Litigation behind bars: for prisoners suffering from hepatitis C and other effects of incarceration, the trial lawyer is often their only hope.

Prisoners constitute a substantial and growing portion of the American population. The United States, which has the highest per capita incarceration rate in the world, currently keeps more than 2 million people behind bars. For some groups, the statistics are even more chilling: An African-American male born in 1991 has a 29 percent chance of spending time in prison at some point in his life. (1)

Prisoners, who are overwhelmingly poor and uneducated, are among the most vulnerable members of society. Only one-third have a high school diploma. Many were unemployed or homeless immediately before their incarceration. (2) Drug and alcohol dependency is common.

Once incarcerated, prisoners are entirely reliant on the prison to fulfill basic needs--food, clothing, shelter, sanitation, medical care, (3) and personal safety. In other situations in which individuals may not control these needs themselves, the law imposes a higher duty on caretakers. Common carrier liability is imposed on hotels and trains, for example, requiring them to take extra precautions toward guests and passengers, who surrender part of their freedom when they use these services. (4) The Supreme Court has recognized that "when the state takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being." (5)

Prisoners are politically powerless, largely despised by the general population, and, in almost every state, deprived even of the right to vote. In addition, prisoners have limited contact with the outside world. Prisoners do not have access to the Internet, their mail is censored, and their phone calls and visits are limited. Prison law libraries have been curtailed and in some cases entirely eliminated following the Supreme Court's decision in Lewis v. Casey, so prisoners cannot easily research their substantive rights and how to enforce them. (6) The only lawyer most prisoners know, their public defender or contract attorney, may be barred from helping them address bad prison conditions. (7)

The Prison Litigation Reform Act (PLRA), enacted in 1996, erects major barriers to the enforcement of prisoners' rights, while limiting the availability of attorney fees, making it difficult even for prisoners with meritorious claims to attract counsel. (8) Organizations like the American Civil Liberties Union (ACLU) are inundated with requests for assistance from prisoners. It can take only a small fraction of the cases it reviews. These limitations essentially silence indigent and illiterate prisoners. (9)

Ideas about prisons' role in society vary, but the Eighth Amendment clearly bars them from inflicting "cruel and unusual punishments." (10) What constitutes cruel and unusual punishment has been the topic of many Supreme Court cases over the years.

Some seem obvious--in Hudson v. McMillian, guards took a prisoner from his cell and placed him

   in handcuffs and shackles ... and walked
   him toward the penitentiary's "administrative
   lockdown" area. [The prisoner] testified
   that, on the way there, [an officer]
   punched [him] in the mouth, eyes, chest,
   and stomach, while [another officer] held
   the inmate in place and kicked and
   punched him from behind. He further testified
   that the supervisor on duty watched
   the beating, but merely told the officers
   "not to have too much fun." (11)

The Court found that although the injuries from the beating were not "serious," this conduct constituted "cruel and unusual punishment."

Similarly, in Hope v. Pelzer, the Court had little trouble concluding that the Eighth Amendment was violated when corrections officers handcuffed a prisoner to a "hitching post" and left him standing in the Alabama sun for seven hours without water or access to toilet facilities. (12)

Unfortunately, it is all too common for prisoners to be subjected to conditions that have no place in a civilized society. In California's Pelican Bay State Prison, for example, a mentally ill prisoner who had smeared himself with feces was "bathed" in scalding water until his skin peeled off and he suffered third-degree burns." In Iowa, a female prisoner was raped by a guard who had a long history of sexual misconduct with prisoners. (14)

Bad medical treatment provides the basis for many of the lawsuits we trial lawyers litigate. How can we apply this knowledge to help this disadvantaged sector of our society? Prisoners have far greater medical needs than the general population. They are more likely to suffer from infectious diseases like tuberculosis and HIV, chronic diseases such as asthma, and a range of mental illnesses, including major depression. (15) However, the National Commission on Correctional Health Care has recently concluded that "many prisons and jails fail to conform to nationally accepted clinical guidelines" in providing medical treatment to prisoners. (16)

In the area of medical treatment in prison, the leading Supreme Court case, Estelle v. Gamble, established the obligation of the government "to provide medical care for those whom it is punishing by incarceration." The Court stated,

