DAVIS v. WETZEL

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

KEVIN DAVIS,

Plaintiff, CIVIL ACTION NO. 1:18-CV-00804

v. (MEHALCHICK, M.J.)

JOHN WETZEL, et al.,

Defendants.

MEMORANDUM

This case was initiated by pro se prisoner-Plaintiff Kevin Davis (“Davis”), by filing a

complaint on October 27, 2017, pursuant to 42 U.S.C. § 1983. (Doc. 5). In his second

amended complaint (the “Complaint”), Davis brings an Eighth Amendment deliberate

indifference claim against the following Defendants: John E. Wetzel, Secretary of the

Pennsylvania Department of Corrections (“DOC”); Paul A. Noel, M.D. (“Dr. Noel”), Chief

of Clinical Services of the DOC’s Bureau of Healthcare Services; John Steinhart, Assistant

Medical Director of the Bureau of Health Care Services; Rich Wenhold, Coordinator of

Infection Control for the Bureau of Healthcare Services; Correct Care Solutions, LLC, the

contracted healthcare provider for the Department of Corrections; Dr. Jay Cowan, a Correct

Care Solutions representative; Joseph Silva, Director of the DOC’s Bureau of Health Care

Services; Nedra Grego,1 Corrections Healthcare Administrator at SCI-Fayette; N. Ranker, an

infectious care nurse at SCI-Fayette; and John Doe, Chief Counsel for the Hepatitis C

Treatment Committee. (Doc. 112, at 2-4). Davis alleges that all Defendants are members of

1 Although this Defendant is currently known as Nedra Rice (Doc. 89, at 1), for the

purposes of this memorandum the Court will continue to refer to her by her former last name:

Grego.

the Hepatitis C Treatment Committee (“the Committee”), which has adopted a policy in

violation of the Eighth Amendment and rejected his request for treatment for nonmonetary

reasons in deliberate indifference to his serious medical need to be treated for Hepatitis C.

(Doc. 112, at 2-5).

Pending before the Court is a motion for summary judgment filed by Defendants Dr.

Jay Cowan (“Cowan”) and Correct Care Solutions, LLC (“CCS”) (collectively, the “Correct

Care Defendants”). (Doc. 184). Correct Care Defendants aver that the record presents no

evidence that they were deliberately indifferent to Davis’s serious medical needs, including

his Hepatitis C infection. (Doc. 188, at 3-4). Specifically, Correct Care Defendants argue that

they were not deliberately indifferent to Davis’s medical condition because his medical

records reveal that his condition was continually monitored and treated when Davis was

considered a candidate for treatment. (Doc. 188, at 4). Correct Care Defendants assert that

Davis fails to present evidence to establish their personal involvement or evidence that

suggests CCS maintains a policy, practices, or custom of deliberate indifference. (Doc. 188,

at 17). Lastly, Correct Care Defendants argue that Davis has not properly exhausted his

administrative remedies pursuant to the Prisoner Litigation Reform Act (“PLRA”), 42 U.S.C.

§ 1997e. (Doc. 188, at 20).

For the reasons stated herein, the Court will grant the motion for summary judgment.

(Doc. 184).

I. SUMMARY OF MATERIAL FACTS

This factual background is taken from Correct Care Defendants’ statement of material

facts and accompanying exhibits. (Doc. 184-2; Doc. 185). Pursuant to Local Rule 56.1, Davis

has provided his response to Correct Care Defendants’ statement of facts and has provided

accompanying exhibits. (Doc. 195-1; Doc. 196). Where Davis disputes facts and supports

those disputes in the record, as required by Local Rule 56.1, those disputes are noted.

Pursuant to Local Rule 56.1, the Court accepts as true all undisputed material facts supported

by the record. Where the record evinces a disputed fact, the Court will take notice. In addition,

the facts have been taken in the light most favorable to Davis as the non-moving party, with

all reasonable inferences drawn in his favor.

A. PROCEDURAL HISTORY

Davis is an inmate currently incarcerated within the Pennsylvania DOC at the State

Correctional Institute at Fayette (“SCI-Fayette”). (Doc. 184, at 1). On October 30, 2017,

Davis filed a complaint initiating a civil rights action pursuant to 42 U.S.C. § 1983, alleging

claims under the Eighth Amendment for deliberate indifference regarding his treatment for

Hepatitis C. (Doc. 184, at 1).

On October 22, 2018, the undersigned United States Magistrate Judge issued a

Memorandum and Order granting two motions to dismiss that had been filed by CCS (Doc.

25; Doc. 50), dismissing the original complaint without prejudice. (Doc. 85; Doc. 86).

Specifically, the Court found that Davis failed to adequately plead how Defendants Wetzel,

Ranker, and Grego were personally involved in the constitutional wrongdoings he alleged.

(Doc. 85, at 5-10). The Court also found that Davis failed to demonstrate how CCS

established a policy, custom, or practice that gave rise to the Eighth Amendment violations

he complained of, as required for Monell liability under § 1983. (Doc. 85, at 10-13); see Monell

v. Dep't. of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978). The Court granted Davis

leave to file an amended complaint and emphasized that Davis’s amended pleading must aver

facts that specify “how each individual Defendant contributed to the allegations giving rise to

the complaint.” (Doc. 85, at 14). Davis filed the amended complaint on November 13, 2018.

(Doc. 87).

On November 27, 2018, Defendants Grego, Noel, Ranker, Wetzel, and Silver (“DOC

Defendants”) filed a partial motion to dismiss the amended complaint, along with a brief in

support thereof. (Doc. 89; Doc. 90). On the same day, CCS also filed a motion to dismiss and

brief in support. (Doc. 91; Doc. 92). Davis filed a brief in opposition to DOC Defendants’

motion on December 19, 2018, and a brief in opposition to CCS’s motion on December 20,

2018. (Doc. 94; Doc. 96). The undersigned issued a Memorandum and Order on February

15, 2019, granting the motions to dismiss and granting Davis leave to file a second amended

complaint. (Doc. 104; Doc. 105). This Court found that Davis failed to demonstrate how CCS

established a policy, custom, or practice giving rise to Monell liability under § 1983 and that

Davis failed to allege that Defendants Ranker and Grego acted with deliberate indifference.

(Doc. 105).

On February 27, 2019, Davis filed the Complaint, challenging the constitutionality of

the DOC’s interim Hepatitis C policy. (Doc. 112). Davis alleges that Correct Care Defendants

are members of the Hepatitis C Treatment Committee that is responsible for adopting the

Hepatitis C policy. (Doc. 112, at 3-4, 11). Davis claims that the Hepatitis C policy prevents

inmates without “vast fibrosis or cirrhosis or who do have fibrosis or cirrhosis” from receiving

direct-acting antiviral drug (“DAAD”) medications. (Doc. 112, at 5). Davis also asserts that

the Hepatitis C policy is deliberately indifferent to the known risk that he, and other prisoners

with Hepatitis C, will continue to suffer from complications including ascites, portal

hypertension, hepatic encephalopathy, and esophageal varices. (Doc. 112, at 1, 5, 9). Davis

challenges the application of the policy and the decision to deny him DAAD treatment despite

his serious illness. (Doc. 112, at 1, 9-12). Due to Defendants’ refusal to treat Davis with the

DAAD medications he requested, Davis alleges that he suffers from liver damage, abdominal

pain, daily rectal bleeding, fainting spells, and a skin condition. (Doc. 112, at 10-11).

Davis also claims that Correct Care Defendants are responsible for “a policy, practice

or custom of ignoring the serious medical needs of Pennsylvania prisoners to save funds.”

(Doc. 112, at 10-11). Davis claims that the consequence of their policies and customs is that

patients, including himself, suffer declining health including liver damage, abdominal pain,

rectal blood flow, passing out, and skin conditions. (Doc. 112, at 11). Further, Davis claims

that Defendant Cowan, as the Correct Care Solutions representative, is personally liable for

ensuring that the policy is followed. (Doc. 112, at 3).

As for relief, Davis seeks declaratory judgment that Defendants violated his “Eighth

Amendment right to medical care for Hepatitis C.” (Doc. 112, at 12). He also seeks to enjoin

the use of the DOC’s Hepatitis C policy, receive the curative DAAD medication he requested,

and obtain immediate treatment for his Hepatitis C-related skin complications. (Doc. 112, at

12). Davis additionally seeks damages for the harm caused to his liver by effectively ignoring

his request for Hepatitis C treatment and leaving his condition untreated. (Doc. 112, at 12).

On March 25, 2019, Correct Care Defendants filed a motion to dismiss the Complaint,

arguing that Davis has not stated a cognizable claim under 42 U.S.C. § 1983. (Doc. 116).

