UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) Jean-Gabriel Bernier, ) ) Plaintiff, ) ) v. ) Civil N o. 16-cv-00828 (APM) ) Barack H. Obama, et al. , ) ) Defendants. ) _________________________________________ ) MEMORANDUM OPINION AND ORDER This matter is before the court on Plaintiff Jean-Gabriel Bern ier’s motion “for a preliminary injunction directing [ ] [D]efe ndant BOP Chief Physician Jeff A llen to provide Plaintiff with the drug treatment regimen of Harvon i; [and directing] [D]efendant BOP Director Samuels to house Plaintiff in a two-man cell.” Notice of Motion, ECF No. 9. 1 For the reasons dis cussed below, the motion is denied. I. BACKGROUND A. First Cause of Action: Treatment for Hepatitis C 1. Plaintiff’s Factual Allegations Plaintiff “suffers from Hepatitis C,” which he describes as “a virus transmitted primarily through the blood . . . which impairs the liver,” and “ultimate ly leads to cirrhosis” of the liver. Compl., ECF No. 1, ¶ 10. He believes that, if he were to “erad icate the virus now, the liver damage already done . . . will most likely be reversed and the painful symptoms which [he] suffers as a

1 Plaintiff also has named as a de fendant Gilead Sciences, Inc., the maker of Harvoni. Compl., ECF No. 1, ¶ 8. Because Plaintiff’s motion for in junctive relief is not directe d at Gilead Sciences, the co urt need not consider its opposition filing. See Gilead Science’s Op p’n, ECF No. 15.2 result of the present liver damage will cease to exist.” Id . ¶ 24. These symptoms include “nausea, gastric dysfunction, chronic fati gue, night sweats and insomnia .” Id

. Plaintiff alleges that, in October 2014, the Food and Drug Adm inistration granted Gilead Sciences, Inc., “approval to market a drug named Harvoni for th e cure of Hepatitis C.” Id . ¶ 16. The drug is costly, however. Plaintiff represents that “a once a day pill cost[s] about $1,000.00 each amounting to $94,000.00 for a twelve-week treatment.” Id . According to Plaintiff, patients who, like him, are “African-American, Genotype 1 (most difficul t to treat), prior null responder to previous treatment regimens,” experience “amazing results” on H arvoni. Id . ¶ 17. When Plaintiff returned to federal custody in June 2015, he wa s designated to FCI Allenwood, a medium security institution. See id . ¶¶ 18, 29. 2 Based on “test results which indicated cirrhosis from 2012, 2014 and 2015” and “liver biopsy results from 2009 which showed Grade II, Stage II liver conditi ons,” he “requested treatment w ith Harvoni.” Id . ¶ 18. 3 Medical staff at FCI Allenwood, in turn, submitted a “request for treat ment approval . . . to [D]efendant BOP Chief Physician Allen.” Id . Dr. Allen denied the request on the ground that “Plaintiff d id not meet the BOP priority criteria” based on certain, but not a ll, of the test results Plaintiff submitted. Id . ¶ 19. On the belief that the high cost of Harvoni was the basis of D r. Allen’s decision, Plaintiff asked for permission “to partic ipate in the Gilead Patient Assi stance Program which is offered by Gilead for those unable to afford . . . the treatment.” Id . ¶ 25. According to Plaintiff, BOP and

2 “Plaintiff has been in prison since June 26, 1990, when he wa s arrested by New York [S]tate authorities on robbery charges.” Compl. ¶ 28. Subseque ntly “Plaintiff was arrested b y federal authorities on a set of different bank robbery charges and ultimately sentenced to 35 years imprisonment by a federal court.” Id . In addition, he “was . . . sentenced to 25 years imprisonment by the state court.” Id . He began to serve his federal sentence in 1992, was returned to New York State custody in 2003, and then two years later, in June 2 015 “was returned to federal custody and designated to serve the rest of the federal sentence at FCI Allenwood.” Id . ¶ 29. 3 According to Plaintiff, Grade 2 means moderate inflammation o f the liver, and Stage 2 means moderate fibrosis (scarring) of the liver. See Compl. ¶ 12.3 Gilead officials conferred and “decided that prisoners would no t be allowed to participate in the assistance program.” Id . ¶ 26. Nor has the BOP obtaine d other FDA-approved drugs for the treatment of Hepatitis C that recently have become available at a lower cost than Harvoni. Id

