RAHMAN v. ERIC TAYLOR et al

Filing 67

OPINION. Signed by Judge Jerome B. Simandle on 9/20/2011. (dmr)(n.m.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

RONALD RAHMAN,

HON. JEROME B. SIMANDLE
Plaintiff,

Civil No. 10-0367 (JBS/KMW)

v.
OPINION
ERIC TAYLOR, et al.,
Defendants.

APPEARANCES:
Ronald Rahman
41782-050
Federal Detention Center
P.O. Box 562
Philadelphia, PA 19104
Plaintiff Pro Se
Stephen D. Holtzman, Esq.
Jeffrey S. McClain, Esq.
HOLTZMAN & MCCLAIN, PC
524 Maple Avenue, Suite 200
Linwood, NJ 08221
Counsel for Defendants CFG Health Systems, LLC

SIMANDLE, District Judge:
I.

INTRODUCTION
This matter arises out of Plaintiff Ronald Rahman’s six-

month period of detention in the Camden County Correctional
Facility (“CCCF”) in the second half of 2009.

Plaintiff claims

to have suffered dangerously overcrowded and unsanitary
conditions and been subjected to constitutionally infirm medical
treatment, including exposure to and insufficient treatment of

tuberculosis, during his tenure at the CCCF as a pre-trial
detainee.

Defendants in this action are Eric Taylor, Warden of

CCCF; CFG Health Systems, LLC; and Jeffrey D. Pomerantz, Medical
Director at CCCF.

The matter is currently before the Court on

the motion of Defendant CFG Health Systems, LLC (hereafter, “CFG”
or “Defendant”) to dismiss Plaintiff’s Amended Complaint as to
CFG for failure to state a claim upon which relief can be granted
or, in the alternative, for summary judgment against Plaintiff’s
claims against CFG. [Docket Item 18.]
Defendant argues that Plaintiff’s Amended Complaint does not
state a plausible claim for relief against it under 42 U.S.C. §
1983 and, additionally, that Plaintiff cannot point to a dispute
of material fact regarding whether Plaintiff was, in fact,
exposed to tuberculosis while in Defendant’s care, or that his
medical treatment amounted to deliberate indifference to a
serious medical condition.

Plaintiff argues that the record

evidence presents at least a dispute of fact over whether he was
exposed to tuberculosis while at the CCCF and whether Defendant
punitively extended his period of potential exposure.
Additionally, after opposition and reply briefs were filed,
Plaintiff submitted two objections to evidence put forward by
Defendant and additionally requested that the Court take judicial
notice of various scientific facts. [Docket Item 34.]
Both parties have referred to facts outside the pleadings,

2

so this motion will be addressed as a summary judgment motion.
As explained below, because the Court concludes that Plaintiff
has not pointed to a dispute of fact regarding his exposure to
tuberculosis or the adequacy of his medical treatment, the Court
will grant Defendant’s motion for summary judgment pursuant to
Fed. R. Civ. P. 56(a).

II.

BACKGROUND AND PROCEDURAL HISTORY
As the Court treats alleged facts differently on a Rule

12(b)(6) motion than a Rule 56(a) motion, the Court will recount
the relevant allegations in Plaintiff’s Second Amended Complaint
(“S.A.C.”) [Docket Item 38]1 and, where appropriate, include
facts that are supported by evidence in the record; the Court
will also note what facts, if any, are meaningfully disputed in
the record.
Plaintiff was held as a pre-trial detainee in CCCF from June
11, 2009 until January 19, 2010.

S.A.C. at 2 ¶ 4.

Plaintiff

alleges that, during the six months he was held at CCCF, the
facility was “overpopulated” and “exceptionally understaffed,

1

As described below, Plaintiff filed his Second Amended
Complaint, with leave from the Court, after the instant motion
was filed and fully briefed. The only substantive changes made
in the Second Amended Complaint from the First Amended Complaint
involve adding and removing other defendants and are not relevant
to the instant motion or Defendant CFG. As the Second Amended
Complaint is the currently operative complaint, the Court will
cite to it in this Opinion.
3

creating an unsafe, unhealthy, and unsanitary environment for the
Plaintiff.”

Id. 5 ¶ 3.

When Plaintiff was first admitted to

CCCF, he was initially housed in the Intake/Diagnostic (“I/D”)
Unit, where he remained for approximately 21 days, from June 11,
2009 until July 2, 2009.

Id. 11 ¶ c; 16 ¶ d.

In general,

inmates at CCCF are not transferred from the I/D Unit into the
general population until they are tested for tuberculosis and a
physical exam is completed.

Vargas Cert. ¶ 7.

Plaintiff alleges

that this quarantine and clearance process “usually” takes
approximately three to seven days.

S.A.C. 15 ¶ a.

Throughout

the time Plaintiff was housed in the I/D Unit, he was housed in a
cell with two or three other inmates.

Id. 15 ¶ c.

