RAMIREZ v. NUGENT et al
OPINION. Signed by Chief Judge Jerome B. Simandle on 12/30/2014. (tf, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOSE A. RAMIREZ,
Civil Action No. 12-6781(JBS)
DENNIS NUGENT, et al.,
William M. Tambussi, Esq.
Benjamin S. Teris, Esq.
Brown & Connery LLP
360 Haddon Avenue
Westmont NJ 08096
Attorney for Plaintiff
Ellen Lubensky Casagrand, Esq.
Buckley Theroux Kline & Petraske LLC
932 State Road
Princeton NJ 08540
Attorney for Defendant Dennis Nugent
SIMANDLE, Chief Judge:
Plaintiff Jose A. Ramirez alleges that while a prisoner at
South Woods State Prison he underwent urological surgery by
Defendant Dennis Nugent, M.D., to improve an abnormality and
that the surgery rendered him sterile, a risk of which he was
In his Amended Complaint, Ramirez alleges claims
for medical malpractice under New Jersey law, for violation of
the Eighth Amendment right to adequate medical care while
incarcerated pursuant to 42 U.S.C. § 1983 and the New Jersey
Constitution, and for violation of his Fourteenth Amendment
right to be informed of the potential consequences of such
operation pursuant to 42 U.S.C. § 1983.
This matter comes before the Court upon Defendant Nugent’s
Motion to Dismiss this action for failure to state a claim of
medical malpractice because Plaintiff did not serve an Affidavit
of Merit as required under N.J.S.A. 2A:53A-29, and because
Plaintiff has not stated a constitutional claim entitling him to
a remedy under 42 U.S.C. § 1983. (Docket Item 33). Plaintiff
filed opposition to the motion (Docket Item 35) to which
Defendant replied (Docket Item 36).
On or around November 1, 2012, Plaintiff, incarcerated at
the South Woods State Prison, filed a pro se civil complaint
asserting jurisdiction under 42 U.S.C. § 1983. (Docket Item 1).
In the complaint, Plaintiff states that after a urinary
abnormality for a substantial period of time, Defendant Dr.
Nugent recommended and performed surgery. The first surgery took
place on February 8, 2011, and a “minimal prostatic obstruction”
was found. On July 22, 2011, after four months of no
improvement, Dr. Nugent considered the obstruction diagnosis and
performed a second surgery. (Complt., ¶ 6).
After the surgeries, Plaintiff realized he was unable to
ejaculate. He saw Dr. Nugent on October 23, 2011, and first
learned that “his medical injury caused by the procedure”
(presumably, the inability to ejaculate), was permanent.
Plaintiff obtained his medical records and learned that Dr.
Nugent was planning on having an in-depth discussion with
Plaintiff prior to the surgery about consequences of the
surgery; however, the conversation never took place. Plaintiff
“submits that Dr. Nugent did not discuss the possible
consequences of the medical procedure with him at any time
preceding the surgery.” (Id.).
On February 18, 2013, Defendant Nugent filed an Answer to
the Complaint (Docket Item 8), and then an amendment to the
Answer on February 19, 2013 (Docket Item 9). On June 7, 2013,
Plaintiff’s motion to appoint pro bono counsel was granted
(Docket Item 14), and counsel entered an appearance for
Plaintiff on August 23, 2013 (Docket Item 18).
On November 21, 2013, Plaintiff’s counsel filed a Motion to
Amend, which was granted on December 3, 2013 (Docket Items 21,
22). On December 13, 2013, the Amended Complaint was filed
(Docket Item 25). In the Amended Complaint, Plaintiff asserts
that on or about October 10, 2013, prior to the filing of the
Amended Complaint, Plaintiff saw a urologist, who informed him
that the cause of his urinary abnormality was not his prostate,
but rather due to an overactive bladder. (Am. Complt., ¶ 20).
Thus, Plaintiff argues that since he was misdiagnosed, resulting
in an unnecessary surgery for which he was not informed of the
consequences prior, deliberate indifference has been shown. (Am.
Complt., ¶ 22). The unnecessary surgery rendered Plaintiff
sterile and caused irreversible damage (Am. Complt., ¶¶ 25, 34).
