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Montana Supreme Court Denies Hepatitis-C Treatment

A divided Montana Supreme Court denied a state prisoner's habeas corpus petition seeking treatment for his Hepatitis-C (Hep-C) disease because the factual basis presented was inadequate.

Keith Brown, incarcerated at the Crossroads Correctional Center in Shelby, Montana, alleged he suffers from diagnosed Hep-C disease and "is dying a slow and painful death." The Montana Dept. of Corrections (MDOC) denied his administrative grievance for treatment on the grounds that no prisoner is receiving Hep-C treatment because it is "not yet available." Notably, Brown's offer to pay for his own treatment was also rejected.

His court petition alleged that such failure to treat Hep-C violated the Eighth Amendment's Cruel and Unusual Punishment Clause, averring that not permitting any treatment was an act of "deliberate indifference." Brown backed his petition with media articles including an Associated Press release reporting that 900 of Montana's 2,750 state prisoners have Hep-C. The court also cited to a June, 2002 Prison Legal News article which reported on two unpublished federal court decisions ordering treatment for Hep-C disease. (See: PLN, June 2002, p.16 "Two Federal Courts Grant Injunction For HCV Treatment.")

The Montana court rejected habeas corpus as a forum for Brown's complaint because in Montana habeas lies only for a sentence modification - not a challenge to unconstitutional conditions of confinement. Although the court stated that it might yet grant a writ for "extraordinary relief" (under Montana Rules of Appellate Procedure, Rule 17), it could not do so here on "the state of the record."

That "state," the court noted, was that Brown's allegations of his diagnosis, the treatment regimen he demanded, his susceptibility to success from such treatment and such treatment's availability, were only alleged - but not adequately supported - in the record.

The majority admitted that Montana law mandates that prisoners be treated for infectious diseases, and avowed "this Court will not countenance the failure to provide appropriate treatment to an infected inmate on the basis that the Department has insufficient resources to do so." Yet, it said - inconsistently - it would be sufficient if MDOC only treated Brown's symptoms, e.g., pain, and not his underlying disease.

An acrid dissent from Justice Trieweiler would have granted Brown's petition as one for mandamus. He disparaged the majority's symptomatic treatment suggestion. "In other words, they will agree to make him more comfortable while they let him die. The Department's offer to treat Brown's symptoms is like offering a person with a treatable brain tumor an aspirin to reduce his pain but otherwise leaving his condition untreated."

Nor, the Justice continued, should Brown's condition be litigated while he slowly dies. "It's to condemn him to death for the non-violent offense for which he has been imprisoned. Worse than that, the Court's order puts at risk one-third of the prison population whose only hope now is that they can serve their sentence before they die from a disease which, if untreated, gradually destroys their livers. ... Hepatitis C and the state's refusal to treat it is turning Montana's prisons into potential death camps. I thought this country fought a war to eliminate death camps and then severely criticized the citizens in the society which created them for not doing more to end their operation."

Justices Nelson's and Leapheart's dissent added: "We enable the violation of Brown's fundamental constitutional rights; and we demean the notion that we live in a `civilized' society."

Finally, Justice Cotton parted company with the majority's reliance on the state's "disingenuous" assertion that treatment for Hep-C `is not yet available," saying "this simply isn't so." He referred them to the Federal Bureau of Prisons (BOP) exhaustive guidelines for treatment of Hep-C - available at and US Dept. Of Justice BOP Technical Reference No. 6100.02. See: Brown v. MacDonald, 66 P.3d 323 (Mont. 2003)(Table Opinion).

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Related legal case

Brown v. McDonald

Brown v. MacDonald



315 Mont. 537; 66 P.3d 323; 2003 Mont.

February 25, 2003, Decided


PRIOR HISTORY: Original Proceeding. Extraordinary Relief.