Vasquez v. Davis et al

Filing 126

ORDER Denying Plaintiff's 114 Motion for Preliminary Injunction and Sua Sponte Ordering Alternative Relief Under the All Writs Act as indicated in the Attached Order. By Judge William J. Martinez on 02/29/2016. (athom, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 14-cv-1433-WJM-CBS
JIMMY JOSEPH VASQUEZ,
Plaintiff,
v.
JEANNE DAVIS, in her individual capacity,
KATHLEEN MARTORANO, in her individual capacity,
KEITH MEEK, in his individual capacity,
BRIAN WEBSTER, in his individual capacity,
GATBEL CHAMJOCK, in his individual capacity,
KATHLEEN MELLOH, in her individual capacity,
MAURICE FAUVEL, in his individual and official capacities,
JOHN and/or JANE DOE(s), Clinical Services Administrators and Supervisors, in their
official and individual capacities, and
RICK RAEMISCH, in his official capacity,
Defendants.

ORDER DENYING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION AND
SUA SPONTE ORDERING ALTERNATIVE RELIEF UNDER THE ALL WRITS ACT

Plaintiff Jimmy Joseph Vasquez (“Vasquez”) is an inmate in the custody of the
Colorado Department of Corrections (“CDOC”) and housed at the Sterling Correctional
Facility (“Sterling”). (ECF No. 55 ¶ 1.) He is infected with the hepatitis C virus (“HCV”).
(Id. ¶ 42.) Vasquez brings this lawsuit under the Eighth Amendment to the U.S.
Constitution, alleging that various CDOC employees (collectively, “Defendants”) were
deliberately indifferent over many years to the effects that HCV was having on him.
Due to that indifference, he claims he developed end-stage liver disease that will likely
kill him absent a liver transplant. (Id. at 1–2.)

Currently before the Court is Vasquez’s Motion for Temporary Restraining Order
(“TRO”) (the “Motion”). (ECF No. 114.) The Motion notes the existence of a recently
approved drug, Harvoni, that tends to be quite successful in purging HCV, thus
preventing further liver damage (although it does not reverse the effects of liver damage
already inflicted). (Id. at 2–3.) The Motion therefore requests a preliminary injunction
ordering Defendants to:
1.

“immediately start Mr. Vasquez on a course of Harvoni,”

2.

“secure a medically appropriate MELD score evaluation [discussed in
detail below] to determine whether Mr. Vasquez is eligible for a liver
transplant and his priority for such a transplant,” and

3.

“[i]n the event that Mr. Vasquez is indeed eligible for a transplant, . . .
ensure that he receives one in accordance with the community standards
of care.”

(ECF No. 114 at 4.)
Because this case has been pending since 2014 and all parties have
participated, and because Vasquez’s requests seek to change the status quo, this
Court denied the Motion to the extent it sought a TRO, but construed the Motion as one
for a preliminary injunction and ordered briefing accordingly. (ECF No. 116.) The Court
has received Defendants’ Response (ECF No. 120) and Vasquez’s Reply (ECF No.
122). The Court held an evidentiary hearing on February 26, 2016, and took the Motion
under advisement at that time.
For the reasons explained below, Vasquez’s request to be prescribed Harvoni is
moot because CDOC has approved Vasquez for an acceptable alternative drug
2

regimen. Vasquez’s requests regarding MELD score evaluations and eligibility for a
liver transplant are not moot, but Vasquez is not entitled to preliminary injunctive relief
because he has failed to demonstrate a likelihood of success on the subjective prong of
the Eighth Amendment deliberate indifference standard. Nonetheless, given that
Vasquez’s life is potentially at stake, the Court will exercise its extraordinary authority
under the All Writs Act, 28 U.S.C. § 1651, to order regular MELD score calculations, as
well as prompt disclosure of those scores (along with the accompanying data) to
Vasquez’s counsel. This relief is sufficient to ensure proper monitoring of Vasquez’s
liver condition, and to keep his counsel fully informed, so that counsel may seek further
relief from this Court, if needed, under appropriate circumstances.
I. BACKGROUND
A.

Vasquez’s Allegations
The Court has summarized Vasquez’s allegations in its prior order denying

Defendants’ motion to dismiss. (ECF No. 99.) See also 2015 WL 6662921. For
present purposes, it suffices to note that Vasquez has been infected with HCV since at
least 2004, when he entered CDOC custody. (ECF No. 99 at 3.) CDOC medical staff
have been aware of his condition but, until very recently, have never recommended that
Vasquez receive antiviral therapy, or any other form of therapy, intended to eradicate
HCV from his system. (Id. at 3–8.) Although Defendants dispute that they have
mistreated Vasquez, all parties currently agree that Vasquez now suffers from
decompensated cirrhosis of the liver, a condition which is potentially life-threatening.

