PIERGROSSI v. NOEL et al

Filing 35

OPINION AND ORDER denying 16 Motion for Summary Judgment; denying 22 Motion to Dismiss; denying 22 Motion for Summary Judgment. Signed by Magistrate Judge Maureen P. Kelly on 5/17/2018. (ndf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
DAVID PIERGROSSI,

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Plaintiff,
v.
DR. PAUL NOEL and DR. MICHAEL
HERBIK,
Defendants.

Civil Action No. 17-1575
Chief Magistrate Judge Maureen P. Kelly
Re: ECF Nos. 16, 22

OPINION AND ORDER
Chief United States Magistrate Judge Maureen P. Kelly:
Plaintiff David Piergrossi (“Plaintiff”) is an inmate currently incarcerated in the custody
of the Pennsylvania Department of Corrections (“DOC”) at the State Correctional Institution at
Fayette (“SCI – Fayette”). On December 1, 2017, Plaintiff commenced this counseled civil
rights and negligence action pursuant to 42 U.S.C. § 1983 and Pennsylvania state law, asserting
claims against Dr. Paul Noel (“Dr. Noel”), the Pennsylvania DOC Bureau of Health Care
Services Chief of Clinical Services, and Dr. Michael Herbik (“Dr. Herbik”), the contracted
medical director at SCI – Fayette. Plaintiff alleges that as a result of initially denying and
otherwise delaying treatment for his chronic hepatitis C infection, Defendants violated his rights
under the Eighth Amendment of the United States Constitution and otherwise were negligent in
their provision of medical care. ECF No. 1.
Presently before the Court is a Motion for Summary Judgment, ECF No. 16, filed on
behalf of Dr. Noel, and a Motion to Dismiss Complaint or, in the alternative, Motion for
Summary Judgment, filed on behalf of Dr. Herbik. ECF No. 22. The Motions raise Plaintiff’s
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alleged failure to exhaust available administrative remedies and, as argued by Dr. Herbik,
Plaintiff’s failure to assert his claims within the applicable statute of limitations. For the reasons
that follow, Defendants’ motions are denied. 1
I.

FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff is 55 years old and has been incarcerated in DOC facilities at various times

throughout his adult life for a total of approximately fifteen years. Plaintiff currently is
incarcerated pursuant to a sentence imposed in May 2015. ECF Nos. 19, 29. Upon entering the
DOC system in 2015, SCI-Fayette medical officials were aware that Plaintiff was suffering from
Hepatitis C (“HCV”), and was not under treatment. Plaintiff alleges his requests for treatment
were denied. The record of this matter indicates that Plaintiff submitted his first grievance related
to the denial of medical treatment for HCV, Grievance No. 665565, on February 20, 2017.
The pending motions turn on Plaintiff’s compliance with applicable DOC Grievance
Policy provisions. Accordingly, reference is made to the relevant requirements for the
submission of a grievance in effect at the time, which are explained to all inmates in the DOC
Inmate Handbook:
The inmate must submit a grievance to the Facility Grievance
Coordinator/designee, usually the Superintendent’s Assistant, within 15
working days after the event upon which the claim is based.
The text of the grievance must be legible, understandable, and presented in
a courteous manner. The inmate must include a statement of the facts
relevant to the claim.
The statement of facts shall include the date, approximate time,
and location of the event(s) that gave rise to the grievance.

In accordance with the provisions of 28 U.S.C. § 636(c)(1), the parties voluntarily consented to having a United
States Magistrate Judge conduct proceedings in this case, including the entry of a final judgment. ECF Nos. 13 and
15.

