ROSARIO v. JOHN DOE et al
Filing
178
OPINION FILED. Signed by Judge Renee Marie Bumb on 6/25/13. (js)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
FRANCISCO ROSARIO,
Civil No. 08-5185 (RMB)
Plaintiff,
OPINION
v.
JOHN DOE, et al.,
Defendants.
APPEARANCES:
DON ANTHONY INNAMORATO
E. DAVID KRULEWICZ
Reed Smith LLP
136 Main Street, Suite 250
Princeton, NJ 08543
Attorneys for Plaintiff
SUSAN MARIE SCOTT
Office of New Jersey Attorney General
P.O. Box 112
Trenton, NJ 08625
Attorney for Defendant Corrections Officer John Doe
PAUL JOSEPH SMYTH
SEAN X. KELLY
Marks O’Neill O’Brien & Courtney PC
6981 N. Park Drive, Suite 300
Pennsauken, NJ 08109
Attorneys for Defendants Correctional Medical Services and
Nurse Jane Doe
BUMB, United States District Judge:
In this case, Plaintiff Francisco Rosario claims that
Defendants Correction Medical Services, Inc. (“CMS”), Nurse Jane Doe
and Correctional Officer John Doe were deliberately indifferent to
his medical needs in violation of his Eighth Amendment rights,
contrary to 42 U.S.C. § 1983.
claims.
Plaintiff also brings state law
Before the Court are three unopposed motions to seal and
a motion for summary judgment filed by Defendant CMS pursuant to
Federal Rule of Civil Procedure 56(a).
This Court has reviewed the
pleadings, the parties' written submissions, depositions, and other
documentary evidence, and considered the matter pursuant to Fed. R.
Civ. P. 78.
For the reasons set forth below, this Court grants the
motions to seal, dismisses Defendants Nurse Doe and Corrections
Officer Doe, grants summary judgment to CMS on Plaintiff’s federal
claim, and declines to exercise supplemental jurisdiction as to the
only remaining state law claims.
I.
BACKGROUND
On October 11, 2008, Francisco Rosario, then incarcerated at
New Jersey State Prison, executed a civil rights Complaint asserting
claims under 42 U.S.C. § 1983 against South Woods State Prison
(“SWSP”), the Administrator of SWSP, Corrections Officer Doe, Nurse
Doe, and CMS.
(Compl., ECF No. 1.)
In the Complaint, Plaintiff
alleged that on March 1, 2007, Corrections Officer Doe, who worked
the 2:00 p.m. to 10:00 p.m. shift at SWSP, together with Nurse Doe,
forced Plaintiff’s extremely swollen left foot into a shoe that was
too small for it, thereby stopping the flow of blood into the foot
and causing the development of gangrene and eventual toe amputation.
2
(Id. at 4, 6.)
Rosario further asserted that Officer Doe took away
his wheelchair and required him to crawl back to his cell.
(Id.)
On screening, this Court granted Plaintiff’s application to
proceed in forma pauperis, dismissed SWSP as a defendant, and ordered
service of the Complaint upon the remaining defendants.
No. 4.)
(Order, ECF
United States Magistrate Judge Karen Williams subsequently
appointed pro bono counsel for Plaintiff.
(Order, ECF No. 17.)
Plaintiff’s counsel thereafter filed an Amended Complaint
against George Hayman, Commissioner of the New Jersey Department of
Corrections; Karen Balicki, SWSP’s Administrator; Correctional
Officer John Doe; CMS; and Nurse Jane Doe.
(Am. Compl., ECF No. 35.)
Then, on August 26, 2010, Plaintiff voluntarily dismissed Defendants
Hayman and Balicki (Stipulation, ECF No. 55), and, on October 18,
Defendant CMS filed an Answer (Answer, ECF No. 59).
In the Amended Complaint, Plaintiff asserts that he is 58 years
old, has been incarcerated by the New Jersey Department of
Corrections since 1997, and has a known medical history of high blood
pressure, high cholesterol, diabetes, and significant
cardiovascular disease.
Specifically, he alleges that in February
2007, while incarcerated at SWSP, CMS officials provided medical care
consisting of topical applications for an open laceration on his left
foot, which interfered with his ability to walk.
He asserts that
on or about March 1, 2007, Officer Doe transported Rosario by
3
wheelchair to the infirmary for treatment by Nurse Doe.
He alleges
that he complained to Nurse Doe that his wound was not healing and
he showed her his painfully swollen foot, but she “disregarded Mr.
Rosario’s complaints and, instead of examining his foot and wound,
directed him to put his sock and shoe on and return to his cell.”
(Am. Compl., ECF No. 35 at ¶¶ 21-22.)
He alleges that he “refused
to put the shoe on as the swelling had made it extremely painful for
him to do so,” and he asked Nurse Doe to properly examine his foot
or get a doctor to do so.
(Id. ¶ 25.)
He asserts that Officer Doe
then “physically restrained Mr. Rosario and instructed Nurse Doe to
force Mr. Rosario’s shoe onto his foot.”
