CLOSED
U.S. District Court Southern District of Indiana (Indianapolis) CIVIL DOCKET FOR CASE #: 1:17-cv-00289-JMS-MJD

STAFFORD, ET AL v. CARTER, ET AL Assigned to: Judge Jane Magnus-Stinson Referred to: Magistrate Judge Mark J. Dinsmore Cause: 42:1983 Prisoner Civil Rights

Date Filed: 01/27/2017 Date Terminated: 01/02/2020 Jury Demand: Both Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Plaintiff
MICHAEL RAY STAFFORD on behalf of himself and other similarly situated individuals

represented by Mark W. Sniderman FINDLING PARK CONYERS WOODY & SNIDERMAN, PC 151 N. Delaware St. Suite 1520 Indianapolis, IN 46204 (317) 361-4700 Fax: (317) 231-1106 Email: msniderman@findlingpark.com ATTORNEY TO BE NOTICED

Plaintiff
CHARLES SMITH on behalf of himself and other similarly situated individuals

Robert A. Katz INDIANA UNIVERSITY MCKINNEY SCHOOL OF LAW 530 West New York Street Room 349 Indianapolis, IN 46202 317-278-4791 Fax: 317-278-3326 Email: rokatz@iu.edu PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Mark W. Sniderman (See above for address) ATTORNEY TO BE NOTICED

Robert A. Katz (See above for address)

Plaintiff DOUGLAS SMITH on behalf of himself and other similarly situated individuals
V. Defendant ROBERT E. CARTER, JR.

PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Mark W. Sniderman (See above for address) ATTORNEY TO BE NOTICED
Robert A. Katz (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
represented by Ilene M. Smith CHRISTOPHER C. MEYERS & ASSOCIATES 809 S. Calhoun St. Suite 400 Fort Wayne, IN 46802 260-424-0600 Fax: 260-424-0712 Email: ismith@myers-law.com ATTORNEY TO BE NOTICED
Lyubov Gore INDIANA ATTORNEY GENERAL Indiana Government Center South, 5th Floor 302 West Washington St. Indianapolis, IN 46204-2770 317-234-8091 Fax: 317-232-7979 Email: lyubov.gore@atg.in.gov ATTORNEY TO BE NOTICED
Winston Lin INDIANA ATTORNEY GENERAL Indiana Government Center South, 5th Floor 302 West Washington St. Indianapolis, IN 46204-2770 317-234-5365 Fax: 317-232-7979

Defendant MICHAEL MITCHEFF, M.D.

Email: winston.lin@atg.in.gov ATTORNEY TO BE NOTICED
represented by Douglass R. Bitner KATZ KORIN CUNNINGHAM, P.C. The Emelie Building 334 North Senate Avenue Indianapolis, IN 46204 317-464-1100 Fax: 317-464-1111 Email: dbitner@kkclegal.com ATTORNEY TO BE NOTICED
Ilene M. Smith (See above for address) ATTORNEY TO BE NOTICED
Lyubov Gore (See above for address) ATTORNEY TO BE NOTICED

Date Filed 01/27/2017
01/27/2017 01/28/2017
01/30/2017

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief against All Defendants, filed by All Plaintiffs. (Filing fee $400, receipt number 0756-4216787) (Attachments: # 1 Exhibit 1, # 2 Civil Cover Sheet, # 3 Proposed Summons)(Sniderman, Mark) (Entered: 01/27/2017)
2 NOTICE of Appearance by Mark W. Sniderman on behalf of Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD. (Sniderman, Mark) (Entered: 01/27/2017)
3 MOTION for Attorney(s) Robert A. Katz to Appear pro hac vice (Filing fee $100, receipt number 0756-4216813), filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD. (Attachments: # 1 Exhibit Certification of Robert A. Katz, # 2 Text of Proposed Order)(Sniderman, Mark) (Entered: 01/28/2017)
4 ORDER granting 3 Motion to Appear pro hac vice. Attorney Robert A. Katz for CHARLES SMITH, DOUGLAS SMITH and MICHAEL RAY STAFFORD added. If not already registered with the Court's Electronic Filing System, Robert A. Katz is ordered to register within ten (10) days of the entry of this order. Copy to Robert A. Katz via US Mail. Signed by Magistrate Judge Mark J. Dinsmore on 1/30/2017. (SWM) (Entered: 01/30/2017)

01/30/2017 01/30/2017 01/30/2017 02/10/2017 02/10/2017 02/10/2017 02/16/2017
02/21/2017 02/23/2017 02/23/2017

5 TRIAL PROCEDURES AND PRACTICES before Judge Jane MagnusStinson. (JKS) (Entered: 01/30/2017)
6 Summons Issued as to ROBERT E. CARTER, JR., CORIZON HEALTH, INC., MONICA GIPSON, R.N., INDIANA DEPARTMENT OF CORRECTIONS, HOUMAN KIANI, M.D., MICHAEL MITCHEFF, M.D., MICHAEL PERSON, M.D., PAUL TALBOT, M.D.. (NAD) (Entered: 01/30/2017)
7 MAGISTRATE JUDGE's NOTICE of Availability to Exercise Jurisdiction issued. (NAD) (Entered: 01/30/2017)
8 NOTICE of Appearance by Jeb Adam Crandall on behalf of Defendants CORIZON HEALTH, INC., HOUMAN KIANI, M.D., MICHAEL PERSON, M.D., PAUL TALBOT, M.D.. (Crandall, Jeb) (Entered: 02/10/2017)
9 NOTICE of Appearance by Adriana Katzen on behalf of Defendants CORIZON HEALTH, INC., HOUMAN KIANI, M.D., MICHAEL PERSON, M.D., PAUL TALBOT, M.D.. (Katzen, Adriana) (Entered: 02/10/2017)
10 Corporate Disclosure Statement by CORIZON HEALTH, INC. identifying Corporate Parent VALITAS HEALTH SERVICES, INC. for CORIZON HEALTH, INC... (Katzen, Adriana) (Entered: 02/10/2017)
11 RETURN of Service by CMRRR, filed by All Plaintiffs. ROBERT E. CARTER, JR. served on 2/6/2017; CORIZON HEALTH, INC. served on 2/3/2017; MONICA GIPSON, R.N. served on 2/6/2017; INDIANA DEPARTMENT OF CORRECTIONS served on 2/6/2017; HOUMAN KIANI, M.D. served on 2/3/2017; MICHAEL MITCHEFF, M.D. served on 2/6/2017; MICHAEL PERSON, M.D. served on 2/3/2017; PAUL TALBOT, M.D. served on 2/3/2017. (Attachments: # 1 CMRR, # 2 CMRR, # 3 CMRR, # 4 CMRR)(Sniderman, Mark) (Entered: 02/16/2017)
12 NOTICE of Parties' First Extension of Time, filed by Defendants CORIZON HEALTH, INC., HOUMAN KIANI, M.D., MICHAEL PERSON, M.D., PAUL TALBOT, M.D.. (Katzen, Adriana) Modified on 2/22/2017 (JKS). (Entered: 02/21/2017)
13 NOTICE of Appearance by Benjamin Myron Lane Jones on behalf of Defendants ROBERT E. CARTER, JR., MONICA GIPSON, R.N., INDIANA DEPARTMENT OF CORRECTIONS, MICHAEL MITCHEFF, M.D.. (Jones, Benjamin) (Entered: 02/23/2017)
14 NOTICE of Parties' First Extension of Time, filed by Defendants ROBERT E. CARTER, JR., MONICA GIPSON, R.N., INDIANA DEPARTMENT OF CORRECTIONS, MICHAEL MITCHEFF, M.D.. (Jones, Benjamin) (Entered: 02/23/2017)

02/23/2017 03/09/2017 03/09/2017 03/09/2017
03/09/2017
03/09/2017 03/10/2017 03/10/2017 03/10/2017

15 NOTICE of Appearance by Jonathan Paul Nagy on behalf of Defendants ROBERT E. CARTER, JR., MONICA GIPSON, R.N., INDIANA DEPARTMENT OF CORRECTIONS, MICHAEL MITCHEFF, M.D.. (Nagy, Jonathan) (Entered: 02/23/2017)
16 NOTICE of Appearance by Melissa K. Taft on behalf of Defendants CORIZON HEALTH, INC., HOUMAN KIANI, M.D., MICHAEL PERSON, M.D., PAUL TALBOT, M.D.. (Taft, Melissa) (Entered: 03/09/2017)
17 NOTICE of Appearance by Scott James Preston on behalf of Defendants CORIZON HEALTH, INC., HOUMAN KIANI, M.D., MICHAEL PERSON, M.D., PAUL TALBOT, M.D.. (Preston, Scott) (Entered: 03/09/2017)
18 MOTION for Attorney(s) Jessica L. Liss to Appear pro hac vice (Filing fee $100, receipt number 0756-4268604), filed by Defendants CORIZON HEALTH, INC., HOUMAN KIANI, M.D., MICHAEL PERSON, M.D., PAUL TALBOT, M.D.. (Attachments: # 1 Exhibit A - Certification of Jessica L. Liss, # 2 Text of Proposed Order)(Taft, Melissa) (Entered: 03/09/2017)
19 MOTION for Attorney(s) Carrie L. Kinsella to Appear pro hac vice (Filing fee $100, receipt number 0756-4268635), filed by Defendants CORIZON HEALTH, INC., HOUMAN KIANI, M.D., MICHAEL PERSON, M.D., PAUL TALBOT, M.D.. (Attachments: # 1 Exhibit A - Certification of Carrie L. Kinsella, # 2 Text of Proposed Order)(Taft, Melissa) (Entered: 03/09/2017)
20 MOTION to Withdraw Attorney Appearance , filed by Defendants CORIZON HEALTH, INC., HOUMAN KIANI, M.D., MICHAEL PERSON, M.D., PAUL TALBOT, M.D.. (Attachments: # 1 Text of Proposed Order)(Crandall, Jeb) (Entered: 03/09/2017)
21 ORDER granting 20 Motion to Withdraw Attorney Appearance. Attorney Jeb Adam Crandall and Attorney Adriana Katzen withdrawn. Signed by Magistrate Judge Mark J. Dinsmore on 3/10/2017. (SWM) (Entered: 03/13/2017)
22 ORDER granting 18 Motion to Appear pro hac vice. Attorney Jessica L. Liss for CORIZON HEALTH, INC., HOUMAN KIANI, M.D., MICHAEL PERSON, M.D. and PAUL TALBOT, M.D. added. Copy to Jessica L. Liss via US Mail. Signed by Magistrate Judge Mark J. Dinsmore on 3/10/2017. (SWM) (Entered: 03/13/2017)
23 ORDER granting 19 Motion to Appear pro hac vice. Attorney Carrie L. Kinsella for CORIZON HEALTH, INC., HOUMAN KIANI, M.D., MICHAEL PERSON, M.D. and PAUL TALBOT, M.D. added. Copy to

03/14/2017
03/20/2017
03/23/2017 03/24/2017 03/24/2017 03/24/2017 03/27/2017 03/27/2017 03/27/2017 03/27/2017

Carrie L. Kinsella via US Mail. Signed by Magistrate Judge Mark J. Dinsmore on 3/10/2017. (SWM) (Entered: 03/13/2017)
24 SCHEDULING ORDER: Initial Pretrial Conference set for 3/30/2017 01:30 PM (Eastern Time) in Telephonic before Magistrate Judge Mark J. Dinsmore. Counsel shall attend the conference by calling the designated telephone number, to be provided by the court via email. The parties shall file a proposed Case Management Plan ("CMP") no fewer than seven days before the pretrial conference. See Order for additional information. Signed by Magistrate Judge Mark J. Dinsmore on 3/14/2017.(SWM) (Entered: 03/14/2017)
25 Unopposed MOTION for Continuance of Initial Pretrial Conference, filed by Defendants CORIZON HEALTH, INC., HOUMAN KIANI, M.D., MICHAEL PERSON, M.D., PAUL TALBOT, M.D.. (Attachments: # 1 Text of Proposed Order)(Preston, Scott) (Entered: 03/20/2017)
26 ORDER granting 25 Motion for Continuance-TELEPHONIC Initial Pretrial Conference reset for 4/28/2017 at 4:00 PM (Eastern) before Magistrate Judge Mark J. Dinsmore. Signed by Magistrate Judge Mark J. Dinsmore on 3/23/2017.(CBU) (Entered: 03/23/2017)
27 ANSWER to 1 Complaint , filed by CORIZON HEALTH, INC., HOUMAN KIANI, M.D., MICHAEL PERSON, M.D., PAUL TALBOT, M.D..(Liss, Jessica) (Entered: 03/24/2017)
28 MOTION to Dismiss Count V of Plaintiffs' Complaint, filed by Defendant CORIZON HEALTH, INC.. (Liss, Jessica) (Entered: 03/24/2017)
29 BRIEF/MEMORANDUM in Support re 28 MOTION to Dismiss Count V of Plaintiffs' Complaint , filed by Defendant CORIZON HEALTH, INC.. (Liss, Jessica) (Entered: 03/24/2017)
30 ***Corporate Disclosure filed at 10 *** NOTICE to File Corporate Disclosure Statement to CORIZON HEALTH, INC. (LAB) (RSF) Modified on 3/29/2017 (RSF). (Entered: 03/27/2017)
31 ANSWER to 1 Complaint , filed by MONICA GIPSON, R.N., MICHAEL MITCHEFF, M.D..(Jones, Benjamin) (Entered: 03/27/2017)
32 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , filed by Defendants ROBERT E. CARTER, JR., INDIANA DEPARTMENT OF CORRECTIONS. (Jones, Benjamin) (Entered: 03/27/2017)
33 BRIEF/MEMORANDUM in Support re 32 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , filed by Defendants ROBERT E. CARTER, JR., INDIANA DEPARTMENT OF CORRECTIONS. (Jones, Benjamin) (Entered: 03/27/2017)

04/07/2017 04/10/2017 04/10/2017
04/11/2017 04/17/2017 04/17/2017
04/18/2017 04/18/2017 04/20/2017

34 Unopposed MOTION for Extension of Time to 04/17/2017 in which to 28 MOTION to Dismiss Count V of Plaintiffs' Complaint , filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD. (Attachments: # 1 Text of Proposed Order)(Sniderman, Mark) (Entered: 04/07/2017)
35 MOTION for Attorney(s) William R. Lunsford to Appear pro hac vice (Filing fee $100, receipt number 0756-4309891), filed by Defendant CORIZON HEALTH, INC.. (Attachments: # 1 Exhibit A - Certification of William R. Lunsford, # 2 Text of Proposed Order)(Preston, Scott) (Entered: 04/10/2017)
36 ORDER granting 34 Motion for Extension of Time to Respond to Motions to Dismiss - Plaintiffs' responses to Corizon Health, Inc.'s, Motion to Dismiss Count V of Plaintiffs' Complaint, and Indiana Department of Correction and Robert E. Carter, Jr.'s Motion to Dismiss Plaintiffs' Complaint; or Plaintiffs' amended complaint shall be filed on or before April 17, 2017. Signed by Judge Jane Magnus-Stinson on 4/10/2017. (JRB) (Entered: 04/10/2017)
37 ORDER granting 35 Motion to Appear pro hac vice. Attorney William R. Lunsford for CORIZON HEALTH, INC. added. Signed by Magistrate Judge Mark J. Dinsmore on 4/11/2017 (dist made) (CBU) (Entered: 04/12/2017)
38 NOTICE of Dismissal as to Defendant Indiana Department of Corrections Only, filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD (Sniderman, Mark) (Entered: 04/17/2017)
39 AMENDED COMPLAINT for Declaratory and Injunctive Relief against ROBERT E. CARTER, JR., CORIZON HEALTH, INC., MONICA GIPSON, R.N., HOUMAN KIANI, M.D., MICHAEL MITCHEFF, M.D., MICHAEL PERSON, M.D., PAUL TALBOT, M.D., CORIZON, LLC, WEXFORD OF INDIANA, LLC, filed by All Plaintiffs. (Attachments: # 1 Exhibit Hepatitis C Guidance, # 2 Proposed Summons Corizon, LLC, # 3 Proposed Summons Wexford of Indiana, LLC)(Sniderman, Mark) (Entered: 04/17/2017)
40 Summons Issued as to CORIZON, LLC. (RSF) (Entered: 04/18/2017)
41 Summons Issued as to WEXFORD OF INDIANA, LLC. (RSF) (Entered: 04/18/2017)
42 Joint MOTION for Continuance Initial Pretrial Conference, filed by Defendants CORIZON HEALTH, INC., CORIZON, LLC, HOUMAN KIANI, M.D., MICHAEL PERSON, M.D., PAUL TALBOT, M.D.. (Liss, Jessica) (Entered: 04/20/2017)

04/21/2017
04/24/2017 04/24/2017
04/26/2017 04/27/2017 05/01/2017 05/01/2017 05/01/2017 05/01/2017

43 ORDER denying Parties' 42 Joint Motion for Continuance. The April 28, 2017 telephonic initial pretrial conference will proceed as scheduled. [Dkts. 24 & 26.] The parties shall file their proposed Case Management Plan in compliance with the Court's Scheduling Order [Dkt. 24] on or before April 26, 2017. Signed by Magistrate Judge Mark J. Dinsmore on 4/21/2017. (SWM) (Entered: 04/21/2017)
45 RETURN of Service by CMRRR, filed by All Plaintiffs. WEXFORD OF INDIANA, LLC served on 4/20/2017. (Sniderman, Mark) (Entered: 04/24/2017)
46 ORDER - Presently pending in this case are: (1) a Motion to Dismiss Count V of Plaintiff's Complaint filed by Defendant Corizon Health, Inc. ("Corizon"), [Filing No. 28 ]; and (2) a Motion to Dismiss filed by Defendants Indiana Department of Correction ("IDOC") and Commissioner Robert E. Carter, Jr., [Filing No. 32 ]. Both motions were filed before Plaintiffs filed an Amended Complaint on April 17, 2017, [Filing No. 39 ]. The Court DENIES AS MOOT Corizon's Motion to Dismiss Count V of Plaintiff's Complaint, [Filing No. 28 ]. Mr. Carter is ORDERED to file a Report by May 1, 2017 advising whether he would like his Motion to Dismiss, [Filing No. 32 ], to remain pending, or whether he would like to withdraw the motion and separately answer or otherwise plead to the Amended Complaint. (See Order.) Signed by Judge Jane Magnus-Stinson on 4/24/2017. (APD) (Entered: 04/24/2017)
47 Proposed CASE MANAGEMENT PLAN TENDERED, filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD . (Sniderman, Mark) (Entered: 04/26/2017)
48 RETURN of Service by CMRRR, filed by All Plaintiffs. CORIZON, LLC served on 4/20/2017. (Sniderman, Mark) (Entered: 04/27/2017)
49 NOTICE of Parties' First Extension of Time, filed by Defendants ROBERT E. CARTER, JR., MONICA GIPSON, R.N., MICHAEL MITCHEFF, M.D.. (Jones, Benjamin) (Entered: 05/01/2017)
50 RESPONSE to Order 46 , filed by Defendant ROBERT E. CARTER, JR.. (Jones, Benjamin) Modified on 5/2/2017 to include link (APD). (Entered: 05/01/2017)
51 NOTICE of Parties' First Extension of Time, filed by Defendants CORIZON HEALTH, INC., HOUMAN KIANI, M.D., MICHAEL PERSON, M.D., PAUL TALBOT, M.D.. (Liss, Jessica) (Entered: 05/01/2017)
52 NOTICE of Service of Initial Disclosures , filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD. (Sniderman, Mark) (Entered: 05/01/2017)

05/02/2017
05/02/2017 05/02/2017 05/03/2017 05/04/2017 05/08/2017
05/11/2017 05/11/2017 05/11/2017 05/11/2017 05/12/2017

53 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Telephonic Initial Pretrial Conference held on 4/28/2017. Case Management Plan to be approved by separate order. Telephonic Status Conference set for 5/30/2017 at 2:20 PM (Eastern Time) before Magistrate Judge Mark J. Dinsmore. Settlement Conference set for 1/23/2018 at 9:00 AM (Eastern Time) in room #257, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Magistrate Judge Mark J. Dinsmore. *See Order.* Signed by Magistrate Judge Mark J. Dinsmore. (GD) (Entered: 05/02/2017)
54 ORDER: CASE MANAGEMENT PLAN APPROVED AS AMENDED. Dispositive Motions due by 3/16/2018. Discovery due by 2/16/2018. Signed by Magistrate Judge Mark J. Dinsmore on 5/2/2017.(SWM) (Entered: 05/02/2017)
55 ORDER REGARDING PROTECTIVE ORDERS. See Order. Signed by Magistrate Judge Mark J. Dinsmore on 5/2/2017.(SWM) (Entered: 05/02/2017)
56 ORDER denying as moot Defendant's 32 Motion to Dismiss for Failure to State a Claim. Signed by Judge Jane Magnus-Stinson on 5/3/2017. (JRB) (Entered: 05/03/2017)
57 NOTICE of Appearance by Douglass R. Bitner on behalf of Defendant WEXFORD OF INDIANA, LLC. (Bitner, Douglass) (Entered: 05/04/2017)
58 Witness List Preliminary, filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD, Exhibit List Preliminary, filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD. (Sniderman, Mark) (Entered: 05/08/2017)
59 NOTICE of Appearance by Jessica L. Liss on behalf of Defendant CORIZON, LLC. (Liss, Jessica) (Entered: 05/11/2017)
60 NOTICE of Appearance by Carrie L. Kinsella on behalf of Defendant CORIZON, LLC. (Kinsella, Carrie) (Entered: 05/11/2017)
61 ANSWER to 39 Amended Complaint , filed by CORIZON HEALTH, INC., CORIZON, LLC, HOUMAN KIANI, M.D., MICHAEL PERSON, M.D., PAUL TALBOT, M.D..(Liss, Jessica) (Entered: 05/11/2017)
62 MOTION for Extension of Time to 6/8/2017 in which to 39 Amended Complaint file responsve pleading, filed by Defendant WEXFORD OF INDIANA, LLC. (Bitner, Douglass) (Entered: 05/11/2017)
63 NOTICE of Appearance by Scott James Preston on behalf of Defendant CORIZON, LLC. (Preston, Scott) (Entered: 05/12/2017)

05/12/2017 05/15/2017 05/15/2017 05/15/2017 05/17/2017
05/17/2017 05/17/2017 05/22/2017

64 NOTICE of Appearance by Melissa K. Taft on behalf of Defendant CORIZON, LLC. (Taft, Melissa) (Entered: 05/12/2017)
65 Exhibit List Preliminary, filed by Defendants ROBERT E. CARTER, JR., MONICA GIPSON, R.N., MICHAEL MITCHEFF, M.D., Witness List Preliminary, filed by Defendants ROBERT E. CARTER, JR., MONICA GIPSON, R.N., MICHAEL MITCHEFF, M.D.. (Jones, Benjamin) (Entered: 05/15/2017)
66 Unopposed MOTION for Extension of Time to 5/22/2017 to File Preliminary Witness and Exhibit Lists, filed by Defendants CORIZON HEALTH, INC., CORIZON, LLC, HOUMAN KIANI, M.D., MICHAEL PERSON, M.D., PAUL TALBOT, M.D.. (Attachments: # 1 Text of Proposed Order Proposed Order)(Liss, Jessica) (Entered: 05/15/2017)
67 MOTION for Extension of Time to 06-08-2017 in which to 24 Scheduling Order file Defendant's Expert and Witness List, filed by Defendant WEXFORD OF INDIANA, LLC. (Bitner, Douglass) (Entered: 05/15/2017)
68 ORDER denying as moot Defendant Wexford of Indiana, LLC's 62 Motion for Extension of Time to File response to amended complaint. Local Rule 6-1(b) provides for an automatic enlargement of time to respond to a pleading or any written request for discovery or admissions, with the consent of opposing counsel and not to exceed twenty-eight days, by the simple filing of a notice of such enlargement with the Court. S.D. Ind. L.R. 6-1(b). All of those requirements are met in this instance; therefore, no motion is required. The Court will treat Docket No. 62 as Defendant's notice of automatic enlargement of time to respond to Plaintiffs' amended complaint to and including June 8, 2017. Signed by Magistrate Judge Mark J. Dinsmore on 5/17/2017. (SWM) (Entered: 05/18/2017)
69 ORDER granting Defendants Corizon LLC, Corizon Health, Inc., Houman Kiani, M.D., Michael Person, M.D. and Paul Talbot, M.D.'s 66 Motion for Extension of Time to File preliminary witness and exhibit lists to 5/22/2017. Signed by Magistrate Judge Mark J. Dinsmore on 5/17/2017. (SWM) (Entered: 05/18/2017)
70 ORDER granting Defendant Wexford of Indiana's 67 Motion for Extension of Time to File preliminary witness and exhibit list to 6/8/2017. Signed by Magistrate Judge Mark J. Dinsmore on 5/17/2017. (SWM) (Entered: 05/18/2017)
71 Exhibit List Preliminary, filed by Defendants CORIZON HEALTH, INC., CORIZON, LLC, HOUMAN KIANI, M.D., MICHAEL PERSON, M.D., PAUL TALBOT, M.D., Witness List Preliminary, filed by Defendants CORIZON HEALTH, INC., CORIZON, LLC, HOUMAN

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06/08/2017 06/08/2017 06/08/2017 06/08/2017

KIANI, M.D., MICHAEL PERSON, M.D., PAUL TALBOT, M.D.. (Liss, Jessica) (Entered: 05/22/2017)
72 NOTICE of Appearance by William R. Lunsford on behalf of Defendant CORIZON, LLC. (Lunsford, William) (Entered: 05/25/2017)
74 State Defendant's ANSWER to 39 Amended Complaint , filed by ROBERT E. CARTER, JR., MONICA GIPSON, R.N., MICHAEL MITCHEFF, M.D..(Jones, Benjamin) (Entered: 05/30/2017)
75 MINUTE ORDER for proceedings hld before Magistrate Judge Mark J. Dinsmore: Telephonic Status Conference held on 5/30/2017. Parties discussed discovery. Telephonic Status Conference set for 7/18/2017 at 10:00 AM (Eastern Time) before Magistrate Judge Mark J. Dinsmore. *See Order.* Signed by Magistrate Judge Mark J. Dinsmore. (GD) (Entered: 05/31/2017)
76 TRIAL SETTING AND NOTICE OF FINAL PRETRIAL CONFERENCE - This cause is hereby set for a Jury Trial before Judge Jane Magnus-Stinson on November 5, 2018 at 9:00 a.m. in Room 307 of the Birch Bayh Federal Building and U.S. Courthouse, 46 East Ohio Street, Indianapolis, Indiana. A Final Pretrial Conference is also set for October 12, 2018 at 10:00 a.m. in Room 307 of the Birch Bayh Federal Building and U.S. Courthouse, 46 East Ohio Street, Indianapolis, Indiana. Counsel are reminded of the required pretrial preparation deadlines set forth in paragraph VIII of the case management plan dkt 54 . Counsel are further reminded to review the undersigned's Practices and Procedures, available at dkt 5 . Signed by Judge Jane Magnus-Stinson on 6/5/2017.(APD) (Entered: 06/05/2017)
77 MOTION to Dismiss Count IV of First Amended Complaint, filed by Defendant WEXFORD OF INDIANA, LLC. (Attachments: # 1 Exhibit Memorandum of Law in Support of Motion to Dismiss)(Bitner, Douglass) (Entered: 06/08/2017)
78 Exhibit List Preliminary and Witness List, filed by Defendant WEXFORD OF INDIANA, LLC. (Bitner, Douglass) Modified on 6/9/2017 to include witness list (APD). (Entered: 06/08/2017)
79 *** WITHDRAWN PER ORDER DATED 6/13/2017 *** ANSWER to 39 Amended Complaint , filed by WEXFORD OF INDIANA, LLC.(Bitner, Douglass) Modified on 6/13/2017 (SWM). (Entered: 06/08/2017)
80 MOTION to Strike 79 Answer to Amended Complaint , filed by Defendant WEXFORD OF INDIANA, LLC. (Attachments: # 1 Exhibit Wexford's Answer to First Amended Complaint)(Bitner, Douglass) (Entered: 06/08/2017)

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06/13/2017 06/22/2017 06/23/2017 06/29/2017 07/03/2017
07/06/2017 07/18/2017

81 ORDER: This matter comes before the Court on Defendant Wexford of Indiana's Motion to Strike. Dkt. 80 . The Court will treat the motion as Wexford's request to withdraw the original answer and substitute the answer filed with the motion. The Court, being duly advised, hereby GRANTS that motion. The Clerk is directed to show Defendant Wexford's Answer and Affirmative Defenses [Dkt. 79] as WITHDRAWN. The Clerk is directed to docket Defendant Wexford's Answer and Affirmative Defenses in Response to Plaintiff's First Amended Complaint for Declaratory and Injunctive Relief [Dkt. 80-1], which will be deemed to be Wexford's original Answer to the Amended Complaint. Signed by Magistrate Judge Mark J. Dinsmore on 6/13/2017. (SWM) (Entered: 06/13/2017)
82 ANSWER and Affirmative Defenses to Amended Complaint, filed by Defendant WEXFORD OF INDIANA, LLC. (SWM) (Entered: 06/13/2017)
83 Unopposed MOTION for Extension of Time to File Response to July 6, 2017 re 77 MOTION to Dismiss Count IV of First Amended Complaint , filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD. (Attachments: # 1 Text of Proposed Order)(Sniderman, Mark) (Entered: 06/22/2017)
84 ORDER ON UNOPPOSED MOTION FOR EXTENSION OF TIME TO DISMISS COUNT IV - Granting 83 Motion for Extension of Time to Respond to Defendant's Motion to Dismiss Count IV. Plaintiff's response shall be filed on or before July 6, 2017. Signed by Judge Jane MagnusStinson on 6/23/2017. (APD) (Entered: 06/23/2017)
85 NOTICE Regarding Extension of Time to File Discovery Responses, filed by Defendant WEXFORD OF INDIANA, LLC (Bitner, Douglass) (Entered: 06/29/2017)
86 AMENDED SCHEDULING ORDER (Time Only) - This matter is currently set for a telephonic Status Conference on Tuesday, July 18, 2017 at 10:00 a.m. The Court now changes the time to 8:30 a.m. (Eastern) on that same date. All other requirements of the Court's order dated May 30, 2017 [Dkt. 75 ] remain in effect. Signed by Magistrate Judge Mark J. Dinsmore on 7/3/2017. (JD) Modified on 7/5/2017 (GD). (Main Document 86 replaced on 7/5/2017) (GD). (Entered: 07/03/2017)
87 RESPONSE in Opposition re 77 MOTION to Dismiss Count IV of First Amended Complaint , filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD. (Sniderman, Mark) (Entered: 07/06/2017)
89 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Telephonic Status Conference held on 7/18/2017. Parties discussed status of & future plans for discovery. Telephonic Status

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Conference set for 8/11/2017 at 11:40 AM (Eastern Time) before Magistrate Judge Mark J. Dinsmore. *See Order.* Signed by Magistrate Judge Mark J. Dinsmore. (GD) (Entered: 07/18/2017)
90 NOTICE of Filing Discovery Responses by WEXFORD OF INDIANA, LLC (Bitner, Douglass) (Entered: 07/26/2017)
92 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Telephonic Status Conference held on 8/11/2017. Parties discussed status of & plans for future discovery. Telephonic Status Conference set for 9/27/2017 at 5:00 PM (Eastern Time) before Magistrate Judge Mark J. Dinsmore. *See Order.* Signed by Magistrate Judge Mark J. Dinsmore. (GD) (Entered: 08/15/2017)
93 NOTICE of Appearance by Joseph A. Panatera on behalf of Defendant WEXFORD OF INDIANA, LLC. (Panatera, Joseph) (Entered: 08/31/2017)
94 MOTION to Withdraw Attorney Appearance , filed by Defendant WEXFORD OF INDIANA, LLC. (Attachments: # 1 Text of Proposed Order)(Panatera, Joseph) (Entered: 09/13/2017)
95 Unopposed MOTION for Extension of Time to October 15, 2017 to Serve Expert Reports, filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD. (Attachments: # 1 Text of Proposed Order)(Sniderman, Mark) (Entered: 09/13/2017)
96 NOTICE of Change of Attorney Information. Consistent with Local Rule 5-3, Douglass R. Bitner hereby notifies the Clerk of the court of changed contact information. (Bitner, Douglass) (Entered: 09/14/2017)
97 ORDER granting 94 Motion to Withdraw Attorney Appearance. Attorney Joseph A. Panatera withdrawn. Signed by Magistrate Judge Mark J. Dinsmore on 9/14/2017. (SWM) (Entered: 09/15/2017)
98 ORDER granting in part and denying in part Plaintiffs' 95 Motion for Extension of Time. Plaintiff shall disclose the name, address, and vita of any expert witness, and shall serve the report required by Fed. R. Civ. P. 26(a)(2) on or before October 13, 2017. Defendants shall disclose the name, address, and vita of any expert witnesses, and shall serve the report required by Fed. R. Civ. P. 26(a)(2) on or before December 13, 2017. Signed by Magistrate Judge Mark J. Dinsmore on 9/14/2017. (SWM) (Entered: 09/15/2017)
99 MOTION to Certify Class , filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD. (Attachments: # 1 Text of Proposed Order)(Sniderman, Mark) (Entered: 09/15/2017)
100 BRIEF/MEMORANDUM in Support re 99 MOTION to Certify Class , filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL

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RAY STAFFORD. (Attachments: # 1 Exhibit Declaration of Raj Vuppalanchi, MBBS, # 2 Exhibit Health Care Services Directive 3.12, # 3 Exhibit Management of Hepatitis A, B, and C, # 4 Exhibit Health Care Services Directive 3.09, # 5 Exhibit BOP Clinical Guidance, May 2017, # 6 Exhibit Corizon Document, # 7 Exhibit Wexford's Answers to Interrogatories, # 8 Exhibit In Focus, IDOC 2015 Annual Report, # 9 Exhibit Prisoners with Hep C get Cured in Some States but not Others, # 10 Exhibit Declaration of Mark W. Sniderman, # 11 Exhibit Declaration of Robert A. Katz)(Sniderman, Mark) (Entered: 09/15/2017)
102 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Telephonic Status Conference held on 9/27/2017. Parties discussed status of & future plans for discovery. Telephonic Status Conference set for 10/24/2017 at 1:50 PM (Eastern Time) before Magistrate Judge Mark J. Dinsmore. *SEE ORDER.* Signed by Magistrate Judge Mark J. Dinsmore. (GD) (Entered: 09/28/2017)
103 ORDER - Plaintiffs Michael Ray Stafford, Charles Smith, and Douglas Smith filed this Amended Complaint ("Complaint") alleging that Wexford of Indiana, LLC ("Wexford") violated their rights under the Eighth Amendment via 42 U.S.C. § 1983, Title III of the Americans with Disabilities Act, 42 U.S.C. § 12131 et seq. ("ADA"), and the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq. ("Rehabilitation Act"). [Filing No. 39 .] Wexford has filed a Motion to Dismiss Plaintiffs' ADA and Rehabilitation Act claims [Filing No. 77 ], and the motion is now ripe for the Court's decision. For the reasons stated herein, the Court DENIES Wexford's Motion to Dismiss. [Filing No. 77 .] Signed by Judge Jane Magnus-Stinson on 10/10/2017. (APD) (Entered: 10/10/2017)
104 Unopposed MOTION for Extension of Time to October 27, 2017 To Serve Expert Reports, filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD. (Attachments: # 1 Text of Proposed Order)(Sniderman, Mark) (Entered: 10/13/2017)
105 SCHEDULING ORDER: This cause comes before the Court on Plaintiffs' Second Unopposed Motion for Extension of Time to Serve Expert Reports. Dkt. [104.] This matter is set for a telephonic hearing on the above-noted motion on Thursday, October 19, 2017 at 9:00 a.m. (Eastern). Counsel shall attend the hearing by calling the designated telephone number, to be provided by the Court via email generated by the Court's ECF system. Signed by Magistrate Judge Mark J. Dinsmore on 10/17/2017.(SWM) (Entered: 10/17/2017)
107 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Telephonic Hearing held on 10/19/2017 re 104 Plaintiffs' Second Unopposed Motion for Extension of Time to Serve Expert Reports. Parties confirmed they will be able to meet 2/16/2018 discovery

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cut-off. Accordingly, Plaintiffs' motion GRANTED. Paragraph II(F) of approved Case Management Plan as amended [Dkts. 54 & 98 ] hereby amended: Plaintiffs' expert disclosures due by 10/27/2017; Defendants' expert disclosures due by 1/12/2018. No further enlargement of these deadlines is anticipated. Parties are instructed to confer as soon as possible to arrange to depose Defendants' experts prior to 2/16/2018. Defendants' experts are ordered to make themselves available for deposition prior to 2/16/2018. Telephonic Status Conference set for 10/24/2017 CONTINUED to 11/17/2017 at 8:40 AM (Eastern Time) before Magistrate Judge Mark J. Dinsmore. *SEE ORDER.* Signed by Magistrate Judge Mark J. Dinsmore. (GD) (Entered: 10/20/2017)
108 NOTICE of Appearance by Aleksandrina Penkova Pratt on behalf of Defendants ROBERT E. CARTER, JR., MONICA GIPSON, R.N., MICHAEL MITCHEFF, M.D.. (Pratt, Aleksandrina) (Entered: 10/25/2017)
109 NOTICE of Change of Attorney Information. Consistent with Local Rule 5-3, Mark W. Sniderman hereby notifies the Clerk of the court of changed contact information. (Sniderman, Mark) (Entered: 11/08/2017)
111 NOTICE of Joint Stipulation, filed by Defendants CORIZON HEALTH, INC., CORIZON, LLC, HOUMAN KIANI, M.D., MICHAEL PERSON, M.D., PAUL TALBOT, M.D., re 99 MOTION to Certify Class . (Liss, Jessica) (Entered: 11/14/2017)
112 RESPONSE in Opposition re 99 MOTION to Certify Class , filed by Defendants ROBERT E. CARTER, JR., MONICA GIPSON, R.N., MICHAEL MITCHEFF, M.D.. (Jones, Benjamin) (Entered: 11/15/2017)
113 RESPONSE in Opposition re 99 MOTION to Certify Class , filed by Defendant WEXFORD OF INDIANA, LLC. (Attachments: # 1 Affidavit of Dr. Neil Fisher)(Bitner, Douglass) (Entered: 11/15/2017)
114 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Telephonic Status Conference held on 11/17/2017. Parties discussed status of & future plans for discovery. Telephonic Status Conference set for 12/20/2017 at 11:30 AM (Eastern Time) before Magistrate Judge Mark J. Dinsmore. *SEE ORDER.* Signed by Magistrate Judge Mark J. Dinsmore. (GD) (Entered: 11/20/2017)
115 Corporate Disclosure Statement by WEXFORD OF INDIANA, LLC identifying Corporate Parent The Bantry Group Corporation for WEXFORD OF INDIANA, LLC.. (Bitner, Douglass) (Entered: 12/04/2017)
116 Joint MOTION for Extension of Time to 03/09/2018 , filed by Defendants CORIZON HEALTH, INC., CORIZON, LLC, HOUMAN

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KIANI, M.D., MICHAEL PERSON, M.D., PAUL TALBOT, M.D.. (Liss, Jessica) (Entered: 12/15/2017)
118 NOTICE of Filing Proposed Order in connection with Document 116 by CORIZON HEALTH, INC., CORIZON, LLC, HOUMAN KIANI, M.D., MICHAEL PERSON, M.D., PAUL TALBOT, M.D. (Liss, Jessica) (Entered: 12/19/2017)
119 ORDER denying Parties' 116 Joint Motion for Extension of Time. The parties' final and witness and exhibit lists shall be filed on or before December 22, 2017. Signed by Magistrate Judge Mark J. Dinsmore on 12/19/2017. (SWM) (Entered: 12/19/2017)
120 NOTICE of Appearance by Douglass R. Bitner on behalf of Defendant PAUL TALBOT, M.D.. (Bitner, Douglass) (Entered: 12/19/2017)
121 NOTICE of Appearance by Jarrod Alvin Malone on behalf of Defendants PAUL TALBOT, M.D., WEXFORD OF INDIANA, LLC. (Malone, Jarrod) (Entered: 12/19/2017)
124 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Telephonic Status Conference held on 12/20/2017. Parties discussed status of discovery & readiness for upcoming settlement conference. Parties are directed to re-read & comply with all requirements of Court's order scheduling settlement conference. [Dkt. 53 at 1-5.] Signed by Magistrate Judge Mark J. Dinsmore. (GD) (Entered: 12/21/2017)
122 Joint MOTION for Extension of Time to 4/16/2018 to Complete Discovery, File Dispositive Motions and of the Trial Date, filed by Defendants CORIZON, LLC, HOUMAN KIANI, M.D., MICHAEL MITCHEFF, M.D., MICHAEL PERSON, M.D., PAUL TALBOT, M.D., WEXFORD OF INDIANA, LLC. (Attachments: # 1 Text of Proposed Order)(Bitner, Douglass) (Entered: 12/21/2017)
123 NOTICE Wexford's Final Witness and Exhibit List, filed by Defendant WEXFORD OF INDIANA, LLC (Bitner, Douglass) (Entered: 12/21/2017)
125 Exhibit List , filed by Defendants CORIZON HEALTH, INC., CORIZON, LLC, HOUMAN KIANI, M.D., MICHAEL PERSON, M.D., PAUL TALBOT, M.D., Witness List , filed by Defendants CORIZON HEALTH, INC., CORIZON, LLC, HOUMAN KIANI, M.D., MICHAEL PERSON, M.D., PAUL TALBOT, M.D.. (Liss, Jessica) (Entered: 12/22/2017)
126 Witness List , Final, filed by Defendants ROBERT E. CARTER, JR., MONICA GIPSON, R.N., MICHAEL MITCHEFF, M.D., Exhibit List , Final, filed by Defendants ROBERT E. CARTER, JR., MONICA

