CATLETT v. NEW JERSEY STATE POLICE et al

Filing 46

OPINION. Signed by Chief Judge Jerome B. Simandle on 3/11/2013. (tf, )

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

AMY K.Z. CATLETT,
Plaintiff,

HON. JEROME B. SIMANDLE
Civil No. 12-153 (JBS/AMD)

v.
NEW JERSEY STATE POLICE, et
al.,

OPINION

Defendants.
APPEARANCES:
Ms. Amy K.Z. Catlett
3137 Swan Drive
Vineland, NJ 08361
Plaintiff Pro Se
Mark A. Petraske, Esq.
BUCKLEY THEROUX KLINE & PETRASKE, LLC
932 State Road
Princeton, NJ 08540
Attorney for Defendant Diorio
Michael G. Halpin, Esq.
GROSSMAN & HEAVEY
1608 Highway 88 West, Suite 200
Brick, NJ 08721
Attorney for Defendants Stavoli and South Jersey Healthcare

SIMANDLE, Chief Judge:
I.

Introduction
Plaintiff Amy K.Z. Catlett, pro se, brings this suit

alleging a series of constitutional and common law tort claims
against state and municipal police officers, emergency medical
technicians (“EMTs”), a nurse, a doctor, a medical center, and
other unidentified individuals. Plaintiff claims that she was

tortiously and unconstitutionally detained by police and medical
professionals and was administered unwanted medical treatment
upon suspicion that she was suicidal. Before the Court is a
motion to dismiss by Defendant Dominic Diorio, M.D. [Docket Item
29], which is joined by Defendants Diane Stavoli, LPN, and South
Jersey Healthcare, who rely primarily on Dr. Diorio’s
submissions. [Docket Item 34.] Plaintiff Catlett opposes the
motions and moves to amend the Complaint. [Docket Item 41.]
The key inquiries for the Court are (1) whether Plaintiff
sufficiently pleads that Defendant Diorio acted under color of
state law, (2) whether New Jersey law immunizes Dr. Diorio from
liability for state-law tort claims, and (3) whether Plaintiff’s
proposed Amended Complaint cures deficiencies noted by this
Court. For the reasons explained below, the Court will grant the
motion to dismiss in part and deny without prejudice in part, and
deny without prejudice Plaintiff’s motion to amend.
II.

Background
A. Facts
The facts of this case and all of Plaintiff’s claims were

summarized in this Court’s previous Opinion1 and will be
recounted only as necessary to decide the present motions.
In the afternoon on November 21, 2009, a state trooper

1

Catlett v. New Jersey State Police, No. 12-153, 2012 WL
3757005, at *1-*2 (D.N.J. Aug. 28, 2012). See also Docket Item
30.
2

received an anonymous tip that Plaintiff had posted a suicidal
message on the social networking website, Facebook. [Compl. ¶¶ 2,
13.] Vineland police officers and Vineland EMTs went to
Plaintiff’s residence and delivered her to the South Jersey
Healthcare Regional Medical Center (“SJRMC”), believing that she
was suicidal. [Id. ¶¶ 13-14.] Plaintiff asserts the anonymous tip
as to her alleged suicidal posting was “baseless and wrongfully .
. . conveyed” to local police and medical personnel. [Id. ¶ 14.]
Plaintiff asserts that she acted calmly and peaceably at all
times, but that Defendant Diorio nonetheless ordered nurse
Defendant Stavoli and others to “forcibly retrain[]” her.2 [Id.
¶¶ 39-42.] Plaintiff asserts that Nurse Stavoli “was particularly
overzealous” and, while restraining her, “caus[ed] injury to
Plaintiff’s mouth and left shoulder . . . .” [Id. ¶ 43.] At some
point, Plaintiff was transferred to “the Bridgeton facility” for
further assessment or treatment.3 [Id. ¶ 38.] Plaintiff asserts
she was “released . . . during the late evening hours . . . .”
[Id. ¶ 18.]

