Vasquez v. Davis (226 F. Supp. 3d 1189, 2016)

ORDER ON PENDING SUMMARY JUDGMENT MOTIONS

William J. Martinez, United States District Judge

Plaintiff Jimmy Joseph Vasquez is an inmate in the custody of the Colorado Department of Corrections (“CDOC”) and housed at the Sterling Correctional Facility (“Sterling”). (ECF No. 113 ¶ 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 or former 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.) Subsequent developments have cast doubt on whether Vasquez in fact requires, or will ever require, a liver transplant. (See Part II.B.11, below.) But Vasquez nonetheless appears to face lifelong complications from the effects of HCV on his liver.

Currently before the Court are the parties’ cross-motions for summary judgment. Specifically:

• Defendants Davis, Fauvel, Martorano, Melloh, Raemisch, and Webster (collectively, “State Defendants”) move for summary judgment on all of Vasquez’s claims (ECF No. 152);

• Defendant Chamjock separately moves for summary judgment on all of Vasquez’s claims (ECF No. 151); and

• Vasquez moves for partial summary judgment on all Defendants’ liability, leaving only damages and the scope of injunctive relief for trial (ECF No. 154).

These motions frame well the issues in this difficult case. The thrust of Vasquez’s claim is that he was caught in a Catch-22 scenario where he was required under CDOC medical guidelines to take certain drug and alcohol resistance courses before being authorized to receive HCV treatment, yet CDOC offered no such classes for inmates of Vasquez’s high-security classification at Sterling. Thus, Vasquez’s disease progressed unabated to the point where it caused substantial liver damage.

Vasquez claims that “[sjomeone is responsible to [him] for years of pain, suffering, and emotional distress, as well as his shortened life and the substantially decreased quality of that life; the only question is who.” (ECF No. 154 at 27.) The answer to Vasquez’s question would be fairly straightforward if he could sue CDOC directly for the damages caused by its policy. Vasquez himself claims that “the reason [he] did not receive adequate treatment” was simply that “he was in a high security prison” (ECF No. 154 at 26), meaning he was caught in the trap created by the combination of the drug and alcohol education policy, his high security status, and CDOC’s apparent unwillingness to offer the proper classes to high-security Sterling inmates. Thus, it would seem that CDOC’s policies, or perhaps those officials responsible for not authorizing the appropriate classes at Sterling, were the moving force behind Vasquez’s injury.

Under the Eleventh Amendment, however, Vasquez cannot sue CDOC itself for damages. And, for whatever reason, Vasquez has chosen not to sue those who made or enforced the relevant policies. Cf. Roe v. Elyea, 631 F.3d 843, 858-67 (7th Cir. 2011) (affirming jury verdict against former Illinois Department of Corrections chief medical officer who had promulgated a policy categorically requiring all HCV treatment candidates to have at least two years left on their sentences before the prison system would consider treatment); Johnson v. Wright, 412 F.3d 398, 403-05 (2d Cir. 2005) (holding that a trial was necessary to determine whether senior prison officials were deliberately indifferent in enforcing a policy that denied HCV treatment to inmates with evidence of active substance abuse). Vasquez has instead sued a chain of individual medical professionals and one case manager employed at Sterling, alleging that all “were aware of [his] hepatitis C and the risk it posed to his health, yet did nothing to ensure his access to treatment for the disease.” (ECF No. 154 at 27.)

Vasquez thus frames this case under a “gatekeeper” theory of Eighth Amendment liability. See, e.g., Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (“A prison medical professional who serves solely as a gatekeeper for other medical personnel capable of treating the condition may be held liable under the deliberate indifference standard if she delays or refuses to fulfill that gatekeeper role.” (internal quotation marks omitted; alterations incorporated)). But two unusual factors present in this case complicate the gatekeeper framework in this case. First, CDOC policies and practices themselves were to some degree the actual gatekeeper(s), and the individual Defendants whom Vasquez has chosen to sue had little or no control over them. Second, to the extent HCV causes serious symptoms (which it does only in about one-fourth of chronically infected individuals), it is nonetheless a slowly progressing disease, not usually manifesting itself as an acute condition that always and obviously requires immediate treatment.

In light of these considerations and for the reasons explained at length below, the Court rules as follows:

• Defendants Davis, Martorano, and Fauvel are entitled to judgment as a matter of law both as to liability and as to qualified immunity;

• Defendants Webster and Melloh are at least entitled to qualified immunity;

• Defendant Chamjock (who did not seek dismissal on the basis of qualified immunity) could conceivably be liable to Vasquez, but Vasquez filed his complaint against Chamjock too late; and

• the Court’s All Writs Act injunction entered on February 29, 2016 will persist after final judgment.

Accordingly, the various Defendants’ summary judgment motions are granted and Vasquez’s summary judgment motion is denied. Final judgment will enter, but the Court will retain jurisdiction to enforce its All Writs Act injunction.

I. LEGAL STANDARD

Summary judgment is warranted under Federal Rule of Civil Procedure 56 “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is “material” if, under the relevant substantive law, it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). An issue is “genuine” if the evidence is such that it might lead a reasonable trier of fact to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).

In analyzing a motion for summary judgment, a court must view the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 476 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)). In addition, the Court must resolve factual ambiguities against the moving party, thus favoring the right to a trial. See Houston v. Nat’l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).

II. FACTS

The following narrative is undisputed unless otherwise noted.

A. HCV Among CDOC Prisoners

1. HCV and its Treatments

HCV is an infection acquired usually through blood-to-blood contact, such as through sharing needles or reuse of unsterilized tattoo equipment. (ECF No. 152 at 2, ¶ 5.) Between 15% and 20% of those infected with HCV will clear the infection spontaneously. (Id. at 3, ¶ 7.) For the remainder, HCV becomes a chronic infection, but approximately 75% of this group nonetheless suffer no serious problems. (Id. ¶¶ 8-10, 13.) The other 25% face progressive liver damage leading to cirrhosis. (Id. ¶ 10.) Sometimes this cirrhosis requires two or three decades to manifest itself. (Id. ¶ 11.)

Between 1998 and 2011, the only treatment for HCV was an antiviral regimen that combined pegylated interferon with ribavirin. (Id. at 4, ¶ 19.) Such antiviral treatment was contraindicated, however, for individuals with decompensated liver cirrhosis. (Id. at 5, ¶¶ 21-22.) In 2011, additional medications were approved, but they supplemented rather than replaced interferon/ribavirin. (Id. ¶ 24.)

In 2013, Sovaldi entered the market, which could be used together with interferon/ribavirin, or solely with ribavirin. (Id. ¶25.) In 2014, Harvoni entered the market, which can be prescribed on its own (ie., it need not be combined with any other drug). (Id. ¶ 26.) However, Harvoni has not been approved to treat HCV genotype 3 (which, as described below, turns out to be the form with which Vasquez is infected). (See ECF No. 126 at 4, 5, 9-10.) HCV genotype 3 is most effectively treated with a combination of Sovaldi and riba-virin. (Id. at 4; ECF No. 152 at 5, ¶ 25.)

