Reply Brief — Gregory Atkins, et al., Petitioners v. Kenneth Williams, Medical Director, Tennessee Department of Correction

No. 20-941

In the

Supreme Court of the United States

_________________

GREGORY ATKINS, CHRISTOPHER GOOCH,

KEVIN PROFFITT, and THOMAS ROLLINS, JR., on behalf of themselves and all others

similarly situated,

Petitioners,

v.

DR. KENNETH WILLIAMS, Medical Director, Tennessee Department of Correction, in

his official capacity,

Respondent.

_________________

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Sixth Circuit

_________________

REPLY BRIEF FOR PETITIONERS

_________________

MICHAEL J. WALL

Counsel of Record

JAMES G. STRANCH, III

BRANSTETTER, STRANCH &

JENNINGS, PLLC

223 Rosa L. Parks Avenue

Suite 200

Nashville, TN 37203

(615) 254-8801

michaelw@bsjfirm.com

Counsel for Petitioners

March 31, 2021

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................... ii

REPLY BRIEF ............................................................................................................... 1

I.

The Sixth Circuit Staked its Position in an Important Circuit Split................ 2

II.

This Case is an Ideal Vehicle.............................................................................. 5

CONCLUSION............................................................................................................... 9

i

TABLE OF AUTHORITIES

Cases

Baxter v. Palmigiano,

425 U.S. 308 (1976) .................................................................................................. 9

Bell v. Wolfish,

441 U.S. 520 (1979) .................................................................................................. 6

Birrell v. Brown,

867 F.2d 956 (6th Cir. 1989) .................................................................................... 4

Franks v. Bowman Transp. Co.,

424 U.S. 747 (1976) .................................................................................................. 7

Hoffer v. Sec’y, Fla. Dep’t of Corr.,

973 F.3d 1263 (11th Cir. 2020) ................................................................................ 4

Morgan v. District of Columbia,

824 F.2d 1049 (D.C. Cir. 1987) ................................................................................ 4

Peralta v. Dillard,

744 F.3d 1076 (9th Cir. 2014) .................................................................................. 4

Ralston v. McGovern,

167 F.3d 1160 (7th Cir. 1999) .............................................................................. 2, 4

Reynolds v. Wagner,

128 F.3d 166 (3d Cir. 1997) ...................................................................................... 2

Sosna v. Iowa,

419 U.S. 393 (1975) .................................................................................................. 6

United States v. Sanchez-Gomez,

138 S. Ct. 1532 (2018) .............................................................................................. 7

Wilson v. Seiter,

501 U.S. 294 (1991) .................................................................................................. 1

Wood v. Milyard,

566 U.S. 463 (2012) .................................................................................................. 6

ii

Other Authorities

Travis Loller, 6th Circuit: OK to Ration Hepatitis C Treatment to Prisoners,

Associated Press (Aug. 25, 2020),

https://apnews.com/article/43209fa5f1abdc17696aee9151f8073a .......................... 8

TDOC Fiscal Year 2019 Statistical Abstract, available at https://www.tn.gov/

content/dam/tn/correction/documents/StatisticalAbstract2019.pdf ....................... 8

TDOC Fiscal Year 2020 Statistical Abstract, available at https://www.tn.gov/

content/dam/tn/correction/documents/StatisticalAbstract2020.pdf ....................... 8

iii

REPLY BRIEF

Thirty years ago, the Court identified a wrinkle in the standard for deliberate

indifference under the Eighth Amendment. If the standard requires a culpable state

of mind, can a prison official avoid a judgment by blaming the failure to care for

inmates on lack of funding? The Court did not decide because it had no indication

that officials were raising that defense to avoid their constitutional duties. Wilson v.

Seiter, 501 U.S. 294, 301-02 (1991). By now, though, almost all of the circuits have

confronted the lack of funds defense, and they cannot agree on its validity. The Sixth

Circuit took the defense to its outer limit in this case, refusing injunctive relief to

inmates who needed direct-acting antiviral (DAA) medication for hepatitis C because

the prison official in charge of their care, Dr. Williams, did not have enough funding.

Instead of the Eighth Amendment fixing a minimum level of care, the level of funding

chosen by the legislature fixed the requirements of the Eighth Amendment.

Disagreement over the lack of funds defense is producing arbitrary and inhumane

results.

