IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Josh Clites, :
: No. 55 C.D. 2016
Appellant : Submitted: May 20, 2016
:
v. :
:
John E. Wetzel, Secretary PA. Doc; :
John Doe, Director BHCS; :
Dorina Varner, CGO; Trevor A. :
Wingard, Warden, SCI-SMR; :
Brian Hyde, CHCA at SCI-SMR; :
Marlene Enedy, RN, ICN, :
at SCI-SMR :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: July 28, 2016
Josh Clites appeals, pro se, the order of the Somerset County Court of
Common Pleas (trial court) denying his petition to proceed in forma pauperis and
dismissing his complaint pursuant to Pa. R.C.P. No. 240.1 We affirm.
1
Pa. R.C.P. No. 240 states, in pertinent part:
(b) A party who is without financial resources to pay the costs of
litigation is entitled to proceed in forma pauperis.
(c) Except as provided in subdivision (d) [(relating to parties
represented by an attorney)], the party shall file a petition and an
affidavit in the form prescribed by subdivision (h). The petition
(Footnote continued on next page…)
In November 2015, Clites filed a complaint under Section 1983 of the
Civil Rights Act of 1871, 42 U.S.C. §1983,2 in the trial court against John E.
Wetzel, Secretary of the Department of Corrections (Department), and a number of
Department employees (collectively, Defendants)3 to recover damages for the
(continued…)
may not be filed prior to the commencement of an action or
proceeding . . . .
***
(j)(1) If, simultaneous with the commencement of an action or
proceeding . . . a party has filed a petition for leave to proceed in
forma pauperis, the court prior to acting upon the petition may
dismiss the action [or] proceeding . . . if it is satisfied that the
action [or] proceeding . . . is frivolous.
An action is “frivolous” if it lacks any “‘arguable basis either in law or in fact.’” Bailey v.
Wakefield, 933 A.2d 1081, 1083 (Pa. Cmwlth. 2007) (quoting Pa. R.C.P. No. 240(j), comment ).
2
Section 1983 states, in relevant part:
Every person who, under color of any . . . regulation, custom, or
usage, of any State or Territory . . . subjects, or causes to be
subjected, any citizen of the United States . . . within the
jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution . . . shall be liable to the
party injured in an action at law, suit in equity, or other proper
proceeding for redress.
42 U.S.C. §1983. As the Supreme Court has explained, “th[is] section is not itself a source of
substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts
of the United States Constitution and federal statutes that it describes.” Baker v. McCollan, 443
U.S. 137, 144 n. 3 (1979).
3
The other named defendants are: John Doe, Director of the Department’s Bureau of
Health Care Services; Dorina Varner, the Department’s Chief Grievance Officer; Trevor
Wingard, the Warden at the State Correctional Institution at Somerset (SCI-Somerset); Brian
(Footnote continued on next page…)
2
improper care that he purportedly received while imprisoned at the State
Correctional Institution at Somerset (SCI-Somerset). Clites alleges that he
informed the Department that he had Hepatitis C when he was transferred to SCI-
Somerset in June 2014, and that he requested treatment and that he was screened
by medical staff “who took blood and informed [him] that as soon as they received
[his] medical records, that he would be called up to go over his medical history.”
Complaint at ¶11. He contends that he was again seen by medical staff in August
2014 for more blood work and was told “that his levels were moderately mild.” Id.
at ¶12. He states that when he requested treatment he was told “that he wouldn’t
be getting treatment because the SC/A st and SGP+/AL-1 levels are to[o] low and
with the price of medication [they’re] only treating the most extreme case[s].” Id.
Clites alleges that he again requested treatment in December 2014 and
was told that “‘currently all Hep[atitis]-C treatment is on hold until further
notice.’” Complaint at ¶13. Clites states that, as a result, he filed a grievance with
the Department “raising deliberate indifference, non[-]treatment, emotional
distress, mental anguish, humiliation, psychological stress and suffering daily
living activities” because “it is commonly known that failure to treat Hep[atitis]-C
can lead to liver failure and liver cancer.” Id. at ¶14. He asserts that the grievance
was initially denied and that his appeal was ultimately denied in May 2015. Id. at
¶¶15, 16.
Specifically, in upholding the initial response to Clites’ grievance, the
Department’s Chief Grievance Officer stated the following, in relevant part:
(continued…)
Hyde, the Corrections Health Care Administrator at SCI-Somerset; and Marlene Enedy, a
registered nurse at SCI-Somerset.