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B.

Potential Antiviral Treatment Protocols
It is unclear from the current record whether, prior to 2013, any existing HCV

treatment regimen could have successfully eliminated HCV from Vasquez’s system.
Fortunately for Vasquez, the last two to three years have seen new drugs enter the
market that can fight HCV much more effectively than previously available treatment
options. One such drug is Harvoni, which Vasquez specifically requests in his Motion.
However, since filing the Motion, it has become clear that Harvoni has not been
approved to treat HCV genotype 3, which is the form of HCV in Vasquez’s system.
However, another recently approved drug, Sovaldi, is effective against HCV genotype 3
when combined with a pre-existing drug, Ribavarin.
C.

Vasquez’s Approval for Sovaldi/Ribavarin Treatment
Defendants’ sole witness at the preliminary injunction hearing was Dr. Susan

Tiona, CDOC’s Chief Medical Officer, whom the Court admitted as an expert in family
medicine and infectious diseases, including HCV treatment. Dr. Tiona is not a
defendant in this case.
Dr. Tiona testified that CDOC’s Infectious Disease Committee, on which she
sits, preliminarily approved Vasquez for Sovaldi/Ribavarin treatment on Friday,
February 19, 2016 (the same day Vasquez filed his Motion), and formally approved
such treatment the following Monday, February 22, 2016. 1 Dr. Tiona expects that the
treatment will begin on or about March 11, 2016. Once begun, it will run for 24 weeks.

1

Dr. Tiona testified that all of this took place before she learned of Vasquez’s lawsuit,
much less his Motion. Given the disposition below, the Court need not make any finding in that
regard.

4

Dr. Tiona believes that Vasquez has a 75% chance of becoming HCV-free through a
complete course of Sovaldi/Ribavarin treatment. The major risk Vasquez faces is from
decreasing hemoglobin levels, a side effect of Ribavarin. If those levels get
dangerously low, both Sovaldi and Ribavarin must be stopped because Sovaldi is not
approved to be administered without Ribavarin. In that event, Dr. Tiona has maintained
contact with a pharmaceutical company that expects to have another promising antiviral
drug approved by the end of this year, and Vasquez would be considered for that
treatment.
D.

MELD Scores—Dr. Bacon’s Testimony
Vasquez’s expert at the hearing was Dr. Bruce Bacon, whom the Court admitted

as an expert on liver diseases and HCV treatment, including transplant procedures.
Because Dr. Bacon agreed that Sovaldi/Ribavarin was an appropriate treatment for
Vasquez, most of Dr. Bacon’s testimony focused on the likelihood that Vasquez may
need a liver transplant.
Dr. Bacon testified that an individual’s priority for receiving a liver transplant is
governed by a standard accepted nationwide known as the Model for End-stage Liver
Disease, or “MELD.” A MELD score is calculated by entering the results of certain
laboratory tests into a formula, which then yields a number between 6 and 40. In very
simple terms, an individual with a score of 40 will likely die very soon without a liver
transplant, whereas an individual with a score of 6 may never need a transplant. Dr.
Bacon said that a MELD score of 15 is the generally accepted point at which an
individual should be worked up for transplant eligibility. A work-up for transplant
eligibility is done by a transplant center and involves numerous tests of the various body
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systems, and also considers socioeconomic factors.
When asked to assume that Vasquez had a MELD score of 11, Dr. Bacon stated
that he might still have Vasquez worked up for transplant eligibility based on other
factors (e.g., episodes of internal bleeding as well his decompensated liver cirrhosis).
In other words, a MELD score of 15 is not a magic number, but a generally accepted
guideline. Given Vasquez’s current condition, Dr. Bacon recommends that Vasquez’s
MELD score be calculated every three months.
When asked regarding Vasquez’s likelihood of suffering total liver failure during
the 24-week Sovaldi/Ribavarin regimen that Vasquez should soon begin, Dr. Bacon
opined that it was “unlikely,” and that Vasquez is relatively “stable.” When asked
regarding Vasquez’s likelihood of suffering total liver failure in the year or two after a
successful Sovaldi/Ribavarin regimen, Dr. Bacon noted that Vasquez’s MELD score
would likely decrease in that time period, meaning that the chance of liver failure would
then be even lower.
E.