The Court must intervene and finally confront this life-and-death

constitutional matter.

Dr. Williams’s efforts to paint this case as a bad vehicle for review do not stand

up to scrutiny. No issue of substance or justiciability stands between the Court and

the questions presented. The Sixth Circuit did not treat funding as one of many

relevant factors. It made funding central to its decision and consciously departed

from other circuits. Furthermore, as the majority stated in its opinion, the parties

are only disputing a single aspect of the Eighth Amendment claim. This clears the

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arena for an argument over the lack of funds defense. And under a long line of

decisions, a certified class action like this does not become moot simply because the

class representatives’ individual claims do. TDOC will have thousands of inmates in

need of relief for the foreseeable future. The Court will not get a better set-up for

considering the lack of funds defense.

I.

The Sixth Circuit Staked its Position in an Important Circuit Split

In order to show that circuits have “the same uniform approach,” Dr. Williams

conflates two distinct concepts: cost and funding. See Resp’t’s Br. 2, 19-20. The

petition before the Court concerns the legal significance of funding, not cost, under

the Eighth Amendment.

Lower courts generally agree that the cost of medical treatment figures into

the deliberate indifference standard. One influential decision describes a sliding

scale based on the seriousness of the medical need and the cost of treatment. Ralston

v. McGovern, 167 F.3d 1160, 1162 (7th Cir. 1999). The Sixth Circuit did not rule on

that basis. The majority noted the cost of DAA treatment, App. 3, but it did not

conclude that cost outweighed the seriousness of chronic hepatitis C and associated

health problems. Therefore, Petitioners have not asked the Court to review that

issue, nor do they contend that the Eighth Amendment “guarantee[s] prisoners the

right to be entirely free from the cost considerations that figure in the medical-care

decisions made by most non-prisoners in our society.” See Reynolds v. Wagner, 128

F.3d 166, 175 (3d Cir. 1997) (Alito, J.).

The Sixth Circuit rested its decision on the lack of funding made available to

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Dr. Williams for the purchase of DAAs. To call this one of many “case-specific factors”

mischaracterizes the majority opinion. See Resp’t’s Br. 1. The majority looked at all

the facts through the lens of funding. It summarized Dr. Williams’s process for

evaluating, monitoring, and prioritizing infected inmates. App. 9-10. The process

did not show deliberate indifference, the majority said, because Dr. Williams “sought

to employ the finite resources at his disposal to maximize their benefit for the inmates

in his care.” Id. 10. Petitioners lost because they “demand[ed] that he spend money

he did not have.” Id. If these statements were not clear enough, the majority ended

with a reminder that it evaluated deliberate indifference “[i]n the real world of limited

resources.” Id. 10-11. A reader can only take this to mean that the Sixth Circuit

accepted lack of funds as a defense.

The dissent took it that way.

See id. 12 (Gilman, J., dissenting) (calling

insufficient funding “[t]he essence of the majority’s rationale”). The dissent further

explained how the majority contradicted decisions from the Eighth, Ninth, and

Eleventh circuits, which held that lack of funds does not provide a defense in cases

for injunctive relief. Id. 16-18.

The decision below makes the difference between a cost defense and a lack of

funds defense quite stark. Petitioners could not force Dr. Williams to provide them

with medication because the State had not given him enough money.

The

uncontested facts that hepatitis C causes cirrhosis, cancer, and death, see id. 2, that

DAAs cure almost every patient, see id. at 3, and that doctors only use DAAs to treat

the disease, see id., did not make a difference. Even if the sliding scale of cost and

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need showed DAAs to be “the civilized minimum” of care, see Ralston, 167 F.3d at

1162, the Sixth Circuit would not require Dr. Williams to “spend money he did not

have,” see App. 10. When the need for treatment justifies its cost, courts should not

let a defendant “plead poverty as an excuse for refusing to provide it.” Hoffer v. Sec’y,

Fla. Dep’t of Corr., 973 F.3d 1263, 1277 (11th Cir. 2020).

A circuit split thus exists on the role of funding in deliberate indifference.

Petitioners have outlined the three different camps.

Pet’rs’ Br. 12-20.

