United States District Court, D. Maine
ORDER ON PLAINTIFF'S MOTION FOR A PRELIMINARY
Torresen United States District Judge.
Brenda Smith's doctor has prescribed her a twice-daily
dose of buprenorphine as part of a medication-assisted
treatment (“MAT”) program for
her opioid use disorder. Ms. Smith brings this lawsuit
against Defendant Aroostook County and against Defendant
Shawn Gillen, in his official capacity as Sheriff of
Aroostook County, alleging that the Defendants' refusal
to allow her to continue taking her medication during her
impending 40-day term of incarceration at the Aroostook
County Jail (the “Jail”)
violates the Americans with Disabilities Act
(“ADA”) and the Eighth
Amendment. Before me is the Plaintiff's motion for a
preliminary injunction requiring the Defendants to provide
her with access to her prescribed medication. Pl.'s Mot.
for Prelim. Inj. (ECF No. 9). For the reasons that follow I
GRANT the Plaintiff's motion for a
February 11th to February 15th, 2019, I held an evidentiary
hearing on the Plaintiff's motion. I make the following
findings of fact based on the testimony and exhibits
presented during the hearing and on admissions made by the
parties in their preliminary injunction filings.
Diagnosis and Treatment of Ms. Smith's Opioid Use
Smith began abusing opioids at the age of 18. Tr. 41:10-11,
42:4-43:7. She recalls her use starting with
prescribed medication, but quickly escalating into illicit
use of hydrocodone, Percocet, morphine, and eventually
heroin. Tr. 41:12-19, 66:5-20. Ms. Smith's dependence
left her unable to maintain employment or to care for her
family, culminating in the loss of custody over her children.
2009, Ms. Smith's doctor diagnosed her with opioid use
disorder and prescribed her with Suboxone as part of an MAT
program to treat that condition. Tr. 45:1-5,
48:14. In 2014, Ms. Smith's provider switched
her prescription to buprenorphine, which she continues to
take to this day. Tr. 48:10-17. Ms. Smith's current
physician, Dr. David Conner, has prescribed her to take 8
milligrams of buprenorphine twice daily. Dr. Conner has
attempted to taper Ms. Smith's buprenorphine dosage on
multiple occasions. Conner Dep. 21:1-8. Those efforts were
not successful, and Ms. Smith's maintenance dose of
buprenorphine remains necessary. Conner Dep. 21:1-8,
22:22-23:2, 43:12-24, 54:11-20; Tr. 48:18-22. Ms. Smith's
condition is currently stable on her medication, and Dr.
Conner considers her one of his success stories. Conner Dep.
the help of her medication, Ms. Smith has been in active
recovery for her opioid use disorder for approximately ten
years. During that time, Smith has regained custody of her
four children, secured stable housing for her family, and
obtained employment. Tr. 34:5-9, 35:19-36:4. She has earned
her high school diploma and has begun to take college
courses. Tr. 36:2-4, 330:5-14. Like many people with opioid
use disorder, Ms. Smith's recovery has not been entirely
smooth, and in the early years she occasionally relapsed. Tr.
47:10-12, 69:18-70:7. However, it has been five years since
her last use. Tr. 48:5-6.
2014, Ms. Smith was incarcerated in the York County Jail for
seven days. Tr. 53:24-54:2. During that time, she was not
allowed to continue taking her daily prescription of
Suboxone. Tr. 53:18-23. Ms. Smith describes her ensuing
withdrawal as the worst pain she has ever endured and recalls
experiencing suicidal thoughts for the first time in her
life. Tr. 54: 3-14, 18-20. Although Ms. Smith returned to her
provider and resumed her MAT the day after she left the York
County Jail, she is personally aware that one of her
cellmates, who did not return to treatment, overdosed and
died shortly after her release. Tr. 54:21-56:22.