2

“[I]t is upon information and belief that Defendant
Dominic Diorio, M.D. ultimately ordered that Plaintiff be
physically restrained.” [Id. ¶ 41.]
3

Defendant Diorio, in his motion to dismiss, clarifies that
Plaintiff was sent to the “Crisis unit at the Bridgeton location
of South Jersey Health System.” [Def. Mot. Br. at 13.] Plaintiff
asserts that at the Bridgeton facility she met with
“appropriately trained individuals” who assessed her “status.”
[Compl. ¶ 38.]
3

B. Complaint & procedural history
Plaintiff contends that, as a result of the incident, she
suffered physically and mentally, sustained “temporary and
permanent injuries, . . . [and] a loss of earnings and earning
capacity,” among other damages. [Id. ¶ 44.] The Complaint names
Defendant Diorio in several counts. Count Six seeks damages from
Dr. Diorio, Nurse Stavoli and South Jersey Healthcare, among
other Defendants, for alleged injuries resulting from her
treatment at the South Jersey Healthcare Regional Medical Center
in Vineland. [Id. ¶¶ 37-44.] Count Seven seeks punitive damages
against the medical Defendants for intentional infliction of
severe mental and emotional distress and physical pain. [Id. ¶¶
45-46.] Count Eight seeks damages from the medical Defendants for
malpractice. [Id. ¶¶ 47-55.] Count Nine seeks damages from South
Jersey Healthcare under theories of negligent hiring, training
and supervision. [Id. ¶¶ 56-60.]
Defendant New Jersey State Police (“NJSP”) first moved for
dismissal and summary judgment, which the Court granted,
terminating the NJSP from the suit. Catlett, 2012 WL 3757005, at
*2-*4. The Court denied without prejudice Plaintiff’s motion for
leave to file an amended complaint, because the proposed amended
complaint repeated the deficient claims against Defendant NJSP.
Id. at *4. The Court noted that Plaintiff could file a renewed
motion with a proposed amended complaint that removed those

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futile claims. Id. Plaintiff did not so move until opposing
Defendant Diorio’s present motion.
The Court denied Defendant Diorio’s first motion to dismiss
all common law claims against him. [Docket Item 20.] Dr. Diorio
argued that the affidavit of merit produced by Plaintiff was
invalid because it was signed by the affiant’s spouse rather than
the affiant himself, but the Court found that Plaintiff’s
affidavit substantially complied with the Affidavit of Merit
statute. Catlett, 2012 WL 3757005, at *6.
Defendant Diorio now brings this second motion to dismiss
for failure to state a claim, under Fed. R. Civ. P. 12(b)(6).
[Docket Item 29.] He argues two points: (1) the Complaint fails
to plead that Dr. Diorio was acting under color of state law, and
therefore the constitutional claims against him should be
dismissed, and (2) New Jersey law immunizes medical providers
from tort liability when they protect or commit emotionally
disturbed persons who threaten to harm themselves or others.
[Def. Mot. Br. at 14-15.] Defendants Stavoli and South Jersey
Healthcare “join[] in the notice of motion” filed by Dr. Diorio,
arguing (1) that all claims for vicarious liability against South
Jersey Healthcare must be dismissed if the underlying claims
against Dr. Diorio are dismissed and (2) that South Jersey
Regional Medical Center is not a state actor, for purposes of
civil rights claims. [Docket Item 34.] Plaintiff opposes the

5

motions and files a cross-motion to amend the complaint. [Docket
Item 41.]
III.

Standard of review
Under Fed. R. Civ. P. 12(b)(6), the court must “accept all

factual allegations as true, construe the complaint in the light
most favorable to the plaintiff, and determine whether, under any
reasonable reading of the complaint, the plaintiff may be
entitled to relief.” Fleisher v. Standard Ins. Co., 679 F.3d 116,
120 (3d Cir. 2012). The complaint must contain “sufficient
factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (internal quotation marks omitted). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. Allegations
that are no more than legal conclusions are not entitled to the
same assumption of truth. Bistrian v. Levi, 696 F.3d 352, 365 (3d
Cir. 2012). To determine if a complaint meets the pleading
standard, the Court must strip away conclusory statements and
“look for well-pled factual allegations, assume their veracity,
and then determine whether they plausibly give rise to an
entitlement to relief.” Id. (internal quotation marks omitted).
A trial court has the discretion to consider evidence
outside the complaint in ruling on a motion to dismiss, but if

6

the court does not exclude the outside matters, the motion
generally should be considered one as under Fed. R. Civ. P. 56
and determined in accordance with summary judgment principles.
Kulwicki v. Dawson, 969 F.2d 1454, 1462 (3d Cir. 1992). See also
Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 559-60
(3d Cir. 2002) (stating that documents that are referred to in
the plaintiff’s complaint and are central to the claim are
considered part of the pleading, even if not attached to the
complaint).
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.” Fed. R. Civ.
P. 56(a).
IV.

