# A.D. Hersh v. DOC State Dietitian & PA Correctional Industries

> Commonwealth Court of Pennsylvania · June 4, 2024

URL: https://www.frixlaw.com/law-library/cases/9977260

## Case

- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** June 4, 2024
- **Precedential status:** Unpublished
- **Opinion:** Opinion
- **Judges:** Ceisler, J.
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Andrew Darvin Hersh, :
Petitioner :
:
v. : No. 81 M.D. 2023
:
Department of Corrections State :
Dietitian; and Pennsylvania :
Correctional Industries, :
Respondents : Submitted: May 7, 2024

BEFORE: HONORABLE ANNE E. COVEY, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE MATTHEW S. WOLF, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER FILED: June 4, 2024

Petitioner Andrew Darvin Hersh (Hersh), who is currently incarcerated within
our Commonwealth’s prison system at the State Correctional Institution - Waymart
(SCI Waymart), has filed a pro se Amended Petition for Review in the Nature of
Mandamus (Amended Petition) in our original jurisdiction. Therein, Hersh alleges
that Respondent Department of Corrections State Dietitian (State Dietitian) has
violated the Eighth Amendment1 by refusing to provide him with what Hersh asserts
are medically necessary dietary supplements, as well as that the State Dietitian and
Respondent Pennsylvania Correctional Industries (PCI) have engaged in a civil
conspiracy by not stocking such supplements in the prison commissary. PCI and the
State Dietitian (collectively Respondents) have responded to Hersh’s claims by

1
U.S. CONST. amend. VIII.
challenging the Amended Petition via preliminary objections. Upon review, we
sustain those preliminary objections in part and dismiss the Amended Petition.

I. Background
The relevant facts are as follows. On July 5, 2018, Dr. Joseph Whitlark, a
physician whose practice is located in State College, Pennsylvania, diagnosed Hersh
with schwannomatosis,2 a rare disease that had caused a tumor to grow inside
Hersh’s throat and impinge upon his esophagus and vocal cords. Am. Pet., ¶¶20-21.
Dr. Whitlark surgically removed this tumor roughly three weeks later, and followed
up with an unspecified number of imaging scans, as well as injections that enabled

2
According to the National Library of Medicine, which is part of the federal government’s
National Institutes of Health:
Schwannomatosis is a disorder characterized by multiple
noncancerous (benign) tumors called schwannomas, which are a
type of tumor that grows on nerves. Schwannomas develop when
Schwann cells, which are specialized cells that normally form an
insulating layer around the nerve, grow uncontrollably to form a
tumor.
The signs and symptoms of schwannomatosis usually appear in
early adulthood. The most common symptom is long-lasting
(chronic) pain, which can affect any part of the body. In some cases,
the pain is felt in areas where there are no known tumors. The pain
associated with this condition ranges from mild to severe and can be
difficult to manage. Other signs and symptoms that can occur with
schwannomatosis depend on the location of the tumors and which
nerves are affected. These problems include numbness, weakness,
tingling, and headaches. The life expectancy of people with
schwannomatosis is normal.
Schwannomatosis is usually considered to be a form of
neurofibromatosis, which is a group of disorders characterized by
the growth of tumors in the nervous system.
Schwannomatosis, NAT. INSTS. OF HEALTH, https://medlineplus.gov/genetics/condition/
schwannomatosis (last visited June 3, 2024). Hersh also avers that, according to the Mayo Clinic,
schwannomas are normally benign but are capable of becoming cancerous. Am. Pet., ¶20 n.1.

2
Hersh to recover some usage of his left vocal cord (which had been affected by the
aforementioned tumor and surgical procedure). Id., ¶21.3
Subsequently, Hersh began purchasing a nutritional supplement known as
“Carnation Breakfast Essentials” from SCI Waymart’s commissary; according to
Hersh, this product allowed him “to function at a much higher level” and noticeably
decreased the severity of schwannomatosis’ side effects. Id., ¶22. Hersh’s habit came
to a sudden halt on October 17, 2022, when PCI became SCI Waymart’s commissary
vendor and ceased offering a number of previously available products, including
Carnation Breakfast Essentials. Id., ¶7. Shortly thereafter, on October 21, 2022,
Hersh asked SCI Waymart’s medical staff to consider providing him with a
replacement dietary supplement, whereupon the staff passed Hersh’s request on to
the State Dietitian. Id., ¶¶8-9. The State Dietitian denied this request the following
day, noting that Hersh “appears to be adequately nourished and capable of
maintaining nutritional status[,]” while also stating that they had “[r]eviewed the
literature for nutritional implications/management of schwannomatosis [and] could
not find any evidence-based guidelines regarding the nutritional management of this
condition.” Id., ¶9, Ex. A. Hersh then sought to have SCI Waymart’s medical staff
both disregard the State Dietitian’s denial and provide him with (or allow him to
purchase) such supplements, after which he unsuccessfully grieved the medical
staff’s failure to do so. Id., ¶¶10-15.
Unable to secure relief administratively, Hersh then turned to legal action,
filing a “Petition for Review in the Nature of Mandamus” (Original Petition) in our
Court against the State Dietitian on February 14, 2023. Thereafter, on April 11, 2023,
SCI Waymart’s inmates received notice that Carnation Breakfast Essentials would

