by David Reutter

On April 26, 2024, a long legal battle over his delayed Hepatitis C (HCV) treatment netted Georgia prisoner Ricky Johnson just over $15,000 from Defendant state prison officials and medical personnel. As PLN has reported, many prison systems have delayed HCV care due to the high cost of individualized treatment. [See: PLN, Feb. 2023, p.52.]

During the long 2012-2018 time span relevant to Johnson’s civil rights complaint, the Georgia Department of Corrections (DOC) had two different policies related to HCV treatment. Under the 2012 policy, a triple drug treatment was offered when a liver biopsy showed stage 2 fibrosis and grade 2 inflammation. Prisoners who did not meet the testing requirements could still receive treatment if approved by the managing physician or other professionals overseeing the prisoner’s care. Under the newer 2016 policy, a new class of HCV drugs was administered, but treatment was generally reserved for Priority 1 prisoners as determined by a FibroSure test.

Johnson was diagnosed in 2009 with HCV while at Wilcox State Prison. His condition was monitored over the next few years until November 2012, when his DOC doctor referred him to Dr. Ayaz Chaudhary, who prescribed Johnson the triple-drug treatment and enrolled him for treatment of chronic diseases in the prison’s clinic. However, Johnson did not receive his first dose until another five years—and several prison transfers—later. In the pro se complaint he eventually filed, Johnson claimed that DOC Drs. Thomas Ferrell and Sharon Lewis, along with Dr. Kevin Marler at CoreCivic’s Jenkins Correctional Facility, violated his Eighth Amendment guarantee of freedom from cruel and unusual punishment with their deliberate indifference to his serious medical need. The U.S. District Court for the Middle District of Georgia ultimately disagreed and granted Defendants summary judgment. Johnson appealed.

The U.S. Court of Appeals for the Eleventh Circuit began with Defendants’ contention that Dr. Chaudhary’s treatment prescription was optional and not “medically necessary.” The Court noted first that the prisoner “was sent to Dr. Chaudhary specifically for the purpose of determining whether he needed HCV treatment.” At that time, a liver biopsy showed that Johnson suffered grade 2 inflammation, an indication that “his disease was progressing,” the Court continued. That meant there was “sufficient evidence in the record to conclude that Dr. Chaudhary’s prescription was both valid and medically necessary,” rebutting Defendants’ claims.

Johnson also pointed out “that Dr. Ferrell himself continuously confirmed to Johnson that he would receive treatment per Dr. Chaudhary’s prescription,” the Court noted. But Dr. Ferrell later blamed the delay in Johnson’s HCV treatment on a hernia surgery that the prisoner underwent on October 1, 2013, after a transfer to Ware State Prison. As the Court noted, Johnson “returned to Ware just eight days later, did not spend any time in the recovery unit, and took nothing more than Tylenol to manage his pain.” Given that, the Court concluded, “[i]t strains credulity to believe that Johnson’s hernia surgery prevented him from receiving treatment for eight months.”

Moreover, after these delays, Johnson filed a grievance that “bears Dr. Lewis’s signature,” the Court recalled. From that, “a jury could reasonably infer that she had knowledge of the contents of the form.” Error was also found in granting summary judgment to Dr. Marler, who was in charge of Johnson’s care at the CoreCivic lockup where he was at fault for “the nearly two-year delay before performing a non-invasive FibroSure test instead of administering the liver biopsy Dr. Chaudhary had suggested,” the Court noted. Then there was another two-month delay after that test before ultrasound confirmation, and still another four-month delay after that before Johnson finally left Dr. Marler’s care in November 2017 “without having received any treatment,” the Court noted. At each stage of this long delay, it concluded, there are “genuine disputes of material fact” that a jury needs to resolve.

When the Court issued its judgment on October 11, 2023, the district court’s order was therefore reversed and the case remanded. Before the Court, Johnson was appointed representation by attorneys Jordan L. Greene and Kasdin M. Mitchell with Kirkland & Ellis, LLP in Washington, D.C. See: Johnson v. Lewis, 83 F.4th 1319 (11th Cir. 2023).

Back at the district court, Dr. Marler resurrected an argument which he didn’t need to conclude before: That Johnson failed to exhaust administrative remedies against him before filing suit, as required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e. Though late in the game to raise that defense, the district court decided he was right; the purpose of PLRA is to warn potential defendants with a grievance before a prisoner sues them, and Johnson had moved on from the prison where Dr. Marler worked when he filed suit—so the doctor couldn’t have been warned in the way PLRA intended. He was thus dismissed on February 23, 2024. See: Johnson v. Lewis, 2024 U.S. Dist. LEXIS 31794 (M.D. Ga.).

The case proceeded to trial, where a jury found for Johnson on March 6, 2024, awarding him $1 in damages against Dr. Ferrell and $20,000 against Dr. Lewis. See: Johnson v. Lewis, USDC (M.D. Ga.), Case No. 5:16-cv-00453. Plaintiff moved for attorney’s fees, which PLRA caps at 150% of the award, less an amount equal to 25% of it that must be deducted and paid toward fees. That meant an award of $30,001.50 for Johnson’s counsel, which by then also included Greene and Mitchell’s fellow Kirkland & Ellis attorney Gabrielle Durling, as well as Atlanta attorneys Amanda Bradley, Jeffrey W. Chen and Manoj S. Varghese with Bondurant Mixson & Elmore LLP. Of that total, the district court decided on April 26, 2024, that Johnson was obligated to pay 25% of his $20,001 award, leaving him with $15,000.75, and leaving Defendants on the hook for another $25,001.25 representing the balance of his attorneys’ fees. See: Johnson v. Lewis, 2024 U.S. Dist. LEXIS 76027 (M.D. Ga.).

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