Nancy Torresen, United States District Judge.
Plaintiff Brenda Smith's doctor has prescribed her a twice-daily dose of buprenorphine as part of a medication-assisted treatment ("
From February 11th to February 15th, 2019, I held an evidentiary hearing on the Plaintiff's motion. I make the following findings of fact based on the testimony and exhibits presented during the hearing and on admissions made by the parties in their preliminary injunction filings.
Ms. Smith began abusing opioids at the age of 18. Tr. 41:10-11, 42:4-43:7.
In 2009, Ms. Smith's doctor diagnosed her with opioid use disorder and prescribed her with Suboxone as part of an MAT program to treat that condition. Tr. 45:1-5, 48:14.
With the help of her medication, Ms. Smith has been in active recovery for her opioid use disorder for approximately ten years. During that time, Smith has regained custody of her four children, secured stable housing for her family, and obtained employment. Tr. 34:5-9, 35:19-36:4. She has earned her high school diploma and has begun to take college courses.
In 2014, Ms. Smith was incarcerated in the York County Jail for seven days. Tr. 53:24-54:2. During that time, she was not allowed to continue taking her daily prescription of Suboxone. Tr. 53:18-23. Ms. Smith describes her ensuing withdrawal as the worst pain she has ever endured and recalls experiencing suicidal thoughts for the first time in her life. Tr. 54:3-14,18-20. Although Ms. Smith returned to her provider and resumed her MAT the day after she left the York County Jail, she is personally aware that one of her cellmates, who did not return to treatment, overdosed and died shortly after her release. Tr. 54:21-56:22.
Ms. Smith's anecdote about her cellmate is consistent with broader national trends. Numerous governmental and health organizations have warned that opioid overdose death has reached crisis levels in the United States. Tr. 125:14-21; Pl.'s Ex. 98. In 2017, Maine's overdose death rate reached a record high, exceeding the nationwide average and representing a greater year-on-year increase than the surrounding New England states. Tr. 670:9-14, 672:3-7; Pl.'s Ex. 62. Most of these deaths were caused by fentanyl, a powerful opioid that can be deadly even in minute doses and that has seen a surge in availability in recent years. Tr. 126:22-127:8, 127:9-14, 670:16-671:19, 673:16-674:8. Opioid dealers will routinely mix fentanyl into their product, leaving unwitting people to ingest or inject the more dangerous narcotic and die. Tr. 127:9-21, 671:3-671:7, 674:9-13. While Maine's overall overdose death rate ticked down in 2018, the proportion of deaths from fentanyl increased. Tr. 673:16-674:8. Based on these statistics, the Plaintiff's expert Dr. Jonathan Fellers opined that it is more dangerous than it has ever been to be using opioids. Tr. 674:9-13. And the risk of overdose death is even higher among recently-incarcerated people and others who have just undergone a period of detoxification, because opioid tolerance decreases in the absence of use. Tr. 149:10-150:22, 151:20-152:2, 679:3-15.
Given the well-documented risk of death associated with opioid use disorder, appropriate treatment is crucial. People who are engaged in treatment are three times less likely to die than those who remain untreated. Tr. 678:10-14; Pl.'s Ex. 72. For some people with opioid use disorder, MAT is essential for successful recovery. Tr. 129:11-16. Dr. Fellers estimated that less than five percent of his patients could achieve and maintain recovery through counseling or abstinence alone. Tr. 667:21-24.
A body of evidence has emerged that permitting MAT in correctional facilities offers substantial, and possibly essential, benefits to incarcerated people. One study of English correctional facilities found that treatment with buprenorphine or methadone was associated with an 80 to 85 percent reduction in post-release drugrelated mortality. Tr. 161:3-10; Pl.'s Ex. 82; see also Tr. 154:14-156:20; Pl.'s Ex. 77 (similar results from study of impact of MAT on post-release mortality in Australia). Participation in MAT during incarceration has also been associated with a reduced likelihood of in-custody deaths by overdose or suicide and an overall 75 percent reduction in all-cause in-custody mortality. Tr. 184:5-188:9, 1009:21-23, 1068-6-16; Pl.'s Ex. 79. And in a randomized, controlled trial conducted
Despite this growing evidence, only a limited number of facilities in the United States have programs in place to routinely provide MAT to inmates. The Plaintiff's witness Edmond Hayes, who developed and runs an MAT program at the Franklin County Jail in Massachusetts and who consults with other facilities about implementing such programs, offered some explanation of why this may be the case. Drawing on his experience working to encourage corrections personnel to put MAT programs in place, Mr. Hayes explained that law enforcement pushback often arises out of two interrelated fears: First, that opioid replacement medications are "drugs," not medicine, and that "bad" people should not be given "drugs"; and second, that opioid replacement medications are sought-after contraband in correctional facilities, and it does not make sense to introduce more "drugs" into a facility. Tr. 605:2-17.
