Case 3:0125-acvt--0060090607--URNDMDoDcoucmuemnet n5t319 Filed 05/18/15 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLANIA

MUMIA ABU-JAMAL, BRET

:

GROTE, AND ROBERT BOYLE

:

:

Plaintiffs,

:

:

v.

:

:

JOHN KERESTES, Superintendent :

State Correctional Institution Mahanoy :

:

GEISINGER MEDICAL CENTER :

:

Defendants.

:

Case No. ELECTRONICALLY FILED

BRET GROTE, for his Verified Complaint hereby alleges as follows: JURISDICTION
1. This is an action for injunctive relief for violations of the First, Fifth, and Fourteenth Amendments of the United States Constitution pursuant to 42 U.S.C. § 1983.
2. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(3) and ). 3. This Court is the appropriate venue pursuant to 28 U.S.C. § 1391(b)(2)
because the events and omissions giving rise to the claims occurred in the Middle District of Pennsylvania.

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PARTIES

1. Mumia Abu-Jamal is an African-American currently incarcerated in the

custody of the Pennsylvania Department of Corrections. Mr. Jamal’s case is

well-known world-wide and is considered by many to be a case of injustice.

2. Bret Grote is an attorney duly admitted to practice in the Commonwealth of

Pennsylvania. He has represented Mumia Abu-Jamal with regard to his

First Amendment rights since October 2014, and with regard to his health

and medical care since March 2015. He is one of the attorneys for Mr.

Abu-Jamal in the recent case of Abu-Jamal v. Kane, 2015 WL 1932236

(M.D.Pa. 2015).

3. Robert J. Boyle is an attorney duly admitted to practice in the State of New

York. He is also admitted to practice in the United States District Courts

for the Southern, Eastern, Western and Northern Districts of New York,

the Southern District of Texas and the United States Court of Appeals for

the Second and Fourth Circuits. Mr. Boyle has been working of counsel

with Mr. Grote on Mr. Abu-Jamal’s legal matters.

4. Defendant John Kerestes is the Superintendent at SCI Mahanoy. Defendant

Kerestes is responsible for the overall operation of SCI Mahanoy.

Defendant Kerestes has the power to authorize attorney and family visits

with individuals in the custody of SCI Mahanoy when they are in a hospital

off of prison grounds. Defendant Kerestes is sued in his official capacity.

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5. Defendant Geisinger Medical Center is the hospital facility where plaintiff Abu-Jamal has been held incommunicado. Defendant Geisinger Medical Center has a policy of prohibiting all communication between hospital patients in the custody of the Department of Corrections (DOC) and their lawyers, family, friends, and others not in the employ of the DOC or Geisinger Medical Center. Defendant Geisinger Medical Center has the power to authorize attorney and family visits with hospital patients who are in the custody of the DOC. This authority is exercised in conjunction with DOC authority, thus constituting state action. STATEMENT OF FACTS
Introduction 6. As explained more fully infra., since May 12, 2015 the defendants have barred the plaintiff attorneys from visiting with Mr. Abu-Jamal, who is currently hospitalized in Geisinger Medical Center. Indeed, they have prohibited all communication between Mr. Abu-Jamal and anyone, with the exception of one 15-minute phone call between him and his wife, Wadiya Jamal, who has been authorized by Mr. Abu Jamal to receive any and all medical information.1

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"!The Declaration of Wadiya Jamal was signed prior to the her being notified that a phone call was permitted.

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7. Injunctive relief is necessary to permit the plaintiff attorneys to perform their professional duties for their client and to secure Mr. Abu-Jamal’s Fifth and Fourteenth Amendment right of access to the courts.

Background

8. For the past several months, Mr. Abu-Jamal has been suffering from a

variety of medical problems. These include a skin rash over 70% of his

body of unknown origin, abnormal blood work, and one episode of diabetic

shock that could have resulted in death. There has been no diagnosis.

9. The medical issues began to surface in about August 2014. At that time he

began to experience itching over his whole body. The itching was reported

to facility staff who prescribed creams. The creams had no effect and the

rash spread. No effort was made to determine the cause of the rash.

10. The rash spread and, on two occasions became infected. While the

infection was treated with antibiotics, no efforts were made to diagnose the

cause of the rash. Mr. Abu-Jamal had an allergic reaction to one of the

antibiotics administered.

11. By February 2015, the rash had spread to over 70% of Mr. Abu-Jamal’s

body. It was accompanied by lower extremity and genital edema causing

great discomfort and making it increasingly difficult for Mr. Abu Jamal to

walk.

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12. In late February Mr. Abu-Jamal was prescribed another steroid and

Cyclosporine, an immunosuppressant. There were still no diagnostic

procedures ordered to determine the cause of the rash. A medical note

dated February 19, 2015 recorded the fact that plaintiff Abu-Jamal was

experiencing “increasing peeling off of dry skin at the site of rashes”.

13. On March 6, 2015, blood work was ordered at the facility. The results

showed that Mr. Abu-Jamal’s glucose level had risen to the severely

abnormal level of 419. Prior to that time, Mr. Abu-Jamal’s blood glucose

had always been within normal range.

14. The facility took no action to address the glucose level even though it was

noted in their records. They did not even inform Mr. Abu-Jamal of that test

result.

15. On March 30, 2015, Mr. Abu-Jamal lost consciousness. He was rushed to

Schuylkill Medical Center. Upon testing his blood glucose was found to be

507. He had gone into diabetic shock and was placed in the Critical Care

Unit.

16. He was returned to the prison on April 1. His release papers indicate the

prognosis as “guarded” and include the following medical issues: diabetes,

new onset, encephalopathy secondary to hyperglycemia, dehydration, acute

kidney injury, hyponatremia, hypokalemia, asymptomatic gallstones, skin

rash, anemia and a history of hepatitis C.

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17. The prison continued to administer the drug cyclosporine despite the fact that it is contraindicated for an African-American of Mr. Abu-Jamal’s age who has sudden-onset diabetes.
18. Prior to Mr. Abu-Jamal’s hospitalization, in March 2015, plaintiff attorney Bret Grote was engaged to advocate on behalf of Mr. Abu-Jamal for appropriate medical care. His efforts since that time have included visits, procurement of medical records, and consultation with medical experts.
19. Since that time, the main effort has been trying to get DOC to administer appropriate tests in order to reach a diagnosis that would explain the myriad of serious symptoms experienced by plaintiff Abu-Jamal. In that regard, Plaintiff Grote engaged Corey Weinstein, M.D., to review Mr. Abu-Jamal’s medical records. On April 28, 2015, plaintiff Grote transmitted a medical opinion letter from Dr. Weinstein to the Department of Corrections.
20. Dr. Weinstein opined, inter alia that there should be an “occult malignancy workup” to determine the cause of the still-present severe rash as it was indicative of T-Cell Lymphoma. Dr. Weinstein noted: The workup to investigate the cause of the rash is urgent at this time. If it is due to lymphoma or some other serious underlying medical condition then delaying the diagnosis may have severe and even lethal consequences.

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21. On or about May 2, 2015, plaintiff attorney Robert J. Boyle was engaged to

work with plaintiff attorney Grote concerning efforts to secure Mr. Abu-

Jamal adequate medical care, including but not limited to litigation.

22. On Friday May 8, 2015, plaintiff attorney Grote met with Mr. Abu Jamal at

SCI Mahanoy. He observed that the skin rash persisted, and that his skin

had broken open on his ankle. On Saturday May 9, Mr. Abu-Jamal had a

personal visit at the same facility.

23. On Tuesday, May 12, Mr. Abu-Jamal’s wife received a telephone call stating

that Mr. Abu-Jamal had been admitted to the hospital

24. On May 13, plaintiff attorney Grote telephones DOC counsel Laura Neal

and was informed that Mr. Abu-Jamal had been admitted to Geisinger

Medical Center. The stated reason for admission was that SCI Mahanoy

medical staff was concerned about a possible infection in his leg due to the

skin rash.

25. Counsel Neal further informed plaintiff attorney Grote that a biopsy of the

skin, performed on May 4, 2015 at the prison, showed negative results.

However, according to Dr. Weinstein that biopsy was sub-optimal as it did

not include skin from Mr. Abu-Jamal’s trunk. Thus, he stated, the results

may not be reliable. Plaintiff attorney Grote requested a second biopsy.

26. Plaintiff attorney Grote requested that he be permitted to visit with Mr.

Abu-Jamal at Geisinger. Mr. Abu-Jamal’s wife made the same request.

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27. After initially being told that Defendant Kerestes would permit visits from

immediate family members, both plaintiff attorney Grote and Mrs. Abu-

Jamal were told that Mr. Abu-Jamal would be denied all visitation, including

visits with his attorneys, while at Geisinger. Nor would Mr. Abu-Jamal be

permitted to telephone his attorneys and/or his wife.

28. DOC counsel asserted that the prohibition on visitation and phone calls was

the policy of Geisinger Medical Center.

29. When plaintiff Abu-Jamal was hospitalized at Schuylkill Medical Center

from March 30 through April 1, he was permitted visits from immediate

family members on March 31 and April 1. These visits were authorized by

defendant Kerestes and occurred without incident.

30. On Thursday, May 14, plaintiff attorney Grote contacted Geisinger Medical

Center’s litigation counsel, Donald Zaycosky. Mr. Zaycosky agreed to seek

authorization from the Chief Medical Officer and DOC officials to permit

family and attorney visits and phone calls with Mr. Abu-Jamal. Prior to this

filing, on the morning of Monday, May 18, plaintiff Abu-Jamal was granted

a 15-minute phone call with Wadiya Jamal. All communication with his

lawyers remains prohibited, as does all visitation.

31. Neither the DOC nor Geisinger Medical Center have provided any

justification for the total prohibition on communications with plaintiff Abu-

Jamal.

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32. Upon information and belief, Mr. Abu-Jamal remains at Geisinger. However, there has been no communication from Mr. Abu-Jamal to either his attorneys or family since his last visit on May 9, 2015.
33. Neither the attorney plaintiffs nor the family are aware of what medical tests or procedures have been conducted on Mr. Abu-Jamal while he has been at Geisinger.
34. In order for counsel to be able to perform their professional duties for Mr. Abu-Jamal, it is necessary that they meet with him. The denial of such visitation is preventing the plaintiff attorneys from advocating on Mr. AbuJamal’s behalf. This includes but is not limited to preparing litigation for Mr. Abu-Jamal to secure his Eighth and Fourteenth Amendment rights to constitutionally adequate medical care and access to the courts.
35. In addition, Mr. Abu-Jamal himself is being denied access to his attorneys, cannot make requests of them and cannot use them to bring legal actions that they might deem appropriate.
36. There is no adequate remedy at law. Injunctive relief is the only means by which Mr. Abu-Jamal’s rights can be secured.
37. Accompanying this complaint is a motion for a preliminary injunction and temporary restraining order brought on order to show cause. Pending resolution of the motion, plaintiff’s request an order requiring the

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defendants to permit visitation between Mr. Abu Jamal and the plaintiff attorneys and Mr. Abu Jamal and his wife Wadiya Jamal.

CAUSES OF ACTION I.
The actions of the defendants, and each of them, violate the plaintiffs’ First and Fourteenth Amendment rights to freely associate and to practice their profession.
II. The actions of the defendants, and each of them, violate plaintiff Mumia AbuJamal’s Fifth and Fourteenth Amendment right of access to the Courts.
III. The actions of the defendants, and each of them, violate plaintiff Mumia AbuJamal’s First Amendment right of association by prohibiting all communication with his family.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that the Court grant the following relief: A. Grant a preliminary injunction ordering defendants to permit attorney-client
visits between plaintiff attorneys and plaintiff Abu-Jamal at Geisinger Medical Center;

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B. Grant a permanent injunction ordering defendants to permit attorney-client visits whenever plaintiff Abu-Jamal is taken from a DOC facility to receive inpatient medical treatment;
C. Grant a preliminary injunction ordering defendants to permit plaintiff AbuJamal to receive visits from his family while he is at Geisinger Medical Center;
D. Grant a permanent injunction ordering defendants to permit family visits when plaintiff Abu-Jamal is taken from a DOC facility to receive inpatient medical treatment;
E. Grant attorneys’ fees and costs.

/s/ Bret D. Grote Bret D. Grote PA I.D. No. 317273 Abolitionist Law Center P.O. Box 8654 Pittsburgh, PA 15221 Telephone: (412) 654-9070 bretgrote@abolitionistlawcenter.org

/s/ Robert J. Boyle Robert J. Boyle 277 Broadway Suite 1501 New York, N.Y. 10007 (212) 431-0229 Rjboyle55@gmail.com NYS ID# 1772094 Application for pro hac vice Admission pending

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 Case 3:15-cv-00967-RDM Document 178 Filed 08/16/16 Page 1 of 34

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLANIA

MUMIA ABU-JAMAL
Plaintiff,
v.
JOHN KERESTES, Former Superintendent State Correctional Institution Mahanoy

: : : Case No. 15-Cv-00967 : (RDM)(KM) : : : : Judge Robert D. Mariani : :

Theresa DelBalso, Superintendent State : Magistrate Judge Karoline

Correctional Institution Mahanoy

: Mehalchick

Joseph Silva, DOC Director of Bureau : of Health Care Services

Christopher Oppman, former DOC Director of Bureau of Health Care Services
Dr. John Lisiak, SCI Mahanoy

ELECTRONICALLY FILED JURY TRIAL DEMANDED

Dr. Shaista Khanum, SCI Mahanoy

Scott Saxon, Physician’s Assistant, SCI Mahanoy

John Steinhart, Chief Health Care Administrator, SCI Mahanoy

Defendants.

SECOND AMENDED COMPLAINT

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JURISDICTION 1. This is an action for monetary, declaratory, and injunctive relief for
violations of the First, Eighth, and Fourteenth Amendments of the United States Constitution pursuant to 42 U.S.C. § 1983, and violations of Pennsylvania State law. 2. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(3) and (4). The Plaintiff further invokes the supplemental jurisdiction of this Court under 28 U.S.C. Section 1367(a) to hear and adjudicate state law claims. 3. This Court is the appropriate venue pursuant to 28 U.S.C. § 1391(b)(2) because the events and omissions giving rise to the claims occurred in the Middle District of Pennsylvania.
PARTIES 4. Mumia Abu-Jamal is an African-American currently incarcerated in the
custody of the Pennsylvania Department of Corrections (DOC) at the State Correctional Institution at Mahanoy. Mr. Abu-Jamal’s case is well-known world-wide and is considered by many to be a case of injustice. 5. Mr. Abu-Jamal is suffering from chronic hepatitis C. The disease has caused and is causing him severe health problems. He has requested that he be provided with anti-viral medication that would cure his disease but the defendants have denied that treatment.
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6. Defendant John Kerestes was the Superintendent, also known as the Facility Manager, at SCI Mahanoy. Defendant Kerestes was responsible for the overall operation of SCI Mahanoy during the time giving rise to this complaint. Defendant Kerestes had the power to authorize attorney and family visits with individuals in the custody of SCI Mahanoy when they are in a hospital off of prison grounds. In addition, he was responsible for the well-being and health of individuals incarcerated at SCI Mahanoy including but not limited to their access to health care treatment, including their access to hepatitis C treatment. Defendant Kerestes is sued in his individual capacity. At all relevant times hereto, defendant Kerestes acted under color of state law.
7. Defendant Theresa Delbalso is the Superintendent at SCI Mahanoy. Defendant Delbalso is responsible for the overall operation of SCI Mahanoy. Defendant Delbalso has the power to authorize attorney and family visits with individuals in the custody of SCI Mahanoy when they are in a hospital off of prison grounds. In addition, she is responsible for the well-being and health of individuals incarcerated at SCI Mahanoy, including their access to hepatitis C treatment. Defendant DelBalso is sued in her official capacity for injunctive relief and not for money damages. She has been substituted as a defendant pursuant to Fed.R.Civ.P. 25(d). At all relevant times hereto, defendant Delbalso acted under color of state law.
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8. Defendant Christopher Oppman was the Director of the Bureau of Health Care Services of the DOC during the time giving rise to the claims raised herein. According to the DOC website, the Bureau of Health Care Services “is responsible for supervising and monitoring the delivery of all medical/dental services…throughout the state correctional system.” Defendant Oppman is responsible for the formulation and implementation of health care policies within the DOC, including policies concerning access to treatment for hepatitis C. He is sued in his individual capacity for money damages. At all relevant times hereto, defendant Oppman acted under color of state law.
9. Defendant Joseph J. Silva is the Director of the Bureau of Health Care Services of the DOC. According to the DOC website, the Bureau of Health Care Services “is responsible for supervising and monitoring the delivery of all medical/dental services…throughout the state correctional system.” Defendant Silva is responsible for the formulation and implementation of health care policies within the DOC including policies for access to treatment for hepatitis C. Defendant Silva is sued in his official capacity only for injunctive relief and not money damages. He has been substituted as a defendant pursuant to Fed.R.Civ.P. 25(d). At all relevant times hereto, defendant Silva acted under color of state law.
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10. Defendant John Lisiak is a Doctor at SCI Mahanoy. Defendant Lisiak is sued in his individual capacity for money damages and official capacity for injunctive relief. At all relevant times hereto, defendant Lisiak acted under color of state law.
11. Defendant Shaista Khanum is a Doctor at SCI Mahanoy. Defendant Khanum is sued in his individual capacity for money damages and official capacity for injunctive relief. At all relevant times hereto, defendant Khanum acted under color of state law.
12. Defendant Scott Saxon is a Physician’s Assistant at SCI Mahanoy. Defendant Saxon is sued in his individual capacity for money damages and official capacity for injunctive relief. At all relevant times hereto, defendant Saxon acted under color of state law.
13. Defendant John Steinhart is the Corrections Health Care Administrator at SCI Mahanoy. According to the DOC Medical Procedures Manual, Defendant Steinhart is responsible for overseeing delivery of medical services to the inmates at SCI Mahanoy via the medical vendor and department staff. Defendant Steinhart is sued in his individual capacity for money damages and official capacity for injunctive relief. At all relevant times hereto, defendant Steinhart acted under color of state law.
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STATEMENT OF FACTS Background 14. Mumia Abu-Jamal, now 62 years old, has been incarcerated since 1981. In the late 1960’s and early 1970’s he was a member of the Philadelphia chapter of the Black Panther Party for Self Defense (BPP). That organization, founded in 1966 in Oakland, California, had a ten point program that called for community control of the institutions in the Black community including community control of the police, health care and education. 15. According to disclosures made to Congress in the mid-1970’s, the Black Panther Party was the main target of the Federal Bureau of Investigation’s (FBI) counterintelligence program, known as COINTELPRO. COINTELPRO’s stated aim was to “neutralize” Black organizations and their leaders through a variety of illegal and/or unconstitutional actions. (See Final Report Book III, Senate Select Committee On Government Operations at http://www.aarclibrary.org/publib/church/reports/book3/pdf/ChurchB3 _1_COINTELPRO.pdf). 16. As a member of the Philadelphia chapter of the BPP Plaintiff Abu-Jamal often spoke out against racism, particularly the violence of the police directed at the Black community. Aware of his activities, the FBI placed
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him on its Security Index solely due to his public speeches for the Black Panther Party. (See “FBI File Tracks Abu-Jamal Through His Teenage Years” Philadelphia Inquirer, June 12, 1995, http://articles.philly.com/1995-06-12/news/25690155_1_mumia-abujamal-officer-daniel-faulkner-wesley-cook). 17. By the late 1970’s Plaintiff Abu-Jamal was a well-known print and radio journalist. He was known as the “Voice of the Voiceless” and continued writing about issues affecting the Black community. He was, among other things, a vocal supporter of the MOVE organization and served a term as the President of the Philadelphia Chapter of the National Association of Black Journalists. 18. On December 9 1981, Mr. Abu-Jamal was arrested following a shooting incident that left Philadelphia Police Officer Daniel Faulkner dead and Mr. Abu-Jamal severely wounded. 19. Plaintiff Abu-Jamal was charged with Officer Faulkner’s murder. He was convicted and sentenced to death. He has always maintained his innocence. 20. After his sentencing Plaintiff Abu Jamal was transferred to the custody of the Pennsylvania Department of Corrections (DOC) and placed on death row. He was to be on death row for nearly 30 years. 21. During that time, Plaintiff Abu-Jamal made numerous applications to both state and federal courts to vacate his conviction. These applications
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included new evidence that provided compelling proof of his innocence. The numerous injustices in his case led to a world-wide movement calling for his release. 22. At the same time, many police organizations, most notably the Fraternal Order of Police (FOP), engaged in a campaign calling for Mr. Abu-Jamal’s execution. See “FOP Outraged Over Court’s Consideration Of New Trial For Jamal” at http://www.fop.net/causes/faulkner/3rdcircuit.shtml. 23. All applications for a new trial have, to date, been denied. However, in 2011, the United States Court of Appeals for the Third Circuit affirmed the order of the lower court that set aside the death sentence. Abu-Jamal v. Secretary, Pennsylvania Department of Corrections, 643 F.3d 370 (3d Cir. 2011). 24. The Philadelphia District Attorney’s Office chose not to seek to reinstate the death sentence. Mr. Abu-Jamal was then placed by the DOC into general population. 25. As he has done throughout his incarceration, Mr. Abu-Jamal has commented orally and through writings, on the issues of the day (See www.prisonradio.org). 26. But there have been extraordinary efforts to deny Mr. Abu-Jamal his First Amendment rights. In 2014 Mr. Abu-Jamal was invited to send a statement that would serve as the commencement address at Goddard College, his alma mater. At the urging of the Fraternal Order of Police, the
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Pennsylvania legislature passed, and the Governor signed a law that became commonly known as the “Silence Mumia Act.” 27. Under it, a court would have had the authority to stop publication of anything written or said by a prisoner that could have caused distress to the prisoners’ victims and/or the victims’ loved ones. 28. On April 28, 2105, the law was declared unconstitutional on its face. Jamal v. Kane, -- F.Supp.3d --, 2015 WL 1932236 (M.D.Pa. 2015).
Hepatitis C 29. Hepatitis C (HCV) is a virus that infects cells of the liver. Approximately
75-85 percent of individuals infected with the HCV will develop chronic hepatitis C, causing progressive inflammation of the liver. 30. Inflammation caused by the virus can lead to scarring, known as fibrosis, and extreme scarring, known as cirrhosis, both of which affect liver functioning. 31. One of the ways liver inflammation is measured is on the Metavir scale. On that scale F0 means no fibrosis and F4 means cirrhosis. 32. Chronic hepatitis C patients with any liver scarring, i.e. greater than F0 are at a greater risk of rapid disease progression. 33. At least twenty percent of chronic hepatitis C patients will develop cirrhosis, and between 2 and 7% of them per year will develop liver cancer.
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34. About 19% of those who develop cirrhosis will go on to develop liver cancer.
35. Approximately 20% of all those with chronic hepatitis C will die from complications of the disease.
36. In the United States, hepatitis C causes more deaths than all other infectious diseases combined.
37. Chronic hepatitis C often causes complications outside of the liver, including anemia and diabetes.
38. Between 20-40% of chronic hepatitis C patients have cutaneous (skin) manifestations of the disease. Among them are the relatively rare conditions of lichen planus and necrolytic acral erythema (NAE), and more common ones such as psoriasis, eczema and pruritus (persistent itching). In or about 2013 new anti-viral drugs became available. These drugs have a 90-95% cure rate and few, if any, side effects. These drugs, two of which are Harvoni and Sovaldi have become the standard of care in the medical community.
39. Because of the numerous benefits of early treatment, the American Association for the Study of Liver Diseases (AASLD), recommends that everyone with chronic hepatitis C be treated with those anti-viral drugs irrespective of disease stage on the Metavir scale or prognosis for progression.
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40. The Center for Disease Control (CDC) has issued its own guidelines that state that the guidelines issued by the AASLD are the standard of care for the treatment of hepatitis C. Hepatitis C and The Policy of the Pennsylvania DOC
41. The Pennsylvania Department of Corrections, through its Bureau of Health Care Services is charged with delivery of necessary medical care to inmates under the jurisdiction of the DOC.
42. There are at least 5000 inmates under the jurisdiction of the DOC who have active, i.e. chronic, hepatitis C.
43. In 2013, when the current anti-viral drugs became available, the DOC, through its Bureau of Health Care Services, headed by defendant Oppman, and with his knowledge and approval, ceased treating all inmates in the custody of the DOC who have active, i.e. chronic, hepatitis C.
44. This policy continued under the direction of defendant Oppman throughout 2014 and most of 2015.
45. In late 2015, defendant Oppman formulated and adopted a medical protocol concerning who would be treated and not be treated with hepatitis C anti-viral drugs.
46. The hepatitis C protocol was added as Appendix 16-B to the Access to Health Care Procedures Manual of the Department of Corrections and is
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part of the DOC Policy Statement 13.1.1 entitled “Management and Administration of Health Care”. 47. Under that policy, only inmates with decompensated cirrhosis with bleeding are authorized to receive the anti-viral drugs. 48. When the disease has advanced to decompensated cirrhosis with bleeding, a person has already suffered irreversible damage to their health and is at grave risk of death. 49. In addition, long before the disease has progressed to that stage, individuals suffering from it have suffered irreversible damage to their liver, decreased liver function and are at a significantly higher risk of developing liver cancer. Many also experience severe extrahepatic manifestations of the disease that adversely affect quality of life. 50. The DOC Policy Statement requires that copies of the Procedures Manual be delivered to each Facility Manager (Superintendent). 51. This policy was adopted and implemented by defendants Oppman, Kerestes Steinhart and others even though they knew that denying treatment to inmates who did not fall under the protocol had no medical justification, causes harm to those inmates’ health, and places them at risk of death. 52. The defendants, and each of them, adopted and implemented this protocol even though they knew that the standard of care in the community, as
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articulated by the AASLD and CDC is to treat all who have chronic hepatitis C. 53. The protocol remains in effect and is administered and enforced by defendants Silva, the current head of the Bureau of Health Care Services, defendant Delbalso, the Superintendent of SCI Mahanoy and defendant Steinhart, Chief Health Care Administrator at SCI Mahanoy. 54. As more fully discussed infra., it was pursuant to the refusal of the DOC to treat anyone between 2013 and 2015 and the policy adopted in 2015 that the plaintiff Mumia Abu-Jamal has been denied and is being denied hepatitis C treatment with the anti-viral medications. The Plaintiff’s Medical Care 55. During routine blood work performed by DOC medical staff in 2012, Plaintiff Abu-Jamal tested positive for the Hepatitis C antibody. He likely contracted the virus during a 1981 blood transfusion. 56. At that time and for the next three years, no one in the DOC medical staff ordered follow-up testing to determine whether his disease was chronic. 57. That Mr. Abu-Jamal had tested positive for the hepatitis C anti-body is noted in his medical records that are in the possession of the DOC. 58. In or about August 2014, Mr. Abu-Jamal’s hepatitis C infection began to manifest itself through a severe skin rash that itched incessantly
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59. In that month Mr. Abu Jamal began to experience itching over his whole body. Plaintiff went to sick call on several occasions. Medical personnel prescribed steroid creams. They did not alleviate the rash or the itching.
60. On or about February 11, 2015 defendant Dr. Lisiak noted that the itchy rash covered 70% of Mr. Abu-Jamal’s body.
61. On February 16 and February 17, Plaintiff again went to sick call and saw defendant Dr. Khanum. He too noted that the rash covered 70% of Plaintiff’s body. Plaintiff told Dr. Khanum that he felt dizzy and experienced some blurred vision.
62. Plaintiff’s skin became increasingly dark and scaly. He continually itched and was in near constant pain and discomfort. He began using a wheelchair whenever he left the infirmary area.
63. On February 20, 2015, defendant Dr. Khanum ordered that Plaintiff be admitted to the facility infirmary.
64. On that same date, defendant Dr. Lisiak noted that Plaintiff’s blood glucose had risen to an above-normal 167. No one at SCI Mahanoy, including but not limited to defendants Lisiak, Saxon, and Khanum told the Plaintiff that his blood glucose was abnormally high.
65. Although Mr. Abu Jamal’s medical records noted that he had tested positive for the hepatitis C antibody years earlier, none of the medical personnel, including but not limited to defendants Lisiak, Saxon, and
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Khanum ordered a test to determine whether the infection was active and/or whether hepatitis C might be the underlying cause of the skin condition. 66. In late February 2015 Mahanoy medical staff, with the knowledge and approval of defendants Khanum, Lisiak and Saxon prescribed another steroid, oral prednisone, and Cyclosporine, an immunosuppressant. The rash persisted. A medical note dated February 19, 2015 recorded the fact that plaintiff Abu-Jamal was experiencing “increasing peeling off of dry skin at the site of rashes”. 67. Blood work taken on March 6, 2015 showed that Mr. Abu-Jamal’s glucose level had risen to the severely abnormal level of 419. These results were reviewed by defendants Lisiak, Khanum and Saxon. 68. Because the glucose levels were noted in the medical records, defendants Lisiak, Khanum, and Saxon knew or should have known that plaintiff AbuJamal had a dramatically elevated glucose level indicating a dangerous case of hyperglycemia. 69. Defendants Lisiak, Khanum, and Saxon took no action to address the glucose level. There was no treatment provided, nor any follow up testing of his glucose level. They did not even inform Mr. Abu-Jamal of that test result.
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70. Defendants Lisiak, Khanum and Saxon continued to prescribe cyclosporine notwithstanding that it is medically contraindicated for an African American with sudden onset diabetes.
71. In approximately the third week of March, 2015 an inmate at Mahanoy saw defendant Kerestes in one of the facility’s corridors. He told defendant Kerestes that Mr. Abu-Jamal was in a seriously weakened state and was suffering.
72. Upon information and belief defendant Kerestes took no action as a result of that inmate’s statements to him.
73. On March 30, 2015, Mr. Abu-Jamal lost consciousness. He was rushed to Schuylkill Medical Center. Upon testing his blood glucose was found to be 507. He had gone into diabetic shock and was placed in the Critical Care Unit.
74. Untreated hyperglycemia is a potentially fatal condition. 75. Plaintiff returned to the prison on April 1. His release papers indicate the
prognosis as “guarded” and include the following medical issues: diabetes, new onset, encephalopathy secondary to hyperglycemia, dehydration, acute kidney injury, hyponatremia, hypokalemia, asymptomatic gallstones, skin rash, anemia and a history of hepatitis C. 76. In the weeks following the diabetic shock, Mr. Abu Jamal experienced fatigue, episodes of “brain fog” and emotional distress.
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77. Mr. Abu Jamal’s blood work revealed, and continues to reveal abnormalities, including a consistently below-normal-range hemoglobin count.
78. Although the Schuylkill release order noted that Mr. Abu Jamal had a “history” of hepatitis C, none of the defendants, including defendants Kerestes, Steinhart, Lisiak, Khanum, or Saxon, took any steps to investigate whether the hepatitis C may be the cause of the rash and/or other medical issues.
79. In March 2015, Mr. Abu Jamal retained counsel to advocate on behalf of Mr. Abu-Jamal for appropriate medical care. These efforts have included visits, procurement of medical records, consultation with medical experts and communications with the DOC urging adequate health care.
80. During and after Mr. Abu-Jamal’s March 30, 2015 hospitalization, defendant Steinhart frequently spoke on the phone with Mr. Abu-Jamal’s wife. During these conversations he received regular, daily updates on Mr. Abu-Jamal’s ongoing health problems, including the skin condition that had yet to have its underlying cause diagnosed.
81. In the weeks and months that followed, counsel communicated with defendants Kerestes and Steinhart via letter in an effort to secure adequate medical care for Mr. Abu-Jamal. Copies of some of the correspondence
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were sent to defendant Oppman and John Wetzel, Secretary of the Pennsylvania Department of Corrections. 82. Requests included, but were not limited to treatment for the skin condition, a hepatitis C workup and an overall health plan to determine the underlying cause(s) of Plaintiff’s health issues. 83. For example, on or about April 5, 2015, counsel sent a letter to defendant
Kerestes recounting the events of March 30, 2015 and the fact that it occurred after several months of adverse health symptoms, including abnormal blood work. Among other things counsel requested that a doctor of Mr. Abu-Jamal’s own choosing be permitted to examine him. Plaintiff’s counsel sent Defendants Oppman and Steinhart copies of that letter. 84. None of the defendants responded to counsel’s letter. 85. On or about April 6, 2015, counsel sent letters to both defendant Kerestes and defendant Steinhart. Counsel told defendants Steinhart and Kerestes, inter alia, that the plaintiff’s blood sugar remained abnormal. Counsel noted that the blood sugar “and other symptoms required specialized diagnostic and treatment care.” 86. Neither defendant Kerestes nor defendant Steinhart responded to counsel’s letter.
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87. On or about April 11, 2015, Plaintiff submitted a grievance to the SCI Mahanoy Facility Grievance Coordinator. The grievance stated, inter alia that medical staff at Mahanoy had failed to properly diagnose and monitor his health. He requested, inter alia, a detailed health care plan and the opportunity to be examined by a doctor of his own choosing.
88. On or about April 28, 2015, defendant Steinhart responded to the grievance. He denied the grievance stating that Mr. Abu Jamal’s medical needs were being met. Defendant Steinhart based his denial on his own review of plaintiff’s medical records.
89. Mr. Abu Jamal filed a timely appeal from that denial. He stated that the failure to administer adequate health care had caused serious harm, including hyperglycemia and the skin rash and the failure to determine and its underlying cause.
90. On or about May 26, 2015 (after plaintiff’s release from Geisinger Medical Center, discussed infra.), defendant Kerestes upheld the denial of the grievance. In that denial he stated that he had he had reviewed it and defendant Steinhart’s response and found that response to be “appropriate”. The grievance denial failed to address at all Mr. AbuJamal’s request for a diagnostic workup to determine the underlying cause of his health care issues.
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91. On April 28, 2015, counsel transmitted a medical opinion letter from the medical expert to the Department of Corrections via DOC counsel.
92. The expert opined, inter alia that there should be an “occult malignancy workup” to determine the cause of the still-present severe rash and anemia as both are indicative of T-Cell Lymphoma. He noted: The workup to investigate the cause of the rash is urgent at this time. If it is due to lymphoma or some other serious underlying medical condition then delaying the diagnosis may have severe and even lethal consequences.
93. On or about May 12, 2015, Mr. Abu-Jamal experienced extreme pain in his lower extremities when showering. Later that day, he was removed from the facility and moved to Geisinger Medical Center
94. Counsel contacted SCI Mahanoy. He requested that he be permitted to visit with Mr. Abu-Jamal at Geisinger. Mr. Abu-Jamal’s wife made the same request.
95. Defendant Kerestes stated that he would permit visits from immediate family members. But before any visits took place, both counsel and Mrs. Jamal were advised that defendant Kerestes had denied all visitation, including visits with his attorneys so long as he remained at Geisinger. Nor would Mr. Abu-Jamal be permitted to telephone his attorneys and/or his wife.
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96. Plaintiff’s counsel spoke with DOC counsel. The latter asserted that the prohibition on visitation and phone calls was the policy of Geisinger Medical Center and not the DOC. In fact, during a prior hospitalization at Schuylkill Medical Center, Mr. Abu Jamal received visits from his attorney and immediate family.
97. On Thursday, May 14, counsel contacted Geisinger Medical Center’s litigation counsel. Counsel agreed to seek authorization from Geisinger’s Chief Medical Officer and DOC officials to permit family and attorney visits and phone calls with Mr. Abu-Jamal.
98. On Monday, May 18, plaintiff Abu-Jamal was granted a 15-minute phone call with his wife. However, he was not permitted visitation with his attorneys or family during his entire stay at Geisinger.
99. At about this time, counsel for the Department of Corrections informed plaintiff’s counsel that because this matter had moved toward litigation, plaintiff’s counsel should send all communications regarding Mr. AbuJamal, including but not limited to health care concerns, to DOC counsel and not DOC officials.
100. During his May 12, 2015 to May 19, 2015 stay at Geisinger numerous diagnostic tests were conducted. Blood work showed consistently low hemoglobin levels indicating anemia.
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101. While those tests and a subsequent bone marrow biopsy ruled out some serious conditions, including some cancers, the underlying cause(s) of Mr. Abu-Jamal’s health problems, including the rash and anemia, were not determined.
102. A CT scan performed at Geisinger noted irregularities in the architecture of plaintiff’s liver, a sign of cirrhosis.
103. No hepatitis C workup was performed at Geisinger Medical Center. 104. The discharge report from Geisinger dated May 18, 2015 noted that Mr.
Abu-Jamal might be a suitable candidate for hepatitis C treatment. This report was placed into plaintiff’s medical records at SCI Mahanoy. 105. None of the defendants’ including but not limited to defendants Lisiak, Khanum, Kerestes or Steinhart ordered a hepatitis C blood test to determine whether the disease was chronic. 106. For a period of time after his return from Geisinger, plaintiff’s overall health improved and symptoms from the skin condition eased. 107. By mid-June 2015, however, the skin condition intensified. The rash spread throughout plaintiff’s body and he experienced constant itching. 108. As DOC counsel had directed that all communications regarding plaintiff’s medical issues be sent to Counsel’s Office and not DOC officials directly, these matters were brought to the defendants’ attention through communications from plaintiff’s counsel to DOC counsel. Upon
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information and belief, the content of those letters was shared with defendants Kerestes, Steinhart and Oppman. 109. For example, in June 2015, plaintiff’s counsel sent a letter to DOC counsel requesting, inter alia, that blood work be performed to determine whether plaintiff’s hepatitis C was active as that disease could be the underlying cause of his health issues, including the skin condition, anemia and hyperglycemia. 110. Neither the defendants, nor their counsel, responded to that letter 111. Meanwhile, on June 25, 2015, Plaintiff filed a timely appeal to the DOC Central Office of the medical care grievance discussed supra. He argued that there had yet to be any diagnostic inquiry into his health issues given his “severe adverse health symptoms”. There has not been, Mr. Abu-Jamal argued, a determination of the “underlying causation responsible for my health related issues.” 112. In or about July 2015, plaintiff’s counsel sent another letter to DOC counsel. That letter enclosed a report from a physician who had visited plaintiff at SCI Mahanoy. 113. The report stated, inter alia, that in the physician’s opinion, the skin condition was an extrahepatic manifestation of hepatitis C. 114. In that same letter plaintiff’s counsel requested that bloodwork to determine whether the hepatitis C was active be done forthwith.
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115. Neither the defendants nor their counsel responded to the letter from plaintiff’s counsel.
116. In or about late July 2015, hepatitis C bloodwork performed by DOC medical staff at Mahanoy revealed a viral load, meaning that plaintiff has active hepatitis C and that the disease is chronic.
117. On or about August 13, 2015, DOC Central Office advised Mr. AbuJamal that the appeal of the medical care grievance had been referred to “Central Office” for further review. The Bureau or Office taking the action was listed as the “Bureau of Health Care Services”, then headed by defendant Oppman.
118. On or about September 24, 2015, the DOC Central Office affirmed the denial of plaintiff’s medical care grievance. The denial noted Mr. AbuJamal’s admission to Schuylkill in March but did not acknowledge his admission to Geisinger in May, his skin condition, the CT scan at Geisinger that was consistent with cirrhosis and/or Mr. Abu-Jamal’s request for a treatment plan for his health issues.
119. On several occasions between late July 2015 and mid-September 2015 plaintiff requested from his physicians, including but not limited to defendants Lisiak and Khanum, as well as consulting infectious disease specialist Ramon Gadea, that his hepatitis C be treated with either Harvoni or Sovaldi, the two leading anti-viral medications. The physicians told him
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Case 3:15-cv-00967-RDM Document 178 Filed 08/16/16 Page 25 of 34
that the matter was out of their hands, that the DOC was not treating anyone with the anti-virals because of the medications’ cost. 120. Plaintiff ’s disease is progressing. He is, at a minimum, at fibrosis level 2-2.5, a level consistent with significant liver scarring. This places him at risk for rapid disease progression 121. Plaintiff’s platelet levels, also sign of hepatitis C progression, have been consistently below normal since October 2015. 122. Based upon bloodwork performed in June 2016, there is a more than 50% chance that plaintiff’s disease has already progressed to cirrhosis and that he has suffered irreversible liver damage. 123. Plaintiff is now at significantly higher risk of developing liver cancer, portal hypertension (bleeding) and adult onset diabetes. 124. Plaintiff continues to experience itching and severe discomfort from the skin condition. The therapies that have been applied have provided only temporary relief. 125. The skin condition will only be cured if the hepatitis C is treated. 126. Plaintiff’s hemoglobin levels have remained below normal for over one year. Anemia is an extrahepatic manifestation of hepatitis C. 127. On or about August 21, 2015, plaintiff’s counsel filed a motion for a preliminary injunction requesting that the defendants, including but not
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limited to defendants Oppman, Kerestes and Steinhart, provide plaintiff with the anti-viral medication. 128. The defendants, through counsel, have opposed that motion and have refused to provide the plaintiff with that medication. 129. DOC Director of Clinical Services Paul Noel testified at the December 2015 hearing in this lawsuit that the reason for the defendants’ refusal is that plaintiff’s condition does not meet the requirements of the DOC’s hepatitis C protocol. That protocol requires that the disease progress to decompensated cirrhosis with bleeding before the DOC will authorize treatment with anti-viral medications. 130. This hepatitis C policy under which plaintiff has been denied treatment was developed and adopted by defendant Oppman who was then Director of the Bureau of Health Care Services. It is currently enforced by defendant Silva. 131. The policy was formerly enforced on the facility level by defendants Steinhart and Kerestes, and is currently enforced on the facility level by defendants Steinhart and DelBalso. 132. Plaintiff is being denied medically necessary treatment, to wit, the antiviral medication, due to this policy and the actions of the defendants in formulating and implementing it.
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133. The defendants, including but not limited to defendants Oppman, Silva, Kerestes, Delbalso and Steinhart know through correspondence from plaintiff’s counsel, requests made by the plaintiff himself, plaintiff’s own medical records and evidence adduced at the December 2015 hearing in this lawsuit that their refusal to provide plaintiff with the anti-viral medication has caused plaintiff suffering, irreversible damage to his health and places him at risk of death.
134. In addition, the defendants know that the DOC protocol falls below the standard of care in the community. DOC Director of Clinical Services Paul Noel testified at the December 2015 hearing that he was aware that the AASLD and CDC have recommended treatment for all with chronic hepatitis C.
135. The sole basis for refusing to provide the anti-viral drugs to plaintiff is monetary cost
136. There is no medical justification for failing to provide the anti-viral drugs to the plaintiff.
137. Plaintiff has no adequate remedy at law.
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CAUSES OF ACTION Count I – Deprivation of Eighth Amendment Right to Medical Care for
Hepatitis C (Against Defendant Kerestes in his individual capacity for money damages, against
Defendants Oppman, Lisiak, Khanum, Saxon, and Steinhart in their individual capacities for money damages, and official capacities for injunctive relief and against
Defendants DelBalso and Silva in their official capacities for injunctive relief) 138. Plaintiff re-alleges paragraphs 1-137 as if fully stated herein. 139. Defendants Kerestes, Oppman, Lisiak, Khanum, Saxon, DelBalso Steinhart and Silva violated and, if injunctive relief is not issued will continue to violate, Plaintiff’s Eighth Amendment right to be free from cruel and unusual punishment through their deliberate indifference to his Hepatitis C. These Defendants have failed and are failing to treat his Hepatitis C, causing plaintiff serious injuries, pain, and suffering.
Count II – Deprivation of Eighth Amendment Right to Medical Care for Skin Condition
(Against Defendants Kerestes, Lisiak, Khanum, and Saxon in their individual capacities for money damages)
140. Plaintiff re-alleges paragraphs 1-137 as if fully stated herein. 141. Defendants Kerestes, Lisiak, Khanum and Saxon have violated
Plaintiff’s Eighth Amendment right to be free from cruel and unusual punishment through their deliberate indifference to his skin condition. These Defendants have failed to treat his skin condition as a manifestation of hepatitis C, causing plaintiff serious injuries, pain, and suffering.
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Count III – Deprivation of Eighth Amendment Right to Medical Care for Hyperglycemia
(Against Defendants Kerestes, Lisiak, Khanum, and Saxon in their individual capacities for money damages)
142. Plaintiff re-alleges paragraphs 1-137 as if fully stated herein. 143. Defendants Kerestes, Lisiak, Khanum, and Saxon violated Plaintiff’s
Eighth Amendment right to be free from cruel and unusual punishment through their deliberate indifference to his hyperglycemia, resulting in a nearly fatal episode and causing severe injuries, including, diabetic ketoacidosis, new onset diabetes, encephalopathy secondary to hyperglycemia, dehydration, acute kidney injury, hyponatremia, hypokalemia, and severe psychological pain and suffering. Count IV – Negligence – Medical Malpractice for Failure to Treat Plaintiff’s
Hyperglycemia (Against Defendants Lisiak, Khanum, and Saxon in their individual capacities for
money damages) 144. Plaintiff re-alleges paragraphs 1-137 as if fully stated herein. 145. Defendants, Lisiak, Khanum, and Saxon violated plaintiff’s rights under
Pennsylvania state law by their negligent conduct in regard to his hyperglycemia resulting in severe injuries. Defendants violated the standard of care required of medical care professionals and plaintiff’s injuries are the direct result of Defendants’ negligence.
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Count V – Negligence – Medical Malpractice for Failure to Treat Plaintiff’s Hepatitis-C
(Against Defendants Oppman, Lisiak, Khanum and Saxon in their individual capacities for money damages
146. Plaintiff re-alleges paragraphs 1-137 as if fully stated herein. Defendants Oppman, Lisiak, Khanum, and Saxon violated Plaintiff’s rights under Pennsylvania state law by their negligent conduct in regard to his Hepatitis C. These Defendants have failed to treat his Hepatitis C, causing plaintiff serious injuries, pain, and suffering. Defendants violated the standard of care required of medical care professionals and plaintiff’s injuries are the direct result of Defendants’ negligence. Count VI – Medical Malpractice For Failure to Treat Skin Condition. (Against Defendants Oppman, Lisiak, Khanum, and Saxon in their individual
capacities) 147. Plaintiff re-alleges paragraphs 1-137 as if fully stated herein. 148. Defendants, Oppman, Lisiak, Khanum, and Saxon have violated
Plaintiff’s rights under Pennsylvania state law for their negligent disregard to Mr. Abu Jamal’s skin condition. These Defendants have failed to treat his skin condition, causing plaintiff serious injuries, pain, and suffering.
Count VII – First Amendment Right of Association (Against Defendants Kerestes and DelBalso in their Official Capacities
For injunctive relief only) 149. Plaintiff re-alleges paragraphs 1-137 as if fully stated herein.
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150. Plaintiff’s First Amendment right of association was violated by arbitrarily restricting communication and preventing all visitation with his family during his May 2015 hospitalization at Geisinger Medical Center. This will likely happen again if he is hospitalized. PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that the Court grant the following relief:
A. Award compensatory and punitive damages for defendants’ deliberate indifference in failing to treat plaintiff’s Hepatitis C.
B. Award compensatory and punitive damages for the defendants’ deliberate indifference to Mr. Abu-Jamal’s skin condition.
C. Award compensatory and punitive damages for defendants’ deliberate indifference to plaintiff’s hyperglycemia and the resulting injuries.
D. Grant an injunction ordering the defendants to administer to Mr. Abu-Jamal direct-acting anti-viral drugs, such as Harvoni or Sovaldi as treatment for his hepatitis C.
E. Granting Mr. Abu-Jamal the right to an in-person consultation and examination by the medical doctor of his choice under conditions that would permit such an examination and further ordering that if DOC refuses to permit adequate consultation and/or treatment by a doctor of his choice
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inside the prison that the same be ordered to take place outside of DOC custody. F. Grant a permanent injunction ordering defendants to permit attorney-client visits whenever plaintiff Abu-Jamal is taken from a DOC facility to receive inpatient medical treatment; G. Grant a permanent injunction ordering defendants to permit family visits when plaintiff Abu-Jamal is taken from a DOC facility to receive inpatient medical treatment; I. Grant attorneys’ fees and costs.

DATED: August 16, 2016

/s/ Bret D. Grote Bret D. Grote PA I.D. No. 317273 Abolitionist Law Center P.O. Box 8654 Pittsburgh, PA 15221 Telephone: (412) 654-9070 bretgrote@abolitionistlawcenter.org
/s/ Robert J. Boyle Robert J. Boyle 277 Broadway Suite 1501 New York, N.Y. 10007 (212) 431-0229 Rjboyle55@gmail.com NYS ID# 1772094 Admitted Pro Hac Vice
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CERTIFICATE OF SERVICE
I hereby certify that I served a copy of this Second Amended Complaint upon each defendant in the following manner:
Service Via ECF:
For Defendants Kerestes, DelBalso, Silva, Oppman, and Steinhart: Laura Neal, Esquire
Pennsylvania Department of Corrections 1920 Technology Parkway Mechanicsburg, PA 17050 lneal@pa.gov
For Defendants Lisiak, Khanum, and Saxon: Samuel H. Foreman, Esquire Caitlin Goodrich, Esquire sforeman@wglaw.com cgoodrich@wglaw.com

Dated: August 16, 2016

s/ Bret D. Grote Bret D. Grote Abolitionist Law Center P.O. Box 8654 Pittsburgh, PA 15221

34

 
 IN THE UNITED STATES DISTRICT COURT 
 FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 


MUMIA ABU-JAMAL, et aI., 


Plaintiffs,
v.
JOHN KERESTES, et al.

3:1S-CV-00967 (JUDGE MARIANI)

Defendants.

OPINION

I. INTRODUCTION

Presently before the Court is Defendants Lisiak, Khanum, and Saxon's ("the Medical

Defendants") "Partial Motion to Dismiss Plaintiffs Amended Complaint" (Doc. 110).

The First Amended and Supplemental Complaint (Doc. 57) contains claims arising out of

Plaintiff Mumia Abu-Jamal's hospitalization at Geisinger Medical Center from May 12 to May

19,2015, as well as his medical conditions, including his ongoing hepatitis C infection.

Plaintiff Abu-Jamal along with Plaintiffs Brett Grote and Robert Boyle, also Abu­

Jamal's attorneys of record in this matter, initially filed this action on May 18, 2015 claiming

violations of the right to association and access to the courts. (Compl., Doc. 1 at 10).

Plaintiffs alleged that Defendant Kerestes and Defendant Geisinger "barred the plaintiff

attorneys from visiting with Mr. Abu-Jamal" and further "prohibited all communication

between Mr. Abu-Jamal and anyone," with the exception of a short phone call between him

and his wife. (Id. at 3). Subsequently, Plaintiffs Boyle and Grote 'filed notices of voluntary

dismissal (Docs. 17, 18), leaving Abu-Jamal (hereinafter, "Plaintiff') as the only remaining 
 plaintiff.
On November 24, 2015, Plaintiff filed a Supplemental and Amended Complaint (Doc. 57) (hereinafter "Amended Complaint"), which added several defendants, including the Medical Defendants, and which also added Eighth Amendment and state law negligence medical claims related to Plaintiffs hepatitis Cand other conditions. The Medical Defendants now move for dismissal of Count II of the Amended Complaint, entitled "Deprivation of Eighth Amendment Right to Medical Care for Hepatitis C," (see Doc. 57 at 17), arguing that Plaintiff has failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e(a). This Motion (Doc. 110) has been briefed and is ripe for review. For the reasons stated herein, the Court will deny the Medical Defendants' Motion.
II. STANDARD OF REVIEW A complaint must be dismissed under Federal Rule of Civil Procedure 12(b)(6), if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plaintiff must aver "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Though a complaint 'does not need detailed factual allegations, . .. a formulaic recitation of the elements of a cause of action will not do.III DelRio-Mocci v. Connolly Prop.
2 


Inc., 672 F.3d 241,245 (3d Cir. 2012) (citing Twombly, 550 U.S. at 555). In other words, 
 "[~actual allegations must be enough to raise a right to relief above the speculative level." Covington v. Int'I Ass'n of Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013) (internal citations and quotation marks omitted). A court "take[s] as true all the factual allegations in the Complaint and the reasonable inferences that can be drawn from those facts, but ... disregard[s] legal conclusions and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements:' Ethypharm S.A. France v. Abbott Laboratories, 707 F.3d 223, 231, n.14 (3d Cir. 2013) (internal citations and quotation marks omitted).
Twombly and Iqbal require [a district court] to take the following three steps to determine the sufficiency of a complaint: First, the court must take note of the elements a plaintiff must plead to state a claim. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief. Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show[n]-that the pleader is entitled to relief." Iqbal, 556 U.S. at 679 (internal citations and quotation marks omitted). This "plausibility" determination will be a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.
3 


However, even "if a complaint is subject to Rule 12(b)(6) dismissal, a district court 

must permit a curative amendment unless such an amendment would be inequitable or
futile." Phillips v. Cnty. of Allegheny, 515 F.3d 224,245 (3d Cir. 2008).
[E]ven when plaintiff does not seek leave to amend his complaint after a defendant moves to dismiss it, unless the district court finds that amendment would be inequitable or futile, the court must inform the plaintiff that he or she has leave to amend the complaint within a set period of time.
Id.
III. ANALYSIS Count II of Plaintiffs Amended Complaint, entitled "Deprivation of Eighth Amendment Right to Medical Care for Hepatitis C," arises under 42 U.S.C. § 1983. (See Doc. 57 at ~ 1). Section 1983 offers private citizens a cause of action for violations of federal law by state officials. See 42 U.S.C. § 1983. The statute provides, in pertinent part, as follows: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . Id.; see also Gonzaga Univ. v. Doe, 536 U.S. 273, 284-85 (2002); Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). To state a claim under § 1983, a plaintiff must allege "the violation of a right secured by the Constitution and laws of the United States, and must
4 


show that the alleged deprivation was committed by a person acting under color of state 
 law." West v. Atkins, 487 U.S. 42, 48 (1988).
Under the Prison Litigation Reform Act of 1996 (the "PLRA"), a prisoner is required to pursue all avenues of relief available within the prison's grievance system before bringing a federal civil rights action concerning prison conditions. See 42 U.S.C. § 1997e(a); Booth v. Churner, 206 F.3d 289, 291 (3d Cir. 2000). This "exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter V. Nuss/e, 534 U.S. 516, 532 (2002). It has been made clear that the exhaustion requirement is mandatory. See Williams V. Beard, 482 F.3d 637,639 (3d Cir. 2007); see also Booth, 532 U.S. at 741 (holding that the exhaustion requirement of the PLRA applies to grievance procedures "regardless of the relief offered through administrative procedures"); Nyhuis V. Reno, 204 F.3d 65,67 (3d Cir. 2000) (same). "[I]t is beyond the power of [any] court ... to excuse cornpliance with the exhaustion requirement." Nyhuis, 204 F.3d at 73 (quoting Beeson V. Fishkill Corr. Facility, 28 F. Supp.2d 884, 894-95 (S.D.N.Y.1998).
The standard by which to measure whether a prisoner has exhausted his adrninistrative remedies is whether he has complied with the grievance procedures and rules. Spruill V. Gillis, 372 F.3d 218, 231 (3d Cir. 2004). The PLRA requires not only technical exhaustion of the administrative remedies, but also substantial compliance with procedural requirements. Spruill, 372 F.3d at 227-32; see also Nyhuis, 204 F.3d at 77-78.
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A procedural default by the prisoner, either through late or improper 'filings, bars the prisoner 
 from bringing a claim in federal court unless equitable considerations warrant review of the claim. Spruill, 372 F.3d at 227-32; see a/so Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000).
The Pennsylvania Department of Corrections ("DOC") Inmate Grievance System Policy, which has been in effect since May 1,2015, consists of a three-step Inmate Grievance System to provide inmates with an avenue to seek review of problems that may arise during the course of confinement. Pursuant to DC-ADM 804, an inmate may submit a written grievance to the facility's Grievance Coordinator for initial review. This must occur within fifteen days after the events upon which the claims are based. Within fifteen days of an adverse decision by the Grievance Coordinator, an inmate may then appeal to the Facility Manager of the institution. Thereafter, within fifteen days of an adverse decision by the Facility Manager, an inmate may file a final appeal to the Secretary's Office of Inmate Grievances and Appeals ("SOIGA"). An appeal to 'final review cannot be completed unless an inmate complies with all established procedures. An inmate must exhaust all three levels of review and comply with all procedural requirements of the grievance review process in order to fully exhaust an issue. Pa. Dep't of Corr., DC-ADM 804, Inmate Grievance System (April 27, 2015); see a/so Booth, 206 F.3d at 293 n. 2 (outlining
Pennsylvania's grievance review process); Ingram v. SCI Camp Hill, 448 F. App'x 275,279
(3d Cir. 2011) (same).
6 


Plaintiff has filed - and pursued through the administrative levels of review within the 

Pennsylvania Department of Correction - one grievance relevant to the case at bar.1 On
April 11 , 2015, Plaintiff submitted a signed grievance to the Facility Grievance Coordinator,
which was marked as received by Jane Hinman on April 13, 2015 and labeled as Grievance
Number 561400. (Doc. 37, Ex. 2 at 1). Plaintiff wrote on the submitted form, U[a]s my
handwriting has been hampered by disability, I am submitting attached typed statement per
counsel." (ld.). The attached, signed typewritten statement reads as follows:
Grievance regarding medical care:
This grievance is in regard to medical staffs failure to properly diagnose and monitor my health, causing me to suffer a diabetic shock on Monday, March 30. Staff should have provided specialist care, 'further diagnostic testing, and monitored glucose levels. Due to the failure by all those involved in the provision of care, as well as their superiors who set the applicable policies and practices, I was subject to a traumatic, near-death experience.
I am seeking as a remedy for my harms an acknowledgment of wrongdoing, improper care, and a detailed plan to prevent any recurrence. I am also requesting that SCI Mahanoy officials permit me to be examined by doctors of my own choosing, and that this should be coordinated with my legal counsel.
1 Because the Medical Defendants base their Motion to Dismiss solely on an administrative exhaustion argument, it is necessary to set forth thoroughly Plaintiffs grievance history as it relates to this case. Plaintiff does not refer to this grievance history in his Amended Complaint (Doc. 57); however "failure
to exhaust is an affirmative defense under the PLRA, and [ 1inmates are not required to specially plead or
demonstrate exhaustion in their complaints." Jones v. Bock, 549 U.S. 199,216 (2007). In analyzing a motion to dismiss, a district court may consider indisputably authentic documents related to an inmate's grievance without being required to convert the motion into one for summary judgment. Spruill v. Gillis, 372 F.3d 218, 223 (3d Cir. 2004). As such, the Court has relied upon the identical grievance documents that have been submitted by both Plaintiff and the Corrections Defendants. (See, e.g., Doc. 37, Ex. 2; Doc. 28, Ex. 1 at 89-96).
7 


(Id. at 2). The Initial Review Response, dated April 28, 2015, denied Plaintiffs grievance. (Id. at 3). On May 19, 2015, after returning to SCI Mahanoy from his hospitalization at Geisinger, Plaintiff filed a document appealing the Initial Review Response. (Id. at 4). The Facility Manager's Appeal Response, dated May 26,2015, upheld the Initial Review Response and denied the appeal. (Id. at 5). Plaintiff filed a three-page, handwritten document labeled "Final Grievance Appeal" on June 25,2015. (Doc. 37, Ex. 2 at 6-8). A "Grievance Referral" dated August 13, 2015 notified Plaintiff that SOIGA had decided to solicit input from the Bureau of Health Care Services regarding the issues raised in his grievance and that a final review decision would thus be delayed. (ld. at 9). SOIGA issued a final decision dated September 24,2015, denying Plaintiffs appeal to that office. (Doc. 43, Ex. 1).
The Medical Defendants argue that Plaintiff has failed to exhaust his administrative remedies with respect to the claims about his Hepatitis Cconditions contained in Count II of the Amended Complaint. According to these defendants, Grievance Number 561400 "is addressed to his treatment for hyperglycemia" and Plaintiff did "not raise the argument that he has not received treatment for Hepatitis C," nor "allege[d]" that Defendants failed to perform a Hepatitis C·workup.''' (Doc. 111 at 4). As such, the Medical Defendants assert that Plaintiff is now "trying to use the perceived association between Hepatitis Cand some dermatologic conditions as a backdoor to incorporate this claim into his Complaint," because his "Hepatitis C-related claims were not addressed within Plaintiffs grievance itself,
8 


even if the grievance is read broadly." (ld. at 5). After thorough review of the grievance, the 
 Court must disagree.
liAs long as there is a shared factual basis between the two, perfect overlap between the grievance and a complaint is not required by the PLRA." Jackson v. Ivens, 244 F. App'x 508,513-14 (3d Cir. 2007). In Jackson v. Ivens, a Third Circuit panel reviewed a district
court's finding that an inmate's grievance was unrelated to his § 1983 Eighth Amendment
claim, which was based on an alleged delay in the performance of surgery. The inmate's grievance had stated as follows:
[t]he failure [o~ Dr. Burns to properly diagnose and treat the infected cystic mass that has remained in Mr. Jackson's neck, constitutes a deviation from a standard of care. Due to failing timely to diagnose the infection, Mr. Jackson has develope[d] infections .... There's no doubt that Mr. Jackson has develop[ed] otologic disease from Dr. Burns['s] misdiagnosis of the infected cystic mass in the neck that has remain[ed] for over a year ...." The Third Circuit read these statements from the grievance to "refer[ ] to the delay in receiving treatment, namely, that masses had been in his neck for over a year; that no culture or diagnostic test had been performed to determine their cause; and that infections had resulted from the delay," (id. at 510), and stated that "it [is] clear that the July 2000 grievance relates to the delay alleged in the complaint." (ld. at 513). See a/so Mack v. Yost, 979 F. Supp. 2d 639, 649-50 (W.O. Pa. 2013) (requiring grievance forms and the complaint to be identical is an incorrect interpretation of the PLRA's exhaustion req uirement).
9 


The Court finds that a reasonable reading of Plaintiffs grievance is susceptible to the 
 interpretation that Plaintiff was complaining of his Hepatitis Cor at minimum of potentially Hepatitis C-related conditions. The Court need only refer back to the text of the grievance itself to arrive at this conclusion. First, the typewritten portion of the grievance has, in bold, the heading "Grievance regarding medical care." Plaintiff writes that the grievance "is in regard to medical staffs failure to properly diagnose and monitor my health," which he believes caused him to suffer diabetic shock. He then goes on to suggest that the medical staff should have "provided specialist care" and "further diagnostic testing," in addition to having monitored his glucose levels. The Courts finds it is reasonable to interpret these statements as a complaint about the overall state of Plaintiffs health and the perceived failures of medical staff that may have contributed to it. That that experience had recently resulted in what Plaintiff referred to as "a traumatic, near-death experience" and characterized as "diabetic shock," can be read as derivative of the complaint about the medical staffs management of his health.
This reading is particularly reasonable given Plaintiffs lack of medical expertise; the factual basis of his grievance and of a significant part of this case are grounded in medical conditions, their potentially complex interrelationships, and their treatment in light thereof. Given this, this Court finds that Plaintiffs "compliance with the DOC grievance procedures was substantial and certainly adequate to have exhausted his administrative remedies within the letter and spirit of the [PLRA]." Doug/as v. Byunghak Jin, No. CIV.A. 11-0350,
10 


2014 WL 811803, at *5 (W.O. Pa. Mar. 3, 2014). The Court will not require plaintiffs such as 

Abu-Jamal to accurately diagnose their conditions in order to be able to administratively
exhaust agrievance about medical care. See id. (noting that the inmate "did not have the
education or training to be able to pinpoint the exact cause of his pain and deteriorating
vision or accurately diagnose its etiology" and finding him to have exhausted !"lis
administrative remedies). Indeed, the Initial Review Response received by Plaintiff bolsters
this reading of Plaintiffs grievance as going to his health as a whole and to his overall
medical care at SCI Mahanoy. The Initial Review Response reads:
I have reviewed your grievance and your medical record for the noted time period through the present. Your medical condition prior to March 30 through the present time has been addressed through the physicians and medical treatment team at this institution. You were transported to Schuylkill Medical Center on March 30 for treatment and were discharged on April 1 after your medications were adjusted and you were stabilized. After your discharge, you continued to be monitored and treated in infirmary. Your blood sugar remains stable and is controlled on your current oral agent; the consulting dermatologist continues to monitor and treat your skin condition; and your treating phYSicians continue to review and treat your other medical conditions. Additional testing is being ordered where medically appropriate. Further tests and consultations will be ordered when, in the opinion of the treating physicians, they are medically needed to aid in your treatment and care. You are reminded to assist in your treatment by following the advice of your treating physicians and communicating with your treatment team. Since your release from the infirmary, you have missed your prescribed oral agent on two occasions and have admitted to not following your prescribed medical diet. Your grievance and requests for additional relief are denied.
(Doc. 37, Ex. 2 at 3). Furthermore, the Facility Manager's Appeal Response dated May 26,
2015 denies the appeal in light of the representations in the Initial Review Response, which
the Appeal Response summarizes as stating that Plaintiffs "medical condition has been
11 


addressed through physicians at this institutions [sic] and the medical team at this institution 
 continues to properly monitor and treat your issues." (Doc. 37, Ex. 2 at 5).
"[P]rison officials must be given adequate notice of an inmate's claims, because '[t]he benefits of exhaustion can be realized only if the prison grievance system is given a fair opportunity to consider the grievance.'" Spencer v. Beard, No. 3:07-CV-1021 , 2011 WL 1085697, at *5 (M.D. Pa. Mar. 21, 2011) (quoting Woodford v. Ngo, 548 U.S. 81, 95 (2006)). The Court finds that Plaintiffs Grievance Number 561400 was sufficient to give prison officials and the Medical Defendants adequate notice of his claims. Said grievance can reasonably be read as addressing the totality of Plaintiffs medical care at SCI Mahanoy and the responses from prison officials corrflrm that they understood it as such. While Plaintiff has subsequently focused, sharpened, and more clearly articulated his concerns about his medical care, this is permissible, and, indeed, beneficial for the purpose of civil litigation; there need not be perfect overlap between the grievance and his Amended Complaint in order to satisfy the PLRA. The Medical Defendants may not now rewrite Plaintiffs grievance to be narrower than it is. It is of no moment that they choose to characterize it as "addressed to his treatment for hyperglycemia," (Doc. 111 at 4), or even that the prison's Final Appeal Decision describes the grievance as stating a "concern of not being provided proper medical care ... for [Plaintiffs] new onset diabetic condition" and addresses only diabetes-related topics, such as hyperglycemia, insulin, and blood sugar, (see Doc. 43, Ex. 1). Plaintiffs grievance is addressed to alleged failures in his overall health and medical
12 


care, which he believed resulted in diabetic shock, and the responses received at the Initial Review state and the intermediate appeal stage indicate that it was perceived as such. As discussed above, Plaintiff is a layperson and the Court does not expect him at the time he filed his initial grievance to have had full understanding of his medical afflictions, their causes, their symptoms, and their interrelationships. Therefore, the Court finds that Plaintiff administratively exhausted the claim forming the basis of Count II of the Amended Complaint.
V. CONCLUSION For the foregoing reasons, the Court will deny the Medical Defendants' Motion for Motion to Dismiss (Doc. 110). Aseparate Order follows.
Robert D. Mariani United States District Judge
13 


 
 IN THE UNITED STATES DISTRICT COURT 
 FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 


MUMIA ABU-JAMAL, et aI., 


Plaintiffs,
v.
JOHN KERESTES, et al.

