M. Rokita, Jr., & All Others Similarly Situated v. The PA DOC

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mark Rokita, Jr., and All Others :
Similarly Situated, :
Petitioner :
: No. 340 M.D. 2020
v. :
: Submitted: November 17, 2021
The Pennsylvania Department :
of Corrections, :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge1
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
OPINION
BY JUDGE McCULLOUGH FILED: April 12, 2022
Before the Court is the preliminary objection of the Department of
Corrections (Department) to the petition for review (Petition) filed by Mark Rokita,
pro se, in our original jurisdiction. Rokita has sought an order compelling the
Department to allow him to receive Medication-Assisted Treatment (MAT) for his
substance use disorder while incarcerated. The Department has filed a preliminary
objection in the nature of a demurrer, contending that Rokita is unable to state a claim
upon which relief can be granted because, in the Department’s view, under no
constitutional or statutory law may Rokita be found to be entitled to such medical
1
This case was assigned to the opinion writer before January 7, 2022, when Judge Cohn
Jubelirer became President Judge.
treatment. Upon review, we overrule the Department’s preliminary objection and
conclude that Rokita’s claim may proceed beyond this initial pleading stage of
litigation.
Background
Rokita’s Petition avers the following. Rokita is an inmate incarcerated
at the State Correctional Institution at Houtzdale (SCI-Houtzdale). Petition ¶1.
Rokita has been diagnosed with substance use disorder in connection with his use of
opioids. Id. ¶¶1, 5, 11. Rokita asserts that he developed a dependence upon opioids
after they were prescribed to him following an injury, but when he could no longer
obtain them through proper channels, he eventually turned to the illegal opioid pill
trade. Id. ¶11. Rokita was ultimately arrested and incarcerated for possession of
narcotics. Id. ¶12.
During his incarceration, and due to his continuing addiction which
began with medication prescribed for an injury, Rokita asserts that he has unlawfully
obtained and used the medication “Suboxone” in order to treat his condition, which he
has purchased through the prison black market. Id. ¶¶12-13. Rokita has sought to
obtain such medications properly—under the supervision of medical professionals—
through his request for MAT or the opportunity to see a doctor who could prescribe
him MAT. Id. ¶¶1-2, 20. Rokita wrote to a social worker requesting that he be
permitted to receive MAT for his disorder, specifically with the medication known as
“Vivitrol.” Id. ¶2. His request was refused because the Department’s policies
prohibit MAT except for prisoners whose release on parole is imminent. Id. ¶¶2-3;
Exhibit B (response to Rokita’s request for MAT).2
2
The Department’s website indicates that it permits forms of MAT in several limited
circumstances: methadone maintenance for pregnant inmates to protect the fetus from withdrawal;
(Footnote continued on next page…)
2
Rokita filed a grievance in which he requested the opportunity to be
treated with MAT, but his grievance was denied. Petition ¶¶2-3; Exhibit D
(Grievance Officer denying Rokita’s grievance and explaining that “there are no
[MAT] programs in place within general population institutions in the [Department]
for which Rokita would qualify”). For an individual in Rokita’s position, the
Department offers only group counseling sessions. Petition ¶¶3, 20; Exhibit D.3
(continued…)
Vivitrol injections for inmates being released from custody; oral naltrexone for select new intakes
with short minimum sentences; and, as of June 2019, MAT continuation for inmates enrolled in
MAT programs as of the time that they enter the Department’s custody. Medication Assisted
Treatment (MAT), https://www.cor.pa.gov/About%20Us/Initiatives/Pages/Medication-Assisted-
Treatment.aspx (last visited April 11, 2022). Consistent with Rokita’s averments, the Department
does not appear to offer MAT for inmates such as Rokita, who have been incarcerated prior to June
2019 and are unable to obtain a prescription for MAT due to the Department’s policies.
3
The Initial Review Response denying Rokita’s grievance stated:
Review of the sick call request which Rokita attaches to the grievance indicates that
he submitted his request to psychiatry, specifically requesting Medication Assisted
Treatment (MAT), and received [a] response that the psychiatry department does not
prescribe MAT. Per information provided by the Drug and Alcohol Treatment
supervisor at SCI Houtzdale, the [Substance Use Disorder] department offers self-
help groups for all general population members. These groups include Alcoholics
Anonymous, Narcotics Anonymous, SMART — Self Management and Recovery
Training[,] and Double-Trouble (Co-occurring Mental Health and Addictions).
Also, every unit has a certified peer support specialist assigned. They are trained in
drug and alcohol treatment techniques, as well as general recovery practices. Each
unit also has Psychology staff to help address any of their more urgent
psychosomatic symptoms of withdraw[al]/cravings. Rokita can also seek the input
of the Vivitrol social worker, as this is a possible option for his treatment
immediately prior to his discharge from incarceration.
Petition, Exhibit D.
3
Rokita appealed the grievance determination to the Facility Manager,
who denied Rokita’s appeal. Petition ¶3. The Facility Manager stated that Rokita
had been properly informed of the option available to him, i.e., group counseling.
The Facility Manager further told Rokita that “[y]our own actions have led to the
issue you grieved and your own failure to follow the proper process has led to your
non-treatment.” Id. ¶4; Exhibit F.4
Rokita then sought relief in this Court. Rokita asserts that the
Department’s refusal to allow him to receive MAT for his substance use disorder is a
violation of the Eighth Amendment to the United States Constitution.5 Petition ¶¶10,
16. Rokita additionally contends that the Department’s policy regarding MAT
4
Parenthetically, it is now well understood that the prescription of opioid medications was a
substantial contributing cause of the opioid epidemic now afflicting our nation, discussed infra. As
the United States Department of Health and Human Services (HHS) explains, “[i]n the late 1990s,
pharmaceutical companies reassured the medical community that patients would not become
addicted to opioid pain relievers and healthcare providers began to prescribe them at greater rates,”
but, in turn, “[i]ncreased prescription of opioid medications led to widespread misuse of both
prescription and non-prescription opioids before it became clear that these medications could indeed
be highly addictive.” What is the U.S. Opioid Epidemic?, https://www.hhs.gov/opioids/about-the-
epidemic/index.html (last visited February 18, 2022). The dire consequence of the misuse of these
drugs has given rise to a hotbed of litigation against their manufacturers, distributors, and
prescribing physicians. See, e.g., Nicolas P. Terry, The Opioid Litigation Unicorn, 70 S.C. L. REV.
