Chimenti v. Kimber, et al

Filing 337

MEMORANDUM AND ORDER granting in part 319 Motion for Summary Judgment; denying 322 Motion for Summary Judgment. IT IS HEREBY ORDERED THAT: 1. Defendant Martin Horn's motion for summary judgment (Doc. 322) is DENIED. 2. Defendant Farrokh Mohadjerin, M.D.'s motion for summary judgment (Doc. 319) is GRANTED IN PART. 3. Summary judgment is granted in favor of Defendant Mohadjerin solely to the extent that Plaintiff may be attempting to establish liability against Doctor Mohadjerin based upon the delay in the formulation of the DOC/Wexford protocol. The motion is denied in all other respects. 4. A pretrial conference will be scheduled in this matter. Signed by Honorable A. Richard Caputo on 9/19/11 (jam, )

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SALVATORE CHIMENTI
Plaintiff,
v.
ROGER KIMBER, et al.,
Defendants

:
:
:
:
: CIVIL NO. 3:CV-01-0273
:
: (Judge Caputo)
:
:
MEMORANDUM

Background
This civil rights action pursuant to 42 U.S.C. § 1983 was filed pro se by Salvatore
Chimenti, an inmate presently confined at the Smithfield State Correctional Institution,
Huntingdon, Pennsylvania.1 Chimenti’s action regards actions which purportedly transpired
when he was previously confined at State Correctional Institution, Huntingdon,
Pennsylvania (“SCI-Huntingdon”).
By Opinion dated June 8, 2005, the United States Court of Appeals for the Third
Circuit concluded that Plaintiff sufficiently alleged claims of deliberate indifference to
serious medical needs against two Defendants – former Secretary Martin Horn of the
Pennsylvania Department of Corrections (“DOC”)2 and SCI-Huntingdon Medical Director
Farrohk Mohadjerin, M.D., an employee of Wexford Health Sources, Inc. (“Wexford”).3

1

For the convenience of the reader of this Order in electronic format, hyperlinks to the
Court's record and to authority cited herein have been inserted. The Court accepts no
responsibility for, and does not endorse, any product, organization, or content at any
hyperlinked site, or at any site to which that site might be linked. The Court accepts no
responsibility for the availability or functionality of any hyperlink. Thus, the fact that a
hyperlink ceases to work or directs the user to some other site does not affect the opinion
of the Court.
2

By Order dated May 15, 2009, this Court granted Plaintiff’s motion for substitution of
party and added DOC’s current Secretary Jeffrey Beard as a Defendant in his official
capacity only. See Doc. 219, ¶ 2.
3

The Court of Appeals affirmed the dismissal of Chimenti’s allegations against the
other Defendants as well as his claim that Dr. Mohadjerin took him off Interferon.

See Chimenti v. Kimber, 133 Fed. Appx. 833, 834 (3d Cir. 2005).
Thereafter, Plaintiff’s request for leave to file an Amended Complaint regarding his
surviving claims was granted. An Amended Complaint was submitted on August 8, 2005.
See Doc. 76. Therein, Chimenti acknowledges that he has been incarcerated in the
Commonwealth of Pennsylvania since 1983 and was transferred to SCI-Huntingdon during
April, 1991. Plaintiff states that a liver biopsy conducted by the SCI-Huntingdon medical
staff during 1991 tested positive for “Hepatitis C virus.” Id. at ¶ 8. The Plaintiff was
informed that his Hepatitis would be monitored through blood tests which would be
performed every four (4) to six (6) months. Chimenti admits that he did not require active
treatment for his condition between 1991 and 1997.
Doctor Mohadjerin referred Plaintiff to Doctor Michael F. Gaugler, D.O., a
gastroenterologist, for examination on or about July 24, 1997. Doctor Gaugler conducted a
liver biopsy in November, 1997 and thereafter recommended the initiation of Interferon
treatment. Chimenti indicates that Doctor Mohadjerin ordered the Interferon treatment
recommended by Dr. Gaugler. Although Interferon treatment was conducted with partial
success over the course of the next three and one half (3 ½ ) months, it was purportedly
discontinued by Defendant Mohadjerin on March 18, 1998 on the basis that Chimenti was
not fully responding to the treatment. See id. at ¶ 16. It is next alleged that Doctor
Mohadjerin rejected Dr. Gaugler’s recommendation that the Interferon treatment be
intensified and failed to provide any substitute treatment. According to the Amended
Complaint, Mohadjerin purportedly made a determination that no further treatment would
be provided until the Food and Drug Administration (“FDA”) approved a new aggressive
form of care, Rebetron.4

