MARR v. CAPE MAY COUNTY CORRECTIONAL CENTER

Filing 8

OPINION FILED. Signed by Judge Noel L. Hillman on 6/8/15. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
:
:
Plaintiff,
:
:
v.
:
:
WARDEN LOMBARDO, et al.,
:
:
Defendants.
:
___________________________________:
FREDERICK MARR,

Civ. No.

12-4445 (NLH)
13-7444 (NLH)

OPINION

APPEARANCES:
Frederick Marr, # 912718/798096
New Jersey State Prison
P.O. Box 861
Trenton, NJ 08625
Plaintiff, pro se

HILLMAN, District Judge
Plaintiff Frederick Marr, formerly a pre-trial detainee
confined at Camden County Correctional Facility in Camden, New
Jersey, 1 brings this civil rights action under 28 U.S.C. § 1983
alleging inadequate medical care.

He seeks relief in the form

of monetary damages and medical treatment.

At this time, the

Court must review the Complaint, pursuant to 28 U.S.C. §
1915(e)(2), to determine whether it should be dismissed as
frivolous or malicious, for failure to state a claim upon which

1

Plaintiff is now confined at the New Jersey State Prison in
Trenton, New Jersey. According to the New Jersey Department of
Corrections Inmate Locator, Plaintiff was sentenced on November
14, 2014, after the date of this Complaint.

relief may be granted, or because it seeks monetary relief from
a defendant who is immune from such relief.

For the reasons set

forth below, the Court concludes that the Complaint should
proceed in part.
I.

BACKGROUND AND PROCEDURAL HISTORY

Plaintiff previously sought relief under § 1983 when he
filed suit as a pretrial detainee against the Cape May County
Correctional Center and other defendants in 2012. See Marr v.
Cape May County Correctional Center, et al., No. 12-4445 (NLH).
That Complaint, however, was dismissed as a result of this
Court’s sua sponte screening under 28 U.S.C. § 1915A.
Specifically, this Court determined that Plaintiff’s claims
against the Cape May County Correctional Center must be
dismissed with prejudice because “a county jail is not a
‘person’ subject to suit under 42 U.S.C. § 1983 pursuant to
Monell v. Dept. of Social Services of City of New York, 436 U.S.
658, 688-90 (1978).” Marr v. Cape May County Correctional
Center, et al., 12-4445 (NLH), Opinion 5, October 23, 2013, (ECF
No. 6) (citations omitted).
As to the remaining defendants, who were doctors and nurses
at the correctional facility, the Court found that the “factual
allegations [in the complaint did] not show that each (or any)
individual defendant intentionally refused to provide needed
medical treatment, intentionally delayed treatment for a non-

medical reason, or knowingly prevented him from receiving needed
or prescribed medical treatment.” Id. at 6.

Accordingly, the

Court dismissed the complaint for failure to state a claim, but
granted leave to amend within 45 days. Id. at 10.

The Order

dismissing the Complaint was entered on October 25, 2013; thus,
Plaintiff’s deadline for submission of an amended complaint was
December 9, 2013.
The Court then received a complaint from Plaintiff which
was dated November 29, 2013. (Compl. 13, ECF No. 1).

Plaintiff

paid the full filing fee associated with this Complaint and it
was given a new docket number, 13-7444 (NLH).

However, it

appears that this Complaint should not have been docketed as a
new case, but rather as an Amended Complaint in Plaintiff’s
previous case, Civil Case No. 12-4445 (NLH).

Unfortunately,

Plaintiff did not label his submission as an amended complaint,
nor did he reference his existing case by docket number.
Further confusing matters, Plaintiff paid another full filing
fee, which gave the impression that he intended this to be a new
civil suit.
The Court has reviewed the two complaints and supplemental
letters filed on each docket.

For the reasons set forth below,

the Court finds that the Complaint dated November 29, 2013 and
given Civil Case No. 13-7444 (ECF No. 1) should have been filed
as an amended complaint in Civil Case No. 12-4445.

First, the Complaint in this case (ECF No. 1) was dated
November 29, 2013.

Thus, pursuant to the prison mailbox rule,

see Pabon v. Mahanoy, 654 F.3d 385, 391 n. 8 (3d Cir. 2011), it
was filed within the 45 day time period for amendment provided
to Plaintiff by the Court in Civil Case No. 12-4445. See Marr v.
Cape May County Correctional Center, et al., 12-4445 (NLH),
Opinion 8, October 23, 2013, (ECF No. 6).

Also, the Complaint

in this case (ECF No. 1) names the same defendants as the
complaint in Civil Case No. 12-4445, plus three additional
defendants.

