BULLOCK v. ANCORA PSYCHIATRIC HOSPITAL et al
Filing
148
OPINION. Signed by Judge Robert B. Kugler on 10/14/2014. (tf, )
NOT FOR PUBLICATION
(Document Nos. 129, 133)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
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Plaintiff,
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v.
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MARIE ANN CABASA, et al.,
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Defendants. :
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WOODROW BULLOCK, JR.,
Civil No. 10-1412 (RBK/KMW)
OPINION
KUGLER, United States District Judge:
This case arises out of the physical restraint and forcible medication of Plaintiff
Woodrow Bullock (“Plaintiff”), an involuntarily committed patient at the Ancora Psychiatric
Hospital (“Ancora”). Plaintiff asserts various claims against Defendants Marie Ann Cabasa, RN,
Lori Gardenhire, RN, SNS,1 Young Chang, MD, POD, and Raymond E. Fisher, HST
(collectively “Defendants”)2 related to his restraint and forced medication. Currently before the
Court are Defendants’ motions for summary judgment. (Doc. Nos. 129, 133.)3 For the reasons
expressed below, Defendants’ motions will be granted in part and denied in part.
1
The Court notes that Defendant Gardenhire is referred to as “Gardenshire” on the Docket and in Plaintiff’s filings;
however, the Court will refer to her as Gardenhire, as her attorneys do.
2
The parties stipulated to the dismissal of the claims against Defendant Constance Kellum on April 23, 2014. (Doc.
No. 144.)
3
Defendant Fisher filed a motion for summary judgment separately from Defendants Cabasa, Chang, and
Gardenhire; however, due to the similarity of claims, the Court will address both motions in this opinion.
1
I.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY4
Plaintiff is an involuntarily committed patient at Ancora. (Defs.’ Statement of
Undisputed Material Facts (“Defs.’ SMF”) ¶ 2.)5 On April 6, 2008, Plaintiff was restrained by
hospital personnel, (Defs.’ SMF ¶ 33), and given an intramuscular (“IM”) shot of Haldol. (Ex. C
to Defs.’ Br. in Supp. of Summ. J. (“Defs’ Br.”), Deposition Testimony of Marie Ann Cabasa
(“Cabasa Dep.”) 23:2-8.) At some point during the process of being restrained, Plaintiff suffered
an injury to his ankle that resulted in the need for surgery. (Pl.’s Supp. Statement of Disputed
Material Facts in Opposition to Defs.’ SMF (“Pl.’s SMF”) ¶ 10.)
At approximately 8:00 p.m. on the date of the incident, Constance Kellum, a Human
Services Assistant, was assigned to monitor Plaintiff in a “one-on-one” capacity. (Ex. C to Def.
Fisher’s Br. in Supp. of Summ. J. (“Def. Fisher’s Br.”), Deposition Testimony of Constance
Kellum (“Kellum Dep.”) 20:9-10.) She noticed Plaintiff with other people in his room behind
the door, and lost observation of him. (Id. 24:21-25:2.) When she asked him to come out from
behind the door, he became upset. (Id. 25:4-26:1.) Kellum asked Defendant Marie Ann Cabasa,
the Charge Nurse assigned to Plaintiff’s hall, if she could search Plaintiff’s room for contraband
while Plaintiff was in the shower. (Cabasa Dep. 12:18-13:9.) As a result of her search, Kellum
found and confiscated two tablespoons of coffee from Plaintiff’s room. (Id.)
Thereafter, Plaintiff called 911. (Id. 13:9-15.) Defendants contend that the Plaintiff
became “upset/agitated” when staff confiscated his coffee, precipitating his phone call to the
4
When considering a defendant’s motion for summary judgment, the Court views the facts underlying the claims in
the light most favorable to the plaintiff. See Petruzzi’s IGA Supermarkets, Inc. v. Darling-Delaware Co., Inc., 998
F.2d 1224, 1230 (3d Cir. 1993).
5
References to “Defs.’ SMF,” and “Defs.’ Br.,” and the exhibits therein, refer to papers submitted by Defendants
Cabasa, Chang, and Gardenhire. Unless otherwise noted, such references will be applicable to Defendant Fisher.
References to papers submitted by Defendant Fisher will be designated by “Def. Fisher’s Br.,” or “Def. Fisher’s
SMF.” In addition, hereinafter, unless otherwise noted, all citations to Defs.’ SMF, etc. incorporate a reference to the
corresponding identical paragraph number and admission to that fact found in Plaintiff’s response.
2
police. (Ex. B to Defs.’ Br., Confidential Unusual Incident Report (“CUIR”) at NJ 001.) After
the call, Nurse Cabasa told Plaintiff that he was not allowed to call 911 unless it was an
emergency. (Cabasa Dep. 13:16-24.) Defendants claim that Plaintiff became more upset after
this instruction. (Id. 13:9-14:2.) Nurse Cabasa tried to calm Plaintiff by telling him that he could
talk to someone in the morning about his concerns, and by offering him a quiet room to sit and
cool off. (Def. Fisher’s SMF ¶ 3.)
Nurse Cabasa offered Plaintiff a “PRN”6 dose of Haldol, an antipsychotic medication that
can have a calming effect, in pill form, because “[Plaintiff] was pacing, his hands were clenched,
pacing; he was very upset because his coffee was confiscated. He was, I don’t know, like
mumbling, like trying, he was going to hurt the staff watching him.” (Defs.’ SMF ¶ ¶ 19-21;
Cabasa Dep. 16:9-22.) Plaintiff refused the oral dose of Haldol. (Defs.’ SMF ¶ 23.) Plaintiff
was on a “refusing status,” meaning that if he refused his PRN dose of pill medication, an
intramuscular dose of the PRN medication would be administered. (Defs.’ SMF ¶ 24; Cabasa
Dep. 17:16-18:5.) Nurse Cabasa told Plaintiff that “if you do not take it by mouth, you are going
to have the IM medication.” (Id. 20:1-2.) Plaintiff again refused. (Id. 20:3-4.)
Plaintiff, on the other hand, contends that he called 911 because, after a nurse, whom he
could not identify, asked him to take an oral dose of Haldol and he refused, he saw her with a
needle and became afraid that he might be injected with a needle. (Ex. D to Def. Fisher’s Br.,
Deposition of Woodrow Bullock, Jr. (“Bullock Dep.”) 80:17-81:2, 82:8-83:5.) Plaintiff had
already taken his daily dose of Haldol between 7:00 p.m. and 8:00 p.m. that evening.7 (Cabasa
6
“PRN” medications refer to medications given on an “as-needed” basis, rather than on a daily basis. (Cabasa Dep.