(Id.)
He alleges that,
“[t]ogether, C.O. Doe and Nurse Doe then forced Mr. Rosario’s left
foot into his prison issued shoe causing severe pain and physical
injury to Mr. Rosario,” and then Officer Doe “took Mr. Rosario’s
wheelchair away from him and ordered him to walk back to his cell
without any type of aid or assistance.”
(Id. ¶¶ 27, 30.)
Plaintiff
asserts that after returning to his cell, he became gravely ill and
was transported to St. Francis Medical Center for medical care.
(Id.
¶ 31.)
Plaintiff claims that Officer Doe violated his Eighth Amendment
rights by physically restraining him, forcing a shoe on his swollen
foot, taking away his medically necessary wheelchair, and requiring
him to walk on his injured foot.
(Id. ¶¶ 36-43.)
4
He contends that
Nurse Doe violated his Eighth Amendment rights by forcing him to put
the shoe on his swollen foot and failing to provide proper care and
treatment for his foot.
(Id. ¶¶ 50-56.)
He claims that “CMS is
independently liable to Mr. Rosario for its failure to adequately
screen, train and supervise its employees assigned to the SWSP and
fail[ure] to adopt, formulate, maintain and/or enforce customs,
policies and procedures to insure that Mr. Rosario received adequate
medical treatment and was not, otherwise, subjected to deliberate
indifference as to his serious medical needs.”
(Id. ¶ 56.)
In addition, Plaintiff claims that Nurse Doe violated New Jersey
state law by negligently or deliberately breaching her duty to
provide Plaintiff with proper and appropriate medical treatment,
intentionally committing an assault and battery on Plaintiff, and
intentionally inflicting emotional distress on Plaintiff.
The
Complaint asserts that Officer Doe is also liable for assault and
battery, and intentional infliction of emotional distress.
He also
contends that CMS violated New Jersey state law by, among other
things, failing to adopt, formulate, maintain and enforce policies
and procedures to insure that Rosario was provided non-negligent
medical care, and by failing to hire and supervise competent
employees.
He further claims that, pursuant to the doctrine of
respondeat superior, CMS is liable under New Jersey law for Nurse
5
Doe’s and Officer Doe’s assault and battery and intentional
infliction of emotion distress.
Presently before this Court are three unopposed motions to
seal—two brought by Plaintiff and one brought by Defendant CMS, as
well as a motion for summary judgment brought by CMS.
Nos. 151, 156, 168, 173.)
(Motions, ECF
Plaintiff filed a memorandum of law and
accompanying materials in opposition to summary judgment, and CMS
filed a letter in reply.
(ECF Nos. 167, 175, 176, 177.)
II.
A.
DISCUSSION
Motions to Seal
Rosario moved to seal several paragraphs in CMS’s Statement of
Material Facts and in his Counterstatement of Material Facts, which
contain information from Rosario’s medical records, and to seal the
September 2007 Discharge Summary from St. Francis Medical Center.
(ECF Nos. 151-3, 167-1 at 59-65, 167-3.)
CMS moved to seal
proprietary documents attached to its letter reply in support of
summary judgment, which were produced pursuant to a discovery
Confidentiality Order.
(See ECF No. 173; Confidentiality Order, ECF
No. 141.)
“It is well-settled that there exists, in both criminal and
civil cases, a common law public right of access to judicial
proceedings and records.”
In re Cendant Corp., 260 F.3d 183, 192
(3d Cir. 2001) (citing Littlejohn v. BIC Corp., 851 F.2d 673, 677–
6
78 (3d Cir. 1988)).
This common law right “encompasses all judicial
records and documents [and] includes transcripts, evidence,
pleadings, and other materials submitted by litigants . . . .”
United States v. Wecht, 484 F.3d 194, 209 (3d Cir. 2007) (quoting
United States v. Martin, 746 F.2d 964, 968 (3d Cir. 1984)).
Thus,
a party seeking to seal portions of court records from public access
must make a particularized showing of good cause for protection of
specific material.
See Wecht, 484 F.3d at 212.
To that end, Local Civil Rule 5.3, which “govern[s] any request
by a party to seal,” L. Civ. R. 5.3(a)(1), requires the moving party
to describe “(a) the nature of the materials or proceedings at issue,
(b) the legitimate private or public interests which warrant the
relief sought, (c) the clearly defined and serious injury that would
result if the relief sought is not granted, and (d) why a less
restrictive alternative to the relief sought is not available.”
Civ. R. 5.3(c)(2).
L.
Rule 5.3 further provides that an opinion on a
motion to seal “shall include findings on the factors set forth in
(c)(2) above as well as other findings required by law . . . .”
L.
Civ. R. 5.3(c)(5).
Here, each motion to seal satisfies Rule 5.3(c)(2)(a), as the
specified materials contain Rosario’s private medical information
or proprietary materials of CMS subject to a Confidentiality Order.