Several

circuits recognize the lack of funds defense to a claim for damages but not injunctive

relief. E.g., Peralta v. Dillard, 744 F.3d 1076, 1083 (9th Cir. 2014) (en banc); Williams

v. Bennett, 689 F.2d 1370, 1388 (11th Cir. 1982). Other circuits reject the defense for

damages claims, as well. E.g., Morgan v. District of Columbia, 824 F.2d 1049, 106768 (D.C. Cir. 1987). The Sixth Circuit allows the defense across the board. App. 1011 (claim for injunctive relief); Birrell v. Brown, 867 F.2d 956, 959 (6th Cir. 1989)

(claim for damages).

Cases addressing the lack of funds defense have involved not only medical care

but also inmate violence, overcrowding, heat, and other prison conditions.

See

Resp’t’s Br. 21-22. The fault lines in authority, however, have nothing to do with

particular prison conditions. The lack of funds defense works the same way, whether

a plaintiff is seeking medication or heat in the winter. The variety of situations in

which the defense comes up only shows how pervasive and important it is.

Petitioners have presented two questions for review, one stated more broadly

and the other more narrowly, so the Court may choose how to approach the matter.

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The first question asks whether lack of funds provides a defense to a deliberate

indifference claim. Pet. i. This encompasses any case, regardless of the relief sought.

The second question narrows the focus to cases like the present one, which only seek

injunctive relief from the defendant in his or her official capacity. Id. ii. The decision

below implicates both questions, as a negative answer to either one would mean that

the Sixth Circuit erred.

Dr. Williams calls the conflict of authority on the second, more specific question

“much shallower,” Resp’t’s Br. 17, but he does not show that it is less worthy of review.

Nearly every circuit has considered the lack of funds defense in the injunction context

and chosen not to allow it there. Only the Sixth Circuit withholds injunctive relief

because of a prison official’s inadequate resources. Even if no other circuit adopts

this outlier position, it will deeply erode Eighth Amendment protections for over one

hundred thousand prisoners in a four-state region. The lopsided nature of the circuit

split on the second question testifies to the Sixth Circuit’s profound error and the

need to correct it.

II.

This Case is an Ideal Vehicle

Dr. Williams tries to portray this case as laden with side issues and

complications that will stop the Court from reaching the questions presented. In

reality, Dr. Williams did not preserve arguments as to other parts of the deliberate

indifference standard. His tepid efforts at fighting hepatitis C have not mooted the

controversy because thousands of inmates are still desperately seeking DAAs.

At this stage, the litigation has distilled to just one part of the subjective

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component of deliberate indifference. Since “everyone agrees that hepatitis C is an

objectively serious medical condition and that Williams understood the risk that

hepatitis C posed,” the “only question” is whether Dr. Williams recklessly ignored the

risk. App. 9. The Sixth Circuit majority resolved that question by focusing on the

“limited resources” available for DAAs. Id. 10-11.

Dr. Williams denies making the concessions described by the Sixth Circuit, see

Resp’t’s Br. 13 & n.1, but his stipulations in the district court clearly removed most

issues from dispute.

See Order ¶ 4, July 5, 2019, ECF No. 219 (documenting

stipulation that class members had hepatitis C, “which is a serious medical need,”

and that Dr. Williams “ha[d] knowledge of their serious medical need”). Dr. Williams

cannot revive issues that he deliberately abandoned. See Wood v. Milyard, 566 U.S.

463, 474 (2012). Even if some lingering issue could affect the ultimate outcome on

remand, it will not affect this Court’s decision on the lack of funds defense.

The controversy has not and will not become moot, regardless of Petitioners’

personal status. After a long wait, each of the Petitioners has now received DAA

treatment or left TDOC’s custody. However, Petitioners represent a certified class of

inmates with hepatitis C. App. 1, 23-24. Petitioners can continue litigating for the

benefit of class members who need DAAs. See Bell v. Wolfish, 441 U.S. 520, 526 n.5

(1979); Sosna v. Iowa, 419 U.S. 393, 399-401 (1975).

Dr. Williams contends that the foregoing rule only applies to class actions

involving transitory issues that are capable of repetition, yet evading review. Resp’t’s

Br. 28-30. The Court has determined otherwise. “[N]othing” in Sosna or its progeny

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“holds or even intimates that the fact that the named plaintiff no longer has a

personal stake in the outcome of a certified class action renders the class action moot

unless there remains an issue ‘capable of repetition, yet evading review.’” Franks v.