637, 637 (2019) (“More than forty state attorneys general and innumerable counties, cities, and
tribal nations are either investigating or actively litigating over-promotion and related claims against
opioid manufacturers and other participants in the opioid prescription drug supply chain.”); see also
Jonathan P. Novak, Bootstrapping the Opioid Epidemic: Civil Litigators Are Assisting Communities
in Recovering from the Opioid Crisis Where the Federal Government Cannot, 52 MD. B.J. 57
(Spring 2019).
5
The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. amend. VIII. The Eighth
Amendment is applicable to the States through the Fourteenth Amendment, U.S. Const. amend.
XIV. See Roper v. Simmons, 543 U.S. 551, 560 (2005).
4
violates his rights under the Americans With Disabilities Act of 1990 (ADA).6 Id.
¶¶10, 17, 19. As relief, Rokita requests an order compelling the Department to allow
him access to a doctor who specializes in substance abuse disorders and who is
authorized to prescribe MAT. Id. ¶25.7
The Department filed a preliminary objection in the nature of a
demurrer.8 Although the Department facially asserts a single demurrer, it advances
several reasons as to why Rokita is unable to state a claim upon which relief may be
granted. The Department has developed three such reasons in its brief in support of
its preliminary objection: (1) that Rokita’s averments do not satisfy the governing
standard under the Eighth Amendment with respect to the denial of medical
treatment; (2) that Rokita failed to state a medical malpractice claim against the
Department and failed to file a certificate of merit in connection therewith; and (3)
that Rokita is unable to state a claim under the ADA.
6
42 U.S.C. §§12101-12213.
7
In various places in his Petition, Rokita refers generally to other similarly situated inmates
and the difficulties that they have experienced in connection with the Department’s MAT policy.
Petition ¶¶9, 14-15, 24-25. However, Rokita does not expressly state that he has brought this action
on their behalf, and he has not attempted to characterize the suit as a class action. As such, we
conclude that Rokita has commenced this action solely in his individual capacity, and will not
further address any suggestion that Rokita represents any similarly situated inmate. See, e.g.,
Sigman v. Department of Corrections (Pa. Cmwlth., No. 456 M.D. 2020, filed April 29, 2021), slip
op. at 3 n.4 (noting that although a prisoner petitioner mentioned similarly situated inmates, he had
done so only generally and did not purport to sue on their behalf, and therefore had “sued the
Department solely in his individual capacity” and did not file “an impermissible class-action
lawsuit”).
8
A preliminary objection may be based upon the “legal insufficiency of a pleading
(demurrer).” Pa.R.Civ.P. 1028(a)(4).
5
Discussion
As a preliminary objection, the Department’s demurrer “admit[s] as true
all well and clearly pleaded material, relevant factual averments, and all inferences
fairly deducible therefrom.” Winton v. Pennsylvania Department of Corrections, 263
A.3d 1240, 1243 n.4 (Pa. Cmwlth. 2021) (quoting Barndt v. Pennsylvania
Department of Corrections, 902 A.2d 589, 592 (Pa. Cmwlth. 2006)). “However,
conclusions of law and unjustified inferences are not so admitted.” Id. The “question
presented by the demurrer is whether, on the facts averred, the law says with certainty
that no recovery is possible.” Chichester School District v. Chichester Education
Association, 750 A.2d 400, 402 n.8 (Pa. Cmwlth. 2000) (citing MacElree v.
Philadelphia Newspapers, Inc., 674 A.2d 1050 (Pa. 1996)). Accordingly, Rokita
receives the benefit of the doubt as to whether his averments are sufficient to state a
claim. “Any doubt should be resolved in favor of overruling the demurrer.” Id.A. Eighth Amendment
Under the Eighth Amendment, the government has an “obligation to
provide medical care for those whom it is punishing by incarceration.” Estelle v.
Gamble, 429 U.S. 97, 103 (1976). After all, a prison “inmate must rely on prison
authorities to treat his medical needs; if the authorities fail to do so, those needs will
not be met.” Id. Plainly, the denial of medical treatment can pose serious risks; but
even in “less serious cases,” the “denial of medical care may result in pain and
suffering which no one suggests would serve any penological purpose.” Id. The
Supreme Court of the United States has thus held that the denial of medical care to a
prison inmate constitutes a violation of the Eighth Amendment where it amounts to
“deliberate indifference to serious medical needs of prisoners.” Id. at 104.
6
In his Eighth Amendment claim, Rokita asserts that, by refusing to
provide him with the opportunity to receive MAT for his substance use disorder, the
Department is denying him medical care. Rokita’s claim is not wholly novel.
Indeed, in recent years, the refusal of correctional institutions to provide MAT to
prisoners with substance use disorders has been the subject of both litigation and
legal scholarship.9
Underlying this developing area of the law is an unfortunate reality,
which cannot escape this Court’s notice. The prevalence of opioid use and addiction
has become a crisis in the United States, to the extent that it has been recognized as a
public health emergency by both the federal government and this Commonwealth.10
As this crisis permeates all levels of society, it is no surprise that its effects are felt
within prison walls, where many individuals who are addicted to controlled
substances eventually find themselves.11 It is in the prison context that legal
9
See generally Emily Mann, Advocating for Access: How the Eighth Amendment and the
Americans with Disabilities Act Open A Pathway for Opioid-Addicted Inmates to Receive
Medication-Assisted Treatment, 29 ANNALS HEALTH L. ADVANCE DIRECTIVE 231 (2020); Melissa
Koppel, Note, Medication-Assisted Treatment: Statutory Schemes & Civil Rights Implications, 27
CARDOZO J. EQUAL RTS. & SOC. JUST. 145 (2020).
