VELASQUEZ v. HAYMAN et al

Filing 77

OPINION. Signed by Judge Robert B. Kugler on 6/13/2011. (TH, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JESSE VELASQUEZ,
Plaintiff,
v.
DR. ALLEN MARTIN, et al.,
Defendants.

:
:
:
:
:
:
:
:
:

Civil Action No. 09-3230 (RBK)
OPINION

APPEARANCES:
Plaintiff pro se
Jesse Velasquez
709 N. 6 Street
Camden, NJ 08102

Counsel for Defendants
Dr. Allen Martin and
Correctional Medical Services
Richard Han Kim
Sean Robins
Sean X. Kelly
Marks O’Neill O’Brien &
Courtney, P.C.
6981 North Park Drive
Pennsauken, NJ 08109

KUGLER, District Judge
This matter was opened to the Court by Plaintiff Jesse
Velasquez, formerly a prisoner confined at South Woods State
Prison, filing a Complaint alleging various violations of his
constitutional rights including, most pertinent to the present
proceeding, violation of his Eighth Amendment right to adequate
medical care.
Now pending before this Court is the Motion [30] of
Defendants Dr. Allen Martin and Correctional Medical Services,

Inc., to Dismiss the claims against them for failure to state a
claim.
I.

BACKGROUND

According to the Complaint, Plaintiff was confined at South
Woods State Prison at the time of the events complained of.
Plaintiff alleges that he is an amputee with complicated medical
needs.

Plaintiff’s factual allegations regarding his medical

needs and care at the heart of his claims are set forth as
follows:
a.
On or about May 1, 2008 plaintiff Jesse
Velasquez (JV) right leg and foot was experiencing
swelling and he informed the morning shift nurse of
this discomfort and his complaint was ignored.
b.
On June 11, this complaint was made and JV
was examined by Dr. Martin and nurse which JV was given
10 m.g. of comaden a blood thinner pill which Dr.
Martin thought was a blood clot in the right leg and
foot. The doctor never requested an ultra sound to
confirm a blood clot. The medication was administered
for approximately 3 days in the evening (8:00 p.m.) and
was given a blood thinner by injection to his stomach
area which the name of the medication was given during
the morning shift which the blood thinner name began
with the letter “l” for approximately a week then
changed to 7.5 m.g. for about a couple of days during
the evening until Dr. Martin stopped administering the
Comaden on June 28, 2008 because of excessive bleeding
JV was having in his left and right buttock area. The
plaintiff was also experiencing bleeding from his
colostomy and urostomy bags.
c.
On June 25, 2008 Nurse Denise entered JV room
to administer wound treatment (left and right buttock
area and right outside ankle). When nurse Denise
started JV treatment she informed the plaintiff that
bleeding had increased in the buttocks area. JV asked
her why don’t you send me to the hospital before the
bleeding gets worse, which she replied if she thought I
2

needed to be admitted she would do so. JV request to
be admitted to hospital was denied. At that time JV
made Denise aware that he had a history being anemic.
d.
On June 26, 2008 the nurse entered JV room
for his daily wound treatment again the bleeding had
increased from my wound area, which I informed the
nurse that I was bleeding from the previous day and
would like to be admitted to the hospital and was
advised that everything was under control. This was JV
second request in two days to be admitted to hospital.
e.
On June 27, 2008 nurse Denise entered JV room
to administer early morning wound treatment again JV
was informed that he was bleeding excessively from the
same area and she informed JV that she was going to
pressure pack his wound using several cling wraps,
gauze and ADB gauze’s with pads with Tegadem tape to
hold it in place, JV also had blood in his colostomy
and urostomy bags. At approximately 5:00 p.m. nurse
Terry entered JV room to administer wound treatment and
also informed JV of the excessive bleeding in his left
and right buttock area, again JV showed her his
colostomy and urostomy bag containing excessive amounts
of blood.
Late in the evening nurse Terry examined JV wounds
and noticed that his wounds needed to get changed again
due to excessive bleeding, so nurse Terry also pressure
packed his wounds using whole cling wraps, gauzes and
ADB gauzes with Tegaderm tape. JV questioned nurse
Terry in regards to his need to be admitted to the
hospital and was reassured by the nurse that he would
be alright and not to worry. Again JV was denied
hospitalization.
f.
On June 28, 2008 nurse Denise entered JV room
to administer wound treatment to the left and right
buttock area along with the outer ankle area, nurse
Denise informed JV that his wounds are continuing to
bleed excessively and she was administering a pressure
pack to JV wounds, additionally she checked the
colostomy and urostomy bags for signs of blood and
again saw blood.
Approximately 5:00 p.m. nurse Terry entered JV
room to administer wound treatments to the left and
right buttock area and right outer ankle area. Nurse
3

