IN RE: HCV PRISON LITIGATION

• Court: District Court, D. Nevada
• Decided: February 18, 2020
• Docket: 3:19-cv-00577
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 In re: HCV PRISON LITIGATION Case No. 3:19-cv-00577-MMD-CLB

7 ORDER

8 9 10 11 I. SUMMARY 12 Plaintiffs Marty Scott Fitzgerald, Elizabeth Carley, Donald Savage, Howard White, 13 Carl Olsen, Scott Bedard, Stephen Ciolino, and Mitchell Fields1 seek to certify a 14 declarative and injunctive class of similarly-situated people incarcerated—or who will be 15 incarcerated in the future—and in the custody of the Nevada Department of Corrections 16 (“NDOC”) who suffer from chronic cases of the Hepatitis C virus (“HCV”).2 (ECF No. 11 17 (the “Motion”).) NDOC recently changed its policy governing the treatment of HCV-positive 18 incarcerated individuals, but Plaintiffs assert the policy’s prioritization system conflicts with 19 the medical standard of care and exposes incarcerated people to an unreasonable risk of 20 harm in violation of their Eighth Amendment rights. Because the Court agrees with 21 Plaintiffs that they satisfy the prerequisites for class certification—and as further explained 22 below—the Court will exercise its discretion to grant the Motion and certify a class. The 23 Court further adopts Plaintiffs’ proposed definition of the class members and issues for 24 class litigation as noted in the conclusion of this order. 25

26 1The Court consolidated a number of cases for pretrial purposes where HCV- positive incarcerated people challenge NDOC’s policy that resulted in them being denied 27 treatment under the Eighth Amendment, and located pro bono counsel to represent them in most of the cases. (ECF No. 1.) 28 1 II. BACKGROUND 2 A. Generally 3 Hepatitis means inflammation of the liver. (ECF No. 19-4 at 2.) HCV is a blood- 4 borne virus transmitted through exposure to infected blood. See Center for Disease 5 Control, Hepatitis C Questions and Answers for Health Professionals, 6 https://www.cdc.gov/hepatitis/hcv/hcvfaq.htm (last visited February 12, 2020).3 About 75% 7 to 85% of people who contract HCV go on to develop chronic HCV, or a HCV infection 8 that lasts longer than six months. See id. Over time, HCV damages the liver. See id. It can 9 cause fibrosis—the formation of scar tissue in the liver—and cirrhosis, which is severe 10 fibrosis. See id. In rare cases, it can also lead to liver cancer. Chronic HCV can also cause 11 other adverse health impacts, such as diabetes, joint pain, depression, sore muscles, 12 arthritis, various cancers, decreased kidney function, rashes, and autoimmune disease. 13 While not all people infected with HCV will develop symptoms, symptoms include fever, 14 fatigue, loss of appetite, upset stomach, vomiting, dark urine, grey-colored stool, joint pain, 15 and yellow skin and eyes. (ECF No. 19-4 at 2.) 16 Because it is spread through the blood, two common ways of contracting HCV are 17 intravenous drug use, including sharing needles, and unsanitary tattooing. (ECF No. 19-5 18 at 2.) HCV infection is relatively widespread, especially amongst incarcerated people. “An 19 estimated 12% to 39% of incarcerated persons in North America are HCV-antibody– 20 positive[.]” American Association for the Study of Liver Diseases and the Infectious 21 Diseases Society of America, HCV Guidance: Recommendations for Testing, Managing, 22 and Treating Hepatitis C (“HCV Guidance”), HCV Testing and Linkage to Care, 23 24 25

26 3The Court takes judicial notice of the facts on this web page because the Center 27 For Disease Control is a source whose accuracy cannot reasonably be questioned, and the basic information about HCV it provides is not subject to reasonable dispute. See, e.g., 28 Harris v. County of Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012). 1 https://www.hcvguidelines.org/evaluate/testing-and-linkage (last visited February 13, 2 2020).4 3 Until recently, HCV could only be treated, not cured. (ECF No. 19 at 1.) But HCV 4 can now be treated so effectively it can be considered ‘cured’ through treatment with 5 direct-acting antiviral drugs (“DAAs”). (Id. at 1-2.) “Successful hepatitis C treatment results 6 in sustained virologic response ([“]SVR[”]), which is tantamount to virologic cure and, as 7 such, is expected to benefit nearly all chronically infected persons.” HCV Guidance, When 8 and in Whom to Initiate HCV Therapy, https://www.hcvguidelines.org/evaluate/when- 9 whom (last visited February 13, 2020). The current standard of care as stated in the HCV 10 Guidance thus recommends treating most all HCV-positive people with DAAs. See id. 11 “[F]rom a medical standpoint, data continue to accumulate that demonstrate the many 12 benefits, both intrahepatic and extrahepatic, that accompany HCV eradication.” Id. 13 “Therefore, the panel continues to recommend treatment for all patients with chronic HCV 14 infection, except those with a short life expectancy that cannot be remediated by HCV 15 treatment, liver transplantation, or another directed therapy.” Id. “Accordingly, prioritization 16 tables have been removed from this section.” Id. NDOC disputes this. (ECF No. 19 at 2- 17 3.) As further explained below, NDOC’s policy for treating HCV includes a prioritization 18 table, which NDOC contends is based on “sound medical judgment.” (Id.) 19 B. Plaintiffs 20 Plaintiffs are all incarcerated people in NDOC’s custody who are HCV-positive and 21 requested DAA treatment, but were either refused by NDOC officials, or, in the case of 22 Scott Bedard only, were refused for two years, though he is now being treated with the 23 DAA Epclusa. (ECF Nos. 10 at 3-4, 11-17, 11 at 7-11.) Plaintiffs all describe the negative 24 health effects they have experienced because of NDOC’s refusal to treat them with DAAs, 25

