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Nunes v. Massachusetts Department of Correction

United States Court of Appeals, First Circuit

September 12, 2014

RICHARD NUNES; CARL COE; JOHN DOE; PETER POE; RICHARD ROE, on behalf of themselves and others similarly situated, Plaintiffs, Appellants,

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Joel H. Thompson, with whom Tatum A. Pritchard and Prisoners' Legal Services were on brief, for appellants.

Tory A. Weigand, with whom James A. Bello and Morrison Mahoney LLP were on brief, for appellee Thomas Groblewski.

Nancy Ankers White, Special Assistant Attorney General, and Sheryl F. Grant on brief for appellees Massachusetts Department of Corrections and Mark Waitkevich.

Before Kayatta, Baldock,[*] and Selya, Circuit Judges.


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KAYATTA, Circuit Judge.

Massachusetts prisons provide inmates with semi-monthly or monthly supplies of some medications, which the prisoners then store in their cells and take on their own. Other medications are dispensed in single doses to prisoners, to be ingested at the dispensing window. Five prisoners with HIV challenge the decision of prison officials to dispense HIV medication only in single doses at the dispensing window. The plaintiffs claim violations of the Eighth and Fourteenth Amendments to the United States Constitution, the Americans with Disabilities Act, and the Rehabilitation Act. We affirm the district court's grant of summary judgment against the plaintiffs on each of their claims.

I. Background

Because the district court granted summary judgment, we " describe the facts giving rise to this lawsuit in a light as favorable to [the plaintiffs] as the record will reasonably allow." Travers v. Flight Servs. & Sys., Inc., 737 F.3d 144, 145 (1st Cir. 2013).

The plaintiffs in this case are inmates in the Massachusetts state prison system who suffer from HIV. They sue, among others, the Massachusetts Department of Corrections, which administers the state's prisons. Because it makes no difference to our analysis, we refer to the department as if it were the sole defendant and the sole entity responsible for the state's acts at issue here.

This case arose when the department changed the manner by which inmates receive medication for HIV. Prior to the change, many inmates could receive their

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HIV medication through the " Keep on Person" program, which we will refer to as the " KOP program." When receiving medication through the program, inmates pick up packages of medicine once or twice a month, then store the medicine in their cells and take it on their own initiative. [App. at 66.] In contrast, HIV medication is now available only through the " daily med line," where inmates report for each dose to a dispensing window, then ingest the medication at the window while prison staff observe. [App. at 65.] Both the daily med line and the KOP program are common ways for inmates to receive medications in Massachusetts prisons, depending on what medication they are receiving and whether they satisfy various eligibility requirements.

A. The Department's Decision to Remove HIV Medication from the Program

The department first announced its decision to remove HIV medication from the program in August 2008 and implemented the change in February 2009. [App. at 77, 83-84.] The parties agree that the department's primary aim in initiating the change in dispensing practices for HIV medication was to save money. Medication for HIV is expensive, occupying more than 40 percent of the department's pharmacy budget, although fewer than 3 percent of the prisoners have HIV. [App. at 266.] Faced with budget cuts in 2008, the department examined its expenses and determined that some of the cost of HIV medications arose from " wasted" medication: medication that was dispensed to an inmate through the KOP program, but not used by that inmate while in prison. [App. at 269-271.] Such medication cannot be reused because it has left the hands of licensed medical staff. [App. at 270.] Medication scheduled to be dispensed through the daily med line, however, can be reused if not picked up by the patient. [App. at 270-71.] The department therefore concluded that it could reduce waste and save money by distributing all HIV medication through the daily med line. [ App. at 271.]

The parties agree that there are several sources of wasted HIV medication, but disagree on their relative importance, and on whether the department chose the best approach to mitigate waste. Waste can arise when a prisoner simply chooses not to take medication that he has received through the KOP program. [App. at 73.] It can also arise when an inmate is given too much medication when he picks up his refills. [App. at 275-76.] In addition, waste can result when an inmate is released from prison, is transferred within the system, dies, or has his treatment regimen changed.[1] [App. at 73, 274-76.]

When the department announced the change in August 2008, it received complaints from medical staffers concerned about the effect on inmates with HIV. Two doctors who treated inmates with HIV, David Stone and James Quirk, objected to the change and have continued to oppose it. Their chief concern has been that some inmates will be unwilling or unable to take their medication consistently due to the time and effort required to wait at the dispensing window, which some inmates would have to do more than once per day. [App. at 281-83, 97.] The parties agree that it is very important for HIV patients to be " adherent" (or " compliant" ), meaning that they take their medication consistently as prescribed. When a patient misses doses, the virus can develop resistance to the medication, for which there will be few

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alternatives. [See, e.g., App. at 255.] Stone and Quirk also worried that the change would exacerbate the side effects of HIV medication, as inmates would have less flexibility in timing their doses to ...

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