United States District Court, M.D. Pennsylvania
D. MARIANI UNITED STATES DISTRICT JUDGE.
above captioned matter is a consolidation of two civil rights
actions filed by a Pennsylvania state prisoner, Mumia
Abu-Jamal, arising out of the same set of facts. Presently
before the Court are two Motions to Dismiss, one filed by
Defendants Correct Care Solutions, LLC, Dr. Jay Cowan, Dr.
John Lisiak, Dr. Shaista Khanum, and Physician's
Assistant Scott Saxon (collectively the "Medical
Defendants"), (Doc. 248),  and one filed by Defendants John
Kerestes, the Pennsylvania Department of Corrections, Theresa
DelBalso, Joseph Silva, John Wetzel, Dr. Paul Noel,
Christopher Oppman, John Steinhart, Bureau of Health Care
Services Assistant Medical Director, and Bureau of Health
Care Service Infection Control Coordinator (collectively the
"Corrections Defendants"), (Doc. 251). For the
reasons that follow, the Court will deny the Medical
Defendants' Motion to Dismiss, and grant in part and deny
in part the Corrections Defendants' Motion to Dismiss.
only at the pleadings stage, this matter already has a long
and somewhat complicated procedural history. Indeed, although
the case was initiated almost three years ago, it appears
that the parties have been unwilling to put this matter in
the proper posture for resolution. Instead, counsel for
Plaintiff and Defendants have all engaged in a variety of
tactics aimed at slowing or even altogether stopping the
orderly progress of this case. Moving forward, the Court
expects that the parties will set aside the gamesmanship that
has thus far defined this litigation and proceed with an eye
towards timely resolving the questions presented in this
case. With that, the Court will begin with a somewhat lengthy
recitation of the procedural history so that the present
motions may be understood in their proper context.
Mumia Abu-Jamal, along with Plaintiffs Brett Grote and Robert
Boyle, also Mr. Abu-Jamal's attorneys of record in this
matter, initially filed a Complaint in case number
3:15-CV-967 ("Abu-Jamal 1") on May 18,
2015, claiming violations of their right to association and
access to the courts. (Doc. 1 at 10). Plaintiffs alleged that
Defendant Kerestes, the then-current superintendent at the
State Correctional Institution at Mahanoy ("SCI-
Mahanoy"), and Geisinger Medical Center "barred the
plaintiff attorneys from visiting with Mr. Abu-Jamal"
while Plaintiff was hospitalized at Geisinger Medical Center
and further "prohibited all communication between Mr.
Abu-Jamal and anyone, " with the exception of a short
phone call between him and his wife. (Id. at ¶
6). Subsequently, Plaintiffs Boyle and Grote each filed a
notice of voluntary dismissal, (Docs. 17, 18), leaving Mr.
Abu-Jamal ("Plaintiff") as the only remaining
August 3, 2015, Plaintiff filed a Motion for Leave to File a
"First Amended and Supplemental Complaint." (Doc.
21). The proposed amendment retained Plaintiff's right to
association and access to the courts claims and sought to add
several Eighth Amendment claims and state law medical
negligence claims related to the medical treatment, or lack
thereof, Plaintiff received in connection with his hepatitis
C, hyperglycemia, and skin condition. (Doc. 21-2). The
proposed amendment also sought to add as Defendants the
then-current Director of the Bureau of Health Care Services
at the Department of Corrections, Christopher Oppman, and the
Chief Health Care Administrator at the Department of
Corrections, John Steinheart, along with three of
SCI-Mahanoy's medical staff, Dr. John Lisiak, Dr. Shaista
Khanum, and Physician's Assistant Scott Saxon.
(Id.). On November 24, 2015, after Magistrate Judge
Mehalchick granted Plaintiff's Motion to Amend,
Plaintiffs First Amended and Supplemental Complaint
("Amended Complaint") became the operative
complaint. (Doc. 57).
August 23, 2015, Plaintiff filed a Motion for a Preliminary
Injunction seeking to require Defendants to
1) immediately treat plaintiff's active hepatitis C
infection with the latest direct acting anti-viral drugs; 2)
immediately treat his skin condition, a manifestation of the
hepatitis C, with zinc supplementation and Protopic cream;
and 3) permit Mr. Abu Jamal to have an in-person examination
by an independent physician of his own choosing under
conditions that are appropriate for such examinations.
