion for summary judgment). This case was litigated on behalf of the only woman ever employed in the Lewis County Sheriff’s Department in a supervisory position after she was demoted from her position as Dispatch Supervisor and denied equal terms and conditions of employment due to her sex. After we defeated the County’s motion for summary judgment the case settled very favorably for an undisclosed amount.
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KOOB & MAGOOLAGHAN Notable Case List
Hernandez, et al. v. Cite, et al., 03 Civ. 8822 (S.D.N.Y.); Anzures, et al. v. Park Avenue Café, et al., 04 Civ. 2993 (S.D.N.Y.); Baizan et al v. Cite Restaurant et al., 04 Civ. 10134 (S.D.N.Y.): These civil rights lawsuits were commenced on behalf of 23 restaurant workers who alleged that they were underpaid in violation of federal and state wage and hour laws, and, in some cases, discriminated against due to their race while working at two fashionable Manhattan restaurants, Cité and Park Avenue Café, managed by Smith & Wollensky Restaurant Group. Represented by the Urban Justice Center, the CUNY Law School Immigrant Rights Clinic, and Koob & Magoolaghan, the workers settled their claims in exchange for financial compensation and changes in workplace policies and procedures.
Karibian v. Columbia University, 812 F. Supp. 413 (S.D.N.Y. 1993), rev’d 14 F.3d 773 (2nd Cir. 1994), cert denied 512 U.S. 1213, 114 S. CT. 2693. This lawsuit was brought under Title VII against university and supervisors for sexual harassment. The District Court held that a discrimination plaintiff who submits to her employer’s demands for sexual favors can never recover in a sexual harassment suit. The Second Circuit reversed, noting that such a rule would have the effect of rewarding the most successful harassers, and in doing so announced a new, liberal theory of liability in instances where harassment is by supervisors. The decision resulted in amendments to the EEOC guidelines in such cases. See NYLJ, 2/26/94 p.1 ("The Second Circuit Court of Appeals yesterday announced a new liberal theory of employer liability for a supervisor’s sexual harassment of an employee. . . [e]mployers are liable for abusive work environment if the supervisor ‘uses his actual or apparent authority to further the harassment’. . . complainants in such circumstances need not show an employer’s failure to respond to a complaint or no reasonable avenue for complaints"). After a jury verdict of $450,000, the District Court granted judgment n.o.v. to defendants.
Romei v. Shell Oil Company, 1991 WL 692884 (Sup. Ct. N.Y. Cty.) (decision on summary judgement motion). In this disability discrimination case, we represented an employee who alleged that Shell Oil discriminated against him based upon the belief that the plaintiff had AIDS. In 1994 a jury awarded plaintiff compensatory and punitive damages in the amount of $121,000.
Goordineer v. Greenville Board of Fire Commissioners, 234 A.D2d 371, 651 N.Y.S.2d 92 (2d Dept. 1996), leave to appeal denied, 89 N.Y.2d 812, 657 N.Y.S.2d 405 (1997) (finding plaintiff’s complaint timely because of "continuing nature" of discrimination), after remand, 277 A.D.2d 314, 716 N.Y.S.2d 685 (2d Dept. 2000) leave to appeal dismissed, 96 N.Y.2d 792, 725 N.Y.S.2d 642 (2001) (successfully defending challenges NYS Division of Human Rights’ decision finding plaintiff, a decorated volunteer fire fighter, had been discriminated against on the basis of her sex in her application for work as a full time paid fire fighter). The case was resolved by a confidential settlement.
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KOOB & MAGOOLAGHAN Notable Case List
Burke v. Lord & Taylor (S.D.N.Y.). This civil rights action challenged plaintiff’s termination on the ground that defendant had discriminated against him because he had AIDS. After the Court denied defendants’ motion for summary judgment, a confidential settlement was reached.
Woodley v. Macy’s, (S.D.N.Y.). This case involved a Macy’s employee who annually played Santa Clause, but who was denied re-employment after he disclosed that he was taking AZT. A confidential settlement was negotiated in 1995 by the Hon. Mario Cuomo, who was appointed to mediate the case by the U.S. Bankruptcy Court. See A Bittersweet Visit By an Ailing Santa: An AIDS Patient Dusts Off His Costume, and His Lawsuit, New York Times, 12/16/94, p. B1.
