Case: 3:16-cv-02000-RDM As of: 02/04/2019 11:30 AM EST 1 of 8
CLOSED,SCR,SPADFORM
United States District Court Middle District of Pennsylvania (Scranton) CIVIL DOCKET FOR CASE #: 3:16−cv−02000−RDM

Abu−Jamal v. Wetzel et al Assigned to: Honorable Robert D. Mariani Related Case: 3:15−cv−00967−RDM Case in other court: Third Circuit, 17−01125
Third Circuit, 17−01156 Cause: 42:1983 Prisoner Civil Rights Plaintiff
Mumia Abu−Jamal

Date Filed: 09/30/2016 Date Terminated: 05/04/2017 Jury Demand: None Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
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
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

V. Defendant John Wetzel Secretary of PA DOC
Defendant Dr. Paul Noel DOC Bureau of Health Care Services Chief of Clinical Services
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

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 ATTORNEY TO BE NOTICED
represented by Maria G. Macus (See above for address) ATTORNEY TO BE NOTICED
represented by Maria G. Macus (See above for address) ATTORNEY TO BE NOTICED
represented by Maria G. Macus (See above for address) ATTORNEY TO BE NOTICED

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Defendant Correct Care Solutions Representative on the Hepatitis C Treatment Committee Defendant Correct Care Solutions
Defendant Joseph Silva DOC Director of Bureau of Health Care Services Defendant Treating Physician SCI Mahanoy

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
Samuel H. Foreman Weber, Gallagher, Simpson, Stapleton, Fires & Newby, LLP 2 Gateway Center Suite 1450 Pittsburgh, PA 15222 412−281−4541 Fax: 14122815113 Email: sforeman@wglaw.com ATTORNEY TO BE NOTICED
represented by Maria G. Macus (See above for address) ATTORNEY TO BE NOTICED

Date Filed 09/30/2016 09/30/2016
09/30/2016
10/03/2016

# Docket Text
1 COMPLAINT against Bureau of Health Care Services Assistant Medical Director, Bureau of Health Care Services Infection Control Coordinator, Correct Care Solutions, Correct Care Solutions Representative, Paul Noel, Joseph Silva, Treating Physician SCI Mahanoy, John Wetzel ( Filing fee $400, Receipt Number 0314−3884471), filed by Mumia Abu−Jamal. (Attachments: # 1 Exhibits, # 2 Civil Cover Sheet)(rm) (Entered: 09/30/2016)
2 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 complaint on all defendants in the manner prescribed by Rule 4 of the Federal Rules of Civil Procedure). (Attachments: # 1 Summons Packet) (rm) (Entered: 09/30/2016)
3 LETTER − The above−referenced action has been assigned to me. To ensure that the Case Management Conference is conducted in a timely manner, you are directed to file a written report within thirty (30) days as to whether servicehas been effected or a waiver of service obtained. The report will not be required if an affidavit of service has been filed within that time period. In addition, you are advised to refrain from entering into agreements for extensions of time for filing an answer or other responsive pleading to the complaint without court approval. Signed by Honorable Robert D. Mariani on 9/30/16. (jfg) (Entered: 09/30/2016)
SPECIAL ADMISSION FORM emailed to Attorney Robert Boyle (lg) (Entered: 10/03/2016)

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10/03/2016 10/04/2016 10/05/2016 10/05/2016 10/05/2016 10/05/2016
10/05/2016 10/06/2016
10/18/2016 10/25/2016
10/25/2016 10/25/2016 10/25/2016 10/26/2016

4 PETITION FOR SPECIAL ADMISSION (PRO HAC VICE) by Robert J. Boyle on behalf of Mumia Abu−Jamal Attorney Robert Boyle is seeking special admission. Filing fee $ 50, receipt number 0314−3887150.. (Boyle, Robert) (Entered: 10/03/2016)
5 Petition for Pro Hac Vice Admission by Mumia Abu−Jamal. 4 Petition for Special Admission − Pro Hac Vice . (Boyle, Robert) (Entered: 10/04/2016)
DOCKET ANNOTATION: Attorney Robert Boyle is active with the NY state bar. (lh) (Entered: 10/05/2016)
6 ORDER re 5 Document Filed filed by Mumia Abu−Jamal Special Admission granted for Robert J. Boyle. Signed by Honorable Robert D. Mariani on 10/5/16. (jfg) (Entered: 10/05/2016)
7 MOTION for Preliminary Injunction by Mumia Abu−Jamal. (Attachments: # 1 Proposed Order, # 2 Rule 7.1 Certification, # 3 Certificate of Service)(Boyle, Robert) (Entered: 10/05/2016)
8 BRIEF IN SUPPORT and Exhibits re 7 MOTION for Preliminary Injunction filed by Mumia Abu−Jamal. (Attachments: # 1 Exhibit(s) Ex. 1 hearing day 1, # 2 Exhibit(s) Ex. 2 hearing day 2, # 3 Exhibit(s) Ex. 3 hearing day 3, # 4 Exhibit(s) Ex.4 medical records pre 12−/15, # 5 Exhibit(s) Ex. 5 article, # 6 Exhibit(s) Ex. 6cdc report 5−4−16, # 7 Exhibit(s) Ex. 7 article, # 8 Exhibit(s) Ex. 8 article psoriasis−Hep C, # 9 Exhibit(s) Ex. 9 AASLD Guidelines, # 10 Exhibit(s) Ex. 10 cdc report on Hep C, # 11 Exhibit(s) Ex. 11 VA press release, # 12 Exhibit(s) EX. 12 Declaration of Joseph Harris, # 13 Exhibit(s) Ex. 13 lab reports, # 14 Exhibit(s) Ex. 14 Declaration of Mumia Abu Jamal, # 15 Exhibit(s) Ex. 15 DOC Hep C protocol, # 16 Exhibit(s) Ex. 16 Declaration of Paul Noel, # 17 Exhibit(s) Ex. 17 June 2016 lab report, # 18 Exhibit(s) Ex. 18.1 medical records post June 2015, # 19 Exhibit(s) Ex. 18.2 medical records post June 2015)(Boyle, Robert) (Entered: 10/05/2016)
9 Certificate of Service, Brief in Support of Preliminary Injunction by Mumia Abu−Jamal. 8 Brief in Support,,,, 7 MOTION for Preliminary Injunction . (Boyle, Robert) (Entered: 10/05/2016)
10 SUMMONS Returned Executed by Mumia Abu−Jamal. Bureau of Health Care Services Assistant Medical Director served on 10/4/2016, answer due 10/25/2016; Bureau of Health Care Services Infection Control Coordinator served on 10/4/2016, answer due 10/25/2016; Paul Noel served on 10/4/2016, answer due 10/25/2016; Joseph Silva served on 10/4/2016, answer due 10/25/2016; John Wetzel served on 10/4/2016, answer due 10/25/2016. (Grote, Bret) (Entered: 10/06/2016)
11 NOTICE of Appearance by Maria G. Macus on behalf of Bureau of Health Care Services Assistant Medical Director, Bureau of Health Care Services Infection Control Coordinator, Paul Noel, Joseph Silva, John Wetzel (Macus, Maria) (Entered: 10/18/2016)
12 MOTION for Extension of Time to File Response to Plaintiff's Motion for a Preliminary Injunction by Bureau of Health Care Services Assistant Medical Director, Bureau of Health Care Services Infection Control Coordinator, Paul Noel, Joseph Silva, John Wetzel. (Attachments: # 1 Proposed Order)(Macus, Maria) (Entered: 10/25/2016)
13 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, Paul Noel, Joseph Silva, John Wetzel. (Attachments: # 1 Proposed Order)(Macus, Maria) (Entered: 10/25/2016)
14 BRIEF IN OPPOSITION re 12 MOTION for Extension of Time to File Response to Plaintiff's Motion for a Preliminary Injunction filed by Mumia Abu−Jamal.(Boyle, Robert) (Entered: 10/25/2016)
15 CERTIFICATE OF SERVICE by Mumia Abu−Jamal re 14 Brief in Opposition to motion for extension (Boyle, Robert) (Entered: 10/25/2016)
16 ORDER THAT Defendants' Motion (Doc. 12) is GRANTED. Defendants shall file a response to Plaintiffs Motion for a Preliminary Injunction (Doc. 7) on or before November 8,2016.Signed by Honorable Robert D. Mariani on 10/25/16 (jfg) (Entered:

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11/08/2016 11/08/2016 11/22/2016 11/22/2016 12/01/2016
01/03/2017 01/03/2017
01/03/2017 01/04/2017 01/04/2017 01/10/2017 01/12/2017
01/12/2017

10/26/2016)
17 BRIEF IN SUPPORT re 13 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Bureau of Health Care Services Assistant Medical Director, Bureau of Health Care Services Infection Control Coordinator, Paul Noel, Joseph Silva, John Wetzel. (Attachments: # 1 Appendix)(Macus, Maria) (Entered: 11/08/2016)
18 BRIEF IN OPPOSITION re 7 MOTION for Preliminary Injunction filed by Bureau of Health Care Services Assistant Medical Director, Bureau of Health Care Services Infection Control Coordinator, Paul Noel, Joseph Silva, John Wetzel. (Attachments: # 1 Exhibit(s), # 2 Appendix)(Macus, Maria) (Entered: 11/08/2016)
19 BRIEF IN OPPOSITION re 13 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Mumia Abu−Jamal.(Grote, Bret) (Entered: 11/22/2016)
20 REPLY BRIEF re 7 MOTION for Preliminary Injunction filed by Mumia Abu−Jamal.(Grote, Bret) (Entered: 11/22/2016)
21 COURT REPORTER NOTES OF PROCEEDINGS filed by K. Yeager of Teleconference before Judge Mariani on 12/1/16. 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 12/1/16. By s/ K. Yeager. (Court Reporter Notes are viewable by court staff only). (cr) (Entered: 12/01/2016)
23 MEMORANDUM OPINION − For the reasons stated above, the Court will grant Plaintiff's motion for a preliminary injunction. A separate Order follows.Signed by Honorable Robert D. Mariani on 1/3/17. (jfg) (Entered: 01/03/2017)
24 ORDER 1. Plaintiff's Motion for Preliminary Injunction is GRANTED. 2.Defendants are ENJOINED from enforcing the Hepatitis C Protocol as it pertains to Plaintiff. 3. Defendants shall arrange for the Plaintiff to be seen by a Supervision Physician within 14 days of the date of this order who is experienced in the treatment of Hepatitis Cutilizing the most current medications. 4. Defendants shall ensure that Plaintiff is prescribed and treated with OM medications unless the Supervising Physician determines−in his or her professional and independent medical judgment−that there are medical contraindications to Plaintiff receiving OM medication that render the administration of the medication not medically advisable. 5. Defendants shall provide Plaintiff with DM medication no later than 7 days after the Supervising Physician's determination that there are no contraindications for the administration of DM medications to Plaintiff.Signed by Honorable Robert D. Mariani on 1/3/17. (jfg) (Entered: 01/03/2017)
25 ORDER THAT Defendants' Motion to Dismiss, (Doc. 13), is DENIED for the same reasons outlined in this Court's Opinion on Plaintiffs Motion for a Preliminary Injunction, (Doc. 23).Signed by Honorable Robert D. Mariani on 1/3/17. (jfg) (Entered: 01/03/2017)
26 NOTICE of Appearance by Samuel H. Foreman on behalf of Correct Care Solutions (Foreman, Samuel) (Entered: 01/04/2017)
27 NOTICE of Appearance by Caitlin J Goodrich on behalf of Correct Care Solutions (Goodrich, Caitlin) (Entered: 01/04/2017)
28 ORDER: Case Management Conference set for 3/9/2017 11:15 AM in Scranton before Honorable Robert D. Mariani.Signed by Honorable Robert D. Mariani on 1/10/17. (jfg) (Entered: 01/10/2017)
29 MOTION to Amend/Correct 23 Memorandum (Order to follow as separate docket entry), 24 Order (memorandum filed previously as separate docket entry), Terminate Motions,,,,,,,, by Bureau of Health Care Services Assistant Medical Director, Bureau of Health Care Services Infection Control Coordinator, Paul Noel, Joseph Silva, John Wetzel. (Attachments: # 1 Exhibit(s) Declaration of Paul Noel, M.D., # 2 Proposed Order)(Macus, Maria) (Entered: 01/12/2017)
30 MOTION to Stay re 23 Memorandum (Order to follow as separate docket entry), 24 Order (memorandum filed previously as separate docket entry), Terminate Motions,,,,,,,, by Bureau of Health Care Services Assistant Medical Director, Bureau

