Luther Johnson v. LISA PETERSON, Head Care Administrator at Allen Oakwood Institution in her…

NOT RECOMMENDED FOR PUBLICATION
File Name: 21a0238n.06
No. 20-3101
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
LUTHER JOHNSON,
Plaintiff-Appellant,
v.
LISA PETERSON, Head Care
Administrator at Allen Oakwood
Institution in her individual capacities;
Doctor OSCAR CATALDI, Lead Doctor
at Allen Oakwood Correctional Institution
in his individual capacities; Doctor
CARLOS A. PEREZ, Lead Doctor at Allen
Oakwood Correctional Institution in his
individual capacities; ROBERT
YOCHUM, Registered Nurse at Allen
Oakwood Correctional Institution in his
individual capacities,
Defendants-Appellees.
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ON APPEAL FROM THE UNITED STATES
DISTRICT COURT FOR THE NORTHERN
DISTRICT OF OHIO
OPINION
BEFORE: STRANCH, LARSEN, and NALBANDIAN, Circuit Judges.
JANE B. STRANCH, Circuit Judge. Plaintiff Luther Johnson, an inmate suffering from
chronic Hepatitis C (HCV), appeals the district court’s dismissal on the pleadings of his Eighth
Amendment claims. Because the Ohio Department of Rehabilitation and Correction (ODRC) has
implemented a new treatment protocol that may impact Johnson’s claims, and because Defendants
argue for the first time on appeal that they are entitled to qualified immunity, we REMAND this
case to the district court for consideration of these issues in the first instance.

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No. 20-3101, Johnson v. Peterson
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Johnson has suffered from HCV for over two decades. A 2007 biopsy of Johnson’s liver
revealed that he had stage one liver fibrosis and, following worsening symptoms and multiple
grievances, a liver biopsy in 2016 showed that he had fatty liver disease and stage two fibrosis.
According to Johnson, Defendants denied his requests to treat him with the recommended
medication, because only inmates with stage three or higher fibrosis were eligible under ODRC’s
HCV treatment protocol.
Johnson’s pro se suit alleging an Eighth Amendment violation, filed in February 2018, was
dismissed on the pleadings in January 2020. Johnson appeals, and Defendants again raise their
arguments on the pleadings and now argue they are entitled to qualified immunity.
During Johnson’s proceedings below, another group of Ohio inmates filed a putative class
action alleging that their Eighth Amendment rights were violated when they were denied HCV
medication under Ohio’s treatment policy. See Mann v. Ohio Dep’t of Rehab. & Corr., 814 F.
App’x 134, 135 (6th Cir. 2020) (per curiam). Following dismissal of their claims, and during their
appeal, ODRC modified its HCV treatment protocol, expanding eligibility for medication and
providing medication to one of the plaintiffs, and Defendants raised qualified immunity for the
first time. See id. In view of this “evolving setting,” we decided in August 2020 to remand the
case to the district court to “address these issues in the first instance.” Id.
This case has unfolded in a very similar “evolving setting.” Id. The parties agree that
ODRC has modified its protocols for treating HCV, but the record does not contain information
about the contours of the new protocol, how it may impact Johnson’s eligibility for treatment, or
the progression of Johnson’s HCV after 2017. In addition, Defendants’ asserted qualified
immunity defense was briefed for the first time on appeal, so the district court has not had the
opportunity to consider it. We therefore follow Mann and remand this case to the district court to

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No. 20-3101, Johnson v. Peterson
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address, in the first instance, “whether qualified immunity bars [Johnson’s] money-damages
claims” and “whether the new prison policy otherwise alters the landscape of this litigation.” Id.
at 135–36. We “stand ready to entertain a second appeal,” should the parties choose to appeal the
district court’s decision following remand. Id. at 136.

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