Over the

course of Plaintiff’s stay in the I/D Unit, he shared a cell with
approximately 50 other inmates.

Id. 11 ¶ c.

Defendant CFG has

no authority over or responsibility for inmate housing decisions,
“including the number of inmates placed in a cell and which
inmates are placed in a cell,” those decisions are “made by the
classification department at CCCF” and not by Defendant CFG.
Vargas Cert. ¶ 6.
The day after Plaintiff was admitted, he completed a medical
history screening, an oral/dental screening, and a mental health
screening.

Rahman Medical Records, Def.’s Ex. B, at Rahaman CCCF

4

2-4.2

He was not, however, given a physical assessment on that

date; his medical records indicate that he refused a skin test
for tuberculosis exposure (“PPD”) and a different test (“RPR”) on
that date.

Rahman CCCR 5-6, 9, 15.

His records indicate that he

refused one of these tests on approximately nine other occasions
between June 12 and July 1, 2009.

Rahman CCCR 6.

As a result,

his records indicate, Plaintiff was kept in “medical lock in”
until he was medically cleared on July 1, 2009.
13.

Rahman CCCR 9,

Plaintiff claims, in his opposition brief, that many of the

medical records provided by Defendant regarding his refusal to
take the PPD test were fabricated, but points to no evidence from
which a reasonable factfinder could so conclude.

Pl.’s Opp. at ¶

D.1.
Plaintiff claims for the first time in his opposition brief,
without attaching an affidavit attesting to such allegations,
that on June 12, after completing the dental, mental health, and
medical history screenings, he initially agreed to the PPD test
as well, but changed his mind when he observed the way the test
was going to be conducted.

Pl.’s Opp. ¶ A.

He states that the

attending nurse “picked up a prefilled syringe from amongst
hundreds” and denied Plaintiff’s request to show him the “vial

2

Plaintiff’s medical records, attached under seal as
Defendant’s Exhibit B, are Bates stamped “Rahman CCCF #”. For
consistency of reference, the Court will cite to the records by
this Bates number.
5

from which the solution [in the syringe] was drawn.”

Id.

Additionally, when Plaintiff was shown, after he so insisted, a
test vial of the solution, “the lot number and expiration date
[had been] obliterated.”

Id.

As a result, he refused the PPD

test, but was told, at the time, that “he would be cleared for
general population housing after three days” which he supports by
noting a check mark next to “general population” in the
“placement” box on his June 12, 2009 medical history screening
form.

Id.; Rahman CCCF 2.

Plaintiff alleges, in his opposition brief, that it was not
until several hours later that the nurse came back and told him
that the medical director had insisted that if Plaintiff did not
consent to a PPD test, he would not be cleared for the general
population, but Plaintiff continued to refuse the test.

Id.

Plaintiff claims that he has proof of these allegations in the
form of an identification card imprinted with the words “medical
loc”, which he says he would “produce[] at trial . . . .”

Id.

Plaintiff alleges that, while he languished for three weeks
in the I/D Unit, he suffered several deprivations, including an
absence of cleaning materials, adequate soap, grievance forms,
reading or writing materials, religious services, laundry
services (or any ability to clean the single jumpsuit he had to
wear), or visits from family or friends.

S.A.C. 16-17.

In

addition, Plaintiff alleges that the air filtration system in the

6

I/D Unit was faulty, exposing Plaintiff to any contagious
airborne illnesses of the other inmates of the I/D Unit,
including tuberculosis.

Id. 22 ¶ a.

Additionally, Plaintiff

alleged that while he was being housed in the I/D Unit, he shared
a cell with another inmate, “E.E.”, who he claims was “known to
harbor a resistant strain of tuberculosis in active pathogenic
form.”

Id. 22 ¶ b.

Plaintiff alleges that on June 29, 2009, E.E. told Plaintiff
that he had been given a chest x-ray that morning.

Id. 22 ¶ c.

The following day, Plaintiff alleges, E.E. was removed from the
I/D Unit by “gloved and masked officers and members of the
medical staff.”

Id. 22 ¶ d.

Plaintiff alleges that he later

learned from another inmate that E.E. had been transferred to an
outside hospital “with the diagnosis of tubercular pneumonia.”
Id.
The following day, July 1, 2009, Plaintiff alleges that he
and his cellmates were directed to the medical unit where they
were told that they must have chest x-rays performed.
e.

Id. 23 ¶

The medical director allegedly informed Plaintiff that he was

being given a chest x-ray because he had been exposed to
tuberculosis, apparently due to contact with E.E.

Id. 24 ¶ e.

Plaintiff allegedly consented to the chest x-ray after hearing
this news on the condition that he be allowed to “peruse[]” the
x-ray film later.

Id. 24 ¶ f.

However, Plaintiff’s medical

7

records indicate that he refused a PPD test on that day.
CCCF 9, 16.

Rahman

After his consult with the medical director and his

chest x-ray, Plaintiff was cleared to transfer to the general
population of CCCF, which occurred July 2, 2009.

