Case 1:10-cv-12013-RWZ Document 1 Filed 11/22/10 Page 1 of 37

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

)

RICHARD NUNES, CARL COE, JOHN DOE, )

PETER POE, and RICHARD ROE,

)

on behalf of themselves and all others similarly )

situated,

)

)

Plaintiffs,

)

)

v.

)

)

UMASS CORRECTIONAL HEALTH,

)

MASSACHUSETTS DEPARTMENT OF

)

CORRECTION, LEONARD MCGUIRE,

)

WARREN FERGUSON, JUDITH STEINBERG, )

THOMAS GROBLEWSKI, and PETER

)

HEFFERNAN,

)

)

Defendants.

)

)

CIVIL ACTION NO.

COMPLAINT

Introduction

HIV-positive prisoners in the Massachusetts Department of Correction have for years

been able to keep their lifesaving medications in their cells. This Keep On Person program was an

unquestionable success, enabling HIV-positive prisoners to take their medication consistently and

privately. UMass Correctional Health – an arm of the University of Massachusetts Medical

School hired by the DOC to provide health services to its prisoners – has terminated this program,

requiring that all HIV-positive prisoners come to the “med line” at their prison’s Health Services

Unit for each dose of medicine. The DOC’s Health Services Division approved this change. No

other medications were removed from the Keep On Person program.

Case 1:10-cv-12013-RWZ Document 1 Filed 11/22/10 Page 2 of 37
The Defendants have offered several reasons for taking HIV patients off of the Keep On Person program. Not only are these reasons unpersuasive, they are irrational, and they do not justify this act of discrimination against HIV-positive prisoners. The Defendants have feigned ignorance of the real issue driving their decision: cost. HIV medications are expensive, but they are lifesaving and as such they cannot be easily rationed or limited. While UMass and the DOC cannot simply deny patients their medication, they can and have erected barriers to access in order to discourage adherence.
Compelling patients to go to med line for each individual dose, day after day, is one such barrier. The problems with med line are many, including errors in the medications or doses provided, delayed or denied access to the line, and the absence of privacy. These problems are known to the Defendants, and they are exacerbated for HIV-positive prisoners, who have heightened concerns about missed doses, contagion, and privacy. Even prisoners who do not refuse medications outright may have their medications taken away for missing med line too often, regardless of the reason for the absence.
The removal of HIV medications from the Keep On Person program is callous and extremely short-sighted, as patients who refuse or are unable to go to the med line, or who miss doses because of the chronic defects in the med line process, will become more sick. Defendants’ actions are also discriminatory and betray a disregard for HIV-positive prisoners’ welfare and their privacy. Plaintiffs bring this class action for declaratory and injunctive relief, asking this Court to bring this practice to a halt.
Parties 1. Plaintiff Richard Nunes is currently incarcerated at Old Colony Correctional Center in
2

Case 1:10-cv-12013-RWZ Document 1 Filed 11/22/10 Page 3 of 37
Bridgewater, Massachusetts, a penal institution operated by the Massachusetts Department of Correction (“DOC”). 2. Plaintiff Carl Coe is currently incarcerated at MCI-Shirley Medium in Shirley, Massachusetts, a penal institution operated by DOC. In order to maintain his privacy with regard to his HIV-positive status, Plaintiff Coe is substituting a pseudonym for his real name. 3. Plaintiff John Doe is currently incarcerated at MCI-Norfolk in Norfolk, Massachusetts, a penal institution operated by DOC. In order to maintain his privacy with regard to his HIVpositive status, Plaintiff Doe is substituting a pseudonym for his real name. 4. Plaintiff Peter Poe is currently incarcerated at MCI-Norfolk in Norfolk, Massachusetts, a penal institution operated by DOC. In order to maintain his privacy with regard to his HIVpositive status, Plaintiff Poe is substituting a pseudonym for his real name. 5. Plaintiff Richard Roe is currently incarcerated at MCI-Norfolk in Norfolk, Massachusetts, a penal institution operated by DOC. In order to maintain his privacy with regard to his HIVpositive status, Plaintiff Roe is substituting a pseudonym for his real name. 6. Defendant UMass Correctional Health (“UMCH”) is a program of UMass Medical School which, pursuant to a contract between UMass Medical School and the DOC, is responsible for providing adequate medical care to all prisoners in DOC custody. UMCH has a principal place of business in Shrewsbury, Massachusetts. 7. Defendant Massachusetts Department of Correction (“DOC”) is an agency of the Commonwealth of Massachusetts, charged with the care and custody of state prisoners. The DOC has a constitutional obligation to attend to the serious medical needs of the prisoners in its custody.
3

Case 1:10-cv-12013-RWZ Document 1 Filed 11/22/10 Page 4 of 37
8. Defendant Leonard McGuire is the Executive Director of UMass Correctional Health. Defendant McGuire bears the ultimate responsibility for the services provided by UMCH to DOC prisoners, and for the employees and agents who provide those services. He is responsible for ensuring that the medical services provided by UMCH employees and agents are provided in accordance with applicable law and with UMCH and DOC policies, rules, and regulations. He also is responsible for the development and approval of UMCH policies and practices, including those for the administration of HIV medications. Defendant McGuire is acting under color of law and is being sued in his official capacity. 9. Defendant Warren Ferguson is the Associate Chairman for Commonwealth Medicine, the division of UMass Medical School that operates UMCH. Defendant Ferguson is a physician. He is responsible for ensuring that the medical services provided by UMCH employees and agents are provided in accordance with applicable law and with UMCH and DOC policies, rules, and regulations. He also is responsible for the development of UMCH policies and practices, including those for the administration of HIV medications. Defendant Ferguson is acting under color of law and is being sued in his official capacity. 10. Defendant Judith Steinberg is the Senior Director of Clinical Affairs for the Center for Health Policy and Research, which is part of Commonwealth Medicine. Defendant Steinberg is a physician and infectious disease specialist. She is responsible for developing and implementing clinical policies, guidelines, and standards for Commonwealth Medicine programs, including UMCH. She is responsible for the development of UMCH policies and practices, including those for the administration of HIV medications. Defendant Steinberg is acting under color of law and is being sued in her official capacity.
4

Case 1:10-cv-12013-RWZ Document 1 Filed 11/22/10 Page 5 of 37
11. Defendant Thomas Groblewski is the Program Medical Director for UMCH. As Program Medical Director, Defendant Groblewski is responsible for ensuring that all prisoners cared for by UMCH receive adequate and appropriate medical care. He is responsible for ensuring that the medical services provided by UMCH employees and agents are provided in accordance with applicable law and with UMCH and DOC policies, rules, and regulations. He is also responsible for the development of UMCH policies and practices, including those for the administration of HIV medications, and he is a member of the joint DOC/UMCH Pharmacy & Therapeutics Committee. Defendant Groblewski is acting under color of law and is being sued in his official capacity. 12. Defendant Peter Heffernan is the Deputy Director of the DOC’s Health Services Division. There is presently no Director of the DOC’s Health Services Division. Defendant Heffernan is responsible for ensuring that all prisoners within the DOC receive adequate and appropriate medical care. He is also responsible for supervising the DOC’s contractual medical provider, UMCH, and ensuring that the medical services provided by UMCH are provided in accordance with applicable law and with DOC and UMCH policies, rules, and regulations. He also is responsible for the development of DOC and UMCH medical policies and practices, including those for the administration of HIV medications, and he is the Chair of the Pharmacy & Therapeutics Committee. Defendant Heffernan is acting under color of law and is being sued in his official capacity.
Jurisdiction and Venue 13. The Court has subject matter jurisdiction over Plaintiffs’ claims pursuant to 28 U.S.C. §§ 1331 (federal question jurisdiction) and 1343 (civil rights jurisdiction).
5

Case 1:10-cv-12013-RWZ Document 1 Filed 11/22/10 Page 6 of 37
14. Venue is proper pursuant to 28 U.S.C. § 1391(b). Class Action Allegations
15. This is a class action under Rule 23(a) and (b) of the Federal Rules of Civil Procedure. 16. Plaintiffs are representatives of a class composed of all persons who are now or may be confined in Department of Correction custody and who have HIV. 17. Membership in the class is so numerous that joinder of all members is impracticable. There are approximately 200-300 persons in DOC custody with HIV at any one time, and the population changes as persons are admitted and released. 18. The Plaintiffs’ claims involve common questions of law and fact and are typical of the claims of the class as a whole. 19. These common questions predominate over any questions affecting only individual class members. Defendant has acted and refused to act on grounds generally applicable to the class so that final declaratory and injunctive relief would be appropriate to the class as a whole. 20. Plaintiffs have a strong personal interest in the outcome of this litigation, are represented by competent counsel, and will adequately and fairly protect the interests of the class. 21. A class action is superior to any other available method for a fair and efficient adjudication of this controversy. Separate actions by individual members of the class would create a risk of inconsistent or differing adjudications and delay the ultimate resolution of the issues at stake.
Factual Allegations Pharmacy Services in DOC Prisons 22. The DOC contracts with UMass Medical School for the provision of medical services to DOC prisoners. UMass Medical School, through its Commonwealth Medicine division, provides
6

Case 1:10-cv-12013-RWZ Document 1 Filed 11/22/10 Page 7 of 37
these services under the name UMass Correctional Health. 23. UMCH providers prescribe medications for DOC prisoners. Medications are ordered from the State Office of Pharmacy Services, an agency of the Commonwealth of Massachusetts. The State Office of Pharmacy Services arranges for procurement and delivery of the medications to each prison. 24. DOC and UMCH policies and procedures govern the prescription and administration of medications. 25. A joint DOC/UMCH Pharmacy & Therapeutics Committee meets regularly to review pharmacy practices, including medication usage and cost, prescribing practices, and administration practices. 26. The Pharmacy & Therapeutics Committee also drafts, modifies and approves policies governing pharmacy services. 27. Defendant Peter Heffernan is chair of the Pharmacy & Therapeutics Committee. His approval is required before any changes in pharmacy policy or practice are made, including the change at issue in this action. 28. Defendant Groblewski, as UMCH Program Medical Director, is a member of the Pharmacy & Therapeutics Committee. He participates in and approves of any changes in policy and practice, including the change at issue in this action. 29. DOC and UMCH have policies governing the administration of medications, including the Keep On Person (“KOP”) medication program. 30. Through the KOP program, prisoners bring their prescribed medications back to their cells and store them there, taking each dose when indicated.
7

Case 1:10-cv-12013-RWZ Document 1 Filed 11/22/10 Page 8 of 37
31. DOC and UMCH approve individual prisoners to participate in the KOP program. They may exclude a prisoner from the program for failing to keep medication in a locked container; having more than one prescription container of any one medication; failing to request refills on time; or otherwise exhibiting signs that the prisoner is abusing the program or lacks the capacity to understand and follow its rules. 32. By default, all medications are approved for the KOP program unless they are excluded by DOC and UMCH. 33. The list of excluded medications includes drugs that are not taken orally but must be injected, and narcotics or other drugs that pose a security risk, as they can be used as intoxicants and are subject to theft, sale, and trade. Many mental health medications are also excluded, for the latter reason and out of concern over the possibility of self-harm through an overdose. 34. At all times relevant to this complaint, Plaintiffs were approved for the KOP program. 35. Until February 2, 2009, HIV medications were not excluded from the KOP program.
HIV Care in DOC Prisons 36. The incidence of HIV in the DOC population is higher than that in the general population. 37. A stigma surrounds HIV in DOC prisons. HIV-positive prisoners live in close quarters to other prisoners and to staff, and they readily encounter bias and prejudice. Such prejudice can take the form of harassment, protests over shared facilities (e.g., showers, bathrooms, dining), threats, or bodily harm. 38. In addition, some HIV-positive prisoners have not disclosed their HIV-positive status to their families or other people outside the prison. 39. Accordingly, many HIV-positive prisoners in DOC prisons, including Plaintiffs Carl Coe,
8

Case 1:10-cv-12013-RWZ Document 1 Filed 11/22/10 Page 9 of 37
John Doe, Peter Poe, and Richard Roe, choose not to make their HIV-positive status known to everyone in the prison. 40. HIV is a life-threatening illness. For DOC prisoners who have HIV, this means that whatever the length of their sentences, they may ultimately die in prison. 41. In the 1990s, the Governor of the Commonwealth of Massachusetts convened an advisory board to analyze HIV care in DOC prisons, and to recommend and enact policies to improve such care. 42. Pursuant to the advisory board’s recommendations, HIV medications were included in the KOP program. Patients could pick up their prescribed medications and keep them in their cells, in a locked container. 43. There are several benefits to the KOP program. Patients can ensure privacy when they take their medication, avoiding any unwanted disclosures. In order to diminish side effects from the medication, prisoners can take their medication with food or right before going to sleep. Patients have ready access to their medication at any time, regardless of what is happening at the prison. When medication can only be obtained at the “med line” – at the prison’s Health Services Unit at an appointed hour – access to that medication can be disrupted in several ways. A disturbance in the prison (such as a medical emergency or an altercation) may freeze prisoner movement and limit access to the med line. A prisoner may feel too ill to walk to and wait in the med line, or he or she may have a court or hospital appointment that conflicts with the scheduled med line. 44. Along with KOP medications, the Governor’s advisory board on HIV care in the prisons recommended case management, in which an infectious disease nurse at each prison followed all
9

Case 1:10-cv-12013-RWZ Document 1 Filed 11/22/10 Page 10 of 37
HIV-positive prisoners, instead of having those patients see multiple different providers. Infectious disease doctors were brought into each prison to see and treat HIV-positive prisoners, instead of transporting the prisoners out to the specialist. 45. Implementation of these practices coincided with the development of Highly Active AntiRetroviral Therapy, or HAART, for the treatment of HIV. Combinations of multiple drugs are prescribed, which together work to limit replication of the virus. 46. According to the federal Centers for Disease Control and Prevention (CDC), the primary goals of antiretroviral therapy are to maximally and durably suppress plasma HIV viral load, reduce HIV-associated morbidity and prolong survival, improve quality of life, restore and preserve immunologic function, and prevent HIV transmission. 47. In the years following the advisory board’s work, with HAART medication included in the KOP program, as well as case management and in-house visits from the specialists, the clinical outcomes for HIV-positive prisoners were very favorable. Prisoners on HAART through KOP predominantly had sustained suppressed HIV viral loads with well-recovered CD4 cell counts. 48. Adherence to HIV medications is essential. Even brief disruptions in treatment can result in the emergence of viral resistance to one or more of the agents in use. Such resistance may have far-reaching implications, as some of these resistance mutations may result in the loss of entire classes of antiviral agents. This loss would restrict future treatment options to more complex and more expensive agents that have more significant side effect profiles, resulting in the need for additional medication management of those side effects.
The Removal of HIV Medications from the KOP Program 49. In November 2008, UMCH announced a blanket change in HIV medication
10

Case 1:10-cv-12013-RWZ Document 1 Filed 11/22/10 Page 11 of 37
administration. Instead of patients receiving KOP medications in thirty-day prescriptions, they would instead receive fifteen-day prescriptions. 50. There was no stated reason for the change from thirty-day to fifteen-day prescriptions. 51. This change was reviewed and approved by each of the Defendants. It was approved by the Pharmacy & Therapeutics Committee. 52. Two months later, in January 2009, UMCH announced another blanket change in policy. All HIV medications would be removed from the KOP program. Instead, as of February 2, 2009, anyone taking HIV medications would have to come to the med line at the Health Services Unit for each dose. 53. This change was reviewed and approved by each of the Defendants. It was approved by the Pharmacy & Therapeutics Committee. 54. Only HIV medications were removed from the KOP program. No other medications were terminated. 55. A memorandum to prisoners announcing this change stated that Defendants were excluding HIV medications because of prisoner transfers between facilities. The memorandum alleged that Defendants sought to ensure the availability of these medications in the event that a prisoner was moved from one prison to another. 56. The memorandum did not report the prevalence of this phenomenon – of medications disappearing when a prisoner was transferred between prisons. 57. DOC and UMCH have policies regarding prisoner transfers between facilities. Whenever a prisoner is transferred, that prisoner’s KOP medication is transported with him or her to the new institution.
11

Case 1:10-cv-12013-RWZ Document 1 Filed 11/22/10 Page 12 of 37
58. As HIV-positive prisoners questioned this new KOP ban, UMCH and DOC abandoned the prisoner transfer rationale and reported a new reason for the change: concern over clinical outcomes. Specifically, UMCH and DOC alleged that there were problems with HIV patients’ adherence to their medications. 59. UMCH and DOC did not substantiate this new rationale. 60. The policies governing the KOP program already addressed the issue of non-adherence. Patients who do not reliably take their KOP medications may be suspended from the KOP program. Through this policy, UMCH and DOC could remedy any adherence problems, without punishing those patients who consistently take their medications. 61. These stated reasons for prohibiting KOP medications for HIV-positive patients are irrational and pretextual. Defendants seek not to improve adherence but to reduce it.
Reducing Costs by Reducing Access 62. Defendants’ real reason for removing all HIV medications from the KOP program, and for forcing all HIV-positive prisoners to go to the med line for each individual dose, is cost reduction. 63. HIV medications represent a significant expense for UMCH and DOC. Millions of dollars each year are spent on these medications. 64. Between two and three hundred DOC prisoners are prescribed HIV medication. These prisoners – about two to three percent of the overall population in DOC custody – account for at least twenty percent of the overall annual spending on medications. 65. UMCH collects data on the number of prisoners being treated for HIV, the medications prescribed for each prisoner, and the cost of each medication. 66. That data is reported to Defendants McGuire, Ferguson, Steinberg, Groblewski, and
12

Case 1:10-cv-12013-RWZ Document 1 Filed 11/22/10 Page 13 of 37
Heffernan, among others. 67. Defendants McGuire, Ferguson, and Steinberg are charged with overseeing UMCH services. Defendant McGuire, who is not a physician, is responsible for administrative as opposed to clinical issues. However, the two concerns are inextricably linked. For UMCH, successful performance of its contractual duties means providing the agreed-upon services for the agreedupon price. UMCH must therefore endeavor to contain treatment costs, lest it lose money on the contract with DOC. Accordingly, Defendant McGuire participates with physicians in the development of clinical policies and practices, which must be framed with an eye to cost. 68. Defendants Ferguson and Steinberg have similar administrative responsibility. Both are Commonwealth Medicine administrators who oversee UMCH’s contractual performance. In addition, both are physicians who oversee clinical and research activities at UMCH, including the development of clinical policies and practices. In doing so, they consider the cost of UMCH services, among other factors. 69. Defendant Groblewski, as Program Medical Director, is responsible for carrying out UMCH’s performance. He too must recognize cost considerations in doing so. 70. Defendant Heffernan, as Deputy Director of the DOC Health Services Division, is responsible for ensuring that DOC meets its constitutional obligation to provide adequate health services to the prisoners in DOC custody. He monitors and directs the contractual medical provider, UMCH, in the performance of these services pursuant to the contract between DOC and UMCH. Although DOC assigns responsibility for medications to UMCH, Defendant Heffernan is concerned with drug utilization costs, as rising costs may limit UMCH’s ability to provide all the services called for in the contract. Rising costs may also impose pressure to modify the existing
13

Case 1:10-cv-12013-RWZ Document 1 Filed 11/22/10 Page 14 of 37
contract to increase DOC payments, and they will factor into the bidding for future contracts. Accordingly, like the other individual Defendants, Defendant Heffernan is concerned with containing medication costs. 71. Controlling drug utilization costs is one mission of the Pharmacy & Therapeutics Committee, of which Defendant Heffernan is the Chair and Defendant Groblewski is a member. 72. Reducing HIV medication costs is easier said than done. For the treatment of HIV, there is no adequate alternative treatment to HAART medication. 73. Moreover, there is little gray area as to whether an HIV patient needs treatment. The HIV diagnosis is confirmed by a blood test, and HAART medication is indicated for all HIV patients with a CD4 count below a defined level. UMCH and DOC have little room to make qualitative judgments about whether an HIV patient needs medication. 74. As a result, HIV medication costs resist traditional controls. By contrast, the cost of expensive psychiatric medications can be controlled through modifying prescribing practices, i.e. reducing prescriptions or substituting less expensive drugs. This practice is more defensible for psychiatric medications, given the subjectivity of mental health diagnosing and treatment. Similarly, there is greater subjectivity in the treatment of Hepatitis C, including the decision on whether and when to prescribe expensive antiviral medications. UMCH and DOC explicitly ration Hepatitis C medication for prisoners, offering only a fixed number of prescriptions to the prisoner population at any given time. 75. Defendants have no capacity to limit or modify diagnoses of HIV, they cannot ration treatment with HAART medications, and they do not control the number of HIV patients, as they are obligated to treat all prisoners in DOC custody.
14

Case 1:10-cv-12013-RWZ Document 1 Filed 11/22/10 Page 15 of 37
76. Defendants can only reduce the expense of HIV medications by somehow discouraging patients from taking them. 77. Defendants control the administration of medical treatment. They may ease or hinder access to that treatment. In hindering access to HIV medication, they can dissuade HIV patients from taking their medications. Patients frustrated with interruptions, errors, the needless risk of contagion, and breaches of privacy may give up and refuse treatment, or their medications may be discontinued by the provider to avoid developing a drug resistance. In addition, UMCH may discontinue their medications as a penalty for noncompliance, even though Defendants foster the noncompliance.
Removal from the KOP Program Hinders Access to HIV Medication 78. Medications excluded from the KOP program must be taken at med line. A patient reports to the prison’s Health Services Unit at a prescribed time for each dose of medicine, every day. The patient waits in a line with other prisoners. On his or her turn, the patient speaks with a UMCH nurse whose task is to verify the prescription and to locate and provide the individual dose. The patient must take and swallow the medication then and there. A correctional officer observes the patient, who then opens his or her mouth for inspection, to ensure that no medication is being hidden. 79. The KOP program holds several advantages over the med line. The main advantage is reliable access. A prisoner with KOP medication is self-reliant, save for one time each month when he must obtain a refill from medical staff. Prisoners without KOP medication must leave their cells and the unit, go to the med line, wait for their turn, rely on the nurse to provide correct medication and dosage, and be inspected by a correctional officer, for every individual dose of
15

Case 1:10-cv-12013-RWZ Document 1 Filed 11/22/10 Page 16 of 37
medicine. In a prison environment, where movement is tightly controlled, this is no small difference. 80. The med line affords little privacy. A patient’s HIV-positive status can become known to the correctional officer and to other prisoners in the med line, by hearing the verbal exchange between patient and nurse, by reading the patient’s chart or medication packaging, by recognizing the pills being administered, or by inference (as only a few types of drugs are excluded from the KOP program). 81. The med line is time consuming. Lines can be lengthy, as each individual administration requires time for the nurse to locate the appropriate medicine and to record its administration, for the patient to take the medicine, and for the officer to inspect the patient’s mouth, before moving to the next patient. 82. On any given day, the normal delay associated with med line can be extended for a variety of reasons. Medical or correctional staff shortages may limit the staff available to run the med line. A code or other medical emergency may force the interruption or postponement of med line. Any number of events may cause prisoner movement to be frozen. Prisoners may be unable to get to the med line, or if already there may be ordered to return to their units. 83. The med line may conflict with a prisoner’s job or program, forcing the patient to choose between medication and participation in programs or employment. 84. A patient who is ill or infirm may be unable to get to or wait in the med line. Similarly, prisoners who are temporarily detained in their cells or in a segregation unit will be unable to attend med line. 85. A prisoner requires permission from correctional staff to leave his or her unit and go to
16

Case 1:10-cv-12013-RWZ Document 1 Filed 11/22/10 Page 17 of 37
med line, permission that may be denied for a number of reasons, proper or improper. Regardless of the reason, the prisoner will be denied his or her medication. 86. Even where a prisoner has access to the med line, the performance within med line is not perfect. Errors and omissions are made by UMCH staff in the administration of medications. Patients may recognize and attempt to point out these errors, but they may be unsuccessful in persuading UMCH staff to correct the error. By having to raise the issue with the medication nurse, patients are more likely to disclose their HIV-positive status to others nearby. 87. The med line typically takes place at or near the Health Services Unit, which is where sick prisoners are seen. HIV-positive prisoners who must go to the med line once or twice each day increase the risk of catching diseases carried by other prisoners or staff. 88. The med line prevents HIV patients from mitigating side effects. Some HIV medications have serious side effects, including stomach cramping and distress, diarrhea, and dizziness. Such side effects can be minimized by taking a dose with food, or by taking an evening dose right before going to sleep instead of in the early evening. The scheduling of morning med lines, which can span a two-hour range, renders patients unable to take medications with breakfast. The scheduling of evening med lines, anytime from 5:00 to 9:00 p.m., renders patients unable to take medications just before going to sleep, leaving them to endure the side effects that accompany the medication every evening. 89. The med line is more labor-intensive than the KOP program, as to both medical and correctional staff. 90. The aforementioned problems with the operation of med lines are known to Defendants. 91. Removing HIV medications from the KOP program, and requiring HIV patients to go to
17

Case 1:10-cv-12013-RWZ Document 1 Filed 11/22/10 Page 18 of 37
med line for every dose, is both less efficient and less effective at ensuring adherence. 92. A prisoner who misses one or more med lines, no matter the reason, can be deemed noncompliant by the Defendants and have his or her HIV medications discontinued.
The Descent from HIV Into AIDS: One Patient’s Example 93. The problems generated by removing HIV medications from the KOP program are real, and many of them came to light in the experience of one prisoner, who has since been released from DOC custody, and whose health has suffered enormously from this policy change. 94. Brett Boe is using a pseudonym rather than his real name, in order to maintain his privacy with regard to his HIV-positive status. From 2006 until January 2010, Mr. Boe was in the custody of the Department of Correction. From February 2009, when Defendants removed HIV medications from the KOP program, until his release, he was incarcerated at Pondville Correctional Center in Norfolk, Massachusetts. 95. Prior to the Defendants’ policy change, Mr. Boe kept his HIV medications in his cell and was adherent to his medication regimen. 96. After Defendants removed HIV medications from the KOP program, Mr. Boe attempted to obtain his medications in the med line. At Pondville Correctional Center, the med line starts outside the door to the Health Services Unit. A correctional officer is posted at the door and lets one prisoner in at a time. The prison calls one med line, which can contain one hundred or more patients. 97. Mr. Boe has witnessed the spread of disease through med line. At one point, the prison population became afflicted with norovirus, a severe stomach flu. The first people to contract the virus were prisoners who regularly attended the med line, among them Mr. Boe.
18

Case 1:10-cv-12013-RWZ Document 1 Filed 11/22/10 Page 19 of 37
98. Mr. Boe has encountered interference from the correctional officer posted at the HSU door. On one occasion, in order to avoid contracting another illness, Mr. Boe stayed back until the med line was nearly complete, then stepped up to the back of the line. When he reached the door, the officer denied him entrance, declaring that Mr. Boe was too late for med line. 99. On other occasions, Mr. Boe has been turned away by the officer, who advised that the HSU was closed so that staff could eat. 100. The med line failed to safeguard Mr. Boe’s privacy. Mr. Boe does not publicly disclose his HIV-positive status, but after the policy change, his privacy was breached. 101. The correctional officers staffing the med line were aware that Mr. Boe had HIV, given their close proximity and comments occasionally made by the UMCH nurse distributing medications. 102. Those officers who became aware that Mr. Boe was HIV-positive did not keep the information to themselves; they told other officers. Mr. Boe had several interactions with officers that betrayed their knowledge of this information, typically through their reluctance to get close to Mr. Boe. 103. On at least one occasion, an officer was searching a group of prisoners returning from a work project. The officer patted down all of the prisoners, but when he came to Mr. Boe he declined to touch him, instead telling him to go ahead. 104. Such an action, singling a prisoner out for seemingly beneficial treatment without reason, placed Mr. Boe at serious risk of physical harm, as other prisoners were left to suspect that he was an informant. 105. Mr. Boe’s HIV-positive status was also improperly revealed to prisoners. UMCH staff
19

Case 1:10-cv-12013-RWZ Document 1 Filed 11/22/10 Page 20 of 37
scheduled a special med line, for all interested prisoners, to administer the influenza vaccine. While dozens of prisoners waited in line, UMCH staff announced the names of certain prisoners over the intercom, and instructed them to come to the front of the line, leapfrogging the other prisoners. The prisoners who were named, including Mr. Boe, were called to the front because UMCH did not have enough vaccine for all of the prisoners, and UMCH staff sought to ensure that HIV-positive prisoners were vaccinated, given their serious needs. While a laudable sentiment, the method by which UMCH prioritized HIV-positive prisoners all but disclosed their status to the other prisoners, who were quick to conclude why certain individuals were being called to the front. 106. The intercom, which runs throughout the prison, was also used on a regular basis to call individually named prisoners to the HSU for an appointment with the HIV specialist. The specialist came from off site and did not treat any patients other than those with HIV. Other prisoners could readily deduce that anyone being called over the intercom for an appointment with that doctor must be HIV-positive. 107. The removal of HIV medications from the KOP program produced interruptions in access that were so frequent that Mr. Boe’s illness deteriorated from HIV to AIDS. 108. At Pondville, a minimum-security facility, prisoners are required to work. Mr. Boe was on a work crew while at Pondville. 109. Work crews perform different projects each day. Their work times vary as well, based on the particular project. 110. As a result, on a frequent basis Mr. Boe was already at work when the morning med line started, and remained at work until after the morning med line closed.
20

Case 1:10-cv-12013-RWZ Document 1 Filed 11/22/10 Page 21 of 37
111. Upon returning from work, if Mr. Boe had missed the med line, he would ask the correctional officer supervising the crew to assist him with obtaining his medication. The HSU door was locked, and Mr. Boe was turned away if he went there alone, requesting his medication. He needed the officer to advise UMCH staff, and the HSU correctional officer, of the situation so that he could obtain his medication. 112. On a frequent basis, the officer supervising Mr. Boe’s work crew refused to make any effort to get Mr. Boe into the HSU. 113. On a frequent basis, even when the officer did help Mr. Boe, UMCH staff and the HSU correctional officer still turned Mr. Boe away, sometimes citing the obvious fact that the med line had ended, sometimes giving no reason at all. 114. Mr. Boe complained repeatedly about this state of affairs. He filed grievances and discussed the issue directly with UMCH staff. 115. Neither UMCH nor DOC staff offered any relief from this situation. 116. Mr. Boe could not simply miss work, without being disciplined and possibly transferred to a higher security prison. 117. After Mr. Boe repeatedly petitioned medical and correctional staff about this problem, UMCH staff retaliated against him by accusing Mr. Boe of missing the med line on purpose. When Mr. Boe explained that the officer supervising his work crew refused to bring him to the HSU to arrange for his entry, UMCH staff accused Mr. Boe of lying. 118. After repeated confrontations of this sort, DOC staff placed Mr. Boe on “Pending Investigation” status, an indication that Mr. Boe was being investigated for possible institutional violations. The nature of the investigation was not revealed to him.
21

Case 1:10-cv-12013-RWZ Document 1 Filed 11/22/10 Page 22 of 37
119. Prisoners on “Pending Investigation” status may be transferred to a segregation unit. In this case, DOC staff transferred Mr. Boe to a higher security prison, MCI-Norfolk, and its segregation unit. 120. Mr. Boe was confined in segregation for 33 days. He was never interviewed by any investigators. After 33 days, he was taken off of Pending Investigation status and returned to Pondville. 121. Notwithstanding the Defendants’ stated concerns about prisoner transfers, Mr. Boe had never suffered from any disruptions in his medication when HIV medications were part of the KOP program. Mr. Boe had always been permitted to carry those medications, along with a few essentials, on his person from one prison to the next. 122. By contrast, when Mr. Boe was transferred from Pondville to the segregation unit at Norfolk, he could not bring his medication with him. He did not receive any HIV medication until approximately one week after his arrival. 123. Upon information and belief, DOC and UMCH never did transfer Mr. Boe’s medication from Pondville to Norfolk. UMCH staff at Norfolk simply ended up ordering new refills for Mr. Boe. 124. Several months after the Defendants’ removal of HIV medications from the KOP program, Mr. Boe met with the HIV specialist. His CD4 cell count was fluctuating dramatically, as was his viral load. 125. The specialist attributed these fluctuations to Mr. Boe’s inconsistent access to his medication. The specialist also feared that if the inconsistencies continued, Mr. Boe was at great risk of developing a resistance to the drugs currently being prescribed.
22

Case 1:10-cv-12013-RWZ Document 1 Filed 11/22/10 Page 23 of 37
126. In light of these facts, and the fact that Mr. Boe was due to be released from DOC custody within a few months, the specialist advised that Mr. Boe’s health would be better served by discontinuing the medication completely, rather than continuing with the medication subject to such frequent interruptions. 127. Accordingly, for the last several months of his incarceration, Mr. Boe’s prescription for HIV medications was canceled. 128. Mr. Boe was released on January 9, 2010. 129. Before his 2006 incarceration, and through most of his time in DOC custody, Mr. Boe’s CD4 cell count hovered around 540. 130. Upon his release, Mr. Boe went to an HIV specialist to be examined and to resume taking medication. 131. Testing after his release revealed that Mr. Boe’s CD4 cell count had dropped below 200, thereby meeting the CDC’s definition of AIDS. 132. Mr. Boe has resumed his previous medication regimen, in the hopes that it remains effective and to avoid the emergence of drug resistance.
Individual Plaintiffs’ Experiences 133. Plaintiff Richard Nunes has longstanding disc problems in his back. One effect of this condition is that on occasion, without warning, the discs impinge on nerves and cause Mr. Nunes’ legs to give out. 134. Mr. Nunes fell down the stairs in his unit in March 2008, when his lower back acted up and his legs gave out. Since that fall, he has suffered from pain and stiffness in his thoracic spine and neck.
23

Case 1:10-cv-12013-RWZ Document 1 Filed 11/22/10 Page 24 of 37
135. Mr. Nunes had surgery in 2005 to repair a severely fractured tibia and patella after an accident. He had rods and screws inserted into his left leg. Mr. Nunes has not yet recovered full strength in this leg. 136. As a result of his conditions, Mr. Nunes has difficulty standing in one place for long periods of time. He also has difficulty climbing up or down stairs. His ability to stand, and his pain, vary from day to day. 137. Mr. Nunes is housed on the bottom tier of his unit, to reduce the frequency with which he climbs stairs. Pursuant to a UMCH order, Mr. Nunes is placed in the bottom bunk of his cell to avoid having to climb into and out of bed every night. Mr. Nunes avoids lines whenever possible, to avoid having to stand for long periods. He waits until the last possible moment to line up to return from the outside yard. Mr. Nunes is one of the first from his unit to leave for the chow hall, so that he does not have to stand in line for a long time while getting his meal. On some days, when he is not feeling well, Mr. Nunes avoids the chow hall altogether and eats in his cell. 138. Mr. Nunes has taken the same HIV medication regimen for years. As a side effect to these medications, Mr. Nunes suffers from frequent, sudden bouts of diarrhea. In the past, Mr. Nunes has had to cut short a visit or appointment and return to his cell, because of the onset of diarrhea. 139. In light of the diarrhea Mr. Nunes frequently experiences, and his other medical conditions, Defendants’ removal of his HIV medication from the KOP program presents a significant obstacle to consistent access to his medication. 140. Moreover, in light of his HIV, Mr. Nunes takes pains to avoid illness and infection. He is diligent about his hygiene and hand-washing; he avoids putting his fingers to his eyes, nose, or
24

Case 1:10-cv-12013-RWZ Document 1 Filed 11/22/10 Page 25 of 37
mouth; and he is circumspect in his interactions with others, especially those who may be sick or carrying illness. 141. These efforts of Mr. Nunes are thwarted by a policy that needlessly requires him to wait outside the Health Services Unit for med line every day. This setting – where sick prisoners go to be seen and treated, in a line of prisoners some of whom may also have contagious illnesses – lends itself to the spread of disease. 142. Moreover, the med line process promotes the spread of disease. At Old Colony Correctional Center, where Mr. Nunes is incarcerated, each prisoner in med line takes a plastic cup from the same stack and fills it from the same water fountain, to take with his pills. Each prisoner must then put his fingers in his mouth and pull his cheeks apart, to show the correctional officer that he swallowed the pills. 143. Prior to the Defendants’ policy change, Mr. Nunes kept his HIV medications in his cell and was adherent to his medication regimen. 144. In 2008, Mr. Nunes was held for several weeks in a segregation unit, where KOP medications are not allowed. A UMCH nurse was responsible for providing medications to prisoners in that unit, similar to the way in which nurses provide medication at med line. On two occasions during Mr. Nunes’ segregation, the nurse responsible for medication rounds omitted one of his HIV medications. On another occasion, the nurse attempted to give too high a dose of one medication. 145. Despite Mr. Nunes’ serious concerns about the med line, his particular medical conditions, and his historical adherence to HIV medications, Defendants have refused to allow Mr. Nunes to continue to receive his HIV medications through the KOP program. Mr. Nunes has asked for an
25

Case 1:10-cv-12013-RWZ Document 1 Filed 11/22/10 Page 26 of 37
exception to be made in his case. He has also proposed as an alternative that he be permitted to go to med line first, so as to avoid the long wait, or that his medications be brought to his cell by the nurses who visit his unit daily, to administer medications to prisoners who for various reasons are locked in their cells. Defendants have denied these requests and informed Mr. Nunes that there are no exceptions to the new policy. 146. Frustrated and discouraged by a med line process that he knows will make errors, foster the spread of illness, and cause him pain and discomfort, Mr. Nunes has declined to go to the med line for his HIV medication. In this respect, the Defendants’ policy change has achieved its desired effect, if temporarily. On the day of the policy change, Mr. Nunes filed a pro se lawsuit challenging Defendants’ actions. He voluntarily dismissed that action in order to participate in the instant action. As such, Mr. Nunes has been declining to go to the med line only until he can obtain relief from the courts in the form of a return to KOP medication. 147. Plaintiff Carl Coe, prior to the Defendants’ policy change, kept his HIV medications in his cell and was adherent to his medication regimen. 148. Mr. Coe suffers from side effects as a result of his HIV medication, including dizziness and numbness on his tongue. To combat these side effects, in the past Mr. Coe took his medicine right before going to sleep. In this way, he was able to sleep through the worst of the side effects. 149. Since Defendants removed HIV medications from the KOP program, Mr. Coe has had to take his medication when called out to med line, typically between 5:30 – 7:30 p.m. He now suffers from the worst of the side effects every evening, while still awake. 150. Since the policy change, Mr. Coe has gone to med line for his HIV medication when able. For each morning and evening med line, Mr. Coe and others in his unit must await a call from
26

Case 1:10-cv-12013-RWZ Document 1 Filed 11/22/10 Page 27 of 37
UMCH staff to the correctional officer in his unit, authorizing that unit’s prisoners to be sent out for med line. The officer must then announce to the unit that prisoners may go to med line. 151. On several occasions since the policy change, Mr. Coe’s unit was not called out for med line. Either the UMCH staff never called the unit officer, or the officer never relayed the message to the prisoners in the unit. On these occasions, the errors were not remedied in time and Mr. Coe missed his medication. 152. The med line at MCI-Shirley Medium begins inside the Health Services Unit, but quickly extends outside the building. Most of the time Mr. Coe spends waiting in line is spent outside. At times the outdoor conditions, including rain, snow, or extreme cold, plus any seasonal or other illness, force Mr. Coe to choose between foregoing his medications that day and risking the onset or exacerbation of illness from waiting in the elements. 153. Plaintiff John Doe, prior to the Defendants’ policy change, kept his HIV medications in his cell and was adherent to his medication regimen. 154. Since the Defendants removed HIV medications from the KOP program, Mr. Doe has gone to med line to obtain his HIV medication. 155. When that change was made, Mr. Doe was called to the Health Services Unit to discuss it with his infectious disease specialist and the case manager, a UMCH employee. At that meeting, Mr. Doe gave no indication that he would stop taking his medications. Nevertheless, the case manager advised Mr. Doe that he should let her know “when” he was ready to stop, so that she could make the proper arrangements. 156. On one occasion, Mr. Doe woke up feeling terribly ill. He felt too sick to leave his cell and wait in med line. Mr. Doe’s unit officers were aware of his condition. There was no
27

Case 1:10-cv-12013-RWZ Document 1 Filed 11/22/10 Page 28 of 37
procedure in place for Mr. Doe to obtain his medication, and so Mr. Doe went without his HIV medication that day. 157. Mr. Doe’s HIV medications cause unpleasant side effects, including stomach cramps and vomiting. When Mr. Doe possessed his medications in his cell, he arranged to take the medications with food, in order to mitigate these side effects. 158. Since the policy change, Mr. Doe has been forced to take his medication whenever he is permitted to go to med line and makes his way to the front of that line. As a result, Mr. Doe cannot take his medications with food, and he suffers from more severe side effects. 159. In addition, Mr. Doe takes three medications twice a day. To maximize their efficacy and to minimize the potential for developing resistance, the recommendation is to take these medications at twelve-hour intervals. 160. When Mr. Doe possessed his medications in his cell, he could take them at twelve-hour intervals. 161. Presently, Mr. Doe has no control over when he receives his morning and evening doses. There is a range of at least two-hours within which Mr. Doe could receive his medications at each med line. Accordingly, more often than not Mr. Doe cannot take his medication at twelve-hour intervals. 162. On several occasions, officers in Mr. Doe’s housing unit have failed to announce that his unit had been called to the med line. Mr. Doe did not receive his HIV medications on these days. 163. On other occasions when Mr. Doe has gone to the med line, the nurse administering medications has not prepared the correct dose of Mr. Doe’s medications. Mr. Doe has had to correct the nurse.
28

Case 1:10-cv-12013-RWZ Document 1 Filed 11/22/10 Page 29 of 37
164. On one occasion, when Mr. Doe wished to attend a religious ceremony that took place during the morning med line, UMCH staff refused to accommodate his request to obtain his medications before or after the ceremony. Instead, after Mr. Doe was forced to forego his HIV medication that morning, UMCH staff summoned Mr. Doe to the HSU for a meeting. There, they threatened to discontinue Mr. Doe’s HIV medications for noncompliance. 165. Mr. Doe does not publicly disclose his HIV-positive status. Since the policy change, however, his privacy has been breached. 166. At the time the Defendants removed HIV medications from the KOP program, there was a poster in the Health Services Unit, within sight of those waiting in the med line. The poster contained photos and labels of the various HIV medications. With help from the poster, anyone who could see the pills being dispensed to Mr. Doe, or any other HIV patient, would be able to conclude that he had HIV. 167. The poster was eventually taken down. However, UMCH staff members at med line have continued to make comments loud enough for the correctional officer and other prisoners in the unit to hear, making direct reference to Mr. Doe’s HIV-positive status. The poster remains on the wall in certain offices in the Health Services Unit. 168. In addition, many of the other medications distributed at med line are crushed before they are administered. HIV medications are not crushed, and so other prisoners can deduce that Mr. Doe is HIV-positive. 169. Plaintiff Peter Poe, prior to the Defendants’ policy change, kept his HIV medications in his cell and was adherent to his medication regimen. 170. Mr. Poe does not publicly disclose his HIV-positive status. Since the policy change,
29

