                IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Ronald A. Williams,                       :
                           Petitioner     :
                                          :
                     v.                   :
                                          :
Pennsylvania Department                   :
of Corrections,                           :    No. 387 M.D. 2015
                       Respondent         :    Submitted: April 15, 2016


BEFORE:        HONORABLE ROBERT SIMPSON, Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge


OPINION NOT REPORTED

MEMORANDUM OPINION BY
JUDGE COVEY                                    FILED: July 20, 2016

               The Pennsylvania Department of Corrections (Department) filed
preliminary objections in the nature of a demurrer to Ronald A. Williams’ (Williams)
pro se petition for review (Petition) filed in this Court’s original jurisdiction seeking
injunctive relief. The sole issue before the Court is whether Williams’ Petition states
a claim upon which relief may be granted.            After review, the Department’s
preliminary objections are sustained and Williams’ Petition is dismissed.
               Williams is currently serving a life sentence at the State Correctional
Institute at Fayette (SCI-Fayette). According to the Petition, Williams was diagnosed
with Hepatitis C Viral Infection (Hepatitis-C) in 1999, for which he continues to be
monitored in the chronic care clinic.         Gilead Sciences Inc. has perfected two
medications, one in 2013 and the other in 2014 that have a high cure rate for
Hepatitis-C.    Williams has been advised that the Department is working on an
updated protocol for treating inmates with Hepatitis-C.
             Williams filed his Petition on August 5, 2015, alleging that “[t]he
[Department] is willfully violating [his] federally [sic] and state rights under the State
Constitution and the Federal Constitutions [sic] to be free from cruel and unusual
punishment” and asking this Court to “issue an[] [o]rder [u]pon the [Department] and
[its] Bureau of Health Care Services to establish a realistic reasonable and
eff[i]catious protocol and to treat Williams’ [Hepatitis-C].” Petition at 2, 3-4 ¶¶ 11,
24. On August 11, 2015, the Department filed its Preliminary Objections. On
December 30, 2015, Williams filed a Motion for Discovery (Discovery Motion). On
January 27, 2016, Williams filed a Motion to Compel the Department to comply with
Williams’ Discovery Motion.          By January 28, 2016 order, this Court denied
Williams’ Discovery Motion and dismissed his Motion to Compel as moot.
             This Court’s review of preliminary objections is limited to the pleadings.
Pa. State Lodge, Fraternal Order of Police v. Dep’t of Conservation & Natural Res.,
909 A.2d 413 (Pa. Cmwlth. 2006), aff’d, 924 A.2d 1203 (Pa. 2007).

             [This Court is] required to accept as true the well-pled
             averments set forth in the . . . complaint, and all inferences
             reasonably deducible therefrom. Moreover, the [C]ourt
             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, where any doubt exists as to
             whether the preliminary objections should be sustained, the
             doubt must be resolved in favor of overruling the
             preliminary objections.

Id. at 415-16 (citations omitted).
            The Department first argues that Williams failed to state a claim upon
which relief can be granted under Section 1983 of the Civil Rights Act (Section
1983), 42 U.S.C. § 1983, which is the basis of Williams’ Petition, because the
Department is not a “person” for purposes of a Section 1983 action. We agree.


                                            2
            Section 1983 states, in pertinent part:

            Every person who, under color of any statute, ordinance,
            regulation, custom, or usage, of any State . . . subjects, or
            causes to be subjected, any citizen of the United States . . .
            to the deprivation of any rights, privileges, or immunities
            secured by the Constitution and laws, shall be liable to the
            party injured in an action at law, suit in equity, or other
            proper proceeding for redress[.]