MELD Scores—Dr. Tiona’s Testimony
Dr. Tiona generally agreed with Dr. Bacon.2 The MELD score of 11 posited to

Dr. Bacon came from Dr. Tiona’s own calculation, which she did the day before the
preliminary injunction hearing based on bloodwork data gathered in October 2015.
Specifically, Dr. Tiona calculated a MELD score of 11.3. According to Dr. Tiona, that

2

Their major point of disagreement, which is not presently relevant, related to the
possibility of providing a liver transplant to someone still infected with HCV. Dr. Bacon testified
that the continuing presence of HCV is not a barrier to a transplant. Dr. Tiona, while not
disagreeing with that specific point, nonetheless believes that HCV should be treated before
any transplant because untreated HCV would begin to erode the new liver just as it had done
the old.

6

score suggests that Vasquez has about a 6% chance “of having a non-survival event of
some kind in the next three months related to liver disease.”
Dr. Tiona says that CDOC has not been calculating Vasquez’s MELD score thus
far, but the MELD score is based on blood tests that CDOC reg ularly administers to
Vasquez anyway. Thus, CDOC could calculate his MELD scores historically, and could
calculate his MELD scores going forward with little more effort than it already plans to
expend.
Dr. Tiona agreed with Dr. Bacon that Vasquez’s MELD score might go down
after Sovaldi/Ribavarin treatment. She therefore believed the best course of action
would be to “get [Vasquez] treated, get his virus taken care of and then check his MELD
score every three months to monitor that, and if it does progress upward and starts to
creep toward the 15 [mark], then we could look at a referral [to a transplant center for a
transplant eligibility work-up].”
F.

Potential Withdrawal of Treatment as a Disciplinary Measure
CDOC requires inmates who wish to receive HCV antiviral therapy to complete

drug and alcohol resistance classes. The reasoning behind this requirement is that
HCV infections most commonly come through high risk behaviors connected to
substance abuse, and it is a waste of resources to treat inmates for HCV who may then
go forward and reinfect themselves through, e.g., sharing needles.
Before beginning the drug and alcohol resistance classes, inmates must sign a
“Contract for Alcohol and Drug Treatment.” (Plaintiff’s Exhibit 5 at Bates page 814.)
That document states that
[t]reatment for hepatitis C will not be approved if you have
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any evidence of high risk behavior since the time of
enrollment into alcohol and drug treatment. This includes
any [Code of Penal Discipline] conviction for tattooing,
contraband related to drugs or alcohol, misuse or abuse of
prescription medications, or sexual activity with another
offender or staff. . . . If there is evidence of high risk
behavior, you are not eligible for treatment until you have
repeated alcohol and drug classes . . . .
(Id.) Vasquez signed this contract. (Id.)
After successfully completing these classes, and inmate is required to sign a
“Patient Contract Concerning Hepatitis C Treatment.” (Defendants’ Exhibit G.) Under
that contract the inmate must agree to the following condition:
I will abstain from all illegal substances and high risk
behaviors, including but not limited to IV, oral or inhaled drug
use, during the evaluation or course of this treatment.
Treatment will be discontinued for tattooing, possession of
drug paraphernalia or any other indication of drug or alcohol
use since starting the Alcohol and Drug Education program.
If I fail to follow this requirement, I will not be considered a
candidate for this therapy and/or therapy will be
discontinued.
(Id.) Vasquez signed this contract as well. (Id.)
Vasquez believes that prison discipline is often arbitrary, and he worries that the
slightest slip-up might prompt officials at Sterling to discontinue the Sovaldi/Ribavarin
treatment. Michael Latiolais, one of Vasquez’s fellow inmates, testified at the
preliminary injunction hearing that before he (Latiolais) received Harvoni, prison staff
threatened to end the treatment early if he received “any kind of write-up” (emphasis
added). However, neither Latiolais nor Vasquez have ever had medical care withdrawn
as punishment, nor are they aware of an inmate who had medical care withdrawn as
punishment. Moreover, Vasquez testified—and Dr. Tiona confirmed—that he has
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never had a write-up for any reason during his twelve years in CDOC custody.
II. PRELIMINARY INJUNCTION STANDARD
A preliminary injunction is an extraordinary remedy; accordingly, the right to relief
must be clear and unequivocal. See, e.g., Flood v. ClearOne Commc’ns, Inc., 618 F.3d
1110, 1117 (10th Cir. 2010). To meet this burden, a party seeking a preliminary
injunction must show: (1) a likelihood of success on the merits, (2) a threat of
irreparable harm, which (3) outweighs any harm to the non-moving party, and that
(4) the injunction would not adversely affect the public interest. See, e.g., Awad v.
Ziriax, 670 F.3d 1111, 1125 (10th Cir. 2012).
Although this inquiry is, on its face, relatively straightforward, there are a variety
of exceptions. If the injunction will (1) alter the status quo, (2) mandate action by the
defendant, or (3) afford the movant all the relief that it could recover at the conclusion of
a full trial on the merits, the movant must meet a heightened burden. See O Centro
Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 389 F.3d 973, 975 (10th Cir.2004)
(en banc). Specifically, the proposed injunction “must be more closely scrutinized to
assure that the exigencies of the case support the granting of a remedy that is
extraordinary even in the normal course” and “a party seeking such an injunction must
make a strong showing both with regard to the likelihood of success on the merits and
with regard to the balance of harms.” Id.
III. ANALYSIS
A.

