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Josey v. Beard

June 29, 2009

LEROY JOSEY, PLAINTIFF
v.
CHIEF SECRETARY JEFFREY BEARD, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Magistrate Judge Susan Paradise Baxter

MEMORANDUM OPINION *fn1

A. Relevant Procedural History

Plaintiff, formerly a prisoner in state custody and now represented by counsel, filed the instant action under 42 U.S.C. §1983, the Americans with Disabilities Act, and the Rehabilitation Act. Named as Defendants to this action are: Jeffrey Beard, Secretary of the Department of Corrections; Marilyn Brooks, former Superintendent of SCI-Albion; Maxine Overton, Health Services Administrator of SCI-Albion; Paul O'Conner, Director of the Pennsylvania Bureau of Community Corrections; George Strudtman, Referral Specialist of the Department of Corrections; Physician's Assistants Tammy Mowry and Dan Telega; and Dr. Baker. Defendants Beard, Brooks, Overton, O'Conner, and Strudtman are employees of the Department of Corrections and are represented by the Attorney General's office. Defendants Mowry, Telega, and Baker are associated with Prison Health Care Systems, Inc., and are represented by private counsel.

Plaintiff is infected with Hepatitis C and alleges that he received inadequate medical care while incarcerated. In his Amended Complaint filed in August of 2008, Plaintiff alleges that:

1) Department of Corrections Defendants Beard, Brooks, Overton, O'Conner and Strudtman violated his Eighth Amendment rights by "deliberately delaying his access to medical services for a serious medical condition for non-medical reasons";

2) Department of Corrections Defendants Beard, Brooks and Overton violated his Eighth Amendment rights by "failing to provide Plaintiff with proper Hepatitis C evaluation and treatment for non-medical reasons";

3) Department of Corrections Beard and Brooks violated Plaintiff's Eighth Amendment rights by "creating and enforcing an unconstitutional policy for the provision of Hepatitis C treatment";

4) Department of Corrections Defendants Beard, Brooks and Overton violates his Eighth Amendment rights by "enforcing an unconstitutional policy for the provision of Hepatitis C treatment"; and

5) Department of Corrections Defendants O'Conner, Strudtman, Beard, and Brooks violated Plaintiff's rights under the ADA by "denying him medical care based on his disability and by not providing Plaintiff Josey with a reasonable accommodation in parole placement to allow him to access medical care for his disability."

Document # 64, Amended Complaint, ¶¶ 91 - 95, respectively.

The Hepatitis C protocol issued by the Bureau of Health (a division of the Department of Corrections) contains four exclusionary factors to the Interferon-based treatments. The factors are listed in order of importance: 1) minimum of between 12 to 18 months remaining on the sentence; 2) medical clearance; 3) drug and alcohol clearance; and psychiatric clearance.

Document # 93-8, page 23; Document # 93-7, Deposition of Mark Baker, D.O., exhibit at page 79. Plaintiff refers to the initial factor as the"sentence tail exclusion." Document # 96, page 2, n.1.

Besides Hepatitis C, Plaintiff has several chronic medical conditions including obesity, hypertension, diabetes, bipolar disorder and the possibility of coronary artery disease. Document # 93-9, Report of Plaintiff Expert Dr. Scott Allen, page 24. Defendants contend that Plaintiff's other medical and psychiatric conditions, as well as his history of noncompliance with prescribed medical treatments, are complicating factors in the treatment of his Hepatitis C.

The Department of Corrections Defendants*fn2 have filed a motion for summary judgment. Plaintiff has filed an Opposition Brief. The issues have been fully briefed and are ripe for disposition by this Court.

B. Standard of Review

Federal Rule of Civil Procedure 56(c) provides that summary judgment shall be granted if the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Rule 56(e) further provides that when a motion for summary judgment is made and supported, "an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party." Id.

A district court may grant summary judgment for the defendant when the plaintiff has failed to present any genuine issues of material fact. See Fed.R.Civ.P. 56(c); Krouse v. American Sterilizer Company, 126 F.3d 494, 500 n.2 (3d Cir. 1997). The moving party has the initial burden of proving to the district court the absence of evidence supporting the non-moving party's claims. Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Country Floors, Inc. v. Partnership Composed of Gepner and Ford, 930 F.2d 1056, 1061 (3d Cir. 1990). Further, "[R]ule 56 enables a party contending that there is no genuine dispute as to a specific, essential fact 'to demand at least one sworn averment of that fact before the lengthy process of litigation continues.'" Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990) quoting Lujan v. National Wildlife Federation, 497 U.S. 871 (1990).

The burden then shifts to the non-movant to come forward with specific facts showing a genuine issue for trial. Matsushita Elec. Indus. Company v. Zenith Radio Corp., 475 U.S. 574 (1986); Williams v. Borough of West Chester, Pa., 891 F.2d 458, 460-461 (3d Cir. 1989)(the non-movant must present affirmative evidence - more than a scintilla but less than a preponderance - which supports each element of his claim to defeat a properly presented motion for summary judgment). The non-moving party must go beyond the pleadings and show specific facts by affidavit or by information contained in the filed documents (i.e., depositions, answers to interrogatories and admissions) to meet his burden of proving elements essential to his claim. Celotex, 477 U.S. at 322; Country Floors, 930 F.2d at 1061.

A material fact is a fact whose resolution will affect the outcome of the case under applicable law. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248 (1986). Although the court must resolve any doubts as to the existence of genuine issues of fact against the party moving for summary judgment, Rule 56 "does not allow a party resisting the motion to rely merely upon bare assertions, conclusory allegation or suspicions." Firemen's Ins. Company of Newark, N.J. v. DuFresne, 676 F.2d 965, 969 (3d Cir. 1982). Summary judgment is only precluded if the dispute about a material fact is "genuine," i.e., if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson, 477 U.S. at 247-249.

C. The Prison Litigation Reform Act

The Department of Corrections Defendants argue that this case should be dismissed against Defendants Beard, Brooks, O'Conner and Strudtman because Plaintiff has failed to fully exhaust his administrative remedies as ...


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