Terry pressure packed JV wounds and requested that JV
remain in bed for the rest of the night due to
excessive bleeding which JV continued to have from his
wounds as well as colostomy and urostomy bags. Later
that evening nurse Terry changed JV wound dressing due
to excessive bleeding that continued to occur. By
pressure packing my wounds I asked nurse Terry why
haven’t I been sent to the hospital knowing that this
condition took place for approximately 4 days which she
was aware that I was bleeding excessively. Again JV
informed the nurse that he wished to be admitted to the
hospital and again JV request was denied.
g.
On June 29, 2008 nurse Denise entered my room
to administer early morning wound treatment to the left
and right buttock area and outer ankle area. She
pressure packed JV wounds and checked the colostomy and
urostomy bags for blood which blood was present in both
bags. JV was informed to stay in bed again due to
excessive bleeding which JV did. Nurse Denise returned
to the room to look at JV wounds at approximately 12:30
p.m. and noticed JV was still bleeding excessively
which she again pressure packed JV wounds.
h.
On June 30, 2008 C.M.S. Administrator Ms.
Lynn entered JV room to speak to JV because he had
requested to speak with this individual for over a
week. Ms. Lynn entered the room and asked JV what was
the problem, JV had made mention about his motorized
wheelchair ... . Next JV informed her about the
excessive bleeding which she, Dr. Martin, Nurse Denise
and CNA Jaime were now all in JV room which each of
them looked at the wounded area. Dr. Martin, evaluated
my buttocks area to see about the excessive bleeding
and check JV colostomy and urology bag which he found
blood. Soon after Dr. Martin decided to culturize
[sic] my buttock area and applied a pressure pack to
hold it in place, at which time JV asked Dr. Martin in
the presence of CMS Administrator Lynn, nurse Denise
and CNA Jaime that I need to go to the hospital because
my condition was getting worse and he responded by
saying if he thought it was an urgent matter which
needed immediate attention he would have sent me to the
hospital. Approximately 5:00 p.m. and late in the
evening nurse Terry came to my room to administer my
wound treatment and to check my colostomy and urology
bags which contained blood.

4

i.
On July 1, 2008, at 4:00 a.m. nurse Terry
came into my room to administer my wound treatment due
to excessive bleeding that I was having in my buttocks
area, at this time I was feeling nauseous, dehydrated,
suffering from a fever, weak out of breath and
suffering from diarrhea. I made nurse Terry aware of
this and she continued to apply my pressure packing to
my wound and called emergency (911). I was rushed to
South Jersey Regional Medical Center in Vineland at
approximately 4:30 a.m. The doctors at S.J.R.M.C. had
to work extremely hard to keep me alive in the
emergency room (ER) due to the lack of proper care at
South Woods State Prison. I was advised that I was
admitted to S.J.R.M.C. because I was over medicated
with Comaden pills and because of a blood thinner
injection which was requested by Dr. Martin, which JV
took for 3 weeks which caused JV to bleed excessively
from his buttocks area along with the blood which was
found in his colostomy and urology bags. During JV 4
day stay at the above named facility he was given a
blood transfusion which 10 units of blood and 4 pints
of plasma was given to him. ...
(Complaint, ¶ 6.)

Plaintiff also alleges that during this time

he was in constant severe pain and that the defendants ignored
his complaints of pain.

(Complaint, First Cause of Action,

¶ 11.)
Plaintiff alleges that Correctional Medical Services, Inc.,
“set the policies and procedures they expect the medical staff at
the facility to follow in order to save money and make a profit,
usually at the expense of inmate medical care.”
¶ 4.e.)