Furthermore, it appears that Plaintiff attempted to

follow the instructions given in the Court’s October 23, 2013
Order by asserting facts for each named defendant in the
subsequent Complaint, and by using the court-provided forms.
Finally, the Complaint in this case (ECF No. 1) specifically
references the previous federal suit.

With respect to previous

relief sought, Plaintiff states that he “filed in fed[eral]
court[,]” that the “jail was dismissed with pred[judice,]” and
that he had “45 days to file on everyone else and $400[.]”
(Compl. 11, ECF No. 1).
Taking this information as a whole, it appears to this
Court that Plaintiff was under the mistaken belief that the
dismissal of his previous complaint required the filing of a new
complaint within 45 days and the payment of another filing fee.

The Court did not recognize this mistake until it commenced
screening pursuant to 28 U.S.C. 1915A.
To remedy this mistake, the Court will consolidate the two
cases and Plaintiff will be refunded the filing fee paid in
connection with Civil Case No. 13-7444.
Plaintiff then submitted an Amended Complaint dated
December 16, 2013 (ECF No. 2), followed by a Second Amended
Complaint (ECF No. 3) in which he adds a final party, C.O.
Schank.

Plaintiff may not have known that when an amended

complaint is filed, it supersedes the original and renders it of
no legal effect, unless the amended complaint specifically
refers to or adopts the earlier pleading. See West Run Student
Housing Associates, LLC v. Huntington National Bank, 712 F.3d
165, 171 (3d Cir. 2013) (collecting cases); see also 6 CHARLES
ALAN WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE §
1476 (3d ed. 2008).

Accordingly, the Second Amended Complaint

(“SAC”) is the controlling document and will be screened by the
Court pursuant to 28 U.S.C. § 1915A.
In his SAC, Plaintiff alleges that he was denied medical
treatment and medication.

The majority of his complaints relate

to a particular incident, wherein Plaintiff contends that he was
deprived of the use of his wheelchair, which resulted in a fall.
Although he does not specify the extent of the injury sustained
in this fall, if any, he alleges that he was denied medical

treatment after the fall.

Plaintiff asserts causes of action

against: (1) Warden Lombardo; (2) Dr. Santillio; (3) Dr. Wynn;
(4) Head Nurse Kristy Ciekiersky; (5) Head Nurse Douglas Wyth;
(6) Nurse Toni Tees; (7) Nurse Joy Mitchel; (8) Nurse Lori Rosf;
(9) Nurse Eilean Medevitt; and (10) C.O. Schank.
II.

STANDARD OF REVIEW

A. Standard for Sua Sponte Dismissal
Per the Prison Litigation Reform Act, Pub. L. No. 104-134,
§§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996)
(“PLRA”), district courts must review complaints in those civil
actions in which a prisoner is proceeding in forma pauperis, see
28 U.S.C. § 1915(e)(2)(B), seeks redress against a governmental
employee or entity, see 28 U.S.C. § 1915A(b), or brings a claim
with respect to prison conditions, see 28 U.S.C. § 1997e.

The

PLRA directs district courts to sua sponte dismiss any claim
that is frivolous, is malicious, fails to state a claim upon
which relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief.
According to the Supreme Court’s decision in Ashcroft v.
Iqbal, “a pleading that offers ‘labels or conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will
not do.’” 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007)).

To survive sua sponte

screening for failure to state a claim 2, the complaint must
allege “sufficient factual matter” to show that the claim is
facially plausible. Fowler v. UPMS Shadyside, 578 F.3d 203, 210
(3d Cir. 2009) (citation 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.” Belmont v. MB
Inv. Partners, Inc., 708 F.3d 470, 483 n.17 (3d Cir. 2012)
(quoting Iqbal, 556 U.S. at 678).
In determining the sufficiency of a pro se complaint, the
Court must be mindful to accept its factual allegations as true,
see James v. City of Wilkes–Barre, 700 F.3d 675, 679 (3d Cir.
2012), and to construe it liberally in favor of the plaintiff,
see Haines v. Kerner, 404 U.S. 519, 520–21 (1972); United States
v. Day, 969 F.2d 39, 42 (3d Cir. 1992).

However, while pro se

pleadings are liberally construed, “pro se litigants still must
allege sufficient facts in their complaints to support a claim.”

2

“The legal standard for dismissing a complaint for failure to
state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) is the
same as that for dismissing a complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6).” Schreane v. Seana, 506 F. App’x
120, 122 (3d Cir. 2012) (per curiam) (citing Allah v.
Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)); Mitchell v.
Beard, 492 F. App’x 230, 232 (3d Cir. 2012) (per curiam)
(discussing 28 U.S.C. § 1997e(c)(1)); Courteau v. United States,
287 F. App’x 159, 162 (3d Cir. 2008) (discussing 28 U.S.C. §
1915A(b)).

Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013)
(citation omitted).
B. Section 1983 Actions
A plaintiff may have a cause of action under 42 U.S.C. §
1983 for certain violations of his Constitutional rights.
Section 1983 provides in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof
to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall
be liable to the party injured in an action at law,
suit in equity, or other proper proceeding for
redress, except that in any action brought against a
judicial officer for an act or omission taken in such
officer’s judicial capacity, injunctive relief shall
not be granted unless a declaratory decree was
violated or declaratory relief was unavailable.
Thus, to state a claim for relief under § 1983, a plaintiff
must allege, first, the violation of a right secured by the
Constitution or laws of the United States, and second, that the
alleged deprivation was committed or caused by a person acting
under color of state law. See Harvey v. Plains Twp. Police
Dep’t, 635 F.3d 606, 609 (3d Cir. 2011) (citations omitted); see
also West v. Atkins, 487 U.S. 42, 48 (1988)).
C. Actions for Inadequate Medical Care
Criminal pretrial detainees retain liberty interests firmly
grounded in the Due Process Clause of the Fourteenth Amendment.

See Hubbard v. Taylor, 399 F.3d 150 (3d Cir. 2005); Fuentes v.
Wagner, 206 F.3d 335, 341 (3d Cir. 2000).

Analysis of whether

such a detainee has been deprived of liberty without due
process, is governed by the standards set out by the Supreme
Court in Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60
L.Ed.2d 447 (1979). Hubbard, 399 F.3d at 157–60, 164–67;
Fuentes, 206 F.3d at 341–42.
The Third Circuit has analyzed pretrial detainees’ medical
care claims utilizing the Eighth Amendment deliberate
indifference standard. See Hubbard, 399 F.3d at 166 n.22;
Sylvester v. City of Newark, 120 F. App’x 419 (3d Cir. 2005);
Natale v. Camden County Corr. Facility, 318 F.3d 575, 581 (3d
Cir. 2003).

To state a claim, inmates must satisfy an objective

element and a subjective element. See Farmer v. Brennan, 511
U.S. 825, 834 (1994).

Specifically, an inmate must allege: (1)

a serious medical need; and (2) behavior on the part of prison
officials that constitutes deliberate indifference to that need.
Estelle, 429 U.S. at 106; Natale, 318 F.3d at 582.
To establish deliberate indifference, a prisoner must show
that the defendant was subjectively aware of the unmet serious
medical need and failed to reasonably respond to that need. See
Farmer, 511 U.S. at 837; Natale, 318 F.3d at 582.

Deliberate

indifference may be found where the prison official (1) knows of
a prisoner's need for medical treatment but intentionally

refuses to provide it; (2) intentionally delays necessary
medical treatment based on a non-medical reason; or (3)
deliberately prevents a prisoner from receiving needed medical
treatment. See Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.
1999).
“Deliberate indifference” is more than mere malpractice or
negligence; it is a state of mind equivalent to reckless
disregard of a known risk of harm. See Farmer, 511 U.S. at 837–
38.

Moreover, a prisoner's subjective dissatisfaction with his

medical care does not in itself indicate deliberate
indifference.

Andrews v. Camden County, 95 F. Supp. 2d 217, 228

(D.N.J. 2000); Peterson v. Davis, 551 F. Supp. 137, 145 (D. Md.
1982), aff'd, 729 F.2d 1453 (4th Cir. 1984).
III. DISCUSSION
As an initial matter, the Court finds that Plaintiff has
alleged a serious medical need.

Serious medical needs include

those that have been diagnosed by a physician as requiring
treatment or that are so obvious that a lay person would
recognize the necessity for a doctor's attention, and those
conditions which, if untreated, would result in lifelong
handicap or permanent loss. See Hudson v. McMillian, 503 U.S. 1,
9 (1992); Atkinson v. Taylor, 316 F.3d 257, 272–73 (3d Cir.
2003); Monmouth County Correctional Institutional Inmates v.

Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987), cert. denied, 486
U.S. 1006 (1988).
Here, Plaintiff has alleged that he sustained an injury
which requires the use of a wheelchair.

Accepting these factual

allegations as true, the Court construes Plaintiff’s need for a
wheelchair as serious medical need. See James, 700 F.3d at 679.
Thus, the potential merit of each of Plaintiff’s claims turns on
whether Plaintiff has sufficiently alleged in his Complaint that
each defendant has acted with deliberate indifference to his
serious medical need.
Many of the allegations in the Complaint relate to a
particular incident in which Plaintiff claims that he fell
outside cell block 4.

Specifically, Plaintiff asserts that

Defendant Nurse Toni Tees was “messing around[,]” did “not put[]
[the] wheelchair where it was supposed to be[,]” and did “not
lock[] [the] breaks [sic].” (SAC 4, ECF No. 3).