10
HHS Acting Secretary Declares Public Health Emergency to Address National Opioid
Crisis (October 26, 2017), http://www.hhs.gov/about/news/2017/10/26/hhs-acting-secretary-
declares-public-health-emergency-address-national-opioid-crisis.html (last visited April 11, 2022);
Gov. Wolf Signs 14th Renewal of Opioid Disaster Declaration,
https://www.governor.pa.gov/newsroom/gov-wolf-signs-14th-renewal-of-opioid-disaster-
declaration/ (last visited February 18, 2022).
11
See Petition ¶24 (citing Steve Horn, Opioid Epidemic Impacts Prisons and Jails, Prison
Legal News, Vol. 30, No. 9 (September 2019), available at
https://www.prisonlegalnews.org/news/2019/sep/5/opioid-epidemic-impacts-prisons-and-jails/ (last
visited February 18, 2022)).
7
challenges similar to Rokita’s have arisen, concerning the practices of correctional
facilities that, like the Department, refuse to provide access to MAT in connection
with opioid addiction, and offer instead only counseling services.
One such case is Pesce v. Coppinger, 355 F. Supp. 3d 35, 40 (D. Mass.
2018). Geoffrey Pesce had been prescribed a MAT program by his physician,
pursuant to which he had been receiving daily doses of methadone at a clinic. Pesce,
355 F. Supp. 3d at 41-42. Pesce had a suspended driver’s license, and, while driving
himself to the methadone clinic one day, Pesce was pulled over and arrested for
driving with a suspended license, which constituted both a violation of his parole and
a new criminal offense. Id. at 41. Pesce faced a 60-day sentence for the parole
violation, plus a mandatory minimum sentence of at least 60 days’ incarceration on
the new charge. Id. Because the correctional institution in which Pesce would be
housed did not provide methadone to its inmates, Pesce filed suit in the federal
district court in Massachusetts, seeking a preliminary injunction and temporary
restraining order, which would require that he be provided with access to methadone
while incarcerated. Like Rokita in the instant case, Pesce relied upon the Eighth
Amendment and the ADA as support for his claims.
After determining that Pesce’s claims were ripe for review, the district
court next assessed Pesce’s likelihood of success on the merits for the purpose of
assessing his right to injunctive relief. Turning first to the ADA, the court noted that
it was undisputed that Pesce, who suffered from opioid use disorder, was a “qualified
individual[] with disabilities” for purposes of the ADA. Id. at 45. Citing
Pennsylvania Department of Corrections v. Yeskey, 524 U.S. 206, 210 (1998), the
district court noted that medical care provided to inmates constitutes a “service” that
must be provided without discrimination under the ADA. Pesce, 355 F. Supp. 3d at
8
45. The court noted the rationale behind the policy prohibiting the use of opioids in
the subject correctional facility—that inmates may hide medications in their mouths,
known as “cheeking,” and transfer them to other inmates—but the court noted that
there had been no specific security concerns articulated relevant to Pesce’s proposed
methadone intake. Id. at 46. Moreover, the court reasoned, “[m]edical decisions that
rest on stereotypes about the disabled rather than ‘an individualized inquiry into the
patient’s condition’ may be considered discriminatory.” Id. (quoting Kiman v. New
Hampshire Department of Corrections, 451 F.3d 274, 285 (1st Cir. 2006)). The
proposed treatment program that would be available to Pesce during his upcoming
incarceration resembled treatments that previously had been ineffective for Pesce,
and “could potentially place Pesce at a higher risk of relapse and overdose upon
release.” Id. at 47. The court concluded that, “[a]bsent medical or individualized
security considerations underlying the decision to deny access to medically necessary
treatment,” the policy prohibiting methadone, as applied to Pesce, was either
“arbitrary or capricious—as to imply that it was a pretext for some discriminatory
motive,” or it was “discriminatory on its face.” Id. (quoting Kiman, 451 F.3d at 284).
Thus, the court found that Pesce was likely to succeed on the merits of an ADA
claim.
Moreover, the court found that Pesce was likely to succeed on the merits
of a constitutional claim under the Eighth Amendment. Invoking the above-
mentioned “deliberate indifference” standard articulated in Estelle, the court noted
that, “[t]o prevail on an Eighth Amendment claim of deliberate indifference based on
inadequate or delayed medical care, the plaintiff must satisfy both an objective and
subjective inquiry.” Id. (citing Perry v. Roy, 782 F.3d 73, 78 (1st Cir. 2015)). The
objective prong requires a showing that the medical need at issue is “sufficiently
9
serious,” meaning that it “was either diagnosed by a physician as mandating
treatment or is so obvious that a layperson would recognize the need for medical
assistance.” Id. (citing Burrell v. Hampshire County, 307 F.3d 1, 8 (1st Cir. 2002);
Gaudreault v. Municipality of Salem, Massachusetts, 923 F.2d 203, 208 (1st Cir.
1990)). The court deemed this element satisfied for the reasons discussed in its
analysis of Pesce’s ADA claim. Id. The subjective prong of the deliberate
indifference standard, the court observed, requires a plaintiff to demonstrate “intent
or wanton disregard when providing inadequate care.” Id. (citing Perry, 782 F.3d at
79). Having found the objective prong satisfied, the court focused on the subjective
prong.