Specifically, Correct Care Defendants argue that the Complaint does not adequately plead

the existence of a constitutionally injurious policy, practice, or custom that can be attributed

to CCS. (Doc. 117, at 5). Correct Care Defendants further assert Davis alleges no personal

involvement by Cowan and that the extent of his alleged involvement is limited to a

supervisory role as liaison between the Committee and CCS. (Doc. 117, at 4-5). On February

25, 2020, the Court denied Correct Care Defendants’ motion to dismiss, finding that, at the

pleading stage, Davis adequately alleges the existence of an unconstitutional policy and facts

that indicate CCS played an active role in the implementations of the policy. (Doc. 149, at

11-12; Doc. 150). Further, the Court found that Davis adequately alleged facts to state a claim

against Cowan because he claims Cowan is a representative of CCS and a member of the

Hepatitis C Treatment Committee. (Doc. 149, at 13).

On March 12, 2021, Correct Care Defendants filed the instant motion for summary

judgment. (Doc. 184). The motion is fully briefed and ripe for disposition. (Doc. 185; Doc.

188; Doc. 195; Doc. 196; Doc. 197; Doc. 198; Doc. 200; Doc. 201).

B. DAVIS’S MEDICAL HISTORY

The events giving rise to Davis’s cause of action stem from the DOC’s Hepatitis C

policy, and the decision to deny him certain treatment pursuant to this policy.2 Davis was

diagnosed with Hepatitis C while incarcerated within the DOC, and after being transferred to

SCI-Smithfield, Davis suffered from related liver deterioration. (Doc. 112, at 5). As such, in

November of 1998, Davis alleges that DOC physicians determined he met the criteria for

Hepatitis C treatment and prescribed him Ribavirin and Interferon.3 (Doc. 112, at 5-6, 15).

Davis’s condition did not respond to these antiviral medications, however, and the DOC

2 The Court notes that Davis has submitted copies of certain records in support of his

amended complaint. (Doc. 112, at 14-23). These records document the disposition of

Grievance No. 664288, as well as other informal requests related to Davis’s Hepatitis C. As

Davis has incorporated these documents into the amended complaint by reference, the Court

considers them in the instant memorandum. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551

U.S. 308, 322 (2007) (Finding that under Rule 12(b)(6) the Court may consider “documents

incorporated into the complaint by reference, and matters of which a court may

take judicial notice.”).

3 Davis states that he was never treated in 1998, but that he was treated from 2003 to

2004 by Dr. Long at SCI-Smithfield. (Doc. 196, ¶ 6; Doc. 195-1, at 2).

eventually stopped this treatment in 2004. (Doc. 112, at 6, 15; Doc. 195-1, at 2). Thereafter,

in February 2007, Davis was transferred to SCI-Fayette, where he claims his Hepatitis C

worsened. (Doc. 112, at 6).

On September 17, 2015, Michael Herbik, D.O. (“Dr. Herbik”), examined Davis at the

Hepatitis C clinic.4 (Doc. 185, ¶ 6; Doc. 184-2, at 101). Dr. Herbik noted that treatment for

Hepatitis C treatment has been previously provided in 1998, but that treatment failed. (Doc.

185, ¶ 12; Doc. 184-2, at 99, 120). Dr. Herbik planned for Davis to remain in the queue for

treatment and placed an order for a Hepatitis C clinic follow-up to be scheduled for one year

and for new lab work to be done in eleven months. (Doc. 185, ¶ 12; Doc. 184-2, at 99, 120).

From December 2016 to March 2017, Davis was evaluated by medical staff for

complaints of a chest cold and bronchitis. (Doc. 185, ¶ 13, 17-21; Doc. 184-2, at 96, 96, 99,

110). On March 22, 2017, David Druskin, PA-C (“PA Druskin”), performed an annual

physical exam of Davis and ordered new lab work, including a test for Hepatitis C viral load.

(Doc. 185, ¶ 21; Doc. 184-2, at 96, 118). Davis had lab work performed on March 29, 2017,

which was positive for Hepatitis C with a viral load of 5,310,274. (Doc. 185, ¶ 25; Doc. 184-

2, at 14-16, 104-05). On April 19, 2017, PA Druskin reviewed the results of the lab work and

noted that he planned to bring the viral load count to Dr. Noel’s attention. (Doc. 185, ¶ 28;

Doc. 184-2, at 97). On May 17, 2017, Davis had a follow-up visit with Alice Maksin, CRNP

(“CRNP Maksin”), regarding his folliculitis and reported that his hair was growing back.

(Doc. 185, ¶ 29; Doc. 184-2, at 94). CRNP Maksin noted that Davis’s right jawline was

hypopigmented with scabbing although his hair was growing back and advised Davis to

4 Davis states that he was never treated by Dr. Herbik. (Doc. 196, ¶ 6).

continue the use of Cleocin gel and to follow up as needed. (Doc. 185, ¶ 29; Doc. 184-2, at

94). Medical staff continued to evaluate Davis regularly for his folliculitis and prescribe any

medication as necessary over the next year. (Doc. 185, ¶ 34, 43, 44, 46, 56, 64, 69, 75, 77).

On September 27, 2017, Dr. Herbik evaluated Davis at the Hepatitis C clinic, planned

for Davis to remain in the treatment queue, and again placed an order for a follow-up to be

scheduled in one year and new lab work to be done in eleven months. (Doc. 185, ¶ 42; Doc.

184-2, at 9, 115). On June 19, 2018, Dr. Herbik evaluated Davis at the Hepatitis C clinic and

placed an order for new lab work to be taken that month, including a blood panel, which was

completed on June 21, 2018. (Doc. 185, ¶ 78-79; Doc. 184-2, at 30-32). On July 6, 2018, Dr.

Herbik evaluated Davis at the Hepatitis C clinic for liver disease, noting that Davis had an

APRI score of 0.525 but that the liver disease was well controlled and unchanged. (Doc. 185,

¶ 80; Doc. 184-2, at 278-84). On October 24, 2018, Davis was screened for Hepatitis C

treatment and no exclusions to treatment were noted. (Doc. 185, ¶ 83; Doc. 184-2, at 270-74).

It was noted that Davis was previously treated with Ribavirin and Pegasys in February 2004

and that he had an APRI level of 0.541 and MELD score of 8. (Doc. 185, ¶ 83; Doc. 184-2,

at 270-74). On the same day, Dr. Paul Noel, chief of DOC Clinical Services, approved of

fibrosure testing.5 (Doc. 185, ¶ 84; Doc. 184-2, at 275).

On November 13, 2018, Dr. Noel conducted a final Hepatitis C evaluation, noting

that Davis’s fibrosis score was an F-4 and approving Davis for treatment with anti-viral

5 Davis disagrees, stating that the Hepatitis C Treatment Committee needed to

unanimously approve that testing. (Doc. 196, ¶ 84) (citing Mumia v. Wetzel, No. 3:16-CV-

2000, 2017 WL 34700, at *7-11 (M.D. Pa. Jan. 3, 2017)).

medication.6 (Doc. 185, ¶ 86; Doc. 184-2, at 269). On November 29, 2018, Davis received an

ultrasound of his liver, which revealed: hepatic parenchymal echotexture suggesting

steatosis/hepatocellular disease; no focal hepatic mass; no portal venous hypertension; no

ascites, splenomegaly or varices; and unremarkable biliary tree. (Doc. 185, ¶ 88; Doc. 184-2,

at 312). On December 18, 2018, Davis had a tele-medic evaluation with the Temple

University provider to discuss Hepatitis C treatment and planned to commence Zepatier for

twelve weeks, from December 24, 2018, to March 17, 2019. (Doc. 185, ¶ 91; Doc. 184-2, at

253-61). An order was placed for lab work to be obtained in week four, in January 2019, and

in week twelve, in March 2019. (Doc. 185, ¶ 91; Doc. 184-2, at 253-61).

On January 22, 2019, Davis performed lab work, which revealed that he was negative

for Hepatitis C. (Doc. 185, ¶ 93; Doc. 184-2, at 138-39). On February 5, 2019, CRNP

Donnelly evaluated Davis as a follow-up to his folliculitis and Hepatitis C, reporting that

Hepatitis C treatment shall continue and chronic clinic for liver disease was to be discontinued

as Davis was being treated for Hepatitis C. (Doc. 185, ¶ 95; Doc. 184-2, at 247-48). Dr. Herbik

evaluated Davis on February 14, 2019, for a routine follow-up of his folliculitis, noting that

Davis was to continue the use of Cleocin gel.7 (Doc. 185, ¶ 96; Doc. 184-2, at 242-43. On

March 19, 2019, Davis obtained lab work, which revealed he was negative for Hepatitis C.

(Doc. 185, ¶ 97; Doc. 184-2, at 136-37).

On April 11, 2019, twelve weeks after post-initiation of treatment, Davis attended the

Temple University treatment clinic for Hepatitis C. (Doc. 185, ¶ 98; Doc. 184-2, at 234-39).