   An inmate must rely on prison authorities
   to treat his medical needs; if the authorities
   fail to do so, those needs will not be met. In
   the worst cases, such a failure may actually
   produce physical "torture of a lingering
   death," ... the evils of most immediate concern
   to the drafters of the [Eighth] Amendment.
   In less serious cases, denial of medical
   care may result in pain and suffering
   which no one suggests would serve any
   penological purpose.... The infliction of
   such unnecessary suffering is inconsistent
   with contemporary standards of decency as
   manifested in modern legislation codifying
   the common law view that "it is but just
   that the public be required to care for the
   prisoner, who cannot by reason of the deprivation
   of his liberty, care for himself." (17)

The Arizona affiliate of the ACLU receives hundreds of letters from prisoners incarcerated in federal, state, and municipal prisons and jails. The medical complaints range from failure to treat an infected arm to failure to provide a medically prescribed diet, treat a herniated disk (either medically or through appropriate bedding), and sustain drug treatment for HIV-positive prisoners when they are transferred from prison to prison.

Among prisoners' most common complaints is that the prison does not test or treat them for hepatitis C, a highly infectious and sometimes deadly disease for which there is no inoculation. Litigating hepatitis C cases can provide a template for lawyers interested in representing prisoners.

The facts

Hepatitis C is transmitted through blood or sexual contact. In the 1980s, an average of 240,000 new infections occurred per year. In 2001, there were about 25,000 new infections. Prisons estimate that 20 percent to 40 percent of prisoners are infected. (18)

Hepatitis C, one of the leading known causes of liver disease in the United States, commonly causes inflammation of the liver, leading to cirrhosis and hepatocellular carcinoma (HCC). It is the most common reason for liver transplants. At least 4 million people in this country, it is believed, have been infected with hepatitis C. (19) The virus has a slow progression and frequently has no symptoms. At least 20 percent of hepatitis C patients eventually develop cirrhosis, although this number varies by population subgroup.

Patients can live with hepatitis C for years without symptoms. (20) They need to have their enzyme levels checked, which will confirm whether the disease is a Type One, Two, or Three genotype. About 70 percent of hepatitis C infections are Type One, and the "cure" rate is about 40 percent to 50 percent (that is, after 48 weeks of treatment the virus is no longer detectable in the blood stream). People with Type Two or Three genotypes (30 percent of those infected) have a cure rate of 80 percent after 24 weeks of therapy.

Besides determining the genotype of the virus, it is also necessary to determine the stage the disease is in (how fibrous the liver is--cirrhosis results in a highly fibrous liver), and its grade (inflammation level--severe activity includes necrosis and marked portal inflammation). This can be done only with a liver biopsy.

There are several ways to treat hepatitis C. The most common method involves a combination of Interferon and Ribavirin. These drugs have serious side effects, including flulike symptoms, depression, nervousness, and anemia. Given the severity of the drugs' side effects and the lack of symptoms in the early stages of the virus, drug therapy is not recommended for every patient.

At this point, treatment is expensive. Screening for hepatitis C costs $50 to $150 per prisoner, and combination drug treatment may cost over $20,000 per patient for the entire course of treatment, which can last 48 months. Prisons, however, may not deny prisoners medically necessary treatment simply because it is expensive. (21)

Untreated hepatitis C can lead to chronic liver disease, liver failure, and death. The Washington Department of Corrections (DOC) last year settled a case with the family of a prisoner who died from liver failure as a consequence of untreated hepatitis C. (22) The DOC agreed to pay the family to resolve the wrongful death suit the week before the case was set for trial. The complaint alleged that

   [Phillip] Montgomery's death was due to
   the refusal of various [McNeil Island Correctional
   Center] employees, including
   [the superintendent] and [medical director],
   to provide Montgomery with appropriate
   treatment for his hepatitis C, even as
   he died from his illness. The suit claimed
   that this refusal to treat Montgomery, even
   as his symptoms worsened, violated his
   Eighth Amendment right to be free from
   cruel and unusual punishment as well as
   constituting medical malpractice under
   state law. The state was also sued for negligence
   for its role in Montgomery's death.
   L.t. James Dimotta was also sued for refusing
   to allow Montgomery's family to be
   with him in the hospital as he died.
   Dimotta ensured that Montgomery died
   alone in a Tacoma hospital with no family
   support or comfort. (23)

The law

In some cases, a prisoner can bring a state law tort action if he of she has been the victim of medical malpractice. However, this remedy is not always ideal, if it is even available. First, the state may be immune from liability for medical malpractice by state actors. (24) Second, the harm to the prisoner may have been caused not by medical malpractice, but by corrections officials' denial of access to medical care. Finally, attorney fees are usually unavailable in state law tort actions.

