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Ninth Circuit: Alleged Denial of Hepatitis C Treatment to Federal Prisoner in Washington Presents Valid Bivens Claim

by David M. Reutter


In a decision issued on December 11, 2023, the U.S. Court of Appeals for the Ninth Circuit said that the claim of a federal prisoner in Washington allegedly denied treatment for Hepatitis C did not require an extension of the government’s financial liability for violating a prisoner’s civil rights. First laid out in Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), that right has since been expanded by the Supreme Court of the U.S. (SCOTUS) to unreasonable search and seizure in violation of the Fourth Amendment, as well as Fifth and Eighth Amendment violations; however, the high court recently shut down any further expansion with its ruling in Egbert v. Boule, 142 S. Ct. 1793 (2022), as PLN reported. [See: PLN, Apr. 2023, p.22.] Since then, as the Ninth Circuit noted, most claims seeking to extend Bivens are “dead on arrival.”

Federal prisoner Robert A. Stanard was denied treatment for his Hepatitis-C while confined to await trial at the Federal Detention Center for Seattle-Tacoma (Sea-Tac) in 2018. He had contracted the disease at another federal Bureau of Prisons (BOP) lockup during an earlier incarceration in 2009. When he arrived at Sea-Tac in 2018 after being found in possession of a gun, he initially told Dr. Maria Dy that he declined HCV treatment because, in his own words, he “just wanted to die.” After his conviction, though, he changed his tune and requested treatment.

But Dy told him he was not qualified for treatment at that time, since BOP was letting more seriously ill prisoners get the expensive medcation first. After exhausting his administrative remedies, Stanard filed suit pro se in federal court for the Western District of Washington, which granted BOP’s motion to dismiss without addressing the validity of Stanard’s underlying constitutional claims. He appealed.

The Ninth Circuit began with an analysis of Bivens litigation and extensions of the ruling. It then declared that Stanard’s case did not represent a further extension. “When Stanard was denied treatment, Defendants did not offer him some alternate timeline by which he would receive necessary care,” the Court said; instead he was repeatedly told “that he would not receive any HCV treatment at SeaTac at all.” Only after Stanard transferred to another lockup did he begin receiving treatment. This, the Court said, demonstrated deliberate indifference to a serious medical need in violation of his Eighth Amendment rights, which was a Bivens extension already recognized for a prisoner denied asthma treatment in Carlson v. Green, 446 U.S. 14 (1980).

“Delaying treatment is an established example of deliberate indifference to a serious medical need, in violation of the Eighth Amendment,” the Court said. But “even assuming that Stanard received less deficient care than the inmate in Carlson, that difference in degree is not a meaningful difference giving rise to a new context.”

The Court also affirmed dismissal of Stanard’s Fifth Amendment claim, holding that it arose in a new context and thus counseled hesitation against extending Bivens. Though Defendants may have violated his Fifth Amendment rights by disparately treating pre-sentencing and post-sentencing detainees for HCV with no rational basis, the Court said there is little doubt that Stanard’s claim presents a “new context.” Thus the district court’s order was reversed in part and affirmed in part.

Stanard was represented before the Court by University of Virginia Law School Assistant Professor Xiao Wang; Northwestern University Pritzker School of Law Certified Law Students Matthew Dickel, Taylor Hoffman, Elisabeth Logan and Briana Singson; attorneys Samuel Weiss and Oren Nimni of Rights Behind Bars in Washington, D.C.; and the Appellate Advocacy Center’s Bluhm Legal Clinic in Chicago. See: Stanard v. Dy, 88 F.4th 811 (9th Cir. 2023). The case has now returned to the district court, where Stanard is once again proceeding pro se. PLN will update developments as they are available. See: Stanard v. Dy, USDC (W.D. Wash.), Case No. 2:19-cv-01400.


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Related legal case

Stanard v. Dy