15:21-24.)
7
Plaintiff contends that he was justified in refusing to take the PRN dose of Haldol because he had just taken it
earlier that evening. (Pl.’s Supp. SMF ¶ 26.) In his Supplemental Statement of Disputed Material Facts, he also
claims that Haldol has “uncomfortable, even dangerous” side effects such as “serious physical harm, physical
debilitation and even death,” as well as Neuroleptic Malignant Syndrome and Tardive Dyskinesia. (Id. 23-25.)
3
Dep. 15:6-17.) Plaintiff disputes that he became agitated. (Bullock Dep. 83:6-8; Pl.’s Opp’n to
Def. Fisher’s SMF ¶ 4.)8 Plaintiff returned to his room after calling 911. (Def. Fisher’s SMF ¶
21.)
Thereafter, around 10:00 p.m., Defendant Cabasa called a “Code Blue.” (Cabasa Dep.
20:16-19, 34:13-19.) A Code Blue is an emergency call for staff from other wards to come and
assist with an agitated patient. (Id. 20:20-21:14.) Approximately seven or eight staff members
came to assist. (Id. 21:12-13.) Plaintiff contends that when he came out of his room, there were
a “bunch of guys” standing there, including one who “[looked] like he was going to war with
me.” (Bullock Dep. 83:18-22.) Plaintiff told them “I ain’t taking no needle.” (Id. 84:5-6.)
Plaintiff then “put up [his] guard,” meaning that he put his hands up in a boxing position, with
closed fists. (Id. 84:8-17, 91:11-92:9.) Defendants assert that when staff arrived, Plaintiff was
standing with his fists up, saying “I’m going to fuck up whoever is coming close to me.” (Id.
24:16-25; Def. Fisher’s SMF ¶ 5.)
Plaintiff was then restrained by Defendant Fisher, a Human Services Technician who was
covering the one-on-one assignment to monitor the Plaintiff while Kellum was on break. (Def.
Fisher’s SMF ¶ 7.) Defendant Fisher put the Plaintiff in a protective restraint technique (“PRT”)
because his “main concern was protecting everybody else, and [Plaintiff], from any injuries.
Because at that point, he had his hands up in a fighting stance and was threatening everybody.”
Plaintiff also submits a Certification, dated after close of discovery, that he is no longer taking Haldol and that he
feels “much better…on the new medications [Ancora is] giving me.” (Ex. K to Pl.’s Opp’n Br. to Defs.’ Br.) This
argument, that Haldol is dangerous and should not have been given to the Plaintiff, is not properly before the Court
because it was first raised in response to Defendants’ motions in the form of legal conclusion. Plaintiff does not
offer any evidence on the record, expert testimony or otherwise, of the effects of Haldol or whether Plaintiff’s
prescription for Haldol was proper. See Fed. R. Civ. P. 56(c).
8
Plaintiff repeatedly references videos capturing Plaintiff’s phone call, alleging that the videos show that he was not
agitated. (See, e.g., Pl.’s Supp. SMF ¶ 21; Pl.’s Opp’n Br. to Def. Fisher’s Br., 10-11.) However, these videos are
not part of the record, and thus the Court cannot rely on them in accordance with Fed. R. Civ. P. 56(c).
4
(Ex. B. to Def. Fisher’s Br., Deposition of Raymond Fisher (“Fisher Dep.”) 41:17-21.) The
PRT involved Fisher standing behind the Plaintiff, putting his arms underneath Plaintiff’s arms
and raising them up, and placing his hands behind Plaintiff’s neck. (Def. Fisher’s SMF ¶ 10.)
The Plaintiff was then secured face-down on the floor, with Fisher on top of him, also facedown. (Def. Fisher’s SMF ¶ ¶ 11(1)-11(2).)9 It is unclear exactly how they ended up on the
floor. (Id. ¶ 11(1); Bullock Dep. 85:7-86:3, 122:21-22.) Plaintiff contends that “somebody” was
standing on the back of his foot or ankle; that it could have been Fisher and he thought it was
Fisher, but he does not know for sure who was standing on his foot; and that when his stomach
hit the floor, he broke his ankle. (Bullock Dep. 85:22-23, 96:16-97:2, 127:1-128:11.) Fisher
claims that he did not stand on Plaintiff’s ankle, nor did he see anyone standing on Plaintiff’s
ankle. (Fisher Dep. 50:6-12.)
At this point, Cabasa gave the syringe containing the Haldol to an unidentified nurse,
who administered the shot. (Defs.’ SMF ¶ 33.) After being administered the shot, Plaintiff was
placed in a “four-point restraint” chair by Fisher and other staff, and cloth restraints were tied at
his wrists and ankles. (Cabasa Dep. 31:6-23; Fisher Dep. 51:1-53:21.) It is uncertain whether
Fisher participated in securing the Plaintiff to the chair with the cloth restraints, although Fisher
testified that he does not think that he did. (Fisher Dep. 51:24-52:3.) After Plaintiff was secured
in the chair, Fisher did not see him again for the rest of his shift, and he does not recall Plaintiff
complaining of ankle pain. (Id. 54:4-55:1.) Plaintiff was restrained in the chair for a total of two
hours and three minutes, being released at approximately 12:05 a.m. on April 7, 2008. (Defs’
SMF ¶ 58.) Nurse Cabasa checked on Plaintiff every 15 minutes until her shift ended at 11:45
9
Def. Fisher’s SMF includes two paragraph number elevens, and this citation refers to both of them.
5
p.m., during which time Plaintiff did not complain to her about pain in his ankle. (Defs.’ SMF ¶¶
36-40.)
After Plaintiff had already been restrained, Defendant Dr. Young Chang arrived at the
scene in response to the Code Blue. (Defs.’ SMF ¶¶ 46-47.) Dr. Chang is a psychiatrist within
Ancora, and was the Psychiatrist on Duty (“POD”) on the date of the incident. (Id. ¶¶ 43-44.)
