Barry Jones v. Dr. Paul Noel

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 22-2992
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BARRY JONES,
Appellant
v.
DR. PAUL NOEL;
DR. HARESH PANDYA
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 3-19-cv-00004)
District Judge: Honorable Jennifer P. Wilson
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 17, 2024
Before: SHWARTZ, RESTREPO, and FREEMAN, Circuit Judges
(Opinion filed: April 22, 2024)
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OPINION*
___________
* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.

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PER CURIAM
Barry Jones appeals the District Court’s order granting Appellees’ motion for
summary judgment. For the reasons that follow, we will vacate the District Court’s order
and remand for further proceedings.
Jones, a Pennsylvania prisoner, filed a complaint alleging that Appellee Dr. Paul
Noel, the Chief of Clinical Services for the Pennsylvania Department of Corrections
(“DOC”) and Appellee Dr. Haresh Pandya, the medical director at Jones’s prison, were
deliberately indifferent to his Hepatitis C. Jones alleged that Appellees failed to treat his
Hepatitis C with direct-acting antiviral drugs (“DAADs”) until he developed cirrhosis.
Appellees filed motions for summary judgment which the District Court granted. Jones
filed a timely notice of appeal.
We have jurisdiction under 28 U.S.C. § 1291 and review the District Court’s order
granting summary judgment de novo. Burns v. Pa. Dep’t of Corr., 642 F.3d 163, 170 (3d
Cir. 2011). A party moving for summary judgment must show that “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). To determine whether the movant has satisfied this burden, “we
view the facts and draw all reasonable inferences in the light most favorable to the
nonmovant.” Pearson v. Prison Health Serv., 850 F.3d 526, 533 (3d Cir. 2017). “Material
facts are those that could affect the outcome of the proceeding, and a dispute about a
material fact is genuine if the evidence is sufficient to permit a reasonable jury to return a
verdict for the non-moving party.” Id. at 534 (internal quotations omitted).

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Jones states that he was diagnosed with Hepatitis C in 1990 and was previously
treated with Interferon and Ribavirin. Unfortunately, the treatment was not effective and
was discontinued. Jones alleged that he requested the DAADs when he learned of them
but that Appellee Pandya told that him that the drugs were too costly. Instead, he was
monitored, and eventually, after tests indicated that Jones had developed cirrhosis, he was
approved for treatment with DAADs. That treatment was then delayed while Jones
switched to a seizure medication that was compatible with the DAADs. Although the
treatment was successful, Jones argued that he suffers from irreparable liver damage, has
a higher risk of liver cancer, and has a continuing skin condition caused by Hepatitis C.
The District Court began its analysis by setting forth what it believed were the
material facts. It noted that the FDA had approved the DAADs in 2011 and that the
drugs were very effective with a 90-95 percent success rate but also very costly. It
observed that the American Association for the Study of Liver Disease (“AASLD”) and
the Infectious Disease Society of America recommended in 2015 that nearly all patients
with chronic Hepatitis C receive DAADs. The District Court described the protocols
developed by the DOC to prioritize which prisoners with Hepatitis C would receive
DAADs and the medical criteria used for this determination. Dr. Noel developed the
DOC’s protocols for the treatment of inmates with Hepatitis C and determined whether
inmates were to be treated with the DAADs. If an inmate was not treated with DAADs,
the inmate would be periodically monitored, examined, and tested. Dr. Pandya was one
of Jones’s treating physicians.

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The District Court stated that there was no dispute that Dr. Noel followed the
DOC’s protocols. In response to Jones’s argument that, under the protocols, a prisoner
would never be treated if his disease never becomes severe enough, the District Court
pointed out that the protocols had been updated and the criteria for treatment had changed
to allow prisoners with less severe disease to receive treatment. The District Court
concluded that Dr. Noel had not been deliberately indifferent to Jones’s medical needs.
The District Court then turned to Jones’s claim against Dr. Pandya. Noting
Jones’s argument that he should have been treated earlier based on the AASLD’s
recommendation, the court characterized his challenge as a disagreement with the
particular course of treatment, which it believed was not a basis for a claim of deliberate
indifference. The court concluded that Jones had not established that Dr. Pandya had
been deliberately indifferent to his medical needs.
In order to establish a claim under the Eighth Amendment for denial of medical
care, Jones needed to show that the Appellees were deliberately indifferent to his serious
medical needs. Estelle v. Gamble, 429 U.S. 97, 104-05 (1976). A medical need is
serious if it 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. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir.
1987) (citation omitted). The parties agree that Jones’s Hepatitis C is a serious medical
need. Thus, the issue is whether Appellees have met their burden of showing that there is
no dispute of material fact and they were not deliberately indifferent as a matter of law.
As explained below, they have not met that burden.

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Officials are deliberately indifferent when they are actually aware of a substantial
risk of serious harm to a prisoner and disregard that risk. See Farmer v. Brennan, 511
U.S. 825, 837 (1994). Simple disagreement regarding the appropriate medical treatment
is not sufficient to establish deliberate indifference. Pearson, 850 F.3d at 535. “[W]hen
medical care is provided, we presume that the treatment of a prisoner is proper absent
evidence that it violates professional standards of care.” Id. We have set forth several
ways in which deliberate indifference to inmates’ medical needs could be manifested,
including delay of necessary medical treatment for non-medical reasons, opting for an
easier and less efficacious treatment, or denying access to a physician capable of
evaluating the need for such treatment. Lanzaro, 834 F.3d at 346-47. Because the
inquiry turns on facts and circumstances specific to each case, whether a defendant’s
conduct amounts to deliberate indifference has been described as a “classic issue for the
fact finder.” See A.M. ex rel. JMK v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572,
587-88 (3d Cir. 2004) (citing Armstrong v. Squadrito, 152 F.3d 564, 577 (7th Cir. 1998)).
As noted above, the District Court concluded that there was no genuine dispute
that Dr. Noel followed the protocols and that Jones received monitoring in accordance
with the protocols. However, at issue is not whether Drs. Noel and Pandya followed the
protocols but whether the medical attention Jones’s received was constitutionally
adequate. As discussed below, there are genuine issues of material fact regarding this
issue.
The parties disagree as to the appropriate standard of care for persons with
Hepatitis C. Jones pointed to the recommendation of the AASLD in 2015 that nearly all