26 4The Court also takes judicial notice of the facts on the HCV Guidance website, which is akin to an online pamphlet, because the American Association for the Study of 27 Liver Diseases and the Infectious Diseases Society of America are sources who accuracy cannot reasonably be questioned, and the information about HCV the HCV Guidance 28 website provides is not subject to reasonable dispute unless otherwise noted in this order. 1 including the negative mental health impact of knowing that their disease will get worse 2 over time, and that an effective cure exists, but they will not receive treatment. (Id.) 3 Plaintiffs primarily seek class-wide injunctive relief, though they also seek individual 4 damages. (ECF No. 10 at 19-23.) 5 C. NDOC’s Policy 6 Plaintiffs more specifically allege that NDOC refused to treat Plaintiffs’ HCV with 7 DAAs because NDOC officials determined they did not qualify for DAA treatment under 8 Medical Directive Number 219 (“MD 219”). (ECF No. 10 at 11-17; see also ECF Nos. 11- 9 1, 19-1 (copies of the policies)5.) NDOC agrees that MD 219 governs the treatment of 10 HCV-positive incarcerated people in its custody. (ECF No. 19 at 2-3.) 11 The most recent version of MD 219 provides that all people in NDOC custody will 12 be tested for HCV (ECF No. 19 at 2-3), which Plaintiffs concede is a step in their desired 13 direction (ECF No. 11 at 6). Plaintiffs also agree that the operative version of MD 219 14 makes DAA treatment available to more incarcerated people than previous versions of the 15 policy did. (ECF No. 11 at 6.) 16 However, MD 219 includes three priority levels for HCV treatment. (ECF Nos. 11-1 17 at 8, 19-1 at 4.) Plaintiffs argue this prioritization system conflicts with the standard of care 18 and exposes incarcerated people to an unreasonable risk of harm, but NDOC argues this 19 prioritization system “guarantees that all HCV patient [sic] will receive DAAs as needed 20 and required to treat their condition, while at the same time providing medical personnel 21 with discretion and flexibility to safeguard that those in a lower level of priority obtain 22 expedited DAA treatment when in the sound judgment of the medical provider examining 23 the patient it is determined that it is medically necessary.” (Compare ECF No. 11 at 6-7, 24 25 26 5The most recent versions of MD 219 proffered by the parties have different dates, 27 with NDOC’s proffered policy bearing a more recent date, but NDOC represents that there are no material differences between the versions of the policies proffered by the parties. 28 (ECF No. 19 at 3 n.2.) Accordingly, the Court will simply refer to MD 219 throughout this 1 with ECF No. 19 at 3.) Plaintiffs counter there is no medical justification for delaying DAA 2 treatment to individuals in any of the priority levels. (ECF No. 11 at 7.) 3 The three priority levels are as follows. 4 Priority Level 1 – High Priority for Treatment – Advanced hepatic fibrosis: APRI > 2.0, Metavir or Batts/Ludwig stage 3 or 4 on liver biopsy, cirrhosis; Liver transplant 5 recipients; HCC; Comorbid conditions associated with HCV; Immunosuppressant medication; and/or Continuity of Care. 6 Priority Level 2 – Immediate Priority for Treatment – Evidence for progressive 7 fibrosis: APRI score > 0.70, stage 2 fibrosis on liver biopsy; Comorbid Medical conditions; Diabetes melitus; and/or Chronic kidney disease. 8 Priority Level 3 – Low Priority for Treatment – Stage 0 to Stage 1 fibrosis on liver 9 biopsy; APRI < 1; All other cases of HCV infection meeting the eligibility criteria for treatment. 10 11 (ECF Nos. 11-1 at 8, 19-1 at 4.) Incarcerated people categorized as priority levels 1 and 12 2 are more likely to receive DAAs than those people categorized as priority level 3, who 13 are considered low priority for treatment. (ECF No. 11-1 at 8.) MD 219 also notes that 14 NDOC officials may make exceptions to these criteria on an individual basis, and if there 15 is a compelling need to do so. (Id.) In addition, MD 219 lists a number of contraindications 16 for treatment, such as non-adherence to prior therapy, which allows NDOC to refuse DAA 17 treatment to incarcerated people who would otherwise be eligible to receive it under MD 18 219. (Id. at 8-9.) 