[Pnews] The implications and scope of Mumia Abu-Jamal’s lawsuit

Prisoner News ppnews at freedomarchives.org
Thu Dec 31 22:21:08 EST 2015


/The implications and scope of Mumia’s lawsuit
*
http://www.rachelwolkenstein.net/medical-jump.html
*/
*Mumia's Fight for Medical Treatment*
*by Rachel Wolkenstein

*
**
A remarkable and legally historic evidentiary hearing in /Mumia 
Abu-Jamal v. Kerestes/ took place over three days in late December 2015 
in the U.S. federal district court in Scranton, Pennsylvania. The 
amended lawsuit filed August 3, 2015 by attorneys Bret Grote of the 
Abolitionist Law Project and Robert Boyle is an action for damages, 
injunctive relief and a declaration of the unconstitutional denial of 
medical treatment to Mumia Abu-Jamal. The immediate question is whether 
Judge Robert Mariani will grant Mumia a preliminary injunction and rule 
that the Pennsylvania Department of Corrections (DOC) has been 
deliberately indifferent to Mumia Abu-Jamal’s medical condition in 
violation of the Eighth Amendment’s proscription against cruel and 
unusual punishment and order the DOC to immediately treat Mumia’s active 
Hepatitis-C with the new antiviral medications.

/A brief summary of the legal case/

The legal brief filed August 17, 2015 in support of the Motion for 
Preliminary Injunction succinctly summarizes Mumia’s case:

“Mumia Abu-Jamal is suffering severe and chronic symptoms from 
untreated, active Hepatitis-C. In the past several months he has 
experienced diabetic shock, a painful and pruritic [extremely itchy] 
rash affecting his entire body, edema, skin lesions, anemia, and likely 
fibrosis of the liver. Scientific advances in the treatment of 
Hepatitis-C have established a new standard of care that could cure 
Abu-Jamal of his Hepatitis-C and alleviate the painful symptoms within 
8-12 weeks without significant side effects through daily administration 
of a single pill. DOC defendants, however, are refusing to provide 
Abu-Jamal with this medically necessary, life-saving treatment.”

In riveting testimony, Mumia’s doctor, Dr. Joseph Harris, fully 
described how over the past two years these new antiviral drugs 
(marketed as Salvadi and Harvoni) have “revolutionized” the treatment of 
Hepatitis-C (HCV) with a 90-95 percent cure rate. Immediate treatment 
for all those with active Hepatitis-C is now the recommended standard of 
care by the American Association for the Study of Liver Disease (AASLD) 
and the Infectious Disease Society of America (IDSA) and is endorsed by 
the Center for Disease Control (CDC). The World Health Organization 
added these new medications to its essential medicines list. In curing 
HCV, the “extra-hepatic” secondary symptoms including fatigue, itchy 
rashes, arthritis and muscle pain will also be cured. But the cost in 
the United States is $1000 per pill, making a course of treatment 
approximately $90,000.

Medicine for profit in capitalist America means there is no equal 
access, let alone free access, to this new cure. As for other medical 
care, insurance coverage depends on the scope and cost of the medical 
insurance itself. While there is growing public outcry over the high 
costs, neither Medicare nor Medicaid currently pays for this treatment 
unless the disease has progressed to severe liver damage.

At the close of the intensive evidentiary hearing on December 23 after 
the testimony of Dr. Harris, two DOC expert specialists, the DOC’s chief 
medical officer and the SCI Mahanoy chief medical officer, the following 
was not in dispute:

  * Mumia Abu-Jamal has active chronic Hepatitis-C, stage-two fibrosis
    with a 63 percent probability of cirrhosis of the liver.
  * Mumia has “anemia of chronic disease.”
  * Mumia’s severe itchy skin rash is not resolved despite months of
    intensive treatment.
  * Severely itchy skin is often a secondary symptom of HCV.
  * There is no medical reason for Mumia not to be treated with the new
    antivirals for Hepatitis-C.

