Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Tillery v. Noel

United States District Court, M.D. Pennsylvania

June 28, 2018

MAJOR TILLERY, Plaintiff,
v.
DR. PAUL NOEL and DR. PANDYA HARESH, Defendants,

          REPORT AND RECOMMENDATION

          MARTIN C. CARLSON UNITED STATES MAGISTRATE JUDGE

         I. Statement of Facts and of the Case.

         This 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., ¶¶ 7-15.)

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.)

         Having 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.)

         Tillery 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., ¶¶ 40-75.)

         On the 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.

         For the reasons set forth below, it is recommended that this motion to dismiss be denied.

         II. Discussion

         A. Rule 12(b)(6)- The Legal Standard.

         The 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 dismiss.

Fowler v. UPMC Shadyside, 578 F.3d 203, 209-10 (3d Cir. 2009).

         In 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." Id.

         In 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.

         Thus, 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.