6 Davis disagrees, stating that the Hepatitis C Treatment Committee needed to

unanimously approve that testing. (Doc. 196, ¶ 86) (citing Mumia v. Wetzel, No. 3:16-CV-

2000, 2017 WL 34700, at *7-11 (M.D. Pa. Jan. 3, 2017)).

7 See supra 4; (Doc. 196, ¶ 96).

Davis underwent treatment from December 24, 2018, to March 17, 2019. (Doc. 185, ¶ 98;

Doc. 184-2, at 234-39). It was noted that Davis reported few plaques on legs and face with

some itchy patches, and Davis was recommended to use antifungal cream for likely tinea and

to follow up with sick call. (Doc. 185, ¶ 98; Doc. 184-2, at 234-39). On May 30, 2019, Davis

obtained an ultrasound of his abdomen, which revealed: mildly heterogeneous fatty

echogenic liver, lower range of normal size, similar to prior study; no focal hepatic lesions;

no frank portal hypertension; no splenomegaly or ascites; and no cholelithiasis or biliary

dilation. (Doc. 185, ¶ 100; Doc. 184-2, at 311). On June 18, 2019, Dr. Herbik met with Davis

to discuss the results of the ultrasound and noted that it was stable.8 (Doc. 185, ¶ 102; Doc.

184-2, at 228-29). On June 25, 2019, Davis obtained lab work, which revealed he was negative

for Hepatitis C. (Doc. 185, ¶ 103; Doc. 184-2, at 134-35).

On July 1, 2019, CRNP Donnelly evaluated Davis for liver surveillance, ultrasound

results, and sick call where Davis reported that he had a lesion on his face and lower right leg

for ten years. (Doc. 185, ¶ 104; Doc. 184-2, at 226-227). CRNP Donnelly scheduled a

dermatology appointment. (Doc. 185, ¶ 104; Doc. 184-2, at 226-27). On July 11, 2019, Davis

was evaluated by the Temple University Clinic for Hepatitis C for a twenty-four post-initiation

of treatment follow-up. (Doc. 185, ¶ 105; Doc. 184-2, at 218-25). The assessment provided

that no Hepatitis C virus was detectable and scheduled a follow-up in fifty-two weeks. (Doc.

185, ¶ 105; Doc. 184-2, at 218-25). On July 23, 2019, Davis had a dermatology tele-medic

visit to evaluate his facial dermatitis and right leg rash, and the dermatologist recommended

daily application of Cleocin solution to facial areas and a biopsy of the leg lesion. (Doc. 185,

8 See supra 4; (Doc. 196, ¶ 102).

¶ 106; Doc. 184-2, at 310). On July 26, 2019, CRNP Donnelly noted that the plan was to

apply Cleocin solution daily to the facial areas, obtain a biopsy of the leg lesions, and

administer 40 mg of Kenalog and topical Diprolene cream. (Doc. 185, ¶ 107; Doc. 184-2, at

216-17). Davis obtained a biopsy of his right ankle lesion on July 31, 2019. (Doc. 185, ¶ 108;

Doc. 184-2, at 212-13). On September 9, 2019, PA Druskin evaluated Davis at the chronic

care clinic for liver disease, noting that the estimated date Davis contracted liver disease was

in 1995 and that his liver disease was well controlled and unchanged. (Doc. 185, ¶ 109; Doc.

184-2, at 203-11). On September 19, 2019, Darla Cowden, PA-C (“PA Cowden”), evaluated

Davis for his complaint that the biopsy site was draining and tender. (Doc. 185, ¶ 110; Doc.

184-2, at 201-02).

In October 2019, Davis was treated for new-onset diabetes.9 (Doc. 185, ¶ 112-18). On

November 26, 2019, Davis obtained an ultrasound of his abdomen, which revealed a normal-

sized liver and mild diffuse heterogeneous hyperechoic echotexture of the hepatic

parenchyma without focal solid mass lesions. (Doc. 185, ¶ 123; Doc. 184-2, at 350). On

February 27, 2020, PA Cowden evaluated Davis for chronic care clinic, addressing Davis’s

diabetes, hypertension, and liver disease, and noted that Davis was to return for liver chronic

clinic in six months.10 (Doc. 185, ¶ 125; Doc. 184-2, at 329-38). On March 13, 2020, PA

Cowden reviewed Davis’s medications and glucometers, noting that Davis was not showing

9 Davis clarifies that before October 20, 2019, he did not suffer from an underlying

diabetic condition and asserts that the onset of diabetes was triggered by the deprivation of

treatment for his Hepatitis C viral infection. (Doc. 196, ¶ 112); see supra 4.

10 Davis disagrees and asserts that PA Cowden discontinued his insulin after PA

Cowden was notified that Davis filed Grievance Nos. 6642988 and 853387. (Doc. 196, ¶ 125).

up for evening sticks and that PA Cowden planned to reduce his Lantus to 16 units.11 (Doc.

185, ¶ 126; Doc. 184-2, at 322-24). Davis obtained a liver ultrasound on May 27, 2020, which

revealed: normal liver size without focal hepatic mass; no portal hypertension; no biliary

ductal dilation or cholelithiasis; and no ascites, splenic varices, or splenomegaly. (Doc. 185,

¶ 128; Doc. 184-2, at 348). Davis performed lab work on June 30, 2020, which was negative

for Hepatitis C. (Doc. 185, ¶ 129; Doc. 184-2, at 315-317). On October 15, 2020, Davis was

evaluated by the chronic care clinic to address diabetes, dyslipidemia, and hypertension,

where Norvasc was replaced with Atenolol for hypertension, and his diabetes was noted as

being stable.12 (Doc. 185, ¶ 130; Doc. 184-2, at 354-62).

C. DAVIS’S GRIEVANCE FILLINGS

On March 13, 2014, Davis filed Grievance No. 501173, wherein he complained of an

issue with a marriage license. (Doc. 185, ¶ 2; Doc. 184-3, at 1-9). On March 22, 2014, Davis

filed Grievance No. 502631, wherein he complained that the mailroom instituted a policy

change and did not notify inmates of this change. (Doc. 185, ¶ 3; Doc. 184-3, at 10-19). On

July 2, 2014, Davis filed Grievance No. 516412, wherein he complained that the mailroom

destroyed his personal property. (Doc. 185, ¶ 4; Doc. 184-3, at 20-31). On October 11, 2014,

Davis filed Grievance No. 531519, wherein he complained that he was not being housed in a

safe environment with access to safe water and food. (Doc. 185, ¶ 5; Doc. 184-3, at 32-38).

On April 14, 2016, Davis filed Grievance No. 621833, wherein he complained that his

television antenna was broken during a cell inspection. (Doc. 185, ¶ 11; Doc. 184-3, at 39-66).

11 Davis disagrees and asserts that PA Cowden filed a false report, citing Grievance

No. 863027. (Doc. 196, ¶ 126).

12 Davis disagrees, citing Grievance No. 874022. (Doc. 196, ¶ 130).

On February 10, 2017, Davis filed Grievance No. 664288, wherein he complained that

SCI-Fayette has a policy not to treat prisoners who have Hepatitis C. (Doc. 185, ¶ 14; Doc.

184-3, at 71). An Initial Review Response to the grievance, issued on February 10, 2017,

denied the grievance because the Hepatitis C Treatment Committee found that Davis did not

meet the required criteria to be approved for treatment. (Doc. 185, ¶ 15; Doc. 184-3, at 72).

Davis appealed the initial denial of the grievance to the superintendent on March 12, 2017.

(Doc. 185, ¶ 16; Doc. 184-3, at 73). On March 24, 2017, Joseph Trempus, Major of Unit

Management, upheld the initial denial of the grievance.13 (Doc. 185, ¶ 23; Doc. 184-3, at 74).

Davis filed a final appeal of the grievance to the Secretary’s Office of Inmate Grievances &

Appeals (“SOIGA”) on March 28, 2017. (Doc. 185, ¶ 24; Doc. 184-3, at 75-76). On April 13,

2017, SOIGA referred Grievance No. 664288 to the Bureau of Health Care Services.14 (Doc.

185, ¶ 26; Doc. 184-3, at 70). On May 17, 2017, the Bureau of Health Care Services wrote to

SOIGA regarding its review of the grievance, stating that the Bureau determined the medical

care provided to Davis was reasonable and appropriate, that Davis was not a candidate for

treatment, and that there is no evidence of neglect or deliberate indifference.15 (Doc. 185, ¶

30; Doc. 184-3, at 68). On May 31, 2017, SOIGA upheld the lower denials of the grievance.

(Doc. 185, ¶ 31; Doc. 184-3, at 67).

13 Davis disagrees and asserts that the initial denial of the grievance was issued by

Joseph Tempus, Major of Unit Management. (Doc. 196, ¶ 23; Doc. 195-1, at 4).