3
Hersh does not make clear in his Amended Petition whether he was already incarcerated
when this surgery and the subsequent treatment procedures took place.

3
once again be available for purchase through the facility’s commissary, beginning
on April 13, 2023. Id., ¶36, Ex. J. Hersh then attempted to purchase this product at
least two times over the following two weeks, only to be informed on both occasions
that it was out-of-stock. Id., ¶¶36-37, Ex. K.
This state of affairs prompted Hersh to file his Amended Petition with our
Court on May 11, 2023. Therein, Hersh argues that the State Dietitian violated the
Eighth Amendment by denying Hersh’s request for Carnation Breakfast Essentials
or an equivalent product, and thereby depriving him of a diet that is medically
sufficient for those who suffer from schwannomatosis. Id., ¶¶23-31. He also asserts
that the purported return of Carnation Breakfast Essentials to SCI Waymart’s
commissary is a sham, as it is not actually available for purchase; in Hersh’s view,
this is instead proof of an unlawful civil conspiracy between PCI and the State
Dietitian to render moot his Original Petition without actually enabling him to obtain
his desired nutritional supplements. Id., ¶¶34-40. Accordingly, Hersh requests that
we grant him mandamus relief that directs the State Dietitian to (a) provide him with
a nutritional supplement that adequately treats his schwannomatosis symptoms; (b)
consult with a “neurology[-]based dietitian, oncologist, or neuro-oncologist when
asked [by an inmate] to provide a nutritional supplement for conditions that [either]
qualify as ‘cancer’ or can lead to cancer”; and (c) revise DC-ADM 610, the
Pennsylvania Department of Corrections’ (DOC) policy statement governing food
services at its carceral facilities, to expressly require such consultation. Id., ¶¶32-33,
Wherefore Clause. Furthermore, he asks us to permanently enjoin PCI from
removing Carnation Breakfast Essentials as a commissary offering at SCI Waymart.
Id., ¶40, Wherefore Clause.

4
Respondents then filed preliminary objections, to which Hersh subsequently
responded in opposition thereto. As such, Respondents’ preliminary objections are
ready for disposition.
II. Discussion
We summarize Respondents’ arguments as follows. First, Hersh has not pled
a legally viable mandamus claim, as the Amended Petition’s averments neither
facially establish that the State Dietitian violated the Eighth Amendment by denying
Hersh’s dietary supplement request, nor that Respondents unlawfully conspired to
render moot his ability to use this lawsuit to challenge that denial. Br. in Support of
Respondents’ Prelim. Objs. at 7-16. Second, Hersh failed to articulate a legally valid
basis for permanently enjoining PCI from removing Carnation Breakfast Essentials
as an offering at SCI Waymart’s Commissary. Br. in Support of Respondents’
Prelim. Objs. at 16-18. Finally, insofar as Hersh purports to challenge DC-ADM
610, his claims lack the requisite level of legal specificity. Id. at 18-19. Accordingly,
Respondents ask that we dismiss the Amended Petition with prejudice. Id. at 20.
In ruling on preliminary objections, we must accept as true
all well-pleaded material allegations in the petition for
review, as well as all inferences reasonably deduced
therefrom. The Court need not accept as true conclusions
of law, unwarranted inferences from facts, argumentative
allegations, or expressions of opinion. In order to sustain
preliminary objections, it must appear with certainty that
the law will not permit recovery, and any doubt should be
resolved by a refusal to sustain them.
A preliminary objection in the nature of a demurrer admits
every well-pleaded fact in the [petition for review] and all
inferences reasonably deducible therefrom. It tests the
legal sufficiency of the challenged pleadings and will be
sustained only in cases where the pleader has clearly failed
to state a claim for which relief can be granted.