On February 24, 2014, Defendant filed an Answer to the
Amended Complaint (Docket Item 31). This Motion to Dismiss
followed on April 2, 2014 (Docket Item 33), and Plaintiff
thereafter filed an Affidavit of Merit on April 15, 2014. 1
Defendant Nugent, who is the sole named defendant in the
Amended Complaint (the other being a “John Doe” defendant),
asserts that Plaintiff failed to file an Affidavit of Merit as
required by New Jersey’s Affidavit of Merit statute, N.J.S.A.
Accordingly, Defendant argues that Plaintiff’s
claims asserting medical malpractice must be dismissed with
prejudice for failure to state a claim.
asserts that Plaintiff’s claims do not rise to the level of a
constitutional violation to warrant a remedy under 42 U.S.C. §
Defendant concedes that an Affidavit of Merit was provided
to them on April 15, 2014 (Reply to Opposition, Docket Item 36).
Plaintiff counters that the motion to dismiss should be
denied because he, in fact, did file an Affidavit of Merit, and
that his Amended Complaint asserts a constitutional violation.
While Defendant admits that Plaintiff did file an Affidavit
of Merit, the timeliness of that Affidavit is in question.
Plaintiff argues that the Affidavit was timely, as it was filed
within the 120-day period after the answer to the Amended
Complaint; while Defendant argues that the Affidavit should have
been filed 120 days after the answer to the original Complaint,
as the substance of the Amended Complaint contained the same
allegations as the original Complaint. (Opposition, Docket Item
35; Reply, Docket Item 36).
As to the constitutional claims, Plaintiff argues that
sterilization without informed consent amounts to deliberate
indifference and reckless disregard under the Eighth and
Fourteenth Amendments and the New Jersey Constitution in Art. 1,
Sec. 12. Defendant argues that the Amended Complaint does not
adequately plead deliberate indifference to justify relief under
§ 1983. (Id.).
III. Legal Standard & Analysis
Affidavit of Merit Issue
Defendant asserts that this action must be dismissed
because Plaintiff failed to timely serve an Affidavit of Merit,
as required by N.J.S.A. 2A:53A-29 (“If the plaintiff fails to
provide an affidavit or a statement in lieu thereof, pursuant to
section 2 or 3 of this act, it shall be deemed a failure to
state a cause of action.”). Specifically, this statute provides:
In any action for damages for personal injuries, wrongful
death or property damage resulting from an alleged act of
malpractice or negligence by a licensed person in his
profession or occupation, the plaintiff shall, within 60
days following the date of filing of the answer to the
complaint by the defendant, provide each defendant with an
affidavit of an appropriate licensed person that there
exists a reasonable probability that the care, skill or
knowledge exercised or exhibited in the treatment, practice
or work that is the subject of the complaint, fell outside
acceptable professional or occupational standards or
treatment practices. The court may grant no more than one
additional period, not to exceed 60 days, to file the
affidavit pursuant to this section, upon a finding of good
In the case of an action for medical malpractice, the
person executing the affidavit shall meet the requirements
of a person who provides expert testimony or executes an
affidavit as set forth in section 7 of P.L.2004, c. 17
(C.2A:53A-41). In all other cases, the person executing the
affidavit shall be licensed in this or any other state;
have particular expertise in the general area or specialty
involved in the action, as evidenced by board certification
or by devotion of the person's practice substantially to
the general area or specialty involved in the action for a
period of at least five years. The person shall have no
financial interest in the outcome of the case under review,
but this prohibition shall not exclude the person from
being an expert witness in the case.
The Affidavit of Merit statute requires “plaintiffs to make
a threshold showing” of merit, Vitale v. Carrier Clinic,
Incorporated, 409 F. App’x 532, 533 (3d Cir. 2010) (citation
omitted), in order “‘to dispose of meritless malpractice claims
early in the litigation’” and “‘to allow meritorious claims to
move forward unhindered.’”
Snyder v. Pascack Valley Hosp., 303
F.3d 271, 274 (3d Cir. 2002) (quoting Burns v. Belafsky, 166
N.J. 466, 766 A.2d 1095, 1099 (2001)).
See also Fontanez v.
U.S., --- F. Supp.2d ----, 2014 WL 2608386, *2 (D.N.J. May 30,
The affidavit of merit statute also requires that the
affidavit be filed within sixty days of the answer, but permits
an extension of time “not to exceed [sixty] days” for “good
Failure to file a timely affidavit of merit generally
“requires dismissal of the action with prejudice.”
