Abu-Jamal v. Wetzel et al

Filing 23

MEMORANDUM OPINION - For the reasons stated above, the Court will grant Plaintiff's motion for a preliminary injunction. A separate Order follows.Signed by Honorable Robert D. Mariani on 1/3/17. (jfg)

THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

MUMIA ABU·JAMAL,

Plaintiff,

v.

3:16·CV·2000
(JUDGE MARIANI)

JOHN WETZEL, et aI.,
Defendants.
MEMORANDUM OPINION
I. INTRODUCTION &PROCEDURAL HISTORY

Presently before the Court is Plaintiff's Motion for a Preliminary Injunction, (Doc. 7),
filed October 10, 2016. Plaintiff, a state prisoner, seeks this injunction to require
Defendants to immediately treat his active hepatitis C infection with direct-acting antiviral
drugs. (Doc. 7). This is not Plaintiff's 'first attempt at such relief. On August 31,2016, this
Court, in a related case, denied Plaintiff's request for a preliminary injunction seeking the
same relief. Abu-Jamal v. Kerestes, 2016 WL 4574646 (M.D. Pa 2016).1 Thus, to fully
understand the posture in which the present case comes before this Court, a brief history of
both cases is necessary.
Plaintiff, Mumia Abu-Jamal, filed a complaint in Abu-Jamal 1on May 18, 2015,
"claiming violations of the right to association and access to the courts." Abu-Jamal v.

Kerestes, 2016 WL 4574646, at *1. On August 24, 2015, Plaintiff filed a motion for a
1 For clarity, this Court will refer to the Court's former decision as Abu-Jama/ v. Kerestes, while
referring to that case's docket as a whole as "Abu-Jama/1."

preliminary injunction seeking to compel Defendants-various medical staff involved in the

treatment of his medical conditions and several Pennsylvania Department of Correction
("DOC") staff-to provide him with "immediate treatment of his hepatitis Cwith recently
developed direct-acting antiviral ("OM") medication." Id. This Court held a three day
evidentiary hearing on the matter in December of 2015. Id.
In an Opinion issued on August 31,2016, this Court found that the "DOC has an
interim protocol to address patients with hepatitis C" and that. under that protocol, a
"Hepatitis CTreatment Committee has the ultimate authority to decide whether" an inmate
is treated with DDA medications. Id. at *5, *8. This Court went on to conclude that "[t]he
protocol as currently adopted and implemented presents deliberate indifference to the
known risks which follow from untreated chronic hepatitis C." Id. at *9. This Court,
however, did not issue a preliminary injunction because "[i]t was the Hepatitis CTreatment
Committee who made the decision not to give Plaintiff OM medications and that had, and
continues to have, the ultimate authority to determine whether or not Plaintiff will receive the

OM medications," and "[t]he named Defendants [were] not members of the Hepatitis C
Treatment Review Committee. "2 Id. Thus, this Court concluded that it could not "properly

2 Two weeks prior to the issuance of the Court's Opinion, Plaintiff moved for leave to file a third
amended complaint. The third amended complaint would name one member of the Hepatitis CTreatment
Review Committee. Dr. Paul Noel, as a defendant. The Court has not yet ruled on this motion.

2

issue an injunction against the named Defendants, as the record contain(ed] no evidence

that they hard] authority to alter the interim protocol or its application to Plaintiff."3 Id. at *10.
On September 30,2016, Plaintiff filed the Complaint in this action alleging a single
count titled "Deprivation of Eighth Amendment Right to Medical Care for Hepatitis C" and
naming the following as defendants: John Wetzel, Secretary of Pennsylvania Department of
Corrections; Dr. Paul Noel, DOC Bureau of Health Care Services Chief of Clinical Services,
member of Hepatitis CTreatment Committee; Bureau of Health Care Services Assistant
Medical Director, member of Hepatitis CTreatment Committee; Bureau of Health Care
Services Infection Control Coordinator, member of Hepatitis CTreatment Committee;
Correct Care Solutions representative on the Hepatitis CTreatment Committee; Correct
Care Solutions; Joseph Silva, DOC Director of Bureau of Health Care Services; and
Treating PhYSician SCI Mahanoy. (Id.). On October 5,2016, Plaintiff filed a Motion for a
Preliminary Injunction seeking the relief this Court denied in Abu-Jamal v. Kerestes. (Doc.
7). In support thereof, Plaintiff attached the transcripts from the evidentiary hearing held in
Abu-Jamal 1. During a conference call held on December 1,2016, all parties agreed that a

new evidentiary hearing was not necessary and that this Court could decide the present

3 Plaintiff has

filed a Motion for Reconsideration of the Order stemming from the Abu-Jamal v.
Kerestes Opinion. The Court has yet to rule on that motion.

3

motion on the basis of the exhibits filed. 4 The issue has been fully briefed and is now ripe
for decision. For the reasons set forth below, the Court will grant Plaintiffs Motion.

II. FINDINGS OF FACTS
Because the Court is relying on the testimony that was given in Abu-Jamal 1, the
Court adopts the following findings of facts from Abu·Jamal v. Kerestes:
Hepatitis C and Treatment Thereof
1.
The DOC Defendants' expert witness Dr. Jay Cowan is
licensed to practice medicine in Pennsylvania, New York, and New Jersey
and is double board-certified in internal medicine and gastroenterology and
hepatology. (Cowan Test., Dec. 22, 2015, Doc. 95 at 196:9-13, 197:10-11).
He has been the Medical Director of the Rikers Island correctional facility
since 2011. (Id. at 198:1A). Dr. Cowan has treated patients with hepatitis Cin
his capacity as the Chief of Gastroenterology at North General Hospital in
Harlem, New York City, in private practice in Harlem, through his work in
Harlem Hospital's Division of Gastroenterology, and in his work at Rikers
Island. (Id. at 197:20·198:11).
2.
Chronic hepatitis C is a serious disease that is a major public
health issue in the United States and worldwide. (Cowan Test., Dec. 23,
2015, Doc. 96 at 20:17·22). It is the number one reason for liver transplants in
the United States at present, as well as the number one cause of liver cancer
in the United States. (Id. at 21 :22-22:2).
3.
Hepatitis C is contagious and transmitted primarily by blood.
(Cowan Test., Dec. 23, 2015 at 22:3-5).
4.
Dr. Cowan testified that of those individuals infected with
Hepatitis C, 75 percent to 85 percent will develop chronic hepatitis, which is
inflammation of the liver. Of those who develop chronic hepatitis, 20 percent
See Prof'l Plan Exam'rs of N.J. v. Lefante, 750 F.2d 282,288 (3d Cir. 1984) (liAs a general
principle, the entry or continuation of an injunction requires a hearing. Only when the facts are not in
dispute, or when the adverse party has waived its right to a hearing, can that significant procedural step be
eliminated.") (internal citations omitted).
4

4

to 30 percent will go on to develop cirrhosis over the next 10 to 20 years. Of
the individuals who develop cirrhosis, two percent to seven percent will
develop hepatocellular carcinoma. (Cowan Test., Dec. 22, 2015 at 199:16­
25). During cross examination, Dr. Cowan also testified that of those exposed
to hepatitis C, between 50 percent and 85 percent will develop chronic
hepatitis. (Cowan Test., Dec. 23, 2015 at 21:7-8).
5.
Cirrhosis represents a late stage of progressive hepatic fibrosis,
characterized by distortion in the liver architecture and the formation of
regenerative nodules that no longer allow the liver to function properly.
(Cowan Test., Dec. 22, 2015 at 201 :21-202:1).
6.
Individuals with cirrhosis often experience a decrease in the
number of platelets circulating in their blood. Cirrhosis may have an impact on
both platelet production and platelet survival. (ld. at 204: 18-205:1).
7.
Individuals with cirrhosis are at an increased risk for ascites,
which is an accumulation of peritoneal 11uid in the abdominal cavity, for portal
hypertension, for hepatic encephalopathy, which is mental confusion
associated with the increased toxic burden that the liver cannot filter out, and
for the occurrence of jaundice and/or rising bilirubin levels in the bloodstream.
These are markers of decompensated cirrhosis. (ld. at 207:23-208:14).
8.
Metavir scores indicate the level of fibrosis in the liver on a fivepoint scale from FO to F4. F2 and F3 mark the progression of fibrosis from
less severe to more severe, with F4 marking cirrhosis. (Id. at 202:9-13).
9.
Dr. Cowan testified that very often, medical professionals
cannot predict the rate of progression of fibrosis. (Id. at 208:15-20).
10. Correct Care Solutions C'CCS") is the contracted health
provider for the DOC. (Cowan Test, Dec. 23, 2015 at 4:14-16).
11.
Dr. Cowan is a paid consultant with the Correct Care Solutions
Hepatitis C Review Committee at DOC. (Id. at 4:8-13). Dr. Cowan also
testified that he "serve[s] on the Correct Care Solutions Hepatitis C Review
Committee." (Id. at 67:16-17).
12. Dr. Cowan testified that there is "not very good concordance
between physical symptoms [of hepatitis C] that a patient may experience
5

and their degree of fibrosis or cirrhosis," such that one cannot say at what
level of fibrosis or cirrhosis a person will begin to experience physical
symptoms related to hepatitis C. (Cowan Test., Dec. 22, 2015 at 207:11-17).

13.

The landscape of treatments for hepatitis C is evolving very

rapidly. (Id. at 201 :8-9).

14.