Case 1:10-cv-12013-RWZ Document 1 Filed 11/22/10 Page 30 of 37
however, his privacy has been breached. 171. UMCH staff members at med line have made comments verbally, loud enough for the correctional officer and other prisoners in the unit to hear, making direct reference to Mr. Poe’s HIV-positive status. 172. Mr. Poe has a job at the prison. He works in the mornings. On multiple occasions since February 2, 2009, there have been conflicts between the timing of the med line and his scheduled work. Defendants purport to have a procedure that allows prisoners with jobs to receive their morning medications before going to work, in a special med line. Despite having this procedure in place, Mr. Poe has still suffered from conflicts between med line and his job. 173. If he is absent from his job, Mr. Poe risks being issued a disciplinary report and being punished. He also risks losing his job. 174. If he does not attend med line, Mr. Poe puts his health in jeopardy. He also risks being accused of noncompliance with his medication, and ultimately with cancellation of his HIV medication. 175. Before the policy change, Mr. Poe’s viral load was undetectable. 176. After having his HIV medications removed from the KOP program, Mr. Poe’s viral load increased to detectable levels. 177. Plaintiff Richard Roe, prior to the Defendants’ policy change, kept his HIV medications in his cell and was adherent to his medication regimen. 178. Mr. Roe has made efforts to keep his HIV-positive status private. He has disclosed his condition to some trusted individuals, but he is not public about having HIV. 179. Since the policy change, Mr. Roe has gone to med line for his HIV medication.
30

Case 1:10-cv-12013-RWZ Document 1 Filed 11/22/10 Page 31 of 37
180. At the med line, UMCH nurses have breached his privacy. They have disclosed his HIVpositive status verbally, out loud, for the correctional officer and other prisoners waiting in line to hear. 181. On one occasion, Mr. Roe has been given the wrong medication by the med line nurse. When Mr. Roe identified the error, the nurse denied providing the wrong medication and refused to correct the error. 182. Mr. Roe has missed his medication because he was too ill to go to and wait in the med line. He was ultimately diagnosed with influenza, but the Defendants made no arrangement to provide Mr. Roe his medication in his cell after falling ill. 183. Defendants are and have been aware of all of the aforementioned problems with the med line. Before they removed HIV medications from the KOP program, Defendants knew that there were systemic problems with med line delays, disruptions, interruptions, conflicts with other programs, errors, contagion, and breaches of privacy. 184. Accordingly, Defendants knew that when they required all HIV-positive prisoners to come to med line daily for every dose of their medication, they all would experience difficulties in accessing these life-saving medications, and breaches of privacy over their HIV-positive status.
COUNT I CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE EIGHTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION 185. Plaintiffs restate and reallege Paragraphs 1-184 as if fully set forth in this Count I. 186. By their policies, practices, and acts, all of the Defendants violate the rights of convicted
31

Case 1:10-cv-12013-RWZ Document 1 Filed 11/22/10 Page 32 of 37
prisoners with HIV to be free from cruel and unusual punishment as protected by the Eighth and Fourteenth Amendments to the United States Constitution, as enforceable through 42 U.S.C. § 1983. 187. In all relevant aspects, Defendants have acted and are acting under color of law. 188. As a matter of blanket policy, Defendants have prohibited all HIV-positive prisoners from receiving their essential medications as KOP medications, instead requiring them to come to the prison’s med line for every dose. 189. Defendants enacted this policy with full knowledge of the disruptions, delays, and other difficulties that accompany the med line process. 190. Defendants also knew of the increased risk of error, contagion, infection, and breach of privacy that result from forcing every HIV-positive prisoner to go to the med line for every dose of medicine. 191. Defendants make no exceptions to the requirement that all HIV medications must be distributed at med line, regardless of a patient’s side effects, other medical conditions, conflicts with work, religious or program schedule, or other valid reasons for seeking a temporary or permanent accommodation. 192. Defendants enacted this policy knowing that it would reduce, rather than improve, adherence. They knew that it would frustrate and discourage HIV patients, and induce some of them to give up on their medication regimen, thus lowering costs. 193. By requiring all HIV-positive prisoners to come to the med line for their medications, and barring any of them from having KOP medication, Defendants act with deliberate indifference to the serious medical needs of these prisoners.
32

Case 1:10-cv-12013-RWZ Document 1 Filed 11/22/10 Page 33 of 37
COUNT II VIOLATION OF EQUAL PROTECTION RIGHTS UNDER THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION 194. Plaintiffs restate and reallege Paragraphs 1-193 as if fully set forth in this Count II. 195. By their decision to bar HIV medications from the Keep on Person program, Defendants violate the equal protection rights of convicted prisoners with HIV, as protected by the Fourteenth Amendment to the United States Constitution, as enforceable through 42 U.S.C. § 1983. 196. HIV medications, like most medications, do not pose a sufficient risk of abuse, sale, or theft to require all prisoners taking such medications to come to med line. HIV medications have traditionally been dispensed as Keep on Person medications. 197. By removing HIV medications but no other medications from the KOP program, Defendants are treating Plaintiffs, and all prisoners with HIV, differently from other similarly situated individuals. 198. Defendants did not remove any other medications from the KOP program. Plaintiffs, and all HIV-positive prisoners taking medications, were singled out by this change. 199. There is no rational reason for singling out these prisoners.
COUNT III VIOLATION OF SECTION 504 OF THE REHABILITATION ACT OF 1973 200. Plaintiffs restate and reallege Paragraphs 1-199 as if fully set forth in this Count III. 201. Plaintiffs are qualified individuals with disabilities as defined in Section 504 of the Rehabilitation Act of 1973. See 29 U.S.C. § 794.
33

Case 1:10-cv-12013-RWZ Document 1 Filed 11/22/10 Page 34 of 37
202. Defendants UMCH and DOC administer programs or activities that receive federal financial assistance. 203. Defendants UMCH and DOC discriminate against Plaintiffs by canceling their keep on person prescriptions for HIV medications, solely by reason of their disability, i.e. their HIV. 204. Defendants UMCH and DOC are denying Plaintiffs the benefits of the KOP program or service for medication administration, solely by reason of their disability, i.e. their HIV.
COUNT IV VIOLATION OF THE AMERICANS WITH DISABILITIES ACT 205. Plaintiffs restate and reallege Paragraphs 1-204 as if fully set forth in this Count IV. 206. Plaintiffs are qualified individuals with disabilities, as defined in the Americans with Disabilities Act. As state prisoners, Plaintiffs meet the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by Defendants UMCH and DOC. See 42 U.S.C. § 12102(2); 42 U.S.C. § 12131(2). 207. Defendants UMCH and DOC are public entities as defined under Title II of the ADA, 42 U.S.C. 12131(1)(B). 208. Defendants UMCH and DOC discriminate against Plaintiffs by canceling their keep on person prescriptions for HIV medications on the basis of their disability, i.e. their HIV. 209. Defendants UMCH and DOC are denying Plaintiffs the benefits of the KOP program or service for medication administration on the basis of their disability, i.e. their HIV.
COUNT V VIOLATION OF THE RIGHT TO PRIVACY UNDER THE FOURTEENTH
AMENDMENT TO THE UNITED STATES CONSTITUTION
34

Case 1:10-cv-12013-RWZ Document 1 Filed 11/22/10 Page 35 of 37
210. Plaintiffs restate and reallege Paragraphs 1-209 as if fully set forth in this Count V. 211. By their policies, practices and acts, Defendants violate the right to privacy of convicted prisoners with HIV, as protected by the Fourteenth Amendment to the United States Constitution, as enforceable through 42 U.S.C. § 1983. 212. Plaintiffs’ HIV-positive status is private medical information. 213. Disclosure of one’s HIV-positive status to other prisoners, correctional officers, or anyone other than medical staff is unreasonable. 214. As a matter of blanket policy, Defendants have prohibited all HIV-positive prisoners from receiving their essential medications as KOP medications, instead requiring them to come to the prison’s med line for every dose. 215. Defendants enacted this policy with full knowledge of the breaches of privacy that routinely accompany the med line process. 216. Defendants UMCH and DOC, through their employees and agents, have disclosed the HIV-positive status of Plaintiffs Carl Coe, John Doe, Peter Poe, and Richard Roe, to other prisoners and correctional officers. 217. There is no valid, rational basis for the disclosure of this information.
PRAYER FOR RELIEF 218. WHEREFORE, Plaintiffs request that this Court grant them the following relief:
a. Certify that this action be maintained as a class action of all persons who are now or may be confined in Department of Correction custody and who have HIV;
b. Issue a preliminary injunction ordering Defendants to restore Keep On Person 35

Case 1:10-cv-12013-RWZ Document 1 Filed 11/22/10 Page 36 of 37
administration of HIV medication for Plaintiff Richard Nunes, pending the outcome of this action; c. Issue a judgment against Defendants, declaring that their acts, omissions, policies, and practices with regard to the administration of HIV medication are cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the United States Constitution; d. Issue a judgment against Defendants, declaring that their acts, omissions, policies, and practices with regard to the administration of HIV medication violate the equal protection rights of Plaintiffs under the Fourteenth Amendment to the United States Constitution; e. Issue a judgment against Defendants UMCH and DOC, declaring that their acts, omissions, policies, and practices with regard to the administration of HIV medication violate Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132; f. Issue a judgment against Defendants UMCH and DOC, declaring that their acts, omissions, policies, and practices with regard to the administration of HIV medication violate the right to privacy of Plaintiffs Carl Coe, John Doe, Peter Poe, and Richard Roe under the Fourteenth Amendment to the United States Constitution; g. Issue a permanent injunction ordering Defendants to restore all HIV medications to the KOP program; h. Enjoin Defendants from taking any action to interfere with Plaintiffs’ right to maintain this action, or from retaliating in any way against Plaintiffs for bringing this action;
36

Case 1:10-cv-12013-RWZ Document 1 Filed 11/22/10 Page 37 of 37

i. Award Plaintiffs their reasonable attorneys’ fees and costs, in accordance with 42
U.S.C. § 1988 and other applicable law;
j. Grant such other and further relief as this Court considers just and proper.
Respectfully submitted,
Plaintiffs Richard Nunes, Carl Coe, John Doe, Peter Poe, and Richard Roe, on behalf of themselves and all others similarly situated,
By their attorney,

Dated: November 22, 2010

/s/ Joel H. Thompson Joel H. Thompson, BBO #662164 jthompson@plsma.org Prisoners’ Legal Services 8 Winter Street, 11th Flr. Boston, MA 02108 (617) 482-2773, ext. 102

37

 
 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 10-12013-RWZ

RICHARD NUNES, et al. v.
UMASS CORRECTIONAL HEALTH, et al.

ORDER

March 21, 2011

ZOBEL, D.J.

Plaintiff Richard Nunes, a state prisoner, brings suit on behalf of himself and

those similarly situated, against defendant UMass Correctional Health (“UMass”), the

Massachusetts Department of Correction (“DOC”), and several individual employees of

both entities. He challenges a newly enacted policy by which the DOC has refused to

allow him to self-administer his HIV medication and claims deliberate indifference to his

medical needs in violation of his Eighth and Fourteenth Amendment constitutional

rights, as well as violation of both the Americans with Disabilities Act, 42 U.S.C.

§§12102 et seq. (“ADA”), and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.

§§ 794-794a et seq. (“RA”). Pending is plaintiff Nunes’ motion for a preliminary

injunction.

A hearing on the motion will be held on April 12, 2011, at 3:00 p.m. The parties

shall proffer any evidence in admissible form.

March 21, 2011 DATE

/s/Rya W. Zobel RYA W. ZOBEL

UNITED STATES DISTRICT JUDGE 2

 
 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 10-12013-RWZ RICHARD NUNES v.
UMASS CORRECTIONAL HEALTH, et al.

ZOBEL, D.J.

ORDER May 16, 2011

Plaintiff, Richard Nunes, an inmate in the custody of the Massachusetts Department of Corrections (“DOC”), has HIV and requires twice daily medication. For years DOC supplied inmates like plaintiff with a multi-day quantity of such medications, to be kept in their cells and refilled as needed. This program, known as KOP for “Keep on Person,” was discontinued as of February 1, 2009. As a result plaintiff has to go to the Health Services Unit twice a day, stand in line and wait to receive the required medicines. There appears to be no dispute that plaintiff suffers from chronic back and leg problems which, he says, often prevent him from going to the infirmary and make standing in line impossible. He is also afflicted with chronic and frequent diarrhea which effectively keeps him bound to his cell. The parties agree that it is important for HIV patients to adhere strictly to the prescribed regimen for the drugs to be effective and that plaintiff, under KOP, did so. Because of his difficulties obtaining the drugs under the new protocol, plaintiff has ceased taking the medications with adverse effects

on his health. He brought this action for relief based on claims that the policy violates his rights under the Eighth Amendment, the Americans With Disabilities Act (“ADA”) and the Rehabilitation Act. The matter is before me on plaintiff’s motion for a preliminary injunction against enforcement of the new protocol and an order to permit him to receive the HIV medicines in accordance with KOP rules (Docket # 27).
At the hearing on the motion, defendants argued that plaintiff had failed to comply with the statutes in that he had never formally requested an accommodation. The court ordered plaintiff to file an ADA Accommodation Request and defendants to respond within two weeks thereafter. Both parties complied. Defendants proposed accommodating plaintiff by providing him with a rolling walker for the times he is not feeling well, allowing him to leave the line and wait for his turn seated on a nearby bench, and use the bathroom when in need without losing his place in the line. Plaintiff finds the proposed accommodation wanting. He is concerned that his leaving the line without losing his place will cause confrontations with other prisoners not so privileged and that the use of the public bathroom in the Health Services Unit carries the risk of contagion. Finally, he points out that there are days when he is simply too sick to get out of bed and, even with a rolling walker, go to the infirmary to get his daily medications, let alone do so twice on such days.
At this preliminary stage and on the current record, I cannot say that the proposed accommodation is inadequate except in one respect. The record supports plaintiff’s assertion that there are a number of days every month when he is absolutely unable to get out of bed or be any distance from a bathroom. Defendants’ plan does
2

not address these inevitable contingencies by including a mechanism to provide the medications on those days. Unless defendants by June 3, 2011, amend the accommodation to include a plan for addressing these contingencies, the preliminary injunction will issue. If the accommodation satisfactorily addresses these issues, the motion for injunctive relief will be denied.

May 16, 2011 DATE

/s/Rya W. Zobel RYA W. ZOBEL UNITED STATES DISTRICT JUDGE

3

 
 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 10-12013-RWZ RICHARD NUNES v.
UMASS CORRECTIONAL HEALTH, et al.
ORDER September 30, 2011 ZOBEL, D.J. Since the hearing on Plaintiff’s Motion for a Preliminary Injunction (Docket # 27), defendants have offered a number of accommodations to enable plaintiff to obtain his HIV medications daily at the Health Services Unit. These accommodations are deemed by plaintiff to be inadequate to meet his needs given his seriously compromised health. The parties have submitted several status reports detailing, on one side, plaintiff’s ongoing difficulties and resultant inability to comply with defendants’ rules and even to take advantage of the accommodations offered, and on the other side, defendants’ willingness to accommodate plaintiff and his, not always entirely passive, resistance. The most recent status reports pertaining to an incident that resulted in plaintiff being taken to the segregation unit paint very different pictures about the underlying incident. To the extent plaintiff seeks to restore the KOP (Keep On Person) rule that permitted inmates to keep certain medications in their cells, the motion for a preliminary injunction is denied. Defendants operate in the context of a prison and they are entitled to make reasonable changes in the rules even if such changes adversely

impact some inmates and even if those inmates behaved appropriately under the prior regime. However, given the requirements of the Americans With Disabilities Act, 42 U.S.C. § 12102(2) et seq., defendants must make reasonable accommodations to those inmates who are unable to comply with the new rules. Although clearly wanting from plaintiff’s perspective, I cannot, on this record, say that the accommodations offered are inadequate to provide plaintiff with the needed medications. The record is not clear on the central issue - whether plaintiff, with the accommodation offered, is unable to comply with the rule or unwilling to do so.
The motion for a preliminary injunction is denied.

September 30, 2011 DATE

/s/Rya W. Zobel RYA W. ZOBEL UNITED STATES DISTRICT JUDGE

2

 
 Case 1:10-cv-12013-RWZ Document 48 Filed 04/08/11 Page 1 of 5 Case 1:10-cv-12013-RWZ Document 47-1 Filed 03/28/11 Page 2 of 6

UNITED STATES DISTRlCT COURT FOR TIm DISTRlCT OF MASSACHUSETTS

RlCHARD NUNES, CARL COE.

)

10HN DOE, PETER POE, and RlCHARD

)

ROE, on behalfof themselves and all others )

similarly situated,

)

Plaintiffs,

)

)

v.

)

)

UMASS CORRECTIONAL HEALTII,

)

MASSACHUSETTS DEPARTMENT OF

)

CORRECTION. LEONARD MCGUIRE.

)

WARREN FERGUSON.1UDITII

)

STEINBERG, TIIOMAS GROBLEWSKI.

)

and PETER HEFFERNAN,

)

~D~e=f;=~=d=an=b~.______________________ )

CIVIL ACTION NO: 1:1O-CV-12013-RWZ

PROTECTIVE ORDER

After due consideration of the parties' Stipulation For Entry of a Protective Order

For The Protection of Confidential Infonnation ("Stipulation"). and upon good cause

shown, it is hereby Ordered and Adjudged:

I. Background: The plaintiffs, Richard Nunes, Carl Coe, lohn Doe, Peter Poe, and

Richard Roe filed this suit on behalf of themselves and others similarly situatedI (hereafter the

"plaintiffs" QI' "prisoners"). The plaintiffs are prisoners incarcerated under the control of the

Massachusetb Department ofCorrection ("DOC"). The plaintiffs are incarcerated at various

DOC facilities throughout the Commonwealth, The plaintiffs' claims against the defendanb

surround a change in policy regarding the administration ofcertain medicatious at the DOC

facilities. In their Complaint, with the exception ofRichard Nunes, the names ofthe plaintiffs

are not identified. Instead, the plaintiffs are listed as Carl Coo, lohn Doe, Peter Poe, and Richard

Roo.

, The plaintiffs seek cl... action certification, but a class bas not been certified as of the time of this filing.

Case 1:10-cv-12013-RWZ Document 48 Filed 04/08/11 Page 2 of 5 Case 1:10-cv-12013-RWZ Document 47-1 Filed 03128111 Page 3 of 6
Defendants have requested that the names ofCarl Coe, John Doe, Peter Poe, and Richani Roe be disclosed. In an effort to resolve the plaintiffs' privacy and confidentiality concerns, and the defendants' claimed entitlement to know the names of the prisoners pursuant to the mandatory disclosure provisions of Fed. R. Civ. P. 26(a)(I), as well as the discovery procedures contained in Fed. R. Civ. P. 26(b)(1), the parties have filed a Stipulation. The Stipulation requests that the Court issue an order governing the parties' handling of the prisoners' names in connection with this litigation.
2. Production of Confidential Material: Upon the execution of this order, the plaintiffs' counsel will produce a confidential list showing the troe names for Carl Coo, John Doe, Peter Poe, and Richani Roe listed in the Complaint.
3. Use of Confidential Material: The confidential material and information described in paragraphs I and 2 shall be used solely for the purpose oflitigating this matter or for the purposes ofproviding medical or mental health treatment as clinically indicated unless the person who is the subject ofsuch confidential material, or that person's legall:ullldian or other authorized legal representative, if any, authorizes its use for any other particular purpose. A party may, subject to the rules of evidence, the Federal Rules ofCivil Procedure, and orders of the Court, use any confidential material, without disclosing any personally identifying information, for any purpose in a pleading, filing, hearing, trial, or other proceeding in this matter. Wherever possible, a party should use the plaintiffs' pseudonyms rather than their true names. All pleadings and other materials containing personally identifying information ofany prisoner or fotmer prisoner who is the subject of this Protective Order shall be filed under seal pursuant to the procedures set forth in Local Rule 7.2. Any confidential material used in any

Case 1:10-cv-12013-RWZ Document 48 Filed 04/08/11 Page 3 of 5 Case 1:10-cv-12013-RWZ Document 47-1 Filed 03/28/11 Page 4 of 6
court document or proceeding shall not lose its confidential status through such use, unless the Court orders otherwise.
4. Disclosure of Confideutial Material: The confidential material and information described in paragraphs I and 2 shall be controlled and maintained by the parties and the Court in a manuer that precludes access by any person not entitled to access under this Order. Confidential material shall be disclosed only to the following persons:
(a) Counsel, including paralegal, investigative, secretarial, and clerical personnel who are engaged in assisting such counsel in the above-entitled action; (b) Any independent outside expert or consultant, and employees and assistants under the control of such an expert or consultant, who is engaged by counsel in this litigation, whether or not such expert is paid directly by a party; (e) An.y employee of a party or employee of a vendor ofa party who is requested by counsel for such party to work directly on the above-entitled action, except that, defendants' attorneys shall disclose the names of the prisoners identified in the confidential list produced in accordance with paragraph 2 and/or sealed pleading(s) only to those employees for whom such disclosure is necessary for the defense and litigation of this case or for the purposes of providing medical or mental health treatment as clinically indicated. Such disclosure shall be only to the extent necessary for the purposes of this case. The confidential list of prisoners described in paragraph 2 shall not be disclosed to correctional officers except as is necessary for the defense and litigation of this case; (d) Any deposition or trial witness, onless objected tn by a party and the objection is sustained by the Court;

Case 1:10-cv-12013-RWZ Document 48 Filed 04/08/11 Page 4 of 5 Case 1:10-cv-12013-RWZ Document 47-1 Filed 03/28/11 Page 5 of 6
(e) Any person who authored or received the particular confidential material sought to be disclosed to that person; (I) Court reporters and persons operating video and/or audio recording equipment at depositions; or (g) The Court and its support personnel. The confidential material and information described in paragraphs 1 and 2 shall Dot be disclosed to persons described in Paragraphs 3(b), (c), or (d), unless or until such persons have been provided with a copy of this Order and have agreed to abide by and comply with the terms and provisions therein. 5. Treatment of Prisoners: Nothing in this Stipulation shall be construed so as to limit the ability of the Department ofCorrection through its vendors to provide medical and mental health treatment to all prisoners in its custody, including these prisoners. 6. Right to object to discovery requests: Nothing in this order shall limit any party's right to object to discovery pursuant to the Federal Rules of Civil Procedure or other relevant law. 7. Modification of the Protec:tive Order: This Order shall not prevent a party from applying to the Court for relief therefrom, or from applying to the Court for further or additional protective orders, or from agreeing to modification ofthis Order.

Case 1:10-cv-12013-RWZ Document 48 Filed 04/08/11 Page 5 of 5 Case 1:1 0-cv-12013-RWZ Document 47-1 Filed 03/28/11 Page 6 of 6

8. ContiDuatioD of the Protective Order: Upon conclusion of the above entitled
action the provisions of this Order shall continue to be binding. This Order shall remain in force
and effect until modified, superseded, or terminated by consent of the parties
or by Order of this Court. SO ORDERED:

Jud~ ya W. Zobel United tales District 1udge

DATED: '{y",,;P ~( zc:, {)

 
 Case 1:10-cv-12013-RWZ Document 69 Filed 10/25/11 Page 1 of 2

UlJlrr D STArES DlST~JC. T CouF{T
Dl$TAICr 6F flIiSS/1CI/USE7T.s

RrCilIIRJ) NUPGS ~f 0. ('I )

f/a/n6 ~.$I

)

)

)

)

UI1I1SS CtJfRfLTJoIllIfL )

/tEtltn" (!f, aI~ J

;;

:J

CI ,lIt.. t1C TJON tJo.I;IO~C()~ ))0/3- Bwz.

HGITJOIIJ fa TIII(£ [£/II/E To })1/':/110 ClVJi-
CO!1PtltxIIIT /II", J; 1tJ·- CI/- / ~{)j3 -I( w Z -

NtJw C(}I1£'S/ lie f%/;,f;llj /?'Chd/'J NUJ1t"s/ (I'o-:;;e/ II?
fJ,p a be tit sljlt'J an(.) ctlffJC'/Jt!) l7a lle!'1 Ul1d AWI/6/y 110(.1(".50
fAI:7 /ltH)crahle (aurf fo Toke Ledl.!eTo IIM~") CIVIl LOl1f/~il)t M. /:lO-Cv- 1J,()13- t<WZj fLl1.!>""OAf fa
fuJel'al Rufe> of C/(h/ Iface dun!I fi'ule IS a)c~)CI)(,)~ h Cd).
l:n 5 ffc1f'f (Jf fl.,!; /1of,(;/'I/ j'J,e f!twlt, ~ k,c:/uud IVU,1t') U
sc...b,."h 4/1 /JrrJ/)/ftl;lT.J;/lI 5a;JIt/l,er: of w4,;;4 Ae- //h'<1~/kN'4{(75

Case 1:10-cv-12013-RWZ Document 69 Filed 10/25/11 Page 2 of 2

+() 5dl,} .9""1'11"1411$ '}4a// ht! Sx!/'veJ DC'!e"5€ Co..."se ~ 51, e'/'y I
f. 6f~Mtl w<':'" i'tylN}"bts f)"ftJdr1f1"f (jf Cl:Wf'c/t';:'J1 f)e{e",Jo...fs.

Resptcf.fully- Su!y.,;lkd 137/

DQ,teJ~O~?J,Jo//

. ~/), /I/~( .Ik./~

~u: ~a.tJ f). M u l"-5 ;:;'0-5i!/ w·- few,; .J

rI Y :;" I t! ,t11~dJlJ ,.,

f'- O· dCl)c J.?v g
51'j1"'/PY, I1tlHqtA~ fett:5

- J-

CJIYGY-/~/t

Case 1:10-cv-12013-RWZ Document 69-1 Filed 10/25/11 Page 1 of 4

UNITED STlrTE5 PIS1/?.IcT CoaRT
DI$Tf{ICT ()t= J1t9J5/1t::#U5ETT5

RrCHIJ/<.J) NUNE5, ef. cd" )
)

f/d,nft#S,

)

v;

)

)

tA/1/f;S CdRf(Ec. TIo;rJ/I/..

IIE/tt1~ ef; at. J

)
)

Mbl)4ryt-S.

)

CrUfL Itc rJ"tJAJ
No. 1;/o~Cu-I20I.3- f{wz.

IJfFIVAVI T OF RIOllt//) j), NuMB.:> IN 6uf';JcJ/lT
(If tltJTIOAJ T(J TlJkG'lEAIIE' To AHENLJ C.II/:t'L.
z CLYHf/1JIIIJT /14:;. /-/tJ-CV- jdh;J13 -I< w

I, /f,c./)(Jr) D. Nul7f'..5; /'ere6y )t'ltT.5e a"j .5ft.tfe;

/, L a,., lie le.:tJ jlldtnf,.fZf i/) CII/II CdI'1/,/~//.r
AJo. //()-Ct!- /,iItJ/3/(Wz.. ~

;t, f,',dr 10 ·Ni.s Cdfe beM) P,ied /,'1 IJ/lltl!!d .51£<.11"5

DI}tt'ld ut.utl d w«:s -f',"lpJ III p!;-h(}...f~ c::bt//lty 5:"P'(;/' C;7'U'r; jlfI15J4·[{...f~ff~·1 /)()c/(I!!f M. PLC;;JJof-(jdJ35J3" 67 1'11SeI£
fl'()-.se, (fA):t ~/d )tlI'1aJeJ,. 7X.'5 ,"allt'/' wa> /A)/~n1~../ly )'51'11.55t!J.

.3. I

~J'lfeN)

J"Ilo

<1.

'.' [<I!l"e:;e.,/Qf;<"/I

'/
IJjr't!'exI!!Af

(,V1'Il !1J.fJul,a#ffs Ct,f'Md","" / l~}4/ Se /,//tces, :;:4<:.'. dA

II/I'd It; /k)(} 1. w,IIt//l r~/S Co"t'(ict d..f fiVt 3/ ftl/'« jl'd/' 3"

Case 1:10-cv-12013-RWZ Document 69-1 Filed 10/25/11 Page 2 of 4

\'
3.

neLS i../1I1 NIN5~nf #'t' Cle"f

II?

"

tu law j{.uf t2:J41"> t of1h~/als. of

O(JC d..,j

(jlfOI ~t'4'MJjuJ'CI'61 I'e/'td -lId'! Ii<'

IIfw fl'(1(t!jv/'t!' I'~!'/II'/"'J ttl-<'c f CJf,St!7/,v4fEC/)1

I1,ttI'A/y/1r /11;1 N)iittt/o",1 l'ertAt'r 1'1<1/1 k'u/~tJl1 -;'t'I'}'eJ/i #t'/'9'y, "~t> Iv/I/ j'NA'"
il'lj"M~:fi.;t! 4,,) Jeelal'4ft:,ry 1't'j,-I'II/'I.t1<1"/~ ...,. o"J 4/4Jt' lit'/4",,>ud w,Jldhu .j'<!c'J(' /p/1age>~ •.

(St!t!; 1;~I..;t;f-lI, tl td/y of tk j({JII'tf'.567Aiaf;on 4frU/'I.<!'nt-

td.JIt'!'-"1 1'1X!J.e/f. L7"j 'J()e/ )l.l'Aory'S<:'J.n/ "I /'fc:!£.5" )/II.,.; .{"170...... >"!
£2, /I"/Jo/l;":;/ /.t1~1 X'/,vlces/ he." '1A'$ 61,4.,6,/ ;:f 6t!!1.n,j JdI ¥lIe) G.;<-I!t/f@ I'J.~ Gwts i//t'W/I1.j 0/17 r,)",J f j.,vpke

t.dltJl"I'll1y-c/,t?"f fl'tv4f,ed (3.t1lw>fe>",jt'ncej and I'el,~.>f I~ ~,.
f" ll>l/(JU") /A,s J:,C;b/fi~ ",--I).

'7, B<!C4-v:se I hilv!' wll.l"fol'l'!r )I5M;:;Se) -IXi$ 1'14 ffel", elS
5f4fed 1/1 l'(lI'fJj/'4~ J a6(n/~ If a jal'1fl'j<!' c.l,:zi" is /'1~1 sfa.hJ
/" fi,); LUl'rt'"f 6:i~e'4f, 6t1",; :t w,'I/l.n> jll'e/,.h::liu?eI .f?......, 5eeA'"". J4/'14jl75/ it';",-,~h"',

S. /J..I CUII't'",t (l,IA! &1"'/IaJ;.fj C"/J/ /lcilu'I 11/0. i'l(}~CI;/'/~IJ-l(w2 Wd,j j,/t'J ~/lNCJ(.<i /'1)" I'eview /,/'101'"
-fo rt.> $Ma/ )/'(1"(1 4'?!J .¢J II"'J.

(p. I have tef!aJ<!JIr dt/'1aft(k) /'I)' C:;''''J'ld,~f '&c('!/~ Joel.ll 7Jldo/5tJl'J; fiatt d dd"l4jt' C!CV/-l ,~ 1'4e> Cdse-clf-ku;
ti4J Ifl'1tllJ f~f' [IV,! c;,l"Ijllti",,1; ell/lillelio/) #t1 /;I().C{/);).013- f(wz . (See; G,yl.,t'f- B) Colle.f t1f ,..yTUlte I, rilt1/()/

Case 1:10-cv-12013-RWZ Document 69-1 Filed 10/25/11 Page 3 of 4

U?a?/?b.y· 'l #QICJ1 /k'Cc?l"'/bt/' .2"/ ~tllt1/ July ;2~ ;J.& /1./ S¥&P16e,~ ;)c:,/ chI'!; t21") tlcfb 6#1" /(,/ ~II )af,,) /efft'/..5 10 )/lIilnt"'7/ ~c>/
II 'Jk/'Y6e'J/ dtZI'14-.j,".} 4..) 1't?;c'41-~JI7 /61)''''<'.5f/7 )a/",/4JC!S
0/1) C'",,;'/ {'p/f1/'&m-r; C';? ,vd. .t.~/(),t'v-I.)tJ13·-A'W.z/ ~t!
is 1?1'1t'/lJt~.) ItJ ,""clude a ;It:: rlt1.J<? ~IaN'"'' Ih ,:, t!~/1I6d'
bRt/IJ P,ll'.) i)(-It/rtf? J"I' .fl.€' ~wf> t./le"';I?J cJl'I/y 4 n j r
IlJvpKe /l';-h,-m'Y - C/;e"f f,.,IPIJ€,)je) &/HS/h/J)c>/I('P.I a..,eJ
ft!/(./t!'.>f ~t' Ct;wf /r'1j'cJ/£/J) /1tf'J'e J,cu~t!'"r..s),

7. :I Adele $t.t-P.f.en) ck,.,t!> and A'ave t:.: It?,fal /''J~'"
,f(J e/dll"/ )4MdJl?S.

g, Add/hun'" .facf5 fo 5u/¥flri )d"1t('~S e(;}".(i,:J/'·"" It) fie

He eilIJtnc('; I'~td~b<lc/(h -tk )aff? of

Q('I')'IN.I./(l/c'<f)(h:J1 (2",,/

hnn ql'l>o dl/Mls tJr ~CCul't-tna.J wA,-,:.,{ i"",t!

!/'act' jlh('e /k dafe

uf fJ.e 0(lj"'4/ fN,dlj 01 (jl/j Ul"fl'idih-t M. l/d'C'(/'/,?-O/J· fwz.

1, II> ((. f/!Ji.{./f oj /'11 ~1I5t!( "I &eor) Jail;",'! ftJ ..>h:de
.Jad; 4.-.) Ii eldl"1 !-,I" hMj!!'..5 in f.tt? ~/,;',i U"1jJ/Llnt-) t4.
M.li~ CtI- /J~/>-ft,.lZ./ a",) f.ti.;/ur~ flJ II/'1P~ Sal) Q,flfl'/al/d; I
01'1 fell w/f4 I'JI) c/1t)ft·~ t!uelt fp ~/6" fft'J C/t)INi II?/, JU""IlJt/'J
dn) A,..~"JeJ 4l1fk .,t t}",) 1'~Iaft,J JoCl-"~~,..f5/ !/tJ-5e/ /() 1/'t!.seI"V~
/I1y hJJ..f5 It) a. da/"ltlJt? cla/,.,.

Jrj, w",M," fAy f./i"'j iJI /'1-1 !/,tJ-5t? '/I,.,C',,'/e) (~I.I' / 6~k,...,f/-;
[/J. M1,1;ltJ"Ci/~/.?dI3·!?w;2 J :I ,h nef 41 .r4,j rli'l{' khtJ4.I IKe
114,.,(15 o! IIi' '/- /'fti5.fI[(:.iwJefis /Jtylt'dMI'i'rl 01 Ch/I'c'c:-t/O/1 EI'1j7k/if?C's
.j~t1 t are he ~bJed l'1a !fer f'elaf!!') -fads sfafeJ On wf(';obel" C, .;$ ~ ;tJ/~ I./I/ct,,' aN w,141,1 ""Y /l1'lt'I'IJe-J Co""jJltlfri!; AGlwt'(N'~ ,;,v,i/

Case 1:10-cv-12013-RWZ Document 69-1 Filed 10/25/11 Page 4 of 4

5<l!>,H,'fIJ,i.5 ;,.,)iv/)u.-a/S /JdA1'5 th/Ce -I1£7'y A~[7 6~e/?
"'II rJ5(C'rt71i"t'~ IlAJ I'le <.,)Jil/tJ,-1 {J12c1.s slafeJ It", ""'Y
f/'''~ '>·€i 5<1') (J.ltel'ltlej eJd/>'1//4;'/77 tire !rvt' till) .q Ch!'t;.I/"d-re
ani J>u)e i)11)er- 14:/(j//1 Q/f! IR/I&/fr 6'////jur'Y.

fie ~bove yldfJPItf'niJ /V£7 l'1~dr! iMJer lie fol.!?~
01 (j/l) P,.u;/f!' jl!li..J"/ &1'7 ~~/:.1 ~~A) )dy of OCfC7.6e'~

AJ//

tfu4.IjJ, AI~~ A, ::v2-
;(,cAtu'c! /). Nuht'''3,. 4.1~ rtJYfj~/3;v>t"
t;~/';t/t'Y l'1t*th d ,.,
(J. O,&;x, g/~
5~".11!'7: /1(/~.5q(;4u.:k!'l;l:J" / O/yt,9''i.,)I$

Case 1:10-cv-12013-RWZ Document 69-3 Filed 10/25/11 Page 1 of 11
UNIT£[J STATES /)J5TI<JCT COUf?T
IJL5Tf{ICT ot: I1I/->J/lC/7t15€TTS

Llt1If.5S QJ~trEC TRMJ;ft I1E1JtT~
nll-'5Itt!H(I.5GTTS f)E/1J£fI'1EIIIT OF
Col(/{Ec lJlJlv,; 'I.. UAlKAldwA/
rr.s f1A.>SACtltljE pEPIIRT11£A/TtJr
CiJl<flEC7':/;)1J EnPld rIFES/ Lt:~ItMtfO
he SLtEle~ W.l!~teN riltf6tJ.5cJ~
-;:Jl.(i>lfH .5 TEJNBEKtS; ;!Id/'!"r.s
GI?(}M£jt.l5~ an,} fET~~
J16"FE~/III!~

CIVIL IICTI()/IJ /lie. I:/a- clI-/;J(J13 .. /{WZ

AMENDED t-"IIIJL COI1f'LIJJ.)JT
1. INIKbPu.crrd !fl.
ant} naJe f4d ()P hi' f'~/e/'ej')(!e, io lJ.e O/'ljt"/1d/ ell"'/
C'oI'1f'/~'/n0 tll.M. /:ItJ-Ct/-/)tJI3"lfwz, 67 f/d",,1-II~
-/-

Case 1:10-cv-12013-RWZ Document 69-3 Filed 10/25/11 Page 2 of 11
Dc·et?ncJ,t".+.s1 -tac.fs/ d,,) C4LtS<"'J df ac: f,t);'1 wtl'4 /'t1~c f-
lo 0/)/7/ /Ia'J'ti,4{ ~c'4,,1 IVul1t"'j. IlL Pldudd£ /?'clt1l'1 NlHI"~ /'1",;)-512'/ sl<1:ft".5 /'(<i;f
4e i5 liIJsc).,j(J/"J In JdW «nJ 5u.f.s' fI"Q.Ml4t.} /6/Jdr4.6Jt" Ccw· f all/ie I'l'tJft'C/;(h15 dl..ft:lI'Je) w,14M I/dl/J.,J 1/;. brAt!')
il1Y tiS, 5~11 30 L. t:,}.,)) t5;;;/ <;;. 5 Cr. sty {Itl;?-) / ,;r.. J
1I{)(/jml'lll>1.4c~ 'If:] u·s. j)tJ/ /tJ7i. (;I}) ;263; )10 S . Cf. .;t8't~
JI.. fI1RrI€S
fl..15 1-/l>te fa .fJ.e fI4H1t,i{ !3c',:t~j /I/VI14'5# fie iT... ., /la~t'5 of t!((c( o! ~Jt +OtN" un);Mwn l"nd'.7IJ"-tds will 01" .s~<lJ¥t.r"l<"Ah?)
()/I('(! l~i.5> i"/-O/'/'Id,tJ'I ,j 45(('l'f4/;1t?) J/'(J.!" Pele,..jd"~ !f(j5Jt{c,(~f(tftJ
nr. FileTS
I it, A. T/,e cuf (J.p D~~ef'lJtl.td5 l'el'1dtlil'lJ H/{/# I'1tYl<afio/15
~('()/'I lk k~1 /1'<1] I'd"" a,,) /a,/we ~ .tJ.,II'Utf~ fy d C4J~dJ4le
- ;).-

Case 1:10-cv-12013-RWZ Document 69-3 Filed 10/25/11 Page 3 of 11
firJl',h/t//(ithar) AlUMS; d'!7db,l,t,f'5 fl'l'ol' ft) 1'1,,>' jJd/g'y
I f C-Adl'l1e "I'l) 11ett1a:fll!~ l/ttl jail,u'e fa 1/J5ul'e fio;;.i;
/?,C/'{'(I,J Jr/u/I.f'5 W 4td) COI1.h.>il6'",fly /'(!c I! ltlC' AIS ///t/~ 1'7f?);cdIIOY/5
Plo.lI>1,.f.f /0cAq,) A/ul1e5 -f~e .4/1t1w/l'1.j MJ ....rrit?.$ und 101'.1"/ ~ j /1, f/Il"d,../t, !tc)...,-J /l/~ne5 io 5fol' 1~1('l'Ij ld H!(}" nt'dICdt/CI'I1 5' I 13. Su.b sId" 1,.1/ j)1't',tJ /" f/ai4ff'f£ J:ckr) AI"n,..; " CDY iJl'1J (J)Y % 6!t:;d) ChO/lfs / C. Sub;l4,ditJ I lI1C'Nf/.Jt? rII l'it;'IJ-hH: ,I!, ,far} Aft//II,!'5' / lI/lI- thl',t/ Lo~d bIn)) Cdt/lft.> / Dr lJed~~Il,J fltilnfi.ff ~C)tt,) !ytJnr.,S' fMIIU/ll'&' .s ysfel'f Ctttl$ln; i11C'ltl45f'J ,.i!nC".$$ 1l,..,J
Ofl'dr/(.w6ic.: iA.f.ec/io/l5,; S 1;'1" /e5/t.'/I..fj, 5ol"t"S
a"j 1'(/54~5 J..44t1>J /"It/res/owly I&dl.ll", SC<tI'~
MtJu ~/ff;/l"f.ia+1f"'i' 4A.) )i<lf'l'Mil/
~ r15f 01 Jr~J ('t?51JfLAce a~) :;fl"S51' /t/JXjt7~ ().,.cJ P('tJJtI'41/on t2!5dCiait?j /.1/14 f~/J ('Ij/(
/
r. flrJlnI,!~ f,c44rJ fiJV"~5 / i""l'ftl/lf' SY5fc:>,.-r Rd.y
t /}o tt!fvl'lI 10 lie /#vel,i WilS' fl"',:)/' ~ Hi)
-3-

Case 1:10-cv-12013-RWZ Document 69-3 Filed 10/25/11 Page 4 of 11

it') Ie (I't.l~tf) '<"5 U l'f/54lf C} -f fAR ,)e~,,)a.f15
tlef,5 I ~1'1"ij5;()It.s,; ()"J /"1 hey e,.</a/l.J't!' ({ 'f 1.!J5t <e',;

@. bl'e4fe/' /,,51"A ck~lo/, /'?:J ~'erill,''' ft;f7tpJ crfL

(! a."u!/, (2,,) t:?fht'r' dl//'f-RnT:5 1
)I, JneNd>'t!') f/~'t "I ///;'..,55 .;'''1) -,,,,.Ie' l?Mec.ts
t(.JSocI4fe) u/lf4 f;~ 1't'5rcu·f- df #/1/ /1r"'t:lIC<Jfr~ns. ,;
tlnd

I.. PIf2/"III~ £C)d,-) )jVI7t'5 S&.. #t!'/'5 1'1t'/1T2l / 4/1J4 d 4/
t(n)(/'fy t.2",j ~(u5tl'afton ttl It l't!!'s,,/feJ{ jt!'~Ja?rs/
a (. is AI 4"d/tJr OAJ'1.lj5/(lr;$ 4ft,,: (flw-f'(fI'r Ne'tjl:"en ...j j

iI'1l'1v/lt" 5:,ysfeP1.;>

/1'(& B..