Trust ex rel. Nuveen High Yield Mun. Bond Fund v. Withum–Smith
Brown, P.C., 692 F.3d 283, 305 (3d Cir. 2012); see also N.J.S.A.
2A:53A–29 (setting forth the consequence for a plaintiff's
failure to provide an Affidavit of Merit). 2
Plaintiff cites Snyder v. Pascack Valley Hosp., 303 F.3d
271, 276 (3d Cir. 2002) as support for his argument that his
Affidavit was timely. In Snyder, the Court of Appeals for the
Third Circuit found that “the [Affidavit of Merit] statute's
However, “four limited exceptions[,]” where applicable,
excuse a plaintiff’s failure to comply with the affidavit of
merit statute. Nuveen, 692 F.3d at 305. The limited exceptions
are: “(i) a statutory exception regarding lack of information;
(ii) a ‘common knowledge’ exception; (iii)” an exception
predicated upon “substantial compliance with the affidavit-ofmerit requirement;” or (iv) “‘extraordinary circumstances’ that
warrant equitable relief.” Id. (citations omitted).
purpose is best implemented here by establishing as the
beginning point of the 120–day limitations period the date on
which a defendant files his answer to the final amended
complaint.” Snyder, 303 F.3d at 276 (emphasis added). The Court
of Appeals noted the possibility of Plaintiffs filing a “series
of amended complaints for the sole purpose of garnering
additional time for providing an affidavit of merit,” but was
“confident” that trial courts would not permit those tactics.
Id. at n.3.
Here, this Court finds that Snyder applies, and that
Plaintiff’s Affidavit of Merit was due 120-days after the Answer
to the Amended Complaint. Defendant has not pointed to any
“tactics” of delaying the filing of a final complaint for
purposes of extending the time to file the Affidavit of Merit.
Furthermore, although this Court finds that the Affidavit
was timely filed, this Court notes that Plaintiff is a state
prisoner, incarcerated at the time he filed this action. At the
time the first Answer was filed, Plaintiff was proceeding pro
se, which restricted his access to outside medical professionals
who could provide a conforming Affidavit of Merit.
inability to represent himself on a potentially worthy and
complicated malpractice case was also a factor recognized by
this court in deciding to appoint pro bono counsel.
filed June 7, 2013 [Docket Item 14] at 5-7.)
In Fontanez v.
United States, the Court noted that the plaintiff’s
“incarceration during the period within which to file a timely
affidavit of merit undoubtedly frustrated [his] ability to
timely acquire an affidavit of merit.” See 2014 WL 2608386 at *6
(D.N.J. May 30, 2014). In combination with other unique
circumstances, the Court in Fontanez found it sufficient to
excuse the plaintiff’s failure and grant him an additional
extension of time. See id.
The Court further remarked that it
was not the intent of the legislature to foster “gamesmanship”
and elevate “form over substance,” but rather to promote a
resolution of potentially meritorious claims on the merits. See
id. (citations omitted); see also New Hampshire Ins. Co. v.
Diller, 678 F. Supp.2d 288, 313 n.30 (D.N.J. 2009) (finding
dismissal with prejudice to “be unfair and contrary to the
purpose of the Affidavit of Merit statute” in light of the
defendant’s delay in raising the Affidavit of Merit issue; and
therefore, dismissing the plaintiff’s complaint without
prejudice, in order to afford the plaintiff sixty (60)
additional days” to serve an affidavit of merit and “to foster
resolution on the merits” of the plaintiff's “potentially
Thus, this Court finds that Plaintiff’s Affidavit of Merit
was timely filed, as it was filed within 120 days of the Answer
to the Amended Complaint, and the motion to dismiss must be
denied as to this ground.
Defendant argues that Plaintiff has not pled a
constitutional violation to warrant relief under 42 U.S.C. §
A district court conducts a three-part analysis when
considering a Rule 12(b)(6) motion. See Malleus v. George, 641
F.3d 560, 563 (3d Cir. 2011). “First, the court must ‘take note
of the elements a plaintiff must plead to state a claim.’” Id.
