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Salvatore Chimenti v. Roger Kimber

April 18, 2012

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



The opinion of the court was delivered by: (Judge Caputo)

MEMORANDUM ORDER

Background

Salvatore Chimenti, an inmate presently confined at the Smithfield State Correctional Institution, Huntingdon, Pennsylvania initiated this civil rights action pursuant to 42 U.S.C. § 1983 regarding his medical treatment for Hepatitis C while incarcerated at the State Correctional Institution, Huntingdon, Pennsylvania (SCI-Huntingdon ). It is alleged that there was a delay in providing Plaintiff with an aggressive form of care, Rebetron.*fn1

A March 15, 2002 Memorandum and Order by Judge Vanaskie of this Court granted motions to dismiss filed by the Wexford Defendants, Roger Kimber M.D., and the Commonwealth Defendants. 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"), and Farrohk Mohadjerin, M.D., Medical Director of SCI-Huntingdon, and an employee of Wexford Health Sources, Inc. ("Wexford").*fn2 See Chimenti v. Kimber, 133 Fed. Appx. 833, 834 (3d Cir. 2005).

With respect to Secretary Horn, the Third Circuit Court of Appeals stated as follows:

We conclude that the allegations that Horn knew about the Hepatitis C problem in the prisons and the importance of the protocol negotiations between the Department of Corrections (DOC) and Wexford, yet failed to timely issue the protocol are not so improbable or conclusory as to fail to state a claim. On remand, the record can be developed with respect to what Horn knew about the prison system's Hepatitis C problem, what role he played in the negotiations, and the reasons for the delay.

Chimenti, 133 Fed. Appx. at 834.

Plaintiff's request for leave to file an Amended Complaint regarding his surviving claims was subsequently granted. An Amended Complaint was submitted on August 8, 2005.*fn3 See Doc. 76 . Therein, Plaintiff indicates that he has suffered physical harm, specifically progression of his Hepatitis, including liver deterioration, as a result of the delay in being provided with Rebetron. He further maintains that he has suffered emotional distress due to his personal concerns regarding the alleged delays in his treatment. 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. 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. See id., p. 11.

On April 20, 2006, Horn filed a motion seeking entry of summary judgment. See Doc. 96. Defendant Horn's motion claimed entitlement to entry of summary judgment solely on the grounds that Plaintiff failed to exhaust his administrative remedies. The motion was denied by Judge Vanaskie on June 24, 2008. See Doc. 131.

On February 14, 2011, Secretary Horn filed a second summary judgment motion (Doc. 319) which sought relief on the grounds that:

(1) Chimenti cannot establish that Horn was personally involved in the creation and issuance of the Hepatitis C treatment protocol;

(2) Plaintiff has not shown that there was a delay in the DOC's issuance of the Hepatitis C treatment protocol; and (3) even if there was a delay, it cannot be established that the delay caused Plaintiff any specific or quantifiable harm or damage. See Doc. 326, p. 9.

By Memorandum and Order dated September 19, 2011, this Court denied Horn's motion for summary judgment. Presently pending is Horn's motion (Doc. 339) seeking reconsideration. Former Secretary Horn has also filed a third summary judgment motion. See Doc. ...


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