3
Your concern of not being provided proper medical care
for Hepatitis C was reviewed by the staff of the Bureau
of Health Care Services. They reviewed your medical
record and determined that the medical care provided
was reasonable and appropriate. The DOC/BHCS is re-
evaluating our treatment protocol for Hepatitis C given
the new guidance issued by the American Association of
Liver Diseases and the Infectious Diseases Society of
America. As a result, we will continue to monitor
patients diagnosed with Hepatitis while we evaluate our
treatment options moving forward and develop a new
treatment protocol. These clinical decisions are made by
your attending practitioner. You are encouraged to
participate in your treatment plan and to discuss your
concerns or changes of condition with a practitioner. No
evidence of neglect or deliberate indifference has been
found.
Complaint at Attachment E.
Clites alleges that in October 2015, he was again “called to medical
and seen by [a registered nurse] who felt around [his] stomach and informed him
that his liver felt inflamed [and] that his levels were moderately mild.” Complaint
at ¶17. He asserts that he asked about a liver biopsy and treatment for his Hepatitis
C and the nurse responded that the “stated levels don’t warrant a biopsy for a geno
type and further stated that the medication costs a thousand dollars a pill so unless
[he] is turning yellow, losing weight, retaining water, or losing his appetite, that he
would not be getting treatment” and “[t]hat only the most severe cases are being
treated.” Id. He states that he was informed that “his levels were determined to
be: SGOT/AST – 41; SGPT/ALT – 71” at that time and that his next check-up
was scheduled for July 2016. Id. at ¶¶18, 19; Exhibits F, G.
Based on the foregoing, Clites asserts that Defendants Hyde, Enedy,
and Wingard, are “deliberately indifferent” to his “serious medical needs” based on
“a policy, custom and routine practice” of denying treatment to inmates with
4
Hepatitis C based on the cost of treatment; Defendants Wetzel, Doe, and Varner,
are “deliberately indifferent” to him and similarly situated inmates through “a
policy, custom and routine practice” of denying treatment to inmates with Hepatitis
C because “it is commonly known that failure to treat Hep[atitis]-C leads to liver
failure and/or liver cancer” thereby reducing his and the other inmates’ life spans;
Defendants Wetzel and Doe have conspired to deny him and the other inmates
treatment “due to budgetary concerns” which places him and similarly situated
inmates “in danger of liver failure and/or liver cancer, reducing the possible length
of life”; and Defendants Wetzel, Doe, Varner, and Wingard have conspired to deny
him and similarly situated inmates “adequate medical care, based on a state[-]wide
policy, in violation of the First, Eighth and Fourteenth Amendments to the United
States Constitution.” Complaint at ¶¶20, 21.
Clites alleges that the deliberate indifference and conspiracy to
interfere with his constitutional rights have caused “mental anguish, and emotional
distress”; “increased risk of liver failure and/or liver cancer”; and “risk of
diminished quality of life from hepatic [encephalopathy] which [a]ffects [the]
nervous system.” Complaint at ¶22. Accordingly, he seeks $1,000,000.00 in
compensatory and punitive damages; court costs; declaratory judgment that the
failure to treat Hepatitis C is cruel and unusual punishment in violation of the
Eighth and Fourteenth Amendments; and any other relief that this Court “deems
just and proper in the interest of justice.” Id. at ¶23.4
4
It appears that Clites was released from custody and is no longer housed in a
Department facility. See https://www.vinelink.com/ (last visited June 24, 2016). However, the
Defendants have not sought to quash this appeal as moot and Clites alleges, inter alia, that their
actions have caused harm to his future health. Nevertheless, this change in Clites’ status does
not affect his stake in the outcome of this litigation or our ability to grant the requested relief.
Accordingly, we will not quash this appeal as moot.
5
Clites also filed an affidavit seeking in forma pauperis status in the
trial court, alleging that he is unable to pay the fees and costs of prosecuting his
civil action because of his financial condition. In December 2015, the trial court
filed an order denying Clites’ petition to proceed in forma pauperis and dismissing
the action, stating, in relevant part:
[U]pon review of the Complaint in the above-captioned
action, we determine [Clites’] claims are frivolous and
without merit pursuant to [Pa. R.C.P. No. 240(j)(1)]
which provides us authority to dismiss a cause of action
before acting upon a Petition to Proceed In Forma
Pauperis. [Clites] alleges Defendants were deliberately
indifferent in failing to provide medical treatment to his
“moderately mild” Hepatitis. The Complaint shows
medical staff continue to monitor [Clites’] condition and
that his levels do not warrant further treatment outside of
this continued monitoring. This conduct does not form
an actionable case for Deliberate Indifference. See
Christy v. Robinson, 216 F.Supp. 2d 398, 415-17 (D. N.J.
2002) (finding, as a matter of law, defendants who
adopted a course of treatment for plaintiff’s Hepatitis-C
did not deviate from standard medical practice to meet
the threshold for a deliberate indifference claim where
staff monitored plaintiff’s condition and determined he
had not reached the point where an intensive program of
drug therapy, such a interferon/ribavirin, would be
preferred over current monitoring of his enzymes).