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)). Second,
the court must accept as true all of a plaintiff's well-pleaded
factual allegations and construe the complaint in the light most
favorable to the plaintiff. See Fowler v. UPMC Shadyside, 578
F.3d 203, 210–11 (3d Cir. 2009). Finally, a court must next
determine whether the “facts alleged in the complaint are
sufficient to show that plaintiff has a ‘plausible claim for
relief.’” Fowler, 578 F.3d at 211 (quoting Iqbal, 556 U.S. at
Determining plausibility is a “context-specific task which
requires the reviewing court to draw on its judicial experience
and common sense.” Iqbal, 556 U.S. at 679. Plausibility,
however, “is not akin to a ‘probability requirement,’ but it
asks for more than a sheer possibility that a defendant has
acted unlawfully.” Id. at 678 (internal citation omitted). In
the end, facts which only suggest the “mere possibility of
misconduct” fail to show that the plaintiff is entitled to
relief. Fowler, 578 F.3d at 211 (quoting Iqbal, 556 U.S. at
Thus, a complaint will survive a motion to dismiss if it
contains “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) (citation omitted). Although a
court must accept as true all factual allegations in a
complaint, that tenet is “inapplicable to legal conclusions,”
and “[a] pleading that offers labels and conclusions or a
formulaic recitation of the elements of a cause of action will
not do.” Id.
A “district court ruling on a motion to dismiss may not
consider matters extraneous to the pleadings” except that a
“document integral to or explicitly relied upon in the complaint
may be considered....” In re Burlington Coat Factory Securities
Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (citations omitted).
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 ... 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 ....
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 West v. Atkins, 487 U.S. 42, 48
(1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255–56 (3d
Cir. 1994); Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
Here, Plaintiff alleges that Dr. Nugent acted with deliberate
indifferent to his serious medical needs in violation of the
Eighth Amendment, and that Dr. Nugent failed to inform Plaintiff
of the consequences of the urological surgery in violation of
the Fourteenth Amendment.
(See Complt., ¶¶ 21-26.)
shall address each in turn.
The Eighth Amendment proscription against cruel and unusual
punishment requires that prison officials provide inmates with
adequate medical care. See Estelle v. Gamble, 429 U.S. 97, 103–
04 (1976); Rouse v. Plantier, 182 F.3d 192 (3d Cir. 1999). In
order to set forth a cognizable claim for a violation of his
right to adequate medical care, 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.
See Estelle, 429 U.S. at 106; Natale v. Camden Cnty. Corr.
Facility, 318 F.3d 575, 582 (3d Cir. 2003).
To satisfy the first prong of the Estelle inquiry, the
inmate must demonstrate that his medical needs are serious.
“Because society does not expect that prisoners will have
unqualified access to health care, deliberate indifference to
medical needs amounts to an Eighth Amendment violation only if
those needs are ‘serious.’” Hudson v. McMillian, 503 U.S. 1, 9
The second element of the Estelle test requires an inmate
to show that prison officials acted with deliberate indifference
to his serious medical need. See Natale, 318 F.3d at 582
(finding deliberate indifference requires proof that the
official knew of and disregarded an excessive risk to inmate
health or safety). “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 v.
Brennan, 511 U.S. 825, 837–38 (1994). Furthermore, a prisoner's
subjective dissatisfaction with his medical care does not in
itself indicate deliberate indifference. See 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). Similarly, “mere disagreements over medical judgment
do not state Eighth Amendment claims.” White v. Napoleon, 897
F.2d 103, 110 (3d Cir. 1990). “Courts will disavow any attempt
to second-guess the propriety or adequacy of a particular course
of treatment ... [which] remains a question of sound
professional judgment.” Inmates of Allegheny County Jail v.
Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (internal quotation and
citation omitted). Even if a doctor's judgment concerning the
proper course of a prisoner's treatment ultimately is shown to
be mistaken, at most what would be proved is medical malpractice
and not an Eighth Amendment violation. See Estelle, 429 U.S. at
105–06; White, 897 F.3d at 110.
The Court of Appeals for the Third Circuit has found
deliberate indifference where a prison official: (1) knows of a
prisoner's need for medical treatment but intentionally refuses
to provide it; (2) delays necessary medical treatment for nonmedical reasons; or (3) prevents a prisoner from receiving
needed or recommended treatment. See Rouse, 182 F.3d at 197. The
Court of Appeals also has held that needless suffering resulting
from the denial of simple medical care, which does not serve any
penological purpose, violates the Eighth Amendment. See
Atkinson, 316 F.3d at 266; see also Monmouth County Correctional
Institutional Inmates, 834 F.2d at 346 (“deliberate indifference
is demonstrated ‘[w]hen ... prison authorities prevent an inmate
from receiving recommended treatment for serious medical needs
or deny access to a physician capable of evaluating the need for
such treatment”); Durmer v. O'Carroll, 991 F.2d 64 (3d Cir.