Opioid Use Disorder Risks and Treatment in Correctional
Smith's anecdote about her cellmate is consistent with
broader national trends. Numerous governmental and health
organizations have warned that opioid overdose death has
reached crisis levels in the United States. Tr. 125:14-21;
Pl.'s Ex. 98. In 2017, Maine's overdose death rate
reached a record high, exceeding the nationwide average and
representing a greater year-on-year increase than the
surrounding New England states. Tr. 670:9-14, 672:3-7;
Pl.'s Ex. 62. Most of these deaths were caused by
fentanyl, a powerful opioid that can be deadly even in minute
doses and that has seen a surge in availability in recent
years. Tr. 126:22-127:8, 127:9-14, 670:16-671:19,
673:16-674:8. Opioid dealers will routinely mix fentanyl into
their product, leaving unwitting people to ingest or inject
the more dangerous narcotic and die. Tr. 127:9-21,
671:3-671:7, 674:9-13. While Maine's overall overdose
death rate ticked down in 2018, the proportion of deaths from
fentanyl increased. Tr. 673:16-674:8. Based on these
statistics, the Plaintiff's expert Dr. Jonathan Fellers
opined that it is more dangerous than it has ever been to be
using opioids. Tr. 674:9-13. And the risk of overdose death
is even higher among recently-incarcerated people and others
who have just undergone a period of detoxification, because
opioid tolerance decreases in the absence of use. Tr.
149:10-150:22, 151:20-152:2, 679:3-15.
the well-documented risk of death associated with opioid use
disorder, appropriate treatment is crucial. People who are
engaged in treatment are three times less likely to die than
those who remain untreated. Tr. 678:10-14; Pl.'s Ex. 72.
For some people with opioid use disorder, MAT is essential
for successful recovery. Tr. 129:11-16. Dr. Fellers estimated
that less than five percent of his patients could achieve and
maintain recovery through counseling or abstinence alone. Tr.
of evidence has emerged that permitting MAT in correctional
facilities offers substantial, and possibly essential,
benefits to incarcerated people. One study of English
correctional facilities found that treatment with
buprenorphine or methadone was associated with an 80 to 85
percent reduction in post-release drug-related mortality. Tr.
161:3-10; Pl.'s Ex. 82; see also Tr.
154:14-156:20; Pl.'s Ex. 77 (similar results from study
of impact of MAT on post-release mortality in Australia).
Participation in MAT during incarceration has also been
associated with a reduced likelihood of in-custody
deaths by overdose or suicide and an overall 75 percent
reduction in all-cause in-custody mortality. Tr. 184:5-188:9,
1009:21-23, 1068-6-16; Pl.'s Ex. 79. And in a randomized,
controlled trial conducted in the Rhode Island correctional
system, incarcerated people who were permitted to continue
taking their prescribed methadone were seven times more
likely to continue treatment after release than were inmates
who were forcibly withdrawn from MAT. Tr. 171:12-172:9,
176:13-20; Pl.'s Ex. 80. The evidence of MAT's
benefits has become so compelling that it would no longer be
possible to conduct the kind of randomized trial that was
used in Rhode Island. Tr. 177:11-178:12, 680:15-24. As
explained by Dr. Fellers, researchers would not consider it
“ethically feasible to deny a group a medication that
has such [a] proven track record at improving
outcomes.” Tr. 680:20-24.
this growing evidence, only a limited number of facilities in
the United States have programs in place to routinely provide
MAT to inmates. The Plaintiff's witness Edmond Hayes, who
developed and runs an MAT program at the Franklin County Jail
in Massachusetts and who consults with other facilities about
implementing such programs, offered some explanation of why
this may be the case. Drawing on his experience working to
encourage corrections personnel to put MAT programs in place,
Mr. Hayes explained that law enforcement pushback often
arises out of two interrelated fears: First, that opioid
replacement medications are “drugs, ” not
medicine, and that “bad” people should not be
given “drugs”; and second, that opioid
replacement medications are sought-after contraband in
correctional facilities, and it does not make sense to
introduce more “drugs” into a facility. Tr.
Treatment of Opioid Use Disorder in Aroostook County
Jail generally prohibits inmates from continuing to use
opioid replacements such as buprenorphine while they are
incarcerated in the facility. Clossey Aff. ¶ 2 (ECF No.
14-4) (“Suboxone and its generic equivalent forms
(hereafter ‘suboxone') is prohibited in the
Aroostook County Jail.”); Pl.'s Ex. 8; Pl.'s
Ex. 95. The Jail has departed from this prohibition only in
one instance, for a pregnant woman with opioid use disorder
who had been prescribed MAT by her treating physician. Tr.