5
Torres v. Beard, 997 A.2d 1242, 1245 (Pa. Cmwlth. 2010) (citations omitted).
Furthermore, “courts reviewing preliminary objections may not only consider the
facts pled in the [petition for review], but also any documents or exhibits attached to
it.” Allen v. Dep’t of Corr., 103 A.3d 365, 369 (Pa. Cmwlth. 2014).
Turning to mandamus, it constitutes “an extraordinary writ which lies to
compel performance of a ministerial act or mandatory duty where there is a clear
legal right in the petitioner, a corresponding duty in the respondent, and a want of
any other appropriate and adequate remedy.” Cooper v. City of Greensburg, 363
A.2d 813, 815 (Pa. Cmwlth. 1976). “The purpose of mandamus is not to establish
legal rights but only to enforce those legal rights that have already been established.”
Orange Stones Co. v. City of Reading, Zoning Hearing Bd., 32 A.3d 287, 290 (Pa.
Cmwlth. 2011). “Mandamus will lie only to compel public officials to perform their
duties in accordance with the law [when] those duties are ministerial in character
and not discretionary.” Rakus v. Robinson, 382 A.2d 770, 772 (Pa. Cmwlth. 1978)
(citing Rose Tree Media Sch. Dist. v. Dep’t of Pub. Instruction, 244 A.2d 754 (Pa.
1968)); accord Allen, 103 A.3d at 370 (“Mandamus can only be used to compel
performance of a ministerial duty and will not be granted in doubtful cases.”).
Additionally,
while a court may [use a writ of mandamus to] direct that
discretion be exercised, it may not specify how that
discretion is to be exercised nor require the performance
of a particular discretionary act. The writ cannot be used
to control the exercise of discretion or judgment by a
public official or administrative or judicial tribunal; to
review or compel the undoing of an action taken by such
an official or tribunal in good faith and in the exercise of
legitimate jurisdiction, even though the decision was
wrong; to influence or coerce a particular determination of
the issue involved; or to perform the function of an appeal
or writ of error.

6
Pa. Dental Ass’n v. Ins. Dep’t, 516 A.2d 647, 652 (Pa. 1986) (cleaned up). Though
a writ of mandamus can be used “to compel a governmental body to perform a
discretionary act where its duty to perform that act is mandated by the law, and the
body has refused to perform the act based upon an erroneous interpretation of the
law[,]” it cannot serve to “compel a body vested with discretion to exercise that
discretion in a certain manner or to arrive at a particular result.” Weaver v. Pa. Bd.
of Prob. & Parole, 688 A.2d 766, 776 (Pa. Cmwlth. 1997). Furthermore, mandamus
is not a legally valid mechanism for securing equitable relief and cannot be used “to
establish what [a petitioner’s] rights are and to fashion relief accordingly.” Tindell
v. Dep’t of Corr., 87 A.3d 1029, 1043 (Pa. Cmwlth. 2014).
As for the Eighth Amendment, an inmate may certainly pursue a claim against
the government that is rooted in allegations that they have not been given
constitutionally adequate medical care, such that they have suffered cruel and
unusual punishment as a result; however, the bar they must clear to succeed on this
kind of claim is set extremely high. As we explained in Tindell:
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 [Estelle] 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.

7
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 causes chronic and substantial
pain. Chance v. Armstrong, 143 F.3d 698, 702 (2d Cir.
1998); Monmouth Cnty. Corr. Inst. 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, 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

8
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 [Farmer] 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 844-45. Examples of 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 Cnty., 834 F.2d at 346-
47.
87 A.3d at 1038-40 (cleaned up).
In this instance, Hersh has satisfied the objective prong of this test, but not the
subjective one. According to Hersh, he suffers from a rare tumor-causing ailment,
one that is chronic and has already necessitated major surgery as a consequence of
its progression. See Am. Pet., ¶¶20-21. Had Hersh not undergone this surgery, the
tumor in his throat would have continued to “crush[] [his] vocal cords and
esophageal passages, [and] complete[ly] block[] the cardiovascular blood vessels
that supply [his] heart and lungs.” Id., ¶20. Taking his averments as true, we
conclude that Hersh has certainly established that treatment of his schwannomatosis
constitutes a serious medical need. He also avers, however, that the State Dietitian
denied his dietary supplement request because Hersh “appear[ed] to be adequately