Partial Mootness & Lack of Ripeness
In the briefing leading up to the preliminary injunction hearing, Defendants

9

largely took the position that injunctive relief was moot because CDOC would soon
begin Vasquez on the Sovaldi/Ribavarin regimen. (See ECF No. 120.) Given
Vasquez’s concession that Sovaldi/Ribavarin is more appropriate than Harvoni, the
Court agrees that this portion of Vasquez’s request for relief is moot.
The Court emphasizes, however, that this mootness finding is heavily informed
by Dr. Tiona’s hearing testimony about CDOC’s intentions in the next few weeks. The
Court found Dr. Tiona to be generally sincere and credible. Based on that, the Court
takes Dr. Tiona at her word that Sovaldi/Ribavarin treatment will actually begin on or
about March 11, 2016. Moreover, the Court takes Dr. Tiona at her word that the
Sovaldi/Ribavarin treatment will not be canceled or interrupted unless medically
necessary or unless Vasquez commits a confirmed violation of his treatment contract.
Should the Court’s trust turn out to be misplaced, Vasquez may revive his claim for
antiviral therapy.
Counsel for Defendants conceded at the preliminary injunction hearing that
Vasquez’s remaining requests (regarding MELD scores and a potential liver transplant)
are not moot. Nonetheless, the liver transplant portion of Vasquez’s Motion—“[i]n the
event that Mr. Vasquez is indeed eligible for a transplant, . . . ensure that he receives
one in accordance with the community standards of care” (ECF No. 114 at 4)—is not
ripe. Vasquez’s transplant eligibility turns on at least three considerations: (1) his MELD
scores; (2) professional medical judgment, based on his MELD scores combined with
his other symptoms, to determine whether a transplant work-up is appropriate; and
(3) the results of the transplant work-up, if one is ordered. Obviously, the second and
third considerations rely heavily on the first consideration.
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Even outside the prison context, this would make injunctive relief difficult to
fashion, and it is particularly difficult in the prison context: “In any civil action with
respect to prison conditions . . . [p]reliminary injunctive relief must be narrowly drawn,
extend no further than necessary to correct the harm the court finds requires
preliminary relief, and be the least intrusive means necessary to correct that harm.”
18 U.S.C. § 3626(a)(2). Here, the number of moving parts would mostly prevent the
Court from entering a sufficiently narrow injunction. The Court is unqualified to specify,
e.g., the hemoglobin level below which withdrawal of antiviral treatment is appropriate,
the appropriate course of alternative treatment if antiviral therapy fails, the exact MELD
score at which Vasquez must be worked up for a transplant, and so forth.
Thus, the Court finds that the only request for injunctive relief that is both ripe
and sufficiently narrow is Vasquez’s request for MELD score evaluations.3 The
remaining analysis evaluates only that request.
B.

“Disfavored” Injunction
Vasquez’s MELD score request, if granted, would constitute a “disfavored”

injunction because, at a minimum, this Court would be requiring CDOC to take certain
actions it is not currently taking. See O Centro, 389 F.3d at 975. Thus, Vasquez “must

3

In addition to the ripeness problem, there are also serious jurisdictional questions
inherent in any request that this Court order a transplant to take place. No transplant center is
a party here—and even if the case were otherwise, it is highly doubtful that the Court could
order a transplant center even to place Vasquez on a list to receive a transplant, much less
actually give him one. See, e.g., Miller v. Bannister, 2011 WL 666097, at *1 (D. Nev. Feb. 14,
2011) (“The Court notes that it likely would have no authority to require a third-party
organization to put Plaintiff on its transplant list even if his evaluation for eligibility were
favorable, and that it would almost certainly have no authority to require such an organization to
dedicate an organ to him.”).