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patients with chronic Hepatitis C receive DAADs. Appellee Dr. Noel argued that
Hepatitis C takes 20-40 years to progress to cirrhosis, and that it is not medically
necessary to treat all inmates with Hepatitis C with DAADs. However, the question is
whether it was within professional standards of care to not treat Jones with DAADs.
Appellees do not point to any evidence in the record that simply monitoring Jones, who
had had Hepatitis C for approximately 25 years at the time, until the test results showed
cirrhosis—instead of treating him with an effective medication—constituted care within
the professional standards for Hepatitis C.
We have held that medical attention in the form of evaluations by specialists does
not always constitute acceptable care. In Durmer v. O’Carroll, 991 F.2d 64, 68 (3d Cir.
1993), the physical therapy needed by the inmate plaintiff would only be effective within
eighteen months of the strokes he had suffered. The defendant prison doctor instead sent
the inmate to be evaluated by a neurologist, a neurosurgeon, and a physiatrist. By the
time the inmate saw the physiatrist, physical therapy was not recommended because too
much time had elapsed since the strokes and the therapy would not be effective. The
inmate alleged that he lost substantial use of his left leg and foot. We reversed the
District Court’s grant of summary judgment in favor of the doctor. We concluded that
there was evidence suggesting that the doctor had a motive for deliberately avoiding
physical therapy due to the expense and burden it would place on the prison. Id. We also
noted that “[d]iagnosis is not equivalent to treatment; a defendant might be deliberately
indifferent to a prisoner’s specific medical needs regardless of how many doctors he

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sends him to for diagnosis.” Id. at 68 n.9. Thus, in some circumstances, simply
diagnosing or monitoring a condition is not sufficient.
As noted above, a fact is material if it could affect the outcome of the proceeding
and the factual dispute is genuine if a reasonable jury could return a verdict for the non-
moving party. Pearson, 850 F.3d at 534. Here, drawing all reasonable inferences in the
light most favorable to Jones as the nonmovant, there is a genuine material factual
dispute as to whether Appellees’ choice to monitor Jones’s Hepatitis C, using the
methods they chose, instead of treating it with DAADs, constituted adequate care.
There is also a genuine factual dispute regarding whether there were non-medical
reasons for the delay in Jones’s receiving treatment. Jones asserts that there were no
medical reasons to delay approving him for treatment with DAADs and states in an
affidavit that Dr. Pandya told him that the DAADs were too costly. Thus, he argues, the
cost of the DAADs was a non-medical reason that his Hepatitis C treatment was delayed.
Dr. Noel contends that the protocols prioritized treating the sickest inmates first.
He asserts that he exercised professional judgment in allocating limited resources.
However, he does not suggest that there was limited availability of the DAADs; rather, it
appears that the limited resources to which he refers were the funds available to pay for
the DAADs. Jones observes that Dr. Noel never stated that cost was not a consideration.
Dr. Pandya argues that “any perceived delay in treatment was a result of
disqualifying factors of Mr. Jones’ health which were taken into account by his doctors
when exercising their medical judgment in deciding he was not a candidate for treatment
at that time.” Br. at 21. However, besides the need to change Jones’s seizure medication,

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it is not clear what “disqualifying factors” delayed the approval for Jones’s treatment.
Moreover, Appellees do not argue that they were not aware that Jones would need time to
change seizure medications. They do not explain why, if they knew that there would be
an additional delay before treatment could start, they still waited until he had cirrhosis to
approve him for DAADs.
Appellees were not entitled to summary judgment on Jones’s claims. Viewing the
totality of the undisputed facts in the light most favorable to Jones as the nonmoving
party, we conclude that Appellees did not establish, as a matter of law, that they were not
deliberately indifferent to Jones’s serious medical needs.1 Accordingly, we will vacate
the District Court’s grant of summary judgment and remand the matter for further
proceedings. The District Court shall appoint counsel for Jones on remand, unless he
expresses to the District Court that he wishes to continue pro se.
1 In response to the motions for summary judgment, Jones cited to District Court
decisions addressing the DOC’s protocols. See Chimenti v. Wetzel, No. CV 15-3333,
2018 WL 3388305, at *8-12 (E.D. Pa. July 12, 2018) (describing evidence of cost
considerations in the development of the protocols, the extrahepatic complications of
Hepatitis C, and the inaccuracy of monitoring); Abu-Jamal v. Wetzel, No. 3:16-cv-2000,
2017 WL 34700, at *10 (M.D. Pa. Jan. 3, 2017) (concluding that the standard of care for
Hepatitis C is treatment with DAADs). We need not consider evidence from these other
cases to determine that Appellees are not entitled to summary judgment here, but we note
that the evidence certainly bolsters Jones’s claims. While Dr. Noel argues that the
evidence is not part of the record, he does not dispute it; e.g., he does not argue that he
would give different answers if deposed by Jones. We leave it to the District Court on
remand to determine, if necessary, whether it may consider such evidence. See, e.g., Fed.
R. Evid. 201(b) (describing facts that may be judicially noticed); Home Depot USA, Inc.
v. Lafarge N. Am., Inc., 59 F.4th 55, 63 (3d Cir. 2023) (describing requirements for issue
preclusion).

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