SHUSTER v. CABANAS et al

Filing 52

OPINION. Signed by Judge Renee Marie Bumb on 7/19/13. (dd, )

NOT FOR PUBLICATION

[Dkt. No. 36]

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

BORIS SHUSTER,
Plaintiff,
v.
DR. ROBERT CABANAS, DR. ABIGAIL
LOPEZ DE LASALLE,IBE CHIGOZIE,
P.A., LIEUTENANT KENNETH PERNELL,
and UNITED STATES OF AMERICA,

Civil Action No.
11-1764(RMB/JS)

OPINION

Defendants.

Appearances:
Charles P. Montgomery
Earp Cohn P.C.
20 Brace Road, 4th Floor
Cherry Hill, NJ 08034
Attorneys for the Plaintiff
Colette R. Buchanan
Office of the United States Attorney
970 Broad Street, Suite 700
Newark, NJ 07102
Attorneys for Defendants
Bumb, UNITED STATES DISTRICT JUDGE:
Plaintiff Boris Shuster (“Plaintiff”) brings this suit
against individual defendants Dr. Robert Cabanas (“Cabanas”),
Dr. Abigail Lopez de LaSalle (“LaSalle”), Ibe Chigozie (“Ibe”),
P.A., and Lieutenant Kenneth Pernell (“Pernell”) (collectively,
the “Individual Defendants”) and the United States of America

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(collectively, the “Defendants”). Defendants have moved to
dismiss the claims and, in the alternative, summary judgment.
For the reasons that follow, the Defendants’ motion is GRANTED
in part and DENIED in part.
I.

Background
A.

Factual

Plaintiff is a former inmate at the Federal Correctional
Institution at Fort Dix, New Jersey (“FCI”). [Docket No. 2,
First Amended Complaint (“FAC” or the “Complaint”) at ¶ 18].
On December 5, 2008, Defendant Cabanas, a dentist and
Captain in Public Health Services, performed a dental procedure
to remedy the plaintiff’s dental pain. Plaintiff alleges that
Cabanas either: (1) failed to properly supervise the inmates who
served as his assistants and were responsible for sterilizing
his dental instruments; or (2) Cabanas was negligent in
performing the actual operation. (FAC at ¶¶ 19, 42). Plaintiff
alleges that, as a consequence of the procedure, he experienced
post-operative pain and swelling necessitating hospitalization
on December 17, 2008. (FAC at ¶¶ 21-22). There, the Plaintiff
was diagnosed with an infection and had two teeth extracted.
(FAC at ¶ 23).
Plaintiff was discharged from the hospital and returned to
FCI on January 5, 2009.

[FAC at ¶ 30].

LaSalle, the medical

coordinator of FCI, recommended that Plaintiff be housed in

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sanitary conditions and treated for 19 days with intravenous
antibiotic. (FAC at ¶¶ 29-30).

According to LaSalle, the

observatory room was the “only place the necessary sanitary
conditions could be assured” and LaSalle ordered that Plaintiff
be held in the observatory room.

(FAC at ¶ 30).

LaSalle’s

directive was followed and Plaintiff was placed in the
observatory room.

(FAC at ¶ 30).

However, after one night in

the observatory room, Defendant Pernell, a Lieutenant at FCI,
ordered the plaintiff moved to a disciplinary room in the
Special Housing Unit (“SHU”). (FAC at ¶ 31).

Plaintiff alleges

that this room was “dirty,” that “a constant dust cloud blew
into the cell from the vents” and that “it stank of dried
urine.” (FAC at ¶ 31). Although the Plaintiff petitioned
Defendant LaSalle for relocation back to the observatory room,
he received no response and continued to be lodged in the SHU.
(FAC at ¶ 31.)
Plaintiff experienced headaches and vomiting during his
confinement and also appears to have requested morphine from
Defendant Ibe, a physician assistant, to assist in pain
management. (FAC at ¶¶ 32, 49).

While the Plaintiff continued

to complain of nausea and difficulty eating, the medical staff
took no action.

(FAc at ¶¶ 34-35).

In the interim, the

Plaintiff alleges that his i.v. was not cleaned until January
13, 2009, roughly two weeks from the moment of his discharge.