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make a strong showing both with regard to the likelihood of success on the merits and
with regard to the balance of harms.” Id. The Court finds that the likelihood-of-success
element is dispositive here.
C.

Likelihood of Success on the Merits
Likelihood of success turns on the elements of Vasquez’s underlying claim,

namely, a claim for cruel and unusual punishment. The Eighth Amendment’s
prohibition against cruel and unusual punishment encompasses deliberate indifference
by prison officials to a prisoner’s serious medical needs. Howard v. Waide, 534 F.3d
1227, 1235 (10th Cir. 2008). “Deliberate indifference” involves “a two-pronged inquiry,
comprised of an objective component and a subjective component.” Self v. Crum, 439
F.3d 1227, 1230 (10th Cir. 2006). The objective component requires a “sufficiently
serious” medical need, meaning “one that has been diagnosed by a physician as
mandating treatment or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention.” Sealock v. Colorado, 218 F.3d 1205,
1209 (10th Cir. 2000) (internal quotation marks omitted). The subjective prong
examines the state of mind of the defendant, asking whether “the official knows of and
disregards an excessive risk to inmate health or safety; the official must both be aware
of facts from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837
(1994). This is a high standard. “[N]egligent failure to provide adequate medical care,
even one constituting medical malpractice, does not give rise to a constitutional
violation.” Perkins v. Kan. Dep’t of Corrs., 165 F.3d 803, 811 (10th Cir. 1999).

12

1.

Objective Component

There appears to be no dispute here that Vasq uez suffers from a sufficiently
serious medical condition diagnosed by a physician. Thus, Vasquez’s likelihood of
proving the objective component is not at issue.
2.

Subjective Component

Subjective indifference requires that the prison official “know[] of and disregard[]
an excessive risk to inmate health or safety.” Farmer, 511 U.S. at 837. Moreover,
when considering injunctive relief, this inquiry turns on “the prison authorities’ current
attitudes and conduct.” Id. at 845 (citation and internal quotation marks omitted). In
light of this standard, Vasquez faces two significant problems.
First, Vasquez has presented no evidence of any current Defendant’s state of
mind. Vasquez’s Motion instead attributes indifference to CDOC writ large. (See ECF
No. 114 at 9.) But CDOC, as an institution, cannot have a subjective state of mind.
See, e.g., Martinez v. Beggs, 563 F.3d 1082, 1089 (10th Cir. 2009) (“the su bjective
component requires the prison official to disregard the risk of harm claimed by the
prisoner” (emphasis added)). Thus, the Court noted at the preliminary injunction
hearing that “an institution cannot have sentient thoughts,” and asked, “to which
defendants are you attributing this . . . indifference in this case?” Vasquez’s counsel
responded, “our position is that . . . the collective knowledge of the employees of the
Colorado Department of Corrections satisfies the subjective prong.” But Vasquez has
pointed the Court to no authority in which collective knowledge can allow some
particular official to “both be aware of facts from which the inference could be drawn

13

that a substantial risk of serious harm exists, and . . . also draw the inference.” Farmer,
511 U.S. at 837.
Second, Vasquez has no evidence that anyone within CDOC is currently acting
with indifference toward his medical condition. He has recently been approved for the
admittedly appropriate Sovaldi/Ribavarin treatment. He has received, and continues to
receive, regular blood tests from which a MELD score can be calculated—although the
actual calculation of a MELD score has apparently only happened once, i.e., the day
before the preliminary injunction hearing. But in that vein, Dr. Tiona volunteered at the
preliminary injunction hearing, “If somebody wants me to do a MELD score every three
months based on the labs [Vasquez is] going to have drawn, that can certainly be
done.” Thus, the relevant CDOC decisionmaker is aware of Vasquez’s condition, is
taking appropriate steps to address it, and is willing to take additional steps as well. To
the extent Dr. Tiona’s current attitude can be attributed to som e Defendant in this case
(a question which the Court does not reach), there is no evidence of continuing
indifference, much less “a strong showing” of such indifference. O Centro, 389 F.3d at
975. Vasquez therefore cannot show the likelihood of success necessary for
preliminary injunctive relief, and the Court need not analyze the remaining preliminary
injunction requirements.
IV. ALTERNATIVE RELIEF UNDER THE ALL WRITS ACT
Given Vasquez’s condition and the fact that his condition is potentially lifethreatening, the Court sua sponte considers alternative relief under 28 U.S.C. § 1651,
commonly known as the All Writs Act. In relevant part, the Act states: “The Supreme