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01/12/2017
01/16/2017 01/17/2017 01/17/2017 01/17/2017 01/18/2017 01/18/2017
01/19/2017 01/19/2017 01/19/2017 01/23/2017 01/23/2017 01/23/2017

of Health Care Services Infection Control Coordinator, Paul Noel, Joseph Silva, John Wetzel. (Attachments: # 1 Proposed Order)(Macus, Maria) (Entered: 01/12/2017)
31 NOTICE OF APPEAL in Prisoner Case as to 24 Order (memorandum filed previously as separate docket entry), Terminate Motions,,,,,,,, 25 Order (memorandum filed previously as separate docket entry), Terminate Motions by Bureau of Health Care Services Assistant Medical Director, Bureau of Health Care Services Infection Control Coordinator, Paul Noel, Joseph Silva, John Wetzel. Filing Fee and Docket Fee PAID. Filing fee $ 505, receipt number 0314−3975635. 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. (Macus, Maria) (Entered: 01/12/2017)
32 BRIEF IN OPPOSITION re 30 MOTION to Stay re 23 Memorandum (Order to follow as separate docket entry), 24 Order (memorandum filed previously as separate docket entry), Terminate Motions,,,,,,,, filed by Mumia Abu−Jamal. (Attachments: # 1 Declaration Declaration of Joseph Harris, M.D.)(Boyle, Robert) (Entered: 01/16/2017)
33 USCA Case Number 17−1125 for 31 Notice of Appeal,, filed by Bureau of Health Care Services Infection Control Coordinator, Joseph Silva, Paul Noel, Bureau of Health Care Services Assistant Medical Director, John Wetzel. USCA Case Manager James (DOCUMENT IS RESTRICTED AND CAN ONLY BE VIEWED BY COURT STAFF). (King, James) (Entered: 01/17/2017)
34 MOTION for Extension of Time to File Answer re 1 Complaint, by Bureau of Health Care Services Assistant Medical Director, Bureau of Health Care Services Infection Control Coordinator, Paul Noel, Joseph Silva, John Wetzel. (Attachments: # 1 Proposed Order)(Macus, Maria) (Entered: 01/17/2017)
35 RESPONSE by Mumia Abu−Jamal to 34 MOTION for Extension of Time to File Answer re 1 Complaint, CONCURRENCE TO MOTION. (Boyle, Robert) (Entered: 01/17/2017)
36 MOTION to Stay , MOTION for Joinder in Co−Defendant's Motion to Stay by Correct Care Solutions. (Attachments: # 1 Proposed Order)(Foreman, Samuel) (Entered: 01/18/2017)
37 NOTICE OF APPEAL in Prisoner Case as to 23 Memorandum (Order to follow as separate docket entry) by Correct Care Solutions. Filing Fee and Docket Fee PAID. Filing fee $ 505, receipt number 0314−3979232. 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 Exhibit(s))(Foreman, Samuel) (Entered: 01/18/2017)
38 MOTION to Amend/Correct 23 Memorandum (Order to follow as separate docket entry) by Mumia Abu−Jamal. (Attachments: # 1 Proposed Order)(Boyle, Robert) (Entered: 01/19/2017)
39 BRIEF IN SUPPORT re 38 MOTION to Amend/Correct 23 Memorandum (Order to follow as separate docket entry) filed by Mumia Abu−Jamal.(Boyle, Robert) (Entered: 01/19/2017)
40 BRIEF IN OPPOSITION re 36 MOTION to Stay MOTION for Joinder in Co−Defendant's Motion to Stay filed by Mumia Abu−Jamal.(Boyle, Robert) (Entered: 01/19/2017)
41 MOTION for Extension of Time to File Answer re 1 Complaint, Motion for Enlargement of Time to File Response to Plaintiff's Complaint by Correct Care Solutions.(Goodrich, Caitlin) (Entered: 01/23/2017)
42 USCA Case Number 17−1156 for 37 Notice of Appeal, filed by Correct Care Solutions. USCA Case Manager James (DOCUMENT IS RESTRICTED AND CAN ONLY BE VIEWED BY COURT STAFF). (King, James) (Entered: 01/23/2017)
43 ORDER of USCA as to 37 Notice of Appeal, filed by Correct Care Solutions. Appeal stayed in USCA pending post−decision motion in District Court. (King, James) (Entered: 01/23/2017)

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01/24/2017
01/25/2017 01/25/2017
01/26/2017
01/26/2017 01/30/2017 01/30/2017 01/31/2017 01/31/2017 02/07/2017 02/07/2017 02/21/2017 02/22/2017 02/24/2017

44 ORDER granting 41 Motion for Extension of Time to Answer Complaint. DOC Defts' answer to Complaint is due no later than 14 days after the resolution of Defts' Motion to Amend Findings of Fact, or for Reconsideration, or if an appeal is ultimately pursued, 14 days after the resolution of Defts' appeal of this Court's Order granting the preliminary injunction. Signed by Honorable Robert D. Mariani on 1/24/2017 (rm) (Entered: 01/24/2017)
45 Amended MOTION for Extension of Time to to Respond to Plaintiff's Complaint by Correct Care Solutions. (Attachments: # 1 Certificate of Concurrence, # 2 Proposed Order)(Foreman, Samuel) (Entered: 01/25/2017)
46 ORDER THAT Defendant's Motion, (Doc. 45) is GRANTED. Defendant Correct Care Solutions' answer to Plaintiffs Complaint, (Doc. 1), is due no later than fourteen (14) days after the resolution of DOC Defendants' Motion to Amend Findings of Fact or, in the alternative, for Reconsideration, (Doc. 29), or, if an appeal is ultimately pursued, fourteen (14) days after the resolution of DOC Defendants' appeal of this Court's Order granting the preliminary injunction. IT IS FURTHER ORDERED THAT Defendant Correct Care Solutions' Motion for Enlargement of Time to File a Response to Plaintiff's Complaint, (Doc. 41), is DISMISSED AS MOOT.Signed by Honorable Robert D. Mariani on 1/25/17 (jfg) (Entered: 01/25/2017)
47 BRIEF IN SUPPORT re 29 MOTION to Amend/Correct 23 Memorandum (Order to follow as separate docket entry), 24 Order (memorandum filed previously as separate docket entry), Terminate Motions,,,,,,,, filed by Bureau of Health Care Services Assistant Medical Director, Bureau of Health Care Services Infection Control Coordinator, Paul Noel, Joseph Silva, John Wetzel.(Macus, Maria) (Entered: 01/26/2017)
48 BRIEF IN SUPPORT re 30 MOTION to Stay re 23 Memorandum (Order to follow as separate docket entry), 24 Order (memorandum filed previously as separate docket entry), Terminate Motions,,,,,,,, filed by Bureau of Health Care Services Assistant Medical Director, Bureau of Health Care Services Infection Control Coordinator, Paul Noel, Joseph Silva, John Wetzel.(Macus, Maria) (Entered: 01/26/2017)
49 MOTION for Joinder in Certain Filings of Co−Defendants, at Docket Numbers 29, 47, and 48 by Correct Care Solutions. (Attachments: # 1 Certificate of Concurrence, # 2 Proposed Order)(Foreman, Samuel) (Entered: 01/30/2017)
50 ORDER granting 49 Motion for Joinder − Deft Correct Care Solutions will be deemed to have filed certain filings [29, 47, 48] jointly with its co−defendants. Signed by Honorable Robert D. Mariani on 1/30/2017 (rm) (Entered: 01/30/2017)
51 BRIEF IN OPPOSITION re 29 MOTION to Amend/Correct 23 Memorandum (Order to follow as separate docket entry), 24 Order (memorandum filed previously as separate docket entry), Terminate Motions,,,,,,,, filed by Mumia Abu−Jamal. (Attachments: # 1 Exhibit(s) Appeal Decision)(Boyle, Robert) (Entered: 01/31/2017)
52 AMENDED DOCUMENT by Mumia Abu−Jamal. Amendment to 32 Brief in Opposition, to Motion to Stay Injunction. (Attachments: # 1 Exhibit(s) Appeal Decision, # 2 Declaration Declaration of Joseph Harris, # 3 cover letter)(Boyle, Robert) (Entered: 01/31/2017)
53 MOTION for Contempt by Mumia Abu−Jamal. (Attachments: # 1 Proposed Order, # 2 Exhibit(s))(Grote, Bret) (Entered: 02/07/2017)
54 BRIEF IN SUPPORT re 53 MOTION for Contempt filed by Mumia Abu−Jamal. (Attachments: # 1 Exhibit(s), # 2 Exhibit(s))(Grote, Bret) (Entered: 02/07/2017)
55 BRIEF IN OPPOSITION re 53 MOTION for Contempt filed by Bureau of Health Care Services Assistant Medical Director, Bureau of Health Care Services Infection Control Coordinator, Paul Noel, Joseph Silva, John Wetzel.(Macus, Maria) (Entered: 02/21/2017)
56 REPLY BRIEF re 53 MOTION for Contempt filed by Mumia Abu−Jamal.(Grote, Bret) (Entered: 02/22/2017)
57 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

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03/27/2017 03/31/2017 03/31/2017 04/04/2017 04/05/2017 04/05/2017
04/06/2017 04/13/2017 04/14/2017 04/17/2017

18, 2017, at 11:15a.m. All other directives set forth in the Court's prior scheduling Order, (Doc. 28), remain unchanged. Signed by Honorable Robert D. Mariani on 2/24/17. (jfg) (Entered: 02/24/2017)
58 Supplement by Mumia Abu−Jamal. to 30 MOTION to Stay re 23 Memorandum (Order to follow as separate docket entry), 24 Order (memorandum filed previously as separate docket entry), Terminate Motions,,,,,,,, , 53 MOTION for Contempt , 36 MOTION to Stay MOTION for Joinder in Co−Defendant's Motion to Stay Rule 7.36 Supplemental Authority. (Attachments: # 1 Exhibit(s))(Boyle, Robert) (Entered: 03/27/2017)
59 STATUS REPORT by Bureau of Health Care Services Assistant Medical Director, Bureau of Health Care Services Infection Control Coordinator, Paul Noel, Joseph Silva, John Wetzel. (Macus, Maria) (Entered: 03/31/2017)
60 ORDER: Telephone Status Conference set for 4/5/2017 at 02:30 AM in Scranton before Honorable Robert D. Mariani. Pltf's Counsel is responsible for arranging the call. Signed by Honorable Robert D. Mariani on 3/31/2017. (rm) (Entered: 03/31/2017)
61 STATUS REPORT by Mumia Abu−Jamal. (Attachments: # 1 Exhibit(s) elastography report, # 2 Exhibit(s) sonogram report)(Boyle, Robert) (Entered: 04/04/2017)
62 COURT REPORTER NOTES OF PROCEEDINGS filed by K. Yeager of Teleconference before Judge Mariani on 4/5/17. 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 4/5/17. By s/ K. Yeager. (Court Reporter Notes are viewable by court staff only). (cr) (Entered: 04/05/2017)
63 ORDER 1. In accordance with the Court's prior Order, (Doc. 23), granting preliminary injunctive relief for the Plaintiff, Plaintiff will be administered the direct−acting antiviral agent Harvoni beginning Thursday, April 6, 2017, and that such treatment will continue for aperiod of twelve consecutive weeks; 2. DOC counsel will file with the Court no later than Monday, April 10, 2017, confirmation that the Plaintiffs treatment with Harvoni has commenced; 3. Plaintiff will be tested to confirm the efficaciousness of the treatment, which test will be administered twelve weeks after the completion after the twelve week period during which the Plaintiff will be administered Harvoni. 4.Counsel for the DOC Defendants will regularly communicate with Plaintiffs counsel for the purpose of advising them as to the progress of the Plaintiffs treatment and to respond to any requests for information regarding that treatment. 5. Defendants' Motion to Amend Finding of Facts or in the Alternative for Reconsideration, (Doc. 29), is DISMISSED AS MOOT. 6. DOC Defendants' Motion to Stay the preliminary injunction, (Doc. 30), isDISMISSED AS MOOT. 7. Correct Care Solutions' Motion to Stay the preliminary injunction, (Doc. 36), is DISMISSED AS MOOT. 8. Plaintiffs Motion to Amend/Correct, (Doc. 38), is DISMISSED AS MOOT. 9. Plaintiffs Motion for Contempt, (Doc. 53), will be held in abeyance pending confirmation of completion of Plaintiffs treatment with Harvoni as outline herein.Signed by Honorable Robert D. Mariani on 4/5/17 (jfg) (Entered: 04/05/2017)
65 STATUS REPORT in Compliance with April 5, 2017 Order by Bureau of Health Care Services Assistant Medical Director, Bureau of Health Care Services Infection Control Coordinator, Paul Noel, Joseph Silva, John Wetzel. (Macus, Maria) (Entered: 04/06/2017)
66 CERTIFIED ORDER of USCA in lieu of formal MANDATE as to 31 Notice of Appeal,, filed by Bureau of Health Care Services Infection Control Coordinator, Joseph Silva, Paul Noel, Bureau of Health Care Services Assistant Medical Director, John Wetzel. Order dismissed in USCA pursuant to Fed. R. App. P. 42(b). (King, James) (Entered: 04/13/2017)
67 CERTIFIED ORDER of USCA in lieu of formal MANDATE as to 37 Notice of Appeal, filed by Correct Care Solutions. Appeal dismissed pursuant to Fed. R. App. P. 42(b). (King, James) (Entered: 04/14/2017)
68 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. Wetzel, astatus conference