(Complaint,

He also alleges that all defendants, including

Correctional Medical Services, Inc., violated his Eighth
Amendment right to adequate medical care by setting policies
which did not allow for the Plaintiff’s needs, by jeopardizing
the safety of the Plaintiff in order to save time and money, and
5

by failing to set policies or procedures for the adequate
administration of substitute blood thinners and necessary medical
equipment from the hospital and/or emergency units.

(Complaint,

First Cause of Action.)
Defendants Dr. Martin and Correctional Medical Services,
Inc. (collectively, the “Moving Defendants”) have moved to
dismiss the Complaint on the following grounds (1) Plaintiff has
failed to establish a custom or policy of Correctional Medical
Services, Inc. (“CMS”) violating his civil rights, and (2)
Plaintiff’s complaint fails to allege deliberate indifference by
Dr. Martin.

In his response, Plaintiff failed to address the

legal arguments made by the Defendants.
II.

DISMISSAL FOR FAILURE TO STATE A CLAIM

This Court must dismiss, at any time, certain in forma
pauperis and prisoner actions that are frivolous, malicious, fail
to state a claim, or seek monetary relief from a defendant who is
immune from such relief.

See 28 U.S.C. § 1915(e)(2) (in forma

pauperis actions); 28 U.S.C. § 1915A (actions in which prisoner
seeks redress from a governmental defendant); 42 U.S.C. § 1997e
(prisoner actions brought with respect to prison conditions).
See also Fed.R.Civ.P. 12(b)(6), permitting a party to move to
dismiss a claim in a civil action for “failure to state a claim
upon which relief can be granted.”

6

In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff.

Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United

States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).

The Court must

“accept as true all of the allegations in the complaint and all
reasonable inferences that can be drawn therefrom, and view them
in the light most favorable to the plaintiff.”

Morse v. Lower

Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997).
In addition, any complaint must comply with the pleading
requirements of the Federal Rules of Civil Procedure.
Rule 8(a)(2) requires that a complaint contain “a short and
plain statement of the claim showing that the pleader is entitled
to relief.”

A complaint must plead facts sufficient at least to

“suggest” a basis for liability.
218, 236 n.12 (3d Cir. 2004).

Spruill v. Gillis, 372 F.3d

“Specific facts are not necessary;

the statement need only ‘give the defendant fair notice of what
the ... claim is and the grounds upon which it rests.’” Erickson
v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted).
While a complaint ... does not need detailed factual
allegations, a plaintiff’s obligation to provide the
“grounds” of his “entitle[ment] to relief” requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will
not do, see Papasan v. Allain, 478 U.S. 265, 286, 106
S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to
dismiss, courts “are not bound to accept as true a
legal conclusion couched as a factual allegation”).
Factual allegations must be enough to raise a right to
relief above the speculative level ... .

7

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citations omitted).
The Supreme Court has demonstrated the application of these
general standards to a Sherman Act conspiracy claim.
In applying these general standards to a § 1
[conspiracy] claim, we hold that stating such a claim
requires a complaint with enough factual matter (taken
as true) to suggest that an agreement was made. Asking
for plausible grounds to infer an agreement does not
impose a probability requirement at the pleading stage;
it simply calls for enough fact to raise a reasonable
expectation that discovery will reveal evidence of
illegal agreement. And, of course, a well-pleaded
complaint may proceed even if it strikes a savvy judge
that actual proof of those facts is improbable, and
“that a recovery is very remote and unlikely.” ... It
makes sense to say, therefore, that an allegation of
parallel conduct and a bare assertion of conspiracy
will not suffice. Without more, parallel conduct does
not suggest conspiracy, and a conclusory allegation of
agreement at some unidentified point does not supply
facts adequate to show illegality. Hence, when
allegations of parallel conduct are set out in order to
make a § 1 claim, they must be placed in a context that
raises a suggestion of a preceding agreement, not
merely parallel conduct that could just as well be
independent action.
The need at the pleading stage for allegations
plausibly suggesting (not merely consistent with)
agreement reflects the threshold requirement of Rule
8(a)(2) that the “plain statement” possess enough heft
to “sho[w] that the pleader is entitled to relief.” A
statement of parallel conduct, even conduct consciously
undertaken, needs some setting suggesting the agreement
necessary to make out a § 1 claim; without that further
circumstance pointing toward a meeting of the minds, an
account of a defendant’s commercial efforts stays in
neutral territory. ...
Twombly, 550 U.S. at 556-57 (citations and footnotes omitted).

