The opinion of the court was delivered by: Hillman, District Judge
Plaintiffs Walter Bennett, Gregory Royal and John Lacey have brought an action individually and jointly on behalf of all persons similarly situated (collectively "Plaintiffs") seeking injunctive, declaratory and monetary relief. Plaintiffs allege in their Second Amended Complaint that Correctional Medical Services Inc., Louis Tripoli, M.D.,*fn1 William Andrade, M.D., James J. Neal, M.D., James Ruman, R.N., Rock Welch, Abu Ahsan, M.D., (hereinafter "CMS Defendants"), George Hayman, in his capacity as Commissioner of the New Jersey Department of Corrections ("NJDOC"),*fn2 John Doe and Jane Roe 1-10 (collectively, "Defendants") knowingly exposed Plaintiffs to the hepatitis C virus ("HCV") while Plaintiffs were incarcerated in New Jersey State prisons in deliberate indifference to their serious medical needs in violation of their Eighth and Fourteenth Amendment rights under the U.S. Constitution. They also brought claims for violation of the Americans with Disabilities Act, 42 U.S.C.A. § 12131, et. seq. ("ADA").*fn3
This Opinion addresses the following outstanding motions: Motion to Certify Class (together with Motion for Leave to File an Overlength Brief Nunc Pro Tunc in Opposition to Plaintiffs' Motion for Class Certification); Motion for Partial Summary Judgment as to Plaintiffs' Claim for Injunctive and Declaratory Relief; Motion for Summary Judgment as to Claims by Royal and Lacey, and as to Plaintiffs' ADA Claims (together with Motion to Seal Certain Documents in Support of Motions for Summary Judgment); and Motion for Summary Judgment filed by defendant George Hayman.
This Court exercises subject matter jurisdiction over Plaintiffs' federal law claims pursuant to 42 U.S.C. § 1331, and exercises supplemental jurisdiction over Plaintiffs' state law claims pursuant to 42 U.S.C. § 1332.
Plaintiffs filed their Complaint on October 16, 2002. On July 25, 2003, an Amended Complaint was filed, and on August 27, 2003, a Second Amended Complaint was filed which is the current version.*fn4 In their Second Amended Complaint, Plaintiffs allege that Defendants knowingly exposed Plaintiffs to HCV while Plaintiffs were incarcerated in New Jersey State prisons. Plaintiffs are seeking injunctive, declaratory and monetary relief against Defendants due to deliberate indifference of their serious medical needs in violation of their Eighth Amendment right to be free from cruel and unusual punishment, applicable to the states through the Fourteenth Amendment, pursuant to 42 U.S.C. § 1983. Plaintiffs seek "an injunction requiring defendants to comply with FBOP guidelines, an injunction requiring backscreening of the entire population of inmates who have passed through and/or remain in the New Jersey state prison system, money damages for violation of constitutional rights, and punitive damages." The putative class's theory of recovery under 28 U.S.C. § 1983 is that until 2003, Defendants failed to screen incoming inmates for HCV, and that Defendants have not "backscreened," inmates for HCV, i.e., screened incarcerated inmates not originally screened upon intake. As a result, Plaintiffs argue that inmates who have HCV have had their condition remain undiagnosed and untreated, and have exposed other inmates to the virus.
The parties agree that HCV is a serious medical condition. See Ellis v. Mohenis Services Inc., No. 96-6307, 1998 WL 564478, at *3 n.2 (E.D.Pa. Aug. 24, 1998) (explaining that HCV remains in the blood and accounts for a large percentage of cirrhosis, liver failure and liver cancer cases (citing to Downs v. Hawkeye Health Servies, Inc., No. 97-3851, 1998 WL 348201, at *3 (8th Cir. July 1, 1998) (quoting from Stedman's Medical Dictionary 784 (26th ed. 1995)). HCV is not a disease, but a virus that can cause liver disease, and over time, liver damage. HCV is a blood borne virus that can be spread through IV drug use, sexual contact, needle stick injury, tattooing, body piercing, or any other means of transferring blood.