Dr. Chang is a trained medical doctor, and had worked as both the Medic on Duty (“MOD”) and
POD at Ancora in the past. (Ex. D to Defs.’ Br., Deposition of Dr. Young Chang (“Chang
Dep.”) 6:8-19, 7:6-10.) However, at the time of the incident, Ancora had two doctors on-site: a
POD, and an MOD. (Id. 6:18-19.) Dr. Chang contends that his responsibility was to take care of
psychiatric issues only. (Defs.’ SMF ¶ 59.) Dr. Chang authorized the continued restraint of
Plaintiff for one hour, from approximately 10:00 p.m. to 11:00 p.m., because, according to Dr.
Chang, Plaintiff was “agitated, hostile, threatening staff.” (Id. ¶ 51.) An hour later, Dr. Chang
reauthorized the restraint for an additional hour, from approximately 11:00 p.m. to 12:00 a.m.,
for the same reason. (Id. ¶ 52.) Plaintiff did not complain to Dr. Chang of pain in his ankle, nor
did Dr. Chang notice any swelling, until approximately 12:05 a.m. (Id. ¶¶ 49-50, 53-54.) In
response to Plaintiff’s complaint of pain, Dr. Chang called the MOD, who evaluated Plaintiff at
approximately 12:45 a.m. (Ex. B to Defs.’ Br., MOD Response Note at NJ006.)
Nurse Lori Gardenhire also responded to the Code Blue. (Defs.’ SMF ¶ 64.) When she
arrived at the scene, Plaintiff was already on the ground. (Id.) Nurse Gardenhire was a
supervising nurse who did not perform clinical duties. (Id. ¶ 62-63.) She did not participate in
restraining the Plaintiff, nor did she administer the IM shot. (Id. ¶ 65.) She noted that Plaintiff
stated that “he didn’t know why he was restrained and that he is OK,” (CUIR at NJ002), but she
does not recall if she actually spoke to him, or if she received that information from Nurse
6
Cabasa. (Ex. M to Pls.’ Opp’n to Defs.’ Br., Deposition of Lori Gardenhire (“Gardenhire Dep.”)
26:3-7; Defs’ SMF ¶ 67.) Nurse Gardenhire’s shift ended at 11:45 p.m., at which point she was
not aware of any injury to Plaintiff. (Gardenhire Dep. 28:25-29:3.)
Nurse Cabasa returned to work on April 7, 2008 at 3:15 p.m., and was charged with the
responsibility of taking care of Plaintiff. (Pl.’s Supp. SMF ¶ 4.) Around 2:00 a.m. on April 7,
2008, Plaintiff had complained of pain in his right leg to another nurse, stating that “I feel like I
have a broken bone.” (Ex. B to Defs.’ Br., Interdisciplinary Progress Notes (“IPN”) at NJ 009.)
Nurse Cabasa did not read the IPN that included this information upon beginning her shift. (Pl.’s
Supp. SMF ¶ 6.) However, Nurse Cabasa was told by another nurse that Plaintiff had injured his
ankle, and Plaintiff was also in a wheelchair. (Cabasa Dep. 37:6-38:5.) Plaintiff had an X-ray
on April 7, 2008 that revealed a fracture. (Id. 42:5-10; Ex. H to Pl.’s Opp’n Br. to Defs.’ Br.,
Orthopedic Consult Report.)10 Nurse Cabasa testified that if a patient had a serious enough
fracture, a doctor or a nurse at Ancora could send the patient to the emergency room, as they did
not have an orthopedist on staff at Ancora. (Pl.’s Supp. SMF ¶ ¶ 11-12.) Despite this, Plaintiff
was not seen for an orthopedic consult at Ancora until April 11, 2008. (Pl.’s Supp. SMF ¶ 1.) At
this point, the doctor noted “moderate swelling,” and reviewed an X-ray that revealed a fracture.
(Id. ¶¶ 8-9.) Plaintiff was admitted to Cooper University Hospital, where he underwent surgery
to the affected ankle on April 14, 2008, and was discharged on April 15, 2008. (Id. ¶ 10.)
Plaintiff filed suit against Defendants on March 18, 2010, naming Ancora, the State of
New Jersey, and a number of Ancora employees as defendants. (Doc. No. 1.) Plaintiff amended
10
Plaintiff points to Exhibit I of his Opposition Brief to Defendant’s Brief to support this fact, but Exhibit I refers to
an X-ray report with a date of service of 12/24/2008. Since the Court must construe the facts in the light most
favorable to the Plaintiff, the Court notes that Nurse Cabasa testified that Plaintiff received an X-ray on April 7,
2008, and also that the Orthopedic Consult Report references an X-ray that shows “bimalleolar fracture and
dislocation with lateral talar shift.”
7
his complaint several times before his Fourth Amended Complaint (“FAC”) was filed on March
10, 2013. (Doc. No. 82.) The FAC includes Defendants Cabasa, Chang, Gardenhire, Fisher, and
Kellum. (Id.) It also includes as Defendants David Gehbauer and Linda Jones,11 as well as Jane
Doe Nurses 1-15, Jane Doe HSAs 1-15, Jane Doe HSTs 1-15, and John Doe Doctors 1-15.
(Id.).12 Against all remaining Defendants, Plaintiff asserts the following claims: (1) 42 U.S.C. §
1983 claim of excessive force and failure to provide medical care in violation of the Fourteenth
Amendment (FAC First Cause of Action ¶¶ 66-71); (2) Violation of the New Jersey Patients’
Bill of Rights, N.J. Stat. Ann. § 30:4-24.2(h) (Id. Second Cause of Action ¶¶ 72-75); (3) Assault
and Battery (Id. Third Cause of Action ¶¶ 76-78); and (4) Negligence (Id. Fourth Cause of
Action ¶¶ 79-81.)13
II.
LEGAL STANDARD
Summary judgment is appropriate where the Court is satisfied that “there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). A genuine dispute
of material fact exists only if the evidence is such that a reasonable jury could find for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When the Court
11
The claims against Gehbauer and Jones were dismissed pursuant to a December 4, 2013 Opinion and Order by
this Court. (Doc. Nos. 114 and 115.)
12
“Although ‘[u]se of John Doe defendants is permissible in certain situations until reasonable discovery permits
the true defendants to be identified,’ these parties must be dismissed if such discovery does not reveal their proper
identities.” Cordial v. Atl. City, No. 11-1457, 2014 WL 1095584, at *3 (D.N.J. Mar. 19, 2014), recons. den., 2014
WL 2451137 (D.N.J. June 2, 2014) (citing Blakeslee v. Clinton Cnty., 336 F. App’x 248, 250 (3d Cir. 2009)
(affirming district court’s sua sponte dismissal of fictitious parties that were not identified after discovery)). “This
may be done upon motion of a party or the Court.” Id. (citing Fed. R. Civ. P. 21 (“On motion or on its own, the
court may at any time, on just terms, add or drop a party.”)). Here, Plaintiff has failed to amend his Complaint or
otherwise identify any of these fictitious defendants despite the fact that discovery has now closed. Thus, these
parties shall be dismissed.