On a.. 1'14-7 /~ ;JtJll/ /4(1 CtJw-f isSv-t".J

cJrdt!'r

lJh,,'4 ~~f.tf~J in pMf ..

""'I e.cz"",., t. !kty -f4a:f liel/'tlj'o.5eJ dc"ccJrvJt:tirp;", J$ i'n .cJti!,,,,,,i/e e'l ce/'t- I,., Cn/! 1't'51'",ct: -ne rl't'tJl') 5"IIMrts 114/;'-tl/~ ~>.x·/'f,~n ~t
MiI"'t! iJrt!! 4. /ltvrtt'r tlf Jay.5 t!i/t'/'"Y /'1&))1/.1
tA#n ),~ 15 46st'bfil;-- WJdllPfo jel our 0-1- ~) til' Ix! t:My chll()J'7ct!" ,f"(l,-"f a haflr<7i?n,
/)A;,,)ti,..f3' flit"" );,£5 .,;,,./ ttdJ.<",.5S ·11t'se /17 6'J/;f"j/tt Ct.1J1f,njL//t/t!j 6y II'J(kJ'nj d I'1tfddi1 il'1 10 !/;,1//dc? I'k n~j,idlJV'.ny ('/,1/
/itJjt! )ays,'"
IJII) a/If/we) J~Ib,..j4--,f,S (,vd) Jl.lt1Ci' 3/ ;;bl/ it) ~)}r",s5 /i{?.5e

- <f-

Case 1:10-cv-12013-RWZ Document 69-3 Filed 10/25/11 Page 5 of 11

I'lt C, t1n JW'!l' 3" dkJll/ J)i'..(2~/lJM1"$ ;,- IRJ 4 ;Ju",e ~
:kIf AI)(Ii)a,.., h -rAp/,. dl'l}/114/ C; eCtJ/",d)4fltJ" w/11 Ifp C::-erT It) CIJJ'l-1/Y wi/I, -lie C£Jwf o,)e/ Sfaf€'J 11-1 jJ«N:Jr Cl,/4 1'16 IS
t< b(}t.le ,.

/"17 D. On ~l'ftI'76l"'1" ~ ,7d/~ 1%t1i11il{ .t'.C4Nc/ JliU",-r-,

iIJi/ti/rt.J ·Iid tlflrdvtt:J 6)" Ikn"j Syt'I"/., -16'")#/1'1;5:,,1-1 .At.!!!'''''''.),'?,,n

tiJJ!A),,/'fII d(X!.ol"1f7Jtti;(;Jn -HaT-fiR Jef?p/l-c/J'7.T5 s«j,,..,f'fpJ -1-0

IJ.{J c.uu·t

Pld,nli!t l

f;c<',,;)

~M'J*,I/a.Jt!'j

rIp

/'akr.J of ·Me

ajje-.)~", 'k·c(J~.:J jafidl'" 6y /ldf/ly ",:} ,4t:s WIll O#It!.'t!'/' of

f4t2 t1d::~"",p;1(;6&7;') d'"J irf 4,J)en)ar, 4,.J S~iJ<:") /J,,:; :3dfcJ

Jo(!.u l1e/)·f TO ~,.s 1M, f dlfrc~/'.. ~()".,'f.d/' /)~ feA-Ja.f'1ts -&, /pj J
It) (tb,Je f~e,r t:JiV/7 /'alf'S 5't'T 4A~ i" .f'~ tldtlelJ}"'rl dt'co/"toJ4t-~/

#; 61 ~4J imj h A(;I/~ f/.t,nfl

6 ,(,C/C1l'tJ /l/VI11".i (85~S5R) 7

/)e.fe,..)cr1i; (1J>14SJ C1!'twft~n.J &4/1'4 as :;f(.de) if, 5lfl) d)rJE"/'J~1'1

4c?C(!/'1rJthfI'P",

J/ljh!t{) .I

f%'nft-l.f: /

tftc:4tt/')

A/{.Jo'l<"J

wd.5

riJ'('''lis~<:''cI

J by bf?tnj h,5Qe) r5CII/i/J.l.ry I't?jlQrt #;;'3577/, (<<.v3/hJ ;nJ""'Y

~ (I 5tr,r5~ tl/>)i)f7/ /'It'"ld Ib1jW-'~~ 4..) -turfMr t..Jepi:f'/I/~ r~'f' Ihmfl-/f,
~d'i') /IIv"t7>' il'fl/I'Junt,.Jysfe"'1 C:> cl /'t'.s~if of l>e.fe"Ja/ifs cc.'fJ

df" li ... t' O,M/1t51101l>,

IttlE, 01'1 5ej/k'rfJ",/, ~ ;)dI~ flttll,fll{ t:Ck,.-j /Vq.,t"f

) .lM}('"l') lk o///,ttVi?J 6y 1k1i~ J~)hk/l)&;t;. 5caif ~je/'ycJJ'1

aJJ!l'Jdlt"-' /.i!ceo,M(1daitoY'l 1i.a{ -fle jeie"Ja-?f$ ..5i<i.r<lffed rcJ
I~e Co'wi: fAu'hiJt t€ckrJ N">tf'5 lei/owed ~t' /'ulf"5 af
fk ti'tMe;1)UI"I ClCC~nt1)~frc/J1 by /l(Jil17I'>:; A,j 4",,'1 O#1(el'" of

It.e 4'caJ~oJ~"6tJ..., 4,,) ;I.s 4')clt!'n)~ a..,J 5fk,...,ed ~/.5 5at')

Iv ts Jt:1CI.t../'1(1"+

j,/.> 4rlJ Of¥fit"'/'/ /'owetlf/'" Pef-e;1)a-...

ja.led

- 5-

Case 1:10-cv-12013-RWZ Document 69-3 Filed 10/25/11 Page 6 of 11

')!ldfllr,'!I'3 O,..J J1i.H! /)e rh"'5 f?J -rlfl CJ.f.(.-,L't", A./<.v)e.s CeJ"'1/tc?)
LJ,iA j/l/l'j (if t../4it",.11/1/ k.~v(,/ /!/tlAt'..5 ;t?Io/'I"1~) fJ.~ o·lfd'f"/"
·fj,d At ~ &;.5 j/dl"1 1'1G/.lftflJ~ 511Atl ~ l[fff ky 4/1) lell -tf><.,t iiIJj';I'I~~.5 tl"j /'f tJdf./je5 ~/Jvt (dEn it! f 110 k"rei"tJiweal'.
Nvllf'j witS orJ~Tt'!) 1-" 6J"e /tJ.ft.e jtft7t' fa 6<!' eu4(e) u;>
iAr()"j'( /(e .flt,lfd SltJ+ /n .~e' C'e! JtlOr. /Vunf'.J Cd'Mj'~t!') cr.,,)
Wfij h"Aj~uIkJ k'{';,,) ~/.S ~)(,(cJ( hJUI' r:.m/{;,lfwn rll/$~;(CIi/*H.f
(:'!IIC/.'P/?,t'/ O/t-,-CC'/,S fI'HfJt'j~J ;"It) rk ~tJ/th:f cel/lt! fw·ad/y
ft I"'I'I.It' /llll/lf'J /. 5/Jt'd.l(el"'..5'- !V..tntJj CtJ Cl;1r/ 5fd-c>j Al? ;;d$ 1'1«lhl1/p
>/1114./ '''''/'''1"1'1'.5.1 Jell 17 1~;v.lt(7J ..fk f Cat.lJ·(J ;UlltI'.J It:! k"'e nu If,,'/e 5(J'ews 4nJ Md6j 1',,) l-yidnfej 1'1 1'5 leI I fry)
an) leN jo<d /1J'Ih"I(?J tin) At? ;; /}(}j wl/It,,(y 5<tJJeci/~ AJ5Jt)';' .f0tal"" 1haf i.5 t?d(.l.5~J W<t'n k jtJf'..5 /J<-d ..{a",e
t"t !A.'C!af ;;idel;' d£GdI"6.5/(JrJ. Ollt! al~cef /01) NUntl'5 Iv

kneel 0/1 flu: h(ue J'1lf.:ti be) a",j !lAin;.> >'ft.de) Ae Ceal)
f /10 h".{It!( tvdlo"i jJd1h Ju~.fa $crew.> /'r, h;5 ,,/{;,te Co/"
111l} o#'ct'1' /(1) Alt/~1'5 la kn~,,1 tJr "<e /M:1u/J be 5J1a""~t!'j
-f~ I/..e ..ploof. /ifurlt"'5 5h~j lXtd J,. t i5 ;J"r1 1"'&'5i.$I/7..7 a", jean

lti.y ",71../1'1; />ui /'1(,/51 Ja.Jo jt1 4. Itll'tlo" lti/' /'1anlte'/, :51.7 4'rro

I/tJl'I {2()t ii,

e ;{,) 5j//id/ I~j '" l'it'5 # /\/UIlt'5 Wi!;- :3 ,·<{.6J,~d by

16)' iwa (j(}flt!cilollal O#,ct'1'5' t255/5ftI1J ,4,Am".f fa

cJn/~ 6a;/,t'

l'1el.... / Pt!) tlfk"1/t;I1J 10 /dY nWd/'cl Mm:"$ flfj~f sf}e'/ Mwl"o/t'.:,

6t7 011 ~ c<JI'I't!CfiOt?4/ cJI-{;C-f/' Cd'" t' 4.,JJf1t!S5/ ~"e !U?c'<t '-'5 e .:f"'EiteU5

'+ A.e Nt/Ilt'J WtfftIJ /l1ov/~ Iliff t!/1.1uJ4 an J

IWl5fpJ /l.h",t'5 /

to Jy aAd ¥l"hl1 I~ I'~ 1'l'4'$lfe jltt'cti(!n CdP5I'::; /iAMP..$

l(} 5CI't'41"1 0",1 In /(111). /I :hf/"d off,c~/' -t!..tll !/tJt:c/tlt>J I'd

!like 01-4 MJtC'..f 5/tep:rf'/'5/it'/6/y w/":/e c:/r:"fI, o.f!f/c-el"

-7-

Case 1:10-cv-12013-RWZ Document 69-3 Filed 10/25/11 Page 7 of 11

N j.~t1) byJ'Ml ce/I )up,.,

41 Wit'.> INa::; I~..f.-f 411 /4ou f

(Nf'a."

cl,~ J tJ.€ t!Clrn,d/c,hO/ 1J#'(;("1'5 lell-- I'k cell 4AJ t1I'J~/'~j

jl/vnt'J 10 O/ll"te 10 I1.et Je,e'r h ,foe' Ui1('v.f(e). ).,lu"1t'$ ,5fufcd

j;t! ail'ud y hi) -H.~"1lf 6:iv9c"5 ~"P'[ /t'J"l11 ,.f" I'Jd14d ..,e-

due k PtJcd-weaf"

1-0 )V1.;/1#5" II"'),/<./I"/&'j Q/l)

wI.{ j /J(;1j- Jet:I,,,),

VI th&' wa//(Iltj ,6"Nl~f suJ,5KfmJ A·~ JRI.f' 10 /1t<>~J/65' /<""1"-

1J.e r4t (!C}/'I'/,d'Ol'cll iJ~CfF5' /'t! t7rittr""'/

(!~I/ d"1j I't' /'fc:tVz1"') .f"~

tsJ hru,h:... 1 ti.. .1 H/.If/vi1(/1f' Wd';; /~f w/ltd,it fttiura/ J!."jI"

5'i/I/CFCd ,k"1'5~

1'1711, 1l,e Il~fioi'\ cd /I.e ~Cf'/.Y df> :Jed ,j(Yf< Ii?
fttl'~jl'~'II; /lj7 g c;6..1lJe wAS j(M<? WltI"",! -k11(JW1';) /)1'a..il'tt'nf
of CoIi('~d/(JiJ fokcYj a/'lj fe/al JI.5I'~J<l/,j cb» /~JIIf'-I!",e",ce'
Iv /'1/, ItIvIlf'J bill, CdJ')C("'1'15 ~J MJLlI"t"J!'5, a",1 I.? a d;l"c;Jc:T
r~j4/f ()f 94j,j~Ct ~atf fit" \'.f1.e lki/ltl"f' of fk,{JC'"Jafli5'/ ·10 ~~
Je f.-./rli. 1'4 JLI/le 1/ t7&11 IhJkn)v/"f .#~O/JfoJtii/CI"1 /Ji)f'ra-tely

Calj5/~') ;1/vn!'5 pam.

/Lf'1I, 0" ? ~r-1WI' .)-tJll, /41111,-1+/ f',ck,)

/lfbnl'J af {i.e ~1!1'1. I'1Mt.:a:-6CiJ1 hl-tt' refl/e'.sfeJ h>,S 17'/1/-

I1dJ'iatu)J'IS, I.tJt.Jetl-t<, -tle NJ"<t.f/(!11 . , Lf'~ La."4/'o{ "1no!,, 1"'0

ji5~nit!J /1..L WI'MJ /1t:),&dflO", 10 MJnp5< ;t/vM'.f Sfa/t?J,; 1'4,5

IS /lof I'1Y I1tJ,c(liiPn tJ.~J tl',A/ /11'1(;11';"", 5fute~ ,. l-'at 1.$ YOt''''

toltJn.plo'i~

j,tp5 )JYIJt'5 5kffJ I. t'

Ih,f l4.(el /1N//'t'J'C/'1 j jf!I'

%(}/dhB/ln a"j ('e/{,./t'J~) .4,:.s 1/1t/-:rlt!'ilt:di;Q;' S. LfAl ,lfl'1tJ OhtJ

tv'd.5 ,ude an) Ad;f/)e 6et!'t1.u.5f' 3(e w<l5 e~6ar/'6'5:f'j If"-t..-r J
tOM!") vuf At"/' ~/'rd/' //)'t(/"t crf itT' e'.$CZlr!,,,,y OPfi(t"/'/ q""./ ~it? 51a-kJ 10 /Ie ~I J A~</e At) rt~)5, LI'JL/ /I"g/'/1?,;1

- t-

Case 1:10-cv-12013-RWZ Document 69-3 Filed 10/25/11 Page 8 of 11

leliu leful'l'l~) wrf~ 1'1.1 )///1- 1'1t'!ica'f'Pn5. Bel",) Jeff 10
6el,e/.l~ llllJ /!I'1<'1'/;'t} WI(..f /I"t YlnJ 7'a //trM(je /'1)" ;:k ~.:;J'jllnJ"'y /1/1/- ~u/I(;«..fi{/;, Cd"'H'J /l'fe ~ Je Pr",.n/-<2f4~ 5uP..{'e/' 4/,1)[,fy/
5i/'t"~5/ I"!f'/11111 ti'/l,/ttlj/, Gil II 4 4J4,~1 t!av.P'.1 Iv/I1.-,.· I"1J wy
10 /117 1''1I'1{/l7f .fJy..>--k/,,?, LIAI ,1MO/I/)() 1,7 R;>t/ld/t"&-'.6y ~-£
PfJ .ferIl1a..,ts.

/'17:S: A" So/lkl"'6f';'" ~ ;?cJ/I/ df i .1'/'1, /1t'JIc.dIC )1

:l':t LI'IJ} II,.,ot'/1'1 () ve "1 e I'tt? tJl'tI":} )o?a,j't? of /"1y ,H/(/-/1-t»,c /lfit»1,

51t?CI~'·C.2/1y1 5 4e )411t' l"1e Ont:! Vtrdct,l'f tP,}s~..f Ia.£/et; /,I'J.:Jf-t'aJ o-f-

}I.e 1/~.5.CI'/J~; :J-lJIl'l1tJejJf &:'t?.s~ !4Jld,;, J jbJl'lie') 1f,:5 e/mY'

uut/-o tfAlIiI'1(}/'I'IO. S~e 5fa:le) yilt< f(i'e r~ PI" )"tlu:Jtif/10/41':5-
T ~ /ltUnI"J 5Iaf",) Ci,.,., /I<d Ia fIn; a jtvt,a I d~e/ tie5e
ne'JflClfi"nS al'~ 5~j{! fa be hlrPn at -lIe ,X,tl'tt" j;;-.,t' Uri) ;',., ~ #

5eJ. tlM(j(n{f 1'1'6'Sc,i'I lI Iljtl/~1 ilfr'IfI'1t1r'ftd wt!.5' /,u)e Cln) h(J5tl/P
6tJt.'dUf?(! 5(e t./cl5 '?;lei,;" cJ...,j.,l'pe.5:;C;) /illlb/lf of ~ t!'5cOFr'~:J

4t'/' Of+tCfl" ~n AlI./ntJ5 jhlllfp) o~1

t'//27/.. LIIV' /I ;1-1()I'/I'ld

/Jilt fAl' I/ltY~ I"l&Jf~4llimJ' a... j kll. //,;J Cal/5Pj AA./n~S

t!rfrt""~ 9fu5>/ ./f/)x:/f)'/ nt'/rfa/ tl/lful,i Ii,?) he 5!&,1e-) i>P"1Ih.J

rl..e On hrJ'Cel/ jtl(Jf )l'I"Jt.1t?)/".J fo See Ik'%' It 4JM~.II'''',
(P1I'! o#lce, 1i?.(J()r,ll4~JAlW.6 I'kl Ite 1ry1"t'..Jt:ltflc'~ c:t< AQ5

6:.1/(7) Il.() J/S{J ,Ie /'1t1tke :$cNe #.-e t /41 /'dV/1J5' i ..//1"4 A)-' L C{)fl'tct ,rtt!diCCii;orJ. Pili CZ,'JiJ//A 0 I'e/urlt/"J ~ VI',f4 r/~

Co/teef ,}II1/-T'I~)lc4fi(/#7 *

117 K. On Ocfo6e/' 3/ ;l.tJ/1; f'J..e ftl"!'-#{ t:c~-lr)

30 )Ji/fJes reed-Jed .fu {1ur1s St!;f/'l luI'

#// 01')(:'''''

Jefl'lJrlOj /IIvn{'j INtl'l1/"~"''1 hJvl'1f;e,,,. to r(/I1j,hft7 M€rl")l's /'

-1--

Case 1:10-cv-12013-RWZ Document 69-3 Filed 10/25/11 Page 9 of 11

fI/iI~ t1IJiCui/()hS 6t1.5~) /11 Idl'f 1>)" c "paise' Int!,Jt:~d­ reltJff ~J 'Jed 6'1 LI'A/ /f"'dl'ind,l 4 ...) [)e.f!e"se Ck.H?5e/5 t- f()tfr6Yt:./ of #U11lj ~;n.J 4 /'ule brer;ir'el'" /.til), r#'¥,f!JC
·fo JI5cl//;nuy f't!/<:I/-ts ;)35771 $- ~3588i/ 1'/'~Vl"dl'S'//
5fole) /'1 fdlttj/~11 1'I7/J. .:lnJ I'll£. /Uhll?'lk/.:;s.5/ ~l)fJ. ,54iJ Jifcijl!;h4l'Y I'eptf'fs A.tvt' 6t't'n dts"..,,:s.:;ed a"J !xv'd
f'1!/dflS iJe/,e (lilly /.)'541') 1'0 /"/''i~' /J/WW:f 1M) ftlh-f II(',J-t II?
() -Pz15f! ty,f 10 -j:Ip UtP'T~

I ifJ L... ()J? 5We1"'z/ OeCdSSId.. ::;Ih~f' /f,.. /tIe-rte'5 4tl.J

f~J fd..-1c,) J.;j #111-ruJ'taf/,'I<5'/ P"fe,,)((.. f.$ 4A.1t' 4. f*,~k)

jC) JI5/N/Jse WftJ"J UI'1//'I'JcI,j",J ~)lut,(J" 4"Jjc;!" ("//Cl)')j

a )f!)q:jf'3 01 A,) /lIt! t//r/Jut,an5.

Ad Ont? t.i'C(!afflv.'1

)fIt! /,'kd,Cttf'(;;,f ~/t /I<.7f 0111fi/n5t!d cudd /1..11.,.,/ wi.f'n

f).py (lfe Sul/,fl! h />e JlJflR/J5e~ at '1'It" d,,) g' ;1;Kf.-

l1{ht NCf!ni/Y1 /lJU1]t'..f W4Jf/,(lv"#~~) wI'''''.! ~/ca'f;(lJ1 b7

tv"/ I.. fAi /l1'1.1rt6() (Jj'I (lc f66~/' ~ ;J(JI/. 13#t'd.vs(J J)efenJa",fs

nd f

m dtJc ul"lt,,1" ~~;/' ~"I'(//..>/ ,AAml'j' /'erl.l,St'J /-1/1'1'1 01/(7/ 1'4:,5 wro~.J

)o.5ap:' Uld;ll.~ L"J Un :TIS A1f;ce'I" etlM~ C;A) f1hf~1/'¥h

,/4,<; J WI'.1/1j/Y I'l'tJvlJe !/Y.J(:f'/fJ-h;.,"1 /'1eJiCa f/on . .4 (ilplO'rt COMt' i ..... ,;,f<'aJ.

l'i7 ft, LJn f)d()b~1" ~ ';'''1// llalhll« K,'"'ltrJ ~t?J,

/..Jtij hken I!/'Jl'ry·.!/if!,y .,?, !.1!()/'tin#1" /Idyl' fa/ elf/ a"J )iCtjI1d.leJ

wi#. (h1~fiS. 1h,j dll~e,.,f i.s /O'dW'l ftl &".:t? til ·<1' ~.~. I

J

./ fl)l*ttlC

,/1'/ (1:",} I I ;It(,.'

POll1 4n) cltfi nAt-a:. 1'1/'. A/v"1"5 tvtiJ Itl.f5/"I:J 6/;;"d fl!"d"l 4,j

bdt!5iI"Jl.d Irt:c~ AJlf.lt'vtl", 1k-k"Jd"lf..:J &ry:'loy t:'(" u/'P.n €!JCo,..,/,ny

!JIlIl1tJj It.Vd hI;'" At' ~€cf ,k""(/Y'/o/s t2",cJ >(1rl1'· ~/M k;c,f h

j')jj CL!/ /(!a"ln§ ~//'1 I" t:?~ Ir~Ai' /d',h. NUnC's wtl5

- }o-

Case 1:10-cv-12013-RWZ Document 69-3 Filed 10/25/11 Page 10 of 11

low fVfI/)l"j III Jtrt)e 'k~1v,'e Q/J) JEJ/'l4f'iJ Jttrj /'C') 6kJ
(b>j WJ~j I/) ..fl?a j\ ../r;r .4'..$ t'.f!~ 4/1) J,4~'i"'j /'t" d/~/ /c"'avrfe"
A!t-')!f!y !Vod'&,j ¥ AI)' cto// Wlh)tiw' WI/.I tl Y'J1'1 -/"/.at .5fi;k./

,\ J /lr.rrt' /1;&1>5/ &b"F.1>7A1d'dar /'1y /'155/ 'Te¥. /(}o,cJv/ ]::

LJI)I /1(jt ~ j{e '!u,(;fly t2 5' a /'t'5u/t- of L(H4:.j

Mj17~hC{J.

:l

df/ltf?) t.2

cfoe::/c;r

AI /Jt:7w.

'7Z'J t/li-t!tJ4I .6h::I1'/hf

lo"k /ldd cd /(},:.3o t:11. ~j tJdt.l.fR) d/J A-,.f,U/~'1C'e /-17 .6e

::e"f /1., ·/alr"e /l/v~e5 10 ,f.(e )/.,f?"'h.1. P/'. ili/lf1 ell I'k

LlJol'f,'ltsler 1;1{ Or)f?I'C') Il/U/1t7..s ;;<- 5tltlf'<d'e ().nf, i:u't1ffrs/
h~w('(/ fl"/ U/'{fL55.4af .f/;,'/{lj /1) /'/'l?sc//6e/ lii/l 4'/1) JI'~frE");/?.5't" litf<;e /udICtt.:tJo)-7f oj //if':7criJt!(t. fialrti,-ff (i5.5f?l"'is 1iu':J
l or QII''1enf eo/;h5) 1'1('1 vtl"y M5!/1 Ie a. SiJe ej!{€cf It.e
I'Rs/ar! ,d AI j #1t/,./'ft/'JcafIQ"'f dAd furlMl'" Jdl'<~1 e 4-~
'~i1/f'y Cc{u,YJ) Iv I'J,.R /4/"ft~ f'ie4h) N/.IJ'lE'5' ~ <;.' ~
I't'Ju If of /)efe"Jq..,is Ikf5 dAd O/' u/"l/"f,/5/C-7j' Q7' •.yet-M-4

1'1 11r,,;, cJdy/4/4f:.

j g7'A-, fJd./llflH; ~c. hA-") JJ/Mt',s / f'e.-sfaft!.5 CO(.Trd.1... .(1,.",.,
e (/ it.€ 01'11/""(1 I d Cdml'/a/IJ7/ ~. /I, /l4 I:/chC 0, /,;;t?/ 3 A!tvz/
far(jl'~.5 1-18Y;t!AJ pQ.I'tl.J/'<l;J5 713 - J~Cfll af- A/~ /J,.,t>nd(!)
ClUJ) t.:tJ"-1flo/nf/ CA. M.I.-I()'C.(j~/MI3-lTtJ2~
.- 11-

Case 1:10-cv-12013-RWZ Document 69-3 Filed 10/25/11 Page 11 of 11

V PRlftEK fY)f, ({£lJ£F
~J8A. /)Jilfl.fftJt£" flaihh'/{ ~C'd;t') !Uunp!J/ f lYJ-5e)
f'e.1Vi'jf r4.;.t fAI".> (};vd"1/,(l/It all -tAt /el/et sfafe) i'/l.
f Ae Ortjlna / C///;! Wl"ljJkJlYlt, C, /I. AJd_l: lo . c(}-/)O/3~IfW~
a"J in a))/fitJn ,I'dlli fJ,e iltl/lowil1] ;relief.-

a. IIwpj f/dl·",f,,f.~J Iltl.v} M..hI'5, fv.J1J'ftvt!

j41'1f151'S ill r~e tlMtJV"t df Ollf! /1,'11,0;, lhllol'.!i ,>. UJ'I,t"j

(I? Sftd-t"s /}(.JII't'n<1Y/

OtJO.; OtJO,. (61)/

h ,/lLt/tJ/'d jJ~/,,fvlf, /ttAtk'J A/1;I1)t'51 t',dI'1!p/Jj'«i;!'y )tJ;f(J.j~J ill -rAe t;/ht:Jw.f IPf {brly-liljAf ~,,) f)"I/tU5' II} {/t'I,'fej
)ltdr."s C~fI'~"cy/ {1'It6;o()(J-,oo~ ([A)

c_ 1111( (JIM/' d~l"ItJj(!,J .fI,.,.f ~f Je{l/'f,5 ju..!)t 4")

1M ~dAs Cdnft:J..'ht-) /"1 .t!./j 1I~/lJ.ttl e,I/,/ C1;-yJIa'~if a", e
t1 fide on)/!/ ,fie?a/" fb,) jJt'/fd/f,r d- II!I;/<.II'y.

Rt*cfJu/~ ~-fkJ .0:

M JI) A/t...-~~>~~.aK

t t /'4tJ J) /U~M5, l..l11(J'I'~} ,j}-o -SI!-

St., 'rIt'y n~d;'t4'"

/

f'. o· (JtJ'X: l;I6
;JI,,"/"/ey, /'1~5S<; ?-4""./r/'15 ,

tJ/Yr;,y~ I).I~

-1;)..-

Case 1:10-cv-12013-RWZ Document 69-4 Filed 10/25/11 Page 1 of 1
CERI! PleAT£" OF ,SEt<VICE"

o. .~ /{;ch4.l'J NUIM'jl ~el'ety Cel"h (7IJdt..r lave
5~(,i/e) t{ COl! (J.e {I.e bt?iow S fa fed cJdc;W'1~,;i5:;
/. IJOT;:CE Of IJft£MII#c~ :;. HOTJd,nJ 7?J 1/IkE !.ERtle Ttl /fI'1EIYD
CIVIL ~111t.I!I/IJT Nc. /-/0- Ct/- ;;;0/3 .. !?wz/
3.lIfFJ/)I}t!Ir 0';: !?ICI//?,R/J D. Nt/lUeS 'Z,N
3 u{JftJRT Of I1tJT.m;AJ TtJ TA-t'E Lbt% TtJ
IJnEAI/) GTI/JL Col'fPt4JAJT A/d !-/(J.ct/-/»/3-;(Jwz ./
'I /UI€IV{)I1EIIJT To CJUIt.. 6JI'?M..TNI
No. /:;(j-CiJ~ J,;).<113~fw~ a~J
S· C£/fT-lj=ItfiTE Or .5Ej'V.JCE /

'JtlJl1t'~, t}. ge/~,.
/'1(}ffl/j(j, /!'f6~on~/ It;>
;)S() :>~ N'ltJ/' jf,."d"
805ftJr.; l14.;j~ L~t.t.5e ffs
0))/0

Joel if. ~k~YI/ £yo
0 f'lljO/1/:lr5/ til Yl'l/lct'~ ;f';.c.
/0 Wl;.,i~('~;a f(jdr'e/ ;;/'d ·f-f

Btl'; /d/.I JI1tt.$.5tl c;At<..5~ ff:s-

I

OJI/CJ

j

S'I hal/In) SalJ Jtft::aPlt'"tS /hded

510.1'('5: hl'st t}/tl.55 /1411; f;.>fo.jl" !h-/ldIC)/ On Ocfo be'/' iJ:;l; doll.

k","d,u..rJ p. AJ"I/P~ w-'1tJyg3/ lJ.o-5R
51"'/1'1' 11t',:h.~,.,
f'. tJ, Btfx; I,)/~
.5~ ,//t"Y/r1~i554Cks{'11'.s~ 6IY~Y-I.)/c;i

 
 Case 1:10­cv­12013­RWZ Document 87 Filed 12/14/12 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 10-cv-12013-RWZ

)

RICHARD NUNES, et al,

)

)

Plaintiffs,

)

v.

)

)

UMASS CORRECTIONAL HEALTH, et al.,

)

)

Defendants.

)

)

DEPARTMENT OF CORRECTION AND PETER HEFFERNAN’S MOTION FOR SUMMARY JUDGMENT

Defendants, the Massachusetts Department of Correction and Peter Heffernan, hereby move, pursuant to Fed. R. Civ. P. 56, for summary judgment in their favor on all counts. Wherefore, for the reasons in the accompanying memorandum of law, this motion should be allowed.
Respectfully submitted, NANCY ANKERS WHITE Special Assistant Attorney General

Dated: December 14, 2012

/s/ Sheryl F. Grant ____________________________________ Sheryl F. Grant, Counsel Department of Correction 70 Franklin Street, Suite 600 Boston, MA 02110-1300 (617) 727-3300, Ext. 140 BBO # 647071

Case 1:10­cv­12013­RWZ Document 87 Filed 12/14/12 Page 2 of 2

CERTIFICATE OF SERVICE
I hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non registered participants on the NEF this date.

Date: December 14, 2012

/s/ Sheryl F. Grant ______________________________ Sheryl F. Grant, Counsel

2

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 1 of 38

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 10-cv-12013-RWZ

)

RICHARD NUNES, et al,

)

)

Plaintiffs,

)

v.

)

)

UMASS CORRECTIONAL HEALTH, et al.,

)

)

Defendants.

)

)

DEPARTMENT OF CORRECTION’S AND PETER HEFFERNAN’S MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT Defendants, the Massachusetts Department of Correction (“ Department” or “DOC’) and
Peter Heffernan, submit this memorandum of law in support of their Motion for Summary Judgment.
INTRODUCTION Plaintiffs, Richard Nunes, Carl Coe, John Doe, Peter Poe and Richard Roe,1 all inmates presently confined in DOC correctional facilities, have brought the instant Complaint against the Department and defendant Heffernan, as well as UMASS Correctional Health (“UMCH”) and various UMCH defendants, wherein plaintiffs seek injunctive/declaratory relief. See Complaint. The relief the plaintiffs seek pertains to a DOC/UMCH policy change that took effect on February, 2, 2009, wherein HIV medications were no longer approved as Keep on Person (“KOP”) medications. See Complaint.

1 With the exception of plaintiff Nunes, who is identified in the Complaint, pseudonyms from the Complaint are utilized for the other plaintiffs in accordance with the Protective Order entered in this case.

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 2 of 38
With the KOP program, inmates periodically go to the Health Services Unit (“HSU”) to request refills of their KOP medication and later return to the HSU and wait in a KOP medication line to receive the refills. [DOC Facts2 ¶¶ 30-34]. Inmates then bring the KOP medications back to their cells, where it is up to the inmates to administer the medications themselves. [DOC Facts ¶¶ 34-35]. As of February 2, 2009, this policy was changed so that inmates in general population units attend daily medication lines (“ med lines”) at the HSU to receive their HIV medications via Directly Observed Therapy (“DOT”), where, as the name suggests, staff directly observes the inmates ingest their medications. [DOC Facts ¶¶ 24-27, 96].
The plaintiffs allege that this change: 1) constitutes cruel and unusual punishment, in violation of the Eighth and Fourteenth Amendments to the United States Constitution; 2) violates their Equal Protection rights under the Fourteenth Amendment to the United States Constitution; 3) violates Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 (hereafter “Rehab Act”); and 4) violates the Americans with Disabilities Act, 42 U.S. C. § 12132 (“ADA”). Plaintiffs Coe, Doe, Poe and Roe further allege that their constitutional right to privacy under the Fourteenth Amendment has been violated. Plaintiffs seek declarations that these aforementioned rights have been violated and seek a permanent injunction ordering the defendants to restore all HIV medications to the KOP program. Complaint, pp. 31-36.
STATEMENT OF MATERIAL FACTS Defendants refer the Court to, and incorporate by reference, DOC defendants’ statement of undisputed material facts, drafted pursuant to Local Rule 56.1, being filed, under seal, this same day.
2 The Department of Correction’s and Peter Heffernan’s Statement of Undisputed Material Facts will be cited herein as “DOC Facts.”
2

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 3 of 38
STANDARD OF REVIEW Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. (56); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); see also Conward v.Cambridge School Committee, 171 F.3d 12, 18 (1st Cir.1999). “ An issue is genuine if ‘it may reasonably be resolved in favor of either party’ at trial, Garside, 895 F.2d at 48, and material if it ‘possess[es] the capacity to sway the outcome of the litigation under the applicable law,’ Cadle Co. v. Hayes, 116 F.3d 957, 960 (1st Cir.1997) (citation and internal quotation marks omitted).” Iverson v. City of Boston, 452 F.3d 94, 97 (1st Cir. 2006). To defeat a summary judgment motion, the non-movant must demonstrate, through “submissions of evidentiary quality, that a trialworthy issue persists.” Id. “ Withal, a measure of factual specificity is required; ‘a conglomeration of ‘conclusory allegations, improbable inferences, and unsupported speculation’ is insufficient to discharge the nonmovant's burden.’ DePoutot, 424 F.3d at 117 (quoting Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990)).” Id. “ When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007). To obtain a permanent injunction, the plaintiffs must demonstrate that they would suffer irreparable injury without the injunction, that the harm to the plaintiffs would exceed the harm to the defendants from the imposition of the injunction, and that the public interest would not be adversely served by an injunction. Aponte v. Calderon, 284 F.3d 84, 190 (1st Cir. 2002) Further, the Prison Litigation Reform Act (“PLRA”), 18 U.S.C. § 3626, limits the scope of prospective relief in prison cases. The PLRA states:
3

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 4 of 38
Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief. 18 U.S.C. § 3626(a)(1)(A). The Supreme Court has interpreted this language as meaning that “the scope of the order must be determined with reference to the constitutional violations established by the specific plaintiffs before the court.” Brown v. Plata, 131 S.Ct. 1910, 1940 (2011). “In essence, § 3636(a)(1)(A) requires that a court find a violation of a federal right before ordering any prospective relief and then narrowly tailor the remedy ordered to assure that it does no more than correct that violation.” Disability Law Center v. Mass. Dept. of Correction, No. 0710463-MLW, 2012 WL 1237760, *11 (D. Mass. 2012). I. SOME PLAINTIFFS FAILED TO PROPERLY EXHAUST THEIR ADMINISTRATIVE REMEDIES IN RELATION TO CERTAIN CLAIMS. The PLRA, 42 U.S.C. §1997e(a), provides, in pertinent part: No action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted. 42 U.S.C. § 1997e(a). A plaintiff must properly exhaust his administrative remedies as to each claim raised in order to pursue that claim in his Complaint. Jones v. Bock, 127 S.Ct. 910, 923924 (2007) (no unexhausted claim may be considered); Stokes v. Commissioner of Correction, 26 Mass. App. Ct. 585, 590 (1988). Indeed, plaintiffs constitutional claims as well as those under the ADA and Rehabilitation Act fall under the PLRA as they all purport to relate to prison conditions as well as “other Federal law and thus require exhaustion. See e.g., Pacheco v. Zurlo, 2011 WL 1103102, *2 (N.D.N.Y.) report and recommendation adopted by, 2011 WL 1102769 (N.D.N.Y. 2011)(inmate who did not complete DOCS's three-tier grievance process before filing
4

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 5 of 38
complaint under the ADA failed to exhaust administrative remedies).; Alster v. Goord, 745 F. Supp. 2d 317, 322 (S.D. N.Y. 2010); Arc v. O’Connell, 427 F. Supp. 2d 435, 440 (S.D. N.Y. 2006). Further, proper exhaustion is required. Woodford v. Ngo, 548 U.S. 81, 126 S.Ct. 2378, 2385-2386 (2006). “[T]o properly exhaust administrative remedies, prisoners must ‘complete the administrative review process in accordance with the applicable procedural rules,’ Woodford, 548 U.S., at ---(slip op., at 5)-rules that are defined . . . by the prison grievance process itself. Compliance with prison grievance procedures, therefore, is ... required....” Jones v. Bock, 127 S.Ct. at 922-923. Thus, “[t]o exhaust remedies, a prisoner must file complaints and appeals in the place, and at the time, the prison’s administrative rules require.” Pozo v. McCaughtry, 286 F.3d 1022, 1025 (7th Cir. 2002). Failure to exhaust the administrative review process mandates dismissal of the claims. Jones, 127 S.Ct. at 922-923; Casanova v. DuBois, 289 F.3d 142, 147 (1st Cir. 2002).
A. Requests for Reasonable Accommodations The Department has a policy in effect that requires inmates to submit requests for reasonable accommodation in accordance with the procedures outlined in 103 DOC 207, Requests for Reasonable Accommodations. [DOC Facts ¶¶ 177-181]. Plaintiffs Coe, Doe, Poe and Roe’s failure to follow this process requires dismissal of their ADA/Rehab Act claims as set forth herein. To the extent the Complaint could be construed as encompassing claims under the ADA and Rehab Act that the defendants did not provide reasonable accommodations for them in relation to the policy change by providing them their HIV medications KOP, such claims must be dismissed as to plaintiffs Coe, Doe, Poe and Roe because they made no request for reasonable
5

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 6 of 38
accommodation seeking this relief. Nor did Coe, Poe or Roe submit a request for reasonable accommodation seeking any other type of relief.
Carl Coe, Peter Poe and Richard Roe did not submit any requests for reasonable accommodation in connection with the policy change for HIV medications to DOT, whether to have their HIV medications KOP or for any other accommodation to attend the med line. [DOC Facts ¶¶ 186, 196, 197].
John Doe did not submit a request for reasonable accommodation to allow him to have his HIV medications KOP. [DOC Facts ¶¶ 188-195]. The only accommodation request submitted by John Doe was made in August 2009 to allow him to go to an early medication line in the evening. [Id.]. From August 25, 2009 through the end of July 2010, Doe was allowed to go to the front of the evening medication line until UMCH determined that the accommodation was no longer medically required. [DOC Facts ¶¶ 191-193]. Per his doctor’s order, Mr. Doe now takes his HIV medications once a day in the morning. [DOC Facts ¶ 326].
B. Grievances In accordance with 103 DOC 630.02(10), UMCH has established an administrative procedure for resolving inmate medical issues, informally called the medical grievance process; UMCH’s procedures are outlined in UMCH Policy 12.00. [DOC Facts ¶¶ 182-183]. To properly grieve a medical matter, an inmate must first file a grievance with UMCH and, if dissatisfied with that result, appeal to UMCH; if dissatisfied with the UMCH appeal response, the inmate must appeal to DOC. [DOC Facts ¶ 184]. Inmates are responsible for maintaining copies of their medical grievance files. [DOC Facts ¶ 185].
6

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 7 of 38
Carl Coe – As delineated in the DOC Facts, Carl Coe never filed any grievance in which he claimed that his right to privacy was violated due to the change in policy. [DOC Facts ¶¶ 207-218]. As such, any right to privacy claim by Coe should be dismissed.
John Doe – As delineated in the DOC Facts, as pertains to the change in policy, John Doe only properly completed the grievance process with regard to one grievance, which dealt with an allegation of violation of privacy. [DOC Facts ¶¶ 222-239]. In other instances, Doe failed to pursue all appellate avenues, wrote letters, not grievances, and/or produced no evidence that he filed them with UMCH in the first instance. [Id.]. In the one grievance in which Mr. Doe properly followed all the required procedures, he complained of a single instance where a nurse purportedly asked him if he was on HIV medications within earshot of another inmate; he did not allege this other inmate actually heard what was said. [DOC Facts ¶¶ 229-233].3 As such, with the exception of the claim relating to the right to privacy, Mr. Doe failed to properly exhaust his administrative remedies. All of Mr. Doe’s other claims should be dismissed.
Richard Roe Richard Roe properly filed and appealed one medical grievance, in which he claimed the change in policy invaded his right to privacy. [DOC Facts ¶¶ 256-260]. He did not file any other medical grievances complaining about any other allegations in the Complaint. [DOC Facts¶¶ 256-262]. During the pendency of this case, Mr. Roe filed a DOC grievance, pursuant to 103 CMR 491, in which he complained of one correction officer firing him from his job, purportedly because he somehow found out that Mr. Roe was HIV positive. [DOC Facts ¶ 261]. Mr. Roe has not filed any other grievances regarding the claims set forth in the Complaint. [DOC Facts ¶¶ 256-262]. As such, with the exception of the claim relating to the right to pri-
3 The only other grievance brought to the attention of DOC was one in which Mr. Doe alleged that he had missed dosages of HIV medications due to an institutional emergency or officers “not calling meds loud enough.” [DOC Facts ¶¶ 237-239]. However, in this latter grievance, Mr. Doe never filed an appeal with UMCH as required. [Id.].
7

