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Chimenti v. Kimber

September 10, 2009

SALVATORE CHIMENTI, PLAINTIFF,
v.
ROGER KIMBER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Judge Vanaskie

MEMORANDUM AND ORDER

Background

This pro secivil rights action was filed by Salvatore Chimenti, an inmate presently confined at the Smithfield State Correctional Institution, Huntingdon, Pennsylvania ("SCI-Smithfield").*fn1 Chimenti alleges claims of deliberate indifference to serious medical needs which purportedly transpired when he was previously confined at the State Correctional Institution, Huntingdon, Pennsylvania ("SCI-Huntingdon"). The remaining Defendants are former Secretary Martin Horn of the Pennsylvania Department of Corrections ("DOC")*fn2 and Medical Director Farrohk Mohadjerin, M.D., a former employee of Wexford Health Sources, Inc.

It is undisputed that Chimenti tested positive for Hepatitis C. The gist of the present action is Plaintiff's claim that due to a delay in providing him with an aggressive form of care, Rebetron, his condition has purportedly deteriorated to the point that his liver has become severely damaged.*fn3 Plaintiff's Amended Complaint seeks compensatory and punitive damages as well as injunctive relief, specifically, a transfer to the State Correctional Institution, Pittsburgh, Pennsylvania ("SCI-Pittsburgh") for the purpose of undergoing a liver transplant evaluation.

Presently pending is a motion seeking preliminary injunctive relief filed by Plaintiff. His motion requests that he be properly evaluated for a liver transplant by a qualified physician at the University of Pittsburgh Medical Center or other suitable transplant center. (Doc. # 135 at 4.)

Discussion

The United States Court of Appeals for the Third Circuit has directed that a district court in exercising its discretion as to whether to grant a motion seeking preliminary injunctive relief should consider the following four factors: (1) the likelihood that the applicant will prevail on the merits; (2) the extent to which the movant is being irreparably harmed by the challenged conduct; (3) the extent to which the non-moving party will suffer irreparable harm if the preliminary injunction is issued; and (4) whether granting preliminary injunctive relief will be in the public interest. S & R Corp. v. Jiffy Lube Int'l, Inc., 968 F.2d 371, 374 (3d Cir. 1992) (citing Hoxworth v. Blinder, Robinson & Co., 903 F.2d 186, 197-98 (3d Cir. 1990)). The moving party bears the burden of demonstrating these factors. SeeDorfman v. Moorhous, No. Civ. A. 93-6120, 1993 WL 483166, at *1 (E.D. Pa., Nov. 24, 1993).

A court may not grant preliminary injunctive relief unless "[t]he preliminary injunction [is] the only way of protecting the plaintiff from harm." Instant Air Freight v. C.F. Air Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989). Speculative injury does not constitute a showing of irreparable harm. Continental v. Amoco Chems. Corp., 614 F.2d 351, 359 (3d Cir. 1980); see alsoPublic Serv. Co. v. West Newbury, 835 F.2d 380, 383 (1st Cir. 1987). "The possibility that adequate compensatory or other corrective relief will be available at a later date, in the ordinary course of litigation, weighs heavily against a claim of irreparable harm." Instant Air Freight, 882 F.2d at 801 (quoting Sampson v. Murray, 415 U.S. 61, 90 (1964)).

Plaintiff states that he "now suffers from cirrhosis and a failing liver." (Dkt. Entry # 135, ¶ 5.) He adds that he has been diagnosed as "having end-stage liver disease, and both contract and treating physicians have repeatedly recommended that he be evaluated for a liver transplant." ( Id. at ¶ 6.) He adds that there is a substantial threat that he will suffer irreparable harm if not granted relief. Specifically, he states that a delay in having his name being placed on the liver transplant waiting list could be fatal.

In support of his request, Plaintiff has submitted a copy of a May 21, 2004 report by Maria Pettinger, M.D. Doctor Pettinger indicates that a CT scan of Plaintiff's liver "raises the question of cirrhosis." (Dkt. Entry # 139, Volume Two, p. 169.) Also submitted is a letter dated August 8, 2005 from Brian D. Dodson, M.D., who opines that Chimenti "probably" has cirrhosis of the liver and that it would be "reasonable" to have Plaintiff undergo a liver transplant evaluation. (Id. at p. 199.)

Defendant Doctor Farrokh Mohadjerin opposes Plaintiff's request on the grounds that it appears to be based upon speculative fears of irreparable injury. Counsel for Dr. Mohadjerin also states that the doctor is not in a position to grant the requested relief even if it is justified because he is no longer working at or associated with SCI-Huntingdon or any other correctional facility in Pennsylvania.*fn4 (Dkt. Entry # 142, ¶ 12.) This Court agrees that as a result of his present non-affiliation with the DOC, Mohadjerin lacks the authority to approve or otherwise ensure Plaintiff's requested evaluation. It is additionally noted that in opposing Plaintiff's request for a liver transplant evaluation, Defendant Doctor Mohadjerin offers no opinion or facts relating to Chimenti's present medical condition.

Defendant Horn notes that Plaintiff previously filed a similar request which was denied by this Court on January 16, 2002. Horn indicates that because Plaintiff's present motion "offers nothing new," it should be denied. (Dkt. Entry # 143, p. 5.) Horn adds that because Chimenti has provided no medical authority, evidence, or opinion, he has failed to establish a reasonable likelihood that he will succeed on the merits of his case. Finally, Horn contends that in order to obtain the type of transfer he is seeking, Plaintiff should file a motion for modification of sentence under 61 P.S. § 81 with the Pennsylvania state sentencing court. Horn likewise offers no medical evidence in opposition to Plaintiff's motion.

It is initially noted that this Court's denial of a similar request for preliminary injunctive relief, which was entered over six (6) years ago, is insufficient by itself to warrant denial of Chimenti's present, similar request. Second, while Chimenti may be entitled to a modification of his sentence under Pennsylvania state law, it has not been established that this Court is precluded from entertaining Plaintiff's request for preliminary injunctive relief with respect to his Eighth Amendment deliberate indifference claim. Finally, the submissions of Doctors Pettinger and Dodson indicate that Plaintiff's condition has deteriorated since 2002. Those submissions are sufficient to warrant further inquiry into Plaintiff's assertion that he will suffer irreparable injury if not provided with a liver transplant evaluation.

Based upon those concerns, this is one of those rare cases where it is appropriate for this Court to exercise its discretion to appoint an expert witness under Federal Rule of Evidence 706. See Ford v. Mercer County Correctional Center, 171 Fed. Appx. 416, 420 (3d Cir. 2006) (a court has broad discretion to appoint an independent expert). Specifically, this matter involves an indigent Plaintiff who is prevented by reason of his incarceration from independently obtaining a medical evaluation. Moreover, this is an exceptional case involving a complex issue where differing medical evidence has been submitted to the Court and an independent expert report would assist the trier of fact in resolving the question of ...


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