The court stressed that the “[d]efendants have implemented a blanket
policy prohibiting the use of methadone” within the correctional institution, and that
they “have stood by the policy without any indication that they would consider
Pesce’s particular medical history and prescribed treatment in considering whether
departure from such policy might be warranted.” Id. The court noted that, in the
First Circuit, “[a]llegations that prison officials denied or delayed recommended
treatment by medical professionals may be sufficient to satisfy the deliberate
indifference standard” of the Eighth Amendment. Id. at 48 (quoting Alexander v.
Weiner, 841 F. Supp. 2d 486, 493 (D. Mass. 2012)). In Pesce’s case, the policy
prohibiting methadone in the correctional institution would ensure that Pesce would
be denied access to the medication prescribed to him by his physician. Because
Pesce sufficiently alleged that the challenged policy “ignore[s] treatment
prescriptions given to [him] by [his] doctors,” the court concluded that Pesce was
likely to succeed on the merits of his Eighth Amendment claim. Id. (quoting
Alexander, 841 F. Supp. 2d at 493). After finding the remaining requisites for a
10
preliminary injunction met, the court ultimately issued the requested injunction,
allowing Pesce to continue to receive his prescribed form of MAT during his
incarceration.
Notably, there is a distinction between Rokita’s situation and that of
Pesce. Pesce already had been prescribed a form of MAT by his physician when he
faced impending incarceration; Rokita has been incarcerated for some time, and he
does not have a prescription for any type of MAT—because the Department will not
allow him to obtain one. Nonetheless, it is not clear that this distinction should mean
that, as a categorical matter, Rokita is unable to claim the protections of the Eighth
Amendment. The court in Pesce emphasized the correctional facility’s interference
with the treatment prescribed by Pesce’s physician; here, the Department will not
allow Rokita to even see a physician authorized to prescribe that treatment.
It can hardly be doubted that substance addiction is, at least in broad
terms, a medical concern. It has long been recognized as such. See, e.g., Linder v.
United States, 268 U.S. 5, 18 (1925) (holding that physicians could prescribe
narcotics to assist addicts in withdrawal, reasoning that the governing statute “says
nothing of ‘addicts’ and does not undertake to prescribe methods for their medical
treatment. They are diseased and proper subjects for such treatment . . . .”). Unlike
in the days of Linder, in which the physician in question prescribed his patient
morphine and cocaine to ease the symptoms of addiction, there are now targeted
medications that are specifically designed to aid individuals in their recovery from
substance use disorders. The question here is whether the denial of that medical
treatment protocol raises concerns of a constitutional magnitude.
As noted above, prisons have an obligation to provide adequate medical
care to inmates, and “deliberate indifference” to the “serious medical needs” of
11
inmates constitutes a violation of the Eighth Amendment. Estelle, 429 U.S. at 104.
This Court has summarized the various elaborations upon that constitutional standard.
As for the existence of a “serious medical need,” we have explained:
Whether the medical need of an inmate is sufficiently
serious to constitute an injury amounting to cruel and
unusual punishment is an objective inquiry. [Estelle, 429
U.S. at 106-07]; 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
County Correctional Institutional Inmates v. Lanzaro, 834
F.2d 326, 347 (3d Cir. 1987).
Tindell v. Department of Corrections, 87 A.3d 1029, 1038-39 (Pa. Cmwlth. 2014).
With regard to the demonstration of “deliberate indifference,” we have summarized:
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 v.
Brennan, 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 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)
12
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 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
County, 834 F.2d at 346-47.
Id. at 1039-40.
Rokita’s Eighth Amendment claim is stated simply. By Rokita’s
averment, his opioid use problem has resulted in a medical diagnosis. Rokita’s
substance use disorder might fall into any number of “serious” categories: being
diagnosed by a physician; being obvious to a lay person as requiring medical
attention; affecting his daily activities; or causing unnecessary or chronic pain, etc.
See Tindell, 87 A.3d at 1038-39. Indeed, it is well understood that opioid addiction
can result in extreme and potentially dangerous withdrawal symptoms. But even
greater risks can follow. Absent effective treatment during incarceration, relapses
and overdoses upon release from incarceration are sadly common occurrences—such
overdoses are the leading cause of death among inmates after their release. Mann,
supra note 9, at 233 (citing Byron Alex, et al., Death After Jail Release: Matching to
Improve Care Delivery, 23 J. CORRECTIONAL HEALTH CARE 83, 86 (2017)). It is thus
13
conceivable that, should his claim be permitted to proceed, Rokita may be able to
establish that he has a “serious medical need” within the meaning of the Eighth
Amendment.
Yet, the Department has a blanket policy prohibiting medical treatment
(i.e., MAT) to inmates in Rokita’s position, and instead offers only group counseling
sessions. Because this decision was made pursuant to a policy prohibiting MAT
despite Rokita’s express request, the Department certainly “knows of” Rokita’s
condition and his request for medical treatment, but the Department “intentionally
refuses to provide it,” which may constitute “deliberate indifference” under our
precedent. Tindell, 87 A.3d at 1040. Moreover, the response to Rokita’s request
does not indicate that the Department afforded any individualized consideration of
Rokita’s circumstance to determine whether a departure from its policy may be
warranted. See Pesce, 355 F. Supp. 3d at 47 (noting in the context of “deliberate
indifference” analysis that defendants had “stood by the policy without any indication
that they would consider Pesce’s particular medical history and prescribed treatment
in considering whether departure from such policy might be warranted”).
The Department contends that Rokita merely disagrees with the
treatment offered to him, which does not constitute deliberate indifference to his
medical needs. It emphasizes that Rokita has been provided with group and talk
therapy, and the Department is accordingly not deliberately indifferent to his needs.
(Department’s Br. at 9-10.) This rationale disregards that there is a difference in kind
between the treatment options at issue. We do not doubt the qualifications of those
who offer the group therapy sessions to which the parties refer. However, manifestly,
talk therapy is not the same as medication. If a physician was to determine that
Rokita’s condition warrants treatment with MAT, then attending to Rokita’s “serious
14
medical need” may require that form of treatment, not merely group therapy sessions.
