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Roe v. Sims

March 28, 2007

EDWARD J. ROE, ANTHONY P. STASIAK, TIMOTHY J. STEPHEN, AND JONATHAN WALKER, PLAINTIFFS,
v.
LARRY T. SIMS, WILLARD O. ELYEA, AND ROGER E. WALKER, JR., DEFENDANTS.



The opinion of the court was delivered by: Harold A. Baker United States District Judge

Order

Plaintiffs allege Defendants were deliberately indifferent to their serious medical needs by failing to treat their Hepatitis C. Plaintiffs also seek class certification to proceed on behalf of all inmates or former inmates who have been victims of this alleged policy of deliberate indifference to the treatment of Hepatitis C. Specifically, Plaintiffs alleges in their Complaint that the IDOC's treatment policy for Hepatitis C is deliberately indifferent because it fails to follow federal guidelines for the treatment of the condition, refuses to timely administer needed liver biopsies, and refuses to allow the administration of proven, effective medication. (Complaint, d/e 1).

Before the court is Defendants' motion for summary judgment (d/e 21) and Plaintiff's motion to certify class (d/e 11). For the reasons below, the motion for summary judgment is granted in part and denied in part, and the motion to certify class is denied.

Local Rule 7.1(D)(2)(b) requires a response to summary judgment to list by number each proposed undisputed fact in the motion for summary judgment, and to indicate whether the fact is conceded, disputed or immaterial. A dispute to a proposed fact must be "supported by evidentiary documentation referenced by a specific page." CDIL-LR 7.1(D)(2)(b)(2). The response must also list any additional proposed undisputed facts, supporting the proposed fact by specific page cite to documentary evidence. CDIL-LR 7.1(D)(2)(b)(4). The Rule is strict and specific for a reason--to ensure the parties provide the information necessary for the Court determine exactly what material disputes of fact exist.

Plaintiffs' response does not list the Defendants' proposed facts by number or otherwise indicate specifically which of those facts are conceded, denied or immaterial. (d/e 25). Plaintiffs do propose their own undisputed facts, citing Dr. Elyea's deposition, but the proposed facts are in paragraph form, mingled with argument, making it difficult for Defendants to reply and this court to decipher. The Court has therefore adopted Defendants' proposed facts, to the extent they are fairly and accurately supported by their cites to the record. However, the Court has also added its own undisputed facts where necessary to give context and a complete picture of the issues.

Facts

Plaintiff Roe

1. Plaintiff Roe testified in his deposition the he was first diagnosed with hepatitis in 1976. (Roe Dep. at 24).

2. According to Roe, at that time, it was called serum hepatitis. (Roe Dep. at 20-23).

3. In 1991 Roe was convicted and he was incarcerated until August 2002. (Roe Dep. at 32, lns. 6-10).

4. At his deposition, Roe testified that, in 1998, he was diagnosed as having Hepatitis C. (Roe Dep. at 24).

5. Roe did not see any doctors after his release from prison in August 2002 until he returned to prison in January 2003. (Roe Dep. at 32).

6. Roe was at Logan Correctional Center on a parole violation from approximately January of 2003 through October of 2004. (Roe Dep. at 12).

11. Roe testified that, before returning to prison in January 2003, he was drinking half a case of beer each day. (Roe Dep. at 36-37).

12. Roe admitted that he has used illegal drugs in the past, but he refused to testify about whether he was using drugs before his return to prison in January 2003. Roe Dep. at 38.

13. Since his release in approximately October 2004, Roe has lived in Mattoon, Illinois. (Roe Dep. at 8).

14. Although on probation for burglary at the time of his deposition, Roe has not been in prison since October, 2004. (Roe Dep. at 31).

15. Roe testified that he saw a liver specialist after his release, but the specialist did not perform a liver biopsy or treat Roe's Hepatitis C. (Roe Dep. at 23). Roe testified the specialist said a biopsy was not needed because the specialist could already tell by his exam that Roe had early stages of fibrosis and cirrhosis. According to Roe, the specialist told him to come back when he had insurance to pay for the treatment. Roe testified that he was unable to afford any treatment for his Hepatitis C and that he was trying to get on Social Security to pay for the treatment. (Roe Dep. at 23-24).

Plaintiff Stasiak

16. While in the custody of the Department on approximately January 19, 2004, Stasiak was diagnosed as carrying the Hepatitis C virus. (Complaint and Answer, ¶2).

17. Dr. Elyea has reviewed results of the blood work and other medical records for Stasiak while Stasiak was incarcerated. (Dr. Elyea Aff. ¶6).

18. Dr. Elyea avers that, according to Stasiak's medical records, Stasiak has a history of alcohol and drug abuse. (Elyea Aff. ¶7).

19. The results of the blood work indicate that although Stasiak was diagnosed as carrying the Hepatitis C virus following his entry into the custody of the Illinois Department of Corrections, his was also co-infected with the Hepatitis B virus. (Elyea Affidavit, ¶8).

20. There is currently no recommended anti-viral therapy regimen for offenders with Hepatitis B and Hepatitis C co-infections and treatment, if any, should only be initiated with great caution as advised by a specialist. (Elyea Affidavit, ¶9; See also 2003 Federal Guidelines, attached as Exhibit 6 to d/e 22, at 48; 2005 Federal Guidelines, attached as Exhibit 7 to d/e 22 at 36).

21. While incarcerated, Stasiak's enzyme levels, which are used as an indicator in determining the proper course of treatment, improved, though the record does not show what those levels were. (Elyea Affidavit, ¶10).

22. Stasiak was paroled on December 8, 2004.

Plaintiff Stephen

23. At his deposition, Plaintiff Stephen testified that he was first diagnosed with Hepatitis C in 2004, while at Logan Correctional Center. (Stephen Dep. at 23).

24. Stephen testified that he was convicted in January 2004 and was sent to Logan Correctional Center for approximately eight months. (Stephen Dep. at 25).

26. Stephen testified that after serving his time at Logan, he was out for approximately eight months, but then went back to prison at Lawrence Correctional Center for approximately nine months. (Stephen Dep. at 25).

27. Stephen has been out of prison since January, 2006. (Stephen Dep. at 25). Stephen testified that his enzyme levels were monitored while he was in prison. Stephen Dep. at 34.

28. Since his release until the date of his deposition, Stephen had not been treated by any physician for his Hepatitis C, though he is on a waiting list for referral to a specialist, since he does not have insurance. (Stephen Dep. at 10-12; 31).

29. Stephen testified that between his release from prison in January and his deposition on April 17, 2006, he had tried to see a doctor at a free clinic regarding his Hepatitis C twice, once on the week of April 10, 2006, and one other time, approximately two weeks earlier. (Stephen Dep. at 28-29).

31. Stephen admitted that he has a history of intravenous drug use. (Stephen Dep. at 32).

32. Stephen also admitted a history of snorting and smoking drugs. (Stephen Dep. at 32).

33. Stephen refused to answer questions about whether he was using drugs between his release from Logan Correctional Center and his return to prison at Lawrence Correctional Center, however. (Stephen Dep. at 32-33).

34. Stephen also refused to answer questions about whether he had used drugs since his release from Lawrence Correctional Center in ...


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