Sovaldi and Harvoni are DM medications for the treatment of
hepatitis C. Sovaldi was first approved by the Food and Drug Administration
in December 2013. Harvoni was first approved in October 2014. (ld. at 201:1­
6). These drugs have "relative low-risk side effects" and "high success rates
of 90 percent plus." (ld. at 213:24-214:2).

15. Dr. Cowan agreed that, on average, "with the new drug, there's
a 90 to 95 percent chance that the treatment will be successful." (Cowan
Test, Dec. 23, 2015 at 28:5-7; see also Noel Test, Dec. 23. 2015, at 129:10­
13 (agreeing that if Plaintiff were treated with direct-acting antivirals, there is a
90 to 95 chance he would be cured of Hepatitis C)).
16.

'The goal of Hepatitis C anti-viral treatment is to achieve a
sustained virological response (SVR), defined as undetectable HCV virus in
the blood." (Pa. Dep't of Cor., Interim Hepatitis C Protocol, PI.'s Ex. 30 at ~
(A)(1)).

17.

"Achieving an SVR may significantly decrease the risk of
disease progression and the development of decompensated cirrhosis, liver
cancer, liver failure, and death." (Id.). Dr. Cowan agreed with the statement
that patients cured of HCV infection experience numerous benefits, including
a decrease in liver inflammation and a reduction in liver fibrosis. (Cowan
Test., Dec. 23. 2015 at 25:19-25). He also agreed with the statement that
delay in treatment decreases the benefit of SVR. (Jd. at 26:4-7). Dr. Cowan
further agreed that successful treatment of hepatitis C has been shown to
reduce, if not eliminate, fatigue in patients with chronic hepatitis C. (Id. at

28:1-4).
18.

The October 2015 guidelines from the American Association for
the Study of Liver Diseases ("MSLD") and Infectious Diseases SOciety of
America ("IDSA") entitled "When and in Whom to Initiate HCV Therapy"
"recommend treatment [using DM therapies] for all patients with chronic
HCV ["hepatitis C virus"] infection, except those with short life expectancies
6

that cannot be remediated by treating HCV, by transplantation, or by other
directed therapy." (Am. Ass'n for the Study of Liver Diseases & Infectious
Diseases Soc'y of Am., When and in Whom to Initiate HCV Therapy, PI.'s Ex.
18 at 1; see also Cowan Test., Dec. 23, 2015 at 24:9-14).
19. The Centers for Disease Control ("CDC") states that the
standard of care in hepatitis Ctreatment in the United States is treatment with
direct-acting antiviral agents such as Harvoni and Viekira Pak. (Ctr. for
Disease Control, Surveillance for Viral Hepatitis - United States, 2013, PI.'s
Ex. 17 at 5-6). The CDC refers providers caring for hepatitis C-infected
patients to the AASLD/I DSA guidance for continuously updated information
regarding hepatitis Ctreatment. (/d. at 6).
20.
Dr. Cowan agreed that the CDC points to the AASLD/IDSA
guidelines as the standard of care for the treatment of Hepatitis C. (Cowan
Test., Dec. 23, 2015 at 33:15-34:9).
21.
Dr. Cowan testified that he agreed that the same standard of
care as to hepatitis C treatment that is applicable to the community at large
should apply in a correctional setting. (Id. at 32:17-20).
22.
Dr. Cowan testified that "[a]t the current time, given the backlog
of patients that have this disease, it is [his] recommendation ... that the
sickest patients be treated first. Those are the patients with fibrosis scores of
3 and 4." (ld. at 66:19-22).
23.
Dr. Cowan testified "[i]f [a] patient had Chronic Hepatitis C, in
private practice, [he] would engage in a conversation with the patient's
insurance company and recommend the current AASLD Guidelines" and that,
if the patient could pay for it, he would recommend treatment. (ld. at 68:7-18).
24.
Dr. Cowan testified that "[t]here is a fiscal component involved"
in the determination of who should and should not receive treatment with DAA
medications for hepatitis C. (Id. at 82:18-25).
25.
Dr. Paul Noel is the Chief of Clinical Services for DOC, a
position which he has held since 2014. (Noel Test, Dec. 23, 2015, Doc. 96 at
90:3-7). Dr. Noel has worked in correctional health care in Pennsylvania since
1994. (ld. at 90:12-23).
7

26.
Dr. Noel testified that in his role as DOC's Chief of Clinical
Services he is "involved with oversight of the medical contract ... [he is] the
point of contact to make sure that the clinical services are appropriate,
according to contract, and policies and procedures performed by the medical
contractor. [He] deal[s] more directly with [the medical contractor's]
corresponding State Medical Director on issues of quality improvement
policies and procedures, things like that." (ld. at 91:15-25).
27.
Dr. Noel agreed that the most recent AASLD Guidelines on the
treatment of hepatitis C recommend treatment for everyone. (ld. at 130:16­
23).

28.

Dr. Noel testified that, with respect to the AASLD Guidelines,

We review them, we take them into consideration, they're part
of the big picture, they're not the single bullet that has
everything right, it's a much more complicated - it would be
nice if we could go to one document and everybody follow it
and everything would be wonderful, it just doesn't work that
way. So the AASLD has a large voice at the table, if that's your
question. We don't necessarily do just what the AASLD says.
(Id. at 131:13).

29.
Dr. Noel testified that in or about December 2013, DOC ceased
administration of then-current medications because "the AASLD made
specific recommendations to cease those current medications that we were
using. And that's why they were no longer used, so it's not like we had the
option to keep doing it." (Id. at 133:9-134:1).
DOC's Interim Hepatitis C Protocol
30.
Dr. Noel testified that DOC has an interim protocol to address
patients with hepatitis C. (Noel Test., Dec. 23,2015 at 99:15-22).
31. The interim protocol was issued on November 13, 2015 and
effective November 20, 2015. (PI.'s Ex. 30).
32.
Dr. Noel testified that the interim protocol "was formulated to
address those patients with Hepatitis Cwho are in the most need of treatment
8

right away." (Noel Test., Dec. 23, 2015 at 99:24-25). He testified that the
policy is "interim" in the sense that it will be adjusted as DOC treats current
patients and as science and hepatitis C treatment guidelines in the
community and within the prison system evolve. (Id. at 99:23-100:9).
33.
Dr. Noel testified that the interim protocol replaced a prior
hepatitis C protocol, which "was a protocol for medications that are no longer
used." (Id. at 100:14-25).
34.
Dr. Noel was involved in developing the interim protocol and
had assisted in developing the previous protocol. (Id. at 101:7-13). He also
testified that he helped draft the interim protocol. (ld. at 126:8-14).
35.
The DOC's interim hepatitis C protocol is a "prioritization
protocol," which Dr. Noel testified is designed "to identify those with the most
serious liver disease and to treat them first, and then, as they're treated,
move down the list to the lower priorities, from high priority to lower priority."
(/d. at 102:17-103:1; see also PI.'s Ex. 30 at 2 ('The purpose of this Hepatitis
C Protocol is to prioritize candidates for anti-viral treatment.")).
36.
Dr. Noel testified that the protocol does not preclude hepatitis C
treatment from any inmate who has hepatitis C. (Noel. Test., Dec. 23, 2015 at
103:3-7).
37.
The protocol defines patients with chronic hepatitis C as those
with a documented detectable viral load and includes under this label "all
patients on the continuum from no fibrosis -> fibrosis -> compensated
cirrhosis -> decompensated cirrhosis." (PI.'s Ex. 30 at 2).
38.
Patients with "Chronic Hepatitis C (Compensated)" are defined
by the protocol as those having the presence of "(1) a previous liver biopsy
with fibrosis Metavir stage 4 or Ishak stage 6; (2) a Platelet Count of <
100,000/mcl; (3) a Hepatitis C Antiviral long-term Treatment Against
Cirrhosis (HALT-C) probability of >60%; and/or (4) no evidence of jaundice,
ascites, bleeding esophageal varices, or hepatic encephalopathy." (PI.'s Ex.
30 at 2).
39.
Patients with "Chronic Hepatitis C (Decompensated)" are
defined by the protocol as those that display "evidence of jaundice, ascites,
bleeding esophageal varices, or hepatic encephalopathy." (PI.'s Ex. 30 at 3).
9

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40. According to the protocol, all patients with chronic hepatitis C
will be entered into the Liver Disease Chronic Care Clinic and given a
diagnosis of "no cirrhosis," "compensated cirrhosis," or "decompensated
cirrhosis.1I (PI.'s Ex. 30 at 3). Patients with "no cirrhosis" will be seen for a
follow-up Clinic appointment every twelve months, patients with
"compensated cirrhosis" will be seen for a follow-up every six months, and
patients with "decompensated cirrhosis" will be seen for a follow-up every
month. (Id. at 4).
41.
Dr. Noel testified that inmates with chronic hepatitis C will be
"put into the Chronic Care Clinic," which he defined as "a tracking system to
ensure that they are seen on a regular basis." According to Dr. Noel's
testimony, U[t]he vast majority of them will live in general population and just
be followed by one of [the] providers on-site, along with an Infectious Control
Nurse ...." (Noel Test., Dec. 23,2015, at 104:16-21).
42.
According to Dr. Noel, "[i]f a patient is absolutely 100 percent
asymptomatic, ... they're seen at least once a year." (Id. at 106:1-5). Dr.
Noel testified that "[o]nce they start[ ] developing advanced fibrosis or
cirrhosis ... it goes to every six months .... And if they're really sick, where
they have decompensated cirrhosis and in end stage liver disease, they're
seen every month." (Id. at 106:7-11). According to Dr. Noel, "[c]linicians can
see [patients in the Chronic Care Clinic] more often, as they see fit." (Id. at
106:12-14).
43. According to the interim protocol, "it is most important to identify
patients with advanced compensated cirrhosis and early decompensated
cirrhosis . . . as the highest priority for anti-viral treatment" because "patients
with decompensated cirrhosis are at high risk in drug therapy and their
treatment options may be limited to liver transplantation." (PI.'s Ex. 30 at 5, ~
3).
44. According to the interim protocol, U[t]he population most in need
of evaluation will be defined as those with platelet counts below 100,OOO/mcL
and those with HALT-C predicted likelihood of cirrhosis above 60%" and
"[t]hese patients will be individually evaluated for prioritization in ascending
order of platelet count ...." (PI.'s Ex. 30 at 5, ~ 5).