In this regard, we cannot agree with the Department that Rokita merely disagrees
with the type of treatment offered to him. Rather, Rokita asserts—correctly, it
appears—that there is an entire category of medical treatment that the Department’s
policies have made unavailable to him.
Along these same lines, the Dissent suggests that the Department has
made some assessment of the “appropriate and necessary” treatment for Rokita’s
affliction, i.e., talk therapy sessions. Rokita v. The Pennsylvania Department of
Corrections __ A.3d __, __ (Pa. Cmwlth. No. 340 M.D. 2020, filed April 12, 2022)
(Wojcik, J., dissenting) (Dissenting Opinion), slip op. at 2. This ignores the reality of
the situation—that the Department denied Rokita’s request pursuant to a categorical
policy prohibiting MAT for general population inmates such as Rokita. That is not
merely a treatment decision made by a medical professional based on evaluation of
individual need. Rather, it is a preemptive denial of an entire class of medical
treatment. Notably, this categorical approach also undercuts the Dissent’s attempt to
distinguish Pesce, inasmuch as the decision that the Dissent cites set aside Pesce
because the court there “specifically distinguished cases where prisons appropriately
had denied similar treatment based on individualized assessments of the inmate’s
medical needs.” Dissenting Opinion, __ A.3d at __, slip op. at 2 n.2 (quoting
Chamberlain v. Virginia Department of Corrections (W.D. Va., Civil Case No. 7:20-
cv-00045, filed September 28, 2020), appeals dismissed, (4th Cir., Nos. 20-7515 and
21-7349, filed December 22, 2021)). There has been no such individualized
assessment here. The Department simply decided that, regardless of whether a
15
medical professional would determine that MAT is appropriate for Rokita,12 that
whole class of medical care is unavailable to him.
Because the provision of adequate medical care in prison is a
constitutional necessity, it follows that the denial of an entire class of medical
treatment may raise a question under the Eighth Amendment. In this regard, we
reject the Dissent’s characterization of our rationale as an attempt to engineer social
policy and thereby to usurp the roles of the legislative and executive branches of our
government. See Dissenting Opinion, __ A.3d at __, slip op. at 3. To the contrary,
observance of the commands of the Eighth Amendment—like all provisions of the
Constitution—is a decidedly judicial concern. We, further, have in no way
implemented a “dangerous and unwarranted expansion” of the use of MAT in
prisons. Id. We reiterate that this matter arrives before us on preliminary objections.
We merely conclude that, given recent developments in the law related to the issue
before us, it is possible that Rokita can establish that he has been denied necessary
medical treatment in violation of the Eighth Amendment. For purposes of surviving
preliminary objections, that is enough.
To allow a claim such as Rokita’s to proceed beyond the initial pleading
stage is not “advocating for social reform,” as the Dissent chides. Id. at __, slip op. at
12
As noted throughout this opinion, because the Department’s policies do not allow MAT,
Rokita has not been permitted to see a physician who could prescribe him MAT. Thus, the Dissent
is correct in stating that Rokita has not supported his claim with the opinion of a medical
professional stating that MAT is necessary to treat his condition. However, as should be apparent,
an incarcerated individual such as Rokita does not have the freedom to seek out the physician of his
choice. An “inmate must rely on prison authorities to treat his medical needs; if the authorities fail
to do so, those needs will not be met.” Estelle, 429 U.S. at 103. Because Rokita can consult only
the medical professionals that the Department allows, who cannot prescribe him MAT, it is no
surprise that Rokita has not obtained a treatment recommendation for MAT. To hold this against
Rokita is, in effect, to discriminate against him based upon his status as a prisoner.
16
2. It is providing an individual with access to the courts, so that he may seek
protection of a right guaranteed by the Constitution. Indeed, in dismissively
characterizing Rokita’s condition as “self-inflicted” and proven treatment for that
condition as “dangerous,” it is the Dissent that reminds of the difficulty of
overcoming entrenched attitudes toward addiction which lead to the failure of our
institutions to recognize it as a legitimate medical concern—and thus one upon which
the Eighth Amendment may bear. Id. at __, slip op. at 1, 3. To be sure, Rokita has
brought us a challenging issue. But it is one of constitutional significance, and
therefore, despite the Dissent’s objections, we decline to summarily brush it aside.
In light of the foregoing, under governing precedent, it is conceivable
that Rokita could make out a claim that he has been denied medical treatment in a
manner that constitutes deliberate indifference to his serious medical needs.
Accordingly, to the extent that Rokita claims that the Department’s refusal to provide
him with access to a physician empowered to prescribe him MAT constitutes a
violation of the Eighth Amendment, we are unable to conclude that “on the facts
averred, the law says with certainty that no recovery is possible.” Chichester School
District, 750 A.2d at 402 n.8. In this regard, the Department’s demurrer is overruled.
B. Medical Malpractice
To the extent that the Department’s demurrer is premised upon medical
malpractice law, we find no merit in the suggestion. The Department contends that
Rokita has not pleaded the necessary elements of a medical malpractice claim, and
that he has not complied with the procedural prerequisites to establishing such a
claim. (Department’s Br. at 11-12.) The Department is correct, but its point is
immaterial. Rokita has not advanced a medical malpractice claim. It is not
17
surprising, then, that he has not pleaded the requirements for such a claim, or
followed the procedures applicable to medical malpractice suits.
Because the Department’s position on this point is irrelevant, to the
extent that its demurrer is premised upon medical malpractice law, it is overruled.
C. ADA
Title II of the ADA (relating to public services) provides, in relevant
part, that “no qualified individual with a disability shall, by reason of such disability,
be excluded from participation in or be denied the benefits of the services, programs,
or activities of a public entity, or be subjected to discrimination by any such entity.”