8

The Court of Appeals for the Third Circuit has held, in the
context of a § 1983 civil rights action, that the Twombly
pleading standard applies outside the § 1 antitrust context in
which it was decided.

See Phillips v. County of Allegheny, 515

F.3d 224, 234 (3d Cir. 2008) (“we decline at this point to read
Twombly so narrowly as to limit its holding on plausibility to
the antitrust context”).
Context matters in notice pleading. Fair notice under
Rule 8(a)(2) depends on the type of case -- some
complaints will require at least some factual
allegations to make out a “showing that the pleader is
entitled to relief, in order to give the defendant fair
notice of what the ... claim is and the grounds upon
which it rests.” Indeed, taking Twombly and the
Court’s contemporaneous opinion in Erickson v. Pardus,
127 S.Ct. 2197 (2007), together, we understand the
Court to instruct that a situation may arise where, at
some point, the factual detail in a complaint is so
undeveloped that it does not provide a defendant the
type of notice of claim which is contemplated by
Rule 8. Put another way, in light of Twombly, Rule
8(a)(2) requires a “showing” rather than a blanket
assertion of an entitlement to relief. We caution that
without some factual allegation in the complaint, a
claimant cannot satisfy the requirement that he or she
provide not only “fair notice,” but also the “grounds”
on which the claim rests.
Phillips, 515 F.3d at 232 (citations omitted).
More recently, the Supreme Court has emphasized that, when
assessing the sufficiency of any civil complaint, a court must
distinguish factual contentions -- which allege behavior on the
part of the defendant that, if true, would satisfy one or more
elements of the claim asserted -- and “[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory
9

statements.”

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).

Although the Court must assume the veracity of the facts asserted
in the complaint, it is “not bound to accept as true a legal
conclusion couched as a factual allegation.”

Id. at 1950.

Thus,

“a court considering a motion to dismiss can choose to begin by
identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.”

Id.

Therefore, after Iqbal, when presented with a
motion to dismiss for failure to state a claim,
district courts should conduct a two-part analysis.
First, the factual and legal elements of a claim should
be separated. The District Court must accept all of
the complaint's well-pleaded facts as true, but may
disregard any legal conclusions. Second, a District
Court must then determine whether the facts alleged in
the complaint are sufficient to show that the plaintiff
has a “plausible claim for relief.” In other words, a
complaint must do more than allege the plaintiff's
entitlement to relief. A complaint has to “show” such
an entitlement with its facts. See Phillips, 515 F.3d
at 234-35. As the Supreme Court instructed in Iqbal,
“[w]here the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct,
the complaint has alleged-but it has not
‘show[n]’-‘that the pleader is entitled to relief.’”
This “plausibility” determination will be “a
context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.”
Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009)
(citations omitted).
III.

DISCUSSION

The Eighth Amendment to the United States Constitution,
applicable to the individual states through the Fourteenth
Amendment, prohibits the states from inflicting “cruel and

10

unusual punishments” on those convicted of crimes.
Chapman, 452 U.S. 337, 344-46 (1981).

Rhodes v.

This proscription against

cruel and unusual punishment requires that prison officials
provide inmates with adequate medical care.
429 U.S. 97, 103-04 (1976).

Estelle v. Gamble,

In order to set forth a cognizable

claim for a violation of his right to adequate medical care, an
inmate must allege: (1) a serious medical need; and (2) behavior
on the part of prison officials that constitutes deliberate
indifference to that need.

Id. at 106.

To satisfy the first prong of the Estelle inquiry, the
inmate must demonstrate that his medical needs are serious.
“Because society does not expect that prisoners will have
unqualified access to health care, deliberate indifference to
medical needs amounts to an Eighth Amendment violation only if
those needs are ‘serious.’”
(1992).

Hudson v. McMillian, 503 U.S. 1, 9

Serious medical needs include those that have been

diagnosed by a physician as requiring treatment or that are so
obvious that a lay person would recognize the necessity for a
doctor’s attention, and those conditions which, if untreated,
would result in lifelong handicap or permanent loss.