2. CDOC Protocols for Treating HCV

None of the foregoing HCV treatments creates immunity against reinfection. (ECF No. 152 at 6, ¶ 31.) Moreover, HCV treatment can be costly—from $40,000 to $160,000, depending on the length of treatment, according to CDOC’s chief medical officer, Dr. Susan Tiona. (ECF No. 154-7 at 6.) Thus, CDOC’s treatment standards for HCV “place strong emphasis on treatment of substance abuse issues prior to treatment for [HCV], as well as avoidance of high risk behaviors such as tattooing and the consumption of alcohol.” (ECF No. 152 at 6, ¶ 30.) In other words, CDOC wishes to reduce the likelihood that a course of antiviral drugs will be nullified by a prisoner’s later actions. (ECF No. 154 at 7, ¶ 29.) CDOC inmates seeking HCV treatment must therefore complete a drug and alcohol (“D&A”) resistance education program. (Id.)

Vasquez claims that CDOC’s treatment standards direct medical providers to fill out various forms and refer HCV-positive inmates for treatment very soon after diagnosing HCV. (Id. at 6, ¶ 23.) There is. no basis in the record for this claim. To the contrary, CDOC’s standards explicitly and repeatedly place the onus on the inmate to request HCV treatment and to provide notice of completing its prerequisites. (See ECF No. 154-8 at 5, 6, 7, 14, 18, 21; ECF No. 154-17 at 5, 6, 7, 14, 18, 21; ECF No. 154-18 at 10, 43; ECF No. .154-19 at 10, 45.) Accordingly, any inmate who “requests treatment for hepatitis C” (ECF No. 154-8 at 5) first needs to obtain a “D&A contract” from a medical provider (ECF No. 154 at 8, ¶¶ 36-37). The D&A contract explains that “CDOC does not believe that treatment should be given to patients who are likely to become reinfected.” (ECF No. 154-8 at 19 (emphasis removed).) Inmates therefore must commit to attending a six-month set of D&A classes before receiving treatment, and must continue in such classes during the course of treatment. (Id.) Any sign of noncompliance could lead to a requirement that the classes be repeated, and also to cessation of HCV treatment, if already underway. (Id. at 19-20.)

Once a patient signs this contract, the CDOC medical provider is responsible for completing a referral form “that directs the drug and alcohol education department to enroll the patient” in D&A classes. (ECF No. 154 at 8, ¶ 38.) If such classes are not available where the inmate is incarcerated, CDOC policy has stated since at least 2004 that the inmate would be transferred to a suitable facility within sixty days of receiving the referral form. (Id. ¶ 39.)

There have been “obstacles,” however, “in car[ry]ing this out in reality[.]” (ECF No. 152 at 7, ¶ 35.) In particular, a prisoner’s security classification could get in the way of an otherwise appropriate transfer, and CDOC medical personnel could not override the security classification. (Id.; ECF No. 164 at 4, ¶ 35.)

Apparently in light of these problems, CDOC in 2008 relaxed its requirements somewhat. (ECF No. 154 at 8, ¶ 41.) Rather than requiring “ ‘formal’ drug and alcohol classes” (which the Court takes to mean D&A classes specifically developed or sponsored by CDOC), “CDOC medical administrative staff instructed providers that the drug and alcohol requirement could be satisfied by enrollment in any drug and alcohol program available at [an HCV-positive inmate’s] assigned facility.” (Id. at 8-9, ¶¶ 40, 42.) Under that directive, “attending [Alcoholics [A]nonymous meetings for six months” could-satisfy the prerequisite. (Id. at 9, ¶ 43.) Then, in 2012, CDOC returned to the requirement of “‘formal’ drug and alcohol classes,” but made those classes available at all facilities regardless of an inmate’s security classification. (Id. ¶ 44.)

Assuming an inmate enrolls in the appropriate classes, “[i]t is [the inmate’s] responsibility to provide medical services with proof of his or her completion of the six (6) months of substance abuse education.”, (ECF No. 154-8- at 7.) At that point, medical personnel must order a liver biopsy to determine the degree of damage, if any, already inflicted on the liver, (Id. at 9.) Inmates with only mild damage are monitored regularly but do not receive treatment. (Id.) The remainder “will be considered for enrollment in the [antiviral] protocol.” (Id.)

B. Vasquez’s Experience With HCV in CDOC Custody

1. DRDC, Sterling Intake, and Davis’s Testing Orders (October-November 2004)

Vasquez entered CDOC custody at CDOC’s Denver Reception and Diagnostic Center (“DRDC”) in October 2004. (ECF No. 154 at 3, ¶¶ 1, 4, 7; ECF No. 154-1.) Blood tests conducted by DRDC staff revealed that Vasquez was infected with HCV. (ECF No. 154 at 3, ¶ 4.) Vasquez was then given a two-page handout explaining HCV and then-current treatment protocols involving a liver biopsy and interferon/ribavirin. (Id. ¶ 7.)

The State Defendants claim that this document informed Vasquez of his responsibility “to coordinate with his case manager in order to [enroll in D&A classes].” (ECF No. 152 at 8, ¶ 37.) However, all parties agree that Vasquez was given the document known as “Attachment B,” found in the record at Vasquez’s summary judgment Exhibit 8, pages 16-17 (ECF No. 154-8 at 16-17). The Court has reviewed Attachment B. It says nothing about D&A classes, or about the allocation of responsibility between the inmate and any other party in terms of requesting treatment.

Vasquez was transferred from DRDC to Sterling in November 2004. (ECF No. 154 at 4, ¶ 9; ECF No. 166 at 3, ¶ 9.) Soon after, Defendant Davis, a nurse practitioner, conducted an intake review of Vasquez’s medical file, and noted his HCV diagnosis. (ECF No. 154 at 4, ¶ 14.) Davis ordered that Vasquez undergo additional lab testing in six months to determine whether Vasquez’s HCV was chronic. (Id. at 5, ¶ 15.)

2. Interactions with Martorano (March 2005)

On March 14, 2005, Vasquez asked his case manager at that time, Defendant Martorano, for assistance in enrolling in D&A classes so he could eventually get treatment for his HCV. (Id. at 9, ¶ 46.) Vasquez’s problem was that he was housed on Sterling’s west side, which was the high-security side of the facility, and it did not at that time offer the appropriate classes. (Id. at 10, ¶ 49.) Martorano told Vasquez that he should go to Alcoholics Anonymous every weekend because “maybe that would help some.” (Id. ¶ 47.) However, attending Alcoholics Anonymous would not have helped Vasquez at that time. (Id. ¶ 48.) As previously noted, only from 2008-12 did CDOC accept non-“formal” D&A classes as satisfying the pretreatment requirements.