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GIPSON, R.N., MICHAEL MITCHEFF, M.D.. (Jones, Benjamin) (Entered: 12/22/2017)
127 Witness List Final, filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD, Exhibit List Final, filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD. (Sniderman, Mark) (Entered: 12/22/2017)
128 Joint MOTION for Leave to Take Depositions of Plaintiffs Pursuant to Rule 30(A), filed by Defendants CORIZON HEALTH, INC., CORIZON, LLC, HOUMAN KIANI, M.D., MICHAEL PERSON, M.D., PAUL TALBOT, M.D.. (Attachments: # 1 Text of Proposed Order Order Granting Defendants' Motion for Leave to Take Depositions)(Liss, Jessica) (Entered: 01/02/2018)
129 ORDER granting Defendants' 128 Motion for Leave to Take Depositions of Plaintiffs Pursuant to Rule 30(a) of the Federal Rules of Civil Procedure. Signed by Magistrate Judge Mark J. Dinsmore on 1/3/2018. (SWM) (Entered: 01/03/2018)
130 ORDER TO MAKE INMATE Douglas Smith AVAILABLE to participate telephonically in a settlement conference currently scheduled for 1/23/2018 at 9:00 a.m. (Eastern). Copy to Lydia Enos via US Mail. Signed by Magistrate Judge Mark J. Dinsmore on 1/9/2018.(SWM) (Entered: 01/09/2018)
131 ORDER TO MAKE INMATE Charles Smith AVAILABLE to participate telephonically in a settlement conference currently scheduled for 1/23/2018 at 9:00 a.m. (Eastern). Copy to Lydia Enos via US Mail. Signed by Magistrate Judge Mark J. Dinsmore on 1/9/2018.(SWM) (Entered: 01/09/2018)
132 ORDER TO MAKE INMATE Michael Stafford AVAILABLE to participate telephonically in a settlement conference currently scheduled for 1/23/2018 at 9:00 a.m. (Eastern). Copy to Shawna Morson via US Mail. Signed by Magistrate Judge Mark J. Dinsmore on 1/9/2018.(SWM) (Entered: 01/09/2018)
133 REPLY in Support of Motion re 99 MOTION to Certify Class , filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD. (Attachments: # 1 Exhibit Declaration of Michael Ray Stafford, # 2 Exhibit Declaration of Charles Smith, # 3 Exhibit Declaration of Douglas Smith)(Sniderman, Mark) (Entered: 01/11/2018)
134 MOTION to Excuse Their Attendance or, in the Alternative, to Appear by Telephone, in Regard to the Settlement Conference, filed by Defendants HOUMAN KIANI, M.D., MICHAEL PERSON, M.D., PAUL TALBOT, M.D.. (Kinsella, Carrie) (Entered: 01/16/2018)

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135 MOTION to Excuse Individual Defendants from Appearing at the Settlement Conference, filed by Defendants MONICA GIPSON, R.N., MICHAEL MITCHEFF, M.D.. (Attachments: # 1 Text of Proposed Order)(Jones, Benjamin) (Entered: 01/17/2018)
136 NOTICE of proposed Order, filed by Defendants HOUMAN KIANI, M.D., MICHAEL PERSON, M.D., PAUL TALBOT, M.D., re 134 MOTION to Excuse Their Attendance or, in the Alternative, to Appear by Telephone, in Regard to the Settlement Conference. (Kinsella, Carrie) (Entered: 01/17/2018)
137 ORDER granting in part and denying in part Defendants Kiani, Person, and Talbot's 134 Motion to Excuse Their Attendance or, in the Alternative, to Appear by Telephone, in Regard to the Settlement Conference. See Order. Signed by Magistrate Judge Mark J. Dinsmore on 1/18/2018. (SWM) (Entered: 01/18/2018)
138 ORDER granting in part and denying in part Defendants' 135 Motion for leave for a representative from the Indiana Department of Correction to represent Defendants Mitcheff and Gipson at the January 23, 2017 settlement conference. See Order. Signed by Magistrate Judge Mark J. Dinsmore on 1/18/2018. (SWM) (Entered: 01/18/2018)
139 ORDER TO PRODUCE INMATE AT COURT PROCEEDING currently scheduled for 1/23/2018 at 9:30 a.m (Eastern) in Courtroom 243. Copy to Shawna Morson and USMS. Signed by Magistrate Judge Mark J. Dinsmore on 1/19/2018.(SWM) (Entered: 01/19/2018)
140 Unopposed MOTION for Leave to Attend Settlement Conference, filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD. (Attachments: # 1 Text of Proposed Order)(Sniderman, Mark) (Entered: 01/20/2018)
141 ORDER granting Plaintiffs' 140 Motion for Leave to Attend the Settlement Conference scheduled for January 23, 2018. Lindsey Szymczak and Erin Brady are permitted to attend the January 23, 2018 settlement conference set in this matter. Signed by Magistrate Judge Mark J. Dinsmore on 1/22/2018. (SWM) (Entered: 01/22/2018)
142 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Settlement Conference held on 1/23/2018. Settlement has been reached as to some claims. With regard to Defendants Corizon Health, Inc., Corizon, LLC, Paul Talbot, M.D., Michael Person, M.D., Houman Kiani, M.D., Michael Mitcheff, M.D., Monica Gipson, R.N., and Wexford of Indiana, LLC, all pending motions are DENIED AS MOOT & all previously ordered dates are VACATED. Within 30 days of this entry, Plaintiffs and Defendants Corizon Health, Inc., Corizon LLC, Houman Kiani, M.D., Michael Person, M.D., and Paul Talbot, M.D. shall file to dismiss this cause. Within 30 days of Court's ruling on class

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certification, Plaintiffs and Defendant Wexford of Indiana, LLC shall file to dismiss this cause. Telephonic Status Conference set for 2/5/2018 at 9:20 AM (Eastern Time) before Magistrate Judge Mark J. Dinsmore. *SEE ORDER.* Signed by Magistrate Judge Mark J. Dinsmore. (GD) (Entered: 01/29/2018)
144 NOTICE Regarding Motion for Class Certification, filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD, re 99 MOTION to Certify Class . (Sniderman, Mark) (Entered: 02/05/2018)
145 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Telephonic Status Conference held on 2/5/2018. Parties discussed status of discovery, required modification of case schedule & pending motion for class certification. Court hereby amends approved Case Management Plan as amended [Dkts. 54 , 98 , & 107 ]: Statement of Claims or Defenses due 3/23/2018. Discovery due 3/16/2018. Dispositive Motions due 4/13/2018. By 2/20/2018, parties shall file motion to continue trial. *SEE ORDER FOR DEADLINES.* Signed by Magistrate Judge Mark J. Dinsmore. (GD) (Entered: 02/05/2018)
146 NOTICE of Appearance by Kelly Suzanne Thompson on behalf of Defendants ROBERT E. CARTER, JR., MONICA GIPSON, R.N., MICHAEL MITCHEFF, M.D.. (Thompson, Kelly) (Entered: 02/08/2018)
147 Joint MOTION for Continuance of Trial Date (All Parties Agreed), filed by Defendants ROBERT E. CARTER, JR., MONICA GIPSON, R.N., MICHAEL MITCHEFF, M.D.. (Attachments: # 1 Text of Proposed Order)(Jones, Benjamin) (Entered: 02/20/2018)
148 ORDER - This case arises out of a challenge to policies regarding the treatment of individuals who are incarcerated in Indiana Department of Corrections ("IDOC") facilities and who suffer from the chronic Hepatitis C Virus ("HCV"). Plaintiffs Michael Ray Stafford, Charles Smith, and Douglas Smith ("Plaintiffs") raise claims on behalf of themselves and similarly situated individuals that policies maintained and implemented by the Defendants in this action have resulted in the improper denial of treatment to incarcerated individuals who are infected with chronic HCV. Presently pending before the Court is Plaintiffs' Motion for Class Certification, in which Plaintiffs seek to certify a class involving only their prospective declaratory and injunctive relief claims. [Filing No. 99 .] For the reasons below, the Court grants Plaintiffs' Motion and certifies, as modified, the proposed class. The Court therefore grants Plaintiffs' Motion for Class Certification, [Filing No. 99 ], modifying the class definition to include: "All current and future prisoners in IDOC custody who have been diagnosed, or will be

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diagnosed, with chronic HCV." (SEE ORDER). Signed by Judge Jane Magnus-Stinson on 2/21/2018. (APD) (Entered: 02/21/2018)
149 ORDER GRANTING AGREED JOINT MOTION TO CONTINUE TRIAL - Granting 147 Motion for Continuance. The November 5, 2018 trial setting is VACATED and trial is rescheduled to the 25th day of February, 2019 at 9:00 a.m., and the October 12, 2018, final pretrial conference is VACATED and rescheduled to the 31st day of January, 2019, at 9:00 a.m. in room 307, U.S. Courthouse, 46 E. Ohio Street, Indianapolis, Indiana. Signed by Judge Jane Magnus-Stinson on 2/22/2018.(APD) (Entered: 02/22/2018)
150 Joint MOTION for Extension of Time to 03-30-2018 to File Dismissal, filed by Defendants CORIZON HEALTH, INC., CORIZON, LLC, HOUMAN KIANI, M.D., MICHAEL PERSON, M.D., PAUL TALBOT, M.D.. (Attachments: # 1 Text of Proposed Order)(Liss, Jessica) (Entered: 02/23/2018)
151 ORDER granting in part and denying in part Plaintiffs and Defendants Corizon Health, Inc., Corizon, LLC, Houman Kiani, M.D., Michael Person, M.D., and Paul Talbot, M.D's 150 Joint Motion for Extension of Time to File a Dismissal. These parties' shall file their dismissal in this matter on or before March 23, 2018. Signed by Magistrate Judge Mark J. Dinsmore on 2/26/2018. (SWM) (Entered: 02/26/2018)
152 SCHEDULING ORDER: Status Conference set for 3/5/2018 01:00 PM (Eastern Time) in Telephonic before Magistrate Judge Mark J. Dinsmore. The purpose of the conference is to discuss case status. Counsel shall attend the conference by calling the designated telephone number, to be provided by the Court via email generated by the Court's ECF system. Signed by Magistrate Judge Mark J. Dinsmore on 2/26/2018.(SWM) (Entered: 02/26/2018)
154 AMENDED ORDER - (The Court issues this amendment to its prior order, [Filing No. 148 ], to address the designation of class representatives and class counsel, which was inadvertently omitted from the original Order.) This case arises out of a challenge to policies regarding the treatment of individuals who are incarcerated in Indiana Department of Corrections ("IDOC") facilities and who suffer from the chronic Hepatitis C Virus ("HCV"). Plaintiffs Michael Ray Stafford, Charles Smith, and Douglas Smith ("Plaintiffs") raise claims on behalf of themselves and similarly situated individuals that policies maintained and implemented by the Defendants in this action have resulted in the improper denial of treatment to incarcerated individuals who are infected with chronic HCV. Presently pending before the Court is Plaintiffs' Motion for Class Certification, in which Plaintiffs seek to certify a class involving only their prospective declaratory and injunctive relief claims. [Filing No. 99 .] For the reasons herein, the Court grants Plaintiffs'

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Motion and certifies, as modified, the proposed class. The Court therefore GRANTS Plaintiffs' Motion for Class Certification, [Filing No. 99 ], modifying the class definition to include: "All current and future prisoners in IDOC custody who have been diagnosed, or will be diagnosed, with chronic HCV." Moreover, the Court DESIGNATES Michael Ray Stafford, Charles Smith, and Douglas Smith as representatives for the class action pursuant to Rule 23. The Court further DESIGNATES Mark W. Sniderman and Robert A. Katz as lead class counsel pursuant to Fed. R. Civ. P. 23(g). (SEE ORDER). Signed by Judge Jane Magnus-Stinson on 3/2/2018.(APD) (Entered: 03/02/2018)
155 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Telephonic Status Conference held on 3/5/2018. Parties discussed status of discovery & plan for resolution of claims presently scheduled for dismissal. Conference concluded without further order. Signed by Magistrate Judge Mark J. Dinsmore. (GD) (Entered: 03/06/2018)
156 Joint MOTION for Extension of Time to April 22, 2018 to File Dismissal, filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD. (Attachments: # 1 Text of Proposed Order)(Sniderman, Mark) (Entered: 03/23/2018)
157 STIPULATION of Dismissal With Prejudice, filed by Defendants CORIZON HEALTH, INC., CORIZON, LLC, HOUMAN KIANI, M.D., MICHAEL PERSON, M.D., PAUL TALBOT, M.D.. (Liss, Jessica) (Entered: 03/23/2018)
158 Unopposed MOTION for Approval of Class Action Settlement Agreement and Combined Supporting Brief, filed by Defendants PAUL TALBOT, M.D., WEXFORD OF INDIANA, LLC. (Bitner, Douglass) (Entered: 03/23/2018)
159 Statement of Defenses by ROBERT E. CARTER, JR., MONICA GIPSON, R.N., MICHAEL MITCHEFF, M.D.. (Jones, Benjamin) (Entered: 03/23/2018)
160 Statement of Claims by All Plaintiffs. (Sniderman, Mark) (Entered: 03/23/2018)
161 MARGINAL ORDER OF DISMISSAL - Dismissal with prejudice acknowledged for Plaintiffs and Defendants Corizon Health, Inc., Corizon, LLC, Michael Person, M.D., Paul Talbot, M.D., and Houman Kiani, M.D., ONLY. Signed by Judge Jane Magnus-Stinson on 3/26/2018.(APD) (Entered: 03/26/2018)
162 ORDER granting Plaintiffs and Defendant Wexford's 156 Joint Motion for Extension of Time to File motion to dismiss or stipulation of

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dismissal to 4/22/2018. Signed by Magistrate Judge Mark J. Dinsmore on 3/26/2018. (SWM) (Entered: 03/27/2018)
163 *** STRICKEN PER ORDER DATED 4/6/2018 *** Joint MOTION for Protective Order Stipulated, filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD. (Sniderman, Mark) Modified on 4/6/2018 (SWM). (Entered: 04/05/2018)
164 ORDER STRIKING STIPULATED PROTECTIVE ORDER: On May 2, 2017, the Court issued its Order Regarding Protective Orders, which provided in relevant part as follows: "In the event an agreed protective order is required in this matter, the parties shall file a motion seeking the entry of such an order, attaching thereto the proposed protective order." [Dkt. 55 at 1.] That order also required the inclusion of specific language in any proposed protective order filed, as well as a detailed description of any information sought to be protected by an "Attorney's Eyes Only" provision. On April 5, 2018 the parties filed a submission of a uniform "Stipulated Protective Order". That submission was not accompanied by a motion and did not comply with any of the other requirements of the Court's May 2, 2017 order. Fed. R. Civ. P. 26(c) states: A party or any person from whom discovery is sought may move for a protective order.... (emphasis added). The Court acts on motions, not proposed orders. Docket No. 163 is, therefore, STRICKEN. If the parties seek a protective order, they should properly file a motion requesting such relief, which motion and proposed order fully comply with the Court's prior orders. Signed by Magistrate Judge Mark J. Dinsmore on 4/6/2018. (SWM) (Entered: 04/06/2018)
165 RESPONSE to Motion re 158 Unopposed MOTION for Approval of Class Action Settlement Agreement and Combined Supporting Brief , filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD. (Sniderman, Mark) (Entered: 04/06/2018)
166 MOTION for Summary Judgment , filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD. (Attachments: # 1 Exhibit Second Declaration of Raj Vuppalanchi, MBBS, # 2 Exhibit Declaration of Suthat Liangpunsakul, M.D., M.P.H., # 3 Exhibit AASLD/IDSA HCV Guidance 203 When and in Whom, # 4 Exhibit Deposition of Raj Vuppalanchi, MBBS, # 5 Exhibit Excerpts from IDOC-Wexford Contract, # 6 Exhibit HCSD Policy 3.09 (1-1-18), # 7 Exhibit Excerpts from Dr. Fisher PowerPoint (September 2017), # 8 Exhibit Excerpts from Deposition of Neil Fisher, M.D., # 9 Exhibit Deposition of William C. VanNess, II, M.D., # 10 Exhibit Deposition of Monica Gipson, R.N., # 11 Exhibit Press Release - State Auditor, # 12 Exhibit FBOP Guidance May 2017 (Corrected))(Sniderman, Mark) (Entered: 04/13/2018)

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167 BRIEF/MEMORANDUM in Support re 166 MOTION for Summary Judgment , filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD. (Sniderman, Mark) (Entered: 04/13/2018)
168 ORDER - This matter concerns a class action lawsuit brought by inmates of Indiana Department of Corrections ("IDOC") facilities regarding the provision of medical care to treat the chronic Hepatitis C virus ("HCV"). Presently pending before the Court is a Motion for Approval of a Proposed Settlement Agreement between several Defendants and the certified class and named Plaintiffs. [Filing No. 158 .] For the reasons described below, the Court DENIES that Motion. For the reasons described above, the Court DENIES Defendants' Motion for Preliminary Approval of Class Settlement. 158 The Court requests that the Magistrate Judge confer with the parties at his earliest convenience regarding continued efforts to craft an agreement that satisfies the standards imposed by Fed. R. Civ. P. 23. (See Order). Signed by Judge Jane Magnus-Stinson on 4/23/2018. (APD) (Entered: 04/23/2018)
169 SCHEDULING ORDER: Status Conference set for 5/4/2018 01:00 PM (Eastern Time) in Telephonic before Magistrate Judge Mark J. Dinsmore. The purpose of the conference is to discuss the issue(s) set forth in the Court's Order dated April 23, 2018. [Dkt. 168 .] As such, and pursuant to the Court's Order, on or before May 2, 2018, counsel shall email to the Magistrate Judge at MJDinsmore@insd.uscourts.gov a proposed draft settlement agreement that satisfies the standards imposed by Fed. R. Civ. P. 23. Counsel shall attend the conference by calling the designated telephone number, to be provided by the Court via email generated by the Court's ECF system. Signed by Magistrate Judge Mark J. Dinsmore on 4/23/2018.(SWM) (Entered: 04/23/2018)
171 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Telephonic Status Conference held on 5/4/2018. Parties discussed status of matter. Conference concluded without further order. Signed by Magistrate Judge Mark J. Dinsmore. (GD) (Entered: 05/04/2018)
172 Joint MOTION for Protective Order , filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD. (Attachments: # 1 Text of Proposed Order)(Sniderman, Mark) (Entered: 05/14/2018)
173 MOTION for Summary Judgment , filed by Defendants ROBERT E. CARTER, JR., MONICA GIPSON, R.N., MICHAEL MITCHEFF, M.D.. (Attachments: # 1 Exhibit 1 Deposition Excerpts of Dr. VanNess, # 2 Exhibit 2 Deposition Excerpts of Dr. Fisher, # 3 Exhibit 3 Deposition Excerpts of Dr. Vuppalanchi, # 4 Exhibit 4 Deposition Excerpts of Dr. Liangpunsakul, # 5 Exhibit 5 Deposition Excerpts of Douglas Smith,

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# 6 Exhibit 6 Deposition Excerpts of Charles Smith, # 7 Exhibit 7 Deposition Excerpts of Michael Stafford, # 8 Exhibit 8 IDOC Care Service Directive 3.09, # 9 Exhibit 9 Federal Bureau of Prisons Clinical Guidance for HCV May 2017, # 10 Exhibit 10 Federal Bureau of Prisons Clinical Guidance for HCV January 2018)(Jones, Benjamin) (Entered: 05/14/2018)
174 BRIEF/MEMORANDUM in Support re 173 MOTION for Summary Judgment and in Opposition to Plaintiffs' Motion for Summary Judgment, filed by Defendants ROBERT E. CARTER, JR., MONICA GIPSON, R.N., MICHAEL MITCHEFF, M.D.. (Jones, Benjamin) (Entered: 05/14/2018)
175 STIPULATED PROTECTIVE ORDER 172 Approved and Entered as an Order of the Court. Signed by Magistrate Judge Mark J. Dinsmore on 5/15/2018.(SWM) (Entered: 05/16/2018)
176 Amended MOTION for Approval of Class Action Settlement Agreement and Supporting Brief, filed by Defendants PAUL TALBOT, M.D., WEXFORD OF INDIANA, LLC. (Attachments: # 1 Text of Proposed Order)(Bitner, Douglass) (Entered: 06/11/2018)
177 Unopposed MOTION for Extension of Time to File Response to June 21, 2018 re 166 MOTION for Summary Judgment , 173 MOTION for Summary Judgment and Reply, filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD. (Attachments: # 1 Text of Proposed Order)(Sniderman, Mark) (Entered: 06/12/2018)
178 ORDER ON PLAINTIFFS' FIRST UNOPPOSED MOTION FOR EXTENSION OF TIME TO FILE SUMMARY JUDGMENT RESPONSE AND REPLY - Granting 177 Motion for Extension of Time. Plaintiffs shall file their response to the State Defendants' Motion for Summary Judgment and reply in support of Plaintiffs' Motion for Summary Judgment on or before June 21, 2018; and the State Defendants shall file their reply in support of their Motion for Summary Judgment on or before July 6, 2018. Signed by Judge Jane Magnus-Stinson on 6/13/2018. (APD) (Entered: 06/13/2018)
179 REPLY in Support of Motion re 166 MOTION for Summary Judgment & Response to State Defendants' Motion for Summary Judgment, filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD. (Attachments: # 1 Exhibit Complete deposition of Neil Fisher, M.D., # 2 Exhibit January 12, 2018 e-mail regarding report of Dr. Fisher, # 3 Exhibit Report of Dr. Fisher, # 4 Exhibit E-mail regarding CV of Dr. Fisher, # 5 Exhibit CV of Dr. Fisher)(Sniderman, Mark) (Entered: 06/21/2018)
180 REPLY in Support of Motion re 173 MOTION for Summary Judgment , filed by Defendants ROBERT E. CARTER, JR., MONICA GIPSON,

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R.N., MICHAEL MITCHEFF, M.D.. (Jones, Benjamin) (Entered: 07/06/2018)
181 NOTICE of Supplemental Authority, filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD (Attachments: # 1 Exhibit) (Sniderman, Mark) (Entered: 07/13/2018)
182 NOTICE of Change of Attorney Information. Consistent with Local Rule 5-3, Mark W. Sniderman hereby notifies the Clerk of the court of changed contact information. (Sniderman, Mark) (Entered: 08/01/2018)
183 NOTICE of Supplemental Authority, Second, filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD (Attachments: # 1 Exhibit HCV Treatment and Testing in Correctional Settings) (Sniderman, Mark) (Entered: 08/31/2018)
184 OBJECTION to Plaintiffs' Second Notice of Supplemental Authority by ROBERT E. CARTER, JR., MONICA GIPSON, R.N., MICHAEL MITCHEFF, M.D.. Related document: 183 Notice (Other) filed by MICHAEL RAY STAFFORD, DOUGLAS SMITH, CHARLES SMITH.(Jones, Benjamin) (Entered: 09/07/2018)
185 ORDER GRANTING DEFENDANTS' AMENDED MOTION FOR APPROVAL OF CLASS ACTION SETTLEMENT AGREEMENT AND COMBINED SUPPORTING BRIEF - Having considered the arguments presented by the Defendants in their Motion, the Court hereby grants the Defendants, Paul Talbot and Wexford of Indiana, LLC, Amended Motion for Approval of Class Action Settlement Agreement and Combined Supporting Brief 176 . Signed by Judge Jane MagnusStinson on 9/13/2018. (APD) (Entered: 09/13/2018)
186 ORDER - This case arises out of a challenge to the medical care that inmates receive while incarcerated in Indiana Department of Corrections ("IDOC") facilities. A class of Plaintiffs who suffer from chronic Hepatitis C infection ("HCV") contends that IDOC's policies regarding HCV treatment have resulted in the withholding of effective treatment to the vast majority of HCV-infected inmates. Plaintiffs have raised three claims against three IDOC officials, (collectively, "Defendants"): Robert E. Carter, Jr., the Commissioner of IDOC, Dr. William VanNess, IDOC's Chief Medical Officer, and Monica Gipson, R.N., IDOC's Director of Health Care Services. Plaintiffs contend that IDOC's treatment of individuals with chronic HCV violates the Eighth Amendment to the United States Constitution, the Americans with Disabilities Act, and the Rehabilitation Act. Plaintiffs have moved for summary judgment on their Eighth Amendment claim, and Defendants have cross-moved for summary judgment on all claims. For the reasons that follow, the Court GRANTS Plaintiffs' Motion as to liability on the Eighth Amendment claim, and DENIES Defendants' Cross-Motion on all claims. For the reasons stated herein, the Court GRANTS IN PART and DENIES IN

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PART Plaintiffs' evidentiary objections, as set forth in this Order 166 ; GRANTS IN PART and DENIES IN PART Defendants' Motion to Dismiss Dr. VanNess and Ms. Gipson as defendants, to the extent that it DISMISSES Ms. Gipson 173 ; DENIES Defendants' Cross-Motion for Summary Judgment on all claims 173 ; MODIFIES the class definition to include all current and future prisoners in IDOC custody who have been diagnosed, or will be diagnosed, with chronic HCV, and for whom treatment with DAA medication is not medically contraindicated; DECERTIFIES the certified class as to the ADA and Rehabilitation Act claims only 154 ; and GRANTS Plaintiffs' Motion for Summary Judgment as to liability on the Eighth Amendment claim. 166 The Court requests that the Magistrate Judge confer with the parties at his earliest possible convenience in order to establish a schedule for the remaining proceedings. The Court also ORDERS the Clerk to update the docket to reflect that Plaintiffs raise this suit on behalf of themselves and other similarly situated individuals. (SEE ORDER). Signed by Judge Jane Magnus-Stinson on 9/13/2018. (APD) (Entered: 09/13/2018)
187 SCHEDULING ORDER: Status Conference set for 10/2/2018 11:00 AM (Eastern Time) in Telephonic before Magistrate Judge Mark J. Dinsmore. The purpose of the conference is to establish a schedule for the remaining proceedings pursuant to the Court's Order. [Dkt. 186 .] Counsel shall attend the conference by calling the designated telephone number, to be provided by the Court via email generated by the Court's ECF system. Signed by Magistrate Judge Mark J. Dinsmore on 9/27/2018.(SWM) (Entered: 09/27/2018)
189 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Telephonic Status Conference held on 10/2/2018. Court & parties briefly discussed parties' expectations regarding how remaining of matter will proceed. Settlement Conference set for 11/13/2018 at 9:00 AM (Eastern Time) in room #257, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Magistrate Judge Mark J. Dinsmore. *SEE ORDER FOR DEADLINES.* Signed by Magistrate Judge Mark J. Dinsmore. (GD) (Entered: 10/02/2018)
190 MOTION for Copies filed by non-party David M. Jones. (APD) (Entered: 10/15/2018)
191 ORDER: This matter comes before the Court on pro se non-party David M. Jones's letter requesting a copy of the docket in this matter. [Dkt. 190 .] The Court, being duly advised, hereby GRANTS the request. The Clerk is directed to send an updated copy of the docket in this matter to David M. Jones's pursuant to the distribution of this order. Copies to David M. Jones via US Mail. Signed by Magistrate Judge Mark J. Dinsmore on 10/17/2018. (SWM) (Entered: 10/17/2018)

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192 MOTION to Join Class of Similarly Situated Persons filed by non-party Michael Boyd. (APD) (Entered: 10/31/2018)
193 NOTICE of Correspondence, filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD (Sniderman, Mark) (Entered: 11/01/2018)
194 ORDER to Make Inmate Available - via Telephone. Warden of PENDLETON CORRECTIONAL FACILITY ordered to make DOUGLAS SMITH Available - via Telephone for court proceeding on 11/13/2018 at 9:00 AM (Eastern). Copy to Lydia Enos via US Mail. Signed by Magistrate Judge Mark J. Dinsmore on 11/7/2018.(SWM) (Entered: 11/07/2018)
195 ORDER to Make Inmate Available - via Telephone. Warden of PENDLETON CORRECTIONAL FACILITY ordered to make CHARLES SMITH Available - via Telephone for court proceeding on 11/13/2018 at 9:00 AM (Eastern). Copy to Lydia Enos via US Mail. Signed by Magistrate Judge Mark J. Dinsmore on 11/7/2018.(SWM) (Entered: 11/07/2018)
196 ORDER to Make Inmate Available - via Telephone. Warden of MIAMI CORRECTIONAL FACILITY ordered to make MICHAEL RAY STAFFORD Available - via Telephone for court proceeding on 11/13/2018 at 9:00 AM (Eastern). Copy to Nettie Marie Campbell via US Mail. Signed by Magistrate Judge Mark J. Dinsmore on 11/7/2018.(SWM) (Entered: 11/07/2018)
197 ORDER to Make Inmate Available - via Telephone. Warden of WESTVILLE CORRECTIONAL FACILITY ordered to make Douglas Smith #975279 Available - via Telephone for Court proceeding on 11/13/2018 at 9:00 AM (Eastern). Signed by Magistrate Judge Mark J. Dinsmore on 11/9/2018. (GD) (Entered: 11/09/2018)
198 ORDER to Make Inmate Available - via Telephone. Warden of MIAMI CORRECTIONAL FACILITY ordered to make MICHAEL STAFFORD Available - via Telephone for court proceeding on 11/19/2018. Signed by Magistrate Judge Mark J. Dinsmore on 11/15/2018 (dist made and sent to Facility by CRD)(CBU) (Entered: 11/15/2018)
199 ORDER to Make Inmate Available - via Telephone. Warden of WESTVILLE CORRECTIONAL FACILITY ordered to make DOUGLAS SMITH Available - via Telephone for court proceeding on 11/19/2018. Signed by Magistrate Judge Mark J. Dinsmore on 11/15/2018 (dist made and sent to facility by CRD)(CBU) (Entered: 11/15/2018)
200 ORDER to Make Inmate Available - via Telephone. Warden of PENDLETON CORRECTIONAL FACILITY ordered to make

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CHARLES SMITH Available - via Telephone for court proceeding on 11/19/2018.. Signed by Magistrate Judge Mark J. Dinsmore on 11/15/2018.(CBU) Modified on 11/15/2018 (CBU)(dist made and CRD provided a copy to the facility) (Entered: 11/15/2018)
201 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Settlement Conference held on 11/13/2018. Parties appeared in person, by counsel, and by telephone. Telephonic Settlement Conference will RECONVENE on 11/19/2018 at 9:00 AM (Eastern Time). Parties shall attend by calling designated telephone number, to be provided by Court separately to parties. Signed by Magistrate Judge Mark J. Dinsmore. (GD) (Entered: 11/15/2018)
202 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Telephonic Settlement Conference held on 11/19/2018. Settlement was not achieved. Conference concluded without further order. Signed by Magistrate Judge Mark J. Dinsmore. (GD) (Entered: 11/21/2018)
203 MOTION to Convert Trial to Remedy Hearing, filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD. (Attachments: # 1 Text of Proposed Order)(Sniderman, Mark) (Entered: 12/11/2018)
204 RESPONSE to Motion re 203 MOTION to Convert Trial to Remedy Hearing , filed by Defendants ROBERT E. CARTER, JR., MICHAEL MITCHEFF, M.D.. (Jones, Benjamin) (Entered: 12/26/2018)
205 ORDER ON PLAINTIFFS' MOTION TO CONVERT TRIAL TO REMEDY HEARING - This matter having come before the Court on Plaintiffs' Motion to Convert Trial to Remedy Hearing, and the Court being duly advised in the premises finds that the Motion 203 should be GRANTED. WHEREFORE, IT IS ORDERED, ADJUDGED, and DECREED that said Motion is approved by the Court, and that: 1. The trial set for 9:00 a.m., February 25, 2019, shall be converted to a remedy hearing; 2. Plaintiffs' remedy brief shall be due on or before the 22nd day of January, 2019; 3. Defendants' response to Plaintiffs' remedy brief shall be due on or before the 5th day of February, 2019; 4. Plaintiffs' reply shall be due on or before the 12th day of February, 2019; and 5. The final pretrial conference set for 9:00 a.m., January 31, 2019 shall be continued and will be re-set when and if a trial becomes necessary. Signed by Judge Jane Magnus-Stinson on 12/27/2018.(JDH) (Entered: 12/27/2018)
206 Joint MOTION for Continuance of Remedy Hearing, filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD. (Attachments: # 1 Text of Proposed Order)(Sniderman, Mark) (Entered: 01/17/2019)

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207 ORDER ON JOINT MOTION TO CONTINUE REMEDY HEARING This matter having come before the Court on the parties' Joint Motion to Continue Remedy Hearing, and the Court being duly advised in the premises finds that the Motion 206 should be GRANTED. WHEREFORE, IT IS ORDERED, ADJUDGED, and DECREED that said Motion is approved by the Court, and that: The remedy hearing set for 9:00 a.m., February 25, 2019, shall instead commence on April 29, 2019, and three days will be held for the hearing. Plaintiffs' remedy brief shall be due on or before the 26th day of March 2019; Defendants' response to Plaintiffs' remedy brief shall be due on or before the 9th day of April 2019; and Plaintiffs' reply shall be due on or before the 16th day of April 2019. Signed by Judge Jane Magnus-Stinson on 1/18/2019.(JDH) (Entered: 01/18/2019)
208 Entry - Non-party Michael Boyd's motion to join class of similarlysituated persons, dkt. 192 , is denied as moot because, as a class action, all similarly-situated persons are included in the class unless they opt-out. See Alvarez v. City of Chicago, 605 F.3d 445, 448 (7th Cir. 2010); Fed. R. Civ. P. 23(b)(3). Signed by Judge Jane Magnus-Stinson on 2/4/2019. (JDH) (Entered: 02/04/2019)
209 ENTRY - Consistent with the Order of January 18, 2019, a remedy hearing will be conducted on April 29, 2019. To facilitate the efficient submission of evidence and argument at the hearing, the Magistrate Judge is requested to set this action for a pre-hearing conference. (See Entry). Signed by Judge Jane Magnus-Stinson on 2/4/2019. (Attachments: # 1 Exhibit - Washington Post article)(JDH) (Entered: 02/04/2019)
210 SCHEDULING ORDER: Pre-Hearing Status Conference set for 3/6/2019 04:00 PM (Eastern Time) in room #257, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Magistrate Judge Mark J. Dinsmore. The purpose of the conference is to discuss preparations for the April 29, 2019 remedy hearing pursuant to the Court's Entry dated February 4, 2019 [Dkt. 209], and the parties shall comply with all pre-conference filing requirements as set forth therein. [Id. at 1-2.] Signed by Magistrate Judge Mark J. Dinsmore on 2/5/2019.(SWM) (Entered: 02/06/2019)
211 RESPONSE , re 209 Entry, filed by Defendants ROBERT E. CARTER, JR., MICHAEL MITCHEFF, M.D.. (Attachments: # 1 Exhibit A Settlement Agreement)(Nagy, Jonathan) (Entered: 02/26/2019)
212 Witness List Final, filed by Defendants ROBERT E. CARTER, JR., MICHAEL MITCHEFF, M.D., Exhibit List Final, filed by Defendants ROBERT E. CARTER, JR., MICHAEL MITCHEFF, M.D.. (Nagy, Jonathan) (Entered: 02/27/2019)

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213 Witness List for Remedy Hearing, filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD, Exhibit List for Remedy Hearing, filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD. (Sniderman, Mark) (Entered: 02/27/2019)
214 STIPULATION to Facts and Issues to Resolve, Joint, filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD. (Sniderman, Mark) (Entered: 02/27/2019)
215 NOTICE of Substitution of Appearance by Lyubov Gore replacing Kelly S. Thompson on behalf of ROBERT E. CARTER, JR., MICHAEL MITCHEFF, M.D. (Gore, Lyubov) (Entered: 03/01/2019)
216 NOTICE of Substitution of Appearance by Jordan Michael Stover replacing Aleksandrina P. Pratt on behalf of ROBERT E. CARTER, JR., MICHAEL MITCHEFF, M.D. (Stover, Jordan) Modified on 3/4/2019 (JDH). (Entered: 03/01/2019)
217 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Pre-Hearing Status Conference held on 3/6/2019. Parties discussed preparations for April 29, 2019 remedy hearing. Conference concluded without further order. Signed by Magistrate Judge Mark J. Dinsmore. (GD) (Entered: 03/07/2019)
218 MOTION for Permanent Injunction , filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD. (Attachments: # 1 Exhibit Hepatitis C Fight Hinges on Prisons, # 2 Exhibit Selner Docket No. 132, # 3 Exhibit Selner Docket No. 159, # 4 Exhibit Selner Docket No. 167, # 5 Exhibit Selner Docket No. 115)(Sniderman, Mark) (Entered: 03/26/2019)
219 BRIEF/MEMORANDUM in Support re 218 MOTION for Permanent Injunction , filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD. (Sniderman, Mark) (Entered: 03/26/2019)
221 MOTION to Join Class of Similarly Situated Persons. (Attachments: # 1 Envelope)(JDH) (Entered: 03/28/2019)
220 STIPULATION of Dismissal with Prejudice, filed by Defendant WEXFORD OF INDIANA, LLC. (Bitner, Douglass) (Entered: 03/28/2019)
222 MARGINAL ENTRY - Dismissal with prejudice as to Wexford of Indiana, LLC ONLY acknowledged 220 . Signed by Judge Jane MagnusStinson on 3/29/2019.(JDH) (Entered: 03/29/2019)
223 Entry - Non-party Jacob Prawat's motion to join class of similarlysituated persons, dkt. 221 , is denied as moot because, as a class action,

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all similarly-situated persons are included in the class unless they opt-out. See Alvarez v. City of Chicago, 605 F.3d 445, 448 (7th Cir. 2010); Fed. R. Civ. P. 23(b)(3). The clerk is directed to include a prisoner complaint form with Mr. Prawat's copy of this Entry. Copy and form sent to Jacob Prawat via U.S. mail. Signed by Judge Jane Magnus-Stinson on 3/29/2019. (Attachments: # 1 Complaint Form) (JDH) (Entered: 03/29/2019)
224 RESPONSE in Opposition re 218 MOTION for Permanent Injunction and Pre-Hearing Brief, filed by Defendants ROBERT E. CARTER, JR., MICHAEL MITCHEFF, M.D.. (Nagy, Jonathan) (Entered: 04/09/2019)
225 REPLY in Support of Motion re 218 MOTION for Permanent Injunction , filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD. (Attachments: # 1 Exhibit National Governors Association, Health Crises, # 2 Exhibit Trusheim, et al., JAMA, The Netflix Model, # 3 Exhibit AP, Modern Healthcare)(Sniderman, Mark) (Entered: 04/16/2019)
226 NOTICE State Defendants' Supplementation of the Record, filed by Defendants ROBERT E. CARTER, JR., MICHAEL MITCHEFF, M.D., re 209 Entry. (Nagy, Jonathan) (Entered: 04/16/2019)
227 NOTICE of Supplementation of Record, filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD (Attachments: # 1 Exhibit ACLU and Colorado Department of Corrections Reach Historic Settlement, # 2 Exhibit Colorado Approves $41 million Settlement, # 3 Exhibit 5,000 Inmates with Hepatitis C Sued Pa. Prisons, # 4 Exhibit PA DOC Agrees to Treat All Inmates with Hepatitis C, # 5 Exhibit Pa. Department of Corrections to Provide Costly Hepatitis C Treatment to Nearly 5,000 Inmates) (Sniderman, Mark) (Entered: 04/16/2019)
228 Order - The Court appreciates the parties' supplementation of the record with examples of recent agreements and injunctions regarding the treatment of Hepatitis C in prisons in other states. The parties' expert witnesses should be prepared to testify at the remedy hearing about the administrative and medical appropriateness of the provisions contained in these examples for use in any injunction that may be entered in this action. Signed by Judge Jane Magnus-Stinson on 4/19/2019.(JDH) (Entered: 04/19/2019)
229 NOTICE of Supplementation of Record, Second, filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD (Attachments: # 1 Exhibit Hoffer - Order on Cross-Motions for Summary Judgment) (Sniderman, Mark) (Entered: 04/19/2019)

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230 Joint MOTION for Continuance of the Remedy Hearing, filed by Defendants ROBERT E. CARTER, JR., MICHAEL MITCHEFF, M.D.. (Attachments: # 1 Text of Proposed Order Granting Motion for Continuance of Hearing)(Nagy, Jonathan) (Entered: 04/24/2019)
231 ORDER granting 230 Motion for Continuance of Remedy Hearing. The parties to this lawsuit filed their Joint Motion for Continuance of theRemedy Hearing scheduled to begin on April 29, 2019 at 9:30 a.m.The Court, being duly advised, now GRANTS the motion 230 .IT IS THEREFORE ORDERED that the hearing scheduled to begin on April29, 2019 at 9:30 a.m.is vacated and will be reset by separate order.The Court requests that Magistrate Judge Dinsmore set a settlement conference. Signed by Judge Jane Magnus-Stinson on 4/24/2019. (MRI) (Entered: 04/24/2019)
232 SCHEDULING ORDER: Settlement Conference set for 5/21/2019 09:00 AM (Eastern Time) in room #257, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana before Magistrate Judge Mark J. Dinsmore. On or before May 17, 2019, the parties may, but need not, submit (not file) a supplemental confidential settlement statement. See Order for additional information. Signed by Magistrate Judge Mark J. Dinsmore on 4/29/2019.(SWM) (Entered: 04/29/2019)
233 ORDER to Make Inmate Available - via Telephone. Warden of WESTVILLE CORRECTIONAL FACILITY ordered to make DOUGLAS SMITH Available - via Telephone for court proceeding on 5/21/2019 at 9:00 AM (Eastern). Copy to Elizabeth DeFelice via US Mail. Signed by Magistrate Judge Mark J. Dinsmore on 4/29/2019.(SWM) (Entered: 04/29/2019)
234 ORDER to Make Inmate Available - via Telephone. Warden of PENDLETON CORRECTIONAL FACILITY ordered to make CHARLES SMITH Available - via Telephone for court proceeding on 5/21/2019 at 9:00 AM (Eastern). Copy to Lydia Enos via US Mail. Signed by Magistrate Judge Mark J. Dinsmore on 4/29/2019.(SWM) (Entered: 04/29/2019)
235 ORDER to Make Inmate Available - via Telephone. Warden of MIAMI CORRECTIONAL FACILITY ordered to make MICHAEL RAY STAFFORD, Available - via Telephone for court proceeding on 5/21/2019 at 9:00 AM (Eastern). Copy to Nettie Marie Campbell via US Mail. Signed by Magistrate Judge Mark J. Dinsmore on 4/29/2019.(SWM) (Entered: 04/29/2019)
236 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Settlement Conference held on 5/21/2019. Settlement was not achieved. Telephonic Status Conference set for 6/11/2019 at 3:30 PM (Eastern Time) to discuss status of possible resolution. *SEE ORDER.*

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Signed by Magistrate Judge Mark J. Dinsmore. (GD) (Entered: 05/24/2019)
238 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Telephonic Status Conference held on 6/11/2019. Parties discussed status of resolution. Telephonic Status Conference set for 6/27/2019 at 2:30 PM (Eastern Time). *SEE ORDER.* Signed by Magistrate Judge Mark J. Dinsmore. (GD) (Entered: 06/14/2019)
240 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Telephonic Status Conference held on 6/27/2019. Parties discussed status of resolution of matter. If parties have not reached agreement on final terms of resolution prior thereto, parties shall appear for Settlement Conference set for 7/11/2019 at 1:00 PM (Eastern), in room #257, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana. Conference will continue from day-to-day until final settlement document has been agreed.Conference will be vacated if parties advise that they have agreed to final terms of settlement in advance thereof. *SEE ORDER FOR ADDITIONAL REQUIREMENTS.* Signed by Magistrate Judge Mark J. Dinsmore. (GD) (Entered: 06/27/2019)
241 ORDER to Make Inmate Available - via Telephone. Warden of MIAMI CORRECTIONAL FACILITY ordered to make MICHAEL RAY STAFFORD Available - via Telephone for court proceeding on 7/11/2019 at 1:00 PM (Eastern). Copy to Nettie Marie Campbell via US Mail. Signed by Magistrate Judge Mark J. Dinsmore on 6/28/2019.(SWM) Modified on 6/28/2019 (SWM). (Entered: 06/28/2019)
242 ORDER to Make Inmate Available - via Telephone. Warden of MIAMI CORRECTIONAL FACILITY ordered to make CHARLES SMITH Available - via Telephone for court proceeding on 7/11/2019 at 1:00 PM (Eastern). Copy to Nettie Marie Campbell via US Mail. Signed by Magistrate Judge Mark J. Dinsmore on 6/28/2019.(SWM) (Entered: 06/28/2019)
243 ORDER to Make Inmate Available - via Telephone. Warden of WESTVILLE CORRECTIONAL FACILITY ordered to make DOUGLAS SMITH Available - via Telephone for court proceeding on 7/11/2019 at 1:00 PM (Eastern). Copy to Elizabeth DeFelice via US Mail. Signed by Magistrate Judge Mark J. Dinsmore on 6/28/2019.(SWM) (Entered: 06/28/2019)
244 AMENDING SCHEDULING ORDER: Counsel has notified the Court that the parties have reached an agreement as to final terms of a resolution to this matter. Accordingly, the Court hereby CONVERTS the settlement conference set for July 11, 2019 at 1:00 p.m. (Eastern) to a telephonic status conference with counsel only to be held at the same

