United States District Court, W.D. Pennsylvania
OPINION AND ORDER Re: ECF 16, 22
MAUREEN P. KELLY CHIEF UNITED STATES MAGISTRATE JUDGE
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.
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.
I. FACTUAL AND PROCEDURAL BACKGROUND
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.
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
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.
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 ...