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The U.S. Court of Appeals for the 1st Circuit has issued a split ruling in a case brought by a Maine jail inmate claiming an Eighth Amendment violation over being denied HIV drugs for 22 months. The court ruled that his claims against a physician’s assistant under contract to the York County Jail could move forward, but it affirmed a summary judgment ruling in favor of a medical services company and four of its employees. On June 29, a unanimous panel affirmed all but one summary judgment ruling in favor of the defendants issued by Chief Judge John Woodcock Jr. of the District of Maine in March 2010. The 1st Circuit’s ruling in Leavitt v. Correctional Medical Services Inc. vacated the summary judgment against Alfred Cichon, a physician’s assistant and owner of Allied Resources for Correctional Health Services. Allied provided contract medical care to York County Jail inmates during Raymond Leavitt’s time there, from September 2006 to February 2007. The court also remanded this part of the case back to the district court. But the court affirmed Woodcock’s summary judgment ruling in favor of Correctional Medical Services (CMS), which provides medical services to Maine State Prison inmates under contract with the Maine Department of Corrections, and four of its employees. CMS is now known as Corizon following a June merger with another correctional health care company. Raymond Leavitt claimed the various medical providers violated the Eighth Amendment, which bars the government from imposing cruel and unusual punishments, by delaying his access to HIV drugs for 22 months. After Leavitt’s February 2007 transfer to the Maine State Prison he did not receive HIV medication until July 2008. Leavitt’s court papers claim Cichon said, “We don’t give away [HIV] medications here at this jail because the jail is so small and we are not equipped financially to hold the burden of providing expensive medication.” Leavitt also claims that Cichon had a financial interest in withholding the drugs. Leavitt alleged that Cichon’s treatment delay constituted deliberate indifference or negligence. Cichon testified at the district court that he never saw the results of one of Leavitt’s blood tests. Judge Kermit Lipez authored the 1st Circuit opinion. He was joined by Judges Michael Boudin and Jeffrey Howard. Lipez wrote that the fact that Cichon missed the report about the blood test and did not follow up “is at a minimum sub-optimal, perhaps even negligent.” Lipez concluded that a reasonably jury could infer that Cichon was aware of Leavitt’s health risks and also that he had a financial interest in keeping prisoner treatment costs down to keep the jail happy and to retain his contract. He also noted that Leavitt bolstered his theory by pointing out that “Cichon had been admonished by the state medical licensing authorities for unprofessional conduct that could be interpreted as evidence of his desire to lower the costs of medical care at [York County Jail].” Lipez then addressed the district court’s emphasis on Cichon’s other actions in its reasoning for granting summary judgment. For example, Cichon directed Allied’s nursing staff to obtain Leavitt’s medical history and he ordered blood tests and reviewed Leavitt’s records: “This conduct, while certainly relevant to Cichon’s defense, does not preclude a jury from finding that his subsequent failure to examine the viral load report and to follow up on Leavitt’s condition, in combination with other evidence in the summary judgment record, added up to deliberate indifference.” Lipez also concluded that the “district court was too quick to decide that Cichon’s version was credible and Leavitt’s not. This is precisely the sort of genuine and material dispute that ought to be resolved by a jury.” Lipez also found that Leavitt provided sufficient evidence for a jury to evaluate his “serious medical need” argument under the Eighth Amendment: “Leavitt presented evidence that Cichon’s omission not only exposed him to these short-term effects, but also led to the exacerbation of his underlying condition.” Lipez next addressed Leavitt’s claims against the individual CMS defendants. “It may be true that the care Leavitt received at [Maine State Prison] was generally inadequate,” he wrote. “However, to make out a cognizable Eighth Amendment claim against healthcare providers in their individual capacity, he must demonstrate that there is sufficient evidence for a reasonable fact finder to conclude that each CMS defendant was ‘aware of facts from which the inference could be drawn that a substantial risk of serious harm exists,’ and that each defendant did, in fact, ‘draw the inference.’” Lipez then dispatched Leavitt’s claims against CMS and its employees in their official capacities. He noted that CMS concedes that it can be held liable as a municipality for civil rights deprivation of rights cases based on its work at the Maine State Prison. “An underlying constitutional tort is required to proceed under a municipal liability theory,” Lipez wrote. “Where, as here, there is no constitutional violation by the employees of the municipality, there can be no liability predicated on municipal policy or custom.” Leavitt’s lawyer, James Billings, a partner at Lipman, Katz & McKee in Augusta, Maine, said that, with respect to the case against Cichon, he and his client were “very pleased the court agrees with us that this was a classic credibility determination that should be resolved by a jury. Leavitt is looking forward to his day in court.” Although he and his client were disappointed with the 1st Circuit’s ruling on CMS and related defendants, he said they “do feel that we’re a little bit vindicated.” He added, “The court went out of its way to say they really dropped the ball with respect to his treatment.” Billings also said he believes the ruling will be important to practitioners with similar cases. “With Cichon, we had some fairly good evidence of his mental state based on the statements he made,” Billings said. “That’s really what was lacking with the CMS defendants. It was all circumstantial. The court has laid out, going forward, the kind of evidence is needed to get to get past summary judgment.” Elizabeth Peck, a partner at Thompson & Bowie in Portland and the lawyer for Cichon, did not respond to requests for comment. Cichon did not respond to a message left at his company. Christopher Taintor, a partner at Portland-based Norman, Hanson & DeTroy and the lawyer for Corizon, the successor to CMS, declined to comment. Corizon spokesperson Ken Fields said that the 1st Circuit ruling “affirms the summary judgment in favor of our company in this matter.” “Beyond this case, it’s also important to point out that the overall system of care provided by our healthcare staff in Maine has been recognized for its high quality,” Fields said. “In fact, Maine State Prison has been accredited by the American Correctional Association (ACA) for the quality of its healthcare program. All of our staff in Maine are committed to delivering quality care to the inmate patients we serve.” Sheri Qualters can be contacted at [email protected] .

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