(Doc. 23 at 1). Less than a month later, Magistrate Judge
Mehalchick issued a Report and Recommendation
("R&R") which recommended denying Plaintiffs
Motion for a Preliminary Injunction. (Doc. 39). Thereafter,
Plaintiff filed objections to the R&R, arguing that this
Court should either grant Plaintiffs Motion or hold an
evidentiary hearing on the issue. (Doc. 42). In December of
2015, a three day evidentiary hearing was held for the
purpose of receiving the evidence necessary to resolve the
Motion. (Docs. 94, 95, 96).
Plaintiffs Motion and objections remained pending, four
motions to dismiss were filed, one by Defendant Geisinger,
one by Defendant Kerestes, one by Defendants Oppman and
Steinhart, and one by Defendants Khanum, Lisiak, and Saxton.
(Docs. 63, 81, 108, 110). On June 22, 2016, the Court denied
Defendants Khanum, Lisiak, and Saxton's Motion to
Dismiss, finding that the only basis raised in the
motion-that Plaintiff failed to exhaust his administrative
remedies with respect to his hepatitis C claim-was without
merit. (Docs. 157, 158). Next, on August 5, 2016, the Court
granted in part and denied in part both Defendant
Kerestes's Motion to Dismiss and Defendants Oppman and
Steinhart's Motion to Dismiss. (Docs. 168, 169, 170,
171). The Court also granted Defendant
Geisinger's Motion to Dismiss in its entirety. (Docs.
respect to Defendant Kerestes's Motion to Dismiss, the
Court dismissed, with prejudice, (1) Plaintiffs claim for
money damages against Defendant Kerestes in his official
capacity, (2) Plaintiffs access to the courts claim against
Defendant Kerestes, and (3) Plaintiff's medical
negligence claims against Defendant Kerestes. (Docs. 168,
169). The Court also dismissed, but without prejudice,
Plaintiffs Eighth Amendment claims because Plaintiff failed
to sufficiently plead Defendant Kerestes's personal
involvement as required in an action under 42 U.S.C. §
1983. Nevertheless, the Court held that Plaintiff had
adequately pleaded his freedom of association claim,
including Defendant Kerestes's personal involvement.
Finally, the Court found that Defendant Kerestes failed to
carry his burden to show that the permanent injunction
Plaintiff sought in connection with his freedom of
association claim was moot because such claim, at the
pleading stage, met the "capable of repetition, yet
evading review" test.
respect to Defendants Oppman and Steinhart's Motion to
Dismiss, the Court dismissed, with prejudice, Plaintiff's
claim for money damages against them in their official
capacities. (Docs. 170, 171). The Court also dismissed,
without prejudice, Plaintiff's Eighth Amendment claims
because Plaintiff failed to sufficiently plead Defendant
Oppman's or Defendant Steinhart's personal
involvement as required in an action under section 1983. In
all other respects, the Court denied Defendants Oppman and
the Court granted Defendant Geisinger's Motion to Dismiss
in its entirety, finding that Plaintiff's access to the
courts claim against Defendant Geisinger failed as a matter
of law and that Plaintiff's freedom of association claim
against Defendant Geisinger was moot because Plaintiff was no
longer in Defendant Geisinger's care. (Docs. 172, 173).
As those were the only claims against it, Defendant Geisinger
was dismissed from this action.
granting Plaintiff leave to amend his Eighth Amendment claims
against Defendants Kerestes, Oppman, and Steinhart, the Court
made clear "that the Court expects any such amendment to
contain specific allegations of fact, stated in the active
voice and delineating the specific actions or omissions by
[Defendant Kerestes, ] Defendant Steinhart[, ] or Defendant
Oppman, if any, which establish personal involvement or
knowledge and acquiescence in the constitutional violations
alleged by Plaintiff." (Docs. 169, 171). On August 16,
2016, in accordance with this Court's Orders, Plaintiff
filed their Second Amended Complaint. (Doc. 178). The next
day, Plaintiff filed a motion seeking to amend his Complaint
once again. (Doc. 179).