4

Rebetron is a combination therapy of Interferon and Ribavirin. See Doc. 334, p. 2. By
(continued...)
2

The FDA approved the use of Rebetron on or about June, 1998.5 Mohadjerin

allegedly informed Plaintiff in June 1998 that despite the approval of the FDA, the inmate
would not be provided with Rebetron until the DOC and Wexford agreed on a protocol for
its use by the Pennsylvania state inmate population. See id. at ¶ 22. Thereafter, the
Center for Disease Control (“CDC”) issued a national protocol for Rebetron treatment in
October, 1998. However, because DOC and Wexford Health Services still had not yet
reached an agreement on the protocol for Rebetron treatment, Dr. Mohadjerin would not
prescribe Rebetron for the Plaintiff.
Chimenti’s Amended Complaint contends that Doctor Mohadjerin was deliberately
indifferent to Plaintiff’s medical needs by not pursuing or seeking approval of Rebetron
treatment after the CDC issued the national protocol.6 The DOC and Wexford Health
Services did not reach an agreement on a protocol for providing Rebetron treatment to
Pennsylvania state inmates until January, 2000.7 Despite that development, Chimenti still
did not start receiving Rebetron therapy until June 26, 2000.
Plaintiff claims that because he was not provided with any treatment between
March 18, 1998 and June 26, 2000, his condition purportedly deteriorated to the point that
his liver became severely damaged. Moreover, due to the prolonged period of inaction, the
Rebetron treatment which was eventually provided was of no benefit and Chimenti now

4

(...continued)
letter dated May 13, 1998 Dr. Gaugler opined that use of Rebetron should be considered
for Chimenti.
5

The FDA issued a second more expansive Rebetron approval in December 1998.

6

During the relevant time period, Wexford employed Doctor Mohadjerin as Medical
Director of SCI-Huntingdon.
7

An initial protocol was issued in December 1999.
3

purportedly requires a liver transplant.8
With respect to Secretary Horn, the Amended Complaint seeks relief on the basis
that Horn “knew or should have known” of the need to implement “a speedy medical
protocol for appropriate Rebetron treatment.” Id. at ¶ 27. Despite that knowledge, Horn
allegedly failed to take reasonable action. The Amended Complaint concludes that Doctor
Mohadjerin was deliberately indifferent to Plaintiff’s medical needs by discontinuing the
Interferon treatment and by not pursuing or seeking approval of Rebetron treatment after
the CDC issued a national protocol for Rebetron treatment in October, 1998. Chimenti
seeks compensatory and punitive damages as well as injunctive relief, specifically, a
transfer to the State Correctional Institution, Pittsburgh, Pennsylvania (“SCI-Pittsburgh”) for
the purpose of undergoing a liver transplant evaluation.
By Memorandum and Order dated February 13, 2006, Doctor Mohadjerin’s motion
for partial dismissal was granted. The Plaintiff’s claim that Doctor Mohadjerin was
deliberately indifferent for discontinuing his Interferon treatment was dismissed.9 By Order
dated May 15, 2009, Judge Vanaskie directed counsel for Doctor Mohadjerin to serve
Plaintiff with complete responses to his outstanding discovery requests. See Doc. 219.
The Order further provided that if complete and timely responses were not served,
Chimenti could file a motion to compel discovery and/or sanctions as authorized under
Federal Rule of Civil Procedure 37.
On September 10, 2009, Judge Vanaskie appointed Abhinav Humar, M.D., Director

8

Chimenti started receiving Rebetron therapy on or about June 26, 2000. On or about
December 13, 2000, Dr Kimber, who replaced Doctor Mohadjerin as SCI-Huntingdon’s
Medical Director, discontinued Plaintiff’s Rebetron treatment because the prisoner was not
responding favorably.
9