Plaintiff Walter Bennett was incarcerated in the New Jersey State Prisons from approximately April 15, 1992 until June 5, 2002. Bennett maintains that he had a prior history of intravenous drug use and had a blood transfusion in 1992, both of which are risk factors for HCV. Bennett asserts that while in prison, he underwent blood tests that showed elevated levels of hepatocellular enzymes which should have prompted follow-up blood work and counseling regarding HCV by Defendants. Instead, Bennett argues that he was not tested and diagnosed with HCV until he underwent routine blood procedures shortly before his release from prison. Bennett also complains that Defendants failed to counsel him or educate him as to the consequences concerning the virus. The CMS Defendants' expert, Carroll M. Leevy, M.D., submitted a report stating that Bennett's medical records revealed that he had elevated alanine aminotransferase (ALT) levels in 1995 and in 1996. Elevated levels of ALT are an indication of HCV. Dr. Leevy writes that in November 2001, a hepatitis panel was ordered for Bennett that confirmed that he had HCV. She also writes that on April 29, 2002, Bennett was seen in the Infectious Disease Clinic and provided education regarding HCV on May 15, 2002, but was not treated in prison for HCV. Upon release on June 5, 2002, Bennett was treated by his family physician and is currently symptom free.
Plaintiff Gregory Royal was transferred in May 1999 to the New Jersey State Prison and is currently incarcerated at South Woods State Prison. Royal states that in September 2001, he was advised by a nurse employed by CMS that he had HCV and liver damage. Royal maintains that he was given an injection but not provided with adequate counseling or treatment for his HCV. In April 2003, Royal states that he was told he was scheduled for a liver biopsy but as of the date of the Second Amended Complaint, he had not had the operation. The CMS Defendants' expert, Dr. Leevy, provides in her report that Royal's records show that he had elevated ALT levels in 1999, 2000 and 2001. On April 11, 2001, a hepatitis panel was ordered and came back positive for hepatitis. Royal was given a hepatitis A vaccine in June 2001. Her report continues to describe the education and treatment options discussed with Royal by medical practioners. Dr. Leevy provides that Royal's treatment for his HCV was delayed due to his not being an ideal candidate for HCV therapy and possible side effects.*fn5 On February 22, 2006, Royal was started on drug treatment but his success with this treatment has not yet been determined.
Plaintiff John Lacey has been incarcerated in New Jersey state prisons since 1983, and admits he is not infected with HCV.
This Court cannot exercise jurisdiction over cases that are moot and, therefore, we first address the issue of whether Plaintiffs' request for injunctive and declaratory relief is justiciable if Defendants have adopted current Federal Bureau of Prison ("FBOP") guidelines for the management of HCV, and if all NJDOC inmates have been "back-screened." For the reasons explained below, Plaintiffs' request for injunctive and declaratory relief is denied as moot.
In examining whether this case should be dismissed on grounds of mootness, we must determine whether Plaintiffs had a live controversy when they filed suit, and if so, whether the relief provided by Defendants during the pendency of this litigation rendered the injunctive relief requested moot.*fn6 Under Article III of the U.S. Constitution, the judicial power of the United States shall extend to "cases" and "controversies." U.S. Const. art. III, § 2. The "case or controversy" requirement serves to limit the "business of federal courts to 'questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process,' and it defines the 'role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government.'" U.S. Parole Comm'n v. Geraghty, 445 U.S. 388, 395-96 (1980)(citing to Flast v. Cohen, 392 U.S. 83, 95 (1968)). This constitutional limitation renders a case moot: "when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Id. (citing to Powell v. McCormack, 395 U.S. 486, 496 (1969). "Article III does not permit federal courts to decide moot cases." Rosetti v. Shalala, 12 F.3d 1216, 1223 (3d Cir. 1993)(relying on Liner v. Jafco, Inc., 375 U.S. 301, 306 n. 3 (1964)).
At the center of the Defendants' argument for mootness is that Plaintiffs have been provided with the requested injunctive relief and, therefore, no further relief need be provided. It is not enough, however, for Defendants to simply cease the alleged illegal conduct to circumvent an injunction being imposed. "Mere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave '[t]he defendant ... free to return to his old ways.'" Hilton v. Wright, 235 F.R.D. 40, 47 (N.D.N.Y. 2006)(citing United States v. Concentrated Phosphate Exp. Ass'n, 393 U.S. 199, 203 (1968) (quoting United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953)).
