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Case Name Hoffer v. Jones PC-FL-0026
Docket / Court 4:17-cv-00214-MW-CAS ( N.D. Fla. )
State/Territory Florida
Case Type(s) Disability Rights-Pub. Accom.
Prison Conditions
Special Collection Post-WalMart decisions on class certification
Attorney Organization Florida Justice Institute
Case Summary
On May 11, 2017, three Florida Department of Corrections prisoners who had chronic hepatitis C filed this putative class action lawsuit in the U.S. District Court for the Northern District of Florida. Judge Mark E. Walker was assigned to the case. The plaintiffs sued the Florida Department of ... read more >
On May 11, 2017, three Florida Department of Corrections prisoners who had chronic hepatitis C filed this putative class action lawsuit in the U.S. District Court for the Northern District of Florida. Judge Mark E. Walker was assigned to the case. The plaintiffs sued the Florida Department of Corrections (FDC) under 42 U.S.C. § 1983, the Americans with Disabilities Act, and the Rehabilitation Act for failing to provide inmates in its custody who had chronic hepatitis C with adequate medical treatment, even though the standard treatment for the deadly disease (direct-acting antivirals) cured 95% of hepatitis C patients. The plaintiffs alleged that the FDC’s deliberate indifference to inmates’ serious medical needs violated the Eighth Amendment and that the FDC discriminated on the basis of disability in violation of the Americans with Disabilities Act. The plaintiffs, represented by the Florida Justice Institute, sought declaratory and injunctive relief.

On May 23, 2017, the plaintiffs sought class certification and a preliminary injunction, arguing that many sick prisoners would become sicker and die if they had to wait until the end of the litigation to get relief. A few months later, on November 17 of that year, the court granted both of the plaintiffs’ requests. (The FDC had also sought to dismiss the case for failure to state a claim, but the court dismissed that motion without hearing it.) The class included all current and future prisoners in FDC custody who have been diagnosed, or will be diagnosed, with chronic hepatitis C. 323 F.R.D. 694. The preliminary injunction required the FDC to come up with a plan to provide medical treatment to prisoners with hepatitis C and to put that plan into effect immediately after it was approved.

On December 13, 2017, the court approved a plan that required the FDC to treat all prisoners with hepatitis C, giving priority to those whose conditions were most serious. The plan contained a timetable for the FDC’s goals, all would be fully implemented over the next year. On January 31, 2018, the court allowed the FDC to modify the preliminary injunction: the FDC began using different tests to determine which patients had the most serious conditions, and its timeline for treating patients with lower fibrosis scores was extended by twelve months. Nine days later, the court allowed the plaintiffs to modify the preliminary injunction as well: the FDC was required to initiate treatment for prisoners who were co-infected with hepatitis C and HIV by the end of the year, even if they had low fibrosis scores. On February 21, 2018, the court issued a second preliminary injunction because the first was about to expire.

By the time the FDC’s preliminary injunction took effect, more than seven months had passed since the plaintiffs had filed their initial complaint. One plaintiff’s decompensated cirrhosis (liver scarring as a result of hepatitis C) had worsened considerably, and the plaintiffs sought an evaluation for a liver transplant for him on January 5, 2018. They alleged that the FDC had known about the severity of his condition for many months and should have referred him to the transplant center already. The court denied this motion for mootness, likely because the FDC’s timetable put January 31 as the date that the FDC needed to have evaluated all prisoners with decompensated cirrhosis. Less than three months later, the plaintiff died.