42 U.S.C. § 1983 (emphasis added). With respect to “person” in regards to a Section
1983 action, this Court explained:

            In Will v. Michigan Department of State Police, 491 U.S. 58
            . . . (1989), the United States Supreme Court held that
            neither a state nor a state agency is a person for purposes of
            [S]ection 1983 lawsuits. Accord Flesch v. [E.] [Pa.]
            Psychiatric [Inst.], 434 F.Supp. 963 (E.D. Pa. 1977); Faust
            v. [Dep’t] of Revenue, . . . 592 A.2d 835 ([Pa. Cmwlth.]
            1991) petition for allowance of appeal denied, . . . 607 A.2d
            257 ([Pa.] 1992).
            It is undisputed that [] the Department . . . constitute[s a]
            Commonwealth agenc[y]. Under [S]ection 201 of The
            Administrative Code of 1929, Act of April 9, 1929, P.L.
            177, as amended, 71 P.S. § 61, the Department is
            designated an administrative department of the
            Commonwealth. See also 2 Pa.C.S. § 101. . . .
            Therefore, we hold that the Department . . . [is] not subject
            to suit under 42 U.S.C. § 1983.

Warren v. Pa. Dep’t of Corr., 616 A.2d 140, 141-42 (Pa. Cmwlth. 1992).
Accordingly, Williams failed to state a claim under Section 1983 since the
Department is not a “person” within the meaning of Section 1983.
            Next, the Department contends Williams failed to state a claim upon
which injunctive relief can be granted because he cannot demonstrate that there is an
urgent necessity to avoid an injury which cannot be compensated in damages, and




                                           3
that greater injury will result from refusing rather than granting the relief requested.
We agree.

             [A p]etitioner[’s] threshold burden when seeking a
             permanent injunction is to establish a clear legal right to
             relief. To secure injunctive relief, [a p]etitioner[] must
             demonstrate that the right to relief is clear, that there is an
             urgent necessity to avoid an injury which cannot be
             compensated in damages, and that the greater injury will
             result from refusing rather than granting the relief
             requested.

Tindall v. Dep’t of Corr., 87 A.3d 1029, 1034 (Pa. Cmwlth. 2014) (citation omitted).
Here, Williams averred in his Petition, in relevant part:
             [Williams] has been diagnosed with Hepatitis-C Genotype-
             1 at the SCI[-]Graterford in 1999[.] Gilead Sciences Inc[.]
             (hereafter Gilead) has perfected (2) medications in 2013 and
             2014 respectively[,] that offer a 96 to a 99% cure rate for
             the Hepatitis C Virus.
             Hepatitis C affects 3[.]2 [m]illion Americans and kills more
             people each year tha[n] HIV/AIDS in the United States and
             is clearly a severe life threatening viral infection. (See Ex.
             A)
             In 2013[,] Gilead developed and marketed Sovaldi which is
             administered with two other anti-viral medications[,] i.e[.,]
             Pegylated Interferon Injections and ribavirin tablets.
             In 2014[,] Gilead developed and [m]arketed Harvoni
             [w]hich was a major breakthrough which only required a
             single [t]ablet regiment once a day and required no other
             anti[-]viral medications[.]
             Hepatitis C is a life threatening [v]iral [i]nfection that
             destroys vital liver functions over time[.] It can and does
             lead to serious and potentially fatal complications, including
             liver cancer[,] cirrhosis and the need for liver
             transplantation[.] Inclusive with serious liver damage and
             complications if left untreated hepatitis C can include but is
             not limited [to] Type 2 Diabetes[,] Rheumatologic disorders
             and thyroid disease.

                                           4
              [Williams] [c]urrently suffers from rheumatoid arthritis in
              his right knee[,] shoulder and wrist pain [sic] and is
              required to wear a brace for his knee and has been required
              to take pain medication for the last six years[,] is limited to
              sleeping in a lower bunk and the proximal cause of
              [Williams’] suffering is his hepatitis C viral infection[.]