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04/18/2017
05/04/2017 05/04/2017
10/17/2018 11/05/2018

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. by Honorable Robert D. Mariani on 4/17/17. (jfg) (Entered: 04/17/2017)
69 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)
71 Joint MOTION to Consolidate Cases by Mumia Abu−Jamal. (Attachments: # 1 Proposed Order)(Boyle, Robert) (Entered: 05/04/2017)
72 ORDER granting 71 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−cv−967. Going forward all filings shall be filed under Index Number 15−cv−967.Signed by Honorable Robert D. Mariani on 5/4/17 (lh) (Entered: 05/04/2017)
73 Letter from Ronald DeMeco requesting copies. (lh) Modified on 10/18/2018 (jam). (Entered: 10/17/2018)
74 Letter from Bienvenido Rodriguez, Jr. requesting copies of documents in this case. (lh) (Entered: 11/05/2018)

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

MUMIA ABU-JAMAL Plaintiff,

CaseNo./; /6- Cil' 20{)()

v.
John Wetzel, Secretary of Pennsylvania Department of Corrections

Judge Robert D. Mariani JURY TRIAL DEMANDED

Dr. Paul Noel, DOC 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

ELECTRON!CALLY FILED
FILED SCRANTON
SEP 3 0 2016
PER /lf{.e1
-._____ DEPUTY CLERK

Correct Care Solutions representative on the Hepatitis C Treatment Committee

Correct Care Solutions

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

Treating Physician SCI Mahanoy

Defendants.

- - - - - - - - - - - - - - - - - - -··-·- -·----·--· .... Case 3:16-cv-02000-RDM Document 1 Filed 09/30/16 Page 2 of 27
COMPLAINT JURISDICTION 1. This is an action for injunctive relief for violations of the Eighth 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
(4).
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. Mr. Abu]amal 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.
2