On April 26, 2018, an inmate in FDC custody (and, thus, a class member to this suit) filed a motion to intervene, citing his dissatisfaction with class counsel. The inmate alleged that class counsel had an ethical conflict in suing FDC and moved the court (a) to require counsel to amend the case and seek monetary damages or (b) to terminate and replace class counsel. On April 28, 2018, the court denied this motion on the basis that it failed to articulate a conflict that would warrant disqualifying class counsel. Additionally, the court noted this suit did not preclude the inmate from separately seeking monetary damages from defendant. On May 7, 2018, the inmate filed a motion for reconsideration and a motion to supplement his original motion to intervene. Both motions were denied. On June 1, 2018, plaintiff appealed the court’s denial of his motion to intervene and later motion to supplement his motion to intervene (18-12292). On September 7, 2018, the Court of Appeals for the Eleventh Circuit dismissed the appeal for lack of jurisdiction on the basis that plaintiff’s appeal was frivolous and denied all pending motions as moot. The plaintiff filed a motion for reconsideration which was denied on December 11, 2018. Before the motion for reconsideration was denied, on September 12, 2018, this same inmate filed a second motion to intervene in the trial court, alleging insufficient medical care. The court dismissed this motion after the defendant presented evidence that the inmate received adequate medical care.

On November 1, 2018 the same individual plaintiff filed yet another interlocutory appeal challenging the trial court's denial of his motion to intervene. One month later, this appeal was dismissed for want of prosecution because the plaintiff did not pay the filing and docketing fees (18-14652). On April 3, 2019, the plaintiff filed a third motion to intervene. The court found that the plaintiff had failed to state a basis on which to intervene and that the plaintiff had failed to state a violation of the preliminary injunction. On June 12, 2019, the plaintiff filed a motion for leave to appeal in forma pauperis (to proceed without payment of fees). The next day, the court denied his motion, and held that his appeal was not taken in good faith.

Meanwhile, on May 10, 2018, another individual plaintiff filed a motion alleging that his interest for economic and punitive damages was not being considered. The court denied this motion on the grounds that this suit is based on treatment, not damages. On May 23, 2018, the plaintiff filed a motion to amend his May 10th motion. The court again denied his motion, warning the plaintiff not to file another motion complaining about damages in this suit. On June 19, 2018, plaintiff appealed the court’s denial of his motion to amend (18-12571). On July 23, 2018 the appeal was dismissed because appellant did not pay the requisite filing fees.

On May 24, 2018, the court granted the original plaintiffs’ motion for a third preliminary injunction with the same terms as the first two. On September 5, 2018, plaintiffs filed a motion for a fourth preliminary injunction, proposing a permanent injunction as an alternative remedy. That same day the court only granted the fourth preliminary injunction with the same terms as the previous iterations.

On June 22, 2018, the plaintiffs filed a motion for summary judgment seeking both a permanent injunction as well as other forms of relief not currently required by the preliminary injunction. Though the proposed permanent injunction looked largely similar to the past preliminary injunctions, the plaintiffs sought to change some of the mechanisms by which the defendants tested and treated hepatitis C in inmates. On November 26, 2018, the plaintiffs filed an unopposed fifth motion for a preliminary injunction, or in the alternative, a permanent injunction. The next day, the court granted the motion and the preliminary injunction was renewed.

Another individual inmate filed a motion to intervene on February 8, 2019. On the same day, this inmate filed a motion for joinder of the Virginia Department of Corrections (VDOC) as a defendant because he was transferred from the FDC to the VDOC under an Interstate Corrections Compact. This inmate also filed a motion for relief from judgment on the same day. Four days later, the court denied the petitioner's motion to intervene. Because the petitioner was originally incarcerated in the FDC and was then transferred to the VDOC, the court held that it was unclear if the petitioner was a member of the certified class. The court ordered the defendants to respond the petitioner's motion to clear up the confusion. Judge Walker also denied the petitioner's motion for joinder of the VDOC as a defendant. Judge Walker construed the petitioner's motion for relief from judgment as a motion to enforce the court's preliminary injunction. The court also ordered the defendants to respond to this motion and address whether the petitioner was wrongfully denied treatment in violation of the court's preliminary injunction. On March 5, 2019, the court denied the petitioner's motion for enforcement of the preliminary injunction. Judge Walker held that the injunction required the defendants to provide treatment for the petitioner by the end of December 2019, and so the deadline had not yet passed.