It was also concluded that Plaintiff’s claim that Doctor Mohadjerin was deliberately
indifferent for not pursuing or seeking approval of Rebetron treatment after the CDC issued
a national protocol for Rebetron treatment in October, 1998 should proceed.
4

of the Transplant Program at the University of Pittsburgh Medical Center, as an
independent medical expert under Federal Rule of Evidence 706 for the purpose of
preparing an independent medical expert report as to Chimenti’s Hepatitis condition and
his possible need for a liver transplant. Dr. Humar’s report has been filed under seal. See
Doc. 239.
A July 1, 2010 Memorandum and Order issued by Judge Vanaskie granted
Plaintiff’s motion for entry of default against Dr. Mohadjerin as a sanction for failure to
provide complete discovery responses but acknowledged that “judgment in Chimenti’s
favor is not warranted at this time.”10 Doc. 293, p. 6. As of that same date, Chimenti’s
action was reassigned to the undersigned.
On October 20, 2010, counsel entered an appearance on behalf of Plaintiff. See
Doc. 314. Discovery has now closed. Secretary Horn and Dr. Mohadjerin have filed
separate motions seeking entry of summary judgment. See Docs. 319 & 322. Both
motions are ripe for consideration.
Discussion
Standard of Review
Summary judgment is proper if “the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material
fact and that the movant is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c);

10

Mohadjerin is no longer working at or associated with SCI-Huntingdon or any other
correctional facility in Pennsylvania. See Doc. 142, ¶ 12. The Defendant is also no longer
employed by Wexford. More importantly, Mohadjerin’s current whereabouts are unknown.
His counsel has previously indicated that it is believed that the doctor has left this country
and is living somewhere in the Middle East.
Counsel has further acknowledged that she has been unable to contact her client
since entering her appearance in June, 2005 despite various attempts, including the hiring
of three private investigators, to ascertain his current address, telephone number, etc. See
Doc. 295-2, ¶¶ 9-12.
5

See also Saldana v. Kmart Corp., 260 F.3d 228, 231-32 (3d Cir. 2001). A factual dispute is
“material” if it might affect the outcome of the suit under the applicable law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is “genuine” only if there is
a sufficient evidentiary basis that would allow a reasonable fact-finder to return a verdict for
the non-moving party. Id. at 248. The court must resolve all doubts as to the existence of
a genuine issue of material fact in favor of the non-moving party. Saldana, 260 F.3d at
232; see also Reeder v. Sybron Transition Corp., 142 F.R.D. 607, 609 (M.D. Pa. 1992).
Unsubstantiated arguments made in briefs are not considered evidence of asserted facts.
Versarge v. Township of Clinton, 984 F.2d 1359, 1370 (3d Cir. 1993).
Once the moving party has shown that there is an absence of evidence to support
the claims of the non-moving party, the non-moving party may not simply sit back and rest
on the allegations in its complaint. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).
Instead, it must “go beyond the pleadings and by [its] own affidavits, or by the depositions,
answers to interrogatories, and admissions on file, designate specific facts showing that
there is a genuine issue for trial.” Id. (internal quotations omitted); see also Saldana, 260
F.3d at 232 (citations omitted). Summary judgment should be granted where a party “fails
to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden at trial.” Celotex, 477 U.S. at
322-23. “‘Such affirmative evidence – regardless of whether it is direct or circumstantial –
must amount to more than a scintilla, but may amount to less (in the evaluation of the
court) than a preponderance.’” Saldana, 260 F.3d at 232 (quoting Williams v. Borough of
West Chester, 891 F.2d 458, 460-61 (3d Cir. 1989)).
The Eighth Amendment “requires prison officials to provide basic medical treatment
to those whom it has incarcerated.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)
(citing Estelle v. Gamble, 429 U.S. 97 (1976)). In order to establish an Eighth Amendment
medical claim, an inmate must allege acts or omissions by prison officials sufficiently
6