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(FAC at ¶ 36). On February 5, 2009, the medical staff discovered
that the i.v. antibiotics had eaten at his stomach lining. (FAC
at ¶ 37). And, on June 8th, 2009, the Plaintiff was examined by
an oral surgeon as a follow up for his infection and it was
determined that the Plaintiff would require years of
rehabilitation. (FAC at ¶ 38).
B.

Procedural

On April 5, 2010, the Plaintiff filed a claims notice under
the Federal Tort Claims Act with the Federal Bureau of Prisons
(“BOP”). [Docket No. 43].

In the notice, Plaintiff alleged

that: (1) he had suffered physical injuries as a result of
“deprivation of medical care, negligence, mal-practice, and
deliberate indifference to [his] medical needs under the . . .
Federal Tort Claims Act”; (2) LaSalle was deliberately
indifferent to his medical needs; (3) he complained of pain to
Ibe of pain, but his complaint was ignored; (4) he was moved, by
Pernell, to SHU despite the fact that he was supposed to remain
in the observatory because it was a clean and sterile
environment; (5).

Id.

On October 1, 2010, Regional Counsel for

BOP denied Plaintiff’s tort claim and indicated that Plaintiff
was free to pursue his claim in federal district court.
Plaintiff subsequently filed this action.
In this action, Plaintiff’s alleges that: (1) the
Individual Defendants violated Plaintiff’s Eight Amendments

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rights by exercising deliberate indifference to Plaintiff’s
serious medical needs and are liable under Bivens v. Six Unknown
Fed. Narcotics Agents, 403 U.S. 388 (1971); and (2) that the
United States is liable for medical malpractice under the
Federal Tort Claims Act.

Defendants have moved to dismiss under

Federal Rule of Civil Procedure 12(b)(6) and, in the
alternative, for summary judgment.

Defendants submitted

extrinsic evidence in support of their motion.
II.

Standard
Defendants moved for dismissal under Federal Rules of Civil

Procedure 12(b)(1) and 12(b)(6) and, in the alternative, for
summary judgment.

Because Defendants submitted evidence in

support of their motion, and that evidence was extrinsic to
Plaintiff’s Complaint, this Court must treat Plaintiff’s motion
for summary judgment if it is to consider any of the extrinsic
evidence.

See Fed. R. Civ. Pro. 12(d)(stating “if on a motion

under Rule 12(b)(6) or 12(c), matters outside the pleadings are
presented to and not excluded by the court, the motion must be
treated as one for summary judgment.”); Johnson v. N.J. Dep’t of
Corr., 2013 U.S. Dist. LEXIS 64853 (D.N.J May 7, 2013)(citing
Reyes v. Sobina, 333 F. App’x 661, 662 n.1 (3d Cir. 2009)). This
Court can, and will, do so here because Plaintiff was on notice
that this Court could treat Defendants’ motion as one for
summary judgment, given the Defendants’ submission of outside

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materials and their invitation to treat their motion as one for
summary judgment.

Latham v. United States, 306 F. App’x 716,

718 (3d Cir. 2009)(holding that court may do so, so long as the
Plaintiff had sufficient notice that this Court could treat
Defendants’ motion as one for summary judgment).
Summary judgment is appropriate only if the record shows
that “there is no genuine issue as to any material fact and that
the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. Pro. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). A dispute is genuine if “the evidence is such that a
reasonable jury could return a verdict for the non-moving
party.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). In evaluating the evidence, the Court must view the
inferences to be drawn in the light most favorable to the
nonmoving party. Curley v. Klem, 298 F. 3d 271, 276-77 (3d Cir.
2002). However, the non-moving party must “go beyond the
pleadings and by her own affidavits, or by the depositions,
answers to interrogatories, and admissions on file, designate
specific facts showing that there is a genuine issue for trial.”
Celotex Corp., 477 U.S. at 324.
III. Discussion
Defendants have moved for dismissal of all of Plaintiffs’
claims.

The Court first addresses the claims against the

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Individual Defendants.

It then addresses the claim against the

United States.
A.

Claims Against The Individual Defendants

Defendants argue that all of the claims against the
Individual Defendants must be dismissed for failure to exhaust
administrative remedies and on other grounds.

Because this

Court agrees that Plaintiff’s failure to exhaust administrative
remedies bars these claims, it only addresses Plaintiff’s
failure to exhaust and does not address Defendants’ other
grounds for dismissal.
Under the Prison Litigation Reform Act, inmates are
required to exhaust their administrative remedies for all suits
based on prison life, including Bivens suits.

