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Piergrossi v. Noel

United States District Court, W.D. Pennsylvania

May 17, 2018

DAVID PIERGROSSI, Plaintiff,
v.
DR. PAUL NOEL and DR. MICHAEL HERBIK, Defendants.

          OPINION AND ORDER Re: ECF 16, 22

          MAUREEN P. KELLY CHIEF UNITED STATES MAGISTRATE JUDGE

         Plaintiff David Piergrossi (“Plaintiff”) is an inmate currently incarcerated in the custody of the Pennsylvania Department of Corrections (“DOC”) at the State Correctional Institution at Fayette (“SCI - Fayette”). On December 1, 2017, Plaintiff commenced this counseled civil rights and negligence action pursuant to 42 U.S.C. § 1983 and Pennsylvania state law, asserting claims against Dr. Paul Noel (“Dr. Noel”), the Pennsylvania DOC Bureau of Health Care Services Chief of Clinical Services, and Dr. Michael Herbik (“Dr. Herbik”), the contracted medical director at SCI - Fayette. Plaintiff alleges that as a result of initially denying and otherwise delaying treatment for his chronic hepatitis C infection, Defendants violated his rights under the Eighth Amendment of the United States Constitution and otherwise were negligent in their provision of medical care. ECF No. 1.

         Presently before the Court is a Motion for Summary Judgment, ECF No. 16, filed on behalf of Dr. Noel, and a Motion to Dismiss Complaint or, in the alternative, Motion for Summary Judgment, filed on behalf of Dr. Herbik. ECF No. 22. The Motions raise Plaintiff's alleged failure to exhaust available administrative remedies and, as argued by Dr. Herbik, Plaintiff's failure to assert his claims within the applicable statute of limitations. For the reasons that follow, Defendants' motions are denied.[1]

I. FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiff is 55 years old and has been incarcerated in DOC facilities at various times throughout his adult life for a total of approximately fifteen years. Plaintiff currently is incarcerated pursuant to a sentence imposed in May 2015. ECF Nos. 19, 29. Upon entering the DOC system in 2015, SCI-Fayette medical officials were aware that Plaintiff was suffering from Hepatitis C (“HCV”), and was not under treatment. Plaintiff alleges his requests for treatment were denied. The record of this matter indicates that Plaintiff submitted his first grievance related to the denial of medical treatment for HCV, Grievance No. 665565, on February 20, 2017.

         The pending motions turn on Plaintiff's compliance with applicable DOC Grievance Policy provisions. Accordingly, reference is made to the relevant requirements for the submission of a grievance in effect at the time, which are explained to all inmates in the DOC Inmate Handbook:

The inmate must submit a grievance to the Facility Grievance Coordinator/designee, usually the Superintendent's Assistant, within 15 working days after the event upon which the claim is based.
The text of the grievance must be legible, understandable, and presented in a courteous manner. The inmate must include a statement of the facts relevant to the claim.
The statement of facts shall include the date, approximate time, and location of the event(s) that gave rise to the grievance.

ECF No. 17 at 7, ECF No. 19 ¶¶ 13, 17. If the inmate is not satisfied with the Grievance Coordinator's response, DC-804 requires the inmate to submit a timely written appeal to intermediate review within fifteen working days, and a written response is to be provided to the inmate within fifteen working days. ECF No. 17 at 17-18. If the inmate remains dissatisfied with the response, the inmate must submit a timely appeal to the Central Office Review Committee, also known as the Secretary's Office of Inmate Grievances and Appeals (“SOIGA”), within fifteen days. Id. at 20.

         In the instant case, Plaintiff stated in the relevant part of Grievance No. 665565, dated February 20, 2017, as follows:

I am filing this Grievance because the continued refusal of DOC to treat my hepatitis C is causing me ongoing health problems, including [varices], fluid retention, gallbladder attacks, dizziness, loss of appetite, loss of weight, forgetfulness, elevated blood [ammonia] levels, depression, anxiety and vision problems…..
The Hepatitis C from which I suffer is causing on-going and irreversible damage to my liver. I have cirrhosis and varicies (very large) EV and FV and a [gallbladder] loaded with stones. And been placed at a much greater risk of developing hepatocellular carcinoma, as well as increased risk of death.

ECF No. 17 at 40, 48-49. Plaintiff further stated that he had been seen by Dr. Herbick and the Hepatitis C Clinic “at least 6 times” for treatment. Plaintiff requested treatment with Direct-Acting Antiviral ...


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