3:1S-CV-00967 (JUDGE MARIANI)

Defendants. MEMORANDUM OPINION

I. INTRODUCTION

Presently before the Court is Defendant Kerestes's Motion to Dismiss Plaintiffs

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Amended and Supplemental Complaint (Doc. 81) for failure to state aclaim upon which

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relief may be granted. The First Amended and Supplemental Complaint (Doc. 57) contains

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claims arising out of Plaintiff Mumia Abu-Jamal's hospitalization at Geisinger Medical Center

from May 12 to May 18, 2015, as well as his medical conditions, including his ongoing

hepatitis Cinfection.

Plaintiff Abu-Jamal along with Plaintiffs Brett Grote and Robert Boyle, also Mr. Abu­

Jamal's attomeys of record in this matter, initially filed this action on May 18, 2015 claiming

I

I
violations of the right to association and access to the courts. (Comp!., Doc. 1 at 10).

Plaintiffs alleged that Defendant Kerestes and Defendant Geisinger "barred the plaintiff

attorneys from visiting with Mr. Abu-Jamal" and further "prohibited all communication between Mr. Abu-Jamal and anyone," with the exception of a short phone call between him

and his wife. (Id. at 3). Subsequently, Plaintiffs Boyle and Grote filed notices of voluntary 
 dismissal (Docs. 17, 18), leaving Mr. Abu-Jamal (hereinafter, "Plaintiff') as the only remaining plaintiff.
On November 24, 2015, Plaintiff filed a Supplemental and Amended Complaint (Doc. 57) (hereinafter "Amended Complaint"), which added several defendants. Those Defendants are Defendants Lisiak, Khanum, and Saxon (hereinafter, the "Medical Defendants") and Defendants Oppman and Steinhart, Pennsylvania Department of Corrections ("DOC") employees. The Amended Complaint also added Eighth Amendment and state law negligence medical claims related to Plaintiffs hepatitis C and other conditions. Defendant Kerestes now moves for dismissal of the claims against him for failure to state aclaim upon which relief may be granted. This Motion (Doc. 81) has been briefed and is ripe for review. For the reasons stated herein, the Court will grant in part and deny in part Defendant Kerestes's Motion.
II. FACTUAL BACKGROUND The Amended Complaint alleges the following facts. Plaintiff Mumia Abu-Jamal is currently incarcerated in the custody of the
Pennsylvania Department of Corrections. (Doc. 57 at 2, 1f 1). Plaintiff was convicted in the
December 9,1981 death of a Philadelphia police officer. (ld. at 1m 13-14). In 2011, the
Third Circuit affirmed a lower court's order setting aside Plaintiffs death sentence and DOC
I
2 f
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placed him into general population1 after the Philadelphia District Attorney's Office chose 


not to seek to reinstate Plaintiffs death sentence. (ld. at 1M[ 18-19).

Plaintiff tested positive for the Hepatitis C antibody during routine blood work in

January 2012. (ld. at 11 24). Hepatitis C is the leading cause of cirrhosis of the liver and of

liver cancer; a chronic Hepatitis C infection can also cause serious chronic liver disease,

liver fibrosis and death. (/d. at 11 25). According to Plaintiff, if a person tests positive for the

Hepatitis C antibody, the next step is to determine whether the infection is an "active" one,

including but not limited to determining whether that person has a "viral load." (/d. at 11 26).

If the infection is determined to be active, the individual is at risk for serious complications

that arise from the disease. (Doc. 57 at 11 26).

Despite repeated requests, the Defendants have not conducted a complete HepatitiS

C workup of Plaintiff and have not treated the disease or adequately treated his symptoms.

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(Id. at 11 27).

I

Plaintiff alleges that Hepatitis Ccan manifest in a number of ways even in the

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absence of abnormal liver functions, including in the form of persistent skin rash and/or

eczema that does not respond to traditional treatment. (Id. at 11 28).

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In or about August 2014, Plaintiff alleges that he began to experience itching over his

I

whole body and that the itching was reported to facility staff. (ld. at 11 30). He was

I

prescribed creams, which had no effect, and the rash spread. (ld.). Plaintiff alleges that the

1 Plaintiff curiously fails to allege explicitly that he is incarcerated at SCI-Mahanoy, however the

Court draws the reasonable inference that he is from the allegations of the Amended Complaint.

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3

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f

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underlying cause of the rash, including the possibility that it was a manifestation of an active 


Hepatitis Cinfection, was not investigated. (ld.).

The rash became infected on two occasions in early 2015, with lesions appearing on

Plaintiffs lower extremities. (Doc. 57 at ~ 31). Medical staff noted that the lesions were "too

numerous to count." (ld.). Plaintiffs lower extremities became swollen and his skin took on

a dark, scaly appearance. (Id.). Plaintiff alleges that the rash caused and continues to

cause extreme pain and discomfort. (Id. at ~ 32). The rash covered 70 percent of Plaintiffs

body by February 2015. (ld. at ~ 33). The itch was unceasing; Plaintiff began using a

wheelchair to move any significant distance because the lower extremity and genital edema

caused so much discomfort. (ld.).

Plaintiff was prescribed "another steroid, oral prednisone, and Cyclosporine, an

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immunosuppressant," in late February 2015, but the rash persisted. (Doc. 57 at ~ 34). A

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( medical note dated February 19, 2015 recorded that Plaintiff was experience "increasing

peeling off of dry skin at the site of the rashes." (ld.).

Plaintiffs blood was drawn on March 6, 2015 and the results showed that Plaintiffs

glucose level had risen to the severely abnormal level of 419. (ld. at ~ 35). Prior to this,

Plaintiffs blood glucose was always within normal range. (Id.).

Plaintiff alleges that the Medical Defendants were aware of his dramatically elevated

glucose level indicating a dangerous case of hyperglycemia and that they took no action to
address the glucose level even though it was noted in their records. (Id. at W36-37).

4 


Plaintiff alleges that there was no treatment provided and no follow up testing of his glucose 


level, and that the Medical Defendants did not inform him of the test result. (Id. at ~ 37).

Plaintiff lost consciousness on March 30, 2015 and was rushed to Schuylkill Medical

Center. (Doc. 57 at ~ 38). His blood glucose was found through testing to be 507. (Id.).

He had gone into diabetic shock and was placed in the Critical Care Unit. (Id.)

Untreated hyperglycemia is a potentially fatal condition. (Id. at ~ 39).

Plaintiff returned to prison on April 1. (Id. at ~ 40). Release papers indicate his

I

prognosis as "guarded" and included the following medical issues: "diabetes, new onset,

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encephalopathy secondary to hyperglycemia, dehydration, acute kidney injury,

!

hyponatremia, hypokalemia, asymptomatic gallstones, skin rash, anemia and a history of

f

hepatitis C." (Id.).

Plaintiff experienced fatigue, episodes of "brain fog," and emotional distress in the

weeks following the diabetic shock. (Doc. 57 at ~ 41).

Plaintiffs blood work revealed and continues to reveal abnormalities. (Id. at ~ 42).

He suffers anemia as indicated by a consistently below-normal hemoglobin count. (Id.).

Defendants continued to administer cyclosporine despite the fact that it is

contraindicated for an African-American of Plaintiffs age who has sudden-onset diabetes.
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(Id. at ~ 43). Plaintiff is an African-American. (Id. at 2, ~ 1).

5 

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The Schuylkill Medical Center release order noted a history of Hepatitis C; none of 
 the Defendants, including the Medical Defendants, took any steps to investigate whether
Hepatitis Cmay be the cause of Plaintiffs rash or other medical issues. (ld. at 1f 44).
Plaintiff retained counsel in March 2015 to advocate on his behalf for appropriate medical care; efforts have included visits, procurement of medical records, and consultation
with medical experts. (Doc. 57 at 1f 45). One expert reviewed Plaintiffs medical records. (Id. at 1f 46). On April 28, 2015, Counsel transmitted to DOC a medical opinion letter from
this expert. (ld.). The expert opined, inter alia, that an "occult malignancy workup" should be done to determine the cause of Plaintiffs still-present severe rash and anemia, as both
are indicative of T-Cell Lymphoma. (ld. at 1f 47). The expert noted that the workup to
investigate the cause of the rash was "urgent at this time" and that if the rash is due to lymphoma or another serious underlying medical condition, delay in diagnosis "may have severe and even lethal consequences." (ld.).
Plaintiff experienced extreme pain in his lower extremities when showering on or
about May 12, 2015. (ld. at 1f 48). He was removed to Geisinger Medical Center21ater that day. (Doc. 57 at 1f 48).
Plaintiffs Counsel and his wife both requested that they be permitted to visit with
Plaintiff at Geisinger. (Id. at 1f 49).
2 Plaintiff does not provide the address of Geisinger Medical Center or otherwise specify to which Geisinger Health Systems inpatient hospital he was taken. The Court takes judicial notice of the fact that that "Geisinger Medical Center" is the name of the Geisinger facility located in Danville, Pennsylvania. See "About Geisinger Medical Center," http://www.geisinger.org/for-patients/locations-directions/gmc/index.html (July 12, 2016).
6 


Counsel and Plaintiffs wife were initially told that Defendant Kerestes would permit 


visits from immediate family members but were then told that Plaintiff would be denied all

visitation, including visits with Counsel, so long as he remained at Geisinger. (Id. at ~ 50).

Plaintiff would also not be permitted to telephone Counselor his wife. (Id.).

Counsel for DOC asserted that the prohibition on visitation and phone calls was the

policy of Defendant Geisinger. (Id. at ~ 51). During a prior hospitalization at Schuylkill

Medical Center, Plaintiff received visits from his attorney and immediate family. (Id.).

On May 14, 2015, Counsel contacted Geisinger's litigation counsel, Donald

Zaycosky, who agreed to seek authorization from Geisinger's Chief Medical Officer and

DOC officials to permit family and attorney visits and phone calls. (Doc. 57 at ~ 52).

Plaintiff was granted a fifteen minute telephone call with his wife on May 18, 2015.

(Id. at ~ 53).

Plaintiff was not permitted visitation with his attorneys or family during his stay at

Geisinger. (Id.).

During his May 12, 2015 to May 19, 20153 hospitalization at Geisinger, numerous

diagnostic tests were conducted. (Id. at ~ 54). While the tests and a subsequent bone

marrow biopsy ruled out some serious conditions, including some cancers, the underlying

causes of Plaintiffs health problems, including the rash and anemia, were not determined.

(Id. at ~ 55).

f

f

3 It is unclear from the Amended Complaint on what date Plaintiff was released from Geisinger

I
!

Medical Center and returned to SCI Mahanoy. Plaintiff provides both a release date of May 19, 2015, (see

Doc. 57 at 1f 54), and of May 18, 2015, (see id. at 1f 59).

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7

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A Hepatitis Cworkup was not performed at Geisinger Medical Center. (Id. at 1T 56). 


While Plaintiff was at Geisinger, his rash was treated with a steroid wrap four times a

day, which partially alleviated the rash's worst symptoms. (Doc. 57 at 1T 57).

The Geisinger discharge reported dated May 18, 2015 advises DOC to, inter alia,

arrange for a dermatology follow-up within two weeks and to order a Hepatitis Cworkup as

I

Plaintiff might be a suitable candidate for Hepatitis Ctreatment. (ld. at 1T 58).

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i

From Plaintiff's May 18, 2015 return to SCI Mahanoy to the date of the filing of the

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!

Amended Complaint, Plaintiff's rash has only been treated with a Vaseline wrap. (ld. at 1T

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1

59). The wrap was applied twice a day upon his retllrn from Geisinger. (ld.). As of the

'filing of the Amended Complaint, Plaintiff alleges that "the worst syrnptoms" have returned.

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(ld.).

!

Plaintiff again experiences itching over his entire body, his lower extremities are

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swollen, his skin peels and scales, he experiences a consistent low-grade fever, and he is

unable to walk significant distances due to the pain in his lower extremities. (Id. at 1T 60).

As of the filing of the Amended Complaint, there has been no follow-up with a

dermatologist, notwithstanding the recommendations of Geisinger Medical Center. (Doc. 57
l
at1T61).

Plaintiff alleges that the type of skin rash and edema experienced by Plaintiff at the time of the filing of the Amended Complaint is likely caused by an active Hepatitis C

I
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infection. (Id. at 1T 62).
8 


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Defendants have been made aware that the skin condition is a likely complication of untreated Hepatitis Cthrough letters from counsel accompanied by expert medical reports. (/d. at 1{63).
During the last week of July 2015, Plaintiff was informed by a doctor at SCI Mahanoy that a blood test revealed that he has active Hepatitis C. (Id. at 1{64).
Plaintiff was informed that DOC currently has no protocol for treating Hepatitis C. (ld.).
Plaintiff alleges that the Defendants are refusing to provide him with Hepatitis C treatment despite him having active Hepatitis Cthat has been causing him severe health problems for several months. (ld. at 1{65).
Despite repeated requests from counsel, Defendants have refused to permit Plaintiff to be examined by an independent physician under appropriate medical conditions, even at his own expense. (Doc. 57 at 1{66).
One expert visited Plaintiff on a regular visit and also examined available medical records. (ld. at 1{67). Based on the visit and records review, the expert opined that Plaintiff's skin condition is likely a manifestation of the Hepatitis C infection. (ld.). The expert recommended specific treatments for both the skin condition and the Hepatitis C, (id.); these recommendations were provided to DOC counsel but have not been implemented, (id. at 1{68).
9 


Plaintiff has been informed that DOC officials have forbidden medical staff at SCI 


Mahanoy from receiving any opinions, letters, diagnoses, or other communications from

doctors who are working with counsel for Plaintiff, even if such opinions or letters are

provided to them by Plaintiff himself. (Id. at 1l69).

Plaintiff alleges that as of the filing of the Amended Complaint, he is currently

receiving no treatment for his skin conditions and that the Vaseline applications have ended

and his lower extremities are no longer wrapped. (Doc. 57 at 1l70).

Plaintiff alleges that the itching is extreme and incessant and that it causes pain, loss

of sleep, and resultant fatigue. (/d. at 1l71).

Plaintiff alleges that there is no medical justification for Defendants' failure to treat his

skin condition and/or Hepatitis C. (Id. at 1l72).

Plaintiff alleges that the Defendants' actions and inactions have caused and continue

to cause him pain, suffering, and emotional distress. (Id. at 1l73).

Plaintiff alleges that the untreated, active Hepatitis Cinfection has caused and

I
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continues to cause damage to his liver. (Id. at 1174).

III. STANDARD OF REVIEW

I

A complaint must be dismissed under Federal Rule of Civil Procedure 12(b)(6) if it

I

does not allege "enough facts to state a claim to relief that is plausible on its face." Bell All.

Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plaintiff must aver Ufactual content that

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10

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allows the court to draw the reasonable inference that the defendant is liable for the 
 misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
'Though acomplaint 'does not need detailed factual allegations, ... a formulaic recitation of the elements of a cause of action will not do.'" DelRio-Mocci v. Connolly Prop. Inc., 672 F.3d 241,245 (3d Gir. 2012) (citing Twombly, 550 U.S. at 555). In other words, "[~actual allegations must be enough to raise a right to relief above the speculative leveL" Covington v. Inn Ass'n of Approved Basketball Officials, 710 F.3d 114, 118 (3d Gir. 2013) (internal citations and quotation marks omitted). Acourt "take[s] as true all the factual allegations in the Complaint and the reasonable inferences that can be drawn from those facts, but ... disregard[s] legal conclusions and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Ethypharm S.A. France v. Abbott Laboratories, 707 F.3d 223,231, n.14 (3d Gir. 2013) (internal citations and quotation marks omitted).
Twombly and Iqbal require [a district court] to take the following three steps to determine the sufficiency of a complaint: First, the court must take note of the elements a plaintiff must plead to state a claim. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief. Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Gir. 2013). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show[n]-that the
11 

\

pleader is entitled to relief." Iqbal, 556 U.S. at 679 (internal citations and quotation marks 
 omitted). This "plausibility" determination will be a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.
However, even "if a complaint is subject to Rule 12(b)(6) dismissal, a district court must permit a curative amendment unless such an amendment would be inequitable or futile." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008).
[E]ven when plaintiff does not seek leave to amend his complaint after a defendant moves to dismiss it, unless the district court finds that amendment would be inequitable or futile, the court must inform the plaintiff that he or she has leave to amend the complaint within a set period of time. Id.
IV. ANALYSIS A. Eleventh Amendment Immunity Defendant Kerestes first asks the Court to dismiss Plaintiffs claims "to the extent that [he] seeks to impose liability for money damages against Defendant Kerestes in his official capacity," relying on the Eleventh Amendment. (Doc. 89 at 6). "[I]t is generally inappropriate for the Court to limit the remedies available to Plaintiffs on a motion to dismiss and [] it is preferable to assess the availability of various remedies after liability is established." Dicicco v. Citizens Fin. Grp., Inc., No. CV 15-267, 2015 WL 5302767, at *10 (E.D. Pa. Sept. 10,2015). However, the law upon which Defendant Kerestes relies is sound and well-established. Federal courts cannot consider suits by
12 


private parties against states and their agencies unless the state has consented to the filing 


of such a suit. See Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89 (1984);

Christy v. Pa. Turnpike Comm'n, 54 F.3d 1140 (3d Cir. 1995), cert. denied, 516 U.S. 932

(1995). The Eleventh Amendment bars claims for monetary damages sought against a

state official acting in his or her official capacity absent a valid abrogation by Congress or

consent of the State. See Kentucky v. Graham, 473 U.S. 159, 169 (1985) (holding that

I

"absent waiver by the State or valid congressional override, the Eleventh Amendment bars a damages action against a State in federal court"). Congress did not validly abrogate or

I

purport to abrogate the States' sovereign immunity against damages claims under section

1983, and the Commonwealth of Pennsylvania has not waived its Eleventh Amendment

immunity. See Hafer v. Melo, 502 U.S. 21,25-27 (1991) (suits against state officials acting

in their official capacities are suits against the employing government agency, and as such,

are barred by the Eleventh Amendment); 42 Pa.C.S.A. § 8521-22. Thus, Plaintiff cannot

recover monetary damages against Defendant Kerestes in his official capacity, as such

claims are barred by the Eleventh Amendment. Plaintiff's requests for monetary damages

are dismissed to the extent they are brought against Defendant Kerestes in his official

capacity.4

4 In his Brief in Opposition to Defendant Kerestes's Motion to Dismiss (Doc. 93), erroneously titled "Brief in Opposition to Defendant Geisinger Medical Center's Motion to Dismiss," Plaintiff asks that the Court deny Defendant Kerestes's motion on this point because "Plaintiff seeks money damages from defendant Kerestes in his individual capacity, not his official capacity." (Doc. 93 at 5). It seems clear that, at least at this point, Plaintiffs Counsel agrees with Defendant Kerestes that he may not be sued for monetary damages in his official capacity. Plaintiffs Counsel would have done well to specify in their
13 


B. Personal Involvement 

Section 1983 of Title 42 of the United States Code offers private citizens a cause of
action for violations of federal law by state officials. See 42 U.S.C. § 1983. The statute
provides, in pertinent part, as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ....
Id., see also Gonzaga Univ. v. Doe, 536 U.S. 273,284-85 (2002); Kneipp v. Tedder, 95
F.3d 1199, 1204 (3d Cir. 1996). To state a claim under § 1983, a plaintiff must allege "the
violation of a right secured by the Constitution and laws of the United States, and must
show that the alleged deprivation was committed by a person acting under color of state
law." West v. Atkins, 487 U.S. 42,48 (1988). See also Barna v. City of Perth Amboy, 42
F.3d 809, 815 (3d Cir. 1994).
Additionally, "[t]o establish liability for deprivation of a constitutional right under §
1983, a party must show personal involvement by each defendant." Keys v. Caffoll, No.
3:10-CV-1570, 2012 WL 4472020, at *9 (M.D. Pa. Sept. 26, 2012), citing Iqbal, 556 U.S. at
676-77 ("Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff
Amended Complaint whether the particular forms of relief sought were with respect to liability imposed on Defendant Kerestes in his individual or his official capacity. As it stands, Plaintiffs decision not to do so has burdened the Court; Defendant Kerestes's Motion to Dismiss with respect to this issue has done nothing to alleviate this burden, instead requiring the Court to devote a section of this opinion and the accompanying Order to an issue which could well have waited to the ultimate disposition of this case.
14
l

t

I

l

must plead that each Government-official defendant, through the official's own individual

~

actions, has violated the Constitution."). UA plaintiff makes sufficient allegations of a

I

defendant's personal involvement by describing the defendant's participation in or actual

[

knowledge of and acquiescence in the wrongful conduct." Chavarriaga v. N.J. Dep't of

I

Corr., 806 F.3d 210, 222 (3d Cir. 2015) (citing Rode v. Dellarciprete, 845 F.2d 1195, 1207

(3d Cir. 1988)). A court may infer that the defendant had contemporaneous knowledge of

wrongful conduct from the circumstances of the case, but that knowledge must be actual,

not constructive. Id. uA conclusory allegation that defendants were 'directly involved' in the

violations of the plaintiffs rights is not sufficient to allege personal involvement." Chimenti v.

Pa. Dep't. of Corr., No. 15-cv-3333, 2016 WL 1125580, at *5 (E.D. Pa. Mar. 21,2016)

(citing Bush v. Dep't of Human Servs., 614 F. App'x 616,620 (3d Cir. 2015)).

Defendant Kerestes argues that Plaintiffs § 1983 claims against him should be

dismissed because he Ualleges no personal involvement in by [sic] Superintendent Kerestes

in Plaintiffs medical care or the decision to deny visits during the one-week period that

Plaintiff was hospitalized at Geisinger Medical Center." (Doc. 89 at 7). As an initial matter,

Plaintiff alleges that

t

(

Defendant John Kerestes is the Superintendent at SCI Mahanoy. Defendant Kerestes is responsible for the overall operation of SCI Mahanoy. Defendant

!

Kerestes has the power to authorize attorney and family visits with individuals 


f

in the custody of SCI Mahanoy when they are in a hospital off of prison 


f

grounds. In addition, he is responsible for the well-being and health of individuals incarcerated at SCI Mahanoy.

I
!

15 


I

(Id. at 2, ~ 2). The Court will begin its analysis of Defendant Kerestes's personal
involvement in this case with Plaintiffs § 1983 claims related to medical care (Counts I, II,
and III of the Amended Complaint). In addition to the above-quoted allegation that Defendant Kerestes "is responsible for
the well-being and health of individuals incarcerated at SCI Mahanoy," Plaintiff alleges in conclusory fashion that "Defendant[] Kerestes ... ha[s] failed to treat his Hepatitis C," (Doc. 57 at ~ 78), and that "Defendant[ ] Kerestes ... ha[s] failed to treat his skin condition," (id. at ~ 80). Beyond this, there is little in the Amended Complaint in the way of factual allegations related to medical care or lack thereof that spedflcally address Defendant Kerestes's conduct. The Amended Complaint is riddled with allegations in the passive voice ­ allegations that do not permit the Court to infer which, if any, of the named Defendants is responsible for the alleged action.5 Also frequently occurring throughout the Amended Complaint are vague, broad statements addressing the conduct or scienter of "defendants." For instance, Plaintiff alleges that "[t]he defendants have been made aware the skin condition is a likely complication of untreated Hepatitis Cthrough letters from counsel accompanied by expert medical reports." (Doc. 57 at ~ 63). Which Defendants were made aware, by whom, and when are questions that the Amended Complaint fails to answer. The Court cannot accept these broad-sweeping allegations as being plead with sufficient particularity to refer to Defendant Kerestes.
5 See, e.g. Doc. 57 at 1f 30 ("Creams were prescribed."); id. at 1f 64 ("Mr. Abu-Jamal was informed
that the DOC currently has no protocol for treating Hepatitis C."). 16 


There are a few statements in the Amended Complaint whose construction allows

the Court to say confidently that Plaintiff has alleged Defendant Kerestes did or did not take

some action. For instance, Plaintiff alleges that despite a release order from Schuylkill

Medical Center noting that Plaintiff had a history of Hepatitis C, "none of the defendants,

including defendants Lisiak, Khanum, or Saxon, took any steps to investigate whether the

Hepatitis Cmay be the cause of the rash and/or other medical issues." (Doc. 57 at ~ 44).

Though he is not specifically named in this allegation, as the Medical Defendants are,

Defendant Kerestes is alleged not to have taken any steps to investigate Plaintiffs Hepatitis

Ccondition as a cause of his rash or other medical conditions. Similarly, the Court reads

Paragraph 27, though grammatically incorrect, to allege that Defendant Kerestes has not

conducted a complete Hepatitis C workup for Plaintiff nor "treated the disease or adequately

treated his symptoms." (Id. at ~ 27).

These are the extent of the allegations that relate to medical care made against

Defendant Kerestes. From the Amended Complaint, the Court cannot hazard a guess as to

what Defendant Kerestes did or did not do when or with whom with respect to Plaintiffs

health. As such, Plaintiff has failed to "make[] sufficient allegations of [Defendant

Kerestes's] personal involvement by describing the defendant's participation in or actual

knowledge of and acquiescence in the wrongful conduct." Chavarriaga, 806 F.3d at 222.

Nor has Plaintiff alleged that Defendant Kerestes was a policymaker for purposes of § 1983

liability. See Valdez v. Danberg, 576 F. App'x 97, 102 (3d Cir. 2014) ("Individual defendants

I
I

17

I, 


who are policymakers may be liable under § 1983 if it is shown that such defendants, with 
 deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm.") (internal quotation omitted).
In his Opposition Brief, Plaintiff seems to assume that the Court will consider the grievance Plaintiff filed about his medical conditions and the subsequent responses from DOC personnel to that grievance and related appeals. Thus, Plaintiff argues that Defendant Kerestes had sufficient personal involvement to state a § 1983 claim via his role in the grievance system in the DOC and in SCI Mahanoy. (Doc. 93 at 8-9). Were the Court to consider the grievance response written by Defendant Kerestes, it is not clear that this would be enough to sufficiently allege personal involvement. Courts in the Third Circuit have repeatedly held that a prison official's role in reviewing grievance is not, without more, sufficient to establish personal involvement in the alleged constitutional injury. See, e.g., Mincy v. Chmielsewski, 508 F. App'x 99, 104 (3d Cir. 2013) ("[A]n officer's review of, or failure to investigate, an inmate's grievances generally does not satisfy the requisite personal involvement."); Rogers v. United States, 696 F. Supp. 2d 472, 488 (W.O. Pa. 2010) ("If a grievance official's only involvement is investigating and/or ruling on an inmate's grievance after the incident giving rise to the grievance has already occurred, there is no personal involvement on the part of that official."); see also Sims v. Wexford Health Sources, 635 F. App'x 16, 19 (3d Cir. 2015) ("Prison officials who are not doctors are not liable for responding directly to prisoner medical complaints where the prisoner is under the
18 


care of medical experts."). However, as Plaintiff points out, (see Doc. 93 at 8-9), there is support in the case law for the proposition that reviewing a grievance about an ongoing constitutional violation may be sufficient to establish the personal involvement of the reviewing official. See Cardona v. Warden - MDC Facility, No. 12-7161,2013 WL 6446999, at *5 (D.N.J. Dec. 6, 2013) (collecting cases and noting that a plaintiff may have a claim against a supervisory defendant who reviewed a grievance where the plaintiff alleges an ongoing violation); Diaz v. Palakovich, 448 F. App'x 211, 215 (3d Cir. 2011) ("[A) reasonable factfinder could find that these defendants had knowledge of the violations through Diaz's grievances and acquiesced in the violations by failing to address a practice of opening legal mail outside of an inmate's presence.").
The Court need not reach this issue of whether Defendant Kerestes's role in reviewing Plaintiffs grievance was sufficient to establish personal involvement here, however, where Plaintiffs grievance and appeals thereof are mentioned nowhere in the Amended Complaint. Though the documents making up Plaintiffs grievance history are of record elsewhere in this case, the Court declines to consider them in conjunction with Defendant Kerestes's Motion to Dismiss. Unlike administrative exhaustion, which was at issue in the oft-cited Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004), the issue of personal involvement cannot be said to "tum[] on" the documents related to Plaintiffs grievances, id. at 223, and the Court will not consider them where Plaintiff has not included reference to them in his Amended Complaint. Cf. id. at 223 ("Given that the exhaustion issue turns on
19 


the indisputably authentic documents related to Spruill's grievances, we hold that we may also consider these without converting it to a motion for summary judgment."). The pleadings of the Amended Complaint are insufficient to establish either participation in the constitutional violations to which Plaintiff alleges he has been subjected, as well as insufficient to show knowledge and acquiescence in those alleged violations. But since the Court is of the view it is neither futile nor inequitable to allow Plaintiff to amend his complaint with respect to Defendant Kerestes, leave to file a Second Amended Complaint is granted with respect to Counts I, II, and III.
Turning to Plaintiffs § 1983 claims for violation his right to access to courts (Count VI) and of freedom of association (Count VII), the Court finds that Plaintiff has sufficiently alleged Defendant Kerestes's personal involvement. Plaintiff alleges that Defendant Kerestes's "has the power to authorize attorney and family visits" for inmates who are hospitalized at an outside facility. (Doc. 57 at 2, 1f 2). From this allegation, it is reasonable to infer that, if Plaintiff was prohibited from receiving visitors at Geisinger Medical Center, Defendant Kerestes was personally involved.
C. Access to Courts Defendant Kerestes next moves for dismissal of Count VI of the Amended Complaint - "Access to Courts." (Doc. 57 at 19). "[I]n order to press aclaim for interference with the right to court access, a prisoner plaintiff must allege that he or she has been actually injured
in his or her access to the courts, i.e., that he or she has been hindered in an effort to
20 


pursue a nonfrivolous legal claim." Jones v. Brown, 461 F.3d 353,359 (3d Cir. 2006) (citing Lewis v. Casey, 518 U.S. 343, 349-53 (1996)). The claim must relate to either adirect or collateral challenge to the prisoner's sentence or conditions of confinement. Lewis, 518 U.S. at 355 (finding "[i]mpairment of any other litigating capacity is simply one of the

incidental ... consequences of conviction and incarceration."). The United States Supreme Court has stated clearly the pleading requirements for an access to courts claim. Plaintiffs "must identify a nonfrivolous, arguable underlying claim" in order to pursue an access to

courts claim, and "that underlying cause of action, whether anticipated or lost, is an element

that must be described in the complaint, just as much as allegations must describe the official acts frustrating the litigation." Christopher v. Harbury, 536 U.S. 403, 415 (2002). An

"actual injury" does not occur without a showing that a claim has been lost or rejected, or that the presentation of such a claim is currently being prevented. Lewis, 518 U.S. at 354­

56. Here, Plaintiff has failed to allege an actual injury sufficient to state a claim for
access to courts. Plaintiff has alleged that on May 12, 2015, Plaintiff was moved from SCI

Mahanoy to Geisinger Medical Facility and that Counsel requested permission to visit
mr Plaintiff there. (Doc. 57 at 48-49). Plaintiff further alleges that Counsel was told that
Plaintiff would be denied all visitation and phone calls with his attorneys while at Geisinger.
(Id. at 11 50). It is unclear who Plaintiff alleges to be the source of this prohibition. Plaintiff
alleges that "DOC counsel asserted that the prohibition on visitation and phone calls was

f

21

i

I

I

the policy of Geisinger Medical Center," as contrasted to Plaintiffs experience during a 
 recent hospitalization at Schuylkill Medical Center. (Id. at 11'51). However, the Complaint
also alleges that: Defendant Geisinger Medical Center, in coordination with the DOC, has a policy of prohibiting all communication between hospital patients in the custody of the DOC and their lawyers, family, and friends, and others not in the employ of the DOC or Geisinger Medical Center.
(Id. at 11'8). Plaintiff also asserts that on May 14, 2015, Geisinger's litigation counsel Donald Zaycosky agreed to seek authorization for attorney visits and phone calls from Geisinger's Chief Medical Officer and from DOC officials, (id. at 11'52), but that he ultimately was not permitted visitation with his attorneys during his entire stay at Geisinger, (id. at 11'53).
According to Count VI of the Amended Complaint, these allegations add up to the following constitutional violation:
Defendants Kerestes and Geisinger Medical Center violated Plaintiffs Fifth and Fourteenth Amendment right of access to the Courts during his May 2015 hospitalization at Geisinger Medical Center by preventing any and all communication between Plaintiff and his attorneys. (Doc. 57 at 11'88). Plaintiff seeks "a permanent injunction ordering defendants to permit attorney-client visits whenever plaintiff Abu-Jamal is taken from a DOC facility to receive inpatient medical treatment." (Id. at 21, 11' G). However, nowhere in the Amended Complaint does Plaintiff identify a nonfrivolous and arguable underlying claim which was lost, or even otherwise impaired, by this prohibition on visitation or other communication with his attorneys. It is clear that Counsel's
22 


attempts to communicate with Plaintiff were not handled by either DOC, Geisinger, or both 


institutions as Counselor Plaintiff would have wished. However, "[n]ot everyone who can

point to some 'concrete' act and is 'adverse' can call in the courts to examine the propriety

of executive action, but only someone who has been actually injured." Lewis, 518 U.S. at

353 n.3. Plaintiff has not adequately alleged actual injury here; indeed, a thorough review of

the Amended Complaint reveals he has not alleged injury at all.

Plaintiff oddly relies on case law from the preliminary injunction context in an attempt

to show injury, despite the fact that the Motion currently before the Court is a motion to

dismiss and the fact that Plaintiff seeks a permanent injunction rather than a preliminary injunction with respect to his access to courts claim. (Doc. 57 at 21, ~ G). In focusing his

I

I
argument in opposition to Defendant Kerestes's Motion on the proposition that "the loss of a

constitutional right ... has even been recognized as suffiCiently injurious to establish the

I

t type of irreparable harm justifying a preliminary injunction," (Doc. 93 at 10), Plaintiff attempts

to sidestep the weakness of his pleadings with hysteron proteron rhetoric - that is, Plaintiff

puts the cart before the horse. Without having sufficiently pleaded the existence of any

underlying claim, Plaintiff assumes its existence and jumps forward to the matter of injury.

This analytic move neglects the Supreme Court's cautioning that "the right [of access to

courts] is ancillary to the underlying claim, without which a plaintiff cannot have suffered

l

injury by being shut out of court." Christopher, 536 U.S. at 415. Because Plaintiff has not

I

23 


alleged sufficient facts to present a prima facie case of denial of access to the courts, his 


access to the courts claim will be dismissed.

D. Freedom ofAssociation

I

t

Defendant Kerestes next moves for dismissal of Count VII of the Amended

f
l

Complaint, (see Doc. 89 at 9), which alleges that Defendant Kerestes and Defendant

t

Geisinger violated Plaintiffs First Amendment right of association "by arbitrarily restricting

communication and preventing all visitation with his family during his May 2015

I

hospitalization at Geisinger Medical Center," (Doc. 57 at 19-20). Focusing only on the

visitation aspect of Plaintiffs claim, Defendant Kerestes argues that Plaintiff does not have

an unfettered right to contact visits; because "[i]t is beyond cavil that contact visits by

inmates while outside prison walls at private medical facilities present a considerable

security concern," Defendant Kerestes asserts that, assuming arguendo that he was

responsible for the decision to deny such visits, it was within his "discretion to prohibit or

limit visits in the interest of security," and that Plaintiffs claim thus fails. (Doc. 89 at 10). In

response, Plaintiff argues that his freedom of association claim is subject to a "fact­

intensive," "contextual, record-sensitive analysis" under Turner v. Safley, 482 U.S. 78

(1987), (see Doc. 93 at 12), and that, therefore, Plaintiff should be allowed to develop a

record to establish "[t]he reasonableness of defendant Kerestes' decision to prohibit all

visitss" (id.).

24 


IIA prison inmate retains those first amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Pell v. Procunier, 417 U.S. 817, 822 (1974). Thus, lI[t]O the extent that a 'right' to visitation exists via the right to association, this entitlement is limited by prison officials' judgment in furthering penological goals." Rivera v. Fed. Bureau ofPrisons, 197 F. App'x 169, 170 (3d Cir. 2006) (citing Overton v. Bazzetta, 539 U.S. 126, 131-32 (2003)). Affording substantial deference to the professional judgment of prison administrators, Overton, 539 U.S. at 132, courts will uphold a prison official's action alleged to have impinged on an inmate's constitutional rights if lIit is reasonably related to legitimate penological interests," Turner v. Safley, 482 U.S. 78, 89 (1987). This test, set out in Turner v. Safley, examines the following four factors: (1) whether the regulation or practice in question furthers a legitimate governmental interest unrelated to the suppression of expression; (2) whether there are alternative means of exercising First Amendment rights that remain open to prison inmates; (3) whether the right can be exercised only at the cost of less liberty and safety for guards and other prisoners, and the effect on prison resources in general; and (4) whether an alternative exists which would fully accommodate the prisoner's rights at de minimis cost to valid penological interests. Thornburgh v. Abbott, 490 U.S. 401, 415-18 (1989); Turner, 482 U.S. at 89-91.
Here, Plaintiff alleges a near-total ban on visitation and telephone calls with his family and his attorneys during his hospitalization at Geisinger Medical Center from May 12,
25 


mr 2015 to May 18, 2015. (See Doc. 57 at 49-53). He also alleges that during a prior
hospitalization at Schuylkill Medical Center, he received visits from his attorney and immediate family members. (Id. at 1151). These allegations are sufficient to permit the reasonable inference that the limitation on visitation and telephone calls was arbitrary and not reasonably related to a legitimate penological interest. Plaintiffs freedom of association claim is allowed to proceed.
E. Sovereign Immunity
Defendant Kerestes next moves for dismissal of Counts IV, V1, and V2, which raise state law medical negligence claims against Defendant Kerestes for failure to treat Plaintiffs hyperglycemia, Hepatitis C, and skin condition.6 Defendant Kerestes argues that he is protected by sovereign immunity because he is not a "health care employee" within the meaning of Pennsylvania's statutory waiver of sovereign immunity for medical-professional liability. (Doc. 89 at 10-12); see also 42 Pa. Cons. Stat. Ann § 8522(b)(2). In response, "Plaintiff concedes that defendant Kerestes is immune from liability as to the Pennsylvania state law medical neglect claim, but only as to that claim." (Doc. 93 at 12). Thus, Defendant Kerestes is entitled to dismissal of Counts IV, V1, and V2.
6 Plaintiffs Amended Complaint (Doc. 57) has two different counts listed as "Count V:" "Count V ­ Negligence - Medical Malpractice for Failure to Treat Plaintiffs Hepatitis-C" on page 18 of the Amended Complaint and "Count V- Medical Malpractice for Failure to Treat Skin Condition" on page 19. For clarity and ease of reference, the Court designates the above-mentioned counts as Count V1 and Count V2, respectively.
26

F. Mootness 
 Defendant Kerestes's final argument in his Motion to Dismiss asks the Court to dismiss as moot "Plaintiffs claims for declaratory and injunctive relief related to visits while at Geisinger Medical Center." (Doc. 89 at 12). Article III of the Constitution provides that the "judicial power shall extend to ... cases ... [and] to controversies." U.S. Const. Art III, § 2. This grant of authority embodies a fundamental limitation restricting the federal courts to the adjudication of "actual, ongoing cases or controversies." Khodara Envtl., Inc, v. Beckman, 237 F.3d 186, 193 (3d Cir. 2001). The mootness doctrine is centrally concerned with the court's ability to grant effective relief. "If developments occur during the course of adjudication that eliminate a plaintiffs personal stake in the outcome of a suit or prevent a court from being able to grant the requested relief, the case must be dismissed as moot." Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698-99 (3d Cir. 1996). The parties disagree as to whether Plaintiffs claims for declaratory and injunctive relief are moot or whether they are 'capable of repetition, yet evading review.' The 'capable of repetition, yet evading review' exception to the mootness doctrine "applies 'only in exceptional situations,' where (1) 'the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration,' and (2) 'there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again.'" Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1976 (2016) (quoting Spencer v. Kemna, 523 U.S. 1, 17 (1998); brackets in original). Defendant Kerestes argues that because Plaintiff
27 


has been discharged from Geisinger Medical Center, "[a1ny belief or suspicion that [he] may

again be transferred to Geisinger, admitted to the hospital for inpatient treatment, and

subsequently denied visits is too speculative to form a basis for prospective relief." (Doc.

101 at 14; see also Doc. 89 at 12-13). Plaintiff believes that "he remains at imminent risk"

for repeat violations due to his "undisputed health issues, his advancing age[,] and his

sentence of life without the possibility of parole." (Doc. 93 at 14).

At the outset, the Court notes that Plaintiffs request for permanent injunctive relief is

actually far broader in scope than what Defendant Kerestes addresses. In Paragraphs G

and Hof the Amended Complaint (Doc. 57), Plaintiff asks the Court to "grant a permanent

injunction ordering defendants to permit attorney-client visits whenever plaintiff Abu-Jamal is

taken from a DOC facility to receive inpatient medical treatment" and to "grant a permanent

injunction ordering defendants to permit family visits when plaintiff Abu-Jamal is taken from

a DOC facility to receive inpatient medical treatment." At this juncture, the Court is of the

opinion that, should Plaintiff ultimately be entitled to relief, it is unlikely that he will be able to

show on the facts of this case that such a broad injunction, extending to every inpatient

medical facility to which DOC might ever transport Plaintiff, is warranted.

"An inmate's transfer from the facility complained of generally moots the equitable

and declaratory claims." Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003), as amended

(May 29,2003); Suarez v. Kerestes, No. 3:13-CV-2004, 2016 WL 1756901, at *2 (M.D. Pa.

Apr. 29, 2016)) (quoting Burkey v. Marberry, 556 F.3d 142, 147 (3d Cir. 2009) ("Once a

f

f

28

I

petitioner has been released from custody, 'some continuing injury, also referred to as a

collateral consequence, must exist for the action to continue."'). While it is true that Plaintiff

is no longer at Geisinger Medical Center, he is still incarcerated at a facility headed by

Defendant Kerestes and, thus, his claim against Defendant Kerestes is not in the same

I

posture with respect to a mootness analysis as it would be if his sentence had been served

f

or overturned and he was released from prison. The Court finds that the two prongs of the 'capable of repetition, yet evading review' test are met here. First, it is clear that the actions

I

I

challenged by Plaintiff are too short in duration to be litigated prior to cessation or expiration;

as of the date of this Opinion, Plaintiff continues to litigate an alleged denial of his

associational rights that occurred between May 12, 2015 and May 18,2015. Second, the

Court finds that it is reasonable to expect that Plaintiff will be subject to the same conduct

again. The crux of Plaintiffs Amended Complaint is that he has not received adequate

medical care at SCI Mahanoy, causing him serious injuries, pain, and suffering. As part of

I

this action, Plaintiff has alleged that his condition deteriorated to the point where he had to

i

be hospitalized twice within a two-month span in the spring of 2015. (See Doc. 57 at 1m 38,

I

48). Taking these allegations as true, as well as the various allegations throughout the

I

Complaint that persons at SCI Mahanoy and within the DOC have failed to adequately treat

him, there is a reasonable expectation that Plaintiff will again require hospitalization at a

medical facility, although not necessarily one affiliated with or operated by Geisinger.

I

29

f

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"The burden of demonstrating mootness is a heavy one." Surrick v. Killion, 449 F.3d 520,526 (3d Cir. 2006) (citing Cnty. of Los Angeles V. Davis, 440 U.S. 625, 631 (1979)) (internal quotation omitted). "[T]he requirement that an action involve a live case or controversy extends through all phases of litigation, including appellate review." Cntyof Morris v. Nationalist Movement, 273 F.3d 527, 533 (3d Cir. 2001) (citing Khodara Envtl'J Inc., 237 F.3d at 193). If, as the case develops, Defendant Kerestes meets his burden and demonstrates that Plaintiffs claims for permanent injunctive relief and - to the extent he makes them - for declaratory relief have become moot, the Court will dismiss the claims. At this stage of litigation, however, Defendant Kerestes has not demonstrated mootness.
V. CONCLUSION For the foregoing reasons, the Court will grant in part and deny in part Defendant Kerestes's Motion to Dismiss (Doc. 81). A separate Order follows.
30 


 
 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MUMIA ABU-JAMAL, et al.,

Plaintiffs,
v.
JOHN KERESTES, et al.

3: 1S-CV-00967 (JUDGE MARIANI)

Defendants.

MEMORANDUM OPINION

I. INTRODUCTION

Presently before the Court is Defendants Steinhart and Oppman's Motion to Dismiss

Plaintiffs Amended and Supplemental Complaint (Doc. 108) for failure to state a claim upon

which relief may be granted. The First Amended and Supplemental Complaint (Doc. 57)

contains claims arising out of Plaintiff Mumia Abu-Jamal's hospitalization at Geisinger

Medical Center from May 12 to May 18, 2015, as well as his medical conditions, including

his ongoing hepatitis C infection.

Plaintiff Abu-Jamal along with Plaintiffs Brett Grote and Robert Boyle, also Mr. Abu­

Jamal's attorneys of record in this matter, initially filed this action on May 18, 2015 claiming

violations of the right to association and access to the courts. (Comp!., Doc. 1at 10). Plaintiffs alleged that Defendant Kerestes and Defendant Geisinger "barred the plaintiff

attorneys from visiting with Mr. Abu-Jamal" and further "prohibited all communication

between Mr. Abu-Jamal and anyone," with the exception of a short phone call between him

I

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J
i
r
"

and his wife. (Id. at 3). Subsequently, Plaintiffs Boyle and Grote filed notices of voluntary
dismissal (Docs. 17, 18), leaving Mr. Abu-Jamal (hereinafter, "Plaintiff') as the only
remaining plaintiff.
On November 24, 2015, Plaintiff filed a Supplemental and Amended Complaint (Doc.
57) (hereinafter "Amended Complaint"), which added several defendants. Those
Defendants are Defendants Lisiak, Khanum, and Saxon (hereinafter, the "Medical
Defendants") and Defendants Oppman and Steinhart, Pennsylvania Department of
Corrections ("DOC") employees. The Amended Complaint also added Eighth Amendment
and state law negligence medical claims related to Plaintiffs hepatitis Cand other
conditions. The counts alleged against Defendants Steinhart and Oppman are: Count 11­
Deprivation of Eighth Amendment Right to Medical Care for Hepatitis C, Count V-
Negligence - Medical Malpractice for Failure to Treat Plaintiffs Hepatitis-C, and Count V-
Medical Malpractice for Failure to Treat Skin Condition. 1 (See discussion infra p. 24 n.6).
Defendants Steinhart and Oppman now move for dismissal of these claims. This Motion
(Doc. 108) has been briefed and is ripe for review. For the reasons stated herein, the Court
will grant in part and deny in part Defendants Steinhart and Oppman's Motion.
1 Plaintiffs Amended Complaint (Doc. 57) has two different counts listed as "Count V:" "Count V­ Negligence - Medical Malpractice for Failure to Treat Plaintiffs Hepatitis-C" on page 18 of the Amended Complaint and "Count V- Medical Malpractice for Failure to Treat Skin Condition" on page 19. While the Court does not wish to be unduly harsh on lawyers for the occasional error in their submissions, in this case, when viewed in conjunction with the numerous substantive and drafting deficiencies in the Amended Complaint, this error is the last drop that makes the cup run over. The Court admonishes Plaintiffs Counsel to devote closer attention to these points of practice in future filings before this and other Courts, lest their credibility and professional competence be questioned. For clarity and ease of reference, the Court designates the above-mentioned counts as Count V1 and Count V2, respectively.
2 


II. FACTUAL BACKGROUND The Amended Complaint alleges the following facts. Plaintiff Mumia Abu-Jamal is currently incarcerated in the custody of the Pennsylvania Department of Corrections. (Doc. 57 at 2, ~ 1). Plaintiff was convicted in the
December 9, 1981 death of a Philadelphia police officer. (/d. at 1m 13-14). In 2011, the
Third Circuit affirmed a lower court's order setting aside Plaintiffs death sentence and DOC placed him into general population 2 after the Philadelphia District Attorney's Office chose
not to seek to reinstate Plaintiffs death sentence. (/d. at 1m 18-19).
Plaintiff tested positive for the Hepatitis C antibody during routine blood work in January 2012. (ld. at ~ 24). Hepatitis C is the leading cause of cirrhosis of the liver and of liver cancer; a chronic Hepatitis C infection can also cause serious chronic liver disease, liver fibrosis and death. (Id. at ~ 25). According to Plaintiff, if a person tests positive for the Hepatitis C antibody, the next step is to determine whether the infection is an "active" one, including but not limited to determining whether that person has a "viral load." (Id. at ~ 26). If the infection is determined to be active, the individual is at risk for serious complications that arise from the disease. (Doc. 57 at ~ 26).
Despite repeated requests, the Defendants have not conducted a complete Hepatitis Cworkup of Plaintiff and have not treated the disease or adequately treated his symptoms. (Id. at ~ 27).
2 Plaintiff curiously fails to allege explicitly that he is incarcerated at SCI-Mahanoy, however the Court draws the reasonable inference that he is from the allegations of the Amended Complaint.
3 


I
j

Plaintiff alleges that Hepatitis Ccan manifest in a number of ways even in the

f­
1

absence of abnormal liver functions, including in the form of persistent skin rash and/or

I

eczema that does not respond to traditional treatment. (Id. at ~ 28).

!
!

In or about August 2014, Plaintiff alleges that he began to experience itching over his

t

whole body and that the itching was reported to facility staff. (ld. at ~ 30). He was

I

prescribed creams, which had no effect, and the rash spread. (Id.). Plaintiff alleges that the underlying cause of the rash, including the possibility that it was a manifestation of an active

I

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Hepatitis Cinfection, was not investigated. (Id.).

I
I

t

;

The rash became infected on two occasions in early 2015, with lesions appearing on

Plaintiffs lower extremities. (Doc. 57 at ~ 31). Medical staff noted that the lesions were "too

numerous to count." (Id.). Plaintiffs lower extremities became swollen and his skin took on

a dark, scaly appearance. (ld.). Plaintiff alleges that the rash caused and continues to

cause extreme pain and discomfort. (Id. at ~ 32). The rash covered 70 percent of Plaintiffs

body by February 2015. (ld. at ~ 33). The itch was unceasing; Plaintiff began using a

wheelchair to move any significant distance because the lower extremity and genital edema

caused so much discomfort. (ld.).

Plaintiff was prescribed "another steroid, oral prednisone, and Cyclosporine, an

immunosuppressant," in late February 2015, but the rash perSisted. (Doc. 57 at ~ 34). A

medical note dated February 19, 2015 recorded that Plaintiff was experience "increasing

peeling off of dry skin at the site of the rashes." (Id.).

4 


Plaintiffs blood was drawn on March 6, 2015 and the results showed that Plaintiffs 

glucose level had risen to the severely abnormal level of 419. (Id. at 11 35). Prior to this,
Plaintiffs blood glucose was always within normal range. (Id.). Plaintiff alleges that the Medical Defendants were aware of his dramatically elevated
glucose level indicating a dangerous case of hyperglycemia and that they took no action to address the glucose level even though it was noted in their records. (ld. at 1f1f 36-37). Plaintiff alleges that there was no treatment provided and no follow up testing of his glucose
level, and that the Medical Defendants did not inform him of the test result. (ld. at 11 37).
Plaintiff lost consciousness on March 30, 2015 and was rushed to Schuylkill Medical
Center. (Doc. 57 at 11 38). His blood glucose was found through testing to be 507. (Id.).
He had gone into diabetic shock and was placed in the Critical Care Unit. (Id.)
Untreated hyperglycemia is a potentially fatal condition. (Id. at 11 39). Plaintiff returned to prison on April 1. (Id. at 11 40). Release papers indicate his
prognosis as "guarded" and included the following medical issues: "diabetes, new onset, encephalopathy secondary to hyperglycemia, dehydration, acute kidney injury, hyponatremia, hypokalemia, asymptomatic gallstones, skin rash, anemia and a history of hepatitis C." (ld.).
Plaintiff experienced fatigue, episodes of "brain fog," and emotional distress in the
weeks following the diabetic shock. (Doc. 57 at 11 41).
5 


Plaintiffs blood work revealed and continues to reveal abnormalities. (Id. at ~ 42).

He suffers anemia as indicated by a consistently below-normal hemoglobin count. (ld.).

Defendants continued to administer cyclosporine despite the fact that it is

contraindicated for an African-American of Plaintiffs age who has sudden-onset diabetes.

(Id. at ~ 43). Plaintiff is an African-American. (ld. at 2, ~ 1).

The Schuylkill Medical Center release order noted a history of Hepatitis C; none of

the Defendants, including the Medical Defendants, took any steps to investigate whether

Hepatitis Cmay be the cause of Plaintiffs rash or other medical issues. (Id. at ~ 44).

Plaintiff retained counsel in March 2015 to advocate on his behalf for appropriate

medical care; efforts have included visits, procurement of medical records, and consultation

with medical experts. (Doc. 57 at ~ 45). One expert reviewed Plaintiffs medical records.

,

(ld. at ~ 46). On April 28, 2015, Counsel transmitted to DOC a medical opinion letter from

!

this expert. (ld.). The expert opined, inter alia, that an "occult malignancy workup" should

I

f

be done to determine the cause of Plaintiffs still-present severe rash and anemia, as both

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are indicative of T-Cell Lymphoma. (ld. at ~ 47). The expert noted that the workup to

I

investigate the cause of the rash was "urgent at this time" and that if the rash is due to

I

lymphoma or another serious underlying medical condition, delay in diagnosis "may have

1
i

severe and even lethal consequences." (Id.).

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6

~

Plaintiff experienced extreme pain in his lower extremities when showering on or 


about May 12, 2015. (Id. at 1f 48). He was removed to Geisinger Medical Center3 later that

day. (Doc. 57 at 1f 48).

Plaintiffs Counsel and his wife both requested that they be permitted to visit with

Plaintiff at Geisinger. (Id. at 1f 49).

Counsel and Plaintiffs wife were initially told that Defendant Kerestes would permit

visits from immediate family members but were then told that Plaintiff would be denied all

visitation, including visits with Counsel, so long as he remained at Geisinger. (/d. at 1f 50).

! !

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i

Plaintiff would also not be permitted to telephone Counselor his wife. (ld.).

~
I

!

Counsel for DOC asserted that the prohibition on visitation and phone calls was the

I

!

policy of Defendant Geisinger. (Id. at 1f 51). During a prior hospitalization at Schuylkill

f

Medical Center, Plaintiff received visits from his attorney and immediate family. (Id.).

On May 14, 2015, Counsel contacted Geisinger's litigation counsel, Donald

Zaycosky, who agreed to seek authorization 'from Geisinger's Chief Medical Officer and

DOC officials to permit family and attorney visits and phone calls. (Doc. 57 at 1f 52).

Plaintiff was granted a fifteen minute telephone call with his wife on May 18, 2015.

(Id. at 1f 53).

3 Plaintiff does not provide the address of Geisinger Medical Center or otherwise specify to which Geisinger Health Systems inpatient hospital he was taken. The Court takes judicial notice of the fact that that "Geisinger Medical Center" is the name of the Geisinger facility located in Danville, Pennsylvania. See "About Geisinger Medical Center," http://www.geisinger.org/for-patients/locations-directionsigmc/index.html (July 12, 2016).
7 


Plaintiff was not permitted visitation with his attomeys or family during his stay at

Geisinger. (Id.).

During his May 12, 2015 to May 19, 20154 hospitalization at Geisinger, numerous

diagnostic tests were conducted. (Id. at ~ 54). While the tests and a subsequent bone

marrow biopsy ruled out some serious conditions, including some cancers, the underlying

causes of Plaintiffs health problems, including the rash and anemia, were not determined.

(Id. at ~ 55).

A Hepatitis Cworkup was not performed at Geisinger Medical Center. (Id. at ~ 56).

While Plaintiff was at Geisinger, his rash was treated with asteroid wrap four times a

day, which partially alleviated the rash's worst symptoms. (Doc. 57 at ~ 57).

The Geisinger discharge reported dated May 18, 2015 advises DOC to, inter alia,

arrange for adermatology follow-up within two weeks and to order a Hepatitis Cworkup as

Plaintiff might be a suitable candidate for Hepatitis Ctreatment. (Id. at ~ 58).

From Plaintiffs May 18, 2015 return to SCI Mahanoy to the date of the 'filing of the

Amended Complaint, Plaintiffs rash has only been treated with a Vaseline wrap. (Id. at ~

59). The wrap was applied twice a day upon his return from Geisinger. (Id.). As of the

'filing of the Amended Complaint, Plaintiff alleges that "the worst symptoms" have returned.

(Id.).

,

I

!.

I

,!

4 It is unclear from the Amended Complaint on what date Plaintiff was released from Geisinger Medical Center and returned to SCI Mahanoy. Plaintiff provides both a release date of May 19, 2015, (see

,!
!
!

Doc. 57 at 1f 54), and of May 18, 2015, (see id. at 1f 59).