In addition to the voluntary cessation of the challenged conduct, a case becomes moot if: "(1) it can be said with assurance that 'there is no reasonable expectation ...' that the alleged violation will recur, ... and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." Phillips v. Pennsylvania Higher Education Assistance Agency, 657 F.2d 554, 569 (3d Cir. 1981), cert. denied by 455 U.S. 924 (1982)(quoting Marshall v. Whittaker Corp., Berwick Forge & Fabricating Co., 610 F.2d 1141, 1145 n.9 (3d Cir. 1979); County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979)). "The 'heavy burden of persua[ding]' the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness." Public Interest Research Group of New Jersey, Inc. v. Hercules, Inc., No. 89-2291, 93-2381, 2003 WL 23519620, at *11 (D.N.J. Oct. 27, 2003)(quoting Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 190 (2000)).
Under the test for mootness, Defendants have the heavy burden of proving that: (1) there is no reasonable expectation that the alleged violations of failing to screen inmates for HCV will recur; and (2) the Defendants' policy for screening new inmates and "backscreening" current inmates has completely and irrevocably eradicated the effects of the alleged violation. We find that Defendants have shouldered this heavy burden.*fn7
Defendants have provided evidence that "an extensive HCV program regarding the education, screening, testing, diagnosis and treatment of New Jersey prisoners that follows the FBOP's Guidelines." In support of their argument, the CMS Defendants submitted the Affidavit of the New Jersey Medical Director for CMS, Lionel Anicette, Jr., M.D.,*fn8 who states that injunctive relief requested by Plaintiffs is not necessary because a comprehensive HCV program has been adopted and implemented, and is being monitored to assure that the inmates receive HCV treatment consistent with the standards set forth in the FBOP Guidelines for the prevention and treatment of viral hepatitis, including HCV. Dr. Anicette further states in his Affidavit that "backscreening" of the New Jersey State inmate population "has been completed."
More specifically, the Anicette Affidavit provides a list of the following actions taken with regard to their screening policy:
The New Jersey Department of Corrections (NJDOC) has directed that the FBOP's HCV Guidelines should be followed and this directive has been communicated to all healthcare providers.
a. CMS has subcontracted with the Cooper Health System and its Infectious Disease Department to provide infectious disease consultations to inmates. Cooper Hospital is also in the process of reviewing every HCV inmate's medical care to assure compliance with the FBOP's HCV Guidelines.
b. All inmates who meet the treatment criteria in the FBOP's HCV Guidelines are offered HCV pharmacologic treatment which they can accept or reject. Inmates who accept HCV medications are given a combination of pegylated interferon in combination with ribavirin. This pharmacologic treatment is FDA approved and recommended for use in the FBOP's HCV guidelines.
c. Inmates in New Jersey, including in excess of 7,000 admitted prior to February 1, 2003, have been given a Blood Borne Pathogen Risk Assessment ("BBPRA")(HCV/HIV). HCV is a blood borne pathogen. Inmates who were identified with a positive risk factor for HCV have been encouraged to consent to a HCV test.
d. Any inmate who requests an HCV test is given the test.
e. All inmates are given extensive counseling and education materials, a NJDOC video on HCV and direct communications with their healthcare providers.*fn9
f. The inmates' Electronic Medical Records ("EMRs") have been updated with comprehensive HCV forms to assure more consistent and thorough HCV documentation.
g. The care and treatment of all HCV inmates is closely tracked.
h. CMS compiles and analyzes statistical data regarding New Jersey's HCV program to measure and analyze the effectiveness of the program. The data is shared with the NJDOC.
i. The NJDOC monitors the HCV care and treatment given to inmates and CMS is subject to contractual penalties if it does not comply with its contract.
Defendant Hayman also argues that NJDOC requires that CMS follow FBOP guidelines for HCV detection and treatment, and in support thereof attached the affidavit of Ralph Woodward, managing physician employed by NJDOC as director of health care services, who stated that in January 2003, the NJDOC and CMS adopted HCV guidelines based the FBOP guidelines.
Moreover, Plaintiffs admit that adoption of the FBOP Guidelines would provide appropriate relief. Plaintiffs' expert, Bennett Downs Cecil, III, M.D., states in his written expert opinion that,
at all times subsequent to January of 2003, CMS and the New Jersey Department of Corrections have adopted the most current version of the Federal Bureau of Prison Guidelines with respect to the handling of new inmates. ... Assuming the Guidelines are being followed, appropriate Hepatitis C testing is being done with respect to these inmates, appropriate ...