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 8 of 38
vacy, Mr. Roe failed to properly exhaust his administrative remedies. All of Mr. Roe’s other claims should be dismissed.
Regardless, even if all plaintiffs had properly exhausted all administrative remedies, defendants are still entitled to summary judgment. II. THE ADA’S COMPREHENSIVE REMEDIAL SCHEME BARS § 1983 CLAIMS.
It is well settled that § 1983 may be used to enforce rights contained in the Constitution as well as rights contained in federal statutes. Maine v. Thiboutot, 448 U.S. 1, 4-8 (1980). However, an exception exists when a federal statute contains a comprehensive remedial scheme. The Supreme Court has held that, “[w]hen the remedial devices provided in a particular Act are sufficiently comprehensive, they may suffice to demonstrate congressional intent to preclude the remedy of suits under § 1983.” Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1, 20 (1981). A number of federal courts, including this one, have concluded that the ADA provides a comprehensive remedial scheme which precludes § 1983 actions. See Davis v. Francis Howell School Dist., 104 F.3d 204, 206 (8th Cir. 1997); Pona v. Cecil Whittacker’s Inc., 155 F.3d 1034, 1038 (8th Cir. 1997); Meara v. Bennett, 27 F. Supp.2d 288, 291-292 (D. Mass. 1998); Holbrook v. City of Alpharetta, 112 F.3d 1522, 1531 (11th Cir. 1997); Coffey v. County of Hennepin, 23 F. Supp. 2d 1081, 1089 (D. Minn. 1998); Houck v. City of Prairie Village, 978 F. Supp 1397, 1405 (D. Kan. 1997); Metzger v. Lehigh Valley Housing Authority, 1999 WL 562756 (E.D. Pa. 1999); Krocka v. Bransfield, 969 F. Supp. 1073, 1090 (D. Kan. 1997). The Eighth Circuit, in Pona, supra, explained that the ADA’s “detailed” enforcement provisions were “imported” from Title VII of the Civil Rights Act of 1964 and, as such, it too was deemed to preclude § 1983 actions. Pona, 155 F.3d at 1038.
8

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 9 of 38
In the instant case, plaintiffs’ claims under § 1983 mirror the issues raised under the ADA and Rehab Act and they rely on the same set of facts to support all theories of liability. Accordingly, since the ADA and Rehab Act provide comprehensive remedial schemes, and plaintiffs’ §1983 claims directly relate to their claims under the ADA and RA, the defendants are entitled to judgment on the § 1983 claims as a matter of law. See Meara v. Bennett, supra. In any event, even if each claim were considered on its merits, defendants are entitled to judgment in their favor. III. THE DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON THE
EIGHTH AMENDMENT CLAIM. The plaintiffs allege that the change in policy constitutes cruel and unusual punishment because the defendants supposedly enacted this policy “knowing it would reduce, rather than improve, adherence” and that it would discourage HIV inmates from taking their HIV medications altogether, resulting in a cost savings to DOC and UMCH. Complaint ¶¶ 192. Plaintiffs assert that defendants enacted the change supposedly knowing that it would result in impaired access to the med lines, due to various issues, such as delays, conflicts with med line times, breaches of privacy and increased risk of illness from attending the med line. Complaint ¶¶ 189-191. Plaintiffs have no reasonable expectation of proving the elements necessary to prove this claim. Based on the evidence in this case, no reasonable fact finder could return a verdict for the plaintiffs. Indeed, as described, infra, the evidence undisputedly shows that there was no discriminatory or other improper purpose for the change in policy and, since the change in policy, there has been improvement in the clinical outcomes of the inmate population as a whole as pertains to HIV treatment. [DOC Facts ¶¶ 419-420].
9

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 10 of 38
A. Legal Standard “After incarceration, only the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment.” Whitely v. Albers, 475 U.S. 312, 319 (1986), quoting Ingraham v. Wright, 430 U.S. 651, 670 (1977) (internal quotation marks omitted). In order to sustain an Eighth Amendment claim involving prison medical treatment, an inmate must prove that the prison officials’ actions amounted to “deliberate indifference to a serious medical need.” DesRosiers v. Moran, 949 F.2d 15, 18 (1st Cir 1991), citing Estelle v. Gamble, 429 U.S. 97, 104-106 (1976). See Layne v. Vinzant, 657 F.2d 468, 474 (1st Cir. 1981). “ Deliberate indifference is conduct that offends evolving standards of decency in a civilized society.” DesRosiers, 949 F.2d at 18, citing Rhodes v. Chapman, 452 U.S. 337, 347 (1981). In other words, deliberate indifference to serious medical needs amounts to the “unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at 104. "A medical need is 'serious' if it is one that has been diagnosed by a physician as mandating treatment, or one that is so obvious that even a lay person would easily recognize the necessity for a doctor's attention." Gaudreault v. Municipality of Salem, 923 F.2d 203, 208 (1st Cir. 1990). An inmate can prove deliberate indifference by establishing that he has been denied medical treatment as a punishment or that prison medical personnel have made “wanton decisions to deny or delay care.” Watson v. Caton, 984 F.2d 537, 540 (1st Cir. 1993). It is well established, however, that mere negligence does not constitute deliberate indifference. DesRosiers, 949 F.2d at 19. Mere disagreement over the course of treatment, or the source of treatment, does not constitute “deliberate indifference.” Sires, 834 F.2d at 12-13; Ferranti v. Moran, 618 F.2d 888, 890-891 (1st Cir. 1980). Where the dispute concerns, not the absence of medical care, but
10

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 11 of 38
the choice of a certain course of treatment, the plaintiff must prove that the treatment was “so clearly inadequate as to amount to a refusal to provide essential care.” Torraco v. Maloney, 923 F.2d 231, 234 (1st Cir. 1991), quoting Miranda v. Munoz, 770 F.2d 255, 259 (1st Cir. 1985).
“In evaluating the quality of medical care in an institutional setting, courts must fairly weigh the practical constraints facing prison officials.” DesRosiers, 949 F.2d at 19. In determining whether an inmate has proven the culpable state of mind of a prison official, this is to be assessed by considering “the officials’ response to an inmate’s known needs or by denial, delay, or interference with prescribed health care.” Id. Moreover, when the issues pertain to matters such as medical diagnoses and/or the manner and means of medical treatment, prison officials are entitled to rely upon qualified medical professionals for such assessments. Sires v. Berman, 834 F.2d 9, 13 (1st Cir. 1987) (“prison officials, after proper investigation, learned of and relied upon the recommendations of the doctors and nurses, as they are entitled to do”); Layne , 657 F.2d at 472; Camberos v. Branstad, 73 F.3d 174, 176 (8th Cir. 1995); McCracken v. Jones, 562 F.2d 22, 24 (10th Cir. 1977); Rosen v. Chang, 811 F.Supp. 754, 761 (D.R.I. 1993).
Presuming for purposes of this motion that the plaintiffs’ HIV status constitutes a serious medical need, there is simply no evidence to which plaintiffs can point to prove the elements of this claim. Plaintiffs’ complaints simply pertain to the manner in which they receive their HIV medication. There is no right, constitutional or otherwise, for an inmate to possess any medication as KOP; rather, “the relevant right is plaintiff’s right to adequate medical treatment.” Iseley v. Dragovich, 2003 WL 1793968 (E.D. Pa. 2003) (inmate had no right to keep inhaler on his person—so long as it is available as needed, no constitutional violation). All the HIV medications that plaintiffs have been prescribed are fully available to them at the med line.
11

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 12 of 38
B. Goals of Policy Change and the Goals Achieved. Plaintiffs’ assertion that the policy change was made in an effort to reduce inmate adherence to their HIV treatment regimens and that it was this reduced adherence that would result in a cost savings, is belied by all the evidence in this case. First, one of the express stated goals of the policy change was to increase inmate adherence to their HIV treatment regimens. [DOC Facts ¶¶ 51, 97, 420]. Given that inmates on KOP medications are not observed ingesting their medications, the only true objective means to measure adherence is to utilize pharmacy claims data, showing whether inmates request refills on time, and to look at inmates’ viral load data. [DOC Facts ¶ 49]. Viral load data indicates whether the HIV medication regime is working or not, i.e., whether the viral load is detectable or undetectable. The overall main clinical goal for an HIV inmate is to have an undetectable viral load. [DOC Facts ¶ 50]. When the policy change was first being considered viral load data showed that only about 84% of the inmate population had an undetectable viral load. [DOC Facts ¶ 111]. Data also showed that, prior to the change in policy, there were a significant number of inmates on the KOP program requesting refills of their HIV medications either early or late, indicating they may not be in compliance with their medication regimes. [DOC Facts ¶ 60, 62]. Further, a review done of a cohort of inmates with detectable viral loads showed a correlation between the inmates with detectable viral loads and their adherence to their medication regimes; that review showed an overall adherence rate of only 81.2%. [DOC Facts ¶¶ 92-94]. Adherence rates of 95% or greater are the recommended goal for treatment of HIV patients. [DOC Facts ¶ 95]. While cost savings is always a consideration, only cost savings that would not negatively impact patient care and outcomes were considered. [DOC Facts ¶¶ 51, 84]. In 2008, UMCH was required, pursuant to M.G.L. c 29, § 9C, to review all its expenditures involving the De-
12

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 13 of 38
partment, including staffing modes, models for delivery of care and whether there was waste and/or redundancies, in order to determine if any efficiencies could be gained, all viewed with an eye to minimize or avoid impact on the inmate patients. [DOC Facts 51]. As such, there were discussions in 2008 regarding KOP compliance and waste of all medications, not just HIV medications. [DOC Facts ¶¶ 58-62]. Indeed, there were repeated and ongoing discussions of possibly removing Over-the-Counter medications from the KOP program. [DOC Facts ¶ 58]. SOPS conducted its own internal review of all wasted medications in the KOP program and found that the largest issue involving waste that implicated a cost savings among KOP medications was with the HIV medications. [DOC Facts ¶¶ 60-61].
The cost savings would come through SOPS’ “Reclaim and Reuse” program for medications, which is where unused medications are returned to SOPS for determination as to whether they are waste or eligible for Reclaim and Reuse, in which case a credit it awarded back. [DOC Facts ¶ 54]. With the DOT program, HIV medications remain in the hands of licensed medical staff and, as such, are eligible for Reclaim and Reuse. [DOC Facts ¶¶ 53-56]. Medications provided to inmates through the KOP program, however, are not eligible for Reclaim and Reuse. [DOC Facts ¶ 56]. The SOPS data that was presented to UMCH and DOC illustrated that if HIV medications were removed from the KOP program, there was a potential to save up to $150,000 to $175,000 per year, due to reduced waste of medications and the ability to utilize the Reclaim and Reuse program, not reduced inmate adherence. [DOC Facts ¶ 63].
To the extent plaintiffs fault defendants for saving taxpayer money without negatively impacting patient care, their argument fails because the courts have long recognized that reducing unnecessary expenses is a valid penological interest. See e.g. Shakur v. Schriro, 514 F.3d 878, 885-86 (9th Cir. 2008) (“the reduction of administrative and budgetary concerns” is a le-
13

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 14 of 38
gitimate penological interest); Hall v. Ekpe, 408 Fed.Appx. 385, 388 (2d Cir. 2010) (“economy by minimizing unnecessary expenses” is a legitimate penological interest); Berryman v. Granholm, 343 Fed.Appx. 1, (6th Cir. 2009) (“controlling the cost” of a program is a legitimate penological interest); see also Turner, 482 U.S. at 89 (stating that “the allocation of prison resources” is to be taken into account).
In response to concerns voiced by some infectious disease doctors and nurses that a change to DOT may have a negative impact on the inmates, UMCH suspended the implementation of the policy change in order to gather more data and UMCH proposed an “Interim Plan.” [DOC Facts ¶ 83]. Although the infectious disease doctors and nurses believed that inmates were compliant with their KOP HIV medications, this belief was largely based on self-reports of adherence, which are unreliable, and was not based on any aggregate data that they had compiled or reviewed. [DOC Facts ¶¶ 72- 73, 78-80].
UMCH considered and looked at all data, including viral loads and adherence rates, as well as information which showed that 93% of inmates on HIV medications already attended the daily med line for other medications. [DOC Facts ¶¶ 83-87]. Further, pharmacy claims data for June 2008 showed that 44% of all inmates obtaining their HIV medications KOP had requested refills late or failed to request refills at all; notably, this included four of the five plaintiffs from this case – Carl Coe, John Doe, Peter Poe, and Richard Roe.4 [DOC Facts ¶ 88]. There was also a concern regarding early refills of one of the drugs, Atripla, because that drug has some “street value,” so there was some question as to what the drug may be being used for. [DOC Facts ¶ 90]. UMCH was also aware that other states had successfully utilized DOT for administration of HIV meds and UMCH reached out to staff in Maryland about their program. [DOC
4 Further, shortly before the policy change, Mr. Doe submitted grievances in which he complained that when he attended the KOP med line, his HIV medications were not available. This was due to the fact that Mr. Doe had been failing to turn in renewal stickers to request refills of his HIV KOP medications [DOC Facts ¶¶ 219-220].
14

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 15 of 38
Facts ¶ 91]. Ultimately, after consideration of all the data, input from clinical staff and consideration of medical literature and studies that indicated distributing medications DOT increased compliance rates, the decision was made to change the policy and implement DOT for HIV medications as of February 2, 2009. [DOC Facts ¶ 96].
Since the February 2, 2009 change in policy, UMCH has continued to monitor the HIV medication program and collected, or was provided data, relating to adherence and viral loads, and has provided summaries of the data to the Department. [DOC Facts ¶102]. The purpose of this monitoring was for quality assurance purposes to ensure that the DOT initiative did not have a negative impact on the inmates. [DOC Facts ¶ 103]. The Adherence Analysis reports demonstrate that there has been an increase in inmate compliance with HIV medications since the conversion to DOT. [DOC Facts ¶ 108].
Moreover, the viral load data demonstrates a marked increase in the percentage of inmates with undetectable viral loads since the change in policy. [DOC Facts ¶¶ 111-112]. For the two reporting periods before the policy change, only 84% and 83% of inmates on a stable HIV medication regimen had undetectable viral loads. [DOC Facts ¶111]. The percentage of inmates on HIV medications with an undetectable viral load has been higher for every reporting period since the policy change, which occurred close to four years ago now. [DOC Facts ¶¶ 111-112]. For the two most recent reporting periods in 2012, 95% of inmates on HIV medications had an undetectable viral load. [DOC Facts ¶ 112]. The viral load data also shows that for the two reporting periods prior to the change in policy, 30 and 36 HIV positive inmates for each respective period were not on stable HIV treatment; for the two most recent reporting periods in 2012, only 19 and 19 inmates for each respective period were not on stable HIV treatment. [DOC Facts ¶ 113]. Thus, there is no validity to plaintiffs’ assertion that the policy change has resulted in
15

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 16 of 38
fewer inmates taking their HIV medications or that there is decreased adherence. Reclaim and Reuse data also shows that, since the change policy a cost savings has been effected through reclaimed costs for HIV medications. [DOC Facts ¶ 114].
In 2011, there was also an outside audit conducted by the Department of Public Health (“DPH”), which looked at the care of HIV-infected inmates in DOC. [DOC Facts ¶ 140]. The DPH Audit compared its results with results for HIV positive populations in the community, both within and without Massachusetts, and found that the “performance and outcome measures compared favorably with those observed in the care system in the general community and reported by a large health maintenance organization.” [DOC Facts ¶ 147]. The audit concluded that the overall care compares well with generally recognized performance and outcome standards and concluded “The combination of case management and infectious disease specialty care, in addition to ongoing primary care, works well to deliver care to HIV-infected inmates, as evidence[d] by the high prevalence of viral load suppression which is similar to or exceeds reported rates in community settings.” [DOC Facts ¶ 148].
Also in 2011, MGT of America, Inc. conducted an analysis of all health care issues in DOC. [DOC Facts ¶¶ 149-151]. In regard to the current policies involving pharmacy services, MGT concluded that the “[c]urrent policies are well crafted to minimize inventory, safeguard drugs from potential diversion of abuse, and minimize waste,” and further stated that “[DOC], UMCH, MHM and SOPS should be credited with tight drug management policies and practices.” [DOC Facts ¶ 151].
C. Plaintiffs Have Not Produced Evidence to Support Their Assertions. What really emerges from the facts of this case in regard to Mr. Nunes is the portrait of an inmate who is simply refusing the medical care offered to him because it is not being dis-
16

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 17 of 38
pensed in the manner of his choosing.5 What emerges from the facts in regard to the other plaintiffs is that they simply prefer to have their HIV meds KOP because it is more convenient for them. A mere disagreement as to the appropriate treatment or manner of treatment does not implicate a violation of an inmate's rights, since the "[r]ight to be free from cruel and unusual punishment does not include the right to treatment of one's choice." Layne, 657 F.2d at 473. See Jackson, 846 F.2d at 817; Ferranti, 618 F.2d at 890-891. The standard applied in the First Circuit is that inmates receive adequate medical care, not that correctional authorities cater to the individual preference of each inmate. United States v. DeCologero, 821 F.2d 39, 42 (1st Cir. 1987); Chase v. Quick, 596 F.Supp. 33, 35 (D.R.I. 1984).
The only “evidence” the plaintiffs have produced in an attempt to dispute the availability of their HIV medication at the med line consists mostly of anecdotal assertions or speculation that there could be difficulty in getting to the med line due to weather, scheduling conflicts, and/or illness, that their HIV medication was not available on some occasion, the med line was not called and/or fear of illness from waiting in the med line. Even if all these alleged assertions were true, which the evidence does not support, all it demonstrates is that no system is perfect and that there may have been sporadic issues that arose. It is hardly evidence that there is any systemic problem that denies the inmates access to their medication that would support a finding of a constitutional violation requiring restoration of HIV medications to the KOP program.
What the evidence does show is that in the instances where the plaintiffs, or other inmates, have complained about such issues, the matters were addressed and steps taken to resolve any legitimate issues. [DOC Facts ¶¶ 130-138]. For example, where scheduling conflicts have arisen, the timing of the med line has been changed and, where some inmates needed food with
5 When Mr. Nunes has been in a Special Management Unit, he has taken his HIV medications. [DOC Facts ¶ 416]. Mr. Nunes also frequently refuses to have his blood drawn or attend medical appointments. [DOC Facts ¶¶ 373375].
17

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 18 of 38
their medications, UMCH has written food orders. [DOC Facts ¶ 132]. If an inmate reports he is too ill to go to the med line, the inmate is supposed to tell a correction officer, who will notify medical staff to determine how to proceed. [DOC Facts ¶ 133]. Notably, although some of the plaintiffs claimed that, on rare occasion they felt too ill or injured to go to the med line, none of the plaintiffs6 alleged they ever told DOC staff on such occasions or that they even filed sick slips; thus, neither DOC nor UMCH even had an opportunity to accommodate the plaintiffs because the purported need was not made known. [DOC Facts ¶¶ 297, 321-322, 360]. When any issue pertaining to HIV medications has been reported by an inmate, the inmate is individually counseled by an Infectious Disease Case Manager, who, in turn, works with UMCH and Department staff to implement accommodations as appropriate. [DOC Facts 134].
Moreover, many of these purported “issues” would exist with either the KOP med line/program or with DOT. When medications are received as KOP, in order to turn in refill stickers and then to pick up refills, the inmates have to walk to the same location, i.e, the HSU, as they do for DOT. [DOC Facts ¶ 30]. The inmates also have to wait in a line with other inmates to obtain the KOP medications, just as with DOT. [DOC Facts ¶¶ 30-31, 33]. Further, based on the testimony of the plaintiffs, the wait time for the KOP med lines is comparable with, and sometimes longer than, the wait times in the DOT med lines. [DOC Facts ¶¶ 33, 299, 312, 338, 348, 352, 358, 377, 380, 409].
Additionally, although plaintiffs7 state they are concerned about privacy, they simply assume others know their HIV status; they have produced no evidence to demonstrate that anyone, whether inmate or staff, ascertained their HIV positive status as a result of the daily med line.
6 Mr. Nunes has never intended or attempted to go to the daily med line for his HIV medications since the policy change. [DOC Facts ¶ 204]. 7 Plaintiff Nunes does not seek any relief directly related to allegations his privacy was breached. He is already open about his HIV status and has not attended the daily med line to get his HIV medications.
18

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 19 of 38
[DOC Facts ¶¶ 300-302, 319, 339-342, 354-357]. In fact, for the most part, it seemed that the plaintiffs were more concerned with privacy issues as a result of attending medical appointments. [DOC Facts ¶¶ 320, 343, 357]. Moreover, the KOP process potentially implicates privacy concerns to the same, if not greater extent, than the DOT process. Inmates in a KOP med line are given entire blister packs of their medications and the inmates then have to carry these whole packs back to their cells. [DOC Facts ¶ 34]. Pursuant to DOC policy, correctional staff also periodically conduct inspections and searches of inmates’ cells and, when doing so, are required to utilize a report detailing which KOP medications an inmate is prescribed, verify that all KOP medications are properly secured, verify the KOP medications are properly labeled, are current, and belong to that inmate. [DOC Facts ¶ 36]. If anything, it is far easier for inmates and staff to possibly see what medications an inmate is receiving through the KOP program, than with DOT.
As for plaintiffs’ purported fear of getting ill from the med line, there is no credible evidence to which plaintiffs can point to demonstrate that this supposed risk is any greater as a result of being in a DOT med line, as opposed to a KOP med line or anywhere else in the prison. As noted in the next paragraph, the plaintiffs are around other inmates every day, and in close proximity to them. Tellingly, not one of the plaintiffs claims to have actually gotten ill from the med line or produced evidence of anyone becoming ill from the med line, despite the DOT policy being in place for HIV medications for almost four years now.
Regarding assertions of the med line supposedly not being called, plaintiffs rely on only their unsupported general assertions that this occurred. Plaintiffs have produced no evidence this has actually occurred, or that, if it had happened on occasion, it is a systemic issue for all inmates. Indeed, only plaintiff Coe exhausted his administrative remedies regarding such general allegations through the grievance process; he filed a grievance where he alleged on “rare” occa-
19

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 20 of 38
sions the med line had not been called. [DOC Facts ¶¶207-277]. At his deposition, Coe estimated that this had happened a total of four times since the policy change and further testified it had not happened recently. [DOC Facts ¶¶ 296, 298]. While John Doe filed an initial grievance in July 2010 making broad allegations of med lines not being called, he provided no factual details and did not properly exhaust his remedies. [DOC Facts ¶¶ 237-239]. In any event, John Doe’s own testimony at his deposition belies his assertions. He testified that between February 2009 and December 2011 he was “faithfully” at med line twice a day for his HIV medications. [DOC Facts ¶ 324]. Mr. Doe further testified he had missed the med line for other reasons, such as oversleeping or not hearing the correction officers call the line, which would mean that the med line was, in fact, called. [DOC Facts ¶ 323]. Peter Poe has provided no testimony or alleged in the Complaint that this has occurred in any instance when he needed to attend a med line. [DOC Facts ¶¶ 330-349; Complaint ¶¶ 169-176]. Similarly, Richard Roe neither alleged in the Complaint, nor in his testimony, that there have been instances where staff failed to call a med line.8
While it is possible that an emergency situation could arise impacting inmate movement, such as a med line, this is not something that regularly occurs and, in the event inmate movement is stopped for an extended period of time, accommodations are made to ensure that all inmates receive their medications. [DOC Facts ¶ 28]. Either UMCH staff bring medications to inmate housing units, or inmates may be allowed out of a particular unit to go to the med line as deemed appropriate. [DOC Facts ¶ 28]. None of the plaintiffs alleged in the Complaint that institutional emergencies hindered their access to HIV medications. See Complaint.
8 As noted above, Mr. Nunes has never intended or attempted to go to the med line since the change and makes no allegations in the Complaint regarding this happening to him.
20

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 21 of 38
As for the plaintiffs’ general assertion that it is a burden to get to the med line because they have to walk there on a daily basis and may have to go outside, defendants first note that since Mr. Nunes has never intended or attempted to even go to the daily med line to get his HIV medications since the change in policy [DOC Facts ¶ 204], he can rely on nothing other than speculation, which is insufficient. In any event, the plaintiffs have produced no credible evidence upon which a fact finder could rely to support this assertion. In fact, all of the plaintiffs, including Mr. Nunes9, routinely move about their respectively facilities on a daily basis for various reasons, such as to get their meals three times a day, attend programs, exercise, work at jobs, and attend medical appointments. [DOC Facts ¶¶ 281-285, 308, 333, 353, 392-394, 401-404]. Additionally, other than Mr. Nunes, none of the other plaintiffs even claims to have any physical disability or limitation that would impact his ability to get to and stand in the med line.
Regarding Mr. Nunes’ claim that he has physical limitations that impact his ability to walk to and stand in the med line, this matter has already been resolved. Whatever physical infirmities Mr. Nunes may have, which could theoretically impact his ability to attend and/or stand in the med line on some days, have already been addressed through reasonable accommodations offered to him by DOC and UMCH, which this Court has already found sufficient when it denied Mr. Nunes’ Motion for Preliminary Injunction. [DOC Facts ¶¶ 157-176]. Further, there has been no material change since the Court made the finding that Mr. Nunes’ concerns have been adequately addressed. The accommodations include: 1) Mr. Nunes is able to utilize a bench in the HSU to sit on during med line, should the need arise, without losing his place in line; 2) Mr. Nunes can use the bathroom in the HSU during med line, should the need arise; 3) Mr. Nunes was referred for use of a rolling walker; and 4) in instances where Mr. Nunes contends he is too
9 This pertains to when inmates are in general population. When an inmate is not in general population, he/she has never had access to HIV medications as KOP even before the change in policy. [DOC Facts ¶ 38].
21

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 22 of 38
ill to go to med line, he is to report this a correction officer who, in turn, will report this to medical staff, who will assess him to determine how to proceed. [DOC Facts ¶¶157-176]. Nunes has refused to cooperate in the process to assess him for a walker. [DOC Facts ¶ 167]. Further, as noted above, by Mr. Nunes’ own admission at his deposition, he has never intended or attempted to go to the daily med line to get his HIV medications. [DOC Facts ¶ 204]. Thus, there could not possibly have been any attempt on his part to invoke the accommodations offered to him.
Ultimately, the plaintiffs’ “evidence” amounts to nothing more than a list of isolated instances or wholly speculative concerns, which neither individually nor in combination provide a basis for the broad relief sought by the plaintiffs, i.e., a declaration that the whole policy/practice is unconstitutional. There is no system based or wide constitutional or statutory defect remotely requiring such expansive relief.
Finally, plaintiffs have not produced any objective evidence whatsoever to support their assertions that inmate adherence has declined since the change in policy or that anyone “knew” adherence would be reduced. [DOC Facts ¶ 402]. As described above, the evidence is completely to the contrary. The facts clearly demonstrate that, at the time of the policy change, the goals of DOC and UMCH were to increase inmate adherence to HIV medication regimes and to also reduce waste of HIV medications, thereby effecting a cost savings. The evidence10clearly demonstrates that these goals have been achieved.
D. Crediting of Plaintiffs’ Argument Would Result in the Department Being Unable to Operate Daily Med Lines to Administer Medications.
If the plaintiffs’ argument were to be credited, i.e., a DOT med line is unconstitutional for the reasons alleged, this would mean that every DOT med line in the Department is unconstitutional. Inmates receiving medications for any number of reasons attend the daily med lines in
10 In fact, at the time of their depositions, other than Mr. Nunes who has refused to go to the med line for his HIV medications, all of the plaintiffs had undetectable viral loads. [DOC Facts ¶¶ 304, 327, 349, 366].
22

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 23 of 38
various DOC facilities to receive any and all medications that are administered DOT, not just HIV medications. Thus, the same arguments that plaintiffs assert regarding the supposed “unconstitutionality” of the DOT med line as pertains to HIV medications would apply to the same med line where all other medications are administered. Plaintiffs fail to make any allegations or provide any explanation as to how or why the DOT med line process would be unconstitutional solely as to HIV positive inmates, but not as to any other inmates who utilize the same DOT process.
The KOP program is not a right, but a privilege, and numerous other classes of medications are currently excluded from the KOP program, including all antituberculin drugs, psychotherapeutics, antidepressants, anticonvulsants, anti-gout agents, injectable medications and controlled substances. [DOC Facts ¶ 39, 41]. Many of these medications are for treatment of various illnesses/diseases/disabilities, such as tuberculosis and mental illness, which other inmates would similarly not want unnecessarily revealed. Even inmates with KOP privileges for approved KOP medications can have their privileges revoked for varied reasons such as failing to keep their medications secured, abuse of the program/medication or because the inmate is unable to comprehend the rules and regulations regarding administering the medications KOP. [DOC Facts 41]. Inmates excluded from the KOP program or who have their KOP privileges terminated also go to daily med lines at DOC facilities. [DOC Facts 42]. The plaintiffs offer no argument that it is unconstitutional for inmates excluded or suspended from the KOP program (which would include inmates taking HIV medications) to have to attend the daily med line, or allege it is unconstitutional for other inmates taking any of the other classes of KOP excluded medications to have to attend the daily med line. Indeed, in the Complaint, the plaintiffs appear
23

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 24 of 38
to concede a need for, and the utility of, the daily med lines at DOC facilities. See Complaint ¶¶ 31, 33.
In sum, for all the aforementioned reasons, the plaintiffs have no reasonable likelihood of prevailing on an Eighth Amendment claim. The evidence shows that the defendants acted in good faith relying on evidence that the policy change would benefit the inmate population and reduce waste when they made the policy change. The evidence shows that since the policy change there is increased inmate adherence to HIV medications and a marked increase in the percentage of inmates with undetectable viral loads. Indeed, this data suggests that if this Court were to order restoration of HIV medications to the KOP program, which is the relief the plaintiffs seek, this could actually be harmful to the inmate population. Plaintiffs have no possibility of proving to any reasonable fact finder that the defendants were deliberately indifferent to a serious medical need by implementing a policy that has resulted in better clinical outcomes for the inmate population as a whole. IV. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON THE ADA
AND REHAB ACT CLAIMS. The liability standards under both Title II of the Americans with Disabilities Act and Section 504 of the Rehabilitation Act of 1973 are the same. Quiles-Quiles v. Henderson, 439 F.3d 1, 4-5 (1st Cir. 2006). “Therefore, ‘the caselaw construing the ADA generally pertains equally to claims under the Rehabilitation Act.’” Id. at 5, quoting Calero-Cerezo v. United States Dep’t of Justice, 355 F.3d 6, 19 (1st Cir. 2004). In order to state a claim under Title II of the ADA, a plaintiff must allege “(1) that he is a qualified individual with a disability; (2) that he was either excluded from participation in or denied the benefit of some public entity’s services, programs or activities, or was otherwise discriminated against; and (3) that such an exclusion, denial of benefits, or discrimination was by
24

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 25 of 38
reason of his disability.” Parker v. Universidad de Puerto Rico, 225 F.3d 1, 5 (1st Cir. 2000)
(citing 42 U.S.C. §12132). To make out a prima facie case of discrimination, a plaintiff must
establish that he (1) suffers from a “physical or mental impairment”; (2) that “substantially limits;” (3) “a major life activity.”11 School Board of Nassau County v. Arline, 480 U.S. 273, 279 (1987), superceded by statute, see Shiring v. Runyon, 90 F.3d 827 (3rd Cir. 1996); Olson v. Gen-
eral Elec. Astrospace, 101 F.3d 947, 951 (3d Cir. 1996). To state a claim under the Rehab Act,
the plaintiff must establish the same requirements with the additional element that the program or
activity at issue receive federal funding. See 29 U.S.C. § 794.
Although plaintiffs have positive diagnoses of HIV, they do not allege that they have any
disabilities related to their HIV positive status that impacts their ability to attend the med line.
Indeed, while HIV positive status may, in some instances, be considered a disability for purposes
of the ADA and Rehab Act, see Bragdon v. Abbott, 524 U.S. 624 (1998), this diagnosis does not
automatically qualify as a disability for a particular individual. See Carter v. Taylor, 540
F.Supp.2d 522, 528 (D.Del. 2008). To make a prima facie claim regarding their HIV positive
status, the plaintiffs would have to set forth evidence that this particular impairment is substan-
tially limiting a major life activity at issue in the instant case. See Bragdon, 524 U.S. at 637-638.
11 Major life activities have been defined as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working. 29 C.F.R. §1620.2; Rother v. Lutheran General Hospital, 57 F.3d 1446, 1454 (1995) (seeing and learning); Hamm v. Runyon, 51 F.3d 721, 724 (7th Cir. 1995) (walking); Kotlowski v. Eastman Kodak Co., 922 F.Supp. 790, 797 (W.D.N.Y. 1996) (working). “Substantially limits” is defined as “‘[u]nable to perform a major life activity that the average person in the general population can perform;’ or ‘[s]ignificantly restricted as to the condition, manner or duration under which an individual can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform that same major life activity.’” Sutton v. United Air Lines, Inc., 527 U.S. 471, 480 (1999).
Not all impairments which affect a major life activity will result in a finding of disability under the ADA. See Nedder v. Rivier College, 908 F. Supp. 66, 75 (1st Cir. 1995) (teacher’s inability to walk in commencement line not a substantial impairment). The courts consider the following factors: “(1) the nature and severity of the impairment, (2) the duration or expected duration of the impairment, and (3) the permanent or long term impact, or the expected permanent or long term impact of, or resulting from the impairment.” Hamm , 51 F.3d 725, citing 29 C.F.R. pt. 1630 app. §1630.2(j). The ADA does not recognize “certain intermittent, episodic impairments” as disabilities. Id. Likewise, impairments resulting in minor limitations do not constitute a disability. Sarko v. Penn-Del Directory Co., 968 F.Supp. 1026, 1034 (W.D.Pa. 1997).
25

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 26 of 38
As already noted herein, plaintiffs Coe, Doe, Poe and Roe do not allege that they have any disability, whether related to HIV or not, that impacts their ability to attend the med lines.
Even if plaintiffs were found to have a disability under the ADA and Rehab Act that impacted their ability, either occasionally or on a daily basis, to go to the med line, defendants would still be entitled to summary judgment. In such circumstances, “reasonable accommodations” would need to be made to allow plaintiffs to receive their HIV medications. See Bibbo v. Massachusetts Department of Correction, 2010 WL 2991668, * 1 (D.Mass. 2010); Fulton v. Goord, 591 F.3d 37, 43-44 (2nd Cir. 2009). A “reasonable accommodation” does not mean that prison officials must accede to every demand of an inmate; rather, an accommodation is reasonable so long as it gives “ meaningful access” to the services sought. Bibbo, 2010 WL 2991668, *1, citing Alexander v. Choate, 469 U.S. 287, 301 (1985).
As argued in Section I, supra, plaintiffs Coe, Doe, Poe and Roe did not submit any reasonable accommodation requests to receive their medications KOP. In fact, of these plaintiffs, only plaintiff Doe submitted any proper requests for reasonable accommodation related to attending the med line after the change in policy. [DOC Facts ¶¶ 188-195]. Doe’s request was to attend an early evening med line, which, was allowed for a period of time based on medical recommendations. [Id.]. The accommodation is no longer in effect because it is now unnecessary as Mr. Doe now takes all his HIV medications in the morning and testified that he now consistently gets his medications between 8:20 and 8:30 AM every day. [DOC Facts ¶ 326]. He has also had, and presently has, an order in place for an evening snack should it be necessary. [DOC Facts ¶ 195].
In regard to Mr. Nunes, as argued at length in Section III above, the issue of reasonable accommodations related to his alleged disabilities under the ADA has already been fully ad-
26

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 27 of 38
dressed by this Court. Mr. Nunes has been afforded various accommodations to assist him in attending the med line, which this Court has already found adequate. Mr. Nunes has presented no evidence of a change in circumstance to require this matter to be considered again. As evidenced by his own deposition testimony that he has never intended or attempted to go to the daily med line to obtain his HIV medications since the change in policy, Mr. Nunes has made no attempt to even invoke any of these accommodations. Nor has Mr. Nunes produced evidence to show that anything about his physical condition has materially changed.
Finally, for all the reasons noted in Section III above, there is no evidence that the plaintiffs have been selectively discriminated against by virtue of their HIV status or any other purported disability. The program change for KOP medications was done for the primary purpose of increasing inmates’ adherence to their treatment regimens. Prior to the change, UMCH had found adherence rates among the HIV positive inmate population to be lower than national guidelines. Since the policy change, UMCH data indicates adherence rates have improved. UMCH data also demonstrates that viral loads have decreased to undetectable levels in a higher percentage of inmates since converting to DOT. This is hardly evidence of discrimination based on a disability. The goal of improving the health and safety of inmates is a legitimate penological objective and hardly discriminatory. See Iseley, 2003 WL 1793968, *8.12 As noted by the First Circuit, in the context of a physician referring an HIV positive patient to another doctor for more specialized treatment, that “[i]t would be nonsensical, and downright contrary to the pur-
12 If one were to accept the plaintiff’s claim that the mere act of excluding a medication as KOP, if such medication is used to treat someone with a disability, regardless of the reason for the exclusion, automatically equates to a violation of the ADA and Rehab Act, defendants would essentially be prohibited from excluding many of the medications currently excluded as KOPs. For example, antituberculin and antipsychotic drugs are excluded from the KOP program. Inmates with tuberculosis and mental illness would also qualify as having disabilities. Additionally, plaintiff’s assertion that the only way to accommodate inmates who legitimately have some disability that impacts their ability to receive medications in a med line is to provide the medications as KOP, would open the floodgates to similar claims by other inmates for medications excluded from the KOP program. The varied legitimate reasons for excluding various medications from the KOP program would be compromised. As noted herein, KOP is not the only accommodation possible.
27

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 28 of 38
poses of the [ADA] statute, to read the statute’s ‘solely because of’ language to prohibit medical treatment that is appropriate ‘solely because of’ a patient’s disability.” Lesley v. Hee Man Chie, M.D., 250 F.3d 47, 53 (1st Cir. 2001). Indeed, to ignore evidence that a change in policy might benefit HIV-positive inmates, and then to ignore the results demonstrating that the benefit to these inmates has been achieved, is what would be concerning. See id., at 54 & n.6. IV. DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON THE EQUAL
PROTECTION CLAIM. “The Equal Protection Clause of the Fourteenth Amendment...commands that no State shall ‘deny to any person within its jurisdiction the equal protection of the laws.’ The Equal Protection Clause does not forbid classifications. It simply keeps governmental decisionmakers from treating differently persons who are in all relevant respects alike.” Nordlinger v. Hahn, 505 U.S. 1, 10 (1992), quotin F.S. Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920). To state an equal protection claim, a plaintiff has to demonstrate that the defendants treated him differently from other persons situated similarly in all relevant aspects and “that such selective treatment was based on impermissible considerations such as race, religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.” Rubinovitz v. Rogato, 60 F.3d 906, 910 (1st Cir. 1995), quoting Yerardi’s Moody St. Restaurant & Lounge, Inc. v. Board of Selectmen, 878 F.2d 16, 21 (1st Cir. 1989). See Ortega Cabrera v. Bayamon, 562 F.2d 91, 103 (1st Cir. 1977); Dupont v. Commissioner of Correction, 448 Mass. 389, 399 (2007). HIV-infected inmates do not constitute a suspect class, see Doe v. Wigginton, 21 F.3d 733, 739 (6th Cir. 1994); Mofield v. Bell, 3 Fed. Appx. 441, 443 2001 WL 128383 (6th Cir. 2001) (unpublished), and, as argued in Section III(A) above, there is no constitutional right to receive medications KOP. Plaintiffs have no reasonable possibility of prevailing on this claim.
28

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 29 of 38
As an initial matter, plaintiffs have not identified individuals similarly situated in all relevant aspects from whom they were treated differently. Indeed, the plaintiffs’ main complaint seems to be that all the HIV positive inmates are being treated similarly and that they have to go to the med line along with other inmates who do not have their medications KOP.
In any event, this claim fails. HIV medications are not the only medications excluded from the KOP program. As noted elsewhere in this memo, in addition to HIV medications, other medications excluded from the KOP program include, among others, all antidepressants, all injectable medications, all psychotherapeutics and all antituberculin drugs. [DOC Facts ¶ 39]. This wide array of medications excluded from the KOP program demonstrate the lack of selective treatment from others similarly situated. As noted elsewhere in this memo, inmates can also be excluded from the KOP program for a variety of reasons including, , failure to comply with the rules and regulations of the program, if they are determined to be at-risk for abuse of the program, being unable to comprehend the rules and regulations, or if they do not have an individual, lockable storage area available to them. Since the KOP program is not available to all inmates, regardless of their HIV status, and numerous classes of drugs meant to treat a wide array of other ailments and diseases are also excluded from the program, there is simply no competent evidence of intentional selection and treatment of plaintiffs.
Further, HIV medications were not the only medications that were initially considered for removal when the possible change was being discussed; rather all KOP drugs were considered. [DOC Facts ¶ 58-60]. Ultimately, SOPS data demonstrated that there was a significant amount of waste with HIV medications and SOPS did not find any opportunities in terms of reducing waste with other KOP medications, as the other medications had no significant dollar amount associated with them. [DOC Facts ¶ 61]. Moreover, the change to DOT for HIV medications
29

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 30 of 38
was just one of many potential cost savings measures taken at that time. [DOC Facts ¶¶ 98-99]. In addition, over the years, other medications that had once been approved for inclusion in the KOP program were removed from the KOP approval list. [DOC Facts ¶ 40].
As already discussed in Section III above, in light of all the information available, the decision was made to change the policy because there was potential to actually improve medication compliance, reduce detectable viral loads among the inmate population and to potentially do all this is a more cost efficient manner. [DOC Facts ¶ 97]. All these goals have been achieved.
This is hardly “evidence that defendants harbored any ill will towards plaintiffs, either as individuals or as members of any class of persons, much less that defendants acted with the specific intent of harming them.” Ortega Cabrera v. Municipality of Bayamon, 562 F.2d 91, 103 (1st Cir. 1977). Quite the contrary, the evidence demonstrates that there was intent to benefit the HIV positive inmate population, and this intention was achieved. As the First Circuit noted, in the context of an ADA/Rehab Act claim, it would be nonsensical to prohibit people from considering factors/actions that would benefit someone with HIV because this very prohibition would arguably put the person with HIV in a different, and arguably worse, position than someone without HIV. Hee Man Chie, 250 F.3d at 53-54 & n. 6. V. THE DEFENDANTS ARE ENTITLED TO SUMMARY JUDGMENT ON THE
RIGHT TO PRIVACY CLAIM. Plaintiffs allege that defendants have violated their constitutional right to privacy.13 Complaint at ¶¶ 210-217. The gravamen of the privacy claim is that requiring HIV positive in-
13 While certainly there are various statutes in Massachusetts and throughout the country that pertain to medical information/privacy, the Complaint only alleges a Federal constitutional violation.
30