The dispute is clearly not a medical or scientific one. It is social, 
one of cost and, in regard to prisoners, one of peneological purpose. 
This was the proverbial “elephant in the room” that the DOC witnesses 
would not directly address. Instead, the DOC tried to explain the 
difference between “correctional and institutional standards” and 
“community standards.” The DOC maintains that this is simply a case of 
doctors with differing opinions of treatment. That argument was exploded 
by the DOC expert witness on Hepatitis-C treatment, Dr. Jay Cowan, who 
responded to attorney Robert Boyle’s question, that “yes he would 
recommend the new antivirals to anyone who had Hepatitis-C who could pay 
the $90,000 cost.”

The DOC’s new “Interim Hepatitis-C Protocol,” secretly issued on 
November 12, 2015 does not take any account of the new drugs’ potential 
to cure Hepatitis-C and stop its deadly progression and alleviate 
painful and debilitating symptoms suffered by a significant portion of 
the prison population. Rather this is a protocol to deny this new 
treatment to Pennsylvania prisoners. According to the testimony of the 
head of DOC medical services, Dr. Peter Noel, only five out of some 6000 
prisoners with active HCV are getting treatment.

The DOC protocol does not allow treatment to be considered until the 
prisoner is close to death, with severe complications from cirrhosis of 
the liver. The protocol has a tortuous and Kafkaesque stratification of 
who should be considered for treatment. There are numerous “reasons” for 
exclusions from treatment, including misconduct and not following 
medical regimens. The last hurdle before treatment may be considered by 
the Hepatitis-C Treatment Committee is an endoscopy that shows the 
prisoner has “/esophageal varices/.” This is a condition in which the 
“blood vessels in the esophagus may leak blood or even rupture, causing 
life-threatening bleeding.” If there are no “/esophageal varices/,” the 
prisoner is set for another endoscopy in “two to three years.” And then, 
depending, treatment will be considered.

The DOC lawyers and doctors, from the medical specialist “experts” to 
the head of its medical services, laid bare the reality of medicine for 
profit in capitalist America and the function of prisons as repressive 
punitive institutions without a modicum of care for the medical 
well-being of prisoners. The court evidentiary hearing unfolded with 
rare public display of the DOC’s mendacity and utter contempt for its 
own laws and rules: the suppression and then attempt to keep its 
Hepatitis-C Treatment Protocol “confidential;” submission to court of a 
false declaration from its chief of DOC health services; and its expert 
witnesses testimony that withheld information from Mumia’s medical 
records that contradicted their opinions. In cross-examination Mumia’s 
lawyers successfully discredited the DOC’s presentation of false or 
misleading evidence.

At the close of the evidentiary hearing Judge Mariani set January 13, 
2016 as the date that all parties would get transcripts of the hearing, 
and that written briefs were due by both Mumia and the DOC by February 
3, 2016. The judge said he would decide as quickly as possible, making 
this case his priority.

While this lawsuit is based on the “deliberate indifference” of the DOC 
to treat Mumia Abu-Jamal specifically, focusing on the horrific history 
of his medical mistreatment, this case presents an historic testing of 
all prisoners’ right under the Eighth Amendment to medical treatment—in 
fact a cure—of the deadly Hepatitis-C virus that infects 13-25 percent 
of prisoners. The DOC is seeking dismissal of a class action lawsuit 
brought in federal district court in Philadelphia on behalf of some 
10,000 Pennsylvania prisoners, /Chimenti v. Department of Corrections/.

In the United States there is no constitutional right to medical care, 
except that under the Eighth Amendment prison officials have an 
“obligation to provide medical care for those whom it is punishing by 
incarceration.” /Estelle v. Gamble/, 429 U.S. 97, 103 (1976). That 
obligation is determined by a serious medical need and the state’s acts 
or omissions that indicate a “deliberate indifference” to that need. 
Case law holds that deprivation of treatment for reason of cost is 
deliberate indifference under the Eighth Amendment and therefore 
unconstitutional.

But if “the law” really was “the law” Mumia would have been immediately 
granted the Hep-C cure. The DOC would have administered the new 
antiviral medicine to him without the compulsion of a lawsuit—and done 
the same for the thousands of other prisoners suffering from Hepatitis-C.