42 U.S.C. §12132. A “disability,” with respect to an individual, is defined as “a
physical or mental impairment that substantially limits one or more major life
activities of such individual”; “a record of such an impairment”; or “being regarded
as having such an impairment . . . .” 42 U.S.C. §12102(1)(A)-(C). A “public entity”
includes “any State or local government” as well as “any department . . . of a
State . . . or local government.” 42 U.S.C. §12131(1)(A)-(B). It is undisputed that
state prisons fall within the definition of a “public entity,” and that inmates may bring
ADA claims against state prisons. Pennsylvania Department of Corrections v.
Yeskey, 524 U.S. 206, 208-13 (1998). To establish a violation of Title II of the ADA,
a petitioner must show that: (1) he “is a qualified individual with a disability;” (2) he
“was either excluded from participation in or denied the benefits of some public
entity’s services, programs, or activities or was otherwise discriminated against;” and
(3) “such exclusion, denial of benefits, or discrimination was by reason of the
plaintiff’s disability.” Pesce, 355 F. Supp. 3d at 45 (quoting Parker v. Universidad
de Puerto Rico, 225 F.3d 1, 5 (1st Cir. 2000)).
18
Notably, the ADA excludes from the definition of “individual with a
disability” an individual who “is currently engaging in the illegal use of drugs, when
the covered entity acts on the basis of such use.” 42 U.S.C. §12210(a). However,
that exclusion does not apply to an individual who:
(1) has successfully completed a supervised drug
rehabilitation program and is no longer engaging in the
illegal use of drugs, or has otherwise been rehabilitated
successfully and is no longer engaging in such use;
(2) is participating in a supervised rehabilitation program
and is no longer engaging in such use; or
(3) is erroneously regarded as engaging in such use, but is
not engaging in such use[.]
42 U.S.C. §12210(b)(1)-(3). Thus, although current, illegal drug use will exclude an
individual from the definition of an “individual with a disability,” an addiction to
opiates, itself, may qualify as an “impairment” within the meaning of the ADA. See,
e.g., Start, Inc. v. Baltimore County, Maryland, 295 F. Supp. 2d 569, 576 (D. Md.
2003) (noting that “there is no question that opiate addiction may qualify as an
‘impairment’ provided the addict is not currently using drugs”).
Although Rokita does refer to past illegal drug use in his Petition, see
Petition ¶¶12-13, there is no indication in the Petition that Rokita “is currently
engaging in the illegal use of drugs,” such that his substance use disorder may not be
considered a disability under the ADA. 42 U.S.C. §12114(a) (emphasis added).
Indeed, in his brief opposing the Department’s demurrer, Rokita states that he is not
“currently” using drugs; he “was self-medicating years ago because there was no
adequate treatment” available to him. (Rokita’s Br. at 5.) Accordingly, at this
19
juncture, we cannot conclude that Rokita is categorically unable to establish that he is
a “qualified individual with a disability” for purposes of the ADA.
Perhaps more importantly, the ADA specifically states that,
notwithstanding the above-quoted exclusion regarding illegal drug use, “an individual
shall not be denied health services, or services provided in connection with drug
rehabilitation, on the basis of the current illegal use of drugs if the individual is
otherwise entitled to such services.” 42 U.S.C. §12210(c). One might conclude that
MAT is a health service, inasmuch as it involves the prescription of medication in
connection with a health issue. Certainly, MAT may be deemed a service provided in
connection with drug rehabilitation. It follows, then, that even if Rokita were deemed
to be excluded from the definition of an “individual with a disability” due to his
admittedly illegal drug use at some point in the past, that drug use still could not
serve as the basis to deny him access to MAT, if MAT may be found to be among the
“health services” or “services provided in connection with drug rehabilitation” that
the ADA deems worthy of protection.
As noted above, ADA claims relating to MAT in the prison context have
arisen in other courts in recent years. We have already discussed Pesce, in which the
court concluded that Pesce established a likelihood of success on the merits of an
ADA claim concerning a correctional facility’s refusal to allow him to continue his
MAT program while incarcerated. Pesce, 355 F. Supp. 3d at 45-47. Another similar
case is Smith v. Aroostook County, 376 F. Supp. 3d 146 (D. Me. 2019), aff’d, 922
F.3d 41 (1st Cir. 2019), which involved “nearly identical facts and claims” to Pesce.
Id. at 156 n.11. There, Brenda Smith had been prescribed a twice-daily dose of
buprenorphine as part of a MAT program for her opioid use disorder, and, like Pesce,
she faced a 40-day term of incarceration at a correctional facility that prohibited the
20
use of that medication. Id. at 149. The only treatment program available to Smith in
the correctional institution was substance abuse counseling. Id. at 152. Smith filed
suit and sought a preliminary injunction to allow her to continue taking her prescribed
medication during her incarceration, relying upon the Eighth Amendment and the
ADA. Adopting similar reasoning as the court in Pesce, the district court concluded
that Smith was likely to succeed on the merits of her ADA claim. Id. at 160-61.13
The court found that Smith’s ADA claim could be based upon a disparate treatment
rationale or based upon the failure to provide a reasonable accommodation, and that
she would be likely to succeed under either or both of those theories. Id. at 160-61.
As noted above, the instant circumstance differs somewhat from that at
issue in Pesce and Smith, in that the plaintiffs in those cases already had been
prescribed forms of MAT by their physicians when they faced impending
incarceration. Rokita is already incarcerated, and he does not have a prescription for
any type of MAT. However, should Rokita’s lack of a prescription somehow be
deemed to render him ineligible for the ADA protection that Pesce and Smith
enjoyed, then this merely highlights the unjust conundrum presented by the
Department’s policy. Rokita cannot obtain a prescription for MAT because the
Department will not allow him to do so. If this necessarily excludes him from the
ambit of the ADA, then the Department—the entity against which Rokita would be
seeking the protections of the ADA—would effectively have prevented Rokita from
meeting the conditions that would enable him to claim those protections against it.