Thus, in 2005, Vasquez’s only way of attending D&A classes would have been through a transfer to a CDOC facility that accommodated high-security inmates and offered the appropriate classes. CDOC’s Limón Correctional Facility fit that description, and Martorano noted in her offender contact log for March 30, 2005, that she would “check into” the possibility of transferring Vasquez to Limón. (Id. ¶ 51.) There is no record in Martorano’s contact log that she in fact checked into such a transfer. (See ECF No. 154-21.) In her deposition in this case, Martorano testified that she could not remember whether she in fact checked into the transfer possibility, but she stated that it was her normal practice to follow up on such matters and so she assumes she did. (ECF No. 166-6 at 6-8.)

These interactions with Martorano in March 2005 are the only interactions the parties bring to the Court’s attention. It is unclear when Martorano ceased being Vasquez’s case manager.

3. Davis Confirms the Chronic Status of Vasquez’s HCV (May 2005)

In May 2005, Sterling medical staff performed the follow-up tests ordered by Davis upon her intake review six months earlier. Reviewing those tests, Davis confirmed Vasquez’s chronic HCV diagnosis on May 27, 2005. (Id. ¶ 16.) Davis then sent a handwritten note to Vasquez informing him that he was eligible for HCV treatment but first needed to complete six months of D&A classes. (Id. at 6, ¶ 26.) Davis further instructed Vasquez to “kite medical [ie., send a written request to Sterling’s medical clinic] if he was interested in receiving treatment.” (Id. ¶ 27.) Vasquez did not submit a kite at this time, and Davis had no further interaction with Vasquez.

4. Early Interactions with Webster (August 2006-January 2008)

Defendant Webster, a physician’s assistant at Sterling, apparently first became aware of Vasquez in August 2006. That is when Vasquez visited Webster complaining of chronic headaches. (ECF No. 154-12 at 1.) Webster wrote on the patient record for that visit that Vasquez’s “LFT’s were very high last year” (id.), referring to abnormal results from liver function tests. Webster also wrote “HCV” in the “Assessment” portion of the patient record. (Id.) Webster took no action aimed at treating Vasquez’s HCV. (ECF No. 154 at 13, ¶ 67.)

In October 2006, Webster reviewed new laboratory results from Vasquez and noted “LFT’s are elevated, but lower than in the past ... HCV Positive].” (ECF No. 154-12 at 2.) In November 2006 and January 2007, Webster had follow-up visits with Vasquez about his headaches. (ECF No. 154 at 13, ¶¶ 70-71.)

In October 2007, Webster received a kite from Vasquez for renewal of his Zan-tac and Colace prescriptions, which Webster renewed. (Id. ¶ 72; ECF No. 154-28 at 2.) No party argues that either Zantac or Colace was meant to treat symptoms of HCV or liver disease. The Court therefore assumes that an unrelated medical condition was forefront in Vasquez’s mind at the time. Webster nonetheless noted “LFT’s in 300’s” (id.), which Webster says is “bad” (ECF No. 152-8 at 23). Webster ordered “H. Pylori IgM Ab, LFT’s” (ECF No. 154-28 at 2), which Vasquez views as tests aimed at his HCV diagnosis (see ECF No. 154 at 13-14, ¶ 72 (noting Webster’s request for the lab tests and stating that Webster “took no further action with respect to Mr. Vasquez’s hepatitis C” (emphasis added))). Webster also added HCV to Vasquez’s “active problems list.” (Id.) No party explains the significance of the active problems list.

Webster reviewed the results of the lab work in December 2007. (Id. at 14, ¶ 73.) Those labs came back positive for the bacterium H. pylori and Webster ordered certain prescriptions in response. (ECF No. 154-28 at 3.) No party explains the significance of these actions, if any, with respect to Vasquez’s HCV diagnosis.

In January 2008, Webster reviewed lab results that showed Vasquez’s “high liver enzyme ... numbers.” (ECF No. 154 at 14, ¶ 74.)

In February 2008, Vasquez completed the “Right Start—Right Step Drug and Alcohol Program.” (ECF No. 154 at 11, ¶ 54; ECF No. 154-43.) No party explains the significance of this accomplishment. In particular, no party argues that Vasquez then became qualified to receive D&A classes.

5. Interactions with Both Webster and Chamjock, and Diagnosis of Cirrhosis (May 2008-March 2009)

Defendant Chamjock, another physician’s assistant at Sterling (ECF No. 105 ¶6), entered the picture in May 2008 (ECF No. 151 at 3, ¶ 10). Chamjock at that time “conducted a chart review of [Vasquez’s] medical chart after [Vasquez] submitted a [k]ite requesting renewal of his medication for Irritable Bowel Symptoms (‘IBS’) and Gastroesophageal reflux disease (‘GERD’).” (Id.) Through this chart review, Chamjock learned that Vasquez had untreated HCV. (ECF No. 154 at 14, ¶ 75.) Chamjock refilled Vasquez’s prescriptions. (Id.)

On June 5, 2008, Webster again saw Vasquez and again noted his HCV and labwork numbers suggesting liver damage. (Id. ¶ 76.)

On June 20, 2008, Webster noted additional troubling labwork, including high ammonia levels, and diagnosed Vasquez with cirrhosis of the liver. (Id. ¶ 77; ECF No. 152 at 13, ¶¶ 69-70.) Webster also called Vasquez in to the clinic to speak with him about his condition. (Id. ¶ 77.) Webster met with Vasquez later that same day and, according to the patient record for that visit, “advise[d] him of worsening of Liver from HCV. He is confused.” (ECF No. 154-30 at 4.)

The significance of the notation regarding confusion is unclear. In particular, it is not clear whether Vasquez was confused specifically about what Webster had told him, or whether Vasquez showed general confusion (a common manifestation of high ammonia levels, see ECF No 152 at 13, ¶ 71). Moreover, no party claims that Webster or anyone else informed Vasquez at that time of the cirrhosis diagnosis specifically (as opposed to telling Vasquez more generally that his liver was “worsening”). In any event, Webster gave Vasquez a prescription for Lactulose, a drug that treats high ammonia levels but does not treat HCV or liver damage. (ECF No. 154 at 14, ¶ 78.)

On June 25, 2008, Webster noted on a patient record for Vasquez, “[rjecent Liver labs all worsening” and “consider liver U.S. [ultrasound] if sx [symptoms] worsen.” (ECF No. 154-30 at 6.) Webster “wrote this note [regarding a liver ultrasound] so that he could have Vasquez monitored for a potential liver tumor.” (ECF No. 152 at 13, ¶ 74.)

In December 2008, Webster noted additional labwork showing “LFT’s down into 250’s” but “Ammonia is elevated to 250’s.” (ECF No. 154-30 at 8.) Webster again prescribed Lactulose. (ECF No. 152 at 14, ¶ 76.)

In March 2009, Vasquez began complaining of severe abdominal pain. (ECF No. 154 at 15, ¶ 80.) In response, Webster ordered liver function labs. (Id. ¶ 81; ECF No. 154-31 at 2.) On the record as presented by the parties, this is the last time Webster had any contact with Vasquez or his medical file.