Plaintiff's Motion to Amend was pending, the Court denied
Plaintiffs Motion for a Preliminary Injunction. (Docs. 191,
192). In an Opinion issued on August 31, 2016, this Court
found that the Department of Corrections had "an interim
protocol to address patients with hepatitis C" and that,
under that protocol, a "Hepatitis C Treatment Committee
has the ultimate authority to decide whether" an inmate
is treated with direct-acting antiviral ("DAA")
medications. (Doc. 191 at 11, 19). This Court then concluded
that "[t]he protocol as currently adopted and
implemented presents deliberate indifference to the known
risks which follow from untreated chronic hepatitis C."
(Id. at 21). This Court, however, did not issue a
preliminary injunction because "[i]t was the Hepatitis C
Treatment Committee who made the decision not to give
Plaintiff DM medications and that had, and continues to have,
the ultimate authority to determine whether or not Plaintiff
will receive the DM medications, " and "[t]he named
Defendants [were] not members of the Hepatitis C Treatment
Review Committee." (Id. at 21-22). Thus, this
Court held that it could not "properly issue an
injunction against the named Defendants, as the record
contain[ed] no evidence that they ha[d] authority to alter
the interim protocol or its application to Plaintiff."
(Id. at 22). In doing so, however, the Court advised
that "were the proper defendants named, the Court
believes there is a sufficient basis in the record to find
that [the Department of Corrections'] current protocol
may well constitute deliberate indifference." (W.at3l).
September 30, 2016, Plaintiff filed a separate action under
case number 3:16-CV-2000 ("Abu-Jamal 2").
The Complaint in Abu-Jamal 2 contained a single
count titled "Deprivation of Eighth Amendment Right to
Medical Care for Hepatitis C" and named the following as
defendants: John Wetzel, Secretary of the Pennsylvania
Department of Corrections; Dr. Paul Noel, Department of
Corrections Bureau of Health Care Services Chief of Clinical
Services, member of Hepatitis C Treatment Committee; Bureau
of Health Care Services Assistant Medical Director, member of
Hepatitis C Treatment Committee; Bureau of Health Care
Services Infection Control Coordinator, member of Hepatitis C
Treatment Committee; Correct Care Solutions representative on
the Hepatitis C Treatment Committee; Correct Care Solutions;
Joseph Silva, Department of Corrections Director of Bureau of
Health Care Services; and Treating Physician, SCI-Mahanoy.
(3:16-CV-2000, Doc. 1). On October 5, 2016, Plaintiff filed a
Motion for a Preliminary Injunction in Abu-
Jamal 2 which sought the same relief this Court had
denied in Abu-Jamal 1. (3:16-CV- 2000, Doc. 7).
During a conference call held on December 1, 2016, all
parties agreed that a new evidentiary hearing was not
necessary and that this Court could decide Plaintiff's
Motion on the basis of the evidence presented in
Opinion issued on January 3, 2017, this Court found that,
despite the fact that the Department of Corrections replaced
the interim protocol that was analyzed in Abu-Jamal
1 with a new protocol, "the new protocol
completely bars those with chronic hepatitis C but without
vast fibrosis or cirrhosis from receiving DM
medications." (3:16-CV-2000, Doc. 23 at 32). More
specifically, the Court concluded that
[t]he Hepatitis C Protocol deliberately delays treatment for
hepatitis C through the administration of DM drugs such as
Harvoni, Sovaldi, and Viekira Pak despite the knowledge of
Defendants that sit on the Hepatitis C Treatment Committee:
(1) that the aforesaid DM medications will effect a cure of
Hepatitis C in 90 to 95 percent of the cases of that disease;
and (2) that the substantial delay in treatment that is
inherent in the current protocol is likely to reduce the
efficacy of these medications and thereby prolong the
suffering of those who have been diagnosed with chronic
hepatitis C and allow the progression of the disease to
accelerate so that it presents a greater threat of cirrhosis,
hepatocellular carcinoma, and death of the inmate with such
In choosing a course of monitoring over treatment,
[Defendants] consciously disregarded the known risks of
Plaintiffs serious medical needs, namely continued liver
scarring, disease progression, and other hepatitis C
(Id. at 20-21). As such, the Court held that
Plaintiff had a reasonable likelihood of success on the
merits of his claim. (Id. at 27-41). After
determining that the other preliminary injunction factors
weighed in Plaintiff's favor, the Court granted
Plaintiffs Motion. (Id. at 42-43). The Court
thereafter enjoined Defendants from enforcing the Hepatitis C
Protocol as it pertained to Plaintiff and directed Defendants
to administer DAA medications to Plaintiff unless such
medications were found to be contraindicated by a medical
professional. (3:16-CV-2000, Doc. 24).
response, Defendants filed Motions for Reconsideration,
Motions to Stay, and Notices of Appeal. (3:16-CV-2000, Docs.