Perez v. Turner,

2013 WL 3216147, at *7 (D.N.J. June 25, 2013).

Exhaustion of

administrative remedies requires the completion of a four step
process: (1) an inmate must first attempt to informally resolve
his claim; (2) if dissatisfied, he must then file a written
request to the warden within 20 days of the event at issue; (3)
if dissatisfied with the warden’s response, he must then appeal
his complaint to the Regional Director of the Bureau of Prisons
within 20 days of the warden’s response; and (4) if dissatisfied
with the Regional Director’s response, he must then appeal to
the BOP’s General Counsel within 30 days of the response.
Paulino-Duarte v. U.S., No. 11-1764, 2003 WL 22533401, at *3

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(S.D.N.Y. Nov. 7, 2003); 28 C.F.R. §§ 542.13, 542.14, 542.15.
Extensions of time are permitted where the inmate demonstrates a
valid reason for delay.

28 C.F.R. §§ 542.14 and 542.15.

Here, Defendants argue, and Plaintiff does not dispute,
that Plaintiff failed to follow the required administrative
procedure.

Plaintiff instead argues that: (1) he substantially

complied with the administrative procedure; (2) his lack of
compliance should be excused because, for a portion of the
period at issue, until he was released from SHU, he was
physically unable to avail himself of his administrative
remedies; and (3) his lack of compliance should be excused
because he erroneously believed, based on the BOP’s denial
notice’s direction that he could pursue an action in federal
district court, that he had exhausted his administrative
remedies.

With respect to Plaintiff’s first argument, while

“compliance with the administrative remedy scheme will be
satisfactory if it is substantial” Plaintiff’s compliance was
not substantial.
2000).

Nyhuis v. Reno, 204 F.3d 65, 77-78 (3d Cir.

Plaintiff failed to avail himself of the second and

fourth steps in the exhaustion process.

While courts have

relaxed the administrative exhaustion requirement where the
merits were “fully examined” by the “ultimate administrative
authority,” Plaintiff’s claims never reached the BOP’s General
Counsel’s Office, the ultimate authority in the administrative

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process.

See Camp v. Brennan, 219 F.3d 279, 281 (3d Cir.

2000)(only excusing failure to administratively exhaust where
allegations had been fully examined by “ultimate administrative
authority”).

Instead, Plaintiff’s sole administrative effort

was his filing of the FTCA notice, which was fielded by the
BOP’s Regional Counsel.

That notice is insufficient to

establish administrative exhaustion of a Bivens claim.

Thrower

v. United States, No. 12-4386, 2013 WL 2392823, at *2 n.3 (3d
Cir. 2013)(finding that submission of FTCA claim, and response
by Regional Counsel, was insufficient to satisfy administrative
exhaustion requirement on Bivens claim).

With respect to

Plaintiff’s second argument, courts will excuse compliance where
inmates are rendered “unavailable” due to physical incapacity.
See Barrick v. PrisonHealth Systems/Medical, 335 F. App’x 153,
155 (3d Cir. 2009).

However, Plaintiff has failed to

demonstrate why his alleged physical incapacity, which was
limited in duration, should excuse his failure to follow the
administrative process, given the regulations’ accommodation for
delay for “valid reason.”

With respect to Plaintiff’s third

argument, while courts will excuse a failure to exhaust if
“special circumstances . . . justify the prisoner’s failure to
comply with administrative procedural requirements,” no such
special circumstances are present here.
App’x 28, 31 (2d Cir. 2010).

Dicks v. Chow, 382 F.

Plaintiff does not explain why he

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failed to attempt to avail himself of administrative remedies in
the period after his alleged physical incapacity had ended, but
before he received the notice from the Regional Counsel that
allegedly led him astray.

Plaintiff does not contend that he

was unaware of the proper administrative process.
Accordingly, Plaintiff’s Bivens claims are DISMISSED based
on Plaintiff’s failure to exhaust his administrative remedies.
B.

Medical Malpractice Claim

Defendants raise two arguments for dismissal of Plaintiff’s
medical malpractice claim.

First, Defendants argue that

Plaintiff has partially failed to exhaust this claim.

Second,

Defendants argue that Plaintiff has failed to establish the
elements of a medical malpractice claim.

The Court addresses

each argument in turn.
1.

Exhaustion

Claims under the FTCA, like Plaintiff’s Bivens claims must
be administratively exhausted prior to suit.

