JACKSON v. GRONDOLSKY et al
Filing
73
OPINION. Signed by Judge Noel L. Hillman on 12/23/2011. (dmr)(n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOHN DOUGLAS JACKSON,
Civil No. 09-5617 (NLH/KMW)
Plaintiff,
OPINION
v.
J. GRONDOLSKY, et al.,
Defendants.
APPEARANCES:
John Douglas Jackson
4853 Old Route 50
Vienna, Maryland 21869
Pro Se
David S. Cohen, Esquire
Kristy E. Fischer, Esquire
Mintzer, Sarowitz, Zeris, Ledva & Meyers, LLP
2070 Springdale Road
Suite 400
Cherry Hill, New Jersey 08003
Tobin A. Butler
Litchfield Cavo, LLP
1800 Chapel Avenue West
Suite 360
Cherry Hill, New Jersey 08002
Attorneys for Defendant Francis J. Sieber, O.D.
HILLMAN, District Judge
This matter comes before the Court by way of Defendant
Francis J. Sieber,1 O.D.’s motion [Doc. No. 28] to dismiss
Plaintiff’s complaint pursuant to Federal Rule of Civil Procedure
1. Plaintiff incorrectly identified this Defendant in the
complaint as “Dr. Seabur.” (See Pl.’s Compl. [Doc. No. 1] ¶ 4.)
12(b)(6).
The Court has considered the parties’ submissions and
decides this matter pursuant to Federal Rule of Civil Procedure
78.
For the reasons expressed below, Defendant Sieber’s motion
is denied.
I.
JURISDICTION
In this case, Plaintiff asserts an Eighth Amendment claim
for deliberate indifference, and a claim under the Federal Tort
Claims Act.
The Court exercises jurisdiction over Plaintiff’s
federal claims under 28 U.S.C. § 1331.
II.
BACKGROUND
In its January 3, 2011 Memorandum Opinion and Order the
Court previously set forth the lengthy background of this case
including, but not limited to, the detailed procedural history of
two related actions filed by Plaintiff, the Court’s findings upon
screening Plaintiff’s complaint in one of the related actions,
and the relevant factual allegations of the complaint filed in
the present action.
11] 2-18.)
(See generally Mem. Order & Op. [Doc. No.
Accordingly, the Court sets forth herein only those
facts relevant to the present motions.
At the time the complaint was filed, Plaintiff John Douglas
Jackson was incarcerated at the Federal Correctional Institution
2
in Fort Dix, New Jersey (“FCI-Fort Dix”).2
(Pl.’s First Am.
Compl. [Doc. No. 1] (hereinafter, “Pl.’s Compl.”), ¶ 1.)
In this
case, Plaintiff essentially alleges that Defendants failed to
provide him with adequate medical care regarding a previously
diagnosed eye condition and that this failure ultimately resulted
in the complete loss of sight in his left eye.
Compl. ¶¶ 10-12, 17-21, 23-24, 29-30, 32-42.)
(See, e.g., Pl.’s
After screening
Plaintiff’s complaint pursuant to 28 U.S.C. §§ 1915(e)(2) and
1915A, the Court permitted “two narrowly-tailored lines of
Plaintiff’s claims ... to proceed past the sua sponte dismissal
stage.”
(Mem. Order & Op. [Doc. No. 11] 1.)
Specifically, the Court permitted Plaintiff to proceed with
his Eighth Amendment deliberate indifference claim against Dr.
Sieber based on the alleged denial of, or excessive delay in
receiving, prescribed eye medication and eye surgery.
24, 26.)
(Id. at
The Court also permitted Plaintiff’s claims under the
Federal Tort Claims Act to proceed past sua sponte dismissal.
(Id. 24-26.)
All of Plaintiff’s remaining claims were dismissed
with prejudice.
(Id. at 26.)
With regard to the deliberate
indifference claim under the Eighth Amendment, the Court found
that “Plaintiff’s claims against Dr. [Sieber] asserting that Dr.
[Sieber] denied (or excessively delayed) Plaintiff’s requests for
2. Since that time, Plaintiff has been released from custody and
is “presently at home living in Maryland.” (Letter from Pl.
[Doc. No. 57] 1.)