I

,l

;

8

Plaintiff again experiences itching over his entire body, his lower extremities are swollen, his skin peels and scales, he experiences a consistent low-grade fever, and he is unable to walk signi'flcant distances due to the pain in his lower extremities. (Id. at ~ 60).
As of the filing of the Amended Complaint, there has been no follow-up with a dermatologist, notwithstanding the recommendations of Geisinger Medical Center. (Doc. 57 at ~ 61).
Plaintiff alleges that the type of skin rash and edema experienced by Plaintiff at the time of the filing of the Amended Complaint is likely caused by an active Hepatitis C infection. (Id. at ~ 62).
Defendants have been made aware that the skin condition is a likely complication of untreated Hepatitis Cthrough letters from counsel accompanied by expert medical reports. (Id. at ~ 63).
During the last week of July 2015, Plaintiff was informed by a doctor at SCI Mahanoy that a blood test revealed that he has active Hepatitis C. (Id. at ~ 64).
Plaintiff was informed that DOC currently has no protocol for treating Hepatitis C. (Id.).
Plaintiff alleges that the Defendants are refusing to provide him with Hepatitis C treatment despite him having active Hepatitis Cthat has been causing him severe health problems for several months. (Id. at ~ 65).
9 


Despite repeated requests from counsel, Defendants have refused to permit Plaintiff 
 to be examined by an independent physician under appropriate medical conditions, even at his own expense. (Doc. 57 at 1f 66).
One expert visited Plaintiff on a regular visit and also examined available medical records. (ld. at 1f 67). Based on the visit and records review, the expert opined that Plaintiffs skin condition is likely a manifestation of the Hepatitis C infection. (/d.). The expert recommended specific treatments for both the skin condition and the Hepatitis C, (id.); these recommendations were provided to DOC counsel but have not been implemented, (id. at 1f 68).
Plaintiff has been informed that DOC officials have forbidden medical staff at SCI Mahanoy from receiving any opinions, letters, diagnoses, or other communications from doctors who are working with counsel for Plaintiff, even if such opinions or letters are provided to them by Plaintiff himself. (Id. at 1f69).
Plaintiff alleges that as of the filing of the Amended Complaint, he is currently receiving no treatment for his skin conditions and that the Vaseline applications have ended and his lower extremities are no longer wrapped. (Doc. 57 at 1f 70).
Plaintiff alleges that the itching is extreme and incessant and that it causes pain, loss of sleep, and resultant fatigue. (/d. at 1f 71).
Plaintiff alleges that there is no medical justification for Defendants' failure to treat his skin condition and/or Hepatitis C. (/d. at 1f 72).
10 


Plaintiff alleges that the Defendants' actions and inactions have caused and continue to cause him pain, suffering, and emotional distress. (ld. at ~ 73).
Plaintiff alleges that the untreated, active Hepatitis C infection has caused and continues to cause damage to his liver. (ld. at ~ 74).
III. STANDARD OF REVIEW A complaint must be dismissed under Federal Rule of Civil Procedure 12(b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell At!. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plaintiff must aver "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Though a complaint 'does not need detailed factual allegations, ... a formulaic recitation of the elements of a cause of action will not do."' DelRio-Mocci v. Connolly Prop. Inc., 672 F.3d 241, 245 (3d Cir. 2012) (citing Twombly, 550 U.S. at 555). In other words, 'T~actual allegations must be enough to raise a right to relief above the speculative level." Covington v. Int'I Ass'n of Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013) (internal citations and quotation marks omitted). A court "take[s] as true all the factual allegations in the Complaint and the reasonable inferences that can be drawn from those facts, but ... disregard[s] legal conclusions and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Ethypharm S.A. France v.
11 


Abbott Laboratories, 707 F.3d 223, 231, n.14 (3d Cir. 2013) (internal citations and quotation marks omitted).
Twombly and Iqbal require [a district court] to take the following three steps to determine the sufficiency of acomplaint: First, the court must take note of the elements a plaintiff must plead to state a claim. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief. Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013). "[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not show[n]-that the pleader is entitled to relief." Iqbal, 556 U.S. at 679 (internal citations and quotation marks omitted). This "plausibility" determination will be a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. However, even "if a complaint is subject to Rule 12(b)(6) dismissal, a district court
must permit a curative amendment unless such an amendment would be inequitable or
futile." Phillips v. Cnty. ofAllegheny, 515 F.3d 224,245 (3d Cir. 2008).
[E]ven when plaintiff does not seek leave to amend his complaint after a defendant moves to dismiss it, unless the district court finds that amendment would be inequitable or futile, the court must inform the plaintiff that he or she has leave to amend the complaint within a set period of time.
Id.
12 


IV. ANALYSIS At the beginning of their Brief in Support of their Motion to Dismiss, Defendants Steinhart and Oppman "request that the Court take judicial notice of the evidence admitted at the December 18, 2015 preliminary injunction hearing ...." (Doc. 115 at 8 n.1). They argue that the Court may consider such evidence without converting the instant motion to dismiss to a motion for summary judgment, citing McTernan v. City of York, Penn., 577 F.3d 521, 530 (3d Cir. 2009). Plaintiff does not wish the Court to consider the record made at the preliminary injunction hearing, arguing that doing so would require converting the motion to dismiss into one for summary judgment and that Plaintiff would thus be entitled to discovery. (Doc. 117 at 6-7). The Court declines to consider the evidence introduced at the preliminary injunction hearing held in December 2015. Consistent with McTernan, it is the "rare" case where "the circumstances make it likely that the findings [made in preliminary injunction decisions] are accurate and reliable" to the extent that they may be considered preclusive. McTernan, 577 F.3d at 530-31. Indeed, no such findings have been made in this case. Given that the litigation is in the pleadings stage, the Court finds it appropriate to put Plaintiffs allegations alone to the test of Iqbal and Twombly.
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A. Eleventh Amendment Immunity 


Defendants Oppman and Steinhart 'first ask the Court to dismiss Plaintiffs claims "to

the extent that [he] seeks to impose liability for money damages against [them] in their

official capacities," relying on the Eleventh Amendment. (Doc. 115 at 16).

The law upon which Defendants Steinhart and Oppman rely is sound and well-

established. Federal courts cannot consider suits by private parties against states and their

agencies unless the state has consented to the filing of such a suit. See Pennhurst State

Sch. and Hasp. v. Halderman, 465 U.S. 89 (1984); Christy v. Pa. Turnpike Comm'n, 54 F.3d

1140 (3d Cir. 1995), celt. denied, 516 U.S. 932 (1995). The Eleventh Amendment bars

claims for monetary damages sought against a state official acting in his or her official

capacity absent a valid abrogation by Congress or consent of the State. See Kentucky v.

Graham, 473 U.S. 159, 169 (1985) (holding that "absent waiver by the State or valid

congressional override, the Eleventh Amendment bars a damages action against a State in

federal court"). Congress did not validly abrogate or purport to abrogate the States'

sovereign immunity against damages claims under section 1983, and the Commonwealth of

I

Pennsylvania has not waived its Eleventh Amendment immunity. See Hafer v. Me/a, 502

U.S. 21,25-27 (1991) (suits against state officials acting in their official capacities are suits

I

against the employing government agency, and as such, are barred by the Eleventh

f

Amendment); 42 Pa. Cons. Stat. Ann. § 8521-22. Thus, Plaintiff cannot recover monetary

I

damages against Defendants Steinhart and Oppman in their official capacities, as such

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claims are barred by the Eleventh Amendment. Plaintiffs requests for monetary damages

are dismissed to the extent they are brought against Defendants Steinhart and Oppman in

their official capacities.

B. Personal Involvement

Section 1983 of Title 42 of the United States Code offers private citizens a cause of

action for violations of federal law by state officials. See 42 U.S.C. § 1983. The statute

provides, in pertinent part, as follows:

Every person who, under color of any statute, ordinance, regulation, custom,

or usage, of any State or Territory or the District of Columbia, subjects, or

!

causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or

I~
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immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for

I

redress ....

Id., see also Gonzaga Univ. v. Doe, 536 U.S. 273,284-85 (2002); Kneipp v. Tedder, 95

F.3d 1199, 1204 (3d Cir. 1996). To state a claim under § 1983, a plaintiff must allege "the

violation of a right secured by the Constitution and laws of the United States, and must

show that the alleged deprivation was committed by a person acting under color of state

law." West v. Atkins, 487 U.S. 42, 48 (1988). See also Barna v. City of Perth Amboy, 42

F.3d 809,815 (3d Cir. 1994).

Additionally, "[t]o establish liability for deprivation of a constitutional right under §

1983, a party must show personal involvement by each defendant." Keys v. Carroll, No.

3:10-CV-1570, 2012 WL 4472020, at *9 (M.D. Pa. Sept. 26, 2012), citing Iqbal, 556 U.S. at

15

676-77 ("Because vicarious liability is inapplicable to Bivens and § 1983 suits, a plaintiff

must plead that each Government-official defendant, through the official's own individual

actions, has violated the Constitution."). "A plaintiff makes sufficient allegations of a

defendant's personal involvement by describing the defendant's participation in or actual

knowledge of and acquiescence in the wrongful conduct." Chavarriaga v. N.J. Dep't of

Corr., 806 F.3d 210, 222 (3d Cir. 2015) (citing Rode v. Dellarciprete, 845 F.2d 1195, 1207

(3d Cir. 1988)). A court may infer that the defendant had contemporaneous knowledge of

wrongful conduct from the circumstances of the case, but that knowledge must be actual,

not constructive. Id. "A conclusory allegation that defendants were 'directly involved' in the

violations of the plaintiffs rights is not sufficient to allege personal involvement." Chimenti v.

Pa. Dep't. of Corr., No. 15-cv-3333, 2016 WL 1125580, at *5 (E.D. Pa. Mar. 21,2016)

(citing Bush v. Dep't of Human Servs., 614 F. App'x 616,620 (3d Cir. 2015)).

Defendants Steinhart and Oppman argue that Plaintiffs § 1983 Eighth Amendment

claim against them (Count II) should be dismissed because neither of them "were directly

I

responsible for treating Plaintiffs conditions." (Doc. 115 at 7). As an initial matter, Plaintiff

I

alleges that

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Defendant John Steinhart is the Chief Health Care administrator at SCI Mahanoy. Upon information and belief, Defendant Steinhart is the official with

f
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the authority to approve medical tests and procedures, and treatments at issue in this litigation.

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(Doc. 57 at 1f 7). As for Defendant Oppman, Plaintiff alleges that he

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16

is the Director of the Bureau of Health Care Services of the DOC. The 
 Bureau of Health Care Services is responsible for the delivery of all medical 
 and dental care services throughout the DOC. 


(Id. at 1f 3).

Besides the above-quoted allegations that Defendant Steinhart is "the official with

the authority to approve medical tests and procedures, and treatments at issue in this

litigation" and that Defendant Oppman heads the department "responsible for the delivery of

all medical and dental care service throughout the DOC," Plaintiff alleges in conclusory

fashion that "Defendants ... Oppman ... and Steinhart ... have failed to treat his Hepatitis

C," (Doc. 57 at 1f 78). Beyond this, there is little in the Amended Complaint in the way of

I

factual allegations related to medical care or lack thereof that specifically address either

Defendant Steinhart or Defendant Oppman's conduct. The Amended Complaint is riddled

with allegations in the passive voice - allegations that do not permit the Court to infer which,

if any, of the named Defendants is responsible for the alleged action.5 Also frequently

occurring throughout the Amended Complaint are vague, broad statements addressing the

conduct or scienter of "defendants." For instance, Plaintiff alleges that U[t]he defendants

have been made aware the skin condition is a likely complication of untreated Hepatitis C

through letters from counsel accompanied by expert medical reports." (Doc. 57 at 1f 63).

Which Defendants were made aware, by whom, and when are questions that the Amended

Complaint fails to answer. The Court cannot accept these broad-sweeping allegations as

I

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5 See, e.g. Doc. 57 at 1f 30 ("Creams were prescribed,"); id. at 1f 64 ("Mr. Abu-Jamal was informed
that the DOC currently has no protocol for treating Hepatitis C.").

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being plead with sufficient particularity to refer to Defendant Steinhart or Defendant 


Oppman.

There are a few statements in the Amended Complaint whose construction allows

the Court to say confidently that Plaintiff has alleged Defendant Steinhart or Defendant

Oppman did or did not take some action. For instance, Plaintiff alleges that despite a

release order from Schuylkill Medical Center noting that Plaintiff had a history of Hepatitis C,

"none of the defendants, including defendants Lisiak, Khanum, or Saxon, took any steps to

investigate whether the Hepatitis C may be the cause of the rash and/or other medical

I

issues." (Doc. 57 at 1f 44). Though they are not specifically named in this allegation, as the

I
I

Medical Defendants are, Defendants Steinhart and Oppman are alleged not to have taken

I
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any steps to investigate Plaintiff's Hepatitis Ccondition as a cause of his rash or other

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medical conditions. Similarly, the Court reads Paragraph 27, though grammatically

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incorrect, to allege that Defendants Steinhart and Oppman have not conducted a complete

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Hepatitis Cworkup for Plaintiff nor "treated the disease or adequately treated his

I I

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symptoms." (Id. at 1f 27). These are the extent of the allegations that relate to medical care

I,

made against Defendants Steinhart and Oppman.

t

The Court begins its analysis with Defendant Oppman. Given the above-noted

deficiencies and lack of specificity in the Amended Complaint with respect to Defendant

Oppman, Plaintiff has failed to "make[] sufficient allegations of [Defendant Oppman's]

personal involvement by describing the defendant's participation in or actual knowledge of

18

and acquiescence in the wrongful conduct." Chavarriaga, 806 F.3d at 222. From the Amended Complaint, the Court does not know what Plaintiff believes Defendant Oppman did or did not do when or with whom with respect to Plaintiffs health.
To the extent that Plaintiff bases his § 1983 claim against Defendant Oppman on any policymaking role that he may have, Plaintiff has also failed to allege sufficient personal involvement to survive the Motion to Dismiss. Plaintiff states in his Brief in Opposition to this motion that "Defendant Oppman was sued for his role in the DOC's failure to treat [his] hepatitis C, as he was the head of health care for the entire DOC and therefore responsible for any treatment protocol for hepatitis C." (Doc. 117 at 10). Plaintiff attempts to ground this assertion in Paragraph 64 of the Amended Complaint, which reads, in relevant part, "Mr. Abu-Jamal was informed that the DOC currently has no protocol for treating Hepatitis C." (Doc. 117 at 10; Doc. 57 at ~ 64). Plaintiff also represents to the Court that "[fjacts alleging that the DOC had a policy and practice of not treating hepatitis Care sufficient to implicate the personal involvement of defendant Oppman due to his role in ensuring the delivery of all medical services throughout the DOC," with acitation to Santiago v. Warminster Township, 629 F.3d 121, 129 n.5 (3d Cir. 2010). Upon review of Santiago, the Court has determined that it does not directly support the proposition asserted by Plaintiff, as his citation would otherwise indicate. The footnote cited by Plaintiff quotes A.M. ex rei. J.M.K. v. Luzerne County Juvenile Detention Center, 372 F.3d 572, 586 (3d Cir.2004) for the proposition that
'[t]here are two theories of supervisory liability,' one under which supervisors can be liable if they 'established and maintained a policy, practice or custom
19 


which directly caused [the] constitutional harm,' and another under which they can be liable if they 'participated in violating plaintiffs rights, directed others to violate them, or, as the person[s] in charge, had knowledge of and acquiesced in [their] subordinates' violations.'

Santiago, 629 F.3d at 129 n.5. But Plaintiff has failed to demonstrate to the Court how the

allegations in the Amended Complaint - either directly or by reasonable inference - add up

to state a claim against Defendant Oppman under either of these theories. Plaintiff cannot

graft new factual allegations onto the Amended Complaint via his Opposition Brief. For

instance, Defendant Oppman is alleged to be the Director of the part of DOC that "is

responsible for the delivery of all medical and dental care services throughout DOC," (Doc.

57 at ~ 3); however, Plaintiff makes no allegations regarding how or at what level medical

I

policies are set, and, thus, the Court cannot infer Defendant Oppman's responsibility for

I

them. Indeed, Plaintiff has not even alleged, as he asserts in his Opposition Brief that he

f

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did, "that the DOC had a policy and practice of not treating hepatitis C." (Doc. 117 at 10).

I

f

The Amended Complaint alleges that Plaintiff was not treated and that he "was informed

I

that the DOC currently has no protocol for treating Hepatitis C." (Doc. 57 at ~ 64)

I

(emphasis added). The Court cannot infer that Defendant Oppman, by virtue of his role as

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"Director of the Bureau of Health Care Services of the DOC," is responsible for a policy or

r

practice that is not actually alleged to exist. The Court will dismiss Count II as to Defendant

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Oppman.

I

With respect to Defendant Steinhart, Plaintiff seems to assume that the Court will

I

consider the grievance Plaintiff filed about his medical conditions and the subsequent

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responses from DOC personnel to that grievance and related appeals. Thus, Plaintiff

argues that Defendant Steinhart had sufficient personal involvement to state a § 1983 claim

against him because he "was made aware, through [Plaintiff]'s grievance and his appeals,

that he was in an ongoing health crisis that was not being addressed by prison medical

staff," and because Defendant Steinhart then "refused" to intervene and instead issued a

denial. (Doc. 117 at 11). Were the Court to consider Defendant Steinhart's role in the

grievance system, it is not clear that this would be enough to sufficiently allege personal

involvement. Courts in the Third Circuit have repeatedly held that a prison official's role in

reviewing grievance is not, without more, sufficient to establish personal involvement in the

alleged constitutional injury. See, e.g., Mincy v. Chmielsewski, 508 F. App'x 99, 104 (3d

Cir. 2013) ("[AJn officer's review of, or failure to investigate, an inmate's grievances

generally does not satisfy the requisite personal involvement."); Rogers v. United States,

696 F. Supp. 2d 472, 488 (W.O. Pa. 2010) ("If a grievance official's only involvement is

investigating and/or ruling on an inmate's grievance after the incident giving rise to the

grievance has already occurred, there is no personal involvement on the part of that

official."); see also Sims v. Wexford Health Sources, 635 F. App'x 16, 19 (3d Cir. 2015)

("Prison officials who are not doctors are not liable for responding directly to prisoner

medical complaints where the prisoner is under the care of medical experts."). However, as

Plaintiff pOints out, (see Doc. 117 at 11), there is support in the case law for the proposition

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that reviewing a grievance about an ongoing constitutional violation may be sufficient to

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establish the personal involvement of the reviewing official. See Cardona v. Warden - MDC 


Facility, No. 12-7161,2013 WL 6446999, at *5 (D.N.J. Dec. 6, 2013) (collecting cases and

noting that a plaintiff may have a claim against a supervisory defendant who reviewed a

grievance where the plaintiff alleges an ongoing violation); Diaz v. Palakovich, 448 F. App'x

211,215 (3d Cir. 2011) ("[A] reasonable factfinder could find that these defendants had

knowledge of the violations through Diaz's grievances and acquiesced in the violations by

falling to address a practice of opening legal mail outside of an inmate's presence.").

The Court need not reach this issue of whether Defendant Steinhart's role in

reviewing Plaintiffs grievance was sufficient to establish personal involvement here,

however, where Plaintiffs grievance and appeals thereof are mentioned nowhere in the

Amended Complaint. Though the documents making up Plaintiffs grievance history are of

record elsewhere in this case, the Court declines to consider them in conjunction with

Defendant Steinhart and Defendant Oppman's Motion to Dismiss. Unlike administrative

f

exhaustion, which was at issue in the oft-cited Spruill v. Gillis, 372 F.3d 218 (3d Cir. 2004),

I

the issue of personal involvement cannot be said to "turn[] on" the documents related to

Plaintiffs grievances, id. at 223, and the Court will not consider them where Plaintiff has not

included reference to them in his Amended Complaint. Cf. id. at 223 (uGiven that the

exhaustion issue turns on the indisputably authentic documents related to Spruill's

grievances, we hold that we may also consider these without converting it to a motion for

summary judgment.").

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The grievance theory of personal involvement dispensed with, the Court turns to

Plaintiffs allegation that Defendant Steinhart, as the Chief Health Care Administrator at SCI

Mahanoy, "is the official with the authority to approve medical tests and procedures, and

r

treatments at issue in this litigation." (Doc. 57 at 11 7). From this allegation, Plaintiff wishes

i

f

the Court to infer that Defendant Steinhart is "responsible for the facility's refusal to treat

I
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[Plaintiff]'s hepatitis C," a refusal of which Plaintiff believes he has alleged Defendant

I

Steinhart was sufficiently aware. (Doc. 117 at 10). The Court disagrees with Plaintiffs

!

understanding of the content of his Amended Complaint. Give the lack of allegations in the

I

active voice, as well as those delineating the specific actions or omissions by Defendant

I

f

Steinhart, if any, the Court finds that Plaintiff has failed to establish personal involvement or

knowledge and acquiescence in the constitutional violations alleged by Plaintiff. Thus,

Count II is dismissed as to both Defendant Steinhart and Defendant Oppman. But since the

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Court is of the view it is neither futile nor inequitable to allow Plaintiff to amend his complaint against Defendants Steinhart and Oppman, leave to file a Second Amended Complaint is

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granted with respect to Count II.

t

D. Deliberate Indifference and Qualified Immunity

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Defendants Steinhart and Oppman also request that the Court dismiss Plaintiffs §

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1983 claim against them because 1) he has failed to establish the deliberate indifference to

Plaintiffs serious medical needs necessary to make out an Eighth Amendment medical care

claim, (see Doc. 115 at 18-23); and 2) because the claim is barred by qualified immunity

I

}

23

f

because it is not clearly established that the conditions of which Plaintiff complains must be
treated immediately with direct-acting antiviral medication or that a so-called prioritization
treatment protocol for the monitoring and treatment of inmates with Hepatitis Cused by
DOC is unconstitutional, (id. at 23-26). Because the Court has dismissed Plaintiffs § 1983
claim on the basis of a lack of sufficiently alleged personal involvement of Defendants
Steinhart and Oppman, it is unable to evaluate whether these defendants acted with
deliberate indifference. Similarly, it need not reach the quali'fied immunity argument.
E. State Law Claims and Sovereign Immunity
Finally, the Court construes Defendant Oppman as moving for dismissal of Count V1
and Count V2, which raise state law medical negligence claims against him for failure to
treat Plaintiffs Hepatitis Cand skin condition, respectively.6 Defendant Oppman argues
that he is protected by sovereign immunity because he is not a IIhealth care employee"
within the meaning of Pennsylvania's statutory waiver of sovereign immunity for medical-
professional liability. (Doc. 115 at 26-28); see also 42 Pa. Cons. Stat. Ann § 8522(b)(2).
Plaintiff opposes dismissal of this state law claim against Defendant Oppman, stating that
6 The Court notes that it is not entirely clear whether Defendant Oppman has moved for dismissal as to Count V, alone or as to both Counts V, and V2 and further notes that the lack of clarity in the scope of the Motion is wholly - or at least in part - the result of the intemally inconsistent pleading found in Count V2 of the Amended Complaint where Plaintiff inexplicably begins by identifying Kerestes, Lisiak, Khanum, and Saxon as the defendants in Count V2, but then, in the only paragraph of that count containing any specific allegations, alleges that "Kerestes, Oppman, Lisiak, Saxon[,] and Steihardt [sic] have violated Plaintiffs rights under Pennsylvania state law for their negligent disregard to Mr. Abu Jamal's skin condition," (Doc. S? at 1J86). For the purposes of this Motion, the Court assumes that Plaintiff intended to bring Count V2 against Defendants Oppman and Steinhart.
24 


this defendant is "unambiguously" a health care employee within the meaning of the

medical-professional liability exception to sovereign immunity. (Doc. 117 at 17).

"'It is well-settled that immunity is waived only for claims asserted against health care

employees, and not to individuals who are not medical professionals.1» Chimenti, 2016 WL

1125580 at *8 (quoting Green v. Fisher, Civ. A. No. 12-982,2014 WL 65763, at *11 (M.D.

Pa. Jan. 8, 2014). Thus, were Defendant Oppman the Secretary of the DOC, a correctional

I

institution superintendent, or a DOC employee working in maintenance or food service, for

example, the Court's path would be clear: Defendant Oppman would be entitled to

t

f sovereign immunity because he would not be a health care employee. See, e.g., Chimenti,

2016 WL 1125580 at *8 (concluding that state law medical malpractice claim against DOC

f

Secretary was barred by sovereign immunity); Robus v. Pa. Dep1 of Corr., Civ. A. No. 04-

[

2175,2006 WL 2060615, at *4 (E.D. Pa. July 20,2006) (holding the medical professional

I

f liability exception to sovereign immunity does not vitiate immunity of SCI Graterford

Superintendent); Green v. Fisher, Civ. A. No. 12-982,2014 WL 65763, at *11 (M.D. Pa. Jan.

8,2014) (holding that medical negligence claim against warden, deputy warden, safety

manager, maintenance manger, and food services manager did not fall into medical

professional liability exception to sovereign immunity because said defendants were not

health care employees). However, Defendant Oppman is the Director of DOC's Bureau of

Health Care Services and is alleged to be "responsible for the delivery of all medical and

dental care services throughout the DOC," (Doc. 57 at 1f 3); while it is not asserted that

25

I

Defendant Oppman is adoctor or other licensed health care professional, his title suggests
that he has more in common with the statute's "health care employee" than would a facility
superintendent or afood safety manager.
Indeed, whether the Director of the DOC's Bureau of Health Care Services is a
"health care employee" such that he is not protected by sovereign immunity in state law
medical negligence claims such as the one at issue here appears to be an open question,
undecided by Pennsylvania courts.? Nor have the Pennsylvania courts provided a uniform
answer as to whether a prison health care administrator falls within this exception. See
Milliner v. Diguglielmo, No. CIV.A. 08-4905, 2014 WL 413873, at *7 n.67 (E.D. Pa. Jan. 31,
2014) (collecting cases). At the pleading stage, the Court lacks sufficient information about
Defendant Oppman's job responsibilities, professional qualifications, and the nature of his
work to determine whether he is a health care employee within the meaning of the "medical­
professional" exception to Pennsylvania's sovereign immunity. Thus, the Court will deny
7 In Defendants Steinhart and Oppman's untitled reply brief (Doc. 123), they assert that the Pennsylvania Commonwealth Court has in another case affirmed the dismissal of the Director of DOC's Bureau of Health Care Services based on sovereign immunity. (Doc. 123 at 13 {citing McCool v. Dep't of Corr., 984 A.2d 565 (Pa. Cmwlth. 2009))). Surprisingly, they provided no pincite to McCool. The Court has reviewed McCool and has determined that Defendants Steinhart and Oppman's claim that the Commonwealth Court upheld dismissal of the DOC's Director of the Bureau of Health Care Services is incorrect. Pro se plaintiff McCool filed a complaint against, inter alia, Catherine McVey, who he asserted was the Director of the Bureau of Health Care Services. Id. at 567. However, footnote 3of the decision notes that "[DOCrs Answer explained that McVey was the Department's Deputy Secretary for Administration rather than the Department's Director of the Bureau of Health Care." Id. at 567 n.3. Thus, when the Commonwealth Court in McCool held that the medical professional liability exception to sovereign immunity had "no application to the defendants originally named in McCool's complaint, i.e., the Department, Secretary Beard or Deputy Secretary McVey, because they are not 'health care employees of a Commonwealth agency,'" id. at 570, it was not, as Defendants Steinhart and Oppman incorrectly assert, "affirming dismissal of [the] BHCS Director based on sovereign immunity," (Doc. 123 at 13).
26

I

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Defendant Oppman's Motion to dismiss on this ground without prejudice to the right to

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,t

reassert this defense at a future point in this litigation.

!

V. CONCLUSION

I

For the foregoing reasons, the Court will grant in part and deny in part Defendants

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f
Steinhart and Oppman's Motion to Dismiss (Doc. 108). A separate Order follows.

obert D. Mariani United States District Judge

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)

27

.,

 
 IN THE UNITED STATES DISTRICT COURT 
 FORTHE MIDDLE DISTRICT OF PENNSYLVANIA 


MUMIA ABU-JAMAL, et aI.,

Plaintiffs,
v.
JOHN KERESTES, et al.

3:1S-CV-00967 (JUDGE MARIANI)

Defendants.

MEMORANDUM OPINION

I. INTRODUCTION

Presently before the Court is Defendant Geisinger Medical Center's Motion to

Dismiss Plaintiffs First Amended and Supplemental Complaint (Doc. 63) for failure to state

a claim upon which relief may be granted. The First Amended and Supplemental Complaint

(Doc. 57) contains claims arising out of Plaintiff Mumia Abu-Jamal's hospitalization at

Geisinger Medical Center from May 12 to May 18, 2015, as well as his medical conditions,

including his ongoing hepatitis C infection.

Plaintiff Abu-Jamal along with Plaintiffs Brett Grote and Robert Boyle, also Mr. Abu­

Jamal's attorneys of record in this matter, initially filed this action on May 18, 2015 claiming

violations of the right to association and access to the courts. (Compl., Doc. 1 at 10).

Plaintiffs alleged that Defendant Kerestes and Defendant Geisinger "barred the plaintiff

attorneys from visiting with Mr. Abu-Jamal" and further "prohibited all communication

between Mr. Abu-Jamal and anyone," with the exception of a short phone call between him

and his wife. (Id. at 3). Subsequently, Plaintiffs Boyle and Grote filed notices of voluntary 


dismissal (Docs. 17, 18), leaving Mr. Abu-Jamal (hereinafter, "PlaintifF) as the only

remaining plaintiff.

On November 24, 2015, Plaintiff filed a Supplemental and Amended Complaint (Doc.

57) (hereinafter "Amended Complaint"), which added several defendants. Those

Defendants are Defendants Lisiak, Khanum, and Saxon (hereinafter, the uMedical

Defendants") and Defendants Oppman and Steinhart, Pennsylvania Department of

Corrections ("DOC") employees. The Amended Complaint also added Eighth Amendment

and state law negligence medical claims related to Plaintiffs hepatitis Cand other

conditions. The only claims asserted in the Amended Complaint against Defendant

Geisinger are Count VI, claiming a violation of Plaintiffs right to "access to courts," and

Count VII, claiming a violation of Plaintiffs First Amendment Right of Association.

Defendant Geisinger now moves for dismissal of these two claims against it on the basis

that they fail to state claims upon which relief may be granted. This Motion (Doc. 63) has

been briefed and is ripe for review. For the reasons stated herein, the Court will grant

Defendant Geisinger's Motion.

II. FACTUAL BACKGROUND

,,

The Amended Complaint alleges the following facts.

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Plaintiff Mumia Abu-Jamal is currently incarcerated in the custody of the

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Pennsylvania Department of Corrections. (Doc. 57 at 2, 1f 1). Plaintiff was convicted in the
I

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I

2

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December 9, 1981 death of a Philadelphia police officer. (Id. at 1m 13-14). In 2011, the
Third Circuit affirmed a lower court's order setting aside Plaintiff's death sentence and DOC placed him into general population1 after the Philadelphia District Attorney's Office chose
not to seek to reinstate Plaintiff's death sentence. (Id. at 1m 18-19).
Plaintiff tested positive for the Hepatitis C antibody during routine blood work in January 2012. (Id. at ~ 24). Hepatitis C is the leading cause of cirrhosis of the liver and of liver cancer; a chronic Hepatitis C infection can also cause serious chronic liver disease, liver fibrosis and death. (Id. at ~ 25). According to Plaintiff, if a person tests positive for the Hepatitis C antibody, the next step is to determine whether the infection is an "active" one, including but not limited to determining whether that person has a "viral load." (Id. at ~ 26). If the infection is determined to be active, the individual is at risk for serious complications that arise from the disease. (Doc. 57 at ~ 26).
Despite repeated requests, the Defendants have not conducted a complete Hepatitis Cworkup of Plaintiff and have not treated the disease or adequately treated his symptoms. (Id. at ~ 27).
Plaintiff alleges that Hepatitis Ccan manifest in a number of ways even in the absence of abnormal liver 'functions, including in the form of persistent skin rash and/or eczema that does not respond to traditional treatment. (Id. at ~ 28).

1 Plaintiff curiously fails to allege explicitly that he is incarcerated at SCI-Mahanoy, however the

Court draws the reasonable inference that he is from the allegations of the Amended Complaint.

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In or about August 2014, Plaintiff alleges that he began to experience itching over his

I
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whole body and that the itching was reported to facility staff. (Id. at ~ 30). He was

prescribed creams, which had no effect, and the rash spread. (Id.). Plaintiff alleges that the

underlying cause of the rash, including the possibility that it was a manifestation of an active

Hepatitis Cinfection, was not investigated. (Id.).

The rash became infected on two occasions in early 2015, with lesions appearing on

Plaintiffs lower extremities. (Doc. 57 at ~ 31). Medical staff noted that the lesions were "too

numerous to count." (Id.). Plaintiffs lower extremities became swollen and his skin took on

a dark, scaly appearance. (Id.). Plaintiff alleges that the rash caused and continues to

cause extreme pain and discomfort. (Id. at ~ 32). The rash covered 70 percent of Plaintiffs

body by February 2015. (Id. at ~ 33). The itch was unceasing; Plaintiff began using a

wheelchair to move any significant distance because the lower extremity and genital edema

caused so much discomfort. (Id.).

Plaintiff was prescribed "another steroid, oral prednisone, and Cyclosporine, an

immunosuppressant," in late February 2015, but the rash persisted. (Doc. 57 at ~ 34). A

medical note dated February 19, 2015 recorded that Plaintiff was experience "increasing

peeling off of dry skin at the site of the rashes." (Id.).

Plaintiffs blood was drawn on March 6, 2015 and the results showed that Plaintiffs

glucose level had risen to the severely abnormal level of 419. (Id. at ~ 35). Prior to this,

Plaintiffs blood glucose was always within normal range. (Id.).

4 


Plaintiff alleges that the Medical Defendants were aware of his dramatically elevated

glucose level indicating a dangerous case of hyperglycemia and that they took no action to

address the glucose level even though it was noted in their records. (Id. at 1Mf 36-37).

Plaintiff alleges that there was no treatment provided and no follow up testing of his glucose

level, and that the Medical Defendants did not inform him of the test result. (ld. at 1137).

Plaintiff lost consciousness on March 30, 2015 and was rushed to Schuylkill Medical

Center. (Doc. 57 at 1138). His blood glucose was found through testing to be 507. (ld.).

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He had gone into diabetic shock and was placed in the Critical Care Unit. (Id.)

I,

Untreated hyperglycemia is a potentially fatal condition. (Id. at 1139).

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f

Plaintiff returned to prison on April 1. (/d. at 1140). Release papers indicate his

I

prognosis as "guarded" and included the following medical issues: "diabetes, new onset,

i

encephalopathy secondary to hyperglycemia, dehydration, acute kidney injury,

I

hyponatremia, hypokalemia, asymptomatic gallstones, skin rash, anemia and a history of 


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hepatitis C." (/d.).

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!

Plaintiff experienced fatigue, episodes of "brain fog," and emotional distress in the

weeks following the diabetic shock. (Doc. 57 at 1141).

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Plaintiffs blood work revealed and continues to reveal abnormalities. (Id. at 1142).

!

He suffers anemia as indicated by aconsistently below-normal hemoglobin count. (ld.).

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Defendants continued to administer cyclosporine despite the fact that it is 
 contraindicated for an African-American of Plaintiffs age who as sudden-onset diabetes. (ld. at ~ 43). Plaintiff is an African-American. (ld. at 2, ~ 1).
The Schuylkill Medical Center release order noted a history of Hepatitis C; none of the Defendants, including the Medical Defendants, took any steps to investigate whether Hepatitis C may be the cause of Plaintiffs rash or other medical issues. (ld. at ~ 44).
Plaintiff retained counsel in March 2015 to advocate on his behalf for appropriate medical care; efforts have included visits, procurement of medical records, and consultation with medical experts. (Doc. 57 at ~ 45). One expert reviewed Plaintiffs medical records. (ld. at ~ 46). On April 28, 2015, Counsel transmitted to DOC a medical opinion letter from this expert. (ld.). The expert opined, inter alia, that an "occult malignancy workup" should be done to determine the cause of Plaintiffs still-present severe rash and anemia, as both are indicative of T-Cell Lymphoma. (ld. at ~ 47). The expert noted that the workup to investigate the cause of the rash was "urgent at this time" and that if the rash is due to lymphoma or another serious underlying medical condition, delay in diagnosis "may have severe and even lethal consequences." (ld.).
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}
6 


Plaintiff experienced extreme pain in his lower extremities when showering on or about May 12, 2015. (Id. at ~ 48). He was removed to Geisinger Medical Center21ater that day. (Doc. 57 at ~ 48).
Plaintiffs Counsel and his wife both requested that they be permitted to visit with Plaintiff at Geisinger. (Id. at ~ 49).
Counsel and Plaintiffs wife were initially told that Defendant Kerestes would permit visits from immediate family members but were then told that Plaintiff would be denied all visitation, including visits with Counsel, so long as he remained at Geisinger. (Id. at ~ 50). Plaintiff would also not be permitted to telephone Counselor his wife. (Id.).
Counsel for DOC asserted that the prohibition on visitation and phone calls was the policy of Defendant Geisinger. (Id. at ~ 51). During a prior hospitalization at Schuylkill Medical Center, Plaintiff received visits from his attorney and immediate family. (Id.).
On May 14, 2015, Counsel contacted Geisinger's litigation counsel, Donald Zaycosky, who agreed to seek authorization from Geisinger's Chief Medical Officer and DOC officials to permit family and attorney visits and phone calls. (Doc. 57 at ~ 52).
Plaintiff was granted a fifteen minute telephone call with his wife on May 18, 2015. (Id. at ~ 53).
2 Plaintiff does not provide the address of Geisinger Medical Center or otherwise specify to which Geisinger Health Systems inpatient hospital he was taken. The Court takes judicial notice of the fact that that "Geisinger Medical Center" is the name of the Geisinger facility located in Danville, Pennsylvania. See "About Geisinger Medical Center," http://www.geisinger.org/for-patients/locatiol1s-directions/gmc/index.html (July 12, 2016).
7 


Plaintiff was not permitted visitation with his attorneys or family during his stay at 
 Geisinger. (ld.).
During his May 12, 2015 to May 19, 20153 hospitalization at Geisinger, numerous diagnostic tests were conducted. (Id. at ~ 54). While the tests and a subsequent bone marrow biopsy ruled out some serious conditions, including some cancers, the underlying causes of Plaintiffs health problems, including the rash and anemia, were not determined. (/d. at ~ 55).
A Hepatitis Cworkup was not performed at Geisinger Medical Center. (ld. at ~ 56). While Plaintiff was at Geisinger, his rash was treated with a steroid wrap four times a day, which partially alleviated the rash's worst symptoms. (Doc. 57 at ~ 57). The Geisinger discharge reported dated May 18, 2015 advises DOC to, inter alia, arrange for a dermatology follow-up within two weeks and to order a Hepatitis Cworkup as Plaintiff might be a suitable candidate for Hepatitis Ctreatment. (Id. at ~ 58). From Plaintiffs May 18, 2015 return to SCI Mahanoy to the date of the filing of the Amended Complaint, Plaintiffs rash has only been treated with a Vaseline wrap. (Id. at ~ 59). The wrap was applied twice a day upon his return from Geisinger. (Id.). As of the filing of the Amended Complaint, Plaintiff alleges that lithe worst symptoms" have returned. (Id.).
3 It is unclear from the Amended Complaint on what date Plaintiff was released from Geisinger Medical Center and returned to SCI Mahanoy. Plaintiff provides both a release date of May 19, 2015, (see Doc. 57 at,-r 54), and of May 18,2015, (see id. at,-r 59).
8 


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Plaintiff again experiences itching over his entire body, his lower extremities are

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swollen, his skin peels and scales, he experiences a consistent low-grade fever, and he is

unable to walk significant distances due to the pain in his lower extremities. (Id. at ~ 60).

As of the filing of the Amended Complaint, there has been no follow-up with a

dermatologist, notwithstanding the recommendations of Geisinger Medical Center. (Doc. 57

at ~ 61).

Plaintiff alleges that the type of skin rash and edema experienced by Plaintiff at the

time of the filing of the Amended Complaint is likely caused by an active Hepatitis C

infection. (Id. at ~ 62).

Defendants have been made aware that the skin condition is a likely complication of

untreated Hepatitis Cthrough letters from counsel accompanied by expert medical reports.

(Id. at ~ 63).

I

During the last week of July 2015, Plaintiff was informed by a doctor at SCI Mahanoy

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that a blood test revealed that he has active Hepatitis C. (Id. at ~ 64).

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Plaintiff was informed that DOC currently has no protocol for treating Hepatitis C.

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(Id.).

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Plaintiff alleges that the Defendants are refusing to provide him with Hepatitis C

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treatment despite him having active Hepatitis Cthat has been causing him severe health

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1
problems for several months. (Id. at ~ 65).

9 


Despite repeated requests from counsel, Defendants have refused to permit Plaintiff 
 to be examined by an independent physician under appropriate medical conditions, even at
his own expense. (Doc. 57 at 11 66).
One expert visited Plaintiff on a regular visit and also examined available medical
records. (Id. at 11 67). Based on the visit and records review, the expert opined that
Plaintiffs skin condition is likely a manifestation of the Hepatitis C infection. (Id.). The expert recommended specific treatments for both the skin condition and the Hepatitis C, (id.); these recommendations were provided to DOC counsel but have not been
implemented, (id. at 11 68).
Plaintiff has been informed that DOC officials have forbidden medical staff at SCI Mahanoy from receiving any opinions, letters, diagnoses, or other communications from doctors who are working with counsel for Plaintiff, even if such opinions or letters are
provided to them by Plaintiff himself. {/d. at 1169}.
Plaintiff alleges that as of the filing of the Amended Complaint, he is currently receiving no treatment for his skin conditions and that the Vaseline applications have ended
and his lower extremities are no longer wrapped. (Doc. 57 at 11 70).
Plaintiff alleges that the itching is extreme and incessant and that it causes pain, loss
of sleep, and resultant fatigue. (Id. at 11 71).
Plaintiff alleges that there is no medical justification for Defendants' failure to treat his
skin condition and/or Hepatitis C. (Id. at 11 72).
10 


Plaintiff alleges that the Defendants' actions and inactions have caused and continue
to cause him pain, suffering, and emotional distress. (Id. at 1f 73).
Plaintiff alleges that the untreated, active Hepatitis Cinfection has caused and
continues to cause damage to his liver. (Id. at 1f 74).
III. STANDARD OF REVIEW Acomplaint must be dismissed under Federal Rule of Civil Procedure 12(b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plaintiff must aver "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Though a complaint 'does not need detailed factual allegations, ... aformulaic recitation of the elements of a cause of action will not do.'" DelRio-Mocci v. Connolly Prop. Inc., 672 F.3d 241, 245 (3d Cir. 2012) (citing Twombly, 550 U.S. at 555). In other words, "[ijactual allegations must be enough to raise a right to relief above the speculative leveL" Covington v.lnt'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 118 (3d Cir. 2013) (internal citations and quotation marks omitted). Acourt "take[s] as true all the factual allegations in the Complaint and the reasonable inferences that can be drawn from those facts, but ... disregard[s] legal conclusions and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Ethypharm S.A. France v.
11 


Abbott Laboratories, 707 F.3d 223, 231, n.14 (3d Cir. 2013) (internal citations and quotation
marks omitted). Twombly and Iqbal require [a district court] to take the following three steps to determine the sufficiency of a complaint: First, the court must take note of the elements a plaintiff must plead to state a claim. Second, the court should identify allegations that, because they are no more than conclusions, are not entitled to the assumption of truth. Finally, where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.
Connelly v. Steel Valley Sch. Dist., 706 F.3d 209, 212 (3d Cir. 2013). "[W]here the well-pleaded facts do not permit the court to infer more than the mere
possibility of misconduct, the complaint has alleged-but it has not show[n]-that the pleader is entitled to relief." Iqbal, 556 U.S. at 679 (internal citations and quotation marks omitted). This "plausibility" determination will be a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.
However, even "if a complaint is subject to Rule 12(b)(6) dismissal, a district court
must permit a curative amendment unless such an amendment would be inequitable or
futile." Phillips v. Cnty. ofAllegheny, 515 F.3d 224,245 (3d Cir. 2008).
[E]ven when plaintiff does not seek leave to amend his complaint after a defendant moves to dismiss it, unless the district court 'finds that amendment would be inequitable or futile, the court must inform the plaintiff that he or she has leave to amend the complaint within a set period of time.
Id.
12 


IV. ANALYSIS Defendant Geisinger moves to dismiss the two claims brought against it: Count VI, claiming aviolation of Plaintiffs right to "access to courts," and Count VII, claiming a violation of Plaintiffs First Amendment right of association. Defendants make three arguments in favor of dismissal of both claims: 1) "Plaintiff fails to present an actual case or controversy" with respect to Geisinger; 2) "Plaintiff has failed to allege facts sufficient to demonstrate that Geisinger is a state actor" for purposes of § 1983; and 3) "with regard to the substantive theory of liability asserted against Geisinger, Plaintiff has failed to state a claim which would entitle him to relief." (Doc. 80 at 11).
A. Access to Courts "[I]n order to press a claim for interference with the right to court access, a prisoner plaintiff must allege that he or she has been actually injured in his or her access to the courts, i.e., that he or she has been hindered in an effort to pursue a nonfrivolous legal claim." Jones v. Brown, 461 F.3d 353, 359 (3d Cir. 2006) (citing Lewis v. Casey, 518 U.S. 343,349-53 (1996)). The claim must relate to either a direct or collateral challenge to the prisoner's sentence or conditions of confinement. Lewis, 518 U.S. at 355 (finding "[i]mpairment of any other litigating capacity is simply one of the incidental ... consequences of conviction and incarceration."). The United States Supreme Court has stated clearly the pleading requirements for an access to courts claim. Plaintiffs "must identify a nonfrivolous, arguable underlying claim" in order to pursue an access to courts
13 


claim, and "that underlying cause of action, whether anticipated or lost, is an element that 
 must be described in the complaint, just as much as allegations must describe the official acts frustrating the litigation." Christopher v. Harbury, 536 U.S. 403, 415 (2002). An "actual injury" does not occur without a showing that aclaim has been lost or rejected, or that the presentation of such a claim is currently being prevented. Lewis, 518 U.S. at 354-56.
Here, Plaintiff has failed to allege an actual injury sufficient to state a claim for access to courts. Plaintiff has alleged that on May 12, 2015, Plaintiff was moved from SCI Mahanoy to Geisinger Medical Facility and that Counsel requested permission to visit
Plaintiff there. (Doc. 57 at 1m 48-49). Plaintiff further alleges that Counsel was told that
Plaintiff would be denied all visitation and phone calls with his attorneys while at Geisinger.
(Id. at 1f 50). It is unclear who Plaintiff alleges to be the source of this prohibition, as
Defendant Geisinger itself points out. (See Doc. 80 at 19). Plaintiff alleges that "DOC counsel asserted that the prohibition on visitation and phone calls was the policy of Geisinger Medical Center," as contrasted to Plaintiffs experience during a recent
hospitalization at Schuylkill Medical Center. (Id. at 1f 51). However, the Complaint also
alleges that: Defendant Geisinger Medical Center, in coordination with the DOC, has a policy of prohibiting all communication between hospital patients in the custody of the DOC and their lawyers, family, and friends, and others not in the employ of the DOC or Geisinger Medical Center.
(/d. at 1f 8). Plaintiff also asserts that on May 14, 2015, Geisinger's litigation counsel Donald
Zaycosky agreed to seek authorization for attorney visits and phone calls from Geisinger's
14 


Chief Medical Officer and from DOC officials, (id. at 1f 52), but that he ultimately was not permitted visitation with his attorneys during his entire stay at Geisinger, (id. at 1f 53).
According to Count VI of the Amended Complaint, these allegations add up to the following constitutional violation:
Defendants Kerestes and Geisinger Medical Center violated Plaintiffs Fifth and Fourteenth Amendment right of access to the Courts during his May 2015 hospitalization at Geisinger Medical Center by preventing any and all communication between Plaintiff and his attorneys.
(Doc. 57 at 1f 88). Plaintiff seeks "a permanent injunction ordering defendants to permit
attorney-client visits whenever plaintiff Abu-Jamal is taken from a DOC facility to receive
inpatient medical treatment." (Id. at 21, 1f G).
However, nowhere in the Amended Complaint does Plaintiff identify a nonfrivolous and arguable underlying claim which was lost, or even otherwise impaired, by this prohibition on visitation or other communication with his attorneys. It is clear that Counsel's attempts to communicate with Plaintiff were not handled by either DOC, Geisinger, or both institutions as Counselor Plaintiff would have wished. However, "[n]ot everyone who can point to some 'concrete' act and is 'adverse' can call in the courts to examine the propriety of executive action, but only someone who has been actually injured." Lewis, 518 U.S. at 353 n.3. Plaintiff has not adequately alleged actual injury here; indeed, a thorough review of the Amended Complaint reveals he has not alleged injury at all.
Plaintiff incorrectly relies on case law 'from the preliminary injunction context in an attempt to show injury, despite the fact that the Motion currently before the Court is a motion
15 


to dismiss and the fact that Plaintiff seeks a permanent injunction rather than a preliminary 
 injunction with respect to his access to courts claim. (Doc. 57 at 21,11 G). In focusing his argument in opposition to Defendant Kerestes's Motion on the proposition that "[t]he loss of aconstitutional right ... constitutes actionable injury, and has even been recognized as sufficiently injurious to establish the type of irreparable harm justifying a preliminary injunction," (Doc. 90 at 8), Plaintiff attempts to Sidestep the weakness of his pleadings with hysteron proteron rhetoric - that is, Plaintiff puts the cart before the horse. Without having sufficiently pleaded the existence of any underlying claim, Plaintiff assumes its existence and jumps forward to the matter of injury. This analytic move neglects the Supreme Court's cautioning that "the right [of access to courts] is ancillary to the underlying claim, without which a plaintiff cannot have suffered injury by being shut out of court." Christopher, 536 U.S. at 415. Because Plaintiff has not alleged sufficient facts to present a prima facie case of denial of access to the courts, his access to the courts claim will be dismissed for failure to state aclaim. The Court need not reach Geisinger's additional arguments about the presence of state action or an actual case or controversy with respect to this claim.
B. Freedom of Association Defendant Geisinger also moves for dismissal of Count VII of the Amended Complaint, (see Doc. 89 at 9), which alleges that Defendant Geisinger and Defendant Kerestes violated Plaintiffs First Amendment right of association "by arbitrarily restricting communication and preventing all visitation with his family during his May 2015
16

hospitalization at Geisinger Medical Center," (Doc. 57 at 19-20). "A prison inmate retains those first amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Pell v. Procunier, 417 U.S. 817,822 (1974). Thus, "[t]o the extent that a'right' to visitation exists via the right to association, this entitlement is limited by prison officials' judgment in furthering penological goals." Rivera v. Fed. Bureau of Prisons, 197 F. App'x 169, 170 (3d Cir. 2006) (citing Overion v. Bazzetta, 539 U.S. 126, 131-32 (2003)). Affording substantial deference to the professional judgment of prison administrators, Overion, 539 U.S. at 132, courts will uphold a prison official's action alleged to have impinged on an inmate's constitutional rights if "it is reasonably related to legitimate penological interests," Turner v. Safley, 482 U.S. 78, 89 (1987). This test, set out ill Turner v. Safley, examines the following four factors: (1) whether the regulation or practice in question furthers a legitimate governmental interest unrelated to the suppression of expression; (2) whether there are alternative means of exercising First Amendment rights that remain open to prison inmates; (3) whether the right can be exercised only at the cost of less liberty and safety for guards and other prisoners, and the effect on prison resources in general; and (4) whether an alternative exists which would 'fully accommodate the prisoner's rights at de minimis cost to valid penological interests. Thornburgh v. Abbott, 490 U.S. 401, 415-18 (1989); Turner, 482 U.S. at 89-91. However, the Court need not address the substance of Plaintiffs freedom of association claim against Defendant Geisinger because Plaintiffs freedom of association claim is moot.
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Defendant Geisinger argues both that Plaintiff lacks standing to seek injunctive relief and that Plaintiffs claim for freedom of association is now moot. (Doc. 80 at 11-16). Article III of the Constitution provides that the "judicial power shall extend to ... cases ... [and] to controversies." U.S. Const. Art III, § 2. This grant of authority embodies a fundamental limitation restricting the federal courts to the adjudication of "actual, ongoing cases or controversies." Khodara Envtl., Inc, v. Beckman, 237 F.3d 186, 193 (3d Cir. 2001). Standing and the mootness doctrine are two parallel doctrines bearing on the justiciability of agiven matter. In order for a plaintiff to have standing, "[t]he plaintiff must have (1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), as revised (May 24,2016). As he is the party seeking review of his claims in federal court, "[P]laintiff ... bears the burden of establishing these elements." Id. The mootness doctrine is centrally concerned with the court's ability to grant effective relief. "If developments occur during the course of adjudication that eliminate a plaintiffs personal stake in the outcome of a suit or prevent a court from being able to grant the requested relief, the case must be dismissed as moot." Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698-99 (3d Cir. 1996).
Plaintiff directly addresses only Defendant Geisinger's charge of mootness. (See Doc. 90 at 3). According to Plaintiff, his claims for declaratory and injunctive relief are not moot because they are 'capable of repetition, yet evading review.' The 'capable of
18 


repetition, yet evading review' exception to the mootness doctrine "applies 'only in 
 exceptional situations,' where (1) 'the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration,' and (2) 'there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again.'" Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1976 (2016) (quoting Spencer v. Kemna, 523 U.S. 1, 17 (1998); brackets in original). The exception to the mootness doctrine requires this Court "to determine whether there is a 'demonstrated probability,' or a 'reasonable expectation,' as distinct from a 'mere physical or theoretical possibility,' that the conduct of which [Plaintiff] complains will recur." New Jersey Tpk. Auth. v. Jersey Cent. Power &Light, 772 F.2d 25,33 (3d Cir. 1985)
Plaintiff believes that "he remains at imminent risk" for repeat violations due to his "undisputed health issues, his advancing ageL] and his sentence of life without the possibility of parole." (Doc. 90 at 4). Defendant Geisinger argues that because Plaintiff has been discharged from Geisinger Medical Center, his claims are moot and that "[a]ny allegations of future harm would be purely conjectural." (Doc. 80 at 15). According to Defendant Geisinger, "the possibilities that [Plaintiff] will - at some point in the future ­ require in-patient hospitalization at a facility outside the DOC and that facility will be Geisinger is purely speculative."
The Court agrees with Defendant Geisinger. "An inmate's transfer from the facility complained of generally moots the equitable and declaratory claims." Sutton v. Rasheed,
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323 F.3d 236,248 (3d Cir. 2003), as amended (May 29,2003); Suarez v. Kerestes, No. 
 3:13-CV-2004, 2016 WL 1756901, at *2 (M.D. Pa. Apr. 29,2016)) (quoting Burkey v. Marberry, 556 F.3d 142, 147 (3d Cir. 2009) ("Once a petitioner has been released from custody, 'some continuing injury, also referred to as acollateral consequence, must exist for the action to continue."'). Plaintiff is no longer at Geisinger Medical Center and there is no indication that he will be transported back there in the future. Thus, the Court finds that the second prong of the 'capable of repetition, yet evading review' test relied upon by Plaintiff is not met here; there is not a reasonable expectation that Plaintiff will be subject to the same action by Defendant Geisinger again. This is in contrast to Plaintiffs freedom of association claim against Defendant Kerestes, though Plaintiffs freedom of association claim against him and his freedom of association claim against Defendant Geisinger arise from the same May 2015 hospitalization. Critically, Defendant Kerestes heads the facility in which Plaintiff is incarcerated, and given Plaintiffs allegations that he has not received adequate medical care at SCI Mahanoy and that his condition has deteriorated to the point where he had to be hospitalized twice within a two-month span in the spring of 2015, there is a reasonable expectation that Plaintiff will be hospitalized outside of DOC again, while still being in the charge or control of Defendant Kerestes. However, Defendant Geisinger's relationship with Plaintiff ended when he was discharged from Geisinger Medical Center in Mayor 2015. There is nothing indicating more than a mere physical or theoretical possibility that Plaintiff will return to the care of Defendant GeiSinger and that, if so, he will be denied opportunities
20 


to speak to or meet with his attorneys or family. Plaintiffs freedom of association claim is moot as to Defendant Geisinger.
V. CONCLUSION For the foregoing reasons, the Court will grant Defendant Geisinger's Motion to Dismiss (Doc. 63). A separate Order follows.
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21 


 
 IN THE UNITED STATES DISTRICT COURT

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FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

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MUMIA ABU-JAMAL, et al.,

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Plaintiffs,
v.
JOHN KERESTES, et al.

3:1S-CV-00967 (JUDGE MARIANI)

Defendants.

MEMORANDUM OPINION

I. INTRODUCTION

Presently before the Court is Plaintiff Mumia Abu-Jamal's Motion for Preliminary

Injunction (Doc. 23) filed August 24, 2015. Plaintiffs case has forged an unorthodox

procedural path before this Court and recapitulation here is necessary to set the stage for a

ruling on this Motion.

Plaintiff Abu-Jamal along with Plaintiffs Brett Grote and Robert Boyle, also Mr. Abu­

Jamal's attorneys of record in this matter, initially filed this action on May 18, 2015 claiming

violations of the right to association and access to the courts. (Comp!., Doc. 1at 10).

Plaintiffs alleged that Defendant Kerestes and Defendant Geisinger "barred the plaintiff

attorneys from visiting with Mr. Abu-Jamal" and further "prohibited all communication

between Mr. Abu-Jamal and anyone," with the exception of a short phone call between him

and his wife. (Id. at 3). Subsequently, Plaintiffs Boyle and Grote filed notices of voluntary

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dismissal (Docs. 17, 18), leaving Mr. Abu-Jamal (hereinafter, "Plaintiff') as the only 
 remaining plaintiff.
Plaintiff then filed a Motion for Leave to File a First Amended and Supplemental Complaint (Doc. 21) on August 3,2015. The proposed First Amended and Supplemental Complaint (hereinafter "Amended Complaint") sought to add as defendants John Lisiak, Shaista Khanum, and Scott Saxon (hereinafter, the "Medical Defendants") and Christopher Oppman and John Steinhart, Pennsylvania Department of Corrections ("DOC") employees. The Amended Complaint also sought to add Eighth Amendment and state law negligence medical claims related to Plaintiffs Hepatitis Cand other conditions.
While the Motion to Amend was pending, Plaintiff filed a Motion for Preliminary Injunction (Doc. 23) on August 24,2015 seeking, inter alia, immediate treatment of his hepatitis Cwith recently developed direct-acting antiviral ("OM") medication. Magistrate Judge Mehalchik filed a Report and Recommendation (Doc. 39) on Septernber 18,2015, recommending that Plaintiffs Motion for Preliminary Injunction be denied. On November 23,2015, the Magistrate Judge permitted Plaintiff to docket as of record his Amended Complaint, (see Order, Doc. 56); Plaintiff filed his Amended Complaint on November 24, 2015. (Doc. 57). Defendant Kerestes filed an appeal of the Magistrate Judge's Order on December 7,2015. (Doc. 64).
With both the Motion for Preliminary Injunction, the Magistrate Judge's Report and Recommendation thereon, and the issue of amendment properly before it, this Court
2 


scheduled an oral argument on Defendant Kerestes's appeal and an evidentiary hearing on 
 Plaintiffs Motion; the three-day proceeding was held on December 18, December 22, and December 23, 2015. At the outset of the proceeding, the Court heard oral argument on Defendant Kerestes's appeal of the Magistrate Judge's Order (Doc. 56). Upon the request of DOC Counsel, (Oral Arg., Dec. 18, 2015, Doc. 94 at 31 :24-32:3), the Court issued a ruling from the bench and found that the Magistrate Judge did not err in allowing the Amended Complaint to be filed on November 24,2015, (id. at 37:16-19). The remainder of the three-day proceeding constituted an evidentiary hearing on Plaintiffs Motion for Preliminary Injunction (Doc. 23). In lieu of oral argument on the Motion, the parties agreed to submit simultaneous briefing post-hearing.
Four motions to dismiss the Amended Complaint were filed: one by Geisinger (Doc. 63), one by the Medical Defendants (Doc. 110), one by Defendant Kerestes (Doc. 81), and one by Defendants Steinhart and Oppman (Doc. 108). On June 22,2016, the Court denied the Medical Defendants' Motion to Dismiss. (Docs. 157, 158). On August 5,2016 the Court dismissed with prejudice Plaintiffs claims against Defendant Geisinger. (Docs. 172, 173). Also on August 5, 2016, the Court granted in part and denied in part the motions of Defendants Kerestes, Oppman, and Steinhart, giving Plaintiff leave to amend certain aspects of his Amended Complaint as to these Defendants. (Docs. 168, 169, 170, 171). Plaintiff timely filed his Corrected Second Amended Complaint (Doc. 178) (hereinafter "Second Amended Complaint") on August 16, 2016.
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The matter is now ripe for disposition. For the reasons that follow, the Court will 


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deny Plaintiffs Motion for Preliminary Injunction (Doc. 23) because the persons against
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whom injunctive relief may be granted are not parties to this case and are not officers,

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agents, servants, employees, or attorneys of the named defendants; nor are they persons

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who are in active concert or participation with any of the parties or their officers, agents,

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servants, employees, or attorneys. With respect to the Magistrate Judge's Report and

Recommendation (Doc. 39) on said motion, the Court declines to adopt it. While the result

of this Memorandum Opinion and the accompanying order is the same as that of the

Magistrate Judge's Report and Recommendation - that is, the rejection of Plaintiffs request

for preliminary injunctive relief - in no sense does the Court adopt the findings or reasoning

contained in the Report and Recommendation. The Magistrate Judge did not have before

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her any of the very significant evidence that underlies the Court's ruling and, as such we

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'find necessary to reject the Report and Recommendation. The Report and

Recommendation contains no treatment of the factual issues that were the subject of the

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evidentiary hearing held before the Court in December 2015 and, as such, the Report and Recommendation is without evidentiary foundation and does not address in any real

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sense the issues that are the subject of this Memorandum Opinion.