Id. 24 ¶ g.

Plaintiff’s x-ray report, prepared by Rose Liu, M.D.,
Radiologist, states that Plaintiff’s “lung fields are clear,
without mass, infiltrate, or effusion.

The osseous structures

are unremarkable. No tuberculosis is seen.
chest examination, without tuberculosis.”

Impression: Normal
Rahman CCCF 8.

Plaintiff alleges that he “lost more than 25 pounds” in the
period of time after his exposure to E.E.

S.A.C. 20 ¶ a.

He

also alleges that over the next several months, he “was unable to
obtain follow-up x-rays or weight determinations despite more
than thirty (30) sick call request[s].”

Id.

Plaintiff’s medical

records reflect his many requests to review his July 1 x-ray and
to have other x-rays performed.

Rahman CCCF 19-41.

On the first

of these occasions, Plaintiff’s records indicate that he was
offered the opportunity to discuss the results of his x-ray and
be examined by a nurse, but he refused, as he only wanted to
review the x-ray films himself.

See, e.g. Rahman CCCF 19.

Defendant produced, under seal, the medical consultation
records of E.E., Plaintiff’s cellmate suspected of having
tuberculosis.

Consultation Records, Def.’s Ex. C.

The

consultation, performed by Joseph A. Kuchler, M.D. at Our Lady of

8

Lourdes Hospital, indicates that E.E. was admitted to the
hospital on June 30, 2009 and discharged on July 6, 2009.
at 1.

Ex. C.

The consultation records an “impression” that “the patient

has bilateral infiltrates with cavitary lesion.”

Id.

Dr.

Kuchler’s consultation further states that “the patient underwent
bronchoscopy and so far cultures are negative for tuberculosis.”
Id.

Apparently on the basis of this impression, Sandra Vargas

states in her certification that E.E. “was found to not have
tuberculosis.”

Vargas Cert. ¶ 10.

Plaintiff was transferred from CCCF on January 19, 2010.
S.A.C. 2 ¶ 4.

Two days later, on January 21, 2010, Plaintiff

alleges that he had a “tuberculin skin test” performed at the
Salem County Correctional Facility, which “remained nonreactive,”
indicating a negative result for tuberculosis.

Id. 25 ¶ 19.

Two

months later, on March 18, 2010, Plaintiff alleges that he had a
new “tuberculin skin test” performed that revealed a “positive
reaction.”

Id.

Plaintiff alleges that “this infectious response

is consistent with the close contact experienced at CCCF.”

Id.

Plaintiff, proceeding pro se, filed his first Complaint in
this action on January 22, 2010.

[Docket Item 1.]

On May 27,

2010, the Court dismissed the Complaint sua sponte for, among
other reasons, failure to comply with Rules 8(a)(2) and (d)(1) of
the Federal Rules of Civil Procedure, finding the allegations
insufficiently specific as to particular actions taken by

9

particular defendants.

[Docket Items 4 & 5.]

Plaintiff later

moved to reopen the case and to file an Amended Complaint, which
the Court granted on December 6, 2010. [Docket Item 9.]

The

Court, however, dismissed Plaintiff’s claims against all
Defendants except Defendant Eric Taylor, Defendant CFG Health
Systems, LLC, and the (at the time) unidentified Medical Director
of CCCF.
Defendant CFG later filed the instant motion to dismiss for
failure to state a claim or, alternatively, for summary judgment.
Plaintiff filed opposition to the motion in both a memorandum
brief and a subsequent letter brief. [Docket Items 27 & 26.]
Defendant’s Reply brief followed [Docket Item 28], and was
docketed on the same day as Plaintiff’s motion for leave to file
a Second Amended Complaint. [Docket Item 31.]

The Second Amended

Complaint is, in all material respects relevant to the instant
motion, identical to his First Amended Complaint; it added
Defendant Jeffrey D. Pomerantz, Medical Director at CCCF to the
pleading and removed the allegations and defendants dismissed by
the Court in its December 6, 2010 Order.
leave to file was granted as unopposed.

Plaintiff’s motion for
[Docket Item 37.]

After filing his motion for leave to amend, Plaintiff
submitted further opposition to Defendant’s motion in the form of
three evidentiary objections and requests.

[Docket Item 34.]

Specifically, Plaintiff first objects to the certification of

10

Sandra Vargas pursuant to Federal Rule of Evidence 602, on the
grounds that she cannot testify about Plaintiff’s treatment at
CCCF on the basis of personal knowledge because she did not treat
him.

Second, Plaintiff objects to the consultation records of

E.E., attached as Defendant’s Exhibit C, pursuant to Fed. R. Ev.
106, claiming that the consultation record should be accompanied
by a full hospital admission record and discharge summary.
Finally, Plaintiff asks the Court to take judicial notice,
pursuant to Fed. R. Ev. 201, of various scientific facts related
to appropriate treatment of tuberculosis and the length of time
between patient exposure and positive diagnostic testing that is
necessary to detect tuberculosis.