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5. 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 official capacity for injunctive relief. At all times relevant hereto, Defendant Wetzel acted under color of state law.
6. Defendant Paul Noel, M.D. is the Chief of Clinical Services for the DOC's Bureau of Health Care Services (BHCS). 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 Treatment 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 official capacity for injunctive relief. At all times relevant hereto defendant Noel acted under color of state law.
7. Defendant BHCS Assistant Medical Director is a DOC official who sits on
the Hepatitis C Treatment Committee that is responsible for implementing
the DOC's hepatitis C protocol and makes recommendations concerning which inmates will receive hepatitis C treatment. He or she is sued in their official capacity for injunctive relief. At all times relevant hereto defendant acted under color of state law.
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8. Defendant BHCS Infection Control Coordinator is a DOC official who sits on the Hepatitis C Treatment Committee that is responsible for implementing the DOC's hepatitis C protocol and makes recommendations concerning which inmates will receive hepatitis C treatment. He or she is sued in their official capacity for injunctive relief. At all times relevant hereto defendant acted under color of state law.
9. Defendant Correct Care Solutions' (CCS) representative on the Hepatitis C Treatment Committee is employed by the corporation contracted to provide medical services to the DOC. This defendant sits on the Hepatitis C Treatment Committee that is responsible for implementing the DOC's hepatitis C protocol and makes recommendations concerning which inmates will receive hepatitis C treatment. He or she is sued in their official capacity for injunctive relief. At all times relevant hereto defendant acted under color of state law.
10. Correct Care Solutions is the corporation contracted to provide medical services to those who, like plaintiff, are incarcerated in the DOC. This includes the provision of hepatitis C treatment. CCS is sued in its official capacity. At all times relevant hereto defendant acted under color of state law.
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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. At all times relevant hereto, defendant Silva acted under color of state law.
12. Defendant Treating Physician SCI Mahanoy is the physician assigned to SCI Mahanoy who is responsible for plaintiffMumia Abu-Jamal's health care. He or she is sued in their official capacity for injunctive relief and not for money damages. At all times relevant hereto the defendant acted under color of state law. STATEMENT OF FACTS
13. This action seeks an injunction against defendants in their official capacities to immediately provide plaintiff, Mumia Abu-Jamal, with the Federal Drug Administration (FDA) approved hepatitis C direct-acting antiviral medications. Hepatitis C
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14. Hepatitis C (HCV) is a virus that infects cells of the liver. Approximately 75-85 percent ofindividuals infected with the HCV will develop chronic hepatitis C, causing progressive inflammation of the liver.
15. Inflammation caused by the virus can lead to scarring, known as fibrosis, and extreme scarring, known as cirrhosis, both of which affect liver functioning.
16. One of the ways liver inflammation is measured is on the Metavir scale. On that scale FO means no fibrosis and F4 means cirrhosis
17. Chronic hepatitis C patients with any liver scarring, i.e. greater that FO are at a greater risk of rapid disease progression.
18. 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.
19.About 19% of those who develop cirrhosis will go on to develop liver cancer.
20. Approximately 20% of all those with chronic hepatitis C will die from complications of the disease.
21. In the United States, hepatitis C causes more deaths than all other infectious diseases combined
22. Chronic hepatitis C often causes complications outside of the liver, including anemia and diabetes.
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23.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).
24. 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.
25. 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.
26. 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
27. The Pennsylvania Department of Corrections (DOC), 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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28. There are at least 5,400 inmates under the jurisdiction of the DOC who have active, i.e. chronic, hepatitis C.
29. In 2013, when the current anti-viral drugs became available, the DOC, through its Bureau of Health Care Services, with the knowledge and approval of defendants Wetzel and Noel, ceased treating all inmates in the custody of the DOC who have active, i.e. chronic hepatitis C.
30. This policy continued under the direction of defendant Noel with the knowledge and approval of defendant Wetzel throughout 2014 and most of 2015.
31. In late 2015, defendant 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.
32. 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. See Protocol, Exhibit A attached hereto and made a part hereof.
33. Under that policy, only inmates with decompensated cirrhosis with bleeding are authorized to receive the anti-viral drugs.
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34. 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.
35. 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.
36. The DOC Policy Statement requires that copies of the Procedures Manual be delivered to each Facility Manager (Superintendent).
37. The protocol delegates to an ad hoc grouping known as the Hepatitis C Treatment Committee the authority to make recommendations as to which inmates would receive hepatitis C anti-viral treatment.
38. Defendant Noel as BHCS Chief of Clinical Services, defendant BHCS Assistant Medical Director, defendant BHCS Infection Control Coordinator, and defendant CCS representative all sit on the hepatitis C Committee and implement the policy delegated to them by the hepatitis C protocol authorized by defendant Wetzel.
39. This policy was adopted and implemented by defendants Wetzel, Silva, Noel, CCS, and the Hepatitis C Treatment Committee defendants even
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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. 40. The defendants, and each of them, adopted and implemented this protocol even though they knew that the standard of care in the community, as articulated by the AASID and CDC is to treat all who have chronic hepatitis C. 41. This protocol remains in effect and is administered and enforced by defendants Wetzel, Silva, Noel, CCS, and the members of the Hepatitis C Treatment Committee. 42. In defendant Wetzel's presentation to the Pennsylvania Senate Appropriations Committee in February 2016, during which he made his budget request for the DOC for fiscal year 2016-2017, he said the following about the DOC's projected budget for the treatment of hepatitis C: "In October 2015, the DOC updated its Hepatitis C policy, which included guidelines for the evaluation and treatment of inmates who have this disease. We estimate 50 patients will be treated annually, prioritizing
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Case 3:16-cv-02000-RDM Document 1 Filed 09/30/16 Page 11 of 27
treatment to those with advanced disease. The estimated cost of treatment is between $3.5 and $5 million."1 43.50 patients are less than 1% of those with chronic hepatitis C in DOC custody. At this rate of treatment it would take more than 100 years to treat everybody with chronic hepatitis C currently in DOC custody. 44. Defendant Wetzel also informed the Senate Appropriations Committee in February 2016 that "[t]he DOC netted further savings by using its status as a covered entity under the Public Health Service Act to obtain HIV and Hepatitis C drugs at reduced prices." 45. 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 46. 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.
1 Accessible at: http: //www.cor.pa.gov/ Documents/20162017%20DOC%20Appropriations%20Testimony.pdf.
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47.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.
48. 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.
49. In or about August 2014, Mr. Abu-Jamal's hepatitis C infection began to manifest itself through a severe skin rash that itched incessantly.
50. 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.
51. On or about February 11, 2015, Dr. Lisiak, one of his treating physicians at SCI Mahanoy, noted that the itchy rash covered 70% of Mr. Abu-Jamal's body.
52. On February 16 and February 17, plaintiff again went to sick call and saw Dr. I<hanum, another treating physician. Dr. Khanum also noted that the rash covered 70% of plaintifPs body. Plaintiff told Dr. Khanum that he felt dizzy and experienced some blurred vision.
53. PlaintifPs 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.
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54. On February 20, 2015, Dr. Khanum ordered that plaintiff be admitted to the facility inftrmary.
55. On that same date, Dr. Lisiak noted that plaintiffs blood glucose had risen to an above-normal167. No one at SCI Mahanoy told the plaintiff that his blood glucose was abnormally high.
56. 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 ordered a test to determine whether the infection was active and/or whether hepatitis C might be the underlying cause of the skin condition and/or the rise in blood sugar levels.
57. In late February 2015, SCI Mahanoy medical staff prescribed another steroid, oral prednisone, and Cyclosporine, an immunosuppressant. The rash persisted. A medical note dated February 19,2015 recorded the fact that Mr. Abu-Jamal was experiencing "increasing peeling off of dry skin at the site of rashes."
58. Blood work taken on March 6, 2015 showed that Mr. Abu-Jamal's glucose level had risen to the severely abnormal level of 419.
59. No action was taken to address the glucose level. There was no treatment provided, nor any follow up testing of his glucose level. SCI Mahanoy medical staff did not even inform Mr. Abu-Jamal of that test result.
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60. 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.
61. Untreated hyperglycemia is a potentially fatal condition. 62. 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. 63. In the weeks following the diabetic shock, Mr. Abu Jamal experienced fatigue, episodes of "brain fog" and emotional distress. 64. Mr. Abu-Jamal's blood work revealed, and continues to reveal abnormalities, including a consistently below-normal-range hemoglobin count. 6S.Although the Schuylkill release order noted that Mr. Abu Jamal had a "history" of hepatitis C, neither SCI Mahanoy medical staff nor any of the defendants took any steps to investigate whether the hepatitis C may be the cause of the rash and/or other medical issues.
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66. In the weeks and months that followed, counsel communicated with officials at SCI Mahanoy and their counsel via letter in an effort to secure adequate medical care for Mr. Abu-Jamal. Copies of some of the correspondence were sent to the office of the DOC's Director of its Bureau of Health Services, now occupied by defendant Silva, and defendant Wetzel, Secretary of the DOC.
67. 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.
68. On or about April 6, 2015, counsel sent letters to both former SCI Mahanoy Superintendent Kerestes and SCI Mahanoy's Corrections Health Care Administrator (CHCA) John Steinhart. Counsel told Kerestes and Steinhart, 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.''
69. On or about April11, 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.
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70. On or about April 28, 2015, CHCA 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 plaintiffs medical records.
71. Mr. Abu Jamal flied 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 its underlying cause.
72. On or about May 26, 2015, (after plaintiffs release from Geisinger Medical Center discussed infra) Superintendent Kerestes upheld the denial of the grievance. In that denial he stated that he had he had reviewed it and CHCA Steinhart's response and found that response to be "appropriate".
73. 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 tssues.
74. 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.
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75. 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.
76.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.
77.A CT scan performed at Geisinger noted irregularities in the architecture of plaintiffs liver, a sign of cirrhosis.
78. No hepatitis C workup was performed at Geisinger Medical Center. 79. 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 plaintiffs medical records at SCI Mahanoy. 80. None of the defendants' or medical staff at SCI Mahanoy ordered a hepatitis C blood test to determine whether the disease was chronic. 81. As DOC counsel had directed that all communications regarding plaintiffs medical issues be sent to Counsel's Office and not DOC officials directly, matters regarding plaintiffs health were brought to the defendants' attention through communications from plaintiffs counsel to DOC
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counsel. Upon information and belief, the content of those letters was shared with defendants Wetzel and Noel. 82. Meanwhile, on June 25, 2015, plaintiff ftled 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 argued, a determination of the "underlying causation responsible for my health related issues." 83. 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. 84. The report stated, inter alia, that in the physician's opinion, the skin condition was an extrahepatic manifestation of hepatitis C. 85. In that same letter plaintiff's counsel requested that bloodwork to determine whether the hepatitis C was active be done forthwith. 86. Neither the defendants nor their counsel responded to the letters from plaintiff's counsel. 87. 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.
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88. On or about August 13,2015, DOC Central Office advised Mr. Abu-Jamal 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,, under whose authority the Hepatitis C Treatment Committee would be created later in 2015.
89. On or about September 24,2015, the DOC Central Office affirmed the denial of plaintiff's medical care grievance. The denial noted Mr. AbuJamars 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.
90.In November 2015, Mr. Abu-Jamal flled his first amended complaint in the related case ofAbu-jamal v. Kerestes, 15-Cv-00967. In December 2015, the Honorable Robert D. Mariani ruled that Mr. Abu-Jamal had exhausted all administrative remedies for his medical care claims, including his claims of deliberate indifference to his medical need for hepatitis C treatment. See Hearing Transcript Volume 1 at 36-37 (holding that "exhaustion [of medical care and hepatitis C claims] has occurred in this case,). This ruling was reaffirmed in a subsequent written decision denying medical care defendants' motion to dismiss plaintiff's hepatitis C claims. Abu-Jamal v. Kerestes, 2016
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WL 3456935 *5 ("Court finds that Plaintiffs Grievance Number 561400 was sufficient to give prison officials and the Medical Defendants adequate notice of his claims."). 91. On several occasions between late July 2015 and mid-September 2015 plaintiff requested from his treating physicians 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 antivirals because of the medications' cost. 92. Plaintiffs 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. 93. Plaintiffs platelet levels, also a sign of hepatitis C progression, have been consistendy below normal since October 2015. His platelet counts were abnormally low in the latest blood work conducted in August 2016. 94. Based upon earlier bloodwork performed in June 2016, there is a more than 50% chance that plaintiffs disease has already progressed to cirrhosis and that he has suffered irreversible liver damage. 95. Plaintiff is now at significantly higher risk of developing liver cancer, portal hypertension (bleeding) and adult onset diabetes.
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96. Plaintiff continues to experience itching and severe discomfort from the skin condition. The therapies that have been applied have provided only temporary relief.
97. The skin condition will only be cured if the hepatitis C is treated. 98. Plaintiff's hemoglobin levels have remained below normal for over one year.
Anemia is an extrahepatic manifestation of hepatitis C. 99. On or about August 23, 2015, plaintiff's counsel ftled a motion for a
preliminary injunction requesting that the defendants in Abu-Jamal v. Kerestes provide plaintiffwith the anti-viral medication. 100. The DOC defendants in that case, through counsel, opposed that motion and have refused to provide the plaintiffwith that medication. 101. An evidentiary hearing on that motion was held on three dates in December, 2015. 102. Defendant Paul Noel testified at that hearing. He acknowledged that he had reviewed Plaintiff's medical records and concurred with the assessment that the Plaintiff has chronic hepatitis C, has a fibrosis level of at least 2.0, and that he has a HALT-C score indicating that there is a 63% chance that he currently has cirrhosis. 103. He further admitted that the hepatitis C committee, to wit defendant Noel himself, defendant BHCS Assistant Medical Director, defendant
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BHCS Infection Control Coordinator and the representative of Correct Care Solutions had determined that the plaintiff not receive the anti-viral medication. 104. Defendant Noel testified that in reaching that determination, the committee was acting in accordance with the hepatitis C protocol authorized by defendant DOC SecretaryJohn Wetzel and implemented through the office of defendant Silva. 105. Defendant Noel acknowledged that there is no medical justification for refusing to administer the anti-viral medication to the plaintiff. 106. Defendant Noel acknowledged in his testimony that he was aware that the recommendation of the American Association for the Study of Liver Diseases (AASLD) is that everyone with chronic hepatitis C should be treated with the anti-viral medication irrespective of disease stage. 107. On August 31, 2016,Judge Mariani ruled that "[t]he standard of care with respect to the treatment of chronic Hepatitis C is the administration of newly-developed DAA medications, such as Harvoni, Sovaldi~ and Viekira Pak." Abu-Jamal v. Kerestes, 2016 WL 45746464, *9 (M.D.Pa. 2016). 108. The Court then found as a matter of law that the DOC's hepatitis C treatment protocol "presents a conscious disregard of a known risk of advanced cirrhosis and death by esophageal hemorrhage," and as such
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"presents deliberate indifference to the known risks which follow from untreated hepatitis C." Id. 109. The DOC, through defendants Wetzel and Silva, 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 chronic hepatitis C, such as Mr. Abu-Jamal, receive medically necessary treatment. Instead, the defendant DOC, defendant Wetzel, defendant Silva, defendant Noel, defendant BHCS Assistant Medical Director and defendant Infection Control Coordinator withhold treatment and expose patients, including the plaintiff Mr. Abu-Jamal to medical injury and risk of further harm, up to and including death. 110. Defendant Wetzel, defendant Noel, defendant BHCS Assistant Medical Director, defendant Infection Control Coordinator are 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. 111. 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
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take steps to authorize a hepatitis C treatment protocol that provides medically necessary treatment for those infected with hepatitis C. 112. The hepatitis C policy under which plaintiff has been denied treatment was developed, administered and authorized by the offices of defendants Wetzel, Noel, Silva and Correct Care Solutions, the latter being the entity that is contracted to provide medical services to prisoners in DOC custody. 113. The policy is currently enforced by the offices of defendants Wetzel, Noel, the other HCV Committee defendants, Silva, and Correct Care Solutions. 114. The policy is enforced on the facility level by the offices of the Corrections Health Care Administrator (CHCA) Steinhart, Superintendent DelBalso, and the Treating Physician SCI Mahanoy. 115. 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. 116. The defendants, including but not limited to defendants Wetzel, Noel, the other HCV Committee defendants, Silva, and CCS know through correspondence from plaintiffs counsel, requests made by the plaintiff himself, plaintiffs own medical records, the evidence adduced at the December 2015 hearing in Abu-Jamalv. Kerestes, and this Court's August 31,
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2016 decision in that case, 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. 117. The sole basis for refusing to provide the anti-viral drugs to plaintiff is monetary cost. 118. The DOC has actually spent more than $150,000 treating the symptoms and adverse effects of plaintiffs hepatitis C the past two years, far more than it would cost to cure the illness responsible for his health problems. 119. Plaintiff has no adequate remedy at law.
CAUSES OF ACTION Count I -Deprivation of Eighth Amendment Right to Medical Care for
Hepatitis C (Against all defendants in their official capacities for injunctive relief.) 120. Plaintiff re-alleges paragraphs 1-119 as if fully stated herein. 121. Defendants Wetzel, Noel, BCHS Assistant Medical Director, BCHS
Infection Control Coordinator, CCS representative on Hepatitis C Treatment Committee, BCHS Director Silva, Correct Care Solutions and treating physician SCI Mahanoy violated and, if injunctive relief is not issued, will continue to violate plaintiffs Eighth Amendment right to be free from cruel and unusual punishment through their deliberate indifference to his chronic hepatitis C. These defendants have failed and are
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failing to treat his chronic hepatitis C, causing plaintiff serious injuries, pain, suffering, and risk of death.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs request that the Court grant the following relief: A. Grant a preliminary and permanent 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. B. Grant attorneys' fees and costs.

DATED: September 30, 2016

lsi 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

l si Robert T. Bovle

.,_

D

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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Case 3:16-cv-02000-RDM Document 1 Filed 09/30/16 Page 27 of 27

CERTIFICATE OF SERVICE
I hereby certify that I served a copy of this Complaint upon each defendant in the following manner:
Via email:
For Defendants Wetzel, Noel, Silva, BHCS Medical Director, BHCS Infection Control Coordinator:
Laura Neal, Esquire Pennsylvania Department of Corrections
1920 Technology Parkway Mechanicsburg, PA 17050
lneal@pa.gov
Via email:
For Defendants Correct Care Solutions, CCS representative, and Treating Physician, SCI Mahanoy Samuel H. Foreman, Esquire Caitlin Goodrich, Esquire sforeman@wglaw.com cgoodrich@wglaw.com

Dated: September 30, 2016

sI Bret D. Grote
Bret D. Grote Abolitionist Law Center P.O. Box 8654 Pittsburgh, PA 15221
27

 
 THE UNITED STATES DISTRICT COURT 
 FOR THE MIDDLE DISTRICT OF PENNSYLVANIA 


MUMIA ABU·JAMAL, 


Plaintiff,
v.
JOHN WETZEL, et aI.,

3:16·CV·2000 (JUDGE MARIANI)

Defendants.

MEMORANDUM OPINION

I. INTRODUCTION &PROCEDURAL HISTORY

Presently before the Court is Plaintiff's Motion for a Preliminary Injunction, (Doc. 7),

filed October 10, 2016. Plaintiff, a state prisoner, seeks this injunction to require

Defendants to immediately treat his active hepatitis C infection with direct-acting antiviral

drugs. (Doc. 7). This is not Plaintiff's 'first attempt at such relief. On August 31,2016, this

Court, in a related case, denied Plaintiff's request for a preliminary injunction seeking the

same relief. Abu-Jamal v. Kerestes, 2016 WL 4574646 (M.D. Pa 2016).1 Thus, to fully

understand the posture in which the present case comes before this Court, a brief history of

both cases is necessary.

Plaintiff, Mumia Abu-Jamal, filed a complaint in Abu-Jamal 1on May 18, 2015,

"claiming violations of the right to association and access to the courts." Abu-Jamal v.