19 III. LEGAL STANDARD 20 “The class action is ‘an exception to the usual rule that litigation is conducted by 21 and on behalf of the individual named parties only.’” Wal-Mart Stores, Inc. v. Dukes, 564 22 U.S. 338, 348 (2011) (quoting Califano v. Yamasaki, 442 U.S. 682, 700-01 (1979)). The 23 party seeking class certification “must affirmatively demonstrate his compliance with” 24 Federal Rule of Civil Procedure 23. Id. at 350. “[C]ertification is proper only if the ‘trial court 25 is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been 26 satisfied.’” Id. at 350-51 (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160 (1982)). 27 The four Rule 23(a) requirements are numerosity, commonality, typicality, and adequacy 28 of representation. See id. at 349; see also Fed. R. Civ. P. 23(a). 1 “In addition to satisfying Rule 23(a)’s prerequisites, parties seeking class 2 certification must show that the action is maintainable under Rule 23(b)(1), (2), or (3).” 3 Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614 (1997). Here, Plaintiffs seek to certify 4 a Rule 23(b)(2) class. (ECF No. 11 at 12, 16-18.) A Rule 23(b)(2) class is one where “the 5 party opposing the class has acted or refused to act on grounds that apply generally to 6 the class, so that final injunctive relief or corresponding declaratory relief is appropriate 7 respecting the class as a whole[.]” Fed. R. Civ. P. 23(b)(2). “The key to the (b)(2) class is 8 ‘the indivisible nature of the injunctive or declaratory remedy warranted—the notion that 9 the conduct is such that it can be enjoined or declared unlawful only as to all of the class 10 members or as to none of them.’” See Parsons v. Ryan, 754 F.3d 657, 687 (9th Cir. 2014) 11 (quoting Dukes, 564 U.S. at 350). 12 In addition to the explicit requirements of Rule 23, an implied prerequisite to class 13 certification is that the class must be sufficiently definite. The party seeking certification 14 must demonstrate that an identifiable and ascertainable class exists. See Kristensen v. 15 Credit Payment Servs., 12 F. Supp. 3d 1292, 1302 (D. Nev. 2014). To satisfy the 16 ascertainability requirement, a class must be determinable from objective, rather than 17 subjective, criteria. See id. at 1303. The moving party must also affirmatively demonstrate 18 that he or she meets the above requirements. See Parsons, 754 F.3d at 674. However, a 19 court should not “‘turn class certification into a mini-trial’ on the merits.” Edwards v. First 20 Am. Corp., 798 F.3d 1172, 1178 (9th Cir. 2015) (quoting Ellis v. Costco Wholesale Corp., 21 657 F.3d 970, 983 n.8 (9th Cir. 2011)). 22 When a court certifies a class, it must do so in a written order. See Fed. R. Civ. P. 23 23(c)(1)(A). That order must define the class, the class claims, issues, or defenses, and 24 must appoint class counsel under Rule 23(g). See Fed. R. Civ. P. 23(c)(1)(B). 25 IV. DISCUSSION 26 Plaintiffs seek to certify a class of all persons: (a) who are or will be in the legal 27 custody of the NDOC; (b) who have been incarcerated for at least 21 days and have at 28 least 12 weeks remaining on their sentence; (c) who have been diagnosed with chronic 1 HCV and are candidates for DAA treatment pursuant to the proper medical standard of 2 care; and (d) for whom DAA treatment has been or will be denied, withheld, or delayed 3 based on policies or considerations that deviate from the proper medical standard of care. 4 (ECF No. 11 at 12.) The Court will conduct a rigorous analysis to determine whether it 5 should certify this class. See Parsons, 754 F.3d at 674. In conducting this analysis, the 6 Court will first address whether the class is sufficiently definite, then addresses each of 7 the Rule 23(a) requirements, then Rule 23(b)(2), and then finally the appointment of class 8 counsel. 9 A. Whether the Class is Sufficiently Definite 10 As mentioned above, any valid proposed class must be ascertainable based on 11 objective criteria, and the “proposed class definition should ‘describe a set of common 12 characteristics sufficient to allow a prospective plaintiff to identify himself or herself as 13 having a right to recover based on the description.’” Kristensen, 12 F. Supp. 3d at 1303 14 (citation and internal punctuation omitted). The Court finds the proposed class satisfies 15 this standard. Whether someone is in NDOC’s custody, where they are in their sentence, 16 whether they are candidates for DAA treatment, and whether their requests for DAA 17 treatment have been denied are all objective criteria. NDOC records can likely be used to 18 determine potential class members. Moreover, the Court finds that a prospective plaintiff 19 could identify whether she could participate in the proposed class based on these criteria. 20 NDOC’s argument to the contrary is unpersuasive. NDOC basically argues that 21 new inmates will become members of the class—and others will fall out of the class 22 definition—all the time, because new people will arrive, and others will be released, 23 whether through parole or a reduced sentence. (ECF No. 19 at 6.) But NDOC overlooks 24 that Plaintiffs are primarily seeking injunctive relief that would affect all current and future 25 HCV-positive inmates, so there would be no need to make individualized determinations. 