3
prescriptions or the dispensing of the already-prescribed
medications and eye surgery appear[ed] plausible[.]”
24.)
(Id. at
Thus, the Court ordered that Plaintiff’s “Eighth Amendment
claims based on denial of prescribed eye medication and
prescribed eye surgery” could proceed.
parentheses omitted).
(Id. at 26) (internal
Furthermore, “out of an abundance of
caution,” the Court found it “warranted to proceed past the sua
sponte dismissal stage and obtain responsive pleadings with
regard to Plaintiff’s FTCA challenges.”
(Id. at 24-25.)
III. DISCUSSION
Here, Defendant Dr. Sieber seeks dismissal of Plaintiff's
complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).3
When considering a motion to dismiss a complaint for failure to
state a claim upon which relief can be granted pursuant to
Federal Rule of Civil Procedure 12(b)(6), a court must accept all
well-pleaded allegations in the complaint as true and view them
in the light most favorable to the plaintiff.
423 F.3d 347, 350 (3d Cir. 2005).
Evancho v. Fisher,
It is well settled that a
pleading is sufficient if it contains “a short and plain
statement of the claim showing that the pleader is entitled to
relief.”
FED. R. CIV. P. 8(a)(2).
A district court, in weighing a motion to dismiss, asks
3. Defendant Sieber does not move in the alternative for summary
judgment.
4
“‘not whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claims[.]’”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n.8 (2007) (quoting
Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also Ashcroft
v. Iqbal, 129 S. Ct. 1937, 1953 (2009) (“Our decision in Twombly
expounded the pleading standard for ‘all civil actions[.]’”)
(citation omitted).
First, under the Twombly/Iqbal standard, a
district court “must accept all of the complaint’s well-pleaded
facts as true, but may disregard any legal conclusions.”
Fowler
v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing
Iqbal, 129 S. Ct. at 1949).
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.’”
at 211 (citing Iqbal, 129 S. Ct. at 1950).
Fowler, 578 F.3d
“[A] complaint must
do more than allege the plaintiff’s entitlement to relief.”
Fowler, 578 F.3d at 211; see also Phillips v. Cnty. of Allegheny,
515 F.3d 224, 234 (3d Cir. 2008) (“The Supreme Court's Twombly
formulation of the pleading standard can be summed up thus:
‘stating ... a claim requires a complaint with enough factual
matter (taken as true) to suggest’ the required element.
This
‘does not impose a probability requirement at the pleading
stage,’ but instead ‘simply calls for enough facts to raise a
reasonable expectation that discovery will reveal evidence of’
5
the necessary element.”) (citing Twombly, 550 U.S. at 556).
“The
defendant bears the burden of showing that no claim has been
presented.”
Hedges, 404 F.3d at 750.
However, “if a complaint is subject to a Rule 12(b)(6)
dismissal, a district court must permit a curative amendment
unless such an amendment would be inequitable or futile.”
Phillips, 515 F.3d at 245; see also Ray v. First Nat’l Bank of
Omaha, 413 F. App’x 427, 430 (3d Cir. 2011) (“A district court
should not dismiss a pro se complaint without allowing the
plaintiff an opportunity to amend his complaint unless an
amendment would be inequitable or futile.”); Burrell v. DFS
Servs., LLC, 753 F. Supp. 2d 438, 444 (D.N.J. 2010) (“When a
claim is dismissed pursuant to Federal Rule of Civil Procedure
12(b)(6), leave to amend and reassert that claim is ordinarily
granted. ... A claim may be dismissed with prejudice, however, if
amending the complaint would be futile.”) (citation omitted).
Furthermore, in ruling on the present motion, the Court “must
construe [Plaintiff’s] complaint liberally because he is
proceeding pro se.”
Huertas v. Galaxy Asset Mgmt., 641 F.3d 28,
32 (3d Cir. 2011) (citing Erickson v. Pardus, 551 U.S. 89, 94
(2007)).
IV.
ANALYSIS
In moving to dismiss Plaintiff’s complaint pursuant to Rule
12(b)(6), Defendant Sieber argues that Plaintiff’s claims fail
6
because Dr. Sieber “cannot be liable for [the] failure to refer
Plaintiff to a specialist or for [the] failure of prison
officials to provide Plaintiff [with] medication.”