The Jail generally prohibits inmates from continuing to use opioid replacements such as buprenorphine while they are incarcerated in the facility. Clossey Aff. ¶ 2 (ECF No. 14-4) ("Suboxone and its generic equivalent forms (hereafter `suboxone') is prohibited in the Aroostook County Jail."); Pl.'s Ex. 8; Pl.'s Ex. 95. The Jail has departed from this prohibition only in one instance, for a pregnant woman with opioid use disorder who had been prescribed MAT by her treating physician. Tr. 376:21-377:1; Willette Dep. 21:15-23, 72:2-5 (ECF No. 49). In that case, the Jail continued to provide the woman with her medication to avoid fetal harm. Tr. 835:11-16; Willette Dep. 37:14-21. All other individuals who have been prescribed MAT and who have been incarcerated in the Jail have been required to go undergo withdrawal. Willette Dep. 72:2-5; KVHC Dep. 15:9-12; see
The Jail contracts with Katahdin Valley Health Center ("
The withdrawal protocol is not a treatment for opioid use disorder. See KVHC Dep. 78:2-7; Defs.' Post-Trial Br. 16 (ECF No. 103). The only treatment that the Jail offers for opioid use disorder is substance abuse counseling. Willette Dep. 122:5-23.
In April of 2018, the Maine Office of Substance Abuse and Mental Health Services
On December 24, 2017, Ms. Smith was using a self-checkout terminal at a Walmart when she noticed 40 dollars in change that another customer had failed to collect from the terminal. Tr: 57:12-58:10. Ms. Smith pocketed the money, completed her own transaction, and left. Tr. 58:4-58:10. Based on this conduct, Ms. Smith was later arrested and charged with theft. Tr. 57:4-13. Ms. Smith was convicted and sentenced to spend 40 days in the Aroostook County Jail. Tr. 56:25-7:5. While Ms. Smith was originally scheduled to report to the Jail on September 7, 2018, that surrender date was extended to April 1, 2019, to allow the further development of the case at bar.
Upon learning that Ms. Smith would be incarcerated at the Jail, her counsel contacted the facility multiple times to ask whether she would be allowed to continue to take her buprenorphine. Two of counsel's phone calls reached Cmdr. Clossey. Tr. 474:5-475:8. On both occasions, Cmdr. Clossey told counsel that it was unlikely Ms. Smith would be allowed to continue taking her medication, but that the decision rested with "medical" (that is, KVHC). Tr. 474:5-475:8. Cmdr. Clossey transferred counsel's calls to KVHC. Tr. 474:5-475:8. When he reached KVHC, counsel repeated his question of how Ms. Smith's need for buprenorphine would be handled while she was at the Jail. Ms. Willette, who took counsel's call, informed him that Ms. Smith would undergo withdrawal and her symptoms would be treated in accordance with the Jail's withdrawal protocol. Willett Dep. 123:15-124:3. This was the same information that Ms. Willette had previously given to any other opioid use disorder patient who called to ask if they could continue on MAT while at the Jail. Willette Dep. 75:14-25; see also Willette Dep. 77:16-78:22, 123:24-25; Tr. 499:6-19.
Ms. Smith's attorney also reached out to the Jail via fax. In the cover sheet of a letter faxed to Cmdr. Clossey on August 31, 2018, counsel asked Cmdr. Clossey to "please let me know if you need anything further in order to allow Ms. Smith to remain on her buprenorphine program when in your jail." Pl.'s Ex. 5 at 1. The
Based on the evidence offered by the Plaintiff's experts, the available scientific evidence, and Ms. Smith's medical history, I find that forcing Ms. Smith to withdraw from her buprenorphine would cause her to suffer painful physical consequences and would increase her risk of relapse, overdose, and death. Tr. 131:24-132:14, 137:17-138:25, 693:5-19.
