JACKSON v. GRONDOLSKY et al
Filing
105
OPINION. Signed by Judge Noel L. Hillman on 6/30/2013. (KBF)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOHN DOUGLAS JACKSON,
Plaintiff,
v.
J. GRONDOLSKY et al.,
Defendants.
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Civil No. 09-5617 (NLH)
MEMORANDUM OPINION
HILLMAN, District Judge:
This matter comes before the Court upon Plaintiff’s motion
to file his second amended complaint and Defendants’ opposition
to the same.
See Docket Entries Nos. 101 and 102.
For the
reasons detailed below, Plaintiff’s application will be granted
in part and denied in part.
On March 12, 2009, the Clerk received Plaintiff's first
civil complaint that gave rise to Jackson v. Grondolsky, Civil
Action No. 09-1112 (D.N.J.) (“Jackson I”).
Although it arrived
without a filing fee or in forma pauperis (“IFP”) application,
this Court granted Plaintiff conditional IFP status in light of
his allegations that he was rapidly going blind due to an alleged
denial of medical care.
Plaintiff, however, did not submit his
IFP application as directed but instead submitted an amended
complaint which failed to state a viable claim.
As a result, the
Court dismissed the amended complaint without prejudice to the
filing of a second amended pleading.
Additionally, the Court
extended Plaintiff’s time to submit his IFP application.
Subsequently, Plaintiff did not submit either his IFP
application or his second amended pleading but requested a stay
of the action.
Although the Court denied the stay, Plaintiff was
granted additional time to submit a second amended pleading and
his IFP application.
In response, Plaintiff submitted a letter
requesting that the second amended pleading be filed as a new and
separate civil matter.
The Court therefore issued an order
advising him of potential statute of limitations consequences
related to the institution of a new and separate civil matter,
and further informed Plaintiff that the filing fee would be
collected for both cases.
Plaintiff then reaffirmed his desire
to have his second amended pleading docketed as the original
complaint in a new and separate matter.
By that time, the Clerk had received another complaint from
Plaintiff1 which was filed for the purpose of commencing yet
another civil matter, Jackson v. Grondolsky, Civil Action No. 095617 (D.N.J.). (“Jackson II”).
Jackson II was reassigned to this
Court and was considered as the new and separate matter in which
Plaintiff wished to file his second amended pleading submitted in
1
(which was identical in all substantive respects to his
second amended pleading submitted in Jackson I)
2
Jackson I.
The Court then directed Plaintiff to submit his IFP
application with respect to Jackson II.
In the interim, the Clerk again received yet another civil
complaint from Plaintiff and opened a third civil matter, Jackson
v. Grondolsky, Civil Action No. 09-6459, Docket Entry No. 1
(D.N.J.) (“Jackson III”).
Since that complaint was identical to
the complaint docketed in Jackson II (and to the second amended
pleading received in Jackson I), this Court directed the Clerk to
terminate Jackson III as duplicative of Jackson II.
Plaintiff later submitted a letter requesting the Court to
reopen Jackson III because Plaintiff purportedly was being
confused with another litigant.
The Court, however, issued an
order denying Plaintiff’s request to reopen Jackson III,
concluding Plaintiff was in fact the same litigant in Jackson I,
Jackson II and Jackson III.
The Court also expressed concern
that Plaintiff still had not submitted his IFP application
despite having approximately a year to do so.
Thereafter,
Plaintiff submitted his IFP application in the terminated Jackson
III matter.
The Court thus construed the IFP application as
intended for submission in Jackson II and, upon granting
Plaintiff IFP status, conducted a sua sponte review of his
challenges asserted among the three actions.