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date and time. The purpose of the conference is to confirm the parties' final settlement terms and the timing of the final resolution of the matter. Counsel shall attend the status conference by calling the designated telephone number, to be provided by the Court via email generated by the Court's ECF system. Signed by Magistrate Judge Mark J. Dinsmore on 7/10/2019. (GD) (Entered: 07/11/2019)
246 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Telephonic Status Conference held on 7/11/2019. The parties reported that all material terms of a resolution of this matter have been agreed and are awaiting final approval by the State, which should be forthcoming shortly. The parties committed to filing documents seeking Court approval of the parties' resolution within three weeks. The conference was concluded without further order. Signed by Magistrate Judge Mark J. Dinsmore. (GD) (Entered: 07/19/2019)
247 Joint MOTION for Extension of Time to August 8, 2019 , filed by Defendants ROBERT E. CARTER, JR., MICHAEL MITCHEFF, M.D.. (Attachments: # 1 Text of Proposed Order Granting Motion for Extension of Time)(Nagy, Jonathan) (Entered: 07/30/2019)
248 ORDER denying Parties' 247 Joint Motion for Extension of Time. The parties' motion fails to comply with Local Rule 6-1(a)(5), which requires a motion for extension of time to be filed at least three business days prior to the deadline absent extraordinary circumstances. However, the Court, sua sponte, hereby enlarges the parties' deadline to file documents seeking Court approval of the parties' resolution, which shall be filed on or before August 9, 2019. See Order for additional information. Signed by Magistrate Judge Mark J. Dinsmore on 8/5/2019. (SWM) (Entered: 08/06/2019)
249 Joint MOTION for Extension of Time to File Documents Seeking Court Approval of Resolution, filed by Defendant ROBERT E. CARTER, JR.. (Attachments: # 1 Text of Proposed Order)(Nagy, Jonathan) (Entered: 08/06/2019)
250 SCHEDULING ORDER: This cause comes before the Court on the parties' Joint Motion for Extension of Time. [Dkt. 249.] This matter is set for a telephonic hearing on the above-noted motion on Tuesday, August 13, 2019 at 10:00 a.m. (Eastern). Counsel shall attend the hearing by calling the designated telephone number, to be provided by the Court via email generated by the Court's ECF system. Signed by Magistrate Judge Mark J. Dinsmore on 8/8/2019.(SWM) (Entered: 08/09/2019)
251 STIPULATION to Enter into Settlement Agreement Pursuant to 18 U.S. Code Section 3626(c)(2) Following Notice to the Class and Fairness Hearing, filed by Defendants ROBERT E. CARTER, JR., MICHAEL MITCHEFF, M.D.. (Nagy, Jonathan) (Entered: 08/09/2019)

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252 Joint MOTION to Approve Form and Manner of Notice and to Set Matter for Fairness Hearing, filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD. (Attachments: # 1 Exhibit Exh. 1 - Proposed Notice, # 2 Text of Proposed Order)(Sniderman, Mark) (Entered: 08/09/2019)
253 STIPULATION to Enter into Settlement Agreement Pursuant to 18 U.S. Code Section 3626(c)(2) Following Notice to the Class and Fairness Hearing (Amended), filed by Defendants ROBERT E. CARTER, JR., MICHAEL MITCHEFF, M.D.. (Attachments: # 1 Exhibit A 3.09A HCV Plan)(Nagy, Jonathan) (Entered: 08/12/2019)
254 ORDER: This matter comes before the Court on the parties' Joint Motion for Extension Time. [Dkt. 249 .] The Court hereby GRANTS the motion. On or before August 12, 2019, the parties shall file documents seeking Court approval of their resolution of this matter. In light of this Order, the Court hereby CONVERTS the telephonic hearing on the parties' Joint Motion for Extension Time [Dkt. 249 ] scheduled for August 13, 2019 at 10:00 a.m. (Eastern) [Dkt. 250 ], to a telephonic hearing on the parties' Joint Motion to Approve Form and Manner of Notice and to Set Matter for Fairness Hearing [Dkt. 252 ], to be held at the same date and time. Counsel shall attend the hearing by calling the designated telephone number, to be provided by the Court via email generated by the Court's ECF system. Signed by Magistrate Judge Mark J. Dinsmore on 8/12/2019. (GD) (Entered: 08/12/2019)
256 MINUTE ORDER for proceedings held before Magistrate Judge Mark J. Dinsmore: Telephonic Hearing held on 8/13/2019 re 252 Joint Motion to Approve Form and Manner of Notice and to Set Matter for Fairness Hearing. Court will grant motion by separate order. Signed by Magistrate Judge Mark J. Dinsmore. (GD) (Entered: 08/13/2019)
257 ORDER granting Parties' 252 Joint Motion to Approve Form and Manner of Notice and to Set Matter for Fairness Hearing. This matter is set for a fairness hearing on Tuesday, October 15, 2019 at 1:00 p.m. (Eastern), in Room 307, United States Courthouse, 46 E. Ohio Street, Indianapolis, Indiana, before Judge Jane Magnus-Stinson. See Order for additional information. Signed by Magistrate Judge Mark J. Dinsmore on 8/13/2019.(SWM) (Entered: 08/14/2019)
258 Non-party MOTION to Quash, filed by James Wilson. (Attachments: # 1 Envelope)(JDH) (Entered: 09/05/2019)
259 MOTION to Object to Settlement Agreement filed by non-party Brian Reynolds. (Attachments: # 1 Envelope)(JDH) (Entered: 09/19/2019)
260 ORDER denying James Wilson's 258 Non-Party Motion to Quash. Copy to James Wilson via US Mail. Signed by Magistrate Judge Mark J. Dinsmore on 9/26/2019. (SWM) (Entered: 09/26/2019)

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261 ORDER ON MOTION TO OBJECT TO SETTLEMENT AGREEMENT: On September 19, 2019, Brian Reynolds filed a document in this case entitled Motion to Object to Settlement Agreement [Dkt. 259 ]. While the document is called a motion, it actually is an objection to the proposed settlement in this case. Accordingly, the motion is DENIED as unnecessary. This does not mean that the Court will not consider what Mr. Reynolds has to say, however. If Mr. Reynolds is a member of the class that has been certified in this case, he is entitled to object, and the Court will take his objection into consideration in determining whether to approve the settlement. Plaintiffs' counsel is ORDERED to determine whether Mr. Reynolds is a member of the class in this case. If he is, counsel shall address his objection, as articulated in his September 19, 2019, filing, at the fairness hearing. If he is not a class member, counsel shall inform the Court of that fact at the fairness hearing. Copy to Brian K. Reynolds via US Mail. Signed by Magistrate Judge Mark J. Dinsmore on 9/26/2019. (SWM) (Entered: 09/26/2019)
262 NOTICE of Appearance by Ilene M. Smith on behalf of Defendants ROBERT E. CARTER, JR., MICHAEL MITCHEFF, M.D.. (Smith, Ilene) (Entered: 10/01/2019)
263 REPORT of Plaintiffs' Counsel to Court Following Notice to Class, by All Plaintiffs. (Attachments: # 1 Exhibit Comments Responding to Notice)(Sniderman, Mark) (Entered: 10/04/2019)
264 Submission of Proposed Order on Settlement Agreement, Joint,, filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD. (Attachments: # 1 Text of Proposed Order)(Sniderman, Mark) (Entered: 10/11/2019)
265 ORDER - On October 15, 2019, the Court held a hearing on the parties' Stipulation to Enter into Settlement Agreement, dkt. 253, to determine if the proposed stipulation is fair, reasonable and adequate as required under Fed. R. Civ. P. 23(e)(2). Plaintiffs were present by counsel Mark Sniderman and Robert Katz. Defendants were present by counsel Jordan Stover, Lyubov Gore and Ilene Smith. The court reporter was Jean Knepley. Counsel addressed the history of the litigation, notice that was given to class members, comments received by class members and others, and the relevant factors identified in Federal Rule of Civil Procedure 23(e)(2). The Court found that the notice given to class members failed to adequately notify them of plaintiffs' counsel's fees as required by Redman v. RadioShack Corp., 768 F.3d 622, 637-38 (7th Cir. 2014). The Court ORDERED plaintiff's counsel to submit a motion for attorneys' fees by October 22, 2019. Prior to the hearing, counsel filed a proposed order, dkt. 264-1. At the hearing, they moved to withdraw the proposed order. The Court GRANTED that motion and ORDERED the parties to prepare and submit a revised proposed order by October 22,

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2019. (See Order). (Court Reporter Jean Knepley.) (JDH) (Entered: 10/16/2019)
266 MOTION to Withdraw Attorney Appearance , filed by Defendant ROBERT E. CARTER, JR.. (Attachments: # 1 Text of Proposed Order)(Stover, Jordan) (Entered: 10/18/2019)
267 ORDER granting 266 Motion to Withdraw Attorney Appearance. Attorney Aleksandrina Penkova Pratt; Benjamin Myron Lane Jones and Jonathan Paul Nagy withdrawn. Signed by Magistrate Judge Mark J. Dinsmore on 10/21/2019. (SWM) (Entered: 10/22/2019)
268 STIPULATION to Enter into Settlement Agreement Pursuant to 18 U.S. Code § 3626(c)(2) Following Notice to the Class and Fairness Hearing, Third, filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD. (Attachments: # 1 Exhibit HCSD 3.09a, # 2 Text of Proposed Order)(Sniderman, Mark) Modified on 11/12/2019 (MRI). (Entered: 10/22/2019)
269 MOTION to Approve the Form and Manner of Notice Regarding Attorneys Fees and Costs, filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD. (Attachments: # 1 Exhibit Proposed Notice on Attorneys' Fees and Costs, # 2 Exhibit Detailed Timesheet for Mark W. Sniderman, # 3 Exhibit Detailed Timesheet for Robert Katz, # 4 Exhibit Detailed Timesheet for C. Peter Erlinder, # 5 Text of Proposed Order)(Sniderman, Mark) (Entered: 10/22/2019)
270 MOTION for Attorney Fees and Costs, filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD. (Attachments: # 1 Exhibit Declaration of Mark W. Sniderman, # 2 Exhibit Declaration of Robert A. Katz, # 3 Exhibit Declaration of C. Peter Erlinder, # 4 Exhibit Sniderman Timesheet, # 5 Exhibit Katz Timesheet, # 6 Exhibit Erlinder Timesheet, # 7 Text of Proposed Order)(Sniderman, Mark) (Entered: 10/22/2019)
271 ORDER ON MOTION TO APPROVE FORM AND MANNER OF NOTICE REGARDING ATTORNEYS' FEES AND COSTS - The plaintiff's Motion to Approve Form and Manner of Notice Regarding Attorneys' Fees and Costs, dkt. 269 , is granted to the extent that: 1. The text of the notice attached to the Motion is approved and it and the timesheets attached to the motion shall be given by only physical posting, email and mail, and not by video, for the reasons described in the Motion. 2. No earlier than 30 days, and no later than 37 days, following the date that the notice is posted counsel for plaintiffs shall report to the Court as to the comments received and shall make further recommendations as to whether, in counsel's estimation, the proposed settlement agreement, dkt. 268, remains a fair, reasonable, and adequate resolution of this matter pursuant to Rule 23(e) of the Federal Rules of

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Civil Procedure. 3. This matter is not set for a second fairness hearing at this time. Signed by Judge Jane Magnus-Stinson on 11/12/2019. (JDH) (Entered: 11/12/2019)
272 Correspondence REQUESTING COPY of Case Docket Sheet, filed by Robert K. Decker. Copy provided via US Mail. (Attachments: # 1 Envelope) (JDH) (Entered: 11/14/2019)
273 MOTION for copies from interested party Ronnie B. Cislo. (Attachments: # 1 Envelope)(JDH) (Entered: 12/10/2019)
274 NOTICE by interested party seeking assistance filed by Ronnie B. Cislo. (Attachments: # 1 Envelope) (JDH) (Entered: 12/10/2019)
276 NOTICE from Jason Perry to Separate from Action, filed by Plaintiff MICHAEL RAY STAFFORD (JDH) (Entered: 12/11/2019)
275 ORDER DISCUSSING NON-PARTY REQUEST FOR COPIES - On December 9, 2019, Ronnie Bee Cislo filed a motion for copies and a "Notice By a[n] Interested Party Seeking Assistance." Dkts. 273 & 274. Mr. Cislo's motion for copies, dkt. 273 , is granted to the extent that the clerk is directed to include a copy of docket 253 with Mr. Cislo's copy of this Order. Docket 253 is the Parties Stipulation and includes the most pertinent information in this case. The motion is denied as to all other requested docket entries which total 2278 pages of filings in this case. If Mr. Cislo wishes to purchase a copy of these additional filings, he may write to the clerk noting the documents he requests and including payment. Copies cost $0.50 per page, so the total cost for his current request would be $1139.00. Mr. Cislo's notice, dkt. 274 , states that he is a former inmate of the Indiana Department of Correction ("IDOC") who suffers from Chronic Hepatitis C. He believes he is a member of the class in this action because class counsel Mark Sniderman reported to the Court in case number 1:18-cv-02511-RLY-DLP that Mr. Cislo appeared to be a member of the class. But Mr. Cislo was in IDOC custody at the time Mr. Sniderman submitted that report. Because Mr. Cislo is no longer incarcerated in the IDOC, he is not entitled to any injunctive relief in this action. Copies to Ronnie Bee Cislo via U.S. mail. Signed by Judge Jane Magnus-Stinson on 12/11/2019. (JDH) (Entered: 12/11/2019)
277 MOTION to Withdraw Attorney Appearance Jordan Stover, filed by Defendant ROBERT E. CARTER, JR.. (Attachments: # 1 Text of Proposed Order Granting Motion to Withdraw Appearance)(Stover, Jordan) (Entered: 12/17/2019)
278 ORDER granting 277 Motion to Withdraw Attorney Appearance. Attorney Jordan Michael Stover withdrawn. Signed by Magistrate Judge Mark J. Dinsmore on 12/18/2019. (CBU) (Entered: 12/19/2019)

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279 REPORT of Plaintiffs' Counsel to Court Following Second Notice to Class by All Plaintiffs. (Attachments: # 1 Exhibit Comments Regarding Fees, # 2 Exhibit Comments Regarding Substantive Terms)(Sniderman, Mark) (Entered: 12/24/2019)
280 NOTICE of Joint Response to Notice to Separate and Objections to Judgment, filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD, re 276 Notice (Other). (Sniderman, Mark) (Entered: 12/27/2019)
281 ORDER DISCUSSING NOTICE FROM JASON PERRY - On December 10, 2019, Jason Seth Perry, D.O.C. No. 138925, filed pro se his Notice to Separate from Action and Pursue Personal Separate Action and Objections to Judgment. Dkt. 276 . Mr. Perry remains free to pursue his separate action for damages and for injunctive relief unrelated to the provision of direct-action antivirals medications. To the extent Mr. Perry meets the definition of class membership in this action, he remains a member of the class. (See Order). Signed by Judge Jane Magnus-Stinson on 1/2/2020.(JDH) (Entered: 01/02/2020)
282 ORDER - The Court finds that the Stipulated Settlement Agreement is a fair, reasonable, and adequate resolution of this matter. It is therefore ordered that the Stipulated Settlement Agreement, dkt. 268 , is approved and will remain actively in effect until July 1, 2025. Plaintiffs motion for attorneys fees and costs, dkt. 270 , is granted. It is further ordered that, as all claims have been resolved against all parties, the action shall be closed. The Court retains jurisdiction to enforce the Stipulated Settlement Agreement or to re-open this action to be resolved on the merits should the IDOC not request an appropriation, should the IDOC not obtain an appropriation, or should the Health Care Services Directive not be revised. (See Order). Signed by Judge Jane Magnus-Stinson on 1/2/2020. (JDH) (Entered: 01/02/2020)
283 CLOSED JUDGMENT - FINAL JUDGMENT - The Court now enters FINAL JUDGMENT and dismisses this action WITHOUT PREJUDICE, subject to reinstatement by plaintiffs or class members pursuant to the terms of the parties private settlement agreement. Signed by Judge Jane Magnus-Stinson on 1/2/2020.(JDH) (Entered: 01/02/2020)
284 NOTICE of Non-compliance filed by non-party Richard Branum. (Attachments: # 1 Envelope) (JDH) (Entered: 06/29/2020)
285 ORDER DISCUSSING NOTICE FROM RICHARD BRANUM Plaintiff's counsel shall have through July 20, 2020, in which to notify the Court that they have responded to Mr. Branum's concerns and, if necessary, to submit the alleged violation to the Magistrate Judge for resolution as contemplated in the stipulated settlement agreement. (See Order). Copy to Richard Branum via U.S. mail. Signed by Judge Jane Magnus-Stinson on 7/1/2020.(JDH) (Entered: 07/01/2020)

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286 NOTICE of Appearance by Bryan Findley on behalf of Defendant ROBERT E. CARTER, JR.. (Findley, Bryan) (Entered: 07/20/2020)
287 REPORT , Joint, by All Plaintiffs. (Sniderman, Mark) (Entered: 07/20/2020)
288 ORDER ON PARTIES' JOINT REPORT - On June 26, 2020, Richard Branum, D.O.C. No. 106718, filed pro se his Notice of Noncompliance Regarding Unnamed Class Member. On July 1, 2020, the Court ordered plaintiffs' counsel to notify the Court that they had responded to Mr. Branum's concerns. Dkt. 285. In response, the parties filed a joint report on July 20, 2020. Dkt. 287. The Court appreciates Mr. Branum's efforts to bring these issues to the attention of the Court and the parties' efforts to resolve them. The Court expects that further noncompliance with the stipulated settlement agreement will be proactively avoided. SEE ORDER. Copy to Richard Branum via U.S. mail. Signed by Judge Jane Magnus-Stinson on 7/22/2020.(JDH) (Entered: 07/22/2020)
289 NOTICE from Jeremy Rogers Regarding Class Settlement. (Attachments: # 1 Exhibits, # 2 Envelope). (MAC) (Entered: 12/22/2020)
290 RESPONSE to Letter to Court, filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD. (Sniderman, Mark) (Entered: 12/22/2020)
291 MARGINAL ENTRY re 290 Response - The Court approves counsel's proposal to further report to the Court by 12/29/2020 and ORDERS same. Signed by Judge Jane Magnus-Stinson on 12/23/2020.(MAC) Modified on 12/30/2020 (MRI). (Entered: 12/23/2020)
292 NOTICE of Substitution of Appearance by Winston Lin replacing Bryan R. Findley on behalf of ROBERT E. CARTER, JR. (Lin, Winston) (Entered: 12/29/2020)
293 RESPONSE to Letter to Court, Joint, filed by Plaintiffs CHARLES SMITH, DOUGLAS SMITH, MICHAEL RAY STAFFORD. (Sniderman, Mark) (Entered: 12/29/2020)
294 MARGINAL ENTRY, re 293 Response - The court acknowledges this response, and finds no further action by Court is required at this time. Signed by Judge Jane Magnus-Stinson on 12/30/2020. (MAC) (Entered: 12/30/2020)

Case #: 1:17-cv-00289-JMS-MJD

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 Case 1:17-cv-00289-JMS-MJD Document 148 Filed 02/21/18 Page 1 of 18 PageID #: 956

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

MICHAEL RAY STAFFORD, CHARLES SMITH, DOUGLAS SMITH,
Plaintiffs,
v.
ROBERT E. CARTER, JR., MICHAEL MITCHEFF, M.D., MONICA GIPSON, R.N., PAUL TALBOT, M.D., MICHAEL PERSON, M.D., HOUMAN KIANI, M.D., CORIZON HEALTH, INC., CORIZON, LLC, WEXFORD OF INDIANA, LLC,
Defendants.

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No. 1:17-cv-00289-JMS-MJD

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ORDER This case arises out of a challenge to policies regarding the treatment of individuals who

are incarcerated in Indiana Department of Corrections (“IDOC”) facilities and who suffer from the

chronic Hepatitis C Virus (“HCV”). Plaintiffs Michael Ray Stafford, Charles Smith, and Douglas

Smith (“Plaintiffs”) raise claims on behalf of themselves and similarly situated individuals that

policies maintained and implemented by the Defendants in this action have resulted in the

improper denial of treatment to incarcerated individuals who are infected with chronic HCV.

Presently pending before the Court is Plaintiffs’ Motion for Class Certification, in which Plaintiffs

seek to certify a class involving only their prospective declaratory and injunctive relief claims.

[Filing No. 99.] For the reasons below, the Court grants Plaintiffs’ Motion and certifies, as

modified, the proposed class.

1

Case 1:17-cv-00289-JMS-MJD Document 148 Filed 02/21/18 Page 2 of 18 PageID #: 957
I. BACKGROUND1 The named Plaintiffs are individuals who are incarcerated at Pendleton Correctional Facility and who have been diagnosed with chronic HCV. [Filing No. 39 at 1.] Defendant Robert E. Carter, Jr. is the Commissioner of Corrections of IDOC, Defendant Michael Mitcheff, M.D. is the Chief Medical Officer for IDOC, and Defendant Monica Gipson, R.N. is IDOC’s Director of Health Services (collectively “the State Defendants”). Until March 31, 2017, Defendant Corizon, LLC contracted with the State of Indiana to provide a defined scope of medical services to inmates within IDOC’s custody. [Filing No. 111 at 1.] Defendants Houman Kiani, M.D. and Michael Person, M.D. were treating physicians at Pendleton Correctional Facility pursuant to that contract (collectively, along with Corizon, LLC and Corizon Health, Inc., “Corizon”). [Filing No. 111 at 1.] Defendant Wexford of Indiana, LLC (“Wexford”) entered into a contract with the State of Indiana to provide medical care to IDOC inmates from April 1, 2017 to the present time. [Filing No. 82 at 9.] Defendant Paul Talbot, M.D. was a treating physician at Pendleton Correctional Facility who first worked with Corizon, and later with Wexford. [Filing No. 111 at 1.] Plaintiffs’ First Amended Complaint alleges that HCV is a “disabling, chronic and easily spread blood-borne disease that substantially impairs the digestive and circulatory system as it destroys the liver… .” [Filing No. 39 at 6; see also Filing No. 100-1 at 1-7.] HCV infection generally progresses in two stages: acute infection, which occurs during the first six months of
1 The Court is not required to accept as true the First Amended Complaint’s factual allegations at the class certification stage. The Court should “make any factual and legal inquiries needed to ensure that the requirements for class certification are satisfied, even if the underlying considerations overlap with the merits of the case.” Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001). In resolving this Motion, therefore, the Court considers the First Amended Complaint, Defendants’ Answers, and materials submitted in support of the parties’ briefing.
2

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exposure to the virus, and chronic infection. [Filing No. 100-1 at 2.] Approximately 15-25% of infected individuals self-resolve at the acute infection stage, and do not develop chronic infection. [Filing No. 100-1 at 2.] The remaining 75-85% of infected individuals develop chronic HCV. [Filing No. 100-1 at 2.]
Chronic HCV can result in “liver damage, liver failure, liver cancer, or even death.” [Filing No. 100 at 3 (citing Filing No. 100-1 at 2).] Plaintiffs allege that in October 2013, the FDA approved new “breakthrough” direct-acting antiviral (“DAA”) drugs that can cure HCV in only 12 weeks with daily oral medication, at a 95% cure rate. [Filing No. 39 at 6; see also Filing No. 100-1 at 3-5.] A panel of experts known as the HCV Guidance Panel (the “Panel”) provides guidelines that represent the standard of care within the medical community for treating HCV.2 [Filing No. 100 at 4 (citing Filing No. 100-1 at 4).] The Panel recommends treatment for all patients with chronic HCV, except those with short life expectancies that cannot be remediated by treatment, transplantation, or other directed therapy. [Filing No. 100 at 5 (citing Filing No. 100-1 at 4).] Chronic HCV does not self-correct: individuals are infected for life unless their HCV is treated with medication. [Filing No. 100 at 3 (citing Filing No. 100-1 at 3).]
Plaintiffs allege that IDOC screens all inmates for HCV infection, and is therefore aware of each inmate who suffers from the illness, and who poses a risk of infecting other inmates and individuals in the general population following release.3 [Filing No. 39.] Plaintiffs allege that they all tested positive for HCV while incarcerated within an IDOC facility. [Filing No. 39 at 3; Filing No. 74 at 1.] They also allege that Defendants have denied their requests for treatment of
2 It is unclear whether Defendants deny this allegation. 3 The State Defendants deny this allegation in their Answer, but as to this Motion, they provide no evidentiary support or other explanation as to how this allegation is incorrect or inaccurate.
3

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their HCV infections.4 [Filing No. 39 at 8.] Plaintiffs allege that “because of the short-term costs of treating HCV-positive inmates in the DOC system, Defendants Corizon and Wexford have deliberately instituted policies of rationing anti-HCV medication,” to a small number of inmates, failing to comply with the standard of care for HCV. [Filing No. 39 at 9.] They claim that “[a]s a result of [Defendants’] failure to treat HCV-positive inmates appropriately, Defendants have exposed named Plaintiffs and other HCV-positive inmates to significant harm, and placed the entire prison population and the general public [at] greatly increased risk of serious harm and injury from HCV infection by spreading the infection throughout the prison population and beyond.” [Filing No. 39 at 9.]
Plaintiffs filed their initial Complaint in this Court on January 27, 2017, raising claims on behalf of themselves and those similarly situated. [Filing No. 1.] The operative First Amended Complaint alleges that Defendants have violated the Eighth Amendment to the United States Constitution, the Americans with Disabilities Act (“ADA”), and the Rehabilitation Act by failing to provide the named Plaintiffs and putative class members with treatment for their HCV. [Filing No. 39 at 12-20.] The First Amended Complaint seeks monetary damages on behalf of the named Plaintiffs and prospective injunctive and declaratory relief against the State Defendants and Wexford on the behalf of the class. [Filing No. 39.] Presently pending before the Court is Plaintiffs’ Motion for Class Certification, in which Plaintiffs seek to certify a class regarding only
4 For this and all remaining allegations in this paragraph, the Defendants either deny the allegations or assert that they lack information sufficient to either confirm or deny them. Collectively, Defendants have submitted one affidavit in support of their responses to Plaintiffs’ Class Certification Motion, [Filing No. 113-1], which the Court discusses below as relevant.
4

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their claims for declaratory and injunctive relief against the state Defendants and Wexford. [Filing No. 99; Filing No. 111.] That Motion is now fully briefed and ripe for the Court’s review.5
II. LEGAL STANDARD In deciding whether to certify a class, the Court may not blithely accept as true even the most well-pleaded allegations of the complaint, but must instead “make whatever factual and legal inquiries are necessary under Rule 23” to resolve contested issues. Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 676 (7th Cir. 2001). Specifically, the Court must find that the putative class satisfies the four prerequisites set forth in Federal Rule of Civil Procedure 23(a). If the putative class does satisfy these prerequisites, the Court must additionally find that it satisfies the requirements set forth in Federal Rule of Civil Procedure 23(b), which vary depending upon which of three different types of classes is proposed. The four prerequisites under Rule 23(a) are that: “(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). Class certification is not appropriate unless the named plaintiff establishes all four prerequisites. Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 156 (1982). In addition to meeting the prerequisites of Rule 23(a), the proposed class must satisfy one of the conditions of Rule 23(b). Oshana, 472 F.3d at 513; Williams v. Chartwell Fin. Servs., 204 F.3d 748, 760 (7th Cir. 2000). Under Rule 23(b)(2), a class action that satisfies Rule 23(a) may be sustained if “the
5 Because Plaintiffs do not seek prospective declaratory and injunctive relief against the Corizon Defendants, they have not filed a response to Plaintiffs’ Motion for Class Certification. [See Filing No. 111.]
5

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party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).
III. DISCUSSION A. Whether an Identifiable Class Exists In addition to the class certification prerequisites specifically enumerated in Federal Rule of Civil Procedure 23, it is Plaintiffs’ burden to prove “that the class is indeed identifiable as a class.” Oshana, 472 F.3d at 513. The Court addresses that requirement first. Plaintiffs propose the following class definition: “All persons who are now, or will in the future be, in the custody of IDOC, diagnosed with chronic HCV, and wish to receive standard of care treatment for their illness but are being denied it.” [Filing No. 99 at 1.] The State Defendants argue that the membership in this proposed class is not ascertainable by the Court because: (1) discerning which individuals “wish” to receive standard-of-care treatment requires a subjective analysis of each individual’s state of mind; and (2) determining which individuals have been denied standard-of-care treatment will require the Court and medical experts to “carefully review the medical records of each and every offender with chronic [HCV].”6 [Filing No. 112 at 5-6.] In response, Plaintiffs argue that the proposed class definition is sufficient, because the class may be ascertained by reference to wholly objective criteria. [Filing No. 133 at 4.] In the alternative, however, Plaintiffs propose a modified definition that alleviates any concerns raised by
6 Wexford appears to raise the same argument in its Response in Opposition to Plaintiffs’ Motion to Certify a Class, contending that the proposed class is “improperly vague.” [Filing No. 113 at 12-13.]
6

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Defendants: “All current and future prisoners in IDOC custody who have been diagnosed, or will be diagnosed, with chronic HCV.” [Filing No. 133 at 3.]
A district court has broad discretion to certify a class and may modify a proposed class definition if modification will render the definition adequate. Davis v. Hutchins, 321 F.3d 641, 649 (7th Cir. 2003). Plaintiffs’ “revised” class definition appears to remedy the issues of identifiability raised by Defendants, assuming that any such issues existed. This modified definition is also similar to those certified in recent cases in other jurisdictions involving the treatment of HCV-infected inmates. See, e.g., Hoffer v. Jones, 2017 WL 5586877, at *1 (N.D. Fla. Nov. 17, 2017) (defining class as “all current and future prisoners in FDC custody who have been diagnosed, or will be diagnosed, with chronic hepatitis C virus (HCV)”); Graham v. Parker, 2017 WL 1737871, at *2 (M.D. Tenn. May 4, 2017) (defining class as “[a]ll persons currently incarcerated in any facility under the supervision or control of the Tennessee Department of Corrections or persons incarcerated in a public or privately owned facility for whom the Tennessee Department of Corrections has ultimate responsibility for their medical care and who have at least 12 weeks or more remaining to serve on their sentences and are either currently diagnosed with Hepatitis C infection or are determined to have Hepatitis C after an appropriate screening test has been administered by the Department of Corrections”).
This definition is based only on an objective criterion: whether an individual has been diagnosed with chronic HCV. The Court therefore adopts this modified definition, which is sufficient to establish an identifiable class.
7

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B. Federal Rule of Civil Procedure 23(a) 1. Numerosity
The Court can only certify a class that “is so numerous that joinder of all members is impracticable.” Fed. R. Civ. Pro. 23(a)(1). “Although there is no ‘bright line’ test for numerosity, a class of forty is generally sufficient to satisfy Rule 23(a)(1).” McCabe v. Crawford & Co., 210 F.R.D. 631, 644 (N.D. Ill. 2002); Hubler Chevrolet, Inc. v. GMC Corp., 193 F.R.D. 574, 577 (S.D. Ind. 2000).
Plaintiffs estimate that there are “at least 3,100 members of the proposed class currently incarcerated in IDOC facilities.”7 [Filing No. 100.] They base this estimate on IDOC’s statistics regarding the number of inmates in its facilities; the percentage of inmates who have been identified as HCV-positive when tested at intake; and, using available medical research and statistics, the number of HCV-infected inmates who are likely to develop chronic (as opposed to acute) HCV infections. [Filing No. 100 (citing Filing No. 100-1; Filing No. 100-4; Filing No. 1008; Filing No. 100-9).] Plaintiffs also point out that these estimates do not include individuals who are not now incarcerated in an IDOC facility, but will be in the future, or individuals who are currently incarcerated but will become infected with HCV at a later date. [Filing No. 100 at 1314.]
In response, the State Defendants’ arguments center on Plaintiffs’ first proposed definition. They argue that Plaintiffs assume that all of the 3,100 HCV-infected inmates would wish to receive standard-of-care treatment, “but offer nothing to support that claim.” [Filing No. 112 at 9.] And they contend that Plaintiffs’ estimated number includes individuals for whom direct acting
7 Plaintiffs note that there may be more than 5,500 HCV-infected inmates. [Filing No. 100 at 13.] The Court relies on the low end of Plaintiffs’ estimates for purposes of certification.
8

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antiviral treatment will not be recommended, further reducing the Plaintiff class.8 [Filing No. 112 at 10.]
As the Court discussed above, it adopts a modified version of the class definition, which removes the elements regarding standard-of-care treatment. The State Defendants’ arguments, therefore, are no longer relevant to the proposed definition.9 Plaintiffs have submitted evidence suggesting that the low end of the estimated class size is 3,100, and joining that many class members, geographically dispersed among many IDOC facilities, would be impracticable. See, e.g., Graham, 2017 WL 1737871, at *3 (certifying class of HCV-infected inmates estimated at 3,487); Postawko v. Mo. Dep’t. of Corr., 2017 WL 3185155, at *6 (W.D. Mo. July 26, 2017) (certifying class of at least 2,000 HCV-infected inmates who were denied treatment with DAAs). The Court readily finds that a class size of at least 3,100 members would render joinder of the parties impracticable and is sufficient to satisfy Rule 23(a)(1).
2. Commonality A class action requires “questions of law or fact common to the class.” Fed. R. Civ. Pro. 23(a)(2). Commonality is satisfied when there is a “common nucleus of operative fact,” that is, a “common question which is at the heart of the case.” Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992) (citation omitted). All questions of fact or law need not be identical; rather, the requirement is satisfied as long as the class claims arise out of the same legal or remedial theory. In re Ready-Mixed Concrete Antitrust Litig., 261 F.R.D. 154, 167 (S.D. Ind. 2009). Commonality requires “that the class members have suffered the same injury.” Jamie S., 668 F.3d at 497.
8 Wexford does not appear to dispute that the numerosity requirement is met. [Filing No. 113.] 9 The Court notes, however, that even if the Court were to consider how these arguments apply to Plaintiffs’ first proposed class definition, the State Defendants provide no evidence to suggest that the number of class members would be reduced from 3,100 (at the low end of the estimate) to less than 40, the threshold identified as being sufficient to render joinder impracticable.
9

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Plaintiffs contend that common questions of fact predominate in this action, including, but not limited to: (1) “whether the use of DAA drugs to treat chronic HCV is, with limited exceptions, the medical standard of care; and (2) whether the denial of treatment with DAA drugs to Class members is causing or will cause injury to them… .” [Filing No. 100 at 15.] Plaintiffs argue that common questions of law also predominate, including “whether Defendants’ treatment policies or practices for chronic HCV violate the Eighth Amendment, the ADA, or the Rehabilitation Act.” [Filing No. 100 at 15.] They argue that their claims “arise from the same practice or course of conduct that gives rise to the claims of other class members and are based on the same legal theory.” [Filing No. 100 at 16 (citing Muro v. Target Corp., 580 F.3d 485, 492 (7th Cir. 2009).]
Wexford argues that Plaintiffs have not demonstrated that the commonality requirement is met because Plaintiffs’ originally proposed class definition “identifies and recognizes the individualized nature and the variances in the patients, and as such, there is not a common question of law or fact that meets the requirements of Rule 23.” [Filing No. 113 at 10.] Wexford also argues generally that where plaintiffs seek to certify a class based on the policies of a defendant, they are required to offer “significant proof” as to the existence of that policy. [Filing No. 113 at 10.] Wexford argues that Plaintiffs have not offered significant proof that Wexford maintains a policy to deny treatment with DAA drugs to class members. [Filing No. 113 at 10.] The State Defendants argue that Plaintiffs’ proposed class does not meet the commonality requirement because “whether a particular individual is receiving standard of care treatment for their medical conditions is an individualized inquiry not suited for class relief.” [Filing No. 112 at 12.]
In reply, Plaintiffs argue that Defendants mischaracterize the nature of the inquiry in this case as requiring any sort of individualized determinations as to treatments. They contend that the
10

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key inquiry is determining the medically accepted standard of care for treating HCV, and whether Defendants have a policy that results in substandard care. [Filing No. 133 at 9-12.]
The Court concludes that several questions of law or fact are common to the class. Among others, these common questions predominate: (1) whether there is a standard of care for treating HCV, and whether that standard includes the use of DAA drugs; (2) whether Plaintiffs are being or have been denied specific treatments, including DAA drugs; and (3) whether any such denial is causing or will cause injury to members of the class. Common questions of law also predominate, including whether Defendants’ actions violate the Eighth Amendment, the ADA, or the Rehabilitation Act.
As to Defendants’ arguments regarding the necessity of individualized assessments, the Court agrees with Plaintiffs that Defendants mischaracterize the nature of the commonality inquiry as it applies in this case. Defendants in several recent cases have raised similar arguments regarding individualized medical assessments, to no avail. For example, the Hoffer court highlighted that the challenged policy formed the basis for the common questions of fact and law— not any individual plaintiff’s circumstances. The court provided the following assessment:
…Defendant’s misguidance is best illustrated through an example. Consider, for instance, a prison policy that states that every inmate with a broken bone must wait five years before they are treated. Under Defendant’s logic, inmates subject to that policy could not initiate a class action to change the policy because each inmate suffers from individualized conditions. That, of course, would be pure applesauce. Although each inmate may be differently situated (e.g., one may have a broken toe, and another a broken rib), they each suffer from the same injury: being subject to the five-year delay. Hoffer, 2017 WL 5586877, at *2 (internal quotation and citations omitted). The Graham court concluded the commonality requirement had been met, stating that: Plaintiffs here are not challenging individual courses of treatment; they are challenging Defendants’ official protocols and system-wide practices for Hepatitis C diagnosis and treatment, as they are alleged in the Class Action Complaint.
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Plaintiffs are not simply disagreeing with a doctor’s course of treatment for a particular person. They are attacking TDOC’s state-wide policies and procedures applicable to all inmates with Hepatitis C. 2017 WL 1737871, at *4. And the Postawko Court concluded that: Defendants’ argument depends on their contention that inmate medical decisions always involve individualized treatment decisions that are, by their very nature, unsuitable for class treatment even when all are attributable to an overarching policy or protocol. The Court rejects this theory, which amounts to a sweeping assertion that…Eighth Amendment claims can never be brought in the form of a class action. Postawko, 2017 WL 3185155, at *7 (emphasis in original). As in Hoffer, Graham, and Postawko, this Court also concludes that common questions of law and fact regarding Defendants’ treatment policies exist as to the proposed class. As to Defendants’ argument that Plaintiffs are required to offer “significant proof” of offending policies maintained by Defendants, the Court reminds Defendants that such proof is only required in limited circumstances that are not present here. In cases where putative class members’ claims are highly individualized, the Supreme Court has concluded that “an illegal policy might provide the ‘glue’ necessary to litigate otherwise highly individualized claims as a class.” Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 498 (7th Cir. 2012) (emphasis in original) (citing Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351-55 (2011)). But as the Court concluded above, these claims are not highly individualized, instead applying broadly to the class. And, in any event, Plaintiffs have submitted a variety of documents setting forth, at least in part, Defendants’ policies regarding the treatment of HCV.10 [Filing No. 100-2 through Filing No. 1006.] Plaintiffs argue that these documents provide evidence that only a small percentage of inmates
10 Plaintiffs also contend that they have requested the production of the State of Indiana’s 2016 Request for Proposal and exhibits to the contract between IDOC and Wexford, which may contain relevant information regarding Wexford and IDOC’s HCV policies, but they have not yet been produced. [Filing No. 100 at 8.]
12

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are approved or selected for treatment of their chronic HCV infections. [See, e.g., Filing No. 1003 at 9 (“…selected individuals are offered medication therapy to eradicate the virus.”); Filing No. 100-7 at 5 (“…Wexford can state that as of July 22, 2017, eleven (11) inmates were currently receiving DAA treatment.”).]
For these reasons, the Court concludes that Plaintiffs have established that questions of law and fact are common to all class members. Therefore the commonality requirement is satisfied.
3. Typicality The typicality requirement requires that the claims of the representative party be typical of the claims of the class. Fed. R. Civ. Pro. 23(a)(3). The commonality and typicality requirements often merge because both “serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 158 n. 13 (1982). Although typicality may exist even if there are factual distinctions between the claims of the named plaintiffs and other class members, the requirement “directs the district court to focus on whether the named representatives’ claims have the same essential characteristics as the claims of the class at large.” Muro v. Target Corp., 580 F.3d 485, 492 (7th Cir. 2009) (citation omitted). Plaintiffs argue that the named Plaintiffs’ claims are typical of the claims or defenses of the class, in that all of the putative plaintiffs claim that Defendants’ treatment policy for chronic HCV violates the Eighth Amendment, the ADA, and the Rehabilitation Act. [Filing No. 100 at 16.] Wexford responds that Plaintiffs have not made an evidentiary showing of typicality, but instead “just assume that the existence of some policy would apply equally to the Plaintiffs and
13

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the remainder of the class.” [Filing No. 113 at 11.] Both Wexford and the State Defendants again argue that the specifics of Plaintiffs’ medical histories and diagnoses, as well as those of the class, render these claims highly individualized and inappropriate for class treatment. [Filing No. 112 at 13-14; Filing No. 113 at 11-12.]
As the Court discussed above, Plaintiffs raise claims regarding the policies maintained by IDOC regarding who receives and does not receive treatment for diagnosed HCV. These claims are not dependent on individualized assessments. Plaintiffs’ request for injunctive relief, if granted, would benefit the entire class. See Graham, 2017 WL 1737871, at *4-5; Hoffer, 2017 WL 5586877, at *3; Postawko, 2017 WL 3185155, at *11.
The typicality requirement is satisfied. 4. Adequacy of Representation
Federal Rule of Civil Procedure 23(a)(4) requires the Court to find that “the representative parties will fairly and adequately protect the interests of the class.” The adequacy inquiry is composed of two parts: “the adequacy of the named plaintiff’s counsel, and the adequacy of representation provided in protecting the different, separate, and distinct interest[s] of the class members.” Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 598 (7th Cir. 1993) (citation and quotation omitted). To adequately represent the class, the representative plaintiff “must be part of the class and possess the same interest and suffer the same injury as the class members.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997) (citation and quotation omitted).
The State Defendants do not challenge the adequacy of Plaintiffs’ counsel. Instead, they argue that Plaintiffs have conceded that they will not fairly and adequately protect the interests of the class. [Filing No. 112 at 14.] The State Defendants contend that the named Plaintiffs have a
14

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potential conflict of interest with the putative class, because the named Plaintiffs raise personal injury claims for monetary damages on behalf of themselves, but not on behalf of the class.11 [Filing No. 112 at 14.] Plaintiffs respond that no meaningful differences arise as the result of the named Plaintiffs’ additional claims for relief, and that the existence of additional claims does not create any potential or actual conflict. [Filing No. 133 at 14-15.]
The Court is somewhat perplexed by the State Defendants’ undeveloped argument regarding a potential conflict. The State Defendants state only that “[t]he significant differences in the claims being asserted by the named Plaintiffs versus those asserted by the putative class members establishes the not only possibility of a conflict among the class members, but the likelihood of such a claim. Very simply, the class representatives and the class members are not marching in lockstep because they are not seeking the same relief.” [Filing No. 112 at 14-14.] The State Defendants never identify what conflict may arise as a result of these additional claims, or how any conflict might impact the named Plaintiffs’ interest in fairly and adequately pursuing the injunctive relief claims. Moreover, they cite no authority to support the assertion that the existence of non-class claims creates a conflict or impacts the named Plaintiffs’ adequacy.
Plaintiffs allege that they are currently incarcerated in IDOC facilities, are infected with chronic HCV, and seek to be offered treatment consistent with the appropriate standard of care. [Filing No. 39.] The Court sees no reason to conclude that the named Plaintiffs have, through this stage in the litigation, failed to diligently pursue their injunctive relief claims on behalf of the putative class. And the named Plaintiffs have attested that their main goal in the litigation is to prevail in their claims for injunctive relief. [Filing No. 133-1 at 1; Filing No. 133-2 at 1; Filing
11 Wexford does not address the adequacy requirement in its briefing. [Filing No. 113.] 15

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No. 133-3 at 1.] This is sufficient to establish that the Plaintiffs will fairly and adequately protect the interests of the class.
The Court concludes that the adequacy requirement has been met. C. Federal Rule of Civil Procedure 23(b) Where, as here, a proposed class satisfies all the prerequisites of Federal Rule of Civil Procedure 23(a), class certification is appropriate if the class qualifies as one of the types listed under subsection (b) of Rule 23. Plaintiffs argue, and the Court agrees, that the proposed class fits within Fed. R. Civ. P. 23(b)(2), in that, based on the allegations in the First Amended Complaint, “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” The State Defendants oppose this conclusion, generally reiterating their arguments regarding the individualized nature of HCV treatment. [Filing No. 112 at 15.] For the reasons described above, the Court rejects those arguments. Because this action seeks injunctive relief to prevent future allegedly illegal deprivations of civil rights, it is a “prime example[ ]” of a proper class under Rule 23(b)(2). Amchem, 521 U.S. at 614 (citation omitted); see also Doe v. Guardian Life Ins. Co., 145 F.R.D. 466, 477 (N.D. Ill. 1992) (“[T]he primary limitation on the use of Rule 23(b)(2) is the requirement that injunctive or declaratory relief be the predominant remedy requested for the class members.”).
IV. CONCLUSION The Court therefore grants Plaintiffs’ Motion for Class Certification, [Filing No. 99], modifying the class definition to include: “All current and future prisoners in IDOC custody who have been diagnosed, or will be diagnosed, with chronic HCV.”
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Date: 2/21/2018
Distribution: Douglass R. Bitner KATZ KORIN CUNNINGHAM, P.C. dbitner@kkclegal.com Benjamin Myron Lane Jones INDIANA ATTORNEY GENERAL benjamin.jones@atg.in.gov Robert A. Katz INDIANA UNIVERSITY MCKINNEY SCHOOL OF LAW rokatz@iu.edu Carrie L. Kinsella JACKSON LEWIS P.C. carrie.kinsella@jacksonlewis.com Jessica L. Liss JACKSON LEWIS P.C. jessica.liss@jacksonlewis.com William R. Lunsford MAYNARD COOPER & GALE PC blunsford@maynardcooper.com Jarrod Alvin Malone KATZ KORIN CUNNINGHAM, P.C. jmalone@kkclegal.com Jonathan Paul Nagy INDIANA ATTORNEY GENERAL jonathan.nagy@atg.in.gov
17

Case 1:17-cv-00289-JMS-MJD Document 148 Filed 02/21/18 Page 18 of 18 PageID #: 973 Aleksandrina Penkova Pratt INDIANA ATTORNEY GENERAL aleksandrina.pratt@atg.in.gov Scott James Preston JACKSON LEWIS PC (Indianapolis) Scott.Preston@jacksonlewis.com Mark W. Sniderman SNIDERMAN NGUYEN LLP mark@snlawyers.com Melissa K. Taft JACKSON LEWIS PC (Indianapolis) melissa.taft@jacksonlewis.com
18

 
 Case 1:17-cv-00289-JMS-MJD Document 1 Filed 01/27/17 Page 1 of 20 PageID #: 1

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

MICHAEL RAY STAFFORD,

)

CHARLES SMITH and DOUGLAS SMITH, )

individually, and on behalf of those

)

similarly situated,

)

)

Plaintiffs,

)

)

v.

