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Cunningham v. Sessions

United States District Court, D. South Carolina, Beaufort Division

May 31, 2017

Eugene Jerome Cunningham, Plaintiff,
Jefferson B. Sessions III; Thomas R. Kane; Dr. Deborah G. Schult; Dr. Ivan Negron; Lieutenant Canada; Dr. J. Onuoha; Harris Hansen; Travis Bragg; and Helen J. Marberry, Defendants.


          Richard Mark Gergel United States District Court Judge

         Plaintiff, an inmate with the Federal Bureau of Prisons ("BOP") assigned to the Federal Correctional Facility in Bennettsville, South Carolina, brought this action pro se seeking monetary, declaratory and injunctive relief. He alleges that Defendants have violated his right to be free from cruel and unusual punishment under the Eighth Amendment of the United States Constitution. Specifically, Plaintiff alleges that he has been diagnosed since 2007 with chronic Hepatitis C, a serious medical condition, and Defendants have refused to provide him curative treatment through the administration of a new generation of direct acting antiviral ("DAA") drugs such as Harvoni. (Dkt. No. 1). Defendants have moved to dismiss Plaintiffs action on a variety of substantive and procedural grounds, arguing, inter alia, that Plaintiffs complaint fails to state a claim under the Eighth Amendment. (Dkt. No. 31). As set forth below, the Court grants Defendants' motion to dismiss all claims for monetary damages, grants Defendants Negron's and Canada's motion to dismiss, and denies the motion to dismiss the claims for declaratory and injunctive relief against all other Defendants.

         I. Factual Background

         Plaintiff alleges that he was diagnosed with chronic Hepatitis C in 2007 and subsequently became aware that a new generation of DAA drugs had been approved by the United States Food and Drug Administration ("FDA") which provided for the first time a cure for Hepatitis C. (Dkt. No. 1 at 5). Plaintiff alleges that he requested that Defendants provide him treatment with this new curative drug and BOP officials have refused to grant his request. (Id.). He further alleges that Defendants have informed him that until his condition develops into advanced cirrhosis of the liver or liver cancer he will not be administered the curative drug. (Id. at 6). Plaintiff alleges that he is suffering harm as a result of Defendants' deliberate and knowing decision to deny him curative treatment for his serious and chronic medical condition until a time in which there will be no effective cure. (Id.). Plaintiff further alleges that his chronic Hepatitis C infection causes him to suffer "headaches, fatigue, abdominal, joint pain, mental and emotional tur[moil], depression, anxiety, and stress." (Dkt. No. 21 at 2).

         The Centers for Disease Control and Prevention ("CDC") has recognized that chronic Hepatitis C is a serious medical condition which can result in long term health problems, including cirrhosis of the liver, liver cancer, and death[1]. There was no known cure for chronic Hepatitis C until very recently, and the therapies previously available produced inconsistent results and severe side effects. Since 2011, the FDA has approved new generation of DAA drugs which have proven to be highly effective in the treatment and cure of Hepatitis C with minimal side effects.

         In response to the proven effectiveness of DAA drugs in curing Hepatitis C, two prominent professional associations of physicians specializing in the treatment of liver disease, the American Association for the Study of Liver Disease ("AASLD") and the Infectious Diseases Society of America ("IDSA"), issued new joint recommendations for the treatment of chronic Hepatitis C in June 2016. The joint recommendation recognized that the new DAA drugs provided a "virologic cure" for chronic Hepatitis C and recommended that DAA drugs be administered to "all patients with chronic [Hepatitis C] infection" except those with short life expectancies in which transplantation or other direct treatment was not available. It was also noted that delays in treatment of Hepatitis C with DAA drugs reduced the effectiveness of the drugs[2] . These joint recommendations of the ASSLD and IDSA were subsequently endorsed by the CDC as an "evidence based, expert-developed recommendations for hepatitis C management."[3]

         Plaintiff initially brought this case as a Bivens[4] action seeking monetary damages and money to pay for Harvoni. (Dkt. No. 1). He later filed supplemental pleadings setting forth in greater detail his injuries from the delay in the provision of DAA drugs and seeking declaratory and injunctive relief. (Dkt. Nos. 21, 28).

         Plaintiff has named as party defendants three individuals who he alleges are directly responsible for failing to deliver him the requested medical care to him at FCI Bennettsville:

1. Dr. J. Onuoha, the Clinical Director at FCI Bennettsville;
2. Harris Hansen, a physician's assistant at FCI Bennettsville; and
3. Lieutenant Canada, formerly the Health Services Administrator at FCI Bennettsville.

         Plaintiff has named the following officials as party defendants in their administrative capacities because he alleges that the BOP has instituted a policy which withholds a cure for the treatment of his chronic Hepatitis C:

1. Loretta Lynch, former Attorney General of the United States;
2. Travis Bragg, Warden at FCI Bennettsville;
3. Thomas R. Kane, Acting Director of the BOP;
4. Deborah G. Schult, Assistant Director of the Health Services ...

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