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Dispensing HIV Meds at Window Is Not Deliberate Indiff.: 1st Cir.

By William Peacock, Esq. on September 30, 2014 | Last updated on March 21, 2019

For the longest time, the Massachusetts Department of Corrections dispensed HIV-positive prisoners' medication through the "Keep on Person" (KOP) program, where prisoners were given a bimonthly or monthly supply of the drugs to keep in their cell. In 2009, as a cost-saving measure, the DOC switched to dispensing HIV meds at a dispensary window.

Why? Because HIV drugs are expensive, making up more than 40 percent of the DOC's pharmacy budget. The KOP program would result in wasted medication, as prisoners would be transferred, skip taking meds, lose meds, die, or be released. The switch not only reduced costs, but also seemed to have a positive effect on the HIV-positive prisoner population as a whole; 95 percent of these prisoners now having an undetectable viral load, compared to 83 percent before the switch.

Despite that bit of positive news, five inmates sought an injunction to return the meds to the KOP program, arguing cruel and unusual punishment and deliberate indifference. As may have already guessed, their claims failed.

Deliberate Indifference Standard

The prisoners brought an Eighth Amendment "cruel and unusual punishment" claim. The First Circuit outlines the hefty test they faced: They must show an "objectively intolerable" risk of harm resulting from the department's decision to make HIV medications available only through the daily med line.

If they're arguing inadequate medical treatment, they have to show that their treatment falls below "prudent professional standards."

And, of course, there's the "indifference" part: that state officials "kn[ew] of and disregard[ed]" the risk of harm.

No Evidence of Negative Impact

The problem is, there is no evidence whatsoever that the five individual plaintiffs were harmed, with one self-inflicted exception.

All of the plaintiffs' evidence at hand related to the system as a whole -- mainly two doctors' objections to the new policy. A few of them also reported isolated incidents of accidental disclosure of their HIV-positive status while in line to get meds, but as the First Circuit reminds us, prisoners have lesser privacy rights than ordinary folk.

The sole exception to the "nobody was harmed" was inmate Richard Nunes. He claims that his chronic diarrhea and severe back pain make standing in line intolerable. However, the prison has made multiple attempts to accommodate him -- from a rolling walker to providing a bench and a bathroom while in line, without losing his spot. They've even offered to transfer him to the medical ward.

As Nunes has passed on all of the accommodations and is able to walk to the cafeteria and to exercise, any harm done to him seems to be self-inflicted and a matter of stubbornness. The First Circuit was very unimpressed: "The statutes entitle Nunes to reasonable accommodations, not to optimal ones finely tuned to his preferences."

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