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 31 of 38
mates to receive their medication in med line with other inmates risks inadvertently disclosing their HIV status to security staff and other inmates.14 Id. This claim fails for several reasons.
First and foremost, although it has been recognized that individuals have a general constitutionally derived right of privacy which protects an “interest in avoiding disclosure of personal matters,” see Whalen v. Roe, 429 U.S. 589, 599 (1977),15 neither the Supreme Court nor the First Circuit has yet to address whether individuals outside of prison, let alone inmates, have specific privacy rights in connection with the disclosure of medical information. See Borucki v. Ryan, 827 F.2d 836, 840-49 (1st Cir. 1987) (declining to decide whether a constitutional right to privacy regarding medical records exists). “ Whether the Fourteenth Amendment includes a right against the disclosure of private information is an unsettled and hotly contested question of law.” Coughlin v. Town of Arlington, No. 10-10203-MLW, 2011 WL 6370932, * 13 (D. Mass. 2011). As recently as 2011, the Supreme Court explicitly declined to answer “ whether there is a constitutional right to informational privacy.” Nat’l Aeronautics & Space Admin. v. Nelson, 131 S.Ct. 746, 756-57 n. 10 (2011). Moreover, the First Circuit has stated that if a constitutional right against disclosure of private information exists at all, it is not clearly established. Borucki, F.2d at 844-45; see Demers ex rel. Demers v. Leominster School Dept., 263 F.Supp.2d 195, 204 n. 4 (D. Mass. 2003) (“The First Circuit has not directly decided whether [the Constitution] protects individuals against dissemination of their confidential medical information.”); Coughlin, 2011 WL 6370932, * 13 (noting that “the question remains unsettled in the First Circuit.”). The Court in Borucki stated that while Whalen “provides little guidance regarding the nature of the confidentiality branch of the right of privacy, “it does indicate[] that not every government action
14 As noted in Section III(D) above, this purported “risk’ is no different than for all inmates. All inmates getting DOT medications go the same med lines and the same UMCH/DOC privacy policies and protocols are maintained for all inmates. [DOC Facts ¶ 137]. 15 In Whalen, it was held that a statute which required collection by the state of medical data relating to prescription medications, did not violate any constitutional right.
31

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 32 of 38
which affects the confidentiality of medical records will impose a constitutionally cognizable burden on the right of privacy.” Borucki, 827 F.2d at 841.16
The circuit courts that have recognized this specific right for individuals in the community are not uniform as to whether the right exists in the prison setting. Compare Doe v. Wigginton, 21 F.3d 733, 740 (6th Cir. 1994) (disclosure of an inmate’s HIV positive status to prison guards did not violate right of privacy under Fourteenth Amendment) with Doe v. Delfie, 257 F.3d 309 (3rd Cir. 1991) (right of privacy encompassed HIV status). See also Moore v. Prevo, 379 F. App’x 425, 428 (6th Cir. 2000) (distinguishing Wigginton and holding that an inmate has a constitutionally protected interest in avoiding disclosure of HIV positive status of other inmates, subject to legitimate interests); Holden v. Michigan Department of Corrections, 2012 WL 2317538 (W.D. Mich. 2012) (rejecting claim that correction officer’s disclosure of HIV status of inmate violated constitutional rights, finding that Moore decision not controlling as Moore was unpublished and does not employ the proper analysis); Franklin v. McCaughtery, 110 Fed. App’x. 715 (7th Cir. 2004) (noting Seventh Circuit has never held that inmates enjoy constitutional right of privacy to medical information); Rollins v. Miller, 2012 WL 4974966 *2 (W.D.N.C. 2012 (noting in HIV privacy claim that neither Fourth Circuit nor Supreme Court has recognized constitutional rights of privacy of inmates’ medical information); Sherman v. Jones, 258 F. Supp. 2d 440, 444 (E.D. Va. 2003) (no fundamental constitutional right in personal medical information as to inmate claim of HIV disclosure).
16 Some Massachusetts federal district court decisions have recognized, in certain circumstances, the existence of a right to privacy in one’s medical information. See Doe v. Town of Plymouth, 825 F. Supp. 1102, 1107 (D. Mass. 1997) (non-disclosure of one’s HIV status); Marchand v. Town of Hamilton, 2009 Dist. LEXIS 92934 at *22-23 (D. Mass. 2009) right of privacy to nondisclosure of confidential mental health information for no legitimate purpose); Klein v. MHM Corr. Serv. Ins.,, 2010 WL 324529) (D. Mass. 2010) (assuming without deciding an inmate’s right of privacy as to medical information); Doe v. Magnuson, 2005 WL 758454 *4 (D. Me. 2005).
32

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 33 of 38
Even assuming that a constitutional privacy right in medical information exists, the precise contours of what that right would be in the prison context are unclear. As the Supreme Court has held, “imprisonment carries with it the circumscription of loss of many significant rights.” Hudson v. Palmer, 468 U.S. 517, 524 (1984). “[L]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” Pell v. Procunier, 417 U.S. 817, 822(1974) citing Price v. Johnson, 334 U.S. 266, 285 (1948). Just because a right is enjoyed by free citizens does not mean that it is likewise enjoyed by prisoners to the same extent as in the community. Indeed, it cannot exist to same extent inside of prison because such a right would be fundamentally incompatible with the continued surveillance of inmates. See Hudson, 468 U.S. at 524 (holding no Fourth Amendment proscription on unreasonable searches in prison). In Turner v. Safely, 482 U.S. 78 (1987), the Supreme Court held that a prisoner only “retains those constitutional rights that are not inconsistent with his status as a prisoner.” Id. at 95 (alterations omitted).
Moreover, as the Supreme Court has held, prison regulations may still impinge on a constitutional right so long as they are “reasonably related to legitimate penological interests.” Turner, 482 U.S. at 89.17 In light of this, the various courts that have recognized the constitutional right to privacy in a prison context have noted the limited nature of the right, because it is subject to legitimate restrictions related to the prison setting. See Wigginton, 21 F.3d at 740 (no constitutional privacy right barring disclosure of inmate’s HIV positive status to correction offi-
17 In Turner, the Court articulated four factors to be considered in evaluating the reasonableness of a prison regulation: (1) whether there is a “valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it;” (2) “whether there are alternative means of exercising the rights that remain open to prison inmates;” (3) “the impact of accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally;” and (4) “the absence of ready alternatives.” Id. at 89-90. The last factor is not a least restrictive alternative test; prison officials do not have to set up and then shoot down every conceivable alternative method of accommodating the claimant’s constitutional complaint. Id. at 90-91. Moreover, “[w]hen accommodation of an asserted right will have a significant ‘ripple effect’ on fellow inmates or prison staff, courts should be particularly deferential to the informed discretion of correctional officials.” Id. at 90.
33

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 34 of 38
cers); Doe v. Delie, 257 F.3d 309, 317 (3rd Cir. 2001) (right exists to extent not fundamentally inconsistent with incarceration – the right is subject to “substantial restrictions and limitations in order for correctional officers to achieve legitimate correctional goals and maintain institutional security”); Smith v. Hayman, 2012 WL 3024429 *4 (3rd Cir. 2012) (inmates right to privacy counter-balanced by penological interests and practicality of accommodation); Moore, 379 Fed.Appx. at 428 (“ We join our sister courts in finding that, as a matter of law, inmates have a Fourteenth Amendment privacy interest in guarding against disclosure of sensitive medical information from other inmates subject to legitimate penological interests.”); Powell v. Schriver, 175 F.3d 107 (2d Cir. 1999) (“prison officials can impinge on [the constitutional right to maintain the confidentiality of previously undisclosed medical information] only to the extent that their actions are ‘reasonably related to legitimate penological interests.’”). See also Franklin, 110 Fed. App’x at 719 (inmates do not enjoy greater privacy protections than ordinary citizens and that “some amount of sharing of medical information in areas it might be overheard … is commonplace”); Allah v. Hayman, 442 Fed. Appx. 632 (3rd Cir. 2011) (“we seriously doubt that merely conducting a TB skin test in view of other prisoners results in disclosure of confidential medical information sufficient to rise to level of constitutional violation”); Wilson v. Dovey, 369 Fed. App’x 844 (9th Cir. 2010) (no privacy claim under Fourteenth Amendment due to presence of nurses and correctional officers during inmates medical appointments); Simpson v. Joseph, 248 Fed. App’x 746 (7th Cir. 2007) (prison regulation requiring posting of guards during medical examinations not a violation of any privacy right in nondisclosure of medical condition as any such right is subject to the reasonable concerns related to incarceration). The Ninth Circuit has also acknowledged that the Turner standard applied to a case involving the disclosure of an inmate’s mental health records to psychologists who examined the inmate for civil commitment as
34

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 35 of 38
a sexually violent predator. Seaton v. Mayberg, 610 F.3d 530, 532 (9th Cir. 2010). The court wrote:
Loss of privacy is an inherent incident of confinement. A right of privacy in traditional Fourth Amendment terms is fundamentally incompatible with the close and continual surveillance of inmates and their cells required to ensure institutional security and internal order. We are satisfied that society would insist that the prisoner’s expectation of privacy always yield to what must be considered the paramount interest in institutional security. We join our sister circuits in holding that prisoners do not have a constitutionally protected expectation of privacy in prison treatment records when the state has a legitimate penological interest in access to them. Id. at 534. Thus, the Second, Third, Sixth and Ninth Circuits have all held that while inmates do retain a limited constitutional right to medical privacy, a prison regulation that impinges on this right “is valid if it is reasonably related to legitimate penological interests.” Turner, 482 U.S. at 89. Here, the DOT policy for HIV medications clearly passes the Turner reasonableness test as it is related to the legitimate goals of medication adherence, medical care and medication waste prevention. See Eskridge v. Fugua, 2001 WL 391324 *5 (requiring inmate to takes his medication on “watch take” did not constitute violation of any privacy right as related to reasonable penological/medical purpose); Moore v. Mabus, 976 F.2d 268, 271 (5th Cir. 1992) (rejecting constitutional challenge to practice of segregating HIV positive prisoners from rest of prison population); Harris v. Thignen, 941 F.2d 1494, 1521 (11th Cir. 1991) (same). As discussed more fully in Section III (B) above, DOT furthers the legitimate interests of increasing inmate adherence to their HIV medications, decreasing overall viral loads across the inmate population, and minimizing unnecessary costs. Indeed, as the viral load data demonstrates, DOT has led to a marked increase in the percentage of inmates with undetectable viral loads. Inmates have full
35

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 36 of 38
access to their HIV medications simply by attending the med line and the evidence of greater adherence and the higher percentage of inmates with undetectable viral loads is proof of this.
Further, as discussed in Section III(C), the plaintiffs have produced no evidence to demonstrate that anyone, inmate or staff, has actually ascertained their HIV status as a result of DOT. Nor have the plaintiffs provided any other facts to explain how the DOT med line medication distribution practice somehow constitutes an unconstitutional invasion of privacy. Plaintiffs have provided only speculation to support their proposition that by having to attend a daily med line to obtain their medications any constitutional privacy right is violated. Going to the med line does not constitute a disclosure of HIV status or personal medical information. The HIV medications are not the only medications under the DOT program; inmates go to the DOT med line to obtain medications for any number of reasons.18
Plaintiffs’ claim that DOT violates their right to privacy fails. There is no reasonable possibility of plaintiffs prevailing. As such, defendants are entitled to summary judgment on the privacy claim. VI. PLAINTIFFS CANNOT SHOW IRREPARABLE INJURY.
Not only have the plaintiffs failed to produce evidence upon which a reasonable fact finder could rely in support of their claims, but they have similarly failed to produce evidence to demonstrate irreparable injury which would result absent the injunctive relief requested. Plaintiffs have full access to their HIV medications. The only difference between KOP and DOT is the manner of distribution of the medications. Plaintiffs are fully able to attend the med lines and
18 Even if DOT were discontinued, inmates would still have to go to a KOP med lines to receive entire blister packs of their medications and then carry them back to their cells—a situation that arguably makes it more likely that others will discern their HIV status. Further, under the KOP policy, correctional staff has to have access to lists of KOP medications inmates are prescribed in order to conduct inspections and searches of inmates’ cells. Therefore, the alternative policy that plaintiffs seek—KOP for all inmates with HIV—arguably makes it far easier for others to discover an inmate’s HIV status.
36

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 37 of 38
the defendants have done nothing to hinder their access. When legitimate issues have arisen with the plaintiffs, or any other inmates, reasonable accommodations have been afforded. Further, there is also a grievance procedure in place where any issues can be addressed should they arise in the future. The plaintiffs also have regular access to both their infectious disease physician and case managers to address any such issues. Plaintiffs have produced no evidence of a trial-worthy nature to demonstrate irreparable injury. No order is necessary to ensure plaintiffs’ access to adequate medical care; the evidence show they already receive such and will continue to do so in the future. VI. NEITHER THE BALANCING OF HARMS NOR THE PUBLIC INTEREST
MANDATE THAT PLAINTIFFS BE ACCORDED THE INJUNCTIVE RELIEF REQUESTED. Similarly, neither any balancing of harms nor weighing of the public interest require the issuance of the injunctive relief requested. The plaintiffs have access to their medications simply by attending the med line and plaintiffs have produced no evidence of any meaningful impediment to attending the med line. As argued in Section III(D) above, if this Court were to accept plaintiffs’ argument, this would mean that DOT could not be used as to any medications in any DOC prison. Further, objective data demonstrates that since the policy change there is increased inmate adherence to HIV medication regimes, a greater percentage of HIV inmates on treatment have undetectable loads and there have also been reductions in waste and overall cost. The inconvenience of going to a med line, which is what plaintiffs’ claims ultimately boil down to, hardly outweighs the public interest in having efficient, cost effective medication administration that has been shown to increase overall statistical compliance through-out the DOC system.
37

Case 1:10­cv­12013­RWZ Document 88 Filed 12/14/12 Page 38 of 38
CONCLUSION For the aforementioned reasons, the defendants respectfully request this Court allow their motion for summary judgment.

Dated: December 14, 2012

Respectfully submitted,
NANCY ANKERS WHITE Special Assistant Attorney General
/s/ Sheryl F. Grant ____________________________________ Sheryl F. Grant, Counsel Department of Correction 70 Franklin Street, Suite 600 Boston, MA 02110-1300 (617) 727-3300, Ext. 140 BBO # 647071

CERTIFICATE OF SERVICE
I hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non registered participants on the NEF this date.

Date: December 14, 2012

/s/ Sheryl F. Grant ______________________________ Sheryl F. Grant, Counsel

38

 
 Case 1:10-cv-12013-RWZ Document 89 Filed 12/14/12 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

RICHARD NUNES, CARL COE, JOHN DOE, PETER POE, and RICHARD ROE, on behalf of themselves and all others similarly situated, Plaintiffs,
v.
UMASS CORRECTIONAL HEALTH, MASSACHUSETTS DEPARTMENT OF CORRECTION, LEONARD MCGUIRE, WARREN FERGUSON, JUDITH STEINBERG, THOMAS GROBLEWSKI, and PETER HEFFERNAN, Defendants.

) ) ) ) ) ) ) CIVIL ACTION ) NO: 1:10-CV-12013-RWZ ) ) ) ) ) ) )

DEFENDANTS, UMASS CORRECTIONAL HEALTH, LEONARD MCGUIRE, WARREN FERGUSON,
JUDITH STEINBERG, AND THOMAS GROBLEWSKI’S MOTION FOR SUMMARY JUDGMENT

Pursuant to Rule 56 of the Federal Rules of Civil Procedure defendants, UMass

Correctional Health, Leonard McGuire, Warren Ferguson, Judith Steinberg and Thomas

Groblewski (collectively the “UMCH defendants”) hereby move for the entry of summary

judgment as to all claims of plaintiffs’ Complaint.

As set forth in the accompanying Consolidated Memorandum of Law and Statement of Undisputed Material Facts,1 UMCH defendants are entitled to judgment as a matter of law as to

plaintiffs’ request for injunctive/declaratory relief seeking to invalidate a certain medication distribution policy.2 The policy change as to the particular medication distribution within the

Massachusetts Department of Corrections from a system of “Keep on Person” (“KOP”) to

1 The Memorandum of Law and Statement of Undisputed Material Facts are being filed under seal pursuant to this Court’s Protective Order (April 8, 2011) and the Defendants’ Joint Motion to File Under Seal Summary Judgment Materials which motion was filed with the court on December 14, 2012. 2 Plaintiffs do not allege or make any claim for monetary damages only injunctive/declaratory relief.
1
1393426v1

Case 1:10-cv-12013-RWZ Document 89 Filed 12/14/12 Page 2 of 2

“Directly Observed Therapy” (“DOT”) does not infringe upon any constitutional, statutory or

privacy right of plaintiff inmates. Requiring the plaintiff inmates (among others) to obtain their

medications on a daily basis in a medication line does not constitute cruel and unusual

punishment or otherwise constitute discrimination, an unconstitutional privacy violation, or

transgression of the equal protection clause. Defendants are entitled to judgment as a matter of

law.

WHEREFORE, defendants, UMass Correctional Health, Leonard McGuire, Warren

Ferguson, Judith Steinberg and Thomas Groblewski, respectfully request that their Motion for

Summary Judgment be GRANTED.

The Defendants, UMASS CORRECTIONAL HEALTH, LEONARD MCGUIRE, WARREN FERGUSON, JUDITH STEINBERG, AND THOMAS GROBLEWSKI,

I hereby certify that this document(s) filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non registered participants on December 14, 2012
/s/ Tory A. Weigand __________________________________ Tory A. Weigand

By their attorneys,
/s/ Tory A. Weigand _____________________________________ James A. Bello, BBO #633550 jbello@morrisonmahoney.com Tory A. Weigand, BBO #548553 tweigand@morrisonmahoney.com MORRISON MAHONEY LLP 250 Summer Street Boston, MA 02210 (617) 439-7500

2
1393426v1

 
 Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 1 of 39

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

RICHARD NUNES, CARL COE, JOHN DOE, )

PETER POE, and RICHARD ROE,

)

on behalf of themselves and all others similarly )

situated,

)

)

Plaintiffs,

)

)

v.

)

)

UMASS CORRECTIONAL HEALTH,

)

MASSACHUSETTS DEPARTMENT OF

)

CORRECTION, LEONARD MCGUIRE,

)

WARREN FERGUSON, JUDITH STEINBERG, )

THOMAS GROBLEWSKI, and PETER

)

HEFFERNAN,

)

)

Defendants.

)

)

LEAVE TO FILE EXCESS PAGES GRANTED )

ON FEBRUARY 14, 2013

)

CIVIL ACTION NO.1:10-cv-12013-RWZ

PLAINTIFFS’ CONSOLIDATED MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
I. INTRODUCTION Defendants’ removal of all HIV medications from the Keep On Person (KOP) program
is a discriminatory and harmful policy, one initiated and perpetuated on the basis of flawed and unsupportive data, along with Defendants’ resistance to facing the reality that while Plaintiffs and others like them were responsible with their medication, staff were not responsible in following their own policies. The facts more than sufficiently support Plaintiffs’ claims, and summary judgment should be denied. II. BACKGROUND
HIV is a life-threatening viral infection which leads to destruction of the body’s immune system. Pls.’ SMF ¶ 1-2. Lives are now saved with Highly Active Antiretroviral Therapy
1

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 2 of 39
(HAART), which suppresses the patient’s viral load, but if such therapy is not taken consistently, the virus may return, promoting rapid disease progression, opportunistic infections, systemic inflammation that leads to cardiovascular complications, and medication resistance, which makes the virus more difficult to treat. Id. ¶¶ 3-8.
HIV treatment for prisoners in the Department of Correction has included HAART since the mid-1990s and such medications have always been distributed as KOP medications. Id. ¶ 10. HIV specialists from Shattuck Hospital hold clinics at DOC facilities to treat the disease, while infectious disease case managers (ID case managers) employed by UMass Correctional Health follow the HIV patients closely and ensure that their blood work and other treatment is carried out. Id. ¶¶ 11-13. This work includes adherence to HIV medications, and these providers employed several tools to ensure patient adherence. The ID case managers reviewed patient Medication Administration Records (MARs), conducted pill counts at patient appointments, and received notice from nursing staff of potential problems with adherence. In addition, UMCH policies called for daily compliance verification of all KOP medications through the MAR, monthly KOP audits of selected prisoners, denial of early medication refills without justification, and monitoring of each patient’s viral load and CD4 count. HIV-positive prisoners are some of the most closely monitored prisoners in the DOC. Id. ¶¶ 14-25.
The standard of care for HIV treatment includes an individualized plan for medication adherence, and the providers counseled prisoners about compliance. The KOP policy authorized providers to suspend KOP medications if there were problems with adherence. Id. ¶¶ 9, 17-18. By and large, however, patients tended to be adherent to their medications; sentenced state prisoners are generally motivated to keep up with treatment and so as not to die in prison. Each of the Plaintiffs was adherent to his HIV medications under the KOP program. Id. ¶ 26-28.
2

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 3 of 39
In 2008, an underfunded medical contract between the DOC and UMCH, and then state budget cuts, forced Defendants to find ways to reduce costs. Id. ¶ 47-51. Medications did not come cheaply to Defendants. By way of an outside section to the annual budget, Defendants must obtain their medications through another agency, the State Office of Pharmacy Services (SOPS). Id. ¶¶ 29-31. SOPS in turn contracts with one private entity to negotiate drug prices, another entity to act as the wholesaler, and a third entity to perform the pharmacy services for DOC and other state institutions. The prices paid for drugs obtained through SOPS are little different than those offered by other pharmacy vendors, but administrative costs are higher. Id. ¶¶ 32-38.
HIV medications come at a particularly high cost to Defendants. Because of the mandated affiliation with SOPS, Defendants cannot obtain discounted HIV medications through the federal 340B drug pricing program, a program which could save them up to one million dollars per year. A separate federal program, the HIV Drug Assistance Program, pays for the medications for some populations in Massachusetts, including county prisoners, but not DOC prisoners. Id. ¶¶ 39-46.
Within this environment, a proposal emerged to remove HIV medications from the KOP program. SOPS operates a reclaim and reuse program, under which medications that are returned unused may be repackaged and redistributed, so long as they have not been in the possession of the patient. SOPS proposed that by removing all HIV medications from the KOP program, all returned HIV medications would be reclaimable. UMCH advised the HIV specialists and ID case managers of the idea, citing the rationale of cost savings. SOPS also presented Defendants with a table showing figures for the value of returned HIV medications, as well as the subset of those medications that were reclaimed. Id. ¶¶ 52-60.
3

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 4 of 39
Thus began a pattern of UMCH choosing to see what it wanted to see. The SOPS table showed that a number of HIV medications were already reclaimed under the KOP program. It did not show why these medications were being returned. That information was knowable – returned medications could be traced to the patient – but UMCH took no interest in analyzing the source of the returns. The goal was not to address or reduce medication returns, but to maximize potential savings – to find a figure that could be added to a list of other changes that would meet the required budget cuts being imposed. Id. ¶¶ 61-66. Defendants knew why medications were returned. Returns are the result of prisoner discharges from DOC custody, transfers to other DOC institutions, duplicate refill orders, and therapy changes (if the previous medication supply is not finished). Id. ¶ 67.
The HIV specialists ordered that old medications be finished before new ones were started, so as to avoid medication returns. Id. ¶ 68. Discharges should not result in returned medications, because by policy the medications should go with the prisoners being released, but it was known that pretrial prisoners and temporary detox commitments in the DOC, who could be released without warning, led to such returns. Id. ¶ 70. Transferred prisoners were supposed to take their medications with them to the next facility, but Defendants were aware that this did not always happen. The sending facility would return the old medications, while the receiving facility had to order new medications early for the newly arrived prisoner. Id. ¶¶ 71-72. Duplicate orders were a known phenomenon, but such medications could be reclaimed under the KOP program, since they had not reached the patient. Id. ¶ 69.
When the ID case managers volunteered to track the returned HIV medications to ascertain the sources of waste, they found that returns were attributable to pretrial prisoners and to transfers of new prisoners within DOC. Id. ¶¶ 79-81. UMCH pushed forward with the
4

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 5 of 39
proposal to end all KOP HIV medications anyway, suspending the change briefly when the HIV specialists raised concerns about the impact on patients, but ultimately proceeding with the original proposal. Id. ¶¶ 76-78, 82-120. They purported to study several issues first, but Defendants largely do not recall the studies or their results. Id. ¶¶ 91-115.
When HIV medications were removed from the KOP program in February 2009, Defendants’ written statements rationalizing the change discussed patient adherence and benefits; only later and begrudgingly did Defendants mention cost reduction. Id. ¶¶ 121-126. They much preferred to cite certain analyses they had performed – studies which were hopelessly flawed. An analysis of HIV patients who already went to med line, for other medications, was so cursory that it overstated this phenomenon. Id. ¶¶ 127-137. A purported “adherence analysis” cherry-picked 19 prisoners (out of over 200 being treated), who all had detectable viral loads; the report studied a small sample of pharmacy claims (refill orders) of dubious reliability, and declared patient adherence a problem for all HIV patients. Id. ¶¶ 138-144.
The reliance on faulty analysis has continued unabated since that time. Regular adherence analyses are still performed, using the same pharmacy claims data for all HIV patients on HAART. But the analyses show no statistically significant improvement in adherence since the policy change. In fact, they show a persistent 30% rate of late medication refills, with half of the late refills extending over a week. Such numbers demonstrate significant problems with the medication line administration, creating a significant potential for patient harm in the form of a detectable viral load and its negative effects. Id. ¶¶ 145-154. Defendants also point to overall patient viral loads and claim that mandatory med line has been a success, but a closer assessment reveals that viral loads changed very little from the period just before the policy change to the period just after. Defendants cite to improved overall viral loads in 2012, three years later, but
5

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 6 of 39
they cannot reliably attribute those numbers to the removal of HIV medications from the KOP program. Id. ¶¶ 165-167.
Although UMCH resisted acknowledging to prisoners that this policy was a cost-saving measure, it has been quick to trumpet the purported savings to outside parties, with an eye to attracting more business. Id. ¶¶ 168-189. The data on savings from reclaimed medications is misleading, however. It is overinclusive, failing to acknowledge that many HIV medications were also reclaimed under the KOP program and failing to note that savings from transferred prisoners are a mirage, since those prisoners will have to obtain early refills at the new facility. Id. ¶¶ 155-164. The reports do not acknowledge that medications for discharged prisoners should not be returned and reclaimed, but given to the prisoner. Id. ¶ 162.
There is little incentive to provide more accurate numbers. An inflated cost savings makes budgeting easier, and makes presentations to prospective clients more appealing. See id. ¶¶ 66, 181, 183-188. The harm brought by this policy falls not only on Plaintiffs and other HIVpositive prisoners in the DOC, but on prisoners elsewhere, as UMCH pitches this policy change as a proven good, notwithstanding the questionable methods and results of its analyses.
Still, Plaintiffs and prisoners like them have been harmed the most. Many of them suffer side effects, most notably the high number of prisoners taking Efavirenz, in Atripla or as part of another regiment. The side effects from Efavirenz are significant enough that bedtime administration is indicated, yet bedtime administration is impossible with mandatory med line. Two Plaintiffs suffered the side effects every night, until their regimens were ultimately changed. Changing regimens to accommodate a med line requirement is not defensible. Id. ¶¶ 204-211, 248.
6

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 7 of 39
Plaintiffs, who were adherent on KOP medications, are now subjected to a med line process that increases the likelihood of missed doses. They have experienced such omissions on multiple occasions, and the HIV providers corroborate these reports. Incomplete doses have also been administered. These interruptions increase the risk of viral loads rising and medication resistance developing. Id. ¶¶ 190-203, 249-263. The med line process also leads inevitably to unwanted disclosures of a prisoner’s HIV-positive status, and the evidence reflects multiple such episodes. Id. ¶¶ 212-227.
The decision to take KOP medications away from all HIV patients ignores the individual treatment histories of Plaintiffs and other prisoners like them. This action was taken only against HIV-positive prisoners, while Defendants simultaneously seek to expand the role of the KOP program in other areas. Id. ¶¶ 234-247. The policy change infantilizes Plaintiffs and takes away their investment in their own care. Id. ¶¶ 228-233. Whatever the goals sought to be furthered by this blanket policy, they could be furthered under the KOP program with its individualized, caseby-case treatment of HIV-positive prisoners. III. ARGUMENT A. Equal Protection Claim (Count II).
Plaintiffs do not oppose summary judgment on Count II of the Complaint, claiming violation of their Equal Protection rights under the Fourteenth Amendment to the Constitution. B. Summary Judgment Standard.
In order to prevail on summary judgment, the moving party must show that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56. The court must construe the evidence in the light most favorable to the non-moving party and make all reasonable inferences in that party's favor. Flowers v. Fiore, 359
7

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 8 of 39
F.3d 24, 29 (1st Cir.2004). The function of the court is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
While the Prison Litigation Reform Act (PLRA) limits the scope of any requested relief to “the least intrusive means necessary to correct the violation of the Federal right,” 18 U.S.C. § 3626, this provision is directed at the scope of the prospective relief to be fashioned by the court, not the antecedent determination about whether relief ought to be granted. See 18 U.S.C. § 3626(a)(1); cf. Disability Law Center v. Mass. Dept. of Correction, No. 07-10463-MLW, 2012 WL1237760, *11 (D. Mass. 2012); Henderson v. Thomas, No. 2:11cv224-MHT, 2012 WL 6681773, *39 (M.D.Ala. Dec. 21, 2012) (deciding liability separately, before addressing scope of relief). C. Plaintiffs Properly Exhausted Their Administrative Remedies.
Defendants contend that Plaintiffs have failed to exhaust with regard to certain claims. As failure to exhaust is an affirmative defense under the PLRA, Defendants have the burden to prove that contention. Jones v. Bock, 549 U.S. 199, 216 (2007); Cruz Berríos v. Gonzáles– Roserio, 630 F.3d 7, 11 (1st Cir.2010). Dismissal of a claim for failure to exhaust is without prejudice. Tolbert v. Clarke, 685 F.Supp.2d 244, 250 (D.Mass. 2010). Accordingly, if any Plaintiffs are deemed to have failed to exhaust, they will re-file their claims challenging Defendants’ policy, after exhausting. See Gartrell v. Ashcroft, 191 F.Supp.2d 23, 24-25 (D.D.C. 2002) (decision on re-filed challenge to prison grooming policy, after first action dismissed for failure to exhaust).
The PLRA’s requirement that prisoners exhaust administrative remedies is intended to afford correctional officials a fair opportunity to address complaints internally before allowing prisoners to initiate litigation, while reducing the quantity and improving the quality of lawsuits
8

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 9 of 39
filed. Woodford v. Ngo, 548 U.S. 81, 93-94 (2006), citing Porter v. Nussle, 534 U.S. 516, 524-25 (2002). The requirement is designed to deal with parties who do not want to exhaust. Woodford, 548 U.S. at 90. Nevertheless, the primary purpose of requiring exhaustion is not to put officials on notice that they may be sued, but to alert them of problems. Mallory v. Marshall, 659 F.Supp.2d 231, 238 (D.Mass.2009), citing Jones, 549 U.S. at 219.
Defendants first argue that Plaintiffs, with the exception of Mr. Nunes, failed to make the requisite requests for accommodations to proceed on ADA and Rehabilitation Act claims. They are misguided. “[I]t is the prison’s requirement, and not the PLRA, that define the boundaries of the proper exhaustion.” Jones, 549 U.S. at 218. Here, the policy governing requests for reasonable accommodations, 103 DOC 207.04, specifies that prisoner requests “may be initiated in either of two ways: (a) by a request to or from medical staff for a medically prescribed accommodation, or (b) by completion of a Request for Reasonable Accommodation of Special Need(s) form.” The policy sets forth no specific language or content that must be included in the request. Defs.’ Ex. 81.
Each Plaintiff submitted requests to medical staff concerning the policy change excluding them from the KOP program, via the medical grievance process. To the extent that 103 DOC 207 needed to be followed, it was. It is by no means clear that Plaintiffs Coe, Doe, Poe, and Roe are even subject to this policy. While they bring ADA and Rehabilitation Act claims, they claim discrimination, not a failure to accommodate; 103 DOC 207 does not, by its terms, apply to all claims of discrimination, but only to requests for a reasonable accommodation. Defs.’ Ex. 81.
Defendants next contend that the Plaintiffs’ grievance submissions were not broad enough to encompass all of the legal claims that they have asserted in the Complaint. Defendants overstate the terms of the exhaustion requirement. In general, prisoners must
9

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 10 of 39
“provide enough information about the conduct of which they complain to allow prison officials to take appropriate responsive measures.” Beltran v. O'Mara, 405 F.Supp.2d 140, 151 (D.N.H. 2005) (quoting Johnson v. Testman, 380 F.3d 691, 697 (2d Cir.2004)). They “need not lay out the facts, articulate legal theories, or demand particular relief,” unless legitimate prison rules require them. Beltran, 405 F.Supp.2d at 151 (quoting Strong v. David, 297 F.3d 646, 650 (7th Cir.2002)). No grievance process “may demand the prisoner specify each remedy later sought in litigation.” Strong v. David, 297 F.3d 646, 649-50 (7th Cir. 2002). Proper exhaustion means compliance with the applicable policy, but the medical grievance policy, UMCH Policy 12.00, requires no particular content, no magic words. Defs.’ Ex. 83. The fields in the medical grievance form appended to the policy are open-ended, calling for a “Summary of Grievance” and “Remedy Requested.” Id.
Each Plaintiff grieved the removal of HIV medications from KOP and unfortunate results stemming from that policy change. Plaintiffs were not obliged by UMCH Policy 12.00 or otherwise to spell out every possible legal wrong. See Beltran, 405 F.Supp.2d at 151; Lewis v. Washington, 197 F.R.D. 611, 614 (N.D.Ill.2000) (prisoners complaining about various aspects of the conditions in their housing unit need only have grieved their placement in the unit, not each alleged unconstitutional condition present; “[o]therwise the defendants could obstruct legal remedies to unconstitutional actions by subdividing the grievances....”); Aiello v. Litscher, 104 F.Supp.2d 1068, 1074-75 (W.D.Wis. 2000) (when inmates have filed a grievance regarding a prison policy, they need not file grievances regarding subsequent incidents in which the policy is applied).
There is no question of whether Defendants were on notice of complaints about the policy change. Not only did Plaintiffs present concerns in line with the claims asserted in the
10

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 11 of 39
Complaint, so did the infectious disease specialists and UMCH staff. Defendants responded by minimizing and discarding these concerns, along with the grievances. They did not conduct interviews with any of the Plaintiffs to gain additional information regarding their grievances, though they could have done so.1 Pls.’ Ex. 12 at ¶ 3; Pls.’ Ex. 13 at ¶ 4; Pls.’ Ex. 14 at ¶ 14; Pls.’ Ex. 15 at ¶ 5; Pls.’ Ex. 16 at ¶ 4. In fact, they instructed some Plaintiffs that they wished to hear no more about these issues. See Defs.’ Ex. 98; Defs.’ Ex. 105. They should not now be heard to claim that these grievances were somehow lacking. Plaintiffs address their individual efforts below.
1. Carl Coe. Defendants inaccurately contend that Carl Coe failed to exhaust administrative remedies concerning a right to privacy claim. Mr. Coe filed a medical grievance on February 9, 2009 concerning the increased side effects, interruptions in treatment, and barriers to medication access created by the removal of HIV medications from the KOP program. Defs.’ Ex. 97. He asked that his meds be reinstated as KOP and suggested that health care providers should determine eligibility for KOP on a case-by-case basis. Id. His grievance was denied by HSA Kevin Sabourin who indicated that the Pharmacy & Therapeutics Committee determined DOT to be “the best approach for all concerned” and that there were no exceptions. Id. In his grievance dated August 3, 2009, he raised similar complaints, also pointing out that the policy change appeared prejudicial, targeting only HIV-positive individuals. Defs.’ Ex. 98. This grievance also documented two additional problems: (1) his PM snack was discontinued, further exacerbating the side effects caused by having to take his HIV medication hours before bedtime; and (2) he had missed getting his HIV medication twice because med line had not been announced in the unit. Mr. Coe requested reinstatement of his PM snack and of KOP for his
1 UMCH Policy 12.00(3)(f) indicates that, upon review of a grievance, a face to face interviews may be conducted.
11

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 12 of 39
HIV medications. Id. In a response to the grievance dated August 7, 2009, Mr. Coe was informed by HSA Russell Phelps that the issues he raised were non-grievable as “matters of medical judgment” and “[t]herefore, administration may not interfere with clinical decisions.” Mr. Phelps’ response also stated: “The issue of KOP HIV medication has been previously addressed and is a duplicative grievance. I will not address or respond to duplicative grievances.” Id. Mr. Coe’s subsequent appeals were denied. Id. In response to his second level appeal, Assistant Deputy Commissioner of Clinical Services Terre Marshall affirmed that HIV medications are not available KOP and stated that her decision denying his grievance appeal “is final.” Id.
In his grievances, Mr. Coe sufficiently raised concerns about the removal of HIV medications from KOP, providing Defendants enough information to allow them to take appropriate investigative and responsive measures. See Beltran, 405 F.Supp.2d at 151. Moreover, in light of the response to his August 3, 2009 grievance, Defendants cannot now claim that Mr. Coe failed to grieve implications of the policy change on his right to privacy. Mr. Coe was explicitly instructed that this matter was not grievable, per UMCH Policy 12.00(3)(c) and 103 DOC 610.01(2). That ruling rendered administrative remedies no longer available. Mr. Coe exhausted the administrative remedies available to him, challenging the policy change.
2. John Doe. Defendants acknowledge that Mr. Doe completed the grievance process for an April 7, 2009 grievance concerning a breach of privacy by a nurse at med line. Defs.’ Ex.103. Defendants then contend that he only exhausted administrative remedies for the right to privacy claim. This is incorrect.
12

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 13 of 39
Mr. Doe filed a medical grievance on February 13, 2009 concerning the fact that his medication was not available when he attended med line, explaining that he “went without meds again.” He expressed concern about missing doses because his infectious disease clinicians “tell me that Im at the end of my med’s cause there is nothing else for me to take.” Defs.’ Ex.101. HSA Donna Jurdak responded to Mr. Doe’s grievance late, on April 10, 2009, indicating only that UMCH was tracking and addressing “issues with the pharmacy and medication delivery” as they occurred. Id. Dissatisfied with this response, Mr. Doe appealed on April 17, 2009, asking to have his HIV medications returned to KOP while asserting that the policy change was enacted despite longstanding problems of this nature with med line. Id. After receiving no response to the appeal, Mr. Doe filed a second level appeal on June 5, 2009.2 Pls.’ Ex. 17. Mr. Doe had not received Dyana Nickl’s response dated June 3, 2009 denying his first level appeal. Pls. Ex. 14 at ¶ 12. Defendants did not respond to the second level appeal Mr. Doe filed. Defendants’ lack of response was a failure to comply with the grievance procedure. At that point, Mr. Doe exhausted all available administrative remedies. See Braxton v. Ross, 2010 WL 1713614, *1 (D.Mass. 2010) (deeming prisoner to have exhausted administrative remedies when prison failed to respond to his grievance, giving him “nothing from which to appeal”).
There were more. On May 20, 2009, Mr. Doe filed three grievances regarding events of that day. Defs.’ Ex. 104. Mr. Doe had attempted to get his medication at the 12:30pm med line because was unable to take it on an empty stomach at 8:00am, but his request was denied. He then overheard a nurse speaking to a correctional officer about him and his medication near other prisoners before he was sent back to his unit. He requested the following relief in his three
2 The second level appeal to this grievance was filed simultaneously with the second level appeal for Mr. Doe’s grievance from April 7, 2009 regarding his privacy concerns. Both appeals were mailed directly to Terre Marshall by Attorney Joel Thompson with a letter dated June 8, 2009. Pls.’ Ex. 17. Defendants failed to respond to the second level appeal to the April 7th grievance as well.
13

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 14 of 39
grievances: (1) to change his med line times to 12:30pm and the night med line or to return his medications to KOP; (2) to allow prisoners who miss med line to get their HIV medications at the next available line; and (3) to retrain the nurse who disclosed his confidential medical information. Id. He received no responses.
Instead, Mr. Doe received a notification from Dyana Nickl dated July 21, 2009. Defs.’ Ex. 105. Mr. Doe had been deemed “an abuser of the grievance process” and his ability to submit medical grievances was suspended until August 21, 2009. Defs.’ Ex. 105. The reasons for the suspension were: (1) “[f]iling five or more grievances in a week or twenty or more grievances in any 180 consecutive days”; (2) “[c]ontinuing to file grievances after an issue has been resolved through all levels of the grievance and appeals process”; and (3) “[i]ntentionally disregarding the proper grievance and appeal procedure resulting in disruption of the normal business of UMass Correctional Health.” Id.
As his problems with missing doses continued, Mr. Doe filed a grievance on July 1, 2010 stating that he has missed doses of his HIV medication at least once a month since their removal from the KOP program. Defs.’ Ex. 106. His grievance was denied in a response dated 7/12/10. Mr. Doe, with the assistance of counsel, mailed his appeal to DOC Health Services Division. Id. He did not receive a response.
Mr. Doe repeatedly grieved the fact that the removal of HIV medications from KOP had deleterious effects, providing Defendants enough information to allow them to take appropriate investigative and responsive measures. See Beltran, 405 F.Supp.2d at 151. Furthermore, after failing to respond to Mr. Doe’s grievances and appeals and prohibiting him from submitting additional grievances, Defendants cannot now legitimately claim that Mr. Doe failed to exhaust
14

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 15 of 39
administrative remedies as to each claim in the Complaint. See Braxton, 2010 WL 1713614 at *1.
3. Peter Poe. The Correctional Defendants do not challenge the fact that Mr. Poe completed the medical grievance process as to every claim; the Medical Defendants do, incorrectly. Mr. Poe filed a medical grievance on May 17, 2009 indicating that the removal of HIV medications from the KOP program impedes his access causing missed doses, causes him to miss work, creates privacy problems, and violates his rights under the 8th and 14th amendments, the ADA and the Rehabilitation Act, among other things. Defs.’ 109. He requested that HIV medications be distributed as KOP. Id. Mr. Poe’s grievance was denied by HSA Donna Jurdak in a response dated June 2, 2009. Mr. Poe filed a timely appeal, which was denied by Diana Nickl in a response dated August 31, 2009. Id. He filed a second level appeal on September 21, 2009; he received a response dated September 29, 2009 denying his appeal. Id. Mr. Poe filed another grievance on March 9, 2010 reporting that he was turned away from the work call morning med line by a correctional officer and, as a result of having to go to work, missed taking his HIV medications on fourteen dates listed in the grievance. Defs.’ Ex. 111. He indicated that he had never missed a dose when he had KOP and asked that he be allowed to get his medications in the afternoon line if he is not able to get them in the morning. Mr. Poe received a response dated March 11, 2010 indicating that his was not a grievable issue but that, if he was told to leave the 8 a.m. med line, he could come back to the noon med line. Id. Mr. Poe appealed on March 15, 2010 and received a final decision dated April 2, 2010 from Terre Marshall.
15