harmful to evidence deliberate indifference to a serious medical need. See Spruill v. Gillis,
372 F.3d 218, 235-36 (3d Cir. 2004); Natale v. Camden Cty. Correctional Facility, 318 F.3d
575, 582 (3d Cir. 2003). In the context of medical care, the relevant inquiry is whether the
defendant was: (1) deliberately indifferent (the subjective component) to (2) the plaintiff’s
serious medical needs (the objective component). Monmouth Cty. Corr. Inst. Inmates v.
Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987); West v. Keve, 571 F.2d 158, 161 (3d Cir.
1979).
A serious medical need is “one that has been diagnosed by a physician as requiring
treatment or one that is so obvious that a lay person would easily recognize the necessity
for a doctor’s attention.” Mines v. Levi, 2009 WL 839011 *7 (E.D. Pa. March 26,
2009)(quoting Colburn, 946 F.2d at 1023); Monmouth Cty. Corr. Inst. Inmates, 834 F.2d at
347. “[I]f unnecessary and wanton infliction of pain results as a consequence of denial or
delay in the provision of adequate medical care, the medical need is of the serious nature
contemplated by the Eighth Amendment.” Young v. Kazmerski, 266 Fed. Appx. 191, 193
(3d Cir. 2008)(quoting Monmouth Cty. Corr. Inst. Inmates, 834 F.2d at 347).
There is no argument by either of the Remaining Defendants that Plaintiff’s
Amended Complaint fails to satisfy the serious medical need requirement with respect to
the surviving deliberate indifference claims. This Court likewise agrees that based upon
the nature of Plaintiff’s allegations it cannot be concluded that he was not suffering from an
objectively serious medical need.
The proper analysis for deliberate indifference is whether a prison official “acted or
failed to act despite his knowledge of a substantial risk of serious harm.” Farmer v.
Brennan, 511 U.S. 825, 841 (1994). A complaint that a physician “has been negligent in
diagnosing or treating a medical condition does not state a valid claim of medical
mistreatment under the Eighth Amendment [as] medical malpractice does not become a

7

constitutional violation merely because the victim is a prisoner.”11 Estelle, 429 U.S. at 106.
When a prisoner has actually been provided with medical treatment, one cannot
always conclude that, if such treatment was inadequate, it was no more than mere
negligence. See Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir. 1993). It is true, however,
that if inadequate treatment results simply from an error in medical judgment, there is no
constitutional violation. See id. However, where a failure or delay in providing prescribed
treatment is deliberate and motivated by non-medical factors, a constitutional claim may be
presented. See id.; Ordonez v. Yost, 289 Fed. Appx. 553, 555 (3d Cir. 2008) (“deliberate
indifference is proven if necessary medical treatment is delayed for non-medical
reasons.”).

Secretary Horn
In its June 8, 2005 Opinion, the Third Circuit Court of Appeals stated as follows:
We conclude that the allegations that Horn knew about the Hepatitis C
problem in the prisons and the importance of the protocol negotiations
between the Department of Corrections (DOC) and Wexford, yet failed to
timely issue the protocol are not so improbable or conclusory as to fail to
state a claim. On remand, the record can be developed with respect to what
Horn knew about the prison system’s Hepatitis C problem, what role he
played in the negotiations, and the reasons for the delay.
Chimenti, 133 Fed. Appx. at 834.
Secretary Horn’s summary judgement motion seeks relief on the grounds that: (1)
Chimenti cannot establish that Horn was personally involved in the creation and issuance
of the Hepatitis C treatment protocol; (2) Plaintiff has not shown that there was a delay in
the DOC’s issuance of the Hepatitis C treatment protocol; and (3) even if there was a
delay, it cannot be established that the delay caused Plaintiff any specific or quantifiable
harm or damage. See Doc. 326, p. 9.
11

Simply put, “[a]llegations of negligent treatment are medical malpractice claims, and
do not trigger constitutional protections.” Whooten v. Bussanich, No. 07-1441, slip op. at 4
(3d Cir. Sept. 12, 2007)(citation omitted).
8

Personal Involvement
Horn notes that Plaintiff was diagnosed with Hepatitis C in 1992 and treated with
Interferon in 1997 and 1998. The Secretary adds in 1998 he delegated the responsibility
for formation of a Hepatitis Task Force to Doctor Fred Maue, the DOC’s Bureau of Health
Care Services’ Chief of Clinical Services.12 Furthermore, “given the monumental nature of
the project” which included negotiations with the three medical vendors who had contracted
to provide health care services to the Pennsylvania state inmate population formulation of
the protocol took longer then initially anticipated. Doc. 326, p. 2. Horn acknowledges that
when it became clear that additional issues had developed, DOC Deputy Administrator
John Shaffer, Ph.D was appointed as a liaison with the Task Force. See Doc. 326, p. 16.
As previously noted, the gist of the claim against Horn is that there was an
unwarranted eighteen (18) month delay for non-medical reasons, from March 18, 1998
(when the CDC issued the national protocol) to June 26, 2000, before Chimenti received
Rebetron therapy.13
Defendant Horn’s initial summary judgment argument asserts that since the
undisputed record establishes that he “had no personal involvement in the Taskforce [sic]
meetings or in the development of the protocol” and was not medically trained, he was not
personally involved in the alleged deliberate indifference and is entitled to entry of
summary judgment. Doc. 326, p. 15. The Secretary further contends that although the
DOC was “under his ultimate control” there is no evidence that he was aware of Chimenti’s

medical condition “and was certainly not in a position to argue or to impose medical or clinical