III. DISCUSSION
A.

Standard of Review
1.

Motion to Dismiss for Failure to State a Claim

In order to give defendant fair notice, and to permit early
dismissal if the complained-of conduct does not provide adequate
grounds for the cause of action alleged, a complaint must allege,
in more than legal boilerplate, those facts about the conduct of
each defendant giving rise to liability.

Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007); Fed. R. Civ. P. 8(a) and
11(b)(3).

These factual allegations must present a plausible

basis for relief (i.e., something more than the mere possibility

11

of legal misconduct).

See Ashcroft v. Iqbal, 129 S.Ct. 1937,

1951 (2009).
In its review of a motion to dismiss pursuant to Rule
12(b)(6), Fed. R. Civ. P., the Court must "accept all factual
allegations as true and construe the complaint in the light most
favorable to the plaintiff."

Phillips v. County of Allegheny,

515 F.3d 224, 231 (3d Cir. 2008) (quoting Pinker v. Roche
Holdings Ltd., 292 F.3d 361, 374 n.7 (3d Cir. 2002)).

The

assumption of truth does not apply, however, to legal conclusions
couched as factual allegations or to “[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory
statements.”

Iqbal, 129 S.Ct. at 1949.

The Court’s task, when

reviewing a motion pursuant to Rule 12(b)(6), is to “determine
whether the facts alleged in the complaint are sufficient to show
that the plaintiff has a plausible claim for relief, so the
complaint must contain allegations beyond [merely claiming]
plaintiff's entitlement to relief.”

Fowler v. UPMC Shadyside,

578 F.3d 203, 210-211 (3d Cir. 2009) (emphasis added).
2.

Summary Judgment

Summary judgment is appropriate "if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law."
P. 56(a).

Fed. R. Civ.

A dispute is “genuine” if “the evidence is such that a

reasonable jury could return a verdict for the non-moving party.”

12

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

A

fact is "material" only if it might affect the outcome of the
suit under the applicable rule of law.

Id.

Disputes over

irrelevant or unnecessary facts will not preclude a grant of
summary judgment.

Id.

Summary judgment will not be denied based on mere
allegations or denials in the pleadings; instead, some evidence
must be produced to support a material fact.

Fed. R. Civ. P.

56(c)(1)(A); United States v. Premises Known as 717 S. Woodward
Street, Allentown, Pa., 2 F.3d 529, 533 (3d Cir. 1993).

The

nonmoving party must “do more than simply show that there is some
metaphysical doubt as to the material facts.”

Matsushita Elec.

Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).
[Rule 56] mandates the entry of summary judgment,
after adequate time for discovery and upon motion,
against a party who fails to make a showing
sufficient to establish the existence of an element
essential to that party’s case, and on which that
party will bear the burden of proof at trial. In
such a situation, there can be “no genuine issue as
to any material fact,” since a complete failure of
proof concerning an essential element of the
nonmoving party’s case necessarily renders all
other facts immaterial.
Celotex, 477 U.S. at 323.
However, the Court will view any evidence in favor of the
nonmoving party and extend any reasonable favorable inferences to
be drawn from that evidence to that party.
526 U.S. 541, 552 (1999).

13

Hunt v. Cromartie,

3.

Standard of Review when Plaintiff is Pro Se

When evaluating a motion to dismiss under Rule 12(b)(6),
“[w]here the plaintiff is a pro se litigant, the court has an
obligation to construe the complaint liberally.”
Kearney, 571 F.3d 318, 322 (3d Cir. 2009).

Giles v.

However, on a motion

for summary judgment, pro se plaintiffs are not relieved of the
obligation to set forth admissible facts sufficient to survive
summary judgment.

Cf Haines v. Kerner, 404 U.S. 519, 520-21

(1972) (holding that “inartful” pleadings by pro se plaintiff
should not subject claim to dismissal, but Plaintiff must still
offer proof of such claims); Zilich v. Lucht, 981 F.2d 694,
695-96 (3d Cir. 1992) (holding pro se plaintiff should have
opportunity to respond to evidence outside the pleadings with his
own evidence before claim is dismissed).
B.

Defendant’s Motion Seeking Alternative Relief

The Court begins its discussion on a preliminary matter.

In

his letter brief in opposition to Defendant’s motion, Plaintiff
objects to Defendant’s motion because it seeks alternative forms
of relief via Fed. R. Civ. P. 12(b)(6) and Fed. R. Civ. P. 56(a),
and that deciding the two motions would require application of
different standards of review.

The Court acknowledges that the

burdens and standards of review are different in a motion to
dismiss for failure to state a claim than in a motion for summary
judgment, but does not find this to be an adequate reason to deny

14

Defendant’s motion.
Courts frequently consider motions seeking multiple forms of
relief, often in the same configuration as Defendant’s.

See

Pryor v. National Collegiate Athletic Ass'n, 288 F.3d 548, 559
(3d Cir. 2002) (affirming dismissal for failure to state a claim
on motion that sought to dismiss or, in the alternative, for
summary judgment).

