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Abu-Jamal v. Kerestes

United States District Court, M.D. Pennsylvania

May 10, 2018

MUMIA ABU-JAMAL, Plaintiff,
v.
JOHN KERESTES, et al., Defendants.

          MEMORANDUM OPINION

          ROBERT D. MARIANI UNITED STATES DISTRICT JUDGE.

         I. Introduction

         The 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), [1] 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.

         II. Procedural History

         Although 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.

         Plaintiff, 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 plaintiff.

         On 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).

         On 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).

         While 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).[2] The Court also granted Defendant Geisinger's Motion to Dismiss in its entirety. (Docs. 172, 173).

         With 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.

         With 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 Steinhart's Motion.

         Finally, 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.

         In 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).

         While 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).

         On 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 Abu-Jamal 1.

         In an 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 disease.
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 complications.

(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).

         In 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).

         While 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).

         Meanwhile, 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).

         The 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.).

         On 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).

         On July 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. 245).

         Plaintiff's 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).

         On 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.

         III. Factual Allegations

         Plaintiffs Fourth Amended Complaint alleges the following facts which, for the purposes of resolving Defendants' Motions, the Court takes as true:

         Plaintiff 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 ¶ 28).

         In 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. (Id. at¶39).

         In 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).

         The 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).

         In 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).

         On 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).

         Plaintiff 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 ¶ 82).

         Plaintiff 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 ¶ 91).

         Plaintiff 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).

         Numerous diagnostic tests were conducted during Plaintiff's May 12, 2015, to May 19, 2015, [3] 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 ¶ 111).

         In June 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).

         In late 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 ¶125).

         Plaintiffs 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).

         IV. Standard of Review

         A 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 ...


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