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 Motion for Summary Judgment filed by defendants John Kerestes, Theresa DelBalso, Joseph Silva, John Wetzel, Christopher Oppman, John Steinhart, and Dr. Paul Noel, (collectively, the "DOC Defendants"). (Doc. 299).^[1]

Through his Fourth Amended Complaint, Plaintiff raised six claims against select DOC Defendants for damages and injunctive relief, including claims for: deprivation of Plaintiffs Eighth Amendment right to medical care for hepatitis C against all DOC Defendants (Count I); deprivation of Plaintiffs Eighth Amendment right to medical care for a pervasive skin condition against defendants Kerestes, Wetzel and Noel (Count II); deprivation of Plaintiffs Eighth Amendment right to medical care for hyperglycemia against defendant Kerestes (Count III); medical malpractice for failure to treat Plaintiffs hepatitis C against defendants Oppman and Noel (Count V); medical malpractice for failure to treat Plaintiffs skin condition against defendants Oppman and Noel (Count VI); and deprivation of Plaintiffs First Amendment right of association against defendants Kerestes and DelBalso (Count VII). (Doc. 245).

In accordance with the parties' briefing, however, only claims against defendant Noel seeking compensatory and punitive damages for a violation of the Plaintiffs Eighth Amendment right to medical care for hepatitis C (Count I) and medical malpractice for failure to treat Plaintiffs hepatitis C (Count V) remain in contention. The Plaintiff otherwise concedes that summary judgment should be entered as to the other DOC Defendants for Counts I and V and as to all DOC Defendants for the additional four claims. (Doc. 330 at 8-9). For the reasons that follow, the Court will thus deny the DOC Defendants' Motion for Summary Judgment as to defendant Noel for Counts I and V, grant the Motion as to defendants Kerestes, Wetzel, Oppman, Steinhart, Delbalso, and Silva for Counts I and V, and grant the Motion in its entirety as to all defendants for Counts II, III, VI, and VII 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, assigned case number 3:15-CV-967 ("Abu-Jamal 1"), included defendant Kerestes as one of two named defendants. (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 Oppman and Steinhart, 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 prescribed 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 defendants Wetzel as Secretary of the Pennsylvania DOC, Silva as DOC Director of Bureau of Health Care Services, and Noel as DOC Bureau of Health Care Services Chief of Clinical Services and member of 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 Plaintiff's 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 DM 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 DM 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 DM 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 ("DMDs"), 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 Amended Complaint on January 17, 2017, in Abu-Jamal 1 adding Wetzel, Noel, and DelBalso as defendants, (Doc. 210).

Nevertheless on March 31, 2017, the defendants in Abu-Jamal 2 infor...