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45.
The interim protocol states that a patient with either a platelet
count below 100,OOO/mcL or a HALT~C probability of cirrhosis> 60 percent
will have an initial review of his or her medical charts only at his or her home
site. (Id. at 6, 1f 6). If no medical or administrative exclusionary indications to
anti-viral treatment are found at the home site, the correctional Health Care
Administrator of the home site will forward a Hepatitis C Treatment Referral
Form to the Bureau of Health Care Services Infection Control Coordinator for
further evaluation, possible recommendations for further testing, and final
determination. (PI.'s Ex. 30 at 6, 1f 8).
46.
Dr. Noel testified that if inmates have "a platelet count less of a
hundred thousand or a HALT-C score of greater than 60 percent, they would
be idenUFIed as someone who needs further evaluation" and would then be
referred to the Central Office's Hepatitis C Review Committee. (Noel Test.,
Dec. 23,2015, at 104:23-105:4).
47.
According to the interim protocol, the Hepatitis C Treatment
Committee consists of at least four people: Dr. Noel, as the DOC's Bureau of
Health Care Services Chief of Clinical Services; the Bureau of Health Care
Services Assistant Medical Director; the Statewide Medical Director for
Correct Care Solutions; and the Bureau of Health Care Services Infection
Control Coordinator. (PI.'s Ex. 30 at 7, 1f 1). Dr. Noel testified that the
Committee consists of himself, as "the Chief of Clinical Services, the
representative from the medical contractor CSS, Infectious Control nurse, the
Assistant Medical Director for the DOC, and anyone {the Committee] might
invite to participate in any di'fficult cases." (Noel Test., Dec. 23, 2015 at
129:22-130:1).
48.
The individual's clinical status will be reviewed by the Hepatitis
C Treatment Committee for prioritization for treatment with DM medications.
(PI.'s Ex. 30 at 7, 1f 1). According to Dr. Noel's testimony, the Review
Committee would then "sit down and manually go through the patient's chart
with some information provided by the site, possibly, a phone conference with
the Site Medical Director" and a "determination then would be made if there
was some further testing or further evaluation that needed to be done." (Noel
Test., Dec. 23, 2015 at 105:5-11).
49.
According to the protocol, if upon review the Committee
determines the patient is a candidate for treatment with DM medication, an
esophageal gastroendoscopy ("EGD") will be approved to evaluate the patient
11

for esophageal varices. (PI.'s Ex. 30 at 7, ~ 2). According to Dr. Noel, under
the current protocol, the Review Committee makes "a decision of whether or
not to refer and schedule a patient for ... an EGO," and, if so referred, the
inmate would be sent off site to "have an EGO performed to determine
whether or not they have esophageal varices." (Noel Test., Dec. 23, 2015, at
105:12-17).
50. According to the protocol, if the endoscopy documents the
presence of esophageal varices, the patient will be approved for referral to a
supervising physician - that is, a physician licensed in Pennsylvania and
experienced in the treatment of Hepatitis C utilizing the most current
medications who will treat the patient via telemedicine. (PI.'s Ex. 30 at 7, ~~ 3,
5). Dr. Noel testified that U[e]sophageal varices are a direct indication of portal
hypertenSion and correlates with those [patients] with the most severe
disease that need treatment immediately, [and] those with esophageal varices
would then be referred for treatment." (Noel Test., Dec. 23, 2015, at 105:18­
21).
51. According to the protocol, if the EGO results show no
esophageal varices, the case will be returned to the home site for regular
follow-up in the Chronic Care Clinic with a recommendation for repeat EGO in
two to three years. (PI.'s Ex. 30 at 7, ~ 3).
52. Dr. Noel testified that "when you have esophageal varices, there's
a certain pressure in the portal hypertension, and that pressure then
correlates into the severity of the disease". (Noel Test., Dec. 23, 2015, at
112:6-8). Dr. Noel described the significance of esophageal varices as
follows:
... when they have esophageal varices, they pass a certain
threshold into advanced disease, and not only is there an
indication of advanced disease, but those who actually have
esophageal varices are at risk for the varices rupturing and
having a severe and critical bleed, because they're [sic] platelet
counts are low, so they don't clot very well, and you could have
a catastrophe.
So if we identify those with esophageal varices, not only do we
have someone who has advanced disease, the Hepatitis C,
would be most appropriate for, we can also have them band the
12

esophageal varices so they don't have a bleed and a
catastrophic event.
(ld. at 112:10-23).

53.
Dr. Noel testified that if inmates are found to "have varices, they
move on to immediate treatment, and if they don't have varices, they can
wait." (Id. at 128:25-129:2).
54.
Dr. Noel agreed with the statement that "before treatment is
even considered by the DOC, a person has a diagnosis of cirrhosis." (Id. at
129:6-8).
Plaintiff's Medical Conditions and Health
55.
Plaintiff testified that he "feel[s] better than [he] had" and that
the condition of his skin had "changed for the better" between September
2015 and the evidentiary hearing in December 2015. (Abu-Jamal Test., Dec.
18,2015, Doc. 94 at 82:11-15,95:22).
56.
Plaintiff's expert witness Dr. Joseph Harris, a board-certified
internist who sees, among others, patients with hepatitis C, testified that, in
his opinion, Plaintiff's skin condition is secondary to his hepatitis C and that it
is "probably" a condition called necrolytic acral erythema ("NAE"). (Harris
Test, Dec. 18, 2015, Doc. 94 at 105:19-106:21, 135:17-25). Dr. Harris
testi'fied that hepatitis C can also cause the skin conditions psoriasis and
eczema. (Id. at 137:13-20).
57.
Dr. Harris testified that the way to treat NAE is to "[t]reat the
Hepatitis C" and that the fact that Plaintiff's skin condition has not fully
resolved after extensive treatment speaks strongly for the condition being
"either [NAE] or some condition that's predicated on the Hepatitis Cthat's not
going to get better without treatment of Hepatitis C." (Id. at 137:9-12, 144:21­
145:12).
58.
Dr. Harris testified that, in his opinion, Plaintiff is likely to have
about a Metavir score of F2 or 2.5. (Harris Test, Dec. 22, 2015, Doc. 95 at
21 :19-22:6).

13

59. The DOC Defendants' expert witness Dr. Stephen Schleicher, a
board-certified dermatologist, testified that, in his opinion, Plaintiffs skin
condition is a cross between psoriasis and eczema. (Schleicher Test., Dec.
22,2015, Doc. 95 at 59:18-19,70:4-13).
60.
When asked if he would be surprised to learn that the CDC
recommends treatment with antiviral medication to everyone with an active
chronic hepatitis C infection, Dr. Schleicher testified as follows:
A: I can't say I'm either surprised or not surprised. It's not my
field, and I don't know what the current thinking is and what
defines an active infection. You know, unfortunately, it's beyond
my expertise.
Q: Basically, you don't know much about Hepatitis C is what
you're saying?
A: Hepatitis C, as far as treatment goes, no, I can say, being a
dermatologist, no, that's true.
(Id. at 112:4-14).
61.
Dr. Cowan and Dr. Noel agree that Plaintiff has chronic
Hepatitis C. (Cowan Test, Dec. 22, 2015 at 218:24-219:1; Noel Test. Dec. 23,
2015 at 123:14-16).
62.
Dr. Noel testified that the Hepatitis C Treatment Committee
made the decision not to give Plaintiff the direct-acting antiviral medication he
has requested. (Noel Test., Dec. 23, 2015 at 129:14-18).
63.
Dr. Noel testified that the Hepatitis C Treatment Committee has
the ultimate authority to decide whether Plaintiff receives DAA medication. (ld.
at 129:18-21).
64.
Upon review of Plaintiffs case, the Hepatitis C Committee
determined that Plaintiff "did not have cirrhosis or vast 'fibrosis and, therefore,
he was excluded from current treatment, based on his liver condition." (ld. at
120:23-7). Dr. Noel testified that Plaintiff will be reviewed again in the future.
(ld. at 121:8-11).
14

65.
If Plaintiff were given DAA treatment, Dr. Noel testified that
Plaintiff would be "jumping line, whoever is lower down will have to wait
longer." (Id. at 122:14-19).
66.
When asked if there is any medical reason why Plaintiff should
not be administered direct-acting antiviral medication, Dr. Noel testified as
follows:
[o]ff the top of my head, I can think of no medical
contraindications at this time. The only caveat I would say is if
someone were to get treatment, we always present them to a
gastroenterologist for final decision on that. But, no, I have no
medical exclusions.
(Id. at 154:8-15).