. ¶ 27. 2. Defendants’ Representations Elizabete Stahl, D.O. (“Dr. Stah l”), a licensed physician empl oyed as the Clinical Director at FCI Allenwood, examined Plaintiff on August 24, 2015, shortl y after his arrival at the facility. Fed. Defs.’ Opp’n to Pl.’s Mot. for Prelim. Inj., ECF No. 20, E x. A, Decl. of Elizabete Stahl, D.O., ECF No. 20-1 [hereinafter Stahl Decl.], ¶¶ 1, 3-4. According t o Plaintiff’s medical records, he had been diagnosed with Hepatitis C ; an ultrasound of his liver had been done on January 1, 2013; and liver biopsies had been done i n 2004 and 2009, the latter of wh ich rated his c ondition as Grade 2, Stage IIB. Stahl Decl. ¶ 4. Plaintiff’s APRI (AST/Platelet Ra tio Index) score—a numerical method of measuring the risks a ssociated with Hepatitis C—was a0.47, and his ge notype was 1a. Id . Although Plaintiff displayed no clinical symptoms of cirrhos is at that time, Dr. Stahl ordered an updated ultrasound, id ., which was administer ed on September 28, 2015, id . ¶ 5. Plaintiff also underwent an upper endoscopy on November 18, 2015. Id . Plaintiff “was seen by [Dr. Stahl’s] staff on September 29, 2015, and again on October 29, 2015, rel ated to his Hepatitis C condition.” Id . ¶ 6. In addition, on November 2, 2015, a registered nurse di scussed with Plaintiff “the Hepatitis C Clinical Practice Guidelines and algorithm and what lab data staff look at in determining treatment priority levels.” Id

. According to Dr. Stahl, “[t]he BOP has established priority cr iteria to ensure that those [patients] with the greatest need are identified and treated fi rst.” Id . ¶ 7. Priority 1 patients, including those with documented cirrhosis and an APRI score gre ater than two, are the highest4 priority. Priority 4 patients are the lowest priority. See id . Under this framework, Plaintiff is a Priority 3 patient. Id . This gr oup includes “patients with Stage 2 fibrosis on liver biopsy [a nd an] APRI score [of] 1.5 to <2[.]” Id

. At six-month intervals, “the institution’s infectious disease nurse runs a roster of all patients with a current/active diagnosis of Hepatitis C, and ne w APRI scores are calculated on every Hepatitis C patient[ ] and submitted to the clinical dire ctor/designee for review and prioritization.” Id . ¶ 8. Only “[p]atients with APRI scores >2 are scheduled to m eet with a medical provider and go over their intere st/willingness to submit to tr eatment.” Id . Plaintiff’s APRI score as of July 14, 2016, was 0.32. Id

. “On December 22, 2015, a request for Harvoni anti-viral treatm ent for Hepatitis C was submitted,” presumably by Plaintiff. Id . ¶ 9. At that time, Plaintiff had an APRI score of 0.40. Id. The request was denied because, absent evidence of advanced liv er disease, Plaintiff did not meet BOP’s priority treatment criteria. Id . As a Priority 3 patient, Dr. Stahl stated, Plaintiff continues to be “monitored accord ing to BOP Clinical Guidelines .” Id

. B. Second Cause of Action: Six-Man Cells 1. Plaintiff’s Allegations Plaintiff is housed in a six-ma n cell, which was created when “two two-man cells [ ] were converted into one space to house six men.” Compl. ¶ 30. Thes e close conditions “create[] an environment of excess noise and chaos,” id . ¶ 35, and cause “tension and animosity” among the prisoners, id . ¶ 35, whose “standard s of cleanliness,” id . ¶ 36, and sleep schedules, id . ¶ 37, for example, may differ. Plaintiff alleges that “confine[ment] with five other men” leaves him “no personal space for privacy to conduct . . . personal functions, ” id . ¶ 33, and the crowded housing unit “deprives [him] of the opportunity to find some peace of m ind,” id . ¶ 35. These conditions5 have been exacerbated by the addition of 30 men to the housing unit. Id. Plaintiff also complains of inadequate ventilation which “renders the cell stifling in t he summer and freezing cold in the winter time.” Id . ¶ 34. Further, Plaintiff alleges, he has remained in a six-m an cell for almost a
year, see id . ¶ 38 (alleging that Plaintiff was assigned to a six-man cell upon his arrival at FCI Allenwood), while other prisoners were “assigned to a two-man c ell” within days of their arrival at FCI Allenwood, id . ¶ 39. According to Plaintiff, the “prisoners dictate[ ] the cell assignments,” and staff acquiesce to the pris oners’ choices, all of which are “made on the basis of racial, ethnic, geographical or gang affiliation,” id . ¶ 40, because this arrangement supposedly “avoided conflicts” among the prisoners, id . ¶ 41