9
nourished and capable of maintaining nutritional status” at that point, as well as
because the State Dietitian had not found “evidence-based guidelines regarding the
nutritional management of this condition.” Id., ¶9, Ex. A. Furthermore, Hersh fails
to assert that a medical professional had directed him to consume a nutritional
supplement in order to treat schwannomatosis and/or its symptoms and side effects.
Instead, it appears that Hersh elected to regularly consume Carnation Breakfast
Essentials on his own initiative. Given this, we cannot conclude on the facts alleged
that the State Dietitian evinced deliberate indifference to Hersh’s schwannomatosis,
or that the State Dietitian violated Hersh’s Eighth Amendment-based rights.
Nor can we conclude that Hersh has pled facts that facially establish the
existence of an unlawful civil conspiracy.
Civil conspiracy occurs where two or more persons
combine or agree intending to commit an unlawful act or
do an otherwise lawful act by unlawful means. To state a
cause of action for conspiracy, the [petition for review]
must allege the following: (1) a combination of two or
more persons acting with a common purpose to do an
unlawful act or to do a lawful act by unlawful means or for
an unlawful purpose; (2) an overt act done in pursuance of
common purpose; and (3) actual legal damage. A [petition
for review] alleging civil conspiracy must allege facts
showing the existence of all the elements, and if the
[petitioner] is unable to allege facts that are direct evidence
of the combination and its intent, he must “allege facts
that, if proved, will support an inference of the
combination and its intent.
Brown v. Blaine, 833 A.2d 1166, 1173 n.16 (Pa. Cmwlth. 2003) (cleaned up). “No
civil cause of action for conspiracy can exist unless the conduct that was the subject
of the conspiracy is actionable [and,] absent a civil cause of action for a particular
act, there can be no cause of action for civil conspiracy to commit that act.” Morley
v. Farnese, 178 A.3d 910, 919-20 (Pa. Cmwlth. 2018) (cleaned up). Hersh’s position

10
that Respondents civilly conspired against him is predicated upon his
aforementioned insistence that the State Dietitian violated his Eighth Amendment-
based rights. See Am. Pet., ¶¶34-40. Thus, as his assertions regarding the Eighth
Amendment are insufficient as a matter of law, so too are those pertaining to the
alleged conspiracy between PCI and the State Dietitian. Morely, 178 A.3d at 919-
20.
It follows, then, that Hersh has failed to adequately state claims for mandamus
or permanent injunctive relief. As noted supra, a writ of mandamus may issue only
in the event the petitioner’s right to relief is clear. Cooper, 363 A.2d at 815. The
same requirement applied to permanent injunctions as well. See Kuznik v.
Westmoreland Cnty. Bd. of Comm’rs, 902 A.2d 476, 489 (Pa. 2006) (quoting
Harding v. Stickman, 823 A.2d 1110, 1111 (Pa. Cmwlth. 2003) (“To justify the
award of a permanent injunction, the party seeking relief ‘must establish that his
right to relief is clear, that an injunction is necessary to avoid an injury that cannot
be compensated by damages, and that greater injury will result from refusing rather
than granting the relief requested.’”). Hersh has failed to facially show that his right
to mandamus or injunctive relief is clear, as, to reiterate, the facts he avers in his
Amended Petition do not establish that the State Dietitian violated the Eighth
Amendment or that Respondents engaged in an unlawful civil conspiracy against
him. Therefore, we sustain Respondents’ demurrers to both claims.4

4
Given our disposition of this matter in Respondents’ favor, we decline to reach the merits
of their preliminary objection through which they challenged the specificity of Hersh’s allegations
regarding DC-ADM 610.

11
III. Conclusion
In light of the foregoing analysis, we dismiss the Amended Petition with
prejudice.5

ELLEN CEISLER, Judge

5
We stress that our decision in this matter should not be construed as precluding Hersh
from seeking future legal relief regarding the treatment he receives for schwannomatosis while in
DOC custody, should his request for such relief be predicated upon alleged deficiencies that are
different than those pled in his Amended Petition.

12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Andrew Darvin Hersh, :
Petitioner :
:
v. : No. 81 M.D. 2023
:
Department of Corrections State :
Dietitian; and Pennsylvania :
Correctional Industries, :
Respondents :

ORDER

AND NOW, this 4th day of June, 2024, upon consideration of Respondents’
Department of Corrections State Dietitian and Pennsylvania Correctional Industries’
(collectively Respondents) preliminary objections to Petitioner Andrew Darvin
Hersh’s (Hersh) Amended Petition for Review in the Nature of Mandamus
(Amended Petition), and the response thereto, it is hereby ORDERED:
1. Respondents’ demurrers to Hersh’s claims are SUSTAINED; and
2. The Amended Petition is DISMISSED WITH PREJUDICE.

ELLEN CEISLER, Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9977260. Public record. Not legal advice.