United States District Court, D. Colorado
ORDER DENYING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION AND SUA SPONTE ORDERING ALTERNATIVE RELIEF UNDER THE ALL WRITS ACT
WILLIAM J. MARTÍNEZ, UNITED STATES DISTRICT JUDGE
Plaintiff Jimmy Joseph Vasquez (“Vasquez”) is an inmate in the custody of the Colorado Department of Corrections (“CDOC”) and housed at the Sterling Correctional Facility (“Sterling”). (ECF No. 55 ¶ 1.) He is infected with the hepatitis C virus (“HCV”). (Id. ¶ 42.) Vasquez brings this lawsuit under the Eighth Amendment to the U.S. Constitution, alleging that various CDOC employees (collectively, “Defendants”) were deliberately indifferent over many years to the effects that HCV was having on him. Due to that indifference, he claims he developed end-stage liver disease that will likely kill him absent a liver transplant. (Id. at 1-2.)
Currently before the Court is Vasquez’s Motion for Temporary Restraining Order (“TRO”) (the “Motion”). (ECF No. 114.) The Motion notes the existence of a recently approved drug, Harvoni, that tends to be quite successful in purging HCV, thus preventing further liver damage (although it does not reverse the effects of liver damage already inflicted). (Id. at 2-3.) The Motion therefore requests a preliminary injunction ordering Defendants to:
1. “immediately start Mr. Vasquez on a course of Harvoni, ”
2. “secure a medically appropriate MELD score evaluation [discussed in detail below] to determine whether Mr. Vasquez is eligible for a liver transplant and his priority for such a transplant, ” and
3. “[i]n the event that Mr. Vasquez is indeed eligible for a transplant, . . . ensure that he receives one in accordance with the community standards of care.”
(ECF No. 114 at 4.)
Because this case has been pending since 2014 and all parties have participated, and because Vasquez’s requests seek to change the status quo, this Court denied the Motion to the extent it sought a TRO, but construed the Motion as one for a preliminary injunction and ordered briefing accordingly. (ECF No. 116.) The Court has received Defendants’ Response (ECF No. 120) and Vasquez’s Reply (ECF No. 122). The Court held an evidentiary hearing on February 26, 2016, and took the Motion under advisement at that time.
For the reasons explained below, Vasquez’s request to be prescribed Harvoni is moot because CDOC has approved Vasquez for an acceptable alternative drug regimen. Vasquez’s requests regarding MELD score evaluations and eligibility for a liver transplant are not moot, but Vasquez is not entitled to preliminary injunctive relief because he has failed to demonstrate a likelihood of success on the subjective prong of the Eighth Amendment deliberate indifference standard. Nonetheless, given that Vasquez’s life is potentially at stake, the Court will exercise its extraordinary authority under the All Writs Act, 28 U.S.C. § 1651, to order regular MELD score calculations, as well as prompt disclosure of those scores (along with the accompanying data) to Vasquez’s counsel. This relief is sufficient to ensure proper monitoring of Vasquez’s liver condition, and to keep his counsel fully informed, so that counsel may seek further relief from this Court, if needed, under appropriate circumstances.
A. Vasquez’s Allegations
The Court has summarized Vasquez’s allegations in its prior order denying Defendants’ motion to dismiss. (ECF No. 99.) See also 2015 WL 6662921. For present purposes, it suffices to note that Vasquez has been infected with HCV since at least 2004, when he entered CDOC custody. (ECF No. 99 at 3.) CDOC medical staff have been aware of his condition but, until very recently, have never recommended that Vasquez receive antiviral therapy, or any other form of therapy, intended to eradicate HCV from his system. (Id. at 3-8.) Although Defendants dispute that they have mistreated Vasquez, all parties currently agree that Vasquez now suffers from decompensated cirrhosis of the liver, a condition which is potentially life-threatening.
B. Potential Antiviral Treatment Protocols
It is unclear from the current record whether, prior to 2013, any existing HCV treatment regimen could have successfully eliminated HCV from Vasquez’s system. Fortunately for Vasquez, the last two to three years have seen new drugs enter the market that can fight HCV much more effectively than previously available treatment options. One such drug is Harvoni, which Vasquez specifically requests in his Motion. However, since filing the Motion, it has become clear that Harvoni has not been approved to treat HCV genotype 3, which is the form of HCV in Vasquez’s system. However, another recently approved drug, Sovaldi, is effective against HCV genotype 3 when combined with a pre-existing drug, Ribavarin.
C. Vasquez’s Approval for Sovaldi/Ribavarin Treatment
Defendants’ sole witness at the preliminary injunction hearing was Dr. Susan Tiona, CDOC’s Chief Medical Officer, whom the Court admitted as an expert in family medicine and infectious diseases, including HCV treatment. Dr. Tiona is not a defendant in this case.
Dr. Tiona testified that CDOC’s Infectious Disease Committee, on which she sits, preliminarily approved Vasquez for Sovaldi/Ribavarin treatment on Friday, February 19, 2016 (the same day Vasquez filed his Motion), and formally approved such treatment the following Monday, February 22, 2016. Dr. Tiona expects that the treatment will begin on or about March 11, 2016. Once begun, it will run for 24 weeks. Dr. Tiona believes that Vasquez has a 75% chance of becoming HCV-free through a complete course of Sovaldi/Ribavarin treatment. The major risk Vasquez faces is from decreasing hemoglobin levels, a side effect of Ribavarin. If those levels get dangerously low, both Sovaldi and Ribavarin must be stopped because Sovaldi is not approved to be administered without Ribavarin. In that event, Dr. Tiona has maintained contact with a pharmaceutical company that expects to have another promising antiviral drug approved by the end of this year, and Vasquez would be considered for that treatment.
D. MELD Scores-Dr. Bacon’s Testimony
Vasquez’s expert at the hearing was Dr. Bruce Bacon, whom the Court admitted as an expert on liver diseases and HCV treatment, including transplant procedures. Because Dr. Bacon agreed that Sovaldi/Ribavarin was an appropriate treatment for Vasquez, most of Dr. Bacon’s ...