Monmouth

County Correctional Institutional Inmates v. Lanzaro, 834 F.2d
326, 347 (3d Cir. 1987), cert. denied, 486 U.S. 1006 (1988).
The second element of the Estelle test requires an inmate to
show that prison officials acted with deliberate indifference to

11

his serious medical need.

“Deliberate indifference” is more than

mere malpractice or negligence; it is a state of mind equivalent
to reckless disregard of a known risk of harm.
Brennan, 511 U.S. 825, 837-38 (1994).

Farmer v.

Furthermore, a prisoner’s

subjective dissatisfaction with his medical care does not in
itself indicate deliberate indifference.

Andrews v. Camden

County, 95 F.Supp.2d 217, 228 (D.N.J. 2000); Peterson v. Davis,
551 F.Supp. 137, 145 (D. Md. 1982), aff’d, 729 F.2d 1453 (4th
Cir. 1984).

Similarly, “mere disagreements over medical judgment

do not state Eighth Amendment claims.”
F.2d 103, 110 (3d Cir. 1990).

White v. Napoleon, 897

“Courts will disavow any attempt

to second-guess the propriety or adequacy of a particular course
of treatment ... [which] remains a question of sound professional
judgment.

Implicit in this deference to prison medical

authorities is the assumption that such informed judgment has, in
fact, been made.”

Inmates of Allegheny County Jail v. Pierce,

612 F.2d 754, 762 (3d Cir. 1979) (internal quotation and citation
omitted) (emphasis added).

Even if a doctor’s judgment

concerning the proper course of a prisoner’s treatment ultimately
is shown to be mistaken, at most what would be proved is medical
malpractice and not an Eighth Amendment violation.

Estelle, 429

U.S. at 105-06; White, 897 F.2d at 110.
“Where prison authorities deny reasonable requests for
medical treatment, however, and such denial exposes the inmate

12

‘to undue suffering or the threat of tangible residual injury,’
deliberate indifference is manifest.

Similarly, where ‘knowledge

of the need for medical care [is accompanied by the] ...
intentional refusal to provide that care,’ the deliberate
indifference standard has been met.

...

Finally, deliberate

indifference is demonstrated ‘[w]hen ... prison authorities
prevent an inmate from receiving recommended treatment for
serious medical needs or deny access to a physician capable of
evaluating the need for such treatment.”

Monmouth County Corr.

Inst. Inmates v. Lanzaro, 834 F.2d at 346 (citations omitted).
“Short of absolute denial, ‘if necessary medical treatment [i]s
... delayed for non-medical reasons, a case of deliberate
indifference has been made out.”

Id. (citations omitted).

“Deliberate indifference is also evident where prison officials
erect arbitrary and burdensome procedures that ‘result[] in
interminable delays and outright denials of medical care to
suffering inmates.’”
A.

Id. at 347 (citation omitted).

The Claim Against Dr. Martin
Here, the Moving Defendants allege that Plaintiff has failed

to allege facts from which “deliberate indifference” could be
inferred.

Instead, according to the Moving Defendants, Plaintiff

has merely alleged disagreement and dissatisfaction with the care
that was provided.

13

This Court disagrees.

Plaintiff alleges that for a period

of one week, following a long period of administration of two
blood thinners, he bled excessively both externally, from wounds
on his buttocks, and internally, as evidence by blood in two
ostomy bags, until he reached a state that required emergency
hospitalization and multiple transfusions.

There is no

suggestion, in the facts pleaded in the Complaint, that Dr.
Martin made any effort to determine the cause of the excessive
bleeding or to treat the excessive bleeding, except to apply
bandages and pressure packs to absorb the blood from Plaintiff’s
external wounds.

From the allegations of the Complaint, Dr.

Martin made no effort to diagnose or treat Plaintiff’s internal
bleeding.
As noted above, “[i]mplicit in this deference to prison
medical authorities is the assumption that such informed judgment
has, in fact, been made.”

Inmates of Allegheny County Jail v.

Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (internal quotation and
citation omitted).

Thus, “an inadvertent failure to provide

adequate medical care cannot be said to constitute ‘an
unnecessary and wanton infliction of pain’ or ‘to be repugnant to
the conscience of mankind.’”
(emphasis added).