376:21-377:1; Willette Dep. 21:15-23, 72:2-5 (ECF No. 49). In
that case, the Jail continued to provide the woman with her
medication to avoid fetal harm. Tr. 835:11- 16; Willette Dep.
37:14-21. All other individuals who have been prescribed MAT
and who have been incarcerated in the Jail have been required
to go undergo withdrawal. Willette Dep. 72:2-5; KVHC Dep.
15:9-12; see also Willette Dep. 34:3-14;
39:21-40:15, 75:14-25, 77:16-78:22, 123:24-25.
Jail contracts with Katahdin Valley Health Center
(“KVHC”) for the provision of
medical services including management of medications.
See Pl.'s Ex. 95. The Jail's contract with
KVHC includes a set of policies that govern provision of
health services at the Jail. Pl.'s Ex. 95. Among these
policies is the Jail's opioid withdrawal protocol. The
version of this protocol in effect when Ms. Smith was
originally scheduled to report to the Jail stated that
“[a]s we do not use opioid, or opioid
replacements in the Aroostook County Jail, this protocol is
designed to assist inmates during the withdrawal
process.” Pl.'s Ex. 8 (emphasis
added). The withdrawal protocol goes on to
describe the steps that KVHC is to initiate “[i]f
documented opioid use is found on entry.” Pl.'s Ex.
8. These steps include assessing the presence and severity of
the patient's withdrawal symptoms and, where indicated,
providing the patient with medication that eases the symptoms
of withdrawal. Pl.'s Ex. 8. As explained by Claudette
Humphrey, who testified on behalf of KVHC, and by Alison
Willette, a nurse employed by KVHC and the Defendants'
30(b)(6) representative, the decision not to use opioid
replacements in the Jail was made at the Jail's
direction, purportedly for security reasons. KVHC Dep.
27:18-22, 72:21-73:17, 79:11-80:8, 81:6-17 (ECF No. 60);
see also Willette Dep. 21:15-22:1, 41:18-42:3,
withdrawal protocol is not a treatment for opioid use
disorder. See KVHC Dep. 78:2-7; Defs.'
Post-Trial Br. 16 (ECF No. 103). The only treatment that the
Jail offers for opioid use disorder is substance abuse
counseling. Willette Dep. 122:5-23.Ms. Willette testified that
she was unaware of opioid use disorder's symptoms or the
standard of care for opioid use disorder. Willette Dep.
93:8-24. When asked whether she was aware of studies
suggesting that forced withdrawal from MAT can lead to
long-term negative outcomes for patients with opioid use
disorder, Ms. Willette not only answered in the negative but
stated that she tends not to read studies because she
“find[s] them boring.” Willette Dep.
99:13-19. Commander Craig Clossey, the Jail's
Administrator, was unfamiliar with the term “opioid use
disorder” before the hearing in this action. Tr.
April of 2018, the Maine Office of Substance Abuse and Mental
Health Services informed Cmdr. Clossey that the state had
significant funds available to implement an MAT program at
the Jail. Tr. 467:1-6, 469:16-21. Cmdr. Clossey contacted the
Jail's medical providers, and they occasionally revisited
the idea for several months without making forward progress.
Tr. 467:7-470:3. Cmdr. Clossey indicated that the process was
delayed because KVHC and Aroostook Mental Health Services
(the Jail's mental health services provider) had
difficulty finding someone licensed to prescribe and
administer buprenorphine. Tr. 467:7-470:3. However, Ms.
Humphrey testified that KVHC offered to have one of its
providers certified to prescribe buprenorphine in the Jail
and that the Jail did not accept that proposal. KVHC
Dep.13:5-14, 13:25-14:1, 35:11-14. As of Ms. Humphrey's
deposition on January 30, 2019, KVHC still had no personnel
certified to prescribe buprenorphine. KVHC Dep. 13:8-10.