When asked to rule on these two alternative

forms of relief, a court should treat the two forms of relief
separately, determining first if, under the appropriate 12(b)(6)
standard, the plaintiff has failed to state a claim without
reference to facts outside the pleadings, and separately
determining whether summary judgment is warranted because no
material dispute of fact exists in the record on an element of
the plaintiff’s claim.

See Wholesale Auto Supply Co. v. Hickok

Mfg. Co. Inc., 221 F. Supp. 935, 938 (1963).

The Court will

consider Defendant’s motion accordingly in the instant matter.
B.

Evidentiary Objections and Request to take Judicial
Notice

The Court turns next to Plaintiff’s late-filed evidentiary
arguments.

First, the Court will partially grant Plaintiff’s

request to take judicial notice of specific facts regarding the
development and diagnosis of tuberculosis.

Plaintiff requests

that the Court take judicial notice of fact that three to six
weeks are necessary to determine the results of sputum cultures,
and that as many as ten weeks may be required to display a
15

positive reaction to tuberculin skin testing after exposure and
infection.3

Federal Rule of Evidence 201(b) authorizes the Court

to take judicial notice of facts “not subject to reasonable
dispute” and categorizes facts amenable to judicial notice as
those “(1) generally known within the territorial jurisdiction of
the trial court or (2) capable of accurate and ready
determination by resort to sources whose accuracy cannot
reasonably be questioned.”

Fed. R. Ev. 201(b).

Defendant opposes taking notice of any of the facts advanced
by Plaintiff on the ground that Plaintiff’s source, a 1997
edition of the Encyclopedia Americana, is out of date.

However,

the Court concludes that, regardless of Plaintiff’s source, the
fact that up to ten weeks may be necessary to display a positive
reaction in a skin test to tuberculosis fits within the category
of “capable of accurate and ready determination by resort to
sources whose accuracy cannot reasonably be questioned.”

Indeed,

on the web page of the Centers for Disease Control cited by
Defendant for the definition “induration” (see Def.’s Br. at 1
n.1), the Court is able to verify this fact.4

Thus, the Court

3

Plaintiff also asks the Court to take notice of a third
fact regarding the particular drugs indicated for treatment of
various classes of tuberculosis.
4

See Centers for Disease Control and Prevention,
Tuberculosis (TB) Fact Sheets, available at
http://www.cdc.gov/tb/publications/factsheets/testing/skintesting
.htm (last visited on September 14, 2011) (“What Are
False-Negative Reactions? Some persons may not react to the TST
16

will take judicial notice that as many as ten weeks may be
required to display a positive reaction to tuberculin skin
testing after exposure and infection.

However, the Court cannot

similarly readily verify the other two facts Plaintiff seeks to
judicially notice, and those facts will, therefore, not be
noticed.
Secondly, the Court will deny Plaintiff’s request to exclude
the certification of Sandra Vargas pursuant to Fed. R. Ev. 602.
Plaintiff argues that, because Ms. Vargas was not personally
involved in the care of Plaintiff or E.E., her testimony is not
admissible. However, the Court finds that Ms. Vargas’s
certification does not purport to assert facts on the basis of
personal knowledge regarding the treatment of Plaintiff or E.E.
Rather, she authenticates the medical records of Plaintiff and
E.E., which she is capable of doing as the Director of
Correctional Services for CFG for the State of New Jersey, with
administrative responsibilities.

Vargas Cert. ¶¶ 1-2.

Additionally, statements such as that “an inmate is not
transferred to general population until he is tested for
tuberculosis and a physical exam is completed” would appear to be
within the personal knowledge of Ms. Vargas.

Thus, the Court

[tuberculin skin test] even though they are infected with M.
tuberculosis. The reasons for these false-negative reactions may
include, but are not limited to, the following: [. . .] Recent TB
infection (within 8-10 weeks of exposure).”
17

will not exclude her certification on this basis.
Finally, the Court will likewise deny Plaintiff’s request to
exclude Defendant’s Exhibit C, the consultation regarding
Plaintiff’s cellmate, E.E.

Plaintiff seeks to exclude the

evidence pursuant to Fed. R. Ev. 106, which provides that “[w]hen
a writing or recorded statement or part thereof is introduced by
a party, an adverse party may require the introduction at that
time of any other part or any other writing or recorded statement
which ought in fairness to be considered contemporaneously with
it.”

Fed. R. Ev. 106.

Plaintiff seeks to exclude the

consultation because Defendant did not also include the patient’s
full hospital record, including the hospital admission record and
discharge summary.
This
codification
of
the
doctrine
of
completeness guards against the potential for
evidence to be misleading when presented out
of context. Admission of additional evidence
is compelled ‘if it is necessary to (1)
explain the admitted portion, (2) place the
admitted portion in context, (3) avoid
misleading the trier of fact, or (4) insure a
fair and impartial understanding.’
United States v. Evans, 356 F. App’x 580, 583 (3d Cir. 2009)
(quoting United States v. Soures, 736 F.2d 87, 91 (3d Cir.
1984)).