The motions satisfy sections (c)(2)(b) and (c), as a person's medical
7
records are private,1 and CMS’s employee documents are protected by
a Confidentiality Order.
(ECF No. 141.)
Finally, since only those
portions of the filings which contain either private medical
information or proprietary information will be sealed, this Court
finds that no less restrictive alternative is available.
R. 5.3(c)(2)(d).
See L. Civ.
This Court will grant the Motions to Seal and
direct Plaintiff to file an unredacted version of ECF Nos. 167-1 and
167-3 under seal, and direct CMS to seal ECF No. 177 and file a
redacted version of ECF Nos. 151-32 and 177.
See L. Civ. R.
5.3(c)(5).
B.
Dismissal of Federal Claims Against Officer Doe and Nurse Doe
Federal Rule of Civil Procedure 21 provides that “[o]n motion
or on its own, the court may at any time, on just terms, add or drop
a party.”
Fed. R. Civ. P. 21.
While use of John Doe defendants is
permissible, “[i]f reasonable discovery does not unveil the proper
identities, . . . the John Doe defendants must be dismissed.”
Blakeslee v. Clinton County, 336 F. App’x 248, 250 (3d Cir. 2009);
1
See Doe v. Delie, 257 F.3d 309, 315 (3d Cir. 2001) (“We have long
recognized the right to privacy in one's medical information....”);
United States v. Westinghouse Elec. Corp., 638 F.2d 570, 577 (3d Cir.
1980) (“There can be no question that ... medical records, which may
contain intimate facts of a personal nature, are well within the ambit
of materials entitled to privacy protection.”).
2
Pursuant to this Court’s Order of September 7, 2012 (ECF No. 154),
this document is currently under temporary seal pending disposition
of Plaintiff’s motion to seal addressed herein (ECF No. 156).
8
see also Scheetz v. Morning Call, Inc., 130 F.R.D. 34, 37 (E.D. Pa.
1990) (“Fictitious parties must eventually be dismissed . . . if
discovery yields no identities.”).
In this case, Plaintiff conducted extensive discovery for more
than two years, during which time Plaintiff took depositions of
several CMS nurses employed during the relevant time period and
sought personnel and employment records from CMS in an attempt to
identify Nurse Doe.
No. 127.)
(See Pl.’s Br., ECF No. 167, at 11; Letter, ECF
Magistrate Judge Karen Williams presided over several
discovery disputes that involved Plaintiff’s attempts to identify
the Doe defendants.
For example, Plaintiff raised this issue in a
January 26, 2012 letter to Judge Williams, and Judge Williams then
held a telephone conference call on January 30 to address outstanding
discovery issues.
(Letter, ECF No. 127.)
The parties subsequently
agreed to a Confidentiality Order designed, in part, to govern
employment records that Judge Williams had ordered CMS to produce
(Certification, ECF No.138).
On April 4, 2012, Judge Williams held
an in-person conference to address the remaining discovery disputes
raised by the parties.
(Order, ECF No. 142.)
Yet, despite
Plaintiff’s attempts to identify the Doe defendants, he has failed
to do so and discovery is now closed.
Under these circumstances,
this Court will dismiss the federal claims against Nurse Doe and
Corrections Officer Doe with prejudice pursuant to Rule 21.
9
See
Blakeslee, 336 F. App’x at 250-51 ("Blakeslee had approximately ten
months of discovery to allow her to identify the individual John Doe
defendants and thereafter to amend her complaint. By her own
admission, she conducted extensive discovery, including a 'wide
range of depositions from all positions of the officers, employees,
and related personnel' at CCCF.
In light of these facts, we affirm
the District Court's dismissal of the John Doe defendants . . . .");
Williams v. New Jersey Div. of State Police, Civ. No. 10-3478 (DRD),
2012 WL 1900602 (D. N.J. May 24, 2012); Adams v. City of Camden, 461
F. Supp. 2d 263, 271 (D. N.J. 2006).
C.
Summary Judgment Standard
Substantively, Rule 56(a), provides that a court “shall grant
summary judgment if the movant shows 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).
Rule 56 also has procedural requirements.
First, the moving
party must “identify[]each claim or defense - or the part of each
claim or defense - on which summary judgment is sought.”
Civ. P. 56(a).
Fed. R.
Second, “[a] party asserting that a fact cannot be
or is genuinely disputed must support the assertion by:
(A) citing
to particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations . . , admissions,
10
interrogatory answers, or other materials; or (B) showing that the
materials cited do not establish the . . . presence of a genuine
dispute, or that an adverse party cannot produce admissible evidence
to support the fact.”
Fed. R. Civ. P. 56(c)(1)(A) and (B).
Finally,
the Court “may consider other materials in the record,” Fed. R. Civ.
P. 56(c)(3), and “[a]n affidavit or declaration used to support or
oppose a motion must be made on personal knowledge, set out facts
that would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.”
Fed. R.
Civ. P. 56(c)(4).
“[A] party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its
motion, and identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any,’ which it believes demonstrate
the absence of a genuine issue of material fact.”