67.
Dr. Cowan agreed that if Plaintiff is treated with DAA
medication, it is almost certain, although not absolutely certain, that he would
avoid further progression of his hepatitis C disease. (Cowan Test., Dec. 23,
2015 at 23:10-13).
68.
Dr. Noel agreed that Plaintiff has a Metavir score of F2, which
means that his liver is scarred. (Noel Test., Dec. 23, 2015 at 123:17-20). Dr.
Noel also testified that Plaintiff has some liver disease." (Noel Test., Dec. 23,
2015 at 147:3-8).
U

Abu-Jamal v. Kerestes, 2016 WL 4574646, at *2-*9. Additionally, the Court makes the

following findings of facts:
69.

The interim policy was in effect from November 20, 2015, to November 7,

2016. (Docs. 8-15,18-1).
70.

As of June 6, 2016, out of the estimated 5,426 inmates in the DOC system

with chronic hepatitis C, twelve had completed treatment with DAA medications and thirtyeight more were receiving DAA medications. (Doc. 8-16, ~3).
15

Hepatitis C Protocol

71.

On November 7,2016, the DOC issued a new protocol for addressing

inmates with hepatitis C. (Doc. 18-1). That protocol became effective on November 7,
2016. (/d.).
72.

Under the current protocol, inmates are screened for Hepatitis C and those

who test positive are tested for a measurable viral load to determine if they have chronic
hepatitis C. (/d. at 1).
73.

The Aspartate Aminotransferase to Platelet Ratio Index (APRI) score is used

to predict the presence of cirrhosis. 5 (ld. at 2). "An APRI score ~ 2.0 may be used to
predict the presence of cirrhosis," although "[a] single APRI score should not be used in
isolation." (ld.).
74.

Inmates with chronic hepatitis Cwill be given a diagnosis of FO to F4, with FO

being no fibrosis, F1 being mild fibrosis, F2 being moderate fibrosis, F3 being advanced
fibrosis, and F4 being cirrhosis. (ld. at 4). Additionally, inmates with "chronic Hepatitis C
... will be entered into the Liver Disease Chronic Care Clinic." (Jd.).
75.

Inmates will be seen in the clinic periodically according to their diagnosis as

follows: FO-F2, every six months, F3, every three months, and F4, every month. (Id. at 6).
76.

According to the protocol "[a]lthough all patients with chronic [hepatitis C]

infection may benefit from treatment, certain cases are at higher risk for complications or

5 Use

of the APRI score has replaced IJse of the HALT-C score. (Doc. 18 at 9).

16

disease progression and require more urgent consideration for treatment." (Id.). Thus, the
protocol adopts the Federal Bureau of Prisons Priority Criteria6 and uses such "priority
criteria to ensure that those with the greatest need are identified and treated first." (Id.).
77.

The protocol classifies inmates into one of four priority categories: Priority

Level 1 - Highest Priority for Treatment, Priority Level 2- High Priority for Treatment,
Priority Level 3-Intermediate Priority for Treatment, and Priority Level 4 - Routine Priority
for Treatment. (/d. at 7-8).
78.

Priority Level 1 includes inmates with cirrhosis (except that an inmate with an

isolated APRI score of ~ 2.0 is placed in Priority Level 2), hepatocellular carcinoma,
comorbid medical conditions associated with hepatitis C, a certain type of chronic kidney
disease, those taking immunosuppressant medication for a comorbid medical condition,
and/or those who have already begun taking OM medications. (Id.). Priority Level 1also
includes inmates who are liver transplant candidates or recipients. (/d. at 7). Priority Level
2 includes those with an APRI score ~ 2, advanced fibrosis on a liver biopsy, hepatitis B or
HIV coinfections, comorbid liver diseases, and/or types of chronic kidney disease. (Id. at 8).
Priority Level 3 includes inmates with an F2 diagnosis on a liver biopsy, an APRI score of

6 The DOC policy adopts the April 2016 Federal Bureau of Prisons Priority Criteria. (Doc. 18-1,
H.1). In October of 2016, before the DOC policy was issued, the Federal Bureau of Prisons revised its
policy. See Evaluation and Management of Chronic Hepatitis C Virus (HCV) Infection, FED. BUREAU OF
PRISONS (Oct. 2016), https:/Iwww.bop.gov/resources/pdfs/hepatitis_c.pdf. The April 2016 Federal Bureau
of Prisons Priority Criteria, which contained four priority categories, was "revised and condensed into three
categories: high, intermediate. and low priority." Id. at i.

17

1.5 to < 2, diabetes mellitus, and/or porphyria cutanea tarda. (Id.). Priority Level 4 includes
those with a FO or F1 diagnosis on a liver biopsy. (/d.).
79.

The protocol dictates that an initial screening for treatment with DM

medications will occur for those inmates with an APRI score> 1.5 or a platelet count <
100,000 and will consist of the Correctional Health Care Administrator (CHCA), Infection
Control Nurse, and Site Medical Director reviewing the inmate's medical chart to "look for
the presence of any [of the enumerated] exclusionary indications." (Id. at 9). "If the CHCA
determines that there are no exclusionary indications to antiMviral treatment, [a referral form]
shall be forwarded to the [Bureau of Health Care Services Infection Control Coordinator] for
further evaluation, possible recommendations for further testing, and initial determination."
(ld.).

80.

Further, the protocol states as follows:

The PA DOC has determined that there is no single method of prioritizing
patients for treatment with antiMviral medications. Therefore, the patient's
clinical status will be reviewed by a Hepatitis CTreatment Committee ....
The Committee will utilize the pertinent information available to determine if
continued progression through the evaluation process is indicated.... If the
patient is considered a candidate for treatment with antiMviral medication,
shear wave elastography will be approved to document the stage of
fibrosis/cirrhosis.
If the patient meets any of the criteria designated Priority Level 1 MHighest
Priority for Treatment ... proceed with the following:
a. full ultrasound screening for HCC every six months;
b. EGO for esophageal varices surveillance;
c. refer to Supervisory PhysiCian for final review and the ordering of DM
medications unless there are contraindications; and
18

d. follow in Chronic Care Clinic every month.
For those patients approved for elastography, the results will be forwarded to
the Committee for review.
a. Fibrosis Stage 0-2
(1) Repeat Elastography in two years.
(2) Follow in Chronic Care Clinic every six months.
b. Fibrosis Stage 3
(1) Refer to the Supervising Physician for final review and the
ordering of DM medications unless there are
contraindications.
(2) Follow in Chronic Care Clinic every three months.
c. Fibrosis Stage 4
(1) Full ultrasound screening for HCC every six months.
(2) EGO for esophageal varices surveillance.
(3) Refer to the Supervising Physician for final review and the
ordering of DM medications unless there are
contraindications.
(4) Follow in Chronic Care Clinic every month.
The Committee will render its decision and forward the determination, along
with follow-up recommendations for those not meeting current priority criteria
for greatest need of treatment with anti-viral medications, to the ICN and Site
Medical Director, who will then discuss the results with the patient ....
If the Committee recommends treatment with anti-viral medication, the Site
Medical Director will refer the patient to a supervising physician who will direct
the anti-viral treatment.
(Id. at 10-11).

III. Conclusions of Law
Because the Court is relying on many of the same facts as it did in Abu-Jama/1, the
Court adopts the following conclusions of law from Abu-Jama/ v. Kerestes:
1.

Plaintiff has chronic hepatitis C.

19

2.
The standard of care with respect to the treatment of chronic
Hepatitis C is the administration of newly-developed DM medications, such
as Harvoni, Sovaldi, and Viekira Pak.

[3].
It was the Hepatitis C Treatment Committee who made the
decision not to give Plaintiff DM medications and that had, and continues to
have, the ultimate authority to determine whether or not Plaintiff will receive
the DM medications that offer him at least a 90 to 95 percent chance of
attaining SVR - that is, of being cured of hepatitis C.
Abu-Jamal v. Kerestes, 2016 WL 4574646, at *9. Additionally, the Court makes the
following conclusions of law:
4.

Chronic hepatitis C constitutes a serious medical need.

5.

The Hepatitis CProtocol, in both how it is written and how it is

implemented, bars those without vast fibrosis or cirrhosis from being approved for
treatment with DM medications. As such, the Hepatitis C Protocol presents a
conscious disregard of a known risk that inmates with fibrosis, like Plaintiff, will suffer
from hepatitis Crelated complications, continued liver scarring and damage
progressing into cirrhosis, and from cirrhosis related complications such as ascites,
portal hypertension, hepatic encephalopathy, and esophageal varices.
6.

The Hepatitis CProtocol deliberately delays treatment for hepatitis C

through the administration of DM drugs such as Harvoni, Sovaldi, and Viekira Pak
despite the knowledge of Defendants that sit on the Hepatitis CTreatment
Committee: (1) that the aforesaid DM medications will effect a cure of Hepatitis Cin
20

90 to 95 percent of the cases of that disease; and (2) that the sUbstantial delay in

treatment that is inherent in the current protocol is likely to reduce the efficacy of
these medications and thereby prolong the suffering of those who have been
diagnosed with chronic hepatitis C and allow the progression of the disease to
accelerate so that it presents a greater threat of cirrhosis, hepatocellular carcinoma,
and death of the inmate with such disease.
7.

Plaintiff was denied the treatment with DAA medications pursuant to

DOC policy, not because of any medical exclusions.
8.