The Court finds no indication that the inclusion of the

consultation without the full hospital record is necessary to
avoid unfairness or misleading the trier of fact, as there is no
indication that other information exists that would change the

18

context or explain the information in a way relevant to
Defendant’s motion.
C.

Defendant’s Motion to Dismiss

The Court turns next to Defendant’s motion to dismiss for
failure to state a claim.

Defendant argues that Plaintiff’s

Amended Complaint (and therefore, his Second Amended Complaint)
fails to state a claim for violating the Due Process Clause of
the Fourteenth Amendment because Plaintiff alleges that, after
having left CCCF, on January 21, 2010, Plaintiff tested negative
on a tuberculin skin test for tuberculosis.

S.A.C. 25 ¶ 19.

The

Court will deny this portion of Defendant’s motion because, on
the facts alleged in the Second Amended Complaint, Plaintiff
states a claim for injury resulting from deliberate indifference
to Plaintiff’s serious medical need.
The parties do not dispute the appropriate constitutional
standard in this case.

Under the Due Process Clause of the

Fourteenth Amendment, government officials are required to
provide medical care to inmates being detained prior to
conviction, because to not do so would amount to punishment in
the absence of a proper determination of guilt.

King v. County

of Gloucester, 302 F. App’x 92, 96 (3d Cir. 2008).
Whether the minimum standard for inmate medical care under
the Fourteenth Amendment is higher than the Eighth Amendment has
never been conclusively determined by the United States Supreme

19

Court or the Third Circuit.

City of Revere v. Massachusetts

General Hosp., 463 U.S. 239, 244 (1983); King, 302 F. App’x at 96
(“the Supreme Court has concluded that the Fourteenth Amendment
affords pretrial detainees protections ‘at least as great as the
Eighth Amendment protections available to a convicted prisoner,’
without deciding whether the Fourteenth Amendment provides
greater protections.”) (citing Natale v. Camden County Corr.
Facility, 318 F.3d 575, 581 (3d Cir. 2003)).
Courts generally, therefore, apply the same “deliberate
indifference” standard of the Eighth Amendment to claims arising
under the Fourteenth Amendment.

See Pearson v. Prison Health

Serv., 348 F. App’x 722, 724 (3d Cir. 2009) (“In order to state
an Eighth Amendment claim for deliberate indifference to medical
needs, a plaintiff must plead ‘(i)a serious medical need, and
(ii) acts or omissions by prison officials that indicate
deliberate indifference to that need.”) (quoting Natale at 582
(applying standard in Fourteenth Amendment case, but citing to
Eighth Amendment cases))
Therefore, to state a claim for relief, Plaintiff must
allege (1) that he suffered from a serious medical need, and (2)
that Defendant committed acts or omissions that indicate
deliberate indifference to that need.

In addition, to state a

claim for a violation of § 1983, Plaintiff must plausibly allege
that Defendant’s constitutional violation was the proximate cause

20

of the injuries and damages Plaintiff has alleged.

Burns v. PA

Dept. of Corrections, 642 F.3d 163, 180-81 (3d Cir. 2011).
Defendant argues that Plaintiff has not plausibly alleged
that any conduct by CFG proximately caused any injury to
Plaintiff.

The Court disagrees.

Plaintiff has alleged that CFG retaliated against Plaintiff
by punitively extending his period of detention in the I/D Unit,
where he and as many as 50 other inmates were exposed to an
individual, E.E., who, Plaintiff alleges, was infected with
tuberculosis.

Additionally, Plaintiff has alleged that he sought

treatment and diagnosis from Defendant but was refused.

Then,

approximately eight to ten weeks after departing from the CCCF,
he tested positive for tuberculosis himself, thereby giving rise
to a reasonable inference that the (allegedly insufficient)
treatment provided to Plaintiff and other members of the CCCF
proximately caused his infection.

That Plaintiff also alleged

that he tested negatively for tuberculosis on January 21, 2010 is
not necessarily inconsistent with Plaintiff’s claim.
First, Defendant’s argument involves an implied premise that
relies on facts not alleged within Plaintiff’s Second Amended
Complaint.

Specifically, Defendant’s implied premise is that

exposure to an infected inmate in June of 2009 could not cause a
positive tuberculin skin test result in March of 2010 when
Plaintiff additionally tested negative in January of 2010.

21

This

premise relies on the fact that a tuberculosis infection would be
identifiable on a skin test five months after exposure and
infection.

However, Plaintiff does not allege that fact in his

Second Amended Complaint and, unless the Court were to rely on
facts outside the complaint (such as the judicially noticed fact
introduced by Plaintiff), the Court cannot so conclude on a Rule
12(b)(6) motion.