13
A Fifth Cause of Action for Fraudulent Concealment of evidence is alleged as to Defendants Linda Jones, and
“other [Ancora] agents, servants and/or employees.” (FAC Fifth Cause of Action ¶¶ 82-87.) As these Defendants
are no longer parties to the action, the Court will not address this cause of action.
8
weighs the evidence presented by the parties, “[t]he evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Id. at 255.
The burden of establishing the nonexistence of a “genuine issue” is on the party moving
for summary judgment. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1080 (3d Cir.
1996). The moving party may satisfy its burden either by “produc[ing] evidence showing the
absence of a genuine issue of material fact” or by “‘showing’ – that is, pointing out to the district
court – that there is an absence of evidence to support the nonmoving party’s case.” Celotex,
477 U.S. at 325.
If the party seeking summary judgment makes this showing, it is left to the nonmoving
party to “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, 586 (1986). Rather, to
survive summary judgment, the nonmoving party must “make a showing sufficient to establish
the existence of [every] element essential to that party’s case, and on which that party will bear
the burden of proof at trial.” Celotex, 477 U.S. at 322. Furthermore, “[w]hen opposing
summary judgment, the nonmovant may not rest upon mere allegations, but rather must ‘identify
those facts of record which would contradict the facts identified by the movant.’” Corliss v.
Varner, 247 F. App’x. 353, 354 (3d Cir. Sept. 17, 2007) (quoting Port Auth. of N.Y. and N.J. v.
Affiliated FM Ins. Co., 311 F.3d 226, 233 (3d Cir. 2002)).
In deciding the merits of a party’s motion for summary judgment, the Court’s role is not
to evaluate the evidence and decide the truth of the matter, but to determine whether there is a
genuine issue for trial. Anderson, 477 U.S. at 249. Credibility determinations are the province
of the fact finder, not the district court. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974
F.2d 1358, 1363 (3d Cir. 1992).
9
III.
DISCUSSION & ANALYSIS
A. FOURTEENTH AMENDMENT CLAIMS
Plaintiff’s first cause of action against Defendants is for excessive force and failure to
provide medical care in violation of the Fourteenth Amendment under 42 U.S.C. § 1983.14 To
recover under § 1983, a plaintiff must show two elements: (1) a person deprived him or caused
him to be deprived of a right secured by the Constitution or laws of the United States, and (2) the
deprivation was done under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
1. Failure to provide medical care
The Fourteenth Amendment protects an involuntarily committed patient’s right to
adequate medical care. Youngberg v. Romeo, 457 U.S. 307, 324 (1982). In Youngberg, the
Supreme Court expressly rejected the application of the Eighth Amendment’s “deliberate
indifference” standard to claims by civilly committed patients under the Fourteenth Amendment.
Id. at 325. Instead, the Court adopted the “professional judgment standard,” which provides that
an official is liable only if a “decision . . . is . . . a substantial departure from accepted
professional judgment, practice, or standards.” Id. at 323. Specifically, the Court considered an
involuntarily committed patient’s right to safety and freedom from restraint. Id. at 321.
Although the Youngberg decision did not address failure to provide medical care specifically, the
Court described adequate medical care as one of “the essentials of the care that the State must
provide.” Id. at 324.
14
While Plaintiff asserts these as one claim in his First Cause of Action, the court will analyze them separately. The
Court also notes that Plaintiff seems to allege a violation of his constitutional right to refuse medication in violation
of Rennie v. Klein, 720 F.2d 266 (3d Cir. 1983). (FAC ¶¶ 15, 23.) Inasmuch as Plaintiff asserts a violation of his
Rennie rights, the Court addresses this in Section III(B), infra.
10
The Third Circuit has recognized that Youngberg “unambiguous[ly] reject[ed] . . . the
deliberate indifference standard.”15 Shaw v. Strackhouse, 920 F.2d 1135, 1148 (3d Cir. 1990);
see also Boring v. Kozakiewicz, 833 F.2d 468, 472 (3d Cir. 1987) (In examining a failure to
provide medical care claim, stating that “[t]o apply the Eighth Amendment standard to mentally
retarded persons would be little short of barbarous.”) The Third Circuit has also found that the
professional judgment standard is not equivalent to negligence. Shaw, 920 F.2d at 1146-47
(citing Daniels v. Williams, 474 U.S. 327 (1986), for the proposition that the professional
judgment standard requires a plaintiff to prove more than simple negligence). According to the
Third Circuit, “[p]rofessional judgment, like recklessness and gross negligence, generally falls
somewhere between simple negligence and intentional misconduct.” Id. at 1146.
The Third Circuit has further explained that the professional judgment standard applies,
as its title suggests, only to professionals. Id. at 1147. In this context, professionals are
“[p]ersons competent, whether by education, training or experience, to make the particular
decision at issue.” Youngberg, 457 U.S. at 323 n.30. “Nonprofessional employees who provide
care for institutionalized mentally retarded individuals are subject even after Youngberg, only to
a deliberate indifference standard.” Shaw, 920 F.2d at 1147.
Plaintiff claims that Defendants are liable under § 1983 because they failed to provide
medical care as required by the Fourteenth Amendment. (FAC ¶ 69.) Specifically, Plaintiff
15
The Court notes that, relying on a non-precedential opinion in Rivera v. Marcoantonio, 153 F. App’x. 857, 859
(3d Cir. 2005), some district courts in this circuit have applied the deliberate indifference standard to Fourteenth
Amendment claims by civilly committed patients. See, e.g., Lewis v. Pearsall, No. 08-786, 2011 U.S. Dist. LEXIS
65742, at *18 (“The Third Circuit has found that Eighth Amendment standards are applicable to a civilly committed
patient’s claim under the Due Process Clause of the Fourteenth Amendment.”); Aruanno v. Caldwell, No. 09-5652,
2011 U.S. Dist. LEXIS 61288, at *19-20 n.5 (D.N.J. June 8, 2011) (excessive force); Artis v. McCann, No. 11-3613,
2013 WL 2481251, at *4, (D.N.J. June 10, 2013) (excessive force). Following the Third Circuit’s precedential
ruling in Shaw, this Court applies the professional judgment standard to failure to provide medical care claims, as
explained above. See Shaw, 920 F.2d at 1148. However, to the extent that these cases discuss excessive force
claims, see Section III(A)(2), infra.