The named Defendants who sit on the Hepatitis C Treatment

Committee deliberately denied administering DAA drugs to Plaintiff despite knowing
that administering such drugs was the standard of care. In choosing a course of
monitoring over treatment, they consciously disregarded the known risks of Plaintiff's
serious medical needs, namely continued liver scarring, disease progression, and
other hepatitis Ccomplications.

IV. STANDARD FOR PRELIMINARY INJUNCTIVE RELIEF
Federal Rule of Civil Procedure 65 governs the issuance of a preliminary injunction.
In ruling on a motion for a preliminary injunction, the Court must consider: "'(1) the likelihood
that the moving party will succeed on the merits; (2) the extent to which the moving party
will suffer irreparable harm without injunctive relief; (3) the extent to which the nonmoving

21

party will suffer irreparable harm if the injunction is issued; and (4) the public interest."'7

McNeil Nutritiona/s, LLC v. Heartland Sweeteners, LLC, 511 F.3d 350,356-57 (3d Cir.
2007) (quoting Shire U.S. Inc.

V.

Barr Labs. Inc., 329 F.3d 348, 352 (3d Cir. 2003)).

Although the moving party bears the burden to show its entitlement to the requested relief,
"each factor need not be established beyond doubt." Stilp V. Contino, 629 F. Supp. 2d 449,
457 (M.D. Pa. 2009), aff'd and remanded, 613 F.3d 405 (3d Cir. 2010).
"[W]here the relief ordered by the preliminary injunction is mandatory and will alter
the status quo, the party seeking the injunction must meet a higher standard of showing
irreparable harm in the absence of an injunction." Bennington Foods LLC v. St Croix
Renaissance, Grp., LLP, 528 F.3d 176, 179 (3d Cir. 2008) (citing Tom Doherty Assocs., Inc.
V.

Saban Entm't, Inc., 60 F.3d 27, 33-34 (2d Cir. 1995)). Furthermore, federal law specifies

that in civil actions challenging prison conditions, to the extent preliminary injunctive relief is
granted, it "must be narrowly drawn, extend no further than necessary to correct the harm
the court finds requires preliminary relief, and be the least intrusive means necessary to
correct that harm." 18 U.S.C. § 3626(a)(2). Additionally, "[t]he court shall give substantial
weight to any adverse impact on public safety or the operation of a criminal justice system
caused by the preliminary relief ...." Id.

7 The Third Circuit has also characterized the first factor as whether the moving party has
demonstrated "a reasonable probability of success on the merits." McTernan v. City of York, Pa., 577 F.3d
521, 526 (3d Cir. 2009) (internal citation and quotation marks omitted).

22

V.ANALYSIS

As a preliminary matter, Defendants argue that this Court should deny Plaintiff's
request for injunctive relief pursuant to the "first-filed rule." While the Court finds the first­
filed rule does not bar the present action, it will brietly address the merits of this argument
before turning to the preliminary injunction analysis.
A. First-Filed Rule

At the outset, Defendants argue that this action is duplicative of Abu-Jamal 1, and
the Court should therefore dismiss the current action pursuant to the "'flrst-med rule." (Doc.
18 at 6). Plaintiff argues that the rule does not apply because (1) this action and Abu-Jamal
1are pending in the same court and thus do not raise any of the issues the first-filed rule
was created to prevent, (2) this action and Abu-Jamal 1are not truly duplicative and
therefore the first-filed rule is inapplicable, and (3) even if the rule was applicable, it should
not be applied because it would prejudice Plaintiff. (Doc. 20 at 1-4).
Under the first-filed rule "[i]n all cases of [federal] concurrent jurisdiction, the court
which first has possession of the subject must decide it." Crosley Corp. v. Hazeltine Corp.,
122 F.2d 925, 929 (3d Cir. 1941 ) (quotation omitted). U[T]his policy of comity has served to
counsel trial judges to exercise their discretion by enjoining the subsequent prosecution of
'similar cases ... in different federal district courts.'" E.E.D.C. v. Univ. of Pa., 850 F.2d 969,
971 (3d Cir. 1988) (alteration original) (quoting Compagne des Bauxites de Guinea v. Ins.
Co. of N. Am., 651 F.2d 877, 887 n.10 (3d Cir. 1981)). 'The first-filed rule encourages
23

sound judicial administration and promotes comity among federal courts of equal rank. It

gives a court 'the power' to enjoin the subsequent prosecution of proceedings involving the
same parties and the same issues already before another district court." Id.
In order for the rule to apply, "the later-filed case must be truly duplicative of the suit
before the court. That is, the one must be materially on all fours with the other. The issues
must have such an identity that a determination in one action leaves little or nothing to be
determined in the other." Grider v. Keystone Health Plan Cent., Inc., 500 F.3d 322, 333 n.6
(3d Cir. 2007) (alterations, internal citations, and quotations omitted). Even when the rule
applies, however, the power to enjoin actions "is not a mandate directing wooden

t

t

application of the rule without regard to rare or extraordinary circumstances, inequitable

I

conduct, bad faith, or forum shopping. District courts have always had discretion to retain

f
f

t

I

jurisdiction given appropriate circumstances justifying departure from the first-filed rule."

i

E.E.O.C., 850 F.2d at 972.

I
t
I
!

Here, the simple matter is that the two actions are not identical. Although the claim
in this action is identical to one of the claims in Abu-Jamal 1, the majority of Defendants in

r

this action are different than the Defendants in Abu-JamaI1.8 See Complaint of Bankers
Trust Co. v. Chatterjee, 636 F.2d 37,40 (3d Cir. 1980) (stating that U[w]hen the claims,

parties, or requested relief differ" application of the rule may not be appropriate). Further, a

!

I

!

•

8 Defendants

incorrectly assert that "[b]oth actions have three mutual Defendants, namely Wetzel,
Silva, and NoeL" (Doc. 18 at 7). Although Plaintiff has moved to amend his complaint in Abu-Jama/1 to
add Defendants Wetzel and Noel, that motion is still pending before this Court. Thus, both actions have
only one defendant currently in common: Joseph Silva.

I
I
!

%

24

r

t
!
f

!

decision in this case would not result in "little or nothing to be determined in" Abu-Jamal 1.
See Grider, 500 F.3d at 333 n.6. Indeed, there are a variety of other matters to be decided

I
r
I

I

t

I

in Abu-Jamal 1.

~

Defendants, as they must, concede that these two actions are not identical. (Doc. 18
at 7). Nevertheless, they argue that "[i]t is of no matter that the defendants and claims are

t

I
I
i

not identical because Plaintiff has re-asserted the identical claim of deliberate indifference

!

that arises out of the same 'nucleus of operative facts' as the claims upon which [Abu-Jamal

I

1] is based." (Id.). Defendants cite Ball v. D'Addio, 2012 WL 3598412 (M.D. Pa 2012), for
the proposition that, under the first-filed rule, a court may dismiss a suit "where [Plaintiff]
filed the same claim in successive, but separate, lawsuits before" the same court. 2012 WL
3598412, at *7. Ball, however, involved a serial pro-se litigator with a "history of repeated,
frivolous and meritless litigation" who had twenty-five pending lawsuits before the same
court. Id. at *1. The claim in Ball "was legally identical and factually related to an earlier
claim brought by [Plaintiff] against this same Defendant in a prior lawsuit." Id. at *3
(emphasis added). Conversely, Plaintiff here initially filed this claim in Abu-Jamal 1. After
being told by this Court that he had sued the wrong people, Plaintiff filed the present action
against the proper Defendants. Thus, Balfs application of the first-filed rule to subsequent
identical claims brought by the same Plaintiff against the same Defendants in the same
court is not applicable to the case at hand.

25

!
!

I
f

Nevertheless, even if the first-filed rule was applicable under these facts, the Court

has good cause to decline to exercise its discretion to enjoin. First, this case presents the
type of "appropriate circumstances" that merit "departure from the first-filed rule." See

E.E.O. C., 850 F.2d at 972. First, the spirit of the rule is not violated here. Indeed, in
addition to comity, "the rule's primary purpose is to avoid burdening the federal judiciary and
to prevent the judicial embarrassment of conflicting judgments." Id. at 977. The two cases
at issue here appear before the same court. Thus, there is no risk that this Court will
interfere with another court's affairs or that these two cases will produce corrnicting results.
Second, as this Court recognized in Abu-Jamal v. Kerestes, the questions raised in
this motion for a preliminary injunction are "deserving of treatment and resolution at the level
of the circuit courts or above." 2016 WL 4574646, at *14. As this Court has no doubt that
its decision in this case will be appealed, extracting this single claim away from the multiple
other claims presented in Abu-JamaI1-with its lengthy and complicated record-will aid
appellate review of this matter by presenting it in a cleaner and simpler format.
In sum, while the Court finds the first-filed rule inapplicable under these facts, even if
it did apply, the Court would decline to exercise its discretion to enjoin under that rule.

B. Preliminary Injunction
As outlined above, to resolve this motion the Court must consider: "'(1) the likelihood
that the moving party will succeed on the merits; (2) the extent to which the moving party
will suffer irreparable harm without injunctive relief; (3) the extent to which the nonmoving
26

party will suffer irreparable harm if the injunction is issued; and (4) the public interest.'''