Since the onset of the first preliminary injunction, the plaintiffs have filed motions both to enforce the preliminary injunctions and to compel defendant to treat other inmates in compliance with the terms of the preliminary injunctions. The court has denied these motions without prejudice on the basis that the defendant was either complying with, or at least not in actionable violation of, the injunctions at the time the motions were considered. Individual inmates in FCD custody have also filed motions for civil contempt that alleged violations of the preliminary injunction, and the court denied them all on the basis that the defendants had not violated the injunction. Since the first preliminary injunction was issued, the FDC screened 55,348 prisoners for chronic hepatitis C, diagnosed 7,185 prisoners with hepatitis C, and began treatment for 4,901 prisoners using direct-acting antivirals (DAAs).

On February 25, 2019, the plaintiffs filed a motion for issuance of a sixth preliminary injunction, or in the alternative, a permanent injunction. Judge Walker renewed the preliminary injunction the next day.

Judge Walker issued a permanent injunction on April 18, 2019. This dissolved the preliminary injunction. The permanent injunction required defendants to modify the FDC's policy on managing prisoners with hepatitis C by May 20, 2019. The FDC must provide medical staff with the option of elastography, which is a more accurate method of identifying hepatitis C and evaluating the severity. The injunction required the FDC to adopt either opt-out testing with an aggressive notice campaign C or opt-in testing with peer education for all inmates. The FDC was required to begin treating all prisoners with hepatitis C. Prisoners with the most severe hepatitis C infections (Priority Level 1) must start receiving treatment within six months of diagnosis, those with Priority Level 2 hepatitis C must begin receiving treatment within twelve months of diagnosis, and those with less severe hepatitis C infections must begin receiving treatment within two years of diagnosis. Judge Walker made it clear that these treatment deadlines are absolutely mandatory. The court ordered that the FDC’s new policy must ensure that inmates receive routine FibroSure and ultrasound testing every twelve months once diagnosed with hepatitis C of any severity. The FDC’s new policy must make clear that "chronic disciplinary issues" are not a sufficient reason for an inmate to be ineligible for treatment. Starting in June 2019, the FDC must file monthly status reports with the court to show its progress complying with the injunction. 382 F. Supp. 3d. 1288 (N.D. Fla. 2019).

Twelve days after the court issued the permanent injunction, the plaintiffs filed a motion for modification of the injunction to ask that the defendants provide class counsel with spreadsheets containing the names of all inmates diagnosed with HCV. Two weeks later, the court denied the motion because the spreadsheets at issue contained inaccurate information.

The defendants filed an appeal of the order and final judgment (as well as all preliminary injunctions and the order granting class certification) in the Eleventh Circuit on May 17, 2019. Oral argument is scheduled for June 10, 2020, via telephone due to COVID-19. (19-11921). As of May 2020, the case remains open.

Rebecca Strauss - 05/18/2018
Natalie Treacy - 10/19/2018
Sabrina Glavota - 05/29/2020


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Issues and Causes of Action
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Issues
Constitutional Clause
Cruel and Unusual Punishment
Content of Injunction
Develop anti-discrimination policy
Monitoring
Preliminary relief granted
Reasonable Accommodation
Recordkeeping
Reporting
Required disclosure
Defendant-type
Corrections
Disability
disability, unspecified
Discrimination-basis
Disability (inc. reasonable accommodations)
General
Conditions of confinement
Record-keeping
Records Disclosure
Medical/Mental Health
Hepatitis
HIV/AIDS
Medical care, general
Plaintiff Type
Private Plaintiff
Type of Facility
Government-run
Causes of Action 42 U.S.C. § 1983
Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12111 et seq.
Declaratory Judgment Act, 28 U.S.C. § 2201
Defendant(s) Florida
Plaintiff Description All current and future prisoners in Florida Department of Corrections custody who have been diagnosed, or will be diagnosed, with chronic Hepatitis C.
Indexed Lawyer Organizations Florida Justice Institute
Class action status sought Yes
Class action status granted Yes
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Preliminary injunction / Temp. restraining order
Injunction / Injunctive-like Settlement
Source of Relief Litigation
Order Duration 2019 - n/a
Filed 05/11/2017
Case Ongoing Yes
Additional Resources
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  See this case at CourtListener.com (May provide additional documents and, for active cases, real-time alerts)
  Hepatitis C Litigation: Healing Inmates as a Public Health Strategy
Social Science Research Network
Date: Apr. 4, 2020
By: Robert Katz (Indiana University Robert H. McKinney School of Law Faculty)
[ Detail ] [ External Link ]