On September 6, 2018, the day before she was to report to the Jail, Ms. Smith filed this lawsuit along with a motion for a temporary restraining order or a preliminary injunction. Compl. (ECF No. 1); Mot. for TRO or PI (ECF No. 3). The parties conferred and secured an extension of Ms. Smith's surrender date until January 14, 2019. See Order (ECF No. 12). The Plaintiff then withdrew her motion for a temporary restraining order, and the parties proceeded to brief the motion for a preliminary injunction. On December 3, 2018, the parties informed me that the Maine District Court again had allowed Ms. Smith to extend her surrender date, this time until April 1, 2019. Consent Mot. for Scheduling Order (ECF No. 20). To allow the parties to use this additional time for discovery, I set the motion for a preliminary injunction for a five-day evidentiary hearing beginning on February 11, 2019. Notice of Hearing (ECF No. 23).
On January 31, 2019, I held a pre-hearing conference of counsel. (ECF No. 37.) During that conference, counsel for the Plaintiff stated that she wished to withdraw her jury demand and requested that the upcoming preliminary injunction hearing be consolidated with a bench trial on the merits. The Defendants objected, arguing that the Plaintiff could not now withdraw her jury demand and that the preliminary injunction hearing could not fully resolve all issues in the case because additional facts remained to be developed. Specifically, for the first time the Defendants asserted that it was possible that the Jail would allow Ms. Smith access to her medication upon her surrender to the facility. I reserved ruling on the request to consolidate pending briefing by the parties. (See ECF No. 37.)
On February 6, 2019, the Plaintiffs moved for immediate decision on the issue of consolidation on the basis that I could not consolidate a preliminary hearing with a trial on the merits without providing notice to the parties. Pl.'s Mot. for Order Consolidating PI Hearing with Trial on the Merits (ECF No. 47). I conditionally granted the Plaintiff's motion, again pending full briefing, and instructed the parties to proceed at the hearing in the same manner they would at a bench trial. Order (ECF No. 52). The evidentiary hearing took place as scheduled.
The matter now being fully briefed, I
Before turning to the Plaintiff's showing on her preliminary injunction motion, I must first address the Defendants' contention that this matter is not yet ripe for review. The Defendants assert that the Plaintiff's request for preliminary relief is unripe because it is uncertain whether Ms. Smith will be denied access to her buprenorphine while she is incarcerated. Because an injunction may therefore be unnecessary, the Defendants argue, none should issue.
"[T]he doctrine of ripeness ... asks whether an injury that has not yet happened is sufficiently likely to happen to warrant judicial review." Mangual v. Rotger-Sabat, 317 F.3d 45, 60 (1st Cir. 2003) (quotation marks omitted). Ripeness analysis aims to "prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements." Ernst & Young v. Depositors Econ. Prot. Corp., 45 F.3d 530, 535 (1st Cir. 1995). "When a litigant seeks relief that is primarily prospective in character, questions of ripeness are analyzed under a familiar framework that considers the fitness of the issue for immediate review and the hardship to the litigant should review be postponed." Riva v. Com. of Mass., 61 F.3d 1003, 1009 (1st Cir. 1995). "The critical question concerning fitness for review is whether the claim involves uncertain and contingent events that may not occur as anticipated or may not occur at all." McInnis-Misenor v. Me. Med. Ctr., 319 F.3d 63, 70 (1st Cir. 2003) (quoting Ernst & Young, 45 F.3d at 536). "The hardship prong ... is wholly prudential and concerns the harm to the parties seeking relief that would come to those parties from [the] withholding of a decision." Reddy v. Foster, 845 F.3d 493, 501 (1st Cir. 2017) (citations and quotation marks omitted).