. 2. Defendants’ Representations Defendants have submitted an affidavit from James Hill, Plaint iff’s correctional counselor. Defs.’ Opp’n, Ex. B, Decl. of James Hill, ECF No. 20-1 [hereina fter Hill Decl.], ¶ 4. Plaintiff is currently housed in Housing Unit 1A at FCI Allenwood. Id . Mr. Hill is “responsible for the housing assignments” in that unit. Id . He describes six-man cells as “either a television room . .

. converted to a six-man cell or . . . two cells modified to crea te one large cell . . . by removing the wall which had separat[ed] tw o cells” and putting in that space a bunk bed. Id . ¶ 5. According to Mr. Hill, these six-man cells meet American Correctional Associ ation standards. Id

. Mr. Hill maintains an unofficial list of inmates awaiting reas signment to two-man cells. Id . ¶ 7. He updates the list periodically as inmates move out of six-man cells into two-man cells. Id . According to Mr. Hill, “[o]n October 13, 2015, there were 30 inmates on the . . . list, and [Plaintiff] was number 14[.]” Id . When Mr. Hill last updated his list on April 7, 2016, Plaint iff6 was number 1 on a li st of 29 inmates. Id . Plaintiff’s cell assignment is complicated somewhat by his need for a bottom bunk. Id

. Although Plaintiff blames Defenda nts for his prolonged stay in a six-man cell, Mr. Hill avers that he has “offered [Plaintiff] placement in a two-man c ell on numerous occasions, and [Plaintiff] has declined . . . each time.” Id . ¶ 6. He explains that Plaintiff “is very particular with his cellmate selection and does no t want to move into a [cell] which already has another inmate assigned to it.” Id . Rather, Plaintiff “only wants to move into an empty two-man cell in hopes that he will be able to select whom his cellmate will be.” Id . Plaintiff dismisses Mr. Hill’s assertions as “downright fabrication,” and maintains that inmat es, not Mr. Hill, determine cell assignments. Reply to Opp’n f or Prelim. Inj., ECF No. 25, at 3

