IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ronald A. Williams

, : Petitioner :

:

v. :

: Pennsylvania Department : of Corrections, : No. 387 M.D. 2015 Respondent : Submitted: April 15, 2016

BEFORE: HONORABLE ROBERT SIMPSON , J udge

HONORABLE ANNE E. COVEY, Judge

HONORABLE BONNIE BRIGANCE LEADBETTER , Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY FILED: July 20, 2016

T he Pennsylvania Department of Corrections (Department) filed

preliminary objecti on s in the nature of a demurrer to Ronald A. Williams’ (Williams)

pro se petition for review (Petition) filed in this Court’s original jurisdiction seeking

injunctive relief. The sole issue before the C ourt is whether Williams’ Petition states

a claim upo n which relief may be granted. After re v iew, the Department’s

preliminary objection s are sustained and Williams’ Petition is dismissed

.

Williams is currently serving a life sentence at the State Correctional

Institute at Fayette (SCI

- Fayette). According to the Petition , Williams was diagnosed

with Hepatitis C Viral Infection ( Hep atitis

- C ) in 1999 , for which he continu e s to be

monitored in the chronic care clinic

. Gilead Sciences Inc. has perfected two

medications , one in 2013 and the other in 2014 that have a high cure rate for

Hepatitis

- C

. Williams has been advised that the Department is working on an

updated protocol for treating inmates with Hepatitis

- C

.2 Williams fil ed his Petition on August 5, 2015, alleging that “ [t] he

[Department] is willfully violating [his] federally [sic] and state rights under the State

Constitution and the Federal Constitution s [sic] to b e free from cruel and unusual

punishment ” and asking this Court to “ issue an [] [o] rder [u] pon the [ Department ] and

[its] Bureau of Health Ca re Services to establish a realistic reasonable and

eff [i] catious protocol and to treat Williams’ [ Hepatitis

- C ].” Petition at 2 , 3

- 4 ¶ ¶ 11,

24

. On August 11, 2015, the Department filed its Preliminary Objection s . On

December 30, 2015, Williams filed a Motion for Discovery (Discovery Motion) . On

January 27, 2016, Williams filed a Motion to Compel the Department to comply with

Williams’ Discovery Motion . By January 28, 2016 order, this Court denied

Williams’ Discovery Motion and dismissed his Motion to Compel as moot.

This Court’s review of preliminary objections is limited to the pleadings.

Pa

. State Lodge, Fraternal Order of Police v. Dep’t of Conservation & Natural Res.

, 909 A.2d 413 (Pa. Cmwlth. 2006), aff’d , 924 A.2d 1203 ( Pa. 2007).

[This Co urt is] required to accept as true the well

- pled
averments set forth in the . . . c omplaint, and all inferences reasonably deducible therefrom. Moreover, the [C]ourt need not accept as true conclusions of law, unwarranted inferences from facts, argumentat ive allegations, or expressions of opinion. In order to sustain preliminary objections, it must appear with certainty that the law will not permit recovery, and, where any doubt exists as to whether the preliminary objections should be sustained, the

doub t must be resolved in favor of overruling the preliminary objections.

Id. at 415

- 16 (citations omitted).

The D epartm e nt first argues that Williams failed to state a claim upon

which relief can be granted under Section 1983 of the Civil Rights Act ( Section

1983) , 42 U.S.C. § 1983

, which is the basis of Williams’ Petition, because the

Department is not a “ person ” for purposes of a Section 1983 action. We agree.3 Section 1983 states

, in pertinent part:

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

. . . subjects, or causes to be subjected, any citizen of the United States

. . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress [.]