13
Unlike the court in Pesce, the court in Smith declined to address Smith’s Eighth
Amendment claim because it found Smith’s ADA claim to be sufficient to warrant the relief
requested. Smith, 376 F. Supp. 3d at 161.
21
The Department, notably, does not directly contest Rokita’s status as a
qualified individual with a disability. Rather, it argues that Rokita has not been
denied access to a public service “by reason of” his disability, so as to establish a
claim under 42 U.S.C. §12132. Rather, the Department contends, it rejected Rokita’s
request because the Department determined that the talk therapy programs that it
offers are sufficient to address Rokita’s ailment. (Department’s Br. at 13.) We do
not find this to be a sufficient basis upon which to conclude that Rokita is
categorically unable to state a claim under the ADA. Notably, the plaintiffs in Pesce
and Smith were similarly situated—they were also qualified individuals with a
disability similar to Rokita’s. Yet, they were found to be likely to succeed on the
merits of their ADA claims based upon correctional facilities’ refusals to authorize
MAT. One could have made the same argument in those cases—that Pesce and
Smith were not denied a service “by reason of” their disabilities for purposes of the
ADA, but merely because alternative services were offered. In Pesce, the court
accepted Pesce’s argument that the refusal to allow him to continue MAT “deprives
him of the benefit of health care programs, and that such conduct constitutes
discrimination on the basis of his disability.” Pesce, 355 F. Supp. 3d at 45. The court
in Smith determined that the refusal to allow Smith to continue MAT was “so
unreasonable as to raise an inference” that her request was denied “because of her
disability.” Smith, 376 F. Supp. 3d at 160.
Of significant note, very recently as of the time of this writing, the
United States Department of Justice (DOJ) completed an investigation of several
county court programs in Pennsylvania, and determined that banning MAT for
individuals under court supervision or as a condition of participation in specialty drug
treatment courts constitutes a violation of the ADA. On February 2, 2022, the DOJ
22
sent a letter to counsel for the Administrative Office of Pennsylvania Courts, setting
forth its findings regarding the ADA violations, specifying corrective measures that
must be taken with regard to the handling of MAT, and providing notice that the DOJ
may take further action if the violations are not remedied. See The United States’
Findings and Conclusions Based on Its Investigation of the Unified Judicial System
of Pennsylvania under Title II of the Americans with Disabilities Act, DJ # 204-64-
170, February 2, 2022, available at https://www.ada.gov/ujs_lof.pdf (last visited
April 11, 2022). Specifically, the DOJ concluded that the Pennsylvania Unified
Judicial System, “through the actions of its component courts, violated Title II of the
ADA by at times prohibiting and at other times limiting the use of disability-related
medication to treat [opioid use disorder] by individuals under court supervision.” Id.
at 1. These prohibitions and limitations upon MAT “discriminated against the
complainants in violation of the ADA by denying them an equal opportunity to
benefit from court services, programs, or activities—including probationary and
treatment court supervision—because of their disability.” Id. at 1-2. Significantly, it
appears that the DOJ has no difficulty concluding that the denial of MAT constitutes
discrimination because of a disability, or in the language of the ADA, “by reason of”
such disability. 42 U.S.C. §12132.14Likewise here, the Department’s policy deprives Rokita of the benefit of
a health service that could potentially be beneficial in treating his disability. Absent
that disability, moreover, Rokita would have no reason to request the service in
14
Plainly, the DOJ’s determination that existing statutory law protects those who would be
denied MAT further undercuts the Dissent’s suggestion that this Court has somehow acted
inappropriately by allowing a similar ADA claim to proceed beyond preliminary objections. It
appears that, in the view of the federal government, the “social policy reform” about which the
Dissent frets has already been achieved by the ADA. Dissenting Opinion, __ A.3d at __, slip op. at
3.
23
question. Under these circumstances, it is conceivable that Rokita could establish
that he has been denied the benefit of a health service by a public entity, by reason of
his disability, and that a claim is viable under Title II of the ADA. As such, we
cannot conclude that, “on the facts averred, the law says with certainty that no
recovery is possible.” Chichester School District, 750 A.2d at 402 n.8. Therefore, to
the extent that the Department’s demurrer is premised upon Rokita’s inability to state
a claim under the ADA, it is in that respect overruled.
Having rejected the asserted grounds for the Department’s demurrer, its
preliminary objection is overruled.
________________________________
PATRICIA A. McCULLOUGH, Judge
24
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mark Rokita, Jr., and All Others :
Similarly Situated, :
Petitioner :
: No. 340 M.D. 2020
v. :
:
The Pennsylvania Department :
of Corrections, :
Respondent :
ORDER
AND NOW, this 12th day of April 2022, the preliminary objection of
the Pennsylvania Department of Corrections is OVERRULED. The Department is
directed to file an answer to the Petition for Review within 30 days of this order.
________________________________
PATRICIA A. McCULLOUGH, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Mark Rokita, Jr., and All Others :
Similarly Situated, :
:
Petitioner :
:
v. : No. 340 M.D. 2020
: Submitted: November 17, 2021
The Pennsylvania Department of :
Corrections, :
:
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE CHRISTINE FIZZANO CANNON, Judge
DISSENTING OPINION
BY JUDGE WOJCIK FILED: April 12, 2022
I dissent.
In his petition for review, Mark Rokita, Jr. (Inmate) does not allege that
he is not receiving treatment for his admitted self-inflicted addiction to prison black-
market drugs,1 or that any medical professional has determined that Medication
1
The Initial Review Response resolving Inmate’s grievance regarding his addiction
treatment states, in relevant part:
Review of the sick call request which [Inmate] attaches to the
grievance indicates that he submitted his request to psychiatry,
specifically requesting Medication Assisted Treatment (MAT), and
(Footnote continued on next page…)
Assisted Treatment (MAT) is medically necessary to treat his illegal drug addiction.