Instead, Mumia has been subjected to over a year of medical 
mistreatment—the state’s latest attempt to silence and kill him. The DOC 
has resisted and challenged any diagnosis and medical treatment for 
Mumia’s skin condition and now refuses to treat his active Hepatitis-C. 
A fellow prisoner, Major Tillery, confronted prison Superintendent John 
Kerestes, warning him that Mumia might die unless he was hospitalized 
immediately. For that act of solidarity, Tillery was transferred to 
another prison and set-up on a false misconduct charge and spent over 
four months in the “hole.” An international campaign of protest was 
launched after Mumia’s near-death from diabetic shock demanding medical 
treatment and Mumia’s release from prison. Without that campaign, 
including this legal action to save Mumia’s life, the DOC would have not 
given him any medical care.

We will see what this court decides and how this case proceeds on 
appeal. Any court decisions in Mumia’s favor, however small, will be 
challenged by the DOC, and likely the FOP (Fraternal Order of Police), 
in the appellate courts and in the public arena. At stake is keeping 
Mumia alive, striking a blow for medical care for prisoners throughout 
the country, and expanding the campaign in an international struggle for 
Mumia’s freedom.

/Mumia’s court testimony/

On the first day of the court hearing, December 18, Mumia testified 
/via/ videoconference from SCI Mahanoy; his first court testimony since 
his 1982 trial. As Mumia’s wife, Wadiya Jamal, stated in her December 18 
message, “This rotten-ass system has made many attempts on my husband’s 
life. Mumia is innocent of the murder of police officer Daniel Faulkner 
on December 9, 1981 and the cops on the scene all knew that. His Hep-C 
is from the blood transfusions 34 years ago when he survived a cop’s 
gunshot to his chest through his lungs to his liver.” Blood transfusions 
prior to 1992 are a major source of HCV because blood was not thoroughly 
screened untill then.

In an understated manner Mumia described in court the ravages to his 
body and mind from this year of pain and near death from diabetic shock. 
All of Mumia’s medical records from the prison and his hospitalizations 
were admitted into evidence.

Mumia explained the progression of the severe itchy skin condition that 
began in August 2014 in small patches and spread over most of his body. 
In the prison infirmary he was first given topical creams but then 
treated with steroids and had a catastrophic allergic reaction, a 
swelling of his whole body such that he could barely breathe. He had 
rapid extreme weight loss dropping from around 260 pounds down to around 
180 in a month’s time. He was fatigued; he couldn’t sleep for all the 
itching; he was driven to scratch himself bloody at night. Without 
recognizing it himself he was losing coherence and couldn’t concentrate 
on his work.

Early morning on March 30, 2015 he collapsed in the prison infirmary, 
was rushed to a hospital and put into the ICU to treat diabetic shock 
and a glucose level of close to 600. He testified, “On April 2nd, after 
being in the ICU near death, and back at SCI Mahanoy I was in the 
infirmary unable to walk one step. I could not lift my arms, I was too 
weak to pull myself up off the floor.” Mumia’s prison medical records of 
blood tests taken on March 6, three weeks earlier showed his glucose 
level had spiked to deadly dangerous 419. This was ignored by the prison 
doctors.

In April Mumia’s skin condition worsened, with 70 percent of his body 
covered in thick scales from head to toe, his skin described 
alternatively as looking like elephant hide, or reptilian, and also with 
flaking skin and lesions on his legs too numerous to count. In court 
Mumia was asked to identify photos taken of him during visits on April 9 
and April 26, 2015 with his wife Wadiya Jamal (and myself) showing the 
scabbing on his arms and the side head shot showing his scaling and 
peeling skin, a lesion over his ear and folds in his neck. Over the 
DOC’s objection that these photos were “inflammatory and prejudicial,” 
Judge Mariani admitted the photos into evidence.

Mumia further described that while taking a shower one morning in early 
May blisters erupted on his lower legs and he was taken to Geisinger 
Medical Center for five days of intensive treatment of his skin. He was 
also given a battery of tests to determine if he had various cancers or 
other diseases that might be the cause of his skin condition. The 
doctors and nurses said they had never seen anything like this before. 
Mumia was wrapped like a mummy every four hours with topical steroid 
creams and Vaseline for days. This was continued when Mumia returned to 
the infirmary at SCI Mahanoy.