Discussion
A. Whether Dr. Diorio acted under color of state law
To recover under 42 U.S.C. § 1983, a plaintiff must

establish that the defendant acted under color of state law to
deprive the plaintiff of a right guaranteed by the Constitution.
Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011). Similarly,
to recover under the New Jersey Civil Rights Act (“NJCRA”), N.J.
Stat. Ann. § 10:6-1, et seq., a plaintiff must show that she was
deprived of rights secured by the constitution or laws of New
Jersey, by a person “acting under color of law . . . .” § 10:62(c).

7

Defendant Diorio argues that any claims against him under §
1983 or the NJCRA must be dismissed because “plaintiff has not
and cannot allege that Dr. Diorio or South Jersey Regional
Medical Center were acting under color of law.” [Def. Mot. Br. at
16.] Dr. Diorio asserts, and South Jersey Healthcare reiterates,
that the SJRMC is a private, charitable institution, and
therefore, neither Dr. Diorio nor South Jersey Healthcare are
state actors. [Id.; Docket Item 34.] He urges the Court to
dismiss all § 1983 and NJCRA claims against him.
Plaintiff appears to concede the point that the medical
center is not a public hospital. Rather, she argues that Dr.
Diorio acted under color of state law because “the police
‘exercised coercive power or ... provided such significant
encouragement, either overt or covert, that [Defendant Diorio’s]
choice [was] in law ... that of the State.’” [Pl. Opp’n at 2
(quoting Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52
(1999)).]
The U.S. Supreme Court has stated that “a deed of an
ostensibly private organization or individual is to be treated
sometimes as if a State had caused it to be performed” but only
if there exists such a “close nexus” between the State and the
challenged action that the private behavior “may be fairly
treated as that of the State itself.” Brentwood Acad. v.
Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288, 296

8

(2001). Whether conduct is fairly attributable to the state “is a
matter of normative judgment,” but the Supreme Court explained:
“We have treated a nominally private entity as a state actor when
it is controlled by an ‘agency of the State,’ when it has been
delegated a public function by the State, when it is ‘entwined
with governmental policies,’ or when government is ‘entwined in
[its] management or control[.]’” Id. (citations omitted).
There is no basis for finding state action in this case.
There are no factual allegations in the Complaint, nor does
Plaintiff argue now, that Dr. Diorio or the Southern Jersey
Healthcare is controlled by a state agency, or that the
Defendants are “entwined” with governmental policies or that the
government is entwined in the management or control of the
medical center. Likewise, the medical center cannot be said to be
a state actor simply because it performs services that benefit
the public. See Zarebicki v. Devereux Found., No. 09-6205, 2011
WL 2582140, at *4 (E.D. Pa. June 30, 2011) (stating that in the
Third Circuit “the delegation of a ‘public function’ to a private
entity, without more, is insufficient to establish state action,”
citing Benn v. Universal Health Sys., Inc., 371 F.3d 165, 172 (3d
Cir. 2004)); Cardio-Med. Assocs., Ltd. v. Crozer-Chester Med.
Ctr., 536 F. Supp. 1065, 1091 n.37 (E.D. Pa. 1982) (holding that,
although private hospitals perform a public function, they do not
act under color of state law, and citing several federal district

9

and circuit court opinions in accordance with that conclusion).
The Complaint, fairly read in the light most favorable to
Plaintiff, suggests that police and EMTs communicated to Dr.
Diorio their suspicion that Plaintiff harbored suicidal thoughts,
and Dr. Diorio allegedly responded by ordering her to be
restrained temporarily before she was transferred to another
facility for proper assessment or treatment. There are no factual
allegations in the Complaint that plausibly suggest that the
police or EMTs coerced, pressured, dictated or encouraged Dr.
Diorio’s treatment decisions in any way. The Complaint merely
alleges that police and EMTs communicated information to Dr.
Diorio to enable him to treat Plaintiff. Dr. Diorio’s treatment
decisions cannot fairly be attributed to the state itself.4
Therefore, all claims against Dr. Diorio under § 1983 or the
NJCRA must be dismissed. Any claims against Defendants Stavoli or
South Jersey Healthcare predicated upon them acting under color
of state law must be dismissed as well.
B.

