Abu-Jamal v. Kerestes

• Decision Date: 09 September 2021
• Docket Number: 3:15-CV-967
• Parties: MUMIA ABU-JAMAL, Plaintiff, v. JOHN KERESTES. Et al., Defendants.
• Court: U.S. District Court — Middle District of Pennsylvania

MUMIA ABU-JAMAL, Plaintiff, v. JOHN KERESTES. Et al., Defendants.

No. 3:15-CV-967

United States District Court, M.D. Pennsylvania

September 9, 2021

MEMORANDUM OPINION

Robert D. Mariani, United States District Judge

I. Introduction

The above-captioned matter reflects the consolidation of two civil rights actions filed by a Pennsylvania state prisoner Mumia Abu-Jamal, ("Plaintiff' or"Abu-Jamal"), arising out of the same set of facts. Presently before the Court is a Partial Motion for Summary Judgment filed by defendants Correct Care Solutions LLC, Dr. Jay Cowan, Dr. John Lisiak, Dr. Shaista Khanum, and physician assistant Scott Saxon, (collectively, the "Medical Defendants"). (Doc. 306).^[1]

Through his Fourth Amended Complaint, Plaintiff raised six claims against select Medical Defendants for damages and injunctive relief, including claims for: deprivation of Plaintiffs Eighth Amendment right to medical care for hepatitis C against defendants Cowan, Lisiak, Khanum, and Saxon (Count I); deprivation of Plaintiffs Eighth Amendment right to medical care for a pervasive skin condition against defendants Lisiak, Khanum, and Saxon (Count II); deprivation of Plaintiffs Eighth Amendment right to medical care for hyperglycemia against defendants Lisiak, Khanum, and Saxon (Count III); medical malpractice for failure to treat Plaintiffs hyperglycemia against defendants Lisiak, Khanum, and Saxon (Count IV); medical malpractice for failure to treat Plaintiffs hepatitis C against defendants Cowan, Lisiak, Khanum, and Saxon (Count V); and medical malpractice for failure to treat Plaintiffs skin condition against defendants Lisiak, Khanum, and Saxon (Count VI). (Doc. 245).

In accordance with the parties' briefing, however, only three claims remain in contention, including claims seeking compensatory and punitive damages against defendants Cowan, Lisiak, and Khanum for a violation of the Plaintiffs Eighth Amendment right to medical care for hepatitis C (Count I), defendants Khanum and Saxon for a violation of the Plaintiffs Eighth Amendment right to medical care for hyperglycemia (Count III), and defendants Cowan, Lisiak, and Khanum for medical malpractice for failure to treat Plaintiffs hepatitis C (Count V). The Plaintiff otherwise concedes that summary judgment should be entered as to defendant Saxon for Counts I and V, as to defendant Lisiak for Count III, and as to all Medical Defendants for the additional three claims and injunctive relief. (Doc. 332 at 11). For the reasons that follow, the Court will thus deny the Medical Defendants' Motion for Summary Judgment for defendant Cowan as to Counts I and V, grant the Motion in part for defendants Lisiak, Khanum, and Saxon as to Counts I and V, and grant the Motion in its entirety for all defendants as to Counts II, III, IV, and VI, and Plaintiffs claim for injunctive relief.

II. Procedural History^[2]

Plaintiff, Mumia Abu-Jamal, an inmate of the Pennsylvania Department of Corrections ("DOC") suffering from hepatitis C ("HCV"), a pervasive skin condition, and hyperglycemia, initiated proceedings through a Complaint filed on May 18, 2015, that asserted a violation of his First Amendment right to association and access to the courts. See (Doc. 1). This matter was assigned case number 3:15-CV-967 ("Abu-Jamal 1"). (Id.). Plaintiff was initially joined by two fellow inmates raising similar claims but proceeded alone once his fellow plaintiffs filed notices of voluntary dismissal. (Docs. 17, 18). On August 3, 2015, Plaintiff filed a Motion for Leave to File a "First Amended and Supplemental Complaint." (Doc. 21). The First Amended Complaint, which not only added Eighth Amendment claims and state law medical malpractice claims but also various defendants, including defendants Lisiak, Khanum, and Saxon, was adopted and became the operative complaint. (Doc. 57).

In light of the added claims set forth in his First Amended Complaint, Plaintiff filed a Motion for Preliminary Injunction on August 23, 2015, that asked the Court to require the defendants to:

1) immediately treat plaintiffs active hepatitis C infection with the latest direct acting anti-viral drugs; 2) immediately treat his skin condition, a manifestation of the hepatitis C, with zinc supplementation and Protopic cream; and 3) permit Mr. Abu Jamal to have an in-person examination by an independent physician of his own choosing under conditions that are appropriate for such examinations.