Plaintiff

further asserts that Nurse Toni Tees failed to report the
incident and that he was denied medical treatment for
unspecified injuries sustained in the fall.

Plaintiff also

contends that certain medical staff at the correctional facility
have stopped issuing him medication.
For the reasons set forth below, the factual allegations in
the Complaint are insufficient to support claims against all but
one of the named defendants.

However, because it is conceivable

that Plaintiff may be able to assert facts showing that the
other named defendants were deliberately indifferent to his
serious medical needs, this Court will grant Plaintiff 45 days
to file an amended complaint.
A. Claim against Warden Lombardo
Plaintiff first asserts a cause of action against Warden
Lombardo because “he is in charge of all Defendents [sic].” (SAC
4, ECF No. 3).

However, local government units and supervisors

are not liable under § 1983 solely on a theory of respondeat
superior. See City of Oklahoma City v. Tuttle, 471 U.S. 808, 824
n. 8, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985); Monell, 436 U.S.
658; Natale, 318 F.3d at 583–84.

“A defendant in a civil rights

action must have personal involvement in the alleged wrongs,
liability cannot be predicated solely on the operation of
respondeat superior.

Personal involvement can be shown through

allegations of personal direction or of actual knowledge and
acquiescence.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d
Cir. 1988) (citations omitted); accord Robinson v. City of
Pittsburgh, 120 F.3d 1286, 1293–96 (3d Cir. 1997); Baker v.
Monroe Twp., 50 F.3d 1186, 1190–91 (3d Cir. 1995).
Because Plaintiff in this case has not alleged any personal
involvement, direction, or knowledge on behalf of Warden
Lombardo, the claims against him will be dismissed.
B. Claims against Dr. Santillio and Dr. Wynn

Plaintiff asserts that both Drs. Santillio and Wynn
“refused to treat [him and] said it was prior injury[.]” (SAC 67, ECF No. 3).

This plain statement, without more, is

insufficient to set forth a cognizable claim for inadequate
medical care.
In reaching this conclusion, the Court notes that it is
unclear from Plaintiff’s SAC whether Plaintiff was ever examined
by these doctors.

In the Statement of Claims section of his

Complaint, Plaintiff explicitly states “I have never been
examined[.]” (SAC 11, ECF No. 3).

However, Plaintiff’s

allegation that both doctors told Plaintiff it was a “prior
injury” suggests that both doctors communicated with, and
possibly examined, Plaintiff after the fall. Id. at 6, 7, 11.
Further supporting the inference that Plaintiff was seen by a
doctor is the fact that, in the section of his Complaint devoted
to Nurse Ciekierski, Plaintiff states, “I did not see Dr. for 6
days after fall.” (SAC 7, ECF No. 3).

Thus, it appears that

Plaintiff did see an unnamed doctor regarding his fall.
Therefore, because Plaintiff has not provided any details
regarding his attempts to receive treatment from the doctors,
and because it appears from the Complaint that Plaintiff may
have actually been examined by a doctor 6 days after the fall,
the Court finds that Plaintiff has not supplied sufficient
information to establish that either of these named doctors

acted with deliberate indifference. See Rouse, 182 F.3d at 197.
Accordingly, the claims against them will be dismissed.
As to Plaintiff’s claim that Dr. Wynn will not permit
Plaintiff to have “sweetmate or coffee” but allows Plaintiff to
“get sugar every morning[,]” this allegation does not set forth
a cognizable claim for a violation of Plaintiff’s constitutional
rights.

It will be dismissed.

C. Claims Against Head Nurse Kristy Ciekierski
Plaintiff asserts that Head Nurse Kristy Ciekierski denied
him treatment after the fall.

He states that he did not see a

doctor for 6 days after his fall; and he contends that when
Nurse Ciekierski did send him to the hospital, it was for a
blood sugar check. (SAC 7, ECF No. 3).

Later in his Complaint,

Plaintiff asserts that Nurse Ciekierski “wouldn’t send [him] for
x-rays or M.R.I.” Id. at 11.

These allegations are insufficient

to establish that Nurse Ciekierski acted with deliberate
indifference.
Plaintiff has not alleged how, or if, Nurse Ciekierski was
involved in, or knew of, Plaintiff’s fall and it is unclear from
the Complaint that she intentionally refused to provide medical
treatment.

Additionally, although he states that he did not see

a doctor for 6 days after the fall, Plaintiff has not provided
enough information to establish that Nurse Ciekierski
intentionally delayed necessary medical treatment based on a

non-medical reason, or that she deliberately prevented Plaintiff
from receiving needed medical treatment. See Rouse, 182 F.3d at
197.