11
contends that Ancora staff waited five days before Plaintiff was seen for an orthopedic consult.
(Id. ¶ 34.)
As to Defendants Fisher and Gardenhire, Plaintiff did not complain of pain in their
presence, and Plaintiff does not dispute that neither Defendant was responsible for his care in the
days following the incident. There was no “substantial departure from professional judgment,
practice, or standards,” because they were unaware that Plaintiff was injured during their brief
interactions with him. Therefore the Court will award summary judgment to Defendants Fisher
and Gardenhire for Plaintiff’s failure to provide medical care claim.16
Defendant Chang did not become aware that Plaintiff had pain in his ankle until
approximately 12:05 a.m. on April 7, 2008. At that point, Dr. Chang noticed mild swelling, and
called the MOD to evaluate Plaintiff. Plaintiff argues that Dr. Chang was aware of the results of
the April 7th X-ray. (Pl.’s Opp’n Br. 26.) He further argues that since Dr. Chang has a medical
degree and had at one point acted as both the POD and the MOD at Ancora simultaneously, that
he was expected to treat Plaintiff’s ankle injury.
Plaintiff’s argument fails for two reasons. First, Dr. Chang testified, and Plaintiff
produces no evidence to the contrary, that his role as a psychiatrist at Ancora and as the POD on
the evening of April 6, 2008 dictates that he was only responsible for psychiatric care. Dr.
Chang simply was not responsible for diagnosing and treating Plaintiff’s ankle injury. The
evidence establishes that Dr. Chang took immediate action when he learned that Plaintiff was
injured by calling the MOD, satisfying the requirements of Youngberg by exhibiting professional
concern and judgment. See Patten v. Nichols, 274 F.3d 829, 844 (4th Cir. 2001) (finding
16
The Court notes that, even though Defendant Fisher, a human services technician, may not be considered a
“professional” as articulated in Youngberg, because Fisher was not responsible for Plaintiff’s medical care following
the incident and was unaware that Plaintiff was injured, the Court’s opinion would not change under the deliberate
indifference standard.
12
summary judgment for defendants appropriate where defendant social worker learned of
involuntarily committed mental patient’s phone call to her family during which she explained
that she was “dying,” and displayed signs of trouble breathing, whereupon the social worker
reported the call to defendant doctor, who then evaluated the patient by speaking to her for ten
minutes in the hallway without ordering any medical tests and determined that the patient
required no further treatment). Even if Dr. Chang could have done more to treat Plaintiff’s
injury besides calling the MOD, the standard articulated in Youngberg requires a “substantial”
departure from professional judgment, which is more than simple negligence. Shaw, 920 F.2d at
1146. Moreover, “[t]he Constitution only requires that the courts make certain that professional
judgment in fact was exercised. It is not appropriate for the courts to specify which of several
professionally acceptable choices should have been made.” Youngberg, 457 U.S. at 321.
Second, Plaintiff has not pointed to any evidence on the record indicating that Dr. Chang had any
interaction with Plaintiff in the days following the incident, and thus there is no factual basis to
determine that Dr. Chang was responsible for caring for Plaintiff’s injuries and failed to do so
after he left Plaintiff after midnight on April 7, 2008. The Court will therefore award summary
judgment to Defendant Chang for Plaintiff’s failure to provide medical treatment claim.
Finally, Plaintiff did not complain of pain in his ankle to Defendant Cabasa before her
shift ended on the evening of April 6, 2008. However, Plaintiff alleges that the results of the Xray taken on April 7, 2008 were known to Nurse Cabasa. (Pl.’s Opp’n Br. 26.) Furthermore,
when Nurse Cabasa returned to work the next day, she became aware that Plaintiff had suffered
an injury to his ankle as he was in a wheelchair, and another nurse told her that he had suffered
an injury to his ankle. Nurse Cabasa’s own testimony reveals that a nurse or a doctor could send
a patient to the emergency room if he had a serious enough injury. Taken in the light most
13
favorable to the plaintiff, an inference can be drawn from these facts that Nurse Cabasa was
aware of Plaintiff’s injury, and she failed to care for him by not sending him to the emergency
room for an orthopedic consult prior to April 11, 2008. This raises a question as to whether
Nurse Cabasa’s conduct was a substantial departure from accepted professional judgment. The
Court will deny summary judgment as to Defendant Cabasa for failure to provide medical care in
violation of § 1983.
2. Excessive Force
The Court adopts a different standard to evaluate claims for excessive force against
involuntarily committed mental patients. Although such claims are properly brought by
psychiatric patients under the Due Process clause of the Fourteenth Amendment, they may be
analyzed under the Eighth Amendment standard used for prisoners.
Plaintiff argues that the proper standard governing Defendants’ behavior in his excessive
force claim is the professional judgment standard articulated in Youngberg. (Pl.’s Opp’n. Br. 2930.) As discussed in the previous section, supra, the Supreme Court has held that involuntarily
committed mental patients retain liberty interests in safety and freedom from bodily restraint, and
that those liberty interests must be evaluated under the professional judgment standard. Id. at
321. Plaintiff urges that “because an involuntarily committed psychiatric patient is confined for
treatment rather than incarcerated for the purpose of punishment following conviction, the
Eighth Amendment does not apply.” Revels v. Vincenz, 382 F.3d 870, 874 (8th Cir. 2004).
Neither the Supreme Court nor the Third Circuit have addressed this precise issue of
excessive force in the context of involuntarily committed mental patients. The Eighth Circuit
has held that the excessive force claim of a mental patient who was involuntarily committed after
having been found not guilty of murder by reason of insanity should be evaluated under the
14
objective reasonableness standard usually applied to excessive force claims brought by pre-trial
detainees. Andrews v. Neer, 253 F.3d 1052, 1061 (8th Cir. 2001). The First Circuit agrees. See
Davis v. Rennie, 264 F.3d 86, 108 (1st Cir. 2001). However, the Third Circuit has rejected the
objective reasonableness standard for pre-trial detainees because “[w]e can draw no logical or
practical distinction between a prison disturbance involving pretrial detainees . . . or sentenced
inmates.” Fuentes v. Wagner, 206 F.3d 335, 347 (3d Cir. 2000).