42 U.S.C. § 1983 (emphasis added). With respect to “person” in regards to a Section

1983 action

, this Court explained:

I n Will v. Michigan Department of State Po lice, 491 U.S. 58

. . . (1989)

, the United States Supreme Court held that neither a state nor a state agency is a person for purposes of [S] ection 1983 lawsuits. Accord Flesch v. [ E .] [ Pa

. ] Psychiatric [ Inst

. ]

, 434 F.S upp. 963 (E.D. Pa. 1977) ; Faust

v. [ Dep’t ] of Revenue,

. . . 592 A.2d 835 ( [Pa. Cmwlth.] 1991) petition for allowance of appeal denied,

. . . 607 A.2d 257 ( [Pa.] 1992)

.
It is undisputed that [] the Department

. . . co nstitute [s a] Commonwealth agenc [y]

. Under [S] ection 201 of The Administrative Code of 1929, Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 61

, the Department is designated an administrative department of the
Commonwealth. See also 2 Pa.C.S. § 101

. . . .
Therefore, we hold that the Department

. . . [is] not subject
to suit under 42 U.S.C. § 1983

.

Warren v. Pa. Dep’t of Corr., 616 A.2d 140 , 141

- 42 (Pa. Cmwlth. 1992).

A ccordingly, Williams failed to state a claim under Section 1983 since the

Depar tment is not a “person” within the meaning of Section 1983.

Next, the Department contends Williams failed to state a claim upon

which injunctive relief can be granted because he cannot demonstrate that there is an

urgent necessity to avoid an injury which cannot be compensated in damages, and4

that greater injury will result from refusing rather than granting the relief requested.

We agree.

[A p] etitioner [’ s ] threshold burden when seeking a

permanent injunction is to establish a clear legal rig ht to
relief. To secure injunctive relief, [a p] etitioner [] must demonstrate that the right to relief is clear, that there is an urgent necessity to avoid an injury which cannot be compensated in damages, and that the greater injury will

result from refus ing rather than granting the relief requested.

Tindall v. Dep’t of Corr., 87 A.3d 1029, 1034 (Pa. Cmwlth. 2014) (citation omitted).

Here, Williams averred in his Petition , in relevant part :

[Williams] has been diagnosed with Hepatitis

- C Genotype

1 at the SCI [

- ] Graterford in 1999 [.] Gilead Sciences Inc [.] (hereafter Gilead) has perfected (2) medications in 2013 and

2014 respectively [,] that offer a 96 to a 99% cure rate for

the H epat itis C Virus

.
Hepatitis C affects 3 [

. ] 2 [m] illion Americans and kills more people each year tha [ n ] HIV/AIDS in the United States an d

is clearly a severe life threatening viral infection. (See Ex. A)

In 2013 [,] Gilead developed and marketed S o valdi which is
administered with two other anti

- viral medications[,] i.e [.,]

Pe gylated Interferon Injections and ribavirin tablets.

In 2014 [,] Gilead developed and [ m ] arketed Harvoni [w] hich was a major breakthrough which only required a single [t] ablet regiment once a day and required no other

anti [

- ] viral medications[.]

Hepatitis C is a li fe threatening [v] iral [i] nfection that destroys vital liver functions over time [.] It can and does

lead to serious and potentially fatal complications, including
liver cancer [,] c irrhosis and the need for liver transplantation [.] Inclusive with serious liver damage and complications if left untreated hepatitis C can include but is

not limited [to] Type 2 Diabetes [,] R h eumatologic disorders and thyroid disease

.5 [Williams] [ c ] urrently suffers from rheumatoid arthritis in

h is right knee [,] shoulder and wris t pain [sic] and i s required to wear a brace for his knee and has been required to take pain medication for the last six years [,] i s limited to sleeping in a lower bunk and the proximal cause of [Williams’] suffering is his hepatitis C viral infection [.]