For these reasons, the claims against Nurse Ciekierski

will be dismissed.
D. Claims Against Head Nurse Douglas Wyth
Plaintiff first alleges that Nurse Wyth “refused [him]
treatment and pain pills[.]” (SAC 8, ECF No. 3).

This

statement, without more, is insufficient to set forth a cause of
action against Nurse Wyth.

It is unclear when, and in what

context, the treatment and pills were refused.

Presumably, the

“pain pills” referenced by Plaintiff are meant to alleviate pain
from an injury sustained when Plaintiff fell; however, Plaintiff
has not specified their purpose or indicated whether these pills
were prescribed.

Plaintiff has also failed to explain what type

of treatment he was denied or how this treatment was related to
a serious medical need.

Moreover, Plaintiff has not provided

enough information to suggest that Nurse Wyth acted with
deliberate indifference by refusing him treatment or pain pills.
Accordingly, the claims against him will be dismissed.
Likewise, Plaintiff’s bare assertion that Nurse Wyth would
not send him to the foot doctor is insufficient to establish a

serious medical need relating to his foot, or Nurse Wyth’s
deliberate indifference to that need. 3
Plaintiff also alleges that Nurse Wyth “pulled wires from
[his] hearing aid so it could not be repaired[.]” (SAC 8, ECF
No. 3).

The Court does not construe this as an allegation of

inadequate medical care or any other type of Eighth Amendment
violation.

Rather, this appears to be a claim — albeit

undeveloped — for destruction of property which properly sounds
in state tort law and is therefore not cognizable as a
substantive constitutional claim.
Moreover, an unauthorized deprivation of property by a
state actor, whether intentional or negligent, does not
constitute a violation of the procedural requirements of the Due

3

The Court gleans from Plaintiff’s supplemental letters and from
the attachments to his SAC that he is a diabetic, that he
previously received — but now refuses — medication for his
diabetes, and that he received a prescription in 2010 for
diabetic shoes and socks which has allegedly never been filled.
(SAC 19, 24, 30, ECF No. 3). In the relief section of his SAC,
Plaintiff states, “viens [sic] from purple feet to groin[.]”
(SAC 12, ECF No. 3). In a letter from Plaintiff received
September 9, 2014 (ECF No. 12), Plaintiff states, “I am now flat
footed from not haveing [sic] proper shoes to wear my legs
purple ½ way to nees [sic], and “just got turned down for visit
to foot dr[.]” While this allegation is troubling, nowhere in
his filings does Plaintiff indicate that this is an emergent
situation or that the discoloration is directly related to any
denial of medical treatment. To the extent Plaintiff means to
assert a cause of action for inadequate medical treatment
related to his foot condition, Plaintiff may do so in an amended
complaint which sets forth factual allegations to explain and
support such a claim including whether such a claim is emergent.

Process Clause of the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is available. See Hudson v.
Palmer, 468 U.S. 517, 530–36 (1984).

The Third Circuit Court of

Appeals has summarily dismissed prison due process claims where
plaintiffs have had state tort suits for conversion of property
and prison grievance procedures available to them. See Tapp v.
Proto, 404 F. App'x 563, 567 (3d Cir. 2010) (citing Tillman v.
Lebanon County Corr., 221 F.3d 410, 422 (3d Cir. 2000).
Here, if the alleged action by Nurse Wyth was unauthorized,
Plaintiff has failed to state a claim because New Jersey does
provide a post-deprivation remedy for unauthorized deprivation
of property by public employees. See New Jersey Tort Claims Act,
N.J. Stat. Ann. §§ 59:1–1, et seq. (2001); see also Peterson v.
Holmes, No. 12-865, 2012 WL 5451435 at *5 (D.N.J. Nov. 7, 2012).
Plaintiff’s subsequent reference to a grievance form in his SAC
indicates that he was aware he had an administrative grievance
procedure available to him. 4 (SAC 11, ECF No. 3).

4

Thus, to the

Plaintiff references a grievance form on page 11 of the Second
Amended Complaint. (ECF No. 3). The Court is mindful that this
reference is in the context of an allegation that prison staff
would not give him a grievance form. However, this alleged
denial was specifically with respect to Plaintiff’s complaint
that prison staff failed to return his previous civil law suit
file to him. Plaintiff makes no allegation that he was denied a
grievance form with respect to the incident involving Nurse Wyth
and the hearing aid. Accordingly, he could have, and should
have, availed himself of the prison’s administrative grievance
procedures.

extent the allegation in the Complaint regarding the hearing aid
in was meant to assert a type of property claim, it must be
dismissed for failure to state a claim upon which relief may be
granted, pursuant to 28 U.S.C. § 1915(e)(2)(B) and § 1915A(b).
E. Claims Against Nurse Toni Tees
With respect to Nurse Tees, Plaintiff states that she
“[t]old C.O. Schank if drive to Fla. I walk to nurses station
that caused my fall wheelchair 25’ out of place wheels not
locked fall is on tape[.]” (SAC 8, ECF No. 3).