Trial Court 12/4/15 Order.
In this appeal,5 Clites argues that the trial court erred in denying his
petition and dismissing this action as frivolous because he pled a prima facie claim
of deliberate indifference to his serious medical condition by alleging that
5
This Court’s scope of review of the trial court’s order denying a petition to proceed in
forma pauperis is limited to a determination of whether constitutional rights were violated, or
whether the trial court abused its discretion or committed an error of law. Williams v. Syed, 782
A.2d 1090 (Pa. Cmwlth. 2001).
6
Defendants failed to provide any treatment for his Hepatitis C, which caused his
condition to worsen, and that his Eighth Amendment rights were violated because
the Department’s refusal to treat inmates with Hepatitis C was due solely to cost
concerns.
As this Court has explained:
The United States Supreme Court held in Estelle v.
Gamble, 429 U.S. 97 [] (1976), that “deliberate
indifference to serious medical needs of prisoners
constitutes the ‘unnecessary and wanton infliction of
pain,’ proscribed by the Eighth Amendment.” Id. at 104
[] (internal citations omitted). The Court clarified that
claims of negligent diagnosis or treatment, disagreement
as to the course of treatment, and medical malpractice do
not rise to the level of a constitutional violation merely
because the patient is a prisoner. Id. at 106 [.] Rather,
“[i]n order to state a cognizable claim, a prisoner must
allege acts or omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs. It is
only such indifference that can offend the ‘evolving
standards of decency’ in violation of the Eighth
Amendment.” Id.
Whether the medical need of an inmate is
sufficiently serious to constitute an injury amounting to
cruel and unusual punishment is an objective inquiry. Id.
at 106–107[;] Farmer v. Brennan, 511 U.S. 825, 834 []
(1994). Common factors relied upon by the courts to
determine if a medical need is sufficiently serious to fall
within the ambit of the Eighth Amendment include
whether the medical need is: (i) one that has been
diagnosed by a physician as requiring treatment; (ii) one
that is so obvious that a lay person would easily
recognize the necessity for a doctor’s attention; (iii) one
where denial or delay of treatment causes an inmate to
suffer a life-long handicap or permanent loss; (iv) one
where denial or delay of treatment results in unnecessary
and wanton infliction of pain; (v) one that significantly
affects an individual’s daily activities; or (vi) one that
7
causes chronic and substantial pain. Chance v.
Armstrong, 143 F.3d 698, 702 (2d Cir. 1998); Monmouth
County Correctional Institutional Inmates v. Lanzaro,
834 F.2d 326, 347 (3d Cir. 1987).
The medical need alleged does not need to be
current to satisfy the sufficiently serious standard, but
may result from a condition of confinement that is sure to
or very likely to pose an unreasonable risk of serious
damage to future health. See, e.g., Helling v. McKinney,
509 U.S. 25, 35 [] (1993) (Eighth Amendment claim
could be premised upon future harm to health from
exposure to environmental tobacco smoke). To establish
a sufficiently serious medical need where the claim is
based upon harm to future health, an inmate must allege
both that the inmate has been exposed to an unreasonable
risk of serious damage to future health and that it would
violate contemporary standards of decency to expose
anyone unwillingly to such a risk. Id. at 36[.]
In addition to satisfying the objective component
of an Eighth Amendment claim, a prisoner must also
allege acts or omissions that evidence deliberate
indifference on the part of prison officials in order to
state a cognizable claim that the prisoner’s constitutional
right to be free from cruel and unusual punishment has
been violated. In Farmer v. Brennan, the Supreme Court
concluded that the inquiry into whether a prison official
was deliberately indifferent is a subjective one, requiring
the demonstration of a state of mind akin to criminal
recklessness, and held that a prisoner must establish that:
(i) the prison official knew of and disregarded an
excessive risk to inmate health or safety; (ii) the prison
official was aware of facts from which an inference could
be drawn that a substantial risk of serious harm exists;
and (iii) the prison official drew the inference. 511 U.S.
at 837, 840 [.] The Court also emphasized that the duty
of a prison official under the Eighth Amendment is to
ensure reasonable safety and that prison officials who
respond reasonably to the alleged risk cannot be found
liable under the Eighth Amendment, even where the
measures taken by prison officials failed to abate the
substantial risk. Id. at 844-845[.] Examples of
8
circumstances where a prison official has been found to
act with deliberate indifference include where the prison
official: (i) knows of a prisoner’s need for medical
treatment but intentionally refuses to provide it; (ii)
delays necessary medical treatment based on a non-
medical reason; (iii) prevents a prisoner from receiving
needed or recommended medical treatment; or (iv)
persists in a particular course of treatment in the face of
resultant pain and risk of permanent injury. Rouse v.