P etition at 1

- 2, ¶¶ 4

- 9. The above averments , while declaring that Williams has

Hepatitis

- C and that new medications have been developed which claim a high cure

rate, 1 do not demonstrate that ordering the Department to establish a protocol for

tr e ating Hep atitis

- C with the new medications is “ an urgent necessity to avoid an

injury which cannot be compensated in damages, and that the greater injury will

result from refusing rather than granting the relief requested. ” Tindall, 87 A.3d at

1034

.
Indeed, ac cording to the Final Appeal Decision issued by the

Department’s Secretary’s Office of Inmate Grievances and Appeals:

[Williams’] concern of not being provided proper medical care for Hepatitis C was reviewed by the staff of the Bureau
of Health Care Servic es. They reviewed the medical record and determined that the medical care provided was reasonable and appropriate. The [Department] is updating its protocol for treating Hepatitis C. [Williams] will

continue to be monitored in [the] chronic care clinic. Once the protocol is issued, [he] will be re

- evaluated for
treatment with medication. [Williams is] encouraged to participate in [his] treatment plan and to discuss [his] concerns or changes of condition with a practitioner. No evidence of neglect or d eliberate indifference has been
found.

Petition Ex. I. 2 “Absent a showing that [prison] officials have engaged in

1 Inmates do not get to choose their own medications or treatment. Kretchmar v.
Commonwealth, 831 A.2d 793 (Pa. Cmwlth. 2003)

.

2 “[C]ourts reviewing preliminary objections may not only consider the facts pled in the complaint , but also any documents or exhibits attached to it.” Allen v. Dep’t of Corr., 103 A.3d
365, 369 (Pa. Cmwlth. 2014).6

constitutionally [

- ] impermissible c onduct, [ 3 ] it is not in the public’ s interest for the

court to usurp the [Department’s] authority and mic ro

- manage the medical needs of a

particular inmate .” Kretchmar v. Commonwealth, 831 A.2d 793, 799 (Pa. Cmwlth.

2003) (quoting Berman v. Lamer, 874 F.Supp. 102, 106 (E.D. Pa. 1995) ). We must,

therefore, hold that Williams’ Petition fails to state a claim for injunctive relief

.

Lastly, the Department asserts that Williams failed to state a claim upon

which relief can be granted because he failed to sufficiently plead facts regarding the

current state of or the progression of his Hepatitis

- C or his eligi bility for the

specifically

- desired medications under the manufacturer’ s guidelines. We agree.

Pursuant to Pennsylvania Rule of Civil Procedure 1019(a) (Rule

1019(a)) : “ The material facts on which a cause of action or defense is based shall be

stated in a concise and summary form. ” Pa.R.C.P. No. 1019(a). “ [Rule 1019(a)]

requires a plaintiff to plead all the facts that he must prove in order to achieve

recovery on the alleged cause of action. The pleading must be sufficiently specific

so that the defen ding party will know how to prepare his defense. ” Commonwealth

ex rel. Pappert v. TAP Pharm s. Products, Inc., 868 A.2d 624, 635 (Pa. Cmwlth.

2005) (emphasis added). Here, Williams cannot succeed on a claim that the

Department must provide him with a spec ific medic ation without proving that he is in

fact eligible for the medication. Thus, because Williams failed to plead such

eligibility, he has failed to state a claim upon which relief may be granted.

3 [A] prison official c annot be found liable under the Eighth Amendment for denying an inmate humane conditions of confinement unless the official knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which

the infere nce could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.

Kretchmar v. Commonwealth, 831 A.2d 793 , 799 (Pa. Cmwlth. 2003) (quoting Farmer v. Brennan,
511 U.S. 825, 83 7 (1994) ).7 For all of the above reasons, the Department’s pre liminary objection s are

sustained and Williams’ Petition is dismissed

.

___________________________ ANNE E. COVEY, JudgeIN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ronald A. Williams, : Petitioner :

:

v. :

: Pennsylvania De partment : of Corrections, : No. 387 M.D. 2015 Respondent :

O R D E R

AND NOW, this 20 th day of July , 201 6

, t he Pennsylvania Department of

Corrections ’ preliminary objection s in the nature of a demurrer to Ronald A.

Williams’ (William s) petition for review (Petition) are sustained and Williams’

Petition is dismissed

.

___________________________ ANNE E. COVEY, Judge