Miller v. United

States, No. 12-2745, 2013 WL 1397163, at *1 (3d Cir. Apr. 8,
2013).

A plaintiff may do so by presenting his claim to the

appropriate federal agency and receiving a final denial in
writing.

Id.

Notice is sufficient if the claimant gives the

agency “written notice of his or her claim sufficient to enable
the agency to investigate” and “places a value on his or her
claim.” Roma v. United States, 344 F.3d 352, 362-63 (3d Cir.

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2003).

Plaintiffs may not, however, present “one claim to the

agency and then maintain suit on the basis of a different set of
facts.”

Id. at 362.

Here, Defendants do not dispute that Plaintiff followed the
proper procedure by submitting a written notice to the Regional
Counsel.

Rather, they argue that Plaintiff failed to provide

notice of his complaints of nausea, inability to eat, stomach
cramps, or damage to Plaintiff’s stomach lining.

They argue

that, as a result, to the extent Plaintiff’s claims are premised
on these stomach-related issues, Plaintiff failed to exhaust
these claims.

While it is true that Plaintiff failed to detail

these issues, Plaintiff’s submission plainly described the
alleged medical negligence that is purportedly at the root of
these ailments.

As such, Plaintiff put Defendants on notice of

his claims sufficient to enable agency investigation of them.
Accordingly, Defendants’ motion for summary judgment on this
basis is DENIED.
2.

Medical Malpractice Elements

In suits under the FTCA, courts apply the substantive law
of the state where the acts or omissions occurred. See Richards
v. United States, 369 U.S. 1, 6 (1962); Ciccarone v. United
States, 486 F. 2d 253, 257 (3d Cir. 1973); McLoyd v. United
States, 2006 WL 2135837 (D.N.J. July 27, 2006). Because the
alleged malpractice here occurred at FCI-Fort Dix in New Jersey,

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New Jersey malpractice law governs. New Jersey law requires a
malpractice claim plaintiff to show that:
1) a duty of care existed;
2) the Defendant breached that duty;
3) that breached caused his or her injures; and
4) that he or she suffered damages.
Natale v. Camden Correctional Facility, 318 F. 3d 575, 579 (3d
Cir. 2003).
Defendants argue that Plaintiff failed to offer evidence of
medical negligence and failed to offer evidence that he suffered
an injury caused by that negligence, as required to establish
medical malpractice under New Jersey law. In support of this
argument, Defendants cite to medical records and a declaration
from LaSalle questioning the cause, severity, and even the
existence of some of Plaintiff’s claimed injuries. See Brief in
Support of Summary Judgment at pg. 27 (citing to LaSalle Decl.).
Plaintiff argues that summary judgment should be denied because
no discovery has been completed and he therefore has not had the
opportunity to investigate the medical documents, retain his own
medical expert, and depose the medical experts.1
Under Federal Rule of Civil Procedure 56(d), a party
opposing summary judgment on the basis that additional discovery

1

Plaintiff will also be required to timely submit an affidavit of merit.
Olivares v. United States, 447 F. App’x 347, 353 (3d Cir.
2011)(requiring affidavit of merit for FTCA medical malpractice claim).

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is warranted must “show by affidavit or declaration that . . .
it cannot present facts essential to justify its opposition” and
“indicate to the district court its need for discovery, what
material facts it hopes to uncover and why it has not previously
discovered the information.” Abulkhair v. Citibank & Associates,
434 F. App’x 58, 61-62 (3d Cir. 2011); Fed. R. Civ. P. 56(d).
Here, Plaintiff has provided an affidavit indicating that
he needs discovery to have the relevant medical records reviewed
by a medical expert and the opportunity to depose the Individual
Defendants.

That discovery is: (1) necessary to enable

Plaintiff to support his malpractice claim; and (2) largely
unavailable to Plaintiff because key information is solely in
the possession of the Defendants and Plaintiff has not had an
opportunity to conduct any discovery.

Accordingly, Plaintiff

has satisfied the requirement that he demonstrate by affidavit
or declaration that he cannot present facts essential to justify
its opposition and summary judgment is not warranted at this
time.

Accordingly, Defendants’ motion for summary judgment on

this basis is DENIED.
II.

Conclusion
For the foregoing reasons, Defendants’ motion is GRANTED,

in part, and DENIED, in part, as described above.
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

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Dated: July 19, 2013

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