Lum v. Bank of America, 361 F.3d 217, 222 n.3

(3d Cir. 2004) (“In deciding motions to dismiss pursuant to Rule
12(b)(6), courts generally consider only the allegations in the
complaint, exhibits attached to the complaint, matters of public
record, and documents that form the basis of a claim.”) (citation
omitted).
Indeed, even if the Court were to consider the general
period of time tuberculosis would show on a skin test,
Defendant’s argument still fails.

Plaintiff alleged, in addition

to himself, that several other inmates at CCCF were exposed to
the allegedly infectious E.E.

Therefore, under Plaintiff’s

allegations, the direct source of Plaintiff’s infection was not
necessarily his contact with E.E., but perhaps through an
intermediary who infected Plaintiff later in the fall of 2009
while Plaintiff was still under the care of CFG, and which might
have been prevented had CFG been providing adequate care.
Thus, the Court will not dismiss Plaintiff’s Second Amended
Complaint for failure to state a claim merely because Plaintiff

22

alleged that he tested negatively for tuberculosis on January 21,
2010.
D.

Defendant’s Motion for Summary Judgment

Once the Court turns to Defendant’s motion for summary
judgment and considers facts outside the pleadings, however, the
result is different.
Defendants argue that Plaintiff cannot point to a dispute of
fact in the record regarding either that the medical care
Plaintiff received in CCCF was constitutionally infirm or that
such care was the cause of Plaintiff’s injury.

The Court agrees

with Defendant.
1.

Deliberate Indifference

First, Defendant argues that Plaintiff cannot point to
evidence that the care provided by CFG met the deliberate
indifference standard.

The record demonstrates that Plaintiff

was not cleared from the I/D Unit for three weeks because he
refused to permit a PPD skin test for tuberculosis.

The record

further demonstrates that when Defendant’s doctors suspected that
an inmate housed with Plaintiff was infected with Tuberculosis,
they removed him from the I/D Unit and quarantined him in an
outside hospital until he tested negatively for tuberculosis.
The record further demonstrates that, upon such a discovery,
CFG’s medical professionals identified the persons with whom the
potentially infected inmate had close contact and attempted to

23

test them as well, with both skin tests and x-rays.

They further

offered care to Plaintiff in the form of discussing his x-ray
results with him and offering him a physical examination.
Defendant argues that this evidence is inconsistent with the
deliberate indifference standard.
Deliberate indifference is a “subjective standard of
liability consistent with recklessness as that term is defined in
criminal law.”
2000).

Nicini v. Morra, 212 F.3d 798, 811 (3d Cir.

Thus, errors equivalent to negligence or medical

malpractice, or mere disagreements about the proper course of
treatment do not meet this standard.

Lanzaro, 834 F.2d at 346.

The Third Circuit has found acts or omissions that indicate
deliberate indifference in cases where
the prison official (1) knows of a prisoner's
need for medical treatment but intentionally
refuses to provide it; (2) delays necessary
medical treatment based on a non-medical
reason; or (3) prevents a prisoner from
receiving
needed or
recommended
medical
treatment.
Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).
Under this standard, and on the facts in the record
regarding the medical care Plaintiff received, the Court
concludes that no reasonable factfinder could conclude that
Defendant’s care was constitutionally infirm.

Plaintiff’s

allegations of deliberately indifferent treatment boil down to
medical disagreements regarding the wisdom of his treatment,

24

which is insufficient to prove a violation of the Constitution.
See Clark v. Doe, Civ. No. 99-5616, 2000 WL 1522855, at * 2 (E.D.
Pa. Oct. 13, 2000) (finding no deliberate indifference where
“inmate has received some level of medical care.

Inmates'

disagreements with prison medical personnel about the kind of
treatment received have also generally have not been held to
violate the Eighth Amendment.”) (internal citations omitted).
The Court recognizes that Plaintiff claims, for the first
time in his opposition brief (and not in the form of an affidavit
or otherwise admissible format), that to be cleared from the I/D
Unit on June 12, 2009, he was offered an injection of a
potentially expired solution as part of his PPT tuberculosis skin
test.

The Court finds that it cannot deny summary judgment on

the basis of Plaintiff’s unsworn allegations in his brief.

See

Fed. R. Civ. P. 56(c)(1)(A) (party offering assertion in
opposition to summary judgment “must support the assertion by:
citing to particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made
for purposes of the motion only), admissions, interrogatory
answers, or other materials”).
Indeed, even were Plaintiff’s allegations to have been
offered in the form of an affidavit, the Court finds that it
would have been insufficient to demonstrate a dispute of fact

25

over Defendant’s alleged deliberate indifference.

Plaintiff does

not allege that all or even more than one of the PPT syringes
contained expired solution.

At most, Plaintiff’s allegation

indicates a negligent mistake.

He has not, for example, alleged

that CFG had a policy of only using expired solution in its PPT
syringes, or even that several inmates were offered expired PPT
solution, but only that the one sample he examined did not
display a visible expiration date.