29, 30, 31, 36, 37, 49). On February 7, 2017, Plaintiff filed
a Motion for Contempt, arguing that Defendants' continued
failure to administer DAA medications to Plaintiff was
unjustified and in violation of the Court's Order because
this Court had not yet ruled on any of the pending Motions to
Stay. (3:16-CV-2000, Doc. 53).
those matters were unfolding in Abu-Jamal 2, the
Court granted Plaintiffs Motion to Amend his Complaint in
Abu-Jamal 1. (Docs. 206, 207). Plaintiffs Third
Amended Complaint, filed on January 17, 2017, added John
Wetzel, the Department of Corrections, and Dr. Paul Noel as
Defendants and substituted the current Superintendent of
SCI-Mahanoy, Theresa DelBalso, for Kerestes in Plaintiffs
claims seeking injunctive relief. (Doc. 210).
on March 31, 2017, Defendants in Abu-Jamal 2
informed the Court that "[f]ollowing recent medical
testing and a review of the results thereof, Plaintiff will
be treated with the Federal Drug Administration (FDA)
approved Hepatitis C directing-acting [sic] antiviral
medication in accordance with the Hepatitis C protocol of the
Department of Corrections." (3:16-CV-2000, Doc. 59). On
April 4, 2017, Plaintiff's counsel informed the Court
that Plaintiff had undergone a "sonogram and a hepatic
elastography" and that the test results revealed that
his condition had "deteriorated to 'severe grade 4
liver cirrhosis.'" (3:16-CV-2000, Doc.61at2).
Court held a status conference with counsel for the parties
on April 5, 2017. Counsel for the Corrections Defendants
confirmed to the Court that Plaintiff would be administered
the direct-acting antiviral agent Harvoni beginning Thursday,
April 6, 2017, and that such treatment would continue for a
period of twelve consecutive weeks. Further, counsel for the
Corrections Defendants and counsel for Correct Care Solutions
also represented that Plaintiff would be tested to confirm
the efficaciousness of the treatment, and that the test would
be administered twelve weeks after the completion of his
Harvoni regiment. As a result of the above, the Court
dismissed Defendants Motions to Stay and Motions for
Reconsideration as moot. (3:16-CV-2000, Doc. 63). Plaintiffs
Motion for Contempt was held in abeyance pending confirmation
of completion of Plaintiffs treatment. (Id.).
April 18, 2017, the Court held a conference with the parties
to determine if Abu-Jamal 1 and Abu-Jamal 2
should be consolidated. The parties agreed that the two
matters should be consolidated and thereafter filed a Joint
Motion for Consolidation. (Doc. 223; 3:16-CV-2000, Doc. 71).
On May 4, 2017, the Court issued an Order consolidating
Abu-Jamal 1 and Abu-Jamal 2. (Doc. 224;
3:16-CV-2000, Doc. 72).
18, 2017, Plaintiff moved to join Dr. Jay Cowan as a
Defendant. (Doc. 239). After Defendants acknowledged that
Plaintiffs Motion was legally sufficient and that Plaintiff
had the right to join Dr. Cowan, (Doc. 241), the Court
granted Plaintiff's Motion. (Doc. 244). On August 23,
2017, Plaintiff filed his Fourth Amended Complaint. (Doc.