Originally, Plaintiff named the following Defendants in this
action: (1) Warden Grondolsky (“Grondolsky”); (2) Doctor Sieber
3
(“Sieber”); (3) Steven Spaulding (“Spaulding”); (4) Clinical
Director Lopez (“Lopez”); (4) Alice Cane (“Cane”); (5) Hal
Sutherland (“Sutterland”); and a Jane Doe (“Doe”).2
Essentially, Plaintiff asserts that by the time of his
federal criminal conviction, Plaintiff had already been diagnosed
with a variety of eye-diseases, such as uveitis, glaucoma,
photophobia, cataract and sarcoidosis.
While the Court is not
aware of the complete history of Plaintiff’s housing arrangements
during incarceration, it appears that at some point in time
Plaintiff was housed at the FCI Big Spring (“Big Spring”) in
Texas and was later transferred to the FCI Fort Dix (“Fort Dix”)
and, upon serving his prison term, released.
Plaintiff alleged that, by the time he was moved from Big
Springs to Fort Dix, he had already had an eye surgery and was
prescribed three types of eye drops and monitoring of his eye
pressure.
He also asserted that, after the initial refill of his
eye drop prescriptions at Fort Dix, his following requests for
refills were delayed (or denied entirely) for non-medical
reasons, causing burning, itching and pain in his eyes.
In
addition, Plaintiff alleged that his requests for an examination
by an ophthalmologist were denied, and that the monitoring of his
2
To the extent Plaintiff misspelled the names of these
Defendants, their name have been based on the parties’ later
filings. Although it is uncertain, Plaintiff’s later submissions
also suggested that Spaulding, Cane and Sutherland might be
prison staff at the FCI Fort Dix.
4
eye pressure was performed by Siebur, an optometrist, who checked
it at the frequency Plaintiff found insufficient.3
Plaintiff
attributed his eventual loss of vision out of his left eye to
these events.
Finally, Plaintiff asserted that Lopez, Spaulding
and Cane violated his rights because: (1) Lopez never responded
to Plaintiff’s grievances; (2) Cane disclosed to Plaintiff the
fact that Siebur was an optometrist rather than an
ophthalmologist; and (3) Spaulding spoke to Plaintiff in a rude
fashion.
See generally Docket Entry No. 11 (detailing the same
at length).
This Court screened Plaintiff’s federal claim and dismissed
all Plaintiff’s Bivens claims based solely on the respondeat
superior theory and those that lacked facts implicating any
defendant in a cognizable wrong.
Next, the Court found his
Eighth Amendment and Federal Tort Claim Act (“FTCA”) challenges
viable but dismissed his Fourteenth and First Amendment claims.4
3
Plaintiff now asserts that, “[a]fter [an unspecified
number of months,] Plaintiff was seen by an ophthalmologist, who
promptly changed Plaintiff’s prescription and recommended
immediate surgery. Plaintiff then underwent surgery . . . .”
Docket Entry No. 101-2, at 7. However, his vision out of his
left eye has eventually been lost. See id. Thus, Plaintiff’s
claims appear to be based on the events that took place during
these unspecified months.
4
The Court pointed out that an ongoing but medically
deficient medical treatment or a failure to refer to a particular
medical specialist did not state a Bivens claim.
5
Thus, only Plaintiff’s Bivens claims against Siebur and his FTCA
challenges survived that sua sponte review.
See id.
On April 15, 2011, Seiber filed a Rule 12 motion seeking
dismissal of Plaintiff’s claims; the motion effectively stated
that Seiber was an independent contractor who lacked authority to
refer Plaintiff to any specialist or to order disbursement of any
eye medication.
See Docket Entry No. 28.
By Opinion dated December 23, 2011, this Court noted that
the Bivens claim asserting a failure to refer to Plaintiff to a
particular specialist had already been dismissed at the sua
sponte stage.
The December 23, 2011 further concluded that the
remainder of Plaintiff’s Bivens challenges was not amenable to
dismissal under Federal Rule of Civil Procedure 12(b)(6) because
Sieber’s motion relied upon extraneous material potentially
relevant only at the summary judgment stage.
No. 73.