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ECF No. 17 at 7, ECF No. 19 ¶¶ 13, 17. If the inmate is not satisfied with the Grievance
Coordinator’s response, DC-804 requires the inmate to submit a timely written appeal to
intermediate review within fifteen working days, and a written response is to be provided to the
inmate within fifteen working days. ECF No. 17 at 17-18. If the inmate remains dissatisfied with
the response, the inmate must submit a timely appeal to the Central Office Review Committee,
also known as the Secretary’s Office of Inmate Grievances and Appeals (“SOIGA”), within
fifteen days. Id. at 20.
In the instant case, Plaintiff stated in the relevant part of Grievance No. 665565, dated
February 20, 2017, as follows:
I am filing this Grievance because the continued refusal of DOC to treat my
hepatitis C is causing me ongoing health problems, including [varices], fluid
retention, gallbladder attacks, dizziness, loss of appetite, loss of weight,
forgetfulness, elevated blood [ammonia] levels, depression, anxiety and vision
problems…..
The Hepatitis C from which I suffer is causing on-going and irreversible damage
to my liver. I have cirrhosis and varicies (very large) EV and FV and a
[gallbladder] loaded with stones. And been placed at a much greater risk of
developing hepatocellular carcinoma, as well as increased risk of death.
ECF No. 17 at 40, 48-49. Plaintiff further stated that he had been seen by Dr. Herbick and the
Hepatitis C Clinic “at least 6 times” for treatment. Plaintiff requested treatment with DirectActing Antiviral (“DAA”) medication and monetary compensation. Id. at 49.
Plaintiff’s grievance was denied as untimely because Plaintiff failed to submit it “within
15 days after the events giving rise to the claims alleged.” Id. at 41, 47. This disposition was
upheld by the Facility Manager, who noted both that the grievance was not submitted within 15
days of the events upon which the claim is based, and did not reference a specific date to
determine when the event occurred. Id. at 44. Plaintiff was reminded that while the Grievance
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Policy permits resubmission of a grievance within 5 days of initial rejection to correct any error,
Plaintiff had failed to resubmit his grievance, and “chose instead to appeal the rejection.” Id.
Plaintiff filed a timely appeal to final review to the SOIGA. SOIGA’s Chief Grievance
Officer affirmed the grievance denial on the basis that Plaintiff “failed to provide a date to prove
timeliness of this issue.” Id. at 43. The Chief Grievance Officer noted that Plaintiff had filed a
second grievance No. 672757, which specified a date of harm (“today, April 11, 2017”). See
ECF No. 17 at 52. Because the second grievance included the required information, the Chief
Grievance Officer upheld the denial of Grievance No. 665565, and stated that Plaintiff would be
provided a response to his underlying complaint in conjunction with the disposition of Grievance
No. 672757. Id. at 43.
In Grievance No. 672757, Plaintiff alleged that the DOC failed to provide any treatment
for his HCV for the period May 2015, through the date of his grievance, April 11, 2017. ECF
No. 17 at 55-56. Plaintiff reiterated the physical effects of being denied treatment and indicated
that he was most recently denied treatment because of the results of urinalysis. Plaintiff
contended that the urinalysis does not provide a medical basis for excluding him from treatment.
Plaintiff again requested monetary compensation for the damages caused by the delay and
continued denial of treatment. Id. at 56.
The Health Care Administrator charged with reviewing Grievance No. 672757 issued a
denial in response. She indicated that Plaintiff had been approved to receive treatment, but had
other medical issues that had to be addressed first, including anemia, blood in his stool, and
varices. Id. at 53. Further, several tests were ordered, but Plaintiff refused to have a CT scan
completed in February 2017, and subsequently informed the Infectious Control Nurse that he
wanted treatment to be discontinued. Plaintiff confirmed his decision with Dr. Herbik, and the

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treatment plan was abandoned. The Grievance response indicates that on February 11, 2017,
Plaintiff received a misconduct for a positive urine screening for illicit drugs. Based on the
results of the screening, and pursuant to DOC policy, the Heath Care Administrator indicated
that Plaintiff was no longer eligible for treatment for 12 months. Id.
Plaintiff submitted a timely appeal to the Facility Manager, stating that the positive drug
screen should not have a role in the medical decision to treat his HCV. Plaintiff cited the
availability of clinical data indicating that drugs and alcohol do not negatively impact on the
efficacy of DAA medication. Plaintiff also challenged the Health Care Administrator’s
characterization of his refusal to undergo a CT Scan, indicating that another physician agreed
with his rationale and ordered an ultra-sound, which was completed during the first week of
April 2017. Id. at 51. On May 22, 2017, the Facility Manager upheld the denial of Grievance
No. 672757, finding that in accordance with DOC policy, Plaintiff was appropriately excluded
from Hepatitis C treatment as a result of the drug-related misconduct received on February 11,
2017. Plaintiff did not appeal the intermediate level decision for final review to the SOIGA.
On May 11, 2017, eleven days before the Facility Manager’s response, Plaintiff’s counsel
received an email informing him that Plaintiff would begin to receive HCV treatment with DAA
medication in thirty days. ECF No. 28 at 21. Plaintiff began receiving treatment on July 19,
2017, and concluded treatment in October 2017. ECF No. 1 ¶ 66. Accordingly, Plaintiff’s action
seeks recovery for the exacerbation of Plaintiff’s condition, including liver damage, worsening
cirrhosis, and other manifestations of the illness that occurred as a result of the delay in
treatment.