To understand the Defendants' ripeness argument and why it fails, a more in-depth review of the history of this action is in order. This case first came before me because when the Plaintiff's attorney approached the Defendants to ask whether she would be allowed to continue to take her prescribed buprenorphine while she was incarcerated, the Defendants said that she would not. This denial is reflected in the Defendants' earlier filings, which state categorically that buprenorphine is not allowed in the Defendants' facility and which do not mention the possibility that the Defendants would in any way accommodate Ms. Smith's request for her medication. Clossey Aff. ¶ 2; Defs.' Obj. to PI Mot. 2 (ECF No. 14). The Defendants argued that MAT is "but one means of treating opiate addiction," with others including "withdrawal protocols ... through which symptoms of withdrawal ... are managed medically," and that the Jail was entitled to deference in its choice between
Then, just over a week before the evidentiary hearing on the Plaintiff's preliminary injunction motion was scheduled to begin, the Defendants changed tack. They now argue that the Jail has always made a case-by-case assessment of the medical needs of inmates who have been prescribed MAT by outside providers, and that the Defendants will do the same for Ms. Smith. The Defendants have gone so far as to hypothesize a variety of ways in which they might allow Ms. Smith to continue receiving her medication without ever needing to bring buprenorphine within the Jail's walls, including taking her into the community for treatment, procuring a long-lasting buprenorphine shot, or medically furloughing her from her sentence. Tr. 478:10-479:12. On these facts, the Defendants argue, the Plaintiff's claims are not ripe because she has yet to be denied access to her buprenorphine and she may never be so denied.
But, as I have found above, the Jail denied Ms. Smith's request to continue her buprenorphine in August of 2018. The Plaintiff filed this suit after that denial, and her claims were ripe for adjudication at that time. See Pesce v. Coppinger, 355 F.Supp.3d 35, 43-44 (D. Mass. 2018) (plaintiff's ADA and Eighth Amendment claims were ripe because plaintiff had prescription for methadone, his physician recommended continued treatment, and defendants' policy prohibited providing plaintiff with methadone during his incarceration).
The Defendants' insinuation that this is all merely a misunderstanding is unsupported. The credible evidence is that, with a single exception, the Defendants have summarily denied every prospective inmate's request to continue MAT, not because KVHC made some determination that MAT was not medically necessary, but at the Jail's direction. As to the Jail's single exception, in which a pregnant woman was allowed to continue MAT, the Jail was concerned about preventing fetal harm rather than the inmate's medical needs. Moreover, I cannot believe that the Defendants would have put themselves, the Plaintiff, and the Court through five months of expedited discovery and a five-day evidentiary hearing over a miscommunication. The more probable story is that the Defendants realized that they faced a greater risk of losing this lawsuit than they first thought, and that their efforts to rewrite the history of this case are meant to muddy the waters and avoid an unfavorable ruling.
The question becomes whether the Defendants' indeterminate suggestions that they might walk back their earlier denial have left the Plaintiff's claims injusticiable. In some circumstances, "post-filing events will cause a case that was previously ripe for review to become unripe." Pub. Serv. Co. of N.H. v. Patch, 962 F.Supp. 222, 232 (D.N.H. 1997) (citing Regional
Here, the Defendants have stopped short of telling the Plaintiff that they will provide her with buprenorphine during her sentence.
As to whether the Plaintiff will suffer hardship absent immediate review, unless the Defendants' decision is definitively unwound, she faces an imminent, painful, and dangerous withdrawal and an attendant risk of discontinued treatment, overdose,
"In determining whether to grant a preliminary injunction, the district court must consider: (i) the movant's likelihood of success on the merits of its claims; (ii) whether and to what extent the movant will suffer irreparable harm if the injunction is withheld; (iii) the balance of hardships as between the parties; and (iv) the effect, if any, that an injunction (or the withholding of one) may have on the public interest." Corp. Techs., Inc. v. Harnett, 731 F.3d 6, 9 (1st Cir. 2013). The Plaintiff bears the burden of establishing that these factors weigh in her favor. Esso Standard Oil Co. (P.R.) v. Monroig-Zayas, 445 F.3d 13, 18 (1st Cir. 2006).
The Plaintiff claims that the Defendants have violated the ADA either by denying her the benefit of the jail's health care programs because of her disability or by refusing to make reasonable modifications to a policy or practice in order to allow her to access necessary treatment for her disability.
Title II of the ADA provides 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. A Title II plaintiff therefore must establish:
Gray v. Cummings, 917 F.3d 1, 15 (1st Cir. 2019).
Title II plaintiffs can pursue "several different types of claims of disability discrimination," including claims for "disparate treatment ..., i.e., that the disability actually motivated the defendant's adverse conduct," and claims that the defendant "refused to affirmatively accommodate his or her disability where such accommodation was needed to provide `meaningful access to a public service.'" Nunes v. Mass. Dep't of Corr., 766 F.3d 136, 145-46 (1st Cir. 2014); see also 28 C.F.R. § 35.130(b)(7) (under the ADA, public entities must "make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity").
