            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dennis McKeithan                     :
                                     :
             v.                      : No. 133 C.D. 2017
                                     : Submitted: September 8, 2017
Michael Clark, Superintendent of the :
State Correctional Institution –     :
Albion, Dr. Michael Boggio, Medical :
Director                             :
                                     :
Appeal of: Michael Clark,            :
Superintendent, SCI-Albion, and      :
Dr. Jose Boggio, Medical Director    :


BEFORE:        HONORABLE MARY HANNAH LEAVITT, President Judge
               HONORABLE ANNE E. COVEY, Judge
               HONORABLE DAN PELLEGRINI, Senior Judge


OPINION NOT REPORTED


MEMORANDUM OPINION BY
SENIOR JUDGE PELLEGRINI                                      FILED: October 2, 2017


               Michael Clark, Superintendent of the State Correctional Institution –
Albion (SCI-Albion), and Dr. Jose Boggio,1 former Medical Director of SCI-
Albion (collectively, Respondents), appeal from the orders of the Court of
Common Pleas of Erie County (trial court) granting Dennis McKeithan’s
(Petitioner) emergency petition for injunctive relief because Respondents failed to
have him adequately examined and promptly treated for a medical condition

      1
          The caption incorrectly lists Dr. Jose Boggio as “Dr. Michael Boggio.”
commonly known as “Shingles” occurring on the right side of his face and near his
right eye.


                                        I.
             In September 2016, Petitioner, a resident of the Restricted Housing
Unit at SCI-Albion, woke up and “[h]is face was swollen to the extreme, his skin
had busted open, and the skin was off his face. His face was now the pink under
skin. His right eye was swollen completely closed, and the skin all around his eye
was busted open. His nose on the right inside bridge was swollen, bruised.”
(Record (R.) Item No. 6, Petition for Writ of Habeas Corpus.) As a result of this
obvious and severe rash and swollen eye, after a nurse looked at Petitioner through
his cell window, he was sent to the emergency room where he was then diagnosed
with Shingles. Although the hospital provided Petitioner with a topical ointment
before he returned to SCI-Albion, the provided amount only lasted eight days and
was never refilled.


             In the following months, Petitioner continued to request further
examination and treatment as the rash and pain persisted. Notwithstanding, Dr.
Boggio, a new physician at the prison, repeatedly told him that nothing was wrong
and there was no treatment for Shingles. A physician’s assistant prescribed an
antidepressant for Petitioner, which was later discontinued. The only medical
examinations conducted for Petitioner were done by peering through the window
of his cell door.     Despite persistent complaints of face and eye pain and a
continuing rash, he was never given an eye examination.




                                        2
               On January 4, 2017, Petitioner filed a Petition for Writ of Habeas
Corpus2 alleging cruel and unusual conditions of confinement for which he sought
emergency injunctive relief because Respondents failed to provide adequate
treatment for his Shingles occurring on the right side of his face and near his right
eye as well as other medical claims that are not part of this appeal. Given the
severity of Petitioner’s alleged medical condition and to ensure that his eye sight
was not at risk, on January 10, 2017, the trial court ordered that Respondents
“show cause why the Petitioner is not entitled to the relief requested.                      The
Respondents shall appear and the Superintendent shall produce the Petitioner at a
hearing scheduled for JANUARY 17, 2017. . . .” (Trial Court’s Order dated
January 10, 2017.)3


               On January 18, 2017, after both Petitioner and Dr. Boggio testified,
the trial court found that Petitioner was not being adequately treated at SCI-Albion
and ordered that he be examined by both an independent doctor of internal



       2
          The writ of habeas corpus “lies to correct void or illegal sentences or an illegal
detention, or where the record shows a trial or sentence or plea so fundamentally unfair as to
amount to a denial of due process or other constitutional rights, or where for other reasons the
interests of justice imperatively required it.” Commonwealth ex rel. Butler v. Rundle, 180 A.2d
923, 924 (Pa. 1962). In Commonwealth ex rel. Bryant v. Hendrick, 280 A.2d 110 (Pa. 1971), our
Supreme Court extended the writ’s scope to allow it to be employed to secure relief from prison
conditions constituting cruel and unusual punishment. Id. at 112-13.

       3
         In response to the trial court’s January 10, 2017 Order, Respondents filed, inter alia, a
motion for continuance but, as the trial court points out in its 1925(a) Opinion, failed to serve
that motion upon the trial court. (See R.R. at 59, 228.) Accordingly, because the trial court was
never served with Respondents’ request for continuance, it did not consider that motion for
continuance.




                                                3
medicine and an independent ophthalmologist outside the confines of the prison.
As pertinent, the trial court explained:

               At the very least, Petitioner needed an in-person
               examination by a qualified doctor and ophthalmologist to
               preclude the possibility that Petitioner’s virus was not
               causing permanent facial nerve or eye damage.
               Consequently, this Court ordered that Petitioner be
               examined by an internist and an ophthalmologist, to
               insure no permanent eye damage was occurring and to
               inquire about possible palliative treatment for a painful
               condition.


(Reproduced Record (R.R.) at 229.)


               Following the trial court’s order, Respondents had Petitioner
examined by both an independent doctor of internal medicine and an independent
ophthalmologist so as “to avoid a finding of contempt.” (Respondents’ Brief at
13.) Notwithstanding Respondents’ compliance with the trial court’s order, this
interlocutory4 appeal followed.