The Court

construes these statements as an allegation that Nurse Tees
commented to C.O. Schank that if Plaintiff was capable of
driving to Florida, then he was capable of walking to the
nurses’ station.

Thus, Plaintiff alleges that Nurse Tees forced

him to walk 25 feet to his wheelchair where it sat with unlocked
wheels.

Plaintiff contends that this resulted in the alleged

fall outside cell block 4, which Plaintiff states is captured on
tape.

Accepting this allegation as true, the Court finds that

Plaintiff has set forth sufficient information to suggest that
Nurse Tees acted with deliberate indifference to Plaintiff’s
serious medical need for his wheelchair.
Additionally, in the section of the Complaint devoted to
Nurse Tees Plaintiff states, “told 2 nurse n Dr had cut meds no
report only 6 months to suit (nurses Lori Rosf, Eilean
Medevitt)[.]” Id.

Although the meaning of this section is

difficult to decipher by itself, the Court gleans from the rest
of Plaintiff’s Complaint that he means to allege two other facts
with respect to Nurse Tees.
First, the Court finds that Plaintiff means to allege that
Nurse Tees failed to write a report documenting Plaintiff’s
fall.

In reaching this conclusion, the Court also considers the

section of the Complaint devoted to Dr. Wynn wherein Plaintiff
describes the incident as, a “fall outside cell block 4 that
Toni Tees did not report[.]” Id. at 7 (emphasis added).

This

allegation further supports Plaintiff’s claim that Nurse Tees
acted with deliberate indifference.
Next, the court construes Plaintiff’s comment regarding his
“meds” as an allegation that Nurse Tees discontinued Plaintiff’s
medication.

This interpretation is supported by Plaintiff’s

allegation that both Nurse Rosf and Nurse Medevitt stopped
issuing Plaintiff’s medication “after talking to Toni Tees[.]”
Id. at 10.
However, Plaintiff does not provide enough information to
set forth a cause of action with respect to Nurse Tees’ alleged
discontinuation of his medication.

To begin with, Plaintiff

does not indicate the purpose of the medication.

Therefore, he

has not established that the medication was related to any
serious medical need.

Likewise, Plaintiff does not allege facts

to suggest that Nurse Tees acted with deliberate indifference by

discontinuing this medication.

Thus, Plaintiff’s bare assertion

that Nurse Tees discontinued Plaintiff’s medication, and ordered
other nurses to do the same, is insufficient to set forth a
cognizable claim.
For the reasons set forth above, Plaintiff’s claims against
Nurse Tees alleging that she intentionally deprived him of his
wheelchair and intentionally denied him medical care after his
fall, shall be allowed to proceed at this time.
F. Claim against Nurse Joy Mitchel
Plaintiff states that Defendant Nurse Joy Mitchel “dumped
my pills in water 2 minutes later gave to me.” (SAC 9, ECF No.
3).

Additionally, he states, “I moved chair to get dressing on

hip changed like always she threw hissy fit moved chair back
said she was in charge did not change dressing[.]” Id.

Neither

of these allegations is sufficient to assert a cause of action
against Nurse Mitchel.
With respect to the allegation that Nurse Mitchel dumped
Plaintiff’s pills in water, Plaintiff does not provide enough
information to set forth a claim. It is unclear what purpose the
pills serve, therefore, Plaintiff has not established that they
are related to a serious medical need.

Further, Plaintiff

concedes that Nurse Mitchel did, in fact, give the pills to

Plaintiff.

Therefore, the scant information he provides does

not establish deliberate indifference. 5
With respect to Plaintiff’s claim that Nurse Mitchel did
not change his hip dressing because she was upset that he moved
his chair, Plaintiff has not set forth facts alleging a serious
medical need related to the hip dressing.

It is not evident

from the SAC whether the injury on Plaintiff’s hip is related to
his serious medical need; and Plaintiff fails to describe the
extent of the injury which required dressing.

Further, the

minimal facts alleged do not establish that Nurse Mitchel acted
with deliberate indifference by refusing to change the dressing
at that time.
Accordingly, the claims against Nurse Mitchel will be
dismissed.
G. Claims against Nurses Lori Rosf and Eilean Medevitt
Plaintiff alleges that both Nurses Rosf and Medevitt
stopped providing him with medication after talking to Nurse
Tees.

Plaintiff states that he has a witness, Joe Arrigo, who

can support this allegation. (SAC 10, ECF No. 3).