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II.

STANDARD OF REVIEW
Summary judgment may only be granted “if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(c). Pursuant to Rule 56, the Court must enter summary judgment against the party
“who 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 of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). A motion for summary judgment will only be denied when
there is a genuine issue of material fact, i.e., if the evidence is such that a reasonable jury could
return a verdict for the non-moving party. McGreevy v. Stroup, 413 F.3d 359, 363 (3d Cir.
2005). The mere existence of some disputed facts is insufficient to defeat a motion for summary
judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).
In determining whether the dispute is genuine, the court’s function is not to weigh the
evidence, to determine the truth of the matter, or to evaluate credibility. The court is only to
determine whether the evidence of record is such that a reasonable jury could return a verdict for
the non-moving party. McGreevy, 413 F.3d at 363; Simpson v. Kay Jewelers, Div. of Sterling,
Inc., 142 F.3d 639, 643 n.3 (3d Cir. 1998) (citing Fuentes v. Perskie, 32 F.3d 759, 762 n.1 (3d
Cir. 1994)). In evaluating the evidence, the court must interpret the facts in the light most
favorable to the non-moving party, and draw all reasonable inferences in its favor. Watson v.
Abington Twp., 478 F.3d 144, 147 (3d Cir. 2007). As to materiality, the relevant substantive law
identifies which facts are material. Anderson, 477 U.S. at 248. “Only disputes over facts that
might affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment.” Id. “Factual disputes that are irrelevant or unnecessary will not be
counted.” Id.

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III.

DISCUSSION
A.

Failure to Exhaust – Procedural Default

The Prison Litigation Reform Act (“PLRA”) requires prisoners to exhaust their
administrative remedies before filing suit in court. 42 U.S.C. § 1997e(a). The PLRA “mandates
that an inmate exhaust such administrative remedies as are available before bringing suit to
challenge prison conditions.” Ross v. Blake, ___ U.S. ___, 136 S. Ct. 1850, 1854–555 (2016)
(internal citation omitted); see also Booth v. Churner, 532 U.S. 731 (2001) (same).
The “exhaustion requirement applies to all inmate suits about prison life, whether they
involve general circumstances or particular episodes, and whether they allege excessive force or
some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002).
The PLRA also mandates “proper exhaustion” of all the agency’s deadlines and other
procedural rules pertaining to its administrative remedy process. Woodford v. Ngo, 548 U.S. 81,
93 (2006). “‘[P]rison grievance procedures supply the yardstick’ for determining what steps are
required for exhaustion.” Williams v. Beard, 482 F.3d 637, 639 (3d Cir. 2007) (quoting Spruill v.
Gillis, 372 F.3d 218, 230 (3d Cir. 2004)). “[T]o properly exhaust administrative remedies,
prisoners must ‘complete the administrative review process in accordance with the applicable
procedural rules’” as they are “defined ... by the prison grievance process itself.” Jones v. Bock,
549 U.S. 199, 218 (2007) (quoting Ngo, 548 U.S. at 93). “[I]t is the prison’s [administrative
remedy] requirements, and not the PLRA, that define the boundaries of proper exhaustion.” Id. at
218. Failure to comply substantially with the procedural requirements of the applicable prison's
grievance system will result in a procedural default of the claim. Spruill, 372 F.3d at 227–32; see
also Williams, 482 F.3d at 639 (inmate “procedurally defaulted” when he failed to comply with
the requirements of the prison’s grievance procedures).