26 See Graham v. Parker, No. 16-CV-01954, 2017 WL 1737871, at *2 (M.D. Tenn. May 4, 27 2017) (making the same point in an order certifying a class of HCV-positive incarcerated 28 1 people alleging their Eighth Amendment rights were violated by the denial of treatment). 2 Moreover, class certification here will insure against the danger of mootness. See id. at 3. 3 The Court will therefore move on to the Rule 23(a) requirements. 4 B. Rule 23(a) Requirements 5 1. Numerosity 6 Rule 23(a)(1) requires that the class be so numerous that joinder of all class 7 members is impracticable. See Fed. R. Civ. P. 23(a)(1). The exact size of the class need 8 not be known so long as general knowledge and common sense indicate that the class is 9 large. See McMillon v. Hawaii, 261 F.R.D. 536, 542 (D. Haw. 2009); see also Sherman v. 10 Griepentrog, 775 F. Supp. 1383, 1389 (D. Nev. 1991) (“‘It is not necessary that the 11 members of the class be so clearly identified that any member can be presently 12 ascertained.’ The court may draw a reasonable inference of the size of the class from the 13 facts before it.”) (citation omitted) (quoting Carpenter v. Davis, 424 F.2d 257, 260 (5th Cir. 14 1970)). 15 Plaintiffs’ estimate, based on NDOC’s own predictions regarding its prison 16 population and national statistics on percentages of HCV-positive incarcerated people, is 17 that there are between 1,500 and 4,500 HCV-positive inmates in NDOC’s custody at any 18 one time. (ECF No. 11 at 12-13.) “Although this evidence does not establish exactly how 19 many class members exist, Plaintiffs are not required to ‘specify an exact number or to 20 prove the identity of each class member, rather, ‘the plaintiffs must only show a reasonable 21 estimate of the number of class members.’’” Postawko v. Missouri Dep’t of Corr., Case 22 No. 2:16-CV-04219-NKL, 2017 WL 3185155, at *6 (W.D. Mo. July 26, 2017), aff’d, 910 23 F.3d 1030 (8th Cir. 2018) (certifying a class of HCV-positive inmates). Moreover, joinder 24 of this many class members would clearly be impracticable. See, e.g., Kavu, Inc. v. 25 Omnipak Corp., 246 F.R.D. 642, 646-47 (W.D. Wash. 2007) (finding the joinder of 3,000 26 class members impracticable). NDOC’s counterarguments focus on issues of 27 commonality, typicality, and whether the class definition is sufficiently definite. (ECF No. 28 1 19 at 5-6.) They are misplaced. The Court finds that Plaintiffs have satisfied the numerosity 2 requirement of Rule 23(a). 3 2. Commonality 4 “[C]ommonality requires that the class members’ claims ‘depend upon a common 5 contention’ such that ‘determination of its truth or falsity will resolve an issue that is central 6 to the validity of each claim in one stroke.’” Mazza v. Am. Honda Motor Co., 666 F.3d 581, 7 588 (9th Cir. 2012) (quoting Dukes, 564 U.S. at 350). “[A] class meets Rule 23(a)(2)’s 8 commonality requirement when the common questions it has raised are ‘apt to drive the 9 resolution of the litigation,’ no matter their number.” Jimenez v. Allstate Ins. Co., 765 F.3d 10 1161, 1165 (9th Cir. 2014) (quoting Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952, 962 11 (9th Cir. 2013)). But “[w]hat matters to class certification ... is not the raising of common 12 ‘questions’—even in droves—but rather, the capacity of a class-wide proceeding to 13 generate common answers apt to drive the resolution of the litigation.’” Dukes, 564 U.S. 14 at 350 (citation omitted). 15 Plaintiffs argue this requirement is satisfied because NDOC has subjected them to 16 standardized conduct through MD 219, and though the applicable standard of care 17 suggests that they would benefit from DAAs, NDOC has refused their requests for DAAs 18 because of NDOC’s application of MD 219. (ECF No. 11 at 13-14.) Plaintiffs further point 19 out several other issues common to all Plaintiffs. (Id. at 13-14.) NDOC counters that 20 Plaintiffs cannot satisfy the commonality requirement because claims of inadequate 21 medical care require individual determinations, and because a class action is unnecessary 22 to litigate the constitutionality of MD 219. (ECF No. 19 at 7-8.) NDOC further points to a 23 number of out-of-circuit decisions where incarcerated plaintiffs lost individual Eighth 24 Amendment deliberate indifference claims regarding HCV treatment in an apparent 25 attempt to argue that Plaintiffs are currently being provided with constitutionally adequate 26 medical care, and to buttress NDOC’s argument that each Plaintiff’s case necessarily 27 requires individualized inquiry rendering class certification inappropriate. (Id. at 8-12.) The 28 Court agrees with Plaintiffs. 