See Docket Entry
Shortly thereafter, this Court dismissed Plaintiff’s
FTCA claims derived from Sieber’s actions because he was not an
agent of the United States.
See Docket Entry No. 82.
On June
27, 2012, Magistrate Judge Karen M. Williams appointed Plaintiff
a pro bono counsel.
See Docket Entries Nos. 94 and 96.
Plaintiff then filed the present motion seeking to file a
counseled pleading amending his prior complaint.
Entry No. 101.
See Docket
In the proposed pleading, Plaintiff named as
Defendants: (1) the United States of America, which was
6
previously dismissed as a Defendant in March of 2012; (2) the
Bureau of Prisons; (3) Jeff Grondolsky, Warden at Fort Dix at the
relevant time, who was dismissed as a defendant by the Court’s
January 2011 Memorandum Opinion and Order; (4) Abigal Lopez de
Lasalle, who was previously terminated as a Defendant in the
January 2011 Memorandum Opinion and Order; (5) Nicoletta TurnerFoster, a Defendant not previously named in any pleading; (6)
Sieber; and (7) Samir Mikhael Sulayman, another Defendant not
previously named in any pleading.
Plaintiff raised his FTCA
claims against the United States on the basis of Spaulding, Cane
and Sutherland’s conduct.
Additionally, Plaintiff raised Bivens
and state law negligence and medical malpractice claims against
Grondolsky, Lopez, Sieber, Turner-Foster and Sulayman.5
See
Docket Entry No. 101-2.
Initially, the Court notes that with respect to any
potential Bivens claims that Plaintiff seeks to assert in the
proposed amended complaint, his allegations that he was denied
the eye drops prescribed to him at Big Spring still asserts a
viable claim, as the Court previously recognized, because he
alleges that denial or delay of these refills was for non-medical
5
Although the record suggests that Plaintiff has full
possession of his medical records, his factual allegations are
sparse. Rather, his factual assertions are couched as general
statements, such as “Plaintiff filed numerous administrative
remedies” or “on numerous occasions [Plaintiff] told [that] he
was not receiving his prescription eye drops.” Docket Entry No.
101-2, at 5.
7
reasons.
See Monmouth County Correctional Institutional Inmates
v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987), cert. denied, 486
U.S. 1006 (1988) (“[D]eliberate 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”).
In contrast, Plaintiff’s proposed “eye monitoring” Bivens claim,
as stated in the proposed amended complaint, is not viable since
Plaintiff has never asserted that his prescribed treatment
required examinations by an ophthalmologist.6
6
Plaintiff has consistently asserted that his post-Big
Spring prescribed treatment included monitoring of his eye
pressure, the task which was performed by Sieber, although not as
the frequency Plaintiff desired. Thus, without more, Plaintiff’s
claim that he should have been referred to a particular
specialist, i.e., an ophthalmologist, are not viable under
Bivens. “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.” Farmer v. Brennan, 511 U.S.
825, 837-38 (1994). A prisoner’s subjective dissatisfaction with
his medical care does not in itself indicate deliberate
indifference. See 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.” White v. Napoleon, 897 F.2d 103, 110 (3d Cir.
1990). “Courts will disavow any attempt to second-guess the
propriety or adequacy of a particular course of treatment.”
Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d
Cir. 1979) (internal quotation and citation omitted).
Even if a doctor’s judgment concerning the proper course of
a prisoner’s treatment ultimately is shown to be mistaken, at
best such a claim would be for medical malpractice and not an
Eighth Amendment violation. See Estelle v. Gamble, 429 U.S. 97,
105-06 (1976); White, 897 F.2d at 110; Smith v. Sator, 102 F.
App’x 907 (6th Cir. 2004) (where a prisoner alleged that
defendants did not provide various specialized medical tests that
8
Further, under Spruill v. Gillis, 372 F.3d 218 (3d Cir.
2004), Nami v. Fauver, 82 F.3d 63 (3d Cir. 1996), and Durmer v.