14 Davis disagrees and asserts that SOIGA referred the grievance to Richard Wenhold,

Infection Control Coordinator, who at the time of referral was a member of the Hepatitis C

Treatment Committee. (Doc. 196, ¶ 26; Doc. 195-1, at 5, 6).

15 Davis clarified what the response by the Bureau of Health Care Services provided.

(Doc. 196, ¶ 30; Doc. 195-1, at 8).

II. MOTION FOR SUMMARY JUDGMENT STANDARD

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be

granted only if “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(a). A fact is “material” only if it might

affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A

dispute of material fact is “genuine” if the evidence “is such that a reasonable jury could return

a verdict for the non-moving party.” Anderson, 477 U.S. at 248. In deciding a summary

judgment motion, all inferences “should be drawn in the light most favorable to the non-

moving party, and where the non-moving party’s evidence contradicts the movant’s, then the

non-movant’s must be taken as true.” Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir.

1994).

A federal court should grant summary judgment “if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is entitled to a

judgment as a matter of law.” Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000).

The Court need not accept mere conclusory allegations, whether they are made in the

complaint or a sworn statement. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990). In

deciding a motion for summary judgment, the court’s function is not to make credibility

determinations, weigh evidence, or draw inferences from the facts. Anderson, 477 U.S. at 249.

Rather, the court must simply “determine whether there is a genuine issue for trial.” Anderson,

477 U.S. at 249.

“Although the party opposing summary judgment is entitled to the ‘benefit of all

factual inferences in the court's consideration of a motion for summary judgment, the

nonmoving party must point to some evidence in the record that creates a genuine issue of

material fact.’” Velentzas v. U.S., No. 4: 07-CV-1255, 2010 WL 3896192, at *7 (M.D. Pa. Aug.

31, 2010) (quoting Goode v. Nash, 241 F. App’x 868, 868 (3d Cir. 2007)) (citation omitted); see

also Beenick v. LeFebvre, 684 F. App’x 200, 206 (3d Cir. 2017) (stating the purpose of requiring

parties to cite to particular parts of the record in their briefs about a motion for summary

judgment is to “assist the court in locating materials buried in a voluminous record”) (quoting

Fed. R. Civ. P. 56(c)(1)(A)). The opposing party “cannot rest solely on assertions made in the

pleadings, legal memorandum, or oral argument.” Velentzas, 2010 WL 3896192, at *7

(quoting Goode, 241 F. App’x at 868). If the non-moving party “fails to make a showing

sufficient to establish the existence of an element essential to [the non-movant's] case, and on

which [the non-movant] will bear the burden of proof at trial,” Rule 56 mandates the entry of

summary judgment because such a failure “necessarily renders all other facts immaterial.”

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Jakimas v. Hoffmann–La Roche, Inc., 485

F.3d 770, 777 (3d Cir. 2007).

III. DISCUSSION

In their motion for summary judgment, Correct Care Defendants argue that the record

lacks evidence showing that Davis did not receive constitutionally appropriate medical care;

that the record lacks evidence showing Correct Care Defendant’s actions rose to the level of

an Eighth Amendment violation; and that Davis failed to properly exhaust his administrative

remedies pursuant to PLRA. (Doc. 188, at 2-3).

A. EXHAUSTION OF ADMINISTRATIVE REMEDIES

In moving for summary judgment, Correct Care Defendants assert that Davis did not

exhaust the grievance process as it pertains to his claims against Correct Care Defendants,

that Davis did not seek monetary relief “as required by the DOC policy,” and that Davis is

thus precluded from seeking claims against Correct Care Defendants. (Doc. 188, at 20-26).

Davis argues that the prison officials that handled Grievance No. 664288 waived their failure

to exhaust defense by not rejecting the grievance for a procedural default and addressing the

grievance on its merits. (Doc. 195, at 17). Further, Davis argues that the Grievance System

Policy did not put him on notice that monetary relief was a required pleading in the grievance

process. (Doc. 195, at 23).

In 1996, Congress enacted the Prison Litigation Reform Act of 1995 (“PLRA”). 42

U.S.C. § 1997e. The PLRA mandates that prisoners exhaust all available administrative

remedies prior to initiation of a suit under § 1983 for deprivation of Constitutional rights. 42

U.S.C. § 1997e(a). Previously discretionary, the PLRA made unexhausted claims

unreviewable by the District Courts. See Booth v. Churner, 532 U.S. 731, 739 (2001). Although

exhaustion is mandatory under the PLRA, proper exhaustion is an affirmative defense that

must be pleaded and proven by the defendant. Ahmed v. Dragovich, 297 F.3d 201, 209 (3d Cir.

2002); see also Ray v. Kertes, 285 F.3d 295 (3d Cir. 2002).

Courts may take judicial notice of the Pennsylvania DOC’s 2017 Inmate Handbook

(effective May 1, 2015) and policy statement, DC-ADM 804, captioned Inmate Grievance

System (“IGS”), which sets forth the relevant procedures for inmates to file a grievance. (Doc.

195-1, at 19); see Ali v. Superintendent SCI Camp Hill, No. 1:14-CV-1851, 2015 WL 5913197, at

*3 (M.D. Pa. Oct. 7, 2015) (internal citations omitted). The IGS requires a concern about

prison life to be filed initially with the Facility Grievance Coordinator. DC-ADM 804 §

1(A)(5). Specific requirements of what the inmate must state in a grievance are identified in

DC-ADM 804 § 1(A)(11), including a requirement that “if the inmate desires compensation

or other legal relief normally available from a court, the inmate must request the specific relief

sought in his/her initial grievance.” DC-ADM 804 § 1(A)(11)(d). If the inmate receives an

unfavorable response to his initial filing, he must appeal within fifteen working days to the

Facility Manager. DC-ADM 804, § 2(A)(1)(a-b). If the inmate receives an unfavorable

response from the Facility Manager's review, he must appeal within fifteen working days to

the Final Review. DC-ADM 804, § 2(B)(1)(b). A proper appeal to Final Review must include

a written appeal to the SOIGA. DC-ADM 804 § 2(B)(1)(j)(5).

Even where the relief sought is unavailable through administrative remedies, prisoners

must pursue their claims through prison channels prior to initiation of litigation in federal

courts. See Woodford v. Ngo, 548 U.S. 81, 85 (2006). Courts within the Third Circuit and the

Middle District have consistently imposed a procedural default component on the exhaustion

requirement that requires inmates to “fully satisfy the administrative requirements of the

inmate grievance process before proceeding into federal court.” McClintic v. Bickell, No. 1:14-

CV-2005, 2015 WL 4207229, *3 (M.D. Pa. July 10, 2015) (citing Spruill v. Gillis, 372 F.3d 218

(3d Cir. 2004)). “Inmates who fail to fully, or timely, complete the prison grievance process,

or who fail to identify the named defendants, are barred from subsequently litigating claims

in federal court.” McClintic, 2015 WL 4207229, at *3 (citing Spruill, 372 F.3d 218). Indeed, an

“untimely or otherwise procedurally defective administrative grievance” fails to satisfy the

exhaustion requirement of the PLRA and the failure to properly “exhaust administrative

remedies” is a bar to “filing suit in federal court.” See Woodford, 548 U.S. at 83-84, 92.

The PLRA does not impose a name-all defendants requirement, and “exhaustion is

not per se inadequate simply because an individual later sued was not named in the

grievances.” Jones v. Bock, 549 U.S. 199, 217, 219 (2007); 42 U.S.C. § 1997(e). Rather, the

inmate is required to comply with the requirements of the prison's grievance system. Jones,

549 U.S. at 219. DC-ADM 804 provides that “[t]he inmate must include a statement of the

facts relevant to the claim” in his grievance. DC-ADM 804(1)(A)(11). In Spruill, the inmate-

plaintiff did not name a party against whom he later tried to bring a civil rights action. 372

F.3d at 234. The court found that an unexplained failure to identify a responsible prison

official in a grievance may constitute a procedural default of the claim. Spruill, 372 F.3d at

234. Thus, in the absence of any justifiable excuse, a Pennsylvania inmate's failure to properly

identify a defendant constitute[s] a failure to properly exhaust his administrative remedies[.]”

Williams, 146 F. App’x at 557.

The broad rule favoring full exhaustion admits of one, narrowly defined exception.

“There is one exception to the mandatory exhaustion requirement: administrative remedies

must be available to the prisoner.” Downey v. Pa. Dept. of Corr., 968 F.3d 299, 305 (3d Cir.

2020) (citing Ross v. Blake, 578 U.S. 632, 641 (2016)); see also Johnson v. Wireman, 809 F. App'x

97, 100 (3d Cir. 2020) (“[A] prisoner need exhaust only available administrative remedies.”

