The opinion of the court was delivered by: Judge Caputo
This civil rights action pursuant to 42 U.S.C. § 1983 was filed pro se
by Salvatore Chimenti, an inmate presently confined at the Smithfield
State Correctional Institution, Huntingdon, Pennsylvania.*fn1
Chimenti's action regards actions which purportedly
transpired when he was previously confined at State Correctional
Institution, Huntingdon, Pennsylvania ("SCI-Huntingdon").
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 -- former Secretary Martin Horn of the Pennsylvania Department of Corrections ("DOC")*fn2 and SCI-Huntingdon Medical Director Farrohk Mohadjerin, M.D., an employee of Wexford Health Sources, Inc. ("Wexford").*fn3
See Chimenti v. Kimber, 133 Fed. Appx. 833, 834 (3d Cir. 2005).
Thereafter, Plaintiff's request for leave to file an Amended Complaint regarding his surviving claims was granted. An Amended Complaint was submitted on August 8, 2005. See Doc. 76. Therein, Chimenti acknowledges that he has been incarcerated in the Commonwealth of Pennsylvania since 1983 and was transferred to SCI-Huntingdon during April, 1991. Plaintiff states that a liver biopsy conducted by the SCI-Huntingdon medical staff during 1991 tested positive for "Hepatitis C virus." Id. at ¶ 8. The Plaintiff was informed that his Hepatitis would be monitored through blood tests which would be performed every four (4) to six (6) months. Chimenti admits that he did not require active treatment for his condition between 1991 and 1997.
Doctor Mohadjerin referred Plaintiff to Doctor Michael F. Gaugler, D.O., a gastroenterologist, for examination on or about July 24, 1997. Doctor Gaugler conducted a liver biopsy in November, 1997 and thereafter recommended the initiation of Interferon treatment. Chimenti indicates that Doctor Mohadjerin ordered the Interferon treatment recommended by Dr. Gaugler. Although Interferon treatment was conducted with partial success over the course of the next three and one half (3 1/2 ) months, it was purportedly discontinued by Defendant Mohadjerin on March 18, 1998 on the basis that Chimenti was not fully responding to the treatment. See id. at ¶ 16. It is next alleged that Doctor Mohadjerin rejected Dr. Gaugler's recommendation that the Interferon treatment be intensified and failed to provide any substitute treatment. According to the Amended Complaint, Mohadjerin purportedly made a determination that no further treatment would be provided until the Food and Drug Administration ("FDA") approved a new aggressive form of care, Rebetron.*fn4
The FDA approved the use of Rebetron on or about June, 1998.*fn5 Mohadjerin allegedly informed Plaintiff in June 1998 that despite the approval of the FDA, the inmate would not be provided with Rebetron until the DOC and Wexford agreed on a protocol for its use by the Pennsylvania state inmate population. See id. at ¶ 22. Thereafter, the Center for Disease Control ("CDC") issued a national protocol for Rebetron treatment in October, 1998. However, because DOC and Wexford Health Services still had not yet reached an agreement on the protocol for Rebetron treatment, Dr. Mohadjerin would not prescribe Rebetron for the Plaintiff.
Chimenti's Amended Complaint contends that Doctor Mohadjerin was deliberately indifferent to Plaintiff's medical needs by not pursuing or seeking approval of Rebetron treatment after the CDC issued the national protocol. *fn6 The DOC and Wexford Health Services did not reach an agreement on a protocol for providing Rebetron treatment to Pennsylvania state inmates until January, 2000.*fn7 Despite that development, Chimenti still 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 purportedly deteriorated to the point that his liver became severely damaged. Moreover, due to the prolonged period of inaction, the Rebetron treatment which was eventually provided was of no benefit and Chimenti now purportedly requires a liver transplant. *fn8
With respect to Secretary Horn, the Amended Complaint seeks relief on the basis 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 reasonable action. The Amended Complaint concludes that Doctor Mohadjerin was deliberately indifferent to Plaintiff's medical needs by discontinuing the Interferon treatment and by not pursuing or seeking approval of Rebetron treatment after the CDC issued a national protocol for Rebetron treatment in October, 1998. Chimenti 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.
By Memorandum and Order dated February 13, 2006, Doctor Mohadjerin's motion for partial dismissal was granted. The Plaintiff's claim that Doctor Mohadjerin was deliberately indifferent for discontinuing his Interferon treatment was dismissed.*fn9 By Order dated May 15, 2009, Judge Vanaskie directed counsel for Doctor Mohadjerin to serve Plaintiff with complete responses to his outstanding discovery requests. See Doc. 219. The Order further provided that if complete and timely responses were not served, Chimenti could file a motion to compel discovery and/or sanctions as authorized under Federal Rule of Civil Procedure 37.