(Def. Francis
J Sieber, D.O.’s Mot. to Dismiss Pl.’s Compl. Pursuant to Fed. R.
Civ. P. 12(b)(6) [Doc. No. 28] (hereinafter, “Def. Sieber’s
Mot.”), 5.)
As a threshold matter, the Court must address an
apparent misinterpretation of the Court’s January 3, 2011
Memorandum Opinion and Order.
In the present motion, Defendant Sieber contends that the
only allegations against Defendant Sieber which proceeded past
sua sponte dismissal were “Plaintiff’s Eighth Amendment Claims
... based on (1) failure to provide Plaintiff medication and (2)
failure to act upon sending Plaintiff to a specialist[.]”
(Def.
Sieber’s Mot. 6) (citing Mem. Op. and Order [Doc. No. 11] 18 n.2,
Jan. 3, 2011).
However, footnote two on page eighteen of the
January 3, 2011 Memorandum Opinion and Order, cited by Defendant
Sieber, constitutes a finding that the Court previously made in
screening a different version of Plaintiff’s complaint filed in
another action captioned Jackson v. Grondolsky, Civil Action No.
09-1112 (NLH/AMD) (“Jackson I”).
Footnote two of the January 3,
2011 Memorandum Opinion and Order in this action, Jackson v.
Grondolsky, Civil Action No. 09-5617 (NLH/KMW) (“Jackson II”) is
merely a replication of footnote eight of the Court’s August 11,
2009 Memorandum Opinion and Order screening the operative
7
complaint in Jackson I.
(Compare Mem. Op. and Order [Doc. No. 11
in Jackson II] 18 n.2, Jan. 3, 2011, with Mem. Op. and Order
[Doc. No. 7 in Jackson I] 26 n.8.)
Accordingly, footnote two of
the January 3, 2011 Memorandum Opinion and Order in Jackson II is
part and parcel of a quotation from the August 11, 2009
Memorandum Opinion and Order in Jackson I.
The multiple page quotation from the August 11, 2009
Memorandum Opinion and Order, which includes footnote two, was
simply cited by the Court to compare the claims raised by
Plaintiff in Jackson I with those raised by Plaintiff in Jackson
II.
Thus, footnote two does not constitute a finding regarding
the claims of the operative complaint in Jackson II.
The Court’s
January 3, 2011 Memorandum Opinion and Order screened the
operative complaint in the present action, Jackson II, and
allowed Plaintiff’s Eighth Amendment claim for deliberate
indifference to proceed against Defendant Sieber based on
Defendant Sieber’s alleged denial of prescribed eye medication
and prescribed eye surgery.
26, Jan. 3, 2011.)
(Mem. Op. and Order [Doc. No. 11]
Accordingly, Defendant Sieber’s arguments
regarding a failure to refer Plaintiff to a specialist are not
applicable here since no such claim survived sua sponte dismissal
in this action, Jackson II.
Thus, for purposes of this motion,
the Court interprets Defendant Sieber’s argument regarding the
referral to a specialist as Defendant’s attempt to explain the
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alleged denial or delay of eye surgery.
(Def. Sieber’s Mot. 1-2)
(noting that Eighth Amendment claim based in part on “referral to
a specialist for eye surgery” survived sua sponte dismissal)
Having addressed this threshold issue, the Court now turns
to Defendant Sieber’s motion to dismiss.
Generally, Defendant
Sieber argues that he cannot be held liable and Plaintiff’s
claims against him should be dismissed because, pursuant to
regulations of the Federal Bureau of Prisons (“BOP”), Defendant
Sieber “did not have the authority to provide Plaintiff with
medication or the authority to send him for a referral to a
specialist.”
(Def. Sieber’s Mot. 6-7; see also id. at 7-12.)
In
making this argument, Defendant Sieber relies on three “Program
Statements” issued by the BOP, which are attached as Exhibits A,
B, and C to the motion to dismiss.
(See Program Statements, Exs.
A-C [Doc. Nos. 29, 29-1, 29-2] to Def. Sieber’s Mot.)
Defendant Sieber contends that “[b]ased on the ... Federal
BOP’s Program Statements ... Plaintiff’s complaint against Dr.