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II. FINDINGS OF FACT 
 Hepatitis C and Treatment Thereof 
 1. The DOC Defendants' expert witness Dr. Jay Cowan is licensed to practice medicine in Pennsylvania, New York, and New Jersey and is double board-certified in internal medicine and gastroenterology and hepatology (Cowan Test., Dec. 22,2015, Doc. 95 at 196:9-13, 197:10-11). He has been the Medical Director of the Rikers Island correctional facility since 2011. (Id. at 198:1-4). Dr. Cowan has treated patients with hepatitis C in his capacity as the Chief of Gastroenterology at North General Hospital in Harlem, New York City, in private practice in Harlem, through his work in Harlem Hospital's Division of Gastroenterology, and in his work at Rikers Island. (Id. at 197:20-198:11). 2. Chronic hepatitis C is a serious disease that is a major public health issue in the United States and worldwide. (Cowan Test., Dec. 23, 2015, Doc. 96 at 20:17-22). It is the number one reason for liver transplants in the United States at present, as well as the number one cause of liver cancer in the United States. (Id. at 21 :22-22:2). 3. Hepatitis Cis contagious and transmitted primarily by blood. (Cowan Test., Dec. 23, 2015 at 22:3-5). 4. Dr. Cowan testified that of those individuals infected with Hepatitis C, 75 percent to 85 percent will develop chronic hepatitis, which is inflammation of the liver. Of those who develop chronic hepatitis, 20 percent to 30 percent will go on to develop cirrhosis over the next 10 to 20 years. Of the individuals who develop cirrhosis, two percent to seven
5 


percent will develop hepatocellular carcinoma. (Cowan Test., Dec. 22, 2015 at 199:16-25). 
 During cross examination, Dr. Cowan also testified that of those exposed to hepatitis C, between 50 percent and 85 percent will develop chronic hepatitis. (Cowan Test., Dec. 23, 2015 at 21:7-8).
5. Cirrhosis represents a late stage of progressive hepatic fibrosis, characterized by distortion in the liver architecture and the formation of regenerative nodules that no longer allow the liver to function properly. (Cowan Test., Dec. 22, 2015 at 201:21-202:1).
6. Individuals with cirrhosis often experience a decrease in the number of platelets circulating in their blood. Cirrhosis may have an impact on both platelet production and platelet survival. (Id. at 204:18-205:1).
7. Individuals with cirrhosis are at an increased risk for ascites, which is an accumulation of peritoneal fluid in the abdominal cavity, for portal hypertension, for hepatic encephalopathy, which is mental confusion associated with the increased toxic burden that the liver cannot filter out, and for the occurrence of jaundice and/or rising bilirubin levels in the bloodstream. These are markers of decompensated cirrhosis. (Id. at 207:23-208:14).
8. Metavir scores indicate the level of fibrosis in the liver on a five-point scale from FO to F4. F2 and F3 mark the progression of fibrosis from less severe to more severe, with F4 marking cirrhosis. (Id. at 202:9-13).
9. Dr. Cowan testified that very often, medical professionals cannot predict the rate of progression of fibrosis. (Id. at 208:15-20).
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10. Correct Care Solutions ("CCS") is the contracted health provider for the DOC. (Cowan Test., Dec. 23, 2015 at 4:14-16).
11. Dr. Cowan is a paid consultant with the Correct Care Solutions Hepatitis C Review Committee at DOC. (ld. at 4:8-13). Dr. Cowan also testified that he "servers] on the Correct Care Solutions Hepatitis C Review Committee." (ld. at 67:16-17).
12. Dr. Cowan testified that that there is "not very good concordance between physical symptoms [of hepatitis C] that a patient may experience and their degree of fibrosis or cirrhosis," such that one cannot say at what level of fibrosis or cirrhosis a person will begin to experience physical symptoms related to hepatitis C. (Cowan Test., Dec. 22, 2015 at 207:11-17).
13. The landscape of treatments for hepatitis C is evolving very rapidly. (ld. at 201 :8-9).
14. Sovaldi and Harvoni are DAA medications for the treatment of hepatitis C. Sovaldi was first approved by the Food and Drug Administration in December 2013. Harvoni was first approved in October 2014. (ld. at 201 :1-6). These drugs have "relative low-risk side effects" and "high success rates of 90 percent plus." (ld. at 213:24-214:2).
15. Dr. Cowan agreed that, on average, "with the new drug, there's a 90 to 95 percent chance that the treatment will be successful." (Cowan Test., Dec. 23, 2015 at 28:5­ 7; see also Noel Test., Dec. 23, 2015, at 129:10-13 (agreeing that if Plaintiff were treated with direct-acting antivirals, there is a 90 to 95 chance he would be cured of Hepatitis C)).
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16. "The goal of Hepatitis C anti-viral treatment is to achieve a sustained 
 virological response (SVR), defined as undetectable HCV virus in the blood." (Pa. Dep't of Cor., Interim Hepatitis C Protocol, PI.'s Ex. 30 at ~ (A)(1)).
17. "Achieving an SVR may significantly decrease the risk of disease progression and the development of decompensated cirrhosis, liver cancer, liver failure, and death." (Id.). Dr. Cowan agreed with the statement that patients cured of HCV infection experience numerous benefits, including a decrease in liver inflammation and a reduction in liver fibrosis. (Cowan Test., Dec. 23, 2015 at 25:19-25). He also agreed with the statement that delay in treatment decreases the benefit of SVR. (/d. at 26:4-7). Dr. Cowan further agreed that successful treatment of hepatitis Chas been shown to reduce, if not eliminate, fatigue in patients with chronic hepatitis C. (/d. at 28:1-4).
18. The October 2015 guidelines from the American Association for the Study of Liver Diseases ("AASLD") and Infectious Diseases Society of America ("IDSA") entitled uWhen and in Whom to Initiate HCV Therapy" "recommend treatment [using DAA therapies] for all patients with chronic HCV ["hepatitis Cvirus"] infection, except those with short life expectancies that cannot be remediated by treating HCV, by transplantation, or by other directed therapy." (Am. Ass'n for the Study of Liver Diseases & Infectious Diseases Soc'y of Am., When and in Whom to Initiate HCV Therapy, PI.'s Ex. 18 at 1; see also Cowan Test., Dec. 23, 2015 at 24:9-14).
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19. The Centers for Disease Control ("CDC") states that the standard of care in hepatitis Ctreatment in the United States is treatment with direct-acting antiviral agents such as Harvoni and Viekira Pak. (Ctr. for Disease Control, Surveillance for Viral Hepatitis - United States, 2013, Pl,'s Ex. 17 at 5-6). The CDC refers providers caring for hepatitis C­ infected patients to the AASLD/IDSA guidance for continuously updated information regarding hepatitis C treatment. (Id. at 6).
20. Dr. Cowan agreed that the CDC points to the AASLD/IDSA guidelines as the standard of care for the treatment of Hepatitis C. (Cowan Test., Dec. 23, 2015 at 33:15­ 34:9).
21. Dr. Cowan testified that he agreed that the same standard of care as to hepatitis Ctreatment that is applicable to the community at large should apply in a correctional setting. (Id. at 32:17-20).
22. Dr. Cowan testified that "[a]t the current time, given the backlog of patients that have this disease, it is [his] recommendation ... that the sickest patients be treated first. Those are the patients with fibrosis scores of 3 and 4." (Id. at 66:19-22).
23. Dr. Cowan testified U[i]f [a] patient had Chronic Hepatitis C, in private practice, [he] would engage in a conversation with the patient's insurance company and recommend the current AASLD Guidelines" and that, if the patient could pay for it, he would recommend treatment. (ld. at 68:7-18).
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24. Dr. Cowan testified that U[t]here is a fiscal component involved" in the 
 determination of who should and should not receive treatment with DAA medications for hepatitis C. (Id. at 82:18-25).
25. Dr. Paul Noel is the Chief of Clinical Services for DOC, a position which he has held since 2014. (Noel Test., Dec. 23, 2015, Doc. 96 at 90:3-7). Dr. Noel has worked in correctional health care in Pennsylvania since 1994. (Id. at 90:12-23).
26. Dr. Noel testified that in his role as DOC's Chief of Clinical Services he is "involved with oversight of the medical contract ... [he is] the point of contact to make sure that the clinical services are appropriate, according to contract, and policies and procedures performed by the medical contractor. [He] deal[s] more directly with [the medical contractor's] corresponding State Medical Director on issues of quality improvement, policies and procedures, things like that." (Id. at 91 :15-25).
27. Dr. Noel agreed that the most recent AASLD Guidelines on the treatment of hepatitis C recommend treatment for everyone. (ld. at 130:16-23).
28. Dr. Noel testified that, with respect to the AASLD Guidelines, We review them, we take them into consideration, they're part of the big picture, they're not the single bullet that has everything right, it's a much more complicated - it would be nice if we could go to one document and everybody follow it and everything would be wonderful, it just doesn't work that way. So the AASLD has a large voice at the table, if that's your question. We don't necessarily do just what the AASLD says. (Id. at 131:13).
10

29. Dr. Noel testified that in or about December 2013, DOC ceased 
 administration of then-current medications because "the AASLD made specific recommendations to cease those current medications that we were using. And that's why they were no longer used, so it's not like we had the option to keep doing it." (Id. at 133:9­ 134:1).
DOC's Interim Hepatitis C Protocol 30. Dr. Noel testi'fied that DOC has an interim protocol to address patients with hepatitis C. (Noel Test., Dec. 23, 2015 at 99:15-22). 31. The interim protocol was issued on November 13,2015 and effective November 20, 2015. (PI.'s Ex. 30). 32. Dr. Noel testified that the interim protocol "was formulated to address those patients with Hepatitis C who are in the most need of treatment right away." (Noel Test., Dec. 23, 2015 at 99:24-25). He testified that the policy is "interim" in the sense that it will be adjusted as DOC treats current patients and as science and hepatitis C treatment guidelines in the community and within the prison system evolve. (Id. at 99:23-100:9). 33. Dr. Noel testified that the interim protocol replaced a prior hepatitis C protocol, which "was a protocol for medications that are no longer used." (Id. at 100:14-25). 34. Dr. Noel was involved in developing the interim protocol and had assisted in developing the previous protocol. (/d. at 101:7-13). He also testified that he helped draft the interim protocol. (Id. at 126:8-14).
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35. The DOC's interim hepatitis C protocol is a "prioritization protocol," which Dr. Noel testified is designed "to identify those with the most serious liver disease and to treat them first, and then, as they're treated, move down the list to the lower priorities, from high priority to lower priority." (/d. at 102:17-103:1; see also PI.'s Ex. 30 at 2 ("The purpose of this Hepatitis C Protocol is to prioritize candidates for anti-viral treatment.")).
36. Dr. Noel testified that the protocol does not preclude hepatitis Ctreatment from any inmate who has hepatitis C. (Noel. Test., Dec. 23, 2015 at 103:3-7).
37. The protocol defines patients with chronic hepatitis C as those with a documented detectable viral load and includes under this label "all patients on the continuum from no fibrosis -> fibrosis -> compensated cirrhosis -> decompensated cirrhosis." (PI.'s Ex. 30 at 2).
38. Patients with "Chronic Hepatitis C (Compensated)" are de'fined by the protocol as those having the presence of "(1) a previous liver biopsy with fibrosis Metavir
stage 4 or Ishak stage 6; (2) a Platelet Count of < 100,000/mcL; (3) a Hepatitis CAntiviral
Long-term Treatment Against Cirrhosis (HALT-C) probability of >60%; and/or (4) no evidence of jaundice, ascites, bleeding esophageal varices, or hepatic encephalopathy." (PI.'s Ex. 30 at 2).
39. Patients with "Chronic Hepatitis C (Decompensated)" are defined by the protocol as those that display "evidence of jaundice, ascites, bleeding esophageal varices, or hepatic encephalopathy." (PI.'s Ex. 30 at 3).
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I,
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40. According to the protocol, all patients with chronic hepatitis C will be entered 
 into the Liver Disease Chronic Care Clinic and given a diagnosis of "no cirrhosis," "compensated cirrhosis," or "decompensated cirrhosis." (PI.'s Ex. 30 at 3). Patients with "no cirrhosis" will be seen for a follow-up Clinic appointment every twelve months, patients with "compensated cirrhosis" will be seen for a follow-up every six months, and patients with "decompensated cirrhosis" will be seen for a follow-up every month. (Id. at 4).
41. Dr. Noel testified that inmates with chronic hepatitis Cwill be "put into the Chronic Care Clinic," which he defined as "a tracking system to ensure that they are seen on a regular basis." According to Dr. Noel's testimony, "[t]he vast majority of them will live in general population and just be followed by one of [the] providers on-site, along with an Infectious Control Nurse ...." (Noel Test., Dec. 23, 2015, at 104:16-21).
42. According to Dr. Noel, "[i]f a patient is absolutely 100 percent asymptomatic, . . . they're seen at least once a year." (ld. at 106:1-5). Dr. Noel testified that 'To]nce they start[ ] developing advanced fibrosis or cirrhosis ... it goes to every six months. . . . And if they're really sick, where they have decompensated cirrhosis and in end stage liver disease, they're seen every month." (Id. at 106:7-11). According to Dr. Noel, "[c]linicians can see [patients in the Chronic Care Clinic] more often, as they see fit." (Id. at 106:12-14).
43. According to the interim protocol, "it is most important to identify patients with advanced compensated cirrhosis and early decompensated cirrhosis ... as the highest priority for anti-viral treatment" because "patients with decompensated cirrhosis are at high
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risk in drug therapy and their treatment options may be limited to liver transplantation." 

(PI.'s Ex. 30 at 5, 1f 3).
44. According to the interim protocol, "[t]he population most in need of evaluation will be defined as those with platelet counts below 100,OOO/mcL and those with HALT-C predicted likelihood of cirrhosis above 60%" and U[t]hese patients will be individually
evaluated for prioritization in ascending order of platelet count ...." (PI,'s Ex. 30 at 5, 1f 5).
45. The interim protocol states that a patient with either a platelet count below 100,OOO/mcL or a HALT-C probability of cirrhosis> 60 percent will have an initial review of
his or her medical charts only at his or her home site. (Id. at 6, 1f 6). If no medical or
administrative exclusionary indications to anti-viral treatment are found at the home site, the correctional Health Care Administrator of the home site will forward a Hepatitis CTreatment Referral Form to the Bureau of Health Care Services Infection Control Coordinator for further evaluation, possible recommendations for further testing, and final determination.
(PI,'s Ex. 30 at 6, 1f 8).
46. Dr. Noel testified that if inmates have "a platelet count less of a hundred thousand or a HALT-C score of greater than 60 percent, they would be identified as someone who needs further evaluation" and would then be referred to the Central Office's Hepatitis CReview Committee. (Noel Test., Dec. 23, 2015, at 104:23-105:4).
47. According to the interim protocol, the Hepatitis C Treatment Committee consists of at least four people: Dr. Noel, as the DOC's Bureau of Health Care Services
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Chief of Clinical Services; the Bureau of Health Care Services Assistant Medical Director; 
 the Statewide Medical Director for Correct Care Solutions; and the Bureau of Health Care Services Infection Control Coordinator. (PI.'s Ex. 30 at 7, ~ 1). Dr. Noel testified that the Committee consists of himself, as lithe Chief of Clinical Services, the representative from the medical contractor CSS, Infectious Control nurse, the Assistant Medical Director for the DOC, and anyone [the Committee] might invite to participate in any difficult cases." (Noel Test., Dec. 23, 2015 at 129:22-130:1).
48. The individual's clinical status will be reviewed by the Hepatitis CTreatment Committee for prioritization for treatment with DAA medications. (PI.'s Ex. 30 at 7, ~ 1). According to Dr. Noel's testimony, the Review Committee would then "sit down and manually go through the patient's chart with some information provided by the site, possibly, a phone conference with the Site Medical Director" and a "determination then would be made if there was some further testing or further evaluation that needed to be done." (Noel Test., Dec. 23, 2015 at 105:5-11).
49. According to the protocol, if upon review the Committee determines the patient is a candidate for treatment with DAA medication, an esophageal gastroendoscopy ("EGD") will be approved to evaluate the patient for esophageal varices. (PI.'s Ex. 30 at 7, ~ 2). According to Dr. Noel, under the current protocol, the Review Committee makes "a decision of whether or not to refer and schedule a patient for ... an EGD," and, if so
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referred, the inmate would be sent off site to "have an EGO performed to determine whether 
 or not they have esophageal varices." (Noel Test., Dec. 23, 2015, at 105:12-17).
50. According to the protocol, if the endoscopy documents the presence of esophageal varices, the patient will be approved for referral to a supervising physician - that is, a physician licensed in Pennsylvania and experienced in the treatment of Hepatitis C utilizing the most current medications who will treat the patient via telemedicine. (PI.'s Ex. 30 at 7, ~~ 3, 5). Dr. Noel testified that "[e]sophageal varices are a direct indication of portal hypertension and correlates with those [patients] with the most severe disease that need treatment immediately, [and] those with esophageal varices would then be referred for treatment." (Noel Test., Dec. 23, 2015, at 105:18-21).
51. According to the protocol, if the EGO results show no esophageal varices, the case will be returned to the home site for regular follow-up in the Chronic Care Clinic with a recommendation for repeat EGO in two to three years. (PI.'s Ex. 30 at 7, ~ 3).
52. Dr. Noel testified that "when you have esophageal varices, there's a certain pressure in the portal hypertenSion, and that pressure then correlates into the severity of the disease", (Noel Test., Dec. 23, 2015, at 112:6-8). Dr. Noel described the significance of esophageal varices as follows:
... when they have esophageal varices, they pass a certain threshold into advanced disease, and not only is there an indication of advanced disease, but those who actually have esophageal varices are at risk for the varices rupturing and having a severe and critical bleed, because they're [sic] platelet counts are low, so they don't clot very well, and you could have a catastrophe.
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So if we identify those with esophageal varices, not only do we have someone who has advanced disease, the Hepatitis C, would be most appropriate for, we can also have them band the esophageal varices so they don't have a bleed and a catastrophic event. (ld. at 112:10-23). 53. Dr. Noel testified that if inmates are found to "have varices, they move on to immediate treatment, and if they don't have varices, they can wait." (Id. at 128:25-129:2). 54. Dr. Noel agreed with the statement that "before treatment is even considered by the DOC, a person has a diagnosis of cirrhosis." (ld. at 129:6-8).
Plaintiff's Medical Conditions and Health 55. Plaintiff testified that he "feel[s] better than [he] had" and that the condition of his skin had "changed for the better" between September 2015 and the evidentiary hearing in December 2015. (Abu-Jamal Test., Dec. 18,2015, Doc. 94 at 82:11-15,95:22). 56. Plaintiffs expert witness Dr. Joseph Harris, a board-certified internist who sees, among others, patients with hepatitis C, testified that, in his opinion, Plaintiffs skin condition is secondary to his hepatitis C and that it is "probably" a condition called necrolytic acral erythema ("NAE"). (Harris Test., Dec. 18,2015, Doc. 94 at 105:19-106:21,135:17­ 25). Dr. Harris testified that hepatitis Ccan also cause the skin conditions psoriasis and eczema. (Jd. at 137:13-20). 57. Dr. Harris testified that the way to treat NAE is to "[t]reat the Hepatitis G' and that the fact that Plaintiffs skin condition has not fully resolved after extensive treatment
17 


speaks strongly for the condition being "either [NAE] or some condition that's predicated on 
 the Hepatitis C that's not going to get better without treatment of Hepatitis C." (Id. at 137:9­ 12,144:21-145:12).
58. Dr. Harris testified that, in his opinion, Plaintiff is likely to have about a Metavir score of F2 or 2.5. (Harris Test., Dec. 22,2015, Doc. 95 at 21 :19-22:6).
59. The DOC Defendants' expert witness Dr. Stephen Schleicher, a boardcertified dermatologist, testified that, in his opinion, Plaintiffs skin condition is a cross between psoriasis and eczema. (Schleicher Test., Dec. 22, 2015, Doc. 95 at 59:18-19, 70:4-13).
60. When asked if he would be surprised to learn that the CDC recommends treatment with antiviral medication to everyone with an active chronic hepatitis Cinfection, Dr. Schleicher testified as follows:
A: I can't say I'm either surprised or not surprised. It's not my field, and I don't know what the current thinking is and what defines an active infection. You know, unfortunately, it's beyond my expertise.
Q: Basically, you don't know much about Hepatitis C is what you're saying? A: Hepatitis C, as far as treatment goes, no, I can say, being a dermatologist,
no, that's true. (Id. at 112:4-14).
61. Dr. Cowan and Dr. Noel agree that Plaintiff has chronic Hepatitis C. (Cowan Test., Dec. 22, 2015 at 218:24-219:1; Noel Test., Dec. 23, 2015 at 123:14-16).
18

62. Dr. Noel testified that the Hepatitis CTreatment Committee made the decision not to give Plaintiff the direct-acting antiviral medication he has requested. (Noel Test., Dec. 23, 2015 at 129:14-18).
63. Dr. Noel testified that the Hepatitis CTreatment Committee has the ultimate authority to decide whether Plaintiff receives DAA medication. (Id. at 129:18-21).
64. Upon review of Plaintiffs case, the Hepatitis CCommittee determined that Plaintiff "did not have cirrhosis or vast fibrosis and, therefore, he was excluded from current treatment, based on his liver condition." (Id. at 120:23-7). Dr. Noel testified that Plaintiff will be reviewed again in the future. (Id. at 121:8-11).
65. If Plaintiff were given DAA treatment, Dr. Noel testified that Plaintiff would be "jumping line, whoever is lower down will have to wait longer." (Id. at 122:14-19).
66. When asked if there is any medical reason why Plaintiff should not be administered direct-acting antiviral medication, Dr. Noel testified as follows:
[o]ff the top of my head, I can think of no medical contraindications at this time. The only caveat I would say is if someone were to get treatment, we always present them to a gastroenterologist for final decision on that. But, no, I have no medical exclusions. (Id. at 154:8-15). 67. Dr. Cowan agreed that if Plaintiff is treated with DAA medication, it is almost certain, although not absolutely certain, that he would avoid further progression of his hepatitis Cdisease. (Cowan Test., Dec. 23,2015 at 23:10-13).
19 


68. Dr. Noel agreed that Plaintiff has a Metavir score of F2, which means that his liver is scarred. (Noel Test., Dec. 23, 2015 at 123:17-20). Dr. Noel also testified that Plaintiff has "some liver disease." (Noel Test., Dec. 23, 2015 at 147:3-8).
III. CONCLUSIONS OF LAW 1. Plaintiff has chronic hepatitis C. 2. The standard of care with respect to the treatment of chronic Hepatitis C is the
administration of newly-developed DM medications, such as Harvoni, Sovaldi, and Viekira Pak. 3. DOC's treatment protocol as currently adopted and implemented fails to provide treatment for hepatitis Cthrough the administration of DM medications such as Harvoni, Sovaldi, and Viekira Pak until an inmate, including Plaintiff, has progressed to the stage of advanced compensated cirrhosis or early decompensated cirrhosis manifested by esophageal varices. As such, the interim Hepatitis C Treatment Protocol presents a conscious disregard of a known risk of advanced cirrhosis and death by esophageal hemorrhage. 4. The interim protocol deliberately delays treatment for hepatitis Cthrough the administration of the DM drugs slJch as Harvoni, Sovaldi, and Viekira Pak despite the knowledge of representatives of the Hepatitis C Treatment Committee that: 1) the aforesaid DM medications will effect a cure of Hepatitis Cin 90 to 95 percent of the cases of that disease; and 2) that the substantial delay in treatment that is
20

I
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inherent in the interim protocol is likely to reduce the efficacy of these medications

I

i

and thereby prolong the suffering of those who have been diagnosed with chronic

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hepatitis C and allow the progression of the disease to accelerate so that it

I

presents a greater threat of cirrhosis, hepatocellular carcinoma, and death of the

!

inmate with such disease.

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1

5. The protocol as currently adopted and implemented presents deliberate

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indifference to the known risks which follow from untreated chronic hepatitis C.

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6. The named Defendants in this case - Defendants Kerestes, Oppman, Steinhart,

I
~

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Lisiak, Khanum, and Saxon - are not the appropriate defendants against whom to

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bring an Eighth Amendment claim challenging the DOC's interim protocol.

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7. It was the Hepatitis CTreatment Committee who made the decision not to give

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Plaintiff OM medications and that had, and continues to have, the ultimate

i

authority to determine whether or not Plaintiff will receive the OM medications that 
 offer him at least a 90 to 95 percent chance of attaining SVR - that is, of being 


I

cured of hepatitis C. 8. The Hepatitis CTreatment Committee consists of at least four people: Dr. Noel, as

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I

the DOC's Bureau of Health Care Chief of Clinical Services, a representative 'from

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the medical contractor/vendor (most likely the Statewide Medical Director for

I

Correct Care Solutions), the Bureau of Health Care Services Infectious Control

1
~

nursellnfection Control Coordinator, and the Bureau of Health Care's Assistant

f
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Medical Director, as well as additional persons invited to participate on an ad hoc basis. 9. The named Defendants are not members of the Hepatitis C Treatment Review Committee. 10. The Plaintiff has not yet established a connection between Defendants Kerestes, Oppman, Steinhart, Lisiak, Khanum, and Saxon, and the protocol that is at the heart of this case. 11. The Court cannot properly issue an injunction against the named Defendants, as the record contains no evidence that they have authority to alter the interim protocol or its application to Plaintiff. 12. Issuing a mandatory injunction against these defendants would be a nullity: they are incapable of implementing the relief that any injunction would necessarily require. 13. As to other DOC officials or CCS employees who may be proper defendants in this case but were not sued, the Court cannot issue an injunction against them on the basis of the case presently before it. 14. It is a principle of general application in Anglo-American jurisprudence that one is not bound by ajudgment in personam in a litigation in which he is not designated as a party or to which he has not been made a party by service of process.
22 


IV. STANDARD FOR PRELIMINARY INJUNCTIVE RELIEF 
 Federal Rule of Civil Procedure 65 governs the issuance of a preliminary injunction. In ruling on a motion for a preliminary injunction, the Court must consider: 1"(1) the likelihood that the moving party will succeed on the merits; (2) the extent to which the moving party will suffer irreparable harm without injunctive relief; (3) the extent to which the non-moving party will suffer irreparable harm if the injunction is issued; and (4) the public interest."'1 McNeil Nutritiona/s, LLC v. Heartland Sweeteners, LLC, 511 F.3d 350, 356-57 (3d Cir. 2007) (quoting Shire U.S. Inc. v. Barr Labs. Inc., 329 F.3d 348,352 (3d Cir. 2003)). Although the moving party bears the burden to show its entitlement to the requested relief, "each factor need not be established beyond doubt." Stilp v. Contino, 629 F. Supp. 2d 449, 457 (M.D. Pa. 2009), affd and remanded, 613 F.3d 405 (3d Cir. 2010). U[W]here the relief ordered by the preliminary injunction is mandatory and will alter the status quo, the party seeking the injunction must meet a higher standard of showing irreparable harm in the absence of an injunction." Bennington Foods LLC v. Sf. Croix Renaissance, Grp., LLP, 528 F.3d 176, 179 (3d Cir. 2008) (citing Tom Doherty Associates, Inc. V. Saban Entertainment, Inc., 60 F.3d 27, 33-34 (2d Cir. 1995)). Furthermore, federal law specifies that in civil actions challenging prison conditions, to the extent preliminary injunctive relief is granted, it "must be narrowly drawn, extend no further than necessary to
1 The Third Circuit has also characterized the first factor as whether the moving party has demonstrated "a reasonable probability of success on the merits." McTernan v. City of York, Pennsylvania, 577 F.3d 521, 526 (3d Cir. 2009) (internal citation and quotation marks omitted).
23

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). Additionally, "[t]he court shall give

substantial weight to any adverse impact on public safety or the operation of a criminal

justice system caused by the preliminary relief ...." Id.

V. ANALYSIS

At the outset, it is necessary to cut through the portions of the three-day hearing on

the instant Motion and the arguments made in the parties' briefs which do not advance the

resolution of this case. The Court recognizes that Plaintiff devoted testimony and argument

to showing that Plaintiff had conditions caused by chronic Hepatitis C, namely diabetes,

anemia, and a skin condition ranging from pruritus to NAE. (See, e.g., Post-Hearing Br. in

Supp. of PI.'s Mot. for Prelim. Inj., Doc. 112 at 22-29). The Court also recognizes that the

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DOC Defendants presented testimony and devoted argument to showing that Plaintiffs

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cracked, suppurating skin condition was instead unrelated to Hepatitis C, that the elevated

I

blood sugar readings were not evidence of a diabetic condition caused by Hepatitis C, and

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that his anemia was caused by the administration of cyclosporine for his skin condition.

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(See, e.g., Cowan Test., Dec. 22, 2015 at 217:6-218:19). However, reviewing all testimony and arguments offered by Counsel for the parties, the Court is of the view that the true, real

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issue in this case is whether Plaintiff is entitled to curative, DAA treatment for what all

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parties concede is his chronic Hepatitis C.2 As such, our analysis will focus on whether he
has established all of the prerequisites for the issuance of preliminary injunctive relief of a
mandatory nature which would accord medical treatment consisting of the administration of
such curative DAA drugs as Harvoni or Sovaldi.
* * * * *
Plaintiff does not have a reasonable chance of success on the merits against any of
the named Defendants. The central question in this litigation is whether the DOC's interim
Hepatitis C protocol constitutes deliberate indifference to the serious medical needs of
individuals with the disease; as such, a mandatory injunction favorable to Plaintiff would
necessarily require that the individuals enjoined be able to exercise control over the
contents or application of the protocol. Resolution of Plaintiff's Motion thus requires
analysis of the threshold topics of Eleventh Amendment immunity and the "extraordinary
remedy," Ferring Pharm., Inc. v. Watson Pharm., Inc., 765 F.3d 205, 210 (3d Cir. 2014), of
injunctive relief.
The Eleventh Amendment bars suits in federal court against states and state
agencies. See Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261 (1997). "[A] suit
2 As will be discussed infra, the DOC's interim protocol for the administration of OM hepatitis C medications in fact precludes all but the sickest of individuals from receiving treatment. Thus, even if the Court were to find that Plaintiff's presentation of the facts as to his medical conditions and their interrelationships were true, it is the Court's view that the interim protocol would not allow for treatment of Plaintiff with these medications. Because effective relief could only come through the process detailed by the interim protocol and because that process, by its own terms and the testimony of Dr. Noel, limits treatment to inmates with esophageal varices, which there is no indication or claim that Plaintiff has, it is the interim protocol and whether it constitutes deliberate indifference to the serious medical needs of individuals with hepatitis C that is the heart of Plaintiff's Eighth Amendment claim, not Plaintiff's personal medical condition.
25

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against a state official in his or her official capacity is not a suit against the official but rather 


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is a suit against the official's office. As such, it is no different from a suit against the State

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itself." McCauleyv. Univ. of the Virgin Islands, 618 F.3d 232,241 (3d Cir. 2010) (citing Will

!

v. Mich. Dep~ of State Police, 491 U.S. 58, 71 (1989)) (internal citations and quotation

marks omitted). However, there is an exception to Eleventh Amendment immunity for state

officials when they are sued for prospective injunctive relief to remedy ongoing violations of

federal law. See Ex parle Young, 209 U.S. 123 (1908); see also Koslow v. Commonwealth

of Pennsylvania, 302 F.3d 161, 178 (3d Cir. 2002) (The Eleventh Amendment "has not been

interpreted to bar a plaintiffs ability to seek prospective relief against state officials for

violations of federal law."). Before applying the Ex parle Young doctrine, a court must be

sure the matter before it is one of federal, rather than state, law. Pa. Fed'n of Sporlsmen's

Clubs, Inc. v. Hess, 297 F.3d 310, 325 (3d Cir. 2002) ("[T]he appropriate inquiry for Ex parle

Young purposes is whether a court is being asked to enforce state law or federal law as

against an individual state officer.").

Perhaps recognizing the influence that the Eleventh Amendment and its doctrine

have on suits such as the one at bar, the Plaintiff has rightly chosen to sue individual DOC

officers in their official capacity rather than an entity that indisputably enjoys sovereign

immunity, such as the Commonwealth of Pennsylvania. Furthermore, Plaintiffs Amended

Complaint (Doc. 57) and Motion for Preliminary Injunction (Doc. 23) clearly complain of and

seek prospective injunctive relief for violations of federal law. However, while the Plaintiff

26 


has attempted to sue the individuals whom - the Court assumes - he thought were responsible for the federal law violations alleged rather than the State itself, the record at this early stage of litigation has not borne these allegations out. Returning to Ex parte Young, a century of case law makes clear that
[i]n making an officer of the state a party defendant in a suit to enjoin the enforcement of an act alleged to be unconstitutional, it is plain that such officer must have some connection with the enforcement of the act, or else it is merely making him a party as a representative of the state, and thereby attempting to make the state a party. Ex parte Young, 209 U.S. 123,157 (1908). From the record thus far developed, it appears to the Court that Defendants Kerestes, Oppman, and Steinhart will be entitled to sovereign immunity and, thus, there is no likelihood of success on the merits of Plaintiffs claims as to these Defendants such that a preliminary injunction could properly issue. Dr. Paul Noel, DOC's Chief of Clinical Services and a member of the Hepatitis C Treatment Committee,
(Findings of Fact, supra, at 1m 25,47), testified as follows:
Q. And he's requested that he be offered that medication, has he not? A. He has. Q. And who made the decision not to give it to him? A. The Hepatitis CTreatment Committee. Q. Do they have the ultimate authority to decide whether he gets the medication? A. Yes.
27 


(Noel Test., Dec. 23, 2015 at 129:14-21). It was the Hepatitis C Treatment Committee who 
 made the decision not to give Plaintiff direct-acting antivirals and that had, and continues to have, the ultimate authority to determine whether or not Plaintiff will receive the direct-acting antivirals that offer him at least a 90 to 95 percent chance of attaining SVR - that is, of being cured of Hepatitis C. (Id.). Dr. Noel testified that the Committee consists of at least four people: himself, as "the Chief of Clinical Services, the representative from the medical contractor, C[orrect] C[are] S[olutions], Infectious Control nurse, the Assistant Medical Director for the DOC, and anyone we have might [sic] invite to participate in any difficult
cases." (Findings of Fact, supra, at 1f 47). Additionally, the interim protocol itself describes
the Hepatitis C Treatment Committee as consisting of the "BHCS Chief of Clinical Services, the BHCS Assistant Medical Director, the Statewide Medical Director for the medical vendor, and the BHCS I[nfection] C[ontrol] C[oordinator]." (ld.; PI.'s Ex. 30 at 7). Though Dr. Noel did not provide the names of the other members of the Committee, the titles provided strongly suggest that they are not John Kerestes, who is the Superintendent of SCI-Mahanoy, John Steinhart, who is the Chief Health Care Administrator at SCI-Mahanoy, or Christopher Oppman, who Plaintiff identified as the Director of the Bureau of Health Care Services at DOC, (see Am. Compl., Doc. 57), but who has been employed by DOC in a different capacity since April 2015, before the lawsuit was initiated.3 Thus, to sue
3 The Court takes judicial notice of the fact that Christopher Oppman was named Acting Deputy Secretary for Administration in April 2015 and named Deputy Secretary for Administration in or about July 2016. Press Release, Pa. Dep't of Corr., Christopher Oppman Named Department of Corrections Deputy Secretary for Administration (July 5, 2016) {http://www.cor.pa.gov/About%20Us/Newsroom/Documents/
28

Defendants Kerestes, Steinhart, and Oppman, for whom the Plaintiff has not yet established 


a connection to the protocol that is at the heart of this case, is to make these parties merely

representatives of the Commonwealth. Sovereign immunity cannot be so circumvented.

Additionally and alternatively, Plaintiff lacks a reasonable likelihood of success on

the merits because the Court cannot properly issue an injunction against the named

Defendants. As the record contains no evidence that they have authority to alter the interim

protocol or its application to Plaintiff, issuing a mandatory injunction against them would be

a nullity: they are incapable of implementing the relief that any injunction would necessarily

require. As to other DOC officials or Correct Care Solutions employees who may be proper

defendants in this case but were not sued, the Court cannot issue an injunction against

them on the basis of the case presently before it. "'It is a principle of general application in

1

Anglo-American jurisprudence that one is not bound by ajudgment in personam in a

,

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litigation in which he is not designated as a party or to which he has not been made a party

l

by service of process.'" Taylor v. Sturgell, 553 U.S. 880, 884 (2008) (quoting Hansberry v.

I

Lee, 311 U.S. 32, 40 (1940)). Indeed, Rule 65(d)(2) provides that a preliminary injunction

I

order

I

binds only the following who receive actual notice of it by personal service or

otherwise:

I

(A) the parties;

I

2016%20Press%20Releases/Christopher%200ppman%20Named%2ODepartment%20of%20Corrections% 20Deputy%20Secretary%2Ofor%20Administration .doc).

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~

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(8) the parties' officers, agents, servants, employees, and attorneys; and
(C) other persons who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (8).
Fed. R. Civ. P. 65(d)(2)(A)-(C). While "[i]t is generally accepted that an injunction may be
enforced against a nonparty in 'privity' with an enjoined party," Nat'l Spiritual Assembly of
Baha'is of U.S. Under Hereditary Guardianship, Inc. v. Nat'l Spiritual Assembly of Baha'is of
U.S., Inc., 628 F.3d 837, 849 (7th Cir. 2010) (collecting cases), there are no parties that can
be properly enjoined in the instant litigation such that the Court need not reach the issue of
which DOC officials or Correct Care Employees may be in privity with the named parties.
[N]o court can make a decree which will bind anyone but a party; a court of equity is as much so limited as a court of law; it cannot lawfully enjoin the world at large, no matter how broadly it words its decree. If it assumes to do so, the decree is pro tanto brutum fulmen, and the persons enjoined are free to ignore it. It is not vested with sovereign powers to declare conduct unlawful; its jurisdiction is limited to those over whom it gets personal service, and who therefore can have their day in court. Thus, the only occasion when a person not a party may be punished, is when he has helped to bring about, not merely what the decree has forbidden, because it may have gone too far, but what it has power to forbid, an act of a party.
Alemite Mfg. Corp. v. Staff, 42 F.2d 832, 832-33 (2d Cir. 1930) (Hand, J.). See also Nat'!
Spiritual Assembly of Baha'is, 628 F.3d at 847-54 for an overview of Supreme Court and
circuit case law on enforcing injunctions against nonparties and extensive discussion of
enforcement against nonparties "legally idenUfied" with an enjoined party.
Against this backdrop of legal principles and on the record now before the Court,
Plaintiff does not have a reasonable likelihood of success on the merits as to the current
30 


DOC Defendants Kerestes, Steinhart, and Oppman. Similarly, there is no record evidence 


to suggest that the Medical Defendants Lisiak, Khanum, and Saxon, as employees of CCS,

have any authority over the Hepatitis CTreatment Review Committee, the development,

adoption, or implementation of the interim Hepatitis C protocol, or the protocol's application

to Plaintiff. In the current posture of this case, there is no reasonable likelihood of success

on the merits and Plaintiffs Motion for Preliminary Injunction (Doc. 23) will be denied.

* * * * *

However, were the proper defendants named, the Court believes there is a sufficient

basis in the record to find that DOC's current protocol may well constitute deliberate

indifference in that, by its own terms, it delays treatment until an inmate's liver is sufficiently

cirrhotic that a gastroenterologist determines, at the end of a lengthy, multi-step evaluation

procedure taking place over a long period of time, that that inmate has esophageal varices.

In the words of Dr. Noel, DOC's Chief of Clinical Services, the presence of these

I

esophageal varices signifies that inmates have "pass[ed] ... into advanced disease, and ..

I,

. are at risk for the varices rupturing and having a severe and critical bleed, because they're

[sic] platelet counts are low, so they don't clot very well, and you could have a catastrophe."

(Findings of Fact, supra, 11 52; Noel Test., Dec. 23, 2015, at 112:10-23). In the Court's view,

the effect of the protocol is to delay administration of DAA medications until the inmate

faces the imminent prospect of "catastrophic" rupture and bleeding out of the esophageal

vessels. Additionally, by denying treatment until inmates have "advanced disease" as

31 


marked by esophageal varices, the interim protocol prolongs the suffering of those who 
 have been diagnosed with chronic Hepatitis Cand allows the progression of the disease to accelerate so that it presents a greater threat of cirrhosis, hepatocellular carcinoma, and death of the inmate with such disease.
The protocol put forth by the Hepatitis CTreatment Review Committee exposes inmates in the care of DOC to these risks, despite knowing that the standard of care is to treat patients with chronic Hepatitis C with OM medications such as Harvoni or Sovaldi, regardless of the stage of disease. The DOC Defendants' own expert, Dr. Jay Cowan, acknowledges that the standard of care is to treat every patient for whom treatment with direct-acting antiviral medications is not medically contraindicated, regardless of disease
progression or status as an incarcerated person. (See Findings of Fact, supra, at 1m 18­
21). The interim protocol does not do that; instead it opts for a desultory monitoring4 of patients who are afflicted with chronic hepatitis C, with active treatment, as indicated above, being delayed until the disease has progressed to the point that scarring of the liver has turned to cirrhosis and liver malfunction. Given that the DOC Defendants' expert Dr. Cowan acknowledges that "[v]ery often, you can't predict the rate of progression" of the disease, (Findings of Fact, supra, ~ 9; Cowan Test., Dec. 22, 2015 at 208:15-20), this monitoring
4 By Order of the Court (Doc. 125), the DOC Defendants supplemented the preliminary injunction record with medical records created after the December 2015 hearing; these records show that Plaintiff was seen for the "Hepatitis C Clinic" on or about April 4, 2016 and that his provider indicated that his next clinic should be "in 12 months." (PI.'s Medical Records, Doc. 133 at 82). The Court is of the view that increased monitoring of Plaintiff is necessary to safeguard his health and leaves it to Plaintiffs Counsel to place this case in posture where the appropriate defendants are sued and such monitoring can be sought
32 


approach leaves inmates vulnerable to a "substantial risk of deteriorating health and death."
B.E. v. Teeter, No. C16-227-JCC, 2016 WL 3033500, at *5 (W.D. Wash. May 27,2016).
Indeed, an episode of such risk brought to bear is already documented in the federal courts. In B.E. v. Teeter, a group of Washington State Medicaid enrollees with chronic hepatitis C brought suit against the Washington State Health Care Authority ("WHCA"), alleging that the WHCA's Hepatitis C treatment policy "categorically excludes 'all monoinfected patients ... who have a fibrosis score of FO through F2'" from treatment with the latest DAA medications. Teeter, 2016 WL 3033500 at *1. While the legal context of the Teeter case is different, arising under the federal Medicaid Act rather than the Eighth Amendment, id. at *2, the District Court for the Western District of Washington's analysis of the risks to human health posed by chronic hepatitis C is applicable here, particularly where the record evidence shows that the standard of care for individuals with chronic Hepatitis C is no different within the prison walls than in the community. In 'finding that the "[p]laintiffs have introduced compelling evidence that they will suffer irreparable harm if the preliminary injunction is denied" and that the irreparable harm "factor weighs strongly in favor of a preliminary injunction," Teeter, 2016 WL 3033500 at *6, the district court noted the case of L.B., a Washington Medicaid enrollee who was prescribed Sovaldi and later Harvorli, but who was denied both medications by Washington State Health Care Authority ("WHCA"). L.B.'s "kidneys [then] deteriorated so significantly that his provider could no longer recommend Harvoni," id., leading the district court to conclude that L.B. "suffered irreparable
33 


damage to his liver because the WHCA's [treatment] policy required proof of other 


concerning health factors with an F2 fibrosis score" in order to be approved for treatment.

Id. at *6 fn.1. The Teeter district court granted the Medicaid enrollee plaintiffs' motion for

preliminary injunction, requiring the WHCA Uta return to providing coverage for prescription

medications to treat Hepatitis Cvirus ("HCV") without regard to fibrosis score." Teeter, 2016

WL 3033500 at *6.

"[O]utright refusal of any treatment for a degenerative condition that tends to cause

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acute infection and pain if left untreated and (2) imposition of a seriously unreasonable 


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condition on such treatment, both constitute deliberate indifference on the part of prison 


officials." Harrison v. Barkley, 219 F.3d 132, 138 (2d Cir. 2000). In the wake of the advent

of curative Hepatitis Cmedications, Defendants have charted a course that denies

treatment to inmates until they are on the verge of a "catastrophic" health event, a decision

that appears to contain a "fiscal cornponent/' (Findings of Fact, supra, ~ 24; Cowan Test.,

Dec. 23, 2015 at 82:18-25), and ignores the standard of care for the treatment of chronic

hepatitis C. It is regrettable for the Plaintiff and for the system of healthcare that is at issue

that the posture of this case does not allow for a full exploration of the serious legal

questions posed by the DOC's interim Hepatitis CTreatment Protocol. These are questions

deserving of treatment and resolution at the level of the circuit courts or above, and, despite

the substantial amount of judicial resources that have been devoted to this case thus far,

34 


Plaintiffs presentation of his case has done little to facilitate the ultimate resolution of the core issues challenging both inmates and corrections officials across the country.
VI. CONCLUSION For the foregoing reasons, the Court will deny Plaintiffs Motion for Preliminary Injunction (Doc. 23). A separate Order follows.
obert D. Mariani United States District Judge
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 Case 3:15-cv-00967-RDM Document 245 Filed 08/23/17 Page 1 of 38

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLANIA

MUMIA ABU-JAMAL
Plaintiff,
v.
JOHN KERESTES, Former Superintendent State Correctional Institution Mahanoy

:

:

: Case No. 15-Cv-00967

: (RDM)(KM)

:

:

: :

Judge Robert D. Mariani

:

:

Theresa DelBalso, Superintendent State : Magistrate Judge Karoline

Correctional Institution Mahanoy

: Mehalchick

Joseph Silva, DOC Director of Bureau : JURY TRIAL DEMANDED of Health Care Services

Pennsylvania Department of Corrections

ELECTRONICALLY FILED

John Wetzel, Secretary of Pennsylvania Department of Corrections

Dr. Paul Noel, Director of Clinical Service

Dr. Jay Cowan, Correct Care Solutions

Christopher Oppman, DOC Director of Bureau of Health Care Services

Dr. John Lisiak, SCI Mahanoy

Dr. Shaista Khanum, SCI Mahanoy

Scott Saxon, Physician’s Assistant, SCI Mahanoy

Case 3:15-cv-00967-RDM Document 245 Filed 08/23/17 Page 2 of 38
John Steinhart, SCI Mahanoy, Chief Health Care Administrator
Defendants.
FOURTH AMENDED COMPLAINT JURISDICTION
1. This is an action for monetary, declaratory, and injunctive relief for violations of the First, Eighth, and Fourteenth Amendments of the United States Constitution pursuant to 42 U.S.C. § 1983, and violations of Pennsylvania State law.
2. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1343(a)(3) and (4). The Plaintiff further invokes the supplemental jurisdiction of this Court under 28 U.S.C. Section 1367(a) to hear and adjudicate state law claims.
3. This Court is the appropriate venue pursuant to 28 U.S.C. § 1391(b)(2) because the events and omissions giving rise to the claims occurred in the Middle District of Pennsylvania. PARTIES
4. Mumia Abu-Jamal is an African-American currently incarcerated in the custody of the Pennsylvania Department of Corrections (DOC) at the State Correctional Institution at Mahanoy. Mr. Abu Jamal’s case is well-known world-wide and is considered by many to be a case of injustice.
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5. Mr. Abu-Jamal is suffering from chronic hepatitis C. The disease has caused and is causing severe health problems. He has requested that he be provided with anti-viral medication that would cure his disease but the defendants have denied that treatment.
6. Defendant John Kerestes was the Superintendent, also known as the Facility Manager at SCI Mahanoy. Defendant Kerestes was responsible for the overall operation of SCI Mahanoy during the time giving rise to this complaint. Defendant Kerestes had the power to authorize attorney and family visits with individuals in the custody of SCI Mahanoy when they are in a hospital off of prison grounds. In addition, he was responsible for the well-being and health of individuals incarcerated at SCI Mahanoy including their access to hepatitis C treatment. Defendant Kerestes is sued in his individual capacity. At all times relevant hereto defendant Kerestes acted under color of state law.
7. Defendant John Wetzel is the Secretary of the Pennsylvania Department of Corrections. In that capacity he is responsible for the formulation and implementation of policies within the DOC including but not limited to those concerning inmate health care, including policies for the treatment of hepatitis C. He is sued in his individual capacity for money damages and in
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his official capacity for injunctive relief. At all times relevant hereto, Defendant Wetzel acted under color of state law. 8. The Pennsylvania Department of Corrections (DOC) is the state agency in which the plaintiff is held custody. The DOC is required to provide medical care for those in its custody. 9. Defendant Theresa Delbalso is the Superintendent at SCI Mahanoy. Defendant Delbalso is responsible for the overall operation of SCI Mahanoy. Defendant Delbalso has the power to authorize attorney and family visits with individuals in the custody of SCI Mahanoy when they are in a hospital off of prison grounds. In addition, she is responsible for the well-being and health of individuals incarcerated at SCI Mahanoy including their access to hepatitis C treatment. Defendant DelBalso is sued in her official capacity for injunctive relief and not for money damages. She has been substituted as a defendant pursuant to Fed.R.Civ.P. 25(d). At all times relevant hereto, defendant Delbalso acted under color of state law. 10. Defendant Christopher Oppman was the Director of the Bureau of Health Care Services of the DOC. According to the DOC website, the Bureau of Health Care Services “is responsible for supervising and monitoring the delivery of all medical/dental services…throughout the state correctional system.” Defendant Oppman is responsible for the formulation and
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implementation of health care policies within the DOC including policies concerning access to treatment for hepatitis C. He is sued in his individual capacity for money damages. At all times relevant hereto defendant Oppman acted under color of state law. 11. Defendant Joseph J. Silva is the Director of the Bureau of Health Care Services of the DOC. According to the DOC website, the Bureau of Health Care Services “is responsible for supervising and monitoring the delivery of all medical/dental services…throughout the state correctional system.” Defendant Silva is responsible for the formulation and implementation of health care policies within the DOC including policies for access to treatment for hepatitis C. Defendant Silva is sued in his official capacity only for injunctive relief and not money damages. He has been substituted as a defendant pursuant to Fed.R.Civ.P. 25(d). At all times relevant hereto, defendant Silva acted under color of state law. 12. Defendant Paul Noel, M.D. is the Director of Clinical Services of the DOC. In that capacity he has oversight over the delivery of health care services to inmates within the DOC. In addition, Dr. Noel sits on the hepatitis C committee that is responsible for implementing the DOC’s hepatitis C protocol and makes recommendations concerning which inmates will receive hepatitis C treatment. He is sued in his individual capacity for
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money damages and his official capacity for injunctive relief. At all times relevant hereto defendant Noel acted under color of state law. 13. Defendant John Lisiak is a Doctor at SCI Mahanoy. Defendant Lisiak is sued in his individual capacity for money damages and official capacity for injunctive relief. At all times relevant hereto defendant Lisiak acted under color of state law. 14. Defendant Shaista Khanum is a Doctor at SCI Mahanoy. Defendant Khanum is sued in his individual capacity for money damages and official capacity for injunctive relief. At all times relevant hereto defendant Khanum acted under color of state law. 15. Defendant Scott Saxon is a Physician’s Assistant at SCI Mahanoy. Defendant Saxon is sued in his individual capacity for money damages and official capacity for injunctive relief. At all times relevant hereto defendant Saxon acted under color of state law. 16. Defendant John Steinhart is the Chief Health Care Administrator at SCI Mahanoy. According to the DOC Medical Procedures Manual, Defendant Steinhart is responsible for overseeing delivery of medical services to the inmates at SCI Mahanoy via the medical vendor and department staff. Defendant Steinhart is sued in his individual capacity for money damages
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and official capacity for injunctive relief. At all times relevant hereto defendant Steinhart acted under color of state law. 17. Defendant Jay Cowan, M.D. is employed by Correct Care Solutions (CCS), the corporation that is contracted to provide medical services to inmates incarcerated within the Pennsylvania Department of Corrections. He has served as Statewide Medical Director of that entity and as a member of the DOC’s hepatitis C treatment committee.
STATEMENT OF FACTS Background 18. Mumia Abu Jamal, now 62 years old, has been incarcerated since 1981. In the late 1960’s and early 1970’s he was a member of the Philadelphia chapter of the Black Panther Party for Self Defense (BPP). That organization, founded in 1966 in Oakland, California, had a ten point program that called for community control of the institutions in the Black community including community control of the police, health care and education. 19. According to disclosures made to Congress in the mid-1970’s, the Black Panther Party was the main target of the Federal Bureau of Investigation’s (FBI) counterintelligence program, known as COINTELPRO. COINTELPRO’s stated aim was to “neutralize” Black organizations and
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their leaders through a variety of illegal and/or unconstitutional actions. (See Final Report Book III, Senate Select Committee On Government Operations at http://www.aarclibrary.org/publib/church/reports/book3/pdf/ChurchB3 _1_COINTELPRO.pdf). 20. As a member of the Philadelphia chapter of the BPP Plaintiff Abu-Jamal often spoke out against racism, particularly the violence of the police directed at the Black community. Aware of his activities, the FBI placed him on its Security Index solely due to his public speeches for the Black Panther Party. (See “FBI File Tracks Abu-Jamal Through His Teenage Years” Philadelphia Inquirer, June 12, 1995, http://articles.philly.com/1995-06-12/news/25690155_1_mumia-abujamal-officer-daniel-faulkner-wesley-cook). 21. By the late 1970’s Plaintiff Abu-Jamal was a well-known print and radio journalist. He was known as the “Voice of the Voiceless” and continued writing about issues affecting the Black community. He was, among other things, a vocal supporter of the MOVE organization and served a term as the President of the Philadelphia Chapter of the National Association of Black Journalists.
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22. On December 9 1981, Mr. Abu-Jamal was arrested following a shooting incident that left Philadelphia Police Officer Daniel Faulkner dead and Mr. Abu-Jamal severely wounded.
23. Plaintiff Abu-Jamal was charged with Officer Faulkner’s murder. He was convicted and sentenced to death. He has always maintained his innocence.
24. After his sentencing Plaintiff Abu Jamal was transferred to the custody of the Pennsylvania Department of Corrections (DOC) and placed on death row. He was to be on death row for nearly 30 years.
25. During that time, Plaintiff Abu-Jamal made numerous applications to both state and federal courts to vacate his conviction. These applications included new evidence that provided compelling proof of his innocence. The numerous injustices in his case led to a world-wide movement calling for his release.
26. At the same time, many police organizations, most notably the Fraternal Order of Police (FOP), engaged in a campaign calling for Mr. Abu-Jamal’s execution. See “FOP Outraged Over Court’s Consideration Of New Trial For Jamal” at http://www.fop.net/causes/faulkner/3rdcircuit.shtml.
27. All applications for a new trial have, to date, been denied. However, in 2011, the United States Court of Appeals for the Third Circuit affirmed the
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order of the lower court that set aside the death sentence. Abu-Jamal v. Secretary, Pennsylvania Department of Corrections, 643 F.3d 370 (3d Cir. 2011). 28. The Philadelphia District Attorney’s Office chose not to seek to reinstate the death sentence. Mr. Abu-Jamal was then placed by the DOC into general population. 29. As he has done throughout his incarceration, Mr. Abu-Jamal has commented orally and through writings, on the issues of the day (See www.prisonradio.org). 30. But there have been extraordinary efforts to deny Mr. Abu-Jamal his First Amendment rights. In 2014 Mr. Abu-Jamal was invited to send a statement that would serve as the commencement address at Goddard College, his alma mater. At the urging of the Fraternal Order of Police, the Pennsylvania legislature passed, and the Governor signed a law that became commonly known as the “Silence Mumia Act.” 31. Under it, a court would have had the authority to stop publication of anything written or said by a prisoner that could have caused distress to the prisoners’ victims and/or the victims’ loved ones. 32. On April 28, 2105, the law was declared unconstitutional on its face. Jamal v. Kane, -- F.Supp.3d --, 2015 WL 1932236 (M.D.Pa. 2015).
Hepatitis C
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33. Hepatitis C (HCV) is a virus that infects cells of the liver. Approximately 75-85 percent of individuals infected with the HCV will develop chronic hepatitis C, causing progressive inflammation of the liver.
34. Inflammation caused by the virus can lead to scarring, known as fibrosis, and extreme scarring, known as cirrhosis, both of which affect liver functioning.
35. One of the ways liver inflammation is measured is on the Metavir scale. On that scale F0 means no fibrosis and F4 means cirrhosis
36. Chronic hepatitis C patients with any liver scarring, i.e. greater that F0 are at a greater risk of rapid disease progression.
37. At least twenty percent of chronic hepatitis C patients will develop cirrhosis, and between 2 and 7% of them per year will develop liver cancer.
38. About 19% of those who develop cirrhosis will go on to develop liver cancer.
39. Approximately 20% of all those with chronic hepatitis C will die from complications of the disease.
40. In the United States, hepatitis C causes more deaths than all other infectious diseases combined
41. Chronic hepatitis C often causes complications outside of the liver, including anemia and diabetes.
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42. Between 20-40% of chronic hepatitis C patients have cutaneous (skin) manifestations of the disease. Among them are the relatively rare conditions of lichen planus and necrolytic acral erythema (NAE), and more common ones such as psoriasis, eczema and pruritus (persistent itching).
43. In or about 2013 new anti-viral drugs became available. These drugs have a 90-95% cure rate and few, if any, side effects. These drugs, two of which are Harvoni and Sovaldi have become the standard of care in the medical community.
44. Because of the numerous benefit of early treatment, the American Association for the Study of Liver Diseases (AASLD), recommends that everyone with chronic hepatitis C be treated with those anti-viral drugs irrespective of disease stage on the Metavir scale or prognosis for progression.
45. The Center for Disease Control (CDC) has issued its own guidelines that state that the guidelines issued by the AASLD are the standard of care for the treatment of hepatitis C. Hepatitis C and The Policy Of The Pennsylvania DOC
46. The Pennsylvania Department of Corrections, through its Bureau of Health Care Services is charged with delivery of necessary medical care to inmates under the jurisdiction of the DOC
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47. There are at least 5000 inmates under the jurisdiction of the DOC who have active, i.e. chronic, hepatitis C.
48. In 2013, when the current anti-viral drugs became available, the DOC, through its Bureau of Health Services, headed by defendant Oppman and with the knowledge and approval of defendants Oppman and Wetzel ceased treating all inmates in the custody of the DOC who have active, i.e. chronic hepatitis C.
49. This policy continued under the direction of defendant Oppman, with the knowledge and approval of defendant Wetzel throughout 2014 and most of 2015
50. In late 2015, defendants Oppman, Cowan, and Noel, with the knowledge and approval of defendant Wetzel formulated and adopted a medical protocol concerning who would be treated and not treated with hepatitis C anti-viral drugs.
51. The hepatitis C protocol was added as Appendix 16-B to the Access to Health Care Procedures Manual of the Department of Corrections and is part of the DOC Policy Statement 13.1.1 entitled “Management and Administration of Health Care”. The Policy Statement was personally authorized by defendant Wetzel.
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52. Under that policy, only inmates with decompensated cirrhosis with bleeding are authorized to receive the anti-viral drugs.
53. When the disease has advanced to decompensated cirrhosis with bleeding, a person has already suffered irreversible damage to their health and are at a grave risk of death.
54. In addition, long before the disease has progressed to that stage, individuals suffering from it have suffered irreversible damage to their liver, decreased liver function, and are at a significantly higher risk of developing liver cancer. Many also suffer severe extrahepatic manifestations of the disease that adversely affect quality of life.
55. The DOC Policy Statement requires that copies of the Procedures Manual be delivered to each Facility Manager (Superintendent).
56. This policy was adopted and implemented by defendants Wetzel, Oppman, Noel, Kerestes, Steinhart, Cowan, and others even though they knew that denying treatment to inmates who did not fall under the protocol had no medical justification, causes harm to those inmates’ health and places them at risk of death.
57. The defendants, and each of them, adopted and implemented this protocol even though they knew that the standard of care in the community, as
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articulated by the AASLD and CDC is to treat all who have chronic hepatitis C. 58. This protocol remains in effect and is administered and enforced by defendant Wetzel, defendant Silva, the current head of the Bureau of Health Care Services, defendant Noel, the Director of Clinical Services, defendant Cowan, defendant DelBalso, Superintendent of SCI Mahanoy and defendant Steinhart, Chief Health Care Administrator at SCI Mahanoy. 59. As more fully discussed infra., it was pursuant to the refusal of the DOC to treat anyone between 2013 and 2015 and the policy adopted in 2015 that the plaintiff Mumia Abu Jamal was denied and is being denied treatment for his hepatitis C with the anti-viral medications. The Plaintiff’s Medical Care 60. During routine blood work performed by DOC medical staff in 2012, Plaintiff Abu-Jamal tested positive for the Hepatitis C antibody. He likely contracted the virus during a 1981 blood transfusion. 61. At that time and for the next three years, no one in the DOC medical staff ordered follow-up testing to determine whether his disease was chronic. 62. That Mr. Abu-Jamal had tested positive for the hepatitis C anti-body is noted in his medical records that are in the possession of the DOC.
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63. In or about August 2014, Mr. Abu-Jamal’s hepatitis C infection began to manifest itself through a severe skin rash that itched incessantly.
64. In that month Mr. Abu Jamal began to experience itching over his whole body. Plaintiff went to sick call on several occasions. Medical personnel prescribed steroid creams. They did not alleviate the rash or the itching.
65. On or about February 11, 2015 defendant Dr. Lisiak noted that the itchy rash covered 70% of Mr. Abu-Jamal’s body
66. On February 16 and February 17, Plaintiff again went to sick call and saw defendant Dr. Khanum. He too noted that the rash covered 70% of Plaintiff’s body. Plaintiff told Dr. Khanum that he felt dizzy and experienced some blurred vision.
67. Plaintiff’s skin became increasingly dark and scaly. He continually itched and was in near constant pain and discomfort. He began using a wheelchair whenever he left the infirmary area.
68. On February 20, 2015, defendant Dr. Khanum ordered that Plaintiff be admitted to the facility infirmary.
69. On that same date, defendant Dr. Lisiak noted that Plaintiff’s blood glucose had risen to an above-normal 167. No one at SCI Mahanoy, including but not limited to defendants Lisiak, Saxon, and Khanum told the Plaintiff that his blood glucose was abnormally high.
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70. Although Mr. Abu Jamal’s medical records noted that he had tested positive for the hepatitis C antibody years earlier, none of the medical personnel, including but not limited to defendants Lisiak, Saxon, and Khanum ordered a test to determine whether the infection was active and/or whether hepatitis C might be the underlying cause of the skin condition.
71. In late February 2015 Mahanoy medical staff, with the knowledge and approval of defendants Khanum, Lisiak and Saxon prescribed another steroid, oral prednisone, and Cyclosporine, an immunosuppressant. The rash persisted. A medical note dated February 19, 2015 recorded the fact that plaintiff Abu-Jamal was experiencing “increasing peeling off of dry skin at the site of rashes”.
72. Blood work taken on March 6, 2015 showed that Mr. Abu-Jamal’s glucose level had risen to the severely abnormal level of 419. These results were reviewed by defendants Lisiak, Khanum and Saxon.
73. Because the glucose levels were noted in the medical records, defendants Lisiak, Khanum, and Saxon knew or should have known that plaintiff AbuJamal had a dramatically elevated glucose level indicating a dangerous case of hyperglycemia.
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74. Defendants Lisiak, Khanum, and Saxon took no action to address the glucose level. There was no treatment provided, nor any follow up testing of his glucose level. They did not even inform Mr. Abu-Jamal of that test result.
75. Defendants Lisiak, Khanum and Saxon continued to prescribe cyclosporine notwithstanding that it is medically contraindicated for an African American with sudden onset diabetes.
76. In approximately the third week of March, 2015 an inmate at Mahanoy saw defendant Kerestes in one of the facility’s corridors. He told defendant Kerestes that Mr. Abu-Jamal was in a seriously weakened state and was suffering.
77. Upon information and belief defendant Kerestes took no action as a result of that inmate’s statements to him.
78. On March 30, 2015, Mr. Abu-Jamal lost consciousness. He was rushed to Schuylkill Medical Center. Upon testing his blood glucose was found to be 507. He had gone into diabetic shock and was placed in the Critical Care Unit.
79. Untreated hyperglycemia is a potentially fatal condition. 80. Plaintiff returned to the prison on April 1. His release papers indicate the
prognosis as “guarded” and include the following medical issues: diabetes,
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new onset, encephalopathy secondary to hyperglycemia, dehydration, acute kidney injury, hyponatremia, hypokalemia, asymptomatic gallstones, skin rash, anemia and a history of hepatitis C. 81. In the weeks following the diabetic shock, Mr. Abu Jamal experienced fatigue, episodes of “brain fog” and emotional distress. 82. Mr. Abu Jamal’s blood work revealed, and continues to reveal abnormalities, including a consistently below-normal-range hemoglobin count. 83. Although the Schuylkill release order noted that Mr. Abu Jamal had a “history” of hepatitis C, none of the defendants, including defendants Kerestes, Steinhart, Lisiak, Khanum, or Saxon, took any steps to investigate whether the hepatitis C may be the cause of the rash and/or other medical issues. 84. In March 2015, Mr. Abu Jamal retained counsel to advocate on behalf of Mr. Abu-Jamal for appropriate medical care. These efforts have included visits, procurement of medical records, consultation with medical experts and communications with the DOC urging adequate health care. 85. During and after Mr. Abu-Jamal’s March 30, 2015 hospitalization, defendant Steinhart frequently spoke on the phone with Mr. Abu-Jamal’s wife. During these conversations he received regular, daily updates on Mr.
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Abu-Jamal’s ongoing health problems, including the skin condition that had yet to have its underlying cause diagnosed. 86. In the weeks and months that followed, counsel communicated with defendants Kerestes and Steinhart via letter in an effort to secure adequate medical care for Mr. Abu-Jamal. Copies of some of the correspondence were sent to defendant Oppman and defendant Wetzel, Secretary of the Pennsylvania Department of Corrections. 87. Requests included, but were not limited to treatment for the skin condition, a hepatitis C workup and an overall health plan to determine the underlying cause(s) of Plaintiff’s health issues. 88. For example, on or about April 5, 2015, counsel sent a letter to defendant
Kerestes recounting the events of March 30, 2015 and the fact that it occurred after several months of adverse health symptoms, including abnormal blood work. Among other things counsel requested that a doctor of Mr. Abu-Jamal’s own choosing be permitted to examine him. Plaintiff’s counsel sent Defendants Oppman and Steinhart copies of that letter. 89. None of the defendants responded to counsel’s letter. 90. On or about April 6, 2015, counsel sent letters to both defendant Kerestes and defendant Steinhart. Counsel told defendants Kerestes and Steinhart,
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inter alia, that the plaintiff’s blood sugar remained abnormal. Counsel noted that the blood sugar “and other symptoms required specialized diagnostic and treatment care.” 91. Neither defendant Kerestes nor defendant Steinhart responded to counsel’s letter. 92. On or about April 11, 2015, Plaintiff submitted a grievance to the SCI Mahanoy Facility Grievance Coordinator. The grievance stated, inter alia that medical staff at Mahanoy had failed to properly diagnose and monitor his health. He requested, inter alia, a detailed health care plan and the opportunity to be examined by a doctor of his own choosing. 93. On or about April 28, 2015, defendant Steinhart responded to the grievance. He denied the grievance stating that Mr. Abu Jamal’s medical needs were being met. Defendant Steinhart based his denial on his own review of plaintiff’s medical records. 94. Mr. Abu Jamal filed a timely appeal from that denial. He stated that the failure to administer adequate health care had caused serious harm, including hyperglycemia and the skin rash and the failure to determine and its underlying cause. 95. On or about May 26, 2015, (after plaintiff’s release from Geisinger Medical Center discussed infra.,) defendant Kerestes upheld the denial of
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the grievance. In that denial he stated that he had he had reviewed it and defendant Steinhart’s response and found that response to be “appropriate”. 96. The grievance denial failed to address at all Mr. Abu-Jamal’s request for a diagnostic workup to determine the underlying cause of his health care issues. 97. On April 28, 2015, counsel transmitted a medical opinion letter from the medical expert to the Department of Corrections via DOC counsel. 98. The expert opined, inter alia that there should be an “occult malignancy workup” to determine the cause of the still-present severe rash and anemia as both are indicative of T-Cell Lymphoma. He noted:
The workup to investigate the cause of the rash is urgent at this time. If it is due to lymphoma or some other serious underlying medical condition then delaying the diagnosis may have severe and even lethal consequences. 99. On or about May 12, 2015, Mr. Abu-Jamal experienced extreme pain in his lower extremities when showering. Later that day, he was removed from the facility and moved to Geisinger Medical Center 100. Counsel contacted SCI Mahanoy. He requested that he be permitted to visit with Mr. Abu-Jamal at Geisinger. Mr. Abu-Jamal’s wife made the same request.
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101. Defendant Kerestes stated that he would permit visits from immediate family members. But before any visits took place both counsel and Mrs. Abu-Jamal were advised that defendant Kerestes had denied all visitation, including visits with his attorneys so long as he remained at Geisinger. Nor would Mr. Abu-Jamal be permitted to telephone his attorneys and/or his wife.
102. Plaintiff’s counsel spoke with DOC counsel. The latter asserted that the prohibition on visitation and phone calls was the policy of Geisinger Medical Center and not the DOC. In fact, during a prior hospitalization at Schuylkill Medical Center, Mr. Abu Jamal received visits from his attorney and immediate family.
103. On Thursday, May 14, counsel contacted Geisinger Medical Center’s litigation counsel. Counsel agreed to seek authorization from Geisinger’s Chief Medical Officer and DOC officials to permit family and attorney visits and phone calls with Mr. Abu-Jamal.
104. On Monday, May 18, plaintiff Abu-Jamal was granted a 15-minute phone call with his wife. However, he was not permitted visitation with his attorneys or family during his entire stay at Geisinger.
105. At about this time, counsel for the Department of Corrections informed plaintiff’s counsel that because this matter had moved toward litigation,
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plaintiff’s counsel should send all communications regarding Mr. AbuJamal, including but not limited to health care concerns, to DOC counsel and not DOC officials. 106. During his May 12, 2015 to May 19, 2015 stay at Geisinger numerous diagnostic tests were conducted. Blood work showed consistently low hemoglobin levels indicating anemia. 107. While those tests and a subsequent bone marrow biopsy ruled out some serious conditions, including some cancers, the underlying cause(s) of Mr. Abu-Jamal’s health problems, including the rash and anemia, were not determined. 108. A CT scan performed at Geisinger noted irregularities in the architecture of plaintiff’s liver, a sign of cirrhosis. 109. No hepatitis C workup was performed at Geisinger Medical Center. 110. The discharge report from Geisinger dated May 18, 2015 noted that Mr. Abu Jamal might be a suitable candidate for hepatitis C treatment. This report was placed in Plaintiff’s medical records at SCI Mahanoy. 111. None of the defendants’ including but not limited to defendants Lisiak, Khanum, Kerestes or Steinhart ordered a hepatitis C blood test to determine whether the disease was chronic.
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112. For a period of time after his return from Geisinger, plaintiff’s overall health improved and symptoms from the skin condition eased.
113. By mid-June 2015, however, the skin condition intensified. The rash spread throughout plaintiff’s body and he experienced constant itching.
114. As DOC counsel had directed that all communications regarding plaintiff’s medical issues be sent to Counsel’s Office and not DOC officials directly, these matters were brought to the defendants’ attention through communications from plaintiff’s counsel to DOC counsel. Upon information and belief, the content of those letters was shared with defendants Kerestes, Steinhart, Oppman, Wetzel and Noel.
115. For example, in June 2015, plaintiff’s counsel sent a letter to DOC counsel requesting, inter alia, that blood work be performed to determine whether plaintiff’s hepatitis C was active as that disease could be the underlying cause of his health issues, including the skin condition, anemia and hyperglycemia.
116. Neither the defendants, nor their counsel, responded to that letter. 117. Meanwhile, on June 25, 2015 Plaintiff filed a timely appeal to the DOC
Central Office of the medical grievance discussed supra. He argued that there had yet to be any diagnostic inquiry into his health issues given his “severe adverse health symptoms”. There had not been, Mr. Abu-Jamal
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argued, a determination of the “underlying causation responsible for my health related issues.” 118. In or about July 2015, plaintiff’s counsel sent another letter to DOC counsel. That letter enclosed a report from a physician who had visited plaintiff at SCI Mahanoy. 119. The report stated, inter alia, that in the physician’s opinion, the skin condition was an extrahepatic manifestation of hepatitis C. 120. In that same letter plaintiff’s counsel requested that bloodwork to determine whether the hepatitis C was active be done forthwith. 121. Neither the defendants nor their counsel responded to plaintiff’s counsel’s letter. 122. In or about late July 2015, hepatitis C bloodwork performed by DOC medical staff at Mahanoy revealed a viral load meaning that plaintiff has active hepatitis C and that the disease is chronic. 123. On or about August 13, 2015, DOC Central Office advised Mr. AbuJamal that the appeal of the medical care grievance had been referred to “Central Office” for further review. The Bureau or Office taking the action was listed as the “Bureau of Health Care Services”, then headed by defendant Oppman.
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124. On or about September 24, 2015, the DOC Central Office affirmed the denial of plaintiff’s medical care grievance. The denial noted Mr. AbuJamal’s admission to Schuylkill in March but did not acknowledge his admission to Geisinger in May, his skin condition, the CT scan at Geisinger that was consistent with cirrhosis and/or Mr. Abu-Jamal’s request for a treatment plan for his health issues.
125. On several occasions between late July 2015 and mid-September 2015 plaintiff requested from his treating physicians, including but not limited to defendants Lisiak and Khanum as well as consulting infectious disease specialist Ramon Gadea that his hepatitis C be treated with either Harvoni or Sovaldi, the two anti-viral medications. The physicians told him that the matter was out of their hands, that the DOC was not treating anyone with the anti-virals because of the medications’ cost.
126. Plaintiff’s disease is progressing. He is, at a minimum, at fibrosis level 22.5, a level consistent with significant liver scarring. This places him at risk for rapid disease progression.
127. Plaintiff’s platelet levels, also a sign of hepatitis C progression, have been consistently below normal since October 2015.
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128. Based upon bloodwork performed in June 2016, there is a more than 50% chance that plaintiff’s disease has already progressed to cirrhosis and that he has suffered irreversible liver damage.
129. Plaintiff is now at significantly higher risk of developing liver cancer, portal hypertension (bleeding) and adult onset diabetes.
130. Plaintiff continues to experience itching and severe discomfort from the skin condition. The therapies that have been applied have provided only temporary relief.
131. The skin condition will only be cured if the hepatitis C is treated. 132. Plaintiff’s hemoglobin levels have remained below normal for over one
year. Anemia is an extrahepatic manifestation of hepatitis C. 133. On or about August 21, 2015, plaintiff’s counsel filed a motion for a
preliminary injunction requesting that the defendants, including but not limited to defendants Oppman, Kerestes and Steinhart, provide plaintiff with the anti-viral medication. 134. The defendants, through counsel, have opposed that motion and have refused to provide the plaintiff with that medication. 135. The Department of Corrections [DOC] has legal obligations to provide medical care for all those in their custody, including Plaintiff. The DOC has failed to enact policies and protocols requiring that individuals with hepatitis
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C, such as Mr. Abu-Jamal, receive medically necessary treatment. Instead, DOC withholds treatment and exposes patients like Mr. Abu-Jamal to medical injury and risk of further harm, up to and including death. 136. Defendant Wetzel has authorized, condoned, and approved the DOC’s policy of refusing to treat plaintiff’s hepatitis C. 137. It was widespread knowledge to all involved in the provision of health care in prison systems around the country, including department heads, that medical breakthroughs now mean that hepatitis C can be cured in a safe and effective manner. Defendant Wetzel certainly was aware of these breakthroughs. 138. Defendant Wetzel has authorized the DOC’s hepatitis C protocol even though it withholds treatment until a patient has already suffered from advanced cirrhosis, esophageal varices, and any number of related serious health problems. 139. Defendant Wetzel is responsible for authorizing all critical procedures and policies in the DOC. 140. He is aware that the current hepatitis C protocol provides no treatment for those with hepatitis C until they have sustained extreme liver damage and related health problems, and only after they have been exposed to severe risks of injury and death.
29