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Finally, “exhaustion is a question of law to be determined by a judge, even if that
determination requires the resolution of disputed facts.” Small v. Camden Cty., 728 F.3d 265,
269 (3d Cir. 2013).
In the present matter, Defendants argue that because Plaintiff invoked the phrase
“continued refusal” in his Grievance to describe the timing of Defendants’ failure to provide
HCV treatment, Plaintiff failed to satisfy all elements of the DOC grievance process, which
requires that a grievance specify an incident “date.” As a result of this omission, and despite the
fact that Plaintiff dated the form, Defendants argue Plaintiff failed to properly exhaust available
administrative remedies prior to filing this action, barring his pursuit of claims in this Court
pursuant to the PLRA. ECF No. 32 at 7-8.
The Court finds Defendants’ position unpersuasive. “Continued” imports an “ongoing”
activity or process, something occurring “without a break in continuity.” See e.g.
https://en.oxforddictionaries.com/definition/continued. In this instance, the Court finds
Plaintiff’s use of the phrase “continued refusal” refers to and includes the date of the grievance,
and thereby adequately places prison officials on notice of the date of the grieved of conduct, i.e.,
February 20, 2017, as well as the continuing nature of the conduct at issue. Accordingly,
Plaintiff has substantially complied with DOC procedural requirements. The Court further finds
that this grievance was timely appealed through all required levels of review and thus Plaintiff
has literally and properly exhausted all available administrative remedies so as to preserve
Plaintiff’s claims for judicial review pursuant to the PLRA. 2
The Court’s finding with regard to Grievance No. 665565 renders unnecessary detailed discussion of Plaintiff’s
failure to appeal for final review Grievance No. 672757. Plaintiff contends that because monetary relief is not
afforded through the grievance process, his failure to appeal Grievance No. 672757 to the SOIGA cannot constitute
procedural default. However, the law is clear that exhaustion is required under the PLRA regardless of the type of
relief sought and the type of relief available through administrative procedures. See Booth v. Churner, 532 U.S. 731,
741 (2001). Complete exhaustion is mandatory even if a prisoner is only seeking monetary damages. Smith v.
Maiorana, 629 F. App’x 402, 405 (3d Cir. 2015) (citing Nyhuis v. Reno, 204 F.3d 65, 67 (3d Cir. 2000)). In this
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B.

Statute of Limitations

Dr. Herbick seeks the entry of summary judgment on the alternative ground that
Plaintiff’s Complaint was filed beyond the applicable statute of limitations. Plaintiff’s claims
regarding the denial of medical treatment are asserted pursuant to Section 1983 and Pennsylvania
negligence law. Pennsylvania’s statute of limitations requires such personal injury claims to be
brought within two years of the accrual of the claim. 42 Pa.C.S.A. § 5524(7). In this instance, it
is apparent that Defendants most recently declared Plaintiff ineligible for treatment with DAA
medication due to a drug-related misconduct received on February 11, 2017. ECF No. 17 at 50.
Plaintiff’s Complaint was filed on December 1, 2017, well within two years of February 2017.
Accordingly, Defendant Herbik’s Motion to Dismiss or, in the Alternative, Motion for Summary
Judgment raising the statute of limitations is denied.

IV.

CONCLUSION

For the foregoing reasons, the Motion for Summary Judgment filed on behalf of Dr. Paul
Noel is properly denied, and the Motion to Dismiss, or in the Alternative Motion for Summary
Judgment filed on behalf of Dr. Michael Herbick is denied. Accordingly, the following Order is
entered:

instance, it is not disputed that Plaintiff failed to appeal the denial of Grievance No. 672757 to the SOIGA, and
therefore, in the absence of complete exhaustion as to Grievance No. 665565, Plaintiff would be precluded from
recovery of monetary damages. The interim grant of HCV treatment does not change this result, inasmuch as
Plaintiff also seeks monetary relief as compensation for the worsening of his condition.

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ORDER
AND NOW, this 17th day of May, 2017, upon consideration of the Motion for Summary
Judgment filed on behalf of Dr. Paul Noel, ECF No. 16, and the Motion to Dismiss, or in the
Alternative Motion for Summary Judgment filed on behalf of Dr. Michael Herbick, ECF No. 22,
as well as the briefs and exhibits filed in support and opposition thereto, it is HEREBY
ORDERED that said Motions are DENIED.

MAUREENP.
Y
CHIEF UNITED STATES MAGIST

cc:

All counsel ofrecord by Notice of Electronic Filing

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TE JUDGE