) Case No. 1:17-cv-289

)

INDIANA DEPARTMENT OF

)

CORRECTIONS, ROBERT E. CARTER, JR., )

MICHAEL MITCHEFF, M.D.,

)

MONICA GIPSON, R.N.,

)

PAUL TALBOT, M.D.,

)

MICHAEL PERSON, M.D.,

)

HOUMAN KIANI, M.D., and

)

CORIZON HEALTH, INC.,

)

) Complaint – Class Action

Defendants.

) Jury Trial Requested

CLASS ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

INTRODUCTION

1. The named plaintiffs are state prison inmates incarcerated in Pendleton

Correctional Facility, Pendleton, Indiana (“PCF”), who have tested positive for the

Hepatitis C virus (“HCV”), a chronic disease primarily affecting the liver that can lead to

cirrhosis, liver failure, cancer, and other serious and potentially life-threatening

conditions. Plaintiffs allege that Defendants have failed to provide medical treatment for

HCV that meets the recognized standard of care in the United States.

2. The standard of care requires that HCV be treated with certain directacting antiviral (“DAA”) oral medications approved by the U.S. Food and Drug Administration (“FDA”). This standard is set forth in the clinical guidelines and treatment recommendations developed by the nation’s preeminent medical and scientific societies

Case 1:17-cv-00289-JMS-MJD Document 1 Filed 01/27/17 Page 2 of 20 PageID #: 2
specializing in the study and treatment of HCV, which have been cited by the Federal Bureau of Prisons (“FBOP”). These guidelines are available online and are regularly updated to incorporate the most current research.1
JURISDICTION, VENUE, AND CAUSES OF ACTION 3. This Court has original subject matter jurisdiction of the federal questions presented herein pursuant to 28 U.S.C. §§ 1331 and 1343. 4. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b), for some or all of the Defendants reside in this judicial district, and the events or omissions giving rise to these claims that arose here. 5. Plaintiffs set forth claims under the Eighth and Fourteenth Amendments to the United States Constitution pursuant to 42 U.S.C. § 1983; Title II of the Americans with Disabilities Act, as amended, 42 U.S.C. § 12131 et seq. (the “ADA”); and the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq. (the “Rehabilitation Act”). 6. Declaratory relief is authorized by Rule 57 of the Federal Rules of Civil Procedure and 28 U.S.C. §§ 2201 and 2202.
PARTIES PLAINTIFFS
7. Michael Ray Stafford, an inmate of the Indiana Department of Corrections (“DOC”) at PCF, was informed by DOC personnel or agents that he tested positive for HCV after he was the victim of an assault by another inmate who infected him with HCV-positive blood products, prior to October 2013.
1http://hcvguidelines.org/, last accessed January 27, 2017; and see http://www.bop.gov/resources/pdfs/hepatitis_c.pdf, last accessed January 27, 2017.
2

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8. Charles Smith, an inmate of DOC at PCF, was informed by DOC personnel or agents that he was HCV-positive when he was incarcerated at the DOC facility in Michigan City, Indiana, prior to October 2013.
9. Douglas Smith, an inmate of DOC at PCF, was informed by DOC personnel or agents he was HCV-positive prior to October 2013. DEFENDANTS
10. The DOC is an agency of the State of Indiana, with its principal place of business and headquarters in the City of Indianapolis, Indiana, and receives federal funds.
11. Commissioner Robert E. Carter, Jr., an adult individual, is the duly appointed Commissioner of Corrections of the DOC, is responsible for HCV policy and the administration and supervision of HCV treatment staff within DOC, and is sued in his official capacity for actions and omissions taken under the color of law.
12. Michael Mitcheff, M.D., an adult individual, is the Chief Medical Officer of the DOC, is responsible for medical services within DOC, including HCV diagnosis and treatment, and is sued in his individual and official capacities for actions and omissions taken under color of law.
13. Monica Gipson, R.N., an adult individual, is DOC’s Director of Health Services, responsible for medical services within DOC, including HCV diagnosis and treatment, and is sued in her individual and official capacities for actions and omissions taken under color of law.
14. Paul Talbot, M.D., an adult individual, at all relevant times is or was a treating physician at PCF, with the obligation to provide the current standard of care for HCV, is sued in his individual and official capacities for actions and omissions taken
3

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under color of law. 15. Michael Person, M.D., an adult individual, at all relevant times is or was a
treating physician at PCF, with the obligation to provide the current standard of care for HCV, is sued in his individual and official capacities for actions and omissions under color of law.
16. Houman Kiani, M.D., an adult individual, at all relevant times is or was a treating physician at PCF, with the obligation to provide the current standard of care for HCV, is sued in his individual and official capacities for actions and omissions under color of law.
17. Defendant Corizon Health, Inc. (“Corizon”), is a for-profit foreign company doing business in the State of Indiana, with corporate offices located at 105 Westpark Drive, Suite 200, Brentwood, Tennessee; and a principal office at 3737 N. Meridian St., Indianapolis, Indiana, and is a recipient of federal funds. The registered agent for Corizon Health is CT Corporation System, 150 West Market St., Ste. 800, Indianapolis, Indiana, 46204.
18. Plaintiffs sue Defendants DOC and Corizon for the creation and implementation of policies that have directly inflicted harm and demonstrated deliberate indifference to Plaintiffs’ disability, disease, and serious medical needs in violation of the Eighth and Fourteenth Amendments to the United States Constitution, the ADA and the Rehabilitation Act.
NATURE OF THE CASE The Hepatitis C Virus
19. HCV is a disabling, chronic and easily spread blood-borne disease that substantially impairs the digestive and circulatory system as it destroys the liver and kills
4

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the patient. As a result, HCV substantially impairs major life activities of eating, walking, moving, self-care, normal psychological and emotional functioning, and life itself.
20. The standard of care for HCV requires treatment with FDA-approved DAA drugs.
21. HCV’s overt symptoms are often subtle, and include lethargy, fatigue, non-specific pain, skin rashes and jaundice, while HCV destroys the circulatory system, kidney and liver function of its victims. HCV has been a growing silent epidemic since it was first discovered in 1989, and, even today, half of the three-to-four million or more Americans infected with HCV are not aware of their infected status.2
22. Before the new era in HCV treatment began in late 2013, HCV treatment consisted of highly individualized drug “cocktails” combined with weekly toxic Interferon injections that lasted nearly a year. Interferon side effects included debilitating flu-like symptoms. Cure-rates were under 50%, and there was no single standard of care protocol because treatment varied significantly. See, e.g., Roe v. Elyea, 631 F.3d 843, 863-67 (7th Cir. 2011). October 2013: FDA Breakthrough Cure for HCV
23. The bleak prospects for HCV-infected patients changed completely in October 2013, when the FDA approved new “breakthrough” DAA drugs that cured HCV in only 12 weeks with daily oral medication, at a 95% rate.
24. By late 2013, the three relevant medical societies -- the American Association for the Study of Liver Disease (“AASLD”), the Infectious Disease Society of America (“IDSA”), and the International Anti-viral Society-USA (IAS-USA) -- convened thirty experts in gastroenterology, hepatology, and infectious diseases to constitute a 2 http://www.hcvguidelines.org/, last accessed January 27, 2017.
5

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guidance panel (a.k.a. the "HCV Guidance Panel") to advise all practitioners who treat HCV.3
25. The HCV Guidance Panel was convened to advise HCV-treating medical practitioners of the standard of care by creating a website to provide:
...[U]p-to-date recommendations for HCV practitioners on the optimal screening, management and treatment for adults with HCV infection in the United States, using a rigorous review process to evaluate the best available evidence.... This [website] was conceived as a living document that would reside online and undergo real-time revisions as the field evolved.4 "Clearly-Established Rights" Regarding HCV in Particular 26. The Defendants have violated Plaintiffs’ clearly established rights under
the Eighth and Fourteenth Amendments to the United States Constitution by failing to adhere to the HCV Guidance Panel’s standard of care because:
a. Practitioners are legally obliged to prescribe lifesaving medication
required by the current standard of care; b. Failing to provide the standard of care for HCV can cause Plaintiffs cognizable harm (see, e.g., Erickson v. Pardus, 551 U.S. 89 (2007)); and c. Exposing uninfected inmates to infection from HCV-positive inmates can constitute deliberate indifference. See, e.g., Helling v. Mckinley, 509 U.S. 25, 33 (1993) (citing Hutto v. Finney, 437 U.S. 678, 682 (1978)). 3 The origins, purpose and process of the HCV Guidance Panel and its website are explained by the AASLD/IDSA HCV Guidance Panel (2015), “Hepatitis C guidance: AASLD-IDSA recommendations for testing, managing, and treating adults infected with hepatitis C virus,” Hepatology, Vol. 62, Issue 3, 932-954, Nov. 3, 2015 (attached as Exhibit 1); also available online at http://onlinelibrary.wiley.com/doi/10.1002/hep.27950/full, last accessed January 27, 2017. 4 Id. at 932
6

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27. Each day the Defendants breach the standard of care, the likelihood of cirrhosis of the liver, liver cancer, liver transplant, and death from HCV increases for each named Plaintiff and each member of the Class they represent; as does the likelihood of infection for those in DOC facilities and the general public after their release.
28. On February 24, 2016, the HCV Guidance Panel explicitly recommended, without reservation, that all HCV treatment practitioners prescribe the DAA drugs for all HCV-positive patients. The Veteran’s Administration adopted this policy on the same day.
FACTS 29. Each named Plaintiff is confined at PCF and has been has been diagnosed by Defendants as HCV-positive prior to the filing of the Complaint; has requested treatment with the DAA drugs; has been denied such treatment by Defendant DOC; and has exhausted internal remedies. 30. Defendant DOC screens all inmates for HIV and HCV infections, and is thus aware of each inmate who is HCV-positive and HIV co-infected, and who pose a risk of infecting other inmates in the prison population and the general public upon release. 31. On information and belief, Defendant DOC has recently acknowledged that approximately 190 inmates at PCF are HCV-positive. 32. The standard of care for HCV-positive patients requires they be treated with DAA drugs, and be cured in 12 weeks in order to: (a) prevent the spread of the epidemic, and (b) prevent deterioration of the patients' internal organs.
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33. Because of the short-term costs of treating HCV-positive inmates in the DOC system, Defendants DOC and Corizon have deliberately instituted a policy of rationing anti-HCV medication and non-compliance with the standard of care.
34. Upon information and belief, Defendants have conspired to avoid treating HCV-positive inmates according to the standard of care, for reasons of administrative convenience and cost, both of which are unrelated to the medical needs of individual inmates.
35. As a result of their failure to treat HCV-positive inmates appropriately, Defendants have exposed named Plaintiffs and other HCV-positive inmates to significant harm, and placed the entire prison population and the general public to greatly increased risk of serious harm and injury from HCV infection by spreading the infection throughout the prison population and beyond.
36. Upon information and belief, at all relevant times, all Defendants had actual knowledge of the HCV Guidance Panel Guidelines, through websites, professional journals, professional meetings, FBOP publications and general media.
37. At all times relevant to this lawsuit, Defendants DOC and Corizon, and their agents or contractors, were aware that named Plaintiffs have been infected with HCV and are aware of each member of the proposed class who is also HCV-positive (i.e., the 190 inmates at PCF alone).
38. On information and belief, at all times relevant to this lawsuit, Defendants have willfully delayed, denied, or deliberately and indifferently interfered with Plaintiffs’ HCV treatment for non-medical reasons, contrary to the standard of care, by withholding HCV treatment until Plaintiffs manifest fibrosis, cirrhosis of the liver, or liver cancer; and by permitting HCV-infected persons to remain infectious to others at all times.
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39. At all times relevant to this lawsuit, Defendants have willfully and knowingly exposed uninfected inmates to life-threatening HCV infections for nonmedical reasons by withholding the standard of care for inmates who are HCV-positive.
40. Defendants’ knowing refusal to treat Plaintiffs pursuant to the standard of care prolongs and increases the harm HCV is causing to named Plaintiffs' and inmate class members’ bodies and life expectancies, and demonstrates deliberate indifference to their serious medical needs.
41. Plaintiffs sue Defendant DOC for the creation and implementation of policies that have:
a. directly inflicted harm upon, and demonstrated deliberate indifference to the disability, disease, and serious medical needs of Plaintiffs, in violation of the Plaintiffs’ clearly established rights under the Eighth Amendment, as incorporated by the Fourteenth Amendment, and
b. discriminated against Plaintiffs on the basis of their disability, in violation of Title II of the ADA and the Rehabilitation Act.
Class Allegations 42. Plaintiffs bring this action on behalf of themselves and others similarly situated (the "Class") pursuant to Fed. R. Civ. P. 23(a) and 23(b)(2). 43. Plaintiffs seek to represent the following Class on claims for declaratory and injunctive relief and damages: all persons (male and female) incarcerated in DOC facilities with 12 weeks or more remaining on their sentences, who test HCV-positive and wish to receive the standard of care treatment. 44. The requirements of Fed. R. Civ. P. 23(a) are met by this action.
9

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45. The numerosity requirement of Fed. R. Civ. P. 23(a)(1) is met, for in addition to the approximately 190 HCV-positive inmates at PCF alone, there are likely a significant number of persons (male and female) incarcerated in other DOC facilities with diagnosed and undiagnosed HCV. The number of persons who are members of the Class described above is so large that joinder of all members in one action is impracticable.
46. Questions of law and fact are common to the Class pursuant to Fed. R. Civ. P. 23(a)(2), including but not limited to: (1) the standard of care; (2) whether the DOC policy must be replaced with the standard of care; (3) whether the DOC’s refusal to adhere to the standard of care violates the Class members’ rights under the Eighth Amendment as incorporated by the Fourteenth Amendment; (4) whether the DOC’s refusal to adhere to the standard of care violates: (a) the ADA, and (b) Section 504 of the Rehabilitation Act; and (5) the declaratory and prospective equitable relief in standard of care treatment of HCV predominate over any unique relief demands of Plaintiffs or class members.
47. Plaintiffs’ claims are typical of those of the Class members, pursuant to Fed. R. Civ. P. 23(a)(3), because named Plaintiffs and all Class members were injured by the same wrongful policy and practices of Defendants as described in this Complaint; and are based on the same legal theories and factual questions relating to the standard of care.
48. Plaintiff’s claims are representative of those of the Class, pursuant to Fed. R. Civ. P. 23(a)(4), because (1) Plaintiffs will fairly and adequately protect the interests of the Class; (2) Plaintiffs have no interests contrary to the Class they seek to represent; (3) Plaintiffs are represented by competent and skilled counsel whose interests are aligned with the interests of the Class; (4) relief concerning named Plaintiffs’ rights under the laws herein alleged and with respect to the Class would be proper; (5) Defendants have acted
10

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or refused to act with respect to the Class as a whole; and (6) Counsel for Plaintiffs have developed a particular expertise in the rapidly changing science underlying the changes in the standard of care for HCV practitioners.
49. A class action satisfies Fed. R. Civ. P. 23(b)(3), because: (1) it is superior to other available methods for the fair and efficient adjudication of this litigation since joinder of all members of the Class is impracticable; (2) the number would prove unduly burdensome and inefficient for the Court and parties; (3) because a common set of facts, grievances and remedies predominate over individual issues, relief by a single court is in the interest of all parties; and (4) conduct of this action as a class action will protect the rights of all Class members and promote judicial efficiency and consistency. Notice can be provided to Class members by United States mail.
LEGAL CLAIMS Claim I
Eighth Amendment Dr. Talbot, Dr. Person and Dr. Kiani 50. Plaintiffs reallege and incorporate herein by reference paragraphs 1 through 49 of this Complaint. 51. Named Plaintiffs and all persons similarly situated have a serious medical need to be treated pursuant to the standard of care. 52. Dr. Talbot, Dr. Person and/or Dr. Kiani, while acting under the color of law, were aware of the named Plaintiffs’ serious medical needs, and were personally involved with the denial of care to Plaintiffs. 53. Within the scope of their employment or contract by, with, or through Corizon and/or DOC, these Defendants have and/or had the responsibility to care for
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the Plaintiffs according to the standard of care, but breached this standard of care and continue to do so, all of which has caused harm to Plaintiffs.
54. Part or all of the foregoing breach of the standard of care was and remains due to these Defendants’ reliance on DOC policies or protocols that fail to meet this standard.
55. Said Defendants, in the course and scope of their employment, were and remain deliberately indifferent to the need for medical treatment of Plaintiffs and persons similarly situated.
56. The actions and omissions of the Defendants described herein constitute a violation of the rights secured to Plaintiffs and persons similarly situated by the Eighth Amendment to the United States Constitution, as incorporated by the Fourteenth Amendment to the United States Constitution.
57. As a proximate result of the actions and omissions discussed in this count, Plaintiffs and persons similarly situated were injured, endured physical pain and mental suffering, experienced mental anguish and emotional distress and will continue to suffer from these injuries in the future.
Claim II Eighth Amendment Dr. Mitcheff and Monica Gipson, R.N., in their Individual Capacities 58. Plaintiffs reallege and incorporate herein by reference paragraphs 1 through 57 of this Complaint. 59. Defendants Dr. Mitcheff, as Medical Director, and Monica Gipson, R.N., as Director of Health Services, of DOC were aware of named Plaintiffs’ serious medical needs for treatment for HCV in accordance with the standard of care, and were personally involved in the denial of care to Plaintiffs.
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60. These Defendants know the substantial risk that Plaintiffs suffer from progression of HCV infections, which foreseeably lead to exacerbated liver or kidney malfunction, liver fibrosis, liver cirrhosis, liver cancer, expensive liver transplant, and/or death by liver malfunction.
61. Said Defendants, in the course and scope of their employment by DOC, were and remain deliberately indifferent to the need for medical treatment of Plaintiffs, and persons similarly situated, and have proximately caused Plaintiffs harm while acting under the color of law.
62. The actions and omissions of the Defendants described herein constitute a violation of the rights secured to Plaintiffs and persons similarly situated by the Eighth Amendment to the United States Constitution, as incorporated by the Fourteenth Amendment to the United States Constitution.
63. As a proximate result of the actions and omissions discussed in this count, Plaintiffs and persons similarly situated were injured, endured physical pain and mental suffering, experienced mental anguish and emotional distress and will continue to suffer from these injuries in the future.
Claim III Eighth Amendment
Corizon 64. Plaintiffs reallege and incorporate herein by reference paragraphs 1 through 63 of this Complaint. 65. Plaintiffs and all persons similarly situated have a serious medical need for HCV treatment in accordance with the standard of care, and to avoid the risk of being infected or re-infected by inmates untreated for HCV infections.
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66. At all times relevant to this action, Corizon was a private actor under contract or otherwise obligated to provide medical care to incarcerated inmates for the State of Indiana. Because their conduct is fairly attributable to the State of Indiana, Corizon, acted under color of state law at all relevant times.
67. Corizon, by and through its agents, employees, or representatives, was aware of the serious medical needs of Plaintiffs and persons similarly situated.
68. Corizon deliberately disregarded and was indifferent to the substantial risk posed by Plaintiff’s serious medical needs, and the progression of HCV infection by failing to enact policies to assure that the named Plaintiffs and Class members would obtain the standard of care for HCV treatment while acting under the color of law.
69. Corizon, by and through its agents, employees, or representatives, was deliberately indifferent to the serious medical needs of Plaintiffs and persons similarly situated, all of which proximately caused Plaintiffs harm.
70. The actions and omissions of Corizon described herein constitute a violation of the rights secured to Plaintiffs and persons similarly situated by the Eighth Amendment to the United States Constitution, as incorporated by the Fourteenth Amendment to the United States Constitution.
71. As a proximate result of the actions and omissions discussed in this count, Plaintiffs and persons similarly situated were injured, endured physical pain and mental suffering, experienced mental anguish and emotional distress and will continue to suffer from these injuries in the future.
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Claim IV Eighth Amendment DOC and Commissioner Carter in his Official Capacity 72. Plaintiffs reallege and incorporate herein by reference paragraphs 1 through 71 of this Complaint. 73. Plaintiffs and all persons similarly situated had a serious medical need for standard of care medical treatment of their HCV. 74. Defendants DOC and Carter (including Carter’s predecessor) through the actions of their agents, employees, or representatives, were aware of Plaintiffs’ serious need for standard of care medical treatment of their HCV, above, as well as the need of the approximately 190 HCV-positive inmates at PCF. 75. Defendants DOC and Carter deliberately disregarded and were indifferent to the substantial risk of progression of the HCV infection by failing to enact policies to assure that the named Plaintiffs and Class members would obtain the standard of care treatment for HCV practitioners while acting under the color of law. 76. Defendants DOC and Carter were deliberately indifferent to the substantial risk of progression of the HCV infection of Plaintiffs and all persons similarly infected with the HCV virus, which proximately caused Plaintiffs harm. 77. Defendants DOC and Carter were deliberately indifferent to the substantial risk of spreading HCV to the rest of the prison population and the general public by failing to follow the standard of care for treating HCV-infected inmates to eliminate the virus from the prison blood pool. 78. The actions and omissions of Defendants described herein constitute a violation of the rights secured to Plaintiffs and persons similarly situated by the Eighth
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Amendment to the United States Constitution, as incorporated by the Fourteenth Amendment to the United States Constitution.
79. As a proximate result of the actions and omissions discussed in this count, Plaintiffs and persons similarly situated were injured, endured physical pain and mental suffering, experienced mental anguish and emotional distress and will continue to suffer from these injuries in the future.
Claim V § 504 of the Rehabilitation Act and Title II of the ADA
Corizon 80. Plaintiffs reallege and incorporate herein by reference paragraphs 1 through 79 of this Complaint. 81. Defendant Corizon was and is aware that Plaintiffs’ HCV is a disability and physical impairment that can and does substantially affect the major life activities of digestive systems, circulatory systems, and life itself. 82. Corizon, by and through its agents, employees, or representatives, knew that delay of Plaintiffs' treatment would foreseeably lead to exacerbated serious medical harms including liver malfunction, liver fibrosis, liver cirrhosis, liver cancer, liver transplant and/or death by liver malfunction. 83. Corizon deliberately disregarded and was indifferent to the substantial risk of progression of the HCV infection by failing to enact policies to assure that the named Plaintiffs and Class members would obtain the standard of care treatment for HCV practitioners while acting under the color of law. 84. Corizon could have reasonably accommodated Plaintiffs’ HCV disabilities, so as not to exclude them from participation in, deny them the benefits of the
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federally funded services, programs, or activities of Corizon by reasonably accommodating Plaintiffs’ HCV disabilities with standard of care treatment.
85. Corizon failed to reasonably accommodate Plaintiffs’ known disabilities, notwithstanding that compliance with the standard of care is not an undue hardship.
86. Corizon, as the contracted medical care provider of the DOC, through its agents, employees, or representatives, acted with deliberate, reckless, knowing, or intentional disregard for the rights, health, and safety of the Plaintiffs, which proximately caused Plaintiffs harm.
87. The actions and omissions of Corizon described herein constitute violations of § 504 of the Rehabilitation Act and Title II of the ADA.
88. As a proximate result of the actions and omissions discussed in this count, Plaintiffs and persons similarly situated were injured, endured physical pain and mental suffering, experienced mental anguish and emotional distress and will continue to suffer from these injuries in the future.
Claim VI § 504 of the Rehabilitation Act; and Title II of the ADA DOC and Commissioner Carter in his official capacity 89. Plaintiffs reallege and incorporate herein by reference paragraphs 1 through 88 of this Complaint. 90. Plaintiffs have HCV, a disability and physical impairment that can and does substantially affect the major life activities of digestive systems, circulatory systems, and life itself, of which Defendants were aware. 91. Defendants DOC and Carter had actual knowledge that progression of HCV can and would foreseeably lead to exacerbated serious medical harms including
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liver malfunction, liver fibrosis, liver cirrhosis, liver cancer, expensive liver transplant, or even death by liver malfunction.
92. Defendants DOC and Carter disregarded the substantial risk of progression of the HCV infection, by failing to assure that Plaintiffs and Class members would obtain the standard of care treatment for their condition while acting under the color of law.
93. Defendants DOC and Carter could have reasonably accommodated Plaintiffs’ disabilities, so as not to exclude them from participation in, or deny them the benefits of the federally funded services, programs, or activities of Defendant DOC, by reasonably accommodating Plaintiffs’ disabilities, by providing them with the treatment required by the standard of care.
94. Defendants DOC and Carter failed to reasonably accommodate Plaintiffs’ known disabilities.
95. Due to the foregoing failures, Plaintiffs and all other similarly situated qualified disabled persons continue to suffer injuries that include progression of their respective infections, increased symptoms, pain, suffering, fear, diminished enjoyment of life, and decreased life expectancy, in addition to threat of infection and re-infection.
96. Defendants DOC and Carter acted with deliberate, reckless, knowing, or intentional disregard and indifference for the established rights, health, and safety of Plaintiffs, and those similarly situated, which proximately caused Plaintiffs harm.
97. The actions and omissions of the Defendants described herein constitute violations of § 504 of the Rehabilitation Act and Title II of the ADA.
98. As a proximate result of the actions and omissions discussed in this count, Plaintiffs and persons similarly situated were injured, endured physical pain and mental
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suffering, experienced mental anguish and emotional distress and will continue to suffer from these injuries in the future.
RELIEF REQUESTED WHEREFORE named Plaintiffs and all similarly situated Plaintiffs pray for the following relief: 99. For named Plaintiffs and members of the Plaintiff Class, such equitable relief as this Court deems just and proper, including, but not limited to, HCV treatment pursuant to the current standard of care; 100. For Plaintiffs, an award of appropriate compensatory damages against Defendants, jointly and severally, for all claims for which compensatory damages are available, in an amount to be determined by jury; and 101. For named Plaintiffs, an award of punitive damages against Defendants, sued in their respective individual capacities, jointly and severally, for claims arising under the Eighth and Fourteenth Amendments to the United States Constitution, in an amount to be determined at trial by jury; 102. Attorney fees, expenses and costs, and all other appropriate relief to which the Court may deem Plaintiffs entitled.
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REQUEST FOR TRIAL BY JURY Plaintiffs, by counsel, hereby request a trial by jury with respect to any issues so triable. Respectfully submitted,

s/ Robert A. Katz Robert A. Katz (pending pro hac vice admission) Professor of Law, Indiana University ROBERT H. MCKINNEY SCHOOL OF LAW 530 West New York Street Indianapolis, IN 46202 317-278-4791 T rokatz@iu.edu

s/ Mark W. Sniderman Mark W. Sniderman SNIDERMAN NGUYEN LLP 47 S. Meridian St., Ste. 400 Indianapolis, IN 46220 317-361-4700 T 317-464-5111 Fx mark@snlawyers.com

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 Case 1:17-cv-00289-JMS-MJD Document 168 Filed 04/23/18 Page 1 of 5 PageID #: 1728

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

MICHAEL RAY STAFFORD, CHARLES SMITH, DOUGLAS SMITH,
Plaintiffs,
v.
ROBERT E. CARTER, JR., MICHAEL MITCHEFF, M.D., MONICA GIPSON, R.N., WEXFORD OF INDIANA, LLC,
Defendants.

)

)

)

)

)

)

)

No. 1:17-cv-00289-JMS-MJD

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)

)

)

)

)

)

ORDER

This matter concerns a class action lawsuit brought by inmates of Indiana Department of

Corrections (“IDOC”) facilities regarding the provision of medical care to treat the chronic

Hepatitis C virus (“HCV”). Presently pending before the Court is a Motion for Approval of a

Proposed Settlement Agreement between several Defendants and the certified class and named

Plaintiffs. [Filing No. 158.] For the reasons described below, the Court DENIES that Motion.

I. BACKGROUND

This case arises out of a challenge to policies regarding the treatment of individuals who

are incarcerated in IDOC facilities and who suffer from chronic HCV. Plaintiffs Michael Ray

Stafford, Charles Smith, and Douglas Smith (“Plaintiffs”) raise injunctive relief claims on behalf

of themselves and similarly situated individuals that policies maintained and implemented by the

Defendants in this action have resulted in the improper denial of treatment to incarcerated

individuals who are infected with chronic HCV. The named Plaintiffs have also raised personal

injury claims seeking monetary damages.

Case 1:17-cv-00289-JMS-MJD Document 168 Filed 04/23/18 Page 2 of 5 PageID #: 1729
On or about January 23, 2018, the Plaintiff class and the individual Plaintiffs entered into a conditional Settlement Agreement (“Agreement”) with defendants Paul Talbot and Wexford of Indiana, LLC (collectively “Defendants”). [Filing No. 158 at 2-3.] That Agreement was conditioned upon the granting of Plaintiffs’ Motion for Class Certification, which asked the Court to certify a class pursuant to Federal Rules of Civil Procedure 23(a) and 23(b)(2). [Filing No. 99 at 1.] Plaintiffs sought to certify a class regarding only their claims for declaratory and injunctive relief against the state Defendants and Wexford. [Filing No. 99; Filing No. 111.] After conducting the requisite analysis under Rules 23(a) and 23(b)(2), the Court granted Plaintiffs’ motion to certify the class, modifying the class definition to include: “All current and future prisoners in IDOC custody who have been diagnosed, or will be diagnosed, with chronic HCV.” [Filing No. 154 at 17.] Because the class certification condition in the Settlement Agreement has been met, Defendants now move for preliminary approval of the Agreement. [Filing No. 158.]
II. DISCUSSION Federal Rule of Civil Procedure 23(e) governs the settlement of claims of a certified class, and it allows the Court to approve a class settlement only if it is “fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). In order to evaluate the fairness of a settlement, the Court must consider “the strength of plaintiffs’ case compared to the amount of defendants’ settlement offer, an assessment of the likely complexity, length and expense of the litigation, an evaluation of the amount of opposition to settlement among affected parties, the opinion of competent counsel, and the stage of the proceedings and the amount of discovery completed at the time of settlement.” Synfuel Techs., Inc. v. DHL Express (USA), Inc., 463 F.3d 646, 653 (7th Cir. 2006). The Seventh Circuit “insist[s] that district courts exercise the highest degree of vigilance in scrutinizing proposed settlements of class actions. In the past, [the Seventh Circuit has] gone so
2

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far as to characterize the court’s role as akin to the high duty of care that the law requires of fiduciaries.” Synfuel, 463 F.3d at 652-53 (citing Reynolds v. Beneficial Nat’l Bank, 288 F.3d 277, 279 (7th Cir. 2002)).
Here, exercising that duty of vigilance, the Court concludes that the proposed settlement does not meet the standard of being “fair, reasonable, and adequate.” Fed. R. Civ. P. 23(e)(2). The parties stress that the Settlement Agreement is confidential, so the Court avoids reciting in detail its specific provisions. To put it simply, the Agreement is overbroad. For example, it asks members of the class to agree to an extremely wide-ranging release and discharge of claims, including those having nothing to do with the subject matter of this lawsuit. See Settlement Agreement Section 1.1. Without further information or assurances regarding the propriety of these releases, the Court cannot conclude that the Agreement is either fair or reasonable. The Settlement Agreement also contains provisions pertaining to the monetary settlement of personal injury claims brought by the named Plaintiffs. These claims are not encompassed within the certified class, and they are not the proper subject matter of a class settlement agreement for which Court approval is required. The scope of the Rule 23 class Settlement Agreement should be confined to the issues raised by that class. Any settlement of other claims can and should be memorialized within a separate agreement.
III. CONCLUSION For the reasons described above, the Court DENIES Defendants’ Motion for Preliminary Approval of Class Settlement. [158] The Court requests that the Magistrate Judge confer with the parties at his earliest convenience regarding continued efforts to craft an agreement that satisfies the standards imposed by Fed. R. Civ. P. 23.
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Date: 4/23/2018
Distribution:
Douglass R. Bitner KATZ KORIN CUNNINGHAM, P.C. dbitner@kkclegal.com
Benjamin Myron Lane Jones INDIANA ATTORNEY GENERAL benjamin.jones@atg.in.gov
Robert A. Katz INDIANA UNIVERSITY MCKINNEY SCHOOL OF LAW rokatz@iu.edu
Carrie L. Kinsella JACKSON LEWIS P.C. carrie.kinsella@jacksonlewis.com
Jessica L. Liss JACKSON LEWIS P.C. jessica.liss@jacksonlewis.com
William R. Lunsford MAYNARD COOPER & GALE PC blunsford@maynardcooper.com
Jarrod Alvin Malone KATZ KORIN CUNNINGHAM, P.C. jmalone@kkclegal.com
Jonathan Paul Nagy INDIANA ATTORNEY GENERAL jonathan.nagy@atg.in.gov
Aleksandrina Penkova Pratt INDIANA ATTORNEY GENERAL aleksandrina.pratt@atg.in.gov
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Scott James Preston JACKSON LEWIS PC (Indianapolis) Scott.Preston@jacksonlewis.com Mark W. Sniderman SNIDERMAN NGUYEN LLP mark@snlawyers.com Melissa K. Taft JACKSON LEWIS PC (Indianapolis) melissa.taft@jacksonlewis.com Kelly Suzanne Thompson INDIANA ATTORNEY GENERAL kelly.thompson@atg.in.gov
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 Case 1:17-cv-00289-JMS-MJD Document 186 Filed 09/13/18 Page 1 of 44 PageID #: 2674

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

MICHAEL RAY STAFFORD, CHARLES SMITH, DOUGLAS SMITH,
Plaintiffs,
v.
ROBERT E. CARTER, JR., MICHAEL MITCHEFF, M.D., MONICA GIPSON, R.N., WEXFORD OF INDIANA, LLC,
Defendants.

)

)

)

)

)

)

)

No. 1:17-cv-00289-JMS-MJD

)

)

)

)

)

)

)

ORDER

This case arises out of a challenge to the medical care that inmates receive while

incarcerated in Indiana Department of Corrections (“IDOC”) facilities. A class of Plaintiffs who

suffer from chronic Hepatitis C infection (“HCV”) contends that IDOC’s policies regarding HCV

treatment have resulted in the withholding of effective treatment to the vast majority of HCV-

infected inmates. Plaintiffs have raised three claims against three IDOC officials, (collectively,

“Defendants”): Robert E. Carter, Jr., the Commissioner of IDOC, Dr. William VanNess, IDOC’s Chief Medical Officer,1 and Monica Gipson, R.N., IDOC’s Director of Health Care Services.

Plaintiffs contend that IDOC’s treatment of individuals with chronic HCV violates the Eighth

Amendment to the United States Constitution, the Americans with Disabilities Act, and the

Rehabilitation Act. Plaintiffs have moved for summary judgment on their Eighth Amendment

claim, and Defendants have cross-moved for summary judgment on all claims. For the reasons

1 Dr. VanNess has been automatically substituted as a defendant in place of former Chief Medical Officer Michael Mitcheff, M.D.