Thus, even were the Court to

consider Plaintiff’s unsupported allegations, the Court would
find that Plaintiff has not pointed to evidence from which a
reasonable factfinder could conclude that Defendant’s care was
deliberately indifferent to a serious medical need.
Finally, Plaintiff argues in opposition that he would be
able to introduce evidence sufficient to raise various disputes
of fact were he to conduct depositions of various employees of
Defendant, which he had not done at the time of his opposition.
However, the Court notes that any disputes of fact that Plaintiff
claims he would be able to raise are not material to his claims.
For example, Plaintiff claims that he would be able to raise a
dispute over whether his medical records were “fabricated” to
include reference to several refusals of the PPD test in June of
2009.

However, as Plaintiff himself admits he refused to consent

to the PPD test on June 12, 2009, whether or not he subsequently
refused additional tests would not be a material dispute.

26

Therefore, the Court concludes that no dispute of fact exists in
the record that would support a finding of Defendant’s deliberate
indifference.
2.

Proximate Cause

Secondly, as in its argument for dismissal under Rule
12(b)(6), Defendant argues that Plaintiff cannot meet his burden
at this stage on the proximate cause element.

Defendant argues

that there is no evidence in the record from which a reasonable
factfinder could conclude that Plaintiff contracted tuberculosis
due to its care or treatment.

The only allegation of exposure to

tuberculosis in Plaintiff’s Second Amended Complaint is due to
Plaintiff’s cellmate, E.E., who Plaintiff alleges was infected
with tuberculosis.

However, there is no evidence in the record

that E.E. had tuberculosis.

E.E.’s consultation records

demonstrate that he did not test positive for tuberculosis at the
hospital where he was taken on June 30, 2009.

Def.’s Ex. C.

Plaintiff argues in opposition that E.E.’s consultation
cannot affirmatively establish that E.E. did not have
tuberculosis as Sandra Vargas seems to conclude.
Cert. ¶ 10.

See Vargas

Plaintiff argues persuasively that it is consistent

with the evidence that E.E. may have been infected with
tuberculosis at the time of the consultation, but the test he was
given was simply a false negative because he had only recently
been infected.

The Court agrees with Plaintiff that E.E.’s

27

consultation record does not establish that E.E. was free of
tuberculosis as of June 30, 2009.

However, it is not Defendant’s

burden to affirmatively establish that E.E. was tuberculosis
free, but rather Plaintiff’s burden to point to some evidence in
the record from which a reasonable factfinder could conclude that
Plaintiff was exposed to and infected with tuberculosis while at
CCCF.
Plaintiff postulates that E.E. must have been sick with
something, and speculates that it must have been tuberculosis,
but Plaintiff’s speculation is insufficient to raise a dispute of
fact sufficient to survive summary judgment.

Ridgewood Bd. of

Educ. v. N.E., 172 F.3d 238, 252 (3d Cir. 1999) (stating that
speculation and conclusory allegations are insufficient to
forestall summary judgment); Sterling Nat'l Mortgage Co. v.
Mortgage Corner, Inc., 97 F.3d 39, 44 (3d Cir. 1996) (stating
that “[m]ere speculation about the possibility of the existence
of such facts” does not raise triable issue to defeat motion for
summary judgment).

The Court therefore concludes that Plaintiff

cannot meet his burden of pointing to evidence in the record
sufficient to raise a dispute of fact over proximate cause.
Consequently, summary judgment is warranted against Plaintiff’s
claims against Defendant CFG.
Additionally, as an independent reason to grant summary
judgment against Plaintiff’s claims against Defendant CFG, the

28

Court notes that there is no admissible evidence in the record
establishing that Plaintiff himself ever contracted or was
diagnosed with tuberculosis.

The only support of this contention

seems to be Plaintiff’s allegation that on “March 18, 2010,
Plaintiff’s tuberculin skin test revealed a positive reaction.”
S.A.C. 25 ¶ 19.

Plaintiff does not submit evidence in the form

of medical records or even a sworn affidavit attesting to this
fact.

Thus, the Court concludes that Plaintiff is unable to

point to a dispute of fact that his treatment by Defendant CFG at
CCCF caused him any injury.

The Court therefore finds that this

is an independent reason to grant Defendant’s motion for summary
judgment.

IV.

CONCLUSION
The Court has reviewed the sufficiency of Plaintiff’s

allegations against Defendant CFG and, separately, reviewed the
facts in the record to support those allegations.

The Court has

concluded that, while Plaintiff’s Second Amended Complaint
sufficiently states a claim against Defendant CFG, the Court has
found no evidence from which a reasonable factfinder could
conclude that his medical care was constitutionally infirm or
that the care provided by Defendant was the proximate cause of
Plaintiff’s alleged injury, or, indeed, that Plaintiff suffered
any injury at all.

Consequently, the Court will grant

29

Defendant’s motion for summary judgment and dismiss the action as
to Defendant CFG.

The accompanying Order shall be entered.

September 20, 2011
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
United States District Judge

30