United States District Court, M.D. Pennsylvania
REPORT AND RECOMMENDATION
C. CARLSON UNITED STATES MAGISTRATE JUDGE
Statement of Facts and of the Case.
case comes before us for consideration of a motion to
dismiss, and invites us to consider complex issues relating
to prison health care and the care and treatment afforded to
chronically ill inmates suffering from Hepatitis C. According
to the plaintiffs complaint, the plaintiff, Major Tillery, is
one such chronically ill inmate. (Doc. 1.) Major Tillery is a
67-year old state prisoner, who has allegedly suffered from
Hepatitis C for years. (Id., ¶ 4.) Tillery's
complaint explains that the Hepatitis C virus (HCV) is a
viral infection of the liver. Those who carry HCV often
develop chronic Hepatitis C, a condition marked by liver
inflammation. This inflammation, in turn, leads to cirrhosis
in between 20% to 50% of all cases, and 11-19% of those who
develop cirrhosis later contract liver cancer as well as
other severe medical complications. (Id.,
Tillery further alleges that:
16. In or about 2013, new anti-viral drugs became available.
These drugs have a 90-95% cure rate and few, if any, side
effects. These drugs, two of which are Harvoni and Sovaldi,
have become the standard of care in the medical community.
17. Because of the numerous benefits of early treatment, the
American Association for the Study of Liver Diseases (AASLD),
recommends that everyone with chronic hepatitis C be treated
with those anti-viral drugs irrespective of disease stage on
the Metavir scale or prognosis for progression.
18. The Center for Disease Control (CDC) has issued its own
guidelines that state that the guidelines issued by the AASLD
are the standard of care for the treatment of hepatitis C.
(Id., ¶¶ 16-18.)
described these generally accepted standards of care in this
field, Tillery then alleges that the defendants have violated
this standard of care. According to Tillery's complaint,
the Pennsylvania Department of Corrections has employed
various hepatitis C treatment protocols between 2013 and
2017. (Id., ¶¶ 19-39.) A number of these
treatment protocols were developed by Dr. Noel, and it is
alleged that Dr. Haresh was responsible for the direct care
and treatment of Tillery pursuant to these protocols. Tillery
alleges that these various protocols shared a common element;
they denied anti-viral treatment to inmates like Tillery who
suffered from Hepatitis C, thus allowing the medically
unnecessary exacerbation of their chronic medical conditions.
(Id.) According to Tillery, the adoption of these
policies both fell below generally acceptable standards of
care and rose to the level of deliberate indifference to
inmate medical needs. On this score, Tillery's complaint
also observes that this court has found that these various
treatment protocols violated the Eighth Amendment, and has
enjoined the use of these treatment protocols. See
Abu-Jamal v. Kerestes, No. 3:15-CV-00967, 2016 WL
4574646, at *13-14 (M.D. Pa. Aug. 31, 2016); Abu-Jamal v.
Wetzel No. 3:16-CV-2000, 2017 WL 34700, at *20 (M.D. Pa.
Jan. 3, 2017), appeal dismissed sub nom. Abu-Jamal v.
Sec'v PA Dept of Corr, No. 17-1125, 2017 WL 3123434
(3d Cir. Apr. 13, 2017), and appeal dismissed sub nom.
Abu-Jamal v. Sec'y PA Dept of Corr, No. 17-1156,
2017 WL 3160959 (3d Cir. Apr. 14, 2017). Notwithstanding this
court ruling, Tillery's complaint alleges that:
"This current protocol remained in effect and is
administered and enforced by defendant Noel and defendant
Haresh as the doctor at SCI Fayette despite a federal court
holding it unconstitutional." (Id., ¶39.)
then alleges that he has a longstanding diagnosis of chronic
Hepatitis C infection and suffers from cirrhosis. Despite
this diagnosis, Tillery alleges that Dr. Noel and Dr. Haresh
have denied him anti-viral treatments for his Hepatitis C for
an extended period of time without any adequate medical
justification in a manner that put him at risk of dying from
complications of Hepatitis C. (Id., ¶¶
basis of these averments, Tillery then brings two legal
claims against Drs. Noel and Haresh, alleging that the
doctors' conduct: (1) constituted deliberate indifference
to Tillery's serious medical needs in violation of the
Eighth Amendment to the United States Constitution; and (2)
amounted to medical malpractice, a tort under the laws of
Pennsylvania. (Id., ¶¶ 76-81.) Dr. Haresh
has now moved to dismiss this complaint. (Doc. 5.) This
motion is fully briefed by the parties, (Docs. 6 and 15), and
is therefore ripe for resolution.
reasons set forth below, it is recommended that this motion
to dismiss be denied.