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that follow, the Court GRANTS Plaintiffs’ Motion as to liability on the Eighth Amendment claim, and DENIES Defendants’ Cross-Motion on all claims.
I. EVIDENTIARY OBJECTIONS Plaintiffs raise a number of objections to evidence cited by Defendants, which the Court considers before analyzing the substantive arguments in the cross-motions for summary judgment. This is necessary because the resolution of evidentiary objections impacts the scope of information that the Court can consider in deciding the cross-motions. A. Expert Testimony of Dr. Neil Fisher In their briefing in support of the cross-motions for summary judgment, both Plaintiffs and Defendants cite deposition testimony of Dr. Neil Fisher, the Corporate Medical Director for Quality Management and Pharmacy for Wexford Health Sources, Inc. (“Wexford”). [Filing No. 179-5 at 1.] Plaintiffs, however, object to certain of Defendants’ cited portions of Dr. Fisher’s testimony. [Filing No. 179 at 3.] Plaintiffs argue that these portions constitute expert opinion testimony, which Defendants were required to, but did not, disclose to Plaintiffs. [Filing No. 179 at 3-15 (citing Federal Rule of Civil Procedure 26(a)).] Defendants acknowledge that they never disclosed Dr. Fisher as an expert witness, but they contend that they were not required to do so. [Filing No. 180 at 6-8.] 1. Federal Rule of Civil Procedure 26 Under Fed. R. Civ. P. 26(a)(2)(A), “a party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705.” This disclosure, depending on the circumstances, must be accompanied either by a written report or a statement including the subject matter and a summary of the facts and opinions on which the witness is expected to testify. Fed. R. Civ. P. 26(a)(2)(B), (C). If a party fails to timely
2

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provide information required by Rule 26(a), “the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). The Seventh Circuit has held that the threat and availability of exclusion “put[s] teeth into the rule.” Salgado by Salgado v. Gen. Motors Corp., 150 F.3d 735, 742 n.6 (7th Cir. 1998).
While Defendants acknowledge that they never disclosed Dr. Fisher as an expert witness, they argue that Rule 26 implicitly includes a disclosure exception in circumstances where a codefendant has disclosed the requisite information. [Filing No. 180 at 6-8.] They contend that because Wexford properly disclosed Dr. Fisher as one of its expert witnesses, Defendants were not required to. [Filing No. 180 at 6-8.] Plaintiffs, on the other hand, stress that the language of Rule 26 creates no such exception. [Filing No. 179 at 7.] They also emphasize that the language of the Rule requires that a party must disclose a witness that “it”—meaning that party, not another party—may use at trial. [Filing No. 179 at 7.]
The Court agrees with Plaintiffs that Rule 26 does not create an implicit “co-defendant” exception to the disclosure requirement. The Court declines to read such a broad exception into the plain language of the Rule, and, in any event, a Committee Note accompanying the 1993 amendment to Rule 37(c) confirms that no such exception is implied. In discussing what may constitute a harmless violation of Rule 26, the Note identifies as a type of violation “the failure to list as a trial witness a person so listed by another party.” Advisory Committee Note, Fed. R. Civ. P. 37(c). In other words, the Note contemplates that a co-defendant’s non-disclosure would be a violation of Rule 26.
Defendants argue that, notwithstanding the Rule’s plain language, the Seventh Circuit created such an exception in S.E.C. v. Koenig, 557 F.3d 736 (7th Cir. 2009). In Koenig, the
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defendant hired an expert witness who prepared a report and was subject to deposition. Koenig, 557 F.3d at 743. The defendant ultimately did not present the expert’s report or testimony at trial, but plaintiff SEC introduced the testimony via a video deposition. Id. The defendant argued that the district court erred in allowing that testimony to be introduced, because the SEC did not include the expert on its list of potential witnesses. Id. The Seventh Circuit disagreed. Id. at 744. The court stressed that the Rule “facilitates preparation for expert testimony,” and that “[d]isclosure…permits lawyers to ask for other experts’ views on the soundness of the conclusions reached by the testimonial experts.” Id. According to the court, none of those considerations required notice regarding the SEC’s desire to call the expert witness, because the defendant’s legal team had the report, had been at the deposition, “and for all [the court knows] had a platoon of non-testimonial experts analyze everything [the expert] wrote and said…” Id. Relying heavily on the fact that the disclosure had been made by the adverse party, the court concluded that whether an adverse party “wants to question an expert whose identity has already been revealed is not a subject within the scope of Rule 26(a)(2).” Id. at 744.
The Court does not read Koenig as establishing the broad exception advocated by Defendants. Koenig’s reasoning relied heavily on the adverse status of the disclosing and nondisclosing parties, stressing that the purpose of Rule 26 is to allow lawyers “who are not themselves experts in…bodies of specialized knowledge…to prepare intelligently for trial,” and to allow them to “ask for other experts’ views on the soundness of the conclusions reached by the testimonial experts.” Koenig, 557 F.3d at 744. The Seventh Circuit reasoned that these concerns are not implicated when an expert report is used by the originating party’s adversary, because the originating party always has notice and the opportunity to scrutinize the findings of its own expert. Here, of course, the situation is not on all fours with Koenig. Defendants are not seeking to
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introduce expert testimony generated by Plaintiffs themselves, but instead are seeking to introduce expert testimony originated by a co-defendant.
In this case, the fact that the expert testimony was disclosed by a co-defendant matters, and it highlights why the court’s conclusion in Koenig does not extend to these circumstances. While the Koenig court concluded that concerns regarding the ability to prepare intelligently for trial and to ask for other expert’s views were not implicated, they are squarely implicated here. Several months prior to the close of discovery, Wexford (the party that disclosed Dr. Fisher, its own employee, as an expert witness) reached a settlement agreement with Plaintiffs. [Filing No. 142 at 1.] Therefore, while discovery was ongoing, both Defendants and Plaintiffs had every indication that Wexford would no longer be a defendant in the event that this case proceeded to trial. [Filing No. 145 (setting close of discovery at March 16, 2018); Filing No. 142 at 1 (January 23, 2018 settlement conference in which agreement was reached).] Plaintiffs contend that, based on the settlement agreement and the fact that Defendants gave no indication that they intended to rely on the testimony of a putative non-party’s expert witness, they conducted no further discovery into Dr. Fisher’s background, opinions, positions, or credibility. [Filing No. 179 at 11.] The Court declines to extend the holding in Koenig to these dissimilar facts. And, based upon the text of the Rule and the Advisory Committee Note cited above, the Court concludes that Defendants’ failure to disclose Dr. Fisher as an expert witness constitutes a violation of Rule 26.
2. Exclusion under Federal Rule of Civil Procedure 37 Rule 37(c)(1) makes exclusion of the witness the presumed remedy, except where the failure to disclose is “substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1); Finley v. Marathon Oil Co.,75 F.3d 1225, 1230 (7th Cir. 1996). Defendants argue that any failure to disclose in this instance was harmless, because (1) Dr. Fisher is disclosed on both Plaintiffs’ and
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Defendants’ witness lists, and (2) the settlement agreement requires that Wexford furnish witnesses for deposition and trial. [Filing No. 180 at 8.] Plaintiffs argue that they were harmed by the failure to disclose because they had no reason to scrutinize the testimony of a putative nonparty’s expert witness, and they therefore did not obtain any rebuttal reports or conduct any further investigation as to Dr. Fisher.
The burden to show that non-disclosure was harmless is on the party who failed to disclose the relevant witness. See Finley, 75 F.3d at 1230. “A district court need not make explicit findings concerning the existence of a substantial justification or the harmlessness of a failure to disclose.” David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003). Rather, several factors should guide the Court’s consideration: (1) unfair surprise or prejudice to the opposing party; (2) the offending party’s opportunity to cure such prejudice; (3) likelihood of trial disruption; and (4) any bad faith motivating the offending party’s tardy disclosure. Id.; see also McAtee v. Buca Restaurants, Inc., 2011 WL 6016648, at *3 (S.D. Ind. Dec. 2, 2011).
In the typical case, a defendant’s failure to disclose an expert witness previously identified by another defendant may well be harmless. See Koenig, 557 F.3d at 744. But in this case, Plaintiffs contend that they were harmed by the failure, because prior to the close of discovery, the parties had every indication that Wexford would not proceed to trial. Plaintiffs contend that they proceeded with discovery based on that settlement, and therefore did not conduct rebuttal discovery as to expert testimony by Dr. Fisher. Defendants seem to argue that Plaintiffs should have proceeded with discovery under the assumption that all of Wexford’s previously disclosed expert witnesses would be used by the remaining defendants. Of course, such an assumption would generally place plaintiffs under a significant burden to conduct expensive and timeconsuming expert discovery that may prove unnecessary or irrelevant. And in this case, such a
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requirement would undermine much of the litigation efficiency that weighed in favor of settlement in the first place. While Dr. Fisher appears on both Plaintiffs’ and Defendants’ witness lists, he is not disclosed as an expert witness, and his appearance as a lay witness would be expected, given his status as Wexford employee. And although the settlement agreement requires Wexford to participate in any ongoing discovery, it only specifies that Wexford “furnish witnesses for deposition” and “cooperate in good faith with future and ongoing discovery requests.”
Quite simply, when the settlement became known, Defendants could have avoided any harm by notifying Plaintiffs that they nonetheless intended to utilize the testimony of Wexford’s expert witnesses. Defendants have not shown that their failure to disclose was substantially justified or harmless, and the proper remedy under Rule 37 is exclusion of the “expert” portions of Dr. Fisher’s testimony, both for purposes of these Motions and at trial.2
Having concluded that exclusion of the expert testimony is appropriate, the Court must determine which statements are subject to exclusion. The parties appear to agree that Dr. Fisher has provided both lay and expert testimony. Federal Rule of Evidence 701 governs the admissibility of lay witness testimony, which, “as compared with opinions and inferences of experts[,] may not be based on scientific, technical, or other specialized knowledge within the scope of [Federal Rule of Evidence] 702.” Tribble v. Evangelides, 670 F.3d 753, 758-59 (7th Cir. 2012), as amended (Feb. 2, 2012). Lay opinion testimony “most often takes the form of a
2 In a footnote, Defendants contend that Plaintiffs “did not timely move to limit or exclude Dr. Fisher’s testimony at trial,” contending that any such motions were due by July 2, 2018. [Filing No. 180 at 1.] The exclusion sanction imposed by Rule 37(c) is self-executing, and a separate motion under Rule 26(a)(2)(A) is not required. See Fed. R. Civ. P. 37, 1993 Advisory Committee Note. Plaintiffs raised their objections to Dr. Fisher’s testimony in their response brief on June 21, 2018, before the July 2 deadline identified by Defendants. [Filing No. 179.] Plaintiffs specified that they did so within their brief, and not through a collateral motion to strike, in order to comply with Local Rule 56-1(i). [Filing No. 179 at 3.] Defendants offer no explanation as to how Plaintiffs’ objections are untimely, and the Court identifies nothing untimely about them.
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summary of firsthand sensory observations and may not provide specialized explanations or interpretations that an untrained layman could not make if perceiving the same acts or events.” Id. (internal quotation and citation omitted). Federal Rule of Evidence 702 addresses expert opinion testimony, which “results from a process of reasoning which can be mastered only by specialists in the field.” United States v. Christian, 673 F.3d 702, 708-09 (7th Cir. 2012). Expert opinion “need not be based on first-hand knowledge of the facts of the case. It brings to an appraisal of those facts a scientific, technological or other specialized knowledge that the lay person cannot be expected to possess.” U.S. v. Conn, 297 F.3d 548, 554 (7th Cir. 2002).
Plaintiffs identify fourteen of Defendants’ statements of material fact as being supported only by Dr. Fisher’s expert testimony, and they argue that these statements must therefore be excluded from consideration. [Filing No. 179 at 3-5.] Defendants do not offer specific argument as to any individual statements, instead contending generally that Dr. Fisher’s expert testimony should not be excluded. The Court declines to exclude Defendants’ statement of fact 104, as the Court concludes that it is a statement of lay witness knowledge, and not an expert opinion. [See Filing No. 174 at 21 (“Dr. Fisher is not aware of any state that is following AASLD guidance without a level of prioritization.”).]
But the Court concludes that thirteen of the statements identified by Plaintiffs should be excluded as expert opinion testimony, as they are based upon the sort of specialized medical knowledge, broad generalizations, and abstract conclusions that are all hallmarks of expert testimony. See, e.g., Banister v. Burton, 636 F.3d 828, 832 (7th Cir. 2011); Walsh v. Chez, 583 F.3d 990, 992-94 (7th Cir. 2009). The following statements are therefore excluded:
• “35. A small amount of scar tissue in the liver does not affect the liver’s function. It’s a large organ. With extensive fibrosis, which leads to cirrhosis when there’s extensive scarring in the liver, the impairment of the liver at that time will cause
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clear issues with the body.” [Filing No. 174 at 7 (cited by Plaintiffs at Filing No. 179 at 4).]
• “36. Severe extrahepatic manifestations in patients with chronic HCV are rare.” [Filing No. 174 at 7 (cited by Plaintiffs at Filing No. 179 at 4).]
• “37. One study showed that over a twenty year period, 15.3 percent of patients who were staged at Fibrosis level 0 or 1 progressed to state 3 or 4.” [Filing No. 174 at 7 (cited by Plaintiffs at Filing No. 179 at 4).]
• “42. Treatment for patients with Hepatitis C includes monitoring, patient education, evaluation by clinicians, and laboratory analysis.” [Filing No. 174 at 8 (cited by Plaintiffs at Filing No. 179 at 4).]
• “43. Use of a DAA to treat chronic HCV is not appropriate in all circumstances because of contraindications, or other reasons, why it should not be utilized. Those additional factors can include: allergic reactions, pregnancy, patients who could not complete treatment before their release date, patients with a life expectancy of less than 18 months, compliance, IV drug and alcohol use, and tattoos.” [Filing No. 174 at 8 (cited by Plaintiffs at Filing No. 179 at 4).]
• “101. The AASLD guidance is basically saying that all individuals should be treated [with DAAs] except for small exceptions. However, there are always individual circumstances where a treatment guideline, which is meant to give guidance, may not be applicable to an individual patient.” [Filing No. 174 at 20 (cited by Plaintiffs at Filing No. 179 at 4).]
• “102. Likewise, the standard of care is standard of care, and it should apply to different environments, but there may be different influences of why the care would be different in a different environment. Each individual case is different. So guidelines guide general treatment, they don’t guide the course for any one individual. You don’t treat according to what a guideline says. You treat…according to what the individual’s circumstances is. It’s [sic] individual clinical decisions. Because, every patient case is unique and different, and that’s part of the considerations of the FBOP guidance that each case is unique.” [Filing No. 174 at 20 (cited by Plaintiffs at Filing No. 179 at 4).]
• “103. The AASLD and FBOP are among many guidelines regarding the treatment of HCV. There are also guidelines from the European Association of the Study of Liver Disease, the World Health Organization, and others. Each guideline views HCV a little bit differently, as whenever you get a committee together, they will look at the data somewhat differently and may come up with a different guideline based on it.” [Filing No. 174 at 20 (cited by Plaintiffs at Filing No. 179 at 5).]
• “105. Fisher would not recommend a blanket policy of treating all offenders who have chronic Hepatitis C, except those excluded from the AASLD guidance,
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because each individual case is different[,] and there may be other issues with therapy.” [Filing No. 174 at 21 (cited by Plaintiffs at Filing No. 179 at 5).]
• “107. In evaluating the standard of care, a consideration is what the community is actually doing, which would include reviewing prioritization criteria used nationwide. Prioritizing treatment based on APRI score is used nationwide and has not been developed solely by Indiana.” [Filing No. 174 at 21 (cited by Plaintiffs at Filing No. 179 at 5).]
• “108. Dr. Fisher believes that the standards and procedures currently in place in Indiana are consistent with the applicable standard of care, based upon HCSD 3.09 and the prioritization guidance from the Federal Bureau of Prisons.” [Filing No. 174 at 21 (cited by Plaintiffs at Filing No. 179 at 5).]
• “109. All offenders in IDOC identified as HCV antibody positive are being treated…by being seen regularly, chronic care clinics, having blood work monitored, being educated about their disease…” [Filing No. 174 at 21 (cited by Plaintiffs at Filing No. 179 at 5).]
• “110. Chronic HCV is influenced by both static and modifiable factors, which permit the disease to be managed by changes in patient behavior through monitoring and counseling. Monitoring, patient education, and discussion of risk strategies are all treatment for HCV.” [Filing No. 174 at 21-22 (cited by Plaintiffs at Filing No. 179 at 5).]
These statements are excluded for the purposes of the cross-motions for summary judgment and
all subsequent proceedings, and any expert opinion testimony by Dr. Fisher is excluded in any
subsequent proceedings.
B. Expert Testimony of Dr. William VanNess
Plaintiffs also move to exclude the expert testimony of Dr. William VanNess, IDOC’s
Chief Medical Officer, on the basis that Defendants never disclosed him as an expert witness. See
Fed. R. Civ. P. 26(a), 37(c)(1). Defendants respond that they are not seeking to introduce any
expert testimony by Dr. VanNess, and that the statement of material fact identified by Plaintiffs
does not constitute expert testimony. The challenged statement is as follows:
Of patients with chronic HCV, 10 to 20 percent over 20 to 30 years may well develop cirrhosis, and so, again, the other’s [sic] don’t. They get no sequelae and may die of a heart attack or a stroke or something else over 20 or 30 years and not develop any cirrhosis. So, in my mind the key is to be able to evaluate the patient
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to know when to intervene with treatment, not to treat everybody, but to intervene at the appropriate time. [Filing No. 174 at 15 (cited by Plaintiffs at Filing No. 179 at 4).] Defendants contend that this statement does not constitute an expert opinion because it is “a recitation of a generally accepted statistic,” and because a lay person knows that “over a twenty to thirty year period a person may die of a heart attack, stroke, or something other than Hepatitis C.” [Filing No. 180 at 6.] They also argue that the last portion of the statement is not expert testimony, because it concerns only Dr. VanNess’s “use of these facts in determining his approach toward HCSD 3.09.” [Filing No. 180 at 6.] The Court agrees with Plaintiffs that this statement constitutes expert testimony. The first portion of this statement is based on applying to the facts of this case “an appraisal of those facts a scientific, technological or other specialized knowledge that the lay person cannot be expected to possess.” U.S. v. Conn, 297 F.3d 548, 554 (7th Cir. 2002). While the statistic cited by Dr. VanNess may be widely accepted in the medical field, lay persons certainly would not be expected to possess that specialized knowledge. And that testimony depends on broad generalizations regarding the progression of Hepatitis C and abstract conclusions regarding its treatment. See Tribble, 670 F.3d at 758 (“Broad generalizations and abstract conclusions are textbook examples of opinion testimony.”). Defendants acknowledge that Dr. VanNess may only provide lay opinion testimony, and this statement does not fall within that characterization. It is therefore excluded. C. Miscellaneous Evidentiary Objections Plaintiffs object to Defendants’ statement of material fact number six on the basis that it constitutes inadmissible hearsay. [Filing No. 179 at 2.] That statement is as follows: “During a September 2017 meeting between Wexford and IDOC, Dr. Fisher and John Dallas told IDOC that ‘we feel like we should treat more offenders at this point,’ which Dr. VanNess approved of.”
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[Filing No. 174 at 3.] Defendants argue that this statement is not hearsay, because it is not being introduced to prove the truth of the matter asserted, but rather, to demonstrate its effect on the listener, Dr. VanNess. The Court agrees that, to the extent that Defendants seek to introduce the quote within that statement for the truth of the matter it asserts, it is inadmissible hearsay under Federal Rule of Evidence 802. To the extent that they seek to introduce the statement for another purpose, the Court will evaluate it at that juncture.
Plaintiffs object to two of Defendants’ statements of material fact as being inadmissible, contending that they are not based upon the personal knowledge of the speaker and lack foundation. [Filing No. 179 at 2.] Defendants respond that those statements are admissible, because a person’s understanding is something within his own personal knowledge. [Filing No. 180 at 4-5.] Those statements are as follows:
• “8. Dr. Van Ness’s understanding is that Wexford nevertheless began treating more offenders with DAAs.” [Filing No. 174 at 3.]
• “20. Plaintiff Douglas Smith understands that the policy grants authority to prescribe DAA medications for HCV to the medical provider.” [Filing No. 174 at 5.] Federal Rule of Evidence 602 states that a “witness may testify to a matter only if evidence
is introduced sufficient to support a finding that the witness has personal knowledge of the matter.” Fed. R. Evid. 602. As to the first statement, to the extent that it is being introduced to show that Wexford actually was treating more inmates, Defendants offer no evidence as to how Dr. VanNess came to that understanding or whether he had any actual knowledge of what occurred. See Empress Casino Joliet Corp. v. Johnston, 763 F.3d 723, 730 (7th Cir. 2014) (upholding exclusion of statement that it was a witness’s “understanding ... [that] promises [were] made to support this bill[,]” and concluding that “[n]ot only is that comment an out-of-court statement offered to prove the truth of the matter asserted; the underlying sentiment is not based on personal knowledge.”);
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Maier v. Lucent Techs., Inc., 120 F.3d 730, 737 (7th Cir. 1997) (upholding exclusion of testimony based on witness’s “understanding” where there was no evidence of underlying personal knowledge). It is Defendants’ burden to introduce evidence sufficient to show personal knowledge, and they have not done so here. The same is true as to the second statement. Those statements, therefore, are both excluded.
II. LEGAL STANDARD A motion for summary judgment asks the Court to find that a trial is unnecessary because there is no genuine dispute as to any material fact and, instead, the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). As the current version of Rule 56 makes clear, whether a party asserts that a fact is undisputed or genuinely disputed, the party must support the asserted fact by citing to particular parts of the record, including depositions, documents, or affidavits. Fed. R. Civ. P. 56(c)(1)(A). A party can also support a fact by showing that the materials cited do not establish the absence or presence of a genuine dispute or that the adverse party cannot produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(B). Affidavits or declarations must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant is competent to testify on matters stated. Fed. R. Civ. P. 56(c)(4). Failure to properly support a fact in opposition to a movant’s factual assertion can result in the movant’s fact being considered undisputed, and potentially in the grant of summary judgment. Fed. R. Civ. P. 56(e). In deciding a motion for summary judgment, the Court need only consider disputed facts that are material to the decision. A disputed fact is material if it might affect the outcome of the suit under the governing law. Williams v. Brooks, 809 F.3d 936, 941-42 (7th Cir. 2016). In other words, while there may be facts that are in dispute, summary judgment is appropriate if those facts
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are not outcome-determinative. Montgomery v. American Airlines Inc., 626 F.3d 382, 389 (7th Cir. 2010). Fact disputes that are irrelevant to the legal question will not be considered. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
On summary judgment, a party must show the Court what evidence it has that would convince a trier of fact to accept its version of the events. Gekas v. Vasilades, 814 F.3d 890, 896 (7th Cir. 2016). The moving party is entitled to summary judgment if no reasonable fact-finder could return a verdict for the non-moving party. Nelson v. Miller, 570 F.3d 868, 875 (7th Cir. 2009). The Court views the record in the light most favorable to the non-moving party and draws all reasonable inferences in that party’s favor. Skiba v. Illinois Cent. R.R. Co., 884 F.3d 708, 717 (7th Cir. 2018). It cannot weigh evidence or make credibility determinations on summary judgment because those tasks are left to the fact-finder. Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014). The Court need only consider the cited materials, Fed. R. Civ. P. 56(c)(3), and the Seventh Circuit Court of Appeals has repeatedly assured the district courts that they are not required to “scour every inch of the record” for evidence that is potentially relevant to the summary judgment motion before them. Grant v. Trustees of Indiana University, 870 F.3d 562, 573-74 (7th Cir. 2017). Any doubt as to the existence of a genuine issue for trial is resolved against the moving party. Ponsetti v. GE Pension Plan, 614 F.3d 684, 691 (7th Cir. 2010).
The existence of cross-motions for summary judgment does not imply that there are no genuine issues of material fact. R.J. Corman Derailment Servs., LLC v. Int’l Union of Operating Engineers, Local Union 150, AFL-CIO, 335 F.3d 643, 647 (7th Cir. 2003).
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III. BACKGROUND
A. Hepatitis C Hepatitis C is a contagious viral disease that causes inflammation of the liver and affects other parts of the body. [Filing No. 166-1 at 2.] HCV infection is generally transmitted through blood or blood products, and it occurs in two stages: acute and chronic. [Filing No. 100-1 at 2.] The acute infection phase spans the first six months of exposure to the virus. [Filing No. 100-1 at 2.] Approximately 15-25% of infected individuals self-resolve during this period and do not develop chronic HCV infection. [Filing No. 100-1 at 2.] Approximately six months after infection, the remaining 75-85% of infected persons move into the chronic phase. [Filing No. 1001 at 2.] Chronic HCV infection does not self-correct, and infected individuals will remain infected for life if not treated with appropriate medication. [Filing No. 100-1 at 2-3.] Individuals suffering from chronic HCV may be symptom-free, or they may suffer from symptoms such as fatigue, joint pain, nerve pain, skin disorders, jaundice, ascites (fluid accumulation in the abdomen), hepatic encephalopathy (confusion due to high ammonia levels), gastro-intestinal bleeding, and liver cancer. [Filing No. 100-1 at 2.] Absent treatment, HCV will inevitably progress through all of the stages of infection, leading to cirrhosis of the liver.3 [Filing No. 166-4 at 21-25.] Within twenty to thirty years of chronic infection, between five and twenty percent of HCV-infected persons will develop cirrhosis of the liver, and one to five percent of people will die from the consequences of chronic HCV. [Filing No. 100-1 at 3.] That progression
3 The term “cirrhosis” refers to “any of a group of chronic diseases of the liver characterized by loss of normal lobular architecture with fibrosis, and by destruction of parenchymal cells and their regeneration to form nodules.” Dorland’s Medical Dictionary, online version available at www.dorlands.com, last accessed August 29, 2018.
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may occur more quickly in individuals who are older at the time of infection, obese, have other viral diseases, or are subject to other factors that speed progression in individual cases. [Filing No. 166-4 at 17.] Even before HCV reaches an advanced stage, it can cause harm such as kidney failure, diabetes, decreased cognitive function, joint pain, nerve damage, and other conditions. [Filing No. 166-1 at 2.] Chronic HCV is the leading cause of cirrhosis of the liver and is the most common reason for liver transplantation in the United States. [Filing No. 100-1 at 3.]
Generally, doctors measure a patient’s degree of fibrosis, or scarring of the liver, to determine what stage of infection a patient is experiencing. [Filing No. 166-4 at 18.] The progression of fibrosis is described in progressive stages ranging from zero, where there is no fibrosis present, to four, where advanced fibrosis (cirrhosis) is present. [Filing No. 166-4 at 18.] There are several methods for measuring the degree of fibrosis. [Filing No. 166-4 at 18.] One histological method, called a METAVIR score, requires a liver biopsy. [Filing No. 166-4 at 18.] Another method, the APRI score, is based on biomarkers and uses routinely available blood tests to estimate fibrosis levels. [Filing No. 166-4 at 22.] An APRI score can identify advanced fibrosis in stages three and four, but its performance at lower levels is less accurate. [Filing No. 166-4 at 22 (performance at lower levels is “not great”).] HCV progression can also be measured by a device called a Fibroscan, which non-invasively measures liver stiffness. [Filing No. 166-4 at 18.]
Chronic HCV is a curable condition. [Filing No. 100-1 at 3.] Direct-Acting Antiviral oral medications (“DAAs”) cure HCV by preventing the virus from replicating, eventually eliminating it from the body. [Filing No. 166-4 at 30.] Treatment generally lasts 12 weeks, but in patients who do not have advanced fibrosis, some DAA regimens allow for treatment lasting 8 weeks. [Filing No. 166-4 at 34.] Treatment in some patients in advanced stages can take up to 24 weeks. [Filing No. 166-4 at 34-35.] Several different DAAs have been approved by the Food and Drug
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Administration for treatment of HCV, [Filing No. 100-1 at 4], and the current cure rate for patients treated with DAAs is nearly 100 percent. [Filing No. 166-4 at 38.] Treatment options prior to the development of DAA drugs involved the use of a three-drug combination, which was often ineffective and was marked by significant side effects including anemia, nausea, bone pain, joint pain, anxiety, depression, memory loss, and death. [Filing No. 166-1 at 3.]
In order to provide healthcare professionals with timely guidance regarding the treatment of HCV, the Infectious Diseases Society of America (“IDSA”) and the American Association for the Study of Liver Diseases (“AASLD”) convened a panel of experts known as the HCV Guidance Panel (the “Panel”). [Filing No. 166-1 at 3.] The Panel’s guidance is set forth in a document called “HCV Guidance: Recommendations for Testing, Managing, and Treating Hepatitis C” (the “AASLD Guidance”), which is available to the public through the Panel’s website. [Filing No. 166-1 at 3; www.hcvguidelines.org.] The Panel recommends treatment with DAAs for all patients with chronic HCV infection, except those with short life expectancies that cannot be remediated by treatment, by transplantation, or by other directed therapy. [Filing No. 166-1 at 3.] The Panel’s guidance is the national standard of care with respect to the treatment of patients with HCV, [Filing No. 166-1 at 4], and the Centers for Disease Control encourages healthcare professionals to follow the Panel’s recommendations, [Filing No. 100-1 at 4]. The most recent update to that guidance includes a section addressing HCV testing and treatment in correctional settings, and it recommends that individuals in prison receive treatment according to the AASLD Guidance. [Filing No. 183-1 at 3.]
DAAs are the only effective treatment for HCV, [Filing No. 166-4 at 60], and there is no medical reason to ration the use of DAAs, [Filing No. 166-1 at 4]. Delaying treatment for chronic HCV until patients have developed more advanced stage liver fibrosis has been demonstrated to
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result in two to five times higher rates of liver-related mortality, as compared to those offered treatment at an earlier stage. [Filing No. 100-1 at 6.] Curing chronic HCV has been associated with reduced risk of liver cancer by 83.5% and overall death by 74%. [Filing No. 100-1 at 7.] Curing chronic HCV is also associated with a decreased need for liver transplantation, and decreases patients’ risk of dying from diseases other than HCV. [Filing No. 100-1 at 6.] Patients cured of HCV also report improvements in their quality of life. [Filing No. 100-1 at 5.]
B. IDOC’s HCV Treatment Policy IDOC contracts with Wexford to provide medical services to individuals incarcerated in IDOC facilities, and Dr. VanNess is responsible for overseeing the quality of the medical vendor. [Filing No. 166-5.] The contract requires Wexford to abide by IDOC’s health care directives, including “Health Care Services Directive 3.09” (“HCSD 3.09”). [Filing No. 166-5 at 2; Filing No. 166-6.] HCSD 3.09 was drafted by Dr. VanNess, with the assistance of Ms. Gipson. [Filing No. 166-9 at 40; Filing No. 166-9 at 91.] HCSD 3.09 requires that all incoming and returning inmates be screened for the presence of the HCV antibody “in accordance with State statute.” [Filing No. 166-6 at 2.] It also requires that a baseline clinical evaluation be performed for all inmates diagnosed with HCV within 90 days of arrival. [Filing No. 166-6 at 2.] It then mandates that health services staff “shall manage offenders with HCV in accordance with the Federal Bureau of Prison’s [sic] ‘Evaluation and Management of Chronic Hepatitis C Virus (HCV) Infection.’” [Filing No. 166-6 at 2.] The contract requires Wexford to place $1.5 million in escrow to provide exclusively for HCV treatment, and any expenditure over that amount must be requested by IDOC’s Chief Medical Officer. [Filing No. 173-1 at 79; Filing No. 100-7 at 7.] The Federal Bureau of Prisons Guidance (“FBOP Guidance”), in turn, recommends the use of an APRI score to determine the degree of fibrosis present in each patient. [Filing No. 166-12
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at 8.] The FBOP Guidance then sets out priority levels for treatment, ranging from one to three. [Filing No. 166-12 at 13.] The Guidance identifies “Level 1” inmates as a high priority for treatment, and this level includes individuals with an APRI score of 2.0 or higher, or stages three or four fibrosis on a liver biopsy. [Filing No. 166-12 at 13.] “Level 2” inmates are an intermediate priority for treatment, and that category includes those with an APRI score of 1.0 or higher, or stage two fibrosis on a liver biopsy. [Filing No. 166-12 at 13.] Inmates in “Level 3” are those with an APRI score of less than 1.0, or stage zero or one fibrosis on a liver biopsy, and they are considered low priority for treatment. [Filing No. 166-12 at 13.] The FBOP Guidance states that exceptions to those criteria “will be made on an individual basis and will be determined primarily by a compelling or urgent need for treatment, such as evidence of rapid progression of fibrosis, or deteriorating health status from other comorbidities.” [Filing No. 166-12 at 13.] Dr. VanNess was aware at the time of the drafting of HCSD 3.09 that the prioritization policy differs from the AASLD Guidance, which constitutes the nationally accepted standard of care for HCV. [Filing No. 166-8 at 98-100.]
Wexford is required to maintain a log of inmates infected with HCV. [Filing No. 166-10 at 12; Filing No. 166-5 at 10.] As of September 2017, there were 3,476 inmates identified as suffering from chronic HCV, including plaintiffs Michael Stafford, Douglas Smith, and Charles Smith. [Filing No. 166-7 at 1-2.] Of those inmates, 122 had APRI scores of greater than 2.0, and 483 had APRI scores of greater than 1.0. [Filing No. 166-7 at 2.] Between April 1, 2017 (the date of Wexford’s contract commencement) and January 19, 2018, a total of 41 inmates had either completed or were receiving treatment with DAAs. [Filing No. 167 at 9.]
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C. Procedural History The named Plaintiffs filed the instant suit on behalf of themselves and similarly situated present and future IDOC inmates, claiming that IDOC’s failure to treat their chronic HCV violates the Eighth Amendment to the United States Constitution, the Americans with Disabilities Act (“ADA”), and the Rehabilitation Act. [Filing No. 39.] The Court certified a class of “[a]ll current and future prisoners in IDOC custody who have been diagnosed, or will be diagnosed, with chronic HCV.” [Filing No. 154 at 17.] Plaintiffs have filed a Motion for Summary Judgment on their deliberate indifference claim, and Defendants have cross-moved for summary judgment on all claims. [Filing No. 166; Filing No. 173.] Those Motions are now ripe for the Court’s review.
IV. DISCUSSION Plaintiffs move for summary judgment on their Eighth Amendment claim, and Defendants cross-move for summary judgment as to that claim. Defendants also move for summary judgment on Plaintiffs’ ADA and Rehabilitation Act claims, which Plaintiffs oppose. The Court addresses each claim in turn. A. Eighth Amendment: Deliberate Indifference The Eighth Amendment imposes upon prison officials a duty to provide humane conditions of confinement, and it “safeguards the prisoner against a lack of medical care that may result in pain and suffering which no one suggests would serve any penological purpose.” Roe v. Elyea, 631 F.3d 843, 856-57 (7th Cir. 2011) (internal quotation and citation omitted). Accordingly, “deliberate indifference to serious medical needs of a prisoner constitutes the unnecessary and wanton infliction of pain forbidden by the Constitution.” Roe, 631 F.3d at 857 (internal quotation and citation omitted). In order to establish deliberate indifference, an inmate must satisfy both an
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objective and a subjective element. Id. The Court addresses each in turn, but first addresses a class certification issue.
1. Class Definition In the case of a class certified under Rule 23, “the judge remains free to modify it in the light of subsequent developments in the litigation.” Gen. Tel. Co. of SW v. Falcon, 457 U.S. 147, 160 (1982). The parties’ summary-judgment briefing highlights a distinction that may be appropriately addressed within the definition of the Plaintiff class. At the class certification stage, the Court assumed, and Plaintiffs confirm here, that they seek treatment with DAAs only for those Plaintiffs for whom treatment is not medically contraindicated. [Filing No. 179 at 18 (“Plaintiffs seek treatment with DAAs, the only effective, evidence-based cure for their condition, unless treatment is contraindicated.”) (emphasis in original).] In order to clarify the proper scope of the relief at issue, the class is hereby modified to include the following individuals: all current and future prisoners in IDOC custody who have been diagnosed, or will be diagnosed, with chronic HCV, and for whom treatment with DAA medication is not medically contraindicated.
2. Objective Element: Sufficiently Serious Medical Need In the medical care context, an inmate satisfies the objective element of the deliberate indifference standard if he demonstrates that his medical need was sufficiently serious. Roe, 631 F.3d at 857. A medical need is considered sufficiently serious “if the inmate’s condition has been diagnosed by a physician as mandating treatment or…is so obvious that even a lay person would perceive the need for a doctor’s attention.” Id. A medical condition “need not be life-threatening to be serious; rather, it could be a condition that would result in further significant injury or unnecessary and wanton infliction of pain if not treated.” Id. And “the Eighth Amendment protects an inmate not only from deliberate indifference to his or her current serious health
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problems, but also from deliberate indifference to conditions posing an unreasonable risk of serious damage to future health.” Id. at 858 (emphasis in original).
Defendants appear to overlook the objective element, stating that “[d]eliberate indifference is a subjective standard,” and therefore do not address it in their briefing. [Filing No. 174 at 26.] Plaintiffs contend that the undisputed evidence establishes that HCV constitutes a serious medical condition, due to its risks both to current and future health. [Filing No. 167 at 19-20.]
The undisputed medical evidence establishes that individuals suffering from chronic HCV may experience symptoms such as fatigue, joint pain, nerve pain, skin disorders, jaundice, ascites, hepatic encephalopathy, gastro-intestinal bleeding, and liver cancer. Within twenty years of chronic infection, many individuals will develop cirrhosis of the liver, and between one and five percent of people will die from the consequences of chronic HCV. Physicians cannot predict with precision the rate at which progression will occur in individual patients. And even before HCV reaches an advanced stage, it can cause harm such as kidney failure, diabetes, decreased cognitive function, joint pain, nerve damage, and other conditions.
Based on this undisputed evidence, the Court concludes, as have many other courts that have considered the issue, that chronic HCV constitutes a serious medical condition. See, e.g., Hoffer v. Jones, 290 F. Supp. 3d 1292, 1299 (N.D. Fl. 2017); Parks v. Blanchette, 144 F. Supp. 3d 282, 314 (D. Conn. 2015); Hilton v. Wright, 928 F. Supp. 2d 530, 547-48 (N.D.N.Y. 2013).4
4 The Court notes that Defendants, in passing, raise one argument that could be construed as a challenge to the objective element of the standard. They argue in a single sentence, citing an Eighth Circuit case, that “with regard to HCV specifically, at least one Circuit Court has recognized that the question under the Eighth Amendment is…whether [HCV] presents a serious medical need for prompt treatment.” [Filing No. 174 at 29 (emphasis added).] The Court addresses the substance of this argument in a later section.
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3. Subjective Element: Defendants’ Cross-Motion for Summary Judgment To satisfy the subjective element, an “inmate must establish that prison officials acted with a sufficiently culpable state of mind to support liability under § 1983.” Roe, 631 F.3d at 857. An inmate need not show that prison officials “actually intended harm to befall him from the failure to provide adequate care. It is enough to show that the defendants knew of a substantial risk of harm to the inmate and disregarded the risk.” Id. (internal quotation and citations omitted). The entirety of the parties’ dispute regarding the deliberate indifference claim centers on whether Defendants knew of a substantial risk of harm to Plaintiffs and disregarded that risk. Plaintiffs’ argument in support of summary judgment is simple and straightforward: HCV can be cured with 12 weeks of oral medication, but currently only 41 people, or 1.2% of those inmates known to suffer from chronic HCV, have received any DAA treatment. [Filing No. 167 at 20-26.] And, Plaintiffs argue, Defendants have presented no medical justification for failing to treat that 98.8% of infected inmates. [Filing No. 167 at 20-26.] Defendants raise four substantive arguments in opposition to Plaintiffs’ Motion, and in support of their Cross-Motion, all in the service of the same general proposition: Plaintiffs are receiving all of the treatment that is medically required. The Court restates those arguments as follows: (a) that IDOC policy allows for individualized treatment decisions by Wexford physicians; (b) that the selection of one course of treatment over another does not constitute deliberate indifference; (c) that Plaintiffs are experiencing a permissible delay in treatment; and (d) that Plaintiffs’ claim depends on the faulty assertion that the standard of care requires the prescription of DAA medication to all chronic HCV patients. The Court addresses Defendants’
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arguments first, considering Plaintiffs’ responses in opposition, and then turns to Plaintiffs’ Motion.5
a. Role of HCSD 3.09 and FBOP Guidance: Individualized Treatment Defendants argue that their HCV treatment policy cannot form the basis of a deliberate indifference claim because, while the policy creates a generalized protocol for treatment, it also provides for individualized treatment assessments. [See, e.g., Filing No. 174 at 26 (“Plaintiffs cannot show that the Defendants, by drafting a policy that prioritizes treatment, but expressly authorizes the medical professionals to exercise their professional medical judgment as to the individualized circumstances of their patients, are deliberately indifferent to their serious medical needs.”).] There are two contentions embedded in Defendants’ quoted statement: (1) that any policy allowing for individualized assessment is per se constitutionally sufficient; and (2) that Wexford physicians—not IDOC policy—are responsible for treatment decisions, and therefore any resultant harm. In their first contention, Defendants suggest that the prioritization policy enshrined in HCSD 3.09 cannot be deliberately indifferent because the policy states that exceptions to the prioritization can be made on an individual basis. [Filing No. 166-12 at 13.] The Seventh Circuit has indicated that the use of treatment guidelines and protocols is not per se unconstitutional. See Roe, 631 F.3d at 860. In some circumstances, factors such as “administrative convenience” and the cost of treatment alternatives may be “permissible factors for correctional systems to consider in making treatment decisions.” Roe, 631 F.3d at 863; see also Johnson v. Doughty, 433 F.3d 1001, 1013-14 (7th Cir. 2006). But “the Constitution is violated when they are considered to the
5 Defendants’ briefing regarding the deliberate indifference claim proceeds in a somewhat streamof-consciousness manner, spanning nine pages and including no sub-headings or other indicators of specific arguments. The Court has done its best to identify and restate the arguments raised.
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exclusion of reasonable medical judgment about inmate health.” Roe, 631 F.3d 863 (emphasis in original); see also Johnson, 433 F.3d at 1013 (concluding that “medical personnel cannot simply resort to an easier course of treatment that they know is ineffective”).
Defendants have offered no evidence, or even any argument, that any medical basis underlies or supports the “prioritization” approach advocated by the FBOP Guidance and adopted by IDOC. And Plaintiffs’ undisputed evidence establishes that there is none. It is undisputed that treatment with DAA medication represents the medical standard of care for treatment of chronic HCV, regardless of the level of fibrosis or APRI score. [See, e.g., Filing No. 166-1 at 4 (Declaration of Dr. Raj Vuppalanchi) (“DAAs are the standard of care, regardless of fibrosis score…”); Filing No. 166-2 at 7 (Declaration of Dr. Suthat Liangpunsakul) (treatment with DAAs represents the medical standard of care).] The undisputed medical evidence establishes that physicians utilize assessments of the degree of fibrosis in order to accurately “stage” an individual’s disease, or to determine the appropriate length of treatment, but not to determine whether administration of medication is appropriate or medically indicated. [Filing No. 166-4 at 18; Filing No. 166-4 at 35; Filing No. 173-4 at 36; Filing No. 173-4 at 8-10.] Defendants raise some arguments regarding the appropriate use and timing of DAA treatment, which the Court addresses further in later sections. But, as relevant here, it is undisputed that there is no medical justification for dividing individuals into treatment categories based on the degree of fibrosis or the progression of their disease as determined by the APRI score. [Filing No. 166-1 at 4 (Dr. Vuppalanchi stating that “there is no medical reason to ration” the use of DAAs, and “delayed treatment is below the standard of care, is not medically defensible, and will cause harm”).]
In some “appropriate” circumstances “administrative convenience and cost may be permissible factors for correctional systems to consider in making treatment decisions….” Roe,
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631 F.3d at 863. And Plaintiffs contend that cost appears to be the biggest driver of IDOC’s HCV treatment policies, citing IDOC’s stated desire to remain within a $1.5 million annual budget for HCV treatment and the $25,000 expense to treat each patient with DAAs. [Filing No. 167 at 25.] But Defendants do not contend that the prioritization system was adopted on the basis of cost savings, and indeed they completely eschew cost as the motivating force. [See Filing No. 174 at 32 (“…the undisputed material facts establish that cost was not the deciding factor in determining IDOC policy.”).] Nor do Defendants argue that administrative convenience underlies the policy, and they have presented no evidence that the administration of oral DAA medication to a larger number of inmates would impose an untenable administrative burden that this policy was intended to prevent. Instead, Plaintiffs present undisputed evidence, including lay testimony from Dr. Fisher, Wexford’s Corporate Medical Director for Quality Management and Pharmacy, that inmates with HCV can be very effectively identified and treated while incarcerated, because they are in a controlled environment and under observation. [Filing No. 166-1 at 4-5; Filing No. 1664 at 49-50; Filing No. 166-8 at 80-81.]
Defendants offer only one rationale for the adoption of the prioritization policy, which the Court repeats in its entirety: “Dr. VanNess chose to adopt the FBOP guidelines for HCV because the FBOP approach ‘made sense to him’ in that ‘it was about the individual, about understanding the individual from a medical standard, having a good baseline, and then treating them as individuals based on all the parameters that go into their care. Everybody’s different.’” [Filing No. 174 at 15 (citing Filing No. 173-1 at 27-28).] This explanation, to state it plainly, provides no rational support for the adoption of HCSD 3.09. If Defendants’ primary concern were the individualized treatment of each inmate for his or her HCV, no categorization or prioritization would be necessary. Indeed, prioritization is more a foe to individualized treatment than a friend.
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Without the prioritization system, each individual would be treated without reference to a treatment category, but instead based solely on his own symptoms and medical presentation.
In their “Statement of Material Facts Not in Dispute,” Defendants also state that “[p]rioritization of treatment for offenders with Hepatitis C is typically followed in the world of corrections.” [Filing No. 19 at 38.] It is not clear whether Defendants include this statement of fact as a possible justification for the policy, but the widespread usage of any given policy does not itself provide support for the policy’s compliance with constitutional requirements. While Defendants seem to suggest that the FBOP Guidance is entitled to some special consideration, perhaps akin to the status of expert medical testimony, there is no evidentiary foundation to afford it such treatment.6
Finally, while Defendants rely heavily on the role of “individualized treatment” decisions allowed for within the FBOP Guidance, the Guidance makes clear that the priority criteria govern, and that deviations from them are considered “exceptions.” The individualized assessment component of the Guidance is described in a footnote, reproduced below:

6 The Court notes here that unlike the Federal Bureau of Prisons, other large, federal public

institutions have taken a decidedly different approach to HCV treatment. Dr. Liangpunsakul’s

undisputed testimony is that, in his experience treating HCV patients through the Veterans Affairs

Administration, the treatment team (comprised of two physicians and three pharmacists) has

always recommended treatment with DAA medication for individuals for whom treatment is not

medically contraindicated, and every individual has received that treatment. [Filing No. 173-4 at

13.] The Court also takes judicial notice of a letter sent by the Centers for Medicare and Medicaid

Services to their state counterparts in 2015, expressing concern that “some states are restricting

access to DAA HCV drugs contrary to the statutory requirements of [the Social Security Act] by

imposing conditions for coverage that may unreasonably restrict access to these drugs. For

example, several state Medicaid programs are limiting treatment to those beneficiaries whose

extent of liver damage has progressed to metavir fibrosis score F3, while a number of states are

requiring metavir Fibrosis scores of F4.” The letter also refers states to the AASLD Guidance.

