Jeffrey Mann, John Bragg and Eric Pastrano (“Plaintiffs”) are incarcerated at Grafton Correctional Institute (“GCI”) and have been diagnosed with HCV. A relatively new class of direct-acting antiretroviral (“DAA”) drugs can cure HCV in most cases, with a quicker treatment regimen and fewer side effects than older-generation antiretrovirals. The current standard of care is to treat all patients with chronic HCV, except those with a short life expectancy. Plaintiffs have each been denied DAA treatment based on ODRC’s medical protocol, which requires patients to have an APRI—a lab value used to measure the disease’s progression—of 1.5 or greater. Plaintiffs filed a pro se lawsuit challenging the denial of HCV treatment on the grounds that it constitutes deliberate indifference in violation of the Eighth Amendment, and seeking declaratory, injunctive and compensatory relief.
Prison officials violate the Eighth Amendment’s prohibition on cruel and unusual punishment by being deliberately indifferent to a prisoner’s serious medical needs. The defendants here have conceded that Hepatitis C is a serious medical need, so on appeal we will argue that a blanket medical policy of denying DAA treatment until a 1.5 APRI value is indicated, without an individualized determination, constitutes deliberate indifference.
Plaintiffs brought this case pro se in U.S. District Court, Southern District of Ohio, Case number 2:18-cv-01565, Judge George C. Smith presiding. They filed their complaint on December 11, 2018. On February 20, 2019, the State of Ohio filed a Motion to Dismiss for Failure to State a Claim. ODRC and three individual defendants filed a Motion to Dismiss on March 3. A remaining individual defendant, Mona Parks, the Chief Medical Officer for ODRC, filed her Motion to Dismiss on June 17, 2019. Briefing on the Motions to Dismiss culminated on July 24, 2019, and although the magistrate recommended that the motions to dismiss be denied, Judge Smith entered an order granting the dismissal.
On October 20, Plaintiffs filed a Notice of Appeal. We entered our appearances in the Sixth Circuit on November 14, 2019 and filed our opening brief on January 22. Almost immediately after our brief was filed, we received word from our clients that they had been approved for the DAA treatment regimen that they had requested, which they subsequently received. However, their class-action challenge to ODRC’s policies, and our clients’ claims for monetary damages, remained. Meanwhile, the Attorney General’s office reassigned the case to a more senior attorney and requested an extension on their brief. We did not oppose, and the court granted their request.
Appellee’s brief was filed on April 6, 2020, raising for the first time two arguments that had not been asserted in the trial court—qualified immunity, and mootness. We obtained an extension of time to file our reply brief until May 22, 2020 and filed our brief on that date. Jennifer Wedekind participated in oral argument on July 30. The Sixth Circuit announced its decision very quickly and, on August 3, remanded the case to the trial court for examination of the two newly raised issues.
On September 1 the District Court entered a calendar order requiring discovery to conclude by February 15 and dispositive motions to be filed by May 14, 2021.