O'Carroll, 991 F.2d 64 (3d Cir. 1993), the narrow holdings of
which, arguably, survived Ashcroft v. Iqbal, 556 U.S. 662 (2009),
a mere allegation by the prisoner that he informed another
physician or filed grievances with prison officials complaining
about deficiencies of his medical care fail to state a cognizable
claim unless the prisoner asserts facts showing that the care he
was provided amounted to a de facto complete denial of medical
care (rather than merely deficient medical assistance), and the
other physician or prison officials were informed of such de
facto denial of medical care and failed to act in the fashion
displaying deliberate indifference of constitutional magnitude.
Accord Junne v. Atl. City Med. Ctr., 2008 U.S. Dist. LEXIS 34147,
at *39-45 (D.N.J. Apr. 25, 2008) (discussing the same at length).
Here, Plaintiff’s proposed amended complaint, as drafted,
falls short of stating a Bivens claim against anyone but Sieber,
since it states no facts showing that Plaintiff actually
requested the prescribed eye drops from any other Defendant and
had his request denied by that Defendant for a non-medical
reason.
Indeed, Plaintiff merely asserts that he noted his
the prisoner found to be necessary, the court found his claims
without merit because refusal to provide specialized tests
indicated nothing more than a difference in opinion regarding the
medical diagnosis and treatment and did not state an Eighth
Amendment claim).
9
difficulties to Turner-Foster, Sulayman, Spaulding, Cane,
Sutherland, Lopez and Grondolsky who, seemingly, believed that
Plaintiff was receiving an ongoing medical care from Sieber.7
Plaintiff’s FTCA claims, as stated in the proposed amended
complain, are equally deficient.
The FTCA govern all claims
against the United States for money damages for injury caused by
the negligent or wrongful act or omission of an employee of the
government while acting within the scope of his office or
employment.
See 28 U.S.C. § 2675 (a).
“Thus, to state an FTCA
claim, [a plaintiff] must allege facts sufficient” to establish
that a particular actor was an employee of the government, within
the meaning of the FTCA, and acted within the scope of his office
and, in addition, the plaintiff must state facts establishing
each element of “a claim under the tort law of the state where
the conduct occurred.”
Kinsey v. Watkins, 460 F. App’x 877, 878
(11th Cir. 2012).
Under New Jersey law, a negligence claim requires a
plaintiff to establish: (1) that each named defendant owed the
7
However, since Sieber’s two latest rounds of submissions
maintain that, under the prison regulations, he was without power
to direct, authorize or otherwise affect the process of
disbursement of eye drops to Plaintiff, Plaintiff might be able
to allege a viable Bivens claim against other Defendants under
the standard ensuing from the holdings of Spruill-Nami-Durmer by
stating facts showing that those Defendants: (a) actually knew of
the limitations on Sieber’s authority; (b) had the authority to
direct disbursement of eye drops to Plaintiff; but (c) acted with
deliberate indifference to Plaintiff’s need for these eye drops.
10
plaintiff a particular duty relevant to the alleged injury; (2)
that this defendant actually breached that duty; and (3) that the
defendant’s breach proximately caused the alleged injury.
See
Keith v. Truck Stops Corp. of Am., 909 F.2d 743, 745 (3d Cir.
1990).
In determining whether a duty exists, the Supreme Court
of New Jersey applies a two-step analysis.
See Olivo v.
Owens-Illinois, Inc., 186 N.J. 394 (2006).
First, the plaintiff
must establish that the defendant could foresee the harm to the
plaintiff.
See id.
“Once the ability to foresee harm to a
particular individual has been established, . . . considerations
of fairness and policy govern whether the imposition of a duty is
warranted.”
Id. at 1148.
“[W]hether imposing a duty is fair
involves ‘weighing, and balancing several factors — the
relationship between the parties, the nature of the attendant
risk, the opportunity and ability to exercise care, and the
public interest in the proposed solution.’”