12

Plaintiff states that Defendant Maue was asked to form the Task Force in January
1999 and its first meeting was conducted on March 3, 1999.
13

It is also asserted that Horn agreed to a June 30, 2000 deadline for placing previously
identified Hepatitis C inmates into treatment. Plaintiff began treatment just prior to
expiration of the deadline.
9

conditions on the Taskforce [sic] or upon the three medical vendors” who were responsible for
inmate medical care. Id.
A plaintiff, in order to state an actionable civil rights claim, must plead two essential
elements: (1) that the conduct complained of was committed by a person acting under
color of law, and (2) that said conduct deprived the plaintiff of a right, privilege, or immunity
secured by the Constitution or laws of the United States. Groman v. Township of
Manalapan, 47 F.3d 628, 638 (3d Cir. 1995); Shaw by Strain v. Strackhouse, 920 F.2d
1135, 1141-42 (3d Cir. 1990).
Civil rights claims brought cannot be premised on a theory of respondeat superior.
Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Rather, each named defendant
must be shown, via the complaint's allegations, to have been personally involved in the
events or occurrences which underlie a claim. See Rizzo v. Goode, 423 U.S. 362 (1976);
Hampton v. Holmesburg Prison Officials, 546 F.2d 1077 (3d Cir. 1976). As explained in
Rode:
A defendant in a civil rights action must have personal involvement in
the alleged wrongs. . . . [P]ersonal involvement can be shown through
allegations of personal direction or of actual knowledge and
acquiescence. Allegations of participation or actual knowledge and
acquiescence, however, must be made with appropriate particularity.
Rode, 845 F.2d at 1207.
The Amended Complaint asserts that Horn “knew or should have known” of the
need to implement “a speedy medical protocol for appropriate Rebetron treatment.” Doc.
76. at ¶ 27. Despite that knowledge, Horn allegedly failed to take reasonable action.
Secretary Horn’s supporting brief admits that he “pushed and prodded the Taskforce
to complete the comprehensive protocol as promptly as possible.” Id. at p. 16. However,
because the work was greater than realized due to some cost issues for the medical
vendors, completion of the protocol took longer than the initially anticipated June 1999
10

implementation date. See id. It is also undisputed that Horn was provided with progress
reports concerning the work of the Task Force from Deputy Shaffer.
In the present case, there are clearly factual disputes as to the degree of Secretary
Horn’s involvement in the work of the Task Force. Regardless of those factual
discrepancies, it is nonetheless apparent that based upon Horn’s own acknowledgment
that he: initiated the idea of the Task Force; appointed Dr. Maue to lead the effort; pushed
and prodded the Task Force; appointed a member of his executive staff, Deputy Shaffer,
to act as his liaison with the Task Force and he received progress updates from his liaison,
Deputy Shaffer, and that the Secretary was involved in a Task Force dispute regarding
responsibility for the burden of medical costs and had ultimate oversight over the DOC’s
Task Force related actions and determinations. There also facts presented which could
support a finding that Horn acquiesced or approved a June 30, 2000 deadline for
placement of prisoners like Chimenti into Rebetron treatment.14 Based on the above
factors, there are sufficient facts alleged to show that Defendant Horn had personal
involvement in the activities of the Task Force to satisfy the requirements of Rode. The
initial argument for summary judgment will be denied.
Treatment Delay
Secretary Horn’s second argument is that “Chimenti cannot establish that there was
in fact any actionable delay” with respect to the issuance of the Hepatitis C protocol. Doc.
326, p. 2. Moreover, even if there was any delay it was not attributable to Horn. The
Defendant adds that Chimenti was already was receiving Interferon treatment prior to the
1999 formation of the Task Force which was charged with a monumental task.
Chimenti counters that there is a question of fact as to whether the protocol’s

Plaintiff’s admission into the Rebetron treatment program occurred shortly before
expiration of said deadline.
14