McNeil Nutritionals, LLC, 511 F.3d at 356-57 (quoting Shire U.S. Inc., 329 F.3d at 352).
Although Defendants only challenge the first factor, the Court will address each in turn.
1. The likelihood of success on the merits.
Under the Eighth Amendment, made applicable to the states by the Fourteenth
Amendment, a state must "provide medical care for those whom it is punishing by
incarceration." Estelle v. Gamble, 429 U.S. 97, 101, 103,97 S. Ct. 285, 50 L. Ed. 2d 251
(1976). To make out a claim under the Eighth Amendment for failure to provide adequate
medical care, a "plainUff[] must demonstrate (1) that the defendants were deliberately
indifferent to [his or her] medical needs and (2) that those needs were serious." Rouse v.
Plantier, 182 F.3d 192, 197 (3d Cir. 1999). Addressing the second prong first, 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.'" Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987)
(quoting Pace v. Fauver, 479 F. Supp. 456, 458 (D.N.J. 1979), af('d, 649 F.2d 860 (3d
Cir.1981)). Further, U[t]he seriousness of an inmate's medical need may also be determined
by reference to the effect of denying the particular treatment." Id.
Here, there can be no doubt that Plaintiff has chronic hepatitis C. Dr. Cowan, the
DOC's expert witness, and Dr. Noel, one of the defendants in this case, both testified that
Plaintiff has chronic hepatitis C. (Cowan Test, Dec. 22, 2015 at 218:24-219:1; Noel Test,
27

Dec. 23,2015 at 123:14-16). Dr. Cowan also testified that he agreed that chronic hepatitis
Cis a serious disease, that it is the number one cause for liver transplants in the United
States, and that it is the number one cause of liver disease in the United States. (Cowan
Test, Dec. 23, 2015 at 20:17-19,21 :22-22:2). According to the DOC's Interim Hepatitis C
Protocol, treatment of hepatitis C "may significantly decrease the risk of disease progression
and the development of decompensated cirrhosis, liver cancer, liver failure, and death."
(Doc. 18-15 at 1). Further, both the AASLD and the CDC recommend treatment for
someone with Plaintiffs condition. (See Findings of Fact, supra, ~~ 18-19). Thus, given
that (1) Plaintiff has chronic hepatitis C, (2) the DOC's expert testified that chronic hepatitis
Cis a serious disease that leads to serious medical complications when left untreated, (3)
the DOC's prior protocol recognized the risk of non-treatment, and (4) the AASLD and CDC
recommend treatment for someone with Plaintiff's condition, the Court finds that Plaintiffs
has a reasonable likelihood of showing that chronic hepatitis C constitutes a serious medical
need under the Eighth Amendment. 9
Turning back to the first prong, this Court must now address whether Defendants'
response to Plaintiff's serious medical need constitutes deliberate indifference. Deliberate
indifference is akin to "recklessness as that term is defined in crirninallaw." Natale v.
Camden Cty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003). It "requires proof that the

[prison] official 'knows of and disregards an excessive risk to inmate health or safety.'" Id.

9

Defendants make no argument that Plaintiffs chronic hepatitis C is not a serious medical need.

28

(quoting Farmer v. Brennan, 511 U.S. 825, 837, 114 S. Ct. 1970,62 L. Ed. 2d 811 (1994)).

The defendant "must be 'both [ ] aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and ... draw the inference.'" Id. (alterations
original) (quoting Farmer, 511 U.S. at 837). "[S]imple medical malpractice is insufficient to
present a constitutional violation." Durmer v. O'Carroll, 991 F.2d 64, 67 (3d Cir. 1993). Nor
do "mere disagreements over medical judgment ... state Eighth Amendment claims."

White v. Napoleon, 897 F.2d 103,110 (3d Cir. 1990).
When a court evaluates an Eighth Amendment claim, "prison authorities are
accorded considerable latitude in the diagnosis and treatment of prisoners." Durmer, 991
F.2d at 67. Nevertheless, the Third Circuit has "found 'deliberate indifference' in a variety of
circumstances, including where the prison official (1) knows of a prisoner's need for medical
treatment but intentionally refuses to provide it; (2) delays necessary medical treatment
based on a non-medical reason; or (3) prevents a prisoner from receiving needed or
recommended medical treatment." Rouse, 182 F.3d at 197. "Deliberate indifference is also
evident where prison officials erect arbitrary and burdensome procedures that result in
interminable delays and outright denials of medical care to suffering inmates." Monmouth

Cty. Corr. Inst. Inmates, 834 F.2d at 347 (quotations and alteration omitted). Finally,
"[p]rison officials may not, with deliberate indifference to the serious medical needs of the
inmate, opt for an easier and less efficacious treatment of the inmate's condition." Id.
(quotation omitted).
29

Here, Plaintiff has a reasonable likelihood of success in showing that Defendants
acted with deliberate indifference to Plaintiff's chronic hepatitis C. Simply put, Defendants,
pursuant to DOC policy, deliberately chose a course of monitoring over treatment for non­
medical reasons and are allowing Plaintiff's condition to worsen while his liver function and
his health continues to deteriorate. In Abu-Jamal v. Kerestes, this Court found that the
DOC's interim protocol "delays treatment until an inmate's liver is sufficiently cirrhotic that a
gastroenterologist determines, at the end of alengthy, multi-step evaluation procedure
taking place over a long period of time, that inmate has esophageal varices." 2016 WL
4574646, at *13. Thus, the Court concluded that
the effect of the protocol is to delay administration of OM medications until
the inmate faces the imminent prospect of "catastrophic" rupture and bleeding
out of the esophageal vessels. Additionally, by denying treatment until
inmates have "advanced disease" as marked by esophageal varices, the
interim protocol prolongs the suffering of those who have been diagnosed
with chronic Hepatitis C and allows the progression of the disease to
accelerate so that it presents a greater threat of cirrhosis, hepatocellular
carcinoma, and death of the inmate with such disease.

Id. Here, Defendants seem to argue that the same conclusion is not warranted in light of
the DOC's new protocol that has replaced the interim protocol. (Doc. 18 at 8-9). The Court,
however, after careful review of the current DOC protocol, finds that a core aspect of the
interim protocol that led the Court to the above stated conclusion is still present in the
DOC's current protocol.
As discussed above, the standard of care as established by the CDC and MSLD for
treatment of patients with hepatitis C is the use of OM medications. The DOC's own
30

expert, Dr. Cowan, agreed that the same standard of care as to hepatitis C treatment that is

applicable to the community at large should apply in a correctional setting. (Cowan Test.,
Dec. 23, 2015, at 32: 17-20). Thus, the standard of care for treating Plaintiff is to administer
DAA medications such as Harvoni, Sovaldi, and Viekira Pak.
The DOC's interim protocol was a "prioritization protocol," meaning that it prioritized
inmates so that those in most need of the medications would receive it first. (Noel Test.,
Dec. 23, 2015, at 102:17-103:1). Simply prioritizing treatment so that those in the greatest
need are treated 'first likely would not constitute a constitutional violation. The DOC's
interim protocol, however, went one step further. The protocol stated
[i]f the patient is considered a candidate for treatment with anti-viral
medication, an EGO will be approved to evaluate the patient for esophageal
varices.
The results of the endoscopy will be forwarded to the Cornmittee for review. If
there are no esophageal varices, the case will be returned to the site for
regular follow up in the Chronic Care Clinic with a recommendation for repeat
EGO in two to three years. If the endoscopy documents the presence of
esophageal varices, the patient will be approved for referral to a supervising
physician.
(Doc. 8-15 at 7). Dr. Noel, who sits on the Hepatitis CTreatment Committee and is a
defendant in this action, testified that if inmates are found to "have varices, they move on to
immediate treatment, and if they don't have varices, they can wait." (Noel Test., Dec. 23,
2015, at 128:25-129:2). He went on to indicate that, under the interim protocol, an inmate
needed to have cirrhosis before even being considered for treatment. (Id. at 129:6-8).
Thus, there was a requirement that an inmate's hepatitis C be in an advanced stage before
31

Defendants would even consider treatment. This was in spite of the fact that (1) the
standard of care is to administer DM medications regardless of the disease's stage, (2)
inmates would likely suffer from hepatitis Ccomplications during that time, and (3) the delay
in treatment reduced the efficacy of the DM medications,
The new protocol implemented by the DOC is also a prioritization protocol because it
classifies inmates into different priority levels for treatment (Doc. 18-1 at 7-8), Much like
the interim protocol, however, the new protocol completely bars those with chronic hepatitis
Cbut without vast fibrosis or cirrhosis from receiving DM medications. Upon review by the
Committee, if an inmate is considered for treatment with DM medications, the Committee
orders shear wave elastography to determine the inmate's fibrosis level. (ld. at 10). Upon
the results of that test, if the inmate has a fibrosis level of FO, F1 , or F2, the protocol
instructs the Committee to order monitoring but not treatment with DM medications. (Id. at
11). Thus, those with mild or moderate fibrosis have no chance of receiving DM
medications-the standard of care-and the protocol requires their hepatitis Cto worsen
before they will be considered for treatment.
In addition, the policy does not ensure that those with vast fibrosis or cirrhosis-and
who do not have any contraindications-will definitely receive DM medications. Instead,
the Hepatitis CTreatment Committee must still recommend treatment with DM medications
after determining whether the inmate meets "current priority criteria for greatest need of
treatment." (Doc. 18-1 at 11).
32