(internal quotations omitted)). If an administrative remedy “operates as a simple dead

end[,] ... is so opaque that it becomes, practically speaking, incapable of use, or when prison

administrators thwart inmates from taking advantage of a grievance process through

machination, misrepresentation or intimidation” it is considered unavailable. Shifflett v.

Korzniak, 934 F.3d 356, 365 (3d. Cir. 2019) (internal quotations omitted); see also Downey, 968

F.3d at 305; Ross, 578 U.S. at 642. If the actions of prison officials directly caused the inmate's

procedural default on a grievance, the inmate will not be held to strict compliance with this

exhaustion requirement. See Camp v. Brennan, 219 F.3d 279 (3d Cir. 2000) (finding

administrative remedies “unavailable” when correctional officers told the prisoner that his

grievances would not reach the Grievance Coordinator). However, an inmate's failure to

exhaust will only be excused “under certain limited circumstances.” Harris v. Armstrong, 149

F. App'x 58, 59 (3d Cir. 2005).

Correct Care Defendants seek dismissal of Davis’s claims, arguing that, although

Davis completed the grievance process in its entirety for Grievance No. 66428, Davis failed

to “identify [Defendants] Dr. Cowan or CCS at any stage of the review process for Grievance

No. 664288, the one grievance he pursued through final review regarding Hepatitis C.” (Doc.

185, at 22). Additionally, Correct Care Defendants argue that Davis is “foreclosed from

seeking monetary damages in this action because he did not include a request for such relief

in his initial grievance as required by DOC Policy, DC-ADM 804.” (Doc. 185, at 25).

Davis has pursued six grievances to the final stage of appeal in the Pennsylvania DOC

grievance process, however, Grievance No. 664288 is the only one related to Davis’s

treatment for Hepatitis C. (Doc. 185, ¶ 14; Doc. 184-3, at 71). As discussed supra, Grievance

No. 664288 stated:

The SCI Fayette has a policy not to treat prisoners in their care, custody and

control who have the Hepatitis C virus, notwithstanding a court ruling for the

DOC to provide the latest antiviral medication that cures the illness before

advanced liver damage.

On February 6, 2017, in response to the undersigne[d] inquiry for treatment

with HARVONI/medication that has been found to cure Hepatitis C, the

undersign[ed] was advised that a committee in on at the SCI Fayette has not

decided on treatment for the undersign[ed], notwithstanding the federal courts

have ruled that treatment must be provided before advanced liver damage and

the DOC must provide the latest antiviral medication that cures the illness.

(Doc. 185, ¶ 14; Doc. 184-3, at 71).

On February 10, 2017, the grievance was initially denied because “[t]here is a policy in place

for the [DOC] regarding the treatment of inmates with Hepatitis C,” and the Hepatitis C

Treatment Committee found that Davis did not meet the required criteria to be approved for

treatment upon review of Davis’s lab work and testing. (Doc. 185, ¶ 15; Doc. 184-3, at 72).

Appealing the initial denial, Davis argued that he be treated “with the new drug that cures

[Hepatitis C] before liver damage occurs,” in accordance with Judge Mariani’s ruling. (Doc.

184-3, at 73). On March 24, 2017, Joseph Trempus, Major of Unit Management, upheld the

initial denial of the grievance. (Doc. 184-3, at 74).

Davis filed a final appeal of the grievance to the Secretary’s Office of Inmate

Grievances & Appeals (“SOIGA”) on March 28, 2017. (Doc. 184-3, at 75-76). On April 13,

2017, SOIGA referred Grievance No. 664288 to the Bureau of Health Care Services. (Doc.

184-3, at 70). On May 17, 2017, the Bureau of Health Care Services wrote to SOIGA

regarding its review of the grievance, stating that the Bureau determined that the medical care

provided to Davis was reasonable and appropriate, that Davis was not a candidate for

treatment, and that there is no evidence of neglect or deliberate indifference. (Doc. 185, ¶ 30;

Doc. 184-3, at 68). The Final Appeal Decision was issued on May 31, 2017, and found as

follows:

Your issue with not being provided proper medical care for Hepatitis C was

reviewed by the staff at the Bureau of Health Care Services. The BHCS

reviewed the medical record and determined the medical care provided was

reasonable and appropriate. The DOC has updated its protocol for treating

Hepatitis C. You are not currently a candidate for treatment in accordance with

the protocol and will continue to be monitored in chronic clinic as determined

by your treatment plan. There is an orderly progression that is required before

treatment with certain tests, etc. so, as you move ahead, you will be included

in these tests as part of your work up prior to treatment. You are encouraged to

participate in your treatment plan and to discuss your concerns or changes with

a practitioner. There is no evidence of neglect or deliberate indifference has

been found. Therefore, your requested relief is denied.

(Doc. 185, ¶ 31; Doc. 184-3, at 67).

It is undisputed that Davis’s Grievance No. 664288 did not name Correct Care

Defendants or request any kind of monetary relief. To refute the motion for summary

judgment, Davis asserts that he was “precluded from naming [Correct Care Defendants] in

Grievance No. 664288 by their names because the Hepatitis C policy only refers to the

Defendant[s] as the Hepatitis C Treatment Committee.” (Doc. 200, at 4). Davis relies on the

case of Abu-Jamal v. Kerestes, No. 3:15-CV-00967, 2016 WL 4574646 (M.D. Pa. Aug. 31,

2016), where this Court found that, after receiving testimony from Dr. Noel and reviewing

the Hepatitis C policy, it could not determine the named members of the Hepatitis C

Treatment Committee. Abu-Jamal, 2016 WL 4574646, at *11. In that case, Dr. Noel testified

that the Committee consists of at least four people: himself, as “the Chief of Clinical Services,

the representative from the medical contractor, CCS, Infectious Control nurse, the Assistant

Medical Director for the DOC, and anyone we have might invite to participate in any difficult

cases.” Abu-Jamal, 2016 WL 4574646, at *11.

Considering the prior testimony of Dr. Noel in the Abu-Jamal decision and given the

circumstances of this case, the Court concludes that failure to name Correct Care Defendants

does not amount to a procedural default barring Davis’s claims. See Abu-Jamal, 2016 WL

4574646, at *11. Although Davis’s Grievance No. 664288 may have been procedurally

defaulted, the prison excused this default by investigating the grievance on the merits at the

highest level. (Doc. 184-3, at 67). The prison was alerted to the problems Davis was alleging

and, therefore, the prison had the opportunity to remedy this problem. Thus, Davis has

properly exhausted his administrative remedies.

In sum, the Court finds that Davis has properly exhausted his administrative remedies.

(DOC. 184).16

B. EIGHTH AMENDMENT DELIBERATE INDIFFERENCE CLAIMS

In support of their motion for summary judgment, Correct Care Defendants argue that

Davis’s claims that they were deliberately indifferent to his serious medical needs are

16 Davis’s claim for monetary damages remains before the Court, and with that claim,

the question of whether Davis had to grieve the monetary damages he is currently seeking

prior to filing this federal lawsuit. Citing the Third Circuit decision in Spruill, Davis contends

that he was not provided notice that monetary relief was a requirement in initial grievances

because there is no section in the Inmate Handbook regarding monetary relief for grievances.

(Doc. 195, at 23); see 327 F.3d at 233-34. The Court finds that Davis’s reliance on Spruill is

misplaced. The version of DC-ADM 804 in effect when Davis filed his initial grievance

specifically stated: “If the inmate desires compensation or other legal relief normally available

from a court, the inmate must request the specific relief sought in his/her initial grievance.” DC-ADM

804 § 1(A)(11)(d) (emphasis added). When the Third Circuit decided Spruill, the court rejected

a procedural default claim based on an inmate's failure to specifically request monetary relief

because “the grievance policy in effect at that time permitted—but did not require—an inmate

to identify the relief sought (including monetary relief) in his grievance.” Wright v. Sauers, 729

F. App’x 225, 227 (3d Cir. 2018). “Subsequently, the Prison amended its policy to include the

mandatory language deemed lacking in Spruill,” using essentially identical language to what

was suggested in the opinion. Wright, 729 F. App’x at 227. The Third Circuit in Wright upheld

the district court's determination that “[the plaintiff] procedurally defaulted his claim for

money damages by failing to request such relief in his grievance” because the “requirement is

now mandatory.” Wright, 729 F. App’x at 227. Therefore, the grievance policy clearly requires

that Davis requested compensation when he filed the initial grievance. See DC-ADM 804 §

1(A)(11). Since, “[i]t is the prison's requirements, and not the PLRA, that defines the

boundaries of proper exhaustion,” a prisoner who fails to request monetary damages in the

grievance process is barred from bringing a claim for monetary relief in federal court. Davis

has not proffered or argued that his situation was urgent or emergent or that he was otherwise

unable to exhaust the grievance process. Smith v. Sec'y of Pa. Dep't of Corr., No. 18-1240, 2018

WL 4771778, at *1 (3d Cir. 2018) (citing Jones, 549 U.S. at 218 ); see Krushin v. SCI Waymart,

No. 4:17-CV-1545, 2019 WL 1141691, at *3-4 (M.D. Pa. Jan. 29, 2019); Wright, 729 F. App’x

at 227. It is undisputed that Davis failed to request monetary relief in Grievance No. 664288.