Catrett, 477 U.S. 317, 323 (1986).
Celotex Corp. v.
And if the movant “fail[s] to
show the absence of any disputed material fact . . , the District
Court err[s] in granting summary judgment.”
& Co., 398 U.S. 144, 148 (1970).
Adickes v. S.H. Kress
A defendant moving for summary
judgment may carry its initial burden in two ways:
(1) producing
evidence that negates an essential element of plaintiff’s case, see
Fed. R. Civ. P. 56(c)(1)(A); Adickes, 398 U.S. at 158, or (2) pointing
11
out by relying on discovery that the plaintiff has no evidence to
prove his or her case, “a tactic that requires identifying
evidentiary insufficiency and not simply denying the opponent’s
pleadings.”
Salahuddin v. Goord, 467 F.3d 263, 273 (2d Cir. 2006).
The substantive law governing the dispute will determine which
facts are material, and only disputes over those facts “that might
affect the outcome of the suit under the governing law will properly
preclude the entry of summary judgment.”
Inc., 477 U.S. 242, 248 (1986).
Anderson v. Liberty Lobby,
“[W]hen determining whether the
moving party has proven the absence of a genuine material issue of
fact, the facts asserted by the nonmoving party, if supported by
affidavits or other evidentiary material, must be regarded as true,
and the inferences to be drawn from the underlying facts . . . must
be viewed in the light most favorable to the party opposing the
motion.”
Aman v. Cort Furniture Rental Corp., 85 F. 3d 1074, 1080-81
(3d Cir. 1996) (citations and internal quotation marks omitted).
D.
Summary Judgment Motion on Eighth Amendment Claim
This case concerns Rosario’s Eighth Amendment claim against
CMS for deliberate indifference to his foot ulcer which resulted in
the development of gangrene and amputation of his toe.
CMS was the
contract medical provider for the State of New Jersey at SWSP, the
facility where Rosario was confined.
As discussed, Rosario, a
diabetic, claims that an unidentified nurse forced a boot onto his
12
swollen foot, which, because of the disruption of blood flow,
resulted in gangrene that led to the amputation of his left fifth
toe.
The Eighth Amendment's prohibition against cruel and unusual
punishment obligates prison authorities to provide medical care to
inmates.
See Estelle v. Gamble, 429 U.S. 97, 103 (1976); Rouse v.
Plantier, 182 F.3d 192, 197 (3d Cir. 1999).
To state a claim under
the Eighth Amendment, an inmate must satisfy a subjective element
and an objective element.
(1994).
See Farmer v. Brennan, 511 U.S. 825, 834
An inmate must "demonstrate (1) that the defendants were
deliberately indifferent to their medical needs and (2) that those
needs were serious."
Rouse, 182 F.3d at 197.
Deliberate indifference includes “indifference . . . manifested
by prison doctors in their response to the prisoner's needs or by
prison guards in intentionally denying or delaying access to medical
care or intentionally interfering with the treatment once
prescribed.”
Erickson v. Pardus, 551 U.S. 89, 90 (2007) (quoting
Estelle, 429 U.S. at 105) (footnotes and internal quotation marks
omitted).
Deliberate indifference has been found where the prison
official (1) knows of a prisoner's need for medical treatment but
intentionally refuses to provide it; (2) intentionally delays
necessary medical treatment based on a non-medical reason; or
(3) deliberately prevents a prisoner from receiving needed medical
13
treatment.
See Rouse, 182 F.3d at 197.
A medical need is serious
where it "has been diagnosed by a physician as requiring treatment
or is . . . so obvious that a lay person would easily recognize the
necessity for a doctor's attention."
Monmouth County Corr. Inst.
Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (citations
omitted).
The only specific behavior Rosario refers to in his Amended
Complaint is the incident when Nurse Doe, with the help of Officer
Doe, forced Rosario’s infected and swollen foot into a shoe that no
longer fit and then Officer Doe required Rosario to crawl back to
his cell.
Rosario’s foot infection was undoubtedly a serious
medical need.
Rosario’s allegations concerning the shoe incident,
if true, are sufficient to show the deliberate indifference of Nurse
Doe and Officer Doe, since the deliberate infliction of pain
satisfies the deliberate indifference standard under the Eighth
Amendment.3
3
See Estelle, 429 U.S. at 102 (noting that the Eighth Amendment
proscribes punishments “which involve the unnecessary and wanton
infliction of pain”) (citation and internal quotation marks
omitted); Wilkerson v. Utah, 99 U.S. 130, 136 (1879) (“(I]t is safe
to affirm that punishments of torture . . . and all others in the
same line of unnecessary cruelty, are forbidden by [the Eighth]
amendment . . .”); Milton v. Turner, 445 F. App’x 159, 164 (11th Cir.
2011) (corrections officer who knowingly forced diabetic inmate with
an infected foot to mow the grounds violated Eighth Amendment by
delaying medical treatment and deliberately inflicting pain); White
v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990) (“What separates this
complaint from ordinary allegations of medical malpractice are (1)
14
The parties vigorously disagree as to whether or not the facts
concerning the shoe incident are in dispute and, therefore, would
require this Court to deny the summary judgment motion.