The tests for cancer were negative. Geisinger doctors recommended in the 
discharge summary that Mumia should have follow-up gastroenterology 
consultation for Hepatitis-C treatment. Mumia was found to have an 
“irregular-appearing liver” and anemia of chronic disease.

Since April, until recently, Mumia had been housed in the SCI Mahanoy 
infirmary. Since May he has Vaseline wraps several times a week as well 
as baths and for the past month phototherapy was added to ameliorate his 
skin condition. The DOC infectious disease specialist, Dr. Ramon Gadea, 
examined Mumia and his medical records in September. Mumia specifically 
asked him if he had reviewed Dr. Harris’ report that Mumia’s skin 
condition was likely secondary to his Hep-C. Dr. Gadea told Mumia he 
agreed with that diagnosis and would recommend Mumia be treated for his 
Hepatitis-C but he thought the prison would refuse because of costs.

On cross-examination DOC counsel Laura Neals tried to establish that 
Mumia is better now after all the skin treatment. He testified that 
although his skin condition is better than before, it still itches 
terribly and he has difficulty sleeping. He was asked by Neals why he 
had refused a test for Hep-C in 2011, to which he replied, “I never 
agreed to blood tests while I was on death row, because I didn’t trust 
the doctors.” It was in January 2012 when Mumia was being transferred 
from death row into general population that Mumia had an extensive blood 
work up and he showed positive for the Hep-C virus. On redirect, Mumia’s 
attorney, Bret Grote asked: “Would you accept Hepatitis-C 
treatment?” Mumia answered: “Yes, with it I can live; without it I may die.”

Dr. Suzanne Ross, a clinical psychologist and International 
Representative of International Concerned Family and Friends of Mumia 
Abu-Jamal and Prof. Johanna Fernandez, of the Campaign to Bring Mumia 
Home, testified for Mumia providing more detail and emotion on Mumia’s 
drastic changes in physical appearance, energy and concentration over 
the past months while suffering from the severe skin condition and 
aftermath of the diabetic shock and hospitalizations.

/Mumia’s doctor, Joseph Harris/

Dr. Joseph Harris is a Board Certified Diplomate in Internal Medicine 
licensed in New York State. He has extensively treated Hep-C and HIV 
patients and spent a year as a Village Physician with Doctors Without 
Borders in Valle de Cauca Columbia. He also practiced in Rwanda.

Dr. Harris began serving as a consultant for Mumia’s attorneys in May 
2015 and began monthly visits with Mumia in July. Because the DOC would 
not grant Dr. Harris any entry as a physician, not even to bring in a 
pen and pad to make notes, Dr. Harris visited with Mumia as a regular 
visitor in the visiting room. Nonetheless Dr. Harris was able to take a 
medical history and personally observe Mumia’s skin and portions of his 
lower extremities.
Dr. Harris testified that he had treated 100 people with active 
Hepatitis-C over a recent two-year period of time and the 31 people 
(including himself) for whom he was able to obtain the new antivirals 
were totally cured within the 12 week course of treatment. In depth and 
with clarity for laymen, Dr. Harris described the impact of the new 
antiviral Hepatitis-C drugs and how quickly the standard of care has 
changed. Just a year ago, the AASLD protocols still had a prioritization 
subset to its “treat everyone” recommendation. Mumia, he testified, even 
under last years’ protocol is in the category of most priority treatment 
needed because of the numerous secondary effects of Hepatitis-C that he 
is suffering, particularly the painful skin rash and the chronic anemia.

Mumia’s unique and severe skin condition was diagnosed by Dr. Harris as 
Necrolytic Acral Erythema (NAE) a rare condition that “typically 
involves a Black patient with a pruititic [itchy] and/or painful rash 
that has a minimal response to usual treatments. It is a cutaneous 
[skin] marker of Hepatitis-C.” He testified that Mumia’s skin condition 
was not simply eczema and/or psoriasis. Mumia had been treated with the 
“big guns” of dermatological treatment and his skin condition continues. 
So long as Mumia’s HCV continues to advance, his severe skin condition 
will come and go. The intensive skin treatments provided by the prison 
doctors have reduced but not resolved Mumia’s skin rash. He made it 
abundantly clear to all—treat Mumia’s Hepatitis-C and his skin rash will 
resolve.