For these reasons, prisoners' claims are often brought under 42 U.S.C. [section] 1983, alleging violation of the prisoner's Eighth Amendment rights. A [section] 1983 action may be brought in state or federal court and allows for attorney fees.

As set forth in Estelle, prison officials violate the Constitution when they act with deliberate indifference to a prisoner's serious medical needs. Courts have determined that a "serious medical need" is one that a physician has diagnosed as such; "one that is so obvious that even a layperson would easily recognize the necessity for a doctor's attention"; one that causes substantial pain, "significantly [affecting] an individual's daily acts": or one that poses a risk of a lifelong handicap or permanent loss. (25) Prison officials show "deliberate indifference" when they know of a substantial risk of serious harm to prisoners but fail to take reasonable action to avert it. (26)

The Supreme Court has made clear that infection with a serious communicable disease is an actionable harm, even if the disease is slow to develop and the prisoner has no symptoms:

   In Hutto v. Finney, we noted that inmates in
   punitive isolation were crowded into cells
   and that some of them had infectious maladies,
   such as hepatitis and venereal disease.
   This was one of the prison conditions
   for which the Eighth Amendment required
   a remedy, even though it was not alleged
   that the likely harm would occur immediately
   and even though the possible infection
   might not affect all of those exposed.
   We would think that a prison inmate also
   could successfully complain about demonstrably
   unsafe drinking water without waiting
   for an attack of dysentery. Nor can we
   hold that prison officials may be deliberately
   indifferent to the exposure of inmates
   to a serious, communicable disease on the
   ground that the complaining inmate shows
   no serious current symptoms. (27)

Several courts have found that infection with hepatitis C constitutes a "serious medical need." (28)

"Deliberate indifference" has been found in some cases when the prison fails to treat a patient for hepatitis C. (29) However, in Gresh v. Berks Co., the district court found that the prisoner failed to show that the prison exhibited deliberate indifference to his medical condition when it failed to treat him for hepatitis C.

Gresh had been tested upon arrival at the prison, and his condition was monitored during his 15-month incarceration. His liver biopsy indicated that he did not need treatment at the time of his arrival, which was confirmed by Gresh's treating physician on Gresh's Release. (30) Similarly, in Johnson v. Raba, the district court also found no deliberate indifference when the prison tried treating an inmate with Interferon, but discontinued the treatment when the disease did not respond. (31)

In In re Domenech, a New York trial court followed the Eighth Amendment analysis set forth in Estelle, and found that the prison's policy of denying treatment for hepatitis C-infected prisoners because they had not completed drug and alcohol treatment was "arbitrary and capricious, and results in a deliberate denial of medical attention to [the prisoner's] serious medical condition in violation of the Eighth Amendment." (32)

The existence of an Eighth Amendment violation is determined with reference to "evolving standards of decency that mark the progress of a maturing society." (33) Therefore, as standards for detection and treatment of hepatitis C become more widely accepted, it will be easier to demonstrate that prison officials' failure to adhere to those standards constitutes deliberate indifference.

This has already happened regarding care of prisoners with HIV. In Edwards v. Alabama Department of Corrections, the court held that what was considered constitutionally adequate care for HIV in 1990 was not necessarily adequate in 2000: "[N]ew information about the kinds, costs, and availability of new treatments for HIV patients bears directly on what levels of care are currently reasonable, and thus on what constitutes cruel and unusual punishment." (34)

One way for prisoners to notify prison officials of their need for medical care is to file grievances with the prison or jail, as discussed below.

The procedure

In order to bring an action for a prison's deliberate indifference to a serious medical need pursuant to [section] 1983, the plaintiff/prisoner will need to comply with the PLRA, (35) which has several provisions:

1. The prisoner must fully exhaust the jail's or prison's grievance procedure--including all administrative appeals--before filing the lawsuit. (36) For example, the Arizona prison system has three levels of appeals. (37)

In every state, each claim must he fully exhausted; some courts have held that each defendant in the lawsuit must have been named first in a grievance. Check with the prison system to find out how many steps are involved and what the filing deadlines are. Some courts have held that the statute of limitations is tolled while the prisoner is exhausting the grievance procedure.