(Doc. 184-3, at 71). As such, Davis's requests for monetary damages against Correct Care

Defendants are barred. See Wright, 729 Fed. App'x at 227; Krushin, 2019 WL 1141691, at *3;

Sanders v. Beard, No. 3:09-CV-1384, 2013 WL 2650215, at *4 (M.D. Pa. June 13, 2013); cf.

Downey v. Pennsylvania Department of Corrections, 968 F.3d 299, 307 (3d Cir. 2020) (inmate not

required to exhaust administrative remedies prior to requesting monetary relief in an urgent

or emergency situation).

unsupported by the record evidence. (Doc. 188, at 4). Correct Care Defendants assert that

contrary to Davis’s allegations, the record evidence demonstrates that Davis received regular

and appropriate medical treatment for Hepatitis C and was successfully treated and cured.

(Doc. 188, at 16). Additionally, Correct Care Defendants assert that the record is devoid of

evidence that Cowan was personally involved in the decision (nor was he personally involved

with care) as to whether to approve Davis for DAAD treatment.17 (Doc. 188, at 16). Davis

responds that Correct Care Defendants, as members of the Hepatitis C Treatment Committee,

deliberately denied providing treatment to Davis without justification and with the knowledge

that delay of treatment would worsen Davis’s medical condition. (Doc. 195, at 9-10).

To establish an Eighth Amendment medical claim, a plaintiff “must show (i) a serious

medical need, and (ii) acts or omissions by prison officials that indicate deliberate indifference

to that need.” Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003) (citing

17 It is well-settled that “a defendant in a civil rights action must have personal

involvement in the alleged wrongs.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)

(citing Parratt v. Taylor, 451 U.S. 527, 537 n.3 (1981) ). A defendant cannot be held liable in a

§ 1983 action on the theory of respondeat superior. Rode, 845 F.2d at 1207; Flowers v. Phelps, 514

F. App'x 100, 102 (3d Cir. 2013). Instead, a plaintiff must allege that the defendant either

directed or had actual knowledge of and acquiesced in the alleged conduct. See Atkinson v.

Taylor, 316 F.3d 257, 270 (3d Cir. 2003) (citing Rode, 845 F.2d at 1207). A court may infer

that the defendant had contemporaneous knowledge from the surrounding circumstances;

however, “the knowledge must be actual, not constructive.” Chavarriaga v. N.J. Dep't of Corr.,

806 F.3d 210, 222 (3d Cir. 2015) (citing Baker v. Monroe Twp., 50 F.3d 1186, 1194 (3d Cir.

1995)). Fairly construed, Davis’s Complaint alleges that Cowan, as a member of the Hepatitis

C Treatment Committee, deliberately chose to deny treatment, or acquiesce to such denial,

even though the Committee knew of the dangers that could come from delaying treatment for

Hepatitis C. (Doc. 112, at 11). The Court agrees that a review of the summary judgment

pleadings and all other documents in the records presents a lack of any evidence suggesting

Cowan’s involvement with Davis. However, Davis alleges that Cowan is part of the Hepatitis

C Treatment Committee, which makes the ultimate decision to approve or deny treatment

for inmates. (Doc. 112, at 11). Therefore, at this stage, Davis has successfully alleged the

involvement of Cowan with respect to his Eighth Amendment claims.

Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)). Therefore, Davis must establish that

Correct Care defendants acted with deliberate indifference to the treatment of his Hepatitis

C. See Estelle v. Gamble, 429 U.S. 97, 104 (1976). When the Court views the facts in the light

most favorable to him, Davis does not meet this burden.

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. Institutional Inmates v. Lanzaro, 834 F.2d 326, 347

(3d Cir. 1987). A prison official acts with deliberate indifference to an inmate's serious medical

needs when he “knows of and disregards an excessive risk to inmate health or safety; the

official must both be aware of facts from which the inference could be drawn that a substantial

risk of serious harm exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S.

825, 837 (1994). Deliberate indifference is manifested by an intentional refusal to provide

care, delayed medical treatment for non-medical reasons, denial of prescribed medical

treatment, denial of reasonable requests for treatment that results in suffering or risk of injury,

or “persistent conduct in the face of resultant pain and risk of permanent injury.” Durmer v.

O'Carroll, 991 F.2d 64, 68 (3d Cir. 1993); White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990).

The deliberate indifference prong of an adequacy of care claim, in particular, contains

both an objective component, the “adequacy of the medical care[,]” and a subjective

component, the “individual defendant's state of mind.” Pearson v. Prison Health Serv., 850 F.3d

526, 536 (3d Cir. 2017). “[A] plaintiff must set forth evidence of an objectively serious medical

need. A medical need qualifies as serious ... if ... it is one that has been diagnosed by a

physician as requiring treatment or is so obvious that a lay person would easily recognize the

necessity for a doctor's attention.” Young v. Kazmerski, 266 F. App'x 191, 193 (3d Cir. 2008)

(citing Lanzaro, 834 F.2d at 346-47) (quotations omitted). Here, there is no real dispute by the

parties as to the seriousness of Davis's medical needs. Rather, the issue is whether or not

Correct Care Defendants were deliberately indifferent to that need.

Where, as here, “a prisoner has received some amount of medical treatment, it is

difficult to establish deliberate indifference, because prison officials are afforded considerable

latitude in the diagnosis and treatment of prisoners.” Palakovic v. Wetzel, 854 F.3d 209, 227-28

(3d Cir. 2017); accord United States ex rel. Walker v. Fayette Cty., 599 F.2d 573, 575 n.2 (3d Cir.

1979) (“[w]here a prisoner has received some medical attention and the dispute is over the

adequacy of treatment, federal courts are generally reluctant to second guess medical

judgments and to constitutionalize claims which sound in state tort law.”). “When medical

care is provided, [courts] presume that the treatment of a prisoner is proper absent evidence

that it violates professional standards of care.” Pearson, 850 F.3d at 535 (emphasis added);

accord Brown v. Borough of Chambersburg, 903 F.2d 274. 278 (3d Cir. 1990) (“[I]t is well

established that as long as a physician exercises professional judgment his behavior will not

violate a prisoner's constitutional rights.”); Lanzaro, 834 F.2d at 346 (“[M]ere disagreement

as to the proper medical treatment” does not “support a claim of an eighth amendment

violation.”); Inmates of Allegheny Cty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (“[T]he

propriety or adequacy of a particular course of treatment ... remains a question of sound

professional judgment.”). Neither a prisoner's personal, subjective dissatisfaction with the

care he has been provided, nor his disagreement with the professional judgment of trained

medical staff, in and of itself, is sufficient to establish deliberate indifference. See Hairston v.

Director Bureau of Prisons, 563 F. App'x. 893. 895 (3d Cir. 2014); White v. Napoleon, 897 F.2d

103, 110 (3d Cir. 1990): Andrews v. Camden Cty., 95 F. Supp. 2d 217, 228 (D.N.J. 2000).

There are, however, “circumstances in which some care is provided yet it is insufficient

to satisfy constitutional requirements.” Palakovic, 854 F.3d at 228. For example, prison

officials “cannot deny reasonable requests for medical treatment ... [when] such denial

exposes the inmate ‘to undue suffering or the threat of tangible residual injury.’” Palakovic,

854 F.3d at 228 (citations and internal quotations omitted). Likewise, “knowledge of the need

for medical care may not be accompanied by the intentional refusal to provide that care.”

Palakovic, 854 F.3d at 228. The court should also consider the effect of denying medical

treatment under any particular circumstances, including where such denial or delay results in

unnecessary and wanton infliction of pain, or causes an inmate to suffer a life-long handicap

or permanent loss, or render a condition irreparable. Banks v. Beard, No. 2:03-CV-659, 2006

WL 2192015, at *13 (W.D. Pa. Aug. 1, 2006). Outside of such situations, each claim must be

evaluated to determine whether the treatment or lack thereof implicates the “broad and

idealistic concepts of dignity, civilized standards, humanity and decency” that provide the

underpinnings for defining the reaches of the Eighth Amendment. Banks, 2006 WL 2192015,

at *13 (quoting Estelle, 429 U.S. at 102).