Whether New Jersey law immunizes Dr. Diorio from
liability for state-law tort claims

4

Defendant Diorio attaches several exhibits to his motion
that contradict Plaintiff’s factual account of November 21 and
allegedly lend support to his assertion that he acted
appropriately in treating Plaintiff. A motion to dismiss is not
the proper vehicle to supply the Court with evidence outside of
the pleadings. However, the Court need not convert this motion to
one for summary judgment because the Court concludes, without
considering any of Dr. Diorio’s outside evidence, that he was not
a state actor for purposes of § 1983 or the NJCRA.
10

Defendant Diorio argues that New Jersey law immunizes both
medical practitioners who arrange for voluntary or involuntary
commitment of a patient and those who are involved in the
commitment process. [Def. Mot. Br. at 20.] Dr. Diorio first
points to N.J. Stat. Ann. § 2A:62A-16(a), which states in
relevant part:
Any person who is licensed in the State of New Jersey
to practice . . . medicine . . . is immune from any
civil liability for a patient’s violent act against
another person or against himself unless the
practitioner has incurred a duty to warn and protect
the potential victim as set forth in subsection b. of
this section and fails to discharge that duty as set
forth in subsection c. of this section.
The duty to warn and protect is triggered in two circumstances:
(1) The patient has communicated to that practitioner a
threat of imminent, serious physical violence against a
readily identifiable individual or against himself and
the circumstances are such that a reasonable
professional in the practitioner’s area of expertise
would believe the patient intended to carry out the
threat; or
(2) The circumstances are such that a reasonable
professional in the practitioner’s area of expertise
would believe the patient intended to carry out an act
of imminent, serious physical violence against a
readily identifiable individual or against himself.
N.J. Stat. Ann. § 2A:62A-16(b). The licensed medical professional
“shall discharge the duty to warn and protect” by arranging for
the patient to be admitted voluntarily to a psychiatric unit or
by initiating procedures for involuntary commitment, among other
methods not relevant here. N.J. Stat. Ann. § 2A:62A-16(c)(1)-(2).
Dr. Diorio also points to N.J. Stat. Ann. § 30:4-27.7, which

11

states that a “law enforcement officer, screening service,
outpatient treatment provider or short-term care facility
designated staff person . . . acting in good faith . . . who
takes reasonable steps to assess, take custody of, detain or
transport an individual for the purposes of mental health
assessment or treatment is immune from civil and criminal
liability.”
Defendant Diorio argues that Plaintiff has failed to plead
facts that suggest these immunities do not apply to Dr. Diorio.
[Def. Mot. Br. at 21.] He states that he took appropriate action
to prevent harm to Plaintiff and others when acting on “reports
from the patient and the police of statements of self-harm and
where the patient attacked a nurse in the hospital.” [Id.] Dr.
Diorio concludes that the claim is frivolous and must be
dismissed. [Id.]
The Complaint makes no mention of an alleged attack by
Plaintiff against Nurse Stavoli, nor does it contain any
statements by Plaintiff that show she threatened imminent,
serious physical injury to herself or others. Plaintiff pleads,
to the contrary, that all reports about her suicidal thoughts
were “baseless” [Compl. ¶ 15] and that at all times she “act[ed]
peaceably and in a lawful manner.” [Compl. ¶ 16; see also id. ¶
39.] The basis for Defendant Diorio’s assertion of immunity

12

simply cannot be gleaned from the Complaint itself.5
Defendant Diorio attaches several exhibits to his motion to
contradict Plaintiff’s factual assertions and to demonstrate that
Defendant acted reasonably in ordering Plaintiff’s restraint,6
but such evidence cannot be considered on a motion to dismiss,
without converting the motion to one for summary judgment. These
exhibits cannot be considered part of the pleadings because they
are not integral to the Complaint and the Complaint does not rely
on any police, EMT or medical reports. It is impossible to
conclude, from the Complaint alone, that Defendant Diorio acted

5

Defendant Diorio advances the curious argument that,
because a grand jury indicted Plaintiff for causing injury to
Nurse Stavoli [see Def. Mot. Br. Ex. E (“Indictment”)], somehow
that indictment is conclusive on the issue of whether Plaintiff
represented harm to others and the doctrine of res judicata bars
the Court from reaching a different conclusion. By definition an
indictment is not a “final judgment on the merits” and therefore
res judicata does not apply here. See United States v. 5
Unlabeled Boxes, 572 F.3d 169, 173 (3d Cir. 2009) (stating that
res judicata requires a showing of a final judgment on the
merits).
6