At his deposition in this case, Webster explained that, during his various years of interaction with Vasquez, he never referred Vasquez to D&A classes for two reasons. First, Webster believed that no such classes were available for inmates with Vasquez’s security classification (ECF No. 152-8 at 5, 9, 13, 18), which may have been an incorrect belief in 2008-12 (the period in which informal D&A classes were deemed acceptable, see Part II.A.2, above). Second, Webster believed that cirrhosis of the severity he diagnosed in June 2008 disqualified a patient from receiving HCV treatment. (ECF No. 152-8 at 5,16,17,18, 22.) Vasquez does not dispute that Webster held the latter belief, but claims that it was incorrect—and the State Defendants do not argue otherwise.

6, Interactions Chamjock (May-November 2009)

On May 14, 2009, Chamjock received and reviewed the lab results that Webster had ordered earlier that year. (Id.) Cham-jock’s patient record for that day notes Vasquez’s history of HCV and “possible cirrhosis of the liver,” (ECF No. 154-31 at 3.) With regard to the lab results, Cham-jock “suspected that [Vasquez] might be suffering from pancreatitis or cholecysti-tis.” (ECF No. 151 at 4, ¶ 12.) Chamjock requested a CT scan of Vasquez’s liver and pancreas but Correctional Healthcare Partners (an entity that acts as a health insurance administrator for CDOC) would not approve that procedure, so Chamjock ordered an ultrasound instead. (Id. ¶ 13; ECF No. 154 at 15, ¶ 82 & n.1.)

Chamjock saw Vasquez in person for the first time on June 17, 2009, when Vasquez came to the Sterling clinic complaining of abdominal pain. (ECF No. 151 at 4, ¶ 14.) Vasquez apparently attributed this pain to the lapse of a Zantac prescription. (Id.) Chamjock’s patient record for that visit notes Vasquez’s history of “ESLD,” ie., end-stage liver disease. (ECF No. 154-31 at 5.) The patient record also notes a rash, jaundiced skin, yellowed corneas, and an enlarged liver. (ECF No. 154 at 15, ¶ 83.) Chamjock prescribed Zantac and, for the rash, a topical cream, and also requested the results of the ultrasound he had ordered the previous month. (Id.) ECF No. 151 at 4, ¶ 14.)

Chamjock received the ultrasound results on the following day, June 18, 2009. (ECF No. 154 at 14, ¶ 84.) “The ultrasound returned no results related to an acute condition, but confirmed, that Mr. Vasquez’s liver had a ‘dense echo pattern suggestive of either fatty infiltration of the liver or chronic liver disease.’ ” (Id. (quoting ECF No. 154-32 at 1).) Chamjock sent Vasquez a note informing him that the ultrasound was “negative” (id.), apparently meaning negative for pancreatitis or a tumor (see ECF No. 154-10 at 7).

On June 25, 2009, Chamjock responded to a medical kite for renewal of Vasquez’s Lactulose (ammonia-reducing) medication. (ECF No. 154 at 60, ¶ 86.) Chamjock renewed that prescription, as requested. (Id.)

On August 4, 2009, Chamjock saw Vasquez in person to follow up on the rash first noticed in June. (Id. ¶ 87.) The patient record for that visit contains nothing specific to HCV. (See ECF No. 154-31 at 7.)

On November 4, 2009, Chamjock again renewed Vasquez’s Zantac prescription. (ECF. No. 154 and 16, ¶ 88.) The patient record for that action similarly contains nothing specific to HCV. (See ECF No. 154-31 at 8.)

7. Interactions with Chamjock and Melloh (March-September 2010)

Defendant Melloh, a physician’s assistant at Sterling, apparently first became aware of Vasquez in March 2010, when she responded to a medical kite to refill Vasquez’s Zantac prescription. (ECF No. 152 at 15, ¶ 83.) Melloh reviewed Vasquez’s chart and learned of his HCV and liver problems. (ECF No. 154 at 16, ¶ 89.) Mel-loh renewed the Zantac prescription and also ordered labwork that included a liver function test. (ECF No. 152 at 15, ¶ 84; EOF No. 154-33 at 1.) Melloh ordered the labwork not in response to Vasquez’s HCV, but because she orders such tests for all of her patients on a yearly basis. (EOF No. 152 at 15, ¶ 85.)

Vasquez claims the labwork “revealed that, indeed, [his] liver enzymes were elevated.” (ECF No. 154 at 16, ¶91.) The State Defendants dispute this because “it is not clear what [Vasquez] is referring to on the cited document [showing the lab results].” (ECF No. 166 at 11, ¶ 91.) Vasquez does not claim that Melloh (or anyone else at Sterling) received and reviewed these results.

In May 2010, Chamjock saw Vasquez apparently for the last time. (ECF No. 154 at 17, ¶93.) This was a follow-up visit related to Vasquez’s abdominal pain. (ECF No. 154-33 at 3.) According to the patient record for that visit, Vasquez “[s]tated that his pain ha[d] almost subsided after taking his medications,” but it was “off and on all the time” and “worse after eating big meals.” (Id.) Vasquez also informed Cham-jock that he had obtained “some spicy food” from the Sterling canteen. (Id.) Chamjock advised Vasquez “to stop eating spicy food and big meals late at night,” and ordered another lab test to check for the H. pylon bacterium. (Id.) The patient record contains nothing specific to Vasquez’s HCV or liver condition, although Vasquez “reported tenderness to deep palpation over [the] epigastric area and RUQ [ie., the right upper quadrant of the abdomen, where the liver is located].” (Id.)

In September 2010, additional labwork on Vasquez was performed at Melloh’s request. (See ECF No. 154-34 at 2.) Vasquez claims that this was the result of a request by Melloh, in March 2010, that “liver enzyme labs be re-done in six months,” (ECF No. 154 at 17, ¶ 92.) Vasquez further claims that Melloh “never followed up on the results” of these additional tests. (Id.) Vasquez’s cited evidence, however, does not support these assertions. The evidence shows only that Melloh ordered additional labwork (which was done) in September 2010. (See ECF No. 154-34 at 2.) It is not clear whether this labwork was specifically related to liver enzymes, nor whether Mel-loh “followed up on the results.”

8. Interactions with Melloh and Fauv-el, and Eventual Completion of D&A Classes (January 2012-January 2013)

Apparently nothing of significance to the claims in this case happened in 2011. The next event the parties bring to the Court’s attention occurred on January 14, 2012, when Vasquez was seen in the Sterling clinic “after complaints that he had been vomiting blood.” (ECF No. 152 at 16, ¶ 86.) Clinic staff observed Vasquez vomiting into the toilet, although without any blood in the vomit. (Id. ¶ 88.) Melloh was not on-site but was on-call and was contacted for a consultation. (Id. ¶ 87.) Melloh prescribed I.V. fluids, Prilosec, and Phener-gan for the nausea. (Id. ¶ 89.)