Ms. Smith's Pending Incarceration at Aroostook County
December 24, 2017, Ms. Smith was using a self-checkout
terminal at a Walmart when she noticed 40 dollars in change
that another customer had failed to collect from the
terminal. Tr: 57:12-58:10. Ms. Smith pocketed the money,
completed her own transaction, and left. Tr. 58:4-58:10.
Based on this conduct, Ms. Smith was later arrested and
charged with theft. Tr. 57:4-13. Ms. Smith was convicted and
sentenced to spend 40 days in the Aroostook County Jail. Tr.
56:25-7:5. While Ms. Smith was originally scheduled to report
to the Jail on September 7, 2018, that surrender date was
extended to April 1, 2019, to allow the further development
of the case at bar.
Defendants' Denial of Ms. Smith's Request to Continue
Receiving Buprenorphine While Incarcerated
learning that Ms. Smith would be incarcerated at the Jail,
her counsel contacted the facility multiple times to ask
whether she would be allowed to continue to take her
buprenorphine. Two of counsel's phone calls reached Cmdr.
Clossey. Tr. 474:5-475:8. On both occasions, Cmdr. Clossey
told counsel that it was unlikely Ms. Smith would be allowed
to continue taking her medication, but that the decision
rested with “medical” (that is, KVHC). Tr.
474:5-475:8. Cmdr. Clossey transferred counsel's calls to
KVHC. Tr. 474:5-475:8. When he reached KVHC, counsel repeated
his question of how Ms. Smith's need for buprenorphine
would be handled while she was at the Jail. Ms. Willette, who
took counsel's call, informed him that Ms. Smith would
undergo withdrawal and her symptoms would be treated in
accordance with the Jail's withdrawal protocol. Willett
Dep. 123:15-124:3. This was the same information that Ms.
Willette had previously given to any other opioid use
disorder patient who called to ask if they could continue on
MAT while at the Jail. Willette Dep. 75:14-25; see
also Willette Dep. 77:16-78:22, 123:24-25; Tr.
Smith's attorney also reached out to the Jail via fax. In
the cover sheet of a letter faxed to Cmdr. Clossey on August
31, 2018, counsel asked Cmdr. Clossey to “please let me
know if you need anything further in order to allow Ms. Smith
to remain on her buprenorphine program when in your
jail.” Pl.'s Ex. 5 at 1. The letter itself was a
statement from Dr. Conner that generally addressed Ms.
Smith's history of treatment with Suboxone and expressed
concern about requiring a patient to withdraw from
buprenorphine. Pl.'s Ex. 5 at 2.
on the evidence offered by the Plaintiff's experts, the
available scientific evidence, and Ms. Smith's medical
history, I find that forcing Ms. Smith to withdraw from her
buprenorphine would cause her to suffer painful physical
consequences and would increase her risk of relapse,
overdose, and death. Tr. 131:24-132:14, 137:17-138:25,
September 6, 2018, the day before she was to report to the
Jail, Ms. Smith filed this lawsuit along with a motion for a
temporary restraining order or a preliminary injunction.
Compl. (ECF No. 1); Mot. for TRO or PI (ECF No. 3). The
parties conferred and secured an extension of Ms. Smith's
surrender date until January 14, 2019. See Order
(ECF No. 12). The Plaintiff then withdrew her motion for a
temporary restraining order, and the parties proceeded to
brief the motion for a preliminary injunction. On December 3,
2018, the parties informed me that the Maine District Court
again had allowed Ms. Smith to extend her surrender date,
this time until April 1, 2019. Consent Mot. for Scheduling
Order (ECF No. 20). To allow the parties to use this
additional time for discovery, I set the motion for a
preliminary injunction for a five-day evidentiary hearing
beginning on February 11, 2019. Notice of Hearing (ECF No.
January 31, 2019, I held a pre-hearing conference of counsel.
(ECF No. 37.) During that conference, counsel for the
Plaintiff stated that she wished to withdraw her jury demand
and requested that the upcoming preliminary injunction
hearing be consolidated with a bench trial on the merits. The
Defendants objected, arguing that the Plaintiff could not now
withdraw her jury demand and that the preliminary injunction
hearing could not fully resolve all issues in the case
because additional facts remained to be developed.
Specifically, for the first time the Defendants asserted that
it was possible that the Jail would allow ...