The shoe
incident, however, is material for the purposes of summary judgment
only if there is sufficient evidence to demonstrate that an omission
in CMS’s policies, training or supervision caused the shoe incident
or otherwise caused CMS employees to be deliberately indifferent to
Rosario’s diabetic foot ulcer.4
CMS, the lone remaining defendant,
cannot be found liable under 42 U.S.C. § 1983 simply because it
employed a nurse who was deliberately indifferent to Rosario’s
serious medical needs.
See Monell v. New York City Dept. of Soc.
Servs., 436 U.S. 658, 691-92 (1978) (“In particular, we conclude that
a municipality cannot be held liable solely because it employs a
tortfeasor-or, in other words, a municipality cannot be held liable
under § 1983 on a respondeat superior theory.”); Natale v. Camden
County Corr. Facility, 318 F.3d 575, 583 (3d Cir. 2003).
In order
for CMS to be found liable under § 1983, Rosario must show that CMS
allegations that the doctor intended to inflict pain on prisoners
without any medical justification and (2) the sheer number of
specific instances in which the doctor allegedly insisted on
continuing courses of treatment that the doctor knew were painful,
ineffective or entailed substantial risk of serious harm to the
prisoners”).
4
“A fact is material if it might affect the outcome of the suit under
the governing law.” Burton v. Teleflex Inc., 707 F.3d 417, 425 (3d
Cir. 2013).
15
had a relevant policy or custom and this policy or custom caused
deliberate indifference to Rosario’s foot ulcer or infection.5
Natale, 318 F.3d at 583-84; accord Jiminez v. All Am. Rathskeller,
Inc., 503 F. 3d 247, 249 (3d Cir. 2007) (plaintiff must show a “direct
causal link between a . . . policy or custom and the alleged
constitutional deprivation.”) (quoting City of Canton v. Harris, 489
U.S. 378, 385 (1989)).
On this point, CMS argues that despite
extensive discovery, Rosario has produced no evidence to prove that
his infection, gangrene or amputation were caused by a custom or
policy of CMS.
CMS further contends that Rosario has not identified
any specific deficiency in the customs or policies of CMS, and has
relied entirely on the shoe incident itself to establish the
liability of CMS.
Relying on this Court’s 2009 decision in Ross v. Monge, Civ.
No. 07-2693 (RMB), 2009 WL 1291814 (D.N.J. May 4, 2009), Rosario
contends that CMS “pursued a policy of inaction when it came to
training, educating and supervising its medical staff” with regard
to Rosario’s “unhealing, diabetic foot wound, the pain and swelling
he presented for over a month and the numerous missed opportunities
5
The plaintiff “must identify a custom or policy, and specify what
exactly that custom or policy was.” McTernan v. City of York, PA,
564 F. 3d 636, 658 (3d Cir. 2009). Policy includes the decisions
and acts of policymaking officials and “practices so persistent and
widespread as to practically have the force of law.” Connick v.
Thompson, 131 S.Ct. 1350, 1359 (2011) (citation omitted).
16
its staff had to perform diagnostic tests and/or to refer Mr. Rosario
to a podiatrist once they failed to see any improvement from the
treatment they prescribed . . . and Mr. Rosario was, therefore, forced
to suffer an amputation because of inter alia, gangrene that
ultimately developed in the foot.”
6-7.)
(Pl.’s Br., ECF No. 167-2 at
Thus, Rosario argues that his gangrene and amputation
resulted from CMS’s “failure to adopt policies, procedures and
training which would have prevented his injury.”
(Id. at 13.)
“Mr.
Rosario respectfully submits that CMS’s conscious inattention to the
screening, training and supervision of its employees and agents
presents the same type of ‘deliberate indifference’ this Court has
already found may give rise to an actionable claim under Section
1983.”
(Id. at 15.)
To support this argument, Rosario states that
none of the nurses Rosario deposed could recall receiving from CMS
training concerning the treatment and care of diabetic patients and
foot wound care for diabetic patients.
(Id.)
In response, CMS argues that the evidence before this Court
refutes the existence of a policy of inaction, and demonstrates that
CMS consistently provided medical care for Rosario’s foot ulcer and
foot infection once he notified the medical staff of a foot ulcer
in August 2007.
(Def.’s Reply Br., ECF No. 176 at 6-8.)
17
A review of the depositions and the electronic medical record
of Rosario’s care supports CMS’s argument.6
The record shows that
on August 24, 2007, Dr. Abu Ahsan examined Rosario during a chronic
care endocrine visit and noted macerated skin between his toes.
No. 159-4 at 42.)
(ECF
The medical record shows that medical staff
subsequently checked Rosario’s blood glucose level on a consistent
basis and performed foot soaks.
On September 10, 2007, Rosario
presented at sick call with left foot pain.