In Plaintiff's case, he has a fibrosis level of F2 or F2.5, meaning his liver is scarred.
(Noel Test., Dec. 23, 2015, at 123:17-20; Harris Test., Dec. 22, 2015, at 21:19-22:6).
According to Dr. Noel, Plaintiff likely has some liver damage. (Noel Test., Dec. 23,2015, at
147:3-8). Dr. Noel also testified that, when the Hepatitis CTreatment Committee reviewed
Plaintiff's case, he was denied OM medications because he "did not have cirrhosis or vast
fibrosis." (Id. at 120:23-121 :7). Dr. Noel, however, could think of no medical reason why
Plaintiff should not receive OM medications. (Id. at 154:8-15). In effect, Plaintiff was
denied OM medications because his hepatitis C was not advanced enough under the DOC
interim protocol, not because of any medical reason why he should not receive treatment. 10
Further, there is no indication that under the current DOC protocol Plaintiff would receive

OM medications.
Therefore, while the Defendants are correct that there is a new hepatitis C protocol
in place that is somewhat different than the Interim Hepatitis C Protocol, (Doc. 18 at 9), the
new protocol suffers from the same fatal flaw as the interim protocol: it refuses, without
medical justification, to provide treatment for certain inmates with hepatitis C and also

10 The Court recognizes the counterargument to this point is that the Defendants' decision that
Plaintiffs condition is not advanced enough to require medication is itself a medical basis for not providing
him DM medications. Stated otherwise, Defendants, in their medical opinions, determined that Plaintiffs
medical condition was not one that warrants treatment yet. This argument, however, is misleading. As Dr.
Noel testi'fied, the purpose of a prioritization protocol is "to identify those with the most serious liver disease
and to treat them first, and then, as they're treated, move down the list to the lower priorities, froml,igh
priority to lower priority." (Noel. Test. Dec. 23, 2015, at 102:17-103:1). This would conceivably continue
until all inmates with hepatitis C are treated. Thus, it is not Plaintiffs medical status that is driving the
decision-as it would be, for example, if the risk of medication side effects outweighed the risks presented
by the disease at its current stage.

33

imposes an unreasonable condition-having vast fibrosis or cirrhosis-on treatment. 11

"[O]utright refusal of any treatment for a degenerative condition that tends to cause acute
infection and pain if left untreated and [ ] imposition of a seriously unreasonable condition on
such treatment, both constitute deliberate indifference on the part of prison officials."
Harrison v. Barkley, 219 F.3d 132, 138 (2d Cir. 2000).
Defendants next argue that Plaintiff cannot establish deliberate indifference because
every court that has addressed this issue has found "that monitoring and treatment under
prioritization protocols is sufficient for Eighth Amendment purposes." (Doc. 18 at 12). In
support of this argument, Defendants cite fourteen cases from across the country that
address, in one way or another, an inmate's contention that they should receive OM
medications for his or her hepatitis C.12 (Id. at 12-14). Upon review ofthe case law cited by

The Court, however, cautions that simply removing the language in the protocol that bars
treatment of inmates whose hepatitis C has not progressed to a certain advanced state would not
necessarily resolve the issue. If the DOC removed this bar in the protocol, but only those inmates with the
most advanced hepatitis C received OM medications in practice, the same problem would persist. For
example, within the first six months of implementing the interim protocol, only 50 inmates out of the over
5,000 with chronic hepatitis C-Iess than 1%- received any OM medications. (Doc. 8-16, ~ 3). If that
trend continues it would likely mean that inmates without vast fibrosis or cirrhosis would have no prospect
of actually receiving OM medications, regardless of the way the prioritization protocol was written.
12 While there is a body of case law that developed before the availability of the current OM
medications which addressed a prisoner's rights to hepatitis C medication, Defendants wisely do not rely on
it. Those cases are all readably distinguishable, as the prior hepatitis C
11

treatment hard] serious potential side-effects, including nausea, anemia, depression, and
decomposition of the liver. Its success rate [was] relatively low-15-30% for regular
interferon and 40-50% for pegylated interferon treatment. The selection of patients for
interferon treatment [was] highly individualized and depend[ed] upon many factors.
Treatment [was] not appropriate for patients with advanced liver problems such as
cirrhosis. Treatment for patients with mild liver problems may [have been] safely deferred.
Suitability for treatment [was] determined by measuring the degree of liver inflammation
and fibrosis through a liver biopsy. However, even if the appropriate threshold levels of
34

Defendants and for the reasons set out below, this Court is not persuaded that any of the
case law foreclose a finding of deliberate indifference in this action.
First, a couple of the cases cited by Defendants are inapplicable based on the
procedural posture in which they were presented to those courts. See Banks v. Gore, 2016
U.S. Dist. LEXIS 73468, at *12 (E.D. Va. 2016) (dismissing due to lack of jurisdiction
because the plaintiff failed to exhaust his administrative remedies);13 Melendez v. Fla. Oep't
of Corrs., 2016 WL 5539781, at *7 (N.D. Fla. 2016) (dismissing a complaint because the pro
se plaintiff did not pay the filing fee and his medical condition did not constitute an "imminent
danger of serious physical injury" which would enable him to proceed in forma pauperis
under 28 U.S.C. § 1915(g)), reporl and recommendation adopted, 2016 WL 5661012 (N.D.
Fla. 2016).
inflammation and fibrosis [were] present, treatment may [have been] inappropriate if the
patient [was] too young or too old, had a previous organ transplant, or suffer[ed] from
depression, other mental health problems, heart disease, or untreated chemical
dependency.

Bender v. Regier, 385 F.3d 1133, 1135 (8th Cir. 2004). Thus, U[t]he decision whether or not to use
[prior] antiviral therap[ies] [was] a complex and controversial one." Moore v. Bennett, 777 F. Supp.
2d 969, 976 (W.D.N.C. 2011). In contrast, the new DAA medications have "relative low-risk side
effects," "high success rates of 90 percent plus," (Cowan Test., Dec. 22, 2015, at 213:24-214:2),
and are recommended for most individuals with hepatitis C. (See Findings of Fact, supra, 1111 18­
21).
13 In dicta, after the court found that it lacked jurisdiction, the court went on to analyze the merits of
the claim. The entire analysis is as follows:
Even if plaintiffs claims had been properly exhausted prior to filing this lawsuit,
summary judgment in favor of Dr. Gore, Nurse Smith, and Nurse Kee is appropriate
because the pleadings, affidavits, and exhibits on file demonstrate that the named
defendants did not violate plaintiffs Eighth Amendment rights and plaintiff has not
produced any evidence to the contrary.

Banks, 2016 U.S. Dist. LEXIS 73468, at *12-*13.
35

Second, several of the holdings cited by Defendants rely on black letter law that

neither a mere disagreement between the inmate-patient and his or her doctor nor a mere
refusal to provide an inmate with his or her requested course of treatment constitutes a
constitutional violation. See Dulak v. Corizon Inc., 2015 U.S. Dist. LEXIS 131291, at *29
(E.D. Mich. 2015) (stating that the preliminary injunction was denied because the plaintiff
essentially had a "disagreement with the treatment or lack of treatment that" he received),
reporl and recommendation adopted, 2015 U.S. Dist. LEXIS 129702 (E.D. Mich. 2015);
Johnson v. Frakes, 2016 WL 4148231, at *3 (D. Neb. 2016) ("Defendants' failure to provide

Plaintiff with Harvoni, his requested course of treatment, does not constitute an Eighth
Amendment violation"); Bernier v. Obama, _

F. Supp. 3d _,2016 WL 4468159, at *4

(D.D.C. 2016) ("[A]t most, it appears that the parties disagree on a proper course of
treatment for Plaintiff's condition"), appeal docketed, No. 16-5281 (D.C. Cir. Sept. 30, 2016);
Melendez, 2016 WL 5539781, at *6 ("Although [the plaintiff] disagrees with [his doctor's]

assessment, a disagreement between staff and an inmate concerning the latter's course of
treatment is not an appropriate basis for finding an Eighth Amendment violation"); Buchanon
v. Mohr, 2016 WL 4702573, at *3 (S.D. Ohio 2016) ("Plaintiff is receiving medical care, and

those monitoring his medical care have a difference of opinion on the type of care he should
receive"), reporl and recommendation adopted, 2016 WL 5661697, at *1 (S.D. Ohio 2016)
("as the Magistrate Judge correctly concluded, a different [sic] of opinion on the type of care
he should receive does not support an Eighth Amendment claim"); King v. Calderwood,
36