When considering whether a correctional facility's medical decisions violated the ADA, the First Circuit has "differentiated ADA claims based on negligent medical care from those based on discriminatory medical care." Kiman v. N.H. Dep't of Corr., 451 F.3d 274, 284 (1st Cir. 2006). The First Circuit has allowed that treatment decisions can be so unreasonable as to constitute evidence of discrimination under the ADA, but has clarified that the
Id. at 284-85.
Here, the Defendants do not dispute that they are public entities or that the Plaintiff is a qualified individual with a disability. See Defs.' Post-Trial Br. 21.
The evidence, however, supports an inference that Ms. Smith was denied necessary medication because she suffers from OUD. Because the Defendants have never asked to assess Ms. Smith's medical needs, they have left Dr. Conner's conclusions uncontroverted. The evidence before me therefore establishes that prior efforts to take the Plaintiff off her medication have not been successful and that the Plaintiff's medication is necessary to her continued health. The Defendants informed the Plaintiff in August of 2018 that she would not be permitted to continue her MAT. The Defendants denied Ms. Smith's requests for buprenorphine without regard to her medical needs and without any true justification. The Defendants suggest that they generally disallow inmates from continuing MAT to prevent diversion of buprenorphine. But the Defendants themselves have described a variety of ways in which the Jail could provide Ms. Smith's buprenorphine outside of the Jail, thereby avoiding the security concerns associated with drug diversion. The Defendants have also allowed that, on the one past occasion when they provided MAT to a pregnant woman, they did so in the Jail itself without any known problems. The Defendants have offered no reason that the same could not be done for Ms. Smith.
The Defendants' out-of-hand, unjustified denial of the Plaintiff's request for her prescribed, necessary medication—and
This inference is bolstered by the Defendants' general attitude towards opioid use disorder. The Defendants' representatives lacked a baseline awareness of what opioid use disorder was despite serving a population that disproportionately dies of that condition. Ms. Willette suggested that learning more about how to treat the disorder was boring. And the facts show that despite an April 2018 offer of significant funds from the State to start an MAT program, the Jail and KVHC have not progressed beyond initial discussions about what such a program would entail and still have not taken steps toward having a provider certified to prescribe buprenorphine.
In the alternative, I find that the Plaintiff is likely to succeed on the theory that she was denied a reasonable accommodation. The Plaintiff made multiple clear requests to be exempted from the Jail's practice of prohibiting buprenorphine and requiring individuals on MAT to undergo withdrawal.
Irreparable injury is harm that "cannot adequately be compensated for either by a later-issued permanent injunction, after a full adjudication on the merits, or by a later-issued damages remedy." Rio Grande Cmty. Health Ctr., Inc. v. Rullan, 397 F.3d 56, 76 (1st Cir. 2005). Here, the Plaintiff has presented evidence that if the Defendants curtail her MAT, she will be forced into withdrawal with painful physical symptoms and an increased risk of later relapse, overdose, and death.
The Defendants claim that these risks are overblown, in large part because the
I find that the final two factors of the preliminary injunction analysis, public interest and the balance of the hardships, both favor allowing Ms. Smith to continue taking her medication. Ms. Smith will personally benefit from receiving her medication, as she will avoid the wrenching side effects of withdrawal and continue to mitigate her likelihood of relapse. The public interest likewise favors encouraging Ms. Smith to remain on MAT and to continue her recovery. Society will be well served if Ms. Smith is able to continue to care for her children, maintain her housing, and work. History has shown that if she relapses into active use, she will lose all that she has worked so hard to achieve.
While I must accord substantial deference to the professional judgment of prison administrators, Overton v. Bazzetta, 539 U.S. 126, 132, 123 S.Ct. 2162, 156 L.Ed.2d 162 (2003), I find that in this individual case, granting the Plaintiff's requested injunction will place a limited burden on the Defendants. The Defendants have offered several ways in which Ms. Smith could be given her medication that would avoid any risk of diversion, the Defendants have previously permitted one inmate to receive MAT in-facility with no apparent security impact, and my findings in this case will do little to undermine the Defendants' broader policies or regulations. In particular, the Defendants will be free, going forward, to make exactly the kind of individualized assessments of inmates' medical needs for MAT that they have failed to make here.
Having found that all four preliminary injunction factors favor the Plaintiff, I will grant the Plaintiff's motion.
For the reasons stated above, the Court
The Court also
SO ORDERED.