(ECF No. 159-4 at 22.)
On that date, RN Melody Pariola noted “diabetic left foot with ulcer
between 4th and 5th toes” (id. at 23), and Nurse Practitioner Fran
Green ordered Bactrim and warm foot soaks (id. at 21).
On September 13, 2007, CNA Latoya James noted that Rosario
did not show at the morning medline for Bactrim for three consecutive
days (id. at 18), and on September 15, 2007, LPN Donna Arcangeli noted
that Rosario was “not coming to medline for bactrim bid.”
15.)
(Id. at
Again, on September 16, 2007, Nurse Practitioner Fran Green
6
Rosario objects to consideration of his electronic medical records
on the ground that they are not properly authenticated.
Rule
56(c)(1)(A) provides that “[a] party asserting that a fact cannot
be or is genuinely disputed must support the assertion by [] citing
to particular parts of materials in the record, including . . .
electronically stored information . . .” Rule 56(c)(2) provides
that “[a] party may object that the material cited to support or
dispute a fact cannot be presented in a form that would be admissible
in evidence.” As Rosario has not alleged or demonstrated that his
electronic medical records “cannot be presented in a form that would
be admissible in evidence,” id., this Court will consider them in
deciding the summary judgment motion. Cf. Fed. R. Evid. 803(6).
18
noted that Rosario did not show for bactrim in the morning.
at 14.)
(Id.
On September 17, 2007, at about 7:30 a.m., RN Melody Pariola
contacted Dr. Briglia for a medical emergency after Rosario was found
on the floor of his cell; Rosario was taken to the infirmary for chest
pain, tremors and shortness of breath.
(Id. at 1-12.)
Rosario was
then sent to South Jersey Medical Center, after which he returned
to SWSP and was admitted to the infirmary.
At 5:52 p.m., he was
discharged. (ECF Nos. 159-4 at 1, 159-3 at 75.)
The next morning, on September 18, 2007, Rosario saw RN Mary
Ellen Green at sick call for pain in his left foot.
at 71-74.)
(ECF No. 159-3
Her notes show that she saw a reddened area of 9 by 5
centimeters on his left foot and indicate that, through a social
worker who translated, Rosario informed Green that he did not
understand that he had to go to the medline to receive his antibiotic
medication.
Therefore, Nurse Green gave him the medication to keep
on his person after explaining its use.
(Id.)
The record further reveals that the foot soaks and glucose
checks were continued, and on September 23, 2007, RN Mary Ellen Green
saw Rosario again at sick call for pain, swelling and redness on his
foot.
(ECF No. 159-3 at 63-67.)
Nurse Green gave him pain
medication and noted in his chart that, although he had been taking
antibiotics, his foot had not improved.
19
(Id. at 65.)
On September 24, 2007, Nurse Practitioner
Fran Green examined
Rosario in the presence of a Spanish interpreter.
(Id. at 59-61.)
She noted that his foot had been infected for one month and had been
treated with soaks and oral antibiotics, but the foot was still red,
painful, tender and swollen.
(Id.)
Green changed the medication
from Bactrim to Levaquin and metronidazole, ordered an x-ray of the
foot and a blood test (CBC with differential), and submitted a request
for a consultation with a podiatrist.
(Id.)
The notes indicate
that a special request was made for Levaquin, a non-formulary drug,
on the ground that the infection in Rosario’s left foot was not
responsive to Bactrim.
(Id. at 56.)
The record shows that on September 26, 2007, Rosario was
transported to South Jersey Regional Medical Center on an emergency
basis due to chest pain and left leg pain, and he was then admitted
to St. Francis Medical Center.
(ECF No. 159-3 at 51-54.)
indicate the foot was painful, swollen and reddened.
Notes
(Id. at 52.)
The foot was x-rayed on September 27, 2007, and the x-ray indicated
“[s]oft tissue swelling without apparent fracture, osteomyelitis or
other acute bony abnormality.”
(Id. at 45.)
On October 5, 2007,
at St. Francis Medical Center, Barry Wisler, MD, amputated Rosario’s
left fifth toe due to “gangrene left foot.”
Report, ECF No. 162-1 at 114.)
20
(Surgical Pathology
In Connick v. Thompson, 131 S.Ct. 1350 (2011), the Supreme Court
most recently examined the standard for finding a municipal entity
liable under § 1983 on the basis of a policy of inaction.
In that
case, a state court had vacated the defendant’s convictions for
attempted armed robbery and murder after it was revealed that, in
the prosecution for attempted armed robbery, prosecutors had failed
to disclose exculpatory evidence consisting of a swatch of fabric
stained with the robber’s blood that showed that the perpetrator had
a blood type different from the defendant’s.
murder, the jury found Thompson not guilty.
After a retrial for
Thompson brought a
§ 1983 complaint against the district attorney’s office (the “DA”),
asserting the failure to disclose the evidence, in violation of Brady
v. Maryland, 373 U.S. 83 (1963), was caused by the DA’s deliberate
indifference to an obvious need to train the prosecutors in his office
to avoid Brady violations.