Fourth Amended Complaint contains the following claims: a 42
U.S.C. § 1983 Eighth Amendment claim for deliberate
indifference to Plaintiff's hepatitis C against
Defendants DelBalso, the Pennsylvania Department of
Corrections, and Silva in their official capacities and for
injunctive relief only, Defendants Wetzel, Oppman, Noel,
Cowan, Lisiak, Khanum, Saxon, and Stienhart in both their
individual capacities for money damages and in their official
capacities for injunctive relief, and Defendant Kerestes in
his individual capacity for money damages only (Count I); a
section 1983 Eighth Amendment claim for deliberate
indifference to Plaintiff's skin condition against
Defendants Kerestes, Wetzel, Noel, Lisiak, Khanum, and Saxon
in their individual capacities for money damages only (Count
II); a section 1983 Eighth Amendment claim for deliberate
indifference to Plaintiffs hyperglycemia against Defendants
Kerestes, Lisiak, Khanum, and Saxon in their individual
capacities for money damages only (Count III); a state law
medical malpractice claim for failure to treat
Plaintiff's hyperglycemia against Defendants Lisiak,
Khanum, and Saxon in their individual capacities for money
damages only (Count IV); a state law medical malpractice
claim for failure to treat Plaintiffs hepatitis C against
Defendants Noel, Cowan, Oppman, Lisiak, Khanum, and Saxon in
their individual capacities for money damages only (Count V);
a state law medical malpractice claim for failure to treat
Plaintiffs skin condition against Defendants Noel, Oppman,
Lisiak, Khanum, and Saxon in their individual capacities for
money damages only (Count VI); and a section 1983 First
Amendment right of association claim against Defendants
Kerestes and DelBalso in their official capacities and for
injunctive relief only (Count VII).
August 25, 2017, the Medical Defendants filed a Partial
Motion to Dismiss Plaintiffs Fourth Amended Complaint. (Doc.
248). On September 7, 2017, the Corrections Defendants filed
a Partial Motion to Dismiss, or, in the alternative, a
Partial Motion for Summary Judgment. (Doc. 251). These
Motions are presently pending before the Court.
Fourth Amended Complaint alleges the following facts which,
for the purposes of resolving Defendants' Motions, the
Court takes as true:
Mumia Abu-Jamal is currently incarcerated in the custody of
the Pennsylvania Department of Corrections at SCI-Mahanoy.
(Doc. 245 at ¶ 4). Plaintiff incarceration began in 1981
when he was arrested for, and later convicted of, murdering a
Philadelphia police officer. (Id. at¶¶ 18,
22-23). Although Plaintiff was sentenced to death, in 2011,
the Third Circuit affirmed a lower court's order setting
aside Plaintiffs death sentence. (Id. at
¶¶ 22, 27). After the Philadelphia District
Attorney's Office chose not to seek to reinstate
Plaintiff's death sentence, the Department of Corrections
placed him into the general population. (Id. at
2012, Plaintiff tested positive for the hepatitis C antibody
during routine blood work. (Id. at ¶ 60).
Hepatitis C is a virus that infects the cells of the liver.
(Id. at ¶ 33). Between seventy-five and
eighty-five percent of individuals with hepatitis C will
develop chronic hepatitis C, which will result in progressive
inflammation of the liver. (Id.). This inflammation
leads to liver scarring, known as fibrosis, and extreme liver
scarring, known as cirrhosis, both of which impact the
liver's ability to function. (Id. at ¶ 34).
Chronic hepatitis C may cause complications such as liver
cancer, anemia, and diabetes. (Id. at¶¶
37-38, 41). Chronic hepatitis C may also result in skin
conditions such as lichen planus, necrolytic acral erythema,
psoriasis, eczema, and pruritus. (Id. at ¶42).
Approximately twenty percent of all those with chronic
hepatitis C will die from complications of the disease.
2013, new antiviral drugs came onto the market that had a
ninety to ninety-five percent cure rate for hepatitis C.
(Id. at ¶ 43). Two of these drugs were Harvoni
and Sovaldi. (Id.). The American Association for the
Study of Liver Diseases ("AASLD") currently
recommends that everyone with chronic hepatitis C be treated
with the new antiviral drugs. (Id. at ¶ 44).