Kerestes, 2016 WL 4574646, at *1. On August 24, 2015, Plaintiff filed a motion for a

1 For clarity, this Court will refer to the Court's former decision as Abu-Jama/ v. Kerestes, while referring to that case's docket as a whole as "Abu-Jama/1."

preliminary injunction seeking to compel Defendants-various medical staff involved in the 
 treatment of his medical conditions and several Pennsylvania Department of Correction ("DOC") staff-to provide him with "immediate treatment of his hepatitis Cwith recently developed direct-acting antiviral ("OM") medication." Id. This Court held a three day evidentiary hearing on the matter in December of 2015. Id.
In an Opinion issued on August 31,2016, this Court found that the "DOC has an interim protocol to address patients with hepatitis C" and that. under that protocol, a "Hepatitis CTreatment Committee has the ultimate authority to decide whether" an inmate is treated with DDA medications. Id. at *5, *8. This Court went on to conclude 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 *9. This Court, however, did not issue a preliminary injunction because "[i]t was the Hepatitis CTreatment Committee who made the decision not to give Plaintiff OM medications and that had, and continues to have, the ultimate authority to determine whether or not Plaintiff will receive the OM medications," and "[t]he named Defendants [were] not members of the Hepatitis C Treatment Review Committee. "2 Id. Thus, this Court concluded that it could not "properly
2 Two weeks prior to the issuance of the Court's Opinion, Plaintiff moved for leave to file a third amended complaint. The third amended complaint would name one member of the Hepatitis CTreatment Review Committee. Dr. Paul Noel, as a defendant. The Court has not yet ruled on this motion.
2 


issue an injunction against the named Defendants, as the record contain(ed] no evidence 
 that they hard] authority to alter the interim protocol or its application to Plaintiff."3 Id. at *10.
On September 30,2016, Plaintiff filed the Complaint in this action alleging a single count titled "Deprivation of Eighth Amendment Right to Medical Care for Hepatitis C" and naming the following as defendants: John Wetzel, Secretary of Pennsylvania Department of Corrections; Dr. Paul Noel, DOC Bureau of Health Care Services Chief of Clinical Services, member of Hepatitis CTreatment Committee; Bureau of Health Care Services Assistant Medical Director, member of Hepatitis CTreatment Committee; Bureau of Health Care Services Infection Control Coordinator, member of Hepatitis CTreatment Committee; Correct Care Solutions representative on the Hepatitis CTreatment Committee; Correct Care Solutions; Joseph Silva, DOC Director of Bureau of Health Care Services; and Treating PhYSician SCI Mahanoy. (Id.). On October 5,2016, Plaintiff filed a Motion for a Preliminary Injunction seeking the relief this Court denied in Abu-Jamal v. Kerestes. (Doc. 7). In support thereof, Plaintiff attached the transcripts from the evidentiary hearing held in Abu-Jamal 1. 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 the present
3 Plaintiff has filed a Motion for Reconsideration of the Order stemming from the Abu-Jamal v. Kerestes Opinion. The Court has yet to rule on that motion.
3 


motion on the basis of the exhibits filed.4 The issue has been fully briefed and is now ripe
for decision. For the reasons set forth below, the Court will grant Plaintiffs Motion.
II. FINDINGS OF FACTS
Because the Court is relying on the testimony that was given in Abu-Jamal 1, the
Court adopts the following findings of facts from Abu·Jamal v. Kerestes:
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 198:1A). Dr. Cowan has treated patients with hepatitis Cin 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 C is 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
4 See Prof'l Plan Exam'rs of N.J. v. Lefante, 750 F.2d 282,288 (3d Cir. 1984) (liAs a general principle, the entry or continuation of an injunction requires a hearing. Only when the facts are not in dispute, or when the adverse party has waived its right to a hearing, can that significant procedural step be eliminated.") (internal citations omitted).
4 


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 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. (ld. at 204: 18-205:1).
7. Individuals with cirrhosis are at an increased risk for ascites, which is an accumulation of peritoneal 11uid 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. (ld. at 207:23-208:14).
8. Metavir scores indicate the level of fibrosis in the liver on a fivepoint 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).
10. Correct Care Solutions C'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. (Id. at 4:8-13). Dr. Cowan also testified that he "serve[s] on the Correct Care Solutions Hepatitis C Review Committee." (Id. at 67:16-17).
12. Dr. Cowan testified that there is "not very good concordance between physical symptoms [of hepatitis C] that a patient may experience
5 


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. (Id. at 201 :8-9).
14. Sovaldi and Harvoni are DM 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)).
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. (Jd. at 26:4-7). Dr. Cowan further agreed that successful treatment of hepatitis C has been shown to reduce, if not eliminate, fatigue in patients with chronic hepatitis C. (Id. at 28:1-4).
18. The October 2015 guidelines from the American Association for the Study of Liver Diseases ("MSLD") and Infectious Diseases SOciety of America ("IDSA") entitled "When and in Whom to Initiate HCV Therapy" "recommend treatment [using DM therapies] for all patients with chronic HCV ["hepatitis C virus"] infection, except those with short life expectancies
6 


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).
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, PI.'s Ex. 17 at 5-6). The CDC refers providers caring for hepatitis C-infected patients to the AASLD/I DSA guidance for continuously updated information regarding hepatitis Ctreatment. (/d. 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 C treatment 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." (ld. at 66:19-22).
23. Dr. Cowan testified "[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).
24. Dr. Cowan testified that "[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. (ld. at 90:12-23).
7 


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." (ld. 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).
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 testified 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 Cwho are in the most need of treatment
8 


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. (Id. at 101:7-13). He also testified that he helped draft the interim protocol. (ld. at 126:8-14).
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 C treatment 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 defined 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 C Antiviral 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).
9 


r !

I

f

40. According to the protocol, all patients with chronic hepatitis C

I

will be entered into the Liver Disease Chronic Care Clinic and given a diagnosis of "no cirrhosis," "compensated cirrhosis," or "decompensated

I

cirrhosis.1I (PI.'s Ex. 30 at 3). Patients with "no cirrhosis" will be seen for a

follow-up Clinic appointment every twelve months, patients with

t

"compensated cirrhosis" will be seen for a follow-up every six months, and

I

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 C will be

I

"put into the Chronic Care Clinic," which he defined as "a tracking system to

I

ensure that they are seen on a regular basis." According to Dr. Noel's testimony, U[t]he vast majority of them will live in general population and just

I

be followed by one of [the] providers on-site, along with an Infectious Control

l

Nurse ...." (Noel Test., Dec. 23,2015, at 104:16-21).

,t
}­

42. According to Dr. Noel, "[i]f a patient is absolutely 100 percent asymptomatic, ... they're seen at least once a year." (Id. at 106:1-5). Dr. Noel testified that "[o]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 risk in drug therapy and their treatment options may be limited to liver transplantation." (PI.'s Ex. 30 at 5, ~ 3).

44. According to the interim protocol, U[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 "[t]hese patients will be individually evaluated for prioritization in ascending order of platelet count ...." (PI.'s Ex. 30 at 5, ~ 5).

10 


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 C Treatment 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 idenUFIed as someone who needs further evaluation" and would then be referred to the Central Office's Hepatitis C Review 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 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, 1f 1). Dr. Noel testified that the
Committee consists of himself, as "the 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 di'fficult cases." (Noel Test., Dec. 23, 2015 at 129:22-130: 1).
48. The individual's clinical status will be reviewed by the Hepatitis C Treatment Committee for prioritization for treatment with DM medications.
(PI.'s Ex. 30 at 7, 1f 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 DM medication, an esophageal gastroendoscopy ("EGD") will be approved to evaluate the patient
11 


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 EGO," and, if so 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 U[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.
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
12 


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." (Id. 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. Plaintiff's expert witness Dr. Joseph Harris, a board-certified internist who sees, among others, patients with hepatitis C, testified that, in his opinion, Plaintiff's 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 testi'fied that hepatitis C can also cause the skin conditions psoriasis and eczema. (Id. at 137:13-20).
57. Dr. Harris testified that the way to treat NAE is to "[t]reat the Hepatitis C" and that the fact that Plaintiff's skin condition has not fully resolved after extensive treatment speaks strongly for the condition being "either [NAE] or some condition that's predicated on the Hepatitis Cthat'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).
13 


59. The DOC Defendants' expert witness Dr. Stephen Schleicher, a board-certified 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 C infection, 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).
62. Dr. Noel testified that the Hepatitis C Treatment 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 C Treatment Committee has the ultimate authority to decide whether Plaintiff receives DAA medication. (ld. at 129:18-21).
64. Upon review of Plaintiffs case, the Hepatitis C Committee determined that Plaintiff "did not have cirrhosis or vast 'fibrosis and, therefore, he was excluded from current treatment, based on his liver condition." (ld. at 120:23-7). Dr. Noel testified that Plaintiff will be reviewed again in the future. (ld. at 121:8-11).
14 


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 C disease. (Cowan Test., Dec. 23, 2015 at 23:10-13).
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 Usome liver disease." (Noel Test., Dec. 23, 2015 at 147:3-8).
Abu-Jamal v. Kerestes, 2016 WL 4574646, at *2-*9. Additionally, the Court makes the
following findings of facts:
69. The interim policy was in effect from November 20, 2015, to November 7,
2016. (Docs. 8-15,18-1).
70. As of June 6, 2016, out of the estimated 5,426 inmates in the DOC system
with chronic hepatitis C, twelve had completed treatment with DAA medications and thirty-
eight more were receiving DAA medications. (Doc. 8-16, ~3).
15 


Hepatitis C Protocol 
 71. On November 7,2016, the DOC issued a new protocol for addressing inmates with hepatitis C. (Doc. 18-1). That protocol became effective on November 7, 2016. (/d.). 72. Under the current protocol, inmates are screened for Hepatitis C and those who test positive are tested for a measurable viral load to determine if they have chronic hepatitis C. (/d. at 1). 73. The Aspartate Aminotransferase to Platelet Ratio Index (APRI) score is used to predict the presence of cirrhosis.5 (ld. at 2). "An APRI score ~ 2.0 may be used to predict the presence of cirrhosis," although "[a] single APRI score should not be used in isolation." (ld.). 74. Inmates with chronic hepatitis Cwill be given a diagnosis of FO to F4, with FO being no fibrosis, F1 being mild fibrosis, F2 being moderate fibrosis, F3 being advanced fibrosis, and F4 being cirrhosis. (ld. at 4). Additionally, inmates with "chronic Hepatitis C ... will be entered into the Liver Disease Chronic Care Clinic." (Jd.). 75. Inmates will be seen in the clinic periodically according to their diagnosis as follows: FO-F2, every six months, F3, every three months, and F4, every month. (Id. at 6). 76. According to the protocol "[a]lthough all patients with chronic [hepatitis C] infection may benefit from treatment, certain cases are at higher risk for complications or
5 Use of the APRI score has replaced IJse of the HALT-C score. (Doc. 18 at 9). 
 16 


disease progression and require more urgent consideration for treatment." (Id.). Thus, the protocol adopts the Federal Bureau of Prisons Priority Criteria6 and uses such "priority criteria to ensure that those with the greatest need are identified and treated first." (Id.).
77. The protocol classifies inmates into one of four priority categories: Priority Level 1- Highest Priority for Treatment, Priority Level 2- High Priority for Treatment, Priority Level 3-Intermediate Priority for Treatment, and Priority Level 4 - Routine Priority for Treatment. (/d. at 7-8).
78. Priority Level 1 includes inmates with cirrhosis (except that an inmate with an isolated APRI score of ~ 2.0 is placed in Priority Level 2), hepatocellular carcinoma, comorbid medical conditions associated with hepatitis C, a certain type of chronic kidney disease, those taking immunosuppressant medication for a comorbid medical condition, and/or those who have already begun taking OM medications. (Id.). Priority Level 1also includes inmates who are liver transplant candidates or recipients. (/d. at 7). Priority Level 2 includes those with an APRI score ~ 2, advanced fibrosis on a liver biopsy, hepatitis B or HIV coinfections, comorbid liver diseases, and/or types of chronic kidney disease. (Id. at 8). Priority Level 3 includes inmates with an F2 diagnosis on a liver biopsy, an APRI score of
6 The DOC policy adopts the April 2016 Federal Bureau of Prisons Priority Criteria. (Doc. 18-1, H.1). In October of 2016, before the DOC policy was issued, the Federal Bureau of Prisons revised its policy. See Evaluation and Management of Chronic Hepatitis C Virus (HCV) Infection, FED. BUREAU OF PRISONS (Oct. 2016), https:/Iwww.bop.gov/resources/pdfs/hepatitis_c.pdf. The April 2016 Federal Bureau of Prisons Priority Criteria, which contained four priority categories, was "revised and condensed into three categories: high, intermediate. and low priority." Id. at i.
17 