A jury found the DA liable under § 1983 for failing to train
the prosecutors, awarded $14 million in damages, and the office
appealed.
The Fifth Circuit affirmed, finding that Thompson did not
need to present evidence of a pattern of similar Brady violations
because Thompson had shown that the DA was on notice of an obvious
need for Brady training through evidence that (a) prosecutors would
undoubtedly be required to confront Brady issues,
(b) resolution
of Brady issues was often unclear, (c) erroneous decisions regarding
21
Brady evidence would result in serious constitutional violations,
and (d) training in such Brady issues would have been helpful.
Connick, 131 S.Ct. at 1358.
The Court of Appeals sitting en banc
vacated the panel opinion and granted rehearing, but the Circuit
divided evenly, thereby affirming.
Id.
The Supreme Court first noted that a local government’s decision
not to train certain employees may rise to the level of an official
government policy under § 1983 where it amounts to “‘deliberate
indifference to the rights of persons with whom the [untrained
employees] come into contact.’”
Connick, 131 S.Ct. at 1359 (quoting
City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)).
Because
deliberate indifference requires proof that a municipal actor
disregarded a known or obvious consequence of his action, “when city
policymakers are on actual or constructive notice that a particular
omission in their training program causes city employees to violate
citizens’ constitutional rights, the city may be deemed deliberately
indifferent if the policymakers choose to retain that program.”
Connick, 131 S.Ct. at 1360.
The Court explained that a “pattern of
similar constitutional violations by untrained employees is
‘ordinarily necessary’ to demonstrate deliberate indifference for
purposes of failure to train.”
Id. (quoting Board of County
Commissioners of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 4099
(1997)).
22
The Court next observed that, instead of relying on a pattern
of similar Brady violations, Thompson argued that “the Brady
violation in his case was the ‘obvious’ consequence of failing to
provide specific Brady training, and that this showing of
‘obviousness’ can substitute for the pattern of violations
ordinarily necessary to establish municipal culpability.”
131 S.Ct. at 1361.
Connick,
Noting that, in a narrow range of circumstances,
a pattern might not be necessary to show deliberate indifference,
the Court found that “this case does not fall within the narrow range
of ‘single-incident’ liability hypothesized in Canton as a possible
exception to the pattern of violations necessary to prove deliberate
indifference in § 1983 actions alleging failure to train.”
1366.
Id. at
The Court held that the District Court “should have granted
Connick judgment as a matter of law on the failure-to-train claim
because Thompson did not prove a pattern of similar violations that
would ‘establish that the policy of inaction [was] the functional
equivalent of a decision by the city itself to violate the
Constitution.’”
Id. (quoting Canton, 489 U.S. at 395).
This Court holds that Connick controls the outcome of this case.7
Although Rosario does not directly rely on the theory of
7
This Court decided Ross v. Monge prior to the Supreme Court’s ruling
in Connick. Moreover, it bears noting that Ross involved a motion
to dismiss a complaint under Rule 12(b)(6).
23
“single-incident” liability,8 like the plaintiff in Connick, Rosario
implicitly argues that his gangrene and amputation were the obvious
consequences of CMS’s failure to train and supervise Nurse Doe and
other care providers.
The Supreme Court rejected the
“single-incident” theory of liability in Connick on the ground that
“[a] district attorney is entitled to rely on prosecutors’
professional training and ethical obligations in the absence of
specific reason, such as a pattern of violations, to believe that
those tools are insufficient to prevent future constitutional
violations in the usual and recurring situations with which the
prosecutors must deal.”
Connick, 131 S.Ct. at 1363 (citation and
internal quotation marks omitted).
Like the attorneys in Connick, the nurses employed by CMS
completed nursing degrees and were licensed.
This is not in dispute.
(See, e.g., ECF Nos. 166-6 at 12-13, 175-5 at 15-16, 175-6 at 39.)
And like the plaintiff in Connick, Rosario has failed to point to
a pattern of violations of the Eighth Amendment rights of other
8
“Proof of a single incident of unconstitutional activity is not
sufficient to impose liability under Monell, unless proof of the
incident includes proof that it was caused by an existing . . . policy,
which policy can be attributed to a municipal policymaker.” Brown
v. City of Pittsburgh, 586 F.3d 263, 292 (3d Cir. 2009) (quoting City
of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985) (plurality
opinion)). This is because “a single incident of . . . misbehavior
by a[n employee] is insufficient as sole support for an inference
that a municipal policy or custom caused the incident.” Id. (quoting
City of Oklahoma at 832) (Brennan, J., concurring).
24
diabetic inmates with foot or similar ulcers, which under Connick
is necessary to show that the professional training of Nurse Doe and
other nurses was insufficient to prevent deliberate indifference to
Rosario’s foot ulcer.
While greater guidance regarding the care of
diabetic foot ulcers might have been helpful to CMS nurses, “showing
merely that additional training would have been helpful in making
difficult decisions does not establish municipal liability.”