Melloh saw Vasquez in person two days later (January 16, 2012) and noted that he was feeling better. (ECF No. 154-35 at 5.) Melloh also noted jaundiced skin, viewed certain (otherwise unspecified) lab results, and “issued a consultation for an ultrasound [of his liver], prescribed Lactulose and Prilosec, and reordered laboratory testing.” (ECF No. 152 at 16, ¶ 92; ECF No. 164 at 17, ¶ 97.)

On January 18, 19, and 23, 2012, Vasquez submitted kites requesting assistance in getting enrolled in D&A classes. (ECF No. 152 at 11, ¶ 59; ECF No. 152-4 at 1.) Defendant Fauvel addressed these kites. Fauvel, a CDOC physician, first met with Vasquez in early February 2012 to follow up on Melloh’s concerns regarding jaundice. (ECF No. 152 at 17, ¶ 95; ECF No. 152-11 at 30.) Fauvel observed that Vasquez’s skin now showed “only the slightest hue of jaundice.” (Id.) Fauvel noted Vasquez’s interest in receiving HCV treatment, discussed the treatment protocol with Vasquez “at length,” and referred him “back to [his] case manager to get [him] enrolled” in D&A classes. (Id.)

Around that same time, Vasquez underwent the ultrasound Melloh had ordered. (See ECF No. 154-37 at 2.) The ultrasound report states that Vasquez’s liver had a “[h]eterogeneous appearance ... consistent with cirrhosis.” (Id.) The report also notes abnormalities of the gallbladder and spleen, both likely related to chronic liver disease. (Id.) Fauvel reviewed this report on February 27, 2012, and made a note to discuss it with Vasquez at a follow-up appointment, although there is no record that any such discussion took place. (ECF No. 154 at 17-18, ¶¶ 99-100.)

On March 7, 2012, Vasquez filed a grievance against “medical,” and Melloh specifically, for allegedly neglecting his request for referral to D&A classes. (Id. at 11, ¶ 57.) Vasquez described an administrative runaround between “the care provid[e]r” and an individual named “Ms. Estrada,” who is otherwise unidentified. (ECF No. 154-22.) Vasquez claimed that the care provider was denying him the D&A contract under the belief that Sterling’s west side did not offer D&A classes, while Estrada was telling the care provider the opposite and was “waiting for [the referral] document” from “medical.” (Id.)

On March 22, 2012, while this grievance was still pending, Vasquez visited the Sterling clinic seeking a copy of the D&A contract discussed above at Part II.A.2. (ECF No. 154-20 at 2.) A medical provider who is not a party to this case, Trudy Sicotte, told Vasquez that the clinic did not have the appropriate form and that he needed to obtain it from his case manager. (ECF No. 154 at 11, ¶ 56.) Sicotte sent a message to Vasquez’s case manager—presumably about his request for the D&A contract, although the record does not specifically say so. (Id.)

Melloh responded to Vasquez’s grievance on March 27, 2012. (ECF No. 154 at 11, ¶58.) Melloh’s response is essentially the opposite of the instructions Vasquez received from Sicotte:

This is a change that they are now giving [d]rug and alcohol classes on the west side [Sterling’s high-security side]. If you want to have the paperwork filled out for consideration for the class you need to kite to medical for[ ]appointment to get the appropriate paperwork filled out and sent to appropriate personnel for consideration.

(ECF No. 154-22.) This is the last contact between Melloh and Vasquez that the parties bring to the Court’s attention.

The parties agree that, by this time, Vasquez had submitted five kites requesting the D&A contract. (ECF No. 154 at 11, ¶ 59.) Vasquez submitted yet another kite and was seen by Sicotte on May 10, 2012, because the needed form was “now available in the clinic.” (Id. at 12, ¶ 60.) Vasquez signed the form and Sicotte gave Vasquez instructions “as to the proper way to distribute this paper work.” (Id.)

On May 15, 2012, Fauvel reviewed some lab results for Vasquez, noting his history of “cirrhosis with liver failure” and that various laboratory findings were “high.” (Id. at 18, ¶ 103.) Fauvel “ordered the same labs and scheduled a follow-up with Mr. Vasquez for one month.” (Id.)

Vasquez was formally approved for D&A classes on July 23, 2012. (ECF No. 152 at 8, ¶ 40.) He began the first phase of those classes that same month. (ECF No. 154 at 12, ¶ 61.)

On July 31, 2012, Fauvel saw Vasquez in person and discussed the possibility of HCV treatment. (ECF No. 154 at 18, ¶ 104.) Fauvel wrote in Vasquez’s patient record, “I am not sure if this [inmate] will ultimately qualify for treatment of hep c with cirrhosis. Will email Judy Beeman RN to inquire about this.” (Id.) Although the record is not explicit, the Court understands that Beeman was an upper-level medical administrator at CDOC.

Vasquez returned to visit Fauvel on August 6, 2012, but certain laboratory tests had not taken place and Fauvel wrote that he had “not yet heard back from Judy Beeman RN as to whether this [inmate] is still eligible for treatment for HepC as he has cirrhosis,” (Id. ¶ 105.) The laboratory tests apparently took place soon thereafter because Fauvel was able to review them on August 14, 2012. (Id. ¶ 106.) Fauvel wrote that Vasquez’s results were “abnl” (abnormal) and described Vasquez as an inmate “with severe liver disease] due to HepC.” (Id.)

Fauvel saw Vasquez again the following day, August 15, 2012. (Id. at 19, ¶ 107.) Fauvel obtained this appointment on an “urgent” basis because he wanted to “continue to move things forward” and discuss a liver biopsy to test the severity of Vasquez’s liver damage, (Id.; ECF No. 152 at 18, ¶ 102.) There is no indication that Fauvel followed up on this intent except that, on October 29, 2012, a physician’s assistant named Ruth Ross noted that she would discuss a possible liver biopsy with Fauvel. (ECF No. 154 at 18, ¶ 108.) Fauvel believes that the biopsy may have run into red tape at Correctional Healthcare Partners. (ECF No. 152 at 18, ¶ 103.)

Vasquez completed the first phase of D&A classes in November 2012, and then completed the second phase between November 2012 and January 2013. (ECF No. 154 at 12, ¶¶ 61-62.)

9. Diagnosis of Decompensated Cirrhosis (May 2013)

The next event of significance took place in May 2013. No party explains what happened in between January 2013 and May 2013. In any event, on May 3, 2013, Vasquez began vomiting large amounts of dark red blood. (Id. at 19, 11109.) Vasquez was transported by ambulance first to the Sterling Regional Medical Center, and then to the Denver Health Medical Center. (Id. ¶¶ 110-11.) Denver Health doctors diagnosed Vasquez with esophageal varices and surgically repaired them. (Id. ¶ 112.)