Available

at

https://www.medicaid.gov/medicaid-chip-program-information/by-

topics/prescription-drugs/downloads/rx-releases/state-releases/state-rel-172.pdf, last accessed

September 12, 2018.

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[Filing No. 166-12 at 13.] Defendants seek to minimize the role of the priority criteria in favor of a physician’s ability to make individualized assessments, but the Guidance itself anticipates that those individualized decisions will constitute “exceptions” to the rule which must be supported by “compelling” or “urgent” needs. Moreover, Defendants present no evidence that physicians do in practice deviate from the priority groups in their determinations of who, in the language of the FBOP Guidance, will be “considered” for treatment. [Filing No. 166-12 at 12.]
As described above, as of September 2017, 3,476 inmates were identified as suffering from chronic HCV. As of that date, 122 inmates had an APRI score of greater than 2.0, placing them in the high priority category for treatment. 483 had an APRI score greater than 1.0, placing them in the high or intermediate category. But between April 1, 2017 and January 19, 2018, only 41 inmates had either completed or were receiving treatment with DAAs. Defendants have offered no specific evidence as to who has received treatment and what their priority level was prior to being treated. But, based on the numbers alone, not even all of those inmates designated as “high priority” for treatment have received it. And in total, only 1.2% of inmates with chronic HCV have received treatment.
In sum, neither the policy enshrined in HCSD 3.09, nor Defendants’ proffered rationale for its adoption, establish that Defendants are necessarily in compliance with the demands of the Eighth Amendment.
Defendants next argue that, even if some harm results from application of the policy, Wexford physicians are responsible for applying it and making treatment decisions, so IDOC may not be held liable. The undisputed facts, however, lead inexorably to the conclusion that
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Defendants seek to control physicians’ treatment decisions by providing parameters within which they should consider an individual eligible for HCV treatment at all. [See Filing No. 166-12 at 12 (FBOP Guidance describing priority “consideration for treatment”).] It is undisputed that Wexford is contractually obligated to follow the policy enshrined in IDOC’s HCSD 3.09, which was drafted by Dr. VanNess. [Filing No. 166-9 at 90-91.] As described above, that policy adopts the FBOP Guidance, which creates the “priority criteria” that govern at a fairly granular level the treatment of HCV. [Filing No. 166-12 at 12.] Even taking the facts in the light most favorable to Defendants, the only logical inference that can be drawn from them is that IDOC’s policy is intended to govern the treatment of HCV-infected inmates—otherwise physicians would be left to simply apply their own medical judgment as to the proper course of treatment for each inmate. And, as noted, Defendants cap the total amount that can be spent, regardless of individualized patient needs.
And Defendants cannot avoid liability by pointing the finger at Wexford as the direct healthcare provider. As the Seventh Circuit has noted in the context of the delegation of state functions to private correctional healthcare providers, medical care in the prison context “is simply not unaffected by the fact that the state control[s] the circumstances and sources of a prisoner’s medical treatment.” Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 826 (7th Cir. 2009). In addition to being the architects of the prioritization system, and making its application mandatory on Wexford, the undisputed evidence establishes that Dr. VanNess knew when he drafted HCSD 3.09 that the medical standard of care for treatment for HCV, as indicated by the AASLD Guidance, recommends treatment for all individuals suffering from HCV, except for those for whom DAAs are medically contraindicated. [Filing No. 166-9 at 49.] Dr. VanNess was also aware that the prioritization policy adopted by IDOC differs from the AASLD Guidance. [Filing
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No. 166-8 at 98-100.] The Court rejects Defendants’ contention that they cannot be held liable for any deliberate indifference, simply because Wexford physicians were charged with providing the actual treatment. This argument ignores the reality that Wexford physicians are required to provide treatment within the constraints established by Defendants.
For all of these reasons, the Court concludes that Defendants are not entitled to summary judgment on the rationale that their HCV treatment policy cannot form the basis of a deliberate indifference claim.
b. Selection of Treatment Option Defendants also argue that they are entitled to summary judgment because “the mere failure of the prison official to choose the best course of action does not amount to a constitutional violation.” [Filing No. 174 at 28.] They contend that they are not disregarding a substantial risk of harm, arguing that “treatment” of HCV includes “monitoring labs, genotypic testing of the HCV infection, counseling, pain medication, and vitamins,” [Filing No. 174 at 29], which they are providing. Defendants argue that Plaintiffs simply disagree with a particular “prescribed course of treatment,” and that such a disagreement “falls short of deliberate indifference.” [Filing No. 180 at 12.] Plaintiffs respond that they do not take issue with a specific prescribed course of treatment—they argue that the inmates who are not receiving DAA medication are instead receiving no treatment at all. [Filing No. 179 at 22-23.] An inmate is not entitled to demand specific care, and he is not entitled to the “best care possible.” Arnett v. Webster, 658 F.3d 742, 754 (7th Cir. 2011) (citing Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997) (concluding that inmate did not have the right to demand one effective medication in lieu of another effective medication)). But prison officials may not, within the
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confines of the Eighth Amendment, opt for a course of treatment that is known to be ineffective.
Id. (citing Berry v. Peterman, 604 F.3d 435, 441-42 (7th Cir. 2010)).
Defendants make the factual assertion that “monitoring labs, genotypic testing of the HCV
infection, counseling, pain medication, and vitamins” constitute effective treatment for HCV, and
Plaintiffs dispute that factual assertion. [Filing No. 174 at 29; Filing No. 179 at 2 (identifying this
as a disputed material fact).] Defendants, however, offer no evidence, medical or otherwise, to support the assertion that any of those actions constitute effective treatment for chronic HCV.7 On
the other hand, Plaintiffs have presented undisputed medical evidence (in the form of expert
testimony) that blood draws, monitoring, and patient education do not constitute effective
treatment. [See, e.g., Filing No. 166-4 at 60 (Deposition of Dr. Vuppalanchi) (a patient with
chronic HCV is not effectively treated by blood draws, monitoring, and education).]
Moreover, even the FBOP Guidance on which Defendants generally rely contradicts
Defendants’ assertion as to the activities that constitute effective “treatment.” Section Five of that
document details the priority criteria for treatment, and in discussing the application of those
criteria, it describes patients as being under “consideration for treatment.” In other words, it does
not assume that all inmates will, upon initial assessment, be “treated” for their HCV. Section Six
7 Even if the Court were to consider Dr. Fisher’s excluded expert testimony, its conclusion would remain the same on this point. While Dr. Fisher testified that those activities constitute “treatment” of chronic HCV, his testimony does not support the conclusion that such “treatment” is effective. [Compare Filing No. 173-2 at 37 (“Q: Your position is even if you are not getting DAAs, you are still getting treatment for HCV if you are getting monitored; is that right? A: Monitored and also receiving patient education and a discussion of risk strategies.”) with Filing No. 173-2 at 52 (Q: “Successful Hepatitis C treatment results in sustained virologic response, which is tantamount to virologic cure and, as such, is expected to benefit nearly all chronically infected persons. … Do you agree with that statement? A: Yes.”); and Filing No. 173-2 at 82 (“Q: If patients with chronic HCV are not given DAAs and they just get education, would that cure them of the HCV? A: It will not cure them of the HCV.”); Filing No. 173-2 at 83 (“Q …can somebody be cured of a chronic HCV infection by lab draws, by patient education, and by monitoring alone? A: Cure, no.”).]
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governs “Recommended Treatment Regimens,” and the only “treatment” option enumerated is DAA medication. [Filing No. 166-12 at 14-18; see also Filing No. 166-12 at 20 (describing monitoring for individuals who are “not yet treated”).] This is simply not a circumstance analogous to those in which prison officials have chosen one effective course of treatment over another—here, Defendants have expressly chosen non-treatment over treatment for the Plaintiff class.
Facing cross-motions for summary judgment, Defendants are required to identify specific, admissible evidence showing that there is no genuine dispute of material fact. See, e.g., Grant v. Trustees of Indiana Univ., 870 F.3d 562, 568 (7th Cir. 2017). There is simply no genuine dispute of material fact on this issue—the only proffered evidence establishes that the actions identified by Defendants do not constitute treatment.
c. Delayed Treatment In the course of raising other arguments, Defendants offer two statements that could be construed as a contention that Plaintiffs are not being denied treatment, but are instead experiencing a permissible delay in treatment. Citing an Eighth Circuit case, Defendants contend that “with regard to HCV specifically, at least one Circuit Court has recognized that the question under the Eighth Amendment is…whether [HCV] presents a serious medical need for prompt treatment.” [Filing No. 174 at 29 (emphasis added).] And Defendants state that “Plaintiffs’ experts have also explained that patients can go up to five or six years without curative treatment without adverse consequences, but even if there were any such consequences, successful treatment with a DAA reverses the effects of fibrosis.” [Filing No. 174 at 30.] First, the evidence cited by Defendants simply does not state that patients “can go up to five or six years without curative treatment without adverse consequences.” The portion of
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testimony that refers to a five or six year time period states as follows: “Before[,] at the end of interferon and ribavirin therapy [drugs that predated DAAs], we have to wait five or six years to see we don’t have effective treatment. Those patients wait, and nothing happen[s] to them. But I don’t think that today when we have such effective therapy[,] if the patient is indicated[,] why we should wait.” [Filing No. 173-4 at 34-35.]
The undisputed evidence establishes that there is no medical reason to delay HCV treatment with DAAs where the use of those drugs is not medically contraindicated. Moreover, the undisputed medical evidence is that delaying treatment for chronic HCV until patients have developed more advanced stage liver fibrosis has been demonstrated to result in two to five times higher rates of liver-related mortality, as compared to those offered treatment at an earlier stage. [Filing No. 100-1 at 6.] And the undisputed medical evidence establishes that the test used by IDOC to estimate the degree of liver fibrosis is not a good predictor at earlier stages of infection, and the disease progresses at different rates in different people. Dr. Vuppalanchi’s undisputed testimony is that DAAs should not be reserved for only those with the most advanced disease progression, and that patients not treated for their HCV face a substantial likelihood of significant resulting injury. [Filing No. 166-4 at 62.] Defendants also do not dispute Plaintiffs’ medical evidence regarding the symptoms suffered by patients as their disease progresses, including, among other things, pain, accumulation of fluid in the abdomen, diabetes, and the risk of kidney failure. These certainly must constitute “adverse consequences” of non-treatment.
Any “delayed treatment” argument asks the Court to infer from Defendants’ evidence that when an inmate’s HCV becomes severe enough, based on the priority criteria, he will receive treatment. In other words, an inmate must wait until his disease is exacerbated to the point that he becomes a high priority, or justifies an exception to the priority criteria. But Defendants have not
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offered any evidence as to the priority group of the individuals who have received treatment or the average length of time before they receive it. And, perhaps more critically, they have not stated that it is their intention to treat even the individuals who are categorized as high priority. The undisputed evidence also establishes that, as of September 2017, 483 inmates had APRI scores of 1.0 or greater, correlating with fibrosis of stage two or greater. Dr. Vuppalanchi’s undisputed testimony is that stage two fibrosis is “clinically significant,” and that at that stage “you start worrying about liver related outcomes.” [Filing No. 166-4 at 48.] Yet, with only 41 individuals having received treatment, at most only 8.4% of those inmates had received treatment. In short, Defendants fail to offer any evidence that an inmate will necessarily receive treatment following such a delay.
As described above, the Seventh Circuit has already concluded that this approach is impermissible in the context of opting for an ineffective treatment over an effective one. See Arnett, 658 F.3d at 751 (“That the prisoner received some treatment does not foreclose his deliberate indifference claim if the treatment received was so blatantly inappropriate as to evidence intentional mistreatment likely to seriously aggravate his condition.” (internal quotation and citation omitted)). And that court has made clear that “[p]rison staff cannot bide their time and wait for an inmate’s sentence to expire before providing necessary treatments.” Mitchell v. Kallas, 895 F.3d 492, 496 (7th Cir. 2018). The same reasoning applies here.
Defendants are not entitled to summary judgment on the basis of the “promptness” of HCV treatment.
d. Propriety of Treatment with DAAs Finally, Defendants argue that Plaintiffs cannot satisfy the subjective element of the deliberate indifference standard, because their claim depends on the faulty assertion that all HCV-
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infected inmates should be treated with DAAs. [Filing No. 174 at 30.] Defendants argue that Plaintiffs’ own medical evidence establishes that “it is not a violation of the standard of care not to prescribe a DAA to every patient.” [Filing No. 174 at 30.]
Defendants’ entire argument on this point depends upon the undisputed medical evidence, and they have, unfortunately, taken some liberties in their presentation of that evidence. Dr. Liangpunsakul testified that he prescribes DAA medication to nearly all individuals (1) who have tested positive for HCV; (2) who carry a viral load; and (3) for whom treatment is not medically contraindicated. [Filing No. 173-4 at 8-9.] In cases where treatment is medically contraindicated due to other illnesses, Dr. Liangpunsakul may tell the patient that their HCV is not the “high priority,” because they have “other cancers or…advanced diseases that need to be focused [on] at that particular moment.” [Filing No. 173-4 at 13.] He testified that, outside of the medical contraindication category, he has always recommended treatment with DAA medication. [Filing No. 173-4 at 13.]
While Defendants cite Dr. Liangpunsakul’s testimony as reflecting a belief that it is not a violation of the standard of care not to prescribe DAAs to every patient with HCV, in doing so Defendants cherry-pick one sentence of his testimony to the exclusion of critical sentences that precede and follow. The Court reproduces that doctor’s cited testimony in its entirety:
Q: Is it your opinion that every patient with Hepatitis C except those with a short life span should be prescribed a DAA? A: I do believe so. Q: It is your opinion [that] it’s a violation of the standard of care not to prescribe a DAA for a patient in that category? A: I would not say it’s a violation of [the] standard of care. Standard of care is there, you know, for us to follow, and then we should do the best as possible to provide the patients who were diagnosed with Hep C with the medication that is now so effective to treat them. And this will eventually prevent subsequent future complications that may develop. There’s so many bad events that could happen.
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[Filing No. 173-4 at 14-15.] Elsewhere in his deposition in this matter, Dr. Liangpunsakul testified as follows:
Q: In your opinion[,] is it ever reasonable not to recommend treatment with a DAA, again, ignoring the population with the short life spans? A: No. I’m an advocate of treating them. [Filing No. 173-4 at 32.] Dr. Vuppalanchi, Plaintiffs’ other expert witness, testified as follows: Q: And as I understand it, your opinion is that every offender in the Department of Corrections with Hepatitis C should be treated with a DAA? A: Yes. Q: I’m assuming that means unless they have a contraindication? A: Yes [Filing No. 173-3 at 40.] And Dr. Vuppalanchi testified that the standard of care for chronic HCV requires treatment with DAA medication. [Filing No. 173-3 at 30.] Both Dr. Liangpunsakul and Dr. Vuppalanchi testified in no uncertain terms that they would decline or delay the prescription DAA medication in heavily circumscribed instances, all involving medical contraindications (including active drug or alcohol use and concerns with therapeutic compliance), or instances in which a payor would not provide authorization or payment for the medication. [See Filing No. 173-3 at 21-24; Filing No. 173-3 at 31; Filing No. 173-3 at 3536; Filing No. 173-3 at 39-40; Filing No. 173-3 at 42-43; Filing No. 173-3 at 48-49; Filing No. 173-3 at 52-55; Filing No. 173-4 at 9-15; Filing No. 173-4 at 25-35.] But as Dr. Vuppalanchi indicated as to even those circumstances, the physician’s goal should always be to treat and cure the disease when the barrier to treatment is removed. [See, e.g., Filing No. 173-3 at 31 (regarding the standard of care being the prescription of DAA medication: “Q: Does that…apply to every single patient[,] or is every patient different? A: To me, there should be [an] intent to treat. And
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then if contraindications prohibit you from treating, then you can back off. Q: And what would you interpret to mean intent to treat? A: It’s a curable disease, and there is [a] cure.”).]8
In sum, the Court has considered all of Defendants’ arguments regarding the subjective element of the deliberate indifference standard. For the reasons described above, the Court concludes that Defendants are not entitled to summary judgment on Plaintiffs’ deliberate indifference claim.
4. Subjective Element: Plaintiffs’ Motion for Summary Judgment Having concluded that Defendants are not entitled to summary judgment, the Court now turns to Plaintiffs’ arguments in support of their Motion. Plaintiffs contend that the undisputed evidence establishes that they have satisfied the subjective element of the deliberate indifference standard, because Defendants are aware of the substantial risk of both present and future harm to HCV-infected inmates, and Defendants have disregarded the risk by electing not to treat 98.8% of infected inmates. [Filing No. 167 at 20-26.] As is sometimes the case with cross-motions for summary judgment, the Court’s discussion regarding Defendants’ Cross-Motion also forms the basis for its discussion of Plaintiffs’ Motion. And the Court must stress that the outcome in this case is largely determined by the fact that Defendants, as described at length above, simply have not put forward any admissible evidence to support a finding either that HCV does not constitute a serious medical need, or that Defendants are not knowingly disregarding it. This is the key distinction between this case and Chimenti v.
8 Defendants’ treatment of the evidence on this issue brings to mind the Seventh Circuit’s admonition to parties regarding appropriate summary judgment practice, particularly regarding cherry-picking isolated portions of deposition testimony. As the court noted in that case, this strategy almost always fails, quickly destroys litigants’ credibility with the court, and is both costly and wasteful. Malin v. Hospira, 762 F.3d 552, 564-65 (7th Cir. 2014).
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Wetzel, 2018 WL 3388305, at * (E.D. Pa. July 12, 2018), another HCV class-action case that has reached summary judgment in another district court.
In that case, which involves a slightly different treatment protocol, the defendants moved for summary judgment and presented medical evidence to support the contention that individuals with Metavir scores of F0 or F1 do not have serious medical needs, and therefore are not being denied treatment. Chimenti, 2018 WL 3388305, at *10-11. The plaintiffs presented medical evidence that those patients do indeed have serious medical needs. Id. In light of the disputed material facts, the court concluded that summary judgment was not appropriate. Id. at 12 (“…the record contains evidence that patients who have chronic HCV and whose Metavir scores are less than F2 have serious medical needs, as they may suffer from fatigue and other nonhepatic symptoms of their infections and, if not treated with DAAs before their disease progresses, may suffer from liver inflammation, liver fibrosis, liver cancer and liver-related mortality that they would not suffer if they were treated with DAAs while their Metavir scores are in the F0 to F1 range.”).
Here, however, the undisputed record evidence establishes that individuals with untreated chronic HCV face a substantial risk of harm. Individuals suffering from chronic HCV face a variety of immediate symptoms, as well as the certainty that their disease will progress through the stages of infection. Defendants do not argue, and present no evidence, that individuals in earlier stages of infection necessarily experience lesser or less severe symptoms, such that HCV at its earlier stages does not pose a substantial risk of harm. The undisputed evidence establishes that, once chronic, the disease inevitably progresses, and that the speed of progression cannot be predicted with certainty. The undisputed evidence also establishes that the metric used by Defendants to measure disease progression is not effective at distinguishing between degrees of
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infection before the disease becomes advanced. See Chimenti, 2018 WL 3388305, at *12 (“There is also evidence that the DOC’s reliance on an inaccurate method of testing for fibrosis could result in the DOC’s failing to treat many individuals who suffer from advanced fibrosis and cirrhosis.”). For all of these reasons, and those discussed in relation to Defendants’ Cross-Motion, the Court concludes that Plaintiffs face a substantial risk of harm.
Second, the undisputed evidence establishes that chronic HCV is a curable disease, and the only effective treatment—oral DAA medication—can cure it within eight to twelve weeks. While IDOC’s mandatory treatment policy requires the classification of inmates according to their APRI score the undisputed evidence establishes that there is no medical reason to divide individuals by “priority” or to ration the use of DAAs. And Defendants have provided no other rationale for the prioritization system. Dr. VanNess was aware at the time of the drafting of HCSD 3.09 that the prioritization policy differs from the nationally accepted standard of care for chronic HCV, as articulated by the AASLD Guidance, and that DAAs cure HCV.
While 41 individuals have received treatment over the span of more than a year, 98.8% of individuals suffering from chronic HCV have received no treatment at all. This can be described in no other way than an effective denial of treatment for those suffering from chronic HCV.
The Court therefore concludes that Plaintiffs have satisfied both the objective and subjective elements of the deliberate indifference standard. Accordingly, the Court concludes that Defendants have violated the Eighth Amendment, and Plaintiffs are entitled to summary judgment on that claim.
B. ADA and Rehabilitation Act Claims Defendants also move for summary judgment on Plaintiffs’ ADA and Rehabilitation Act claims. They contend that Plaintiffs’ claims must fail because (1) they cannot show that they are
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qualified individuals with a disability; and (2) they have not shown any evidence that Defendants intend to discriminate against inmates with HCV. [Filing No. 174 at 33-36.] Defendants also reprise several of their deliberate-indifference arguments, contending that Plaintiffs are receiving appropriate treatment under the care of Wexford physicians. [Filing No. 174 at 36.] In response, Plaintiffs argue that there is a genuine dispute of material fact regarding whether all or some members of the Plaintiff class are “qualified individuals” with disabilities under the Acts. [Filing No. 179 at 32-33.]
The analysis governing ADA and Rehabilitation Act claims is the same, “except that the Rehabilitation Act includes as an additional element the receipt of federal funds, which all states accept for their prisons.” Jaros v. Illinois Dep’t. of Corr., 684 F.3d 667, 671 (7th Cir. 2012). Because the relief available under both statutes is coextensive, id., the Court analyzes them together. To prevail on a claim under those Acts, plaintiffs must show that they (1) are qualified persons (2) with a disability, and (3) that Defendants have denied them access to a program or activity because of their disabilities. Id. “Disability” includes the physical or mental limitation of one or more major life activities, such as walking, bending, standing, caring for oneself, performing manual tasks, seeing, hearing, sleeping, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working. See, e.g., Rowlands v. United Parcel Serv. – Ft. Wayne, 2018 WL 4041258, at *6 (7th Cir. Aug. 24, 2018).
In their response, Plaintiffs acknowledge the possibility that the ADA and Rehabilitation Act claims are not amenable to resolution via the currently defined class. The standard that applies to those claims requires an assessment of whether a specific major life activity has been limited by an individual’s physical or mental impairment. And while Plaintiffs have provided ample medical evidence that HCV can cause symptoms that could lead to such limitations, and that hundreds of
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class members have fibrosis of stage two or greater, those facts do not necessitate a determination that all class members suffer from the limitation of a major life activity. See, e.g., Furnish v. SVI Sys., Inc., 270 F.3d 445, 449-51 (7th Cir. 2001) (concluding that plaintiff who suffered from cirrhosis caused by chronic Hepatitis B did not establish that his reduced liver functioning resulted in the limitation of a major life activity).
The Court concludes, therefore, that decertification is necessary as to the ADA and Rehabilitation Act claims. As described above, in the case of a class certified under Rule 23, “the judge remains free to modify it in the light of subsequent developments in the litigation.” Falcon, 457 U.S. at 160. That includes the ability to decertify a class should circumstances so dictate. Eggleston v. Chic. Journeymen Plumbers’ Local Union No. 130, 657 F.2d 890, 896 (7th Cir. 1981). Rule 23(a)(2) requires the existence of “questions of law or fact common to the class.” And commonality “demands more than a showing that the class members have all suffered a violation of the same provision of law at the hands of the same defendant.” Suchanek v. Sturm Foods, Inc., 764 F.3d 750, 755 (7th Cir. 2014). At a minimum, it is not clear that all class members, as the class is currently defined, suffer from the limitation of a major life activity.
The Court, therefore, decertifies the class as to Plaintiffs’ ADA and Rehabilitation Act claims. Accordingly, it also DENIES Defendants’ Cross-Motion for Summary Judgment as to those claims, but without prejudice to refiling them regarding the individual plaintiffs’ claims.
C. Dr. VanNess and Ms. Gipson In one paragraph in their brief in support of their Cross-Motion for Summary Judgment, Defendants argue that Dr. VanNess and Ms. Gipson should be dismissed as defendants in this matter. [Filing No. 174 at 25.] Defendants argue that because Commissioner Carter is “the final authority for all policies,” neither Dr. VanNess nor Ms. Gipson can order the relief Plaintiffs seek.
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[Filing No. 174 at 25.] Therefore, Defendants argue, they are not proper defendants, and should be dismissed. In response, Plaintiffs offer no argument as to Ms. Gipson, and, in so doing, concede her dismissal. [Filing No. 179 at 33.] As to Dr. VanNess, Plaintiffs argue that he “has the authority to make HCSD 3.09 the policy and did so in this case.” [Filing No. 179 at 33.] Plaintiffs also contend that Dr. VanNess may be able to provide some relief to Plaintiffs, because he “has the power to request annual expenditures of over $1.5 million for HCV medication, but has chosen not to exercise such power.” [Filing No. 179 at 33.] In reply, Defendants dispute Plaintiffs’ characterization of Dr. VanNess’s role, arguing that Commissioner Carter must sign the HCSD 3.09 policy and is “the ultimate authority” on all directives. [Filing No. 180 at 18.]
As the Seventh Circuit has outlined, a prison official cannot be liable for the misdeeds of a subordinate under a theory of respondeat superior. Vance v. Peters, 97 F.3d 987, 992-93 (7th Cir. 1996). But, as that court has explained:
an official satisfies the personal responsibility requirement of section 1983 if the conduct causing the constitutional deprivation occurs at his direction or with his knowledge and consent. That is, he must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye. In short, some causal connection or affirmative link between the action complained about and the official sued is necessary for § 1983 recovery. Vance, 97 F.3d at 993 (citing Gentry v. Duckworth, 65 F.3d 555, 561 (7th Cir. 1995) (internal quotations omitted)). Defendants’ only argument in support of dismissal of Dr. VanNess is that he does not have final approval authority over HCV treatment policies, and therefore that he alone cannot provide the injunctive relief that Plaintiffs seek. However, the standard does not require that Dr. VanNess be able to singlehandedly remedy the complained-of wrong in order to be a proper defendant. And the undisputed evidence establishes that Dr. VanNess is responsible for drafting the HCV policy at issue, is tasked with overseeing Wexford’s compliance with that policy and contractual agreement, and is charged with approving additional expenditures for HCV
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treatment. This evidence is sufficient to show that Dr. VanNess facilitated, approved of, or condoned the actions challenged by Plaintiffs.
For these reasons, Defendants’ request to dismiss Ms. Gipson as a defendant is GRANTED, and their request to dismiss Dr. VanNess is DENIED.
V. CONCLUSION As the Seventh Circuit has made clear, not every refusal of medical treatment constitutes cruel and unusual punishment. “Medical ‘need’ runs the gamut from a need for an immediate intervention to save the patient’s life to the desire for medical treatment of trivial discomforts and cosmetic imperfections that most people ignore. At the top of the range a deliberate refusal to treat is an obvious violation of the Eighth Amendment, and at the bottom of the range a deliberate refusal to treat is obviously not a violation. Where to draw the line between the end points is a question of judgment that does not lend itself to mechanical resolution.” Johnson, 433 F.3d at 1013-14. The Court concludes that the undisputed evidence in this case establishes that Plaintiffs’ need for medical treatment is toward the high end of the range, and Defendants’ deliberate refusal to provide that treatment constitutes a violation of the Eighth Amendment. For the foregoing reasons, the Court: • GRANTS IN PART and DENIES IN PART Plaintiffs’ evidentiary objections, as set forth above [166]; • GRANTS IN PART and DENIES IN PART Defendants’ Motion to Dismiss Dr. VanNess and Ms. Gipson as defendants, to the extent that it DISMISSES Ms. Gipson [173]; • DENIES Defendants’ Cross-Motion for Summary Judgment on all claims [173]; • MODIFIES the class definition to include all current and future prisoners in IDOC custody who have been diagnosed, or will be diagnosed, with chronic HCV, and for whom treatment with DAA medication is not medically contraindicated; • DECERTIFIES the certified class as to the ADA and Rehabilitation Act claims only [154]; and
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Case 1:17-cv-00289-JMS-MJD Document 186 Filed 09/13/18 Page 44 of 44 PageID #: 2717 • GRANTS Plaintiffs’ Motion for Summary Judgment as to liability on the Eighth Amendment claim. [166] The Court requests that the Magistrate Judge confer with the parties at his earliest possible
convenience in order to establish a schedule for the remaining proceedings. Specifically, as Plaintiffs are only entitled to one recovery, they should determine whether they seek to move forward as to the decertified ADA and Rehabilitation Act claims. And as to the Eighth Amendment claim, the parties should confer as to the development of a schedule for the remedy phase of the proceedings.
The Court also ORDERS the Clerk to update the docket to reflect that Plaintiffs raise this suit on behalf of themselves and other similarly situated individuals.
Date: 9/13/2018
Distribution via ECF only to all counsel of record.
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 Case 1:17-cv-00289-JMS-MJD Document 251 Filed 08/09/19 Page 1 of 17 PageID #: 3110

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

MICHAEL RAY STAFFORD,

)

CHARLES SMITH and DOUGLAS SMITH,

)

individually, and on behalf of those

)

similarly situated,

)

)

Plaintiffs,

)

)

v.

)

)

ROBERT E. CARTER, JR., et al.,

)

)

Defendants.

)

Case No. 1:17-cv-289-JMS-MJD

Stipulation to Enter into Settlement Agreement Pursuant to 18 U.S. Code § 3626(c)(2)
Following Notice to the Class and Fairness Hearing

The parties, in person and by their counsel, stipulate and agree as follows:

I. History of the case.

1. Hepatitis C is an infectious disease that affects the liver and other parts of

the body. It is generally transmitted through blood. There are two stages of

HCV: acute and chronic. Approximately 80% of people with acute HCV will

develop chronic HCV after six months, and the other 20% will self-resolve.

Once a person develops chronic HCV, it will not self-resolve, and the person

will be infected for life without treatment. This lawsuit deals with those

who have chronic HCV.

2. In 2017, several prisoners of Indiana Department of Correction (“IDOC”)

facilities who suffer from chronic Hepatitis C infection (“HCV”) filed the

operative complaint in this action. (ECF 39.) Plaintiffs sought damages and

declaratory and injunctive relief from Wexford of Indiana, LLC, Corizon

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Health, Inc., Corizon, LLC1, treating physicians at Pendleton Correctional Facility2, and three IDOC officials: IDOC’s Commissioner Robert E. Carter, Jr., IDOC’s Chief Medical Officer Dr. Kristen Dauss3, and IDOC’s Director of Health Care Services, Monica Gipson, R.N.4 (ECF 39.) 3. Plaintiffs’ suit alleged that the medical treatment that Plaintiffs received for their HCV while incarcerated violated the Eighth Amendment to the United States Constitution, the Americans with Disabilities Act, and the Rehabilitation Act. (ECF 39.) Plaintiffs’ suit specified that the medical standard of care required that HCV-infected prisoners be treated with certain Direct-Acting Antiviral oral medications (“DAAs”) approved by the U.S. Food and Drug Administration. (ECF 39.) 4. At all times, State Defendants have denied, and continue to deny, Plaintiffs’ allegations. (ECF 74; ECF 79.) 5. On March 2, 2018, the Court certified this case as a class action, and at that time defined the class as:
1 Corizon Health, Inc. and Corizon, LLC were removed from this class action for declaratory and injunctive relief because those Defendants are no longer the medical contractor with the IDOC. (ECF 111.) These Defendants were subsequently dismissed from the suit with prejudice through a joint stipulation of dismissal. (ECF 157.) 2 The treating physicians were subsequently dismissed from the suit with prejudice through a joint stipulation of dismissal. (ECF 157.) 3 Dr. Dauss has been substituted as a Defendant in place of former Chief Medical Officer Dr. VanNess, who was substituted as a Defendant in place of former Chief Medical Officer Dr. Michael Mitcheff. 4 Ms. Gipson was dismissed from this case by the Court in its order of September 13, 2018. (ECF 186)
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“All current and future prisoners in IDOC custody who have been diagnosed, or will be diagnosed, with chronic HCV.” (ECF 154.) 6. The class is represented by three inmates: Michael Ray Stafford, Charles Smith, and Douglas Smith. (ECF 154.) 7. On April 13, 2018, Plaintiffs moved for summary judgment on their Eighth Amendment claim, and Defendants moved for cross-summary judgment on all claims. (ECF 167; ECF 173). 8. On September 13, 2018, the Court granted Plaintiffs’ motion for summary judgment as to Defendants’ liability on the Eighth Amendment claim. (ECF 186.) The Court specifically found that IDOC’s failure to provide DAAs to all offenders with HCV constituted a violation of the Eighth Amendment. (ECF 186.) The Court modified the class definition to: “all current and future prisoners in IDOC custody who have been diagnosed, or will be diagnosed, with chronic HCV, and for whom treatment with DAA medication is not medically contraindicated” and decertified the class as to the ADA and Rehabilitation Act claims only. (ECF 186.) Finally, the Court denied Defendants’ cross-motion for summary judgment. (ECF 186.) 9. Subsequent to settlement negotiations between the parties, the Court granted Plaintiffs’ motion to convert the trial set in this matter to a remedy hearing and ordered briefing on the remedy issue. (ECF 205.) The parties stipulated that the following issues would be resolved at a remedy hearing: i. Whether the Court should issue an injunction;
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ii. If the Court does issue an injunction, whether it should mandate treatment with DAAs for class members with HCV;
iii. If the Court does mandate treatment with DAAs for class members with HCV, should treatment be universal or should treatment be cut off at a certain level of disease progression; and if the latter, where the cutoff should be; and
iv. If the Court does mandate treatment with DAAs, what is a realistic timeline for implementation of such a mandate? (ECF 214.)
10. On March 26, 2019, Plaintiffs filed a motion for a permanent injunction, which would require Defendants to provide all class members access to DAAs. (ECF 218.) Prior to State Defendants filing their response to Plaintiffs’ motion for permanent injunction, the parties stipulated to the dismissal of Wexford of Indiana, LLC, from the suit. (ECF 222.) On April 9, 2019, State Defendants filed their pre-hearing brief and response to Plaintiff’s motion for a permanent injunction. (ECF 224.)
11. A remedy hearing was scheduled for April 29, 2019; however, prior to the hearing, the parties filed a joint motion for continuance and for the matter to be referred to a magistrate for a settlement conference. (ECF 230.)
12. Since the Court’s Entry on September 13, 2018 the parties, as set out in more detail below, have been working to address concerns expressed by the Court and to modify the conditions of confinement for the class.
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13. Because Plaintiffs have sought relief under 42 U.S.C. § 1983 for violations of the United States Constitution and federal law, parts of this litigation are subject to the Prison Litigation Reform Act, 18 U.S.C. § 3626, et seq. This Act imposes certain requirements on judicially sanctioned agreements made in litigation such as this, but provides that the parties may enter into private agreements, which are exempted from the requirements of the Act. 18 U.S.C. § 3626(c). However, such agreements are not subject to enforcement under federal law other than through potential reinstatement of the proceedings, although they are enforceable under state law as breaches of contract. Id.
14. Because this case is a certified class action the Court must determine, pursuant to Rule 23(e) of the Federal Rules of Civil Procedure, that this Private Settlement Agreement (“Agreement”) is a fair, reasonable, and adequate resolution of this matter. The Court cannot ascertain this until after reasonable notice is given to the class. Accordingly, even though this Private Settlement Agreement has been agreed to by State Defendants and all named Plaintiffs, it will not be effective until after notice is given to the class and the Court conducts the hearing required by Rule 23(e). State Defendants and the named Plaintiffs specifically agree that their approval of this Agreement is contingent on the Court finding that the Agreement is fair, reasonable, and adequate, and in the event that the Court does not find that the Agreement is fair, reasonable, and adequate, this Agreement
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will immediately be deemed null and void. Plaintiffs will file, along with this Agreement, a motion seeking approval of the form and manner of notice to the class of this Agreement. 15. The Indiana Department of Correction continues to deny that it has at any time violated the Eighth Amendment rights of the class and denies the various claims made by plaintiffs to support their Eighth Amendment argument. However, the parties are desirous of attempting to reach a settlement of this matter and therefore they enter into this Stipulation. Defendants’ entry into this Agreement is not an admission of any kind and imposes no liability on defendant or any of its agents, employees, officers or other persons for any violation of law, constitutional or otherwise. 16. Accordingly, to the extent that the parties agree to the terms and conditions as set forth below, this is deemed to be a “private settlement agreement” as defined under the Prison Litigation Reform Act, 18 U.S. Code § 3626(c)(2). 17. This Agreement is supported by good and valuable consideration. This includes, but is not limited to, the following: Plaintiffs agree that they will not seek a final judgment in this cause, unless this case is reinstated as set forth below. State Defendants agree that they will not seek to appeal this Court’s Entry of September 13, 2018 (ECF 186), whether as an interlocutory matter or after final judgment, and will not challenge any of the Court’s other rulings in this cause, unless this case is reinstated as set forth below.
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II. Definitions. 1. “Agreement” shall mean this private settlement agreement between the parties, as set forth below. 2. “Effective Date” shall mean the date upon which the Court approves this private settlement agreement as a fair, reasonable, and adequate resolution of this matter following notice to the class and a hearing conducted under Federal Rule of Civil Procedure 23(e). 3. “HCSD” shall mean Indiana Department of Correction Health Care Services Directive 3.09a, as written in Exhibit A to this Agreement, which contains the policy and procedures for the treatment of prisoners infected with chronic hepatitis C. 4. “HCV” shall mean chronic Hepatitis C viral infection. 5. “IDOC” shall mean the Indiana Department of Correction. 6. “State Defendants” shall mean the Commissioner of the Indiana Department of Correction and the Chief Medical Officer of the Indiana Department of Correction, both in their official capacity.
III. Class Definition and Size. 1. In the Court’s summary judgment order of September 13, 2018, (ECF 186), the Court enumerated the class definition as follows: All current and future prisoners in IDOC custody who have been diagnosed, or will be diagnosed, with chronic HCV, and for whom treatment with DAA medication is not medically contraindicated.
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2. As of July 2019, it is estimated that approximately 3350 prisoners5 in IDOC custody have HCV and are not medically contraindicated for treatment with DAA medication.
IV. Substantive Agreement. Health Care Services Directive 3.09a. 1. In response to the Court’s and the plaintiffs’ concerns, and to expand the scope of treatment to the offender population chronic HCV, the IDOC’s revised Heath Care Service Directive 3.09a (“HCSD”) outlines the treatment of offenders with HCV. The parties agree that the HCSD will be modified as set forth in Exhibit A within 14 days of the effective date of this Agreement. State Defendants agree that the HCSD will bind all medical contractors and subcontractors responsible for the medical treatment of class members. 2. Following the implementation of the HCSD as written in Exhibit A, modification of the HCSD by IDOC in the future will be permitted so long as the modification does not operate to reduce the medical treatment of class members below the standard prescribed in the HCSD in Exhibit A.
5 The total number of prisoners in IDOC that have tested positive for the hepatitis C virus antibody is 4,188 as of June 2019. Of those, approximately 20% will spontaneously clear the hepatitis C virus, leaving 3,350 as the estimated class size that is currently incarcerated.
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3. State Defendants agree to pay for and implement universal treatment with DAAs for class members as set forth in the HCSD, subject to the terms otherwise prescribed by this Agreement.
4. Treatment exceptions will be limited to the counter-indications identified in the AASLD/IDSA HCV Guidance (i.e., short life expectancy that cannot be remediated by HCV therapy, liver transplantation, or another directed therapy), or the informed refusal of treatment;
Treatment of Current Class. 5. The IDOC shall abide by the following schedule of DAA treatment for class
members incarcerated in the IDOC on the effective date of this agreement: i. Class members at APRI ≥ 1.5: all such class members must start receiving medication immediately; ii. Class members at APRI ≥ 0.7 but < 1.5: must start receiving medication by July 1, 2020;
iii. Class members at APRI < 0.7 but ≥ 0.4: must begin receiving medication by July 1, 2022, subject to an appropriation of the Indiana General Assembly;
iv. Class members at APRI < 0.4: must begin receiving medication by July 1, 2023, subject to an appropriation of the Indiana General Assembly;
v. Named Plaintiffs, to the extent they have not already begun treatment and who are otherwise eligible for treatment, are to begin
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treatment immediately following the effective date of this Agreement. Treatment of future class members. 6. The IDOC shall abide by the following schedule of DAA treatment for class members newly incarcerated and/or re-infected after the effective date of this Agreement: i. Class members at APRI ≥ 1.5: all such class members will receive DAA medication immediately; ii. Class members at APRI ≥ 0.7: all such class members must start receiving DAA medication by July 1, 2021, or immediately if incarcerated or re-infected after that date; iii. Class members at APRI < 0.7 but ≥ 0.4: must begin receiving medication by July 1, 2022, or immediately if incarcerated or reinfected after that date. iv. Class members at APRI < 0.4: all such class members must start receiving DAA medication by July 1, 2023, or immediately if incarcerated or re-infected after that date. 7. The IDOC shall request an appropriation in the 2021 Legislation Session for the treatment of HCV. Such request shall be for an amount at least equal to the number of class members currently incarcerated multiplied by the cost of a standard course of DAA medication as those numbers exist on December 1, 2020.
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Other Facets of Treatment. 8. If a class member doesn’t currently qualify for DAAs during the phase-in
period as described in section IV(5), then the patient will be re-evaluated and/or re-staged every 90 days, as set forth in the HCSD; 9. A class member’s disciplinary record does not affect eligibility for treatment. 10. With the exception of class members who have less than four (4) months remaining on their sentence after the development of a class member’s HCV Individualized Treatment Plan, a class member’s release date does not automatically exclude him or her from treatment; 11. Noninvasive methods, such as APRI scores or transient elastography, can be used as indicators of HCV status and progression. A class member with an established transient elastography score shall be used instead of an APRI score. A class member who has multiple APRI scores following diagnosis with HCV shall be classified using the highest APRI score, except that any APRI score generated during the first 30 days of a class member’s incarceration shall not be used. 12. For purposes of determining the schedule that applies to class members as specified in sections IV(5) and IV(6), the following APRI to transient elastography conversions shall be used:
i. Fibrosis Level F4 or F3  APRI score ≥ 1.5 ii. Fibrosis Level F2  APRI score ≥ 0.7
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iii. Fibrosis Level F1  APRI score ≥ 0.4 iv. Fibrosis Level F0  APRI score < 0.4 13. HCV testing will be universal but class members have the right to opt-out; 14. The State Defendants agree to provide transient elastography as clinically indicated. Monitoring and Review by Plaintiffs’ Counsel. 15. The IDOC recognizes that during the time that this Agreement is actively in effect, as set forth below, Plaintiffs’ counsel shall have a continuing right to information and review of the treatment of class members as follows:
i. The IDOC will transmit any substantive revision to the HCSD within 30 days of the effective date of any change to the HCSD.
ii. Every 60 days, Plaintiffs’ counsel may request a list of class members in the custody of the IDOC. Such list shall include, but not be limited to, the name, IDOC number, incarceration date, estimated release date, date that HCV infection was determined, APRI score(s), transient elastography scores (if available), and estimated date when DAA medication will be administered to all class members in IDOC custody.
iii. If Plaintiffs’ counsel has questions regarding specific class members, counsel or any experts retained by counsel may review the medical records of those class members upon request. The Stipulated
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Protective Order filed May 15, 2018, ECF 175, shall govern the review of all such records. iv. Requests under sections IV(15)(ii) and (iii) must be submitted in writing via certified mail or electronically via email to the Chief Legal Officer of the IDOC. Such records will be produced to Plaintiffs’ counsel within 10 days of receipt of such request. V. Further Proceedings. 1. State Defendants will not be required to be in full compliance with the terms of this Agreement until 90 days have passed from the effective date of this Agreement. 2. The parties will seek the administrative closure of Case No. 1:17-cv-00289JMS-MJD after the effective date of this Agreement. 3. In the event that: i. The IDOC does not request an appropriation from the Indiana General Assembly for the treatment of HCV in the 2021 legislative session in an amount at least equal to the amount required by the formula contained in section IV(7), supra; ii. The Indiana General Assembly fails to grant an appropriation in the 2021 legislative session for the treatment of HCV in an amount at least equal to the amount required by the formula contained in section IV(7), supra; or iii. The IDOC does not revise the HCSD as required by this Agreement;
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the remedy shall be to seek to have this litigation re-opened on the merits, including, specifically, the pending motion for injunctive relief, and State Defendants will not object based on mootness stemming from the treatment of all named Plaintiffs, nor will State Defendants object to the substitution of new named Plaintiffs. To facilitate the substitution of plaintiffs, the IDOC will provide notice to the inmate population that any untreated inmate with HCV may contact Plainitffs’ counsel of record for purposes of becoming a named plaintiff, and State Defendants will waive the affirmative defense of failure to exhaust administrative remedies as to any substituted named plaintiff. 4. In the event of any asserted failure to comply with any term of the settlement other than the terms described in section V(3), the IDOC shall be provided with written notice of the alleged failure. The IDOC shall have an opportunity to cure the failure within 30 days of the written notice. Such notice shall be provided to the IDOC by sending a certified letter to the chief legal counsel of the IDOC. In the event the parties are not able to informally resolve the alleged failure within the 30 day time period, the parties shall submit the asserted failure to the magistrate assigned to this case for potential resolution between the parties. If no resolution is reached within 60 days following submission to the magistrate, Plaintiffs may take action as described in section V(5).
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5. In the event of a failure to comply with any term of the settlement other than those described in section V(3), the remedy shall be a motion to enforce the settlement. The parties stipulate that the Southern District of Indiana shall maintain jurisdiction to enforce the settlement.
6. The pending Americans with Disabilities Act and Rehabilitation Act claims made by each of the class representatives, Charles Smith, Michael Ray Stafford, and Douglas Smith, shall be permanently stayed until (1) this case is dismissed under Section VII(1) of this Agreement, at which time these claims shall be dismissed automatically; or (2) this case is reopened on the merits under Section V(3).
VI. Conflict Resolution. 1. The parties agree that in the event that a term of this Agreement is in conflict with the HCSD during the active period of this Agreement, a term specified in this Agreement shall supercede a conflicting term in the HCSD.
VII. Termination of this Agreement. 1. It is the parties’ intent that this Agreement will remain actively in effect until July 1, 2025. Absent written agreement or order of the Court, the case will automatically be dismissed without prejudice at that time. The period that this Agreement is actively in effect may be extended by written agreement of the parties or by order of the Court after a motion by either party. In the event of any extension, the case will be automatically dismissed without prejudice at the end of the extended period.
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VIII. Attorneys’ Fees. 1. State Defendants shall pay to plaintiffs’ counsel the amounts of $307,359 in full satisfaction of any claims in this lawsuit for all attorneys’ fees, and $4,974.00 in costs, owing as of the date of this Agreement. The payment shall be made within 60 days of the Court finding that this Settlement Agreement is fair, reasonable, and adequate pursuant to Rule 23(e) of the Federal Rules of Civil Procedure. 2. As noted above, Plaintiffs’ counsel anticipates that they will continue to monitor this Agreement during the time that it remains in effect. Absent a final judgment or other order that allows fees to be sought pursuant to 42 U.S.C. § 1988, Plaintiffs’ counsel will not seek attorneys’ fees or costs for their monitoring efforts. 3. If, however, Plaintiffs’ counsel assert failures to comply with this Agreement under Sections V(3) or (5), then associated fees and costs shall be by negotiated resolution of the claim or upon proper fee petition submitted to the Court by Plaintiffs.
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For the plaintiffs: By: Mark W. Sniderman
FINDLING PARK CONYERS WOODY & SNIDERMAN, PC 151 N. Delaware St., Ste. 151 Indianapolis, IN 46204 (317) 231-1100 T (317) 231-1106 F msniderman@findlingpark.com Robert A. Katz INDIANA UNIVERSITY MCKINNEY SCHOOL OF LAW 530 West New York Street Indianapolis, IN 46202 (317) 278-4791 T rokatz@iu.edu
For the defendants: By: Jonathan P. Nagy
Deputy Attorney General OFFICE OF THE ATTORNEY GENERAL Indiana Government Center South 302 W. Washington St., 5th Floor Indianapolis, IN 46204 Phone: (317) 233-8296 FAX: (317) 232-7979 Email: Jonathan.Nagy@atg.in.gov
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 Case 1:17-cv-00289-JMS-MJD Document 39 Filed 04/17/17 Page 1 of 22 PageID #: 229