Another critical point of Dr. Harris’ testimony was the medicine and 
science in determining whether a person has active chronic Hepatitis-C. 
A simple blood test determines whether the virus is present. The 
determining issue is whether there is a “viral load.” But the 
number—high or low—of that viral load is totally irrelevant as to how 
much liver damage the virus has caused.

/The DOC Expert Witnesses/

The DOC’s hired gun as their expert on Hepatitis-C was Dr. Jay Cowan, a 
Diplomate Board Certified Gastroenterologist, president of Correctional 
Medical Associates, a subsidiary of Corizon, a Tennessee company that 
provides medical services to prisons in many states and counties, 
including in New York and Pennsylvania. At the time he testified, Dr. 
Cowan was completing his tenure as Medical Director of Rikers Island 
prison. Corizon, as of December 31, 2015 was terminated as the medical 
provider for Rikers Island after investigation by the New York City 
Council. According to a report in /CounterPunch/, “Abu-Jamal Gets 
Federal Court Hearing Seeking Order to Treat His Hepatitis-C Infection,” 
by David Lindorff, December 19, 2015:

“During New York City Council hearings into Corizon’s contract with 
Rikers, which ultimately led to termination of the company’s contract, 
Cowan was accused of being callous towards the prison deaths 
attributable to his company’s neglect, incompetence and malpractice, and 
with being ‘evasive’ in responding to questioning by city councilmembers.”
Unfortunately Judge Mariani stopped Mumia’s attorney Robert Boyle’s 
cross-examination of Dr. Cowan’s medical oversight of Rikers Island jail 
and work with Corizon.

Dr. Cowan testified he was retained by the Pennsylvania DOC to sit on 
its Hepatitis-C Treatment Review Committee, the existence of which was 
first disclosed by the DOC during the hearing. He was part of the group 
that on December 17 (the day before the hearing) denied Mumia the Hep-C 
treatment. Dr. Cowan is an “expert witness,” which means he frequently 
testified in court proceedings and is expert at /not/ directly answering 
questions. He spent considerable time testifying on the means to 
determine how much liver damage a person with HCV has. He simultaneously 
acknowledged that new American Association for the Study of Liver 
Diseases (AASLD) and the CDC Hepatitis-C guidelines established a 
standard of treatment that “everyone should be treated,” while insisting 
that the “correctional setting guideline” was the “same” as the 
“community setting,” with one caveat, “risk stratification.” In other 
words he supported the view that, in the “correctional setting” a 
prioritization that precluded treatment until someone is close to dying 
of liver disease. He was not familiar with all the CT scans and 
sonograms that showed damage and irregularities in Mumia’s liver.

Dr. Cowan disputed Dr. Harris’ diagnosis of NAE and any correlation 
between Mumia’s skin rash and his Hepatitis-C based in part on his false 
understanding that Mumia’s skin condition was “completely resolved.” He 
testified he had no information that the DOC’s infectious disease expert 
Dr. Gadea had recommended Hep-C treatment for Mumia on the basis that 
his skin rash might be secondary to his HCV.

Nonetheless Dr. Jay Cowan, the DOC Hepatitis-C expert was compelled to 
acknowledge that Mumia has Stage Two liver disease, with “significant 
probability of fibrosis.”

Dr. Schleicher, the DOC Board Certified Dermatologist, works for an 
outside medical contractor. He examined Mumia solely /via/ “tele-med,” a 
form of video conferencing. Questioned by DOC counsel, Dr. Schleicher 
diagnosed Mumia’s skin condition as a “cross between psoriasis and 
eczema” with an unlikely connection to Mumia’s Hep-C. But on 
cross-examination he admitted he knew little about Hep-C, and stated he 
was unaware that Geisinger Medical Center recommended Hepatitis-C 
follow-up and treatment for Mumia in May 2015. Additionally Dr. 
Schleicher testified that he, like Dr. Cowan, was not aware that the 
infectious disease specialist hired by the DOC, Dr. Ramon Gadea, stated 
there might be a correlation between Mumia’s skin rash and his Hep-C.