1.5 to < 2, diabetes mellitus, and/or porphyria cutanea tarda. (Id.). Priority Level 4 includes
those with a FO or F1 diagnosis on a liver biopsy. (/d.).
79. The protocol dictates that an initial screening for treatment with DM
medications will occur for those inmates with an APRI score> 1.5 or a platelet count <
100,000 and will consist of the Correctional Health Care Administrator (CHCA), Infection
Control Nurse, and Site Medical Director reviewing the inmate's medical chart to "look for
the presence of any [of the enumerated] exclusionary indications." (Id. at 9). "If the CHCA
determines that there are no exclusionary indications to antiMviral treatment, [a referral form]
shall be forwarded to the [Bureau of Health Care Services Infection Control Coordinator] for
further evaluation, possible recommendations for further testing, and initial determination."
(ld.).
80. Further, the protocol states as follows:
The PA DOC has determined that there is no single method of prioritizing patients for treatment with antiMviral medications. Therefore, the patient's clinical status will be reviewed by a Hepatitis CTreatment Committee ....
The Committee will utilize the pertinent information available to determine if continued progression through the evaluation process is indicated.... If the patient is considered a candidate for treatment with antiMviral medication, shear wave elastography will be approved to document the stage of fibrosis/cirrhosis.
If the patient meets any of the criteria designated Priority Level 1 MHighest Priority for Treatment ... proceed with the following:
a. full ultrasound screening for HCC every six months; b. EGO for esophageal varices surveillance; c. refer to Supervisory PhysiCian for final review and the ordering of DM
medications unless there are contraindications; and
18

d. follow in Chronic Care Clinic every month.
For those patients approved for elastography, the results will be forwarded to the Committee for review.
a. Fibrosis Stage 0-2 (1) Repeat Elastography in two years. (2) Follow in Chronic Care Clinic every six months.
b. Fibrosis Stage 3
(1) Refer to the Supervising Physician for final review and the ordering of DM medications unless there are contraindications.
(2) Follow in Chronic Care Clinic every three months.
c. Fibrosis Stage 4
(1) Full ultrasound screening for HCC every six months. (2) EGO for esophageal varices surveillance. (3) Refer to the Supervising Physician for final review and the
ordering of DM medications unless there are contraindications. (4) Follow in Chronic Care Clinic every month.
The Committee will render its decision and forward the determination, along with follow-up recommendations for those not meeting current priority criteria for greatest need of treatment with anti-viral medications, to the ICN and Site Medical Director, who will then discuss the results with the patient ....
If the Committee recommends treatment with anti-viral medication, the Site Medical Director will refer the patient to a supervising physician who will direct the anti-viral treatment.
(Id. at 10-11).
III. Conclusions of Law
Because the Court is relying on many of the same facts as it did in Abu-Jama/1, the
Court adopts the following conclusions of law from Abu-Jama/ v. Kerestes:
1. Plaintiff has chronic hepatitis C.
19 


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]. It was the Hepatitis C Treatment Committee who made the decision not to give Plaintiff DM medications and that had, and continues to have, the ultimate authority to determine whether or not Plaintiff will receive the DM medications that offer him at least a 90 to 95 percent chance of attaining SVR - that is, of being cured of hepatitis C. Abu-Jamal v. Kerestes, 2016 WL 4574646, at *9. Additionally, the Court makes the following conclusions of law: 4. Chronic hepatitis C constitutes a serious medical need. 5. The Hepatitis CProtocol, in both how it is written and how it is implemented, bars those without vast fibrosis or cirrhosis from being approved for treatment with DM medications. As such, the Hepatitis C Protocol presents a conscious disregard of a known risk that inmates with fibrosis, like Plaintiff, will suffer from hepatitis Crelated complications, continued liver scarring and damage progressing into cirrhosis, and from cirrhosis related complications such as ascites, portal hypertension, hepatic encephalopathy, and esophageal varices. 6. The Hepatitis CProtocol deliberately delays treatment for hepatitis C through the administration of DM drugs such as Harvoni, Sovaldi, and Viekira Pak despite the knowledge of Defendants that sit on the Hepatitis CTreatment Committee: (1) that the aforesaid DM medications will effect a cure of Hepatitis Cin
20 


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.
7. Plaintiff was denied the treatment with DAA medications pursuant to DOC policy, not because of any medical exclusions.
8. The named Defendants who sit on the Hepatitis C Treatment Committee deliberately denied administering DAA drugs to Plaintiff despite knowing that administering such drugs was the standard of care. In choosing a course of monitoring over treatment, they consciously disregarded the known risks of Plaintiff's serious medical needs, namely continued liver scarring, disease progression, and other hepatitis Ccomplications.
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) 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 nonmoving
21 


party will suffer irreparable harm if the injunction is issued; and (4) the public interest."'7 
 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), aff'd and remanded, 613 F.3d 405 (3d Cir. 2010).
"[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. St Croix
Renaissance, Grp., LLP, 528 F.3d 176, 179 (3d Cir. 2008) (citing Tom Doherty Assocs., Inc. V. Saban Entm't, 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 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.
7 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, Pa., 577 F.3d 521, 526 (3d Cir. 2009) (internal citation and quotation marks omitted).
22 


V.ANALYSIS
As a preliminary matter, Defendants argue that this Court should deny Plaintiff's request for injunctive relief pursuant to the "first-filed rule." While the Court finds the first­ filed rule does not bar the present action, it will brietly address the merits of this argument before turning to the preliminary injunction analysis.
A. First-Filed Rule At the outset, Defendants argue that this action is duplicative of Abu-Jamal 1, and the Court should therefore dismiss the current action pursuant to the "'flrst-med rule." (Doc. 18 at 6). Plaintiff argues that the rule does not apply because (1) this action and Abu-Jamal 1are pending in the same court and thus do not raise any of the issues the first-filed rule was created to prevent, (2) this action and Abu-Jamal 1are not truly duplicative and therefore the first-filed rule is inapplicable, and (3) even if the rule was applicable, it should not be applied because it would prejudice Plaintiff. (Doc. 20 at 1-4). Under the first-filed rule "[i]n all cases of [federal] concurrent jurisdiction, the court which first has possession of the subject must decide it." Crosley Corp. v. Hazeltine Corp., 122 F.2d 925, 929 (3d Cir. 1941 ) (quotation omitted). U[T]his policy of comity has served to counsel trial judges to exercise their discretion by enjoining the subsequent prosecution of 'similar cases ... in different federal district courts.'" E.E.D.C. v. Univ. of Pa., 850 F.2d 969,
971 (3d Cir. 1988) (alteration original) (quoting Compagne des Bauxites de Guinea v. Ins.
Co. of N. Am., 651 F.2d 877, 887 n.10 (3d Cir. 1981)). 'The first-filed rule encourages
23 


sound judicial administration and promotes comity among federal courts of equal rank. It 


gives a court 'the power' to enjoin the subsequent prosecution of proceedings involving the

same parties and the same issues already before another district court." Id.

In order for the rule to apply, "the later-filed case must be truly duplicative of the suit

before the court. That is, the one must be materially on all fours with the other. The issues

must have such an identity that a determination in one action leaves little or nothing to be

determined in the other." Grider v. Keystone Health Plan Cent., Inc., 500 F.3d 322, 333 n.6

(3d Cir. 2007) (alterations, internal citations, and quotations omitted). Even when the rule

t

applies, however, the power to enjoin actions "is not a mandate directing wooden

t

application of the rule without regard to rare or extraordinary circumstances, inequitable

I

t

conduct, bad faith, or forum shopping. District courts have always had discretion to retain

f

f

I

jurisdiction given appropriate circumstances justifying departure from the first-filed rule."

i

E.E.O.C., 850 F.2d at 972.

I

Here, the simple matter is that the two actions are not identical. Although the claim

t

in this action is identical to one of the claims in Abu-Jamal 1, the majority of Defendants in

I
!r

this action are different than the Defendants in Abu-JamaI1.8 See Complaint of Bankers

!

Trust Co. v. Chatterjee, 636 F.2d 37,40 (3d Cir. 1980) (stating that U[w]hen the claims,

I

parties, or requested relief differ" application of the rule may not be appropriate). Further, a

!

•

8 Defendants incorrectly assert that "[b]oth actions have three mutual Defendants, namely Wetzel, Silva, and NoeL" (Doc. 18 at 7). Although Plaintiff has moved to amend his complaint in Abu-Jama/1 to

I

add Defendants Wetzel and Noel, that motion is still pending before this Court. Thus, both actions have only one defendant currently in common: Joseph Silva.

I
!

%

24

r

t

!

f

!

I

decision in this case would not result in "little or nothing to be determined in" Abu-Jamal 1.

r I

See Grider, 500 F.3d at 333 n.6. Indeed, there are a variety of other matters to be decided

I

t

in Abu-Jamal 1.

I

~

Defendants, as they must, concede that these two actions are not identical. (Doc. 18

t

at 7). Nevertheless, they argue that "[i]t is of no matter that the defendants and claims are

I
I

i

not identical because Plaintiff has re-asserted the identical claim of deliberate indifference

!

that arises out of the same 'nucleus of operative facts' as the claims upon which [Abu-Jamal

I

1] is based." (Id.). Defendants cite Ball v. D'Addio, 2012 WL 3598412 (M.D. Pa 2012), for

!
!

the proposition that, under the first-filed rule, a court may dismiss a suit "where [Plaintiff]

I

filed the same claim in successive, but separate, lawsuits before" the same court. 2012 WL

f

3598412, at *7. Ball, however, involved a serial pro-se litigator with a "history of repeated,

frivolous and meritless litigation" who had twenty-five pending lawsuits before the same

court. Id. at *1. The claim in Ball "was legally identical and factually related to an earlier

claim brought by [Plaintiff] against this same Defendant in a prior lawsuit." Id. at *3

(emphasis added). Conversely, Plaintiff here initially filed this claim in Abu-Jamal 1. After

being told by this Court that he had sued the wrong people, Plaintiff filed the present action

against the proper Defendants. Thus, Balfs application of the first-filed rule to subsequent

identical claims brought by the same Plaintiff against the same Defendants in the same

court is not applicable to the case at hand.

25 


Nevertheless, even if the first-filed rule was applicable under these facts, the Court 
 has good cause to decline to exercise its discretion to enjoin. First, this case presents the type of "appropriate circumstances" that merit "departure from the first-filed rule." See E.E.O. C., 850 F.2d at 972. First, the spirit of the rule is not violated here. Indeed, in addition to comity, "the rule's primary purpose is to avoid burdening the federal judiciary and to prevent the judicial embarrassment of conflicting judgments." Id. at 977. The two cases at issue here appear before the same court. Thus, there is no risk that this Court will interfere with another court's affairs or that these two cases will produce corrnicting results.
Second, as this Court recognized in Abu-Jamal v. Kerestes, the questions raised in this motion for a preliminary injunction are "deserving of treatment and resolution at the level of the circuit courts or above." 2016 WL 4574646, at *14. As this Court has no doubt that its decision in this case will be appealed, extracting this single claim away from the multiple other claims presented in Abu-JamaI1-with its lengthy and complicated record-will aid appellate review of this matter by presenting it in a cleaner and simpler format.
In sum, while the Court finds the first-filed rule inapplicable under these facts, even if it did apply, the Court would decline to exercise its discretion to enjoin under that rule.
B. Preliminary Injunction As outlined above, to resolve this motion the Court must consider: "'(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 nonmoving
26 


party will suffer irreparable harm if the injunction is issued; and (4) the public interest.''' 
 McNeil Nutritionals, LLC, 511 F.3d at 356-57 (quoting Shire U.S. Inc., 329 F.3d at 352). Although Defendants only challenge the first factor, the Court will address each in turn.
1. The likelihood of success on the merits. 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, 101, 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 "plainUff[] must demonstrate (1) that the defendants were deliberately indifferent to [his or her] medical needs and (2) that those needs were serious." Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). Addressing the second prong first, 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), af('d, 649 F.2d 860 (3d Cir.1981)). Further, U[t]he seriousness of an inmate's medical need may also be determined by reference to the effect of denying the particular treatment." Id. Here, there can be no doubt that Plaintiff has chronic hepatitis C. Dr. Cowan, the DOC's expert witness, and Dr. Noel, one of the defendants in this case, both testified that Plaintiff has chronic hepatitis C. (Cowan Test, Dec. 22, 2015 at 218:24-219:1; Noel Test,
27 