Connick, 131 S.Ct. at 1363.
The holding of Connick compels this Court to reject Rosario’s
attempt to establish deliberate indifference by showing the
obviousness of a need for additional nurse training concerning the
care of diabetic foot ulcers and infections.
Because Rosario points
to no pattern of similar violations that would “’establish that the
policy of inaction [was] the functional equivalent of a decision by
[CMS] to violate the Constitution,” this Court must grant summary
judgment in favor of CMS on the Eighth Amendment claim.9
9
Connick,
Moreover, even in a case where a deficiency in a training program
is identified, a § 1983 plaintiff “must still prove that the
deficiency in training actually caused the . . . indifference to [the
plaintiff’s] medical needs.”
City of Canton, 489 U.S. at 391.
“That a particular officer may be unsatisfactorily trained will not
alone suffice to fasten liability on the city, for the officer’s
shortcomings may have resulted from factors other than a faulty
training program.” Id. at 390-91. In this case, because Rosario
cites no other incident or inadequacy in his care constituting
deliberate indifference, this Court also holds that Rosario has not
produced evidence that any failure to train caused the violation of
Rosario’s constitutional rights.
25
131 S.Ct. at 1366 (quoting Canton, 489 U.S. at 395).
v. City of Philadelphia,
See Almodovar
F. App’x, 2013 WL 2631536 (3d Cir. June
13, 2013) (affirming order granting summary judgment for city on
inmate’s claim that city’s lack of training and supervision allowed
another inmate to gain access to a knife used to attack him because
inmate did not establish that failure to train evidenced deliberate
indifference); Jewell v. Ridley Twp., 497 F. App’x 182 (3d Cir. 2012)
(where plaintiff who was injured in collision with drunk driver being
pursued by police sued municipality for failing to properly train
and supervise police conducting pursuits, summary judgment was
affirmed because, “[w]ithout a pattern of constitutional violations
during police pursuits involving the Ridley police, we cannot
conclude that Ridley exhibited deliberate indifference in its
efforts to train its officers”); Li Min v. Morris, 445 F. App’x 574
(3d Cir. 2011) (affirming summary judgment for city on § 1983 failure
to train and supervise claim brought by restaurant owner who was
robbed and assaulted by city’s health inspector with a criminal
record because plaintiff failed to point to evidence of any other
employee of the city’s health department with a criminal record who
committed unlawful conduct in the course of his or her employment);
May v. Sanna, Civ. No. 09-3253 (RMB), 2012 WL 1067686 at *12 (D.N.J.
Mar. 29, 2012) (granting summary judgment for Lumberton on § 1983
excessive force claim because plaintiff failed to put forth evidence
26
showing that “Lumberton’s inadequate training or supervision of
[police officers] amounted to deliberate indifference to Plaintiff’s
rights and thereby caused his injuries”).
E.
Supplemental Jurisdiction
Federal law provides that a district court may decline to
exercise supplemental jurisdiction over a claim if “the district
court has dismissed all claims over which it has original
jurisdiction.”
28 U.S.C. § 1367(c)(3).
The Third Circuit has
instructed that, “where the claim over which the district court has
original jurisdiction is dismissed before trial, the district court
must decline to decide the pendent state claims unless considerations
of judicial economy, convenience, and fairness to the parties provide
an affirmative justification for doing so.”
Hedges v. Musco, 204
F.3d 109, 123 (3d Cir. 2000) (quoting Borough of West Mifflin v.
Lancaster, 45 F.3d 780, 788 (3d Cir. 1995)) (emphasis in Hedges).
Since the statute of limitations on Rosario’s state claims is
“tolled while the claim is pending and for a period of 30 days after
it is dismissed,” 28 U.S.C. § 1367(d), this Court discerns no
unfairness in declining to decide his state claims.
See Munoz v.
City of Union City, 481 F. App’x 754, 761 n.8 (3d Cir. 2012); Hedges,
204 F.3d at 123-24.
Because judicial economy, convenience, and
fairness to the parties do not provide an affirmative justification
in this case beyond any other case, this Court declines to exercise
27
supplemental jurisdiction.
See Gibson v. Weber, 433 F.3d 642, 647
(8th Cir. 2006) (where district court had granted summary judgment
to defendants on inmate’s § 1983 claim that medical officials were
deliberately indifferent to his diabetic foot wound, court did not
abuse discretion by declining to exercise jurisdiction over the
remaining state malpractice claim); King v. County of Gloucester,
302 F. App’x 92, 99 (3d Cir. 2008) (finding no abuse of discretion
where court declined to exercise supplemental jurisdiction over
state claims after dismissal of federal claims).
III.
CONCLUSION
Based on the foregoing, this Court grants the motions to seal,
dismisses defendants Nurse Doe and Corrections Officer Doe, grants
summary judgment on the Eighth Amendment claim in favor of CMS, and
declines to exercise supplemental jurisdiction as to the remaining
state law claims.
Date:
June 25, 2013
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
28
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