11

prolonged development which resulted from implementation costs prevented him from
receiving timely Rebetron treatment. See Doc. 334, p. 13. It is undisputed that the Task
Force experienced delays, some which were associated with concerns about the financial
costs associated with implementation of the Hepatitis treatment protocol.
As previously discussed, there is no dispute that Plaintiff’s condition satisfies the
serious medical need (objective component) of the two pronged deliberate indifference
analysis. With respect to the subjective deliberate indifference component. It is equally
established that Secretary Horn is a non-medical defendant who was not directly involved
in Chimenti’s medical treatment. As such, it would be appropriate for said Defendant to
rely on the determinations made by the medical providers treating the prisoner. Likewise,
the parties agree that Plaintiff was being treated for Hepatitis prior to the FDA and CDC
approval of Rebetron treatment.
However, there are material facts in dispute as to two significant matters. First,
whether the delay in the protocol negotiations were caused by a non-medical factor,
specifically, financial disputes between the DOC and contracted medical vendors regarding
payments of the costs associated with Rebetron. Plaintiff contends that because the DOC
flipped flopped in its position regarding financial responsibility over payment of the costs
related to hepatitis treatment, the progress of the Task Force in developing and
implementing a protocol was delayed. Second, is the issue as to whether the eighteen (18)
month delay in Chimenti’s Rebetron treatment resulted at all or in part from the protracted
approval of the protocol. If a jury were to accept Plaintiff’s version of the facts related to
those two issues, it is conceivable that Secretary Horn, although not directly involved in
Plaintiff’s medical care, was nonetheless deliberately indifferent to his serious medical
need by engaging in conduct which delayed implementation of the Hepatitis protocol for
non-medical reasons. Accordingly, since there are material facts in dispute regarding the
concerns expressed by the Court of Appeals, entry of summary judgment is not
12

appropriate.
Lack Of Harm
Chimenti’s Amended Complaint requests an award of compensatory and punitive
damages as well as declaratory and injunctive relief. See Doc. 76, p. 11. Plaintiff indicates
that he has suffered physical harm, specifically progression of his Hepatitis, including liver
deterioration. He further maintains that he has suffered emotional distress due to his
personal concerns regarding the alleged delays in his treatment.
Horn’s final argument notes that three out of four medical experts involved in this
matter have expressed the opinion that the 18 month delay at the core of this dispute “is
casually linked to any damages alleged by Chimenti.” Doc. 326, p. 20. The Defendant
adds that only Plaintiff’s expert, Doctor Bennett Cecil has attempted to “bridge the gap of
total speculation on this issue.” Id. Moreover, since Chimenti did not respond favorably to
either the Interferon treatment or the six month course of Rebetron treatment, he cannot
satisfy his burden of showing that he suffered any specific or quantitative harm as a result
of the 18 month delay in the approval of the DOC’s Rebetron protocol.
Plaintiff counters that Hepatitis C is a progressive disease which causes liver
damage, and in some instances death. Chimenti adds that Rebetron was recommended in
his case as early as May, 1998. Due to Hepatitis’ progressive nature, the timing of
treatment is important and there is a higher success rate when treatment is initiated at an
early stage. The Plaintiff’s opposing brief next asserts while the protocol negotiations were
ongoing, his disease progressed from Stage 3 fibrosis to Stage 4 cirrhosis/fibrosis. See
Doc. 334, p. 7. As a result of that increase, Plaintiff’s chances to be successfully treated
decreased and he is now untreatable.
In light of the differing opinions offered by the parties’ respective expert witnesses, it
is apparent that there is a factual dispute as to whether Plaintiff suffered any compensable

13

harm.15 Accordingly, the request for entry of summary judgment will be denied.
Doctor Mohadjerin
After concluding that the allegation that Dr. Mohadjerin took Chimenti off Interferon
did not set forth a viable deliberate indifference claim, the Court of Appeals added that with
respect to the remaining claims of deliberate indifference against Mohadjerin, “the record
has not been developed with respect to what ability or responsibility Dr. Mohadjerin had to
prescribe Rebetron before a protocol was approved.” Doc. 74- 2, p. 6.
It is undisputed that SCI-Huntingdon Medical Director Doctor Mohadjerin
discontinued Plaintiff’s Interferon treatment on March 18, 1998 on the basis that Chimenti
was not fully responding to the treatment. According to the Amended Complaint,
Mohadjerin purportedly made a determination that no further treatment would be provided
until the FDA approved the use Rebetron, a new aggressive form of care.
Chimenti contends that Doctor Mohadjerin was deliberately indifferent to Plaintiff’s

medical needs by not pursuing or seeking approval of Rebetron treatment either after the
FDA issued its approval or after the CDC approved the national protocol.16
As previously discussed, the DOC and Wexford did not reach an agreement on the
protocol for providing Rebetron treatment to Pennsylvania state inmates until January,
2000. Despite that development, Chimenti still did not start receiving Rebetron therapy