Dec. 23,2015 at 123:14-16). Dr. Cowan also testified that he agreed that chronic hepatitis Cis a serious disease, that it is the number one cause for liver transplants in the United States, and that it is the number one cause of liver disease in the United States. (Cowan Test, Dec. 23, 2015 at 20:17-19,21 :22-22:2). According to the DOC's Interim Hepatitis C Protocol, treatment of hepatitis C "may significantly decrease the risk of disease progression and the development of decompensated cirrhosis, liver cancer, liver failure, and death." (Doc. 18-15 at 1). Further, both the AASLD and the CDC recommend treatment for someone with Plaintiffs condition. (See Findings of Fact, supra, ~~ 18-19). Thus, given that (1) Plaintiff has chronic hepatitis C, (2) the DOC's expert testified that chronic hepatitis Cis a serious disease that leads to serious medical complications when left untreated, (3) the DOC's prior protocol recognized the risk of non-treatment, and (4) the AASLD and CDC recommend treatment for someone with Plaintiff's condition, the Court finds that Plaintiffs has a reasonable likelihood of showing that chronic hepatitis C constitutes a serious medical need under the Eighth Amendment.9
Turning back to the first prong, this Court must now address whether Defendants' response to Plaintiff's serious medical need constitutes deliberate indifference. Deliberate indifference is akin to "recklessness as that term is defined in crirninallaw." 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.
9 Defendants make no argument that Plaintiffs chronic hepatitis C is not a serious medical need.
28

(quoting Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970,62 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 original) (quoting Farmer, 511 U.S. at 837). "[S]imple medical malpractice is insufficient to present a constitutional violation." Durmer v. O'Carroll, 991 F.2d 64, 67 (3d Cir. 1993). Nor do "mere disagreements over medical judgment ... state Eighth Amendment claims." White v. Napoleon, 897 F.2d 103,110 (3d Cir. 1990).
When a court evaluates an Eighth Amendment claim, "prison authorities are accorded considerable latitude in the diagnosis and treatment of prisoners." Durmer, 991 F.2d at 67. 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 (quotations and alteration omitted). 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. (quotation omitted).
29

Here, Plaintiff has a reasonable likelihood of success in showing that Defendants
acted with deliberate indifference to Plaintiff's chronic hepatitis C. Simply put, Defendants,
pursuant to DOC policy, deliberately chose a course of monitoring over treatment for non­
medical reasons and are allowing Plaintiff's condition to worsen while his liver function and
his health continues to deteriorate. In Abu-Jamal v. Kerestes, this Court found that the
DOC's interim protocol "delays treatment until an inmate's liver is sufficiently cirrhotic that a
gastroenterologist determines, at the end of alengthy, multi-step evaluation procedure
taking place over a long period of time, that inmate has esophageal varices." 2016 WL
4574646, at *13. Thus, the Court concluded that
the effect of the protocol is to delay administration of OM 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 marked by esophageal varices, the interim protocol prolongs the suffering of those who have been diagnosed with chronic Hepatitis C and 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.
Id. Here, Defendants seem to argue that the same conclusion is not warranted in light of
the DOC's new protocol that has replaced the interim protocol. (Doc. 18 at 8-9). The Court,
however, after careful review of the current DOC protocol, finds that a core aspect of the
interim protocol that led the Court to the above stated conclusion is still present in the
DOC's current protocol.
As discussed above, the standard of care as established by the CDC and MSLD for
treatment of patients with hepatitis C is the use of OM medications. The DOC's own
30 


expert, Dr. Cowan, agreed that the same standard of care as to hepatitis C treatment that is 

applicable to the community at large should apply in a correctional setting. (Cowan Test.,
Dec. 23, 2015, at 32: 17-20). Thus, the standard of care for treating Plaintiff is to administer
DAA medications such as Harvoni, Sovaldi, and Viekira Pak.
The DOC's interim protocol was a "prioritization protocol," meaning that it prioritized
inmates so that those in most need of the medications would receive it first. (Noel Test.,
Dec. 23, 2015, at 102:17-103:1). Simply prioritizing treatment so that those in the greatest
need are treated 'first likely would not constitute a constitutional violation. The DOC's
interim protocol, however, went one step further. The protocol stated
[i]f the patient is considered a candidate for treatment with anti-viral medication, an EGO will be approved to evaluate the patient for esophageal varices.
The results of the endoscopy will be forwarded to the Cornmittee for review. If there are no esophageal varices, the case will be returned to the site for regular follow up in the Chronic Care Clinic with a recommendation for repeat EGO in two to three years. If the endoscopy documents the presence of esophageal varices, the patient will be approved for referral to a supervising physician.
(Doc. 8-15 at 7). Dr. Noel, who sits on the Hepatitis CTreatment Committee and is a
defendant in this action, 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." (Noel Test., Dec. 23,
2015, at 128:25-129:2). He went on to indicate that, under the interim protocol, an inmate
needed to have cirrhosis before even being considered for treatment. (Id. at 129:6-8).
Thus, there was a requirement that an inmate's hepatitis C be in an advanced stage before
31 


Defendants would even consider treatment. This was in spite of the fact that (1) the standard of care is to administer DM medications regardless of the disease's stage, (2) inmates would likely suffer from hepatitis Ccomplications during that time, and (3) the delay in treatment reduced the efficacy of the DM medications,
The new protocol implemented by the DOC is also a prioritization protocol because it classifies inmates into different priority levels for treatment (Doc. 18-1 at 7-8), Much like the interim protocol, however, the new protocol completely bars those with chronic hepatitis Cbut without vast fibrosis or cirrhosis from receiving DM medications. Upon review by the Committee, if an inmate is considered for treatment with DM medications, the Committee orders shear wave elastography to determine the inmate's fibrosis level. (ld. at 10). Upon the results of that test, if the inmate has a fibrosis level of FO, F1 , or F2, the protocol instructs the Committee to order monitoring but not treatment with DM medications. (Id. at 11). Thus, those with mild or moderate fibrosis have no chance of receiving DM medications-the standard of care-and the protocol requires their hepatitis C to worsen before they will be considered for treatment.
In addition, the policy does not ensure that those with vast fibrosis or cirrhosis-and who do not have any contraindications-will definitely receive DM medications. Instead, the Hepatitis CTreatment Committee must still recommend treatment with DM medications after determining whether the inmate meets "current priority criteria for greatest need of treatment." (Doc. 18-1 at 11).
32 


In Plaintiff's case, he has a fibrosis level of F2 or F2.5, meaning his liver is scarred.
(Noel Test., Dec. 23, 2015, at 123:17-20; Harris Test., Dec. 22, 2015, at 21:19-22:6).
According to Dr. Noel, Plaintiff likely has some liver damage. (Noel Test., Dec. 23,2015, at
147:3-8). Dr. Noel also testified that, when the Hepatitis CTreatment Committee reviewed
Plaintiff's case, he was denied OM medications because he "did not have cirrhosis or vast
fibrosis." (Id. at 120:23-121 :7). Dr. Noel, however, could think of no medical reason why
Plaintiff should not receive OM medications. (Id. at 154:8-15). In effect, Plaintiff was
denied OM medications because his hepatitis C was not advanced enough under the DOC
interim protocol, not because of any medical reason why he should not receive treatment.10
Further, there is no indication that under the current DOC protocol Plaintiff would receive
OM medications.
Therefore, while the Defendants are correct that there is a new hepatitis C protocol
in place that is somewhat different than the Interim Hepatitis C Protocol, (Doc. 18 at 9), the
new protocol suffers from the same fatal flaw as the interim protocol: it refuses, without
medical justification, to provide treatment for certain inmates with hepatitis C and also
10 The Court recognizes the counterargument to this point is that the Defendants' decision that Plaintiffs condition is not advanced enough to require medication is itself a medical basis for not providing him DM medications. Stated otherwise, Defendants, in their medical opinions, determined that Plaintiffs medical condition was not one that warrants treatment yet. This argument, however, is misleading. As Dr. Noel testi'fied, the purpose of a prioritization protocol is "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, froml,igh priority to lower priority." (Noel. Test. Dec. 23, 2015, at 102:17-103:1). This would conceivably continue until all inmates with hepatitis C are treated. Thus, it is not Plaintiffs medical status that is driving the decision-as it would be, for example, if the risk of medication side effects outweighed the risks presented by the disease at its current stage.
33 


imposes an unreasonable condition-having vast fibrosis or cirrhosis-on treatment.11

"[O]utright refusal of any treatment for a degenerative condition that tends to cause acute
infection and pain if left untreated and [ ] imposition of a seriously unreasonable 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).
Defendants next argue that Plaintiff cannot establish deliberate indifference because
every court that has addressed this issue has found "that monitoring and treatment under
prioritization protocols is sufficient for Eighth Amendment purposes." (Doc. 18 at 12). In
support of this argument, Defendants cite fourteen cases from across the country that
address, in one way or another, an inmate's contention that they should receive OM
medications for his or her hepatitis C.12 (Id. at 12-14). Upon review ofthe case law cited by
11 The Court, however, cautions that simply removing the language in the protocol that bars treatment of inmates whose hepatitis C has not progressed to a certain advanced state would not necessarily resolve the issue. If the DOC removed this bar in the protocol, but only those inmates with the most advanced hepatitis C received OM medications in practice, the same problem would persist. For example, within the first six months of implementing the interim protocol, only 50 inmates out of the over 5,000 with chronic hepatitis C-Iess than 1%- received any OM medications. (Doc. 8-16, ~ 3). If that trend continues it would likely mean that inmates without vast fibrosis or cirrhosis would have no prospect of actually receiving OM medications, regardless of the way the prioritization protocol was written.
12 While there is a body of case law that developed before the availability of the current OM medications which addressed a prisoner's rights to hepatitis C medication, Defendants wisely do not rely on it. Those cases are all readably distinguishable, as the prior hepatitis C
treatment hard] serious potential side-effects, including nausea, anemia, depression, and decomposition of the liver. Its success rate [was] relatively low-15-30% for regular interferon and 40-50% for pegylated interferon treatment. The selection of patients for interferon treatment [was] highly individualized and depend[ed] upon many factors. Treatment [was] not appropriate for patients with advanced liver problems such as cirrhosis. Treatment for patients with mild liver problems may [have been] safely deferred. Suitability for treatment [was] determined by measuring the degree of liver inflammation and fibrosis through a liver biopsy. However, even if the appropriate threshold levels of
34

Defendants and for the reasons set out below, this Court is not persuaded that any of the
case law foreclose a finding of deliberate indifference in this action.
First, a couple of the cases cited by Defendants are inapplicable based on the
procedural posture in which they were presented to those courts. See Banks v. Gore, 2016
U.S. Dist. LEXIS 73468, at *12 (E.D. Va. 2016) (dismissing due to lack of jurisdiction
because the plaintiff failed to exhaust his administrative remedies);13 Melendez v. Fla. Oep't
of Corrs., 2016 WL 5539781, at *7 (N.D. Fla. 2016) (dismissing a complaint because the pro
se plaintiff did not pay the filing fee and his medical condition did not constitute an "imminent
danger of serious physical injury" which would enable him to proceed in forma pauperis
under 28 U.S.C. § 1915(g)), reporl and recommendation adopted, 2016 WL 5661012 (N.D.
Fla. 2016).
inflammation and fibrosis [were] present, treatment may [have been] inappropriate if the patient [was] too young or too old, had a previous organ transplant, or suffer[ed] from depression, other mental health problems, heart disease, or untreated chemical dependency.
Bender v. Regier, 385 F.3d 1133, 1135 (8th Cir. 2004). Thus, U[t]he decision whether or not to use
[prior] antiviral therap[ies] [was] a complex and controversial one." Moore v. Bennett, 777 F. Supp.
2d 969, 976 (W.D.N.C. 2011). In contrast, the new DAA medications have "relative low-risk side effects," "high success rates of 90 percent plus," (Cowan Test., Dec. 22, 2015, at 213:24-214:2), and are recommended for most individuals with hepatitis C. (See Findings of Fact, supra, 1111 18­ 21).
13 In dicta, after the court found that it lacked jurisdiction, the court went on to analyze the merits of the claim. The entire analysis is as follows:
Even if plaintiffs claims had been properly exhausted prior to filing this lawsuit, summary judgment in favor of Dr. Gore, Nurse Smith, and Nurse Kee is appropriate because the pleadings, affidavits, and exhibits on file demonstrate that the named defendants did not violate plaintiffs Eighth Amendment rights and plaintiff has not produced any evidence to the contrary.
Banks, 2016 U.S. Dist. LEXIS 73468, at *12-*13. 35 