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION

MICHAEL RAY STAFFORD, CHARLES SMITH and DOUGLAS SMITH, individually, and on behalf of those similarly situated,
Plaintiffs,
v.
ROBERT E. CARTER, JR., MICHAEL MITCHEFF, M.D., MONICA GIPSON, R.N., PAUL TALBOT, M.D., MICHAEL PERSON, M.D., HOUMAN KIANI, M.D., CORIZON HEALTH, INC., CORIZON, LLC, and WEXFORD OF INDIANA, LLC,
Defendants.

) ) ) ) ) ) ) ) Case No. 1:17-cv-289-JMS-MJD
)
)
)
)
)
)
)
)
)
)
) Complaint – Class Action
) Jury Trial Requested

FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

Plaintiffs, by counsel, now file their First Amended Complaint, pursuant to FED.

R. CIV. P. 15(a)(1)(B), and state as follows.1

INTRODUCTION

1. The named plaintiffs are state prison inmates incarcerated in Pendleton

Correctional Facility, Pendleton, Indiana (“PCF”), who have tested positive for the

Hepatitis C virus (“HCV”), a chronic disease primarily affecting the liver that can lead to

cirrhosis, liver failure, cancer, and other serious and potentially life-threatening

conditions. Plaintiffs allege that Defendants have failed to provide medical treatment for

1 Newly-added parties in bold. Defendant Wexford of Indiana, LLC (see infra at ¶ 18), on information and belief, has contracted with the State of Indiana Department of Corrections (“DOC”) to provide health care to inmates incarcerated by the DOC. Plaintiffs have also added Corizon, LLC, as a Defendant; and have dismissed the DOC by notice.

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HCV that meets the recognized standard of care in the United States. 2. The standard of care requires that HCV be treated with certain direct-
acting antiviral (“DAA”) oral medications approved by the U.S. Food and Drug Administration (“FDA”). This standard is set forth in the clinical guidelines and treatment recommendations developed by the nation’s preeminent medical and scientific societies specializing in the study and treatment of HCV, which have been cited by the Federal Bureau of Prisons (“FBOP”). These guidelines are available online and are regularly updated to incorporate the most current research.2
JURISDICTION, VENUE, AND CAUSES OF ACTION 3. This Court has original subject matter jurisdiction of the federal questions presented herein pursuant to 28 U.S.C. §§ 1331 and 1343. 4. Venue is proper in this district pursuant to 28 U.S.C. § 1391(b), for some of or all the Defendants reside in this judicial district, and the events or omissions giving rise to these claims arose here. 5. Plaintiffs set forth claims under the Eighth and Fourteenth Amendments to the United States Constitution pursuant to 42 U.S.C. § 1983; Titles II and III of the Americans with Disabilities Act, as amended, 42 U.S.C. § 12131 et seq. (the “ADA”); and the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq. (the “Rehabilitation Act”). 6. Declaratory relief is authorized by Rule 57 of the Federal Rules of Civil Procedure and 28 U.S.C. §§ 2201 and 2202.
2http://hcvguidelines.org/, last accessed January 27, 2017; and see http://www.bop.gov/resources/pdfs/hepatitis_c.pdf, last accessed January 27, 2017.
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PARTIES PLAINTIFFS
7. Michael Ray Stafford, an inmate of the Indiana Department of Corrections (“DOC”) at PCF, was informed by DOC personnel or agents that he tested positive for HCV after he was the victim of an assault by another inmate who infected him with HCV-positive blood products, prior to October 2013.
8. Charles Smith, an inmate of DOC at PCF, was informed by DOC personnel or agents that he was HCV-positive when he was incarcerated at the DOC facility in Michigan City, Indiana, prior to October 2013.
9. Douglas Smith, an inmate of DOC at PCF, was informed by DOC personnel or agents he was HCV-positive prior to October 2013. DEFENDANTS
10. Commissioner Robert E. Carter, Jr., an adult individual, is the duly appointed Commissioner of Corrections of the DOC, is responsible for HCV policy and the administration and supervision of HCV treatment staff within DOC, and is sued in his official capacity for actions and omissions made under the color of law.
11. Michael Mitcheff, M.D., an adult individual, is the Chief Medical Officer of the DOC, is responsible for medical services within DOC, including HCV diagnosis and treatment, and is sued in his individual and official capacities for actions and omissions made under color of law.
12. Monica Gipson, R.N., an adult individual, is DOC’s Director of Health Services, responsible for medical services within DOC, including HCV diagnosis and treatment, and is sued in her individual and official capacities for actions and omissions
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made under color of law. 13. Paul Talbot, M.D., an adult individual, at all relevant times is or was a
treating physician at PCF, with the obligation to provide the current standard of care for HCV, is sued in his individual capacity for actions and omissions made under color of law.
14. Michael Person, M.D., an adult individual, at all relevant times is or was a treating physician at PCF, with the obligation to provide the current standard of care for HCV, is sued in his individual capacity for actions and omissions made under color of law.
15. Houman Kiani, M.D., an adult individual, at all relevant times is or was a treating physician at PCF, with the obligation to provide the current standard of care for HCV, is sued in his individual capacity for actions taken and omissions made under color of law.
16. Defendant Corizon Health, Inc., is a for-profit foreign company doing, or which did, business in the State of Indiana, with corporate offices located at 105 Westpark Drive, Suite 200, Brentwood, Tennessee; and a principal office at 3737 N. Meridian St., Indianapolis, Indiana, and is and was a recipient of federal funds. The registered agent for Corizon Health, Inc., is CT Corporation System, 150 West Market St., Ste. 800, Indianapolis, Indiana, 46204.
17. Defendant Corizon, LLC, is a for-profit foreign company doing, or which did, business in the State of Indiana, with corporate offices located at 103 Powell Court, Brentwood, Tennessee; and is and was a recipient of federal funds. The registered agent for Corizon, LLC, is CT Corporation System, 150 West Market St., Ste. 800, Indianapolis, Indiana, 46204. (Hereinafter Corizon Health, Inc., and Corizon, LLC, will
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be referred to collectively as “Corizon.”) 18. Defendant Wexford of Indiana, LLC (“Wexford”), is a for-profit
company doing business in the State of Indiana, with corporate offices and a principal office located at 9152 Kent Avenue, Indianapolis, Indiana, and is a recipient of federal funds. The registered agent for Wexford is Douglas P. Long, 500 N. Meridian St., Ste. 400, Indianapolis, Indiana, 46204.
19. Upon information and belief, Corizon was under contract or otherwise obligated to provide medical care to incarcerated inmates for the State of Indiana at all relevant times until and through March 31, 2017.
20. Upon information and belief, Wexford is under contract or otherwise obligated to provide medical care to incarcerated inmates for the State of Indiana at all relevant times beginning and since April 1, 2017.
21. At all times relevant to this action, Defendants Corizon and Wexford, were and are private actors that were under contract or otherwise obligated to provide medical care to incarcerated inmates for the State of Indiana. Because their conduct is fairly attributable to the State of Indiana, Corizon and Wexford acted and act under color of state law, as described herein. See, West v. Atkins, 487 U.S. 42, 54 (1988).
22. Plaintiffs sue Defendants for the creation and implementation of policies that have directly inflicted harm and demonstrated deliberate indifference to Plaintiffs’ disability, disease, and serious medical needs; and sue Defendants for their deliberate indifference to Plaintiffs’ disability, disease, and serious medical needs, in violation of the Eighth and Fourteenth Amendments to the United States Constitution, the ADA and the Rehabilitation Act. The policies, harm, deliberate indifference and damages are ongoing, and Plaintiffs seek declaratory and injunctive relief and compensatory damages, inter alia.
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NATURE OF THE CASE The Hepatitis C Virus
23. HCV is a disabling, chronic and easily spread blood-borne disease that substantially impairs the digestive and circulatory system as it destroys the liver and kills the patient. As a result, HCV substantially impairs major life activities of eating, walking, moving, self-care, normal psychological and emotional functioning, and life itself.
24. The standard of care for HCV requires treatment with FDA-approved DAA drugs.
25. HCV’s overt symptoms are often subtle, and include lethargy, fatigue, non-specific pain, skin rashes and jaundice, while HCV destroys the circulatory system, kidney and liver function of its victims. HCV has been a growing silent epidemic since it was first discovered in 1989. Today, approximately half of the three-to-four million or more Americans infected with HCV are not aware of their infected status.3
26. Before the new era in HCV treatment began in late 2013, HCV treatment consisted of highly individualized drug “cocktails” combined with weekly toxic Interferon injections that lasted nearly a year. Interferon side effects included debilitating flu-like symptoms. Cure-rates were under 50%, and there was no single standard of care protocol because treatment varied significantly. See, e.g., Roe v. Elyea, 631 F.3d 843, 863-67 (7th Cir. 2011). October 2013: FDA Breakthrough Cure for HCV
27. The bleak prospects for HCV-infected patients changed completely in October 2013, when the FDA approved new “breakthrough” DAA drugs that cured HCV in only 12 weeks with daily oral medication, at a 95% rate. 3 http://www.hcvguidelines.org/, last accessed January 27, 2017.
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28. By late 2013, the three relevant medical societies -- the American Association for the Study of Liver Disease (“AASLD”), the Infectious Disease Society of America (“IDSA”), and the International Antiviral Society-USA (IAS-USA) -- convened thirty experts in gastroenterology, hepatology, and infectious diseases to constitute a guidance panel (a.k.a. the "HCV Guidance Panel") to advise all practitioners who treat HCV.4
29. The HCV Guidance Panel was convened to advise HCV-treating medical practitioners of the standard of care by creating a website to provide:
...[U]p-to-date recommendations for HCV practitioners on the optimal screening, management and treatment for adults with HCV infection in the United States, using a rigorous review process to evaluate the best available evidence.... This [website] was conceived as a living document that would reside online and undergo real-time revisions as the field evolved.5 Clearly-Established Rights Regarding HCV in Particular 30. The Defendants have violated Plaintiffs’ clearly established rights under the Eighth and Fourteenth Amendments to the United States Constitution by failing to adhere to the HCV Guidance Panel’s standard of care because:
a. Practitioners are legally obliged to prescribe lifesaving medication required by the current standard of care;
4 The origins, purpose and process of the HCV Guidance Panel and its website are explained by the AASLD/IDSA HCV Guidance Panel (2015), “Hepatitis C guidance: AASLD-IDSA recommendations for testing, managing, and treating adults infected with hepatitis C virus,” Hepatology, Vol. 62, Issue 3, 932-954, Nov. 3, 2015 (attached as Exhibit 1); also available online at http://onlinelibrary.wiley.com/doi/10.1002/hep.27950/full, last accessed January 27, 2017. 5 Id. at 932
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b. Failing to provide the standard of care for HCV can cause Plaintiffs cognizable harm (see, e.g., Erickson v. Pardus, 551 U.S. 89 (2007)); and c. Exposing uninfected inmates to infection from HCV-positive inmates can constitute deliberate indifference. See, e.g., Helling v. Mckinley, 509 U.S. 25, 33 (1993) (citing Hutto v. Finney, 437 U.S. 678, 682 (1978)). 31. Each day the Defendants breach the standard of care, the likelihood of cirrhosis of the liver, liver cancer, liver transplant, and death from HCV increases for each named Plaintiff and each member of the Class they represent; as does the likelihood of infection for those in DOC facilities and the general public after their release. 32. On February 24, 2016, the HCV Guidance Panel explicitly recommended, without reservation, that all HCV treatment practitioners prescribe the DAA drugs for all HCV-positive patients. The Veterans Health Administration adopted this policy on or about this same day.
FACTS 33. Each named Plaintiff is confined at PCF and has been has been diagnosed by Defendants as HCV-positive prior to the filing of the Complaint; has requested treatment with the DAA drugs; has been denied such treatment by Defendants and the DOC; and has exhausted internal remedies. 34. The DOC screens all inmates for HCV and HIV infections: and Defendants are thus aware of each inmate who is HCV-positive and HIV co-infected, and who pose a risk of infecting other inmates in the prison population and the general public upon release. 35. On information and belief, the DOC has acknowledged that approximately 190 inmates at PCF are HCV-positive.
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36. The standard of care for HCV-positive patients requires they be treated with DAA drugs, and be cured in 12 weeks in order to: (a) prevent the spread of the epidemic, and (b) prevent deterioration of the patients' internal organs.
37. Because of the short-term costs of treating HCV-positive inmates in the DOC system, Defendants Corizon and Wexford have deliberately instituted policies of rationing anti-HCV medication and non-compliance with the standard of care.
38. Upon information and belief, Defendants have conspired to avoid treating HCV-positive inmates according to the standard of care for reasons of administrative convenience and cost, both of which are unrelated to the medical needs of individual inmates.
39. As a result of their failure to treat HCV-positive inmates appropriately, Defendants have exposed named Plaintiffs and other HCV-positive inmates to significant harm, and placed the entire prison population and the general public to greatly increased risk of serious harm and injury from HCV infection by spreading the infection throughout the prison population and beyond.
40. Upon information and belief, at all relevant times, all Defendants had actual knowledge of the Plaintiffs’ serious medical needs, and of the HCV Guidance Panel Guidelines, through websites, professional journals, professional meetings, FBOP publications and general media.
41. Upon information and belief, at all times relevant to this lawsuit, Defendants were aware that named Plaintiffs have been infected with HCV and are aware of each member of the proposed class who is also HCV-positive (i.e., the 190 inmates at PCF alone, and all others inmates incarcerated by the DOC who are HCVpositive).
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42. On information and belief, at all times relevant to this lawsuit, Defendants have willfully delayed, denied, and deliberately and indifferently interfered with Plaintiffs’ HCV treatment for non-medical reasons, contrary to the standard of care, by withholding HCV treatment; and by permitting HCV-infected persons to remain infectious to others.
43. At all times relevant to this lawsuit, Defendants have willfully and knowingly exposed uninfected inmates to life-threatening HCV infections for nonmedical reasons by withholding the standard of care for inmates who are HCV-positive.
44. Should Defendants treat Plaintiffs and all similarly situated persons according to the standard of care, HCV would be eliminated from the blood pool of the DOC.
45. Defendants’ knowing refusal to treat Plaintiffs pursuant to the standard of care prolongs and increases the harm HCV is causing to named Plaintiffs' and inmate Class members’ bodies and life expectancies, and demonstrates deliberate indifference to their serious medical needs.
46. Plaintiffs also sue Defendants for the creation and implementation of policies that have:
a. directly inflicted harm upon, and demonstrated deliberate indifference to the disability, disease, and serious medical needs of Plaintiffs, in violation of the Plaintiffs’ clearly established rights under the Eighth Amendment, as incorporated by the Fourteenth Amendment, and
b. discriminated against Plaintiffs on the basis of their disability, in violation of Title II and III of the ADA and the Rehabilitation Act.
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Class Allegations 47. Plaintiffs bring this action on behalf of themselves and others similarly situated (the “Class”) pursuant to Fed. R. Civ. P. 23(a) and 23(b)(2). 48. Plaintiffs seek to represent the following Class on claims for declaratory and injunctive relief and damages: all persons (male and female) incarcerated in DOC facilities with 12 weeks or more remaining on their sentences, who test HCV-positive and wish to receive the standard of care treatment. 49. The requirements of Fed. R. Civ. P. 23(a) are met by this action. 50. The numerosity requirement of Fed. R. Civ. P. 23(a)(1) is met, for in addition to the approximately 190 HCV-positive inmates at PCF alone, there are likely a significant number of persons (male and female) incarcerated in other DOC facilities with diagnosed and undiagnosed HCV. The number of persons who are members of the Class described above is so large that joinder of all members in one action is impracticable. 51. Questions of law and fact are common to the Class pursuant to Fed. R. Civ. P. 23(a)(2), including but not limited to: (1) the standard of care; (2) whether the current DOC policy must be replaced with the standard of care; (3) whether Defendants’ refusal to adhere to the standard of care violates the Class members’ rights under the Eighth Amendment as incorporated by the Fourteenth Amendment; (4) whether the Defendants’ refusal to adhere to the standard of care violates: (a) the ADA, and (b) Section 504 of the Rehabilitation Act; and (5) the declaratory and prospective equitable relief in standard of care treatment of HCV predominate over any unique relief demands of Plaintiffs or Class members. 52. Plaintiffs’ claims are typical of those of the Class members, pursuant to Fed. R. Civ. P. 23(a)(3), because named Plaintiffs and all Class members were injured by
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the same wrongful policy and practices of Defendants as described in this Complaint; and are based on the same legal theories and factual questions relating to the standard of care.
53. Plaintiffs’ claims are representative of those of the Class, pursuant to Fed. R. Civ. P. 23(a)(4), because (1) Plaintiffs will fairly and adequately protect the interests of the Class; (2) Plaintiffs have no interests contrary to the Class they seek to represent; (3) Plaintiffs are represented by competent and skilled counsel whose interests are aligned with the interests of the Class; (4) relief concerning named Plaintiffs’ rights under the laws herein alleged and with respect to the Class would be proper; (5) Defendants have acted or refused to act with respect to the Class as a whole; and (6) Counsel for Plaintiffs have developed a particular expertise in the rapidly changing science underlying the changes in the standard of care for HCV practitioners.
54. A class action satisfies Fed. R. Civ. P. 23(b)(3), because: (1) it is superior to other available methods for the fair and efficient adjudication of this litigation since joinder of all members of the Class is impracticable; (2) the number would prove unduly burdensome and inefficient for the Court and parties; (3) because a common set of facts, grievances and remedies predominate over individual issues, relief by a single court is in the interest of all parties; and (4) conduct of this action as a class action will protect the rights of all Class members and promote judicial efficiency and consistency. Notice can be provided to Class members by United States Mail.
LEGAL CLAIMS COUNT I
Eighth Amendment via 42 U.S.C. § 1983 Dr. Talbot, Dr. Person, Dr. Kiani, Dr. Mitcheff and Nurse Gipson, in their
Individual Capacities, Corizon and Wexford
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55. Plaintiffs reallege and incorporate herein by reference paragraphs 1 through 54 of this Complaint.
56. Plaintiffs and all persons similarly situated have a serious medical need which requires HCV treatment in accordance with the standard of care.
57. Dr. Talbot, Dr. Person and Dr. Kiani, while acting under the color of law, were aware of the named Plaintiffs’ serious medical needs, were deliberately indifferent to such needs, and were personally involved with the denial of care to Plaintiffs by denying them medication required by the standard of care.
58. Within the scope of their employment or contract by, with or through Corizon, Wexford, and/or the DOC, Dr. Talbot, Dr. Person and Dr. Kiani have and/or had the responsibility to care for the Plaintiffs according to the standard of care, but breached this standard of care and continue to do so, all of which has caused harm to Plaintiffs.
59. Part or all of the foregoing deliberate indifference was and remains due to these Defendants’ reliance on DOC policies or protocols that fail to require the treatment of inmates with HCV pursuant to the standard of care.
60. Defendants Dr. Mitcheff and Nurse Gipson were and are aware of named Plaintiffs’ serious medical needs for treatment for HCV in accordance with the standard of care, and were and are personally involved in the denial of care to Plaintiffs.
61. Dr. Mitcheff and Nurse Gipson were and remain deliberately indifferent to Plaintiffs’ serious medical needs by failing to enact policies that would assure that the named Plaintiffs and Class members would obtain the standard of care treatment for HCV; and/or while abiding by policies that would not assure the named Plaintiffs and
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Class members would obtain the standard of care treatment for HCV; while acting under the color of law.
62. At all times relevant to this action, Corizon and Wexford were private actors under contract or otherwise obligated to provide medical care to incarcerated inmates for the State of Indiana. Because their conduct is fairly attributable to the State of Indiana, Corizon and Wexford acted under color of state law at all relevant times.
63. Corizon and Wexford, by and through their agents, employees, or representatives, were aware of the serious medical needs of Plaintiffs and persons similarly situated.
64. Corizon and Wexford were deliberately indifferent to Plaintiffs’ serious medical needs by failing to enact and abide by policies to assure that the named Plaintiffs and Class members would obtain the standard of care for HCV treatment.
65. The actions and omissions of Corizon and Wexford described herein constitute a violation of the rights secured to Plaintiffs and persons similarly situated by the Eighth Amendment to the United States Constitution, as incorporated by the Fourteenth Amendment to the United States Constitution. The actions and omissions of Wexford described herein also constitute ongoing violations.
66. Defendants, Dr. Talbot, Dr. Person and Dr. Kiani, Dr. Mitcheff, Nurse Gipson, Corizon and Wexford, knew and know of the substantial risk that Plaintiffs suffer from progression of HCV infections, which foreseeably lead to exacerbated liver or kidney malfunction, liver fibrosis, liver cirrhosis, liver cancer, expensive liver transplant, and/or death by liver malfunction.
67. Said Defendants, in the course and scope of their employment by or contractual obligations with the DOC, were and remain deliberately indifferent to the
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need for medical treatment of Plaintiffs, and persons similarly situated, and have proximately caused Plaintiffs harm.
68. The actions and omissions of the Defendants described herein constitute a violation of the rights secured to Plaintiffs and persons similarly situated by the Eighth Amendment to the United States Constitution, as incorporated by the Fourteenth Amendment to the United States Constitution.
69. As a proximate result of the actions and omissions discussed in this count, Plaintiffs and persons similarly situated were injured, endured physical pain and mental suffering, experienced mental anguish and emotional distress and will continue to suffer from these injuries in the future.
COUNT II Eighth Amendment via 42 U.S.C. § 1983 Commissioner Carter, Dr. Mitcheff and Nurse Gipson, in their
Official Capacities 70. Plaintiffs reallege and incorporate herein by reference paragraphs 1 through 69 of this Complaint. 71. Plaintiffs and all persons similarly situated had and have a serious medical need for standard of care treatment of their HCV. 72. Defendants, Commissioner Carter, Dr. Mitcheff and Nurse Gipson, were and are aware of Plaintiffs’ and Class members’ serious medical needs for standard of care treatment of their HCV. 73. Said Defendants know, or have reasons to believe, that Plaintiffs and DOC prisoners with HCV are not being treated pursuant to the standard of care.
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74. Said Defendants remain deliberately indifferent to Plaintiffs’ serious medical needs by failing to enact policies that would assure that the named Plaintiffs and Class members would obtain the standard of care treatment for HCV.
75. Said Defendants remain deliberately indifferent to Plaintiffs’ serious medical needs by abiding by policies that do not assure the named Plaintiffs and Class members will obtain the standard of care treatment for HCV.
76. Said Defendants are deliberately indifferent to the substantial risk of progression of the HCV infection of Plaintiffs and all persons similarly infected with the HCV virus, which proximately causes Plaintiffs harm.
77. Said Defendants are deliberately indifferent to the substantial risk of spreading HCV to the rest of the prison population and the general public by failing to follow the standard of care for treating HCV-infected inmates to eliminate the virus from the prison blood pool.
78. Plaintiffs seek prospective relief to address the ongoing violations of their rights by said Defendants as described herein.
79. The actions and omissions of said Defendants described herein, made under color of law, constitute an ongoing violation of the rights secured to Plaintiffs and persons similarly situated by the Eighth Amendment to the United States Constitution, as incorporated by the Fourteenth Amendment to the United States Constitution.
80. As a proximate result of the actions and omissions discussed in this count, Plaintiffs and persons similarly situated were injured, endured physical pain and mental suffering, experienced mental anguish and emotional distress and will continue to suffer from these injuries in the future.
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COUNT III Title II of the ADA and § 504 of the Rehabilitation Act Commissioner Carter, Dr. Mitcheff and Nurse Gipson, in their
Official Capacities 81. Plaintiffs reallege and incorporate herein by reference paragraphs 1 through 80 of this Complaint. 82. Plaintiffs have HCV, a disability and physical impairment that can and does substantially affect the major life activities of digestive systems, circulatory systems, and life itself, of which Defendants were aware; and are qualified individuals with a disability, for the purposes of the ADA. 42 U.S.C. § 12132. 83. The DOC is a public entity, pursuant to Title II of the ADA. 42 U.S.C. § 12131(1)(A), (B). 84. Defendants, Commissioner Carter, Dr. Mitcheff and Nurse Gipson, have actual knowledge that progression of HCV can and would foreseeably lead to exacerbated serious medical harms including liver malfunction, liver fibrosis, liver cirrhosis, liver cancer, expensive liver transplant, or even death by liver malfunction. 85. Said Defendants and the DOC disregarded the substantial risk of progression of the HCV infection by failing to assure that Plaintiffs and Class members would obtain the standard of care treatment for their condition while acting under the color of law. 86. Said Defendants and the DOC could have reasonably accommodated Plaintiffs’ disabilities, so as not to exclude them from participation in, or deny them the benefits of, the federally funded services, programs, or activities of DOC, by reasonably accommodating Plaintiffs’ disabilities by providing them with the treatment required by the standard of care; and by not subjecting them to discrimination.
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87. Said Defendants and the DOC failed to reasonably accommodate Plaintiffs’ known disabilities.
88. Said Defendants and the DOC subject the Plaintiffs to discrimination by withholding medically appropriate treatment that will cure them of HVC, and thus their disability. At the same time, these Defendants and the DOC do not withhold life-saving treatments from individuals with different disabilities.
89. This denial of treatment and discrimination wrongfully violate the ADA and the Rehabilitation Act because Plaintiffs, due to their disability, are excluded from participation in, and are denied the benefits of the services, programs, or activities of a public entity; and/or are subjected to discrimination by any such entity. See 42 U.S.C. § 12132 and 29 U.S.C. § 794(a).
90. Due to the foregoing failures, Plaintiffs and all other similarly situated qualified disabled persons continue to suffer injuries that include progression of their respective infections, increased symptoms, pain, suffering, fear, diminished enjoyment of life, and decreased life expectancy, in addition to threat of infection and re-infection.
91. Said Defendants acted with deliberate, reckless, knowing, or intentional disregard and indifference for the established rights, health, and safety of Plaintiffs and those similarly situated, which proximately caused Plaintiffs harm.
92. The actions and omissions of the Defendants described herein constitute violations of Title II of the ADA and § 504 of the Rehabilitation Act.
93. As a proximate result of the actions and omissions discussed in this count, Plaintiffs and persons similarly situated were injured, endured physical pain and mental suffering, experienced mental anguish and emotional distress and will continue to suffer from these injuries in the future.
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COUNT IV Title III of the ADA and § 504 of the Rehabilitation Act
Wexford 94. Plaintiffs reallege and incorporate herein by reference paragraphs 1 through 93 of this Complaint. 95. Defendant Wexford is aware that Plaintiffs’ HCV is a disability and physical impairment that can and does substantially affect the major life activities of Plaintiffs’ digestive systems, circulatory systems, and life itself. 96. Wexford, by and through its agents, employees, or representatives, knows that delay of Plaintiffs' treatment will foreseeably lead to exacerbated serious medical harms including liver malfunction, liver fibrosis, liver cirrhosis, liver cancer, liver transplant and/or death by liver malfunction. 97. Wexford deliberately disregards and is deliberately indifferent to the substantial risk of progression of the HCV infection by failing to enact policies to assure that the named Plaintiffs and Class members would obtain the standard of care treatment for HCV. 98. Wexford can reasonably accommodate Plaintiffs’ HCV disabilities, so as not to exclude them from participation in, deny them the benefits of federally-funded services, programs, or activities by reasonably accommodating Plaintiffs’ HCV disabilities with standard of care treatment. 99. Wexford fails to reasonably accommodate Plaintiffs’ known disabilities, notwithstanding that compliance with the standard of care is not an undue hardship. Wexford wrongfully discriminates against Plaintiffs and Class members on the basis of their HCV disabilities in the “full and equal enjoyment of the goods, services, facilities,
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privileges, advantages, or accommodations” that Wexford provides to other inmates incarcerated by the DOC. See 42 U.S.C. § 12182(a).
100. Wexford, as a contracted medical care provider of the DOC, through its agents, employees, or representatives, acted and acts with deliberate, reckless, knowing, or intentional disregard for the rights, health, and safety of the Plaintiffs, which proximately causes Plaintiffs harm.
101. The actions and omissions Wexford described herein constitute violations of Title III of the ADA and § 504 of the Rehabilitation Act. See 42 U.S.C. § 12182 and 29 U.S.C. § 794(a).
102. As a proximate result of the actions and omissions discussed in this count, Plaintiffs and persons similarly situated were injured, endured physical pain and mental suffering, experienced mental anguish and emotional distress and will continue to suffer from these injuries in the future.
RELIEF REQUESTED WHEREFORE named Plaintiffs and all similarly situated persons pray for the following relief: 103. For named Plaintiffs and members of the Plaintiff Class, such equitable relief as this Court deems just and proper, including, but not limited to, HCV treatment pursuant to the current standard of care; 104. For Plaintiffs, an award of appropriate compensatory damages for all claims for which compensatory damages are available, against those Defendants who may be liable for such compensatory damages, jointly and severally, in an amount to be determined by jury; 105. For named Plaintiffs, an award of punitive damages against Defendants,
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sued in their respective individual capacities, jointly and severally, for claims arising under the Eighth and Fourteenth Amendments to the United States Constitution, in an amount to be determined at trial by jury; and
106. Attorney fees, expenses and costs, punitive damages, and all other appropriate relief to which the Court may deem Plaintiffs entitled.
REQUEST FOR TRIAL BY JURY Plaintiffs, by counsel, hereby request a trial by jury with respect to any issues so triable. Respectfully submitted,

s/ Robert A. Katz Robert A. Katz Professor of Law, Indiana University ROBERT H. MCKINNEY SCHOOL OF LAW 530 West New York Street Indianapolis, IN 46202 (317) 278-4791 T rokatz@iu.edu

s/ Mark W. Sniderman Mark W. Sniderman SNIDERMAN NGUYEN LLP 47 S. Meridian St., Ste. 400 Indianapolis, IN 46220 (317) 361-4700 T (317) 464-5111 F mark@snlawyers.com

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CERTIFICATE OF SERVICE

The undersigned hereby certifies that a copy of Plaintiffs’ First Amended Complaint

for Declaratory and Injunctive Relief was filed electronically on this 17th day of April 2017.

Notice of this filing will be sent to the following counsel by operation of the Court’s

electronic filing system. Parties and counsel may access this filing through the Court’s

System.

Benjamin M. L. Jones Jonathan P. Nagy OFFICE OF THE ATTORNEY GENERAL Indiana Government Center South 302 West Washington Street, Fifth Floor Indianapolis, IN 46204 bejamin.jones@atg.in.gov jonathan.nagy@atg.in.gov
Jessica L. Liss Carrie L. Kinsella JACKSON LEWIS P.C. 7733 Forsyth Blvd., Suite 600 St. Louis, Missouri 63105 Jessica.Liss@jacksonlewis.com Carrie.Kinsella@jacksonlewis.com

Scott James Preston Melissa K. Taft JACKSON LEWIS P.C. 10 West Market Street, Suite 2400 Indianapolis, IN 46204 Scott.Preston@jacksonlewis.com Melissa.taft@jacksonlewis.com
William R. Lunsford MAYNARD, COOPER & GALE, P.C. 655 Gallatin Street Huntsville, AL 35801 blunsford@maynardcooper.com

s/ Mark W. Sniderman Mark W. Sniderman
SNIDERMAN NGUYEN LLP 47 S. Meridian Street, Suite 400 Indianapolis, IN 46204 (317) 361-4700 T (317) 464-5111 F

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 Case 1:17-cv-00289-JMS-MJD Document 103 Filed 10/10/17 Page 1 of 7 PageID #: 772

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

MICHAEL RAY STAFFORD, CHARLES SMITH, and DOUGLAS SMITH,
Plaintiffs,
vs.
WEXFORD OF INDIANA, LLC, et al.,
Defendants.

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No. 1:17-cv-00289-JMS-MJD

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ORDER

Plaintiffs Michael Ray Stafford, Charles Smith, and Douglas Smith filed this Amended

Complaint (“Complaint”) alleging that Wexford of Indiana, LLC (“Wexford”) violated their rights

under the Eighth Amendment via 42 U.S.C. § 1983, Title III of the Americans with Disabilities

Act, 42 U.S.C. § 12131 et seq. (“ADA”), and the Rehabilitation Act of 1973, as amended, 29

U.S.C. § 791 et seq. (“Rehabilitation Act”). [Filing No. 39.] Wexford has filed a Motion to

Dismiss Plaintiffs’ ADA and Rehabilitation Act claims [Filing No. 77], and the motion is now ripe

for the Court’s decision.