15

Plaintiff correctly notes that the admissibility of Dr. Cecil’s opinion has not been
challenged via a Daubert motion. See Doc. 334, p. 25. In Daubert v. Merrell Dow
Pharms, Inc., 509 U.S. 579, 589 (1993) the United States Supreme Court held that a trial
judge must determine at the onset whether proposed expert testimony is reliable and
relevant. The Court noted that an expert’s opinion must be based on accepted scientific
methods and procedures. In addition, Daubert set forth various factors which should be
considered by courts when assessing the reliability of scientific expert testimony.
16

Mohadjerin asserts that the FDA’s approval did not extend to individuals such as
Chimenti who had previously been treated with Interferon. However there are facts in
dispute as to whether Plaintiff’s Interferon treatment had been partially successful.
14

until June 26, 2000.
By Memorandum and Order dated July 1, 2010, Judge Vanaskie of this Court
granted Plaintiff’s motion requesting entry of default as a sanction against Doctor
Mohadjerin for said Defendant’s failure to provide complete discovery responses.17 Doc.
293. However, the July 1, 2010 Memorandum and Order additionally observed that despite
the entry of default, “judgment in Chimenti”s favor is not warranted at this time” because
“Chimenti retains the burden of proving causation and damages” and “proving that an
award of injunctive relief against Mohadjerin is appropriate.” Id. at p. 6.
This Court agrees with Mohadjerin’s observation that this whole case is premised
upon Plaintiff’s claim that he was harmed due to failure to being provided with Rebetron
treatment in a timely manner. Doctor Mohadjerin also correctly notes that it is alleged that
he was deliberately indifferent to Plaintiff’s medical needs by not pursuing or seeking
approval of Rebetron treatment between March 18, 1998 and June 25, 2000. See Doc.
320, p. 8.
Doctor Mohadjerin has filed a motion claiming entitlement to entry of summary
judgment asserting that Plaintiff “remains unable to demonstrate any factual or legal basis
for his claim of deliberate indifference.” Id. at p. 4. His pending motion seeks relief on the
grounds that: (1) there is no evidence that the doctor was responsible for, caused, or
contributed to any delay in Chimenti’s treatment as a result of the Rebetron protocol; and
(2) Plaintiff cannot establish that he was harmed as a result of the time period which

17

It is undisputed that Dr. Mohadjerin is no longer working at or associated with SCIHuntingdon or any other correctional facility in Pennsylvania. See Doc. 142, ¶ 12. The
Defendant is also no longer employed by Wexford. More importantly, Mohadjerin’s current
whereabouts are unknown.
His counsel has indicated to this Court that it is believed that the doctor has left this
country and is living somewhere in the Middle East. Counsel has further acknowledged
that she has been unable to contact her client for a lengthy period of time despite various
attempts, including the hiring of a private investigator.
15

passed between approval of the protocol and the initiation of his Rebetron treatment. See
Doc. 320, p. 2.
Protocol
Mohadjerin initially asserts that he cannot be held liable for any harm caused by
delay in the development of a protocol by the DOC and Wexford because he “had
absolutely no involvement” in that process.18 Doc. 320, p. 15. As noted by the Court of
Appeals, “the record has not been developed with respect to what ability or responsibility
Dr. Mohadjerin had to prescribe Rebetron before a protocol was approved.” Doc. 74- 2, p.
6 (emphasis added).
The claims against Mohadjerin are twofold. First, Plaintiff raises a pre-protocol claim
that Dr. Mohadjerin was deliberately indifferent for not following through on Doctor
Gaugler’s recommendations of May 1998 and January 1999 that Plaintiff receive Rebetron
post FDA approval. In support of this claim Plaintiff cites to deposition testimony by Task
Force member, Doctor Maue that “Defendant Mohadjerin did have the authority to
prescribe Rebetron during the protocol’s development.” Doc. 329, p. 11. Also cited by
Chimenti is a May 25, 1999 letter from John Shaffer to Wexford. See id.
The second post-protocol claim is that Mohadjerin was deliberately indifferent for not
authorizing Rebetron treatment for Plaintiff until six (6) months after approval of the
DOC/Wexford protocol and with the knowledge that said treatment had been already
recommended by Doctor Gaugler.
Although Mohadjerin did not participate on the Task Force which formulated the
DOC/Wexford protocol, that fact does not by itself entitle him to entry of summary
judgment. The two allegations described above remain viable. See Lee v. Sewell, 159 Fed.