Case 3:15-cv-00967-RDM Document 245 Filed 08/23/17 Page 30 of 38
141. Despite his knowledge that the DOC’s refusal to provide hepatitis C treatment to Mr. Abu-Jamal and other similarly situated prisoners is causing injury and substantial risk of further harm, defendant Wetzel has refused to take steps to authorize a hepatitis C treatment protocol that provides medically necessary treatment for those infected with hepatitis C.
142. Defendant Noel is the Director of Clinical Services within the Bureau of Health Care Services.
143. Defendant Noel also sits on the DOC’s Hepatitis C Committee (hereafter “HCV Committee”). Under the hepatitis C protocol, the HCV Committee makes recommendations as to whether a prisoner with hepatitis C in DOC custody will receive treatment or not.
144. Defendants Noel has been presented with the facts of Mr. Abu-Jamal’s chronic hepatitis C infection, his severe skin condition, anemia of chronic disease, and other health information indicating his need for hepatitis C treatment.
145. Defendant Noel and Cowan testified at the December 2015 hearing in this lawsuit and that they had personally reviewed plaintiff’s medical records.
146. Defendants Noel and Cowan in their role on the hepatitis C committee, determined that plaintiff should not be treated with the anti-viral
30

Case 3:15-cv-00967-RDM Document 245 Filed 08/23/17 Page 31 of 38
medications. This decision to refuse treatment was done with the knowledge and approval of defendants Wetzel, Kerestes and Steinhart, who have all adopted that recommendation and refused to provide plaintiff with the anti-viral medication. 147. Defendant Noel has testified that the reason for the recommendation is that plaintiff’s condition does not meet the requirements of the DOC’s hepatitis C protocol. That protocol requires that the disease progress to decompensated cirrhosis with bleeding before the DOC will authorize treatment with anti-viral medications. 148. Defendant Noel and Cowan have testified that there was no medical justification for refusing to treat the plaintiff with the anti-viral medications. 149. The hepatitis C policy under which plaintiff has been denied treatment was developed, administered and authorized by defendants Wetzel, Noel, Cowan, and Oppman. 150. The policy is currently enforced by defendants Wetzel, Noel, Cowan and Silva. 151. The policy was enforced on the facility level defendants Steinhart and Kerestes and is enforced on the facility level by defendants Steinhart and DelBalso.
31

Case 3:15-cv-00967-RDM Document 245 Filed 08/23/17 Page 32 of 38
152. Plaintiff is being denied medically necessary treatment, to wit, the antiviral medication, due to this policy and the actions of the defendants in formulating and implementing it.
153. The defendants, including but not limited to defendants Wetzel, Oppman, Noel, Cowan, Silva, Kerestes, Delbalso and Steinhart know through correspondence from plaintiff’s counsel, requests made by the plaintiff himself, plaintiff’s own medical records and the evidence adduced at the December 2015 hearing in this lawsuit that their refusal to provide plaintiff with the anti-viral medication has caused plaintiff suffering, irreversible damage to his health and places him at risk of death.
154. In addition, the defendants know that the DOC protocol falls below the standard of care in the community. Defendants Noel and Cowan testified at the December 2015 hearing that he was aware that the AASLD and CDC have recommended treatment for all with chronic hepatitis C
155. The sole basis for refusing to provide the anti-viral drugs to plaintiff is monetary cost
156. There is no medical justification for failing to provide the anti-viral drugs to the plaintiff.
157. Plaintiff has no adequate remedy at law. CAUSES OF ACTION
32

Case 3:15-cv-00967-RDM Document 245 Filed 08/23/17 Page 33 of 38
Count I – Deprivation of Eighth Amendment Right to Medical Care for Hepatitis C
(Against Defendant Pennsylvania Department of Corrections in its official capacity for injunctive relief only, against Defendant Kerestes in his individual capacity for money damages, against Defendants Wetzel, Oppman, Noel, Cowan, Lisiak, Khanum, Saxon, and Steinhart in their individual capacities for money damages, and official capacities for injunctive relief and against Defendants DelBalso and Silva in their
official capacities for injunctive relief) 158. Plaintiff re-alleges paragraphs 1-157 as if fully stated herein. 159. Defendants Department of Corrections, Kerestes, Oppman, Wetzel,
Noel, Cowan, Lisiak, Khanum, Saxon, DelBalso, Steinhart and Silva violated and, if injunctive relief is not issued will continue to violate, Plaintiff’s Eighth Amendment right to be free from cruel and unusual punishment through their deliberate indifference to his Hepatitis C. These Defendants have failed and are failing to treat his Hepatitis C, causing plaintiff serious injuries, pain, and suffering. Count II – Deprivation of Eighth Amendment Right to Medical Care for
Skin Condition (Against Defendants Kerestes, Wetzel, Noel, Lisiak, Khanum, and Saxon in their
individual capacities for money damages) 160. Plaintiff re-alleges paragraphs 1-157 as if fully stated herein. 161. Defendants Kerestes, Lisiak, Khanum, Saxon, Wetzel and Noel have
violated Plaintiff’s Eighth Amendment right to be free from cruel and unusual punishment through their deliberate indifference to his skin
33

Case 3:15-cv-00967-RDM Document 245 Filed 08/23/17 Page 34 of 38
condition. These Defendants have failed to treat his skin condition as a manifestation of hepatitis C, causing plaintiff serious injuries, pain, and suffering. Count III – Deprivation of Eighth Amendment Right to Medical Care for
Hyperglycemia (Against Defendants Kerestes, Lisiak, Khanum, and Saxon in their individual
capacities for money damages) 162. Plaintiff re-alleges paragraphs 1-157 as if fully stated herein.
Defendants Kerestes, Lisiak, Khanum, and Saxon violated Plaintiff’s Eighth Amendment right to be free from cruel and unusual punishment through their deliberate indifference to his hyperglycemia, resulting in a nearly fatal episode and causing severe injuries, including, diabetic ketoacidosis, new onset diabetes, encephalopathy secondary to hyperglycemia, dehydration, acute kidney injury, hyponatremia, hypokalemia, and severe psychological pain and suffering. Count IV – Negligence – Medical Malpractice for Failure to Treat Plaintiff’s
Hyperglycemia (Against Defendants Lisiak, Khanum, and Saxon in their individual capacities for
money damages) 163. Plaintiff re-alleges paragraphs 1-157 as if fully stated herein. 164. Defendants Lisiak, Khanum, and Saxon violated plaintiff’s rights under
Pennsylvania state law by their negligent conduct in regard to his
34

Case 3:15-cv-00967-RDM Document 245 Filed 08/23/17 Page 35 of 38
hyperglycemia resulting in severe injuries. Defendants violated the standard of care required of medical care professionals and plaintiff’s injuries are the direct result of Defendants’ negligence. Count V – Negligence – Medical Malpractice for Failure to Treat Plaintiff’s
Hepatitis-C (Against Defendants, Noel, Cowan, Oppman, Lisiak, Khanum, and Saxon, in their
individual capacities for money damages 165. Plaintiff re-alleges paragraphs 1-157 as if fully stated herein. Defendants Noel Oppman, Lisiak, Khanum, and Saxon, violated Plaintiff’s rights under Pennsylvania state law by their negligent conduct in regard to his Hepatitis C. These Defendants have failed to treat his Hepatitis C, causing plaintiff serious injuries, pain, and suffering. Defendants violated the standard of care required of medical care professionals and plaintiff’s injuries are the direct result of Defendants’ negligence. Count VI – Medical Malpractice For Failure to Treat Skin Condition. (Against Defendants Noel, Oppman, Lisiak, Khanum, and Saxon in their individual
capacities) 166. Plaintiff re-alleges paragraphs 1-157 as if fully stated herein. 167. Defendants Noel, Oppman, Lisiak, and Saxon have violated Plaintiff’s
rights under Pennsylvania state law for their negligent disregard to Mr. Abu Jamal’s skin condition. These Defendants have failed to treat his skin condition, causing plaintiff serious injuries, pain, and suffering.
35

Case 3:15-cv-00967-RDM Document 245 Filed 08/23/17 Page 36 of 38
Count VII – First Amendment Right of Association (Against Defendants Kerestes and DelBalso in their Official Capacities
for injunctive relief only) 168. Plaintiff re-alleges paragraphs 1-157 as if fully stated herein. 169. Plaintiff’s First Amendment right of association was violated by
arbitrarily restricting communication and preventing all visitation with his family during his May 2015 hospitalization at Geisinger Medical Center. This will likely happen again if he is hospitalized.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that the Court grant the following relief: A. Award compensatory and punitive damages for defendants’ deliberate
indifference in failing to treat plaintiff’s Hepatitis C. B. Award compensatory and punitive damages for the defendants’ deliberate
indifference to Mr. Abu Jamal’s skin condition. C. Award compensatory and punitive damages for defendants’ deliberate
indifference to plaintiff’s hyperglycemia and the resulting injuries. D. Grant an injunction ordering the defendants to administer to Mr. Abu Jamal
direct-acting anti-viral drugs, such as Harvoni or Sovaldi as treatment for his hepatitis C. E. Granting Mr. Abu Jamal the right to an in-person consultation and examination by the medical doctor of his choice under conditions that
36

Case 3:15-cv-00967-RDM Document 245 Filed 08/23/17 Page 37 of 38
would permit such an examination and further ordering that if DOC refuses
to permit adequate consultation and/or treatment by a doctor of his choice
inside the prison that the same be ordered to take place outside of DOC
custody.
F. Grant a permanent injunction ordering defendants to permit attorney-client
visits whenever plaintiff Abu-Jamal is taken from a DOC facility to receive
inpatient medical treatment;
G. Grant a permanent injunction ordering defendants to permit family visits
when plaintiff Abu-Jamal is taken from a DOC facility to receive inpatient
medical treatment;
I. Grant attorneys’ fees and costs.
/s/ Bret D. Grote Bret D. Grote PA I.D. No. 317273 Abolitionist Law Center P.O. Box 8654 Pittsburgh, PA 15221 Telephone: (412) 654-9070 bretgrote@abolitionistlawcenter.org
/s/ Robert J. Boyle Robert J. Boyle 277 Broadway Suite 1501 New York, N.Y. 10007 (212) 431-0229 Rjboyle55@gmail.com
37

Case 3:15-cv-00967-RDM Document 245 Filed 08/23/17 Page 38 of 38

DATED: August 23, 2017

NYS ID# 1772094 Admitted Pro Hac Vice

38

 
 Case 3:15-cv-00967-RDM Document 39 Filed 09/18/15 Page 1 of 8

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

MUMIA ABU-JAMAL, Plaintiff, v.

CIVIL ACTION NO. 3:15-CV-00967
(MARIANI, J.) (MEHALCHICK, M.J.)

JOHN KERESTES, et al.,

Defendants.

REPORT AND RECOMMENDATION

This matter comes before the Court upon the Plaintiff’s motion for a preliminary

injunction. (Doc. 23). For the reasons stated herein, it is recommended that the motion be

denied.

I. BACKGROUND On May 18, 2015, the Court received and filed a complaint in which prisoner-Plaintiff

Mumia Abu-Jamal asserts violations of his constitutional rights pursuant to 28 U.S.C. § 1983

stemming from his hospitalization at Defendant Geisinger Medical Center (“Geisinger”) for

medical treatment. (Doc. 1). Specifically, Abu-Jamal claimed that he was denied access to his

family members and to his attorneys while hospitalized at Geisinger. (Doc. 1). Abu-Jamal has

since been discharged from Geisinger and returned to the general inmate population at SCI-

Mahoney in Frackville, Pennsylvania. (Doc. 13). On August 3, 2015, Abu-Jamal filed a motion

to file a first amended and supplemental complaint pursuant to Federal Rule of Civil Procedure

15. (Doc. 21). In the amended complaint, Abu-Jamal seeks to name additional defendants and

assert additional claims relating to the allegedly insufficient healthcare treatment he has

received at SCI-Mahoney for his hyperglycemia, hepatitis C, and skin condition. (Doc. 21). The

motion to file an amended complaint is currently pending before the Court.

Case 3:15-cv-00967-RDM Document 39 Filed 09/18/15 Page 2 of 8
On August 24, 2015, Abu-Jamal also filed the instant motion for a preliminary injunction. (Doc. 23). In this motion, Abu-Jamal requests that the Court enter an order directing that he be provided specific healthcare treatments, including the latest anti-viral drugs, a zinc supplement, and Protopic cream; and that he be allowed have an in-person examination with a doctor of his choosing. (Doc. 23). Abu-Jamal argues that an injunction is warranted because he is subject to an increased risk of liver damage or cancer if his hepatitis C is not treated properly, and because his skin condition and diabetes causes him chronic pain and fatigue. (Doc. 27, at 14). II. DISCUSSION
Preliminary injunctive relief is extraordinary in nature and should only issue in limited circumstances. See Am. Tel. & Tel. Co. v. Winback & Conserve Program, Inc., 42 F.3d 1421, 1426–27 (3d Cir. 1994). Moreover, issuance of such relief is at the discretion of the trial judge. Merrill Lynch, Pierce, Fenner & Smith Inc. v. Chamberlain, 145 F. Supp. 2d 621, 625 (M.D. Pa. 2001). In determining whether to grant a motion seeking preliminary injunctive relief, courts within the Third Circuit consider the following four factors: “(1) likelihood of success on the merits; (2) irreparable harm resulting from denial of the relief; (3) the harm to the non-moving party if relief is granted; and (4) the public interest.” United States v. Bell, 238 F. Supp. 2d 696, 699 (M.D. Pa. 2003). The moving party bears the burden of satisfying these factors. Bell, 238 F. Supp. 2d at 699. “Only if the movant produces evidence sufficient to convince the trial judge that all four factors favor preliminary relief should the injunction issue.” Opticians Ass’n of Am. v. Indep. Opticians of Am., 920 F.2d 187, 192 (3d Cir. 1990).
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Case 3:15-cv-00967-RDM Document 39 Filed 09/18/15 Page 3 of 8
“[A]n essential prerequisite to the grant of a preliminary injunction is a showing by the movant of irreparable injury pendente lite if the relief is not granted.”1 United States v. Pennsylvania, 533 F.2d 107, 110 (3d Cir. 1976). A preliminary injunction “may not be used simply to eliminate a possibility of a remote future injury.” Holiday Inns of Am., Inc. v. B&B Corp., 409 F.2d 614, 618 (3d Cir. 1969). “[T]he irreparable harm must be actual and imminent, not merely speculative.” Angstadt ex rel. Angstadt v. Midd-West Sch., 182 F. Supp. 2d 435, 437 (M.D. Pa. 2002). “[M]ore than a risk of irreparable harm must be demonstrated. The requisite for injunctive relief has been characterized as a ‘clear showing of immediate irreparable injury,’ or a ‘presently existing actual threat . . . .’” Continental Grp., Inc. v. Amoco Chems. Corp., 614 F.2d 351, 359 (3d Cir. 1980) (citations omitted).
Moreover, “when the preliminary injunction is directed not merely at preserving the status quo but . . . at providing mandatory relief, the burden on the moving party is particularly heavy.” Punnett v. Carter, 621 F.2d 578, 582 (3d Cir. 1980). Therefore, “a request for any form of mandatory prospective relief in the prison context ‘must always be viewed with great caution because judicial restraint is [e]specially called for in dealing with the complex and intractable problems of prison administration.’” Fontroy v. Wetzel, No. CA 14-165, 2014 WL 4411079, at *2 (W.D. Pa. Sept. 8, 2014) (quoting Goff v. Harper, 60 F.3d 518, 520 (8th Cir. 1995)); Barndt v. Pennsylvania Dep't of Corr., No. 3:09-CV-1790, 2010 WL 4791685, at *3 (M.D. Pa. Sept. 7, 2010) report and recommendation adopted, No. 3:CV-09-1790, 2010 WL 4789837 (M.D. Pa. Nov. 18, 2010) (“In particular, courts have been reluctant to accept inmate invitations to use preliminary
1 Pendente lite is a Latin term meaning “while the action is pending” or “[d]uring the proceeding or litigation.” Black’s Law Dictionary 1154 (7th ed. 1999).
3

Case 3:15-cv-00967-RDM Document 39 Filed 09/18/15 Page 4 of 8
injunctions as a means to judicially prescribe specific medical courses of treatment for inmates.”).
A. FAILURE TO EXHAUST ADMINISTRATIVE REMEDIES Reviewing Abu-Jamal’s motion, it is clear that he has not shown that he is entitled to injunctive relief. As a preliminary matter, the Defendants have introduced evidence that AbuJamal did not properly exhaust his administrative remedies pursuant to 42 U.S.C. § 1997e. Under the Prison Litigation Reform Act of 1996 (the PLRA), a prisoner is required to pursue all avenues of relief available within the prison’s grievance system before bringing a federal civil rights action concerning prison conditions. See 42 U.S.C. § 1997e(a); Booth v. Churner, 206 F.3d 289, 291 (3d Cir. 2000). The exhaustion requirement is mandatory. See Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007); see also Booth, 532 U.S. 731, 741 (holding that the exhaustion requirement of the PLRA applies to grievance procedures “regardless of the relief offered through administrative procedures”); Nyhuis v. Reno, 204 F.3d 65, 67 (3d Cir. 2000) (same). Moreover, in order to exhaust remedies, a plaintiff must pursue a grievance through final administrative review. Salley v. PA Dept. of Corrections, 181 Fed. Appx. 258, 264 (3d Cir. 2006). Inmates who fail to fully exhaust administrative remedies may not subsequently litigate those claims in federal court, and this prohibition extends to requests for injunctive relief. Ghana v. Holland, 226 F.3d 175, 184 (3d Cir. 2000). Abu-Jamal has only filed one grievance concerning medical care since being transferred to SCI-Mahoney in 2011. (Doc. 28-2, at ¶¶ 5-6). That grievance, which involved the treatment of Abu-Jamal’s diabetes, was appealed to final agency review and signed by Abu-Jamal on June 25, 2015, and filed by the Secretary’s Office of Inmate Grievances and Appeals (“SOIGA”) on July 6, 2015. (Doc. 28-1, at 89-91). However, the grievance appeal still remains pending. (Doc.
4

Case 3:15-cv-00967-RDM Document 39 Filed 09/18/15 Page 5 of 8
28-1, at ¶ 16; Doc. 28-2, at ¶ 10). Because Abu-Jamal filed the instant motion before the issuance of a final grievance review decision, he did not fully exhaust his administrative remedies. Oriakhi v. United States, 165 F. App'x 991, 993 (3d Cir. 2006) (per curiam) (“Indeed, there appears to be unanimous circuit court consensus that a prisoner may not fulfill the PLRA's exhaustion requirement by exhausting administrative remedies after the filing of the complaint in federal court.”); Ahmed v. Dragovich, 297 F.3d 201, 209 n.9 (3d Cir. 2002) (collecting cases). Accordingly, the Court recommends that Abu-Jamal’s motion for injunctive relief be dismissed without prejudice because the uncontroverted evidence presented by Defendants indicates that this claim has not been administratively exhausted. See, e.g., Lyons v. Wetzel, No. 1:12-CV-1357, 2013 WL 4041573, at *5 (M.D. Pa. Aug. 8, 2013) (“This failure to exhaust is fatal to the instant motion for preliminary injunction.”); Hill v. Smith, No. 4:05-CV1724, 2005 WL 2666597, at *4 (M.D. Pa. Oct. 19, 2005) aff'd, 186 F. App'x 271 (3d Cir. 2006) (“Because [plaintiff] has not exhausted his administrative remedies as required by the PLRA, his complaint and motion for a preliminary injunction will be dismissed.”).
B. PLAINTIFF’S MOTION FOR INJUNCTIVE RELIEF ALSO FAILS ON THE MERITS Further, Abu-Jamal’s claim for injunctive relief also fails on the merits because he does not make a “clear showing of immediate irreparable injury” required to establish irreparable harm. Continental Grp., 614 F.2d at 359. “In order to demonstrate irreparable harm the plaintiff must demonstrate potential harm which cannot be redressed by a legal or an equitable remedy following a trial. The preliminary injunction must be the only way of protecting the plaintiff from harm.” Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989). Here, a preliminary injunction is not the only way of protecting Abu-Jamal from harm because his administrative grievance appeal remains pending.
5

Case 3:15-cv-00967-RDM Document 39 Filed 09/18/15 Page 6 of 8
Moreover, although it is clear that hepatitis C constitutes a “serious medical need” that triggers Eighth Amendment scrutiny, the Court also finds that Abu-Jamal has not shown sufficiently immediate irreparable harm to warrant injunctive relief. See Rodriguez v. Wiley, No. CIV.A08CV02505PABCBS, 2009 WL 6325780, at *4 (D. Colo. Aug. 14, 2009) report and recommendation adopted, No. CIV.A08CV02505PABCBS, 2010 WL 1348021 (D. Colo. Mar. 31, 2010) (“While there is little question that hepatitis C is a ‘sufficiently serious’ condition under the Eighth Amendment, merely becoming infected with hepatitis C does not ensure that serious and irreparable damage will occur.”). Pennsylvania inmates frequently bring Eighth Amendment claims before federal courts seeking “preliminary injunctions directing their jailers to provide them with specially tailored treatment protocols” for their hepatitis C, “[y]et, these requests . . . have rarely been embraced by the courts.” Barndt, 2010 WL 4791685, at *7. “[T]he claimed injury cannot merely be possible, speculative or remote.” Dice v. Clinicorp, Inc., 887 F. Supp. 803, 809 (W.D. Pa. 1995). Here, Abu-Jamal attached the declaration of Joseph Harris, M.D., who warns that if the hepatitis C goes untreated, “he faces an increasingly serious risk of suffering from fibrosis and cirrhosis, liver cancer, complications of his diabetes, and eventual death.” (Doc. 26, at ¶ 69). These risks, although severe, do not sustain Abu-Jamal’s burden of showing immediate irreparable harm that warrants injunctive relief, especially given the fact that it often takes significant time for hepatitis C to progress. See, e.g., Iseley v. Dragovich, 90 F. App'x 577, 581 (3d Cir. 2004) (“Regardless of whether Interferon was an FDA approved treatment for Hepatitis C or not, according to the professional judgment of his treating prison physicians in 1999, Interferon treatment was contraindicated in Iseley's case because his condition had not yet progressed to the point where such treatment would have been appropriate.”).
6

Case 3:15-cv-00967-RDM Document 39 Filed 09/18/15 Page 7 of 8

The Court also finds that granting Abu-Jamal’s motion for a preliminary injunction would be harmful to the Defendants’ interests. A “viral load” test conducted by the medical staff at SCI-Mahoney revealed that Abu-Jamal had an active hepatitis C infection on or about July 31, 2015. (Doc. 25, at ¶ 33). Abu-Jamal filed the instant motion for injunctive relief on August 24, 2015, seeking an order that he be provided specific healthcare treatments. (Doc. 23). “In this prison context, the Defendants' interests and the public's interest in penological order could be adversely effected if the Court began dictating the treatment protocols and priorities for the Plaintiff, one inmate out of thousands treated in the state's prison system.” Barndt, 2010 WL 4791685, at *9. Here, the Court is particularly hesitant to dictate specific treatment because Abu-Jamal was only confirmed as having an active hepatitis C infection less than a month before he filed for the instant injunction. The Defendants’ interests would therefore be harmed by granting injunctive relief because it would deny Defendants an opportunity to treat AbuJamal’s hepatitis C in accordance with their own established protocols. III. RECOMMENDATION
Based on the foregoing, it is respectfully recommended that Abu-Jamal’s motion for preliminary injunctive relief (Doc. 23), be DENIED.

Dated: September 18, 2015

BY THE COURT:
s/ Karoline Mehalchick
KAROLINE MEHALCHICK United States Magistrate Judge

7

Case 3:15-cv-00967-RDM Document 39 Filed 09/18/15 Page 8 of 8

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF PENNSYLVANIA

MUMIA ABU-JAMAL, Plaintiff, v.

CIVIL ACTION NO. 3:15-CV-00967
(MARIANI, J.) (MEHALCHICK, M.J.)

JOHN KERESTES, et al.,

Defendants.

NOTICE

NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report

and Recommendation dated September 18, 2015. Any party may obtain a review of the Report

and Recommendation pursuant to Rule 72.3, which provides:

Any party may object to a magistrate judge’s proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.

Dated: September 18, 2015

s/ Karoline Mehalchick
KAROLINE MEHALCHICK United States Magistrate Judge

 
 Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 1 of 49

THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

I

i

i

MUMIA ABU-JAMAL,

I

Plaintiff,

r

v.

3:15-CV-967

f

(JUDGE MARIANI)

f

l

JOHN KERESTES, et al.,

I
I

Defendants.

I
I

MEMORANDUM OPINION

f

t

I. INTRODUCTION

l

The above captioned matter is a consolidation of two civil rights actions filed by a

Pennsylvania state prisoner, Mumia Abu-Jamal, arising out of the same set of facts.

Presently before the Court are two Motions to Dismiss, one filed by Defendants Correct

Care Solutions, LLC, Dr. Jay Cowan, Dr. John Lisiak, Dr. Shaista Khanum, and Physician's

Assistant Scott Saxon (collectively the "Medical Defendants"), (Doc. 248),1 and one filed by

Defendants John Kerestes, the Pennsylvania Department of Corrections, Theresa DelBalso,

Joseph Silva, John Wetzel, Dr. Paul Noel, Christopher Oppman, John Steinhart, Bureau of

Health Care Services Assistant Medical Director, and Bureau of Health Care Service

Infection Control Coordinator (collectively the "Corrections Defendants"), (Doc. 251). For

the reasons that follow, the Court will deny the Medical Defendants' Motion to Dismiss, and

grant in part and deny in part the Corrections Defendants' Motion to Dismiss.

1 Unless noted otherwise, all citations to the record refer to case number 3:15-CV-967, which, as discussed below, is a consolidation of case number 3:15-CV-967 and case number 3:16-CV-2000.

Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 2 of 49

II. PROCEDURAL HISTORY

Although only at the pleadings stage, this matter already has a long and somewhat

complicated procedural history. Indeed, although the case was initiated almost three years

ago, it appears that the parties have been unwilling to put this matter in the proper posture

for resolution. Instead, counsel for Plaintiff and Defendants have all engaged in a variety of

tactics aimed at slowing or even altogether stopping the orderly progress of this case.

I

Moving forward, the Court expects that the parties will set aside the gamesmanship that has

I

thus far defined this litigation and proceed with an eye towards timely resolving the

questions presented in this case. With that, the Court will begin with a somewhat lengthy

recitation of the procedural history so that the present motions may be understood in their

proper context.

Plaintiff, Mumia Abu-Jamal, along with Plaintiffs Brett Grote and Robert Boyle, also

Mr. Abu-Jamal's attorneys of record in this matter, initially filed a Complaint in case number

3:15-CV-967 ("Abu-Jamal 1") on May 18, 2015, claiming violations of their right to

association and access to the courts. (Doc. 1 at 10). Plaintiffs alleged that Defendant

Kerestes, the then-current superintendent at the State Correctional Institution at Mahanoy

("SCI- Mahanoy"), and Geisinger Medical Center "barred the plaintiff attorneys from visiting

with Mr. Abu-Jamal" while Plaintiff was hospitalized at Geisinger Medical Center and further

"prohibited all communication between Mr. Abu-Jamal and anyone," with the exception of a

short phone call between him and his wife. (Id. at~ 6). Subsequently, Plaintiffs Boyle and

2

l

Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 3 of 49

I

l

f

i'

I '

Grote each filed a notice of voluntary dismissal, (Docs. 17, 18), leaving Mr. Abu-Jamal

f

!

i

("Plaintiff') as the only remaining plaintiff.

l

t

On August 3, 2015, Plaintiff filed a Motion for Leave to File a "First Amended and

Supplemental Complaint." (Doc. 21 ). The proposed amendment retained Plaintiff's right to

association and access to the courts claims and sought to add several Eighth Amendment

claims and state law medical negligence claims related to the medical treatment, or lack

thereof, Plaintiff received in connection with his hepatitis C, hyperglycemia, and skin

condition. (Doc. 21-2). The proposed amendment also sought to add as Defendants the

then-current Director of the Bureau of Health Care Services at the Department of

Corrections, Christopher Oppman, and the Chief Health Care Administrator at the

Department of Corrections, John Steinheart, along with three of SCl-Mahanoy's medical

staff, Dr. John Lisiak, Dr. Shaista Khanum, and Physician's Assistant Scott Saxon. (Id.).

On November 24, 2015, after Magistrate Judge Mehalchick granted Plaintiff's Motion to

Amend, Plaintiff's First Amended and Supplemental Complaint ("Amended Complaint")

became the operative complaint. (Doc. 57).

On August 23, 2015, Plaintiff filed a Motion for a Preliminary Injunction seeking to

require Defendants to

1) immediately treat plaintiff's active hepatitis C infection with the latest direct acting anti-viral drugs; 2) immediately treat his skin condition, a manifestation of the hepatitis C, with zinc supplementation and Protopic cream; and 3) permit Mr. Abu Jamal to have an in-person examination by an independent physician of his own choosing under conditions that are appropriate for such examinations.
3

Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 4 of 49

I

(Doc. 23 at 1). Less than a month later, Magistrate Judge Mehalchick issued a Report and Recommendation ("R&R") which recommended denying Plaintiff's Motion for a Preliminary Injunction. (Doc. 39). Thereafter, Plaintiff filed objections to the R&R, arguing that this Court should either grant Plaintiff's Motion or hold an evidentiary hearing on the issue. (Doc. 42). In December of 2015, a three day evidentiary hearing was held for the purpose of receiving the evidence necessary to resolve the Motion. (Docs. 94, 95, 96).
While Plaintiff's Motion and objections remained pending, four motions to dismiss were filed, one by Defendant Geisinger, one by Defendant Kerestes, one by Defendants Oppman and Steinhart, and one by Defendants Khanum, Lisiak, and Saxton. (Docs. 63, 81, 108, 110). On June 22, 2016, the Court denied Defendants Khanum, Lisiak, and Saxton's Motion to Dismiss, finding that the only basis raised in the motion-that Plaintiff failed to exhaust his administrative remedies with respect to his hepatitis C claim-was without merit. (Docs. 157, 158). Next, on August 5, 2016, the Court granted in part and denied in part both Defendant Kerestes's Motion to Dismiss and Defendants Oppman and Steinhart's Motion to Dismiss. (Docs. 168, 169, 170, 171).2 The Court also granted Defendant Geisinger's Motion to Dismiss in its entirety. (Docs. 172, 173).
With respect to Defendant Kerestes's Motion to Dismiss, the Court dismissed, with prejudice, (1) Plaintiff's claim for money damages against Defendant Kerestes in his official capacity, (2) Plaintiff's access to the courts claim against Defendant Kerestes, and (3)
2 The Court later amended its Order concerning Defendant Kerestes to clarify the Order's meaning. (Doc. 183).
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Plaintiff's medical negligence claims against Defendant Kerestes. (Docs. 168, 169). The

Court also dismissed, but without prejudice, Plaintiff's Eighth Amendment claims because

Plaintiff failed to sufficiently plead Defendant Kerestes's personal involvement as required in

an action under 42 U.S.C. § 1983. Nevertheless, the Court held that Plaintiff had

adequately pleaded his freedom of association claim, including Defendant Kerestes's

personal involvement. Finally, the Court found that Defendant Kerestes failed to carry his

burden to show that the permanent injunction Plaintiff sought in connection with his freedom

of association claim was moot because such claim, at the pleading stage, met the "capable

of repetition, yet evading review" test.

With respect to Defendants Oppman and Steinhart's Motion to Dismiss, the Court

dismissed, with prejudice, Plaintiff's claim for money damages against them in their official

capacities. (Docs. 170, 171 ). The Court also dismissed, without prejudice, Plaintiff's Eighth

Amendment claims because Plaintiff failed to sufficiently plead Defendant Oppman's or

Defendant Steinhart's personal involvement as required in an action under section 1983. In

all other respects, the Court denied Defendants Oppman and Steinhart's Motion.

Finally, the Court granted Defendant Geisinger's Motion to Dismiss in its entirety,

finding that Plaintiff's access to the courts claim against Defendant Geisinger failed as a

matter of law and that Plaintiff's freedom of association claim against Defendant Geisinger

was moot because Plaintiff was no longer in Defendant Geisinger's care. (Docs. 172, 173).

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As those were the only claims against it, Defendant Geisinger was dismissed from this action.
In granting Plaintiff leave to amend his Eighth Amendment claims against Defendants Kerestes, Oppman, and Steinhart, the Court made clear "that the Court expects any such amendment to contain specific allegations of fact, stated in the active voice and delineating the specific actions or omissions by [Defendant Kerestes,] Defendant Steinhart[,] or Defendant Oppman, if any, which establish personal involvement or knowledge and acquiescence in the constitutional violations alleged by Plaintiff." (Docs. 169, 171). On August 16, 2016, in accordance with this Court's Orders, Plaintiff filed their Second Amended Complaint. (Doc. 178). The next day, Plaintiff filed a motion seeking to amend his Complaint once again. (Doc. 179).
While Plaintiff's Motion to Amend was pending, the Court denied Plaintiff's Motion for a Preliminary Injunction. (Docs. 191, 192). In an Opinion issued on August 31, 2016, this Court found that the Department of Corrections had "an interim protocol to address patients with hepatitis C" and that, under that protocol, a "Hepatitis C Treatment Committee has the ultimate authority to decide whether" an inmate is treated with direct-acting antiviral ("DAA") medications. (Doc. 191 at 11, 19). This Court then concluded that "[t]he protocol as currently adopted and implemented presents deliberate indifference to the known risks which follow from untreated chronic hepatitis C." (Id. at 21 ). This Court, however, did not issue a preliminary injunction because "[i]t was the Hepatitis C Treatment Committee who
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made the decision not to give Plaintiff OM medications and that had, and continues to

I

have, the ultimate authority to determine whether or not Plaintiff will receive the OM

I

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medications," and "[t]he named Defendants [were] not members of the Hepatitis C

!

Treatment Review Committee." (Id. at 21-22). Thus, this Court held that it could not

f

"properly issue an injunction against the named Defendants, as the record contain[ed] no

evidence that they ha[d] authority to alter the interim protocol or its application to Plaintiff."

(Id. at 22). In doing so, however, the Court advised that ''were the proper defendants

named, the Court believes there is a sufficient basis in the record to find that [the

Department of Corrections'] current protocol may well constitute deliberate indifference."

(Id. at 31).

On September 30, 2016, Plaintiff filed a separate action under case number 3:16-

CV-2000 ("Abu-Jamal 2"). The Complaint in Abu-Jamal 2 contained a single count titled

"Deprivation of Eighth Amendment Right to Medical Care for Hepatitis C" and named the

following as defendants: John Wetzel, Secretary of the Pennsylvania Department of

Corrections; Dr. Paul Noel, Department of Corrections Bureau of Health Care Services

Chief of Clinical Services, member of Hepatitis C Treatment Committee; Bureau of Health

Care Services Assistant Medical Director, member of Hepatitis C Treatment Committee;

Bureau of Health Care Services Infection Control Coordinator, member of Hepatitis C

Treatment Committee; Correct Care Solutions representative on the Hepatitis C Treatment

Committee; Correct Care Solutions; Joseph Silva, Department of Corrections Director of

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Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 8 of 49
Bureau of Health Care Services; and Treating Physician, SCI-Mahanoy. (3:16-CV-2000,
Doc. 1). On October 5, 2016, Plaintiff filed a Motion for a Preliminary Injunction in Abu-
Jamal 2 which sought the same relief this Court had denied in Abu-Jamal 1. (3:16-CV-
2000, Doc. 7). During a conference call held on December 1, 2016, all parties agreed that a
new evidentiary hearing was not necessary and that this Court could decide Plaintiff's
Motion on the basis of the evidence presented in Abu-Jamal 1.
In an Opinion issued on January 3, 2017, this Court found that, despite the fact that
the Department of Corrections replaced the interim protocol that was analyzed in Abu-Jamal
1 with a new protocol, "the new protocol completely bars those with chronic hepatitis C but
without vast fibrosis or cirrhosis from receiving DAA medications." (3:16-CV-2000, Doc. 23
at 32). More specifically, the Court concluded that
[t]he Hepatitis C Protocol deliberately delays treatment for hepatitis C through the administration of DAA drugs such as Harvoni, Sovaldi, and Viekira Pak despite the knowledge of Defendants that sit on the Hepatitis C Treatment Committee: (1) that the aforesaid DAA medications will effect a cure of Hepatitis C in 90 to 95 percent of the cases of that disease; and (2) that the substantial delay in treatment that is inherent in the current protocol is likely to reduce the efficacy of these medications and thereby prolong the suffering of those who have been diagnosed with chronic hepatitis C and allow the progression of the disease to accelerate so that it presents a greater threat of cirrhosis, hepatocellular carcinoma, and death of the inmate with such disease.

In choosing a course of monitoring over treatment, [Defendants]

consciously disregarded the known risks of Plaintiff's serious medical needs,

namely continued liver scarring, disease progression, and other hepatitis C

complications.

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(Id. at 20-21). As such, the Court held that Plaintiff had a reasonable likelihood of success on the merits of his claim. (Id. at 27-41 ). After determining that the other preliminary injunction factors weighed in Plaintiff's favor, the Court granted Plaintiffs Motion. (Id. at 4243). The Court thereafter enjoined Defendants from enforcing the Hepatitis C Protocol as it pertained to Plaintiff and directed Defendants to administer DM medications to Plaintiff unless such medications were found to be contraindicated by a medical professional. (3:16CV-2000, Doc. 24).
In response, Defendants filed Motions for Reconsideration, Motions to Stay, and Notices of Appeal. (3:16-CV-2000, Docs. 29, 30, 31, 36, 37, 49). On February 7, 2017, Plaintiff filed a Motion for Contempt, arguing that Defendants' continued failure to administer DM medications to Plaintiff was unjustified and in violation of the Court's Order because
I
this Court had not yet ruled on any of the pending Motions to Stay. (3:16-CV-2000, Doc.
f
53). While those matters were unfolding in Abu-Jamal 2, the Court granted Plaintiffs
Motion to Amend his Complaint in Abu-Jamal 1. (Docs. 206, 207). Plaintiffs Third Amended Complaint, filed on January 17, 2017, added John Wetzel, the Department of Corrections, and Dr. Paul Noel as Defendants and substituted the current Superintendent of SCI-Mahanoy, Theresa DelBalso, for Kerestes in Plaintiffs claims seeking injunctive relief. (Doc. 210).
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Meanwhile, on March 31, 2017, Defendants in Abu-Jamal 2 informed the Court that "[nollowing recent medical testing and a review of the results thereof, Plaintiff will be treated

I

with the Federal Drug Administration (FDA) approved Hepatitis C directing-acting [sic]

antiviral medication in accordance with the Hepatitis C protocol of the Department of Corrections." (3:16-CV-2000, Doc. 59). On April 4, 2017, Plaintiff's counsel informed the

I'I

Court that Plaintiff had undergone a "sonogram and a hepatic elastography" and that the

test results revealed that his condition had "deteriorated to 'severe grade 4 liver cirrhosis."'

(3:16-CV-2000, Doc. 61 at 2).

The Court held a status conference with counsel for the parties on April 5, 2017.

Counsel for the Corrections Defendants confirmed to the Court that Plaintiff would be

administered the direct-acting antiviral agent Harvoni beginning Thursday, April 6, 2017,

and that such treatment would continue for a period of twelve consecutive weeks. Further,

counsel for the Corrections Defendants and counsel for Correct Care Solutions also

represented that Plaintiff would be tested to confirm the efficaciousness of the treatment,

and that the test would be administered twelve weeks after the completion of his Harvoni

regiment. As a result of the above, the Court dismissed Defendants Motions to Stay and

Motions for Reconsideration as moot. (3:16-CV-2000, Doc. 63). Plaintiff's Motion for

Contempt was held in abeyance pending confirmation of completion of Plaintiff's treatment.

(Id.).

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Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 11 of 49

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On April 18, 2017, the Court held a conference with the parties to determine if Abu-

Jamal 1 and Abu-Jamal 2 should be consolidated. The parties agreed that the two matters

should be consolidated and thereafter filed a Joint Motion for Consolidation. (Doc. 223;

3:16-CV-2000, Doc. 71). On May 4, 2017, the Court issued an Order consolidating Abu-

Jamal 1 and Abu-Jamal 2. (Doc. 224; 3:16-CV-2000, Doc. 72).

On July 18, 2017, Plaintiff moved to join Dr. Jay Cowan as a Defendant. (Doc. 239).

After Defendants acknowledged that Plaintiff's Motion was legally sufficient and that Plaintiff

had the right to join Dr. Cowan, (Doc. 241), the Court granted Plaintiff's Motion. (Doc. 244).

On August 23, 2017, Plaintiff filed his Fourth Amended Complaint. (Doc. 245).

Plaintiff's Fourth Amended Complaint contains the following claims: a 42 U.S.C. §

1983 Eighth Amendment claim for deliberate indifference to Plaintiff's hepatitis C against

Defendants DelBalso, the Pennsylvania Department of Corrections, and Silva in their official

capacities and for injunctive relief only, Defendants Wetzel, Oppman, Noel, Cowan, Lisiak,

Khanum, Saxon, and Stienhart in both their individual capacities for money damages and in

their official capacities for injunctive relief, and Defendant Kerestes in his individual capacity

for money damages only (Count I); a section 1983 Eighth Amendment claim for deliberate

indifference to Plaintiff's skin condition against Defendants Kerestes, Wetzel, Noel, Lisiak,

Khanum, and Saxon in their individual capacities for money damages only (Count II); a

section 1983 Eighth Amendment claim for deliberate indifference to Plaintiff's hyperglycemia

against Defendants Kerestes, Lisiak, Khanum, and Saxon in their individual capacities for

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Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 12 of 49

I

money damages only (Count 111); a state law medical malpractice claim for failure to treat

Plaintiff's hyperglycemia against Defendants Lisiak, Khanum, and Saxon in their individual

capacities for money damages only (Count IV); a state law medical malpractice claim for

failure to treat Plaintiff's hepatitis C against Defendants Noel, Cowan, Oppman, Lisiak,

Khanum, and Saxon in their individual capacities for money damages only (Count V); a

state law medical malpractice claim for failure to treat Plaintiff's skin condition against

Defendants Noel, Oppman, Lisiak, Khanum, and Saxon in their individual capacities for

money damages only (Count VI); and a section 1983 First Amendment right of association

claim against Defendants Kerestes and DelBalso in their official capacities and for injunctive

relief only (Count VII).

On August 25, 2017, the Medical Defendants filed a Partial Motion to Dismiss

Plaintiff's Fourth Amended Complaint. (Doc. 248). On September 7, 2017, the Corrections

Defendants filed a Partial Motion to Dismiss, or, in the alternative, a Partial Motion for

Summary Judgment. (Doc. 251 ). These Motions are presently pending before the Court.

Ill. FACTUAL ALLEGATIONS

Plaintiff's Fourth Amended Complaint alleges the following facts which, for the

purposes of resolving Defendants' Motions, the Court takes as true:

Plaintiff Mumia Abu-Jamal is currently incarcerated in the custody of the

Pennsylvania Department of Corrections at SCI-Mahanoy. (Doc. 245 at~ 4). Plaintiff

incarceration began in 1981 when he was arrested for, and later convicted of, murdering a

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Philadelphia police officer. (Id. at~~ 18, 22-23). Although Plaintiff was sentenced to death,

in 2011, the Third Circuit affirmed a lower court's order setting aside Plaintiffs death

sentence. (Id. at 1Mf 22, 27). After the Philadelphia District Attorney's Office chose not to

seek to reinstate Plaintiff's death sentence, the Department of Corrections placed him into

the general population. (Id. at~ 28).

In 2012, Plaintiff tested positive for the hepatitis C antibody during routine blood

work. (Id. at~ 60). Hepatitis C is a virus that infects the cells of the liver. (Id. at~ 33).

Between seventy-five and eighty-five percent of individuals with hepatitis C will develop

chronic hepatitis C, which will result in progressive inflammation of the liver. (Id.). This

inflammation leads to liver scarring, known as fibrosis, and extreme liver scarring, known as

cirrhosis, both of which impact the liver's ability to function. (Id. at~ 34). Chronic hepatitis

C may cause complications such as liver cancer, anemia, and diabetes. (Id. at~~ 37-38,

41 ). Chronic hepatitis C may also result in skin conditions such as lichen planus, necrolytic

acral erythema, psoriasis, eczema, and pruritus. (Id. at~ 42). Approximately twenty

percent of all those with chronic hepatitis C will die from complications of the disease. (Id.

at~ 39).

In 2013, new antiviral drugs came onto the market that had a ninety to ninety-five

percent cure rate for hepatitis C. (Id. at~ 43). Two of these drugs were Harvoni and

Sovaldi. (Id.). The American Association for the Study of Liver Diseases ("MSLD")

currently recommends that everyone with chronic hepatitis C be treated with the new

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Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 14 of 49

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antiviral drugs. (Id. at~ 44). Further, the Centers for Disease Control has issued guidelines

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stating that the recommendations of the AASLD are the standard of care for treating

i
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hepatitis C. (Id. at~ 45). In late 2015, Defendants Oppman, Cowan, and Noel formulated

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[,

I

and adopted a policy concerning which of the 5000 Pennsylvania inmates with chronic

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hepatitis Cwould be treated with the new antiviral drugs. (Id. at~~ 47, 50). The policy was

I

authorized by Defendant Wetzel. (Id. at~ 51 ). Under the policy, only inmates with

I

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decompensated cirrhosis with bleeding could receive the antiviral drugs. (Id. at~ 52). At

I

this stage of the disease progression, however, an individual has already suffered

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I

irreversible damage to his or her health, including liver damage and increased risk of death.

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(Id. at~~ 53-54).

The Department of Corrections hepatitis C treatment policy was implemented by

I

Defendants Wetzel, Oppman, Noel, Kerestes, Steinhart, and Cowan despite their

! I

knowledge that there was no medical justification for denying treatment to inmates who did

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not meet the policy's treatment criteria and that failing to treat these infected inmates

I

caused harm to the inmates' health, including a risk of death. (Id. at~ 56). The policy

remains in effect and is enforced by Defendants Wetzel, Silva, Noel, DelBalso, and

Steinhart. (Id. at~ 58).

In August of 2014, Plaintiff's hepatitis C resulted in a severe skin rash. (Id. at~ 63).

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Plaintiff began to experience itching over his whole body and he reported his condition to

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facility staff. (Id. at~ 64). He was prescribed creams, which had no effect. (Id.). On

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Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 15 of 49

February of 2015, Defendants Lisiak and Khanum noted that the rash covered seventy percent of Plaintiff's body. (Id. at 1[1[ 65-66). On February 20, 2015, Defendant Khanum ordered Plaintiff to be admitted to the facility infirmary. (Id. at 1[ 68). On that date, Defendant Lisiak noted that Plaintiff's blood glucose was abnormally high, but did not inform Plaintiff. (Id. at 1[ 69). Although Plaintiff's medical records indicated that he tested positive for hepatitis C years earlier, Defendants Lisiak, Saxon, and Khanum did not investigate whether Plaintiff's hepatitis C might be causing the skin condition. (Id. at 1[ 70). With the knowledge and approval of Defendants Lisiak, Saxon, and Khanum, Plaintiff was prescribed another steroid and an immunosuppressant. (Id. at 1[ 71 ).
On March 6, 2015, Plaintiff's blood work showed his glucose level had risen to a severely abnormal level. (Id. at 1[ 72). Defendants Lisiak, Saxon, and Khanum were aware of this information and knew or should have known that this indicated a dangerous case of hyperglycemia. (Id. at 1l1f 72-73). Nevertheless, despite this knowledge, Defendants Lisiak, Saxon, and Khanum took no action. (Id. at 1[ 74). Untreated hyperglycemia is a potentially fatal condition. (Id. at 1[ 79). In March of 2015, an inmate told Defendant Kerestes that Plaintiff was very weak and suffering. (Id. at 1[ 76). Defendant Kerestes took no action to investigate this information. (Id. at 1[ 77). On March 30, 2015, Plaintiff lost consciousness and, upon being rushed to Schuylkill Medical Center, was found to have an abnormally high blood glucose level and be suffering from diabetic shock. (Id. at 1[ 78).

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Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 16 of 49

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Plaintiff returned to prison on April 1, 2015. (Id. at~ 80). Release papers indicated

that his prognosis was "guarded" and that he had the following medical issues: "diabetes,
t

new onset, encephalopathy secondary to hyperglycemia, dehydration, acute kidney injury,

I

hyponatremia, hypokalemia, asymptomatic gallstones, skin rash, anemia and a history of

hepatitis C." (Id.). Despite being aware of this information, Defendants Kerestes, Steinhart,
t

Lisiak, Khanum, and Saxon took no steps to investigate whether hepatitis C may be the

r

cause of Plaintiff's rash and other medical issues. (Id. at~ 83). Plaintiffs blood work

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revealed and continues to reveal abnormalities, including a consistently below-normal

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hemoglobin count. (Id. at~ 82).