Sieber fails because Dr. Sieber (1) was not responsible for
Plaintiff having sufficient eye drops for the transfer [to FCIFort Dix], (2) was not responsible for Plaintiff’s receiving
additional prescription eye drops upon his transfer into Fort Dix
when he was not even a patient of Dr. Sieber and (3) did not have
ultimately authority to prescribe or dispense prescription eye
drops to Plaintiff.”
(Def. Sieber’s Mot. 12.)
9
To support these
contentions, Defendant Sieber cites to the BOP Program Statements
attached as Exhibits A, B, and C approximately twenty-one
separate times throughout the motion to dismiss.
(See Def.
Sieber’s Mot. 7-11.)
“The general rule, of course, is that ‘a district court
ruling on a motion to dismiss may not consider matters extraneous
to the pleadings.’”
West Penn Allegheny Health Sys., Inc. v.
UPMC, 627 F.3d 85, 97 n.6 (3d Cir. 2010) (citing In re Burlington
Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997)).
Pursuant to Rule 12(d), “[i]f, on a motion under Rule 12(b)(6) or
12(c), matters outside the pleadings are presented to and not
excluded by the court, the motion must be treated as one for
summary judgment under Rule 56.”
FED . R. CIV. P. 12(d).
An exception to the general rule on considering matters
extraneous to the pleadings permits “the Court [to] consider (1)
exhibits attached to the complaint, (2) matters of public record,
and (3) all documents that are integral to or explicitly relied
upon in the complaint without converting the motion to dismiss
into one for summary judgment.”
D.G. v. Somerset Hills School
Dist., 559 F. Supp. 2d 484, 491 (D.N.J. 2008); see also M & M
Stone Co. v. Pennsylvania, 388 F. App’x 156, 162 (3d Cir. 2010)
(“In reviewing a Rule 12(b)(6) motion, it is well-established
that a court should ‘consider only the allegations in the
complaint, exhibits attached to the complaint, matters of public
10
record, and documents that form the basis of a claim.’”)
(citation omitted).
Additionally, “a court may [also] consider
an undisputedly authentic document that a defendant attaches as
an exhibit to a motion to dismiss if the plaintiff’s claims are
based on the document.”
Pension Ben. Guar. Corp. v. White
Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).
In the present motion, Defendant Sieber asserts that
“evidence beyond a complaint which the court may consider in
deciding a 12(b)(6) motion to dismiss includes ... documents
essential to plaintiff’s claim which are attached to defendant’s
motion[.]”4 (Def. Sieber’s Mot. 4.)
Therefore, according to
Defendant Sieber, “it is appropriate” for the Court to consider
the policies set forth in the BOP Program Statements in deciding
the motion to dismiss.
(Id.)
Although the Court may consider
undisputedly authentic documents attached to a motion to dismiss
4. Defendant Sieber notes that a court may also properly
consider public records such as court files, orders, records, and
letters of official actions or decisions of government agencies
or administrative bodies. (Def. Sieber’s Mot. 4.) However, the
Court finds that the BOP Program Statements at issue do not
qualify as public records since these documents are clearly not
court files, orders, or records. Moreover, while the BOP Program
Statements may constitute a set of regulations created by the
BOP, these documents cannot fairly be said to constitute official
actions or decisions of a government agency or administrative
body, in a manner analogous to other public records like court
orders. Defendant Sieber does not argue otherwise with respect
to these documents. Accordingly, it appears to the Court that
Defendant Sieber is relying on the assertion that the Court may
consider undisputedly authentic documents attached to the motion
to dismiss which are essential to a plaintiff’s claim. (Id.)
11
where a plaintiff’s claims are based on those documents,
Defendant Sieber fails to sufficiently demonstrate the
authenticity of these documents by virtue of a certification,
declaration, or otherwise.
Moreover, even if the Court were to
presume the authenticity of the BOP Program Statements, Defendant
Sieber still fails to sufficiently demonstrate or explain how
Plaintiff’s Eighth Amendment claims for deliberate indifference - a claim alleging a constitutional violation – is in any way
based on these BOP Program Statements.5
In these circumstances,
the BOP Program Statements attached to the motion to dismiss do
not fall within any of the exceptions set forth supra such that
the Court may properly consider them under Rule 12(b)(6).