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 16 of 39
Mr. Poe clearly exhausted administrative remedies as to each claim. Indeed, he far exceeded any grievance policy requirements by explicitly making reference to legal theories later advanced in the Complaint.3
4. Richard Roe. Defendants contend that Richard Roe only properly exhausted administrative remedies concerning a right to privacy claim as well. Mr. Roe filed a medical grievance on May 11, 2009 citing the policy change and requesting that KOP for his life sustaining HIV medication be returned to avoid invasions of privacy at med line. Defs.’ Ex. 113. In response to his grievance and his two appeals, Mr. Roe was informed that HIV medication is no longer available KOP and must be taken at med line. Id. Terre Marshall’s response to his second level appeal also stated that UMCH is offering medical services as clinically indicated and her decision denying his grievance appeal is final. Id. Mr. Roe sufficiently raised concerns that the removal of HIV medications from the KOP program was problematic. He need not have stated every way in which it was problematic, nor every potential cause of action that might arise from the policy. See Beltran, 405 F.Supp.2d at 151. He gave sufficient information to allow Defendants to investigate or to take responsive measures. Id. Instead, the responses that he received from Defendants upholding the propriety of the policy change were cursory and clearly conveyed that filing more grievances on this subject would be fruitless.
3 Mr. Poe also sought relief through the DOC grievance process. Defs.’ Ex.108. Specifically, Mr. Poe filed DOC Grievance No.40597 on May 16, 2009 explaining that, since HIV medications were removed from the KOP program, he missed doses, missed work waiting in the medication line, and had his HIV status exposed to the general population in violation of the 14th and 8th amendments as well as the ADA and Rehabilitation Act. He noted that he was submitting the DOC grievance because his infectious disease clinician had stated that his preference was to deliver HIV medication as KOP. Mr. Poe requested that KOP status be restored immediately for HIV medications. Id. Mr. Poe’s grievance and appeal were denied as medical decisions non-grievable through the DOC process. Id.
16

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 17 of 39
D. The ADA’s Comprehensive Remedial Scheme Does Not Bar Plaintiffs’ §1983 Claims. The Correctional Defendants contend that the ADA’s comprehensive remedial scheme
precludes any of Plaintiffs’ claims under 42 U.S.C. § 1983. The law does not support this contention. Courts have held that Section 1983 claims for violation of the ADA are precluded. See Meara v. Bennett, 27 F.Supp.2d 288, 291-92 (D.Mass. 1998) (dismissing plaintiff’s Section 1983 claim of employment discrimination on the basis of disability as precluded by her identical claim under the ADA); Murphy v. Magnusson, 1999 WL 1995203, *3 (D.Me. 1999) (“Section 1983 is not available when the only rights alleged to have been violated were created by these two statutes.”); Alsbrook v. City of Maumelle, 184 F.3d 999, 1010-11 (8th Cir. 1999) (ADA’s detailed remedial scheme barred plaintiff from maintaining a Section 1983 action against defendants in their individual capacities for violations of the ADA); Holbrook v. City of Alpharetta, 112 F.3d 1522, 1531 (11th Cir.1997) (plaintiff may not maintain a Section 1983 claim if the only alleged deprivation is of employee's rights created by the ADA).
In this case, Plaintiffs assert their ADA claims under the ADA, not under Section 1983. Plaintiffs do also claim, pursuant to Section 1983, that Defendants’ policies, practices, and acts violate the privacy rights of prisoners with HIV and their right to be free from cruel and unusual punishment, as protected by the Fourteenth Amendment and Eighth Amendment, respectively. These claims are not barred.4 E. Defendants Are Not Entitled to Judgment as a Matter of Law on the Claims Under the
ADA and Rehabilitation Act. Defendants’ blanket exclusion of HIV medications from the KOP program represents
discrimination in violation of the ADA and the Rehabilitation Act. Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded
4 As Plaintiffs are only seeking declaratory and injunctive relief, there can be no implication that Plaintiffs are using Section 1983 to circumvent the ADA, in order to seek individual liability against Defendants.
17

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 18 of 39
from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132. Prisons are public entities under the statute. See Pennsylvania Dept. of Corrections v. Yeskey, 524 U.S. 206, 210 (1998).
To prevail on a Title II claim, “a plaintiff must establish: (1) that he is a qualified individual with a disability; (2) that he was either excluded from participation in or denied the benefits of some public entity’s services, programs, or activities or was otherwise discriminated against; and (3) that such exclusion, denial of benefits, or discrimination was by reason of the plaintiff’s disability.” Parker v. Universidad de Puerto Rico, 225 F.3d 1, 5 (1st Cir. 2000); Bibbo v. Massachusetts Dept. of Correction, No. 08-cv-10746-RWZ, 2010 WL 2991668, *1 (D.Mass. July 26, 2010). Liability standards for the Rehabilitation Act are the same as those for Title II of the ADA. Quiles-Quiles v. Henderson, 439 F.3d 1, 5 (1st Cir. 2006).
Defendants question whether HIV is a disability under the ADA, but Congress has provided the answer. HIV is specifically listed as a physical impairment under the Act’s implementing regulations. 28 C.F.R. § 35.104 (“physical impairment” includes HIV disease, whether symptomatic or not). The ADA Amendments Act of 2008, Pub. L. 110-325, rejected a narrow definition of disability and left no doubt as to the ADA’s broad protection. The Act “clarifies that ‘major life activities’ includes ‘the operation of a major bodily function, including ...functions of the immune system.’” Henderson v. Thomas, 2012 WL 6681773 at *11 n. 15 (citing 42 U.S.C. § 12102(2)(B)). HIV is a disability under the ADA, since it “critically impacts the immune system.” Id.
The KOP program is a program or service, subject to Title II. Defendants refer to it as a program, Defs.’ Ex. 31 (“Keep On Person (KOP) Medication Distribution Program”), and the
18

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 19 of 39
provision of prescription drugs for HIV treatment has previously been found to be a program or service. McNally v. Prison Health Services, 46 F.Supp.2d 49, 58 (D.Me. 1999). Plaintiffs are otherwise qualified for the KOP program. They were successful participants in the program for years, taking their HIV medications through the program. Pls.’ SMF ¶ 28, 234. Plaintiffs and all HIV-positive prisoners are excluded from the KOP program regardless of circumstance. It matters not which HIV medications they take, or what their individual histories are, i.e. whether they have proven themselves capable of taking their own medications under the KOP program.
Such discrimination resembles that of Prison Health Services in McNally, which had “one policy for detainees taking HIV medication and one for detainees on medication for maladies other than HIV.” McNally, 46 F.Supp.2d at 58-59. In that case, a new detainee reporting his HIV-positive status and medication regimen was denied those medications, even though medications for other conditions were provided to new detainees. The District Court denied summary judgment, finding that a jury could infer that PHS policy denied HIV-positive prisoners access to its prescription drug program. Id. at 59. Similarly, the facts here demonstrate that Defendants took the KOP program away only from the HIV-positive prisoners. Defendants maintain a blanket policy of excluding all HIV-positive prisoners from the KOP program, regardless of their individual circumstances. See Henderson, 2012 WL 6681773 at *18. “That policy denies plaintiffs the individualized determinations to which they are entitled under the ADA.” Id.
Defendants declare that KOP medications are a privilege, not a right, and that individual prisoners may be excluded from the KOP program. They miss the point. These HIV patients do not challenge Defendants’ ability to apply the KOP program’s criteria to individual patients. What they challenge is the decision to take an entire category of patients with KOP medications
19

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 20 of 39
– those who are HIV-positive – and remove them from the program, without any individualized assessment of their qualifications for the program, including their history in the program. Plaintiffs seek only not to be automatically excluded from the KOP program “on account of their HIV status.” See Henderson, 2012 WL 6681773 at *22 n. 30. To the extent that Defendants claim they excluded only the HIV medications, not the HIV patients, this is not a principled distinction. The ADA prohibits them from imposing eligibility criteria that tend to screen out a class of individuals with disabilities from fully and equally enjoying a service, program, or activity. 28 C.F.R. § 35.130(b)(8); see Henderson, 2012 WL 6681773 at *32.
Defendants claim that they were justified in removing HIV medications from the KOP program, in order to improve patient adherence. Their evidence shows just the opposite. At the time they changed the policies, Defendants pointed to a self-serving study of nineteen patients who were cherry-picked out of the 232 prisoners receiving treatment, because they all had detectable viral loads. Pls.’ SMF ¶¶ 138-140. That analysis revealed that seven of the nineteen patients were adherent to medications. This study was hardly a clarion call for change. The adherence analyses that followed the policy change have only proved that taking away KOP medications had no impact on overall patient adherence. Thirty percent of all refills remain late, and half of those late refills last long enough to pose a significant risk of harm in the form of detectable viral load. If the goal of requiring med line for all HIV patients was to improve adherence, then this blanket policy is an abject failure.
The blanket exclusion of all HIV-positive prisoners from the KOP program is not “necessary” in any event. 28 C.F.R. § 35.130(b)(8). HIV patients as a group did not have adherence problems. To the extent that individual patients had adherence problems, the Defendants were already equipped to address them on an individualized basis. The KOP policy,
20

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 21 of 39
the daily compliance monitoring and monthly KOP audit policies, and the early refill policy all ensure that patient adherence problems will be detected. Those who do not adhere to their medication will be suspended from the KOP program. Moreover, HIV-positive prisoners were subject to closer monitoring under the KOP program than anyone else. The ID case managers reviewed patient MARs, conducted pill counts at clinic appointments, and were alerted by nurses to possible nonadherence. These measures were supplemented by the quarterly measure of patient viral loads and CD4 counts; worsening counts were another signal of possible nonadherence. For the HIV-positive prisoners more than anyone else, medical staff is able to “differentiat[e] among prisoners on the basis of their behavior,” which is exactly what the ADA calls for. Henderson, 2012 WL 6681773 at *19, *26 (“adherence should be addressed on an individual-by-individual basis, as the ADA requires, rather than categorically”).
The blanket exclusion of all HIV-positive prisoners from the KOP program is no more “necessary” for the sake of saving money. It is not clear that avoiding the destruction of returned medications is a necessary component of the KOP program. Even if it is, though, the exclusion of all HIV-positive prisoners from the KOP program is not necessary to reduce waste. Defendants are fully aware of the reasons for medication returns – therapy changes, discharges, transfers, and duplicate orders. The HIV specialists do not change regimens in a way that causes waste. Discharged prisoners should not lead to medication returns, because, by policy, Defendants are to send their medications with them. If there is a problem here, it is one not of waste but of failure to follow policy and ensure continuity of care. Similarly, transferred prisoners should have their medications transferred with them, as dictated by policy. Transfers should not lead to medication returns. Even if they do, no money is saved on a transfer, because the receiving facility must order an early refill to account for the absence of the returned
21

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 22 of 39
medications. Whether or not duplicate orders are avoided, they can be returned under the KOP policy anyway because the medications have not yet reached the patient. Defendants have refused to recognize their responsibility for medication returns, most of which are improper, and they have refused to do anything to limit them. See Defs.’ Ex. 62 (Reclaim and Reuse Data, showing a persistent volume of returned medications).
Reduction of waste can be accomplished without discriminating against all HIV-positive prisoners. Defendants have the information to trace returns to the individual patient and find the cause for the return. The IDCMs performed this task once and advised administrators that returns were caused by the discharge of pretrial prisoners and by transfers of new DOC prisoners. Defendants ignored that finding and have never since cared to know the source of medication returns. There is no evidence that the HIV-positive as a group all cause waste. As such, Defendants cannot meet their “heavy” burden of showing that denying KOP medications to all HIV-positive prisoners is “necessary” to achieve the goal of avoiding waste. See Henderson, 2012 WL 6681773 at *32, quoting Guckenberger v. Boston University, 974 F.Supp. 106, 139 (D.Mass. 1997).
A blanket policy denying KOP medications to all HIV-positive prisoners, regardless of their individual sentence length, placement, and history, is discrimination. Henderson, 2012 WL 6681773 at *33 (finding that the ADA prohibits all discrimination by public entity, and is not limited to exclusion from program or service). Since returned medications are traceable to the individual patient, the Defendants can address any problems on an individual basis. They can address pretrial prisoners or temporary detox commitments separately, if need be. Plaintiffs, and others like them, are in stable sites with long sentences and predictable release dates. They do not cause medication returns. Prohibiting them from having KOP medications is not necessary.
22

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 23 of 39
Defendants took an entire population that previously qualified for the KOP program – HIV-positive prisoners – and removed them. They did not remove anyone else, even those with expensive medications like Ribavirin, which is prescribed to a select few Hepatitis C patients at a time. Pls.’ SMF ¶ 240. In fact, at the same time that Defendants excluded Plaintiffs from the KOP program, they have looked to expand the KOP program for others. Pls.’ SMF ¶ 196. The KOP program is not unreasonably costly for HIV patients, especially given its individual assessment of each patient’s adherence or waste. Henderson, 2012 WL 6681773 at *35. Problematic patients can be identified and screened out, without disturbing those who are adherent and do not cause waste.
Plaintiffs are not demanding that all HIV-positive prisoners be restored with KOP medications. They merely ask not to be excluded from the KOP program based on their HIVpositive status. Whether Plaintiffs or other HIV-positive prisoners may have KOP medications “must depend on an individual-by-individual assessment of these prisoners that honors each prisoner’s rights under the ADA, and…resources are reasonably available to do this.” Henderson, 2012 WL 6681773 at *40. F. The Blanket Policy Removing HIV Medications from the KOP Program Violates the
Eighth Amendment. The Eighth Amendment prohibits punishments that are “incompatible with ‘the evolving
standards of decency that mark the progress of a maturing society,’” and those that “involve the unnecessary and wanton infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 102-04 (1976) (citations omitted); see Kosilek v. Spencer, 2012 WL 3799660, *3 (D.Mass. 2012). “A prison that deprives prisoners of basic sustenance, including adequate medical care, is incompatible with the concept of human dignity and has no place in civilized society.” Plata v. Brown, __ U.S.
23

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 24 of 39
__, 131 S.Ct. 1910, 1928 (2011). Accordingly, deliberate indifference to a prisoner’s serious medical needs violates the Eighth Amendment. Estelle, 429 U.S. at 105.
An official is deliberately indifferent if he or she knows of and disregards a substantial risk of serious harm to the prisoner’s current or future health. See Farmer v. Brennan, 511 U.S. 825, 843 (1994); Helling v. McKinney, 509 U.S. 25, 33-35 (1993) (“We have great difficulty agreeing that prison authorities may not be deliberately indifferent to an inmate's current health problems but may ignore a condition of confinement that is sure or very likely to cause serious illness and needless suffering the next week or month or year.”). Conscious disregard can be established by the defendant’s response to a known need, or by “denial, delay or interference with prescribed health care.” Battista v. Clarke, 645 F.3d 449, 453 (2011), quoting DesRosiers v. Moran, 949 F.2d 15, 19 (1st Cir.1991); see Estelle, 429 U.S. at 104-05; Soneeya v. Spencer, 851 F.Supp.2d 228, 242 (D.Mass. 2012); Alexander v. Weiner, 841 F.Supp.2d 486, 493 (D.Mass 2012). The plaintiff need not show that the prison official believed that harm would actually befall the prisoner, only that the official acted or failed to act despite knowledge of a substantial risk of serious harm. Id. at 842; see Battista, 645 F.3d at 453, citing Farmer, 511 U.S. at 835 (“[S]ubjective intent is often inferred from behavior and even in the Eighth Amendment context… a deliberate intent to harm is not required.”).
Plaintiffs have a serious medical need. “[A] serious medical need” is one that involves a substantial risk of serious harm if it is not adequately treated. Kosilek, 2012 WL 3799660 at *11, citing McGuckin v. Smith, 974 F.2d 1050, 1059 (9th Cir.1992) (“A ‘serious' medical need exists if the failure to treat a prisoner's condition could result in further significant injury or the ‘unnecessary and wanton infliction of pain.’”). “It is obvious that HIV is a serious medical condition, as the condition can be life-threatening if not properly treated.” Leavitt v. Correctional
24

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 25 of 39
Medical Services, Inc., 645 F.3d 484, 500 (1st Cir.2011), citing Brown v. Johnson, 387 F.3d 1344, 1351 (11th Cir.2004), Montgomery v. Pinchak, 294 F.3d 492, 500 (3d Cir.2002). In addition, the risk of harm faced by Plaintiffs due to Defendants’ actions, which include both painful side-effects and missed doses that leave Plaintiffs susceptible to drug resistance and the resulting complications, plainly constitutes a serious medical need. See Leavitt, 645 F.3d at 50001; McNally v. Prison Health Services, 46 F.Supp.2d 49, 54-55 (D.Me.1999).
Defendants’ blanket removal of HIV medications from the KOP program amounts to conscious disregard of Plaintiffs’ serious medical need. This policy change puts Plaintiffs and others at substantial risk of serious harm. First, Defendants are all well aware that mandatory DOT forces some prisoners to endure side effects from their medications unnecessarily. This is particularly so with respect to Atripla and other medications containing Efavirenz; over half of the DOC’s HIV patients are treated with Efavirenz-based regimens. Pls.’ SMF ¶ 207. Efavirenz is indicated to be taken at bedtime because of its neurological effects, causing dizziness and flulike symptoms. Pls.’ SMF ¶ 245. Forcing a prisoner to take this medication hours before bedtime is not the standard. Pls.’ Ex. 3 at ¶ 18. Both Mr. Coe and Mr. Doe have experienced these side effects first hand, every night, as have many others. These effects are substantial enough to constitute harm under the Eighth Amendment. See Roe, 631 F.3d at 864-65 (symptoms that “included stomach distention, nose bleeds, rashes and bowel irregularity” that a prisoner experienced during and shortly after his nine-month incarceration when his HCV was left untreated constituted sufficient injury); Gil v. Reed, 381 F.3d 649, 662 (7th Cir.2004) (testimony from which a jury could infer that an overnight delay in providing antibiotic treatment for an inmate's infection caused “many more hours of needless suffering” was sufficient to withstand summary judgment).
25

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 26 of 39
With no relief forthcoming from Defendants, ultimately the HIV specialists changed these Plaintiffs’ regimens. Dr. Stone and Dr. Quirk recounted changing therapies to less optimal regimens, as a result of the policy change. For Defendants to needlessly force such changes is deliberate indifference, as it is essentially the imposition of “an easier and less efficacious” treatment plan made for non-medical reasons. Chance v. Armstrong, 143 F.3d 698, 703 (2d Cir. 1998) (citations omitted); see Estelle, 429 U.S. at 104 n. 10; Waldrop v. Evans, 871 F.2d 1030, 1035 (11th Cir.1989); Soneeya, 851 F.Supp.2d at 242, 248; Kosilek v. Maloney, 221 F.Supp.2d 156, 183, 185, 189 (D.Mass. 2002).
Second, Defendants are aware that their policy has resulted in some patients, including Plaintiffs, missing more doses of their medication than they did under the KOP program. Plaintiffs have detailed occasions of missed medications, under circumstances that would not have led to a missed dose when the medications were KOP. Plaintiff Nunes, fearing the development of drug resistance from missed doses, does not take medications at all, unless he is in segregation where medications are delivered to each cell. The HIV specialists and ID case managers have recounted problems and complaints from their patients. Although Defendants trumpet some of the warm words in the DPH audit of HIV treatment from 2011, they overlook the Audit’s finding that twelve prisoners were having adherence problems because of the med line policy. Defendants’ actions are creating problems, not solving them.
Defendants would have the prisoners believe otherwise – that they removed HIV medications from the KOP program for their benefit, to improve their care. The record belies this assertion. This blanket policy was implemented first and foremost to reduce costs through reclaim of returned medications. Patient care was an afterthought, until the prisoners’ providers spoke up. At that point Defendants began addressing these concerns – by accusing the HIV
26

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 27 of 39
population of nonadherence. They suspended the policy change temporarily and ordered several studies. That the Defendants cannot recall the results of these studies, or whether they even happened, is telling. Defendants were going to push this policy through regardless of what they found. The one study they do have, and cite as supporting the policy, is an ill-defined analysis of nineteen patients who all had detectable viral loads, using a limited data set of pharmacy claims, the reliability of which is suspect. Even that biased sample contained seven adherent patients. Nevertheless, Defendants point to this study as justifying a policy affecting over 200 other prisoners, regardless of their individual histories.
Defendants forge ahead with their reliance on adherence figures as justifying the blanket policy change. They do so using the same questionable pharmacy claims data and the results are an indictment of Defendants’ actions, not an endorsement. After all medications were removed from the KOP program, with staff fully responsible for ordering refills, thirty percent of such refills have been late, persistently. Half of those late refills have been a week late or more; such long interruptions in medication dramatically increase the risk of viral rebound, which can have disastrous effects. This rate of late refills marked no improvement over the period before the change.
The same can be said for viral loads. A fair comparison of pre-change and post-change viral loads shows no statistically significant difference between the two. Defendants proclaim success based on fewer detectable viral loads in 2012, but there is no way to link those figures to the removal of HIV medications from the KOP program, as too many other factors that contribute to viral loads cannot be controlled for. See Henderson, 2012 WL 6681773 at *17 (finding that the link between prison policy and lower HIV transmission rates amounts to “post
27

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 28 of 39
hoc ergo propter hoc”). In particular, newer medications with higher potency are the most likely reason for the improvement in viral loads.
UMCH apparently believes that it can prevail by pushing out a few graphs, no matter what the numbers actually say or mean. This practice may suffice for promoting their business, but it does not entitle them to summary judgment. Nonadherent patients are accountable under the KOP program. They can lose the privilege. The HIV-positive prisoners are closely monitored. Plaintiffs did not have adherence problems under the KOP program; they took their medications. Now, having lost any control of their medications, they are definitively worse off. They need not wait until medication resistance or other horribles develop, in order to sustain the Eighth Amendment claim; the risk of such harm is enough. See Farmer v. Brennan, 511 U.S. 825, 843 (1994); Helling v. McKinney, 509 U.S. 25, 33-35 (1993); Leavitt, 645 F.3d at 500-01; Roe v. Elyea, 631 F.3d 843, 858 (7th Cir. 2011); McNally, 46 F.Supp.2d at 54-55. Blanket policies such as the one imposed here are vulnerable if they take no account of individual patient circumstances. Johnson v. Wright, 412 F.3d 398, 404-06 (2d Cir. 2005) (vacating granting of summary judgment finding that blanket Hepatitis C policy may be unconstitutional). The Eighth Amendment obligates Defendants to provide adequate care, Kosilek, 2012 WL 3799660 at *33, and adequate care “requires an individualized assessment of a patient’s medical needs.” Kosilek, 2012 WL 3799660 at *35, citing Roe v. Elyea, 631 F.3d 843, 862-63 (7th Cir. 2011), Soneeya v. Spencer, 851 F.Supp.2d 228, 242 (D.Mass. 2012).
Cost is not a defense. “[T]he cost of adequate medical care is not a legitimate reason for not providing such care to a prisoner.” Kosilek, 2012 WL 3799660 at *18, *15; see Chance, 143 F.3d at 704; Harris v. Thigpen, 941 F.2d 1495, 1509 (11th Cir.1991); Ancata v. Prison Health Servs., Inc., 769 F.2d 700, 705 (11th Cir.1985); Soneeya, 851 F.Supp.2d at 243 (“Cost of
28

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 29 of 39
treatment, however, may not be used as a reason to deny an inmate medically necessary care.”). Even if cost were a relevant consideration, however, Defendants incur no additional cost
by providing KOP medications to Plaintiffs. No waste is attributable to Plaintiffs, who were at stable sites, were not transferred frequently, and were not going to be discharged without warning. Defendants know, yet continue to ignore the reality, that returned medications arise from sudden discharges of pretrial prisoners and temporary detox commitments and from transfers where staff did not transport the medications or forward them. No practical constraints prevent restoration of the Plaintiffs to the KOP program, which they had followed for years. Defendants are not entitled to summary judgment on the Eighth Amendment claim. G. The Policy Change Violates Privacy Rights Preserved by the Fourteenth Amendment.
1. Plaintiffs Have a Constitutional Right to Privacy with Regard to Their HIV Status.
Individuals have a constitutional right to privacy that protects “the individual interest in avoiding disclosure of personal matters.” Whalen v. Roe, 429 U.S. 589, 599 (1977); see generally Houchins v. KQED, Inc., 438 U.S. 1, 5 n. 2 (1978) (“Inmates in jails, prisons, or mental institutions retain certain fundamental rights of privacy; they are not like animals in a zoo to be filmed and photographed at will by the public or by media reporters, however “educational” the process may be for others.”). This right has been found to encompass a right to nondisclosure of prisoners’ sensitive medical information. Klein v. MHM Correctional Services, Inc., 2010 WL 3245291, *4 (D.Mass. 2010) (assuming prisoners enjoy a constitutional right of privacy with respect to medical information). A prisoner’s HIV-positive status has been deemed to be sufficiently sensitive to trigger the right. See, e.g., Moore v. Prevo, 379 Fed.Appx. 425, 428 (6th Cir. 2010); Powell v. Schriver, 175 F.3d 107, 112 (2d Cir.1999); Doe v. Delie, 257 F.3d 309, 317 (3d Cir. 2001); Doe v. Magnusson, 2005 WL 758454, *10-11 (D.Me. 2005); Nolley v. County of
29

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 30 of 39
Erie, 776 F.Supp. 715, 728-32 (W.D.N.Y.1991); Rodriguez v. Coughlin, 1989 WL 59607, * 3 (W.D.N.Y. 1989); Woods v. White, 689 F.Supp. 874, 876 (W.D.Wis.1988), aff'd. 899 F.2d 17 (7th Cir.1990); Doe v. Coughlin, 697 F.Supp. 1234, 1237-38 (N.D.N.Y. 1988); see also Alfred v. Corrections Corp. of America, 437 Fed.Appx. 281, 285-286 (5th Cir. 2011); Harris v. Thigpen, 941 F.2d 1495, 1513 (11th Cir.1991) (assuming, arguendo, a constitutionally protected privacy interest in nonconsensual disclosure of HIV status).
“[T]he interest in the privacy of medical information will vary with the condition.” Powell, 175 F.3d at 111. Indeed, HIV-positive status has been distinguished from most other medical conditions suffered by prisoners and individuals living in the community alike, given the intensely personal nature of the infection and the stigma accompanying disclosure. Cortes v. Johnson, 114 F.Supp. 2d 182, 185-86 (W.D.N.Y. 2000) (finding that leg and neck pain “do not compel the same heightened confidentiality as information about a prisoner’s HIV positive status or transsexualism”); cf. Matson v. Board of Educ. of City School Dist. of New York, 631 F.3d 57, 67 (2d Cir. 2011) (finding that the constitutional right to privacy of one’s medical information does not extend to disclosure of fibromyalgia diagnosis, in contrast to HIV status).
“There are few areas which more closely intimate facts of a personal nature than one's HIV status.” Doe v. Town of Plymouth, 825 F.Supp. 1102, 1107-08 (D.Mass. 1993), citing Woods, 689 F.Supp. at 876. “[T]he privacy interest in information regarding one's HIV status is particularly strong because of the stigma, potential for harassment, and ‘risk of much harm from non-consensual dissemination of the information.’” Delie, 257 F.3d at 315, quoting Doe v. Southeastern Pa. Transp. Auth., 72 F.3d 1133, 1138 (3d Cir.1995), cert. denied 519 U.S. 808 (1996); see Doe v. City of New York, 15 F.3d 264, 267 (2d Cir.1994). Though prognoses and
30

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 31 of 39
drug treatments have improved, HIV remains a serious medical condition and “social perceptions
of HIV have yet to catch up with the modern realities of the illness.” Matson, 631 F.3d at 64 n.6.
Undoubtedly exacerbated by the terror that accompanied the disease in its early history, a relentless stigma adheres to HIV. This stigma has at least two plausible sources. First, HIV is most frequently found among historically marginalized populations: particularly, gay men. Prejudice against homosexuals intensifies prejudice against HIV, and prejudice against HIV becomes a proxy for prejudice against members of the gay community. Because HIV is also more common among minorities and the poor, the stigma attached to HIV deeply implicates race and class prejudice, as well as homophobia. A second source of stigma stems from the means of HIV transmission. The plaintiffs' expert, Dr. Frederick Altice, an international authority on HIV and the Director of the HIV in Prisons Program at Yale University School of Medicine, explained: “People make judgments just by the virtue of HIV that you must have done ... something dirty or something awful to have acquired HIV. Being gay. Being a prostitute. Being sexually promiscuous.” These impressions build upon negative stereotypes about the groups most commonly affected by HIV. Henderson v. Thomas, 2012 WL 6681773 at *2-3. Privacy regarding HIV status is even more
essential for a prisoner, as a prisoner identified as HIV-positive “will be severely compromised
in his ability to maintain whatever dignity and individuality a prison environment allows.” Doe v.
Coughlin, 697 F.Supp. at 1238.
In Borucki, the First Circuit Court of Appeals, in weighing a claim that disclosure of the
content of psychiatric reports prepared in the course of a criminal matter violated the plaintiff’s
right to privacy, declined to decide whether a constitutional right to privacy regarding medical
records existed. See Borucki v. Ryan, 827 F.2d 836, 841-44 (1st Cir. 1987). Instead, the Court
conducted a qualified immunity analysis and held only that no clearly established right of
privacy protected a former defendant's court-ordered psychiatric report from disclosure after the
criminal case had been dismissed. Id. Nevertheless, since Borucki, several district court
decisions in this Circuit have recognized the existence of a right to privacy in one's medical
information. See Flood v. Maine Dept. of Corrections, 2012 WL 5389533, *26 (2012); Klein,
2010 WL 3245291 at *4; Hodgdon v. Downeast Correctional Facility, 2010 WL 53504, *4
31

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 32 of 39
(2010); Marchand v. Town of Hamilton, 2009 WL 3246607, *7 (D.Mass. 2009); Magnusson, 2005 WL 758454 at *10-11; Pouliot v. Town of Fairfield, 184 F.Supp.2d 38, 50 (D.Me. 2002); Town of Plymouth, 825 F.Supp. at 1107. Plaintiffs have a right to avoid unwanted disclosures of their HIV-positive status.
2. Defendants Violate Plaintiffs’ Right to Privacy, and This Disclosure Is Not Reasonably Related to a Legitimate Penological Interest.
The removal of all HIV medications from the KOP program has resulted and will continue to result in unauthorized disclosures of HIV status to prisoners and correctional staff. Defendants enacted the policy change in the face of clinicians’ objections, which included the privacy problems caused by forcing HIV-positive prisoners to attend med line. Defendants knew that the policy change would result in privacy violations, but they moved forward anyway.
Those problems manifested themselves from the start, as Plaintiffs (and others) suddenly went from not attending med line to attending it every day. Pls.’ SMF ¶ 213. Since the policy change, unwanted disclosures have arisen in different contexts. John Doe pointed out the location of a poster showing HIV medications, for all to see and compare to the medications being given to HIV patients. Pls.’ SMF ¶ 214. Carl Coe described the prying eyes at med line, where many prisoners are trying to identify the medications that others take. Id. ¶ 211-212. Plaintiffs have heard med line nurses announce that it was HIV medication being administered. Id. ¶ 215. Medical staff have used different cups for the HIV medications, and given a high sign to the med line CO, who observes all of the goings-on at med line. See Defs.’ Ex. 6 at pp. 80-81. Plaintiffs have been asked questions that would force them to disclose their own status. Pls.’ SMF ¶¶ 216-217, 219. They have had prisoners accost them and ask about their status. Pls.’ Ex. 13 at ¶ 12; Pls.’ Ex. 14 at ¶ 8; Pls.’ Ex. 15 at ¶ 9; Pls.’ Ex. 16 at ¶ 8.
32

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 33 of 39
Defendants suggest that Plaintiffs suffered from an equal number of unwanted disclosures under the KOP program. The evidence suggests otherwise. If unit officers did have access to information about Plaintiffs’ status, they either did not review that information or were discreet about it. Plaintiffs were able to keep their medications hidden in transit between the KOP line and their cells. They were able to maintain privacy from their cellmates, if they chose. Pls.’ Ex. 13 at ¶¶ 6-12; Pls.’ Ex. 14 at ¶¶ 6-9; Pls.’ Ex. 15 at ¶¶ 6-9; Pls.’ Ex. 16 at ¶¶ 5-10; see Henderson, 2012 WL 6681773 at *34 (finding that voluntary disclosure differs from forced disclosure).
To make matters worse, the procedure Defendants propose to accommodate Plaintiffs when they are too ill to attend daily med line presents more privacy concerns, as it requires that the prisoners disclose their HIV status to an officer in their unit. Experience suggests that the CO will ask the HIV-positive prisoner why his medications are so important, or whether he cannot just skip them. Pls.’ SMF ¶ 219. Moreover, other staff and prisoners may overhear the disclosure to the unit officer, or the officer’s communications to medical staff. Those who observe this unique process for someone who is not in acute distress will inevitably learn that the process is for prisoners with HIV.
A prisoner’s constitutional right may be curtailed by a policy or regulation that is shown to be “reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). The Supreme Court has set forth several factors relevant in determining the reasonableness of a prisoner regulation or policy: (1) “there must be a ‘valid, rational connection’ between the [policy] and the legitimate governmental interest put forward to justify it”; (2) “whether there are alternative means of exercising the right that remains open to prison inmates”; (3) “the impact accommodation of the asserted constitutional right will have on guards
33

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 34 of 39
and other inmates, and on the allocation of prison resources generally”; and (4) the absence or existence of a ready alternative “that fully accommodates the prisoner’s rights at de minimis cost to valid penological interests.” Id. at 89-90. The existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an “exaggerated response” to prison concerns. Id. at 91. Defendants contend that the policy change is reasonably related to the goals of medication adherence and medication waste prevention. Even assuming that the penological purpose advanced by Defendants is legitimate, it is clear that Defendants’ actions were and are not reasonable.
First, there is no valid, rational connection between the policy that was implemented and the penological interests advanced. Defendants’ expressed desire to improve adherence is gainsaid by their own adherence analyses, which depict significant late refills and medication interruptions, many of a duration that threatens serious harm. Medical staff was already evaluating adherence on an individual basis using multiple measures, including the patient MAR and chart. Removing all HIV patients from the KOP program does not further the interest of adherence.
The connection to medication waste is no more valid or rational. Waste from returned medications is a problem attributable to staff’s failure to follow policy, not patient misconduct. Plaintiffs and other long-term, rarely transferred prisoners do not cause waste. Whatever meager benefits this policy change offers, such benefits “are insufficient standing alone to warrant permitting infringement of the prisoner’s right to privacy.” Coughlin, 697 F.Supp. at 1241 (holding that prisoners are entitled to protection against non-consensual disclosure HIV status through involuntary placement in a separate dormitory for HIV-positive prisoners, after
34

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 35 of 39
balancing against legitimate penological interests of improved health care for HIV-positive prisoners and reduced costs of transportation to medical appointments).
Second, HIV-positive prisoners have no alternative means to exercise their right to privacy. Once their status has been disclosed, the right “is lost forever.” Nolley, 776 F.Supp. at 733, 736.
Third, accommodating HIV-positive prisoners’ constitutional right to privacy will have a minimal impact on staff and other prisoners, given that for years KOP was available for HIV medications. See Nolley, 776 F.Supp. at 733, 736. If anything, removing HIV-positive prisoners from the KOP program actually increased the number of prisoners at med line, creating a greater burden on facility staffing of the medication line.
Fourth, restoring KOP eligibility is an obvious, ready alternative with de minimis cost to valid penological interests. Defendants would still be able to ensure adherence and reduce waste, by enforcing the KOP policy to suspend an individual patient’s privileges when warranted, and by ensuring that medications actually go with a discharged or transferred prisoner. Removing all HIV medications from KOP eligibility for all prisoners was an exaggerated response to an exaggerated issue.
The privacy violations here are inextricably related to the policy change requiring HIVpositive prisoners to obtain their HIV medications at med line. The policy and procedure give rise to repeated gratuitous disclosures. Such violations of HIV-positive prisoners’ right to privacy are not reasonably related to a penological purpose. See Powell, 175 F.3d at 109, 112 (“[T]he gratuitous disclosure of an inmate’s confidential medical information as humor or gossip-the apparent circumstance of the disclosure in this case-is not reasonably related to a legitimate penological interest, and it therefore violates the inmate's constitutional right to
35

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 36 of 39
privacy.”); Magnusson, 2005 WL 758454 at *11. Defendants’ policies5 are laudable but do not prevent these disclosures. H. Richard Nunes’ Accommodation Claim Raises Trial-Worthy Issues.
Along with Plaintiffs’ discrimination claim under the ADA and Rehabilitation Act, Richard Nunes asserts a claim under those statutes for failure to accommodate. In its ruling on Richard Nunes’ Motion for a Preliminary Injunction, the Court stated that it could not hold, on the limited record before it, that the accommodations being offered to Mr. Nunes were unreasonable. 1:10-CV-12013-RWZ Document No. 66 (September 30, 2011 Order). Defendants’ pleas notwithstanding, the failure to obtain a preliminary injunction does not equate to a claim that fails as a matter of law. See Francisco Sanchez v. Esso Standard Oil Co., 572 F.3d 1, 14-15 (1st Cir. 2009) (finding that a preliminary injunction is “traditionally viewed as relief of an extraordinary nature and does not purport to be a disposition on the merits”). There are disputed issues as to the severity of Mr. Nunes’ conditions and the reasonableness of Defendants’ proposed accommodations. These issues should be aired at a trial, where the court can hear from the parties directly.
In particular, Defendants’ proposed accommodation for when Mr. Nunes is feeling too ill to attend med line rings hollow. Defendants propose to send a nurse to evaluate Mr. Nunes and determine whether to admit him to the HSU. This is a blunt instrument for symptoms which heretofore have never been deemed worthy of HSU admission. It is intentionally blunt, as the
5 UMCH Policy 9.00 Privacy of Care: “5. When the presence of security staff is required for the staff safety, every effort will be made to provide auditory and visual privacy.” UMCH Policy 61.00 Confidentiality and Storage of Health Records: “1. The subject of confidentiality of medical records will be included in staff orientation upon hire and will be reviewed periodically thereafter. 2. Non-medical staff that observe or overhear a clinical encounter will be instructed on the requirements of confidentiality. UMCH Policy 62.02 Release of HIV Information and Test Results: “1. Identifiable information regarding the results of the any HIV test performed on an inmate will not be disclosed to anyone other than the health services staff without prior written consent.”
36

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 37 of 39
prospect of being removed to the HSU is designed to discourage requests. See 1:10-CV-12013RWZ Document No. 62 (Nunes Affidavit date June 14, 2011).
Of course, a nurse could come to the unit and contest Mr. Nunes’ claim of illness. The proposed accommodation does not speak to what happens then. If the nurse does contest Mr. Nunes’ claim of illness, given the time it will take for this process to unfold, he will surely miss his medications. In addition, one omission in the proposed accommodation belies its reasonableness – regardless of what the nurse finds, he or she will not bring Mr. Nunes his medications. If the nurse is making a special trip out of the HSU to Mr. Nunes’ cell, he or she could at least bring his medicine, should the nurse verify his illness. Still, Defendants refuse to make even this common-sense feature part of the accommodation. That the Defendants’ plan omits this obvious method of ensuring timely medication access suggests that at least with respect to Mr. Nunes, patient adherence is not of foremost importance to them.
Other pitfalls exist. As Mr. Nunes’ disciplinary report for being out of place shows, Mr. Nunes cannot force his unit officers to call the HSU when he feels too ill to go to med line. Officers are trained to call the HSU about emergencies, not mundane illness. The whole process could take so long that the opportunity to take that dose of HIV medication is lost.
It is far from clear that Mr. Nunes is the unreasonable one, despite what Defendants say. Mr. Nunes has proposed other solutions, requesting the ability to line up either first or last at med line so as to avoid the painful standing, and to expedite matters when he has diarrhea or feels ill. Although the Defendants have permitted other HIV-positive inmates with disabilities no more severe than Mr. Nunes’ to come to med line early, such as Mr. Doe – see Defs.’ Ex. 89 (Doe Accommodation Correspondence, Defendants refused Mr. Nunes this option alleging that there is no medical necessity. Although Defendants suggest it impossible to provide the simplest
37

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 38 of 39
accommodation to Mr. Nunes – KOP medication – they have exempted one facility, Concord Farm (NECC) from the DOT requirement. Pls.’ SMF ¶¶ 224, 246. Mr. Nunes in fact has qualified for reclassification to minimum custody and has requested reclassification to NECC, where he could resume his medications on the KOP program. UMCH has declined to recommend such a placement.
A prison violates the ADA when a prisoner is forced to endure unnecessary hardship, when it could make a reasonable accommodation. See Shedlock v. Dep’t of Correction, 442 Mass. 844, 856 (2004). Mr. Nunes’ claim is fact-intensive and raises issues of each party’s credibility. Accordingly, the court should deny summary judgment on Mr. Nunes’ ADA claim. I. The Claims Against the Individual UMCH Defendants Are Not Redundant.
Defendant UMCH moves to dismiss the claims against the individual Medical Defendants (Mr. McGuire, Dr. Ferguson, Dr. Steinberg, Dr. Groblewski) in their official capacities on the ground that these claims are redundant of claims brought against the entity UMCH. UMCH’s motion disregards the present reality of this case, one which it brought about. The individual defendants are the only defendants for the Fourteenth Amendment and Eighth Amendment claims (Counts I and V) and are not named defendants for the ADA and the Rehabilitation Act claims (Counts III and IV), meaning there is no redundancy.
Initially, Plaintiffs brought suit against both the individual UMCH defendants and UMCH on the constitutional claims. UMCH brought a motion to dismiss all claims against the official entity UMCH, arguing that, as a state entity, it was entitled to immunity under the Eleventh Amendment. Plaintiffs agreed to dismiss the constitutional claims against UMCH, leaving as defendants only the individual Medical Defendants in their official capacities. UMCH remained the defendant on the ADA and Rehabilitation Act claims. In a one-sentence order, the
38

Case 1:10-cv-12013-RWZ Document 98 Filed 02/14/13 Page 39 of 39
Court approved this resolution. Their counsel having sought and obtained UMCH’s dismissal from the constitutional claims, the individual Medical Defendants cannot now be heard to seek dismissal as well. IV. CONCLUSION
For the foregoing reasons, Defendants’ summary judgment motions should be denied. Respectfully submitted, Attorneys for Plaintiffs,
/s/ Joel H. Thompson Joel H. Thompson, BBO #662164 jthompson@plsma.org Tatum A. Pritchard, BBO #664502 tpritchard@plsma.org Prisoners’ Legal Services 10 Winthrop Square, 3rd Flr. Boston, MA 02110 (617) 482-2773
CERTIFICATE OF SERVICE I hereby certify that this document(s) filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non-registered participants on February 14, 2013.
/s/ Joel H. Thompson Joel H. Thompson
39

 
 UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 10-12013-RWZ
RICHARD NUNES, et al. v.
UMASS CORRECTIONAL HEALTH, et al.
MEMORANDUM OF DECISION October 3, 2013
ZOBEL, D.J. Plaintiff Richard Nunes, a state prisoner, brings suit on behalf of himself and
similarly situated inmates, against UMass Correctional Health, the Massachusetts Department of Correction, and several individual employees of both entities (“defendants”). He claims a newly enacted policy prohibiting him from selfadministering his HIV medication violates the Eighth Amendment (Count I), the Equal Protection Clause of the Fourteenth Amendment (Count II),1 Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 794-794a et seq. (“RA”) (Count III), Title II of the Americans with Disabilities Act, 42 U.S.C. §§ 12131 et seq. (“ADA”) (Count IV), and his right to privacy under the Fourteenth Amendment (Count V). Defendants move for summary judgment. I. Background
1Plaintiff has since stated he does not oppose defendants’ motion for summary judgment on Count II. See Pls.’ Consol. Mem. in Opp. to Defs.’ Mot. for Summ. J., Docket # 98, at 7.