Vasquez claims that Denver Health doctors told him his varices were the result of decompensated cirrhosis, and that decom-pensated cirrhosis made it unsafe for him to receive then-available HCV treatments. (Id. ¶¶ 113-14.) The State Defendants deny this, noting that Vasquez’s cited evidence (a patient record from over a year later, see ECF No. 154-4 at 1), does not support these assertions. (ECF No. 166 at 14, ¶¶ 113-14.) The Court agrees with the State Defendants that Vasquez’s evidence does not directly support his claims. However, the State Defendants themselves elsewhere assert (and Vasquez does not dispute) that “Vasquez had clinical evidence for decompensated liver cirrhosis” following this episode with the bleeding varices, and that Vasquez was therefore “not a.. .candidate” for HCV treatment “using any of the drugs available at that time.” (ECF No. 152 at 8, ¶ 43.) Thus, whether or not the esophageal varices resulted from cirrhosis, the Court finds it undisputed that Vasquez was diagnosed with decompensated cirrhosis in or around May 2013, and that then-available HCV treatments (e.g., interferon/ribavirin) were not appropriate in light of that diagnosis.

10. Additional Interactions with Fauv-el, and Filing of Grievances (May-December 2013)

Fauvel resumed contact with Vasquez in July 2013 (ECF No. 154 at 19, 1Í108), when Vasquez returned from Denver and visited Fauvel apparently to discuss continuing digestive problems and the need for a bland diet (ECF No. 154-13 at 2).

Also in July 2013, Vasquez filed a formal grievance against “Medical.” (ECF No. 164-7 at 7.) This grievance was considered a “step one” grievance under CDOC’s grievance procedures. (ECF No. 164 at 12, ¶ 6.) Vasquez generally complained of his inability to receive HCV treatment from the start of his incarceration (including the lack of D&A classes on Sterling’s west side before 2012), leading to liver damage that is now “too advanced” to permit HCV treatment. (ECF No. 164-7 at 7.)

Fauvel “received, reviewed and" appreciated” this grievance. (Id.) After summarizing Vasquez’s medical status, Fauvel stated,

I understand that this information would be hard for [Vasquez] to accept but, HepC was diagnosed long ago and treatment consideration is a long[ ]and tortuous process. I cannot speak to why this was not treated in [the] past. Most of [the] liver damage was likely [incurred] long before completion of [the D&A] program.

(Id.) This apparently qualified as a denial of the grievance.

In August 2013, Vasquez filed a “step two” grievance, reiterating his complaints and requesting special needs parole. (Id. at 8.) An individual named Jamie Soucie responded, “Mr. Vasquez—it appears you are currently receiving appropriate care through • [Sterling] Medical. It is recommended that you continue working with your current provider regarding current, available treatment' options. Remedy denied.” (Id.)

In September 2013, Vasquez filed a “step three” grievance, repeating his previous complaints. (Id. at 9.) A grievance officer at CDOC headquarters named Anthony DeCesaro responded. (Id. at 10.) DeCesaro noted that Vasquez received a letter on “5/27/2007” with “directions to kite medical if interested in hep C treatment.” (Id.) But, according to DeCesaro, Vasquez did not meet with a medical provider and discuss the D&A requirements until 2012. (Id.) “There are no other records indicating that you requested [D&A] treatment prior to 2012; it appears that you did not actively pursue treatment.” (Id.) DeCesaro concluded, ‘Tour request for relief is denied. This is the final administrative response in this matter you have exhausted your ministry remedies.” (Id.)

In November 2013, Fauvel noted in Vasquez’s patient records that his request for a liver biopsy was over a year old, that there was no HCV “workup sheet on file,” and that Vasquez had failed to attend a recently scheduled appointment. (ECF No. 152 at 20, ¶ 112.) Fauvel scheduled a new appointment for Vasquez “to explore options and desire to be treated.” (ECF No. 152-11 at 16.)

In December 2013, a gastrointestinal specialist recommended against HCV treatment, apparently in light of Vasquez’s decompensated cirrhosis. (ECF No. 152 at 8-9, ¶¶ 43-44.) All parties agree, however, that the combination of Sovaldi and ribavi-rin was approved in 2013 (see Part II.A.1, above), and that it can be safely administered to patients with decompensated cirrhosis (ECF No. 152 at 9, ¶ 45; ECF No. 154 at 20, ¶ 115). It is therefore unclear why the gastrointestinal specialist provided the recommendation that he did.

11. This Lawsuit and Subsequent Developments (May 2014-August 2016)

Vasquez filed this lawsuit in May 2014. (ECF No. 1.) His original complaint claimed that Defendants, as well as others, unconstitutionally neglected his medical needs to the point where his only chance of survival was a liver transplant. (Id. at 7-9.)

In early 2015, CDOC approved the So-valdi/ribavirin combination for its inmates with decompensated cirrhosis. (ECF No. 154 at 20, ¶ 115.) In October 2015, “for the first time,” a CDOC medical provider completed all of the necessary paperwork to permit Vasquez to receive Sovaldi/ribavi-rin. (Id. ¶ 116.) This paperwork was then submitted to CDOC’s Infectious Disease Committee (“IDC”), which is apparently responsible for approving HCV treatment requests. (ECF No. 152 at 9, ¶ 45.)

The IDC took up Vasquez’s case at its next quarterly meeting, on February 19, 2016. (Id. ¶ 47.) The IDC “found that Vasquez had completed a lower level of substance abuse treatment than was actually required,” but “had substantially satisfied the intent of the alcohol and drug treatment requisites, and was therefore approved for Hepatitis C treatment.” (Id.) Dr. Tiona, who sits on the IDC, further explained her belief at that time that Vasquez “clearly was not going to tolerate another six months of a [D&A] program” in light of “his medical situation.” (ECF No. 154-7 at 15.) Vasquez’s approval for Sovaldi/ribavirin became formally effective on February 22, 2016. (ECF No. 152 at 9, ¶ 48.)

On the same day that the IDC considered Vasquez’s case (February 19, 2016), Vasquez filed a motion for a temporary restraining order, which the Court construed as a motion for a preliminary injunction (“PI Motion”). (ECF No. 114; see also ECF No. 116.) Through the PI Motion, Vasquez sought to force CDOC to provide him with Harvoni (ECF No. 114 at 2-4), apparently unaware that he was infected with HCV genotype 3, making Har-voni inappropriate. The Court held a Preliminary Injunction Hearing on February 26,2016, where Dr. Tiona testified that the IDC had approved Vasquez for Sovaldi/ri-bavirin treatment. (See ECF No. 126 at 4.) The Court also heard testimony from Vasquez’s expert, Dr. Bruce Bacon, to the effect that Sovaldi/ribavirin was the appropriate drug regimen under the circumstances, and also that Vasquez’s overall condition was, at present, relatively stable—i.e., there was little likelihood that Vasquez would suffer total liver failure during the normal 24-week course of So-valdi/ribavirin. (Id. at 6.) The Court therefore denied the PI Motion as such, but nonetheless invoked the All Writs Act to order CDOC to regularly perform certain laboratory tests to evaluate Vasquez’s liver functioning. (Id. at 16-17.)