Further, the Centers for Disease Control has issued
guidelines stating that the recommendations of the AASLD are
the standard of care for treating hepatitis C. (Id.
at ¶ 45). In late 2015, Defendants Oppman, Cowan, and
Noel formulated and adopted a policy concerning which of the
5000 Pennsylvania inmates with chronic hepatitis C would be
treated with the new antiviral drugs. (Id. at
¶¶ 47, 50). The policy was authorized by Defendant
Wetzel. (Id. at ¶ 51). Under the policy, only
inmates with decompensated cirrhosis with bleeding could
receive the antiviral drugs. (Id. at ¶ 52). At
this stage of the disease progression, however, an individual
has already suffered irreversible damage to his or her
health, including liver damage and increased risk of death.
(Id. at ¶¶ 53-54).
Department of Corrections hepatitis C treatment policy was
implemented by Defendants Wetzel, Oppman, Noel, Kerestes,
Steinhart, and Cowan despite their knowledge that there was
no medical justification for denying treatment to inmates who
did not meet the policy's treatment criteria and that
failing to treat these infected inmates caused harm to the
inmates' health, including a risk of death. (Id.
at ¶ 56). The policy remains in effect and is enforced
by Defendants Wetzel, Silva, Noel, DelBalso, and Steinhart.
(Id. at ¶ 58).
August of 2014, Plaintiffs hepatitis C resulted in a severe
skin rash. (Id. at ¶ 63). Plaintiff began to
experience itching over his whole body and he reported his
condition to facility staff. (Id. at ¶ 64). He
was prescribed creams, which had no effect. (Id.).
On February of 2015, Defendants Lisiak and Khanum noted that
the rash covered seventy percent of Plaintiff's body.
(Id. at ¶¶ 65-66). On February 20, 2015,
Defendant Khanum ordered Plaintiff to be admitted to the
facility infirmary. (Id. at ¶ 68). On that
date, Defendant Lisiak noted that Plaintiff's blood
glucose was abnormally high, but did not inform Plaintiff.
(Id. at ¶ 69). Although Plaintiff's medical
records indicated that he tested positive for hepatitis C
years earlier, Defendants Lisiak, Saxon, and Khanum did not
investigate whether Plaintiffs hepatitis C might be causing
the skin condition. (Id. at ¶ 70). With the
knowledge and approval of Defendants Lisiak, Saxon, and
Khanum, Plaintiff was prescribed another steroid and an
immunosuppressant. (Id. at ¶ 71).
March 6, 2015, Plaintiff's blood work showed his glucose
level had risen to a severely abnormal level. (Id.
at ¶ 72). Defendants Lisiak, Saxon, and Khanum were
aware of this information and knew or should have known that
this indicated a dangerous case of hyperglycemia.
(Id. at ¶¶ 72-73). Nevertheless, despite
this knowledge, Defendants Lisiak, Saxon, and Khanum took no
action. (Id. at¶ 74). Untreated hyperglycemia
is a potentially fatal condition. (Id. at ¶
79). In March of 2015, an inmate told Defendant Kerestes that
Plaintiff was very weak and suffering. (Id. at
¶ 76). Defendant Kerestes took no action to investigate
this information. (Id. at ¶ 77). On March 30,
2015, Plaintiff lost consciousness and, upon being rushed to
Schuylkill Medical Center, was found to have an abnormally
high blood glucose level and be suffering from diabetic
shock. (Id. at¶ 78).
returned to prison on April 1, 2015. (Id. at ¶
80). Release papers indicated that his prognosis was
"guarded" and that he had the following medical
issues: "diabetes, new onset, encephalopathy secondary
to hyperglycemia, dehydration, acute kidney injury,
hyponatremia, hypokalemia, asymptomatic gallstones, skin
rash, anemia and a history of hepatitis C."
(Id.). Despite being aware of this information,
Defendants Kerestes, Steinhart, Lisiak, Khanum, and Saxon
took no steps to investigate whether hepatitis C may be the
cause of Plaintiff's rash and other medical issues.