However, as

discussed above, Plaintiff does not indicate the purpose of the

5

While the alleged harsh treatment by medical staff is troubling
to the Court, it does not rise to the level of a constitutional
violation. See Estelle, 429 U.S. at 106 (holding that mere
negligent treatment is not actionable under § 1983 as an Eighth
Amendment claim because medical malpractice is not a
constitutional violation).

withheld medication; therefore, he does not establish that it
was related to a serious medical need.

Additionally, he has not

alleged facts to suggest that the nurses acted with deliberate
indifference to this need by discontinuing the medication.

The

claims against Nurses Rosf and Medevitt will be dismissed.
H. Claim Against C.O. Schank
It is evident from the last page of Plaintiff’s Second
Amended Complaint (“SAC”) that he wishes to add C.O. Schank as a
defendant and assert a cause of action against him for
negligence. (SAC, ECF No. 3 at 38).

However, Plaintiff does not

allege any facts with respect to this defendant, aside from
briefly mentioning him in the allegations relating to Nurse
Tees.

Furthermore, a claim for negligence properly sounds in a

state law and is not actionable under § 1983. See Caldwell v.
Beard, 324 F. App'x 186, 188 (3d Cir. 2009).

Accordingly, any

claims against C.O. Schank will be dismissed.
I. Claims of Excessive Force
In the section of his Complaint devoted to Nurse
Ciekierski, Plaintiff briefly mentions that he “ended up getting
beat (handcuffed + shackled)” while in the hospital for a blood
sugar check. (SAC 7, ECF No. 3).

Also, an unmarked attachment

to the SAC describes an alleged assault and allegations
suggesting excessive force. (SAC 22-23, ECF No. 3).

However, to

the extent Plaintiff meant to assert a cause of action for

excessive force, the Court finds that Plaintiff has failed to
set forth a cognizable claim.
As a pretrial detainee, Plaintiff's excessive force claim
would generally be analyzed under the Fourteenth Amendment Due
Process Clause. See Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir.
2012).

“The test for whether a claim of excessive force is

constitutionally actionable is ‘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.’” Giles v. Kearney, 571 F.3d 318, 326–27 (3d Cir. 2009)
(quoting Whitley v. Albers, 475 U.S. 312, 319, 106 S.Ct. 1078,
89 L.Ed.2d 251 (1986)) (internal quotations omitted).

In

conducting this inquiry, courts consider: (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 injury
inflicted; (4) the extent of the threat to the safety of staff
and inmates, as reasonably perceived by the responsible
officials on the basis of the facts known to them; and (5) any
efforts made to temper the severity of a forceful response. See
id. (citing Whitley, 475 U.S. at 319).
In this case, Plaintiff has not pled enough facts to
satisfy Iqbal's requirements.

He generally alleges that he was

“beat” when he went to the hospital to have his blood sugar
checked.

However, he provides no details, nor does he identify

the person(s) who allegedly participated in the assault.

As

such, to the extent Plaintiff meant to assert a claim for
excessive force, this Court will dismiss said claim without
prejudice.
IV.

SUPPLEMENTAL FILINGS

The Court notes that, since the filing of his Second
Amended Complaint, Plaintiff has submitted multiple letters to
the Court which provide supplemental information regarding the
conditions of his confinement, the retaliatory actions of prison
officials, and his medical condition. (ECF Nos. 5, 6, 7, 9, 10,
and 12).

The Court has carefully reviewed each submission.

Plaintiff’s letters do not allege specific causes of
action.

Rather, they read more like a diary of Plaintiff’s life

in prison — documenting daily occurrences and Plaintiff’s
grievances.

Moreover, nowhere in Plaintiff’s letters does he

expressly state that he wishes to add claims or defendants to
his Second Amended Complaint.

As evidenced by the fact that he

has filed two amended complaints in this case, alone, Plaintiff
was aware of how to go about filing an amendment if he wished to
do so.

Accordingly, the Court will not consider the facts

alleged in the letters for purposes of screening Plaintiff’s
Second Amended Complaint pursuant to 28 U.S.C. § 1915A.
As noted earlier, this Court grants Plaintiff leave to
amend his SAC to cure the deficiencies noted herein.

Thus, in

the event Plaintiff wishes to add causes of action for
retaliation, harassment, excessive force, prison conditions, or
any of the other complaints he reports in his letters to the
Court, he may do so in the form of a motion to amend.
The Court takes this opportunity to again remind Plaintiff
that, when an amended complaint is filed, it supersedes the
original and renders it of no legal effect, unless the amended
complaint specifically refers to or adopts the earlier pleading.
See West, 712 F.3d at 171 (collecting cases).
[T]o ensure that the pleadings give notice of all the
issues that are in the controversy so they can be
handled and comprehended expeditiously, the safer
practice is to introduce an amended pleading that is
complete in itself, rather than one that refers to the
prior pleading or seeks to incorporate a portion of
it. . . . Even if the pleading is lengthy and
involved, a self-contained amended pleading will
assist the parties and the court in dealing with the
issues better than one that is replete with references
to another pleading.
6 CHARLES ALAN WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 1476 (3d ed. 2008).
Accordingly, should he choose to amend, Plaintiff is
encouraged to submit an all-inclusive Complaint that is complete
in itself.
V.