I

Plaintiff retained counsel in March of 2015 to advocate for his medical care. (Id. at~

l

84). On April 6, 2015, counsel sent a letter to both Defendants Kerestes and Steinhart

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informing them that Plaintiffs blood sugar remained abnormal. (Id. at~ 90). Defendants Kerestes and Steinhart did not respond to the letter. (Id. at~ 91 ).

Plaintiff experienced extreme pain in his lower extremities when showering on May 12, 2015, and he was transported to Geisinger Medical Center later that day. (Id. at~ 99). Plaintiff's counsel and Plaintiff's wife both requested that they be permitted to visit with Plaintiff at Geisinger. (Id. at~ 100). Counsel and Plaintiff's wife were initially told that

Defendant Kerestes would permit visits from immediate family members but were later told that Plaintiff would be denied all visitation, including visits with his counsel, so long as he remained at Geisinger. (Id. at~ 101 ). Plaintiff was also not allowed to telephone his

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counsel or his wife. (Id.). Counsel for the Department of Corrections asserted that the

prohibition on visitation and phone calls was the policy of Geisinger. (Id. at~ 102). On May

14, 2015, Plaintiff's counsel contacted Geisinger's litigation counsel, who agreed to seek

authorization from Geisinger's Chief Medical Officer and the Department of Corrections

officials to permit family and attorney visits and phone calls. (Id. at~ 103). Plaintiff was

granted a fifteen minute telephone call with his wife on May 18, 2015, but was not allowed

any contact with his counsel. (Id. at~ 104).

Numerous diagnostic tests were conducted during Plaintiff's May 12, 2015, to May

19, 2015,3 hospitalization at Geisinger, but the underlying causes of Plaintiffs health
problems were not determined. (Id. at mJ 106-107). A hepatitis C workup was not

performed at Geisinger Medical Center. (Id. at ~ 109). The Geisinger discharge report

dated May 18, 2015, however, noted that Plaintiff might be a suitable candidate for hepatitis

C treatment. (Id. at~ 110). That discharge report was placed in Plaintiff's medical records

at SCI-Mahanoy. (Id.). Defendants Lisiak, Khanum, Kerestes, and Steinhart did not order a

hepatitis C blood test to determine whether the disease was chronic. (Id. at~ 111 ).

In June of 2015, Plaintiff's counsel sent a letter to the Department of Corrections'

counsel requesting that blood work be performed to determine whether Plaintiff had chronic

I

hepatitis C, as that could be the underlying cause of his skin condition, anemia, and

I

[

3 It is unclear from the Fourth Amended Complaint on what date Plaintiff was released from

!

Geisinger Medical Center and returned to SCI-Mahanoy. Plaintiff provides both a release date of May 19,

2015, (Doc. 245 at~ 106), and May 18, 2015, (Id. at~ 110).

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Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 18 of 49
hyperglycemia. (Id. at~ 115). This letter was shared with Defendants Kerestes, Steinhart, Oppman, Wetzel, and Noel. (Id. at~ 114). Plaintiff's counsel received no response to the letter. (Id. at~ 116).
In late July of 2015, the Department of Corrections' medical staff conducted blood work on Plaintiff which revealed that he had chronic hepatitis C. (Id. at~ 122). Between July of 2015 and mid-September of 2015, Plaintiff asked Defendants Lisiak and Khanum to treat him with Harvoni or Sovaldi, but was told that the matter was out of the physicians' hands because the Department of Corrections found the medication to be cost prohibitive. (Id. at~ 125).
Plaintiff's hepatitis C continues to progress and expose him to the risk of other health complications. (Id. at~~ 126-129). Plaintiff's skin conditions persist and will only be cured if his hepatitis C is treated. (Id. at~~ 130-131). Nevertheless, the Department of Corrections will not provide Plaintiff with hepatitis C treatment. (Id. at~ 141 ). Specifically, Defendants Noel and Cowan recommended that Plaintiff should not be treated with antiviral medications because he does not meet the treatment criteria under the policy developed by Defendants Wetzel, Noel, Cowan, and Oppman. (Id. at 1MJ 146-147, 149). Defendants Wetzel, Kerestes, and Steinhart have adopted that recommendation and refuse to treat Plaintiff with antiviral medications. (Id. at~ 146). Defendant Delbalso continues to enforce this policy at SCI-Mahoney. (Id. at~ 151 ). There is no medical justification for denying Plaintiff
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treatment; the sole basis for refusing treatment is the monetary cost of the medication. (Id. at~~ 155-156).
IV. STANDARD OF REVIEW A complaint must be dismissed under Federal Rule of Civil Procedure 12(b)(6) if it does not allege "enough facts to state a claim to relief that is plausible on its face." Bell At/. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal citations, alterations, and quotations marks omitted). A court "take[s] as true all the factual allegations in the Complaint and the reasonable inferences that can be drawn from those facts, but ... disregard[s] legal conclusions and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements." Ethypharm S.A. France v. Abbott Labs., 707 F.3d 223, 231 n.14 (3d Cir. 2013) (internal citation, alteration, and quotation marks omitted). Thus, "the presumption of truth attaches only to those allegations for which there is sufficient 'factual matter' to render them 'plausible on [their] face."' Schuchardt v. President
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Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 20 of 49
of the U.S., 839 F.3d 336, 347 (3d Cir. 2016) (alteration in original) (quoting Iqbal, 556 U.S. at 679). "Conclusory assertions of fact and legal conclusions are not entitled to the same presumption." Id.
"Although the plausibility standard 'does not impose a probability requirement,' it does require a pleading to show 'more than a sheer possibility that a defendant has acted
unlawfully."' Connelly v. Lane Constr. Corp., 809 F.3d 780, 786 (3d Cir. 2016) (internal
citation omitted) (first quoting Twombly, 550 U.S. at 556; then quoting Iqbal, 556 U.S. at 678). "The plausibility determination is 'a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'" Id. at 786-87 (quoting Iqbal, 556 U.S. 679).
V.ANALYSIS
The Medical Defendants and the Corrections Defendants have filed separate Motions to Dismiss. The Court will address each Motion in turn.
A. The Medical Defendants' Motion The Medical Defendants-that is, Correct Care Solutions, LLC, Dr. Jay Cowan, Dr. John Lisiak, Dr. Shaista Khanum, and Physician's Assistant Scott Saxon-have put forth several arguments as to why parts of Plaintiff's Fourth Amended Complaint should be
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Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 21 of 49
dismissed for failure to state a claim.4 The Court will address each of the Medical Defendants' arguments separately.
1. Injunctive Relief The Medical Defendants first argue that Plaintiff's claims for injunctive relief should be dismissed as they pertain to Defendants Khanum, Lisiak, and Saxon because those Defendants no "longer provide[] medical care at SCI-Mahanoy." (Doc. 249 at 8). Thus, they argue, even if the Court grants the injunctive relief requested, Defendants are not in a position to comply with the Court's order. This argument is wholly inappropriate for a motion to dismiss. The Medical Defendants assert a unsupported statement of fact-that is, that Defendants Khanum, Lisiak, and Saxon are no longer employed at SCI-Mahanoy-and expect this Court to take it as true. Moreover, the statement of fact they assert is in direct contradiction to the allegations averred in the Fourth Amended Complaint. Therein, Plaintiff pleads that Defendants Khanum, Lisiak, and Saxon all currently provide medical services at SCIMahanoy. (Doc. 245 at~~ 13-15). Accordingly, the Court will deny the Medical Defendants' Motion on this basis. See Ethypharm S.A. France, 707 F.3d at 231 n.14. The Medical Defendants also argue that, because Plaintiff has already been treated with Harvoni, his claims for injunctive relief against Defendants Correct Care Solutions and
4 The Medical Defendants' Motion and brief refers only to Plaintiff's Fourth Amended Complaint and therefore the Court does not read the Medical Defendants' Motion as moving to dismiss the claim against Defendant Correct Care Solutions contained in Count I of the Complaint in Abu-Jamal 2.
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Cowan are now moot. (Doc. 249 at 9). Article Ill of the Constitution provides that the "judicial Power shall extend to ... Cases ... [and] to Controversies." U.S. CONST. art. Ill,§ 2. This grant of authority embodies a fundamental limitation restricting the federal courts to the adjudication of "actual, ongoing cases or controversies." Khodara Envtl., Inc, v. Beckman, 237 F.3d 186, 193 (3d Cir. 2001). The mootness doctrine is centrally concerned with a court's ability to grant effective relief. "If developments occur during the course of adjudication that eliminate a plaintiff's personal stake in the outcome of a suit or prevent a court from being able to grant the requested relief, the case must be dismissed as moot." Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698-99 (3d Cir. 1996).
The Medical Defendants' mootness argument suffers from the same defect that was present in the Medical Defendants' first argument. Plainly stated, to find in the Medical Defendants' favor on this ground, the Court would need to examine evidence not properly before the Court. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993) ("To decide a motion to dismiss, courts generally consider only the allegations contained in the complaint, exhibits attached to the complaint ... matters of public record ... [and any] undisputedly authentic document that a defendant attaches as an exhibit to a motion to dismiss if the plaintiffs claims are based on the document.").
Accordingly, the Court will deny the Medical Defendants' Motion as it pertains to Plaintiffs claims for injunctive relief.
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Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 23 of 49
2. Personal Involvement Next, the Medical Defendants argue that Plaintiff's Eighth Amendment claim based on the treatment he received for his hepatitis C-contained in Count I of Plaintiff's Fourth Amended Complaint-should be dismissed because Plaintiff has not pleaded that the Medical Defendants were personally involved in creating or enforcing the policy under which Plaintiff was denied the treatment he sought. (Doc. 249 at 9-12). Thus, according to the Medical Defendants, "to the extent that Plaintiff is alleging that the Hepatitis C policy is unconstitutional, [the Medical Defendants] cannot be found liable." (Id. at 11 ). To state a claim under 42 U.S.C. § 1983, "a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution." Iqbal, 556 U.S. at 676. That is, "a plaintiff must demonstrate a defendant's 'personal involvement in the alleged wrongs."' Chavarriaga v. N.J. Dep't of Corr., 806 F.3d 210, 222 (3d Cir. 2015) (quoting Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). "A plaintiff makes sufficient allegations of a defendant's personal involvement by describing the defendant's participation in or actual knowledge of and acquiescence in the wrongful conduct." Id. "Although a court can infer that a defendant had contemporaneous knowledge of wrongful conduct from the circumstances surrounding a case, the knowledge must be actual, not constructive." Id. While the Medical Defendants are correct that Plaintiff's Fourth Amended Complaint contains no allegations that Defendants Khanum, Lisiak, and Saxon were involved in
23

Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 24 of 49

I

i

developing the hepatitis C treatment policy, it does not follow that Count I should be

I

dismissed as it pertains to these Defendants. Count I alleges that various Defendants,

!

including Defendants Khanum, Lisiak, and Saxon, violated Plaintiffs Eighth Amendment

I

rights by failing to treat his hepatitis C. (Doc. 245 at~ 159). While part of that allegation

I

certainly concerns the hepatitis C treatment policy and its impact on the treatment-or lack

I

thereof-that Plaintiff allegedly received, the Court does not read Count I to only concern

itself with the hepatitis C treatment policy. Instead, fairly construed, Plaintiffs Fourth

I

I

Amended Complaint alleges that part of his lack of treatment was due to the failure of

I

!

I

certain Defendants, including Defendants Khanum, Lisiak, and Saxon, to investigate

I I

I

whether Plaintiffs hepatitis C was chronic and whether the medical issues he was

I

experiencing were related to his hepatitis C.

I

With respect to this portion of his claim, Plaintiff alleges that Defendants Khanum,

l
I

Lisiak, and Saxon were aware that Plaintiff tested positive for hepatitis C, as such

I

'~

information was in his medical records. (Id. at~~ 70, 83, 110). Plaintiff alleges that,

I

beginning in August of 2014, he began experiencing complications from his hepatitis C in

I

I

the form of a persistent skin rash. (Id. at~~ 42, 63). He further asserts that he sought

r
l

treatment of his skin condition from Defendants Khanum, Lisiak, and Saxon, but those

f

Defendants did not test Plaintiff to see if his hepatitis C was chronic or whether his hepatitis

I

I'
i
Cwas the cause of his skin condition. (Id.~~ 65-66, 70-71, 75, 83). These allegations are

t

24

Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 25 of 49
sufficient to plead that Defendants Khanum, Lisiak, and Saxon were personally involved in the failure to treat Plaintiff's hepatitis C.
Accordingly, the Court will deny this portion of the Medical Defendants' Motion to Dismiss.
3. Mere Disagreement with the Treatment Provided Finally, the Medical Defendants argue that Plaintiff's Eighth Amendment claims based on the treatment he received for his hepatitis C and skin condition-contained in Counts I and II of Plaintiff's Fourth Amended Complaint-fail to state a claim for relief because those claims, at best, merely state a non-cognizable disagreement with the treatment Plaintiff received. (Doc. 249 at 12-21). Stated otherwise, the Medical Defendants argue that Plaintiff has not pleaded a lack of medical care, but has instead only pleaded that he disagrees with the level and type of treatment that he was provided. The Medical Defendants urge that prisoner-plaintiffs cannot recover under section 1983 for this type of disagreement over the medical services provided. Under the Eighth Amendment, made applicable to the states by the Fourteenth Amendment, a state must "provide medical care for those whom it is punishing by incarceration." Estelle v. Gamble, 429 U.S. 97, 103, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1976). To make out a claim under the Eighth Amendment for failure to provide adequate medical care, a "plaintiff[ ] must demonstrate (1) that the defendants were deliberately indifferent to
25

Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 26 of 49
[his or her] medical needs and (2) that those needs were serious." Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).
Deliberate indifference is akin to "recklessness as that term is defined in criminal law." Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003). It "requires proof that the [prison] official 'knows of and disregards an excessive risk to inmate health or safety."' Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970, 128 L. Ed. 2d 811 (1994)). The defendant "must be 'both [ ] aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and ... draw the inference."' Id. (alterations in original) (quoting Farmer, 511 U.S. at 837). However, "simple medical malpractice is insufficient to present a constitutional violation." Durmer v. O'Carroll, 991 F.2d 64, 67 (3d Cir. 1993). Similarly, "mere disagreements over medical judgment do not state Eighth Amendment claims." White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990).
A serious medical need "is 'one that has been diagnosed by a physician as requiring treatment or one that is so obvious that a lay person would easily recognize the necessity for a doctor's attention."' Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (quoting Pace v. Fauver, 479 F. Supp. 456, 458 (D.N.J. 1979), aff'd, 649 F.2d 860 (3d Cir. 1981)). Further, "[t]he seriousness of an inmate's medical need may also be determined by reference to the effect of denying the particular treatment." Id.
In the context of an Eighth Amendment claim, "prison authorities are accorded considerable latitude in the diagnosis and treatment of prisoners." Durmer, 991 F.2d at 67.
26

Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 27 of 49
Nevertheless, the Third Circuit has "found 'deliberate indifference' in a variety of circumstances, including where the prison official (1) knows of a prisoner's need for medical treatment but intentionally refuses to provide it; (2) delays necessary medical treatment based on a non-medical reason; or (3) prevents a prisoner from receiving needed or recommended medical treatment." Rouse, 182 F.3d at 197. "Deliberate indifference is also evident where prison officials erect arbitrary and burdensome procedures that 'result[ ] in interminable delays and outright denials of medical care to suffering inmates."' Monmouth Cty. Corr. Inst. Inmates, 834 F.2d at 347 (alteration in original) (quoting Todaro v. Ward, 565 F.2d 48, 53 (2d Cir. 1977)). Finally, "[p]rison officials may not, with deliberate indifference to the serious medical needs of the inmate, opt for 'an easier and less efficacious treatment' of the inmate's condition." Id. (quoting West v. Keve, 571 F.2d 158, 162 (3d Cir. 1978)).
Here, the Medical Defendants do not argue that Plaintiff has failed to adequately plead that his skin condition and hepatitis C are "serious medical needs" within the meaning of the Eighth Amendment. Instead, the Medical Defendants only argue that Plaintiff has not adequately pleaded that the Medical Defendants were deliberately indifferent to either of Plaintiffs alleged medical conditions.
With respect to Plaintiffs hepatitis C claim, the Medical Defendants' once again argue that Plaintiffs Fourth Amended Complaint fails to allege that Defendants Khanum, Lisiak, and Saxon were personally involved in the decision of whether to treat Plaintiffs hepatitis C with antiviral medications. They further argue that Plaintiff has pleaded that the
27

Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 28 of 49
Medical Department monitored Plaintiffs condition and treated his symptoms. Thus, they argue that Plaintiff has only pleaded a non-cognizable disagreement with the care he received. (Doc. 249at14-16).
Like the arguments the Medical Defendants advanced in the prior section, these arguments suffer from the flawed premise that Plaintiff's hepatitis C claim is concerned only with the hepatitis C treatment policy. As discussed above, the Court does not read Plaintiff's Fourth Amended Complaint so narrowly. Plaintiffs Fourth Amended Complaint alleges that (1) Defendants Khanum, Lisiak, and Saxon were aware that Plaintiff had hepatitis C, (2) Plaintiff was experiencing complications from his hepatitis C in the form of a rash, and (3) Defendants Khanum, Lisiak, and Saxon failed to investigate whether Plaintiff had chronic hepatitis C and whether his rash was connected to his hepatitis C. (Doc. 245 at ~~ 42, 63, 65-66, 70-71, 75, 83, 110). This is sufficient to plead that Defendants Khanum, Lisiak, and Saxon "kn[ew] of and disregard[ed] an excessive risk to inmate health or safety." See Farmer, 511 U.S. at 837.
Further, the Fourth Amended Complaint alleges that Defendant Cowan was involved in the formation of the hepatitis C protocol and in the decision to not treat Plaintiff with antiviral medications. (Id. at~~ 50, 146). The Fourth Amended Complaint also alleges that there was no medical justification for denying Plaintiff antiviral medication and that the decision was based on concerns surrounding the cost of the medication. (Id. at~~ 155156). Accordingly, the Fourth Amended Complaint adequately pleads that Defendant
28

Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 29 of 49
Cowan was deliberately indifferent to Plaintiff's hepatitis C because Defendant Cowan
"delay[ed] necessary medical treatment based on a non-medical reason." Rouse, 182 F.3d
at 197.
Nevertheless, the Medical Defendants argue that courts have routinely found that a
defendant is not deliberately indifferent to a serious medical need when he or she complies
with a hepatitis C treatment policy such as the one at issue here. (Doc. 249 at 16-18). The
cases the Medical Defendants rely on, however, are readily distinguishable for at least two
reasons. First, all of the cases on which the Medical Defendants rely were decided on
Motions for Summary Judgement, not Motions to Dismiss. See Lasko v. Watts, 373 F.
App'x 196 (3d Cir. 2010); Josey v. Beard, 2009 WL 1858250 (W.D. Pa. 2009); Lee v. Beard,
2008 WL 744736 (M.D. Pa. 2008); Henry v. Maue, 2008 WL 5188834 (W.D. Pa. 2008).
Second, all these cases were decided prior to 2013 and involved interferon-based
treatment protocols. As one court has explained,
Interferon treatment has serious potential side-effects, including nausea, anemia, depression, and decomposition of the liver. Its success rate is relatively low-15-30% for regular interferon and 40-50% for pegylated interferon treatment. The selection of patients for interferon treatment is highly individualized and depends upon many factors. Treatment is not appropriate for patients with advanced liver problems such as cirrhosis. Treatment for patients with mild liver problems may be safely deferred. Suitability for treatment is determined by measuring the degree of liver inflammation and fibrosis through a liver biopsy. However, even if the appropriate threshold levels of inflammation and fibrosis are present, treatment may be inappropriate if the patient is too young or too old, had a previous organ transplant, or suffers from depression, other mental health problems, heart disease, or untreated chemical dependency.
29

Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 30 of 49

! I
I
!
Bender v. Regier, 385 F.3d 1133, 1135 (8th Cir. 2004). Consequently, "[t]he decision

r

whether or not to use [these] antiviral therap[ies] [was] a complex and controversial one."

f

I

Moore v. Bennett, 777 F. Supp. 2d 969, 976 (E.D.N.C. 2011 ).

I

In contrast, Plaintiff has pleaded that in 2013 two new antiviral drugs, Harvoni and

I

I

Sovaldi, became available to treat hepatitis C. (Doc. 245 at~ 43). According to Plaintiff's

I

;

Fourth Amended Complaint, Harvoni and Sovaldi "have a 90-95% cure rate and few, if any,

!

side effects." (Id.). Plaintiff further alleges that both the MSLD and the Centers for

I

I

Disease Control recommend that everyone with chronic hepatitis C be treated with these

I

I

new drugs. (Id. at~~ 44-45). Accordingly, the Court will not grant the Medical Defendants'

l

I

Motion to Dismiss on the strength of cases analyzing deliberate indifference in connection

I

f

with interferon-based treatment protocols when Plaintiff has pleaded that the landscape for

!
I

treating hepatitis Chas dramatically changed with the advent of new, curative medications

that are highly effective, low risk, and recommended for all those with chronic hepatitis C.

Turning to Plaintiff's claims concerning his skin condition, the Medical Defendants

argue that Plaintiff has pleaded that he underwent extensive testing and treatment. Thus,

the Medical Defendants argue, Plaintiff's claim amounts to nothing more than a

disagreement with his doctors about which course of treatment was proper. Such a

disagreement, according to the Medical Defendants, is not cognizable under the Eighth

Amendment. (Doc. 249 at 18-21 ).

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Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 31 of 49
The Medical Defendants are correct that Plaintiff has pleaded that he underwent various tests and received various treatments related to his skin condition. Nevertheless, Plaintiff has also pleaded that his skin condition was caused by his hepatitis C and that his skin condition would only be cured if his hepatitis C was treated. (Doc. 245 at~~ 63, 131). Further, Plaintiff has pleaded that Defendants Khanum, Lisiak, and Saxon knew about both conditions but did not investigate the connection between the two, and that Defendant Cowan denied, for non-medical reasons, Plaintiff's request for hepatitis C treatment. (Id. at ~~ 42, 50, 65-66, 70-71, 75, 83, 110, 146, 155-56). Thus, Plaintiff has adequately pleaded that he received only monitoring and superficial treatment despite the availability of an effective and curative treatment. This is sufficient to state an Eighth Amendment claim. See Monmouth Cty. Corr. Inst. Inmates, 834 F.2d at 347 ("Prison officials may not, with deliberate indifference to the serious medical needs of the inmate, opt for an easier and less efficacious treatment of the inmate's condition." (quotation marks omitted)).
Accordingly, the Court will deny the Medical Defendants' Motion to dismiss Count I and II of Plaintiff's Fourth Amended Complaint.
B. The Corrections Defendants' Motion The Corrections Defendants-that is, John Kerestes, the Pennsylvania Department of Corrections, Theresa DelBalso, Joseph Silva, John Wetzel, Dr. Paul Noel, Christopher Oppman, John Steinhart, Bureau of Health Care Services Assistant Medical Director, and Bureau of Health Care Service Infection Control Coordinator-raise a number of arguments
31

Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 32 of 49
as to why parts of Plaintiff's Fourth Amended Complaint should be dismissed. Before turning to those arguments, however, the Court will address the two initial matters: (1) whether this Court should convert the Corrections Defendants' Motions to Dismiss into a Motion for Summary Judgment; and (2) whether this Court should consider evidence offered at the preliminary injunction hearing in resolving the Corrections Defendants' Motions to Dismiss.
Turning to the first issue, although the Corrections Defendants label their Motion as a Motion to Dismiss or for Summary Judgment, the Corrections Defendants fail to comply with the procedural requirements for a Motion for Summary Judgment. Rule 56.1 of the Rules of Court for the Middle District of Pennsylvania ("Local Rules") provides, in part, that
A motion for summary judgment filed pursuant to Fed.R.Civ.P.56, shall be accompanied by a separate, short and concise statement of the material facts, in numbered paragraphs, as to which the moving party contends there is no genuine issue to be tried.
Statements of material facts in support of, or in opposition to, a motion shall include references to the parts of the record that support the statements. Local Rule 56.1. The required statement is "intended to alert the court to precisely what factual questions are in dispute and point the court to the specific evidence in the record that supports a party's position on each of these questions." Landmesser v. Hazleton Area Sch. Dist., 982 F. Supp. 2d 408, 412 (M.D. Pa. 2013) (quotation marks omitted). When a moving party fails to comply with Local Rule 56.1 "the court should not have to proceed
32

Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 33 of 49
further, regardless of how readily it might be able to distill the relevant information from the record on its own." Id. (quotation marks omitted).
Here, the Corrections Defendants have failed to include such a statement with its Motion, and therefore the Court is at a loss as to what facts the Corrections Defendants consider undisputed. Accordingly, the Court will not convert the Corrections Defendants' Motion to Dismiss into a Motion for Summary Judgment. See id. at 413 (dismissing a party's motion for summary judgment for failing to comply with Local Rule 56.1 ); Bowers v. Nat'/ Collegiate Athletic Ass'n, 9 F. Supp. 2d 460, 476 (D.N.J. 1998) ("[F]ailure to comply with the Local Civil Rule would by itself suffice to deny [a] motion for summary judgment.").
Turning to the second issue, the Corrections Defendants' assert that this Court should consider the evidence that was submitted at the preliminary injunction hearing in resolving their Motion to Dismiss. The Corrections Defendants contend that the Court may properly consider such evidence under Mc Teman v. City of York, 577 F.3d 521, 530 (3d Cir. 2009). Specifically, counsel for the Corrections Defendants, Laura Neal, represents to the Court that in Mc Teman "evidence submitted at [a] preliminary injunction hearing was properly considered in granting a motion to dismiss without" converting it into a motion for summary judgment. (Doc. 254 at 5 n.1 ).
Attorney Neal grossly misrepresents Mc Teman. That case addressed the issue of whether, on a motion to dismiss, a "District Court erred in relying on the findings and conclusions it reached in its ruling denying Plaintiffs' motion for a preliminary injunction."
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Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 34 of 49
Mc Teman, 577 F.3d at 530. The Third Circuit held that in "rare" cases "a district court's findings and conclusions on a preliminary injunction motion could 'have preclusive effect if the circumstances make it likely that the findings are "sufficiently firm" to persuade the court that there is no compelling reason for permitting them to be litigated again."' Id. (emphasis added) (quoting Hawksbil/ Sea Turtle v. Federal Emergency Mgmt. Agency, 126 F.3d 461, 474n.11 (3dCir.1997)).
Here, the Corrections Defendants do not cite any of the findings of fact or conclusions of law that the Court made in connection with the preliminary injunction hearing. Instead, the Corrections Defendants want this Court to consider portions of the exhibits and testimony that were presented at the hearing. (Doc. 254 at 5-10). The mere fact that this evidence was presented to the Court at the preliminary injunction hearing, however, does not mean that this Court can consider it when ruling on a motion to dismiss. Indeed, this Court would have to contort the language of Mc Teman beyond recognition to find support for such a proposition.
Accordingly, in resolving the Corrections Defendants' Motion to Dismiss the Court will not consider the evidence presented at the preliminary injunction hearing.
1. Procedural Default The Corrections Defendants first argue that Plaintiff, with respect to his freedom of association claim, has failed to exhaust his administrative remedies. (Doc. 254 at 11-13). That is, the Corrections Defendants argue that Plaintiff has never filed a grievance in
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Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 35 of 49

connection to the denial of visits during his May 2015 hospitalization and, as a result, has

procedurally defaulted on his claim.

Under the Prison Litigation Reform Act of 1996 (the "PLRA"), a prisoner is required

to pursue all avenues of relief available within the prison's grievance system before bringing

a federal civil rights action concerning prison conditions. See 42 U.S.C. § 1997e(a); Booth

v. Churner, 206 F.3d 289, 291 (3d Cir. 2000), aff'd, 532 U.S. 731, 121 S. Ct. 1819, 149 L.

I

;

Ed. 2d 958 (2001 ). This "exhaustion requirement applies to all inmate suits about prison

l

life, whether they involve general circumstances or particular episodes, and whether they

I

[

allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532, 122 S.

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Ct. 983, 152 L. Ed. 2d 12 (2002). It has been made clear that the exhaustion requirement is

mandatory. See Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007); see also Booth, 532

532 U.S. at 741 (holding that the exhaustion requirement of the PLRA applies to prison

grievance systems "regardless of the relief offered through [these] administrative

procedures"); Nyhuis v. Reno, 204 F.3d 65, 67 (3d Cir. 2000) (same). "[l]t is beyond the

power of [any] court ... to excuse compliance with the exhaustion requirement." Nyhuis,

204 F.3d at 73 (quotation marks omitted).

The standard by which to measure whether a prisoner has exhausted his

administrative remedies is whether he has complied with the grievance procedures and

rules. Spruill v. Gillis, 372 F.3d 218, 231 (3d Cir. 2004). The PLRA requires not only

technical exhaustion of the administrative remedies, but also substantial compliance with

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Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 36 of 49
procedural requirements. Spruill, 372 F.3d at 227-32; see also Nyhuis, 204 F.3d at 77-78. A procedural default by the prisoner, either through late or improper filings, bars the prisoner from bringing a claim in federal court unless equitable considerations warrant review of the claim. Spruill, 372 F.3d at 227-32; see also Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000). Finally, "failure to exhaust is an affirmative defense under the PLRA, and []inmates are not required to specially plead or demonstrate exhaustion in their complaints." Jones v. Bock, 549 U.S. 199, 216, 127 S. Ct. 910, 166 L. Ed. 2d 798 (2007).
Here, Plaintiff argues that on the date this lawsuit was filed, May 18, 2015, Plaintiff was in the hospital and did not have the materials required to file a grievance. Thus, he argues, there were no administrative remedies available for him to exhaust. (Doc. 256 at 8). Therefore, Plaintiff argues that his claim is not procedurally defaulted because, while "[a]n inmate ... must exhaust available [administrative] remedies, [he] need not exhaust unavailable ones." Ross v. Blake, 136 S. Ct. 1850, 1858, 195 L. Ed. 2d 117 (2016).
"The availability of administrative remedies to a prisoner is a question of law." Brown v. Croak, 312 F.3d 109, 111 (3d Cir. 2002). The Third Circuit has defined "available" administrative remedies "as those that are 'capable of use; at hand."' Robinson v. Superintendent Rockview SCI, 831 F.3d 148, 153 (3d Cir. 2016) (quoting Brown, 312 F.3d at 113). The Court is unconvinced that a weeklong hospital stay, standing alone, renders the Department of Corrections' grievance procedure incapable of use. Indeed, as discussed in a prior Opinion issued in this case, under the Pennsylvania Department of
36

Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 37 of 49

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Corrections Inmate Grievance System Policy that was in effect at the time, Plaintiff had

I

fifteen days from the date of the event complained of to submit a grievance. (Doc. 157 at

I

{
i

6). Thus, it is unclear why Plaintiff could not file a timely grievance after his hospital stay

I

ended. Nor is it clear that had Plaintiff requested a grievance form in the hospital, he would

I

have been denied access to it. 5
t

Nevertheless, the Court is cognizant of the fact that a motion to dismiss, not a motion

for summary judgment, is presently before the Court. As the above discussion should make

abundantly clear, resolving the issue of administrative exhaustion in this case would require

examination of factual matters well outside of the pleadings. As such, this issue is not

amenable to resolution at this stage. Accordingly, the Court will deny the Corrections

Defendants' Motion to Dismiss Plaintiff's freedom of association claim. The Corrections

Defendants, of course, are free to raise the issue again in a properly filed motion for

summary judgment.

2. The Department of Corrections

The Corrections Defendants next argue that the claims against the Pennsylvania

Department of Corrections fail because that entity is not a "person" within the meaning of

section 1983. (Doc. 254at13-14). Plaintiff, in his brief in opposition, states that he does

not oppose the dismissal of the Pennsylvania Department of Corrections as a defendant.

5 The Court rejects Plaintiff's argument that Johnson v. Jones, 340 F.3d 624, 627 (8th Cir. 2003), stands for the proposition that the Court should look to the date the lawsuit was filed and determine if administrative remedies were available to the inmate as of that date. Johnson concerned the issue of whether an inmate could properly exhaust his or her administrative remedies after commencing a lawsuit. It did not address the applicable date for determining whether administrative remedies were unavailable.
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Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 38 of 49
(Doc. 256 at 8-9). Accordingly, the Court will grant the Corrections Defendants' Motion as it
pertains to the claims against the Pennsylvania Department of Corrections.
3. Qualified Immunity Next, the Corrections Defendants argue that they are entitled to qualified immunity
as it pertains to Plaintiff's Eighth Amendment claims based on the treatment he received for
his hepatitis C.6 (Doc. 254 at 14-18). Specifically, the Corrections Defendants argue that
"there is no clearly established right to receive immediate treatment with direct-acting
antiviral medication[] rather than monitoring and treatment under a prioritization protocol."
(Id. at 18).
"The doctrine of qualified immunity protects government officials 'from liability for civil
damages insofar as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known."' Pearson v.
Callahan, 555 U.S. 223, 231, 129 S. Ct. 808, 172 L. Ed. 2d 565 (2009) (quoting Harlow v.
Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982)). Qualified
immunity serves the dual purpose of holding government officials accountable when their
power is exercised unreasonably and protecting those officials from "harassment,
6 Although the heading to this portion of the Corrections Defendants' brief appears to ask for dismissal of all of Plaintiffs constitutional claims, the Corrections Defendants only present arguments that relate to Plaintiffs Eighth Amendment hepatitis C claim. Thus, to the extent that the Corrections Defendants seek dismissal of Plaintiffs other constitutional claims based on qualified immunity, the Court finds that those arguments, for purposes of this motion, are waived. See John Wyeth & Bro. Ltd. v. CIGNA Int'/ Corp., 119 F.3d 1070, 1076 n.6 (3d Cir. 1997) ("[A]rguments raised in passing (such as, in a footnote), but not squarely argued, are considered waived."). Consequently, the Court will only address the Corrections Defendants' qualified immunity arguments as they pertain to Plaintiffs Eighth Amendment hepatitis C claim.
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Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 39 of 49
distraction, and liability when they perform their duties reasonably." Id. "[Q]ualified immunity applies regardless of whether the government official's error is 'a mistake of law, a mistake of fact, or a mistake based on mixed questions of law and fact."' Id. (quoting Groh v. Ramirez, 540 U.S. 551, 567, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 (2004) (Kennedy, J., dissenting)).
Qualified immunity is "an entitlement not to stand trial or face the other burdens of litigation." Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S. Ct. 2806, 86 L. Ed. 2d 411 (1985). The Supreme Court has indicated that, preferably, the issue of qualified immunity "ordinarily should be decided by the court long before trial." Hunter v. Bryant, 502 U.S. 224, 228, 112 S. Ct. 534, 116 L. Ed. 2d 589 (1991). However, the Third Circuit has recognized that this preference sometimes must give way to the realities of a case's development. In response to Hunter, the Third Circuit said:
That is well and good when there are no factual issues in a case, but often the facts are intensely disputed, and our precedent makes clear that such disputes must be resolved by a jury after a trial. As a practical matter, then, in such cases the immunity becomes no more than a mere defense, and a sometimes challenging one to establish at that. Curley v. Klem, 499 F.3d 199, 208 (3d Cir. 2007) (internal citations omitted). In Saucierv. Katz, 533U.S.194,121 S. Ct. 2151, 150 L. Ed. 2d 272 (2001), the Supreme Court articulated a two-step test to determine the appropriate application of qualified immunity. A Court must decide: (1) whether the facts alleged or shown by the plaintiff demonstrate the violation of a constitutional right; and (2) if so, whether that right
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Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 40 of 49
was "clearly established" at the time of the alleged violation. Id. at 201. Qualified immunity attaches unless the official's conduct violated such a clearly established right. Anderson v. Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987). However, the Saucier procedure, which erected a rigid framework, no longer mandates that district courts decide the two prongs in any particular order. Pearson, 555 U.S. at 236. The decision is left to the discretion of the District Court. Id.
In the present motion, the Corrections Defendants only address the "clearly established" prong of the qualified immunity inquiry. "As a general matter, a right is clearly established for purposes of qualified immunity when its contours are 'sufficiently clear that a reasonable official would understand that what he is doing violates that right."' Williams v. Bitner, 455 F.3d 186, 191 (3d Cir. 2006) (quoting Saucier, 533 U.S. at 202). While Supreme Court "case law does not require a case directly on point for a right to be clearly established, existing precedent must have placed the statutory or constitutional question beyond debate." White v. Pauly, 137 S. Ct. 548, 551, 196 L. Ed. 2d 463 (2017) (quotation marks and alterations omitted). "[l]n some cases 'a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though the very action in question has [not] previously been held unlawful."' Williams, 455 F.3d at 191 (alteration in original) (quoting Hope v. Pelzer, 536 U.S. 730, 741, 122 S. Ct. 2508, 153 L. Ed. 2d 666 (2002)). Nevertheless, the Supreme "Court has 'repeatedly told courts ... not to define clearly established law at a high level of generality."' Kise/av.
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Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 41 of 49

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Hughes, 138 S. Ct.1148, 1152 (2018) (quoting City & Cty. of S.F. v. Sheehan, 135 S. Ct.

I

1765, 1775-76, 191 L. Ed. 2d 856 (2015)).

I

Here, Plaintiff has adequately pleaded that the Corrections Defendants violated a

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clearly established right. Specifically, at the time of the events in Plaintiff's Fourth Amended

Complaint, binding Third Circuit case law established that prison officials violate the Eighth

Amendment when they "delay[ ] necessary medical treatment based on a non-medical

reason." Rouse, 182 F.3d at 197; see a/so Monmouth Cty. Corr. Inst. Inmates, 834 F.2d at

346 ("Short of absolute denial, if necessary medical treatment is delayed for non-medical

reasons, a case of deliberate indifference has been made out." (quotation marks and

alterations omitted)). The Third Circuit has also stated that prison officials cannot, without

violating the Eighth Amendment, "opt for an easier and less efficacious treatment of [an]

inmate's condition." Monmouth Cty. Corr. Inst. Inmates, 834 F.2d at 347 (quotation marks

and alteration omitted).

Plaintiff's Fourth Amended Complaint alleges the following:

5. Mr. Abu-Jamal is suffering from chronic hepatitis C. The disease has caused and is causing severe health problems. He has requested that he be provided with anti-viral medication that would cure his disease but the defendants have denied that treatment.

50. In late 2015, defendants Oppman, Cowan, and Noel, with the knowledge and approval of defendant Wetzel formulated and adopted a medical protocol concerning who would be treated and not treated with hepatitis C anti-viral drugs.
41

Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 42 of 49
52. Under that policy, only inmates with decompensated cirrhosis with bleeding are authorized to receive the anti-viral drugs. 53. When the disease has advanced to decompensated cirrhosis with bleeding, a person has already suffered irreversible damage to their health and are at a grave risk of death. 54. In addition, long before the disease has progressed to that stage, individuals suffering from it have suffered irreversible damage to their liver, decreased liver function, and are at a significantly higher risk of developing liver cancer. Many also suffer severe extrahepatic manifestations of the disease that adversely affect quality of life.
56.This policy was adopted and implemented by defendants Wetzel, Oppman, Noel, Kerestes, Steinhart, Cowan, and others even though they knew that denying treatment to inmates who did not fall under the protocol had no medical justification, causes harm to those inmates' health and places them at risk of death.
58. This protocol remains in effect and is administered and enforced by defendant Wetzel, defendant Silva, the current head of the Bureau of Health Care Services, defendant Noel, the Director of Clinical Services, defendant Cowan, defendant DelBalso, Superintendent of SCI Mahanoy and defendant Steinhart, Chief Health Care Administrator at SCI Mahanoy.
122. In or about late July 2015, hepatitis C bloodwork performed by [the Department of Corrections'] medical staff at Mahanoy revealed a viral load meaning that plaintiff has active hepatitis C and that the disease is chronic.
42

Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 43 of 49
140. [Defendant Wetzel] is aware that the current hepatitis C protocol provides no treatment for those with hepatitis C until they have sustained extreme liver damage and related health problems, and only after they have been exposed to severe risks of injury and death.
146. Defendants Noel and Cowan in their role on the hepatitis C committee, determined that plaintiff should not be treated with the anti-viral medications. This decision to refuse treatment was done with the knowledge and approval of defendants Wetzel, Kerestes and Steinhart, who have all adopted that recommendation and refused to provide plaintiff with the anti-viral medication.
155. The sole basis for refusing to provide the anti-viral drugs to plaintiff is monetary cost[.] 156. There is no medical justification for failing to provide the anti-viral drugs to the plaintiff. (Doc. 245). Based on these allegations, Plaintiff has adequately alleged that each of the Corrections Defendants violated a clearly established right by creating and/or enforcing a policy that denied necessary medical treatment to a suffering inmate for non-medical reasons. See Rouse, 182 F.3d at 197; Monmouth Cty. Corr. Inst. Inmates, 834 F.2d at 34647. The Corrections Defendants, however, argue that multiple courts have found no Eighth Amendment violation when a correctional institution follows a prioritization protocol in deciding which hepatitis C infected inmates should receive antiviral medications. (Doc. 254 at 16-18). Thus, the Corrections Defendants' contend, the right to receive antiviral medications is not clearly established. Upon close examination of the cases that the
43

Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 44 of 49
Corrections Defendants' cite, the Court finds that they do not establish that the right at issue in this matter is not clearly established. Given the on-point, binding Third Circuit case law discussed above, see Rouse, 182 F.3d at 197; Monmouth Cty. Corr. Inst. Inmates, 834 F.2d at 346-47, the Court need not look outside this circuit to determine if the right at issue is clearly established. Here, the Corrections Defendants only cite two cases from within this circuit to support their proposition. See Maskelunas v. Wexford Health Source, Inc., 2015
WL 6686709 (W.D. Pa. 2015); Allah v. Thomas, 2016 WL 3258422 (E.D. Pa. 2016). Even a
cursory review of both cases, however, reveals that they are significantly different from the case at hand in important respects.
In Maskelunas, a magistrate judge recommended granting a defendant's motion for summary judgement on Maskelunas's claim that he was denied treatment for his hepatitis C. Maskelunas, 2015 WL 6686709, at *1. Specifically, the magistrate judge concluded that there was no evidence in the record that the defendant had "any financial incentive to save money, or that countermanding treatment would in fact save money ... or that [the defendant] in fact concluded that countermanding treatment would save money and acted as a result of that conclusion." Id. This recommendation was adopted after Maskelunas failed to object to the magistrate judge's Report and Recommendation. 2015 WL 6686719, at *1 (2015).
In contrast, the motion before the court is a motion to dismiss, not a motion for summary judgment. As such, the Court must take as true Plaintiff's allegation that "[t]he
44

Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 45 of 49
sole basis for refusing to provide the anti-viral drugs to plaintiff is monetary cost" and that
there was "no medical justification for failing to provide the anti-viral drugs to the plaintiff."
(Doc. 245 at 1f1f 155-56). Accordingly, this cases falls squarely within Rouse and
Monmouth's holding that prison officials act with deliberate indifference when they "delay[ ]
necessary medical treatment based on a non-medical reason." Rouse, 182 F.3d at 197;
see also Monmouth Cty. Corr. Inst. Inmates, 834 F.2d at 346.7
In Allah, the Court granted an unopposed motion to dismiss Allah's claim that he was
being denied treatment for his hepatitis C. Allah, 2016 WL 3258422, at *1-*2. The Court
found that Allah failed to state an Eighth Amendment claim because "his Hepatitis C did not
require treatment prior to his incarceration, and his condition was not alleged to have
significantly deteriorated while he was in prison." Id. at *5. Nevertheless, the Third Circuit
reversed the dismissal, concluding "that the District Court misperceived Allah's allegations."
Allah v. Thomas, 679 F. App'x 216, 220 (3d Cir. 2017). According to the Circuit,
Allah alleged that he did not receive any treatment for his Hepatitis C condition, that he was not placed on a newly developed Hepatitis C treatment regimen solely because it was cost-prohibitive, and that he was suffering medical complications as a result. Accepting these allegations as true, we conclude that Allah plausibly alleged an Eighth Amendment violation.
7 Maskelunas is distinguishable for a number of other reasons as well. Most notably, Maskelunas was approved for treatment prior to the advent of antiviral medications. Maskelunas, 2015 WL 6686709, at *2. His treatment was put on hold, however, when the new antiviral medications became available. Id. Soon after his treatment was put on hold, Maskelunas was released from prison. Id. at *1-*2. Thus, the magistrate judge found that the defendant could not "be held liable for implementing (not giving) orders to hold off on a potentially less effective treatment with known risks and side-effects during the time these new treatments were being studied." Id. at *3. In contrast, Plaintiff claims here that he is being denied treatment under a protocol that determines which inmates receive the newly available antiviral medications.
45

Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 46 of 49

I

Id. (emphasis in original). Thus, Allah and Maske/unas provide no support for the

I

Corrections Defendants' contention that Plaintiff has failed to plead that a clearly

f

•

established constitutional right was violated by the Corrections Defendants.

Before moving on, the Court must note that it is deeply troubled that counsel for the

I

Corrections Defendants, Laura Neal, would direct this Court's attention to Allah to support

rt

her argument but fail to inform the Court that Allah has been overturned by the Third Circuit

on the very point on which she relied. As the Third Circuit issued its opinion in Allah over

six months prior to Attorney Neal filing her brief with this Court, Attorney Neal's omission is

inexcusable. At best, Attorney Neal's behavior is grossly negligent, irresponsible, and

completely unprofessional. At worst, her actions have violated the rules that govern an

attorney's conduct in the State of Pennsylvania. See PA. R. PROF'L CONDUCT 3.3 ("A lawyer

shall not knowingly ... fail to disclose to the tribunal legal authority in the controlling

jurisdiction known to the lawyer to be directly adverse to the position of the client and not

disclosed by opposing counsel."). Unfortunately, this is not an isolated incident, but part of

a pattern of unethical behavior on the part of Attorney Neal that the Court has observed

over the course of this litigation. As such, Attorney Neal is on notice that further unethical

behavior will not be tolerated by this Court and will result in sanctions.

Accordingly, the Court will deny the Corrections Defendants' Motion to Dismiss

based on their claim of qualified immunity. In doing so, however, the Court does not

46

Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 47 of 49

l

l

foreclose the possibility that a fully developed record may show that one or more of the

Corrections Defendants are entitled to qualified immunity on Plaintiff's claims.

4. Personal Involvement

The Corrections Defendants next argue that, with the exception of Defendant Noel,

Plaintiffs Fourth Amended Complaint fails to allege that the Corrections Defendants were

personally involved in the asserted violations. (Doc. 254 at 19-20). Specifically, Plaintiff

argues that Defendants Wetzel, Oppman, Silva, Kerestes, DelBalso, and Steinhart are not

responsible for treating Plaintiffs condition, as none of these Defendants were on the

hepatitis C treatment committee or played a role in determining whether Plaintiff should

receive DAA medication.

As discussed in reference to the Medical Defendants' Motion to Dismiss, to state a

claim under section 1983, "a plaintiff must plead that each Government-official defendant,

through the official's own individual actions, has violated the Constitution." Iqbal, 556 U.S.

at 676. That is, "a plaintiff must demonstrate a defendant's 'personal involvement in the

alleged wrongs."' Chavarriaga, 806 F.3d at 222 (quoting Rode, 845 at 1207). "A plaintiff

makes sufficient allegations of a defendant's personal involvement by describing the

defendant's participation in or actual knowledge of and acquiescence in the wrongful

conduct." Id. "Although a court can infer that a defendant had contemporaneous

knowledge of wrongful conduct from the circumstances surrounding a case, the knowledge

must be actual, not constructive." Id.

47

Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 48 of 49
The Court has already recited the allegations against the Corrections Defendants in the prior section. These allegations adequately plead the personal involvement of Defendants Wetzel, Oppman, Silva, Kerestes, DelBalso, and Steinhart in the development and/or enforcement of the hepatitis C policy as it pertains to Plaintiff. Accordingly, the Court will deny the Corrections Defendants' Motion to Dismiss on the basis of lack of personal involvement. a
5. Mootness Finally, the Corrections Defendants argue that Plaintiffs claims for injunctive relief related to his hepatitis C treatment are now moot because Plaintiff has been provided with DAA medications. (Doc. 254 at 20-21 ). Article Ill of the Constitution provides that the "judicial Power shall extend to ... Cases ... [and] to Controversies." U.S. CONST. art. Ill,§ 2. This grant of authority embodies a fundamental limitation restricting the federal courts to the adjudication of "actual, ongoing cases or controversies." Khodara Envtl., Inc., 237 F.3d at 193. The mootness doctrine is centrally concerned with a court's ability to grant effective relief. "If developments occur during the course of adjudication that eliminate a plaintiffs personal stake in the outcome of a suit or prevent a court from being able to grant the requested relief, the case must be dismissed as moot." B/anciak, 77 F.3d at 698-99.
8 The Corrections Defendants also argue that the "operative complaint" fails to allege any facts or claims against Defendant Assistant Medical Director and Defendant Infection Control Coordinator. (Doc. 254 at 20). This argument simply ignores the fact that this matter is now a consolidation of two actions. Plaintiff's Complaint, originally filed in Abu-Jamal 2, contains sufficient allegations against Defendant Assistant Medical Director and Defendant Infection Control Coordinator. (3:16-CV-2000, Doc. 1).
48

Case 3:15-cv-00967-RDM Document 272 Filed 05/10/18 Page 49 of 49

Here, the Corrections Defendants attempt to use an improper forum to advance

their mootness argument. While the Court is of course aware that it ordered that Plaintiff be

treated with DAA medications, the Court possesses no other information with respect to

how the Order has been carried out. Without information about whether or not Plaintiff has

been afforded a complete treatment and is now cured of hepatitis C, the Court has no way

of evaluating whether Plaintiff's claims for injunctive relief are moot.

Accordingly, the Court will deny the Corrections Defendants' Motion to Dismiss

Plaintiff's claims of injunctive relief.

VI. CONCLUSION

For the reasons outline above, the Court will deny the Medical Defendants' Motion to

I

Dismiss and grant in part and deny in part the Corrections Defendants' Motion to Dismiss.

l..

A separate order follows.

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 Abu-Jamal v. Kerestes, 779 Fed.Appx. 893 (2019)

779 Fed.Appx. 893 This case was not selected for publication in West’s
Federal Reporter. See Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also U.S.Ct. of Appeals 3rd
Cir. App. I, IOP 5.1, 5.3, and 5.7. United States Court of Appeals, Third Circuit.
Mumia ABU-JAMAL v.
John KERESTES, Former Superintendent State Correctional Institution Mahanoy; Theresa DelBalso, Superintendent State Correctional
Institution Mahanoy; Joseph Silva, DOC Director of Bureau of Health Care Services; Pennsylvania
Department of Corrections; John Wetzel, Secretary of Pennsylvania Department of Corrections; Dr. Paul Noel, Director of Clinical Service; Dr. Jay Cowan, Correct Care Solutions; Christopher Oppman, DOC Director of Bureau of Health Care Services; Dr. John Lisiak, SCI Mahanoy; Dr. Shaista Khanum, SCI Mahanoy; Scott Saxon, Physician’s Assistant, SCI Mahanoy; John Steinhart, SCI Mahanoy, Chief Health Care Administrator (District Court No. 3-15-cv-00967)
Mumia Abu-Jamal v.
John Wetzel, Secretary of Pennsylvania Department of Corrections; Dr. Paul Noel, Director of Clinical Service; Bureau of Health Care Services Assistant Medical Director; Bureau of
Health Care Services Infection Control Coordinator; Correct Care Solutions
Representative on the Hepatitis Treatment Committee; Correct Care Solutions; Joseph Silva, DOC Director of Bureau of Health Care Services; Treating Physician SCI Mahanoy (District Court
No. 3-16-cv-02000) John Wetzel, Paul Noel, Christopher Oppman, Joseph Silva, John Kerestes, Theresa DelBalso, John Steinhart, Bureau of Healthcare Services Assistant Medical Director, Bureau of Healthcare Services Infection Control Coordinator, Appellants
No. 18-2296 |
Submitted Under Third Circuit L.A.R. 34.1(a) July 12, 2019 |
1

(Filed: July 19, 2019)
Synopsis Background: Inmate brought an action against state prison and prison physicians alleging, among other claims, deprivation of his Eighth Amendment right to medical care for Hepatitis C, his skin condition, and hyperglycemia, and violations of his First Amendment right of association. The United States District Court for the Middle District of Pennsylvania, Robert D. Mariani, J., 2018 WL 2166052, denied prison’s motion to dismiss inmate’s fourth amended complaint based on qualified immunity, declined to convert the motion to dismiss to a motion for summary judgment, and declined to consider material beyond the pleadings. Prison appealed.
Holdings: The Court of Appeals, Shwartz, Circuit Judge, held that:
district court’s decision to decline to convert prison’s motion to dismiss to motion for summary judgment was not a final appealable order;
order denying prison’s motion to dismiss inmate’s First Amendment association claim for failure to exhaust administrative remedies was not a final appealable order; and
prison physicians were not entitled to qualified immunity from inmate’s claim that his Eighth Amendment rights to medical care were violated.
Affirmed in part and dismissed appeal in part.
Procedural Posture(s): On Appeal; Motion to Dismiss. *895 Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. No. 3-15-cv-00967 & 3-16-cv-02000), District Judge: Hon. Robert D. Mariani
Attorneys and Law Firms
Robert J. Boyle, Esq., New York, NY, Bret Grote, Esq., Abolitionist Law Center, Pittsburgh, PA, for Plaintiff Appellee
Vincent R. Mazeski, Esq., Pennsylvania Department of

Abu-Jamal v. Kerestes, 779 Fed.Appx. 893 (2019)
Corrections, Office of Chief Counsel, Mechanicsburg, PA, for Defendants - Appellants John E. Wetzel, Paul Noel, Christopher Oppman, Joseph Silva, John Kerestes, Theresa DelBalso, John Steinhart, Bureau of Healthcare Services Infection Control Coordinator, Bureau of Healthcare Services Assistant Medical Director
Caitlin J. Goodrich, Esq., Weber Gallagher Simpson Stapleton Fires & Newby, Philadelphia, PA, for Defendants - Appellants Correct Care Solutions Representatives, Shaista Khanum, John Lisiak, Scott Saxon Before: SHWARTZ, KRAUSE, and FUENTES, Circuit Judges.
OPINION*
SHWARTZ, Circuit Judge. *896 John Kerestes, Theresa DelBalso, Joseph Silva, John Wetzel, Dr. Paul Noel, Christopher Oppman, John Steinhart, the Bureau of Health Care Services Assistant Medical Director, and the Bureau of Health Care Service Infection Control Coordinator (collectively, the “Department Defendants”) appeal the District Court’s order (1) denying their motion to dismiss Plaintiff Mumia Abu-Jamal’s Fourth Amended Complaint (“FAC”), (2) declining to convert the motion to dismiss to a motion for summary judgment, and (3) declining to consider material beyond the pleadings. We will dismiss the appeal of the orders declining both to convert the motion and to consider factual material beyond the pleadings for lack of appellate jurisdiction, but affirm the order denying the Department Defendants’ motion to dismiss based on qualified immunity.
I
A1 2

1
Hepatitis C is a virus that affects liver cells. Individuals infected with Hepatitis C often develop chronic Hepatitis C, resulting in progressive liver inflammation and fibrosis (scarring) or cirrhosis (extreme scarring). These conditions affect liver function, and patients with chronic Hepatitis C suffer from anemia, diabetes, and rashes.
In 2013, new antiviral drugs, Harvoni and Sovaldi, were introduced to treat Hepatitis C. They have a ninety to ninety-five percent success rate, and the American Association for the Study of Liver Diseases and Center for Disease Control recommend that “everyone with chronic [H]epatitis C be treated with those anti-viral drugs irrespective of disease stage.” JA 3318.
The Pennsylvania Department of Corrections and Defendants Wetzel, Oppman, Noel, Kerestes, Steinhart, and Cowan adopted a new Hepatitis C treatment protocol in response to the new antiviral drugs. Under the policy, “only inmates with decompensated cirrhosis with bleeding are authorized to receive the anti-viral drugs.” JA 3320. The Hepatitis C Committee recommends whether an inmate with Hepatitis C will receive the antiviral treatment.
2
Abu-Jamal has been an inmate in Pennsylvania State Correctional Institute Mahoney for years. In 2012, Abu-Jamal tested positive for the Hepatitis C antibody. He developed a skin rash and increasing glucose levels, indicative of hyperglycemia. In March 2015, Abu-Jamal was rushed to the hospital after losing consciousness from extremely high glucose levels causing diabetic shock. Abu-Jamal’s discharge papers indicated a “guarded” prognosis and medical issues of “diabetes, new onset, encephalopathy secondary to hyperglycemia, dehydration, acute kidney injury, hyponatremia, hypokalemia, asymptomatic gallstones, skin rash, anemia and a history of [H]epatitis C.” JA 3324-25.

Abu-Jamal v. Kerestes, 779 Fed.Appx. 893 (2019)
In May 2015, Abu-Jamal was again taken to the hospital. He was denied all family and counsel visitation during that time. His blood work in the hospital indicated anemia, but the cause of the anemia and his *897 skin rash was undetermined. Although no Hepatitis C work-up was performed, a scan revealed “irregularities in the architecture of plaintiff’s liver, a sign of cirrhosis,” and his discharge report noted that he “might be a suitable candidate for [H]epatitis C treatment.” JA 3330.
Abu-Jamal initially saw some relief, but his skin condition worsened. He requested blood work to determine the cause of his condition and submitted a report from a physician who had visited him and who determined that “the skin condition was an extrahepatic manifestation of [H]epatitis C.” JA 3332. The blood work revealed a viral load indicating that Abu-Jamal has chronic and active Hepatitis C, with more than a 50% chance Abu-Jamal has cirrhosis and liver damage.
Abu-Jamal repeatedly asked that he be treated with Harvoni or Sovaldi. The Hepatitis C Committee determined that Abu-Jamal should not be treated with the antiviral medications. Abu-Jamal alleges that “[t]he sole basis for refusing to provide the anti-viral drugs to [Abu-Jamal] is monetary cost[,]” and “[t]here is no medical justification for” this refusal. JA 3338.

12(b)(6), or in the alternative for summary judgment based on the factual record developed at the preliminary injunction hearing.
The District Court granted in part and denied in part the Department Defendants’ motion. See generally Abu-Jamal v. Kerestes, No. 3:15-CV-967, 2018 WL 2166052 (M.D. Pa. May 10, 2018). First, the Court denied the Department Defendants’ request to convert their motion to dismiss to a motion for summary judgment because they failed to include a statement of undisputed material facts as required by Local Rule 56.1.2 Id. at *14. Second, the Court denied their motion to dismiss Abu-Jamal’s First Amendment claim based upon an alleged failure to comply with the Prison Litigation Reform Act’s (“PLRA”) exhaustion requirement, holding that a determination as to whether Abu-Jamal exhausted this claim required examination of facts beyond the pleadings and could not be resolved on a motion to dismiss. Id. at *15-16. Third, the Court held that the Department Defendants were not entitled to qualified immunity on Abu-Jamal’s Eighth Amendment claims because the pleadings alleged that the Department Defendants “violated a clearly established right by creating and/or enforcing a policy that denied necessary medical treatment to a suffering *898 inmate for non-medical reasons.” Id. at *19. The Department Defendants appeal.

B
In May 2015, Abu-Jamal filed suit in the Middle District of Pennsylvania, alleging constitutional claims against several defendants. Amended pleadings followed, adding new causes of action and defendants. Abu-Jamal also filed a motion for a preliminary injunction, which the District Court granted, directing the Department Defendants to treat Abu-Jamal with the antiviral drugs. See Abu-Jamal v. Wetzel, No. 3:16-CV-2000, 2017 WL 34700, at *20 (M.D. Pa. Jan. 3, 2017).
Abu-Jamal filed the FAC in August 2017, alleging, among other claims, deprivation of his Eighth Amendment right to medical care for Hepatitis C (Count I), his skin condition (Count II), and hyperglycemia (Count III), and violations of his First Amendment right of association (Count VII). The Department Defendants moved to dismiss under Federal Rule of Civil Procedure
3

II3
A The Department Defendants argue that the District Court erred in declining to convert their motion to dismiss to a motion for summary judgment and in not considering facts beyond the pleadings.
Our jurisdiction is limited to review of final orders, 28 U.S.C. § 1291, and “collateral orders,” which “finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred.” Johnson v.

Abu-Jamal v. Kerestes, 779 Fed.Appx. 893 (2019)
Jones, 515 U.S. 304, 310-11, 115 S.Ct. 2151, 132 L.Ed.2d 238 (1995) (citation omitted). We may also review orders where a disposition is “fundamental to the further conduct of the case.” Gillette v. Prosper, 858 F.3d 833, 840 (3d Cir. 2017) (quoting Gillespie v. U.S. Steel Corp., 379 U.S. 148, 153, 85 S.Ct. 308, 13 L.Ed.2d 199 (1964)).
The District Court’s decision to decline to convert the motion to dismiss to a motion for summary judgment based on the Department Defendants’ failure to comply with Local Rule 56.1 is a procedural decision that does not constitute a final or collateral order.4 The Court’s order does not address the merits of summary judgment or preclude the Department Defendants from bringing a future summary judgment motion that satisfies Local Rule 56.1.
Accordingly, we will dismiss the Department Defendants’ appeal in part for lack of jurisdiction.5
B
We also lack jurisdiction to consider the Department Defendants’ appeal of the District Court’s order denying their motion to dismiss Abu-Jamal’s First Amendment association claim for failure to exhaust administrative remedies.6
*899 The District Court determined that, although Abu-Jamal never exhausted the grievance procedures for this claim, his claim should not be dismissed for failure to exhaust. While administrative exhaustion can be decided based upon the pleadings, see, e.g., Ghana v. Holland, 226 F.3d 175, 180-81 (3d Cir. 2000), a court may conclude that facts are needed to determine whether administrative remedies were available, see 42 U.S.C. § 1997e(a); Brown v. Croak, 312 F.3d 109, 112-13 (3d Cir. 2002) (holding that, without discovery, there was insufficient evidence to determine whether plaintiff exhausted available administrative remedies and that available remedies must be “capable of use” or “at hand” (citation omitted)). Because the Court did not adjudicate the exhaustion issue, its order is not final. See M.A. ex rel. E.S. v. State-Operated Sch. Dist. of City of Newark, 344 F.3d 335, 343 (3d Cir. 2003) (“The denial of a motion to dismiss on the grounds of failure to exhaust administrative remedies is not, by any definition, a final
4

judgment that ends the litigation on the merits.”). Moreover, the order is not a collateral order warranting review, as the Department Defendants “are free to raise the issue again in a properly filed motion for summary judgment,” Abu-Jamal, 2018 WL 2166052, at *16, and their inability to obtain immediate review of the current order “[will not] cause significant harm,” Johnson, 515 U.S. at 311, 115 S.Ct. 2151.
Accordingly, we will dismiss the Department Defendants’ appeal of the order denying their motion to dismiss Abu-Jamal’s First Amendment claim for failure to exhaust for lack of appellate jurisdiction.
C
We next consider whether the Department Defendants were entitled to qualified immunity for Abu-Jamal’s Eighth Amendment claims.7 Qualified immunity shields government officials from civil liability on such claims “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Orsatti v. N.J. State Police, 71 F.3d 480, 483 (3d Cir. 1995) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)). To assess this defense, we ask: “(1) whether the facts alleged by the plaintiff show the violation of a constitutional right, and (2) whether the law was clearly established at the time of the violation.” Kelly v. Borough of Carlisle, 622 F.3d 248, 253 (3d Cir. 2010) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)).
“A clearly established right is one that is ‘sufficiently clear that every reasonable official *900 would have understood that what he is doing violates that right.’ ” Mullenix v. Luna, ––– U.S. ––––, 136 S. Ct. 305, 308, 193 L.Ed.2d 255 (2015) (per curiam) (quoting Reichle v. Howards, 566 U.S. 658, 664, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012)). “To be clearly established, the very action in question need not have previously been held unlawful. Rather, the contours of the right must be sufficiently clear such that the unlawfulness of the action is apparent in light of pre-existing law.” Dougherty v. Sch. Dist. of Phila., 772 F.3d 979, 993 (3d Cir. 2014) (internal quotation marks and citations omitted).