2. Prisoners who are granted in forma pauperis status are still required to pay the entire filing fee, although they are allowed to pay in installments. (38)

3. Various limitations on attorney fee are imposed in cases brought by prisoners. (39)

4. Prisoners are subject to a "three strikes provision." If a prisoner has had three or more lawsuits dismissed as frivolous or malicious, or for failure to state a claim, the prisoner is barred from filing in forma pauperis unless he of she is in imminent danger of serious physical harm. (40) The dismissal of an appeal of a dismissed action is a separate "strike."

5. Prisoners cannot file a lawsuit for mental or emotional injury unless they can show that there has been physical injury. (41)

Prisoners with hepatitis C are a discrete class of prisoners who need representation, but they are by no means the only ones. Prisoners are isolated and powerless, and recent legislation has made it even more difficult for them to enforce their constitutional right to living conditions free from "cruel and unusual punishment." It is therefore more important than ever for trial lawyers to continue to represent this most vulnerable population.

Notes

(1.) Marc Mauer, The Crisis of the Young African American Male and the Criminal Justice System (1999), available at www.sentencingproject.org/ pdfs/5022.pdf.

(2.) Bureau of Justice Statistics, Education and Correctional Populations (Jan. 2003), available at www.ojp.usdoj.gov/bjs/abstract/ecp.htm.

(3.) One court recently stated, "An inmate is helpless to obtain medical treatment on his own and must entrust his care to the Department of Corrections'[s] medical personnel." In re Domenech, No. 15671/02, 2003 WL 21374520, at *3 (N.Y. Sup. Ct. May 28, 2003).

(4.) See, e.g., Morton v. DeOliveira, 984 F.2d 289, 292 (9th Cir. 1993); Stropes v. Heritage House Children's Ctr., 547 N.E.2d 244, 252 (Ind. 1989); Dye v. Schwegmann Bros. Giant Supermarkets, Inc., 627 So. 2d 688 (La. Ct. App. 1993).

(5.) DeShaney v. Winnebago County Dep't of Soc. Servs., 489 U.S. 189, 199-200 (1989).

(6.) 518 U.S. 343 (1996).

(7.) Many prisoner complaints are filed pro se, and as such are subject to a "screening" process by the district court to determine merit. See, e.g., Gabel v. Lynaugh, 835 F.2d 124 (5th Cir. 1988). Courts occasionally appoint lawyers to represent pro se prisoners in cases, however. In a recent case filed pro se by a prisoner with hepatitis C, the court granted the prisoner's request for an attorney to be appointed. McKenna v. Wright, No. 01 Civ. 6571, 2003 WL 302225 (S.D.N.Y. Feb. 11, 2003).

(8.) 18 U.S.C. [section] 3626 (2003); 28 U.S.C. [subsection] 1915, 1915A, 1346(b), 1932 (2003); and 42 U.S.C. [section] 1997e (2003).

(9.) The National Center for Education Statistics reported in 1994 that 7 out of 10 prisoners perform at the lowest literacy levels. KARL O. HAIGLER ET AL., U.S. DEP'T OF EDUC., LITERACY BEHIND PRISON WALLS: PROFILES OF THE PRISON POPULATION FROM THE NATIONAL ADULT LITERACY SURVEY xviii, 17-19 (1994).

(10.) The Eighth Amendment applies to convicted prisoners; pretrial detainees are protected by the Due Process Clause of the Fourteenth Amendment against any conditions that constitute "punishment." Bell v. Wolfish, 441 U.S. 520, 535 (1979). Many courts have held that the standards are equivalent, although some have suggested that the Fourteenth Amendment may provide pretrial detainees with greater protection. See, e.g., Jacobs v. West Feliciana Sheriff's Dep't, 228 F.3d 388, 393 (5th Cir. 2000).

(11.) 503 U.S. 1, 4 (1992).

(12.) 536 U.S. 730 (2002).

(13.) Madrid v. Gomez, 889 F. Supp. 1146, 1166-67 (N.D. Cal. 1995).

(14.) Riley v. Olk-Long, 282 F.3d 592, 593-94 (8th Cir. 2002). See also LaFaut v. Smith, 834 F.2d 389,393 (4th Cir. 1987); DeSpain v. Uphoff, 264 F.3d 965, 972-73 (10th Cir. 2001).

(15.) NAT'L. COMM'N ON CORR. HEALTH CARE, THE HEALTH STATUS OF SOON-TO-BE RELEASED INMATES: A REPORT TO CONGRESS 17, 21, 25-26 (2002), available at www.ncchc.org/pubs/pubs_stbr.html. See also BUREAU OF JUSTICE STATISTICS, MEDICAL PROBLEMS OF INMATES 1997 (Jan. 2001), available at www.ojp.usdoj.gov/bjs/abstract/ mpi97.htm.