(Id. at ¶ 83). Plaintiff's blood work
revealed and continues to reveal abnormalities, including a
consistently below-normal hemoglobin count. (Id. at
retained counsel in March of 2015 to advocate for his medical
care. (Id. at¶ 84). On April 6, 2015, counsel
sent a letter to both Defendants Kerestes and Steinhart
informing them that Plaintiff's blood sugar remained
abnormal. (Id. at¶ 90). Defendants Kerestes and
Steinhart did not respond to the letter. (Id. at
experienced extreme pain in his lower extremities when
showering on May 12, 2015, and he was transported to
Geisinger Medical Center later that day. (Id. at
¶ 99). Plaintiff's counsel and Plaintiff's wife
both requested that they be permitted to visit with Plaintiff
at Geisinger. (Id. at ¶ 100). Counsel and
Plaintiff's wife were initially told that Defendant
Kerestes would permit visits from immediate family members
but were later told that Plaintiff would be denied all
visitation, including visits with his counsel, so long as he
remained at Geisinger. (Id. at ¶ 101).
Plaintiff was also not allowed to telephone his counsel or
his wife. (Id.). Counsel for the Department of
Corrections asserted that the prohibition on visitation and
phone calls was the policy of Geisinger. (Id. at
¶ 102). On May 14, 2015, Plaintiff's counsel
contacted Geisinger's litigation counsel, who agreed to
seek authorization from Geisinger's Chief Medical Officer
and the Department of Corrections officials to permit family
and attorney visits and phone calls. (Id. at ¶
103). Plaintiff was granted a fifteen minute telephone call
with his wife on May 18, 2015, but was not allowed any
contact with his counsel. (Id. at ¶ 104).
diagnostic tests were conducted during Plaintiff's May
12, 2015, to May 19, 2015,  hospitalization at Geisinger, but
the underlying causes of Plaintiffs health problems were not
determined. (Id. at ¶¶ 106-107). A
hepatitis C workup was not performed at Geisinger Medical
Center. (Id. at ¶ 109). The Geisinger discharge
report dated May 18, 2015, however, noted that Plaintiff
might be a suitable candidate for hepatitis C treatment.
(Id. at ¶ 110). That discharge report was
placed in Plaintiff's medical records at SCI-Mahanoy.
(Id.). Defendants Lisiak, Khanum, Kerestes, and
Steinhart did not order a hepatitis C blood test to determine
whether the disease was chronic. (Id. at ¶
of 2015, Plaintiff's counsel sent a letter to the
Department of Corrections' counsel requesting that blood
work be performed to determine whether Plaintiff had chronic
hepatitis C, as that could be the underlying cause of his
skin condition, anemia, and hyperglycemia. (Id. at
¶ 115). This letter was shared with Defendants Kerestes,
Steinhart, Oppman, Wetzel, and Noel. (Id. at ¶
114). Plaintiffs counsel received no response to the letter.
(Id. at ¶ 116).
July of 2015, the Department of Corrections' medical
staff conducted blood work on Plaintiff which revealed that
he had chronic hepatitis C. (Id. at ¶ 122).
Between July of 2015 and mid-September of 2015, Plaintiff
asked Defendants Lisiak and Khanum to treat him with Harvoni
or Sovaldi, but was told that the matter was out of the
physicians' hands because the Department of Corrections
found the medication to be cost prohibitive. (W.at
hepatitis C continues to progress and expose him to the risk
of other health complications. (Id. at ¶¶
126-129). Plaintiffs skin conditions persist and will only be
cured if his hepatitis C is treated. (Id. at
¶¶ 130-131). Nevertheless, the Department of
Corrections will not provide Plaintiff with hepatitis C
treatment. (Id. at ¶ 141). Specifically,
Defendants Noel and Cowan recommended that Plaintiff should
not be treated with antiviral medications because he does not
meet the treatment criteria under the policy developed by
Defendants Wetzel, Noel, Cowan, and Oppman. (Id. at
¶¶ 146-147, 149). Defendants Wetzel, Kerestes, and
Steinhart have adopted that recommendation and refuse to
treat Plaintiff with antiviral medications. (Id. at
¶ 146). Defendant Delbalso continues to enforce this
policy at SCI-Mahoney. (Id. at ¶ 151). There is
no medical justification for denying Plaintiff treatment; the
sole basis for refusing treatment is the monetary cost of the
medication. (Id. at ¶¶ 155-156).
Standard of Review
complaint must be dismissed under Federal Rule of Civil
Procedure 12(b)(6) if it does not allege "enough facts
to state a claim to relief that is plausible on its
face." BellAtl. Corp. v. Twombly,550 U.S. 544,
570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). "A claim
has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable
inference that the defendant is liable for the ...