It is true that Plaintiff in this case is an involuntarily committed mental patient at a
psychiatric hospital, and not a prisoner. However, as the Supreme Court’s logic in Youngberg
dictates, Plaintiff is entitled to at least the same protections against excessive force as prisoners.
See Artis v. McCann, No. 11-3613, 2013 WL 2481251, at *4 (D.N.J. June 10, 2013); see also
Aruanno v. Caldwell, No. 09-5652, 2011 U.S. Dist. LEXIS 61288, at *19 n.5 (D.N.J. June 8,
2011) (“Because Plaintiff is civilly committed, his claim arises under the Due Process Clause of
the Fourteenth Amendment . . . However, Eighth Amendment standards are applicable to his
claim”) (citations omitted). Thus, for the purpose of this motion for summary judgment, this
Court will analyze the excessive force claim separately from the failure to provide medical
treatment claim, employing the Eighth Amendment standard.
To prevail on a claim of excessive force in this context, Plaintiff must prove the
“unnecessary and wanton infliction of pain,” the central inquiry being “whether force was
applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for
the very purpose of causing harm.” Whitley v. Albers, 475 U.S. 312, 320-21 (1986). To make
this determination, courts have identified several factors, including “(1) the need for the
application of force; (2) the relationship between the need and the amount of force that was used;
(3) the extent of the injury inflicted; (4) the extent of the threat to the safety of staff and inmates,
15
as reasonably perceived by responsible officials on the basis of the facts known to them; and (5)
any efforts made to temper the severity of a forceful response.” Brooks v. Kyler, 204 F.3d 102,
106 (3d Cir. 2000) (quoting Whitley, 475 U.S. at 321).
Although Defendant Cabasa did not participate in the actual restraint or administering of
the IM shot to Plaintiff, it is undisputed that she called the Code Blue and ordered that the shot
be given. Prior to ordering the shot, she attempted to calm the Plaintiff down by speaking with
him, offering him time in a quiet room, and offering him an oral dose of Haldol. Thus Nurse
Cabasa contends that she only used the IM shot after all other means of calming the Plaintiff
were not successful, showing that she made an effort to temper the severity of her response.
(Defs.’ Br. 25.) She also argues that Plaintiff’s agitated behavior, including his threats and
fighting stance, made the need for force apparent, and the extent of the threat to the safety of
staff and patients was such that force was required. (Id. 24.) Furthermore, she contends that the
force used was “simply an injection,” and not the restraint that led to the ankle injury, showing
that the amount of force used, and the injury, was minimal. (Defs’ Br. 26.) Though the extent of
injury is a factor, excessive force may be found even where injury is di minimus. Brooks, 204
F.3d at 108. More fatal to Nurse Cabasa’s motion, Plaintiff testified that he was not agitated, if
at all, until after he was surrounded by staff in response to the Code Blue. If Plaintiff was not
agitated, then there could not have been a threat to the safety of the staff and patients that
necessitated the application of force. Taking these facts in the light most favorable to the
Plaintiff, there is an issue of fact as to whether any force, let alone the force Nurse Cabasa used
in ordering the IM shot, was required. Thus summary judgment will be denied as to the
excessive force claim against Defendant Cabasa.
16
Construing the facts and inferences in the light most favorable to the Plaintiff, the Court
holds that an issue of fact exists as to whether Defendant Fisher used excessive force by placing
Plaintiff in the PRT during the Code Blue, resulting in his ankle injury. Though Fisher argues
that he put Plaintiff in the PRT in response to Plaintiff threatening people and assuming a
fighting stance, and Plaintiff corroborates that his fists were up, still there is an issue of fact as to
whether any force, let alone the force used, was necessary. The Court cannot hold as a matter of
law that the extent of the threat to the safety of others as perceived by Fisher necessitated the
force used, or that the need for the application of force and the relationship between the need and
the amount of force used was appropriate. Therefore, the Court will deny summary judgment as
to the claim for excessive force against Defendant Fisher.
Both Dr. Chang and Nurse Gardenhire arrived in response to the Code Blue after Plaintiff
had been restrained and the IM shot administered. Neither of them ordered the shot or the initial
restraint. Neither of them applied any force whatsoever to Plaintiff. Because they did not have
any personal involvement, arriving only after the alleged wrongdoing took place, summary
judgment will be granted for Defendants Gardenhire and Chang on the excessive force claim.
B. NEW JERSEY PATIENTS’ BILL OF RIGHTS
Plaintiff asserts a cause of action under the New Jersey Patients’ Bill of Rights, N.J. Stat.
Ann. § 30:4-24.2(h), alleging that Defendants “participated in the unnecessary or excessive
restraint(s), assault and battery of plaintiff, forcible medication and failure to diagnose or treat
plaintiff’s injuries.” (FAC ¶ 72.) Specifically, Plaintiff alleges that Defendants violated
Plaintiff’s rights to the following: (1) the least restrictive conditions necessary to achieve the
purposes of treatment (§ 30:4-24.2e(2)); (2) privacy and dignity (§ 30:4-24.2e(1)); (3) to be free
from unnecessary or excessive medication (§ 30:4-24.2d(1)); (4) to be free from physical
17
restraint and isolation, except for emergency situations (§ 30:4-24.2d(3)); and (5) to be free from
corporal punishment (§ 30:4-24.2d(4)).
Nurse Gardenhire did not participate in the forcible medication or restraint of Plaintiff,
nor in his treatment in the days following; as such there is no factual basis to support this claim
with respect to her. The Court will award summary judgment to Defendant Gardenhire on this
count.
Defendant Chang also did not participate in the forcible medication or initial restraint of
Plaintiff, nor in his treatment in the days following. However, Dr. Chang did reauthorize the
restraint for an additional two hours, which could violate the Plaintiff’s right to be free from
physical restraint except for emergent situations, as articulated in § 30:4-24.2d(3). Dr. Chang
testified that he kept Plaintiff in the restraint because Plaintiff was agitated and a perceived
threat. Plaintiff does not dispute this contention with expert testimony or otherwise. Because
Plaintiff has offered no evidence that the circumstances did not require him to be restrained for
an additional two hours, he has failed to establish the existence of all essential elements to this
count on which he bears the burden of proof at trial. See Celotex, 477 U.S. at 322. Based on the
facts, the Court does not find the other potential violations of the Patients’ Bill of Rights that
Plaintiff alleges applicable to Dr. Chang. The Court grants summary judgment for Defendant
Chang on this count.