(16.) NAT'L COMM'N ON CORR. HEALTH CARE, supranote 15, at xii.

(17.) 429 U.S. 97, 103-04 (1976).

(18.) ASS'N OF STATE AND TERRITORIAL OFFICIALS, HEPATITIS C AND INCARCERATED POPULATIONS: THE NEXT WAVE FOR CORRECTIONAL HEALTH INITIATIVES (Nov. 2000), available at www.astho.org/pubs/ HepC-Incarcerated.pdf.

(19.) National Institutes of Health, Consensus Development Conference Statement, Management of Hepatitis C: 2002 (June 10-12, 2002), available at http://consensus.nih.gov/cons/ 116/091202116cdc_statement.htm.

(20.) Id.

(21.) Harris v. Thigpen, 941 F.2d 1495, 1509 (11th Cir. 1991). See generally, Jessica Wright, Medically Necessary Organ Transplants for Prisoners: Who Is Responsible for Payment?, 39 B.C. L. REV. 1251, 1269-76 (1998).

(22.) Montgomery v. Wash. Dep't of Corr., No. 01 2 06387 7 (Wash., Pierce County Super. Ct. Oct. 2002).

(23.) Washington DOC Settles Hep C Death Suit for $1 Million, PRISON LEGAL NEWS, Feb. 2003, at 15.

(24.) See, e.g., Uni. of Tex. Med. Branch v. York, 871 S.W.2d 175 (Tex. 1994).

(25.) MICHAEL B. MUSHLIN, RIGHTS OF PRISONERS 376-77 (2002) (citations omitted).

(26.) Farmer v. Brennan, 511 U.S. 825 (1994).

(27.) Helling v. McKinney, 509 U.S. 25, 33 (1993), citing Hutto v. Finney, 437 U.S. 678, 682 (1978).

(28.) See, e.g., Johnson v. Wright, 234 F.Supp.2d 352,360 (S.D.N.Y. 2002) and cases cited therein.

(29.) McKenna, No. 01 Civ. 6571, 2002 WL 338375 (S.D.N.Y. Mar. 4, 2002); In re Domenech, No. 15671/02, 2003 WL 21374520, at *4.

(30.) No. Civ. A. 00-5697, 2002 WL 1635394 (E.D. Pa. July 18, 2002).

(31.) No. 93 C 2285, 1997 WL 610403 (N.D. Ill. Sept. 24, 1997).

(32.) No. 15671/02, 2003 WL 21374520, at *6.

(33.) Estelle, 429 U.S. 97, 102, quoting Trop v. Dulles, 356 U.S. 86, 101 (1958).

(34.) 81 F.Supp.2d 1242, 1250 (M.D. Ala. 2000).

(35.) Most provisions of the PLRA apply only to lawsuits brought by a prisoner. Thus, its restrictions will not apply if a lawsuit challenging prison or jail conditions is brought by a nonprisoner. For example, if a prison limits prisoners' access to publications of their ability to send of receive mail, the publishers and the prisoners' outside correspondents have standing to challenge these restrictions. Thornburgh v. Abbott, 490 U.S. 401, 408 (1989).

(36.) 42 U.S.C. [section] 1997e(a) (2003).

(37.) Arizona Dep't of Corr. Order No. 802 (2000), available at www.adc.state.az.us/Policies/ 802.htm.

(38.) 28 U.S.C. [section] 1915 (2003).

(39.) 42 U.S.C. [section] 1997e(d) (2003).

(40.) 28 U.S.C. [section] 1915(g) (2003).

(41.) 42 U.S.C. [section] 1997e(e) (2003).

Your comments welcome

Please address all correspondence to Letters to the Editor, TRIAL, 1050 31st St., N.W., Washington, DC 20007-4499, fax to [phone], or send e-mail to [e-mail]. TRIAL reserves the right to select, edit, and excerpt letters to the editor for publication.

PAMELA K. SUTHERLAND is the legal director of the Arizona Civil Liberties Union in Tucson and Phoenix. She thanks law clerks Sam Daughety, Lauren Izzo, and Nathan Benedict for their work on behalf of prisoners in Arizona. She can be reached at [e-mail]. DAVID C. FATHI is a staff attorney with the ACLU's National Prison Project in Washington, D.C.