Plaintiff earlier moved for a preliminary injunction against enforcement of the new protocol requiring HIV-positive inmates to stand in line at the Health Services Unit to receive their medications, as well as an order allowing him to resume selfadministering his medication. I denied the motion after defendants permitted plaintiff to travel to and from the medication line more comfortably and follow a different procedure when he is too ill to do so. II. Legal Standard
Summary judgment will be granted if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The court must view the record in the light most favorable to the nonmovant and draw all justifiable inferences in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). III. Analysis2
A. Count I: Eighth Amendment Plaintiff must meet two requirements to demonstrate he suffered cruel and unusual punishment that violates the Eighth Amendment. First, he must show that he suffered an objectively serious harm or deprivation. Second, he must prove that the prison officials responsible for that deprivation acted with deliberate indifference to his serious medical need. Farmer v. Brennan, 511 U.S. 825, 834 (1994). Deliberate indifference is defined as the “unnecessary and wanton infliction of pain.” Estelle v.
2Because plaintiffs’ claims fail on their merits, I do not analyze defendants’ arguments regarding failure to exhaust administrative remedies under the Prison Litigation Reform Act of 1995, 42 U.S.C. § 1997e, et seq.
2

Gamble, 429 U.S. 97, 104 (1976) (quotation and citation omitted).
Plaintiff has not shown that prison officials acted with deliberate indifference
because the new protocol simply administers the same care in a different manner.
“Where the dispute concerns not the absence of help, but the choice of a certain
course of treatment, deliberate indifference may be found where the attention received
is so clearly inadequate as to amount to a refusal to provide essential care.” Torraco v.
Maloney, 923 F.2d 231, 234 (1st Cir. 1991) (internal quotations and citations omitted).
Plaintiff does not challenge the quality of the treatment offered and defendants have
reasonably addressed his burdens on accessing that treatment under the new protocol.
The facts do not establish any Eighth Amendment violations. B. Counts III and IV: RA and ADA3
To demonstrate an ADA violation, plaintiff must establish that (1) he has a
disability; (2) he was excluded from participating in, or denied the benefits of a public entity’s4 services, programs, or activities, or was otherwise discriminated against; and
(3) the exclusion, denial of benefits, or discrimination was because of his disability.
Kiman v. N.H. Dep’t of Corrs., 451 F.3d 274, 283 (1st Cir. 2006) (quotation and citation omitted). A public entity must “‘make reasonable modifications5 in policies, practices,
3The liability standards under § 504 of the RA and Title II of the ADA are the same, and courts “rely interchangeably on decisional law applying § 504” when applying Title II. Parker v. Universidad de Puerto Rico, 225 F.3d 1, 4 (1st Cir. 2000); see 29 U.S.C. § 794(d); 42 U.S.C. §§ 12134(b), 12201(a).
4A state prison is a “public entity” for ADA purposes. Pa. Dep’t of Corrs. v. Yeskey, 524 U.S. 206, 210 (1998).
5Although the Department of Justice regulations implementing Title II use the phrase “reasonable modifications” instead of Title I’s “reasonable accommodations,” the terms create identical standards, and I use them interchangeably. See McGary v. City of Portland, 386 F.3d 1259, 1266 n.3 (9th Cir. 2004); Parker, 225 F.3d at 5 n.5.
3

or procedures when the modifications are necessary to avoid discrimination on the basis of disability . . . .’” Id. (quoting 28 C.F.R. § 35.130(b)(7)). A “reasonable modification” gives “meaningful access” to the program or services sought. Alexander v. Choate, 469 U.S. 287, 301 (1985); see Bibbo v. Mass. Dep’t of Corr., No. 08-10746RWZ, 2010 WL 2991668, at *1 (D. Mass. July 26, 2010) (“A reasonable accommodation does not require the public entity to employ any and all means to make services available to persons with disabilities.”); cf. Bell v. Wolfish, 441 U.S. 520, 540 n.23 (1979) (stating courts should defer to the better-informed views of prison administrators regarding the reasonableness of a given accommodation).
The undisputed facts show defendants provided plaintiff reasonable accommodations. Indeed, the inmates who have sought accommodations have received them. The preliminary injunction ruling addressed plaintiff’s request, see Docket ## 57, 66, and defendants honored co-plaintiff John Doe’s request to attend an early evening medication line. Docket # 99, SOF ¶ 191. No other similarly situated inmates have requested accommodation. Id. ¶¶ 186, 196-97. Plaintiff has not cited any evidence that defendants have denied him or others “meaningful access” to the prison’s medical services. Choate, 469 U.S. at 301. Summary judgment is therefore appropriate.
C. Count V: Right to Privacy Plaintiff alleges the new protocol violates his right to privacy because of the likelihood that his HIV status will be disclosed if he participates in the medication line. It is not clear that the right plaintiff claims defendants violated exists. The Supreme
4

Court has not decided whether the Fourteenth Amendment includes a right against public disclosure of private medical information, see Nat’l Aeronautics & Space Admin. v. Nelson, 131 S. Ct. 746, 756-57 (2011), and the question remains open in the First Circuit. Coughlin v. Town of Arlington, No. 10-10203-MLW, 2011 WL 6370932, at *13 (D. Mass. Dec. 19, 2011).
Even if plaintiff has a right to privacy, defendants have not violated it because the new protocol is rationally connected to legitimate penological interests. See Turner v. Safley, 482 U.S. 78, 89 (1987).6 Safeguarding the health of inmates is a legitimate penological interest, Cryer v. Mass. Dep’t of Corr., 763 F. Supp. 2d 237, 250 (D. Mass. 2011), as is conserving financial resources. Klein v. Tocci, No. 09-11248-GAO, 2010 WL 2643414, at *2 (D. Mass. July 1, 2010). Attending the medication line safeguards inmate health because it allows prison medical staff to watch inmates take their medications and thereby ensure they comply with their drug regimens. Furthermore, HIV medication represents a significant cost for defendants. See Docket # 99, SOF ¶ 53 (noting that in fiscal years 2008-2011, HIV medications cost approximately $5 million per year and constituted forty-two percent of pharmacy expenditures, spent on two percent of the inmate population). Because defendants can only receive a monetary credit for returned, unused medications which have not previously been distributed to inmates, id. ¶¶ 54-56, retaining possession of HIV medications enables
6Turner lists four factors to consider when evaluating the constitutionality of a prison regulation: (1) whether there is a valid, rational connection between the regulation and the legitimate government interest put forward to justify it; (2) whether alternative means to exercise the right exist; (3) the impact that accommodating the right will have on prison resources; and (4) the absence of alternatives to the prison regulation. 482 U.S. at 89-90.
5

potentially substantial cost savings. The new protocol is therefore rationally connected to the interest in financial prudence.
The other Turner factors also support the constitutional validity of the new protocol. The second factor is satisfied because inmates may still seek accommodations to allay their privacy concerns. See id. ¶ 177 (citing 103 DOC 207.04). As for the third, the medication line policy is likely to increase available prison resources by reducing medical waste. Finally, plaintiff presents no policy alternatives that “fully accommodate[] the prisoner’s rights at de minimis cost to valid penological interests.” Thornburgh v. Abbott, 490 U.S. 401, 418 (1989). Therefore, the new protocol bears a rational relation to legitimate penological interests and the right plaintiff asserts may be curtailed. IV. Conclusion
Defendants’ motion for summary judgment (Docket ## 87, 89) is ALLOWED. Plaintiffs’ motion to supplement its statement of additional material facts (Docket # 113) is DENIED AS MOOT. Judgment will be entered accordingly.

October 3, 2013 DATE

/s/Rya W. Zobel
RYA W. ZOBEL UNITED STATES DISTRICT JUDGE

6

 
 Case: 13C-2a3s4e61:10D-occvu-1m2e0n1t3: -3R3WZPaDgoec:u1menDt 1a2te6 FiFleilde:d0099/1/122/2/10414 PagEen1tryofID22: 5852392
United States Court of Appeals
For the First Circuit
No. 13-2346 RICHARD NUNES; CARL COE; JOHN DOE; PETER POE; RICHARD ROE, on behalf of themselves and others similarly situated, Plaintiffs, Appellants, v. MASSACHUSETTS DEPARTMENT OF CORRECTION; THOMAS GROBLEWSKI; MARK WAITKEVICH, Defendants, Appellees, UMASS CORRECTIONAL HEALTH; LEONARD MCGUIRE; WARREN FERGUSON; JUDITH STEINBERG, Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Rya W. Zobel, U.S. District Judge.]
Before Kayatta, Baldock,* and Selya,
Circuit Judges.
Joel H. Thompson , with whom Tatum A. Pritchard and Prisoners' Legal Services were on brief, for appellants.
Tory A. Weigand , with whom James A. Bello and Morrison Mahoney LLP were on brief, for appellee Thomas Groblewski.
Nancy Ankers White, Special Assistant Attorney General, and Sheryl F. Grant on brief for appellees Massachusetts Department of Corrections and Mark Waitkevich.
September 12, 2014
* Of the Tenth Circuit, sitting by designation.

Case: 13C-2a3s4e61:10D-occvu-1m2e0n1t3: -3R3WZPaDgoec:u2menDt 1a2te6 FiFleilde:d0099/1/122/2/10414 PagEen2tryofID22: 5852392
KAYATTA, Circuit Judge . Massachusetts prisons provide inmates with semi-monthly or monthly supplies of some medications, which the prisoners then store in their cells and take on their own. Other medications are dispensed in single doses to prisoners, to be ingested at the dispensing window. Five prisoners with HIV challenge the decision of prison officials to dispense HIV medication only in single doses at the dispensing window. The plaintiffs claim violations of the Eighth and Fourteenth Amendments to the United States Constitution, the Americans with Disabilities Act, and the Rehabilitation Act. We affirm the district court's grant of summary judgment against the plaintiffs on each of their claims.
I. Background Because the district court granted summary judgment, we "describe the facts giving rise to this lawsuit in a light as favorable to [the plaintiffs] as the record will reasonably allow." Travers v. Flight Servs. & Sys., Inc., 737 F.3d 144, 145 (1st Cir. 2013). The plaintiffs in this case are inmates in the Massachusetts state prison system who suffer from HIV. They sue, among others, the Massachusetts Department of Corrections, which administers the state's prisons. Because it makes no difference to our analysis, we refer to the department as if it were the sole
-2-

Case: 13C-2a3s4e61:10D-occvu-1m2e0n1t3: -3R3WZPaDgoec:u3menDt 1a2te6 FiFleilde:d0099/1/122/2/10414 PagEen3tryofID22: 5852392
defendant and the sole entity responsible for the state's acts at issue here.
This case arose when the department changed the manner by which inmates receive medication for HIV. Prior to the change, many inmates could receive their HIV medication through the "Keep on Person" program, which we will refer to as the "KOP program." When receiving medication through the program, inmates pick up packages of medicine once or twice a month, then store the medicine in their cells and take it on their own initiative. [App. at 66.] In contrast, HIV medication is now available only through the "daily med line," where inmates report for each dose to a dispensing window, then ingest the medication at the window while prison staff observe. [App. at 65.] Both the daily med line and the KOP program are common ways for inmates to receive medications in Massachusetts prisons, depending on what medication they are receiving and whether they satisfy various eligibility requirements. A. The Department's Decision to Remove HIV Medication from the Program
The department first announced its decision to remove HIV medication from the program in August 2008 and implemented the change in February 2009. [App. at 77, 83-84.] The parties agree that the department's primary aim in initiating the change in dispensing practices for HIV medication was to save money. Medication for HIV is expensive, occupying more than 40 percent of
-3-

Case: 13C-2a3s4e61:10D-occvu-1m2e0n1t3: -3R3WZPaDgoec:u4menDt 1a2te6 FiFleilde:d0099/1/122/2/10414 PagEen4tryofID22: 5852392
the department's pharmacy budget, although fewer than 3 percent of the prisoners have HIV. [App. at 266.] Faced with budget cuts in 2008, the department examined its expenses and determined that some of the cost of HIV medications arose from "wasted" medication: medication that was dispensed to an inmate through the KOP program, but not used by that inmate while in prison. [App. at 269-271.] Such medication cannot be reused because it has left the hands of licensed medical staff. [App. at 270.] Medication scheduled to be dispensed through the daily med line, however, can be reused if not picked up by the patient. [App. at 270-71.] The department therefore concluded that it could reduce waste and save money by distributing all HIV medication through the daily med line. [ App. at 271.]
The parties agree that there are several sources of wasted HIV medication, but disagree on their relative importance, and on whether the department chose the best approach to mitigate waste. Waste can arise when a prisoner simply chooses not to take medication that he has received through the KOP program. [App. at 73.] It can also arise when an inmate is given too much medication when he picks up his refills. [App. at 275-76.] In addition, waste can result when an inmate is released from prison, is transferred
-4-

Case: 13C-2a3s4e61:10D-occvu-1m2e0n1t3: -3R3WZPaDgoec:u5menDt 1a2te6 FiFleilde:d0099/1/122/2/10414 PagEen5tryofID22: 5852392
within the system, dies, or has his treatment regimen changed. 1 [App. at 73, 274-76.]
When the department announced the change in August 2008, it received complaints from medical staffers concerned about the effect on inmates with HIV. Two doctors who treated inmates with HIV, David Stone and James Quirk, objected to the change and have continued to oppose it. Their chief concern has been that some inmates will be unwilling or unable to take their medication consistently due to the time and effort required to wait at the dispensing window, which some inmates would have to do more than once per day. [App. at 281-83, 97.] The parties agree that it is very important for HIV patients to be "adherent" (or "compliant"), meaning that they take their medication consistently as prescribed. When a patient misses doses, the virus can develop resistance to the medication, for which there will be few alternatives. [See, e.g., App. at 255.] Stone and Quirk also worried that the change would exacerbate the side effects of HIV medication, as inmates would have less flexibility in timing their doses to coincide with meals or sleep. [See, e.g., App. at 1408-09.]
As a result of these complaints, the department initially put the change on hold to study its potential impacts. The department then reviewed data indicating that 93 percent of HIV-
1 The record does not illuminate exactly why waste can arise in each of these scenarios, but the parties agree that such waste occurs. [App. at 73.]
-5-

Case: 13C-2a3s4e61:10D-occvu-1m2e0n1t3: -3R3WZPaDgoec:u6menDt 1a2te6 FiFleilde:d0099/1/122/2/10414 PagEen6tryofID22: 5852392

positive inmates already reported to the daily med line for other

medications. The department also considered data indicating that

44 percent of inmates with HIV requested refills of their HIV

medication late or not at all under the KOP program. Given the

procedural posture of the case, we do not assume that this

particular data was accurate. Rather, because the plaintiffs do

not cite any evidence to the contrary, we assume that the

department believed the data to be accurate as a product of a

sincere effort to gauge the effects of the policy change. After

reviewing this information, the department decided to adopt the

change.

B. The Effects of the Policy Change

Since the new policy was implemented, the department has

monitored its effects. It has collected data showing that patient

outcomes have held steady or improved since the change. The

plaintiffs do not dispute the raw numbers collected by the

department, though the parties differ on their significance.

A common measure of health for HIV patients is "viral

load." Doctors aim to achieve an "undetectable viral load,"

meaning that the patient has such a low level of HIV in his blood

that standard tests cannot detect it. In the last reporting period

before the policy change, 83 percent of inmates with HIV had

undetectable viral loads. That rate rose to 87 percent immediately

after the change and has been

documented most re cently at

-6-

Case: 13C-2a3s4e61:10D-occvu-1m2e0n1t3: -3R3WZPaDgoec:u7menDt 1a2te6 FiFleilde:d0099/1/122/2/10414 PagEen7tryofID22: 5852392
95 percent. While accepting this data as accurate, the plaintiffs contend that it cannot be used to establish that the policy has actually improved health outcomes because the improvement in the first six months of the new policy was not large enough to be statistically significant and the eventual larger improvement may be the product of other factors. [App. at 365-66.]
The department has also monitored late refills as a measure of nonadherence.2 Late refills have remained more or less steady since before the policy change, starting at 30 percent in December 2008, and fluctuating between 25 percent and 35 percent (with one outlier month at 39 percent) after the change. [App. at 2020, 2036.] The plaintiffs accept these figures as accurate, and admit that late refills are a "proxy" that "potentially reflect nonadherence." [App. at 306-07.] They nevertheless argue that current adherence falls below acceptable standards, without offering any evidence that returning HIV medication to the KOP program would increase adherence.3 [App. at 364-65.]
2 Medications, whether delivered through the daily med line or the KOP program, are ordered from a pharmacy on behalf of each inmate receiving them. When an inmate's supply is close to running out, the prison orders a refill on behalf of that patient. The prison can then track the rate at which these refill requests occur behind schedule. [App. at 305-06.]
3 As a matter of logic, an examination of late refills would seem more prone to overstate adherence for medication provided through the KOP program, where prisoners could return for more medication even without finishing their last pack, than for medication provided through the daily med line, where prison staff observe all doses.
-7-

Case: 13C-2a3s4e61:10D-occvu-1m2e0n1t3: -3R3WZPaDgoec:u8menDt 1a2te6 FiFleilde:d0099/1/122/2/10414 PagEen8tryofID22: 5852392
The plaintiffs offer no alternative quantitative metric for assessing the health of inmates with HIV, for determining their adherence, or for otherwise gauging the effects of the policy change. In sum, the undisputed data that exists provides credible support for the department to conclude that the dispensing policy contributed to a material improvement in the health of HIV prisoners as a g roup, and provides no basis to claim that the change worsened the health of that group of prisoners. It is also undisputed that the change led to significant cost savings. [App. at 293, 317-319.] C. The Plaintiffs' Situations
The plaintiffs present relatively little evidence regarding their own situations, focusing instead on the broader population of prisoners with HIV. No medical professional or expert testified specifically about any plaintiff's situation. In describing the consequences of the policy change for the plaintiffs, we can therefore refer only to the plaintiffs' own testimony, along with written complaints they submitted to the prison.
Plaintiff Richard Nunes has not taken any HIV medication since the change, contending that he cannot wait on the daily med line. He cites a painful lower back condition that makes it difficult for him to move or stand, chronic diarrhea, and other sicknesses. [App. at 2351.] Nunes requested as an accommodation
-8-

Case: 13C-2a3s4e61:10D-occvu-1m2e0n1t3: -3R3WZPaDgoec:u9menDt 1a2te6 FiFleilde:d0099/1/122/2/10414 PagEen9tryofID22: 5852392
of his condition that his medication be reinstated to the program. The department instead offered several alternative accommodations: it would provide Nunes with a rolling walker, and allow him to use bathroom facilities and sit on a bench while waiting on line without losing his place. Alternatively, taking his claims regarding the severity of his condition at face value, the department offered to admit him to the medical unit to receive medication for as long as he is too ill to go to the dispensing window. [App. at 2224-26.] Nunes has not accepted these accommodations, and now maintains that he will not attend the daily med line no matter what the department does to accommodate him. [App. at 113.]
The other four plaintiffs have attended the daily med line consistently since the policy change. Three have complained that, in the course of attending the line, their HIV status has been disclosed to other inmates. [App. at 2457, 2487, 2510.] These complaints involve inadvertent disclosures by medical staff, occurring sporadically, and sometimes unconnected to the department's policy change. For example, the plaintiffs complain about a poster in the medical unit identifying HIV medications, but they admit that the poster has since been taken down. [App. at 140.]
Plaintiff Carl Coe has also complained about side effects arising from not being able to take medication before bed. [App. at
-9-

Case: 13C-2a3s4e61:10D-occvu-1m2e0n1t3: -3R3WZPaDgoec:u1m0ent D12a6te FFiilleedd: 0099//1122//124014PageE1n0tryofID22: 5852392
2405.] His treatment regimen has since been changed, in part to limit side effects. [App. at 1029, 2405.] Plaintiff John Doe has complained about having to wait in line for a long time and having his medication unavailable there on two consecutive days, while plaintiff Peter Poe has complained that on one occasion he was told to leave the med line and return later. [App. at 131, 2501.] The record does not demonstrate that the plaintiffs experienced such incidents any more than a handful of times in the four and a half years between the policy change and the district court's decision. Nor, with the possible exception of Nunes, does any plaintiff offer competent evidence that his viral loads or health worsened materially during that period. D. Procedural History
The plaintiffs initiated this case in November 2010, seeking to enjoin the policy change and restore HIV medications to the KOP program. They do not seek damages. Two years later, after discovery, the defendants moved for summary judgment. The district court granted the motion, and the plaintiffs appealed.
II. Standard of Review We consider de novo the question whether summary judgment is appropriate, training our attention not on the district court's opinion, but rather on whether the record entitles the moving party--here the defendants--to judgment as a matter of law. Mesnick v. General Elec. Co. , 950 F.2d 816, 822 (1st Cir. 1991).
-10-

Case: 13C-2a3s4e61:10D-occvu-1m2e0n1t3: -3R3WZPaDgoec:u1m1ent D12a6te FFiilleedd: 0099//1122//124014PageE1n1tryofID22: 5852392
See also Travers v. Flight Servs. & Sys., Inc., 737 F.3d 144, 145 (1st Cir. 2013). Under Federal Rule of Civil Procedure 56(a), "[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Generally speaking, a party cannot raise a genuine dispute merely "by relying on the hope that the jury will not trust the credibility of the witness," but must instead present "some affirmative evidence" on the point, except perhaps where the testimony is "inherently unbelievable." McGrath v. Tavares, 757 F.3d 20, 28 n.13 (1st Cir. 2014).
III. Analysis A. The Eighth Amendment
The plaintiffs claim that the change in the method of dispensing HIV medications violated their right to be free of "cruel and unusual punishment[]" under the Eighth Amendment. To prove an Eighth Amendment violation, the plaintiffs must first show that they faced an "objectively intolerable" risk of harm resulting from the department's decision to make HIV medications available only through the daily med line. Lakin v. Barnhart , 2014 WL 3036303 (1st Cir. July 7, 2014) (quoting Farmer v. Brennan , 511 U.S. 825, 846 (1994)). In cases based on a pris oner's medical treatment, a prisoner must show that the medical care provided is not "adequate," as measured against "prudent professional standards." United States v. DeCologero, 821 F.2d 39, 43 (1st Cir.
-11-

Case: 13C-2a3s4e61:10D-occvu-1m2e0n1t3: -3R3WZPaDgoec:u1m2ent D12a6te FFiilleedd: 0099//1122//124014PageE1n2tryofID22: 5852392
1987); see also Leavitt v. Corr. Med. Servs., Inc., 645 F.3d 484, 497 (1st Cir. 2011).
A plaintiff must then show that state officials "kn[ew] of and disregard[ed]" the risk of harm. Farmer, 511 U.S. at 837. To satisfy this "deliberate indifference" requirement, a plaintiff must show that state officials were "aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and . . . dr[ew] the inference." Id.
The plaintiffs' evidence would not allow a reasonable jury to find that they had satisfied either requirement. As to the objective requir ement, the plaintiffs rely primarily on the testimony of Stone and Quirk, the two doctors who work in the prison system, and on the affidavit of an outside expert, Dr. David Bangsberg. Yet, none of these witnesses testified specifically about the plaintiffs' situations. Bangsberg did not examine the plaintiffs, review their medical records, or offer any analysis of their particular situations. [App. at 362-66.] Indeed, he did not conclude that the department had provided inadequate medical care to any inmate, although he iden tified, in the abstract, certain practices as "substandard." [App. at 362, 366.] Meanwhile, the testimony of Stone and Quirk establishes, at best, that certain inmates--not identified as any of the plaintiffs--have suffered problems resulting from the policy change, but the testimony does
-12-

Case: 13C-2a3s4e61:10D-occvu-1m2e0n1t3: -3R3WZPaDgoec:u1m3ent D12a6te FFiilleedd: 0099//1122//124014PageE1n3tryofID22: 5852392

not attempt to measure these problems against medical standards.

[See, e.g., App. at 1420, 1455.]

Even viewed in the light most favorable to the

plaintiffs, none of this testimony establishes that any plaintiff

has actually received medical care falling below professional

standards. Nor does the remaining evidence make possible such a

finding. The plaintiffs present their own written complaints, but

these complaints are unaccompanied by medical analysis and document

only occasional medical problems arising from the policy change:

temporary side effects for one plaintiff, and a handful of missed

doses for two others. 4 As to the statistics presented by the

parties, they further undermine the plaintiffs' case: on the whole,

more patients have undetectable viral loads since the change, and

late refills have remained steady.

Even fully acc epting the

plaintiffs' criticisms of the data, one would be bound to conclude

that the policy change did not make outcomes any worse, even if it

did not make them any better.

The plaintiffs' problems only multiply on the issue of

deliberate indifference. As demonstrated above, the record is so

devoid of evidence of actual medical risk to the plaintiffs as to

make it unreasonable to conclude that the department knowingly

4 Although another plaintiff, Nunes, has not taken his medication since the policy change, we explain below in part C that the prison has made reasonable efforts to accommodate the problems that he says prevent him from doing so.
-13-

Case: 13C-2a3s4e61:10D-occvu-1m2e0n1t3: -3R3WZPaDgoec:u1m4ent D12a6te FFiilleedd: 0099//1122//124014PageE1n4tryofID22: 5852392
disregarded such a risk. Even if the plaintiffs' evidence raised a possibility of harm to the group of HIV-positive prisoners as a whole, that possibility is so uncertain and unsupported by beforeand-after evidence as to preclude a reasonable factfinder from inferring that the department is now knowingly disregarding a harm to these prisoners. On the contrary, the undisputed facts show that the department engaged in facially reasonable efforts, well before this litigation commenced, to assess the effects of a policy change, and then concluded, with ample basis, that the change would not harm inmates. B. The Right to Avoid Disclosure of Personal Information
Claiming that the policy change exposed them to disclosures of their HIV status to other inmates, the plaintiffs assert a violation of a right to privacy under the Fourteenth Amendment. The Supreme Court has implied that the Constitution might protect in some circumstances "the individual interest in avoiding disclosure of personal matters" from government infringement. Whalen v. Roe 429 U.S. 589, 599 (1977). But cf. National Aeronautics & Space Admin. v. Nelson, 131 S. Ct. 746, 751 (2011) (assuming, but declining to confirm, "that the Constitution protects a privacy right of the sort mentioned in Whalen"). For those in prison, however, any right to privacy is inevitably diminished. For example, prison officials may search an inmate's cell without regard to the Fourth Amendment prohibition on
-14-

Case: 13C-2a3s4e61:10D-occvu-1m2e0n1t3: -3R3WZPaDgoec:u1m5ent D12a6te FFiilleedd: 0099//1122//124014PageE1n5tryofID22: 5852392
unreasonable searches. See Hudson v. Palmer , 468 U.S. 517, 526 (1984). See also Sanchez v. Pereira-Castillo, 590 F.3d 31, 42-44 (1st Cir. 2009). Still, while we have never considered the issue, three other circuits have found that prisoners have at least a limited constitutional right against gratuitous disclosures of medical information.5
We need not decide in this case whether prisoners have a constitutional right to keep medical information private. Rather, because the inadvertent and sporadic disclosures here occurred in the context of a reasonable government policy, the plaintiffs cannot prevail even if the department infringed on a privacy interest protected by the Constitution. In reaching this conclusion, we rely on a recent Supreme Court case rejecting a privacy claim brought by applicants for employment with government contractors. See Nelson, 131 S. Ct. at 759-61. There, applying the same precedents relied upon by the plaintiffs here, the Court found no basis to enjoin a policy that required collecting sensitive medical information about the applicants unless the plaintiffs established that the policy was not "reasonable." See id. At least the same bar should apply when plaintiffs challenge
5 See Powell v. Schriver , 175 F.3d 107, 112 (2d Cir. 1999) (holding that "gratuitous disclosure of an inmate's confidential medical information as humor or gossip" violates the Constitution); Doe v. Delie, 257 F.3d 309, 317 (3d Cir. 2001) (following Powell); Moore v. Prevo , 379 F. App'x 425, 428 (6th Cir. 2010) (following Powell and Delie ). Both Delie and Moore were accompanied by dissents.
-15-

Case: 13C-2a3s4e61:10D-occvu-1m2e0n1t3: -3R3WZPaDgoec:u1m6ent D12a6te FFiilleedd: 0099//1122//124014PageE1n6tryofID22: 5852392
the government's administration of prisons, where state officials face problems "not susceptible to easy solutions" and therefore receive "wide-ranging deference." Bell v. Wolfish, 441 U.S. 520, 547 (1979).
Our preceding analysis of the Eighth Amendment claim demonstrates that the prison's policy was not unreasonable, and that the injunction sought by the plaintiffs would threaten to eliminate significant cost savings while quite possibly posing a risk that gains in overall health would also be lost. The plaintiffs retort that the department could have adopted a narrower policy that would have substantially matched the benefits of its current policy while better protecting their privacy: individualized determinations of how medicine is distributed to each prisoner. [Reply Br. at 26.] Yet, the Supreme Court in Nelson squarely rejected the claim that the government must employ the "least restrictive means of furthering its interest" in order to avoid disclosures of personal information. 131 S. Ct. at 761. On these facts, the use of an otherwise reasonable and customary dispensing practice does not violate any constitutional privacy rights merely because other prisoners may infer what medications a prisoner is taking and what disease he suffers from. C. Americans with Disabilities Act and Rehabilitation Act
In addition to their constitutional claims, the plaintiffs press statutory claims based on the Americans with
-16-

Case: 13C-2a3s4e61:10D-occvu-1m2e0n1t3: -3R3WZPaDgoec:u1m7ent D12a6te FFiilleedd: 0099//1122//124014PageE1n7tryofID22: 5852392
Disabilities Act ("ADA"), 42 U.S.C. § 12132, and the Rehabilitation Act, 29 U.S.C. § 794. The parties agree that we need make no distinction between the two statutes for purposes of our analysis in this case. [BB at 18 n. 7; RB at 30 n. 9.] Both statutes provide, in nearly identical language, that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 42 U.S.C. § 12132; see also 29 U.S.C. § 794(a). The plaintiffs correctly argue that their condition qualifies as a disability under the statutes. See 42 U.S.C.A. § 12102(2)(B).
A plaintiff can press several different types of claims of disability discrimination. First, a plaintiff can assert disparate treatment on account of disability, i.e., that the disability actually motivated the defendant's challenged adverse conduct. See Raytheon Co. v. Hernandez, 540 U.S. 44, 52-53 (2003). Such claims are governed by the same analytic framework governing claims of racial discrimination under Title VII of the Civil Rights Act of 1964. Id. at 50-52; see also Regional Econ. Cmty. Action Program, Inc. v. City of Middletown , 294 F.3d 35, 48 (2d Cir. 2002). Alternatively, in an appropriate case a plaintiff can claim that a government policy, though neutral on its face, "fall[s] more harshly on one group than another and cannot be justified by
-17-

Case: 13C-2a3s4e61:10D-occvu-1m2e0n1t3: -3R3WZPaDgoec:u1m8ent D12a6te FFiilleedd: 0099//1122//124014PageE1n8tryofID22: 5852392

business necessity." See Raytheon Co. , 540 U.S. at 52 (internal

quotation marks omitted); 28 C.F.R. § 35.130(b)(3)(I) (establishing

that the ADA prohibits public entities from adopting policies that

"have the effect of subjecting qualified individuals with

disabilities to discrimin ation on the basis of disability").

Finally, a plaintiff can pursue a third path, claiming that a

public entity has refused to affirmatively accommodate his or her

disability where such accommodation was needed to provide

"meaningful access to a

public service." 6 Henrietta D. v.

Bloomberg, 331 F.3d 261, 273-76 (2d Cir. 2003). Although such

claims can be seen as bearing many of the indicia of disparate

impact or disparate treatment,7 a plaintiff pursuing such a claim

need not directly address and satisfy the elements or methods for

proving such theories. See id. at 275.

6 The regulations under the relevant portion of the ADA refer to "reasonable modification," 28 C.F.R. § 35.130(b)(7), while the coordinating regulations under the Rehabilitation Act use the term "reasonable accommodation," 28 C.F.R. § 41.53, but there is no material difference between the terms. See Wong v. Regents of Univ. of California, 192 F.3d 807, 816 n.26 (9th Cir. 1999).
7 When a disabled person is denied a reasonable accommodation, that person lacks opportunities possessed by similar non-disabled people on account of disability. Such denial can often be seen as creating a disparate impact, which under Title VII routinely involves the unjustified failure to avoid perpetuating a burden arising from history or tradition. Similarly, a denial of reasonable accommodation can resemble disparate treatment if some discriminatory animus is involved. For example, a height test may create an adverse impact on women in the same way that a mobility test may create an adverse impact on people with certain disabilities, absent accommodation.
-18-

Case: 13C-2a3s4e61:10D-occvu-1m2e0n1t3: -3R3WZPaDgoec:u1m9ent D12a6te FFiilleedd: 0099//1122//124014PageE1n9tryofID22: 5852392
Here, four of the plaintiffs pursue only a claim of disparate treatment. They argue that the department removed their medications from the KOP program simply because they have HIV, while allowing prisoners with other illnesses to continue utilizing it. These four plaintiffs expressly disavow any claim for reasonable accommodation. [BB at 21.] They also make no mention of a disparate impact theory.
While these plaintiffs assert disparate treatment in the form of "exclusion . . . from the KOP Program," that assertion is not literally correct. [Reply Br. 5.] They can still use the program to receive the same medications that other prisoners can receive through the program. The plaintiffs, of course, need to access HIV medications that other prisoners do not need. But they have not been singled out in this respect: many other medications are also excluded from the program. Moreover, the daily med line provides full access to their HIV medication. Although the plaintiffs regard this as a more burdensome means of access, we see no evidence of any intent by the department to impose that burden on the plaintiffs because they have HIV. See Raytheon Co. , 540 U.S. at 52 ("Liability in a disparate-treatment case [under the ADA] depends on whether the protected trait actually motivated the employer's decision." (internal quotation marks, alterations omitted)). Rather, the prison has offered non-discriminatory
-19-

Case: 13C-2a3s4e61:10D-occvu-1m2e0n1t3: -3R3WZPaDgoec:u2m0ent D12a6te FFiilleedd: 0099//1122//124014PageE2n0tryofID22: 5852392
grounds for its decision, the reasonableness of which the plaintiffs have been unable to effectively challenge.
In sum, even viewed favorably to the plaintiffs, the record shows that the department provides meaningful access to HIV medications through the daily med line; and its decision to provide access in that manner is driven by cost savings backed up by data suggesting a positive, or at worst neutral, impact on the health of the HIV-positive prison population. On such a record, no jury could find for plaintiffs on their disparate treatment claim.
We next turn to the claim brought by one plaintiff, Richard Nunes, for denial of reasonable accommodation. Nunes claims that he cannot attend the daily med line due to back pain, chronic diarrhea, and other illness. He contends that he is unable to do so even though the department has offered several accommodations: the use of a rolling walker and the ability to sit on a bench or use the bathroom while maintaining his place in line.
Nunes offered no medical evidence supporting this claimed inability. The absence of such evidence is especially pertinent because the record is undisputed that Nunes regularly walks to and from the prison cafeteria and engages in exercise, [App. at 155-56] and that he recently had jobs walking with a blind prisoner and cleaning corridors [App. at 153-154]. In the event Nunes nevertheless becomes so ill that he cannot leave his cell, the department has extended a standing offer to move him to the medical
-20-

Case: 13C-2a3s4e61:10D-occvu-1m2e0n1t3: -3R3WZPaDgoec:u2m1ent D12a6te FFiilleedd: 0099//1122//124014PageE2n1tryofID22: 5852392

unit where he can receive his medications daily in accord with

normal department procedures applicable to

all seriously ill

inmates.8 His only rejoinder is that he does not actually get

quite ill enough to need the medical unit, and he would not want to

move to the unit because he would lose his current cell and not

have as much access to his property. [BB at 41-42.]

But Nunes has provided no evidence that there even

exists, much less that he lives within, a medical no man's land

between being unable to go to the daily med line and warranting

transfer to the medical unit. On such a record, no reasonable

factfinder could find the department's accommodations were not a

reasonable means of providing Nunes with meaningful access to his

medication. The statutes entitle

Nunes to reasonable

accommodations, not to optimal ones finely tuned to his

preferences. See J.D. ex rel. J.D. v. Pawlet Sch. Dist., 224 F.3d

8 The plaintiffs' brief implies that Nunes was once disciplined for attempting to use the accommodation. [BB at 42.] Nunes's affidavit, however, makes clear that he was actually disciplined for missing a scheduled medical appointment, an entirely different matter. [App. at 2253-2257.]
-21-

Case: 13C-2a3s4e61:10D-occvu-1m2e0n1t3: -3R3WZPaDgoec:u2m2ent D12a6te FFiilleedd: 0099//1122//124014PageE2n2tryofID22: 5852392
60, 71-72 (2d Cir. 2000); Corrigan v. Perry , 139 F.3d 888, *8-9 (4th Cir. 1998) (unpublished).9
IV. Conclusion Although the plaintiffs have raised questions about the wisdom of the department's policies, they have not produced adequate evidence of any constitutional or statutory violation. Consequently, and for the reasons outlined above, we affirm the grant of summary judgment to the defendants on all claims. So ordered.

9 Like many cases applying the employment prong of the ADA,

see Schmidt v. Methodist Hosp. of Indiana, Inc., 89 F.3d 342, 344-

45 (7th Cir. 1996), Corrigan holds that under the Rehabilitation

Act an employer need not provide the plaintiff's requested

accommodation so long as it provides some reasonable accommodation.

The same logic applies here. Cf.

Ansonia Bd. of Educ. v.

Philbrook, 479 U.S. 60, 68 (1986) (reaching the same conclusion in

analyzing employers' obligation to reasonably accommodate religious

practices under Title VII).