DISABILITY RIGHTS CASES
Locher v. UNUM Life Insurance Company of America, 389 F.3d 288 (2d Cir., 2004) (clarifying standard to be applied by the District Courts in determining whether to consider evidence outside the administrative record). This ERISA litigation was commenced on behalf of a legal secretary who was compelled to resign her position after developing Chronic Fatigue Syndrome. More than a decade after she was first diagnosed, and after prevailing at trial before the Hon. Laura Swain, Ms. Locher was finally awarded benefits. Locher v. UNUM Life Insurance Co. of America, 126 F. Supp. 2d 769 (S.D.N.Y. 2001). Because of the importance of the case to the rights of the disabled, the Second Circuit decision was reported on the front page of the New York Law Journal on November 16, 2004, and in follow-up articles on ERISA litigation as well. See Rights of Disability Insurance Claimants Boosted With Decision, N.Y.L.J., 2/15/2005, p4. Ms. Locher was awarded back benefits with interest and Koob & Magoolaghan was awarded attorneys fees of $268,000.
Sansevera v. DuPont , 859 F. Supp. 106 (S.D.N.Y., 1994). In this ERISA action on behalf of an individual with chronic fatigue syndrome, the Court awarded back benefits, interest and attorneys’ fees to our client. See Benefits’ Denial For Disability Held Arbitrary, N.Y.L.J., 8/8/94, p.1.
Mermelstein v. NYU Medical Center, 89 Civ. 4003 (MLJ) (S.D.N.Y.). This action for discrimination on the basis of disability, commenced on behalf of a psychiatric resident, was settled pursuant to a confidential stipulation.
OTHER CIVIL RIGHTS CASES
The Mount Kisco Worker’s Project v. The Village/Town of Mount Kisco, 96 Civ. 8335 (BDP) (S.D.N.Y.). This class action was brought on behalf of the day laborers of Mount Kisco who successfully challenged the Village’s mandatory hiring site for day laborers, the midnight housing raids conducted on Latino homes, and the summary eviction of Latinos from the public
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KOOB & MAGOOLAGHAN Notable Case List
park as violative of their rights under the First Amendment and the Due Process and Equal Protection clauses of the U.S. Constitution. Years later, plaintiffs successfully prevailed on a motion to hold the defendants in contempt of the Consent Decree entered in the case. Melchor v. The Village/Town of Mount Kisco, 97 Civ. 0010 (BDP) (S.D.N.Y.). This civil rights action was brought on behalf of eleven Latinos who were summarily ejected from their home during an illegal housing raid, not allowed to re-enter for a period of seven hours, and subjected to criminal prosecution. The criminal charges against our clients were either withdrawn or dismissed, and in the civil rights action, damages were awarded to each plaintiff in the amount of $20,000. Stern v. Resnick, 99 Civ. 10053 (CM) (S.D.N.Y.). In this case, a preliminary injunction was granted against a landlord who, at the request and support of the Village of Mount Kisco, sought to evict the owner of a Chinese restaurant who had altered her menu to attract a Latino clientele. The case resulted in a confidential settlement. Ramos v. New York City, 05 Civ. 637 (S.D.N.Y.). This civil rights action was commenced after seventeen (17) year old Jose Ramos was handcuffed and arrested by a security officer at the New York City public high school he attended because of the officer’s unlawful and discriminatory animus against Mr. Ramos. Not long after the litigation was commenced, the courage of this young man was rewarded when the city agreed to compensate him in the amount of $12,500 for the harm suffered as the result of the officer’s actions. Hammonds v. Schweiker, 535 F. Supp. 276 (S.D.N.Y. 1982); 652 F. Supp. 491 (S.D.N.Y. 1987). In this case, we successfully sought social security survivor’s benefits for an "illegitimate" child. See U.S., Teenager In 10-Year Battle Over Child Benefits, NYLJ, 2/3/97, p.1.
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