Abu-Jamal v. Kerestes, 779 Fed.Appx. 893 (2019)

An inmate’s Eighth Amendment rights are violated where a prison official acts (1) deliberately indifferent to (2) an inmate’s serious medical needs. Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987) (describing two-part standard established in Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)). While “mere disagreement as to the proper medical treatment [does not] support a claim of an [E]ighth [A]mendment violation,” a prison official has acted deliberately indifferent if he delays necessary medical treatment for non-medical reasons, id., opts for “an easier and less efficacious treatment of the inmate’s condition,” id. at 347 (internal quotation marks omitted), or “prevent[s] an inmate from receiving recommended treatment for serious medical needs,” id.

treatment for purely cost and non-medical reasons.8
Because Abu-Jamal alleged that he has a serious medical condition and was denied appropriate treatment for a nonmedical reason, the District Court properly held that the FAC contained sufficient allegations to conclude that the Department Defendants were deliberately indifferent to Abu-Jamal’s serious medical needs in violation of his clearly established Eighth Amendment right to medical care.9
*901 For these reasons, we will affirm the District Court’s order denying the motion to dismiss based on qualified immunity.

At the time of the relevant events, it was clearly

established that denying particular treatment to an inmate

who indisputably warranted that treatment for nonmedical

reasons would violate the Eighth Amendment. See id. at

346-47. Despite the Department Defendants’ framing,

III

Abu-Jamal’s complaint does not rest on the appropriateness of the policy itself or a general right to be treated with the new antiviral drugs. Rather, Abu-Jamal

For the foregoing reasons, we will dismiss in part and affirm in part.

pleads that he had chronic Hepatitis C and cirrhosis, his

medical condition was worsening, he was a candidate for the antiviral drugs, there was consensus among the

All Citations

medical community that “everyone with chronic [H]epatitis C be treated with those antiviral drugs

779 Fed.Appx. 893

irrespective of disease stage,” JA 3318, and despite all of

this, the Department Defendants denied him antiviral drug

Footnotes

*

This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7, does not constitute binding precedent.

1

The facts described herein are drawn from the FAC, the operative complaint on appeal.

2

The Local Rules provide that “[a] motion for summary judgment filed pursuant to [Federal Rule of Civil Procedure

56], shall be accompanied by a separate, short and concise statement of the material facts, in numbered

paragraphs, as to which the moving party contends there is no genuine issue to be tried.” M.D. Pa. Civ. R. 56.1.

3

The District Court had jurisdiction under 28 U.S.C. § 1331.

4

The Department Defendants assert that the conversion is inextricably intertwined with the questions of qualified

immunity and exhaustion because each turns on facts within their purported summary judgment record. Courts,

however, may consider qualified immunity and exhaustion questions based upon the pleadings. See, e.g., Ashcroft v.

Iqbal, 556 U.S. 662, 673, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (assessing the sufficiency of the pleadings under

Rule 8 to determine whether qualified immunity was appropriate). Here, the District Court properly assessed the

sufficiency of the factual allegations in the pleadings at the Rule 12(b)(6) stage to determine whether dismissal was

5

Abu-Jamal v. Kerestes, 779 Fed.Appx. 893 (2019)

appropriate. If the Department Defendants renew their summary judgment motion, then the Court will review the record to determine whether there are undisputed material facts that entitle the Department Defendants to relief on either of these defenses.

5

Moreover, even assuming we had jurisdiction to review the District Court’s decision not to covert the Department

Defendants’ motion to one for summary judgment, we review “a district court’s application and interpretation of its

own local rules ... for abuse of discretion.” Weitzner v. Sanofi Pasteur Inc., 909 F.3d 604, 613 (3d Cir. 2018). Here,

the District Court’s explanation for requiring a Rule 56.1-compliant statement of undisputed facts—i.e., that without

the statement the Court was “at a loss” as to what facts the Department Defendants deemed disputed, JA 37—was

reasonable and did not constitute an abuse of discretion. See id. at 613-14.

6

Under the PLRA, “[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). Such failure to exhaust is an

affirmative defense for which the defendant bears the burden of proof. Small v. Camden County, 728 F.3d 265, 268

(3d Cir. 2013).

7

“[A] district court order denying a motion to dismiss based on qualified immunity is appealable under the collateral

order doctrine,” and “[w]e exercise de novo review ... as it involves a pure question of law.” George v. Rehiel, 738

F.3d 562, 571 (3d Cir. 2013) (citation omitted); see also Iqbal, 556 U.S. at 672, 129 S.Ct. 1937 (“[A] district court’s

order rejecting qualified immunity at the motion-to-dismiss stage of a proceeding is a ‘final decision’ within the

meaning of § 1291.”). To survive such a motion, “a complaint must contain sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (internal quotation

mark and citation omitted). We disregard “a pleading’s legal conclusions” but “assume all remaining factual

allegations to be true” and construe them in the light most favorable to the plaintiff. Connelly v. Lane Constr. Corp.,

809 F.3d 780, 790 (3d Cir. 2016). In addition to the factual allegations in the complaint, we may consider

“undisputedly authentic documents if the complainant’s claims are based upon these documents.” Mayer v.

Belichick, 605 F.3d 223, 230 (3d Cir. 2010).

8

While we are obligated to define the clearly established right with specificity for the purposes of qualified immunity,

our analysis here need not be tethered to the propriety of the Hepatitis C policy because Abu-Jamal’s claim is

predicated on the allegation that he was denied treatment for nonmedical reasons.

9

The Department Defendants argue that there was not consensus on treatment during part of the relevant period

and that their use of a “treatment protocol” to prioritize recipients of the anti-viral drug based on the severity of

their condition was not violative of the Eighth Amendment given the “vast population of Hepatitis C patients” and

the absence of “the infrastructure ... to treat all patients immediately.” Appellants’ Br. at 35, 42. Our ruling here

should not be read to rule out the possibility that the Department Defendants may, at a future stage of the

litigation, be able to establish either a lack of medical consensus at relevant points as to the appropriate procedures

surrounding Hepatitis C treatment or that there were “[ ]medical reasons” for adherence to the protocol, e.g., that

prioritization was necessary given a limited supply of the anti-viral drugs. Monmouth Cty. Corr. Inst. Inmates, 834

F.2d at 346. However, as we now address qualified immunity only in the context of a motion to dismiss, we are

bound by the allegations in the complaint and leave the factual basis for the denial of treatment to be developed on

remand.

6

Abu-Jamal v. Kerestes, 779 Fed.Appx. 893 (2019) 7

 
 United States District Court Middle District of Pennsylvania (Scranton) CIVIL DOCKET FOR CASE #: 3:15-cv-00967-RDM

Abu-Jamal et al v. Kerestes et al Assigned to: Honorable Robert D. Mariani Related Case: 3:16-cv-02000-RDM Cause: 42:1983 Prisoner Civil Rights

Date Filed: 05/18/2015 Jury Demand: Both Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question

Plaintiff Mumia Abu-Jamal

represented by Bret D. Grote Abolitionist Law Center PO Box 8654 Pittsburgh, PA 15221 412-654-9070 Email: bretgrote@abolitionistlawcenter.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff
Bret Grote TERMINATED: 08/16/2016

Robert J. Boyle Robert J. Boyle, Attorney at Law 277 Broadway Suite 1501 New York, NY 10007 212-431-0229 Email: rjboyle55@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Bret D. Grote (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Plaintiff

Robert J. Boyle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Robert Boyle TERMINATED: 08/16/2016
V. Defendant Superintendent John Kerestes State Correctional Institution Mahanoy
Defendant Geisinger Medical Center TERMINATED: 08/16/2016

represented by Bret D. Grote (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Robert J. Boyle (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Laura J. Neal Chief Counsel's Office Pennsylvania Dept of Corrections 1920 Technology Parkway Mechanicsburg, PA 17050 717-728-7763 Fax: 17179752217 Email: lneal@pa.gov ATTORNEY TO BE NOTICED
Vincent R Mazeski Chief Counsel's Office Pennsylvania Department of Corrections 1920 Technology Parkway Mechanicsburg, PA 17050 717-728-7763 Fax: 717-728-0307 Email: vmazeski@pa.gov ATTORNEY TO BE NOTICED
represented by Daniel T. Brier Myers Brier & Kelly, LLP 425 Spruce Street Suite 200 Scranton, PA 18503 570-342-6100 Email: dbrier@mbklaw.com ATTORNEY TO BE NOTICED
John B. Dempsey

Defendant Christopher Oppman
Defendant John Lisiak, M.D.

MYERS, BRIER & KELLY, LLP 425 Spruce Street Suite 200 Scranton, PA 18503 570-342-6100 Email: jdempsey@mbklaw.com ATTORNEY TO BE NOTICED
Suzanne Conaboy Myers, Brier & Kelly, LLP 425 Spruce Street Suite 200 Scranton, PA 18503 570-342-6100 Email: sconaboy@mbklaw.com ATTORNEY TO BE NOTICED
represented by Laura J. Neal (See above for address) ATTORNEY TO BE NOTICED
Vincent R Mazeski (See above for address) ATTORNEY TO BE NOTICED
represented by Caitlin J Goodrich Weber Gallagher Simpson Stapleton Fires & Newby, LLP Four PPG Place 5th Floor Pittsburgh, PA 15222 412-281-4541 Email: cgoodrich@wglaw.com ATTORNEY TO BE NOTICED
Laura J. Neal (See above for address) ATTORNEY TO BE NOTICED
Noah E Katz Geisinger Department of Legal Services (MC 33-52) 660 Baltimore Drive, Suite 125 Wilkes-Barre, PA 18702

Defendant Shaista Khanum
Defendant Scott Saxon

570-808-5802 Email: nekatz@geisinger.edu TERMINATED: 01/09/2020 ATTORNEY TO BE NOTICED
Samuel H. Foreman Weber, Gallagher, Simpson, Stapleton, Fires & Newby, LLP Four PPG Place 5th Floor Pittsburgh, PA 15222 (412) 281-4541 Fax: (412) 281-4547 Email: sforeman@wglaw.com ATTORNEY TO BE NOTICED
represented by Caitlin J Goodrich (See above for address) ATTORNEY TO BE NOTICED
Laura J. Neal (See above for address) ATTORNEY TO BE NOTICED
Noah E Katz (See above for address) TERMINATED: 01/09/2020 ATTORNEY TO BE NOTICED
Samuel H. Foreman (See above for address) ATTORNEY TO BE NOTICED
represented by Caitlin J Goodrich (See above for address) ATTORNEY TO BE NOTICED
Laura J. Neal (See above for address) ATTORNEY TO BE NOTICED
Noah E Katz (See above for address) TERMINATED: 01/09/2020

Defendant John Steinhart
Defendant Theresa Delbalso
Defendant Joseph Silva
Defendant John Wetzel
Defendant Dr. Paul Noel

ATTORNEY TO BE NOTICED
Samuel H. Foreman (See above for address) ATTORNEY TO BE NOTICED
represented by Laura J. Neal (See above for address) ATTORNEY TO BE NOTICED
Vincent R Mazeski (See above for address) ATTORNEY TO BE NOTICED
represented by Laura J. Neal (See above for address) ATTORNEY TO BE NOTICED
Vincent R Mazeski (See above for address) ATTORNEY TO BE NOTICED
represented by Laura J. Neal (See above for address) ATTORNEY TO BE NOTICED
Vincent R Mazeski (See above for address) ATTORNEY TO BE NOTICED
represented by Laura J. Neal (See above for address) ATTORNEY TO BE NOTICED
Vincent R Mazeski (See above for address) ATTORNEY TO BE NOTICED
represented by Laura J. Neal (See above for address)

Defendant Department Of Corrections Of Pennsylvania
Defendant Bureau of Health Care Services Assistant Medical Director member of Hepatitis C Treatment Committee
Defendant Bureau of Health Care Services Infection Control Coordinator member of Hepatitis C Treatment Committee

ATTORNEY TO BE NOTICED
Vincent R Mazeski (See above for address) ATTORNEY TO BE NOTICED
represented by Laura J. Neal (See above for address) ATTORNEY TO BE NOTICED
Vincent R Mazeski (See above for address) ATTORNEY TO BE NOTICED
represented by Maria G. Macus Chief Counsel's Office Pennsylvania Department of Corrections 1920 Technology Parkway Mechanicsburg, PA 17050 717-728-7763 Email: mmacus-bry@pa.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura J. Neal (See above for address) ATTORNEY TO BE NOTICED
Vincent R Mazeski (See above for address) ATTORNEY TO BE NOTICED
represented by Maria G. Macus (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Laura J. Neal (See above for address) ATTORNEY TO BE NOTICED
Vincent R Mazeski

Defendant Correct Care Solutions Representative member of Hepatitis C Treatment Committee Defendant Correct Care Solutions
Mediator Mediator TERMINATED: 10/27/2017
Prisoner Litigation Settlement Program PLSP AG and DOC Contacts

(See above for address) ATTORNEY TO BE NOTICED
represented by Laura J. Neal (See above for address) ATTORNEY TO BE NOTICED
represented by Caitlin J Goodrich (See above for address) ATTORNEY TO BE NOTICED
Laura J. Neal (See above for address) ATTORNEY TO BE NOTICED
Samuel H. Foreman (See above for address) ATTORNEY TO BE NOTICED
represented by Frank J. Lavery , Jr. Lavery Law P.O. Box 1245 225 Market Street Suite 304 Harrisburg, PA 17108-1245 717-233-6633 Email: flavery@laverylaw.com TERMINATED: 01/08/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kenneth L. Joel Office of General Counsel 333 Market Street 17th Floor Harrisburg, PA 17101 717-787-9348 Fax: 717-787-1788 Email: kennjoel@pa.gov TERMINATED: 01/29/2018

Amicus Jay Cowan

LEAD ATTORNEY ATTORNEY TO BE NOTICED
Timothy A. Holmes Chief Counsel's Office Pennsylvania Department of Corrections 1920 Technology Parkway Mechanicsburg, PA 17050 (717) 728-7763 Fax: 17179752217 Email: tholmes@pa.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Caitlin J Goodrich (See above for address) ATTORNEY TO BE NOTICED
Laura J. Neal (See above for address) ATTORNEY TO BE NOTICED
Samuel H. Foreman (See above for address) ATTORNEY TO BE NOTICED

Date Filed 05/18/2015
05/18/2015
05/18/2015

# Docket Text
1 COMPLAINT against Geisinger Medical Center, John Kerestes ( Filing fee $400, Receipt Number 0314-3438320), filed by Bret Grote, Mumia Abu-Jamal, Robert Boyle.(ao) (Additional attachment(s) added on 5/18/2015: # 1 Civil Cover Sheet) (ao). (Entered: 05/18/2015)
2 MOTION for Preliminary Injunction , MOTION for Temporary Restraining Order by Mumia Abu-Jamal, Robert Boyle, Bret Grote. (Attachments: # 1 Memo, # 2 Exhibit(s), # 3 Exhibit(s))(Grote, Bret) (Entered: 05/18/2015)
3 Summons Issued as to Geisinger Medical Center, John Kerestes and provided TO ATTORNEY ELECTRONICALLY VIA ECF for service on Defendant(s)in the manner prescribed by Rule 4 of the Federal Rules of Civil Procedure. (NOTICE TO ATTORNEYS RECEIVING THE SUMMONS ELECTRONICALLY: You must print the summons and the attachment when you receive it in your e-mail and serve them with

05/18/2015
05/18/2015 05/18/2015 05/18/2015 05/18/2015
05/19/2015 05/19/2015 05/19/2015
05/20/2015 05/26/2015 05/28/2015 05/29/2015

the complaint on all defendants in the manner prescribed by Rule 4 of the Federal Rules of Civil Procedure). (Attachments: # 1 Summons Packet) (ao) (Entered: 05/18/2015)
4 CERTIFICATE OF SERVICE by Mumia Abu-Jamal, Robert Boyle, Bret Grote re 2 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order , 1 Complaint (Grote, Bret) (Entered: 05/18/2015)
5 NOTICE of Appearance by Daniel T. Brier on behalf of Geisinger Medical Center. (Brier, Daniel) (Entered: 05/18/2015)
6 NOTICE of Appearance by John B. Dempsey on behalf of Geisinger Medical Center. (Dempsey, John) (Entered: 05/18/2015)
7 NOTICE of Appearance by Suzanne Conaboy on behalf of Geisinger Medical Center. (Conaboy, Suzanne) (Entered: 05/18/2015)
8 MOTION to Appear Pro Hac Vice - Attorney Robert Boyle is seeking special admission. Filing fee $ 50, receipt number 0314-3439071. by Mumia Abu-Jamal, Robert Boyle, Bret Grote.(Grote, Bret) (Entered: 05/18/2015)
9 ORDER granting 8 Motion to Appear Pro Hac Vice for Robert Boyle. Signed by Honorable Robert D. Mariani on 5/19/15 (jfg) (Entered: 05/19/2015)
DOCKET ANNOTATION: Robert J Boyle is currently registered with the NY state bar. (lh) (Entered: 05/19/2015)
10 COURT REPORTER NOTES OF PROCEEDINGS filed by K. Yeager of Teleconference Re: Preliminary Injunction before Judge Mariani on 5/19/15. In accordance with 28 U.S.C. Section 753(b), I certify that these original notes are a true and correct record of proceedings in the United States District Court for the Middle District of PA before Judge Mariani on 5/19/15. By s/ K. Yeager. (Court Reporter Notes are viewable by court staff only). (cr) (Entered: 05/19/2015)
12 STATUS REPORT by Mumia Abu-Jamal, Robert Boyle, Bret Grote. (Grote, Bret) (Entered: 05/20/2015)
13 MOTION to Withdraw 2 MOTION for Preliminary Injunction MOTION for Temporary Restraining Order by Mumia Abu-Jamal, Robert Boyle, Bret Grote.(Grote, Bret) (Entered: 05/26/2015)
DOCKET ANNOTATION: This case has been referred to Magistrate Judge Mehalchick (jw) (Entered: 05/28/2015)
14 NOTICE of Appearance by Laura J. Neal on behalf of John Kerestes (Neal, Laura) (Entered: 05/29/2015)

05/29/2015 05/29/2015 06/01/2015 06/19/2015 06/19/2015 07/20/2015 07/24/2015
08/03/2015 08/09/2015 08/24/2015 08/24/2015

DOCKET ANNOTATION: Doc #15 was deleted by the Scranton Clerk's Office as it was a duplicate of Doc #14, Attorney Neal's entry of appearance. (jw) (Entered: 05/29/2015)
15 WAIVER OF SERVICE Returned by John Kerestes. John Kerestes waiver sent on 5/18/2015, answer due 7/17/2015. (Neal, Laura) (Entered: 05/29/2015)
16 WAIVER OF SERVICE Returned by Bret Grote, Mumia Abu-Jamal, Robert Boyle. Geisinger Medical Center waiver sent on 5/20/2015, answer due 7/20/2015. (Grote, Bret) (Entered: 06/01/2015)
17 NOTICE of Voluntary Dismissal by Robert Boyle (Boyle, Robert) (Entered: 06/19/2015)
18 NOTICE of Voluntary Dismissal by Bret Grote (Grote, Bret) (Entered: 06/19/2015)
19 STIPULATION Extending Time To Move/Answer by Mumia AbuJamal. (Attachments: # 1 Proposed Order)(Boyle, Robert) (Entered: 07/20/2015)
20 Order approving re 19 Stipulation. IT IS HEREBY ORDERED that the Stipulation is APPROVED, and the defendants time to answer or otherwise move in response shall be extended until the later of fourteen (14) days following the filing of Plaintiffs amended complaint, whether by agreement of the parties or order of Court, or fourteen (14) days following the Courts denial of Plaintiffs motion for leave to file an amended complaint. Signed by Magistrate Judge Karoline Mehalchick on 7/24/2015. (cw) (Entered: 07/24/2015)
21 First MOTION to Amend/Correct 1 Complaint by Mumia Abu-Jamal. (Attachments: # 1 Exhibit(s), # 2 Exhibit(s))(Grote, Bret) (Entered: 08/03/2015)
22 BRIEF IN SUPPORT re 21 First MOTION to Amend/Correct 1 Complaint filed by Mumia Abu-Jamal.(Grote, Bret) (Entered: 08/09/2015)
23 MOTION for Preliminary Injunction by Mumia Abu-Jamal.(Boyle, Robert) (Entered: 08/24/2015)
24 AFFIDAVIT in Support re 23 MOTION for Preliminary Injunction Declaration of Robert Boyle filed by Mumia Abu-Jamal. (Attachments: # 1 Exhibit(s) Medical Records, # 2 Exhibit(s) AASLD Recomendations, # 3 Exhibit(s) counsel letters, # 4 Exhibit(s) Harris Report, # 5 Exhibit(s) BOP protocol)(Boyle, Robert) (Entered: 08/24/2015)

08/24/2015 08/24/2015 08/24/2015 08/26/2015
08/28/2015 08/31/2015
08/31/2015 08/31/2015 09/02/2015 09/03/2015 09/08/2015 09/09/2015

25 AFFIDAVIT in Support re 23 MOTION for Preliminary Injunction Declaration of Mumia Abu Jamal filed by Mumia AbuJamal.(Boyle, Robert) (Entered: 08/24/2015)
26 AFFIDAVIT in Support re 23 MOTION for Preliminary Injunction Declaration of Joseph Harris, M.D. filed by Mumia AbuJamal.(Boyle, Robert) (Entered: 08/24/2015)
27 BRIEF IN SUPPORT of Motion for Preliminary Injunction re 23 MOTION for Preliminary Injunction filed by Mumia Abu-Jamal.(Boyle, Robert) (Entered: 08/24/2015)
28 BRIEF IN OPPOSITION re 21 First MOTION to Amend/Correct 1 Complaint filed by John Kerestes. (Attachments: # 1 Exhibit(s) West Declaration, # 2 Exhibit(s) Hinman Declaration)(Neal, Laura) (Entered: 08/26/2015)
29 MOTION to Strike 28 Brief in Opposition by Mumia Abu-Jamal. (Attachments: # 1 Brief in Support)(Grote, Bret) (Entered: 08/28/2015)
DOCKET ANNOTATION: Attorney Grote is asked to refile his brief in support of the motin to strike, which is attached to the motion. The brief in support category in ECF is found under responses and replies. (cw) (Entered: 08/31/2015)
30 BRIEF IN SUPPORT re 29 MOTION to Strike 28 Brief in Opposition filed by Mumia Abu-Jamal.(Grote, Bret) (Entered: 08/31/2015)
31 BRIEF IN OPPOSITION re 29 MOTION to Strike 28 Brief in Opposition filed by John Kerestes. (Attachments: # 1 Unpublished Opinion(s) Keys v Carroll)(Neal, Laura) (Entered: 08/31/2015)
32 MOTION to Withdraw 29 MOTION to Strike 28 Brief in Opposition by Mumia Abu-Jamal.(Grote, Bret) (Entered: 09/02/2015)
33 ORDER granting 32 Motion to Withdraw ; withdrawing 29 Motion to Strike Signed by Magistrate Judge Karoline Mehalchick on 9/3/2015 (cw) (Entered: 09/03/2015)
34 BRIEF IN OPPOSITION re 23 MOTION for Preliminary Injunction filed by Geisinger Medical Center. (Attachments: # 1 Exhibit(s) Exhibit A)(Dempsey, John) (Entered: 09/08/2015)
35 REPLY BRIEF re 21 First MOTION to Amend/Correct 1 Complaint filed by Mumia Abu-Jamal.(Grote, Bret) (Entered: 09/09/2015)

09/09/2015 09/09/2015 09/10/2015
09/18/2015
10/02/2015 10/02/2015 10/07/2015 10/13/2015 10/23/2015 10/23/2015

36 AFFIDAVIT in Support re 21 First MOTION to Amend/Correct 1 Complaint filed by Mumia Abu-Jamal.(Grote, Bret) (Entered: 09/09/2015)
37 AFFIDAVIT in Support re 21 First MOTION to Amend/Correct 1 Complaint filed by Mumia Abu-Jamal. (Attachments: # 1 Exhibit(s), # 2 Exhibit(s), # 3 Exhibit(s), # 4 Exhibit(s))(Grote, Bret) (Entered: 09/09/2015)
38 BRIEF IN OPPOSITION re 23 MOTION for Preliminary Injunction filed by John Kerestes. (Attachments: # 1 Exhibit(s), # 2 Exhibit(s), # 3 Exhibit(s), # 4 Exhibit(s), # 5 Unpublished Opinion(s), # 6 Unpublished Opinion(s), # 7 Unpublished Opinion(s), # 8 Unpublished Opinion(s), # 9 Unpublished Opinion(s), # 10 Unpublished Opinion(s), # 11 Unpublished Opinion(s))(Neal, Laura) (Entered: 09/10/2015)
39 REPORT AND RECOMMENDATIONS re 23 MOTION for Preliminary Injunction filed by Mumia Abu-Jamal - Based on the foregoing, it is respectfully recommended that Abu-Jamals motion for preliminary injunctive relief (Doc. 23), be DENIED. Objections to R&R due by 10/5/2015. Signed by Magistrate Judge Karoline Mehalchick on 9/18/2015. (cw) (Entered: 09/18/2015)
40 MOTION for Extension of Time to to File Objections to Report and Recommendation by Mumia Abu-Jamal.(Grote, Bret) (Entered: 10/02/2015)
41 ORDER upon consideration of the foregoing motion, it is hereby ordered that any objections to the Magistrate Judge's September 18, 2015 Report and Recommendation shall be ftled on or before October 7,2015.Signed by Honorable Robert D. Mariani on 10/2/15 (jfg) (Entered: 10/02/2015)
42 OBJECTION to 39 Report and Recommendations . (Attachments: # 1 Declaration, # 2 Declaration, # 3 Declaration, # 4 Declaration, # 5 Exhibit(s), # 6 Exhibit(s), # 7 Exhibit(s), # 8 Exhibit(s))(Grote, Bret) (Entered: 10/07/2015)
43 Supplement by Mumia Abu-Jamal. to 21 First MOTION to Amend/Correct 1 Complaint . (Attachments: # 1 Exhibit(s))(Grote, Bret) (Entered: 10/13/2015)
44 MOTION for Discovery by Mumia Abu-Jamal.(Grote, Bret) (Entered: 10/23/2015)
45 DECLARATION by Mumia Abu-Jamal re 44 MOTION for Discovery Declaration of Robert Boyle in Support of Motion for Discovery. (Attachments: # 1 Exhibit(s), # 2 Exhibit(s), # 3 Exhibit(s),

10/23/2015 10/26/2015 11/05/2015 11/05/2015 11/06/2015
11/06/2015 11/09/2015 11/11/2015 11/12/2015
11/16/2015 11/23/2015

# 4 Exhibit(s), # 5 Exhibit(s), # 6 Exhibit(s))(Grote, Bret) (Entered: 10/23/2015)
46 BRIEF IN SUPPORT re 44 MOTION for Discovery filed by Mumia Abu-Jamal.(Grote, Bret) (Entered: 10/23/2015)
47 REPLY BRIEF re 39 REPORT AND RECOMMENDATIONS re 23 MOTION for Preliminary Injunction filed by Mumia AbuJamal filed by John Kerestes.(Neal, Laura) (Entered: 10/26/2015)
48 REPLY BRIEF re 23 MOTION for Preliminary Injunction filed by Mumia Abu-Jamal.(Grote, Bret) (Entered: 11/05/2015)
49 Letter from Plaintiff's Counsel Requesting Oral Argument. (Grote, Bret) (Entered: 11/05/2015)
50 ORDER:THAT oral argument shall be held on Friday, December 11, 2015, at 2:00 p.m. in the William J. Nealon Federal Building, Scranton, Pa. in acourtroom to be designated by the Clerk of Court. Counsel can obtain information on courtroom assignments by contacting the Clerk's office the Friday before the scheduled appearance. Signed by Honorable Robert D. Mariani on 11/6/15. (jfg) (Entered: 11/06/2015)
51 BRIEF IN OPPOSITION re 44 MOTION for Discovery filed by Geisinger Medical Center.(Dempsey, John) (Entered: 11/06/2015)
52 BRIEF IN OPPOSITION re 44 MOTION for Discovery filed by John Kerestes.(Neal, Laura) (Entered: 11/09/2015)
53 Letter from Robert J. Boyle requesting rescheduling of oral argument. (Boyle, Robert) (Entered: 11/11/2015)
54 ORDER: THAT oral argument in the above-captioned case previously scheduled for Friday, December 11, 2015, at 2:00 p.m., has been RESCHEDULED to Friday, December 18, 2015, at 10:30 a.m. in the William J. Nealon Federal Building, Scranton, Pa. The oral argument will be held in acourtroom to be designated by the Clerk of Court. Counsel can obtain information on courtroom assignments by contacting the Clerk's office the Friday before the scheduled appearance. Signed by Honorable Robert D. Mariani on 11/12/15. (jfg) (Entered: 11/12/2015)
55 REPLY BRIEF re 44 MOTION for Discovery filed by Mumia AbuJamal.(Grote, Bret) (Entered: 11/16/2015)
56 ORDER denying in part 21 Motion to Amend/Correct Signed by Magistrate Judge Karoline Mehalchick on 11/23/2015 (cw) (Entered: 11/23/2015)

11/24/2015 11/24/2015 12/01/2015
12/02/2015 12/07/2015

57 AMENDED COMPLAINT First Amended and Supplemental Complaint against All Defendants, filed by Mumia Abu-Jamal.(Grote, Bret) (Entered: 11/24/2015)
59 Summons Issued as to All Defendants and provided TO ATTORNEY ELECTRONICALLY VIA ECF for service on Defendant(s)in the manner prescribed by Rule 4 of the Federal Rules of Civil Procedure. (NOTICE TO ATTORNEYS RECEIVING THE SUMMONS ELECTRONICALLY: You must print the summons and the attachment when you receive it in your e-mail and serve them with the AMENDED COMPLAINT on all defendants in the manner prescribed by Rule 4 of the Federal Rules of Civil Procedure). (Attachments: # 1 Summons Packet) (lh) (Entered: 11/24/2015)
60 ORDER:THAT the oral argument previously scheduled for Friday, December 18,2015, at 10:30 a.m. is RESCHEDULED to Friday, December 18,2015, at 9:30 a.m. in the William J. Nealon Federal Building, Scranton, Pa. Counsel for the parties shall be prepared to offer documentary or testimonial evidence and argument as to: 1.The effect, if any, of the Magistrate Judge's Order (Doc. 56) denying without prejudice Plaintiffs Motion for Leave to Amend (Doc. 21) and directing Plaintiff "to re-file his proposed amended complaint now that the administrative remedy process appears to have been exhausted with respect to Plaintiffs medical care claims" on the Magistrate Judge's Report and Recommendation (Doc. 39) denying Plaintiffs Motion for Preliminary Injunction (Doc. 23). 2. Whether the Plaintiffs Hepatitis C, acondition conceded by Counsel for Defendant Kerestes on the abovementioned telephone conference to be present in Plaintiff, has been manifested by the symptoms described in Plaintiffs First Amended and Supplemental Complaint (Doc. 57 at mr 30-35, 38, 41, 59-60, 65). 3. Whether Defendant Kerestes has failed to address the Plaintiffs Hepatitis Cand its symptoms or has addressed them in a manner showing deliberate indifference or medical malpractice as alleged in Paragraphs 30, 34, 36-37,43, 56, 58-61, 64-66, and 70 of Plaintiffs First Amended and Supplemental Complaint (Doc. 57). 4. Any other factual or legal issues which bear upon whether Plaintiff has satisfied the prerequisites for the issuance of injunctive relief under Federal Rule of Civil Procedure65. Signed by Honorable Robert D. Mariani on 12/1/15. (jfg) (Entered: 12/01/2015)
62 NOTICE of Appearance by Vincent R. Mazeski on behalf of John Kerestes. (Mazeski, Vincent) (Entered: 12/02/2015)
63 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Geisinger Medical Center's Motion to Dimiss Plaintiff's First Amended and Supplemental Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) by Geisinger Medical Center. (Attachments: # 1 Proposed

12/07/2015 12/07/2015 12/08/2015
12/14/2015 12/16/2015 12/16/2015 12/17/2015
12/17/2015

Order)(Dempsey, John) Modified on 3/31/2016 (jw). (Entered: 12/07/2015)
64 APPEAL OF MAGISTRATE JUDGE DECISION to District Court by John Kerestes re 56 Order on Motion to Amend/Correct (Neal, Laura) (Entered: 12/07/2015)
65 Appellant's BRIEF by John Kerestes. Appellee Brief due by 12/21/2015. (Attachments: # 1 Unpublished Opinion(s) Attach A Mitchell v Daupin Cty Cmmsrs, # 2 Unpublished Opinion(s) Attach B Mack v Wetzel)(Neal, Laura) (Entered: 12/07/2015)
66 SCHEDULING ORDER: Oral Argument set for 12/18/2015 09:30 AM before Honorable Robert D. Mariani. The Court notes that Defendant Kerestes has submitted a Brief in Support of his Appeal (Doc. 65) on December 7, 2015. The Court wishes to receive Plaintiff's Brief in Opposition on or before Tuesday, December 15, 2015. However, should Plaintiff be unable to submit a brief within the above expedited time frame, he may file his brief after the conclusion of the hearing and oral argument on December 18, 2015 and within the fourteen day period prescribed by Local Rule 72.2. Defendant Kerestes reply brief, if any, shall be filed within accordance wsith aforesaid Local Rule 72.2.Signed by Honorable Robert D. Mariani on 12/8/15. (lh) (Entered: 12/08/2015)
67 PLAINTIFF'S REPLY BRIEF In Opposition by Mumia Abu-Jamal as to 64 Appeal of Magistrate Judge Decision to District Court. (Grote, Bret) (Entered: 12/14/2015)
68 Letter from Counsel for Plaintiff . (Attachments: # 1 Proposed Order)(Grote, Bret) (Entered: 12/16/2015)
69 Letter from Defendant Kerestes in Response to Plaintiff's Letter . (Attachments: # 1 Exhibit(s) Rhodes v. Robinson, 621 F.3d 1002 (2010))(Neal, Laura) (Entered: 12/16/2015)
70 COURT REPORTER NOTES OF PROCEEDINGS filed by K. Yeager of Teleconference before Judge Mariani on 12/17/15. In accordance with 28 U.S.C. Section 753(b), I certify that these original notes are a true and correct record of proceedings in the United States District Court for the Middle District of PA before Judge Mariani on 12/17/15. By s/ K. Yeager. (Court Reporter Notes are viewable by court staff only). (cr) (Entered: 12/17/2015)
71 ORDER THAT Plaintiff Mumia Abu Jamal SHALL BE TRANSPORTED to SCI Mahanoy's videoconference room or other such appropriate room in advance of the proceedings, PERMITTED to testify during the proceedings when called to doso, and PERMITIED to remain present throughout the entirety of the proceedings on Friday, December

12/21/2015 12/21/2015 12/21/2015 12/22/2015 12/22/2015 12/23/2015 12/23/2015

18, 2015.Signed by Honorable Robert D. Mariani on 12/17/15. (jfg) (Entered: 12/17/2015)
72 STIPULATION re 63 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Geisinger Medical Center's Motion to Dimiss Plaintiff's First Amended and Supplemental Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) and Proposed Order to Extend Until After the Preliminary Injunction Hearing Geisinger Medical Center's Brief in Support of Its Motion to Dismiss by Geisinger Medical Center. (Dempsey, John) (Entered: 12/21/2015)
73 ORDER re 72 Stipulation, to extned time filed by Geisinger Medical Center approved by the Court. Signed by Honorable Robert D. Mariani on 12/21/15. (jfg) (Entered: 12/21/2015)
74 COURT REPORTER NOTES OF PROCEEDINGS filed by K. Yeager of Teleconference before Judge Mariani on 12/21/15. In accordance with 28 U.S.C. Section 753(b), I certify that these original notes are a true and correct record of proceedings in the United States District Court for the Middle District of PA before Judge Mariani on 12/21/15. By s/ K. Yeager. (Court Reporter Notes are viewable by court staff only). (cr) (Entered: 12/21/2015)
75 COURT REPORTER NOTES OF PROCEEDINGS filed by K. Yeager of Evidentiary Hearing - Day 2 before Judge Mariani on 12/22/15. In accordance with 28 U.S.C. Section 753(b), I certify that these original notes are a true and correct record of proceedings in the United States District Court for the Middle District of PA before Judge Mariani on 12/22/15. By s/ K. Yeager. (Court Reporter Notes are viewable by court staff only). (cr) (Entered: 12/22/2015)
76 COURT REPORTER NOTES OF PROCEEDINGS filed by K. Yeager of Evidentiary Hearing - Day 1 before Judge Mariani on 12/18/15. In accordance with 28 U.S.C. Section 753(b), I certify that these original notes are a true and correct record of proceedings in the United States District Court for the Middle District of PA before Judge Mariani on 12/22/15. By s/ K. Yeager. (Court Reporter Notes are viewable by court staff only). (cr) (Entered: 12/22/2015)
77 COURT REPORTER NOTES OF PROCEEDINGS filed by K. Yeager of Evidentiary Hearing - Day 3 before Judge Mariani on 12/23/15. In accordance with 28 U.S.C. Section 753(b), I certify that these original notes are a true and correct record of proceedings in the United States District Court for the Middle District of PA before Judge Mariani on 12/23/15. By s/ K. Yeager. (Court Reporter Notes are viewable by court staff only). (cr) (Entered: 12/23/2015)
78 Exhibit List by Mumia Abu-Jamal.. (jfg) (Entered: 12/23/2015)

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79 Exhibit List by John Kerestes.. (jfg) (Entered: 12/23/2015)
80 BRIEF IN SUPPORT re 63 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Geisinger Medical Center's Motion to Dimiss Plaintiff's First Amended and Supplemental Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) filed by Geisinger Medical Center. (Attachments: # 1 Unpublished Opinion(s))(Conaboy, Suzanne) (Entered: 12/29/2015)
81 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by John Kerestes. (Attachments: # 1 Proposed Order)(Neal, Laura) (Entered: 01/04/2016)
87 MOTION for Extension of Time to 14-days to file brief in opposition by Mumia Abu-Jamal. (Attachments: # 1 Proposed Order)(Grote, Bret) (Entered: 01/12/2016)
88 ORDER upon consideration of the foregoing motion, it is hereby ordered that plaintiff's brief in opposition to defendant Geisinger Medical Center's motion to dismiss is due no later than January 29,2015.Signed by Honorable Robert D. Mariani on 1/13/16 (jfg) (Entered: 01/13/2016)
89 BRIEF IN SUPPORT re 81 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by John Kerestes.(Neal, Laura) (Entered: 01/19/2016)
90 BRIEF IN OPPOSITION re 63 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Geisinger Medical Center's Motion to Dimiss Plaintiff's First Amended and Supplemental Complaint Pursuant to Fed. R. Civ. P. 12(b)(6), 81 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Mumia Abu-Jamal.(Grote, Bret) (Entered: 01/29/2016)
91 MOTION for Extension of Time to to file brief in oppositionto defendant Kerestes' motion to dismiss by Mumia Abu-Jamal. (Attachments: # 1 Proposed Order)(Grote, Bret) (Entered: 02/03/2016)
92 ORDER upon consideration of the foregoing motion, it is hereby ordered that plaintiffs brief in opposition to defendant Kerestes' motion to dismiss is due no later than February 9, 2015.Signed by Honorable Robert D. Mariani on 2/4/16 (jfg) (Entered: 02/04/2016)
93 BRIEF IN OPPOSITION re 81 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Mumia Abu-Jamal.(Grote, Bret) (Entered: 02/09/2016)
94 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Evidentiary Hearing Day 1 held on 12/18/15 before Judge Mariani. Court Reporter Kristin Yeager, Telephone number 570.241.6612. Transcript may be

02/16/2016
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viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/8/2016. Redacted Transcript Deadline set for 3/18/2016. Release of Transcript Restriction set for 5/16/2016. (cr) (Entered: 02/16/2016)
95 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Evidentiary Hearing Day 2 held on 12/22/15 before Judge Mariani. Court Reporter Kristin Yeager, Telephone number 570.241.6612. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/8/2016. Redacted Transcript Deadline set for 3/18/2016. Release of Transcript Restriction set for 5/16/2016. (cr) (Entered: 02/16/2016)
96 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Evidentiary Hearing Day 3 held on 12/23/15 before Judge Mariani. Court Reporter Kristin Yeager, Telephone number 570.241.6612. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 3/8/2016. Redacted Transcript Deadline set for 3/18/2016. Release of Transcript Restriction set for 5/16/2016. (cr) (Entered: 02/16/2016)
97 Letter from Plaintiff's Counsel . (Grote, Bret) (Entered: 02/16/2016)
98 MOTION for Extension of Time to 7 day extension to file briefsregarding preliminary injunction by Mumia Abu-Jamal. (Attachments: # 1 Proposed Order)(Grote, Bret) (Entered: 02/16/2016)
99 REPLY BRIEF re 63 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Geisinger Medical Center's Motion to Dimiss Plaintiff's First Amended and Supplemental Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) filed by Geisinger Medical Center. (Attachments: # 1 Unpublished Opinion(s))(Dempsey, John) (Entered: 02/16/2016)
100 ORDER upon consideration of the foregoing motion, it is hereby ordered that both parties' briefs in regard to plaintiffs motion for preliminary injunction are due no later than March 11, 2016. It is further ordered that both parties are permitted to file briefs in excess of f the 1Spage limit, but not to exceed 30 pages in length. Signed by Honorable Robert D. Mariani on 2/17/16 (jfg) (Entered: 02/17/2016)

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101 REPLY BRIEF re 81 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by John Kerestes.(Neal, Laura) (Entered: 02/24/2016)
102 NOTICE of Appearance by Samuel H. Foreman on behalf of Shaista Khanum, John Lisiak, MD, Scott Saxon (Foreman, Samuel) (Entered: 03/02/2016)
103 NOTICE of Appearance by Caitlin J Goodrich on behalf of Shaista Khanum, John Lisiak, MD, Scott Saxon (Goodrich, Caitlin) (Entered: 03/02/2016)
104 MOTION to Strike 57 Amended Complaint (Sentence 2 of Paragraph 1, and Paragraphs 9 through 23) by John Kerestes, Christopher Oppman, John Steinhart. (Attachments: # 1 Proposed Order)(Neal, Laura) (Entered: 03/03/2016)
105 BRIEF IN SUPPORT re 104 MOTION to Strike 57 Amended Complaint (Sentence 2 of Paragraph 1, and Paragraphs 9 through 23) filed by John Kerestes, Christopher Oppman, John Steinhart. (Attachments: # 1 Unpublished Opinion(s) Conklin v. Anthou (MD Pa), # 2 Unpublished Opinion(s) Mitchell v. Community Education Centers (ED Pa), # 3 Unpublished Opinion(s) Kwaning v. Community Education Centers (ED Pa))(Neal, Laura) (Entered: 03/03/2016)
106 CERTIFICATE of of Concurrence/Non-concurrence (Amended) by John Kerestes, Christopher Oppman, John Steinhart re 104 MOTION to Strike 57 Amended Complaint (Sentence 2 of Paragraph 1, and Paragraphs 9 through 23) . (Neal, Laura) (Entered: 03/03/2016)
107 NOTICE of Appearance by Noah E Katz on behalf of Shaista Khanum, John Lisiak, MD, Scott Saxon (Katz, Noah) (Entered: 03/03/2016)
108 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM by Christopher Oppman, John Steinhart. (Attachments: # 1 Proposed Order)(Neal, Laura) (Entered: 03/04/2016)
109 CERTIFICATE of by Mumia Abu-Jamal Certificate of Merit. (Grote, Bret) (Entered: 03/08/2016)
110 MOTION to Dismiss (Partial) by Shaista Khanum, John Lisiak, MD, Scott Saxon.(Goodrich, Caitlin) (Entered: 03/10/2016)
111 BRIEF IN SUPPORT re 110 MOTION to Dismiss (Partial) filed by Shaista Khanum, John Lisiak, MD, Scott Saxon.(Goodrich, Caitlin) (Entered: 03/10/2016)
112 BRIEF IN SUPPORT re 23 MOTION for Preliminary Injunction filed by Mumia Abu-Jamal.(Grote, Bret) (Entered: 03/11/2016)

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113 BRIEF IN OPPOSITION re 23 MOTION for Preliminary Injunction filed by John Kerestes, Christopher Oppman, John Steinhart. (Attachments: # 1 Exhibit(s) Oct. 22 AASLD Press Release, # 2 Exhibit(s) Feb. 2016 AASLD Guidelines)(Neal, Laura) (Entered: 03/11/2016)
114 BRIEF IN OPPOSITION re 104 MOTION to Strike 57 Amended Complaint (Sentence 2 of Paragraph 1, and Paragraphs 9 through 23) filed by Mumia Abu-Jamal.(Grote, Bret) (Entered: 03/18/2016)
115 BRIEF IN SUPPORT re 108 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Christopher Oppman, John Steinhart. (Attachments: # 1 Unpublished Opinion(s) Birckbichler v. Butler County Prison, 2009 U.S. Dist. LEXIS 84949 (W.D. Pa. Sept. 17, 2009), # 2 Unpublished Opinion(s) Colon-Montanez v. Pennsylvania Healthcare Serv. Staffs, 530 Fed. Appx. 115 (3d Cir. 2013), # 3 Unpublished Opinion(s) Dulak v. Corizon, No. 2015 Dist. LEXIS 131291 (E.D. Mich. July 10, 2015), # 4 Unpublished Opinion(s) Harrell v. California Forensic Medical Group, Inc., 2015 U.S. Dist. LEXIS 149084 (E.D. Ca. Nov. 3, 2015), # 5 Unpublished Opinion(s) Iverson v. Flowers, 2014 WL 4923173 (M.D. Pa. Sept. 30, 2014), # 6 Unpublished Opinion(s) Maskelunas v. Wexford Health Source, Inc., 2015 WL 6686709 (W.D. Pa. Oct. 8, 2015), # 7 Unpublished Opinion(s) Robus v. Department of Corrections, 2006 WL 2060615 (E.D. Pa. July 20, 2006), # 8 Unpublished Opinion(s) Shabazz v. Schofield, 2015 U.S. Dist. LEXIS 113082 (M.D. Tenn. Aug. 26, 2015), # 9 Unpublished Opinion(s) Shelton v. Malewski, 2007 WL 1113663 (M.D. Pa. Apr. 12, 2007))(Neal, Laura) (Entered: 03/18/2016)
116 BRIEF IN OPPOSITION re 110 MOTION to Dismiss (Partial) filed by Mumia Abu-Jamal.(Grote, Bret) (Entered: 03/28/2016)
117 BRIEF IN OPPOSITION re 108 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Mumia Abu-Jamal.(Boyle, Robert) (Entered: 04/04/2016)
118 REPLY BRIEF re 104 MOTION to Strike 57 Amended Complaint (Sentence 2 of Paragraph 1, and Paragraphs 9 through 23) filed by John Kerestes, Christopher Oppman, John Steinhart.(Neal, Laura) (Entered: 04/04/2016)
119 MOTION to Supplement Record on Motion for Preliminary Injunction by Mumia Abu-Jamal. (Attachments: # 1 Proposed Order)(Boyle, Robert) (Entered: 04/04/2016)
120 AFFIDAVIT in Support re 119 MOTION to Supplement Record on Motion for Preliminary Injunction filed by Mumia Abu-Jamal.

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(Attachments: # 1 Exhibit(s) Medical Records, # 2 Declaration Declaration of Mumia Abu Jamal)(Boyle, Robert) (Entered: 04/04/2016)
121 BRIEF IN SUPPORT re 119 MOTION to Supplement Record on Motion for Preliminary Injunction filed by Mumia Abu-Jamal.(Boyle, Robert) (Entered: 04/04/2016)
122 BRIEF IN OPPOSITION re 119 MOTION to Supplement Record on Motion for Preliminary Injunction filed by John Kerestes, Christopher Oppman, John Steinhart. (Attachments: # 1 Exhibit(s), # 2 Exhibit(s), # 3 Exhibit(s), # 4 Exhibit(s), # 5 Unpublished Opinion(s) Taylor v. Rubenstein (N.D. W.Va.))(Neal, Laura) (Entered: 04/20/2016)
123 REPLY BRIEF re 108 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Christopher Oppman, John Steinhart. (Attachments: # 1 Unpublished Opinion(s) Taylor v. Rubenstein, # 2 Unpublished Opinion(s) Smith v. Corizon)(Neal, Laura) (Entered: 04/21/2016)
124 REPLY BRIEF re 119 MOTION to Supplement Record on Motion for Preliminary Injunction filed by Mumia Abu-Jamal.(Boyle, Robert) (Entered: 04/27/2016)
125 ORDER upon consideration of Plaintiffs "Motion to Supplement Record of Motion for Preliminary Injunction" (Doc. 119), Plaintiffs briefing in support thereof (Docs. 121, 124), and the Corrections Defendants' opposition thereto (Doc. 122), IT IS HEREBY ORDERED THAT Plaintiffs Motion (Doc. 119) is GRANTED, to wit: 1. Plaintiff SHALL FILE as new docket entry on or before Monday, June 6, 2016 at 1:00 p.m. (1) the recent medical records of Mumia Abu-Jamal, previously attached to Document 120 as Exhibit 1; and (2) the Declaration of Mumia Abu-Jamal dated April 3, 2016, previously attached to Document 120 as Exhibit 2. 2. The Corrections Defendants SHALL FILE as anew docket entry on or before Monday, June 6, 2016 at 1:00 p.m. the proposed supplementations in Document 122, Exhibits 1,2,3, and 4. 3. Additionally, the Court is expecting to receive on or before Monday, June 6,2016 at 1:00 p.m. additional medical records postdating the December 2015 evidentiary hearing, any updates of DOC policy regarding hepatitis Ctreatment, and any other documents that bear on the current state of Plaintiffs health and treatment, as well as documents that demonstrate changes in DOC policies which effect Plaintiffs treatment.Signed by Honorable Robert D. Mariani on 5/26/16 (jfg) (Entered: 05/26/2016)
126 OPINION AND ORDER - THAT said Motion is DENIED. The Court's denial of the Motion to Strike should not be construed by any of the parties as reflecting an opinion on the ability of Plaintiff to substantiate in the course of this litigation any of the challenged averments or an

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opinion that, if substantiated, the facts so established will bear asufficient connection to the issues in this case to be deemed relevant under Federal Rule of Evidence 401.Signed by Honorable Robert D. Mariani on 6/2/16. (jfg) (Entered: 06/03/2016)
127 NOTICE by Mumia Abu-Jamal re 23 MOTION for Preliminary Injunction Notice of Supplemental Authority (Attachments: # 1 Exhibit(s) opinion)(Boyle, Robert) (Entered: 06/03/2016)
128 AFFIDAVIT in Support re 23 MOTION for Preliminary Injunction Declaration of Mumia Abu Jamal filed by Mumia AbuJamal.(Boyle, Robert) (Entered: 06/05/2016)
129 EXHIBIT Recent Medical Records by Mumia Abu-Jamal re 23 MOTION for Preliminary Injunction . (Boyle, Robert) (Entered: 06/05/2016)
130 EXHIBIT 1 (Filed as Directed by Court Order (doc. 125) by John Kerestes, Christopher Oppman, John Steinhart re 125 Order on Motion to Supplement,,,,,. (Neal, Laura) (Entered: 06/06/2016)
131 EXHIBIT 2 (April 13, 2016 CBC/CMP Lab) Filed as Directed by Court Order (doc. 125) by John Kerestes, Christopher Oppman, John Steinhart re 125 Order on Motion to Supplement,,,,,. (Neal, Laura) (Entered: 06/06/2016)
132 EXHIBIT 3 (April 13, 2016 CBC Lab showing HGB/HCT) as Directed by Court Order (doc. 125) by John Kerestes, Christopher Oppman, John Steinhart re 125 Order on Motion to Supplement,,,,,. (Neal, Laura) (Entered: 06/06/2016)
133 EXHIBIT 5 Plaintiff's Medical Record December 2015 to May 27 2016 by John Kerestes, Christopher Oppman, John Steinhart re 125 Order on Motion to Supplement,,,,,. (Neal, Laura) (Entered: 06/06/2016)
134 EXHIBIT 6 Declaration of Jay Cowan MD by John Kerestes, Christopher Oppman, John Steinhart re 125 Order on Motion to Supplement,,,,,. (Neal, Laura) (Entered: 06/06/2016)
135 EXHIBIT 7 Declaration of Stephen Schleicher MD by John Kerestes, Christopher Oppman, John Steinhart re 125 Order on Motion to Supplement,,,,,. (Neal, Laura) (Entered: 06/06/2016)
136 EXHIBIT 8 Declaration of John Steinhart by John Kerestes, Christopher Oppman, John Steinhart re 125 Order on Motion to Supplement,,,,,. (Neal, Laura) (Entered: 06/06/2016)

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137 EXHIBIT 9 by John Kerestes, Christopher Oppman, John Steinhart re 125 Order on Motion to Supplement,,,,,. (Neal, Laura) (Entered: 06/06/2016)
138 EXHIBIT 4 (April 13, 2016 Blood Glucose/ HA1c) filed as Directed by Court Order (doc. 125) by John Kerestes, Christopher Oppman, John Steinhart re 125 Order on Motion to Supplement,,,,,. (Neal, Laura) (Entered: 06/06/2016)
139 Corrections Defendants' MOTION for Leave to file Under Seal by John Kerestes, Christopher Oppman, John Steinhart.(aaa) (Entered: 06/06/2016)
140 DOCUMENT(S) PENDING SEALING DECISION (Attachments: # 1 Supplement, # 2 Supplement, # 3 Supplement, # 4 Supplement, # 5 Supplement, # 6 Supplement) (aaa) (Entered: 06/06/2016)
141 MOTION to Strike 134 Exhibit, 135 Exhibit by Mumia Abu-Jamal. (Attachments: # 1 Proposed Order)(Grote, Bret) (Entered: 06/08/2016)
142 BRIEF IN SUPPORT re 141 MOTION to Strike 134 Exhibit, 135 Exhibit filed by Mumia Abu-Jamal.(Grote, Bret) (Entered: 06/08/2016)
143 DECLARATION by Mumia Abu-Jamal re 141 MOTION to Strike 134 Exhibit, 135 Exhibit . (Attachments: # 1 Declaration)(Grote, Bret) (Entered: 06/08/2016)
144 ORDER denying 141 Motion to Strike. The parties are to proceed according to the briefing schedule set forth in the Local Rules. Signed by Honorable Robert D. Mariani on 6/10/16 (lh) (Entered: 06/10/2016)
145 MOTION to Exceed Page Limitation re: Motion for Summary Judgment by John Kerestes, Christopher Oppman, John Steinhart. (Attachments: # 1 Proposed Order)(Neal, Laura) (Entered: 06/14/2016)
146 CERTIFICATE of of Concurrence by John Kerestes, Christopher Oppman, John Steinhart re 145 MOTION to Exceed Page Limitation re: Motion for Summary Judgment . (Neal, Laura) (Entered: 06/15/2016)
147 ORDER granting 145 Motion for Leave to File Excess Pages. Signed by Honorable Robert D. Mariani on 6/15/2016 (bg) (Entered: 06/15/2016)
148 MOTION for Summary Judgment by John Kerestes, Christopher Oppman, John Steinhart. (Attachments: # 1 Proposed Order, # 2 Certificate of Nonconcurrence)(Neal, Laura) (Entered: 06/21/2016)
149 STATEMENT OF FACTS re 148 MOTION for Summary Judgment filed by John Kerestes, Christopher Oppman, John Steinhart. (Attachments: # 1 Appendix EX 1 Vol. 1 Evid Hrng Trnscrpt (Dec. 18,

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2015), # 2 Appendix EX 2 Vol. 2 Evid Hrng Trnscrpt (Dec. 22, 2015), # 3 Appendix EX 3 Vol. 3 Evid Hrng Trnscrpt (Dec. 23, 2015), # 4 Appendix EX 4 Declaration, Ty Stanton, # 5 Appendix EX 5 Pa. Dept. of State License Verification Results)(Neal, Laura) (Entered: 06/21/2016)
150 APPENDIX by John Kerestes, Christopher Oppman, John Steinhart. to 149 Statement of Facts, (APPENDIX VOL. II). (Attachments: # 1 Appendix EX 6 Hrng. Ex. P2 AASLD Guidelines (June 2015), # 2 Appendix EX 7 Hrng. Ex. P18 AASLD Guidelines (Oct. 2015), # 3 Appendix EX 8 Hrng. Ex. P17 CDC Guidelines 2013, # 4 Appendix EX 9 AASLD Press Release Oct. 22, 2015, # 5 Appendix EX 10 AASLD Guidelines Apr. 25, 2016, # 6 Appendix EX 11 BOP Guidelines July 2015, # 7 Appendix EX 12 Hrng. Ex. P30 DOC Hep C Protocol, # 8 Appendix EX 13 (Doc. 137) Noel Declaration)(Neal, Laura) (Entered: 06/21/2016)
151 APPENDIX by John Kerestes, Christopher Oppman, John Steinhart. to 149 Statement of Facts, . (Attachments: # 1 Appendix EX 14 (Pt. 1) Ex. D1, Pl.s Medical Records through Dec. 2015)(Neal, Laura) (Entered: 06/21/2016)
152 APPENDIX by John Kerestes, Christopher Oppman, John Steinhart. to 149 Statement of Facts, (VOL. IV). (Attachments: # 1 Appendix EX 14 (Pt. 2) Ex. D1, Pl.s Medical Records through Dec. 2015)(Neal, Laura) (Entered: 06/21/2016)
153 APPENDIX by John Kerestes, Christopher Oppman, John Steinhart. to 149 Statement of Facts, (VOL. V). (Attachments: # 1 Appendix EX 14 (Pt. 3) Ex. D1, Pl.s Medical Records through Dec. 2015)(Neal, Laura) (Entered: 06/21/2016)
154 APPENDIX by John Kerestes, Christopher Oppman, John Steinhart. to 149 Statement of Facts, (VOL. VI). (Attachments: # 1 Appendix EX 14 (Pt. 4) Ex. D1, Pl.s Medical Records through Dec. 2015)(Neal, Laura) (Entered: 06/21/2016)
155 APPENDIX by John Kerestes, Christopher Oppman, John Steinhart. to 149 Statement of Facts, (VOL. VII). (Attachments: # 1 Appendix EX 15 Declaration, Jay C. Cowan, M.D (Doc. 134), # 2 Appendix EX 16 Pl.s Medical Records Post-December 2015 Hrng. (Doc. 133), # 3 Appendix EX 17 Declaration, Stephen Schleicher, M.D. (Doc. 135), # 4 Appendix EX 18 Declaration, John Steinhart (Doc. 136), # 5 Appendix EX 19 Declaration, Capt. J. Sorber, # 6 Appendix EX 20 Declaration, Chief Grievance Officer D. Varner, # 7 Appendix EX 21 Declaration, Supt. Asst. J. Hinman)(Neal, Laura) (Entered: 06/21/2016)