/The DOC had suppressed its new protocol for Hepatitis-C treatment--
and then wanted Mumia’s attorneys to agree to confidentiality/

John Steinhart, R.N., the SCI Mahanoy Chief Medical Health 
Administrator, whose job description is to provide the medical oversight 
of prisoners in that institution, testified that he had no medical 
responsibility for Mumia’s care. Nonetheless it was Mr. Steinhart who 
was the DOC witness to first testify that Mumia was being treated and 
monitored in something called the “Liver Disease Chronic Care Clinic,” 
an entity previously unknown to Mumia, Mumia’s lawyers or Dr. Harris.

And it was John Steinhart who first testified to the existence of the 
new DOC Protocol for Hepatitis-C Treatment, issued in November. From the 
outset of this lawsuit Mumia and his lawyers had been told there was no 
existing DOC protocol, and hadn’t been for the past two years since the 
suspension of the prior means of treating Hepatitis-C with interferon. 
This issue of whether the DOC had treatment guidelines is “only” a core 
of the entire lawsuit—whether under the DOC’s Protocol Mumia would be 
treated for his active Hepatitis-C and if not, what was the DOC process 
for making that determination.

Moreover, the DOC at first argued against this Protocol being introduced 
into evidence as an open court record. They wanted Mumia and his 
attorneys to agreed to keep the Protocol “confidential.” A specific 
reason for the secrecy was to prevent the lawyers representing the class 
action on behalf of all Pennsylvania prisoners with HCV from obtaining a 
copy.

This was not agreed to and the next day the Protocol was introduced into 
evidence and became a public document. Prison Radio made a request for 
the release of the Protocol under the Right to Know Law and that legal 
office made it clear the Protocol was not a confidential document.

/The last act of the DOC—the false sworn declaration of Dr. Peter Noel/

The DOC’s position in this lawsuit is medically and morally 
unconscionable. It is no surprise then that the DOC engaged in repeated 
misconduct in court beginning with presenting expert medical witnesses 
who professed lack of knowledge about key parts of Mumia’s medical 
record—records that contradicted or undermined their “expert opinions.” 
The withholding, attempting to suppress, and keep secret the new 
Hepatitis-C Treatment Protocol was yet more evidence of the DOC’s 
unscrupulousness.

And then came the testimony of Dr. Paul Noel, a Board Certified Family 
Practice doctor who is the DOC Chief of Clinical Services, the person 
who is in charge of the DOC medical services. He was the DOC’s last 
witness for the hearing. His importance to the DOC case cannot be 
understated. Among other responsibilities, Dr. Noel coordinated with 
outside medical providers and generally worked to insure that the prison 
doctors followed specialists’ instructions. He held forth about Mumia’s 
extensive medical treatment under DOC care, his knowledge of the new 
AALDS guidelines to treat chronic Hep-C patients and his work on the new 
DOC Protocol, taking into account the guidelines developed by the 
Federal Bureau of Prisons as well as the Veterans Administration.

Dr. Noel estimated that of those Pennsylvania prisoners who are positive 
for the Hep-C virus, some 6-7000 likely have chronic Hepatitis-C and 
will be eventually evaluated under the new Protocol. He went through 
platelet counts and other factors the DOC will use to measure the 
seriousness of liver disease, using a test called the Halt-C to 
determine the onset of end stage liver disease.

Dr. Noel testified that Mumia’s Halt-C score is 63 percent, greater than 
the 60 percent level set by the DOC as the breakpoint of cirrhosis of 
the liver. However, Dr. Noel testified that the DOC treatment review 
committee determined that based on other factors, Mumia would not be 
considered for treatment.

Robert Boyle cross-examined Dr. Noel challenging the basis in which the 
DOC committee determined whether those with chronic Hep-C in general and 
Mumia in particular would or would not get the new antiviral medicines. 
When Boyle asked Dr. Noel to identify his sworn declaration, filed in 
opposition to Mumia’s Motion for a Preliminary Injunction, Dr. Noel 
immediately recoiled and testified that the signature on the document 
was his signature but it was NOT his statement.