(Doc. 23 at 1). After Magistrate Judge Karoline Mehalchick issued a Report and Recommendation recommending that Plaintiffs Motion be denied, (Doc. 39), this Court held a three-day evidentiary hearing to make a final ruling as to the Motion, (Docs. 94, 95, 96). During this hearing, the Court reviewed the protocol maintained by the DOC and used when determining the treatment inmates with HCV receive, and found that in accordance with this protocol, a "Hepatitis C Treatment Committee has the ultimate authority" to decide the treatment provided to inmates suffering from HCV. (Doc. 191 at 11, 19).

In an Opinion dated August 31, 2016, this Court denied Plaintiffs Motion for Preliminary Injunction. (Id.). The Court concluded that as "[t]he named Defendants [were] not members of the Hepatitis C Treatment Review Committee" and this Committee alone had the ability to prescribe an anti-viral drug to treat Plaintiffs HCV, the Court could not "properly issue an injunction against the named Defendants, as the record contained] no evidence that they had authority to alter the interim protocol or its application to Plaintiff." (Id. at 22). The Opinion, however, did establish 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 21). As such, if the proper defendants were named in the operative complaint, "the Court believe[d] there [was] a sufficient basis in the record to find that the DOC's current protocol may well constitute deliberate indifference in that, by its own terms, it delays treatment until an inmate's liver is sufficiently cirrhotic" and "faces the imminent prospect of 'catastrophic' rupture." (Id. at 31).^[3]

Though Plaintiff had already filed a Second Amended Complaint in Abu-Jamal 1 by the time his Motion for Preliminary Injunction was denied, Plaintiff filed a separate action on September 30, 2016, under case number 3:16-CV-2000 ("Abu-Jamal 2"). This Complaint contained a single count for "Deprivation of Eighth Amendment Right to Medical Care for Hepatitis C," naming various defendants not previously named in Abu-Jamal 1, including defendant Correct Care Solutions and Correct Care Solutions's "representative on the Hepatitis C Treatment Committee." Abu-Jamal v. Wetzel, 3:16-CV-2000-RDM (M.D. Pa. Sept. 30, 2016) at (Doc. 1). On October 5, 2016, Plaintiff filed a Motion for Preliminary Injunction in Abu-Jamal 2 seeking the same relief as requested in the Motion for Preliminary Injunction in Abu-Jamal 1. Id. at (Doc. 7). The parties agreed that the Court could rely on the same evidence presented in the preliminary injunction hearing held by the Court in Abu-Jamal 1 in determining whether to grant or deny the Plaintiffs Motion in Abu-Jamal 2.

In an Opinion issued on January 3, 2017, this Court found that, despite the fact that the DOC replaced the interim protocol that was analyzed in Abu-Jamal 1 with a new protocol, "the new protocol completely bars those with chronic hepatitis C but without vast fibrosis or cirrhosis from receiving DAA medications." Id. at (Doc. 23 at 32). More specifically, the Court concluded that:

[t]he Hepatitis C Protocol deliberately delays treatment for hepatitis C through the administration of DAA drugs such as Harvoni, Sovaldi, and Viekira Pak despite the knowledge of Defendants that sit on the Hepatitis C Treatment Committee: (1) that the aforesaid DAA medications will effect a cure of Hepatitis C in 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.

In choosing a course of monitoring over treatment, [defendants] consciously disregarded the known risks of Plaintiffs serious medical needs, namely continued liver scarring, disease progression, and other hepatitis C complications.

Id. at (Doc. 23 at 20-21). As such, the Court held that Plaintiff had a reasonable likelihood of success on the merits of his claims. Id. at (Doc. 23 at 27-41). After determining that the other preliminary injunction factors also weighed in Plaintiffs favor, the Court granted Plaintiffs Motion. Id. at (Doc. 23 at 42-43). The Court thereafter enjoined the Abu-Jamal 2 defendants from enforcing the applicable hepatitis C protocol as it pertained to Plaintiff and directed the defendants to administer direct-acting antiviral drugs ("DAADs"), proven to treat HCV, to Plaintiff unless such medications were found to be contraindicated by a medical professional. Id. at (Doc. 24).

Following the Court's decision to grant Plaintiffs Motion for a Preliminary Injunction, however, the defendants in Abu-Jamal 2 filed Motions for Reconsideration Motions to Stay, and Notices of Appeal. Id. at (Docs. 29-31, 36, 37). As the Plaintiff thus continued to wait for treatment, he filed a Motion for Contempt in Abu-Jamal 2 against the defendants for failure to perform in accordance with the Court's Preliminary Injunction Order, id at (Doc. 53), and filed a Third...