Id. at 1149 (quoting
Hopkins v. Fox & Lazo Realtors, 132 N.J. 426 (N.J. 1993)).
Here, Plaintiff’s proposed amended complaint merely asserts,
without any additional detail, that each named Defendant is or
was “employed” by – or was an “employee” of – the Bureau of
Prisons (“BOP”).
See Docket Entry No. 101-2.
this assertion even with respect to Sieber.8
8
Plaintiff makes
Compare id. to See
The Court’s March 20, 2012 Opinion previously concluded
that for purposes of any FTCA claim, Sieber was not an employee
of the United States, but rather that he was an independent
11
Docket Entry No. 82 (so holding).
Therefore, Plaintiff’s FTCA
allegations are deficient as to the employee prong of all his
FTCA challenges since Plaintiff does not plead sufficient facts
establishing the employment relationship between the United
States and each particular Defendant.
Moreover, even assuming that each Defendant, other than
Sieber, is an employee of the United States within the meaning of
the FTCA, it remains that Plaintiff has not pled sufficient facts
to demonstrate that each of these Defendants owed Plaintiff a
duty to act under the governing New Jersey law, and that each
Defendant breached that duty by failing to act, and that this
failure caused Plaintiff’s injury.
Rather, it is fair to say
that Plaintiff’s amended complaint consists of mostly legal
conclusions and recitals of the tort elements for a negligence
contractor. (Op. [Doc. No. 82] 22-32, Mar. 20, 2012.) “The law
of the case doctrine ‘limits relitigation of an issue once it has
been decided’ in an earlier stage of the same litigation.”
Hamilton v. Leavy, 322 F.3d 776, 786-87 (3d Cir. 2003) (quoting
In re Cont'l Airlines, Inc., 279 F.3d 226, 232 (3d Cir. 2002)).
While that doctrine allows for reconsideration of an issue when
there exists new evidence, supervening law, or clear error that
would create manifest injustice in the earlier decision. See In
re City of Phila. Litig., 158 F.3d 711, 718 (3d Cir. 1998)
(citation omitted). However, “if the evidence at the two stages
of litigation is ‘substantially similar,’ or if the evidence at
the latter stage provides more support for the decision made
earlier, the law of the case doctrine will apply.” Hamilton, 322
F.3d at 787 (citation omitted). Here, Plaintiff asserts in a
conclusory fashion that Sieber is an employee of the United
States. However, it is unclear if this was an oversight in the
amended complaint or whether Plaintiff is trying to relitigate
the law of the case as to Sieber’s status.
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claim.
See Docket Entry No. 101-2, at 8 (“[Defendants] committed
professional negligence, medical negligence, acted negligently,
and failed to act in accordance with the applicable standard of
care under the laws of the State of New Jersey,” “[Defendants]
had a duty to use reasonable skill and care when examining and
treating Plaintiff,” “[Defendants] breached their duty by failing
to abide by the standard of care applicable to medical
personnel”).9
However, these statements alone are facially insufficient it
for the purposes of Plaintiff’s FTCA challenges and even his
state tort law claims alleging negligence.
See Iqbal, 556 U.S.
at 678 (“[L]egal conclusions” and “[t]hreadbare recitals of
9
The factual allegations stated in the proposed amended
complaint appear thin even as to Lopez, with regard to whom
Plaintiff merely alleged that “Lopez . . . was the chairperson of
the Utilization Review Committee [which] evaluated Plaintiff’s
medical requests [that] were largely denied.” Docket Entry No.
101-2, at 6. The remainder of Plaintiff’s allegations
essentially assert that Plaintiff informed the other Defendants
about his treatment difficulties. Thus, the factual allegations
are insufficient to establish how and why these Defendants had an
affirmative duty to act by providing Plaintiff with the
prescribed eye drops or referring Plaintiff for eye pressure
checks with another physician or a consultation with a particular
specialist. Finally, Plaintiff’s FTCA claim based on the alleged
“fail[ure] to abide by the standard of care applicable to medical
personnel” with regard to Grondolsky, who was the warden rather
than a medical practitioner, must fail. Even if we assume that
Plaintiff intended to assert Grondolsky’s failure to retain
services of a more specialized medical staff, such claim would
still be without merit under New Jersey law. See Rabinowitz v.