1 Though NDOC cites many—and exclusively—out-of-circuit decisions, the Ninth 2 Circuit has rejected the argument that Eighth Amendment healthcare claims brought by 3 incarcerated people are inherently case-specific and necessarily turn on individual 4 inquiries. See Parsons, 754 F.3d 657 at 675-85 (rejecting the argument).6 In Parsons, the 5 Ninth Circuit characterized this argument as a “sweeping assertion” that “Eighth 6 Amendment claims can never be brought in the form of a class action[,]” which the Ninth 7 Circuit labelled a “fundamental misunderstanding” of the governing law. Id. at 675-76. The 8 Ninth Circuit went on to state it has “repeatedly recognized that prison officials are 9 constitutionally prohibited from being deliberately indifferent to policies and practices that 10 expose inmates to a substantial risk of serious harm.” Id. at 677. And the Ninth Circuit 11 went on to reject the same argument NDOC makes here by explaining that “every inmate 12 suffers exactly the same constitutional injury when he is exposed to a single statewide [] 13 policy or practice that creates a substantial risk of serious harm.” Id. at 678. The Court 14 must follow Parsons and thus reject NDOC’s argument. 15 Indeed, NDOC’s argument is particularly unpersuasive because the facts of this 16 proposed class may weigh even more strongly in favor of finding the commonality 17 requirement satisfied than the facts supporting the Ninth Circuit’s holding that the 18 commonality requirement was satisfied in Parsons. Specifically, there is no dispute that 19 Plaintiffs challenge a single, written policy—MD 219—which dictates care for HCV-positive 20 inmates in NDOC’s custody. (ECF Nos. 11 at 5-7, 13-14, 19 at 2-4, 3 n.2.) In Parsons, the 21 Ninth Circuit affirmed the district court’s certification of an Eighth Amendment deliberate 22 indifference to medical needs class of people incarcerated in Arizona’s prison system that 23 challenged “10 policies and practices to which all members of the certified class are 24 exposed.” Parsons, 754 F.3d at 679. And at least one of these policies was unwritten. See 25 id. Thus, logically, members of this proposed class—who challenge a single written 26 policy—have more in common than the members of the class certified in Parsons. 27

28 6NDOC’s brief does not address Parsons (ECF No. 19), even though Plaintiffs rely 1 Further, all Plaintiffs allege they would benefit from DAA treatment but have been 2 denied access to it under MD 219—with the exception of Scott Bedard, who alleges that 3 he has been irreparably harmed because NDOC refused to treat him with DAAs for about 4 two years. (ECF No. 11 at 7-11.) Indeed, Plaintiffs’ essential contention is that the medical 5 standard of care requires nearly all HCV-positive people to receive DAA treatment 6 immediately—which is also more effective when used before people get too sick—but 7 NDOC continues to use a tiered approach to care in MD 219 where only the sickest people 8 get DAA treatment. (Id. at 4-7, 13.) Those who are not as sick have to basically wait to get 9 sicker. (Id. at 5-6.) But waiting to get sicker causes issues like Mr. Bedard’s, who alleges 10 that “delayed approval of DAA treatment has led to chronic conditions associated with 11 chronic HCV, including Type 2 diabetes and hypothyroidism.” (ECF No. 11 at 11.) And 12 more importantly for purposes of the Motion, all Plaintiffs are similarly situated in that they 13 would benefit, or would have benefitted, from receiving DAAs sooner than MD 219 would 14 allow.7 15 The Court finds that the commonality requirement is satisfied here. 16 3. Typicality 17 The commonality and typicality requirements, though distinct, tend to merge in 18 many cases. Both requirements aid courts in determining whether maintaining a class is 19 feasible and “whether the named plaintiff’s claim and the class claims are so interrelated 20 that the interests of the class members will be fairly and adequately protected in their 21 absence.” Dukes, 564 U.S. at 349 n.5. The question a court must ask when evaluating 22 typicality is “whether other members have the same or similar injury, whether the action is 23 based on conduct which is not unique to the named plaintiffs, and whether other class 24 25 7Plaintiffs also share common anxiety related to the fact they know they would 26 benefit from DAA treatment, but are being denied DAA treatment. (ECF No. 11 at 7-11.) This further weighs in favor of finding the commonality prerequisite satisfied. The Court 27 also finds this argument plausible. Being told you are sick, will get sicker, and there is a drug you can take that would cure you, but you cannot have it until you get sicker, could 28 produce significant anxiety. And it is unsurprising that all Plaintiffs and proposed class 1 members have been injured by the same course of conduct.” Ellis, 657 F.3d at 984 2 (quoting Hanon v. Dataproducts Corp., 976 F.2d 497, 508 (9th Cir. 1992)). Claims need 3 not be absolutely identical; they need only be “reasonably co-extensive with those of 4 absent class members[.]” Meyer v. Portfolio Recovery Assocs., LLC, 707 F.3d 1036, 1042 5 (9th Cir. 2012) (quoting Hanlon v. Chrysler Corp., 150 F.3d 1011, 1020 (9th Cir. 1998)). 