. II. DISCUSSION “The purpose of a preliminary in junction is merely to preserve the relative positions of the parties until a trial on the merits can be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). “[A] preliminary injunc tion is an extraordinary and dr astic remedy . . . that should not be granted unless the movant, by a clear showing , carries the burden of persuasion.” Mazurek v. Armstrong , 520 U.S. 968, 972 (1997) (per curiam) (emphasis in original) (citation omitted). In determining whether to grant a preliminary injunction this c ourt “must balance four factors: (1) the movant’s showing of a s ubstantial likelihood of success on the merits, (2) irreparable harm to the movant, (3) substantial harm to the nonmovant, and (4) p ublic interest.” Davis v. Pension Ben. Guar. Corp. , 571 F.3d 1288, 1291 (D.C. Cir. 2009) (citation omitted). In the District of Columbia Circuit, courts have “traditionall y balanced these four factors on a ‘sliding scale’ whereby a movant’s unusually strong showin g on one factor could compensate for weaker showings on one or more other factors.” Pinson v. US Dep’t of Justice , No. CV 12-7 1872, 2016 WL 1408079, at *2 (D.D.C. Apr. 8, 2016) (citations o mitted). The sliding scale approach has been called int o question, however, i n light of th e Supreme Court’s ruling in Winter v. Nat. Res. Def. Council , 555 U.S. 7, 20 (2008), which requires “some showing on each f actor,” Singh v. Carter , No. CV 16-399, 2016 WL 2626844, at *5 (D.D.C. May 6, 2016) (c iting Winter , 555 U.S. at 23-24, 31-32). In this case, the court need not consider any other factor oth er than the first: Plaintiff’s likelihood of success. Plaintiff’s motion is denied because he fails to demonstrate a substantial likelihood of success on the merits of his claims. A. Harvoni Treatment According to Plaintiff, Defendants’ refusal to provide adequat e medical treatment for Hepatitis C “violat[es] . . . the Cruel and Unusual Punishment Clause of the Eighth Amendment to the United States Constitution.” Id . ¶ 46. To state a claim for violation of the Eighth Amendment based on inadequate medical care, Plaintiff must allege “acts o r omissions sufficiently harmful to evidence deliberate indifference to serious medical needs.” Estelle v. Gamble , 429 U.S. 97, 106 (1976). To prevail, Plaintiff mustshow both that his medical needs were objectively serious, and that defendant possessed a suffi ciently culpable state of mind. See Wilson v. Seiter , 501 U.S. 294, 297-99 (1991). The court assumes for present purposes that Pla intiff has shown that he has serious medical needs. His motion neve rtheless fails because he has no t demonstrated that Defendants have been deliberately indiffere nt to those medical needs. Instead, at most, it appears that the parties disagree on a pr oper course of treatment for Plaintiff’s condition. Prison o fficials are not, however, “del iberately indifferent to an inmate’s serious medical need when [a] phys ician prescribes a different method of treatment than that requested by the inmate.” Harrell v. Cal. Forens ic Med. Grp., Inc. , No. 2:15-CV-0579, 2015 WL8 6706587, at *2 (E.D. Cal. Nov. 3, 2015) (citation omitted); see Johnson v. Frakes , No. 8:16CV155, 2016 WL 4148231, at *3 (D. Neb. A ug. 4, 2016) (concluding that “Defendants’ fa ilure to provide Plaintiff with Harvoni, his requested course of treatment, did not constitute an Eighth Amendment violation,” in light of the war den’s “responsive[ness] to Plain tiff’s requests for treatment”); Smith v. Corizon, Inc. , No. 15-743, 2015 WL 9274915, at *6 (D. Md. Dec. 17, 2015) (fi nding that denial of an asymptomatic inmate’s request for Harvoni treatment did n ot reflect deliberate indifference where inmate “was repeatedly s een by prison nurses, [physician’ s assistants] and physicians for his chronic conditions, in cluding [Hepatitis C]”). B. Housing in a Six-Man Cell The court reaches the same conclusion as to his second claim: Plaintiff has failed to demonstrate a likelihood of success on the merits. Plaintiff a lleges that the conditions of his confinement, particularly his placement in a six-man cell, viol ate the Eighth Amendment. That Amendment prohibits punishments which, although not physically barbarous, “involve the unnecessary and wanton infliction of pain . . . or are grossly disproportionate to the severity of the crime.” Rhodes v. Chapman , 452 U.S. 337, 346 (1981) (citations omitted). A prison need not be comfortable, see id . at 349, but it cannot not “deprive inmates of the minimal civ ilized measure of life’s necessities,” id. at 347. See also Helling v. McKinney , 509 U.S. 25, 33 (1993) (“The [Eighth] Amendment . . . requires that inmates be furnished with the bas ic human needs.”). The conditions Plaintiff describe s may be restrictive, uncomfo rtable, and otherwise bothersome, but they do not amount to “barbarous” punishment wh ich contravenes our society’s “evolving standards of decency.” Rhodes , 452 U.S. at 346. Thus, Plaintiff does not demonstrate a substantial likelihood of success on the merits of his claim that the conditions of his confinement in a six-man cell at FCI Allenwood violate the Eighth Amendment

. See, e.g., Muñiz v.9 Richardson , 371 F. App’x 905, 908 (10th Cir. 2010) (finding that allegati ons “about living conditions center[ing] on excessive heating and air conditionin g, dirty mops, insufficiently sized showers, and television program s played continuously in a loop” do not state Eighth Amendment violations); Lawrence v. Fairman , No. 93 C 4325, 1994 WL 529402, at *2 (N.D. Ill. Sept. 27, 1994) (“Mere overcrowding and l ack of a sleeping space or mattr ess are not the type of substantial risk of harm, the disregard of w hich, will support an Eighth Am endment claim.”); Warren v. Stempson , 800 F. Supp. 991, 992-93 (D.D.C. 1992) (finding that the plai ntiff’s allegations of vermin infestation and cold water for showers, while substandar d, did not rise to the level of cruel and unusual punishment), aff’d , 995 F.2d 306 (D.C. Cir. 1993) (per curiam). III. CONCLUSION Accordingly, it is hereby ordered that Plaintiff’s Motion for a Preliminary Injunction, including his requests for expedi ted discovery and for appointm ent of an expert, is denied.

_____________________________ Date: August 24, 2016 Amit P. Mehta United States District Judge