Plantier, 182 F.3d 192, 197 (3d Cir. 1999); Monmouth
County, 834 F.2d at 346-347.
Tindell v. Department of Corrections, 87 A.3d 1029, 1038-40 (Pa. Cmwlth. 2014).
Moreover, as we have explained:
The deliberate indifference test “affords
considerable latitude to prison medical authorities in the
diagnosis and treatment of the medical problems of
inmate patients. Courts will ‘disavow any attempt to
second-guess the propriety or adequacy of a particular
course of treatment . . . (which) remains a question of
sound professional judgment.’” Inmates of the Allegheny
County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979)
(citations omitted). Complaints about medical care
which “merely reflect a disagreement with the doctors
over the proper means” of treating the prisoner's medical
condition do not rise to the level of a constitutional
violation. Boring v. Kozakiewicz, 833 F.2d 468, 473 (3d
Cir. 1987)[, cert. denied, 485 U.S. 991 (1988)]. “Absent
a showing that [prison] officials have engaged in
constitutionally impermissible conduct, it is not in the
public’s interest for the court to usurp the Bureau of
Prisons' authority and micro-manage the medical needs
of a particular inmate.” Berman v. Lamer, 874 F.Supp.
102, 106 (E.D. Pa. 1995).
Kretchmar v. Pennsylvania Department of Corrections, 831 A.2d 793, 799 (Pa.
Cmwlth. 2003), appeal denied, 847 A.2d 1289 (Pa. 2004) (footnote omitted). See
also Lindsay v. Dunleavy, 177 F.Supp. 2d 398, 402 (M.D. Pa. 2001) (“‘[W]here a
prisoner has received some medical attention and the dispute is over the adequacy
9
of the treatment, federal courts are generally reluctant to second guess medical
judgment and to constitutionalize claims which sound in state tort law.’ Moreover,
a disagreement between the doctor and the plaintiff as to the medical diagnosis and
treatment does not constitute deliberate indifference.”) (citations omitted).
The allegations in Clites’ complaint do not establish a valid claim
under Section 1983. As outlined above, Clites’ blood was tested when he was
transferred to SCI-Somerset in June 2014, and again in August 2014, and he was
told “that his levels were moderately mild” and “that he wouldn’t be getting
treatment because the SC/A st and SGP+/AL-1 levels are to[o] low and with the
price of medication [they’re] only treating the most extreme case[s].” Complaint at
¶¶11, 12. Additionally, the decision denying his grievance appeal states that “the
Bureau of Health Care Services . . . reviewed your medical record and determined
that the medical care provided was reasonable and appropriate.” Id. at Attachment
E.
Clites was again examined by a registered nurse in October 2015, and
was told “that his liver felt inflamed,” but “that his levels were moderately mild”
and when he asked about a liver biopsy and treatment for his Hepatitis C, the nurse
responded that the “stated levels don’t warrant a biopsy for a geno type.”
Complaint at ¶17. When he inquired regarding his blood levels later that month,
he was informed that “his levels were determined to be: SGOT/AST – 41;
SGPT/ALT – 71,” and he was told that his next check-up was scheduled in July
2016. Id. at ¶¶17, 18; Attachments F, G.
The foregoing allegations are indicative of a disagreement between
Clites and the Department as to whether treatment is appropriate at this time for his
Hepatitis C. As noted above, this is the sort of disagreement over medical
10
treatment that does not give rise to a claim under the Eighth Amendment for
deliberate indifference. According to Clites’ allegations, the Department is aware
of and monitoring his Hepatitis C and the Defendants are not displaying deliberate
indifference to his serious medical condition. As alleged, and contrary to Clites’
argument on appeal, the treatment that he sought for his Hepatitis C was not
forthcoming based on his blood test results, and not due solely to cost concerns.
As a result, Clites’ complaint fails to state a claim under Section 1983 for violation
of his constitutional rights, and the trial court did not err in denying his petition to
proceed in forma pauperis and dismissing his complaint pursuant to Pa. R.C.P. No.
240(j)(1).
Accordingly, the trial court’s order is affirmed.
MICHAEL H. WOJCIK, Judge
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Josh Clites, :
: No. 55 C.D. 2016
Appellant :
:
v. :
:
John E. Wetzel, Secretary PA. Doc; :
John Doe, Director BHCS; :
Dorina Varner, CGO; Trevor A. :
Wingard, Warden, SCI-SMR; :
Brian Hyde, CHCA at SCI-SMR; :
Marlene Enedy, RN, ICN, :
at SCI-SMR :
ORDER
AND NOW, this 28th day of July, 2016, the order of the Somerset
County Court of Common Pleas dated December 4, 2015, at No. 714 CIV 2015 is
AFFIRMED.
__________________________________
MICHAEL H. WOJCIK, Judge