It is undisputed that Defendant Cabasa ordered the IM shot of Haldol. However, there is
no genuine issue of fact as to whether the ordering of the shot violated the Patients’ Bill of
Rights, specifically to be free from unnecessary or excessive medication. Plaintiff alleges that
Defendants violated Plaintiff’s rights to refuse medication as articulated in Rennie v. Klein, 720
F.2d 266 (3d Cir. 1983). (FAC ¶¶ 15, 23.) In Rennie, the Third Circuit held that, in light of
18
Youngberg, supra, “antipsychotic drugs may be constitutionally administered to an involuntarily
committed mentally ill patient whenever, in the exercise of professional judgment, such an action
is deemed necessary to prevent the patient from endangering himself or others.” Id. at 269.
Plaintiff himself asserts that “[t]he proper standard for determining whether the State has
adequately protected such rights is whether professional judgment, in fact, was exercised.” (Pl.’s
Opp’n Br. 29-30.) While Plaintiff points to undisputed evidence that he had taken his daily dose
of Haldol shortly before he was offered the oral dose and then injected with the medication,
Plaintiff has not produced any evidence as to whether Nurse Cabasa used her professional
judgment in deciding to administer the medication.17 To survive a motion for summary
judgment, a Plaintiff must point to sufficient evidence that would allow a jury to return a verdict
in his favor, and this Plaintiff has failed to do so. See Anderson, 477 U.S. at 249. The Court
does not think that the facts support the alleged violations of other sections of the Patients’ Bill
of Rights against this Defendant. Therefore, the Court grants summary judgment in favor of
Defendant Cabasa for this count.
The Court will deny summary judgment for Defendant Fisher on this cause of action. An
issue of fact exists as to whether Fisher used the least restrictive conditions necessary to achieve
the purposes of treatment, namely to administer the IM shot of Haldol, when he placed Plaintiff
in the PRT. In addition, an issue of fact exists as to whether the situation was emergent such that
Fisher did not violate Plaintiff’s rights by physically restraining him. Plaintiff disputes that he
was agitated and necessitated restraint, and thus a trier of fact could determine that Fisher
violated the Patients’ Bill of Rights.
17
Plaintiff attempts to prove that Nurse Cabasa violated his Rennie rights by claiming that Plaintiff was justified in
refusing the extra dose of Haldol because of the potentially dangerous side effects that it may have on an individual.
(Pl.’s Supp. SMF ¶¶ 22-29.) However, as discussed supra, note 7, this argument is not properly before the court as it
was raised in the form of legal conclusion in response to Defendants’ motion. See Fed. R. Civ. P. 56(c).
19
C. ASSAULT AND BATTERY
A common law claim for battery in New Jersey requires “the harmful or offensive
touching of plaintiff’s person without his consent.” Corradetti v. Sanitary Landfill, Inc., 912 F.
Supp. 2d 156, 161 (D.N.J. 2012). Common law assault occurs when a defendant “intends only to
cause apprehension” that battery, i.e. harmful or offensive touching, is imminent. Id. The
plaintiff must thereby actually be put in imminent apprehension. Leang v. Jersey City Bd. of
Educ., 969 A.2d 1097, 1117 (N.J. 2009). The “intent” requirement is satisfied where an act is
done “with knowledge that, to a substantial certainty, [imminent] apprehension will result.”
Restatement (Second) of Torts § 21 cmt. d (1965).
Defendant Cabasa argues that she cannot be liable to Plaintiff for assault and battery as a
matter of law because she neither restrained him nor injected him with the shot of Haldol.
(Defs.’ Br. 15.) This Court agrees that, because she did not touch the plaintiff, an essential
element of a claim for battery is missing, and she cannot be held liable for battery as a matter of
law. However, Plaintiff appears to make an argument as to Nurse Cabasa’s liability for assault,
stating that Nurse Cabasa intended to inject Plaintiff and that others were acting at her direction
to give him the shot. (Pls.’ Opp’n Br. 24.) Plaintiff claims that he was placed in “apprehension
of a harmful or offensive contact” when he saw Nurse Cabasa “brandishing a hypodermic
syringe.” (Id. 25.)
Plaintiff’s testimony does not reveal that he saw Nurse Cabasa with the needle. Instead,
Plaintiff testified only that he saw a nurse, whom he could not identify by name, holding a needle
after he had refused to take the oral dose of Haldol. But Plaintiff does state that he called the
police in response to seeing the needle, suggesting apprehension. Nurse Cabasa also testified
that she gave the needle containing Haldol to another nurse to administer the injection, leading to
20
the reasonable inference that she was, at one point, holding the needle. Given Plaintiff’s
perceived agitation noted by Nurse Cabasa, it can also be inferred that she was substantially
certain that this conduct would cause apprehension in the Plaintiff, thus satisfying the intent
element of assault. Viewing these facts and inferences in the light most favorable to the Plaintiff,
a reasonable trier of fact could conclude that Nurse Cabasa intended to cause apprehension of
harmful or offensive contact in Plaintiff, and thus the Court denies Nurse Cabasa’s motion for
summary judgment as to the assault and battery claim.
There is no question that Defendant Fisher placed Plaintiff in a PRT, which necessarily
involved touching, and that Fisher ended up on the floor on top of Plaintiff. Fisher appears to
make an argument that he lacked the requisite intent for battery, because “it was the actions of
the other unidentified staff members who were assisting in the Code Blue that caused both
plaintiff and defendant Fisher to fall down to the floor and not Fisher’s conscious decision to do
so.” (Def. Fisher’s Br. 14.) Nonetheless, Fisher intended to put Plaintiff in the PRT. A
reasonable inference is that Plaintiff would find this touching offensive, if not harmful, since he
had voiced his objection to being injected. Therefore, the Court denies Defendant Fisher’s
motion for summary judgment as to the assault and battery claim.