2016 WL 4771065, at *5 (D. Nev. 2016) ("Plaintiff's contentions constitute a disagreement

regarding the appropriate course of treatment"), appeal docketed, No. 16-16725 (9th Cir.
Sept. 28, 2016); Hankins v. Russell, 2016 WL 5689892, at *9 (E.D. Mo. 2016) ("It is
undisputed that Plaintiff requests Hepatitis Ctherapy, but he has provided no evidence,
other than his own opinion, that he requires this medication").
This Court does not call the general principals underlying these cases into question.
It instead concludes that, in this case, Plaintiff has presented sufficient facts to show more
than a mere disagreement as to the proper course of treatment. Instead, Plaintiff has
shown that the DOC has implemented a policy that categorically denies certain inmates with
chronic hepatitis Cfrom receiving the curative treatment that the DOC's own expert testified
he would recommend for a non-prisoner with the same condition. (Cowan Test., Dec. 23,
2015, at 68:7-18).
This is not a mere disagreement with the course of care. Nor is it simply medical
malpractice or "an inadvertent failure to provide adequate medical care." Estelle, 429 U.S.
at 105. Plaintiff has shown that Defendants have deliberately denied providing treatment to
inmates with a serious medical condition and chosen a course of monitoring instead. They
have done so with the knowledge that (1) the standard of care is to administer DAA
medications regardless of the disease's stage, (2) inmates would likely suffer from hepatitis
Ccomplications and disease progress without treatment, and (3) the delay in receiving DAA
medications reduces their efficacy. "Although medical negligence does not violate the
37

eighth amendment ... medical treatment may so deviate from the applicable standard of

care as to evidence a physician's deliberate indifference." See McRaven v. Sanders, 577
F.3d 974,983 (8th Cir. 2009) (alteration original) (quotation omitted).
Third, two of the cases Defendants cite conclude that the inmate did not present
sufficient evidence that the named defendants were responsible for the inmate's injuries.
Binford v. Kenney, 2015 WL 6680272, at *4 (E.D. Wash. 2015) (finding inmate "presented
no evidence-nor has he even alleged-that any of the named defendants had any role in
the creation of the policy to which he objects"), aff'd mem., 2016 WL 4990041 (9th Cir.
2016); Harrell v. Cal. Forensic Med. Grp., 2015 WL 6706587, at *3 (E.D. Cal. 2015)
(dismissing inmate's complaint because it "failed to specify how each of the named
defendants ... [was] responsible for plaintiffs alleged injuries"). Here, Plaintiff has named
members of the Hepatitis CTreatment Committee as defendants. Plaintiff has also
established that the Hepatitis CTreatment Committee made the decision not to give Plaintiff
the DM medications he has requested, (Noel Test., Dec. 23, 2015, at 129:14-18), and that
the Committee has the ultimate authority to decide whether Plaintiff receives DM
medications, (Id. at 129:18-21). Further, Plaintiff has shown that Defendant Dr. Noel had a
role in crafting the DOC's hepatitis C policies. (Id. at 101:7-13, 126:8-14).
Finally, the last group of cases Defendants cite find that treatment was not medically
advisable for the plaintiff in question, there was insufficient evidence that the plaintiff should
receive the treatment he or she was seeking, or the plaintiff was receiving the type of
38

treatment he or she would have been receiving if not in prison, e.g. the standard of care in

the community. See Dulak, 2015 U.S. Dist. LEXIS 131291, at *19, *29-*30 (finding, among
other things, that the plaintiff did not produce evidence that he met criteria for hepatitis G
treatment under national standards); Shabazz v. Schofield, 2015 WL 5036919, at *2, *5
(M.D. Tenn. 2015) (finding inmate was monitored pursuant to a policy that was "consistent
with generally accepted medical practices, regardless of whether the patient is incarcerated
or is a free world patient" and that "[d]espite Plaintiffs arguments, he has submitted no
medical proof that he should be receiving the therapy he seeks"), report and
recommendation adopted, 2016 WL 540727 (M.D. Tenn. 2016); Binford, 2015 WL 6680272,
at *4 (finding "treatment was not medically advisable given [inmate's] current condition");
Taylor v. Rubenstein, 2016 WL 1364287, at *3 (N.D. W. Va. 2016) (finding inmate
presented no proof that he was "a viable candidate" for treatment with OM medications);
Allah v. Thomas, 2016 WL 3258422, at *5 (E.D. Pa. 2016) (dismissing former inmate's
complaint on an unopposed motion to dismiss because "his Hepatitis Gdid not require
treatment prior to his incarceration, and his condition was not alleged to have significantly
deteriorated while he was in prison"), appeal docketed, No. 16-3103 (3d Gir. July 14, 2016);
Buchanon, 2016 WL 4702573, at *3 (S.D. Ohio 2016) (finding the course of treatment
required four years to complete and the plaintiff would have been released prior completion
of treatment); Hankins, 2016 WL 5689892, at *9 ("It is undisputed that Plaintiff requests

39

Hepatitis Ctherapy, but he has provided no evidence, other than his own opinion, that he
requires this medication").
Here, the combination of an evolving standard of care and the substantial amount of
evidence presented in this case has rendered the above cited cases unpersuasive.
Defendant Dr. Noel testified that he could think of no medical reason why Plaintiff should not
receive DAA medications. (Noel Test., Dec. 23, 2015, at 154:8-15). Plaintiff presented
evidence that the national standard is to treat all those with chronic hepatitis C-with limited
exceptions-with DAA medications. (Findings of Fact, supra, ~~ 18-21). Further, the
DOC's own expert testified that, if he encountered a patient with chronic hepatitis Coutside
the prison system, he would recommend treatment with DAA medications if the patient
could afford it. (Cowan Test., Dec. 23, 2015, at 68:7-18). This Court, therefore, does not
come to the same conclusions as those courts that had less information and that were
applying a now out-of-date standard of care.
Defendants cite one other case, not mentioned above, that merits consideration,
Smith v. Corizon, Inc., 2015 WL 9274915 (D. Md. 2015). In Smith, the plaintiff, a state
prisoner proceeding pro se, alleged that prison officials failed to treat his hepatitis C. Id. at
*1. In June, 2015, the plaintiff was evaluated for treatment with Harvoni and it was
determined that he was not a priority candidate for treatment. Id. at *5. The plaintiff
responded by questioning "why his condition should be allowed to get worse and it be
acceptable for defendants to simply monitor his situation with chronic care reviews." Id. On
40

a motion to dismiss converted to a motion for summary judgment, the court held that "the

complaint fail[ed] to allege conduct rising to the level of deliberate indifference." Id. Noting
that hepatitis Cdoes not require treatment in all cases and that the plaintiff had been mostly
asymptomatic, the court found that monitoring the plaintiffs condition satisfied the
constitutional standard. Id. at *5-*6.
This Court declines to adopt the reasoning of Smith for several reasons. First,
although it is clear that the plaintiffs medical records were before the court in Smith, it is not
clear what information, if any, the court had about the negative health effects of even
asymptomatic hepatitis C. Second, in Smith the decision not to provide Harvoni to the
plaintiff was made in June of 2015. At that time, the MSLD and CDC had yet to
recommend DM medications for all those with chronic hepatitis C. Finally, there is no
indication that the prioritization protocol used by the prison in Smith completely barred
treatment with DM medications-as opposed to prioritizing it-for those without advanced
stage hepatitis Cas the DOC's policy in question here does. Thus, the facts of Smith are
quite distinct from the facts before this Court.
In sum, the Court finds Plaintiff has established a reasonable likelihood of success of
showing that Defendants were deliberately indifferent to his serious medical need. The
Court will therefore turn to the other three preliminary injunction factors.

41

2. The extent to which the moving party will suffer irreparable harm without injunctive

relief.
1i[T]0 show irreparable harm a plaintiff must 'demonstrate potential harm which
lIl

cannot be redressed by a legal or an equitable remedy following a trial. Acierno v. New
Castle Cty., 40 F.3d 645, 653 (3d Cir. 1994) (quoting Instant Air Freight Co. v. C.F. Air
Freight, Inc., 882 F.2d 797, 801 (3d Cir. 1989)). "Establishing a risk of irreparable harm is
not enough. A plaintiff has the burden of proving a 'clear showing of immediate irreparable
injury.'" ECRI v. McGraw-Hili, Inc., 809 F.2d 223, 226 (3d Cir. 1987).
Here, as documented extensively above, Plaintiff has a serious medical condition.
He will continue to suffer from chronic hepatitis C if he does not receive treatment. His liver
will continue to scar and its functioning will continue to deteriorate. Further, the efficacy of
the OM medications will likely be reduced if treatment is delayed. This is sufficient to show
that Plaintiff will suffer irreparable harm if this Court does not grant a preliminary injunction.
The realities of civil litigation make it likely that waiting for resolution at trial will prolong
Plaintiff's suffering for a significant period of time and result in an overall deterioration of his
health.

3. The extent to which the nonmoving party will suffer irreparable harm if the
injunction is issued.
In considering the extent to which the nonmoving party will suffer irreparable harm if
the injunction is issued, the Court must balance the harms suffered by each party. See Am.
42

Exp. Travel Related Servs., Inc. v. Sidamon-Eristoff, 669 F.3d 359, 366 (3d Cir. 2012)
(describing the third factor as "whether granting preliminary relief will result in even greater
harm to the nonmoving party"). Here, the only conceivable injury Defendants will suffer is
monetary. As a result of the grant of this injunction, Defendants will be required to treat
Plaintiff with expensive medication. While the Court is sensitive to the realities of budgetary
constraints and the difficult decisions prison officials must make, the economics of providing
this medication cannot outweigh the Eighth Amendment's constitutional guarantee of
adequate medical care. See Monmouth Cty. Corr. Insf. Inmates, 834 F.2d at 336-37.

4. The public interest.
"[Ilf a plaintiff demonstrates both a likelihood of success on the merits and
irreparable injury, it almost always will be the case that the public interest will favor the
plaintiff." AT&T v. Winback & Conserve Program, Inc., 42 F.3d 1421,1427 n.8 (3d Cir.
1994). The public "interest is particularly strong where the right to be vindicated derives
from the United States Constitution." Johnson v. Wetzel, _

F. Supp. 3d _, 2016 WL

5118149, at *11 (M.D. Pa. 2016). Here, issuance of a preliminary injunction will serve the
public interest in that it will vindicate Plaintiffs constitutional right to receive adequate
medical care while in the custody of the state.

VI. CONCLUSION
For the reasons stated above, the Court will grant Plaintiff's motion for a preliminary
injunction. A separate Order follows.
43

44