Smith v. Aroostook County

          ORDER ON PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION

          Nancy Torresen United States District Judge.

         Plaintiff 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 preliminary injunction.

         FINDINGS OF FACT

         From 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.

         I. Diagnosis and Treatment of Ms. Smith's Opioid Use Disorder

         Ms. Smith began abusing opioids at the age of 18. Tr. 41:10-11, 42:4-43:7.^[1] 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. Tr. 39:4-7.

         In 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.^[2] 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. 34:11-13.

         With 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.

         In 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.

         II. Opioid Use Disorder Risks and Treatment in Correctional Facilities

         Ms. 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.

         Given 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. 667:21-24.

         A body 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.^[3] 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.

         Despite 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. 605:2-17.

         III. Treatment of Opioid Use Disorder in Aroostook County Jail

         The 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.

         The 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).^[4] 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, 71:10-72:5.^[5]

         The 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.^[6]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.^[7] Commander Craig Clossey, the Jail's Administrator, was unfamiliar with the term “opioid use disorder” before the hearing in this action. Tr. 390:3-6.

         In 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.

         IV. Ms. Smith's Pending Incarceration at Aroostook County Jail

         On 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.

         V. Defendants' Denial of Ms. Smith's Request to Continue Receiving Buprenorphine While Incarcerated

         Upon 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. 499:6-19.^[8]

         Ms. 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.

         Based 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, 693:5-19.

         PROCEDURAL HISTORY

         On 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. 23).

         On 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 ...