  FJI Files Class Action Lawsuit Against Florida Department of Corrections for Not Providing Hepatitis C Treatment
floridajusticeinstitute.org
Date: May 11, 2017
By: Florida Justice Institute
[ Detail ] [ External Link ]

  Florida prisoners with hepatitis are at risk for worse, lawsuit claims
miamiherald.com
Date: May 11, 2017
By: Julie K. Brown (Miami Herald)
[ Detail ] [ External Link ]

Docket(s)
4:17-cv-0214-MW-CAS (N.D. Fla.)
PC-FL-0026-9000.pdf | Detail
Date: 05/26/2020
Source: PACER [Public Access to Court Electronic Records]
General Documents
Verified Class Action Complaint for Declaratory and Injunctive Relief [ECF# 1]
PC-FL-0026-0001.pdf | Detail
Date: 05/11/2017
Source: PACER [Public Access to Court Electronic Records]
Order Granting Motion for Class Certification [ECF# 152] (323 F.R.D. 694) (N.D. Fla.)
PC-FL-0026-0002.pdf | WESTLAW| LEXIS | Detail
Date: 11/17/2017
Source: PACER [Public Access to Court Electronic Records]
Order Granting Motion for a Preliminary Injunction [ECF# 153] (2017 WL 5586877) (N.D. Fla.)
PC-FL-0026-0003.pdf | WESTLAW | Detail
Date: 11/17/2017
Source: PACER [Public Access to Court Electronic Records]
Order Entering a Preliminary Injunction [ECF# 185] (N.D. Fla.)
PC-FL-0026-0004.pdf | Detail
Date: 12/13/2017
Source: PACER [Public Access to Court Electronic Records]
Order Modifying Preliminary Injunction [ECF# 214] (N.D. Fla.)
PC-FL-0026-0005.pdf | Detail
Date: 01/31/2018
Source: PACER [Public Access to Court Electronic Records]
Order Modifying Preliminary Injunction [ECF# 218] (N.D. Fla.)
PC-FL-0026-0006.pdf | Detail
Date: 02/09/2018
Source: PACER [Public Access to Court Electronic Records]
Order on Cross-Motions for Summary Judgment [ECF# 465] (382 F.Supp.3d 1288) (N.D. Fla.)
PC-FL-0026-0007.pdf | WESTLAW| LEXIS | Detail
Date: 04/18/2019
Source: PACER [Public Access to Court Electronic Records]
show all people docs
Judges Stampelos, Charles A (N.D. Fla.) [Magistrate] show/hide docs
PC-FL-0026-9000
Walker, Mark Eaton (N.D. Fla.) show/hide docs
PC-FL-0026-0002 | PC-FL-0026-0003 | PC-FL-0026-0004 | PC-FL-0026-0005 | PC-FL-0026-0006 | PC-FL-0026-0007 | PC-FL-0026-9000
Plaintiff's Lawyers Berg, Randall Challen Jr. (Florida) show/hide docs
PC-FL-0026-0001 | PC-FL-0026-9000
Selig, Erica (Florida) show/hide docs
PC-FL-0026-0001 | PC-FL-0026-9000
Taseff, Ray (Florida) show/hide docs
PC-FL-0026-9000
Trevisani, Dante Pasquale (Florida) show/hide docs
PC-FL-0026-0001 | PC-FL-0026-9000
Defendant's Lawyers Bowden, Albert III (Florida) show/hide docs
PC-FL-0026-9000
Brodeen, Karen Ann (Florida) show/hide docs
PC-FL-0026-9000
Daniel, Stephanie A. (Florida) show/hide docs
PC-FL-0026-9000
Neff, Lance Eric (Florida) show/hide docs
PC-FL-0026-9000
Oliver, Erin Elizabeth (Florida) show/hide docs
PC-FL-0026-9000

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