Among Dr. Diorio’s exhibits are a Vineland Police Report,
a Vineland Emergency Medical Service Patient Report, Plaintiff’s
Emergency Department Record, an Emergency Room Report
Continuation Sheet and a Restraint Order Form. [Def. Mot. Br. Ex.
B-D, F.] These exhibits provide some evidence that Plaintiff
“bit” Nurse Stavoli [Id. Ex. D at 2], and that Plaintiff “became
aggressive, physically abusive and refused to cooperate” and that
she was a “risk to self and others.” [Id. Ex. F.] There is
evidence that Plaintiff “ran out” of the emergency room into the
parking lot and attempted “to hit and kick” the security guards
that retrieved Plaintiff. [Id. Ex. G.] There is also evidence to
contradict Plaintiff’s assertion that she was calm throughout the
process, including that she “scream[ed] no” in response to a
request to provide a urine sample. [Id.]
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in good faith and took reasonable steps to assess and detain
Plaintiff such that he qualifies for the immunity under § 30:427.7.7
It is within the Court’s discretion to consider matters
outside the Complaint, when attached to a motion to dismiss. See
Kulwicki, 969 F.2d at 1462; Garlanger v. Verbeke, 223 F. Supp. 2d
596, 606 n.4 (D.N.J. 2002) (stating that the decision to convert
a motion to dismiss to a motion for summary judgment is
discretionary and, if made, the plaintiff must be afforded
adequate notice that the motion to dismiss will be considered
under Rule 56, citing 5A Wright & Miller, Federal Practice &
Procedure § 1366 (1990)). Here, Plaintiff has filed a motion to
amend the Complaint. [Docket Item 28.] As explained below in Part
IV.C, because the Court will afford Plaintiff the opportunity to
file a renewed motion to amend the Complaint, the Court declines
to convert the present motion to dismiss into a motion for
summary judgment. The motion to dismiss the state-law claims
therefore is denied without prejudice.

7

The other statute referenced by Defendant Diorio, §
2A:62A-16, does not appear to be relevant to this case. That
statute immunizes a doctor “from any civil liability for a
patient’s violent act against another person or against himself,”
but no claim has been asserted against Dr. Diorio for damages
caused by a violent act of Plaintiff against herself or others.
There is no allegation that Dr. Diorio failed to discharge his
duty to warn and protect Plaintiff or a target of Plaintiff’s
violence. Rather, Plaintiff asserts that she was injured by
Defendants and improperly detained or restrained.
14

C. Plaintiff’s motion to amend
Plaintiff has filed a motion to amend the Complaint and
attached a proposed Amended Complaint that removes the NJSP as a
defendant, consistent with this Court’s previous opinion, and
adds the allegation that Dr. Diorio acted under color of state
law, among other changes. [Docket Item 41.] As explained supra,
Part IV.A, neither Dr. Diorio, nor Nurse Stavoli, nor South
Jersey Healthcare acted under color of state law, and amending
any claims against those Defendants under § 1983 or the NJCRA
would be futile. The Court is free to disregard conclusory labels
in pleadings that are not accompanied by the factual grounds that
support them. See Iqbal, 556 U.S. at 678 (stating that pleadings
that are “no more than conclusions, are not entitled to the
assumption of truth”). Therefore, Plaintiff’s motion to amend
will be denied without prejudice to file a new motion to amend,
along with a proposed Amended Complaint that cures the pleading
deficiencies noted in this Opinion as well as in the prior
Opinion.8

8

After briefing on this motion was complete, Defendants
Vineland Police Department and Vineland EMS (“Vineland
Defendants”) filed a motion to dismiss. [Docket Item 43.]
Plaintiff has not yet responded to that motion. Rather than
withholding the present Opinion, the Court instead will order
Plaintiff to refrain from filing any motion to amend, along with
a proposed Amended Complaint, until after the Vineland
Defendants’ motion to dismiss is decided. As the accompanying
Order will reflect, Plaintiff’s deadline to file a motion to
amend will be fourteen (14) days after the entry of the
forthcoming opinion and order decided the Vineland Defendants’
15

V.

Conclusion
Defendant Diorio’s motion to dismiss all claims against him

under § 1983 and the NJCRA will be granted. Similarly, any claims
against Defendants Stavoli or South Jersey Healthcare predicated
upon them acting under color of state law are likewise dismissed.
Defendant Diorio’s motion to dismiss tort claims against him
arising under state law will be denied without prejudice, as will
Plaintiff’s motion to amend. The Court will grant Plaintiff leave
to file a new motion to amend the Complaint, with a proposed
Amended Complaint consistent with this Opinion and with the prior
Opinion. Any motion to amend must be filed after the Court issues
an opinion deciding the Vineland Defendants’ motion to dismiss
[Docket Item 43] and cure deficiencies identified in the Court’s
prior opinion and in this Opinion and those, if any, identified
in the Court’s forthcoming opinion. An accompanying Order will be
entered.

March 11, 2013
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

motion. Any motion to amend and proposed Amended Complaint must
cure all pleading deficiencies noted in the Court’s previous
opinion, this Opinion and those, if any, in the Court’s
forthcoming opinion.
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