6 As to this prerequisite, Plaintiffs argue that the “proposed class should be certified 7 because the named plaintiffs are and have been subject to the same policies or practices 8 that have denied or delayed DAA treatment in accordance with the standard of care.” (ECF 9 No. 11 at 15.) Defendants counter by reiterating that the constitutionality of MD 219 as 10 applied depends on the specific facts of each individual Plaintiff’s case, and then move on 11 to argue that Plaintiffs fail to state a claim because the medical care the NDOC provides 12 to each Plaintiff in line with MD 219 is constitutionally adequate. (ECF No. 19 at 13-15.) 13 The Court again agrees with Plaintiffs. 14 NDOC’s merits argument misses the mark. “Rule 23 grants courts no license to 15 engage in free-ranging merits inquiries at the certification stage.” Parsons, 754 F.3d at 16 676 n.19 (quotation and quotation marks omitted). Thus, the Court will not delve too deeply 17 into NDOC’s argument that Plaintiffs fail to state a claim at this stage. (ECF No. 19 at 13- 18 15.) As to NDOC’s argument that Plaintiffs are not typical because the constitutionality of 19 MD 219 depends on the specific facts of each case, it “does not matter that the named 20 plaintiffs may have in the past suffered varying injuries or that they may currently have 21 different health care needs; Rule 23(a)(3) requires only that their claims be ‘typical’ of the 22 class, not that they be identically positioned to each other or to every class member.” 23 Parsons, 754 F.3d at 686. Thus, the Court rejects NDOC’s argument that the typicality 24 requirement is not satisfied here. 25 To the contrary, the Court agrees with Plaintiffs their claims are typical of the 26 proposed class. (ECF No. 11 at 14-15.) Like the proposed class, each Plaintiff has either 27 been denied or delayed DAA treatment under MD 219. (Id. at 7-11 (describing the claims 28 of each Plaintiff), 12 (presenting the proposed class definition), 14-15 (making this 1 argument).) All Plaintiffs allege MD 219 violates their Eighth Amendment rights. (Id. at 14- 2 15.) And there can be no real dispute that both the named Plaintiffs and all potential class 3 members are subject to MD 219 because they are in NDOC’s custody. (Id. at 15.) Further, 4 all named Plaintiffs and members of the proposed class allege that they were denied 5 appropriate treatment for their HCV in violation of their Eighth Amendment rights. (Id.) 6 Thus, “Plaintiffs’ claims are based on the same legal theories as the class’s claims, and 7 Plaintiffs are not in a markedly different factual position than other class members (at least 8 not in a sense that would be relevant for purposes of their claims).” Hoffer v. Jones, 323 9 F.R.D. 694, 699 (N.D. Fla. 2017) (finding the typicality requirement was satisfied in an 10 order certifying a class of HCV-positive incarcerated people). 11 The Court therefore finds the typicality requirement is satisfied. 12 4. Adequacy of Representation 13 The adequacy of representation is considered under Rule 23(a)(4) and Rule 23(g). 14 See Baumann v. Chase Inv. Servs. Corp., 747 F.3d 1117, 1122-23 (9th Cir. 2014) (noting 15 that “named plaintiff’s and class counsel’s ability to fairly and adequately represent 16 unnamed [plaintiffs]” are “critical requirements in federal class actions under Rules 17 23(a)(4) and (g)”). To determine legal adequacy, the Court must resolve two questions: 18 “‘(1) do the named plaintiffs and their counsel have any conflicts of interest with other class 19 members and (2) will the named plaintiffs and their counsel prosecute the action vigorously 20 on behalf of the class?’” In re Hyundai & Kia Fuel Econ. Litig., 926 F.3d 539, 566 (9th Cir. 21 2019) (citing Hanlon, 150 F.3d at 1020). 22 Plaintiffs argue this prerequisite is satisfied because Plaintiffs are similarly situated, 23 both amongst themselves and to other proposed class members, and because they have 24 no interests antagonistic to the class. (ECF No. 11 at 16.) Plaintiffs also argue proposed 25 class counsel are adequate representatives because they have extensive experience with 26 complex and civil rights litigation. (Id.) NDOC does not appear to dispute that proposed 27 class counsel are adequate, but argues that the named Plaintiffs have failed to show they 28 are members of the proposed class with legitimate claims because Plaintiffs “have failed 1 to submit medical records showing that their Hepatitis C condition is serious and that an 2 alleged delay in their medical treatment is causing harm.” (ECF No. 19 at 16.) The Court 3 again agrees with Plaintiffs. 4 NDOC’s argument appears to go to typicality, not to adequacy of representation. 5 Further, Plaintiffs’ failure to submit medical records does not necessarily show their 6 interests are adverse to the members of the proposed class—the inquiry relevant to this 7 prerequisite. If anything, it could only show Plaintiffs may not be able to prevail on the 8 merits of their claims. But they are not required to prevail on the merits at this stage. See 9 Parsons, 754 F.3d at 676 n.19. In addition, NDOC’s argument that the named Plaintiffs 10 are not themselves members of their proposed class is really an argument that their claims 11 are not typical of the proposed class. But the Court has already found Plaintiffs satisfy the 12 typicality requirement—and rejected NDOC’s arguments in doing so. Thus, NDOC’s 13 argument on the adequacy of representation prong is unpersuasive.8 14 As Plaintiffs argue, each of the named Plaintiffs has individually challenged the 15 same policy being challenged in this litigation. And based on their allegations, they are 16 part of the proposed class. Each named Plaintiff is in NDOC’s custody, alleges he or she 17 has been diagnosed with chronic HCV, and alleges that he or she is an appropriate 18 candidate for DAA treatment under the applicable medical standard of care, but has been 19 denied or delayed DAA treatment. (ECF No. 11 at 7-11, 16.) Thus, Plaintiffs’ interests do 20 not appear adverse to the potential class members. 21