On September 10, 2009, Judge Vanaskie appointed Abhinav Humar, M.D., Director of the Transplant Program at the University of Pittsburgh Medical Center, as an independent medical expert under Federal Rule of Evidence 706 for the purpose of preparing an independent medical expert report as to Chimenti's Hepatitis condition and his possible need for a liver transplant. Dr. Humar's report has been filed under seal. See Doc. 239.
A July 1, 2010 Memorandum and Order issued by Judge Vanaskie granted Plaintiff's motion for entry of default against Dr. Mohadjerin as a sanction for failure to provide complete discovery responses but acknowledged that "judgment in Chimenti's favor is not warranted at this time."*fn10 Doc. 293, p. 6. As of that same date, Chimenti's action was reassigned to the undersigned.
On October 20, 2010, counsel entered an appearance on behalf of Plaintiff. See Doc. 314. Discovery has now closed. Secretary Horn and Dr. Mohadjerin have filed separate motions seeking entry of summary judgment. See Docs. 319 & 322. Both motions are ripe for consideration.
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 existence of a genuine issue of material fact in favor of the non-moving party. Saldana, 260 F.3d at 232; see also Reeder v. Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D. Pa. 1992). Unsubstantiated arguments made in briefs are not considered evidence of asserted facts. Versarge v. Township of Clinton, 984 F.2d 1359, 1370 (3d Cir. 1993).
Once the moving party has shown that there is an absence of evidence to support the claims of the non-moving party, the non-moving party may not simply sit back and rest on the allegations in its complaint. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Instead, it must "go beyond the pleadings and by [its] own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial." Id. (internal quotations omitted); see also Saldana, 260 F.3d at 232 (citations omitted). Summary judgment should be granted where a party "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial." Celotex, 477 U.S. at 322-23. "'Such affirmative evidence -- regardless of whether it is direct or circumstantial -- must amount to more than a scintilla, but may amount to less (in the evaluation of the court) than a preponderance.'" Saldana, 260 F.3d at 232 (quoting Williams v. Borough of West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989)).
The Eighth Amendment "requires prison officials to provide basic medical treatment to those whom it has incarcerated." Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (citing Estelle v. Gamble, 429 U.S. 97 (1976)). In order to establish an Eighth Amendment medical claim, an inmate must allege acts or omissions by prison officials sufficiently harmful to evidence deliberate indifference to a serious medical need. See Spruill v. Gillis, 372 F.3d 218, 235-36 (3d Cir. 2004); Natale v. Camden Cty. Correctional Facility, 318 F.3d 575, 582 (3d Cir. 2003). In the context of medical care, the relevant inquiry is whether the defendant was: (1) deliberately indifferent (the subjective component) to (2) the plaintiff's serious medical needs (the objective component). Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987); West v. Keve, 571 F.2d 158, 161 (3d Cir. 1979).
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." Mines v. Levi, 2009 WL 839011 *7 (E.D. Pa. March 26, 2009)(quoting Colburn, 946 F.2d at 1023); Monmouth Cty. Corr. Inst. Inmates, 834 F.2d at 347. "[I]f unnecessary and wanton infliction of pain results as a consequence of denial or delay in the provision of adequate medical care, the medical need is of the serious nature contemplated by the Eighth Amendment." Young v. Kazmerski, 266 Fed. Appx. 191, 193 (3d Cir. 2008)(quoting Monmouth Cty. Corr. Inst. Inmates, 834 F.2d at 347).
There is no argument by either of the Remaining Defendants that Plaintiff's Amended Complaint fails to satisfy the serious medical need requirement with respect to the surviving deliberate indifference claims. This Court likewise agrees that based upon the nature of Plaintiff's allegations it cannot be concluded that he was not suffering from an objectively serious medical need.
The proper analysis for deliberate indifference is whether a prison official "acted or failed to act despite his knowledge of a substantial risk of serious harm." Farmer v. Brennan, 511 U.S. 825, 841 (1994). A complaint that a physician "has been negligent in diagnosing or treating a medical condition does not state a valid claim of medical mistreatment under the Eighth Amendment [as] medical malpractice does not become a constitutional violation merely because the victim is a prisoner."*fn11 Estelle, 429 U.S. at 106.
When a prisoner has actually been provided with medical treatment, one cannot always conclude that, if such treatment was inadequate, it was no more than mere negligence. See Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993). It is true, however, that if inadequate treatment results simply from an error in medical judgment, there is no constitutional violation. See id. However, where a failure or delay in providing prescribed treatment is deliberate and motivated by non-medical factors, a constitutional claim may be presented. See id.; Ordonez v. Yost, ...