-22-

 
 Case: 1:10-cv-12013 As of: 10/05/2014 06:22 PM EDT 1 of 14
United States District Court District of Massachusetts (Boston) CIVIL DOCKET FOR CASE #: 1:10−cv−12013−RWZ

APPEAL

Nunes et al v. UMass Correctional Health et al Assigned to: Judge Rya W. Zobel Demand: $0 Case in other court: USCA, 13−02346 Cause: 42:1983 Prisoner Civil Rights Plaintiff Richard Nunes on behalf of himself and all others similarly situated
Plaintiff Carl Coe on behalf of himself and all others similarly situated
Plaintiff John Doe on behalf of himself and all others similarly situated
Plaintiff Peter Poe on behalf of himself and all others similarly situated

Date Filed: 11/22/2010 Date Terminated: 10/03/2013 Jury Demand: Defendant Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Joel H. Thompson Prisoners' Legal Services 10 Winthrop Square, 3rd Flr. Boston, MA 02110 617−482−2773 Fax: 617−451−6383 Email: jthompson@plsma.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tatum A. Pritchard Prisoners' Legal Services 10 Winthrop Square, 3rd Flr. Boston, MA 02110 617−482−2773 Fax: 617−451−6383 Email: tpritchard@plsma.org ATTORNEY TO BE NOTICED
represented by Joel H. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tatum A. Pritchard (See above for address) ATTORNEY TO BE NOTICED
represented by Joel H. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tatum A. Pritchard (See above for address) ATTORNEY TO BE NOTICED
represented by Joel H. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Tatum A. Pritchard (See above for address) ATTORNEY TO BE NOTICED

Case: 1:10-cv-12013 As of: 10/05/2014 06:22 PM EDT 2 of 14

Plaintiff
Richard Roe on behalf of himself and all others similarly situated

represented by Joel H. Thompson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tatum A. Pritchard (See above for address) ATTORNEY TO BE NOTICED

V. Defendant UMass Correctional Health
Defendant Massachusetts Department of Correction

represented by James A. Bello Morrison, Mahoney LLP 250 Summer Street Boston, MA 02210 617−737−8803 Fax: 617−342−4968 Email: jbello@morrisonmahoney.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher Quinn Morrison Mahoney LLP 250 Summer Street Boston, MA 02210 617−439−7551 ATTORNEY TO BE NOTICED
Jennifer N. Colletti Morrison Mahoney LLP 250 Summer Street Boston, MA 02210 617−439−7500 Email: jcolletti@morrisonmahoney.com TERMINATED: 04/28/2011 ATTORNEY TO BE NOTICED
Robert V. Delanders Morrison Mahoney LLP 250 Summer Street Boston, MA 02210 617−439−7500 Email: rdelanders@morrisonmahoney.com ATTORNEY TO BE NOTICED
Tory A. Weigand Morrison, Mahoney, &Miller LLP 250 Summer Street Boston, MA 02210−1181 617−737−8827 Fax: 617−342−4947 Email: tweigand@morrisonmahoney.com ATTORNEY TO BE NOTICED
represented by Sheryl F. Grant Commonwealth of Massachusetts, Department of Correction 70 Franklin Street Suite 600

Case: 1:10-cv-12013 As of: 10/05/2014 06:22 PM EDT 3 of 14

Boston, MA 02110 617−727−3300 ext. 140 Fax: 617−727−7403 Email: sfgrant@doc.state.ma.us LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Leonard McGuire

represented by James A. Bello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Quinn (See above for address) ATTORNEY TO BE NOTICED

Jennifer N. Colletti (See above for address) TERMINATED: 04/28/2011 ATTORNEY TO BE NOTICED

Robert V. Delanders (See above for address) ATTORNEY TO BE NOTICED

Tory A. Weigand (See above for address) ATTORNEY TO BE NOTICED

Defendant Warren Ferguson

represented by James A. Bello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Quinn (See above for address) ATTORNEY TO BE NOTICED

Jennifer N. Colletti (See above for address) TERMINATED: 04/28/2011 ATTORNEY TO BE NOTICED

Robert V. Delanders (See above for address) ATTORNEY TO BE NOTICED

Tory A. Weigand (See above for address) ATTORNEY TO BE NOTICED

Defendant Judith Steinberg

represented by James A. Bello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Quinn (See above for address) ATTORNEY TO BE NOTICED

Case: 1:10-cv-12013 As of: 10/05/2014 06:22 PM EDT 4 of 14

Jennifer N. Colletti (See above for address) TERMINATED: 04/28/2011 ATTORNEY TO BE NOTICED

Robert V. Delanders (See above for address) ATTORNEY TO BE NOTICED

Tory A. Weigand (See above for address) ATTORNEY TO BE NOTICED

Defendant Thomas Groblewski

represented by James A. Bello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christopher Quinn (See above for address) ATTORNEY TO BE NOTICED

Jennifer N. Colletti (See above for address) TERMINATED: 04/28/2011 ATTORNEY TO BE NOTICED

Robert V. Delanders (See above for address) ATTORNEY TO BE NOTICED

Tory A. Weigand (See above for address) ATTORNEY TO BE NOTICED

Defendant Peter Heffernan

represented by Sheryl F. Grant (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 11/22/2010 11/22/2010 11/22/2010
11/22/2010

# Docket Text
1 COMPLAINT against All Defendants Filing fee: $ 350, receipt number 0101−3160230 (Fee Status: Filing Fee paid), filed by Carl Coe, John Doe, Richard Nunes, Peter Poe, Richard Roe. (Thompson, Joel) (Entered: 11/22/2010)
ELECTRONIC NOTICE of Case Assignment. Judge Rya W. Zobel assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Chief Magistrate Judge Judith G. Dein. (Cummings, Mary) (Entered: 11/22/2010)
2 Summons Issued as to All Defendants. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Cummings, Mary) (Entered: 11/22/2010)
3 Civil Cover Sheet &Category Sheet re 1 Complaint by Carl Coe, John Doe, Richard Nunes, Peter Poe, Richard Roe. (Attachments: # 1 Local Category Form)(Thompson, Joel) (Main Document 3 replaced on 12/6/2010) (Johnson, Jay). (Entered: 11/22/2010)

Case: 1:10-cv-12013 As of: 10/05/2014 06:22 PM EDT 5 of 14

12/03/2010 12/03/2010 12/03/2010 12/03/2010 12/03/2010 12/03/2010 12/13/2010 12/20/2010
12/20/2010
12/20/2010 12/20/2010 12/20/2010 12/20/2010 12/20/2010 12/20/2010
12/23/2010 12/23/2010
12/28/2010
01/03/2011
01/05/2011

4 SUMMONS Returned Executed UMass Correctional Health served on 11/29/2010, answer due 12/20/2010. (Thompson, Joel) (Entered: 12/03/2010)
5 SUMMONS Returned Executed Judith Steinberg served on 11/29/2010, answer due 12/20/2010. (Thompson, Joel) (Entered: 12/03/2010)
6 SUMMONS Returned Executed Leonard McGuire served on 11/29/2010, answer due 12/20/2010. (Thompson, Joel) (Entered: 12/03/2010)
7 SUMMONS Returned Executed Thomas Groblewski served on 11/29/2010, answer due 12/20/2010. (Thompson, Joel) (Entered: 12/03/2010)
8 SUMMONS Returned Executed Warren Ferguson served on 11/29/2010, answer due 12/20/2010. (Thompson, Joel) (Entered: 12/03/2010)
9 SUMMONS Returned Executed Massachusetts Department of Correction served on 11/26/2010, answer due 12/17/2010. (Thompson, Joel) (Entered: 12/03/2010)
10 SUMMONS Returned Executed Peter Heffernan served on 12/6/2010, answer due 12/27/2010. (Thompson, Joel) (Entered: 12/13/2010)
11 NOTICE of Appearance by Jennifer N. Pierce on behalf of Warren Ferguson, Thomas Groblewski, Leonard McGuire, Judith Steinberg, UMass Correctional Health (Pierce, Jennifer) (Entered: 12/20/2010)
12 NOTICE of Appearance by James A. Bello on behalf of Warren Ferguson, Thomas Groblewski, Leonard McGuire, Judith Steinberg, UMass Correctional Health (Bello, James) (Entered: 12/20/2010)
13 ANSWER to 1 Complaint with Jury Demand by Thomas Groblewski.(Bello, James) (Entered: 12/20/2010)
14 ANSWER to 1 Complaint with Jury Demand by Warren Ferguson.(Bello, James) (Entered: 12/20/2010)
15 ANSWER to 1 Complaint with Jury Demand by Leonard McGuire.(Bello, James) (Entered: 12/20/2010)
16 ANSWER to 1 Complaint with Jury Demand by Judith Steinberg.(Bello, James) (Entered: 12/20/2010)
17 MOTION to Dismiss by UMass Correctional Health.(Pierce, Jennifer) (Entered: 12/20/2010)
18 MEMORANDUM in Support re 17 MOTION to Dismiss filed by UMass Correctional Health. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Pierce, Jennifer) (Entered: 12/20/2010)
19 NOTICE of Appearance by Sheryl F. Grant on behalf of Peter Heffernan, Massachusetts Department of Correction (Grant, Sheryl) (Entered: 12/23/2010)
20 MOTION for Extension of Time to January 28, 2011 to File Answer by Peter Heffernan, Massachusetts Department of Correction.(Grant, Sheryl) (Entered: 12/23/2010)
Judge Rya W. Zobel: ELECTRONIC ORDER entered granting 20 Motion for Extension of Time to Answer re 1 Complaint Peter Heffernan answer due 1/28/2011; Massachusetts Department of Correction answer due 1/28/2011. (Urso, Lisa) (Entered: 12/28/2010)
21 MEMORANDUM in Opposition re 17 MOTION to Dismiss filed by Carl Coe, John Doe, Richard Nunes, Peter Poe, Richard Roe. (Attachments: # 1 Exhibit)(Thompson, Joel) (Entered: 01/03/2011)
22 Response/Opposition to Plaintiffs' Requests for Preliminary and Permanent Injunctions by Warren Ferguson, Thomas Groblewski, Leonard McGuire, Judith Steinberg. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5)(Pierce, Jennifer) Modified on 1/6/2011 (Johnson, Jay). (Entered: 01/05/2011)

Case: 1:10-cv-12013 As of: 10/05/2014 06:22 PM EDT 6 of 14

01/05/2011 01/06/2011 01/06/2011
01/26/2011
01/28/2011 01/28/2011 02/01/2011 02/04/2011 02/04/2011
02/04/2011 02/04/2011 02/08/2011 02/08/2011 02/08/2011 02/08/2011 02/08/2011 02/09/2011 02/09/2011

Judge Rya W. Zobel: ENDORSED ORDER entered granting in part and denying in part 17 Motion to Dismiss. Allowed without objection as to Counts I, II and V. Denied as to Counts III and IV. (Urso, Lisa) (Entered: 01/06/2011)
23 NOTICE of Scheduling Conference Scheduling Conference set for 2/2/2011 02:00 PM in Courtroom 12 before Judge Rya W. Zobel. (Urso, Lisa) Modified on 1/6/2011 (Johnson, Jay). (Entered: 01/06/2011)
Motions terminated 22 MOTION re 1 Complaint Opposition to Plaintiffs' Requests for Preliminary and Permanent Injunctions MOTION re 1 Complaint Opposition to Plaintiffs' Requests for Preliminary and Permanent Injunctions filed by Judith Steinberg, Warren Ferguson, Thomas Groblewski, Leonard McGuire. (FILING IS A RESPONSE TO A REQUEST WITHIN THE COMPLAINT, NOT A MOTION) (Johnson, Jay) (Entered: 01/06/2011)
24 JOINT SUBMISSION pursuant to Local Rule 16.1 by Carl Coe, John Doe, Warren Ferguson, Thomas Groblewski, Peter Heffernan, Massachusetts Department of Correction, Leonard McGuire, Richard Nunes, Peter Poe, Richard Roe, Judith Steinberg, UMass Correctional Health.(Thompson, Joel) (Entered: 01/26/2011)
25 CERTIFICATION pursuant to Local Rule 16.1 by Warren Ferguson, Thomas Groblewski, Leonard McGuire, Judith Steinberg, UMass Correctional Health.(Pierce, Jennifer) (Entered: 01/28/2011)
26 ANSWER to 1 Complaint with Jury Demand by Peter Heffernan, Massachusetts Department of Correction.(Grant, Sheryl) (Entered: 01/28/2011)
ELECTRONIC NOTICE Resetting scheduling conference to 2/9 at 2:00 p.m.. (Urso, Lisa) (Entered: 02/01/2011)
27 MOTION for Preliminary Injunction by Richard Nunes.(Thompson, Joel) (Entered: 02/04/2011)
28 MEMORANDUM in Support re 27 MOTION for Preliminary Injunction filed by Richard Nunes. (Attachments: # 1 Exhibit Affidavit of Richard Nunes, # 2 Exhibit Affidavit of Jon Fuller, M.D., # 3 Notice of Filing − Exhibits 3 − 24)(Thompson, Joel) (Entered: 02/04/2011)
30 NOTICE OF MANUAL FILING by Carl Coe, John Doe, Richard Nunes, Peter Poe, Richard Roe Exhibits re 28 Memorandum in Support of Motion (Johnson, Jay) (Entered: 02/08/2011)
31 EXHIBITS re 28 Memorandum in Support of Motion by Carl Coe, John Doe, Richard Nunes, Peter Poe, Richard Roe. (Documents Restricted Due to Personal Identifiers) (Johnson, Jay) (Entered: 02/08/2011)
29 CERTIFICATION pursuant to Local Rule 16.1 by Massachusetts Department of Correction and Peter Heffernan. (Grant, Sheryl) (Entered: 02/08/2011)
32 CERTIFICATION pursuant to Local Rule 16.1 for John Doe. (Thompson, Joel) (Entered: 02/08/2011)
33 CERTIFICATION pursuant to Local Rule 16.1 of Plaintiff Peter Poe. (Thompson, Joel) (Entered: 02/08/2011)
34 CERTIFICATION pursuant to Local Rule 16.1 of Plaintiff Richard Roe. (Thompson, Joel) (Entered: 02/08/2011)
35 NOTICE of Appearance by Tatum A. Pritchard on behalf of Carl Coe, John Doe, Richard Nunes, Peter Poe, Richard Roe (Pritchard, Tatum) (Entered: 02/08/2011)
36 CERTIFICATE OF SERVICE pursuant to LR 5.2 by Carl Coe, John Doe, Richard Nunes, Peter Poe, Richard Roe re 35 Notice of Appearance. (Pritchard, Tatum) (Entered: 02/09/2011)
ELECTRONIC Clerk's Notes for proceedings held before Judge Rya W. Zobel: Scheduling Conference held on 2/9/2011, Set Deadlines/Hearing as to 27 MOTION for Preliminary Injunction :( Responses due by 3/4/2011, Replies due by 3/11/2011.), Further Scheduling Conference set for 9/8/2011 02:00 PM in Courtroom 12 before Judge Rya W. Zobel.). Limited fact discovery 8/31/11; (Court

Case: 1:10-cv-12013 As of: 10/05/2014 06:22 PM EDT 7 of 14

02/10/2011 03/04/2011
03/04/2011 03/04/2011
03/04/2011 03/04/2011 03/08/2011 03/08/2011 03/11/2011 03/21/2011 03/28/2011
04/08/2011 04/12/2011

Reporter: No Court Reporter Used.)(Attorneys present: Thompson, Pritchard, Bello &Grant) (Urso, Lisa) (Entered: 02/10/2011)
Set/Reset Deadlines: (limited) Discovery to be completed by 8/31/2011. (Urso, Lisa) (Entered: 02/10/2011)
37 Opposition re 27 MOTION for Preliminary Injunction filed by Warren Ferguson, Thomas Groblewski, Leonard McGuire, Judith Steinberg. (Attachments: # 1 Exhibit Affidavit of Carlos Flores, N.P., # 2 Exhibit 2, # 3 Exhibit Affidavit of Carole Lyman, # 4 Exhibit Affidavit of Jamie Brown, # 5 Exhibit Affidavit of Scott Anderson, # 6 Exhibit Affidavit of Peter Heffernan, # 7 Exhibit Affidavit of Tom Groblewski, D.O., # 8 Exhibit Affidavit of Erik Hamel, Pharm.D., BCPS, # 9 Errata 9)(Pierce, Jennifer) (Entered: 03/04/2011)
38 NOTICE by Warren Ferguson, Thomas Groblewski, Leonard McGuire, Judith Steinberg re 37 Opposition to Motion,, of Filing With Clerk's Office (Pierce, Jennifer) (Entered: 03/04/2011)
39 MEMORANDUM in Opposition re 27 MOTION for Preliminary Injunction filed by Peter Heffernan, Massachusetts Department of Correction. (Attachments: # 1 Exhibit 1−−Justice Rufo's Decision, # 2 Exhibit 2−−PLCV09−00135 Docket, # 3 Exhibit 3−−Complaint in PLCV09−00135, # 4 Exhibit 4−−PI Motion In PLCV09−00135, # 5 Exhibit 5−Stipulation of Dismissal in PLCV09−00135, # 6 Exhibit 6−Affidavit of Scott Anderson, # 7 Exhibit 7−−Affidavit of Peter Heffernan, # 8 Exhibit 8−−Affidavit of Jamie Brown, # 9 Exhibit 9−−Photograph, # 10 Exhibit 10−Affidavit of Carol Lawton, # 11 Exhibit 11−Affidavit of John O'Brien, # 12 Exhibit 12−−Incident Report, # 13 Exhibit 13−−CD−Rom being manually filed, # 14 Exhibit 14−Affidavit of Tom Groblewski, # 15 Exhibit 15−Affidavit of Erik Hamel, # 16 Exhibit 16−Affidavit of Carlos Flores, # 17 Exhibit 17−Affidavit of Carole Lyman)(Grant, Sheryl) (Entered: 03/04/2011)
40 NOTICE OF MANUAL FILING by Peter Heffernan, Massachusetts Department of Correction re 39 Memorandum in Opposition to Motion,,, of Exhibit 13 (Grant, Sheryl) (Entered: 03/04/2011)
43 EXHIBIT 13 with attached CD−Rom containing Video Footage re 39 Memorandum in Opposition to Motion,,, by Massachusetts Department of Correction. (Johnson, Jay) (Main Document 43 replaced on 3/8/2011) (Johnson, Jay). (Entered: 03/08/2011)
41 CERTIFICATION pursuant to Local Rule 16.1 . (Thompson, Joel) (Entered: 03/08/2011)
42 CERTIFICATION pursuant to Local Rule 16.1 from Richard Nunes. (Thompson, Joel) (Entered: 03/08/2011)
45 REPLY to Response to 27 MOTION for Preliminary Injunction filed by Richard Nunes. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Thompson, Joel) (Entered: 03/11/2011)
46 Judge Rya W. Zobel: ORDER entered. re 27 MOTION for Preliminary Injunction filed by Richard Nunes, (Hearing set for 4/12/2011 03:00 PM in Courtroom 12 before Judge Rya W. Zobel.)(Urso, Lisa) (Entered: 03/21/2011)
47 STIPULATION for Entry of a Protective Order for the Protection of Confidential Information by Carl Coe, John Doe, Warren Ferguson, Thomas Groblewski, Peter Heffernan, Massachusetts Department of Correction, Leonard McGuire, Richard Nunes, Peter Poe, Richard Roe, Judith Steinberg. (Attachments: # 1 Exhibit 1)(Pierce, Jennifer) (Entered: 03/28/2011)
48 Judge Rya W. Zobel: ORDER entered. PROTECTIVE ORDER(Urso, Lisa) (Entered: 04/08/2011)
ELECTRONIC Clerk's Notes for proceedings held before Judge Rya W. Zobel: Motion Hearing held on 4/12/2011 re 27 MOTION for Preliminary Injunction filed by Richard Nunes, Plaintiff to file form in 2 weeks; ( Status Report due by 4/26/2011). (Court Reporter: Catherine Handel at 617−261−0555.)(Attorneys present: Thompson, Pritchard, Bello &Grant) (Urso, Lisa) (Entered: 04/13/2011)

Case: 1:10-cv-12013 As of: 10/05/2014 06:22 PM EDT 8 of 14

04/26/2011
04/26/2011 04/27/2011 04/27/2011 04/27/2011 04/27/2011
04/27/2011 04/28/2011 05/04/2011 05/04/2011 05/16/2011 06/03/2011 06/03/2011 06/06/2011 06/06/2011 06/14/2011 08/16/2011 08/30/2011 08/31/2011

49 STATUS REPORT regarding plaintiff Richard Nunes' Request for Accommodations by Massachusetts Department of Correction, UMass Correctional Health. (Attachments restricted due to personal identifying information: # 1 Exhibit A, # 2 Exhibit B)(Grant, Sheryl) Modified on 4/27/2011 (Johnson, Jay). (Entered: 04/26/2011)
50 MOTION for Extension of Time to April 28, 2011 to File Status Report by Richard Nunes.(Thompson, Joel) (Entered: 04/26/2011)
Judge Rya W. Zobel: ELECTRONIC ORDER entered granting 50 Motion for Extension of Time (Urso, Lisa) (Entered: 04/27/2011)
Set/Reset Deadlines: Status Report due by 4/28/2011 (Urso, Lisa) (Entered: 04/27/2011)
51 NOTICE of Withdrawal of Appearance by Jennifer N. Pierce (Pierce, Jennifer) (Entered: 04/27/2011)
52 NOTICE of Appearance by Christopher Quinn on behalf of Warren Ferguson, Thomas Groblewski, Leonard McGuire, Judith Steinberg, UMass Correctional Health (Quinn, Christopher) (Main Document 52 replaced on 4/27/2011) (Johnson, Jay). (Entered: 04/27/2011)
53 CERTIFICATE OF SERVICE pursuant to LR 5.2 by Warren Ferguson, Thomas Groblewski, Leonard McGuire, Judith Steinberg, UMass Correctional Health re 52 Notice of Appearance. (Quinn, Christopher) (Entered: 04/27/2011)
54 STATUS REPORT by Richard Nunes. (Attachments: # 1 Affidavit Affidavit of Richard Nunes)(Thompson, Joel) (Entered: 04/28/2011)
55 NOTICE of Change of Address or Firm Name by Joel H. Thompson (Thompson, Joel) (Entered: 05/04/2011)
56 NOTICE of Change of Address or Firm Name by Tatum A. Pritchard (Pritchard, Tatum) (Entered: 05/04/2011)
57 Judge Rya W. Zobel: ORDER entered. re 27 MOTION for Preliminary Injunction filed by Richard Nunes; Defendants have until 6/3/11 to amend accommodations; (Urso, Lisa) (Entered: 05/16/2011)
58 STATUS REPORT Regarding the Plaintiff Richard Nunes' Request for Accommodations by Massachusetts Department of Correction, UMass Correctional Health. (Grant, Sheryl) (Entered: 06/03/2011)
59 NOTICE OF MANUAL FILING by Massachusetts Department of Correction, UMass Correctional Health Exhibits A−F re 58 Status Report (Grant, Sheryl) (Entered: 06/03/2011)
60 EXHIBITS A−F re 58 Status Report by Massachusetts Department of Correction, UMass Correctional Health. (Johnson, Jay) (Entered: 06/06/2011)
61 Plaintiff Richard Nunes Response to 63 Status Report by Defendants. (Attachments: # 1 Affidavit Affidavit of Joel Thompson)(Thompson, Joel) Modified on 6/7/2011 (Johnson, Jay). (Entered: 06/06/2011)
62 APPENDIX/EXHIBIT re 61 Status Report Response by Richard Nunes. (Pritchard, Tatum) (Entered: 06/14/2011)
63 Joint MOTION for Extension of Time to 11/30/2011 to Complete Discovery by Carl Coe, John Doe, Richard Nunes, Peter Poe, Richard Roe.(Thompson, Joel) (Entered: 08/16/2011)
Judge Rya W. Zobel: ENDORSED ORDER entered granting 63 Motion for Extension of Time to Complete Discovery Discovery to be completed by 11/30/2011 (Urso, Lisa) (Entered: 08/31/2011)
Set/Reset Deadlines: Status Report due by 12/9/2011 (Urso, Lisa) (Entered: 08/31/2011)

Case: 1:10-cv-12013 As of: 10/05/2014 06:22 PM EDT 9 of 14

09/19/2011 09/23/2011 09/27/2011 09/30/2011 10/18/2011 10/24/2011
10/25/2011
11/02/2011 11/02/2011 11/02/2011 11/07/2011 11/08/2011 11/08/2011
11/08/2011 11/14/2011 11/15/2011 11/25/2011 11/28/2011 11/29/2011

64 STATUS REPORT by Richard Nunes. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit)(Pritchard, Tatum) (Entered: 09/19/2011)
ELECTRONIC ENDORSEMENT re 64 Status Report filed by Richard Nunes. Defendants shall file a response on or before 9/27/11. (Urso, Lisa) (Entered: 09/23/2011)
65 STATUS REPORT Joint by Massachusetts Department of Correction, UMass Correctional Health. (Attachments: # 1 Exhibit, # 2 Exhibit)(Quinn, Christopher) (Entered: 09/27/2011)
66 Judge Rya W. Zobel: ORDER entered denying 27 Motion for Preliminary Injunction (Urso, Lisa) (Entered: 09/30/2011)
67 Joint MOTION to Take Deposition from Plaintiffs, Richard Nunes, Carle Coe, John Doe, Peter Poe and Richard Roe by UMass Correctional Health.(Quinn, Christopher) (Entered: 10/18/2011)
68 Opposition re 67 Joint MOTION to Take Deposition from Plaintiffs, Richard Nunes, Carle Coe, John Doe, Peter Poe and Richard Roe filed by Carl Coe, John Doe, Richard Nunes, Peter Poe, Richard Roe. (Thompson, Joel) (Entered: 10/24/2011)
69 MOTION to Amend 1 Complaint by Richard Nunes. (Attachments: # 1 Affidavit, # 2 Exhibits restricted due to personal identifiers , # 3 Amended Complaint, # 4 Certificate of Service)(Johnson, Jay) Modified on 10/27/2011 (Johnson, Jay). (Entered: 10/27/2011)
70 MOTION to Seal Document 69 MOTION to Amend 1 Complaint − Exhibits to Affidavit by Richard Nunes.(Thompson, Joel) (Entered: 11/02/2011)
71 MOTION to Withdraw as Attorney for Richard Nunes by Richard Nunes.(Thompson, Joel) (Entered: 11/02/2011)
72 MOTION to Seal Document 71 MOTION to Withdraw as Attorney for Richard Nunes (Affidavit of Counsel) by Richard Nunes.(Thompson, Joel) (Entered: 11/02/2011)
73 ANSWER to 1 Complaint with Jury Demand by UMass Correctional Health.(Quinn, Christopher) (Entered: 11/07/2011)
Judge Rya W. Zobel: ELECTRONIC ORDER entered granting 72 Motion to Seal Document (Urso, Lisa) (Entered: 11/08/2011)
74 REPLY to Response to 67 Joint MOTION to Take Deposition from Plaintiffs, Richard Nunes, Carle Coe, John Doe, Peter Poe and Richard Roe filed by Warren Ferguson, Thomas Groblewski, Leonard McGuire, Judith Steinberg, UMass Correctional Health. (Quinn, Christopher) (Entered: 11/08/2011)
75 Opposition re 71 MOTION to Withdraw as Attorney for Richard Nunes filed by Richard Nunes. (Request for oral argument) (Attachments: # 1 Exhibit A)(Johnson, Jay) (Entered: 11/09/2011)
76 Response by Richard Nunes to the 77 affidavit of Joel H. Thompson in Support of Motion to Withdraw Appearance. (Attachments: # 1 Exhibit A)(Johnson, Jay) Modified on 11/15/2011 (Johnson, Jay). (Entered: 11/15/2011)
77 SEALED DOCUMENT: Affidavit in Support of 71 MOTION to Withdraw as Attorney for Richard Nunes by Richard Nunes.. (Attachments: # 1 Exhibit 1−4)(Johnson, Jay) (Entered: 11/15/2011)
78 Letter/request (non−motion) from Richard Nunes requesting docket sheet. (Johnson, Jay) (Entered: 11/28/2011)
DOCKET SHEET sent to Richard Nunes (Johnson, Jay) (Entered: 11/28/2011)
79 MOTION for Extension of Time to 01/31/2012 to Complete Discovery by Carl Coe, John Doe, Richard Nunes, Peter Poe, Richard Roe.(Thompson, Joel) (Entered: 11/29/2011)

Case: 1:10-cv-12013 As of: 10/05/2014 06:22 PM EDT 10 of 14

12/13/2011 12/15/2011 12/20/2011
12/22/2011 01/24/2012 01/26/2012 01/26/2012 07/02/2012
07/10/2012 07/11/2012 09/11/2012
12/07/2012 12/12/2012 12/14/2012 12/14/2012

Judge Rya W. Zobel: ENDORSED ORDER entered granting 79 Motion for Extension of Time to Complete Discovery Discovery to be completed by 1/31/2012 (Urso, Lisa) (Entered: 12/14/2011)
Judge Rya W. Zobel: ENDORSED ORDER entered denying 69 Motion to Amend(never docketed) (Urso, Lisa) (Entered: 12/20/2011)
ELECTRONIC Clerk's Notes for proceedings held before Judge Rya W. Zobel: denying 71 Motion to Withdraw as Attorney. by agreement of the parties ; Telephone Conference held on 12/20/2011. (Court Reporter: Catherine Handel at 617−261−0555.)(Attorneys present: Thompson, Pritchard &Mr. Nunes by phone) (Urso, Lisa) (Entered: 12/20/2011)
Judge Rya W. Zobel: ENDORSED ORDER entered granting 67 Motion to Take Deposition of Richard Nunes ; granting 70 Motion to Seal Document (Urso, Lisa) (Entered: 12/28/2011)
80 Joint MOTION for Extension of Time to 7/31/2012 to Complete Discovery by Carl Coe, John Doe, Richard Nunes, Peter Poe, Richard Roe.(Thompson, Joel) (Entered: 01/24/2012)
Judge Rya W. Zobel: ENDORSED ORDER entered granting 80 Motion for Extension of Time to Complete Discovery Discovery to be completed by 7/31/2012; a further conference is set for 8/8/12 at 2:00 p.m. (Urso, Lisa) (Entered: 01/26/2012)
Set/Reset Hearings: Further Scheduling Conference set for 8/8/2012 02:00 PM in Courtroom 12 before Judge Rya W. Zobel. (Urso, Lisa) (Entered: 01/26/2012)
81 Joint MOTION for Extension of Time to 08/31/2012 to Complete Discovery by Carl Coe, John Doe, Warren Ferguson, Thomas Groblewski, Peter Heffernan, Massachusetts Department of Correction, Leonard McGuire, Richard Nunes, Peter Poe, Richard Roe, Judith Steinberg, UMass Correctional Health.(Thompson, Joel) (Entered: 07/02/2012)
Judge Rya W. Zobel: ENDORSED ORDER entered granting 81 Motion for Extension of Time to Complete Discovery Discovery to be completed by 8/31/2012. A further scheduling conference is REset to 9/11/12 at 2:30 p.m. (Urso, Lisa) (Entered: 07/11/2012)
Set/Reset Hearings: Scheduling Conference REset for 9/11/2012 02:30 PM in Courtroom 12 before Judge Rya W. Zobel. (Urso, Lisa) (Entered: 07/11/2012)
82 ELECTRONIC Clerk's Notes for proceedings held before Judge Rya W. Zobel: Further Scheduling Conference held on 9/11/2012, Set Deadlines/Hearing as to ( Responses due by 1/31/2013, 5 page Replies due by 2/8/2013., Motion Hearing set for 2/26/2013 02:00 PM in Courtroom 12 before Judge Rya W. Zobel.), ( Motions due by 12/14/2012). (Court Reporter: No Court Reporter Used.)(Attorneys present: Thompson, Bell &Grant) (Urso, Lisa) (Entered: 09/13/2012)
83 NOTICE of Appearance by Robert V. Delanders on behalf of Warren Ferguson, Thomas Groblewski, Leonard McGuire, Judith Steinberg, UMass Correctional Health (Delanders, Robert) (Entered: 12/07/2012)
84 Assented to MOTION for Leave to File Excess Pages of Consolidated Memorandum of Law by Warren Ferguson, Thomas Groblewski, Leonard McGuire, Judith Steinberg, UMass Correctional Health.(Weigand, Tory) (Entered: 12/12/2012)
85 Assented to MOTION to Seal Certain Summary Judgment Materials by Warren Ferguson, Thomas Groblewski, Peter Heffernan, Massachusetts Department of Correction, Leonard McGuire, Judith Steinberg, UMass Correctional Health. (Attachments: # 1 Exhibit 1)(Weigand, Tory) (Entered: 12/14/2012)
86 Assented to MOTION for Leave to File Excess Pages for memorandum of law in support of motion for summary judgment by Peter Heffernan, Massachusetts Department of Correction.(Grant, Sheryl) (Entered: 12/14/2012)

Case: 1:10-cv-12013 As of: 10/05/2014 06:22 PM EDT 11 of 14

12/14/2012 12/14/2012 12/14/2012 12/14/2012 12/17/2012 12/17/2012 12/19/2012
01/23/2013 01/24/2013 02/12/2013 02/14/2013
02/14/2013 02/14/2013 02/14/2013

87 MOTION for Summary Judgment by Peter Heffernan, Massachusetts Department of Correction.(Grant, Sheryl) (Entered: 12/14/2012)
88 MEMORANDUM in Support re 87 MOTION for Summary Judgment filed by Peter Heffernan, Massachusetts Department of Correction. (Grant, Sheryl) (Entered: 12/14/2012)
89 MOTION for Summary Judgment by Warren Ferguson, Thomas Groblewski, Leonard McGuire, Judith Steinberg, UMass Correctional Health.(Weigand, Tory) (Entered: 12/14/2012)
90 SEALED DOCUMENT: Department of Corrections and Peter Heffernan's Statement of Undisputed Material Facts Pursuant to LR 56.1. in support of 87 MOTION for Summary Judgment (Johnson, Jay) (Entered: 12/17/2012)
91 (SEALED) MEMORANDUM in Support re 89 MOTION for Summary Judgment filed by Warren Ferguson, Thomas Groblewski, Leonard McGuire, Judith Steinberg, UMass Correctional Health. (Johnson, Jay) (Entered: 12/18/2012)
92 (SEALED DOCUMENT)Statement of Material Facts in Support re 89 MOTION for Summary Judgment filed by Warren Ferguson, Thomas Groblewski, Leonard McGuire, Judith Steinberg, UMass Correctional Health.. (Johnson, Jay) (Entered: 12/18/2012)
93 Judge Rya W. Zobel: ELECTRONIC ORDER entered granting 84 Motion for Leave to File Excess Pages ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document.; granting 85 Motion to Seal; granting 86 Motion for Leave to File Excess Pages ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Urso, Lisa) (Entered: 12/19/2012)
94 Assented to MOTION for Extension of Time to February 14, 2013 to File Response/Reply as to 87 MOTION for Summary Judgment , 89 MOTION for Summary Judgment by Carl Coe, John Doe, Richard Nunes, Peter Poe, Richard Roe.(Thompson, Joel) (Entered: 01/23/2013)
95 Judge Rya W. Zobel: ELECTRONIC ORDER entered granting 94 Motion for Extension of Time to File Response/Reply re 87 MOTION for Summary Judgment , 89 MOTION for Summary Judgment Responses due by 2/14/2013 (Urso, Lisa) (Entered: 01/24/2013)
96 Assented to MOTION for Leave to File Excess Pages by Carl Coe, John Doe, Richard Nunes, Peter Poe, Richard Roe.(Thompson, Joel) (Entered: 02/12/2013)
97 Judge Rya W. Zobel: ELECTRONIC ORDER entered granting 96 Motion for Leave to File Excess Pages ; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Urso, Lisa) (Entered: 02/14/2013)
98 Opposition re 87 MOTION for Summary Judgment , 89 MOTION for Summary Judgment filed by Carl Coe, John Doe, Richard Nunes, Peter Poe, Richard Roe. (Thompson, Joel) (Entered: 02/14/2013)
99 Cross Statement of Material Facts L.R. 56.1 re 87 MOTION for Summary Judgment filed by Carl Coe, John Doe, Richard Nunes, Peter Poe, Richard Roe. (Thompson, Joel) (Entered: 02/14/2013)
100 Cross Statement of Material Facts L.R. 56.1 re 89 MOTION for Summary Judgment filed by Carl Coe, John Doe, Richard Nunes, Peter Poe, Richard Roe. (Thompson, Joel) (Entered: 02/14/2013)

Case: 1:10-cv-12013 As of: 10/05/2014 06:22 PM EDT 12 of 14

02/14/2013 02/14/2013
02/14/2013 02/15/2013 02/20/2013 02/21/2013 02/22/2013 03/11/2013 03/11/2013 03/14/2013 03/20/2013

101 Statement of Material Facts L.R. 56.1 re 87 MOTION for Summary Judgment , 89 MOTION for Summary Judgment filed by Carl Coe, John Doe, Richard Nunes, Peter Poe, Richard Roe. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, # 4 Exhibit Exhibit 4, # 5 Exhibit Exhibit 5)(Thompson, Joel) (Entered: 02/14/2013)
102 Statement of Material Facts L.R. 56.1 re 87 MOTION for Summary Judgment , 89 MOTION for Summary Judgment filed by Carl Coe, John Doe, Richard Nunes, Peter Poe, Richard Roe. (Attachments: # 1 Exhibit 6, # 2 Exhibit 7, # 3 Exhibit 8, # 4 Exhibit 9, # 5 Exhibit 10, # 6 Exhibit 11, # 7 Exhibit 12, # 8 Exhibit 13, # 9 Exhibit 14, # 10 Exhibit 15, # 11 Exhibit 16, # 12 Exhibit 18, # 13 Exhibit 19, # 14 Exhibit 20, # 15 Exhibit 21, # 16 Exhibit 22, # 17 Exhibit 23, # 18 Exhibit 24, # 19 Exhibit 25, # 20 Exhibit 26, # 21 Exhibit 27, # 22 Exhibit 28, # 23 Exhibit 29, # 24 Exhibit 30, # 25 Exhibit 31, # 26 Exhibit 32, # 27 Exhibit 33, # 28 Exhibit 34, # 29 Exhibit 35, # 30 Exhibit 40, # 31 Exhibit 41, # 32 Exhibit 42, # 33 Exhibit 43, # 34 Exhibit 44, # 35 Exhibit 45, # 36 Exhibit 46, # 37 Exhibit 47, # 38 Exhibit 48, # 39 Exhibit 49, # 40 Exhibit 50, # 41 Exhibit 51, # 42 Exhibit 52, # 43 Exhibit 53, # 44 Exhibit 54, # 45 Exhibit 55, # 46 Exhibit 56, # 47 Exhibit 58, # 48 Exhibit 59, # 49 Exhibit 60, # 50 Exhibit 61, # 51 Exhibit 62, # 52 Exhibit 63, # 53 Exhibit 64, # 54 Exhibit 65, # 55 Exhibit 66)(Thompson, Joel) (Entered: 02/14/2013)
103 NOTICE OF MANUAL FILING by Carl Coe, John Doe, Richard Nunes, Peter Poe, Richard Roe Exhibits 17, 36−39, 57 re 101 Statement of Material Facts L.R. 56.1, (Thompson, Joel) (Entered: 02/14/2013)
104 ADDENDUM re 87 MOTION for Summary Judgment , 89 MOTION for Summary Judgment to Plaintiffs' Statement of Material Facts filed by Carl Coe, John Doe, Richard Nunes, Peter Poe, Richard Roe. (Attachments: # 1 Addendum to Ex. 63, # 2 Addendum to Ex. 64, # 3 Addendum to Ex. 65, # 4 Exhibit List to Plaintiffs' Additional Statement of Material Facts)(Thompson, Joel) (Entered: 02/15/2013)
105 (SEALED) EXHIBITS re 102 Statement of Material Facts L.R. 56.1,,,,, by Carl Coe, John Doe, Richard Nunes, Peter Poe, Richard Roe. (Attachments: # 1 Exhibit 36, # 2 Exhibit 37, # 3 Exhibit 38, # 4 Exhibit 39, # 5 Exhibit 57)(Johnson, Jay) (Entered: 02/20/2013)
106 Assented to MOTION for Extension of Time to March 11, 12, 13, week of March 18, April 15 or May 23 to File Reply Memorandum and Reschedule Oral Argument by Warren Ferguson, Thomas Groblewski, Peter Heffernan, Massachusetts Department of Correction, Leonard McGuire, Judith Steinberg, UMass Correctional Health.(Weigand, Tory) (Entered: 02/21/2013)
107 Judge Rya W. Zobel: ELECTRONIC ORDER entered granting 106 Motion for Extension of Time Hearing REset for 3/21/2013 02:30 PM in Courtroom 12 before Judge Rya W. Zobel. (Urso, Lisa) (Entered: 02/22/2013)
108 REPLY to Response to 87 MOTION for Summary Judgment filed by Peter Heffernan, Massachusetts Department of Correction. (Grant, Sheryl) (Entered: 03/11/2013)
109 Statement of Additional Material Response by Warren Ferguson, Thomas Groblewski, Peter Heffernan, Massachusetts Department of Correction, Leonard McGuire . (Attachments: # 1 Memo re−filed as separate pleading, # 2 Affidavit, # 3 Affidavit)(Weigand, Tory) Modified on 3/14/2013 (Johnson, Jay). (Entered: 03/11/2013)
110 MEMORANDUM OF LAW by Warren Ferguson, Thomas Groblewski, Peter Heffernan, Massachusetts Department of Correction, Leonard McGuire, Judith Steinberg, UMass Correctional Health to 109 RESPONSES TO PLAINTIFFSSTATEMENT OF ADDITIONAL MATERIAL FACTS ASTO WHICH THERE IS A GENUINE DISPUTE. (re−filed as separate pleading) (Johnson, Jay) (Entered: 03/14/2013)
111 ELECTRONIC NOTICE Resetting Hearing on Motion 87 MOTION for Summary Judgment , 89 MOTION for Summary Judgment : Motion Hearing REset for 4/18/2013 02:30 PM in Courtroom 12 before Judge Rya W. Zobel. (The court apologizes for any inconvenience) (Urso, Lisa) (Entered: 03/20/2013)

Case: 1:10-cv-12013 As of: 10/05/2014 06:22 PM EDT 13 of 14

04/11/2013 05/17/2013 05/22/2013
06/24/2013 06/27/2013
08/02/2013 08/05/2013 10/03/2013 10/03/2013 10/24/2013
10/25/2013 10/25/2013 09/12/2014

112 ELECTRONIC NOTICE Resetting Hearing on Motion 87 MOTION for Summary Judgment , 89 MOTION for Summary Judgment : Motion Hearing REset for 5/22/2013 02:00 PM in Courtroom 12 before Judge Rya W. Zobel. (Urso, Lisa) (Entered: 04/11/2013)
113 MOTION for Leave to File Supplement to Plaintiffs' Statement of Additional Material Facts as to Which There Is a Genuine Dispute by Carl Coe, John Doe, Richard Nunes, Peter Poe, Richard Roe. (Attachments: # 1 Supplement to Plaintiffs' Statement of Additional Material Facts as to Which There Is a Genuine Dispute, # 2 Exhibit Exhibit 67)(Thompson, Joel) (Entered: 05/17/2013)
114 ELECTRONIC Clerk's Notes for proceedings held before Judge Rya W. Zobel: Motion Hearing held on 5/22/2013 re 87 MOTION for Summary Judgment filed by Peter Heffernan, Massachusetts Department of Correction, 89 MOTION for Summary Judgment filed by Judith Steinberg, Warren Ferguson, Thomas Groblewski, UMass Correctional Health, Leonard McGuire. Judge hears counsel and takes matter under advisement; (Court Reporter: Catherine Handel at 617−261−0555.)(Attorneys present: Thompson, Pritchard, Grant, Ballo &Weigand) (Urso, Lisa) (Entered: 05/22/2013)
115 Letter/request (non−motion) from Richard Nunes requesting docket. (Johnson, Jay) (Entered: 06/25/2013)
116 Joint RESPONSE to Motion re 113 MOTION for Leave to File Supplement to Plaintiffs' Statement of Additional Material Facts as to Which There Is a Genuine Dispute Response to Plaintiffs' Statement of Additinoal Material Facts by Plaintiff Nunes filed by Warren Ferguson, Thomas Groblewski, Peter Heffernan, Massachusetts Department of Correction, Leonard McGuire, Judith Steinberg, UMass Correctional Health. (Attachments: # 1 Exhibit Def. Ex. 124, # 2 Exhibit Def. Ex. 125)(Grant, Sheryl) (Entered: 06/27/2013)
117 MOTION to Seal Document Disclosing John Doe Plaintiffs' Identities by Carl Coe, John Doe, Richard Nunes, Peter Poe, Richard Roe.(Thompson, Joel) (Entered: 08/02/2013)
118 Judge Rya W. Zobel: ELECTRONIC ORDER entered granting 117 Motion to Seal Document (Urso, Lisa) (Entered: 08/05/2013)
120 Judge Rya W. Zobel: Memorandum of Decision entered granting 87 Motion for Summary Judgment; granting 89 Motion for Summary Judgment; denying 113 Motion for Leave to File Document as moot. Judgment shall enter accordingly. (Urso, Lisa) (Entered: 10/03/2013)
121 Judge Rya W. Zobel: ORDER entered. JUDGMENT ENTERED FOR DEFENDANTS (Urso, Lisa) (Entered: 10/03/2013)
122 NOTICE OF APPEAL as to 121 Judgment by Carl Coe, John Doe, Richard Nunes, Peter Poe, Richard Roe Filing fee: $ 455, receipt number 0101−4695191 Fee Status: Not Exempt. NOTICE TO COUNSEL: A Transcript Report/Order Form, which can be downloaded from the First Circuit Court of Appeals web site at http://www.ca1.uscourts.gov MUST be completed and submitted to the Court of Appeals. Counsel shall register for a First Circuit CM/ECF Appellate Filer Account at http://pacer.psc.uscourts.gov/cmecf. Counsel shall also review the First Circuit requirements for electronic filing by visiting the CM/ECF Information section at http://www.ca1.uscourts.gov/efiling.htm. US District Court Clerk to deliver official record to Court of Appeals by 11/13/2013. (Thompson, Joel) (Entered: 10/24/2013)
123 Certified and Transmitted Abbreviated Electronic Record on Appeal to US Court of Appeals re 122 Notice of Appeal (Paine, Matthew) (Entered: 10/25/2013)
124 USCA Case Number 13−2346 for 122 Notice of Appeal filed by John Doe, Richard Roe, Carl Coe, Richard Nunes, Peter Poe. (Paine, Matthew) (Entered: 10/25/2013)
126 OPINION of USCA as to 122 Notice of Appeal filed by John Doe, Richard Roe, Carl Coe, Richard Nunes, Peter Poe. (Paine, Matthew) (Entered: 09/15/2014)

Case: 1:10-cv-12013 As of: 10/05/2014 06:22 PM EDT 14 of 14

09/12/2014

127 USCA Judgment as to 122 Notice of Appeal filed by John Doe, Richard Roe, Carl Coe, Richard Nunes, Peter Poe. The district court's grant of summary judgment to the defendants on all claims is affirmed. (Paine, Matthew) (Entered: 09/15/2014)