22 8As legal support for its argument, NDOC quotes Sprague v. Gen. Motors Corp., 133 F.3d 388, 397 (6th Cir. 1998). (ECF No. 19 at 16.) But the quote from Sprague—which 23 of course does not bind this Court—does not apply here. In the quoted passage, the Sixth Circuit declines to disturb a district court’s decision not to certify a proposed class after 24 that district court had rejected the primary claim of the named plaintiffs of the proposed class. Sprague, 133 F.3d at 397. But this Court has not already rejected Plaintiffs’ primary 25 claim. Plaintiffs may be able to prevail on their Eighth Amendment claim. The Court has not yet ruled. Moreover, Sprague only addressed the commonality and typicality 26 requirements of Rule 23(a). See id. (“[W]e shall confine our analysis to the commonality and typicality requirements[.]”). Thus, NDOC’s reliance on Sprague is misplaced in the 27 portion of its brief regarding adequacy of representation. Sprague is also an ERISA case, and was merely affirming a district court’s decision not to certify a class under an abuse 28 of discretion review. See id.; see also id. at 392 (mentioning ERISA). In sum, Sprague 1 There also appears to be no dispute that Plaintiff’s proposed class counsel are 2 adequate representatives of the proposed class. (Id. at 16; see also ECF No. 19 at 16 3 (lacking any argument about counsel); see also ECF Nos. 11-3, 11-4 (listing the 4 qualifications of proposed class counsel).) 5 The Court thus finds Plaintiffs satisfy the adequacy of representation requirement. 6 C. Rule 23(b) Requirements 7 As noted, Plaintiffs seek certification under Rule 23(b)(2). (ECF No. 11 at 2, 12, 16- 8 18.) The primary role of Rule 23(b)(2) “has always been the certification of civil rights class 9 actions.” Parsons, 754 F.3d at 686. “[C]ourts have repeatedly invoked it to certify classes 10 of inmates seeking declaratory and injunctive relief for alleged widespread Eighth 11 Amendment violations in prison systems[.]” Id. 12 Plaintiffs rely on Parsons in arguing the proposed class satisfies Rule 23(b)(2), and 13 point to four out-of-circuit federal district court decisions where other courts certified 14 classes of incarcerated people contending that inadequate treatment of HCV violated their 15 Eighth Amendment rights under Rule 23(b)(2). (ECF No. 11 at 16-17.) Plaintiffs also argue 16 that the “proposed class satisfies Rule 23(b)(2) because the interpretation and relief from 17 the Defendants’ policies and practices would apply to all members of the class.” (Id. at 17- 18 18.) NDOC replies that Rule 23(b)(2) does not apply to this case because each Plaintiff’s 19 case requires “individualized inquiry to determine whether specific injunctive relief is 20 warranted at all[.]” (ECF No. 19 at 17.) The Court again agrees with Plaintiffs. 21 Through MD 219, NDOC has acted on grounds that apply generally to the whole 22 class. Plaintiffs primarily seek uniform injunctive relief from MD 219. (ECF No. 10 at 22- 23 23.) If MD 219 is unconstitutional, final injunctive relief applying to the entire class would 24 be appropriate. Thus, certification of the proposed class under Rule 23(b)(2) is 25 appropriate. See Parsons, 754 F.3d at 688-89. And contrary to NDOC’s argument, while 26 MD 219 “may not affect every member of the proposed class . . . in exactly the same way, 27 [it] constitute[s] shared grounds for all inmates in the proposed class[.]” Id. at 688. The 28 Court is also persuaded that certifying a Rule 23(b)(2) class is appropriate here in part 1 because several other district courts have done so under similar circumstances. (ECF No. 2 11 at 17 (citing those class certification decisions).) Finally, even though the named 3 Plaintiffs seek damages (ECF No. 10 at 23), “a plaintiff’s individual claim for damages 4 separate from the claims of the class [does not defeat] certification under Rule 23(b)(2).” 5 Postawko, 2017 WL 3185155, at *16 (emphasis in original). 6 Having found that the proposed class satisfies the requirements of Rule 23(a) and 7 Rule 23(b)(2), the Court will exercise its discretion and certify Plaintiffs’ proposed class. 