VELASQUEZ v. HAYMAN et al
Filing
82
OPINION. Signed by Judge Robert B. Kugler on 11/30/2011. (TH, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JESSE VELASQUEZ,
Plaintiff,
v.
DR. ALLEN MARTIN, et al.,
Defendants.
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Civil Action No. 09-3230 (RBK)
OPINION
APPEARANCES:
Plaintiff pro se
Jesse Velasquez
709 N. 6 Street
Camden, NJ 08102
Counsel for Defendant
Lynn Kwepp
a/k/a Lynn Kwap
Sean Robins
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 [75] of
Defendant Lynn Kwap1 to Dismiss the claims against her 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 [unidentified] 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.
1
Plaintiff incorrectly identifies the Defendant in the
Complaint as “Lynn Kwepp.” She will be referred to herein by her
correct name, “Lynn Kwap.”
2
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
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 [unidentified] 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
3
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
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 which was suppose to had been repaired and
went on to explain that he wrote a remedy on or about
April 1, 2008 and received a response on or about May
8, 2008 informing JV that the wheelchair was sent out
for repairs, which was not true because JV had saw the
wheelchair in the storage area near the nurses office
is located and Ms. Lynn informed JV that she would look
into that matter and see if the wheelchair could be
repaired. Next JV informed her about the excessive
bleeding which she, Dr. Martin, Nurse Denise and CNA
4
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.
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 (emphasis added).)
Plaintiff also alleges that
all defendants failed to provide necessary physical therapy for
Plaintiff, intentionally failed to provide proper medical
treatment for plaintiff in order to save time and money, failed
5
to set policies and procedures for the administration of blood
thinners, refused to provide essential care by denying Plaintiff
the prescribed medication and physical therapy after the
emergency, packed Plaintiff’s wounds without properly examining
him or reviewing his medical records, and intentionally ignored
his complaints of constant and severe pain.
Cause of Action, ¶ 11.)
(Complaint, First
Finally, in the caption of the
Complaint, Defendant Lynn Kwap is identified as the “Nurse
Director.”
Defendant Lynn Kwap has moved to dismiss the Complaint on
the following grounds: (1) Plaintiff spoke with Defendant Kwap
only on the subject of the motorized wheelchair, and her response
that she would look into the matter belies any claim of
deliberate indifference, (2) any claim that Defendant Kwap is
responsible for the failure of others to repair the wheelchair is
based on an untenable theory of vicarious liability, and (3) to
the extent the Complaint could be construed as including a state
law claim of medical malpractice, there is no allegation that
Defendant Kwap was involved in Plaintiff’s medical care.
The
Motion [75] is unopposed.2
2
Even where a motion to dismiss is unopposed, the Court
must still undertake an analysis of the motion's merits, at least
when the nonmovant is not represented by counsel. Chocallo v.
IRS Dept. of Treasury, 145 Fed. Appx. 746, 747–8 (3d Cir.2005).
See also Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d
Cir.1992) (“[I]f a motion to dismiss is granted solely because it
has not been opposed, the case is simply not being dismissed
6
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.”
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.
because the complaint has failed to state a claim upon which
relief may be granted. Rather, it is dismissed as a
sanction[.]”).
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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 ... .
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citations omitted).
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
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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
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.”
9
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
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
10
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
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,
11
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
‘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
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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.’”
Id. at 347 (citation omitted).
Here, this Court disagrees with Defendant Kwap’s
characterization of the factual allegations against her as being
limited to a discussion of the repair of Plaintiff’s wheelchair.
To the contrary, Plaintiff alleges that Defendant Kwap, acting
personally in her role as a nursing supervisor, participated with
other medical personnel in an examination of Plaintiff after
several days of excessive internal and external bleeding and only
a few hours before his condition had deteriorated to the point
that he required emergency hospital care, that she was present
when he asked to be transferred to the hospital but that request
was denied, that she failed to put into place appropriate
policies regarding the administration of blood thinners, and that
she (along with all other defendants) failed to provide
prescribed follow-up care.
Plaintiff alleges that the medical
13
care he received was cursory, that Defendant Kwap, along with the
other medical personnel, failed to take the time to properly
examine him or review his medical records.
Plaintiff alleges
that the approach to his medical care, in which Defendant Kwap
participated, was motivated by concerns about time and money,
rather than the provision of appropriate care.
In addition, contrary to Defendant Kwap’s characterization
of the allegations of the Complaint, Plaintiff does not attempt
to rest Defendant Kwap’s liability on an untenable theory of
vicarious liability.3
Instead, Plaintiff alleges that Defendant
Kwap personally participated in care decisions related to
Plaintiff’s serious medical needs, both before and after his
hospitalization.
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.’”
Estelle, 429 U.S. at 105-06
3
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 U.S. 658, 691 (1978); Durmer v. O’Carroll, 991 F.2d 64, 69
n.14 (3d Cir. 1993).
14
(emphasis added).
Here, however, the facts alleged do not
suggest an inadvertent failure to provide adequate medical care.
To the contrary, the allegations are that the approach to
Plaintiff’s care directly resulted from Defendant Kwap’s failure
to implement appropriate policies regarding administration of
blood thinners, motivated by concerns about time and money rather
than quality of care, and from Defendant Kwap’s failure to direct
appropriate care following her participation in an examination of
Plaintiff after several days of excessive bleeding and complaints
of pain, and from Defendant Kwap’s failure to provide appropriate
follow-up care after Plaintiff’s discharge from the hospital.
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).
Of course, Plaintiff must, in the future, come forward with
evidence to establish the truth of these allegations.
All this
Court holds at this juncture is that the allegations are
sufficient to avoid dismissal.
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IV.
CONCLUSION
For the reasons set forth above, the Motion [75] to dismiss
will be denied.4
An appropriate order follows.
s/Robert B. Kugler
Robert B. Kugler
United States District Judge
Dated: November 30, 2011
4
As this Court has held that the constitutional claims will
not be dismissed, this Court also will decline to dismiss the
pendent state law claims for medical malpractice.
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