Neither Defendants Gardenhire nor Chang were involved in Plaintiff’s restraint or the
administration of the IM shot. Indeed, Plaintiff states that “it does appear from the record that
neither…Chang or Gardenshire…directly participated in the physical take down, forcibly tying
Plaintiff to a four-point restraint chair or actual injection.” (Pl.’s Opp’n Br. 25.) Nurse
Gardenhire arrived after Plaintiff had already been forced to the floor, and Dr. Chang arrived
even later, after Plaintiff had already been restrained in the chair. Even viewing these facts in the
light most favorable to the Plaintiff, a reasonable jury could not conclude that Dr. Chang or
21
Nurse Gardenhire committed a battery, because there was no touching whatsoever. Likewise,
neither Dr. Chang nor Nurse Gardenhire committed assault because logically there can be no
apprehension of an imminent battery when that harmful or offensive touching has already
occurred. Accordingly, the Court will grant Defendants Chang and Gardenhire’s motions for
summary judgment on Plaintiff’s assault and battery claims against them.
D. NEGLIGENCE
Plaintiff alleges negligence against all Defendants in failing to treat Plaintiff’s ankle
injury and in giving Plaintiff the IM shot. (FAC ¶¶ 79-81.) Under New Jersey law, to succeed
on a negligence claim, a plaintiff must establish: “(1) [a] duty of care, (2) [a] breach of [that]
duty, (3) proximate cause, and (4) actual damages.” Polzo v. Cnty. of Essex, 960 A.2d 375, 384
(N.J. 2008). In an action against a medical professional, the plaintiff has the burden of proving
the relevant standard of care governing the defendant, a deviation from that standard, an injury
proximately caused by the deviation, and damages suffered from the defendant’s negligence.
Komlodi v. Picciano, 89 A.3d 1234, 1246 (N.J. 2014). Generally, the plaintiff needs a qualified
expert to establish the relevant standard of care. Estate of Chin v. St. Barnabas Med. Ctr., 734
A.2d 778, 785 (N.J. 1999). However, the “common knowledge” exception applies “where
jurors’ common knowledge as lay persons is sufficient to enable them, using ordinary
understanding and experience, to determine a defendant’s negligence without the benefit of the
specialized knowledge of experts.” Id. (holding that common knowledge exception applied
where a dentist extracted the wrong tooth). “The basic postulate for application of the doctrine…
is that the issue of negligence is not related to technical matters peculiarly within the knowledge
of medical . . . practitioners.” Sanzari v. Rosenfeld, 167 A.2d 625, 632 (N.J. 1961).18
18
In an action for professional negligence, the plaintiff is required to submit an Affidavit of Merit of an appropriate
licensed person “that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in
22
There is no factual basis for the claim against Defendant Gardenhire. Nurse Gardenhire
never clinically examined the Plaintiff, having had only a brief conversation with him in which
she did not learn of his ankle injury. Nurse Gardenhire was a supervising nurse who did not
perform clinical duties. Even if the common knowledge exception applied, a reasonable jury
could not conclude that she was negligent in failing to treat the Plaintiff when she did not know
of his injury and it was not her duty to provide clinical care. The Court will grant summary
judgment in favor of Defendant Gardenhire for this count.
As it relates to Defendant Chang, the common knowledge exception does not apply
because how a psychiatrist diagnoses and treats a fracture is outside the common knowledge of
the average juror. The Court thinks this would be a “technical matter” for a medical
professional. Since Plaintiff has not produced an expert to opine on whether Dr. Chang should
have noticed Plaintiff’s ankle injury prior to 12:05 a.m., no genuine issue of material fact exists.
However, even if Dr. Chang’s actions could be evaluated under the common knowledge
exception, there is still no genuine issue of material fact, as no reasonable jury would conclude
that Dr. Chang was negligent. See Jenoff v. Gleason, 521 A.2d 1323 (N.J. Super. Ct. App. Div.
1987) (finding that common knowledge doctrine applied to the method of communicating a
radiologist’s findings concerning a patient in the hospital). Dr. Chang was the POD in charge of
psychiatric issues only; he did not learn of Plaintiff’s ankle injury until Plaintiff complained to
him at 12:05 a.m.; when he examined the ankle, he noticed only “mild swelling”; and upon
learning of Plaintiff’s injury, he called the MOD to give the Plaintiff medical attention.
the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or
occupational standards or treatment practices.” N.J. Stat. Ann. § 2A:53A-27. “The plaintiff’s failure to provide an
affidavit of merit is tantamount to a failure to state a cause of action.” Burt v. West Jersey Health Sys., 771 A.2d
683, 687 (N.J. Super. Ct. App. Div. 2001) (citing N.J. Stat. Ann. § 2A:53A-29). The Court notes that Plaintiff has
not submitted such an affidavit. Nonetheless, the Court will evaluate the merits of the claim, considering whether
the common knowledge exception applies to certain Defendants. Moreover, insofar as the Court grants summary
judgment to Defendants, this omission does not bear on the results reached today.
23
Thereafter, there is no allegation that he continued to care for the Plaintiff. Thus, Defendant
Chang’s motion for summary judgment will be granted.
As to Defendant Cabasa, whether or not the circumstances presented gave rise to the need
to administer an IM shot are outside the scope of the average juror’s common knowledge. The
average juror does not have the requisite training or knowledge to decide if and when a nurse
should administer medication to a psychiatric patient such as Plaintiff. However, as to any
alleged negligence for her failure to timely treat Plaintiff’s ankle injury, Plaintiff may establish
that Nurse Cabasa knew of his fracture and failed to timely send him to the emergency room.
This is a decision which the Court finds may be judged by common knowledge. See Natale v.
Camden County Corr. Facility, 318 F.3d 575, 580 (3d Cir. 2003) (holding that the common
knowledge exception applied where a detainee’s physician failed to administer insulin to a him
for 21 hours, even though the physician knew that detainee was an insulin-dependent diabetic).
Therefore, the Court denies summary judgment as to Defendant Cabasa on this count.
Finally, the Court will deny summary judgment to Defendant Fisher. Fisher was
employed as a “human services technician” during the event in question, and thus is not a
medical professional for the purposes of a medical negligence claim. See N.J. Stat. Ann. §
2A:53A-26. Fisher has not convinced the Court that no genuine issue of material fact exists as to
whether he was negligent when he placed Plaintiff in the PRT. Specifically, Plaintiff and
Defendant Fisher disagree as to whether Fisher stood on Plaintiff’s ankle during the PRT, thus
breaching his duty of care and proximately leading to his ankle injury. This is a matter for the
jury to decide. The Court will deny summary judgment as to Defendant Fisher for this cause of
action.
24
IV.
CONCLUSION
For the reasons stated above, the Court will grant in part and deny in part Defendants’
motion. An appropriate order shall issue today.
Dated: 10/14/2014
s/ Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
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