Petition at 1-2, ¶¶ 4-9. The above averments, while declaring that Williams has
Hepatitis-C and that new medications have been developed which claim a high cure
rate,1 do not demonstrate that ordering the Department to establish a protocol for
treating Hepatitis-C with the new medications is “an urgent necessity to avoid an
injury which cannot be compensated in damages, and that the greater injury will
result from refusing rather than granting the relief requested.” Tindall, 87 A.3d at
1034.
              Indeed, according to the Final Appeal Decision issued by the
Department’s Secretary’s Office of Inmate Grievances and Appeals:

              [Williams’] concern of not being provided proper medical
              care for Hepatitis C was reviewed by the staff of the Bureau
              of Health Care Services. They reviewed the medical record
              and determined that the medical care provided was
              reasonable and appropriate. The [Department] is updating
              its protocol for treating Hepatitis C. [Williams] will
              continue to be monitored in [the] chronic care clinic. Once
              the protocol is issued, [he] will be re-evaluated for
              treatment with medication. [Williams is] encouraged to
              participate in [his] treatment plan and to discuss [his]
              concerns or changes of condition with a practitioner. No
              evidence of neglect or deliberate indifference has been
              found.

Petition Ex. I.2      “Absent a showing that [prison] officials have engaged in


        1
          Inmates do not get to choose their own medications or treatment. Kretchmar v.
Commonwealth, 831 A.2d 793 (Pa. Cmwlth. 2003).
       2
         “[C]ourts reviewing preliminary objections may not only consider the facts pled in the
complaint, but also any documents or exhibits attached to it.” Allen v. Dep’t of Corr., 103 A.3d
365, 369 (Pa. Cmwlth. 2014).
                                               5
constitutionally[-]impermissible conduct,[3] it is not in the public’s interest for the
court to usurp the [Department’s] authority and micro-manage the medical needs of a
particular inmate.” Kretchmar v. Commonwealth, 831 A.2d 793, 799 (Pa. Cmwlth.
2003) (quoting Berman v. Lamer, 874 F.Supp. 102, 106 (E.D. Pa. 1995)). We must,
therefore, hold that Williams’ Petition fails to state a claim for injunctive relief.
             Lastly, the Department asserts that Williams failed to state a claim upon
which relief can be granted because he failed to sufficiently plead facts regarding the
current state of or the progression of his Hepatitis-C or his eligibility for the
specifically-desired medications under the manufacturer’s guidelines. We agree.
             Pursuant to Pennsylvania Rule of Civil Procedure 1019(a) (Rule
1019(a)): “The material facts on which a cause of action or defense is based shall be
stated in a concise and summary form.” Pa.R.C.P. No. 1019(a). “[Rule 1019(a)]
requires a plaintiff to plead all the facts that he must prove in order to achieve
recovery on the alleged cause of action. The pleading must be sufficiently specific
so that the defending party will know how to prepare his defense.” Commonwealth
ex rel. Pappert v. TAP Pharms. Products, Inc., 868 A.2d 624, 635 (Pa. Cmwlth.
2005) (emphasis added).        Here, Williams cannot succeed on a claim that the
Department must provide him with a specific medication without proving that he is in
fact eligible for the medication.      Thus, because Williams failed to plead such
eligibility, he has failed to state a claim upon which relief may be granted.



      3
              [A] prison official cannot be found liable under the Eighth
              Amendment for denying an inmate humane conditions of confinement
              unless the official 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.
Kretchmar v. Commonwealth, 831 A.2d 793, 799 (Pa. Cmwlth. 2003) (quoting Farmer v. Brennan,
511 U.S. 825, 837 (1994)).
                                             6
            For all of the above reasons, the Department’s preliminary objections are
sustained and Williams’ Petition is dismissed.

                                      ___________________________
                                      ANNE E. COVEY, Judge




                                          7
             IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Ronald A. Williams,                     :
                         Petitioner     :
                                        :
                    v.                  :
                                        :
Pennsylvania Department                 :
of Corrections,                         :   No. 387 M.D. 2015
                       Respondent       :




                                      ORDER

             AND NOW, this 20th day of July, 2016, the Pennsylvania Department of
Corrections’ preliminary objections in the nature of a demurrer to Ronald A.
Williams’ (Williams) petition for review (Petition) are sustained and Williams’
Petition is dismissed.


                                      ___________________________
                                      ANNE E. COVEY, Judge