18

Mohadjerin likewise indicates that Plaintiff has satisfied the serious medical need
requirement.
16

Appx. 419, 421 (3d Cir. 2005)( prisoner’s claim of being denied Hepatitis C medication for
six months sets forth a viable claim of deliberate indifference) . It is additionally noted that
has been evidence presented, specifically a letter to the DOC medical vendors from Dr.
Maue dated January 15, 1999 which could support a claim that Doctor Mohadjerin could
have initiated Rebetron treatment for Plaintiff post-FDA approval but prior to the completion
of the DOC/Wexford protocol by submitting a request pursuant to the Wexford utilization
review process. See Doc. 326-2 Section II, Exhibit A (indicating that Hepatitis C treatment
could be provided during the ongoing Task Force negotiations via medical vendors’
utilization review process).
Dr Maue has also submitted a declaration stating that regardless of the progress or
lack thereof being made on the protocol by the Task Force, the medical vendors were still
obligated to treat already identifies Hepatitis infected inmates under the provisions of their
existing contract and utilization review process. See id. at Section IV, ¶ 38. A letter which
was similar in substance was issued by Shaffer. See id. at Section V, Exhibit 2.
Maue further indicates that Chimenti was technically not subject to the screening
provisions of the protocol because he was already undergoing Hepatitis treatment. See id.
at ¶ 49. Based upon those factual considerations, there are clearly issues of material fact
which undermine Mohadjerin’s argument of entitlement to entry of summary judgment.
However, this Court does agree that any attempt by Plaintiff to establish liability against
Mohadjerin solely based upon the delay in the formulation of the DOC/Wexford protocol is
baseless.
Harm
Mohadjerin’s second summary judgment argument asserts that the Defendant is
entitled to entry of summary judgment because Chimenti has not established that he
sustained any harm as a result in the delay in receiving Rebetron treatment.

17

As discussed earlier, this Court has already addressed and denied herein a similar
argument which was raised by Defendant Horn’s summary judgment motion. Specifically,
this Court has concluded that the expert medical opinions submitted by the parties have
created a material factual dispute as to the issue of whether Plaintiff suffered any harm as
a result of the delayed Rebetron treatment. Based upon that same rationale, Defendant
Mohadjerin’s similar summary judgment argument is not compelling.19
In conclusion, Defendant Mohadjerin’s summary judgment motion will be granted
solely with respect to any attempt by Plaintiff to establish liability against Doctor Mohadjerin
solely based upon the delay in the formulation of the DOC/Wexford protocol. A pre-trial
conference will be scheduled in this matter. An appropriate order will enter.

/s/ A. Richard Caputo
A. RICHARD CAPUTO
United States District Judge

DATED: September 19, 2011

19

It is further noted that Doctor Mohadjerin himself acknowledges that Plaintiff may “be
able to establish an extremely modest chance that earlier treatment with Rebetron could
have been effective.” Doc. 320, pp. 23-24.
18

UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
SALVATORE CHIMENTI
Plaintiff,
v.
ROGER KIMBER, et al.,
Defendants

:
:
:
:
: CIVIL NO. 3:CV-01-0273
:
: (Judge Caputo)
:
:
ORDER

AND NOW, THIS 19th DAY OF SEPTEMBER, 2011, in accordance with the
accompanying Memorandum, IT IS HEREBY ORDERED THAT:

1.

Defendant Martin Horn’s motion for summary judgment (Doc. 322) is
DENIED.

2.

Defendant Farrokh Mohadjerin, M.D.’s motion for summary judgment
(Doc. 319) is GRANTED IN PART.

3.

Summary judgment is granted in favor of Defendant Mohadjerin solely
to the extent that Plaintiff may be attempting to establish liability
against Doctor Mohadjerin based upon the delay in the formulation of
the DOC/ Wexford protocol. The motion is denied in all other
respects.

4.

A pre-trial conference will be scheduled in this matter.
/s/ A. Richard Caputo
A. RICHARD CAPUTO
United States District Judge
19