Vasquez began a 24-week regimen of Sovaldi/ribavirin in March 2016. (ECF No. 152 at 9, ¶ 49.) As of August 2016, Dr. Bacon, “[did] not believe that Vasquez should be worked up for a liver transplant, but rather, [he] would wait to see how the Hep C goes and whether [Vasquez’s liver functioning worsens].” (Id. at 21, ¶ 121.)

III. ANALYSIS

A. PLRA Exhaustion

The Prison Litigation Reform Act (“PLRA”), states that “[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Chamjoek and the State Defendants both argue that Vasquez did not exhaust his CDOC grievance remedy against each of them specifically. (ECF No. 151 at 5-6; ECF No. 152 at 35-36.) The State Defendants particularly argue that Vasquez “has a claim against each individual and therefore should be required to exhaust again [sic?] each claim.” (ECF No. 152 at 36.)

The Court agrees with Vasquez that such person-by-person exhaustion is not required. To the contrary, CDOC exhaustion policy states that “[p]roblems that arise from the same incident or set of facts shall be grieved in one grievance, even though it may involve multiple [CDOC] employees, contract workers, or volunteers.” (ECF No. 163-2 at 5.) Duplicative grievances are proeedurally barred. (ECF No. 163-6 at 3.) Thus, Vasquez was not required to do as Defendants suggest, and likely would have been barred from doing so.

The State Defendants’ argument that person-by-person exhaustion “should be required” is also meritless. Nearly ten years ago, the Supreme Court ruled that the judiciary has no power to invent exhaustion requirements, and specifically cannot require (if prison regulations do not) that each later-sued defendant be named in a grievance. Jones v. Bock, 549 U.S. 199, 217-19, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007). Defendants’ respective exhaustion defenses therefore fail.

B. Liability & Qualified Immunity

1. Deliberate Indifference Generally

The Eighth Amendment’s prohibition against cruel and unusual punishment encompasses “deliberate indifference” by prison officials to a prisoner’s “serious medical needs,” and can state a cause of action against those prison officials under 42 U.S.C. § 1983. Estelle v. Gamble, 429 U.S. 97, 104-05, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976). A deliberate indifference claim 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, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994).

Deliberate indifference is a high standard. “[Negligent 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).

2. Causation

Before proceeding to the objective and subjective analyses, the Court finds it appropriate to highlight a causation issue that lurks in this case, but which no party addresses directly. See Scott v. Hern, 216 F.3d 897, 911 (10th Cir. 2000) (“A plaintiff must allege factual causation—i.e. ‘but for’ causation'—in order to state a claim under § 1983.”).

Vasquez’s theory of liability is that Defendants had a duty to somehow get Vasquez enrolled in D&A classes (or perhaps to find a way to waive or loosen the D&A requirement) and then to get Vasquez considered for antiviral therapy, and Defendants’ faitee to provide such assistance led to Vasquez’s liver damage. (See ECF No. 154 at 25-35; ECF No. 163 at 16-20.) The Court addresses whether Defendants had any such duty or duties in Part III. B.5, below. For present purposes, the Court notes that this theory presumes that, had any particular Defendant tried, he or she would have succeeded in placing Vasquez in an acceptable D&A program (or in convincing those in authority to waive or loosen the D&A requirement), and, after accomplishing that, Vasquez would have been approved by those in authority for antiviral treatment.

Vasquez’s theory is open to question. For example, in Johnson v. Wright, supra, the defendant chief medical officer of the New York State Department of Corrections ignored “the unanimous, express, and repeated ... recommendations of the plaintiffs treating physicians, including prison physicians,” that the plaintiff should receive HCV treatment. 412 F.3d at 400. For this, the Second Circuit found that the chief medical officer would have to go to trial on the question of deliberate indifference. Id. Johnson illustrates that even if subordinate officials request HCV treatment, it will not necessarily be approved.

Absent evidence from which a jury could conclude that a specific Defendant’s actions at any particular point in time would have removed the barriers preventing Vasquez from obtaining HCV treatment, Vasquez’s claim against that Defendant must fail. See, e,g., Restatement (Second) of Torts § 432 cmt. b (1965) (“if the same harm, both in character and extent, would have been sustained even had the actor taken the required precautions, his failure to do so is not even a perceptible factor in [causing the harm] and cannot be a substantial factor in producing it”); cf. Al-Turki v. Robinson, 762 F.3d 1188, 1193 (10th Cir. 2014) (finding that a prisoner in excruciating pain—later found to be the result of the kidney stone—experienced additional pain and mental anguish flowing from a nurse’s refusal to treat him, because the nurse “could have reduced his pain” to some degree and her diagnosis of the kidney stone “could have removed his fear of death”). Here, however, no Defendant has raised a lack-of-causation argument. The Court therefore deems it conceded, at least for summary judgment purposes, that Vasquez more probably than not would have been enrolled in D&A classes and received HCV treatment earlier than he actually did, had any particular Defendant undertook efforts to promote those outcomes.

With this understanding, the Court now turns to the objective and subjective components of the deliberate indifference analysis.

3. Objective Component

a.“Substantial Harm" in Delay-in-Care Cases

The Court begins by determining whether there is any genuine dispute of material fact regarding the existence of an objectively sufficiently serious medical need. This inquiry has an overlay in the present circumstances, given that Vasquez’s claim is based on delay of medical care. “[A] delay in medical care only constitutes an Eighth Amendment violation where the plaintiff can show that the delay resulted in substantial harm. We have held that the substantial harm requirement may be satisfied by lifelong handicap, permanent loss, or considerable pain.” Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001) (citation and internal quotation marks omitted). In other words, the objectively sufficiently serious condition must also qualify as a “substantial harm” under this analysis.

b.Before 2006

Vasquez lacks evidence from which a reasonable jury could conclude that he faced substantial harm before 2006.

In light of HCV’s slowly progressing nature, a recent unpublished Tenth Circuit decision and a recent unpublished District of Colorado decision both held that delay in treating HCV, without more, does not satisfy the substantial harm requirement, and therefore does not satisfy the objective component of the deliberate indifference test. Whitington v. Moschetti, 423 Fed.Appx. 767, 773 (10th Cir. 2011); Wright v. Hodge, 2015 WL 1408753, at *5-6 (D. Colo. Mar. 25, 2015). These decisions are not binding, but the Court finds them persuasive as applied to the record developed here. In particular, Vasquez’s expert, Dr. Bacon, is unprepared to offer testimony regarding any clinical signs and findings between 2004 and 2006 showing that Vasquez was not among the 75% of chronic HCV patients who suffer no serious complications—the statistically more probable scenario. (See generally ECF No. 154-6 (Dr. Bacon’s original report); ECF No. 154-15 (Dr. Bacon’s supplemental report).)