Reyman, 2010 N.J. Super. Unpub. LEXIS 1725, at *25-26 (N.J.
Super. Ct. App. Div. July 23, 2010).
13
elements of a cause of action, supported by mere conclusory
statements, do not suffice” as bona fide factual material).
Correspondingly, as drafted, Plaintiff’s proposed amended
complaint does not contain enough factual matter to assert any
additional claims.
However, ordinarily, the plaintiff may be
granted “leave [to amend,] . . . when justice so requires.”
Foman v. Davis, 371 U.S. 178, 182 (1962); Lorenz v. CSX Corp., 1
F.3d 1406, 1414 (3d Cir. 1993).
While “[a]llowing leave to amend
where there is a stark absence of any suggestion by the
plaintiffs that they have developed any facts since the action
was commenced, which would, if true, cure the defects in the
pleadings” would frustrate the Court’s ability to filter out
lawsuits that have no factual basis, Cal. Pub. Emples'. Ret. Sys.
v. Chubb Corp., 394 F.3d 126, 164 (3d Cir. 2004) (internal
quotation marks and citations omitted), “[t]he Federal Rules
reject the approach that pleading is a game of skill in which one
misstep by counsel may be decisive to the outcome and accept the
principle that the purpose of pleading is to facilitate a proper
decision on the merits.”
Foman, 371 U.S. at 182.
In light of this Court’s recent appointment of counsel,
leave to amend appears appropriate.10
10
Thus, Plaintiff will be
Sieber contends that Plaintiff’s application for leave
to amend is a de facto motion for reconsideration as to the
claims and issues already adjudicated in this action. See Docket
Entry No. 102, at 4-7. While Sieber is correct as to his
observation that Plaintiff’s application presents, in that
14
allowed an opportunity to file a counseled amended pleading at
this time.
Correspondingly, the Court will grant Plaintiff’s
motion, Docket Entry No. 101, in part and will deny it in part.
To the extent Plaintiff seeks to file his proposed amended
complaint, Docket Entry No. 101-2, his application will be
denied.
However, he will be granted leave to file a counseled
amended pleading, provided that such pleading: a) is drafted in
accordance with the guidance provided in this Opinion; b) states
specific facts in support of each of Plaintiff’s claims asserting
Bivens challenges against each particular Defendant; c) alleges
specific facts in support of each of Plaintiff’s FTCA claims
showing that the allegedly negligent conduct by each particular
individual Defendant resulted in liability within the meaning of
New Jersey law and establishing that each particular individual
was an employee of the United States within the meaning of the
respect, an unwarranted attempt to disturb the law of this case,
it is unclear if that was intentional or a simple oversight.
Sieber also asserts that he would suffer prejudice as a result of
Plaintiff’s undue delay. However, the record is clear that
Plaintiff had counsel assigned to this matter only recently, and
while many Plaintiff’s prior applications caused this Court a
pause, Plaintiff’s attempt to file a counseled amended pleading
was not tardy. Finally, because Plaintiff’s FTCA claim based on
Sieber’s conduct will remain dismissed based on his status as an
independent contractor and because Plaintiff’s Bivens challenges
against Sieber await adjudication on the basis of the extraneous
material Sieber may present at the summary judgment stage,
Sieber’s position would not be affected, let alone prejudiced, by
Plaintiff’s filing of a thoughtfully executed counseled amended
pleading.
15
FTCA; and d) is drafted in light of the law of the case before
counsel was appointed.
An appropriate Order follows.
s/ Noel L. Hillman
Noel L. Hillman
United States District Judge
Dated: June 30, 2013
At Camden, New Jersey
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