I. LEGAL STANDARD

Federal Rule of Civil Procedure 8(a)(2) “requires only ‘a short and plain statement of the

claim showing that the pleader is entitled to relief.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007)

(quoting Fed. R. Civ. Pro. 8(a)(2)). “Specific facts are not necessary, the statement need only ‘give

the defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Erickson,

551 U.S. at 93 (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007)).

Case 1:17-cv-00289-JMS-MJD Document 103 Filed 10/10/17 Page 2 of 7 PageID #: 773
A motion to dismiss asks whether the complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). In reviewing the sufficiency of a complaint, the Court must accept all well-pled facts as true and draw all permissible inferences in favor of the plaintiff. See Active Disposal, Inc. v. City of Darien, 635 F.3d 883, 886 (7th Cir. 2011). The Court will not accept legal conclusions or conclusory allegations as sufficient to state a claim for relief. See McCauley v. City of Chicago, 671 F.3d 611, 617 (7th Cir. 2011). Factual allegations must plausibly state an entitlement to relief “to a degree that rises above the speculative level.” Munson v. Gaetz, 673 F.3d 630, 633 (7th Cir. 2012). This plausibility determination is “a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id.
II. RELEVANT BACKGROUND The following background is set forth pursuant to the applicable standards, accepting all well-pled factual allegations against Wexford from Plaintiffs’ Complaint as true. Stafford is an inmate of the Indiana Department of Corrections (“IDOC”) who was informed that he tested positive for the Hepatitis C virus (“HCV”) following an altercation with another inmate who infected him with HCV-positive blood products. [Filing No. 39 at 3.] Charles Smith is an inmate of IDOC who was informed by IDOC personnel that he was HCV-positive when he was incarcerated at an IDOC facility. [Filing No. 39 at 3.] Douglas Smith is also an inmate of IDOC who was informed by IDOC that he was HCV-positive. [Filing No. 39 at 3.] Wexford is a for-profit company doing business in the State of Indiana that receives federal funds. [Filing No. 39 at 5.] Wexford is under contract to provide medical care to incarcerated inmates for the State of Indiana. [Filing No. 39 at 5.] Plaintiffs alleged that Wexford created and
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implemented “policies that have directly inflicted harm and demonstrated deliberate indifference to Plaintiffs’ disability, disease, and serious medical needs.” [Filing No. 39 at 5.] This alleged treatment led Plaintiffs to “sue Defendants for their deliberate indifference to Plaintiffs’ disability, disease, and serious medical needs, in violation of the Eighth and Fourteenth Amendments to the United States Constitution, the ADA and the Rehabilitation Act.” [Filing No. 39 at 5.]
Plaintiffs allege that HCV is a “disability and physical impairment that can and does substantially affect the major life activities of digestive systems, circulatory systems, and life itself, of which Defendants were aware,” and that they are qualified individuals with a disability for purposes of the ADA. [Filing No. 39 at 17.] They assert that Wexford created and implemented policies that discriminate against Plaintiffs on the basis of their disability. [Filing No. 39 at 10.]
Plaintiffs allege that, due to Wexford’s failure to treat Plaintiffs’ HCV pursuant to the standard of care, they are exposed to an increased likelihood of cirrhosis of the liver, liver cancer, and death. [Filing No. 39 at 8.] They further allege that Wexford has actual knowledge of Plaintiffs’ serious medical needs and the standard of care for treating said needs. [Filing No. 39 at 9.] Plaintiffs claim that, despite this knowledge, Wexford “willfully delayed, denied, and deliberately and indifferently interfered with Plaintiffs’ HCV treatment for non-medical reasons, contrary to the standard of care, by withholding HCV treatment; and by permitting HCV-infected persons to remain infectious to others.” [Filing No. 39 at 10.]
Plaintiffs claim that Wexford could have reasonably accommodated their disabilities by treating them in accordance with the standard of care, so as not to exclude them from participation in, or deny them the benefits of, federally funded services, programs, or activities of IDOC. [Filing No. 39 at 17.] Additionally, Plaintiffs allege that Wexford discriminates against them by withholding medically appropriate treatment capable of curing HCV and thus their disability,
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while Defendants do not withhold life-saving treatments from individuals with different disabilities. [Filing No. 39 at 18.] They allege that this has resulted in Wexford wrongfully discriminating against them on the basis of their disability and precludes them from receiving the “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations” that Wexford provides to other inmates at IDOC. [Filing No. 39 at 19-20.]
Plaintiffs have alleged that Wexford violated their rights under the Eighth Amendment, the ADA, and the Rehabilitation Act.1 Wexford moves to dismiss Plaintiff’s claims against it under the ADA and the Rehabilitation Act only.
III. DISCUSSION Wexford first argues that it cannot be subject to suit under either the ADA or the Rehabilitation Act because it is not a public entity.2 Wexford cites to Title II of the ADA for the proposition that Title II “prohibits discrimination by public entities, such as state and local governments.” [Filing No. 77-1 at 3.] Plaintiffs concede this legal principle but rightfully point out that their Title II claim does not name Wexford and only names state and local government
1 In addition to the claims brought against Wexford, Plaintiffs have asserted a claim under the Eighth Amendment against both Corizon Health, Inc. and Corizon, LLC (collectively “Corizon”), as well as Dr. Michael Mitcheff, Nurse Monica Gipson, Dr. Paul Talbot, Dr. Michael Person, and Dr. Houman Kiani, in their individual capacities. [Filing No. 39 at 12-15.] Plaintiffs also assert claims under the Eighth Amendment, the ADA, and the Rehabilitation Act against Robert E. Carter, Jr., appointed Commissioner of IDOC, Dr. Mitcheff, and Nurse Gipson in their official capacities. [Filing No. 39 at 15-18.] 2 Wexford also makes the claim that “Plaintiff’s [sic] allegations under the Rehabilitation Act also should be dismissed, as Wexford does not receive federal funds, which is a requirement for liability.” [Filing No. 77-1 at 5.] The Court rejects this argument as the Complaint clearly alleges that Wexford receives federal funds, and the allegation must be accepted as true for purposes of this motion. [Filing No. 39 at 5.] (“Wexford …is a recipient of federal funds.”).
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officials in their official capacities. See [Filing No. 77-1 at 17-18.] Thus, Wexford’s argument with respect to Title II of the Complaint is inapplicable.
Title III, on the other hand, allows ADA claims against private entities and prohibits “discrimination on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). A private entity is considered to offer public accommodations “if the operations of such entities affect commerce--…professional office of a health care provider, hospital, or other service establishment[.]” 42 U.S.C. § 12181(7)(F). Plaintiffs have alleged that Wexford is under contract to “provide medical care to incarcerated inmates,” and therefore qualifies as a health care provider. [Filing No. 39 at 5.] Accordingly, they have adequately alleged that Wexford is a private entity that offers public accommodations.
Finally, Wexford claims that Plaintiffs’ Complaint lacks specificity with respect to the services, programs, or activities that Plaintiffs are being denied on account of their disability. [Filing No. 77-1 at 5.] Wexford claims that this lack of specificity demonstrates that this is an attempt to use the ADA and Rehabilitation Act as a remedy for medical malpractice. [Filing No. 77-1 at 5.] Wexford states that incarceration itself is not an “activity” or “program” within the meaning of the ADA or Rehabilitation Act and therefore Plaintiffs’ claims must fail. [Filing No. 77-1 at 5 (citing Bryant v. Madigan, 84 F.3d 246, 249 (7th Cir. 1996))]. Plaintiffs respond that their discrimination claim is sufficiently specific and is premised on Wexford’s policies of: (1) not treating Plaintiffs pursuant to the applicable standard of care; and (2) withholding medical treatment from Plaintiffs due to their disability. [Filing No. 87 at 6.]
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Contrary to Wexford’s assertion, the Complaint specifically pleads that Wexford “with[held] medically appropriate treatment that will cure them of HVC, and thus their disability.” [Filing No. 39 at 18.] It is true, however, that a plaintiff’s challenge of the quality of care is not a cognizable action under the ADA. See Bryant, 84 F.3d at 249 (explaining that “it would be extremely odd to suppose that disabled persons whose disability is treated negligently have a federal malpractice claim by virtue of the [ADA]”). The ADA is not applicable to complaints relating to the quality of care received, for those complaints may be addressed under a medical malpractice or Eighth Amendment claim. But Plaintiffs do not complaint about the quality of care administered by Wexford; rather, they assert that Wexford has refused to treat Plaintiffs’ disabilities, which is actionable under the ADA. See Nesbitt v. Williams, No. 13 C 9241, 2017 WL 1079240, at *3 (N.D. Ill. Mar. 21, 2017) (finding that although complaints regarding the quality of medical service are not actionable under the ADA, failure to provide a plaintiff “means of access to medical services that a doctor has already determined he needs[,]” is a cognizable claim under the ADA). The Supreme Court has held that medical services, for purposes of the ADA, are in fact “services” for which a plaintiff may bring a claim under the ADA. See United States v. Georgia, 546 U.S. 151, 157 (2006) (“it is quite plausible that the alleged deliberate refusal of prison officials to accommodate [an inmate’s] disability-related needs in such fundamentals as mobility, hygiene, medical care, and virtually all other prison programs constituted ‘exclusion from participation in or … denial of the benefits of’ the prison’s ‘services, programs, or activities.’” (quoting 42 U.S.C. § 12132)). Because Plaintiffs contend that Wexford refused them access to medically appropriate services as required by the ADA, they have adequately alleged a claim under the ADA.
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CONCLUSION For the reasons stated herein, the Court DENIES Wexford’s Motion to Dismiss. [Filing No. 77.]
Date: 10/10/2017 Distribution via ECF only to all counsel of record
7

 
 Case 1:17-cv-00289-JMS-MJD Document 154 Filed 03/02/18 Page 1 of 18 PageID #: 985

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

MICHAEL RAY STAFFORD, CHARLES SMITH, DOUGLAS SMITH,
Plaintiffs,
v.
ROBERT E. CARTER, JR., MICHAEL MITCHEFF, M.D., MONICA GIPSON, R.N., PAUL TALBOT, M.D., MICHAEL PERSON, M.D., HOUMAN KIANI, M.D., CORIZON HEALTH, INC., CORIZON, LLC, WEXFORD OF INDIANA, LLC,
Defendants.

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No. 1:17-cv-00289-JMS-MJD

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AMENDED ORDER1 This case arises out of a challenge to policies regarding the treatment of individuals who

are incarcerated in Indiana Department of Corrections (“IDOC”) facilities and who suffer from the

chronic Hepatitis C Virus (“HCV”). Plaintiffs Michael Ray Stafford, Charles Smith, and Douglas

Smith (“Plaintiffs”) raise claims on behalf of themselves and similarly situated individuals that

policies maintained and implemented by the Defendants in this action have resulted in the

improper denial of treatment to incarcerated individuals who are infected with chronic HCV.

Presently pending before the Court is Plaintiffs’ Motion for Class Certification, in which Plaintiffs

seek to certify a class involving only their prospective declaratory and injunctive relief claims.

1 The Court issues this amendment to its prior order, [Filing No. 148], to address the designation of class representatives and class counsel, which was inadvertently omitted from the original Order.
1

Case 1:17-cv-00289-JMS-MJD Document 154 Filed 03/02/18 Page 2 of 18 PageID #: 986
[Filing No. 99.] For the reasons below, the Court grants Plaintiffs’ Motion and certifies, as modified, the proposed class.
I. BACKGROUND2 The named Plaintiffs are individuals who are incarcerated at Pendleton Correctional Facility and who have been diagnosed with chronic HCV. [Filing No. 39 at 1.] Defendant Robert E. Carter, Jr. is the Commissioner of Corrections of IDOC, Defendant Michael Mitcheff, M.D. is the Chief Medical Officer for IDOC, and Defendant Monica Gipson, R.N. is IDOC’s Director of Health Services (collectively “the State Defendants”). Until March 31, 2017, Defendant Corizon, LLC contracted with the State of Indiana to provide a defined scope of medical services to inmates within IDOC’s custody. [Filing No. 111 at 1.] Defendants Houman Kiani, M.D. and Michael Person, M.D. were treating physicians at Pendleton Correctional Facility pursuant to that contract (collectively, along with Corizon, LLC and Corizon Health, Inc., “Corizon”). [Filing No. 111 at 1.] Defendant Wexford of Indiana, LLC (“Wexford”) entered into a contract with the State of Indiana to provide medical care to IDOC inmates from April 1, 2017 to the present time. [Filing No. 82 at 9.] Defendant Paul Talbot, M.D. was a treating physician at Pendleton Correctional Facility who first worked with Corizon, and later with Wexford. [Filing No. 111 at 1.] Plaintiffs’ First Amended Complaint alleges that HCV is a “disabling, chronic and easily spread blood-borne disease that substantially impairs the digestive and circulatory system as it destroys the liver… .” [Filing No. 39 at 6; see also Filing No. 100-1 at 1-7.] HCV infection
2 The Court is not required to accept as true the First Amended Complaint’s factual allegations at the class certification stage. The Court should “make any factual and legal inquiries needed to ensure that the requirements for class certification are satisfied, even if the underlying considerations overlap with the merits of the case.” Szabo v. Bridgeport Machines, Inc., 249 F.3d 672, 675 (7th Cir. 2001). In resolving this Motion, therefore, the Court considers the First Amended Complaint, Defendants’ Answers, and materials submitted in support of the parties’ briefing.
2

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generally progresses in two stages: acute infection, which occurs during the first six months of exposure to the virus, and chronic infection. [Filing No. 100-1 at 2.] Approximately 15-25% of infected individuals self-resolve at the acute infection stage, and do not develop chronic infection. [Filing No. 100-1 at 2.] The remaining 75-85% of infected individuals develop chronic HCV. [Filing No. 100-1 at 2.]
Chronic HCV can result in “liver damage, liver failure, liver cancer, or even death.” [Filing No. 100 at 3 (citing Filing No. 100-1 at 2).] Plaintiffs allege that in October 2013, the FDA approved new “breakthrough” direct-acting antiviral (“DAA”) drugs that can cure HCV in only 12 weeks with daily oral medication, at a 95% cure rate. [Filing No. 39 at 6; see also Filing No. 100-1 at 3-5.] A panel of experts known as the HCV Guidance Panel (the “Panel”) provides guidelines that represent the standard of care within the medical community for treating HCV.3 [Filing No. 100 at 4 (citing Filing No. 100-1 at 4).] The Panel recommends treatment for all patients with chronic HCV, except those with short life expectancies that cannot be remediated by treatment, transplantation, or other directed therapy. [Filing No. 100 at 5 (citing Filing No. 100-1 at 4).] Chronic HCV does not self-correct: individuals are infected for life unless their HCV is treated with medication. [Filing No. 100 at 3 (citing Filing No. 100-1 at 3).]
Plaintiffs allege that IDOC screens all inmates for HCV infection, and is therefore aware of each inmate who suffers from the illness, and who poses a risk of infecting other inmates and individuals in the general population following release.4 [Filing No. 39.] Plaintiffs allege that they all tested positive for HCV while incarcerated within an IDOC facility. [Filing No. 39 at 3;
3 It is unclear whether Defendants deny this allegation. 4 The State Defendants deny this allegation in their Answer, but as to this Motion, they provide no evidentiary support or other explanation as to how this allegation is incorrect or inaccurate.
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Filing No. 74 at 1.] They also allege that Defendants have denied their requests for treatment of their HCV infections.5 [Filing No. 39 at 8.] Plaintiffs allege that “because of the short-term costs of treating HCV-positive inmates in the DOC system, Defendants Corizon and Wexford have deliberately instituted policies of rationing anti-HCV medication,” to a small number of inmates, failing to comply with the standard of care for HCV. [Filing No. 39 at 9.] They claim that “[a]s a result of [Defendants’] failure to treat HCV-positive inmates appropriately, Defendants have exposed named Plaintiffs and other HCV-positive inmates to significant harm, and placed the entire prison population and the general public [at] greatly increased risk of serious harm and injury from HCV infection by spreading the infection throughout the prison population and beyond.” [Filing No. 39 at 9.]
Plaintiffs filed their initial Complaint in this Court on January 27, 2017, raising claims on behalf of themselves and those similarly situated. [Filing No. 1.] The operative First Amended Complaint alleges that Defendants have violated the Eighth Amendment to the United States Constitution, the Americans with Disabilities Act (“ADA”), and the Rehabilitation Act by failing to provide the named Plaintiffs and putative class members with treatment for their HCV. [Filing No. 39 at 12-20.] The First Amended Complaint seeks monetary damages on behalf of the named Plaintiffs and prospective injunctive and declaratory relief against the State Defendants and Wexford on the behalf of the class. [Filing No. 39.] Presently pending before the Court is Plaintiffs’ Motion for Class Certification, in which Plaintiffs seek to certify a class regarding only
5 For this and all remaining allegations in this paragraph, the Defendants either deny the allegations or assert that they lack information sufficient to either confirm or deny them. Collectively, Defendants have submitted one affidavit in support of their responses to Plaintiffs’ Class Certification Motion, [Filing No. 113-1], which the Court discusses below as relevant.
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their claims for declaratory and injunctive relief against the state Defendants and Wexford. [Filing No. 99; Filing No. 111.] That Motion is now fully briefed and ripe for the Court’s review.6
II. LEGAL STANDARD In deciding whether to certify a class, the Court may not blithely accept as true even the most well-pleaded allegations of the complaint, but must instead “make whatever factual and legal inquiries are necessary under Rule 23” to resolve contested issues. Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 676 (7th Cir. 2001). Specifically, the Court must find that the putative class satisfies the four prerequisites set forth in Federal Rule of Civil Procedure 23(a). If the putative class does satisfy these prerequisites, the Court must additionally find that it satisfies the requirements set forth in Federal Rule of Civil Procedure 23(b), which vary depending upon which of three different types of classes is proposed. The four prerequisites under Rule 23(a) are that: “(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). Class certification is not appropriate unless the named plaintiff establishes all four prerequisites. Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 156 (1982). In addition to meeting the prerequisites of Rule 23(a), the proposed class must satisfy one of the conditions of Rule 23(b). Oshana, 472 F.3d at 513; Williams v. Chartwell Fin. Servs., 204 F.3d 748, 760 (7th Cir. 2000). Under Rule 23(b)(2), a class action that satisfies Rule 23(a) may be sustained if “the
6 Because Plaintiffs do not seek prospective declaratory and injunctive relief against the Corizon Defendants, they have not filed a response to Plaintiffs’ Motion for Class Certification. [See Filing No. 111.]
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party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed. R. Civ. P. 23(b)(2).
III. DISCUSSION A. Whether an Identifiable Class Exists In addition to the class certification prerequisites specifically enumerated in Federal Rule of Civil Procedure 23, it is Plaintiffs’ burden to prove “that the class is indeed identifiable as a class.” Oshana, 472 F.3d at 513. The Court addresses that requirement first. Plaintiffs propose the following class definition: “All persons who are now, or will in the future be, in the custody of IDOC, diagnosed with chronic HCV, and wish to receive standard of care treatment for their illness but are being denied it.” [Filing No. 99 at 1.] The State Defendants argue that the membership in this proposed class is not ascertainable by the Court because: (1) discerning which individuals “wish” to receive standard-of-care treatment requires a subjective analysis of each individual’s state of mind; and (2) determining which individuals have been denied standard-of-care treatment will require the Court and medical experts to “carefully review the medical records of each and every offender with chronic [HCV].”7 [Filing No. 112 at 5-6.] In response, Plaintiffs argue that the proposed class definition is sufficient, because the class may be ascertained by reference to wholly objective criteria. [Filing No. 133 at 4.] In the alternative, however, Plaintiffs propose a modified definition that alleviates any concerns raised by
7 Wexford appears to raise the same argument in its Response in Opposition to Plaintiffs’ Motion to Certify a Class, contending that the proposed class is “improperly vague.” [Filing No. 113 at 12-13.]
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Defendants: “All current and future prisoners in IDOC custody who have been diagnosed, or will be diagnosed, with chronic HCV.” [Filing No. 133 at 3.]
A district court has broad discretion to certify a class and may modify a proposed class definition if modification will render the definition adequate. Davis v. Hutchins, 321 F.3d 641, 649 (7th Cir. 2003). Plaintiffs’ “revised” class definition appears to remedy the issues of identifiability raised by Defendants, assuming that any such issues existed. This modified definition is also similar to those certified in recent cases in other jurisdictions involving the treatment of HCV-infected inmates. See, e.g., Hoffer v. Jones, 2017 WL 5586877, at *1 (N.D. Fla. Nov. 17, 2017) (defining class as “all current and future prisoners in FDC custody who have been diagnosed, or will be diagnosed, with chronic hepatitis C virus (HCV)”); Graham v. Parker, 2017 WL 1737871, at *2 (M.D. Tenn. May 4, 2017) (defining class as “[a]ll persons currently incarcerated in any facility under the supervision or control of the Tennessee Department of Corrections or persons incarcerated in a public or privately owned facility for whom the Tennessee Department of Corrections has ultimate responsibility for their medical care and who have at least 12 weeks or more remaining to serve on their sentences and are either currently diagnosed with Hepatitis C infection or are determined to have Hepatitis C after an appropriate screening test has been administered by the Department of Corrections”).
This definition is based only on an objective criterion: whether an individual has been diagnosed with chronic HCV. The Court therefore adopts this modified definition, which is sufficient to establish an identifiable class.
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B. Federal Rule of Civil Procedure 23(a) 1. Numerosity
The Court can only certify a class that “is so numerous that joinder of all members is impracticable.” Fed. R. Civ. Pro. 23(a)(1). “Although there is no ‘bright line’ test for numerosity, a class of forty is generally sufficient to satisfy Rule 23(a)(1).” McCabe v. Crawford & Co., 210 F.R.D. 631, 644 (N.D. Ill. 2002); Hubler Chevrolet, Inc. v. GMC Corp., 193 F.R.D. 574, 577 (S.D. Ind. 2000).
Plaintiffs estimate that there are “at least 3,100 members of the proposed class currently incarcerated in IDOC facilities.”8 [Filing No. 100.] They base this estimate on IDOC’s statistics regarding the number of inmates in its facilities; the percentage of inmates who have been identified as HCV-positive when tested at intake; and, using available medical research and statistics, the number of HCV-infected inmates who are likely to develop chronic (as opposed to acute) HCV infections. [Filing No. 100 (citing Filing No. 100-1; Filing No. 100-4; Filing No. 1008; Filing No. 100-9).] Plaintiffs also point out that these estimates do not include individuals who are not now incarcerated in an IDOC facility, but will be in the future, or individuals who are currently incarcerated but will become infected with HCV at a later date. [Filing No. 100 at 1314.]
In response, the State Defendants’ arguments center on Plaintiffs’ first proposed definition. They argue that Plaintiffs assume that all of the 3,100 HCV-infected inmates would wish to receive standard-of-care treatment, “but offer nothing to support that claim.” [Filing No. 112 at 9.] And they contend that Plaintiffs’ estimated number includes individuals for whom direct acting
8 Plaintiffs note that there may be more than 5,500 HCV-infected inmates. [Filing No. 100 at 13.] The Court relies on the low end of Plaintiffs’ estimates for purposes of certification.
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antiviral treatment will not be recommended, further reducing the Plaintiff class.9 [Filing No. 112 at 10.]
As the Court discussed above, it adopts a modified version of the class definition, which removes the elements regarding standard-of-care treatment. The State Defendants’ arguments, therefore, are no longer relevant to the proposed definition.10 Plaintiffs have submitted evidence suggesting that the low end of the estimated class size is 3,100, and joining that many class members, geographically dispersed among many IDOC facilities, would be impracticable. See, e.g., Graham, 2017 WL 1737871, at *3 (certifying class of HCV-infected inmates estimated at 3,487); Postawko v. Mo. Dep’t. of Corr., 2017 WL 3185155, at *6 (W.D. Mo. July 26, 2017) (certifying class of at least 2,000 HCV-infected inmates who were denied treatment with DAAs). The Court readily finds that a class size of at least 3,100 members would render joinder of the parties impracticable and is sufficient to satisfy Rule 23(a)(1).
2. Commonality A class action requires “questions of law or fact common to the class.” Fed. R. Civ. Pro. 23(a)(2). Commonality is satisfied when there is a “common nucleus of operative fact,” that is, a “common question which is at the heart of the case.” Rosario v. Livaditis, 963 F.2d 1013, 1018 (7th Cir. 1992) (citation omitted). All questions of fact or law need not be identical; rather, the requirement is satisfied as long as the class claims arise out of the same legal or remedial theory.
9 Wexford does not appear to dispute that the numerosity requirement is met. [Filing No. 113.] 10 The Court notes, however, that even if the Court were to consider how these arguments apply to Plaintiffs’ first proposed class definition, the State Defendants provide no evidence to suggest that the number of class members would be reduced from 3,100 (at the low end of the estimate) to less than 40, the threshold identified as being sufficient to render joinder impracticable.
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In re Ready-Mixed Concrete Antitrust Litig., 261 F.R.D. 154, 167 (S.D. Ind. 2009). Commonality requires “that the class members have suffered the same injury.” Jamie S., 668 F.3d at 497.
Plaintiffs contend that common questions of fact predominate in this action, including, but not limited to: (1) “whether the use of DAA drugs to treat chronic HCV is, with limited exceptions, the medical standard of care; and (2) whether the denial of treatment with DAA drugs to Class members is causing or will cause injury to them… .” [Filing No. 100 at 15.] Plaintiffs argue that common questions of law also predominate, including “whether Defendants’ treatment policies or practices for chronic HCV violate the Eighth Amendment, the ADA, or the Rehabilitation Act.” [Filing No. 100 at 15.] They argue that their claims “arise from the same practice or course of conduct that gives rise to the claims of other class members and are based on the same legal theory.” [Filing No. 100 at 16 (citing Muro v. Target Corp., 580 F.3d 485, 492 (7th Cir. 2009).]
Wexford argues that Plaintiffs have not demonstrated that the commonality requirement is met because Plaintiffs’ originally proposed class definition “identifies and recognizes the individualized nature and the variances in the patients, and as such, there is not a common question of law or fact that meets the requirements of Rule 23.” [Filing No. 113 at 10.] Wexford also argues generally that where plaintiffs seek to certify a class based on the policies of a defendant, they are required to offer “significant proof” as to the existence of that policy. [Filing No. 113 at 10.] Wexford argues that Plaintiffs have not offered significant proof that Wexford maintains a policy to deny treatment with DAA drugs to class members. [Filing No. 113 at 10.] The State Defendants argue that Plaintiffs’ proposed class does not meet the commonality requirement because “whether a particular individual is receiving standard of care treatment for their medical conditions is an individualized inquiry not suited for class relief.” [Filing No. 112 at 12.]
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In reply, Plaintiffs argue that Defendants mischaracterize the nature of the inquiry in this case as requiring any sort of individualized determinations as to treatments. They contend that the key inquiry is determining the medically accepted standard of care for treating HCV, and whether Defendants have a policy that results in substandard care. [Filing No. 133 at 9-12.]
The Court concludes that several questions of law or fact are common to the class. Among others, these common questions predominate: (1) whether there is a standard of care for treating HCV, and whether that standard includes the use of DAA drugs; (2) whether Plaintiffs are being or have been denied specific treatments, including DAA drugs; and (3) whether any such denial is causing or will cause injury to members of the class. Common questions of law also predominate, including whether Defendants’ actions violate the Eighth Amendment, the ADA, or the Rehabilitation Act.
As to Defendants’ arguments regarding the necessity of individualized assessments, the Court agrees with Plaintiffs that Defendants mischaracterize the nature of the commonality inquiry as it applies in this case. Defendants in several recent cases have raised similar arguments regarding individualized medical assessments, to no avail. For example, the Hoffer court highlighted that the challenged policy formed the basis for the common questions of fact and law— not any individual plaintiff’s circumstances. The court provided the following assessment:
…Defendant’s misguidance is best illustrated through an example. Consider, for instance, a prison policy that states that every inmate with a broken bone must wait five years before they are treated. Under Defendant’s logic, inmates subject to that policy could not initiate a class action to change the policy because each inmate suffers from individualized conditions. That, of course, would be pure applesauce. Although each inmate may be differently situated (e.g., one may have a broken toe, and another a broken rib), they each suffer from the same injury: being subject to the five-year delay. Hoffer, 2017 WL 5586877, at *2 (internal quotation and citations omitted). The Graham court concluded the commonality requirement had been met, stating that:
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Plaintiffs here are not challenging individual courses of treatment; they are challenging Defendants’ official protocols and system-wide practices for Hepatitis C diagnosis and treatment, as they are alleged in the Class Action Complaint. Plaintiffs are not simply disagreeing with a doctor’s course of treatment for a particular person. They are attacking TDOC’s state-wide policies and procedures applicable to all inmates with Hepatitis C.
2017 WL 1737871, at *4. And the Postawko Court concluded that:
Defendants’ argument depends on their contention that inmate medical decisions always involve individualized treatment decisions that are, by their very nature, unsuitable for class treatment even when all are attributable to an overarching policy or protocol. The Court rejects this theory, which amounts to a sweeping assertion that…Eighth Amendment claims can never be brought in the form of a class action. Postawko, 2017 WL 3185155, at *7 (emphasis in original). As in Hoffer, Graham, and Postawko,
this Court also concludes that common questions of law and fact regarding Defendants’ treatment
policies exist as to the proposed class.
As to Defendants’ argument that Plaintiffs are required to offer “significant proof” of
offending policies maintained by Defendants, the Court reminds Defendants that such proof is
only required in limited circumstances that are not present here. In cases where putative class
members’ claims are highly individualized, the Supreme Court has concluded that “an
illegal policy might provide the ‘glue’ necessary to litigate otherwise highly individualized claims
as a class.” Jamie S. v. Milwaukee Pub. Sch., 668 F.3d 481, 498 (7th Cir. 2012) (emphasis in
original) (citing Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351-55 (2011)). But as the Court
concluded above, these claims are not highly individualized, instead applying broadly to the class.
And, in any event, Plaintiffs have submitted a variety of documents setting forth, at least in part, Defendants’ policies regarding the treatment of HCV.11 [Filing No. 100-2 through Filing No. 100-
11 Plaintiffs also contend that they have requested the production of the State of Indiana’s 2016 Request for Proposal and exhibits to the contract between IDOC and Wexford, which may contain relevant information regarding Wexford and IDOC’s HCV policies, but they have not yet been produced. [Filing No. 100 at 8.]
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6.] Plaintiffs argue that these documents provide evidence that only a small percentage of inmates are approved or selected for treatment of their chronic HCV infections. [See, e.g., Filing No. 1003 at 9 (“…selected individuals are offered medication therapy to eradicate the virus.”); Filing No. 100-7 at 5 (“…Wexford can state that as of July 22, 2017, eleven (11) inmates were currently receiving DAA treatment.”).]
For these reasons, the Court concludes that Plaintiffs have established that questions of law and fact are common to all class members. Therefore the commonality requirement is satisfied.
3. Typicality The typicality requirement requires that the claims of the representative party be typical of the claims of the class. Fed. R. Civ. Pro. 23(a)(3). The commonality and typicality requirements often merge because both “serve as guideposts for determining whether under the particular circumstances maintenance of a class action is economical and whether the named plaintiff’s claim and the class claims are so interrelated that the interests of the class members will be fairly and adequately protected in their absence.” Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, 158 n. 13 (1982). Although typicality may exist even if there are factual distinctions between the claims of the named plaintiffs and other class members, the requirement “directs the district court to focus on whether the named representatives’ claims have the same essential characteristics as the claims of the class at large.” Muro v. Target Corp., 580 F.3d 485, 492 (7th Cir. 2009) (citation omitted). Plaintiffs argue that the named Plaintiffs’ claims are typical of the claims or defenses of the class, in that all of the putative plaintiffs claim that Defendants’ treatment policy for chronic HCV violates the Eighth Amendment, the ADA, and the Rehabilitation Act. [Filing No. 100 at 16.] Wexford responds that Plaintiffs have not made an evidentiary showing of typicality, but
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instead “just assume that the existence of some policy would apply equally to the Plaintiffs and the remainder of the class.” [Filing No. 113 at 11.] Both Wexford and the State Defendants again argue that the specifics of Plaintiffs’ medical histories and diagnoses, as well as those of the class, render these claims highly individualized and inappropriate for class treatment. [Filing No. 112 at 13-14; Filing No. 113 at 11-12.]
As the Court discussed above, Plaintiffs raise claims regarding the policies maintained by IDOC regarding who receives and does not receive treatment for diagnosed HCV. These claims are not dependent on individualized assessments. Plaintiffs’ request for injunctive relief, if granted, would benefit the entire class. See Graham, 2017 WL 1737871, at *4-5; Hoffer, 2017 WL 5586877, at *3; Postawko, 2017 WL 3185155, at *11.
The typicality requirement is satisfied. 4. Adequacy of Representation
Federal Rule of Civil Procedure 23(a)(4) requires the Court to find that “the representative parties will fairly and adequately protect the interests of the class.” The adequacy inquiry is composed of two parts: “the adequacy of the named plaintiff’s counsel, and the adequacy of representation provided in protecting the different, separate, and distinct interest[s] of the class members.” Retired Chicago Police Ass’n v. City of Chicago, 7 F.3d 584, 598 (7th Cir. 1993) (citation and quotation omitted). To adequately represent the class, the representative plaintiff “must be part of the class and possess the same interest and suffer the same injury as the class members.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625 (1997) (citation and quotation omitted).
The State Defendants do not challenge the adequacy of Plaintiffs’ counsel. Instead, they argue that Plaintiffs have conceded that they will not fairly and adequately protect the interests of
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the class. [Filing No. 112 at 14.] The State Defendants contend that the named Plaintiffs have a potential conflict of interest with the putative class, because the named Plaintiffs raise personal injury claims for monetary damages on behalf of themselves, but not on behalf of the class.12 [Filing No. 112 at 14.] Plaintiffs respond that no meaningful differences arise as the result of the named Plaintiffs’ additional claims for relief, and that the existence of additional claims does not create any potential or actual conflict. [Filing No. 133 at 14-15.]
The Court is somewhat perplexed by the State Defendants’ undeveloped argument regarding a potential conflict. The State Defendants state only that “[t]he significant differences in the claims being asserted by the named Plaintiffs versus those asserted by the putative class members establishes the not only possibility of a conflict among the class members, but the likelihood of such a claim. Very simply, the class representatives and the class members are not marching in lockstep because they are not seeking the same relief.” [Filing No. 112 at 14-14.] The State Defendants never identify what conflict may arise as a result of these additional claims, or how any conflict might impact the named Plaintiffs’ interest in fairly and adequately pursuing the injunctive relief claims. Moreover, they cite no authority to support the assertion that the existence of non-class claims creates a conflict or impacts the named Plaintiffs’ adequacy.
Plaintiffs allege that they are currently incarcerated in IDOC facilities, are infected with chronic HCV, and seek to be offered treatment consistent with the appropriate standard of care. [Filing No. 39.] The Court sees no reason to conclude that the named Plaintiffs have, through this stage in the litigation, failed to diligently pursue their injunctive relief claims on behalf of the putative class. And the named Plaintiffs have attested that their main goal in the litigation is to prevail in their claims for injunctive relief. [Filing No. 133-1 at 1; Filing No. 133-2 at 1; Filing
12 Wexford does not address the adequacy requirement in its briefing. [Filing No. 113.] 15

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No. 133-3 at 1.] This is sufficient to establish that the Plaintiffs will fairly and adequately protect the interests of the class.13
The Court concludes that the adequacy requirement has been met as to both the Plaintiffs as class representatives and Plaintiffs’ counsel. .
C. Federal Rule of Civil Procedure 23(b) Where, as here, a proposed class satisfies all the prerequisites of Federal Rule of Civil Procedure 23(a), class certification is appropriate if the class qualifies as one of the types listed under subsection (b) of Rule 23. Plaintiffs argue, and the Court agrees, that the proposed class fits within Fed. R. Civ. P. 23(b)(2), in that, based on the allegations in the First Amended Complaint, “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” The State Defendants oppose this conclusion, generally reiterating their arguments regarding the individualized nature of HCV treatment. [Filing No. 112 at 15.] For the reasons described above, the Court rejects those arguments. Because this action seeks injunctive relief to prevent future allegedly illegal deprivations of civil rights, it is a “prime example[ ]” of a proper class under Rule 23(b)(2). Amchem, 521 U.S. at 614 (citation omitted); see also Doe v. Guardian Life Ins. Co., 145 F.R.D. 466, 477 (N.D. Ill. 1992) (“[T]he primary limitation on the use of Rule 23(b)(2) is the requirement that injunctive or declaratory relief be the predominant remedy requested for the class members.”).
13 Subsequent developments following the Court’s initial Order—namely the settlement of the named Plaintiffs’ personal injury claims—further undermine the State Defendants’ vague arguments regarding a potential conflict.
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IV. CONCLUSION The Court therefore GRANTS Plaintiffs’ Motion for Class Certification, [Filing No. 99], modifying the class definition to include: “All current and future prisoners in IDOC custody who have been diagnosed, or will be diagnosed, with chronic HCV.” Moreover, the Court DESIGNATES Michael Ray Stafford, Charles Smith, and Douglas Smith as representatives for the class action pursuant to Rule 23. The Court further DESIGNATES Mark W. Sniderman and Robert A. Katz as lead class counsel pursuant to Fed. R. Civ. P. 23(g).
Date: 3/2/2018
Distribution: Douglass R. Bitner KATZ KORIN CUNNINGHAM, P.C. dbitner@kkclegal.com Benjamin Myron Lane Jones INDIANA ATTORNEY GENERAL benjamin.jones@atg.in.gov Robert A. Katz INDIANA UNIVERSITY MCKINNEY SCHOOL OF LAW rokatz@iu.edu Carrie L. Kinsella
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JACKSON LEWIS P.C. carrie.kinsella@jacksonlewis.com Jessica L. Liss JACKSON LEWIS P.C. jessica.liss@jacksonlewis.com William R. Lunsford MAYNARD COOPER & GALE PC blunsford@maynardcooper.com Jarrod Alvin Malone KATZ KORIN CUNNINGHAM, P.C. jmalone@kkclegal.com Jonathan Paul Nagy INDIANA ATTORNEY GENERAL jonathan.nagy@atg.in.gov Aleksandrina Penkova Pratt INDIANA ATTORNEY GENERAL aleksandrina.pratt@atg.in.gov Scott James Preston JACKSON LEWIS PC (Indianapolis) Scott.Preston@jacksonlewis.com Mark W. Sniderman SNIDERMAN NGUYEN LLP mark@snlawyers.com Melissa K. Taft JACKSON LEWIS PC (Indianapolis) melissa.taft@jacksonlewis.com
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 Case 1:17-cv-00289-JMS-MJD Document 282 Filed 01/02/20 Page 1 of 6 PageID #: 3527

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

MICHAEL RAY STAFFORD, et al. Plaintiffs,
v. ROBERT E. CARTER, JR., et al.
Defendants.

)

)

)

)

)

No. 1:17-cv-00289-JMS-MJD

)

)

)

)

ORDER

On August 9, 2019, the parties filed a Stipulation to Enter into Settlement Agreement.

Dkt. 251. On October 15, 2019, the Court held a fairness hearing pursuant to Rule 23(e) of the

Federal Rules of Civil Procedure. On October 22, 2019, the parties filed an amended Stipulation

to Enter into Settlement Agreement (“Stipulated Settlement Agreement”). Dkt. 268. Having

considered the Stipulated Settlement Agreement, the reports of class counsel, and the arguments

of counsel at the fairness hearing and the record in this matter,

IT IS HEREBY FOUND that:

1. This action was filed on January 27, 2017, by three inmates incarcerated in the Indiana Department of Correction (“IDOC”), who alleged that Defendants failed to provide medical treatment for chronic Hepatitis C “(“HCV”) that met the recognized standard of care in the United States and that this failure violated the Eighth Amendment to the United State Constitution, Title II of the Americans with Disabilities Act, as amended, 42 U.S.C. § 12131 et seq. (the “ADA”), and the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 791 et seq. (the “Rehabilitation Act”). Dkts. 1, 39.
2. On September 15, 2017, Plaintiffs moved for class certification pursuant to Fed. R. Civ.

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P. 23(b)(2), seeking only injunctive and declaratory relief for the class. Dkt. 99 at 2; Dkt. 100 at 1-2. 3. On February 21, 2018, the Court certified this case as a class action with respect to the
Eighth Amendment, ADA, and Rehabilitation Act claims. Dkt. 148. The Court later amended the class to be comprised of: “all current and future prisoners in IDOC custody who have been diagnosed, or will be diagnosed, with chronic HCV, and for whom treatment with DAA medication is not medically contraindicated.” Dkt. 186 at 43. The Court also decertified the class with respect to the ADA and Rehabilitation Act claims. Id.
4. On September 13, 2018, the Court granted Plaintiffs’ motion for summary judgment as to Defendants’ liability on the Eighth Amendment claim. Id.
5. The Stipulated Settlement Agreement is designed to settle all pending matters in this litigation.
6. The Court has jurisdiction over the subject matter of this action and over all the parties, including the members of the certified class.
7. The class has been given proper and adequate notice of the proposed resolution of this case through the Stipulated Settlement Agreement. This notice was given as required by the Court’s orders of August 13, 2019. Dkt. 257. The notice invited class members to notify class counsel as to any objections to, or comments on, the proposed Stipulated Settlement Agreement. Additional notice was given pursuant to the Court’s order regarding attorney fees and costs. Dkt. 265. These notices provided sufficient notification of these proceedings and of the proposed settlement and included information regarding the procedures for making comments. The notice to the class fully satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure and the requirements of due process.
8. On October 4, 2019, class counsel filed their Report to the Court Following Notice to
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Class with comments from class members who replied to the notice. Dkt. 263. Class counsel filed an additional report following the second notice regarding attorneys’ fees and costs. The Court has reviewed the comments.
9. Following the standards established by Fed. R. Civ. P. 23 and Synfuel Technologies, Inv. v. DHL Express, Inc., 463 F.3d 646, 653 (7th Cir. 2006), the Court finds that the Stipulated Settlement Agreement and the ultimate dismissal of this action as contemplated by it, to be fair, reasonable, and adequate for the following reasons:
a. The purpose of this litigation was to obtain medical treatment for IDOC inmates with chronic HCV that meets the recognized standard of care in the United States. The Stipulated Settlement Agreement provides that all class members will receive such treatment, which will be phased in by July 1, 2023. Those inmates with higher-stage progression and fibrosis, as measured by APRI or Fibroscan scores, will be treated first. The DAA treatment will be phased in based on the individual class member’s HCV progression and fibrosis score, which will be re-evaluated every 90 days. The Stipulated Settlement Agreement is fair and reasonable because it ensures treatment for all class members while maximizing the IDOC’s ability to timely treat higher-stage class members. Class members with less than four months left on their sentence will not be guaranteed treatment because DAA drug treatment takes 12 weeks plus time to prepare the patient for treatment. However, these members will be eligible for treatment under Medicaid (if they are otherwise eligible for Medicaid) upon their release, and the IDOC will apply for Medicaid on their behalf. The Stipulated Settlement Agreement is contingent upon the Indiana General Assembly providing adequate funding to treat class members with an APRI score of less than 0.7: if it does not, this case will be re-opened and proceed on the merits. The Stipulated Settlement
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Agreement provides necessary flexibility to meet the future needs of class members by allowing for the case to be re-opened and to proceed on the merits should the IDOC not request an appropriation, should the IDOC not obtain an appropriation, or should the Health Care Services Directive not be revised. Thus, it appears to the Court that the proposed Stipulated Settlement Agreement accomplishes the litigation goals of the Class. Given the current status of the case, the Court finds that the comparison of the strength of Plaintiffs’ case balanced against the Stipulated Settlement Agreement, renders the proposed settlement fair, reasonable, and adequate. b. The complexity, length, and expense of continued litigation weigh in favor of finding that the Stipulated Settlement Agreement is fair, reasonable, and adequate. Given the provisions of the Stipulated Settlement Agreement, continued litigation would require a hearing on the motion for permanent injunction, implementation of any potential injunction ordered by the Court, and a potential appeal. Additionally, protracted litigation may impede the speed with which class members obtain treatment. The Stipulated Settlement Agreement allows Plaintiffs to re-open this action if the General Assembly does not provide the necessary funding, if the Defendants do not request the appropriate funding, or if they fail to revise their policies; and it allows Plaintiffs to move to enforce the settlement for any other failure to comply with the Stipulated Settlement Agreement. Dkt. 268 at 13-15. Further, Defendants will provide Plaintiffs’ counsel with updated records concerning the treatment status of class members every 90 days. Plaintiffs’ counsel will monitor those records and will bring questions and concerns to the attention of Defendants, the IDOC, and its medical vendor. These additional safeguards further demonstrate that the Stipulated Settlement Agreement is fair, reasonable, and adequate.
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c. As indicated, the Court has reviewed the reports filed by Plaintiffs’ counsel concerning the comments of inmates who have responded to the notice of the proposed Stipulated Settlement Agreement and has reviewed the comments that have been filed. The Court notes that few prisoners actually object to the settlement itself, and that many want the appropriate treatment, but they want it as quickly as possible. The Court is confident that Plaintiffs’ counsel will monitor the implementation of this agreement and will bring to defense counsel’s and the medical provider’s attention the cases of inmates who believe they should receive treatment more expeditiously. In short, the Court does not find the level of opposition to the Stipulated Settlement Agreement to be sufficient for the Court to question that it is a fair, reasonable, and adequate resolution of this matter. Objections to the Stipulated Settlement Agreement are overruled.
d. There is no evidence of any collusion between the parties entering into the Stipulated Settlement Agreement. The settlement was arrived at only after lengthy discovery, extensive briefing, and lengthy negotiations. The Court is satisfied that the Stipulation is the result of arms-length negotiations.
e. The class is represented by counsel who are experienced in litigation concerning prison conditions, and the attorneys’ fees and costs are reasonable. Conclusion
For the foregoing reasons, the Court finds that the Stipulated Settlement Agreement is a fair, reasonable, and adequate resolution of this matter. It is therefore ordered that the Stipulated Settlement Agreement, dkt. [268], is approved and will remain actively in effect until July 1, 2025. Plaintiffs’ motion for attorneys’ fees and costs, dkt. [270], is granted.
It is further ordered that, as all claims have been resolved against all parties, the action shall
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Case 1:17-cv-00289-JMS-MJD Document 282 Filed 01/02/20 Page 6 of 6 PageID #: 3532 be closed. The Court retains jurisdiction to enforce the Stipulated Settlement Agreement or to re-open this action to be resolved on the merits should the IDOC not request an appropriation, should the IDOC not obtain an appropriation, or should the Health Care Services Directive not be revised. See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 381 (1994) (“the parties’ compliance with the terms of the settlement contract . . . may, in the court’s discretion, be one of the terms set forth in the order”); Pearson v. Target Corp., 893 F.3d 980, 983 (7th Cir. 2018). IT IS SO ORDERED. Date: 1/2/2020 Distribution: Electronically-Registered Counsel
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