Accordingly, no jury could reasonably conclude that a sufficiently serious condition existed from 2004 to 2006. Davis and Melloh are entitled to summary judgment on this basis alone, given that neither had any interaction with Vasquez later than mid-2005.

c.2006 and Later

For 2006 and later, Dr. Bacon still has no specific opinions about when, specifically, Vasquez crossed the threshold into an objectively serious state. However, in light of evidence Vasquez gathered from Defendants and Dr. Tiona, a reasonable jury could conclude that Vasquez crossed that threshold as early as August 2006, or, absent that, sometime in 2008 or 2009.

First, Webster began noting high liver enzyme numbers in August 2006. (Part II.B.4, above.) Webster himself characterized these numbers as “bad.” (ECF No. 152-8 at 23.) Viewing this in the light most favorable to Vasquez, it alone might be enough for a jury to conclude that Vasquez had reached an objectively serious state.

Second, in June 2008, Webster diagnosed Vasquez with cirrhosis of the liver. (Part II.B.5, above.) As explained by Vasquez’s expert, Dr. Bacon

[cjirrhosis is a progressive disease in which healthy liver tissue is replaced with scar tissue, eventually preventing the liver from functioning effectively. The scar tissue blocks the flow of blood through the liver and interferes with the processing of nutrients, hormones, drugs, and toxins. Cirrhosis also slows the production of proteins and other substances by the liver.

(ECF No. 154-6 ¶ 34.)

For reasons having to do with the statute of limitations (discussed in Part III.C, below), Vasquez actually argues that cirrhosis—or at least “mere cirrhosis,” which Vasquez does not define—should not be considered “substantial” enough to satisfy the Tenth Circuit’s delay-in-care objective standard. (ECF No. 164 at 18.) But Dr. Bacon appears to disagree. Dr. Bacon explicitly attributes Vasquez’s cirrhosis to his untreated HCV. (ECF No. 154-6 ¶ 34.) Dr. Bacon further opines that “[t]he progression of Mr. Vasquez’s hepatitis C disease has resulted in permanent liver damage.” (Id. ¶ 37.) Dr. Bacon elsewhere opines that “the liver damage and related complications and conditions [Vasquez] has suffered are permanent, in the absence of a liver transplant.” (Id. ¶ 42.)

If this is not sufficient support, the permanence of the scarring characterizing cirrhosis (and the resulting drop in liver functioning), is a question that “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b)(2); cf. Hines on Behalf of Sevier v. Sec’y of Dep’t of Health & Human Servs., 940 F.2d 1518, 1526 (Fed. Cir. 1991) (“Well-known medical facts are the types of matters of which judicial notice may be taken.... Here, Sevier has offered no evidence that the incubation period of measles is disputed among treatise writers.”); Barnes v. Indep. Auto. Dealers Ass’n of Cal. Health & Welfare Benefit Plan, 64 F.3d 1389, 1395 n.2 (9th Cir. 1995) (“If necessary, we could take judicial notice that a condition requiring such major surgery, and the surgery itself, involve pain and suffering and may well cause permanent partial disability.”). According to The MERCK Manual of Diagnosis and Therapy (19th ed. 2011), “Treatments aimed at reversing the fibrosis [scarring of the liver] are usually too toxic for long-term use ... or have no proven efficacy. * * * Cirrhosis is usually considered irreversible.” Id. at 240; see also American Medical Association, Complete Medical Encyclopedia 800 (2003) (“scarring [from cirrhosis] is permanent and the liver afterward remains vulnerable to alcohol and infection”).

Given all this, the Court could conceivably hold that cirrhosis of the liver is, generally speaking, a “permanent loss” for purposes of the delay-in-care substantial harm standard. Garrett, 254 F.3d at 950. However, on this record, the Court need only hold that a prisoner with untreated HCV who has progressed to the cirrhosis stage has suffered permanent loss potentially attributable to the delay in treating his or her HCV. Thus, a jury could find that Vasquez faced an objectively sufficiently serious condition at least as of June 2008.

Third, Chamjock’s treatment notes for a year later (June 2009) note a history of end-stage liver disease. (Part II.B.6, above.) The Tenth Circuit’s unpublished Whitington decision, discussed above, determined that the inmate did not face an objectively serious risk of harm in light of an affidavit from a CDOC medical official stating that HCV progresses slowly and that the inmate in question showed no signs end-stage liver disease. 423 Fed.Appx. at 773. This Court is similarly persuaded that a diagnosis of end-stage liver disease could be accepted by a jury as evidence that the inmate faced a substantial harm as of that diagnosis. Thus, in this case, a jury could conclude that Vasquez crossed the substantial harm threshold in June 2009.

Fourth, Dr. Tiona testified at her deposition that, “between 2008 and about 2010,” there was a “missed opportunity to recognize that [Vasquez’s liver functioning was] deteriorating.” (EOF No. 154-7 at 9.) And, “by 2008 or 2009 .,. there were signs that ... it would be important for him to be successfully treated for his disease.” (Id. at 13.)

Accordingly, the Defendants who interacted with Vasquez in 2006 or later (Webster, Chamjock, Melloh, and Fauvel) are not entitled to summary judgment on the objective component of the deliberate indifference test. However, given that the jury could find the objective component satisfied at varying points in time, Vasquez is also not entitled to summary judgment that the objective component is satisfied as a matter of law. The Court holds only that a triable question of fact remains on this issue.

4. Subjective Component

The Court now turns to the subjective component. As noted above, the subjective component asks whether the government official in question was “aware of facts from which the inference could be drawn that a substantial risk of serious harm exists” and whether the official actually “dr[e]w the inference.” Farmer, 511 U.S. at 837, 114 S.Ct. 1970.

Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a fact-finder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious.

Id. at 842, 114 S.Ct. 1970 (citation omitted).

Interestingly, this view of circumstantial evidence and obviousness permits “objective evidence” to influence the first portion of the subjective analysis, ie., whether the prison official was aware of the relevant facts. In medical cases particularly, objective standards of proper care may be introduced as circumstantial evidence of what a medical provider knew. See Mata v. Saiz, 427 F.3d 745, 757-58 (10th Cir. 2005) (finding that prison regulations about treatment of chest pain could be circumstantial evidence of a prison medical provider’s knowledge of the seriousness of such pain); see also LeMarbe v. Wisneski, 266 F.3d 429, 436-38 & n.6 (6th Cir. 2001) (accepting as circumstantial evidence a physician’s affidavit that any medically educated individual would have realized that the prisoner in question faced an extreme and obvious risk from bile leaking into his abdominal cavity).

In this light, the Court analyzes the subjective prong as to each Defendant.

a. Davis (2004-05)

The Court has already concluded that no reasonable jury could find an objectively serious condition during the time period in which Davis interacted with Vasquez. Even if the jury could find otherwise, the Court would find that Vasquez lacks evidence to satisfy the subjective component as to Davis. In terms of what Davis knew, the only relevant fact to which Vasquez points is Davis’s confirmation in May 2005 that Vasquez had chronic HCV. Vasquez does not offer any evidence showing that this should lead to an inference of a substantial risk of serious har