Estelle, 429 U.S. at 105-06

Here, however, the facts alleged do not

suggest an inadvertent failure to provide adequate medical care.
To the contrary, the allegations are that Dr. Martin, having

14

administered two blood thinners, watched Plaintiff bleed
excessively both internally and externally for a period of a week
without making any effort to diagnose the cause of the bleeding,
or to stop the bleeding, or to replace the lost blood, or to
address Plaintiff’s complaints of severe pain, all of which led
to Plaintiff’s emergency need for hospitalization and
transfusions.

The allegations of the Complaint are sufficient to

permit an inference of “deliberate indifference.”

Cf., e.g.,

White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990) (from
persistent conduct in the face of resultant pain and risk of
permanent injury, one reasonably may infer that the doctor is
either intentionally inflicting pain on prisoners or is
deliberately indifferent to their medical needs).
B.

The Claim Against CMS
With respect to the claim against CMS, the Moving Defendants

argue that CMS cannot be held liable for the acts of its
individual employees (to the extent the Court finds that the
Complaint states a claim against individual employees of CMS),
under a theory of vicarious liability, and that Plaintiff has
failed adequately to demonstrate a custom or policy which
triggered a constitutional violation.
This Court agrees that it is well-settled that the doctrine
of respondeat superior cannot be a basis for Section 1983
liability.

See Monell v. New York City Dept. of Soc. Servs, 436

15

U.S. 658, 691 (1978); Durmer v. O’Carroll, 991 F.2d 64, 69 n.14
(3d Cir. 1993).

Thus, a corporation under contract with the

state cannot be held liable for the acts of its employees or
agents.

See Natale v. Camden County Corr. Facility, 318 F.3d

575, 583 (3d Cir. 2003).
CMS may, however, be held liable for the acts of an employee
if those acts are deemed the result of a policy or custom of CMS,
where the inadequacy of an existing practice is so likely to
result in the violation of constitutional rights that CMS can
reasonably be said to have been deliberately indifferent to the
plaintiff’s serious medical needs.
A policy is made “when a decisionmaker possess[ing]
final authority to establish municipal policy with
respect to the action issues a final proclamation,
policy or edict.” Kneipp v. Tedder, 95 F.3d 1199, 1212
(3d Cir. 1996) (quoting Pembaur v. City of Cincinnati,
475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452
(1986) (plurality opinion)). A custom is an act “that
has not been formally approved by an appropriate
decisionmaker,” but that is “so widespread as to have
the force of law.” [Bd. of County Comm’rs of Bryan
County, Oklahoma v. Brown, 520 U.S. 397, 404 (1997).]
There are three situations where acts of a
government employee may be deemed to be the result of a
policy or custom of the governmental entity for whom
the employee works, thereby rendering the entity liable
under § 1983. The first is where “the appropriate
officer or entity promulgates a generally applicable
statement of policy and the subsequent act complained
of is simply an implementation of that policy.” The
second occurs where “no rule has been announced as
policy but federal law has been violated by an act of
the policymaker itself.” Finally, a policy or custom
may also exist where “the policymaker has failed to act
affirmatively at all, [though] the need to take some
action to control the agents of the government ‘is so
16

obvious, and the inadequacy of existing practice so
likely to result in the violation of constitutional
rights, that the policymaker can reasonably be said to
have been deliberately indifferent to the need.’”
Natale, 318 F.3d at 584 (footnote and citations omitted).
Here, Plaintiff has invoked two of the three “custom or
policy” provisions:

he alleges that there was a policy to

deliver care based primarily upon economic considerations and he
alleges that there was no policy regarding the administration of
blood thinners, though one was needed.

These allegations are

directly tied to the allegations that his hospitalization was
delayed and that the blood thinners were administered and
monitored in a manner to violated his Eighth Amendment rights.
Of course, Plaintiff must, in the future, come forward with
evidence to establish the truth of these allegations and that
these policies and customs led to constitutional violations by
CMS employees.

All this Court holds at this juncture is that the

allegations are sufficient to avoid dismissal.
IV.

CONCLUSION

For the reasons set forth above, the Motion [30] to dismiss
will be denied.1

An appropriate order follows.
s/Robert B. Kugler
Robert B. Kugler
United States District Judge

Dated: June 13, 2011
1

As this Court has held that the constitutional claims
asserted against Dr. Martin and CMS will not be dismissed, this
Court also will decline to dismiss the pendent state law claims
for medical malpractice.
17

18