Where a motion to dismiss is based upon documents that may
not properly be considered under Rule 12(b)(6), the Court “may
either deny the motion or convert it into a motion for summary
judgment, providing the parties with a schedule for submission of
statements in compliance with Local Civil Rule 56.1, supplemental
5. Plaintiff does allege in the complaint that “the medical care
system [at FCI-Fort Dix was] inadequate and ineffective to
provide medical care in accordance with Policy 6000.13[.]” (Pl.’s
Compl. ¶ 26.) However, the Court finds that this minor, passing
reference to what the Court can only speculate is a BOP policy is
insufficient to demonstrate that Plaintiff’s Eighth Amendment
claim for deliberate indifference is based upon that policy.
Moreover, even assuming that such a reference was sufficient, the
Court notes that the policy referenced by Plaintiff does not
appear to be the same as those referred to in the BOP Program
Statements attached to the motion to dismiss. Therefore, the
Court finds that Plaintiff’s claims are not based on the BOP
Program Statements, but rather on the Eighth Amendment.
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briefs, and any supplemental evidence they deem necessary.”
Dix
v. Total Petrochemicals USA, Inc., No. 10-3196, 2011 WL 2474215,
at *2 (D.N.J. June 20, 2011).
Although “[a] court deciding a
motion to dismiss has the discretion to accept materials beyond
the pleadings and then convert the motion into one for summary
judgment[,]” see Telfair v. Tandy, No. 08-731, 2009 WL 2132433,
at *3 (D.N.J. July 13, 2009) (citing Gunson v. James, 364 F.
Supp. 2d 455, 460-61 (D.N.J. 2005)), the Court must first provide
the parties with notice before converting the motion so that they
are “given a reasonable opportunity to present all the material
that is pertinent to the motion.”
FED . R. CIV . P. 12(d).
Specifically, in the context of a pro se prisoner, the Third
Circuit previously held, that “before converting a motion to
dismiss a pro se prisoner’s complaint into one for summary
judgment, [the district court] must provide the prisoner ‘with a
paper copy of the conversion Order, as well as a copy of Rule 56
and a short summary explaining its import that highlights the
utility of a Rule 56(f) affidavit.’”
Breeland v. Baker, 439 F.
App’x 93, 95 (3d Cir. 2011) (citing Renchenski v. Williams, 622
F.3d 315, 340 (3d Cir. 2010)).
Here, Defendant Sieber’s motion to dismiss is based on
documents that cannot be considered under Rule 12(b)(6).
Thus,
if the Court were to consider the BOP Program Statements in
deciding the instant motion to dismiss, the Court would have to
13
convert this motion to one for summary judgment under Rule 56.
While the Court could, in its discretion, convert the motion to
dismiss into one for summary judgment, the Court did not
previously give Plaintiff notice of any intention to convert this
motion, and thus the requirements of Renchenski6 have not been
satisfied in this instance.
Moreover, Defendant’s motion was not
styled as alternatively seeking summary judgment, and thus
Plaintiff similarly was not on notice regarding any potential
conversion of the motion to dismiss.7
Accordingly, in light of
these circumstances, the Court denies Defendant Sieber’s motion
to dismiss.
V.
CONCLUSION
For the foregoing reasons, Defendant Sieber’s motion to
dismiss is denied.
An Order consistent with this Opinion will be
entered.
Dated: December 23, 2011
At Camden, New Jersey
/s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
6. Although Plaintiff is no longer incarcerated, the Court
concludes that because he was a prisoner at the time his
complaint was filed and his allegations relate to his treatment
as a prisoner at FCI-Fort Dix, the Third Circuit’s conversion
notice requirements set forth in Renchenski are still applicable
to Plaintiff, who is still proceeding pro se in this case.
7. See Serbin v. Consolidated Rail Corp., 140 F. App’x 336, 337
n.1 (3d Cir. 2005) (finding plaintiff “knew that the motion could
be treated as one for summary judgment” where defendant filed a
“‘motion to dismiss, or in the alternative, for summary
judgment[.]’”) (citing Hilfirty v. Shipman, 91 F.3d 573, 579 (3d
Cir. 1996)).
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