14

Court and all courts established by Act of Congress may issue all writs necessary or
appropriate in aid of their respective jurisdictions and agreeable to the usages and
principles of law.” 28 U.S.C. § 1651(a). This authority “is to be used sparingly and only
in the most critical and exigent circumstances.” Wis. Right to Life, Inc. v. Fed. Election
Comm’n, 542 U.S. 1305, 1306 (2004) (Rehnquist, C.J., in chambers) (internal quotation
marks omitted). In cases such as this, where the plaintiff fails to establish the traditional
preliminary injunction elements, the plaintiff “must make a showing of irreparable injury
sufficient in kind and degree to override these factors cutting against the general
availability of preliminary injunctions.” Sampson v. Murray, 415 U.S. 61, 84 (1974).
An instructive example of the foregoing is FTC v. Dean Foods Co., 384 U.S. 597
(1966). There, the Supreme Court held that an injunction under the All W rits Act
preserving the status quo was appropriate because, without it, certain companies would
complete their merger, one of those companies would then cease to exist, and the
lower courts would likely be deprived of any meaningful opportunity to review the
merger. Id. at 604–05.
If Vasquez were to suffer liver failure and death, the Court would not be deprived
of jurisdiction to hear claims brought by his estate, but it would certainly be deprived of
jurisdiction to order the injunctive relief that forms a major part of his case. In other
words, the Court’s jurisdiction turns, in part at least, on Vasquez remaining alive.
In this case, Vasquez’s death from lack of a liver transplant is not imminent. His
own expert, Dr. Bacon, believes that any major deterioration in Vasquez’s condition is
unlikely during the 24-week antiviral regimen that will soon begin, and even less likely in
the ensuing years if the treatment successfully eradicates HCV from Vasquez’s body.
15

Thus, Vasquez’s situation is not particularly dire at the moment. Even so, without
regular monitoring of his likely need for a liver transplant, his situation could become
dire and perhaps irreversible before CDOC has time to react appropriately. Thus, in
these unique circumstances, and particularly because an individual’s life is at stake, the
Court finds that an order under the All W rits Act requiring regular MELD score
calculations is appropriate to preserve the Court’s jurisdiction.
Dr. Bacon testified that calculating Vasquez’s MELD score every three months
would be appropriate in light of Vasquez’s current condition. Dr. Tiona admitted that
this course of action would pose no significant burden. The Court will therefore enter
an order requiring CDOC to calculate a new MELD score at least every three months,
and then to send the data underlying each score, as well as the score itself, to
Vasquez’s counsel.4
V. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1.

Vasquez’s Motion for Temporary Restraining Order, construed by the Court as a
Motion for a Preliminary Injunction (ECF No. 114) is DENIED; and

2.

Defendant Raemisch, in his official capacity as Executive Director of the
Colorado Department of Corrections is ORDERED as follows:

4

Nothing in this order prevents CDOC from testing Vasquez more frequently than every
three months. Although the Court does not have sufficient information at this time to establish
MELD score thresholds at which more-frequent MELD testing is appropriate, the Court
nonetheless expects Dr. Tiona and her subordinates to apply sound medical judgment in that
regard.

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a.

Beginning no later than March 31, 2016, and continuing at least every
three months thereafter until final judgment is entered in this matter or
until further order of the Court (whichever comes first), Defendant
Raemisch shall ensure that appropriate subordinates perf orm the
laboratory tests necessary to calculate Plaintiff Vasquez’s MELD score,
and that appropriate subordinates in fact calculate Plaintiff Vasquez’s
MELD score;

b.

No later than five business days after each MELD score calculation,
Defendant Raemisch shall cause his counsel to transmit the record of the
relevant laboratory tests, and the record of the MELD score itself, to
Vasquez’s counsel; and

c.

If unforeseen circumstances make this order somehow impractical or
unworkable, Defendant Raemisch may move to modify this order, but only
after good faith consultation with Vasquez’s counsel (who shall likewise
confer in good faith) regarding the potential for a stipulated modification.

Dated this 29th day of February, 2016.
BY THE COURT:

William J. Martínez
United States District Judge

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