The opinion of the court was delivered by: Judge Vanaskie
Salvatore Chimenti ("Plaintiff"), an inmate presently confined at the Smithfield State Correctional Institution, Huntingdon, Pennsylvania ("SCI-Smithfield"), filed this pro se civil rights action pursuant to 42 U.S.C. § 1983. By Opinion dated June 8, 2005, the United States Court of Appeals for the Third Circuit concluded that Plaintiff sufficiently alleged claims of deliberate indifference to serious medical needs against two Defendants -- Martin Horn, former Secretary of the Pennsylvania Department of Corrections ("DOC"), and Farrohk Mohadjerin, M.D., former Medical Director of the State Correctional Institution, at Huntingdon, Pennsylvania ("SCI-Huntingdon").*fn1
Following that decision, Plaintiff was granted leave to file an amended complaint regarding his surviving claims. Chimenti's amended complaint states that a liver biopsy conducted by the SCI-Huntingdon medical staff during 1991 tested positive for "Hepatitis C virus." Dkt. Entry 76, ¶ 8. According to the amended complaint, Plaintiff was informed that his condition would be monitored through blood tests which would be performed every four (4) to six (6) months. Chimenti admits that his hepatitis did not require active treatment between 1991 and 1997.
Doctor Mohadjerin referred Plaintiff to Doctor Gaugler, a gastroenterologist, for examination on or about July 24, 1997. After conducting a liver biopsy in November, 1997, Doctor Gaugler recommended the initiation of Interferon treatment. Doctor Mohadjerin purportedly informed Plaintiff that he would follow Dr. Gaugler's recommendation and order the recommended Interferon treatment. However, although Interferon treatment was conducted with partial success over the course of the next three and one half (3 1/2 months, the treatment was discontinued by Defendant Mohadjerin on March 18, 1998 on the basis that Chimenti was not fully responding to the treatment. It is also alleged that Doctor Mohadjerin rejected Dr. Gaugler's recommendation that the Interferon treatment be intensified and failed to provide any substitute treatment.*fn2
The amended complaint next contends that Mohadjerin concluded that no further treatment would be provided until the Food and Drug Administration ("FDA") approved a new aggressive form of care, Rebetron. Approval of Rebetron treatment was announced by the FDA in May or June, 1998. Thereafter, the Center for Disease Control ("CDC") issued a national protocol for Rebetron treatment in October, 1998.
Chimenti alleges that due to the failure of the DOC and Wexford Health Services to reach an agreement on the protocol for Rebetron treatment, Dr. Mohadjerin still would not prescribe Rebetron for the Plaintiff. Finally, during January, 2000, an agreement was reached by the DOC and Wexford on the protocol. Despite that development, Chimenti did not start receiving Rebetron therapy until June 26, 2000. Plaintiff claims that because he was not provided with any treatment between March 18, 1998 and June 26, 2000, his condition deteriorated to the point that his liver became severely damaged. As a result of that prolonged period of inaction, the Rebetron treatment that was eventually provided was of no benefit and Chimenti now purportedly requires a liver transplant.*fn3
With respect to Secretary Horn, the amended complaint asserts that Horn "knew or should have known" of the need to implement "a speedy medical protocol for appropriate Rebetron treatment." Id. at ¶ 27. Despite that knowledge, Horn allegedly failed to take appropriate action.
Presently pending is Defendant Horn's motion for summary judgment. See Dkt. Entry 96. The motion is ripe for consideration.*fn4
Defendant Horn claims entitlement to entry of summary judgment solely on the grounds that Plaintiff failed to exhaust administrative remedies. Horn's supporting brief notes that his answer to the Amended Complaint raised the affirmative defense of non-exhaustion.*fn5 The moving Defendant acknowledges that Plaintiff did initiate an administrative grievance (No. 0037-1999) regarding his treatment for Hepatitis C. Horn, however, asserts that because the grievance failed to name him, dismissal is warranted. Horn points out that the only grievance (No. 0090-1999) filed by Chimenti which does specifically name Horn solely relates to the alleged failure to provide Chimenti with an MRI examination of his neck and is not related to his pending claims.
Plaintiff counters by arguing that Horn waived the affirmative defense of non-exhaustion by failing to assert it in his response to the original complaint. He also argues that the grievance process in place at the time in question did not require that Horn be specifically named in the grievance, and because the grievance pertained to DOC policy, Horn, as DOC Secretary, was necessarily implicated. He further contends that he did not include Horn's name in his grievance because he did not learn of the Superintendent's "involvement in formulating the Rebetron treatment protocol until after April 22, 1999," at which point his grievance was already on appeal. Dkt. Entry 117, p. 2. According to Chimenti, "the applicable administrative directives did not allow for the filing of a second grievance over the same issue." Id.
Summary judgment is proper if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); See also, Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir. 2001). A factual dispute is "material" if it might affect the outcome of the suit under the applicable law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "genuine" only if there is a sufficient evidentiary basis that would allow a reasonable fact-finder to return a verdict for the non-moving party. Id. at 248. The court must resolve all doubts as to the ...