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156 BRIEF IN SUPPORT re 148 MOTION for Summary Judgment filed by John Kerestes, Christopher Oppman, John Steinhart. (Attachments: # 1 Unpublished Opinion(s) Allah v. Thomas, CV 15-5593, 2016 WL 3258422 (E.D. Pa. June 14, 2016), # 2 Unpublished Opinion(s) Ascenzi v. Diaz, 2007 U.S. Dist. LEXIS 23475 (M.D. Pa. March 30, 2007), # 3 Unpublished Opinion(s) Birckbichler v. Butler County Prison, 2009 U.S. Dist. LEXIS 84949, # 4 Unpublished Opinion(s) Collins v. Walsh, 1:09-CV-1932, 2012 WL 3536803, # 5 Unpublished Opinion(s) ColonMontanez v. Pennsylvania Healthcare Serv. Staffs, # 6 Unpublished Opinion(s) Dulak v. Corizon, No. 2015 Dist. LEXIS 131291, # 7 Unpublished Opinion(s) Harrell v. California Forensic Medical Group, Inc, # 8 Unpublished Opinion(s) Iverson v. Flowers, 2014 WL 4923173 (M.D. Pa. Sept. 30, 2014), # 9 Unpublished Opinion(s) Maskelunas v. Wexford Health Source, Inc., 2015 WL 6686709, # 10 Unpublished Opinion(s) Miller v. Hoffman, 1999 WL 415397 (E.D.Pa. June 22, 1999), # 11 Unpublished Opinion(s) Mobley v. Snyder, 1:13-CV-00772, 2015 WL 5123909, # 12 Unpublished Opinion(s) Robus v. Department of Corrections, 2006 WL 2060615, # 13 Unpublished Opinion(s) Ross v. Blake, 15-339, 2016 WL 3128839 (U.S. June 6, 2016), # 14 Unpublished Opinion(s) Sanders v. Beard, 3:09-CV-1384, 2013 WL 1703582, # 15 Unpublished Opinion(s) Serrano v. Folino, No. 05-1118, 2008 WL 723525 (W.D. Pa. Mar. 16, 2008), # 16 Unpublished Opinion(s) Shabazz v. Schofield, 2015 U.S. Dist. LEXIS 113082, # 17 Unpublished Opinion(s) Shelton v. Malewski, 2007 WL 1113663 (M.D. Pa. Apr. 12, 2007), # 18 Unpublished Opinion(s) Smith v Corizon, Inc., CV JFM-15-2015 WL 9274915, # 19 Unpublished Opinion(s) Snyder v. Millersville Univ., 2008 WL 5093140 (E.D. Pa. Dec. 3, 2008))(Neal, Laura) (Entered: 06/21/2016)
157 OPINION - For the foregoing reasons, the Court will deny the Medical Defendants' Motion for Motion to Dismiss (Doc. 110). A separate Order follows.Signed by Honorable Robert D. Mariani on 6/22/16. (jfg) (Entered: 06/22/2016)
158 ORDER upon consideration of Defendants Lisiak, Khanum, and Saxon's "Partial Motion to Dismiss Plaintiffs Amended Complaint" (Doc. 110), IT IS HEREBY ORDERED THAT said Motion is DENIED.Signed by Honorable Robert D. Mariani on 6/22/16. (jfg) (Entered: 06/22/2016)
159 BRIEF IN OPPOSITION re 141 MOTION to Strike 134 Exhibit, 135 Exhibit filed by John Kerestes, Christopher Oppman, John Steinhart.(Neal, Laura) (Entered: 06/22/2016)
160 REPLY BRIEF re 141 MOTION to Strike 134 Exhibit, 135 Exhibit filed by Mumia Abu-Jamal.(Grote, Bret) (Entered: 06/24/2016)

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161 MOTION for Extension of Time to File Response to DOC Summary Judgment Motion Doc. 148 by Mumia Abu-Jamal. (Attachments: # 1 Proposed Order)(Boyle, Robert) (Entered: 06/27/2016)
162 AFFIDAVIT in Support re 161 MOTION for Extension of Time to File Response to DOC Summary Judgment Motion Doc. 148 Declaration of Robert J. Boyle filed by Mumia Abu-Jamal.(Boyle, Robert) (Entered: 06/27/2016)
163 Letter from Mark McKinney requesting information on the purchase of copies of a complaint, docket entries and amended complaint in two cases. (lh) (Entered: 06/27/2016)
164 ORDER upon consideration of the Plaintiffs "Motion for Enlargement of Time to File Response to DOC Defendants' Motion for Summary Judgment" (Doc. 161), IT IS HEREBY ORDERED THAT said Motion is GRANTED AS MODIFIED by this Order. Plaintiffs brief in opposition to the DOC Defendants' Motion for Summary Judgment (Doc. 148) is due no later than Friday, August 5,2016.Signed by Honorable Robert D. Mariani on 6/27/16 (jfg) (Entered: 06/28/2016)
165 MOTION to Exceed Page Limitation by Mumia Abu-Jamal. (Attachments: # 1 Proposed Order)(Grote, Bret) (Entered: 07/28/2016)
166 ORDER THAT said Motion is GRANTED. Plaintiff's Brief in Opposition to the DOC Defendants' Motion for Summary Judgment shall be thirty-five (35) pages or fewer.Signed by Honorable Robert D. Mariani on 7/28/16 (jfg) (Entered: 07/29/2016)
167 Letter from Mark McKinney requesting a copy and cost of the amended complaint in this case. (lh) (Entered: 08/04/2016)
168 MEMORANDUM OPINION - For the foregoing reasons, the Court will grant in part and deny in part Defendant Kerestes's Motion to Dismiss (Doc. 81). A separate Order follows. Signed by Honorable Robert D. Mariani on 8/5/16. (jfg) (Entered: 08/05/2016)
169 ORDER 1. Plaintiffs causes of actions alleged against Defendant Kerestes in his official capacity are DISMISSED WITH PREJUDICE. 2. Counts I, II, and III are DISMISSED WITHOUT PREJUDICE AND WITH LEAVE TO AMEND within fourteen (14) days of the date of this Order in accordance with the Court's accompanying Memorandum Opinion. Plaintiffs Counsel is HEREBY PUT ON NOTICE that the Court expects any such all)endment to contain specific allegations of fact, stated in the active voice and delineating the specific actions or omissions by Defendant Kerestes, if any, which establish personal involvement or knowledge and acquiescence in the constitutional violations alleged by Plaintiff. 3.Counts IV, V1, and V2 are

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DISMISSED WITH PREJUDICE as to Defendant Kerestes.4. Count VI is DISMISSED WITH PREJUDICE as to Defendant Kerestes.5. Defendant Kerestes's "Motion to Dismiss Plaintiffs Amended and Supplemental Complaint" (Doc. 81) is DENIED with respect to Count VII.Signed by Honorable Robert D. Mariani on 8/5/16. (jfg) (Entered: 08/05/2016)
170 MEMORANDUM OPINION - For the foregoing reasons, the Court will grant in part and deny in part Defendants Steinhart and Oppman's Motion to Dismiss (Doc. 108). A separate Order follows.Signed by Honorable Robert D. Mariani on 8/5/16. (jfg) (Entered: 08/05/2016)
171 ORDER 1. Count II is DISMISSED as to both defendants WITHOUT PREJUDICE AND WITHLEAVE TO AMEND within fourteen (14) days of the date of this Order inaccordance with the Court's accompanying Memorandum Opinion. PlaintiffsCounsel is HEREBY PUT ON NOTICE that the Court expects any such amendmentto contain specific allegations of fact, stated in the active voice and delineating the specific actions or omissions by Defendant Steinhart or Defendant Oppman, if any, which establish personal involvement or knowledge and acquiescence in the constitutional violations alleged by Plaintiff.2. Defendant Oppman's "Motion to Dismiss Plaintiffs Amended and Supplemental Complaint" (Doc. 108) is DENIED with respect to Count V1 and Count V.Signed by Honorable Robert D. Mariani on 8/5/16. (jfg) (Entered: 08/05/2016)
172 MEMORANDUM OPINION - For the foregoing reasons, the Court will grant Defendant Geisinger's Motion to Dismiss (Doc. 63). A separate Order follows.Signed by Honorable Robert D. Mariani on 8/5/16. (jfg) (Entered: 08/05/2016)
173 ORDER upon consideration of Defendant Geisinger's "Motion to Dismiss Plaintiffs First Amended and Supplemental Complaint(Doc. 63), IT IS HEREBY ORDERED THAT said Motion is GRANTED. The claims against Geisinger Medical Center are DISMISSED with prejudice.Signed by Honorable Robert D. Mariani on 8/5/16. (jfg) (Entered: 08/05/2016)
174 ANSWER TO STATEMENT OF FACTS re 149 Statement of Facts, filed by Mumia Abu-Jamal. (Attachments: # 1 Appendix, # 2 Exhibit(s), # 3 Exhibit(s), # 4 Exhibit(s), # 5 Exhibit(s), # 6 Exhibit(s), # 7 Exhibit(s), # 8 Exhibit(s), # 9 Exhibit(s), # 10 Exhibit(s), # 11 Exhibit(s), # 12 Exhibit(s), # 13 Exhibit(s), # 14 Exhibit(s))(Grote, Bret) (Entered: 08/05/2016)
175 BRIEF IN OPPOSITION re 148 MOTION for Summary Judgment filed by Mumia Abu-Jamal.(Grote, Bret) (Entered: 08/05/2016)

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176 AMENDED COMPLAINT Second Amended Complaint against John Kerestes, Shaista Khanum, John Lisiak, MD, Christopher Oppman, Scott Saxon, John Steinhart, Theresa Delbalso, Joseph Silva, filed by Mumia Abu-Jamal.(Grote, Bret) (Entered: 08/16/2016)
177 Plaintiff's Second Amended Complaint (Doc. 176). (Grote, Bret) (Entered: 08/16/2016)
178 AMENDED COMPLAINT Corrected Second Amended Complaint against Theresa Delbalso, John Kerestes, Shaista Khanum, John Lisiak, MD, Christopher Oppman, Scott Saxon, Joseph Silva, John Steinhart, filed by Mumia Abu-Jamal.(Grote, Bret) (Entered: 08/16/2016)
179 First MOTION to Amend/Correct 178 Amended Complaint Leave to File Third Amended Complaint by Mumia Abu-Jamal. (Attachments: # 1 Exhibit(s) Proposed Third Amended Complaint, # 2 Exhibit(s) Third Amended With highlights)(Boyle, Robert) (Entered: 08/17/2016)
180 BRIEF IN SUPPORT of Motion for leave to file Third Amended Complaint re 179 First MOTION to Amend/Correct 178 Amended Complaint Leave to File Third Amended Complaint filed by Mumia Abu-Jamal.(Boyle, Robert) (Entered: 08/17/2016)
181 MOTION for Reconsideration re 168 Memorandum (Order to follow as separate docket entry), 169 Order (memorandum filed previously as separate docket entry), Terminate Motions,,,,,,,, by Mumia AbuJamal.(Boyle, Robert) (Entered: 08/19/2016)
182 BRIEF IN SUPPORT re 181 MOTION for Reconsideration re 168 Memorandum (Order to follow as separate docket entry), 169 Order (memorandum filed previously as separate docket entry), Terminate Motions,,,,,,,, filed by Mumia Abu-Jamal.(Boyle, Robert) (Entered: 08/19/2016)
183 ORDER 1. Consistent with this Court's Memorandum Opinion (Doc. 168) analyzing Defendant Kerestes's Motion to Dismiss Plaintiffs Amended and Supplemental Complaint (Doc. 81) and for the sake of clarity, Paragraph 1of this Court's related Order (Doc. 169) IS AMENDED TO READ: "Plaintiffs causes of actions alleged against Defendant Kerestes in his official capacity are DISMISSED WITH PREJUDICE to the extent Plaintiff seeks money damages from Defendant Kerestes."2. All other portions of said Order (Doc. 169) REMAIN UNCHANGED AND IN EFFECT.3. Plaintiffs "Motion for Reconsideration of the Order Dismissing in Part Claims Against Defendant Kerestes" (Doc. 181) is DENIED AS MOOT.Signed by Honorable Robert D. Mariani on 8/22/16 (jfg) (Entered: 08/22/2016)

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184 ORDER 1. Plaintiff's UMotion to Strike Declarations of Jay Cowan, M.D., and Stepehen [sic] Schleicher, M.D." (Doc. 141) is DENIED. While Plaintiff maintains that these declarations uare beyond the scope of this Court's May 26, 2016 order" allowing supplementation of the preliminary injunction record, (Doc. 142 at 3), the Court disagrees. 2. Plaintiff's Supplemental Declaration of Joseph Harris, M.D., (Doc. 143, Ex. 1) is accepted and need not be refiled. Signed by Honorable Robert D. Mariani on 8/22/16 (jfg) (Entered: 08/22/2016)
185 ORDER the following photographs contained in Doc. 140 are hereby sealed:1. The photographs contained on pages 1, 2, 5, and 6 of Exhibit A. 2. The photograph contained on page 1of Exhibit B. 3. The photograph contained on page 4 of Exhibit D. 4. The photographs contained on pages 9, 10, 11, 12, and 13 of Exhibit E. To implement the terms of this Order, Defendants shall separately re-file under seal those photographs which are identified above as those which shall be sealed and shall further re-file those photographs which are not subject to this Sealing Order so that they are available for public access.Signed by Honorable Robert D. Mariani on 8/22/16 (jfg) (Entered: 08/22/2016)
186 MOTION to Supplement Preliminary Injunction Record by Mumia Abu-Jamal.(Grote, Bret) (Entered: 08/23/2016)
187 DECLARATION by Mumia Abu-Jamal re 186 MOTION to Supplement Preliminary Injunction Record . (Attachments: # 1 Exhibit(s))(Grote, Bret) (Entered: 08/23/2016)
188 BRIEF IN SUPPORT re 186 MOTION to Supplement Preliminary Injunction Record filed by Mumia Abu-Jamal.(Grote, Bret) (Entered: 08/23/2016)
189 EXHIBIT by John Kerestes, Christopher Oppman, John Steinhart re 185 Order on Motion to Seal,,. (Neal, Laura) (Entered: 08/24/2016)
190 Joint MOTION to Stay re 178 Amended Complaint Responses, Joint MOTION for Extension of Time to Respond to Plaintiff's Second Amended Complaint until 14 Days after an Order deciding Plaintiff's Motion for Leave to File a Third Amended Complaint (should that Motion be denied) by John Kerestes, Shaista Khanum, John Lisiak, MD, Christopher Oppman, Scott Saxon, John Steinhart. (Attachments: # 1 Proposed Order)(Foreman, Samuel) (Entered: 08/30/2016)
191 MEMORANDUM OPINION (Order to follow as separate docket entry).Signed by Honorable Robert D. Mariani on 8/31/2016. (bg) (Entered: 08/31/2016)
192 ORDER (memorandum filed previously as separate docket entry). Plaintiffs Objections (Doc. 42) are OVERRULED. The Report and

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Recommendation (Doc. 39) is OVERRULED. Plaintiffs Motion for Preliminary Injunction (Doc. 23) is DENIED. Plaintiffs "Motion to Supplement Record of Motion for Preliminary Injunction" (Doc. 186) is DENIED AS MOOT.Signed by Honorable Robert D. Mariani on 8/31/2016. (bg) (Entered: 08/31/2016)
193 ORDER finding as moot 44 Motion for Discovery. Signed by Honorable Robert D. Mariani on 8/31/2016 (bg) (Entered: 08/31/2016)
194 MOTION for Extension of Time to File Brief to 179 First MOTION to Amend/Correct 178 Amended Complaint Leave to File Third Amended Complaint filed by John Kerestes, Christopher Oppman, John Steinhart. (Attachments: # 1 Proposed Order)(Neal, Laura) (Entered: 08/31/2016)
195 CERTIFICATE of by Shaista Khanum, John Lisiak, MD, Scott Saxon re 190 Joint MOTION to Stay re 178 Amended Complaint ResponsesJoint MOTION for Extension of Time to Respond to Plaintiff's Second Amended Complaint until 14 Days after an Order deciding Plaintiff's Motion for Leave to File a Third Amended Complaint (should that Motion be denied) of Nonconcurrence. (Foreman, Samuel) (Entered: 09/01/2016)
196 ORDER granting 194 Motion for Extension of Time to File Response/Reply. Brief in Opposition due by 9/9/2016Signed by Honorable Robert D. Mariani on 9/2/16 (lh) (Entered: 09/02/2016)
197 BRIEF IN OPPOSITION re 179 First MOTION to Amend/Correct 178 Amended Complaint Leave to File Third Amended Complaint filed by John Kerestes, Christopher Oppman, John Steinhart. (Attachments: # 1 Unpublished Opinion(s) Payne v Duncan, # 2 Unpublished Opinion(s) Thinna v Beard)(Neal, Laura) (Entered: 09/09/2016)
198 REPLY BRIEF re 179 First MOTION to Amend/Correct 178 Amended Complaint Leave to File Third Amended Complaint filed by Mumia Abu-Jamal.(Grote, Bret) (Entered: 09/14/2016)
199 MOTION for Reconsideration re 192 Order (memorandum filed previously as separate docket entry), 191 Memorandum re R&R (Order to follow as separate docket entry) by Mumia Abu-Jamal. (Attachments: # 1 Proposed Order)(Grote, Bret) (Entered: 09/14/2016)
200 BRIEF IN SUPPORT re 199 MOTION for Reconsideration re 192 Order (memorandum filed previously as separate docket entry), 191 Memorandum re R&R (Order to follow as separate docket entry) filed by Mumia Abu-Jamal. (Attachments: # 1 Exhibit(s), # 2 Exhibit(s), # 3 Exhibit(s))(Grote, Bret) (Entered: 09/14/2016)

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201 BRIEF IN OPPOSITION re 199 MOTION for Reconsideration re 192 Order (memorandum filed previously as separate docket entry), 191 Memorandum re R&R (Order to follow as separate docket entry) filed by John Kerestes, Christopher Oppman, John Steinhart.(Neal, Laura) (Entered: 09/28/2016)
202 REPLY BRIEF re 199 MOTION for Reconsideration re 192 Order (memorandum filed previously as separate docket entry), 191 Memorandum re R&R (Order to follow as separate docket entry) filed by Mumia Abu-Jamal.(Boyle, Robert) (Entered: 10/17/2016)
203 ORDER THAT Plaintiffs Motion for Reconsideration, (Doc. 199), is DENIED.Signed by Honorable Robert D. Mariani on 1/3/17 (jfg) (Entered: 01/03/2017)
204 ORDER that said Motion is GRANTED. Defendants' responses to Plaintiffs Second Amended Complaint are STAYED pending resolution of Plaintiffs Motion for Leave to File a Third Amended Complaint. Should this Court deny Plaintiffs Motion for Leave to File a Third Amended Complaint, Defendants' responses to Plaintiffs Second Amended Complaint will be due fourteen (14) days thereafter.Signed by Honorable Robert D. Mariani on 1/3/17 (jfg) (Entered: 01/03/2017)
205 Letter from Michael Lester requesting a copy of the docket sheet. (lh) (Entered: 01/06/2017)
206 MEMORANDUM OPINION - For the reasons outlined above, the Court will grant Plaintiffs motion to file a Third Amended Complaint.Signed by Honorable Robert D. Mariani on 1/10/17. (jfg) (Entered: 01/10/2017)
207 ORDER 1. Plaintiff's Motion to File aThird Amended Complaint, (Doc. 179), is GRANTED. 2. Plaintiff shall file the Third Amended Complaint, previously filed as an attachment to Plaintiffs Motion to File aThird Amended Complaint, (Doc. 179-1), within 7 days of the date of this Order.Signed by Honorable Robert D. Mariani on 1/10/17. (jfg) (Entered: 01/10/2017)
208 ORDER THAT DOC Defendants' Motion for Summary Judgment, (Doc. 148), is DISMISSED AS MOOT without prejudice to Defendants' right to refile a motion for summary judgment at the appropriate time.Signed by Honorable Robert D. Mariani on 1/10/17 (jfg) (Entered: 01/10/2017)
209 ORDER: Case Management Conference set for 3/9/2017 11:00 AM in Scranton before Honorable Robert D. Mariani.Signed by Honorable Robert D. Mariani on 1/10/17. (jfg) (Entered: 01/10/2017)
210 AMENDED COMPLAINT Third against Theresa Delbalso, John Kerestes, Shaista Khanum, John Lisiak, MD, Christopher Oppman, Scott Saxon, Joseph Silva, John Steinhart, John Wetzel, Paul Noel,

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Department Of Corrections Of Pennsylvania, filed by Mumia AbuJamal.(Grote, Bret) (Entered: 01/17/2017)
211 Letter from Mark McKinney dated 1/27/17 re: purchase of the court order and amended complaint. (lh) (Entered: 01/31/2017)
212 Joint MOTION to Stay Or For Extension of Time by Theresa Delbalso, Department Of Corrections Of Pennsylvania, John Kerestes, Paul Noel, Christopher Oppman, Joseph Silva, John Steinhart, John Wetzel. (Attachments: # 1 Proposed Order)(Neal, Laura) (Entered: 01/31/2017)
213 REQUEST by Michael Lester for docket sheet in this casel. (lh) (Entered: 02/02/2017)
214 BRIEF IN OPPOSITION re 212 Joint MOTION to Stay Or For Extension of Time filed by Mumia Abu-Jamal.(Boyle, Robert) (Entered: 02/17/2017)
215 ORDER:THAT the Case Management Conference in this matter, currently scheduled to be held on March 9, 2017, is RESCHEDULED and shall be held on Tuesday, April 18, 2017, at 11:00a.m. All other directives set forth in the Court's prior scheduling Order, (Doc. 209), remain unchangedSigned by Honorable Robert D. Mariani on 2/24/17. (jfg) (Entered: 02/24/2017)
216 ORDER THAT Defendants' Motion is GRANTED IN PART as follows: 1. Defendants shall have fourteen (14) days from the date of this Order to respond to Plaintiffs Third Amended Complaint; 2. The case management conference currently scheduled to be held on April 18, 2017, will remain a case management conference as scheduled, but the parties may also address the procedural posture of this case in light of the related case, Abu-Jamal v.Wetzel, 3: 16-cv-2000.Signed by Honorable Robert D. Mariani on 4/6/17 (jfg) (Entered: 04/06/2017)
217 Joint MOTION for Extension of Time to File Joint Case Management Plan by Theresa Delbalso, Department Of Corrections Of Pennsylvania, John Kerestes, Paul Noel, Christopher Oppman, Joseph Silva, John Steinhart, John Wetzel. (Attachments: # 1 Proposed Order)(Neal, Laura) (Entered: 04/10/2017)
218 ORDER granting 217 Motion for Extension of Time to File. The parties may file the Joint Case Management Plan on April 12, 2017. Signed by Honorable Robert D. Mariani on 4/11/17 (lh) (Entered: 04/11/2017)
219 CASE MANAGEMENT PLAN Joint by Mumia Abu-Jamal. (Grote, Bret) (Entered: 04/12/2017)
220 ORDER THAT in lieu of the case management conference currently scheduled for Tuesday, April 18, 2017, at 11:15 a.m. in Abu-Jamal v.

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Wetzel, astatus conference will be held on Tuesday, April 18, 2017, at 11:15 a.m. to discussed the procedural posture of both Abu-Jamal cases in light of the overlapping issues of law and fact.Signed by Honorable Robert D. Mariani on 4/17/17. (jfg) (Entered: 04/17/2017)
221 COURT REPORTER NOTES OF PROCEEDINGS filed by K. Yeager of Case Management Conference before Judge Mariani on 4/18/17. In accordance with 28 U.S.C. Section 753(b), I certify that these original notes are a true and correct record of proceedings in the United States District Court for the Middle District of PA before Judge Mariani on 4/18/17. By s/ K. Yeager. (Court Reporter Notes are viewable by court staff only). (cr) (Entered: 04/18/2017)
223 Joint MOTION to Consolidate Cases by Mumia Abu-Jamal. (Attachments: # 1 Proposed Order)(Boyle, Robert) (Entered: 05/04/2017)
224 ORDER granting 223 Motion to Consolidate Cases. All proceedings and orders previously filed in case 16-cv-2000 shall remain in effect but be consolidated into case 15-c-v967. Going forward all filings shall be filed under Index Number 15-cv-967. It is further ORDERED that in accordance with the discussion at the April 18, 2017 case management conference, the defendants' time to respond to the complaints in both cases shall be enlarged to 14 days after the entry of this Order. Signed by Honorable Robert D. Mariani on 5/4/17 (lh) (Entered: 05/04/2017)
225 ORDER: Pretrial schedule established as a result of the Case Management conference. Motions to join additional parties shall be filed no later than July 18, 2017. Motions to amend the pleadings due by 8/18/2017. Fact Discovery due by 10/31/2017. All potentially dispositive motions due by 12/15/2017 (PLEASE SEE ORDER FOR COMPLETE DETAILS). Reports from Plaintiff's experts shall be due by November 30, 2017. Reports from Defendants' experts shall be due by December 31, 2017. Supplementations shall be due by January 15, 2018. All expert discovery shall be commencedd in time to be compledted by February 1. 2018. Signed by Honorable Robert D. Mariani on 5/5/17. (lh) (Entered: 05/05/2017)
226 Joint MOTION for Extension of Time to to Respond to the Complaint by Consent by Shaista Khanum, John Lisiak, MD, Scott Saxon. (Attachments: # 1 Proposed Order)(Foreman, Samuel) (Entered: 05/17/2017)
227 ORDER that said Motion is GRANTED. Defendants shall file their Response to Plaintiffs Amended Complaint on or before May 23,2017.Signed by Honorable Robert D. Mariani on 5/17/17 (jfg) (Entered: 05/17/2017)

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228 NOTICE of Appearance by Laura J. Neal on behalf of Bureau of Health Care Services Assistant Medical Director, Bureau of Health Care Services Infection Control Coordinator, Theresa Delbalso, Department Of Corrections Of Pennsylvania, John Kerestes, Paul Noel, Christopher Oppman, Joseph Silva, John Steinhart, John Wetzel (Neal, Laura) (Entered: 05/23/2017)
229 MOTION to Dismiss (Partial) by Correct Care Solutions, Shaista Khanum, John Lisiak, MD, Scott Saxon. (Attachments: # 1 Proposed Order)(Goodrich, Caitlin) (Entered: 05/23/2017)
230 BRIEF IN SUPPORT re 229 MOTION to Dismiss (Partial) filed by Correct Care Solutions, Shaista Khanum, John Lisiak, MD, Scott Saxon.(Goodrich, Caitlin) (Entered: 05/23/2017)
231 MOTION to Dismiss or In the Alternative for Summary Judgment by Bureau of Health Care Services Assistant Medical Director, Bureau of Health Care Services Infection Control Coordinator, Theresa Delbalso, Department Of Corrections Of Pennsylvania, John Kerestes, Paul Noel, Christopher Oppman, Joseph Silva, John Steinhart, John Wetzel. (Attachments: # 1 Proposed Order)(Neal, Laura) (Entered: 05/23/2017)
232 BRIEF IN SUPPORT re 231 MOTION to Dismiss or In the Alternative for Summary Judgment filed by Bureau of Health Care Services Assistant Medical Director, Bureau of Health Care Services Infection Control Coordinator, Theresa Delbalso, Department Of Corrections Of Pennsylvania, John Kerestes, Paul Noel, Christopher Oppman, Joseph Silva, John Steinhart, John Wetzel.(Neal, Laura) (Entered: 06/06/2017)
233 BRIEF IN OPPOSITION re 229 MOTION to Dismiss (Partial) filed by Mumia Abu-Jamal.(Grote, Bret) (Entered: 06/09/2017)
234 MOTION for Extension of Time to Respond to DOC Motion to Dismiss by Mumia Abu-Jamal. (Attachments: # 1 Proposed Order)(Grote, Bret) (Entered: 06/19/2017)
235 ORDER granting 234 Plaintiff's brief in opposition to DOC defendants' motion to dismiss is due no later than June 30, 2017. Signed by Honorable Robert D. Mariani on 6/20/17 (lh) (Entered: 06/20/2017)
236 ORDER OF REFERRAL TO PRISONER LITIGATION SETTLEMENT PROGRAM (PLSP) - This case is REFERRED to the ADR Coordinator for assignment of a mediator or settlement officer (neutral third party). Upon notification of this assigned mediator or settlement officer, the cout will issue an order both appointing the mediator or settlement officer and directing the mediator or settelent officer to promptly schedule mediation/settlement conference and notify the parties. Counsel may be available to represent plaintiff for the

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limited purpose of assisting with the mediation/settlement process. If plaintiff would like the court to attempt to secure counsel, plaintiff shall submit the enclosed request for appointment of counsel form within fourteen (14) days of the date of this order. Mediation/Settlement discussions are CONFIDENTIAL and may not be utilized by any party if settlement is not reached. Any party opposed to mediation shall file, within fourteen (14) days of the date of the Order, a declaration specifying the reasons for such opposition. Request for Appointment of Counsel for PLSP due by 7/10/2017 Prisoner Mediation Opt Out Declaration due by 7/10/2017Signed by Honorable Robert D. Mariani on 6/26/2017. (bg) (Entered: 06/26/2017)
237 BRIEF IN OPPOSITION re 231 MOTION to Dismiss or In the Alternative for Summary Judgment filed by Mumia Abu-Jamal.(Boyle, Robert) (Entered: 06/30/2017)
238 ORDER Appointing a Mediator for PLSP. Frank J. Lavery, Jr Mediator appointed.Signed by Honorable Robert D. Mariani on 7/13/2017. (bg) (Entered: 07/13/2017)
239 MOTION for Joinder by Mumia Abu-Jamal. (Attachments: # 1 Exhibit(s), # 2 Exhibit(s), # 3 Proposed Order)(Grote, Bret) (Entered: 07/18/2017)
240 BRIEF IN SUPPORT re 239 MOTION for Joinder filed by Mumia AbuJamal.(Grote, Bret) (Entered: 07/19/2017)
241 BRIEF IN OPPOSITION re 239 MOTION for Joinder filed by Correct Care Solutions, Shaista Khanum, John Lisiak, MD.(Foreman, Samuel) (Entered: 08/01/2017)
242 MOTION to Amend/Correct 225 Scheduling Order,, by Mumia AbuJamal. (Attachments: # 1 Proposed Order)(Grote, Bret) (Entered: 08/16/2017)
243 ORDER granting 242 Motion to Amend Case Management Order. The new deadline for amending pleadings is 10/31/17, and 11/30/17 for completion of fact discovery. Signed by Honorable Robert D. Mariani on 8/16/17 (jam) (Entered: 08/16/2017)
244 ORDER granting 239 Motion for Joinder of Parties. Plaintiff shall file his Fourth Amended Complaint, previously filed as an attachment to Plaintiff's Motion for Joinder of parties (Doc. 239-1) within 5 days of the date of this Order. Signed by Honorable Robert D. Mariani on 8/22/17 (jam) (Entered: 08/22/2017)
245 AMENDED COMPLAINT Fourth against Bureau of Health Care Services Assistant Medical Director, Bureau of Health Care Services Infection Control Coordinator, Correct Care Solutions, Correct Care

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Solutions Representative, Theresa Delbalso, Department Of Corrections Of Pennsylvania, John Kerestes, Shaista Khanum, John Lisiak, MD, Paul Noel, Christopher Oppman, Scott Saxon, Joseph Silva, John Steinhart, John Wetzel, Jay Cowan, filed by Mumia Abu-Jamal.(Grote, Bret) (Entered: 08/23/2017)
246 Supplement by Mumia Abu-Jamal. to 237 Brief in Opposition, 231 MOTION to Dismiss or In the Alternative for Summary Judgment . (Attachments: # 1 Exhibit(s) Chimenti Opinion)(Boyle, Robert) (Entered: 08/24/2017)
247 Supplement by Mumia Abu-Jamal. to 233 Brief in Opposition, 229 MOTION to Dismiss (Partial) . (Attachments: # 1 Exhibit(s) Chimenti Opinion)(Boyle, Robert) (Entered: 08/24/2017)
248 MOTION to Dismiss Fourth Amended Complaint by Correct Care Solutions, Jay Cowan, Shaista Khanum, John Lisiak, MD, Scott Saxon. (Attachments: # 1 Proposed Order)(Goodrich, Caitlin) (Entered: 08/25/2017)
249 BRIEF IN SUPPORT re 248 MOTION to Dismiss Fourth Amended Complaint filed by Correct Care Solutions, Jay Cowan, Shaista Khanum, John Lisiak, MD, Scott Saxon.(Goodrich, Caitlin) (Entered: 08/25/2017)
250 Letter from Frank J. Lavery, Jr. (Mediator) with extension request to hold mediation. (Lavery, Frank) (Entered: 09/07/2017)
251 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Or in the Alternative for Summary Judgment by Bureau of Health Care Services Assistant Medical Director, Bureau of Health Care Services Infection Control Coordinator, Theresa Delbalso, Department Of Corrections Of Pennsylvania, John Kerestes, Paul Noel, Christopher Oppman, Joseph Silva, John Steinhart, John Wetzel. (Attachments: # 1 Proposed Order)(Neal, Laura) (Entered: 09/07/2017)
252 ORDER : IT IS HEREBY ORDERED THAT the mediation ordered to take place, shall take place on or before 10/26/17. Signed by Honorable Robert D. Mariani on 9/8/17. (jam) (Entered: 09/08/2017)
253 BRIEF IN OPPOSITION re 248 MOTION to Dismiss Fourth Amended Complaint filed by Mumia Abu-Jamal.(Grote, Bret) (Entered: 09/11/2017)
254 BRIEF IN SUPPORT re 251 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Or in the Alternative for Summary Judgment filed by Bureau of Health Care Services Assistant Medical Director, Bureau of Health Care Services Infection Control Coordinator, Theresa Delbalso, Department Of Corrections Of Pennsylvania, John

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Kerestes, Paul Noel, Christopher Oppman, Joseph Silva, John Steinhart, John Wetzel.(Neal, Laura) (Entered: 09/21/2017)
255 ORDER dismissing as moot 229 Motion to Dismiss; dismissing as moot 231 Motion to Dismiss. Signed by Honorable Robert D. Mariani on 9/22/17 (jam) (Entered: 09/22/2017)
256 BRIEF IN OPPOSITION re 251 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Or in the Alternative for Summary Judgment filed by Mumia Abu-Jamal.(Grote, Bret) (Entered: 10/09/2017)
257 REPLY BRIEF re 248 MOTION to Dismiss Fourth Amended Complaint filed by Jay Cowan, Shaista Khanum, John Lisiak, MD, Scott Saxon.(Foreman, Samuel) (Entered: 10/16/2017)
258 MOTION for Extension of Time to File Brief to 251 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Or in the Alternative for Summary Judgment filed by Bureau of Health Care Services Assistant Medical Director, Bureau of Health Care Services Infection Control Coordinator, Theresa Delbalso, Department Of Corrections Of Pennsylvania, John Kerestes, Paul Noel, Christopher Oppman, Joseph Silva, John Steinhart, John Wetzel. (Attachments: # 1 Proposed Order)(Neal, Laura) (Entered: 10/23/2017)
259 ORDER granting 258 Motion for Extension of Time to File Response/Reply re 251 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Or in the Alternative for Summary Judgment. Reply Brief due by 10/30/2017.Signed by Honorable Robert D. Mariani on 10/24/17 (jam) (Entered: 10/24/2017)
260 REPORT OF MEDIATOR (Settlement Not Reached) (Lavery, Frank) (Entered: 10/27/2017)
261 REPLY BRIEF re 251 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Or in the Alternative for Summary Judgment filed by Bureau of Health Care Services Assistant Medical Director, Bureau of Health Care Services Infection Control Coordinator, Theresa Delbalso, Department Of Corrections Of Pennsylvania, John Kerestes, Christopher Oppman, Joseph Silva, John Steinhart, John Wetzel.(Neal, Laura) (Entered: 10/30/2017)
262 Joint MOTION for Extension of Time to Complete Discovery by Bureau of Health Care Services Assistant Medical Director, Bureau of Health Care Services Infection Control Coordinator, Theresa Delbalso, Department Of Corrections Of Pennsylvania, John Kerestes, Paul Noel, Joseph Silva, John Steinhart, John Wetzel. (Attachments: # 1 Proposed Order)(Neal, Laura) (Entered: 11/21/2017)

11/22/2017
01/04/2018 01/05/2018 01/25/2018 01/26/2018 02/08/2018 02/09/2018
04/27/2018

263 ORDER granting 262 Motion for Extension of Time to Complete Discovery. Fact discovery shall be commenced in time to be completed by 2/23/18. All other deadlines found in the Court's Order of 5/5/17 (Doc. 225) that are not specifically modified by this ORrer or the Court's Order of 8/16/17 (Doc. 243) REMAIN IN EFFECT.Signed by Honorable Robert D. Mariani on 11/22/17 (jam) (Entered: 11/22/2017)
264 Consent MOTION for Extension of Time to Complete Discovery of Experts by Mumia Abu-Jamal. (Attachments: # 1 Proposed Order)(Boyle, Robert) (Entered: 01/04/2018)
265 ORDER granting 264 Motion for Extension of Time to Complete Expert Discovery. Plaintiff shall furnish any expert report by 3/30/18. Defendants shall furnish any expert report by 4/30/18 and all expert discovery shall be completed by 5/31/18. Signed by Honorable Robert D. Mariani on 1/4/18 (jam) (Entered: 01/05/2018)
266 Unopposed MOTION for Discovery (Motion for Leave to Depose Confined Persons by Theresa Delbalso, Department Of Corrections Of Pennsylvania, John Kerestes, Paul Noel, Christopher Oppman, Joseph Silva, John Steinhart, John Wetzel. (Attachments: # 1 Certificate of Concurrence, # 2 Proposed Order)(Neal, Laura) (Entered: 01/25/2018)
267 ORDER granting 266 Motion for Discovery. Defendants maydepose the Plaintiff and non-party inmate witness Major Tillery at a time and date agreeable to the prison administrators at the institutions where these individuals are confined. Signed by Honorable Robert D. Mariani on 1/26/18 (lh) (Entered: 01/26/2018)
268 Joint MOTION to Extend Deadlines by the Parties by Shaista Khanum, John Lisiak, MD, Scott Saxon. (Attachments: # 1 Proposed Order)(Foreman, Samuel) (Entered: 02/08/2018)
269 AMENDED CASE MANAGEMENT ORDER: Fact discovery completed by 4/30/18. Plaintiff's expert reports due 5/31/18. Defendant's expoert reports due 6/30/18. Supplementary expert reports due 7/15/18. Dispositive motions due 8/31/18. See Order for additional details and deadlines. Signed by Honorable Robert D. Mariani on 2/8/18 (jam) (Entered: 02/09/2018)
270 Joint MOTION for Extension of Time to Complete Discovery by Bureau of Health Care Services Assistant Medical Director, Bureau of Health Care Services Infection Control Coordinator, Correct Care Solutions, Correct Care Solutions Representative, Jay Cowan, Theresa Delbalso, Department Of Corrections Of Pennsylvania, John Kerestes, Shaista Khanum, John Lisiak, MD, Paul Noel, Christopher Oppman, Scott Saxon, Joseph Silva, John Steinhart, John Wetzel. (Attachments: # 1 Proposed Order)(Neal, Laura) (Entered: 04/27/2018)

05/01/2018 05/10/2018
05/10/2018
05/24/2018 05/25/2018 05/25/2018 06/04/2018

271 ORDER granting 270 Motion for Extension of Time to Complete Discovery. Fact discovery to be completed by 6/1/18. All other deadlines remain in effect. Signed by Honorable Robert D. Mariani on 5/1/18 (jam) (Entered: 05/01/2018)
272 MEMORANDUM OPINION (Order to follow as separate docket entry) re 248 MOTION to Dismiss Fourth Amended Complaint filed by Shaista Khanum, Jay Cowan, Correct Care Solutions, John Lisiak, M.D., Scott Saxon, 251 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Or in the Alternative for Summary Judgment filed by Bureau of Health Care Services Infection Control Coordinator, Joseph Silva, John Steinhart, Theresa Delbalso, John Kerestes, Paul Noel, Bureau of Health Care Services Assistant Medical Director, John Wetzel, Christopher Oppman, Department Of Corrections Of Pennsylvania.Signed by Honorable Robert D. Mariani on 5/10/18. (jam) (Main Document 272 replaced on 5/10/2018) (jam). (Entered: 05/10/2018)
273 ORDER denying 248 Medical Defendants' Motion to Dismiss; granting in part and denying in part 251 Corrections Defendants' Motion to Dismiss for Failure to State a Claim. The Corrections Defendants' Motion to Dismiss is GRANTED with respect to Plaintiff's claims against the Pennsylvania Department of Corrections. In all other respects, the Corrections Defendants' Motion to Dismiss is DENIED. Signed by Honorable Robert D. Mariani on 5/10/18 (jam) (Entered: 05/10/2018)
274 Unopposed MOTION for Extension of Time to File Answer re 245 Amended Complaint, by Bureau of Health Care Services Assistant Medical Director, Bureau of Health Care Services Infection Control Coordinator, Theresa Delbalso, John Kerestes, Paul Noel, Christopher Oppman, Joseph Silva, John Steinhart, John Wetzel. (Attachments: # 1 Proposed Order)(Neal, Laura) (Entered: 05/24/2018)
275 ANSWER to 245 Amended Complaint, (Fourth) with Affirmative Defenses by Correct Care Solutions, Jay Cowan, Shaista Khanum, John Lisiak, MD, Scott Saxon.(Goodrich, Caitlin) (Entered: 05/25/2018)
276 ORDER granting 274 Motion for Extension of Time to Answer re 245 Amended Complaint. The Corrections Defendants shall file their anser on or before June 4, 2018. Signed by Honorable Robert D. Mariani on 5/25/18 (lh) (Entered: 05/25/2018)
277 ANSWER to 245 Amended Complaint, (Fourth) by Bureau of Health Care Services Assistant Medical Director, Bureau of Health Care Services Infection Control Coordinator, Theresa Delbalso, Department Of Corrections Of Pennsylvania, John Kerestes, Paul Noel, Christopher Oppman, Joseph Silva, John Steinhart, John Wetzel.(Neal, Laura) (Entered: 06/04/2018)

06/11/2018
07/02/2018 07/02/2018 09/24/2018 03/01/2019 07/19/2019 08/12/2019

278 NOTICE OF APPEAL in Prisoner Case as to 273 Order on Motion to Dismiss,, Order on Motion to Dismiss for Failure to State a Claim, by Bureau of Health Care Services Assistant Medical Director, Bureau of Health Care Services Infection Control Coordinator, Theresa Delbalso, Department Of Corrections Of Pennsylvania, John Kerestes, Paul Noel, Christopher Oppman, Joseph Silva, John Steinhart, John Wetzel. Filing Fee and Docket Fee Paid. Filing fee $ 505, receipt number 03144451981. The Clerk's Office hereby certifies the record and the docket sheet available through ECF to be the certified list in lieu of the record and/or the certified copy of the docket entries. (Attachments: # 1 Appendix Doc. 273 May 10 Order granting in pt; denying in pt Corr. Def.'s Motion (doc. 251))(Neal, Laura) (Entered: 06/11/2018)
280 MOTION for Extension of Time to Expert Discovery by Mumia AbuJamal.(Grote, Bret) (Entered: 07/02/2018)
281 ORDER granting 280 Motion for Extension of Time to Complete Expert Discovery. See Order for details. Signed by Honorable Robert D. Mariani on 7/2/18 (jam) (Entered: 07/02/2018)
282 TRANSCRIPT PURCHASE ORDER REQUEST by Bureau of Health Care Services Assistant Medical Director, Bureau of Health Care Services Infection Control Coordinator, Theresa Delbalso, Department Of Corrections Of Pennsylvania, John Kerestes, Paul Noel, Christopher Oppman, Joseph Silva, John Steinhart, John Wetzel for proceedings held on 12/18/15, 12/22/15, 12/23/15 before Judge Robert D Mariani, (Neal, Laura) (Entered: 09/24/2018)
283 NOTICE of Appearance by Vincent R Mazeski on behalf of Bureau of Health Care Services Assistant Medical Director, Bureau of Health Care Services Infection Control Coordinator, Theresa Delbalso, Department Of Corrections Of Pennsylvania, Paul Noel, Christopher Oppman, Joseph Silva, John Steinhart, John Wetzel. (Mazeski, Vincent) (Entered: 03/01/2019)
284 JUDGMENT of USCA (certified copy) as to 278 Notice of Appeal,,, filed by Bureau of Health Care Services Infection Control Coordinator, Joseph Silva, John Steinhart, Theresa Delbalso, John Kerestes, Paul Noel, Bureau of Health Care Services Assistant Medical Director, John Wetzel, Christopher Oppman, Department Of Corrections Of Pennsylvania Affirmed in part and the appeal is Dismissed in part. (RL) (Entered: 07/19/2019)
285 MANDATE of USCA as to 278 Notice of Appeal,,, filed by Bureau of Health Care Services Infection Control Coordinator, Joseph Silva, John Steinhart, Theresa Delbalso, John Kerestes, Paul Noel, Bureau of Health Care Services Assistant Medical Director, John Wetzel, Christopher

08/16/2019
10/24/2019 10/25/2019
12/16/2019 12/18/2019 12/18/2019 01/09/2020 01/09/2020 01/16/2020

Oppman, Department Of Corrections Of Pennsylvania (Attachments: # 1 Opinion)(SLC) (Entered: 08/12/2019)
286 SCHEDULING ORDER: ORDERED THT: Plaintiff shall serve his expert report by 9/26/19. Defendants shall serve their expert report by 10/28/19. Plaintiff shall serve any supplemental report no later than 21 days after Defendants serve their expert report. Disposition motions shall be filed no later than 30 days after the service of any supplemental report. See Order for full details. Signed by Honorable Robert D. Mariani on 8/16/19. (jam) (Entered: 08/16/2019)
287 Consent MOTION for Extension of Time to Disclose Defendants' Experts (all Defendants Jointly) by Correct Care Solutions, Jay Cowan, Shaista Khanum, John Lisiak, MD, Scott Saxon. (Attachments: # 1 Proposed Order)(Foreman, Samuel) (Entered: 10/24/2019)
288 ORDER granting 287 Joint Consented Motion to Extend Time for Production of Expert Reports. The 8/16/19 Order is modified as follows: Defendants shall serve their expert reports no later than 11/27/19. Plaintiff shall serve any supplemental expert report no later than 21 days after Defendants serve their expert report. Dispositive motions shall be filed no later than 30 days after the service of any supplemental report. See Order for additional details. Signed by Honorable Robert D. Mariani on 10/25/19 (jam) (Entered: 10/25/2019)
289 MOTION for Extension of Time to Complete Discovery by Mumia Abu-Jamal. (Attachments: # 1 Proposed Order)(Grote, Bret) (Entered: 12/16/2019)
290 CERTIFICATE of by Mumia Abu-Jamal re 289 MOTION for Extension of Time to Complete Discovery . (Grote, Bret) (Entered: 12/18/2019)
291 ORDER granting 289 Plaintiff's Motion to Extend Time to File Suplemental Expert Report. Plaintiff shall serve his supplemental expert report no later than 12/23/19. Summary judgment motions are due no later than 30 days after supplemental expert reports are due. Signed by Honorable Robert D. Mariani on 12/18/19 (jam) (Entered: 12/18/2019)
292 WITHDRAWAL OF ATTORNEY APPEARANCE - Attorney Noah E Katz terminated on behalf of Dr. John Lisiak, Dr. Shaista Khanum, and Scott Saxon, PA-C. (Katz, Noah) (Entered: 01/09/2020)
293 CERTIFICATE OF SERVICE by Shaista Khanum, John Lisiak, MD, Scott Saxon re 292 Attorney Withdrawal of Appearance of Noah E. Katz, Esquire (Katz, Noah) (Entered: 01/09/2020)
294 MOTION to Exceed Page Limitation by Theresa Delbalso, John Kerestes, Paul Noel, Christopher Oppman, Joseph Silva, John Steinhart,

01/16/2020 01/17/2020 01/21/2020 01/22/2020
01/30/2020 01/30/2020 01/30/2020 01/30/2020

John Wetzel. (Attachments: # 1 Proposed Order)(Mazeski, Vincent) (Entered: 01/16/2020)
295 BRIEF IN SUPPORT re 294 MOTION to Exceed Page Limitation filed by Theresa Delbalso, John Kerestes, Paul Noel, Christopher Oppman, Joseph Silva, John Steinhart, John Wetzel.(Mazeski, Vincent) (Entered: 01/16/2020)
296 ORDER granting 294 Motion for Leave to File Excess Pages. Signed by Honorable Robert D. Mariani on 1/17/20 (jam) (Entered: 01/17/2020)
297 Consent MOTION for Extension of Time to of Deadline for Summary Judgment Motions by Correct Care Solutions, Jay Cowan, Shaista Khanum, John Lisiak, MD, Scott Saxon. (Attachments: # 1 Proposed Order)(Foreman, Samuel) (Entered: 01/21/2020)
298 ORDER granting 297 Motion for Short Extension of Dispositive Motion Deadline. This Court's Order of 12/18/19 is amended only in that any party's Motion for Summary Judgment shall be filed on or before 1/30/20. Signed by Honorable Robert D. Mariani on 1/22/20 (jam) (Entered: 01/22/2020)
299 MOTION for Summary Judgment by Theresa Delbalso, John Kerestes, Paul Noel, Christopher Oppman, Joseph Silva, John Steinhart, John Wetzel. (Attachments: # 1 Proposed Order)(Mazeski, Vincent) (Entered: 01/30/2020)
300 STATEMENT OF FACTS re 299 MOTION for Summary Judgment filed by Theresa Delbalso, John Kerestes, Paul Noel, Christopher Oppman, Joseph Silva, John Steinhart, John Wetzel.(Mazeski, Vincent) (Entered: 01/30/2020)
301 BRIEF IN SUPPORT re 299 MOTION for Summary Judgment filed by Theresa Delbalso, John Kerestes, Paul Noel, Christopher Oppman, Joseph Silva, John Steinhart, John Wetzel.(Mazeski, Vincent) (Entered: 01/30/2020)
302 APPENDIX by Theresa Delbalso, John Kerestes, Paul Noel, Christopher Oppman, Joseph Silva, John Steinhart, John Wetzel. to 299 MOTION for Summary Judgment . (Attachments: # 1 Exhibit(s) 1, # 2 Exhibit(s) 2, # 3 Exhibit(s) 3, # 4 Exhibit(s) 4, # 5 Exhibit(s) 5, # 6 Exhibit(s) 6, # 7 Exhibit(s) 7, # 8 Exhibit(s) 8, # 9 Exhibit(s) 9, # 10 Exhibit(s) 10, # 11 Exhibit(s) 11, # 12 Exhibit(s) 12, # 13 Exhibit(s) 13, # 14 Exhibit(s) 14, # 15 Exhibit(s) 15, # 16 Exhibit(s) 16, # 17 Exhibit(s) 17, # 18 Exhibit(s) 18, # 19 Exhibit(s) 19, # 20 Exhibit(s) 20, # 21 Exhibit(s) 21, # 22 Exhibit(s) 22, # 23 Exhibit(s) 23, # 24 Exhibit(s) 24, # 25 Exhibit(s) 25, # 26 Exhibit(s) 26, # 27 Exhibit(s) 27, # 28 Exhibit(s) 28, # 29 Exhibit(s) 29, # 30 Exhibit(s) 30, # 31 Exhibit(s) 31,

01/30/2020 01/30/2020 01/30/2020
01/30/2020 01/30/2020 01/30/2020 01/30/2020 01/30/2020

# 32 Exhibit(s) 32, # 33 Exhibit(s) 33, # 34 Exhibit(s) 34, # 35 Exhibit(s) 35, # 36 Exhibit(s) 36, # 37 Exhibit(s) 37, # 38 Exhibit(s) 38, # 39 Exhibit(s) 39, # 40 Exhibit(s) 40, # 41 Exhibit(s) 41, # 42 Exhibit(s) 42, # 43 Exhibit(s) 43, # 44 Exhibit(s) 44, # 45 Exhibit(s) 45, # 46 Exhibit(s) 46, # 47 Exhibit(s) 47, # 48 Exhibit(s) 47(2))(Mazeski, Vincent) (Entered: 01/30/2020)
303 APPENDIX by Theresa Delbalso, John Kerestes, Paul Noel, Christopher Oppman, Joseph Silva, John Steinhart, John Wetzel. to 299 MOTION for Summary Judgment . (Attachments: # 1 Exhibit(s) 47(3), # 2 Exhibit(s) 48, # 3 Exhibit(s) 48(2), # 4 Exhibit(s) 48(3))(Mazeski, Vincent) (Entered: 01/30/2020)
304 APPENDIX by Theresa Delbalso, John Kerestes, Paul Noel, Christopher Oppman, Joseph Silva, John Steinhart, John Wetzel. to 299 MOTION for Summary Judgment . (Attachments: # 1 Exhibit(s) 49, # 2 Exhibit(s) 49(2), # 3 Exhibit(s) 49(3), # 4 Exhibit(s) 50)(Mazeski, Vincent) (Entered: 01/30/2020)
305 APPENDIX by Theresa Delbalso, John Kerestes, Paul Noel, Christopher Oppman, Joseph Silva, John Steinhart, John Wetzel. to 299 MOTION for Summary Judgment . (Attachments: # 1 Exhibit(s) 50(2), # 2 Exhibit(s) 51, # 3 Exhibit(s) 51(2), # 4 Exhibit(s) 52, # 5 Exhibit(s) 53, # 6 Exhibit(s) 54, # 7 Exhibit(s) 55)(Mazeski, Vincent) (Entered: 01/30/2020)
306 MOTION for Summary Judgment by Correct Care Solutions, Jay Cowan, Shaista Khanum, John Lisiak, MD, Scott Saxon. (Attachments: # 1 Proposed Order)(Foreman, Samuel) (Entered: 01/30/2020)
307 MOTION to Exceed Page Limitation Prescribed by Local Rule 7.8(b)(2) in Brief in Support of MSJ by Correct Care Solutions, Jay Cowan, Shaista Khanum, John Lisiak, MD, Scott Saxon. (Attachments: # 1 Proposed Order, # 2 Exhibit(s) Proposed Brief in Support of MSJ)(Foreman, Samuel) (Entered: 01/30/2020)
308 STATEMENT OF FACTS re 306 MOTION for Summary Judgment filed by Correct Care Solutions, Jay Cowan, Shaista Khanum, John Lisiak, MD, Scott Saxon.(Foreman, Samuel) (Entered: 01/30/2020)
309 APPENDIX by Correct Care Solutions, Jay Cowan, Shaista Khanum, John Lisiak, MD, Scott Saxon. . (Attachments: # 1 Exhibit(s) A1)(Foreman, Samuel) (Entered: 01/30/2020)
310 APPENDIX by Correct Care Solutions, Jay Cowan, Shaista Khanum, John Lisiak, MD, Scott Saxon. . (Attachments: # 1 Exhibit(s) A2)(Foreman, Samuel) (Entered: 01/30/2020)

01/30/2020 01/30/2020 01/30/2020 01/30/2020 01/30/2020 01/30/2020 01/30/2020 01/30/2020
01/31/2020 01/31/2020 02/14/2020 02/14/2020

311 APPENDIX by Correct Care Solutions, Jay Cowan, Shaista Khanum, John Lisiak, MD, Scott Saxon. . (Attachments: # 1 Exhibit(s) A3)(Foreman, Samuel) (Entered: 01/30/2020)
312 APPENDIX by Correct Care Solutions, Jay Cowan, Shaista Khanum, John Lisiak, MD, Scott Saxon. . (Attachments: # 1 Exhibit(s) A4)(Foreman, Samuel) (Entered: 01/30/2020)
313 APPENDIX by Correct Care Solutions, Jay Cowan, Shaista Khanum, John Lisiak, MD, Scott Saxon. . (Attachments: # 1 Exhibit(s) A5, # 2 Exhibit(s) B)(Foreman, Samuel) (Entered: 01/30/2020)
314 APPENDIX by Correct Care Solutions, Jay Cowan, Shaista Khanum, John Lisiak, MD, Scott Saxon. . (Attachments: # 1 Exhibit(s) C1)(Foreman, Samuel) (Entered: 01/30/2020)
315 APPENDIX by Correct Care Solutions, Jay Cowan, Shaista Khanum, John Lisiak, MD, Scott Saxon. . (Attachments: # 1 Exhibit(s) C2)(Foreman, Samuel) (Entered: 01/30/2020)
316 APPENDIX by Correct Care Solutions, Jay Cowan, Shaista Khanum, John Lisiak, MD, Scott Saxon. . (Attachments: # 1 Exhibit(s) C3)(Foreman, Samuel) (Entered: 01/30/2020)
317 APPENDIX by Correct Care Solutions, Jay Cowan, Shaista Khanum, John Lisiak, MD, Scott Saxon. . (Attachments: # 1 Exhibit(s) C4)(Foreman, Samuel) (Entered: 01/30/2020)
318 APPENDIX by Correct Care Solutions, Jay Cowan, Shaista Khanum, John Lisiak, MD, Scott Saxon. . (Attachments: # 1 Exhibit(s) C5, # 2 Exhibit(s) D, # 3 Exhibit(s) E, # 4 Exhibit(s) F, # 5 Exhibit(s) G, # 6 Exhibit(s) H, # 7 Exhibit(s) I, # 8 Exhibit(s) J, # 9 Exhibit(s) K, # 10 Exhibit(s) L, # 11 Exhibit(s) M, # 12 Exhibit(s) N, # 13 Exhibit(s) O, # 14 Exhibit(s) P, # 15 Exhibit(s) Q, # 16 Exhibit(s) R, # 17 Exhibit(s) S, # 18 Exhibit(s) T, # 19 Exhibit(s) U, # 20 Exhibit(s) V, # 21 Exhibit(s) W)(Foreman, Samuel) (Entered: 01/30/2020)
DOCKET ANNOTATION: Counsel are reminded to send courtesy copies of Summary Judgment Motions, Statement of Facts, Briefs (in support, opposition and reply) and Exhibits to Chambers. No doublesided copies please. (jam) (Entered: 01/31/2020)
319 ORDER granting 307 Motion for Leave to File Excess Pages.Signed by Honorable Robert D. Mariani on 1/31/20 (jam) (Entered: 01/31/2020)
320 MOTION to Seal by Mumia Abu-Jamal. (Attachments: # 1 Proposed Order, # 2 Brief in Support)(ga) (Entered: 02/14/2020)
321 DOCUMENT(S) PENDING SEALING DECISION (Attachments: # 1 Proposed Order) (ga) (Entered: 02/14/2020)

02/18/2020 02/18/2020
04/13/2020 04/15/2020
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05/29/2020 06/01/2020
06/04/2020 06/04/2020 06/04/2020 06/04/2020

322 ORDER granting 320 Motion to Seal.Signed by Honorable Robert D. Mariani on 2/18/20 (jam) (Entered: 02/18/2020)
323 ORDER: ORDERED THAT Plaintiff's Motion for Enlargement of Time to File Response to Defendant's Motion for Summary Judgment (Doc. 321) is GRANTED. Plaintiff may file briefs in opposition to Defendants' pending summary judgment motions (Docs. 299, 306) no later than 4/27/20. Signed by Honorable Robert D. Mariani on 2/18/20. (jam) (Entered: 02/18/2020)
324 Second MOTION for Extension of Time to to Respond to Summary Judgment motions by Mumia Abu-Jamal. (Attachments: # 1 Proposed Order)(Grote, Bret) (Entered: 04/13/2020)
325 ORDER granting 324 Motion to Extend Time. Plaintiff's responses to DOC and Medical Defendants' respective motions for summary judgment are due by 5/27/20.Signed by Honorable Robert D. Mariani on 4/15/20 (jam) (Entered: 04/15/2020)
326 Third MOTION for Extension of Time to Respond to Summary Judgment Motions by Mumia Abu-Jamal.(Grote, Bret) (Entered: 05/21/2020)
327 ORDER granting 326 Motion to Extend Time. Plaintiff's Third Motion for Enlargement of Time to File Response to Defendants' Motion for Summary Judgment (Doc. 326) is GRANTED. Plaintiff may file briefs in opposition no later than 6/4/20. Signed by Honorable Robert D. Mariani on 5/22/20 (jam) (Entered: 05/22/2020)
328 MOTION to Exceed Page Limitation by Mumia Abu-Jamal. (Attachments: # 1 Proposed Order)(Grote, Bret) (Entered: 05/29/2020)
329 ORDER granting 328 Motion for Leave to File Excess Pages. Plaintiff may file briefs in opposition to Defendants' pending summary judgment motions (Docs. 299, 306) NOT TO EXCEED 12,800 WORDS. Signed by Honorable Robert D. Mariani on 6/1/20 (jam) (Entered: 06/01/2020)
330 BRIEF IN OPPOSITION re 299 MOTION for Summary Judgment filed by Mumia Abu-Jamal.(Grote, Bret) (Entered: 06/04/2020)
331 ANSWER TO STATEMENT OF FACTS re 300 Statement of Facts filed by Mumia Abu-Jamal.(Grote, Bret) (Entered: 06/04/2020)
332 BRIEF IN OPPOSITION re 306 MOTION for Summary Judgment filed by Mumia Abu-Jamal.(Grote, Bret) (Entered: 06/04/2020)
333 ANSWER TO STATEMENT OF FACTS re 308 Statement of Facts filed by Mumia Abu-Jamal.(Grote, Bret) (Entered: 06/04/2020)

06/04/2020
06/17/2020 06/18/2020 06/19/2020 06/29/2020 09/15/2020

334 APPENDIX by Mumia Abu-Jamal. to 330 Brief in Opposition to Motion for Summary Judgment, 333 Answer to Statement of Facts, 331 Answer to Statement of Facts, 332 Brief in Opposition to Motion for Summary Judgment Appendix for Responses to DOC and Medical Defendants Summary Judgment Motions. (Attachments: # 1 Exhibit(s), # 2 Exhibit(s), # 3 Exhibit(s), # 4 Exhibit(s), # 5 Exhibit(s), # 6 Exhibit(s), # 7 Exhibit(s), # 8 Exhibit(s), # 9 Exhibit(s), # 10 Exhibit(s), # 11 Exhibit(s), # 12 Exhibit(s), # 13 Exhibit(s), # 14 Exhibit(s), # 15 Exhibit(s), # 16 Exhibit(s), # 17 Exhibit(s), # 18 Exhibit(s))(Grote, Bret) (Entered: 06/04/2020)
335 Joint MOTION for Extension of Time to File Brief to 332 Brief in Opposition to Motion for Summary Judgment by the Medical and Corrections Defendants filed by Correct Care Solutions, Shaista Khanum, John Lisiak, MD, Scott Saxon.(Foreman, Samuel) (Entered: 06/17/2020)
336 REPLY BRIEF re 299 MOTION for Summary Judgment filed by Theresa Delbalso, John Kerestes, Paul Noel, Christopher Oppman, Joseph Silva, John Steinhart, John Wetzel.(Mazeski, Vincent) (Entered: 06/18/2020)
337 ORDER granting 335 Motion for Extension of Time to File Response/Reply re 306 MOTION for Summary Judgment , 299 MOTION for Summary Judgment . Reply Brief due by 6/26/2020.Signed by Honorable Robert D. Mariani on 6/19/20 (jam) (Entered: 06/19/2020)
338 REPLY BRIEF re 306 MOTION for Summary Judgment filed by Correct Care Solutions, Shaista Khanum, John Lisiak, MD, Scott Saxon.(Foreman, Samuel) (Entered: 06/29/2020)
339 NOTICE by Theresa Delbalso, John Kerestes, Paul Noel, Christopher Oppman, Joseph Silva, John Steinhart, John Wetzel re 299 MOTION for Summary Judgment (Supplemental Authority) (Mazeski, Vincent) (Entered: 09/15/2020)

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