According to the Complaint, Davis was diagnosed with the Hepatitis C virus in

November 1998, by a physician at SCI-Pittsburgh. (Doc. 112, at 5). After, Davis was

transferred to SCI-Smithfield, where it was determined that his liver deteriorated and he met

the criteria for Hepatitis C treatment. (Doc. 112, at 5). Davis was prescribed anti-viral

medication by a DOC physician, which did not improve his condition, and treatment was

discontinued. (Doc. 112, at 5-6, 15). In February 2007, Davis was transferred to SCI-Fayette,

where his condition worsened and Davis developed a skin condition. (Doc. 112, at 6). On

January 31, 2017, Davis filed a request for treatment of Hepatitis C to the Hepatitis C

Treatment Committee. (Doc. 112, at 6, 17). The Hepatitis C Treatment Committee rejected

Davis’s request and continued to monitor his medical needs. (Doc. 112, at 7). After his

medical conditions worsened, Davis filed Grievance No. 664288 on February 10, 2017. (Doc.

112, at 7). Davis initiated the instant action on October 30, 2017. (Doc. 5). Davis asserts that

Correct Care Defendants, as members of the Hepatitis C Treatment Committee that approve

and deny treatment to inmates, acted with deliberate indifference to Davis’s serious medical

need by rejecting his request for treatment or, alternatively, acquiescing with the denial of

treatment when his input was sought. (Doc. 112, at 11).

Davis first avers that Correct Care Defendants, as members of the Hepatitis C

Treatment Committee, acted with deliberate indifference to Davis’s serious medical need by

rejecting his request for treatment or, alternatively, acquiescing with the denial of treatment

when his input was sought. (Doc. 195, at 9-10). Correct Care Defendants submit that they are

entitled to summary judgment because Davis “has received regular and appropriate medical

treatment for his Hepatitis C while an inmate of the DOC, and he has even been successfully

treated for his Hepatitis C and is now cured.” (Doc. 188, at 16). As discussed, “[a]ll that is

needed” to establish a delay of care claim is evidence that the delay “was motivated by non-

medical factors.” Pearson, 850 F.3d at 537. The summary judgment record belies this claim.

Davis submits that Correct Care Defendants’ reason to deny treatment was “due to

the cost for treatment and not for any medical reason.” (Doc. 112, at 10). Further, Davis

asserts that “[a]s a result of this cost-saving policy, [Davis] is forced to endure the effects of a

damage[d] liver, daily blood flow from his [rectum], spells of passing out, a skin condition on

face and legs and pain that serves no penological purpose while his health continues to

decline.” (Doc. 112, at 11). The denial of medical care, when based on non-medical factors

such as cost, may violate the Eighth Amendment. See Lanzaro, 834 F.2d at 346. However,

“prisoners do not have a constitutional right to limitless medical care, free of the cost

constraints under which law-abiding citizens receive treatment.” Winslow v. Prison Health

Serv., 406 F. App'x 671, 674 (3d Cir. 2011) (citing Reynolds v. Wagner, 128 F.3d 166, 175 (3d

Cir. 1997)). The Third Circuit in Winslow upheld summary judgment for defendants

responsible for providing prisoner-plaintiff's medical care despite “some record evidence

suggesting that Defendants considered the cost of [plaintiff's] treatment” because “the record

is equally clear that [defendants] did not focus exclusively or even predominantly on cost and

that the treatment that they ordered was consistent with their professional judgment.” 406 F.

App'x at 675. Here, the record contains some evidence that Correct Care Defendants, as

members of the Hepatitis C Treatment Committee, considered cost in deciding whether to

provide Davis with Hepatitis C treatment. (Doc. 195-1, at 10). The declaration of Dr. Noel

from January 10, 2018, states that “cost is one of several consideration[s] in the overall

number of inmates that can be treated with DAADs in a given fiscal year.” (Doc. 195-1, at

10).

According to Davis’s medical records that Correct Care Defendants attached to the

motion for summary judgment, from December 2016 to March 2017, Davis was evaluated by

medical staff for complaints of a chest cold and bronchitis. (Doc. 185, ¶ 13, 17-21; Doc. 184-

2, at 96, 96, 99, 110). In March 2017, PA Druskin performed an annual physical exam of

Davis, and lab work revealed that Davis was positive for Hepatitis C with a viral load of

5,310,274. (Doc. 185, ¶ 21, 25; Doc. 184-2, at 14-16, 104-05). Medical staff continued to

evaluate Davis regularly for his folliculitis and prescribe any medication as necessary over the

next year. (Doc. 185, ¶ 34, 43, 44, 46, 56, 64, 69, 75, 77). On October 24, 2018, Davis was

screened for Hepatitis C treatment and no exclusions to treatment were noted. (Doc. 185, ¶

83; Doc. 184-2, at 270-74). On the same day, Davis was approved to begin fibrosure testing.

(Doc. 185, ¶ 84; Doc. 184-2, at 275). Contrary to Davis’s allegations, on November 13, 2018,

Dr. Noel conducted a final Hepatitis C evaluation and approved him for treatment with

DAADs medication. (Doc. 185, ¶ 86; Doc. 184-2, at 269; Doc. 196, ¶ 86).

It is also undisputed from the record that Davis underwent Hepatitis C treatment from

Temple University from December 24, 2018, to March 17, 2019. (Doc. 185, ¶ 98; Doc. 184-

2, at 234-39). Moreover, it is undisputed that Davis performed lab work on January 22, 2019,

March 19, 2019, June 25, 2019, and June 30, 2020, all of which revealed that he was negative

for Hepatitis C. (Doc. 185, ¶ 93, 97, 103, 129; Doc. 184-2, at 134-39, 315-317). Davis reported

plaques on his legs and face with some itchy patches, so medical personnel recommended

that he use antifungal cream for likely tinea and follow up with sick call. (Doc. 185, ¶ 98; Doc.

184-2, at 234-39). After Davis reported that he had a lesion on his face and lower right leg for

ten years, medical personnel scheduled a dermatology appointment. (Doc. 185, ¶ 104; Doc.

184-2, at 226-27). The dermatologist recommended daily application of Cleocin solution to

facial areas and a biopsy of the leg lesion, which Davis obtained on July 31, 2019. (Doc. 185,

¶ 106, 108; Doc. 184-2, at 212-13, 310).

Additionally, record evidence states that the estimated date Davis contracted liver

disease was in 1995 and that his liver disease was well controlled and unchanged. (Doc. 185,

¶ 109; Doc. 184-2, at 203-11). Medical personnel evaluated Davis for liver surveillance and

ultrasound results of his abdomen, which revealed: mildly heterogeneous fatty echogenic

liver, lower range of normal size, similar to prior study; no focal hepatic lesions; no frank

portal hypertension; no splenomegaly or ascites; and no cholelithiasis or biliary dilation.

(Doc. 185, ¶ 100, 104; Doc. 184-2, at 226-27, 311). Davis obtained a liver ultrasound on May

27, 2020, which revealed: normal liver size without focal hepatic mass; no portal

hypertension; no biliary ductal dilation or cholelithiasis; and no ascites, splenic varices, or

splenomegaly. (Doc. 185, ¶ 128; Doc. 184-2, at 348). Lastly, the record suggests that medical

personnel have continuously monitored Davis’s diabetes, hypertension, and liver disease.

(Doc. 185, ¶ 112-18, 25; Doc. 184-2, at 329-38).

As the foregoing makes clear, Davis was continuously monitored for his serious

medical needs and treated with the appropriate medical attention. No reasonable jury could

find that any delay was attributable to Correct Care Defendants, let alone that it was

motivated by non-medical factors. McCloskey v. Welch, 803 F. App’x 578, at 582 (3d Cir. 2020).

The record does not support Davis’s claim that Correct Care Defendants, as alleged members

of the Hepatitis C Treatment Committee, provided inadequate medical care in failing to

provide Davis with DAADs medication or Hepatitis C treatment. See Pearson, 850 F.3d at 536

(noting that to create a triable issue of fact on an inadequate medical care claim, a prisoner

must provide extrinsic proof that the medical treatment violated a professional standard of

care). There is no circumstantial or extrinsic evidence that every “minimally competent

professional” would have provided Davis with the requested DAAD treatment or approved

Hepatitis C treatment at an earlier time. Mitchell v. Gershen, 466 F. App'x 84, 87 (3d Cir. 2011)

(“[I]n order to sustain his deliberate indifference claim based on his objection to the type of

diagnosis and treatment he received, [plaintiff] needs ... expert testimony because the ability

to diagnose a foot infection and determine the proper treatment and medication protocol is

not readily apparent to lay persons.”). “[M]ere disagreement as to the proper medical

treatment” is insufficient to demonstrate an adequacy of care claim. Lanzaro, 834 F.2d at 346;

see Durmer, 991 F.2d at 67 (explaining that deliberate indifference requires something “more

than negligence”).