The next minutes in the courtroom were unusual to say the least. DOC 
counsel, Laura Neal proceeded to “explain,” asserting that the false 
statement in the declaration submitted in Dr. Noel’s name was not really 
important and that Dr. Noel had OK’d it after a likely “clerical error” 
left a false paragraph being included in a sworn document filed in 
court. Judge Mariani cautioned Laura Neal to stop, advising her that she 
was at risk of impeaching her own witness.

Under further cross-examination by Robert Boyle, Dr. Noel testified that 
the declaration as submitted with his signature wrongly claims that a 
measure of the severity of liver disease is the viral load number. That 
is not medically or scientifically correct and Dr. Noel testified he had 
instructed that paragraph of his declaration be changed before 
submission to court. But it wasn’t. Moreover, as attorney Bret Grote 
brought forward, Laura Neal cited this misrepresentation of the measure 
of liver damage in Dr. Noel’s declaration as medical evidence in 
opposing Mumia’s motion for a preliminary injunction. The U.S. 
Magistrate then denied the motion citing this falsehood as one of the 
medical reasons to deny Mumia treatment. The case then went to Judge 
Mariani who proceeded to re-consider the motion and hold this 
evidentiary hearing.

In further cross-examination, Dr. Noel admitted that there were 
substantive errors in other parts of his declaration, including that 
Mumia had a normal ultrasound, which was not correct and falsely stating 
that the infectious disease specialist, Dr. Ramon Gadea had ruled out 
Hepatitis-C as a cause of Mumia’s skin rash.

/DOC’s position of keeping prisoners from “running to court”/

To conclude this legal report it is useful to recall the legal argument 
that took place before the evidentiary hearing began, which the DOC will 
likely pursue as an appeal issue. The DOC demanded the judge dismiss the 
lawsuit claiming that Mumia had not completed the prison grievance and 
appeals process because he hadn’t specifically asked for Hep-C 
treatment. In legal parlance this is “exhaustion of administrative 
remedies.” In response to the judge’s questions about putting “form over 
substance,” Laura Neal, a lawyer for the DOC insisted this was a “matter 
of principle”…”discouraging inmates from running into court.”

After an hour of legal argument and a two-hour break in proceedings for 
the judge to review the case law and facts he returned to court and read 
his ruling upholding the decision to go forward with the evidentiary 
hearing. In a legally and factually detailed ruling, Judge Mariani said, 
“in May of 2015 [the DOC had] all the information at [their] fingertips 
in terms of his health issues.” Judge Mariani ruled that it would have 
been impossible for Mumia to cite Hepatitis-C, as he had not yet 
received a proper diagnosis to determine his Hepatitis-C was the cause 
of his conditions. Judge Mariani told the DOC, “That’s a tortured view 
of what is required of an inmate in a grievance.”

/*We need a full mobilization to fight for Mumia’s life and his freedom*/

This was a “good day in court.” And Mumia has not had many of these. But 
just as Mumia wouldn’t have gotten into court on this case without 
international protest and publicity, medical treatment to keep Mumia 
alive and for those other thousands suffering from Hepatitis-C won’t be 
won relying on the courthouse or the state legislatures. While fighting 
hard in the courts, there can be no illusion in obtaining justice there. 
The state, its cops, its prisons are intent on silencing Mumia and what 
we are dealing with now is state execution by medical mistreatment. The 
state won’t stop; the only way Mumia will survive is if he is freed. It 
will take a broad international campaign that calls for agitation, 
publicity and demonstrations building the broadest possible support 
demanding Mumia’s freedom as a central demand. In addition to town hall 
meetings, we need to obtain the concrete support of more organizations 
and build on the critical and successful work that’s been done so far to 
get resolutions from trade union organizations, such as the largest 
union in the UK, UNITE, San Francisco Labor Council, New York Metro 
Local 10 for the American Postal Workers Union, the United Steelworkers 
Union Local 8751 in Boston.

/A postscript to acknowledge and thank all those who wrote reports on 
the hearing or whose public statements I have borrowed from. Although I 
was there in its entirety, writing a report like this is difficult 
without a transcript or having the use of a tape recorder. Any errors 
made are of course my own. —Rachel Wolkenstein/
—December 30, 2015
-- 
Freedom Archives 522 Valencia Street San Francisco, CA 94110 415 
863.9977 www.freedomarchives.org
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