8 Though NDOC generally argues that class certification is unnecessary because a single 9 plaintiff could facially challenge the constitutionality of MD 219 (ECF No. 19 at 17-20), 10 “even if class certification is unnecessary here, this Court chooses to exercise its discretion 11 by allowing the case to proceed as a class action.” Hoffer, 323 F.R.D. at 700. Like the 12 other district courts whose decisions Plaintiffs rely on their briefing (ECF No. 11 at 17), the 13 Court is persuaded a class action is the best way to litigate the constitutionality of MD 219 14 and determine whether Plaintiffs are entitled to injunctive relief specifying how NDOC 15 should treat HCV-positive people in its custody. The Court includes the definition of the 16 class, along with the class issues to be litigated, infra in Section V. 17 D. Class Counsel 18 The Court now briefly addresses the uncontested matter of appointing class 19 counsel. (ECF No. 19 (declining to attack the qualifications of proposed class counsel).) 20 “Unless a statute provides otherwise, a court that certifies a class must appoint class 21 counsel.” Fed. R. Civ. P. 23(g)(1). “Under Rule 23(g)(1), the Court considers four factors 22 when appointing counsel: (1) the work counsel has done in identifying or investigating 23 potential claims in the action; (2) counsel’s experience in handling class actions, other 24 complex litigation, and the types of claims asserted in the action; (3) counsel’s knowledge 25 of the applicable law; and (4) the resources that counsel will commit to representing the 26 class.” Greene v. Jacob Transportation Servs., LLC, Case No. 2:09-cv-00466-GMN-CWH, 27 2017 WL 4158605, at *6 (D. Nev. Sept. 19, 2017). 28 1 Lead proposed class counsel Adam Hosmer-Henner and Margaret A. McLetchie 2 were appointed through the Court’s pro bono program to represent individual Plaintiffs in 3 various cases that the Court consolidated for pretrial purposes back in October 2019. (ECF 4 No. 1.) Since that time, they and their teams have been working diligently to represent 5 Plaintiffs’ interests pro bono, including by preparing and filing the Motion. They are 6 sufficiently experienced in handling complex litigation, and are sufficiently familiar with the 7 applicable law. (ECF Nos. 11-3, 11-4 (detailing their qualifications).) They both represent 8 that they will commit sufficient resources to this litigation. (ECF Nos. 11-3 at 4-5, 11-4 at 9 3.) The Court will therefore appoint Adam Hosmer-Henner, Margaret A. McLetchie, and 10 their chosen litigation teams as class counsel. 11 V. CONCLUSION 12 The Court notes that the parties made several arguments and cited to several cases 13 not discussed above. The Court has reviewed these arguments and cases and determines 14 that they do not warrant discussion as they do not affect the outcome of the motion before 15 the Court. 16 It is therefore ordered that Plaintiff’s motion to certify class (ECF No. 11) is granted. 17 It is further ordered that the Court certifies a class of all persons: (a) who are or will 18 be in the legal custody of NDOC; (b) who have been incarcerated for at least 21 days and 19 have at least 12 weeks remaining on their sentence; (c) who have been diagnosed with 20 chronic HCV and are candidates for DAA treatment pursuant to the proper medical 21 standard of care; and (d) for whom DAA treatment has been or will be denied, withheld, 22 or delayed based on policies or considerations that deviate from the proper medical 23 standard of care. 24 It is further ordered that the Court certifies the following issues for class litigation: 25 (1) whether HCV is a serious medical need; (2) whether NDOC’s policy and practice of 26 not providing HCV treatment constitutes deliberate indifference to serious medical needs 27 in violation of the Eight Amendment; (3) whether NDOC has knowingly failed to provide 28 the necessary staging of HCV patients in accordance with the prevailing medical standard 1 of care, including the pretreatment testing to determine the severity of the disease; (4) 2 whether NDOC has knowingly employed policies and practices that unjustifiably delay or 3 deny treatment for HCV; (5) whether NDOC has permitted cost considerations to 4 improperly interfere with the treatment of HCV; (6) whether HCV is a disability under the 5 ADA (Americans with Disabilities Act); (7) whether medical services in prison are a 6 program or service under the ADA; and (8) whether Defendant has discriminated against 7 NDOC inmates with HCV on the basis of their disability by categorically denying them 8 medical treatment, while providing treatment for other diseases and conditions.9 9 It is further ordered that Plaintiffs are hereby named class representatives for this 10 class. 11 It is further ordered that Plaintiffs’ counsel are appointed as class counsel as 12 specified herein. 13 It is further ordered that the parties must address the issues of notice under Fed. 14 R. Civ. P. 23(c)(2) with Magistrate Judge Baldwin. 15 DATED THIS 18th day of February 2020. 16

18 MIRANDA M. DU CHIEF UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26

27 9These are Plaintiffs’ proposed class issues. (ECF No. 11 at 13-14.) NDOC did not propose another set of issues, or otherwise argue against these being the class issues. 28 (ECF No. 19.) The Court also agrees this is a reasonable set of class issues. The Court