There is simply no allegation that Inmate has not received, nor will receive,
necessary medical treatment should his physical condition deteriorate to the point
that medical intervention is necessary to avoid a substantial risk of serious harm.
Rather, Inmate merely asserts that the treatment that has been deemed to be
appropriate and necessary by the prison authorities for his addiction to illegal black-
market drugs, including his treating medical professionals, is not the treatment that
he prefers.
The Majority, in advocating for social reform by expanding the use of
MAT in Pennsylvania’s prisons, has not cited any controlling legal authority to
support the proposition that Inmate has pleaded a viable Eighth Amendment claim,2
received [a] response that the psychiatry department does not
prescribe MAT. Per information provided by the Drug and Alcohol
Treatment supervisor at [the State Correctional Institution at]
Houtzdale, the [Substance Use Disorder] department offers self-help
groups for all general population members. These groups include
Alcoholics Anonymous, Narcotics Anonymous, SMART Self-
Management and Recovery Training and Double-Trouble (Co-
occurring Mental Health and Addictions). Also, every unit has a
certified peer support specialist assigned. They are trained in drug
and alcohol treatment techniques, as well as general recovery
practices. Each unit also has Psychology staff to help address any
of [the inmates’] more urgent psychosomatic symptoms of
withdrawal/cravings. [Inmate] can also seek the input of the
Vivitrol social worker, as this is a possible option for his treatment
immediately prior to his discharge from incarceration.
Petition for Review at Exhibit D.
2
The Majority’s reliance on Pesce v. Coppinger, 355 F. Supp. 3d 35 (D. Mass. 2018), in
this regard, is misplaced. As a federal district court has explained:
(Footnote continued on next page…)
MHW-2
U.S. Const. amend. VIII, or a valid claim under the Americans with Disabilities Act
of 1990 (ADA).3 Instead, the Majority appears to advocate for social policy reform
on the expanded use of state-funded controlled substances in Pennsylvania prisons.
In observing proper judicial restraint, specifically, that it is our General Assembly
that is charged with enacting laws and social policy, and the executive branch
through the Department of Corrections (DOC) that is empowered to make policy
decisions regarding the operation of our state prisons, I cannot support the Majority’s
dangerous and unwarranted expansion of the use of MAT in these facilities.4
Most significantly, though–and unlike the plaintiffs in these other
cases–[the inmate herein] has not presented any medical testimony
to support his assertion that he needs MAT to treat his [opioid use
disorder]. Indeed, in granting relief, the Pesce court specifically
distinguished cases where prisons appropriately had denied similar
treatment based on individualized assessments of the inmate’s
medical needs. 355 F. Supp. 3d at 47-48. [The inmate’s] request
for injunctive relief is akin to those cases. An individualized
assessment has been made, but [the inmate] has failed to show that
the treatment he wants is medically necessary for him.
Chamberlain v. Virginia Department of Corrections (W.D. Va., Civil Case No. 7:20-cv-00045,
filed September 28, 2020), appeals dismissed, (4th Cir., Nos. 20-7515 and 21-7349, filed
December 22, 2021), slip op. at 6.
3
42 U.S.C. §§12131-12134. By its terms, the ADA excludes from the definition of “a
qualified individual with a disability” an individual who “is currently engaging in the illegal use
of drugs, when the covered entity acts on the basis of such use.” 42 U.S.C. §12114(a). Admittedly,
Inmate does not fit within any of the statutory exceptions to this exclusion. See 42 U.S.C.
§12114(b)(1) and (2) (the illegal drug use exclusion does not apply to an individual who “(1) has
successfully completed a supervised drug rehabilitation program and is no longer engaging in the
illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in
such [illegal] use” or “(2) is participating in a supervised rehabilitation program and is no longer
engaging in such [illegal] use.”).
4
As the federal district court also observed:
(Footnote continued on next page…)
MHW-3
The Majority’s position respecting this Dissent notwithstanding, I
firmly believe that Inmate has not pleaded either a constitutional or statutory right
to receive self-prescribed, on demand, taxpayer-funded controlled substances while
serving his sentence of imprisonment. Accordingly, unlike the Majority, I would
sustain DOC’s preliminary objection and dismiss Inmate’s petition for review.
MICHAEL H. WOJCIK, Judge
Judge Covey joins in this Dissenting Opinion.
For support, [the inmate] points to other states that he alleges
provide MAT to their prisoners, such as Rhode Island,
Pennsylvania, Massachusetts, and Washington. The court’s own
research has disclosed that at least some other prison systems,
including the federal Bureau of Prisons (BOP), apparently do
provide more extensive MAT options to offenders. Crews v. Sawyer
[(D. Kan., No. 19-2541-JWB, filed March 31, 2020)] (explaining
2019 changes to the BOP’s policies regarding drug addiction
treatment, which included expanded use of MAT); but see
Advocating for Access: How the Eighth Amendment and the
Americans with Disabilities Act Open a Pathway for Opioid
Addicted Inmates to Receive Medication Assisted Treatment, 29
Annals Health L. Advance Directive 231, 240 & n.63 (Fall 2020)
(citing to a 2018 study showing that “[l]ess than one percent of the
more than 5,000 prisons and jails in the United States allow access
to MAT.”).
Chamberlain, slip op. at 3 n.4 (emphasis added). Clearly, the fact that as of 2018, more than 99%
of our nation’s prisons and jails do not permit the use of MAT at all, demonstrates that this Court
has neither the authority nor the resources to adequately determine whether such treatment is
appropriate or necessary in any particular case, or under what circumstances its use in our prisons
should be expanded. The foregoing also undermines the Majority’s attempt to normalize the use
of MAT as an appropriate treatment option in a prison setting. Again, such a determination should
be left to the branches of government granted the authority to make this social policy
determination.
MHW-4