Rule 12(b)(6)- The Legal Standard.
defendants have filed a motion to dismiss this complaint
under Rule 12(b)(6) of the Federal Rules of Civil Procedure.
A motion to dismiss tests the legal sufficiency of a
complaint. It is proper for the court to dismiss a complaint
in accordance with Rule 12(b)(6) of the Federal Rules of
Civil Procedure only if the complaint fails to state a claim
upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). With
respect to this benchmark standard for legal sufficiency of a
complaint, the United States Court of Appeals for the Third
Circuit has aptly noted the evolving standards governing
pleading practice in federal court, stating that:
Standards of pleading have been in the forefront of
jurisprudence in recent years. Beginning with the Supreme
Court's opinion in Bell Atlantic Corp. v.
Twombly, 550 U.S. 544 (2007) continuing with our opinion
in Phillips [v. County of Allegheny, 515
F.3d 224, 230 (3d Cir. 2008)] and culminating recently with
the Supreme Court's decision in Ashcroft v.
Iqbal -U.S.-, 129 S.Ct. 1937 (2009) pleading standards
have seemingly shifted from simple notice pleading to a more
heightened form of pleading, requiring a plaintiff to plead
more than the possibility of relief to survive a motion to
Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d
considering whether a complaint fails to state a claim upon
which relief may be granted, the court must accept as true
all allegations in the complaint and all reasonable
inferences that can be drawn therefrom are to be construed in
the light most favorable to the plaintiff. Jordan v. Fox
Rothschild, O'Brien & Frankel, Inc., 20 F.3d
1250, 1261 (3d Cir. 1994). However, a court "need not
credit a complaint's bald assertions or legal conclusions
when deciding a motion to dismiss." Morse v. Lower
Merion Sch. Dist, 132 F.3d 902, 906 (3d Cir. 1997).
Additionally a court need not "assume that a ...
plaintiff can prove facts that the ... plaintiff has not
alleged." Associated Gen. Contractors of Cal. v.
California State Council of Carpenters, 459
U.S. 519, 526 (1983). As the Supreme Court held in Bell
Atlantic Corp. v. Twombly, 550 U.S. 544 (2007),
in order to state a valid cause of action a plaintiff must
provide some factual grounds for relief which "requires
more than labels and conclusions, and a formulaic recitation
of the elements of a cause of actions will not do."
Id. at 555. "Factual allegations must be enough
to raise a right to relief above the speculative level."
keeping with the principles of Twombly, the Supreme
Court has underscored that a trial court must assess whether
a complaint states facts upon which relief can be granted
when ruling on a motion to dismiss. In Ashcroft v.
Iqbal 556 U.S. 662 (2009), the Supreme Court held that,
when considering a motion to dismiss, a court should
"begin by identifying pleadings that, because they are
no more than conclusions, are not entitled to the assumption
of truth." Id. at 679. According to the Supreme
Court," [t]hreadbare recitals of the elements of a cause
of action, supported by mere conclusory statements, do not
suffice." IcL at 678. Rather, in conducting a review of
the adequacy of complaint, the Supreme Court has advised
trial courts that they must:
[B]egin by identifying pleadings that because they are no
more than conclusions are not entitled to the assumption of
truth. While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.
When there are well-pleaded factual allegations, a court
should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.
Id. at 679.
following Twombly and Iqbal a well-pleaded
complaint must contain more than mere legal labels and
conclusions. Rather, a complaint must recite factual
allegations sufficient to raise the plaintiff's claimed
right to relief beyond the level of mere ...