MOTION FOR PRO BONO COUNSEL

Plaintiff has filed a motion seeking the appointment of pro
bono counsel. (ECF No. 13).

In it he states that he cannot

afford counsel and he asserts that he lacks the ability to
present an effective case.
Appointment of counsel under 28 U.S.C. § 1915(e)(1) may be
made at any point in the litigation and may be made by the Court
sua sponte. See Tabron v. Grace, 6 F.3d 147, 156 (3d Cir. 1993),
cert. denied, 510 U.S. 1196, 114 S.Ct. 1306, 127 L.Ed.2d 657
(1994).

A plaintiff has no right to counsel in a civil case.

See id. at 153–54; Parham v. Johnson, 126 F.3d 454, 456–57 (3d
Cir. 1997).
In evaluating a motion to appoint counsel, the court must
first examine the merits of Plaintiff's claim to determine if it
has “some arguable merit in fact and law.” Parham, 126 F.3d at
457.

If the court is satisfied that the claim satisfies the

test in Parham, and is “factually and legally meritorious,” see
id., then the court should consider the following factors: (1)
the plaintiff's ability to present his or her own case; (2) the
complexity of the legal issues; (3) the degree to which factual
investigation will be necessary and the ability of the plaintiff
to pursue such investigation; (4) the amount a case is likely to
turn on credibility determinations; (5) whether the case will
require the testimony of expert witnesses; and (6) whether the
plaintiff can attain and afford counsel on his or her own
behalf. See Tabron, 6 F.3d at 155–56, 157 n. 5) (providing a

non-exhaustive list of factors to serve as a guide post for
district courts).
However, courts must also be mindful of other factors, such
as the lack of funding to pay appointed counsel, the limited
supply of competent lawyers willing to do pro bono work, and the
value of lawyers' time. See Tabron, 6 F.3d at 157–58.
Here, the defendants have not yet been served with the
complaint.

Further, “whether or not Plaintiff's claims have

merit, the factual and legal issues ‘have not been tested or
developed by the general course of litigation, making [a number
of factors] of Parham's test particularly difficult to
evaluate.’” See Johnson v. Camden County Prosecutors’ Office,
No. 11-3588, 2012 WL 273887 at *7 (D.N.J. Jan. 31, 2012)
(quoting Chatterjee v. Philadelphia Federation of Teachers, No.
99-4122, 2000 WL 1022979 at *1 (E.D. Pa. July 18, 2000) (stating
that unlike Parham, which concerned a directed verdict ruling,
and Tabron, which involved summary judgment adjudication,
plaintiff's claims asserted in complaint and motions “have
barely been articulated” and have distinctive procedural
posture)).
With regard to the Tabron/Parham factors, Plaintiff in this
case has not demonstrated, at this stage of proceedings, the
complexity of legal issues, the degree to which factual
investigation will be necessary, or that he will be in need of

expert witnesses. See Johnson, No. 11-3588, 2012 WL 273887 at
*7.

The Court notes that Plaintiff states that he cannot afford

counsel and that he lacks the ability to present his case.
However, Plaintiff has managed to file two amended complaints
against numerous defendants, he has submitted several letters,
and he has filed the instant motion for appointment of counsel
without the assistance of counsel.

Thus, the Court finds that

appointment of pro bono counsel is inappropriate at this time.
The Court recognizes that, as this case develops, Plaintiff
may be able to better demonstrate his need for counsel.
Accordingly, the Court will consider a renewed motion for
appointment of counsel.

At this point in the litigation,

however, the Plaintiff's motion for appointment of counsel will
be denied, without prejudice.
VI.

CONCLUSION

For the foregoing reasons, Plaintiff’s claims against
Warden Lombardo, Dr. Santillio, Dr. Wynn, Head Nurse Kristy
Ciekiersky, Head Nurse Douglas Wyth, Nurse Joy Mitchel, Nurse
Lori Rosf, Nurse Eilean Medevitt, and C.O. Schank will be
dismissed for failure to state a claim at this time, pursuant to
28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).

However,

Plaintiff’s claims asserting that Nurse Toni Tees intentionally
deprived him of his wheelchair, failed to lock the wheels, and

intentionally denied him medical care after his fall, shall be
allowed to proceed at this time.
An appropriate Order follows.
__s/ Noel L. Hillman______
NOEL L. HILLMAN
United States District Judge
Dated: June 8, 2015
At Camden, New Jersey