PEREZ v. TURNER et al

Filing 84

ORDER granting in part and denying in part the United States 59 Motion for Summary Judgment; granting the motion to dismiss Pltf's Bivens claims; all Bivens claims are DISMISSED W/ PREJUDICE. Pltf shall have 30 days to file an Amended Complaint. Signed by Judge Robert B. Kugler on 6/25/2013. (drw)

NOT FOR PUBLICATION

(Doc. Nos. 37, 59, 61)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
_____________________________________
:
MIKE PEREZ
:
Civil No. 11-6833 (RBK/AMD)
:
Plaintiff,
:
ORDER
:
v.
:
:
NICOLLETA TURNER, et al.
:
:
Defendants.
:
____________________________________ :
KUGLER, United States District Judge:
THIS MATTER having come before the Court upon certain Defendants’ motion to
dismiss Plaintiff’s causes of action for failure to state a claim upon which relief can be granted
and for lack of subject matter jurisdiction (Doc. No. 37) and upon the United States’ motion for
summary judgment on Plaintiff’s Federal Tort Claims Act (“FTCA”) claims (Doc. No. 59), and,
finally, upon Plaintiff’s motion to stay the Court’s ruling on the United States’ summary
judgment motion (Doc. No. 60), and the Court having considered the moving papers and
responses thereto; and for the reasons expressed in the Opinion issued this date;
IT IS HEREBY ORDERED that the United States motion for summary judgment is
GRANTED IN PART AND DENIED IN PART. The motion is granted with respect to
Plaintiff’s FTCA claim arising out of a November 2009 incident with Defendant Turner. It is
denied with respect to his FTCA claim arising out of the medical care he received from

Defendants Turner, Patel, and Hittie. Plaintiff shall file and serve upon Defendants an Affidavit
of Merit supporting these medical malpractice claims within thirty (30) days.
IT IS HEREBY FURTHER ORDERED that the motion to dismiss Plaintiff’s claims
asserted under Bivens v. Six Unknown Named Agens of Federal Bureau of Narcotics, 403 U.S.
388 (1971) is GRANTED. All of Plaintiff’s Bivens claims are DISMISSED WITH
PREJUDICE, with the exception of his Eighth Amendment deliberate indifference claims
against Defendants Turner and Patel in their individual capacities, which is DISMISSED
WITHOUT PREJUDICE. Plaintiff shall have thirty (30) days in which to file an Amended
Complaint against these two individuals that conforms to the legal standard for Eighth
Amendment deliberate indifference liability set forth in the Court’s accompanying Opinion. IT
IS HEREBY FURTHER ORDERED that Plaintiff’s motion to stay is DENIED.

Dated:

6/25/2013

/s/ Robert B. Kugler
_
ROBERT B. KUGLER
United States District Judge