                                           II.
               On appeal, Respondents admit to already complying with the trial
court’s order, yet ask us to review the merits of their appeal because they contend
that the trial court erred when bypassing Dr. Boggio’s medical determination that
Petitioner was sufficiently diagnosed and treated for Shingles occurring on the


      4
          See Pa. R.A.P. 311(a)(4).




                                           4
right side of his face and near his right eye. According to Respondents, so long as
they provided Petitioner with “some sort of treatment,” then the trial court could
not find that he made out a claim of deliberate indifference.


             However, it is well-settled that a trial court may do just that if a prison
official such as a doctor has exhibited a “deliberate indifference to serious medical
needs of prisoners[, which] constitutes the ‘unnecessary and wanton infliction of
pain,’ proscribed by the Eighth Amendment.” Estelle v. Gamble, 429 U.S. 97, 104
(1976) (internal citations omitted). “In 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. at
106.

             To succeed, a claim that prison conditions violate the
             Eighth Amendment must satisfy both an objective and
             subjective requirement – the conditions must be
             “sufficiently serious” from an objective point of view,
             meaning that they involve denial of the minimum
             civilized measure of life’s necessities, and the plaintiff
             must demonstrate that prison officials acted subjectively
             with “deliberate indifference.” Farmer [v. Brennan, 511
             U.S. 825, 832 (1994)]; Rhodes [v. Chapman, 452 U.S.
             337, 347 (1981)]. Deliberate indifference exists if an
             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.” Farmer, 511 U.S. at 837.


Neely v. Department of Corrections, 838 A.2d 16, 20 n.6 (Pa. Cmwlth. 2003).


                                           5
               What Respondents are actually contending is that the trial court
abused its discretion in finding that deliberate indifference was made out because
Petitioner received inadequate medical care.


               Before we can reach the merits, because Respondents have already
complied with the order, we must first consider whether this appeal is moot. A
case is moot where there is no actual case or controversy in existence at all stages
of the controversy. Pap’s A.M. v. City of Erie, 812 A.2d 591, 599 (Pa. 2002).
Although we generally will not decide moot cases, exceptions are made when (1)
the conduct complained of is capable of repetition yet evading review, 5 (2) the
matter involves questions important to the public interest, or (3) the matter will
cause one party to suffer some detriment without the Court’s decision. Clinkscale
v. Department of Public Welfare, 101 A.3d 137, 139 (Pa. Cmwlth. 2014).


               Once Respondents complied with the trial court’s order and provided
Petitioner with both medical examinations, the present case became technically
moot. Notwithstanding, Respondents contend that this appeal should fall within
the “capable of repetition yet evading review” exception because the trial court’s
order required Petitioner’s treatment within 10 days, which was too short of a time
period to be fully litigated. While that may be true, the standard is not whether the
facts of a particular case make it difficult to fully litigate the issue to conclusion,

       5
         To fall within the capable of repetition yet evading review exception, two elements
must be established: (1) that the duration of the challenged action is too short to be fully litigated
prior to its cessation or expiration, and (2) that there is a reasonable expectation that the
complaining party will be subjected to the same action again. Philadelphia Public School
Notebook v. School District of Philadelphia, 49 A.3d 445, 449 (Pa. Cmwlth. 2012).




                                                  6
but whether the issue, in general, is capable of repetition but will always escape
review. While the trial court ordered treatment within a 10-day time period, a trial
court could find that the care given was tantamount to deliberate indifference but
requires continuing treatment, which could be litigated to conclusion and would
also allow time for appellate review.


             In the alternative, Respondents also assert that this appeal should fall
within the “public interest” exception because the public has a significant interest
in the medical care being provided to inmates, the cost of that care, and in what
circumstances an inmate should be referred to an outside provider. Yet, “the
appellate courts of this jurisdiction have infrequently invoked the great public
importance exception to the mootness doctrine.” In re Gross, 382 A.2d 116, 122
(Pa. 1978). While the public, like all governmental expenditures, has an interest in
the cost of care given to prisoners, the challenge here does not fall within the
public interest exception.    This case involves whether the trial court properly
ordered an outside provider to examine a particular prisoner with a particular
condition. Unlike cases where the exception has applied, here, addressing the
merits will only determine whether the trial court abused its discretion in this
particular case.   See, e.g., Jersey Shore Area School District v. Jersey Shore
Education Association, 548 A.2d 1202 (Pa. 1988) (involving legality of teachers’
strike); In re General Election, November 8, 1988, 560 A.2d 260 (Pa. Cmwlth.
1989) (involving over 4,700 voter registration applications mailed after deadline).
Just because the government has to spend funds in a particular instance does not
mean that it automatically falls within the public interest exception.




                                          7
             Accordingly, because Respondents’ appeal is moot, we do not reach
the underlying merits of this appeal.6



                                          __________________________________
                                          DAN PELLEGRINI, Senior Judge




      6
        Because of the manner in which we have disposed of this appeal, we do not reach the
remaining issues raised by Respondents.



                                            8
         IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Dennis McKeithan                     :
                                     :
             v.                      : No. 133 C.D. 2017
                                     :
Michael Clark, Superintendent of the :
State Correctional Institution –     :
Albion, Dr. Michael Boggio, Medical :
Director                             :
                                     :
Appeal of: Michael Clark,            :
Superintendent, SCI-Albion, and      :
Dr. Jose Boggio, Medical Director    :




                                  ORDER


            AND NOW, this 2nd day of October, 2017, it is hereby ordered that
Respondents’ appeal is dismissed as moot.



                                     __________________________________
                                     DAN PELLEGRINI, Senior Judge