Second, several of the holdings cited by Defendants rely on black letter law that 
 neither a mere disagreement between the inmate-patient and his or her doctor nor a mere refusal to provide an inmate with his or her requested course of treatment constitutes a constitutional violation. See Dulak v. Corizon Inc., 2015 U.S. Dist. LEXIS 131291, at *29 (E.D. Mich. 2015) (stating that the preliminary injunction was denied because the plaintiff essentially had a "disagreement with the treatment or lack of treatment that" he received), reporl and recommendation adopted, 2015 U.S. Dist. LEXIS 129702 (E.D. Mich. 2015); Johnson v. Frakes, 2016 WL 4148231, at *3 (D. Neb. 2016) ("Defendants' failure to provide Plaintiff with Harvoni, his requested course of treatment, does not constitute an Eighth Amendment violation"); Bernier v. Obama, _ F. Supp. 3d _,2016 WL 4468159, at *4 (D.D.C. 2016) ("[A]t most, it appears that the parties disagree on a proper course of treatment for Plaintiff's condition"), appeal docketed, No. 16-5281 (D.C. Cir. Sept. 30, 2016); Melendez, 2016 WL 5539781, at *6 ("Although [the plaintiff] disagrees with [his doctor's] assessment, a disagreement between staff and an inmate concerning the latter's course of treatment is not an appropriate basis for finding an Eighth Amendment violation"); Buchanon v. Mohr, 2016 WL 4702573, at *3 (S.D. Ohio 2016) ("Plaintiff is receiving medical care, and those monitoring his medical care have a difference of opinion on the type of care he should receive"), reporl and recommendation adopted, 2016 WL 5661697, at *1 (S.D. Ohio 2016) ("as the Magistrate Judge correctly concluded, a different [sic] of opinion on the type of care he should receive does not support an Eighth Amendment claim"); King v. Calderwood,
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2016 WL 4771065, at *5 (D. Nev. 2016) ("Plaintiff's contentions constitute a disagreement 
 regarding the appropriate course of treatment"), appeal docketed, No. 16-16725 (9th Cir. Sept. 28, 2016); Hankins v. Russell, 2016 WL 5689892, at *9 (E.D. Mo. 2016) ("It is undisputed that Plaintiff requests Hepatitis Ctherapy, but he has provided no evidence, other than his own opinion, that he requires this medication").
This Court does not call the general principals underlying these cases into question. It instead concludes that, in this case, Plaintiff has presented sufficient facts to show more than a mere disagreement as to the proper course of treatment. Instead, Plaintiff has shown that the DOC has implemented a policy that categorically denies certain inmates with chronic hepatitis Cfrom receiving the curative treatment that the DOC's own expert testified he would recommend for a non-prisoner with the same condition. (Cowan Test., Dec. 23, 2015, at 68:7-18).
This is not a mere disagreement with the course of care. Nor is it simply medical malpractice or "an inadvertent failure to provide adequate medical care." Estelle, 429 U.S. at 105. Plaintiff has shown that Defendants have deliberately denied providing treatment to inmates with a serious medical condition and chosen a course of monitoring instead. They have done so with the knowledge that (1) the standard of care is to administer DAA medications regardless of the disease's stage, (2) inmates would likely suffer from hepatitis Ccomplications and disease progress without treatment, and (3) the delay in receiving DAA medications reduces their efficacy. "Although medical negligence does not violate the
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eighth amendment ... medical treatment may so deviate from the applicable standard of 
 care as to evidence a physician's deliberate indifference." See McRaven v. Sanders, 577 F.3d 974,983 (8th Cir. 2009) (alteration original) (quotation omitted).
Third, two of the cases Defendants cite conclude that the inmate did not present sufficient evidence that the named defendants were responsible for the inmate's injuries. Binford v. Kenney, 2015 WL 6680272, at *4 (E.D. Wash. 2015) (finding inmate "presented no evidence-nor has he even alleged-that any of the named defendants had any role in the creation of the policy to which he objects"), aff'd mem., 2016 WL 4990041 (9th Cir. 2016); Harrell v. Cal. Forensic Med. Grp., 2015 WL 6706587, at *3 (E.D. Cal. 2015) (dismissing inmate's complaint because it "failed to specify how each of the named defendants ... [was] responsible for plaintiffs alleged injuries"). Here, Plaintiff has named members of the Hepatitis CTreatment Committee as defendants. Plaintiff has also established that the Hepatitis CTreatment Committee made the decision not to give Plaintiff the DM medications he has requested, (Noel Test., Dec. 23, 2015, at 129:14-18), and that the Committee has the ultimate authority to decide whether Plaintiff receives DM medications, (Id. at 129:18-21). Further, Plaintiff has shown that Defendant Dr. Noel had a role in crafting the DOC's hepatitis C policies. (Id. at 101:7-13, 126:8-14).
Finally, the last group of cases Defendants cite find that treatment was not medically advisable for the plaintiff in question, there was insufficient evidence that the plaintiff should receive the treatment he or she was seeking, or the plaintiff was receiving the type of
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treatment he or she would have been receiving if not in prison, e.g. the standard of care in 
 the community. See Dulak, 2015 U.S. Dist. LEXIS 131291, at *19, *29-*30 (finding, among other things, that the plaintiff did not produce evidence that he met criteria for hepatitis G treatment under national standards); Shabazz v. Schofield, 2015 WL 5036919, at *2, *5 (M.D. Tenn. 2015) (finding inmate was monitored pursuant to a policy that was "consistent with generally accepted medical practices, regardless of whether the patient is incarcerated or is a free world patient" and that "[d]espite Plaintiffs arguments, he has submitted no medical proof that he should be receiving the therapy he seeks"), report and recommendation adopted, 2016 WL 540727 (M.D. Tenn. 2016); Binford, 2015 WL 6680272, at *4 (finding "treatment was not medically advisable given [inmate's] current condition"); Taylor v. Rubenstein, 2016 WL 1364287, at *3 (N.D. W. Va. 2016) (finding inmate presented no proof that he was "a viable candidate" for treatment with OM medications); Allah v. Thomas, 2016 WL 3258422, at *5 (E.D. Pa. 2016) (dismissing former inmate's complaint on an unopposed motion to dismiss because "his Hepatitis Gdid not require treatment prior to his incarceration, and his condition was not alleged to have significantly deteriorated while he was in prison"), appeal docketed, No. 16-3103 (3d Gir. July 14, 2016); Buchanon, 2016 WL 4702573, at *3 (S.D. Ohio 2016) (finding the course of treatment required four years to complete and the plaintiff would have been released prior completion of treatment); Hankins, 2016 WL 5689892, at *9 ("It is undisputed that Plaintiff requests
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Hepatitis Ctherapy, but he has provided no evidence, other than his own opinion, that he requires this medication").
Here, the combination of an evolving standard of care and the substantial amount of evidence presented in this case has rendered the above cited cases unpersuasive. Defendant Dr. Noel testified that he could think of no medical reason why Plaintiff should not receive DAA medications. (Noel Test., Dec. 23, 2015, at 154:8-15). Plaintiff presented evidence that the national standard is to treat all those with chronic hepatitis C-with limited exceptions-with DAA medications. (Findings of Fact, supra, ~~ 18-21). Further, the DOC's own expert testified that, if he encountered a patient with chronic hepatitis Coutside the prison system, he would recommend treatment with DAA medications if the patient could afford it. (Cowan Test., Dec. 23, 2015, at 68:7-18). This Court, therefore, does not come to the same conclusions as those courts that had less information and that were applying a now out-of-date standard of care.
Defendants cite one other case, not mentioned above, that merits consideration, Smith v. Corizon, Inc., 2015 WL 9274915 (D. Md. 2015). In Smith, the plaintiff, a state prisoner proceeding pro se, alleged that prison officials failed to treat his hepatitis C. Id. at *1. In June, 2015, the plaintiff was evaluated for treatment with Harvoni and it was determined that he was not a priority candidate for treatment. Id. at *5. The plaintiff responded by questioning "why his condition should be allowed to get worse and it be acceptable for defendants to simply monitor his situation with chronic care reviews." Id. On
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a motion to dismiss converted to a motion for summary judgment, the court held that "the 
 complaint fail[ed] to allege conduct rising to the level of deliberate indifference." Id. Noting that hepatitis Cdoes not require treatment in all cases and that the plaintiff had been mostly asymptomatic, the court found that monitoring the plaintiffs condition satisfied the constitutional standard. Id. at *5-*6.
This Court declines to adopt the reasoning of Smith for several reasons. First, although it is clear that the plaintiffs medical records were before the court in Smith, it is not clear what information, if any, the court had about the negative health effects of even asymptomatic hepatitis C. Second, in Smith the decision not to provide Harvoni to the plaintiff was made in June of 2015. At that time, the MSLD and CDC had yet to recommend DM medications for all those with chronic hepatitis C. Finally, there is no indication that the prioritization protocol used by the prison in Smith completely barred treatment with DM medications-as opposed to prioritizing it-for those without advanced stage hepatitis Cas the DOC's policy in question here does. Thus, the facts of Smith are quite distinct from the facts before this Court.
In sum, the Court finds Plaintiff has established a reasonable likelihood of success of showing that Defendants were deliberately indifferent to his serious medical need. The Court will therefore turn to the other three preliminary injunction factors.
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2. The extent to which the moving party will suffer irreparable harm without injunctive 
 relief. 1i[T]0 show irreparable harm a plaintiff must 'demonstrate potential harm which cannot be redressed by a legal or an equitable remedy following a trial. lIl Acierno v. New Castle Cty., 40 F.3d 645, 653 (3d Cir. 1994) (quoting Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989)). "Establishing a risk of irreparable harm is not enough. A plaintiff has the burden of proving a 'clear showing of immediate irreparable injury.'" ECRI v. McGraw-Hili, Inc., 809 F.2d 223, 226 (3d Cir. 1987). Here, as documented extensively above, Plaintiff has a serious medical condition. He will continue to suffer from chronic hepatitis C if he does not receive treatment. His liver will continue to scar and its functioning will continue to deteriorate. Further, the efficacy of the OM medications will likely be reduced if treatment is delayed. This is sufficient to show that Plaintiff will suffer irreparable harm if this Court does not grant a preliminary injunction. The realities of civil litigation make it likely that waiting for resolution at trial will prolong Plaintiff's suffering for a significant period of time and result in an overall deterioration of his health. 3. The extent to which the nonmoving party will suffer irreparable harm if the injunction is issued. In considering the extent to which the nonmoving party will suffer irreparable harm if the injunction is issued, the Court must balance the harms suffered by each party. See Am.
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Exp. Travel Related Servs., Inc. v. Sidamon-Eristoff, 669 F.3d 359, 366 (3d Cir. 2012) (describing the third factor as "whether granting preliminary relief will result in even greater harm to the nonmoving party"). Here, the only conceivable injury Defendants will suffer is monetary. As a result of the grant of this injunction, Defendants will be required to treat Plaintiff with expensive medication. While the Court is sensitive to the realities of budgetary constraints and the difficult decisions prison officials must make, the economics of providing this medication cannot outweigh the Eighth Amendment's constitutional guarantee of adequate medical care. See Monmouth Cty. Corr. Insf. Inmates, 834 F.2d at 336-37.
4. The public interest. "[Ilf a plaintiff demonstrates both a likelihood of success on the merits and irreparable injury, it almost always will be the case that the public interest will favor the plaintiff." AT&T v. Winback & Conserve Program, Inc., 42 F.3d 1421,1427 n.8 (3d Cir. 1994). The public "interest is particularly strong where the right to be vindicated derives from the United States Constitution." Johnson v. Wetzel, _ F. Supp. 3d _, 2016 WL 5118149, at *11 (M.D. Pa. 2016). Here, issuance of a preliminary injunction will serve the public interest in that it will vindicate Plaintiffs constitutional right to receive adequate medical care while in the custody of the state.
VI. CONCLUSION For the reasons stated above, the Court will grant Plaintiff's motion for a preliminary injunction. A separate Order follows.
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