Bowman Transp. Co., 424 U.S. 747, 754 (1976).

Sosna’s requirement of a certified class has a “limited exception” for inherently

transitory claims. United States v. Sanchez-Gomez, 138 S. Ct. 1532, 1539 (2018). If

a named plaintiff’s claim becomes moot prior to class certification, the case may

remain justiciable if “the pace of litigation and the inherently transitory nature of the

claims at issue conspire to make [the class certification] requirement difficult to

fulfill.” Id. Petitioners do not need this extra leeway because the district court

certified a class.

Here, mootness turns on whether the unnamed class members still have an

adversary relationship with Dr. Williams that will facilitate the presentation of

issues to the Court. See Franks, 424 U.S. at 755-56. They certainly do. TDOC

inmates with chronic hepatitis C have ample incentive to continue seeking DAAs

from Dr. Williams; if they succeed, they will avoid further suffering or even death.

Dr. Williams has not offered a serious reason to doubt that this is a live

controversy, and the Court need not fear that TDOC will run out of infected inmates

before a decision.

Dr. Williams suggests that all inmates who consent to DAA

treatment “may well” receive it soon. Resp’t’s Br. 32. Unfortunately, that is not

remotely realistic. TDOC has made very little progress in reducing the population of

infected inmates.

7

TDOC had approximately 4,740 inmates with chronic hepatitis C at the time

of trial in July 2019. App. 3, 24. Slightly more than a year later, TDOC said that it

treated 1,449 inmates and was currently treating another 176. Travis Loller, 6th

Circuit: OK to Ration Hepatitis C Treatment to Prisoners, Associated Press (Aug. 25,

2020),

https://apnews.com/article/43209fa5f1abdc17696aee9151f8073a.

These

treatment figures imply that TDOC had about 3,115 infected inmates as of last

August.

But other data made public by TDOC reveals an even bleaker situation. On

June 30, 2019, TDOC had 4,969 inmates with hepatitis C in the chronic care clinic.

TDOC Fiscal Year 2019 Statistical Abstract at 61, available at https://www.tn.gov/

content/dam/tn/correction/documents/StatisticalAbstract2019.pdf.

On June 30,

2020, it had 4,585 such inmates. TDOC Fiscal Year 2020 Statistical Abstract at 82,

available

at

https://www.tn.gov/content/dam/tn/correction/documents/Statistical

Abstract2020.pdf.

For all of Dr. Williams’s “promises and projections about

anticipated success,” see App. 67, TDOC only reduced the number of infected inmates

by 384, or 7.7%, in the span of a year.

The pace of treatment has apparently slowed down. TDOC treated 1,978

inmates with DAAs between July 2019 and February 2021. Resp’t’s Br. 32. A total

of 1,625 inmates had at least begun treatment as of last August. Loller, 6th Circuit:

OK to Ration Hepatitis C Treatment to Prisoners. This means that TDOC only treated

about 353 inmates from August through February, which averages to 59 inmates per

month.

8

Hepatitis C is a contagious virus, App. 2, 25, so the number of infected inmates

will grow, unless TDOC widely distributes DAAs like Petitioners are asking. Even if

Dr. Williams followed through on his “current goal” of treating hundreds of inmates

per month, see Resp’t’s Br. 32—something he has not been doing for the last six

months, at least—TDOC will have thousands of inmates with hepatitis C for the

duration of this case.

The vast majority want DAA treatment.

See id. 33 n.5

(estimating that only 250 inmates have refused treatment).

If the Court has any concern about mootness, it can substitute untreated

inmates for Petitioners. See id. 30 (citing Baxter v. Palmigiano, 425 U.S. 308, 310 n.1

(1976)). Any number of inmates would volunteer to be substituted, if necessary to

correct the injustice of the Sixth Circuit’s decision.

CONCLUSION

For the foregoing reasons, the Court should grant the petition for certiorari.

Respectfully submitted,

MICHAEL J. WALL

Counsel of Record

JAMES G. STRANCH, III

BRANSTETTER, STRANCH &

JENNINGS, PLLC

223 Rosa L. Parks Avenue

Suite 200

Nashville, TN 37203

(615) 254-8801

michaelw@bsjfirm.com

Counsel for Petitioners

March 31, 2021

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