Notably, Davis does not point to record evidence to dispute the fact that he was treated

by the Temple University clinic for Hepatitis C treatment, that Davis’s lab work reveals no

detection of Hepatitis C, and that he received medical attention for his other serious medical

needs, including diabetes and liver disease. (Doc. 196). Rather, Davis submits that Correct

Care Defendants “have deliberately denied providing treatment to inmates with a serious

medical condition and chosen a course of monitoring instead.” (Doc. 195, at 10). Davis's

allegation that Correct Care Defendants considered cost in deciding to deny him Hepatitis C

treatment, coupled with record evidence which shows the decision was consistent with

professional judgment, is insufficient to create a disputed material fact on the subjective prong

of this deliberate indifference claim. See Winslow, 406 F. App'x at 672, 675; see also Fantone v.

Herbik, 528 F. App'x 123, 125-26; 126 n. 3 (3d Cir. 2013) (evidence which shows defendants

reviewed MRI's and x-rays of prisoner-plaintiff's ailment, but did not refer him for elective

surgery, does “not demonstrate ... the [defendants] had a sufficient[ly] “culpable state of

mind”). The undisputed record indicates Davis received regular medical attention for his

Hepatitis C and was successfully treated from December 24, 2018, to March 17, 2019. (Doc.

185, ¶ 98; Doc. 184-2, at 234-39). “Averments that are ‘entirely unsupported by the record

and directly contrary to ... testimony,’ or that are ‘offered solely to defeat summary judgment,’

may be disregarded.” Jugan v. Econ. Premier Assurance Co., 728 F. App'x 86, 91 (3d Cir. 2018)

(quoting Daubert v. NRA Grp., LLC, 861 F.3d 382, 391 (3d Cir. 2017)).

Davis has not provided any extrinsic evidence to show the course of treatment was

improper, and the course of treatment for Hepatitis C would not be obvious to a lay person.

See Jackson v. Ivens, 565 F. App'x 115, 118 (3d Cir. 2014). Moreover, where medical care is

provided, the Court presumes the care to be adequate. See Pearson, 850 F. 3d at 535 (citing

Brown, 903 F.2d at 278). Correct Care Defendants, as members of the Hepatitis C Treatment

Committee, may consider costs when approving DAADs medication treatment, so long as

the treatment is consistent with its sound medical judgment. See Winslow, 406 F. App'x at 672,

675. Thus, even assuming, arguendo, that Davis created a triable issue regarding the objective

prong of his deliberate indifference claim, Davis has not created a genuine issue of material

fact regarding the subjective prong of his deliberate indifference claim against Correct Care

Defendants. See Fantone, 528 F. App'x at 125-26; 126 n. 3; Gershen, 466 F. App'x at 87.

Even assuming that the record contained evidence that the treatment was inadequate,

“the mere receipt of inadequate medical care does not itself amount to deliberate indifference”

when there is no evidence that said treatment violated proper standards of care. Pearson, 850

F. 3d at 535 (citing O'Carroll, 991 F.2d at 69 n. 13; Brown, 903 F.2d at 278); see also Serrano v.

Folino, 339 F. App'x 254, 256-57 (3rd Cir. 2009) (summary judgment warranted when record

“indicates that [prisoner-plaintiff] received frequent medical attention, including an MRI, a

recommendation that he receive physical therapy, and an assessment by a team of physicians,

including an orthopedic specialist” and prisoner-plaintiff's claim that “knee surgery was

improperly withheld rests entirely on his allegation that [defendant physician] promised to

recommend knee surgery and did not do so”). Further, although there may be a question of

fact regarding the motives of the DOC medical providers responsible for delaying treatment

when delay eliminates the possibility of that treatment's effectiveness, there is no dispute that

there is no detectable Hepatitis C virus in Davis’s lab work and there is no evidence that

Davis’s other medical conditions are related to his Hepatitis C infection. Cf. O'Carroll, 991

F.2d at 68-69 (finding question of fact regarding prison physician's intent precluded summary

judgment on deliberate indifference claim when inmate suffered stroke pre-incarceration,

repeatedly notified prison authorities of his deteriorating condition, prison physician sent

plaintiff to a neurologist who “specifically recommended physical therapy,” and it was

“undisputed that physical therapy must take place within approximately eighteen months of

a stroke to be effective, [and so] time was of the essence”). As such, even though Davis

exhausted his administrative remedies against Correct Care Defendants, the record is devoid

of any disputed material fact precluding summary judgment on the deliberate indifference

claim against Correct Care Defendants. See McCloskey, 803 F. App’x at 581-82 (granting

summary judgment where medical director “continually monitored [plaintiff] from the day of

his injury through his discharge from surgery, and ‘at every turn’ to ensure his expeditious

care.”); Cowher v. Pike Cty. Corr. Facility. No. 3:16-CV-02259, 2019 WL 3302415, at *15 (M.D.

Pa. July 23, 2019) (granting summary judgment because plaintiff failed to create a dispute of

material fact where record evidence showed DOC medical personnel used various treatments

to address plaintiff’s medical needs).

Viewing the evidentiary record, and the reasonable inferences therefrom, in the light

most favorable to Davis, the non-moving party, Correct Care Defendants are entitled to

summary judgment with respect to Davis’s Eighth Amendment deliberate indifference claims

at this time. Accordingly, the Correct Care Defendants’ motion for summary judgment on

Davis’s Eighth Amendment deliberate indifference claim for failure to treat Davis’s Hepatitis

C is granted. (Doc. 184).

C. POLICY, PRACTICE, OR CUSTOM OF DELIBERATE INDIFFERENCE OF CCS

Correct Care Defendants seek to dismiss Davis’s Monell claims. (Doc. 188, at 16-17).

Correct Care Defendants argue that CCS cannot legally be held liable because Davis failed to

plead a policy, practice, or custom of deliberate indifference authorized by a final policymaker

of CCS. (Doc. 188, at 17); Monell, 436 U.S. at 690. The Court agrees and concludes that Davis

fails to allege facts sufficient to state a plausible Monell claim against CCS.

According to Davis, CCS is a private corporation that has been contracted to provide

medical care to inmates at SCI-Davis and a member of the Hepatitis C Treatment Committee

that approve and deny treatment to inmates. (Doc. 112, at 3). A private corporation can be

held liable for constitutional violations only if it has a custom or policy exhibiting deliberate

indifference to a prisoner's serious medical needs. See Monell, 436 U.S. at 690 (subjecting

municipalities to liability for policies or customs that cause constitutional deprivations);

Natale, 318 F.3d at 584 (applying Monell to a private company providing medical services to

inmates); see also Weigher v. Prison Health Servs., 402 F. App’x 668, 669-70 (3d Cir. 2010)

(nonprecedential) (noting that a private corporation providing medical service at a state

correctional facility cannot be held liable under a theory of respondeat superior in a § 1983

suit). Thus, to prevail on his claims against CCS, Davis must show that there “there was a

relevant [CCS] policy or custom, and that the policy caused the constitutional violation” for

which he seeks relief. See Natale, 318 F.3d at 583-84; see also Parkell v. Danberg, 833 F.3d 313,

338 (3d Cir. 2016) (prison medical service providers were not responsible for any deprivation

of prisoner’s medical care, and thus providers were not deliberately indifferent to prisoner’s

serious medical needs under the Eighth Amendment, where failure to transport prisoner to

proscribed therapy was attributed to understaffing in the prison, which was controlled by

DOC, and there was no evidence that any shortage of prisoner’s pain medication was a

common or systematic problem).

Davis asserts that CCS has “a policy, practice or custom of ignoring the serious

medical needs of Pennsylvania prisoners to save funds.” (Doc. 112, at 10-11). However, Davis

has not attempted to identify any policy, practice, or custom that allegedly led to the violation

of his constitutional rights. Moreover, regardless of any policy, practice, or custom it may

have adopted, a medical services contractor, such as CCS, cannot be held vicariously liable

under Monell unless one of the individual defendants “is primarily liable under section 1983

itself.” Williams, 891 F.2d at 467; see also City of L.A. v. Heller, 475 U.S. 796, 799 (1986)

(municipal liability requires an underlying constitutional violation). As discussed above,

Davis has not created a genuine issue of material fact regarding his deliberate indifference

claim against Correct Care Defendants. See Cowher, 2019 WL 3302415, at *15-16 (granting

summary judgment because plaintiff failed to allege medical services contractor-defendants

were primarily liable under section 1983).

Accordingly, Davis cannot maintain a Monell claim against CCS, and summary

judgment is entered in Correct Care Defendants’ favor. (Doc. 184).

IV. CONCLUSION

Based on the foregoing, Correct Care Defendants’ motion for summary judgment is

GRANTED. (Doc. 184).

An appropriate Order follows.

BY THE COURT:

Dated: December 23, 2021 s/ Karoline Mehalchick

KAROLINE MEHALCHICK

Chief United States Magistrate Judge