1993); White v. Napoleon, 897 F.2d 103 (3d Cir. 1990).
Here, assuming Plaintiff's injury satisfies the objective
prong in showing a serious medical need, Plaintiff's allegations
do not satisfy the subjective element of deliberate indifference
necessary to support an Eighth Amendment claim. He admits that
he received treatment, although he is dissatisfied with the
treatment provided by Defendant. Even if the facts as presented
could constitute a claim of medical malpractice or medical
negligence, such claims are not actionable under the Eighth
Amendment in a § 1983 action. See Estelle, 429 U.S. at 105–06;
White, 897 F.3d at 110. 3
At most, Plaintiff alleges that the two
urological surgeries performed by Dr. Nugent were negligent,
lacking adequate disclosure of the risks of such surgery.
is no allegation that the defendants intended to inflict harm,
nor that they entrusted Plaintiff to a known incompetent
surgeon, nor that the medical procedures were themselves likely
to cause sterilization.
Instead, what is alleged is that the
doctor did not fully inform plaintiff of the risks and benefits
The Court notes that in Defendant’s Reply to Opposition,
Defendant’s counsel cite to documents not in the record,
including medical record entries (Docket Item 36, pp. 3-4). This
Court did not take these arguments into account in rendering
this decision on the Motion to Dismiss.
of the surgical procedures, which is negligence, even if the
consequences of the negligence, as here, are especially
Plaintiff’s argument that the Eighth Amendment
claims should not be dismissed while this case is “still in its
infancy” must be denied, as Plaintiff has not pled the grounds
of a constitutional violation. Plaintiff’s Eighth Amendment
claim under Section 1983 will therefore be dismissed. 4
The Due Process clause of the Fourteenth Amendment,
however, substantively protects certain fundamental rights,
including “the right to be free from unjustified intrusions into
the body, the  right to refuse unwanted medical treatment,”
and the related “right to sufficient information to
intelligently exercise those rights.”
(internal citations omitted).
White, 897 F.2d at 111-12
The Court of Appeals has,
Count Three of Plaintiff’s Complaint alleges that Dr.
Nugent’s “substandard medical care” violated the New Jersey
Constitution’s proscription against “cruel and unusual
punishment,” set forth in Article I, Section 12. (Complt., ¶¶
27-29.) Though a claim of deliberate indifference is cognizable
under such provision, it is “analyzed identically to a
deliberate indifference claim under the Eighth Amendment.”
Davis v. N.J. Dep’t of Corrs., No. 10-6439, 2011 WL 5526081, at
*4 (D.N.J. Nov. 14, 2011) (citations omitted); Szemple v. Corr.
Med. Servs., Inc., No. 07-4809, 2012 WL 161798, at *8 (D.N.J.
Jan. 19, 2012) (citations omitted) (noting that courts have
“‘repeatedly construed’” Article I, Section 12 of the New Jersey
Constitution “‘in terms nearly identical to its federal
counterpart’”) (citations omitted). Plaintiff’s claim under the
New Jersey Constitution therefore fails for the same reasons as
his Eighth Amendment claim.
accordingly, expressly recognized that convicted prisons “retain
a limited right to refuse treatment and a related right to be
informed of the proposed treatment and viable alternatives.”
Id. at 113.
Indeed, “[i]nformed consent is a necessary
precursor to a patient's Constitutional right to refuse
treatment since a prisoner’s right to refuse treatment is
useless without knowledge of the proposed treatment.”
Medical staff therefore “‘must provide a prisoner with such
information as a reasonable patient would find necessary to
making an informed decision regarding treatment options.’”
Dykeman v. Ahsan, 560 F. App’x 129, 132 (3d Cir. 2014) (noting
that White recognized a Fourteenth Amendment claim based upon a
medical provider’s failure to properly inform).
Here, as stated above, Count Two of Plaintiff’s Amended
Complaint generally alleges that Dr. Nugent convinced him to
have “an unnecessary surgery” by failing to properly inform him
of the potential consequences involved in the operation.
Complt., ¶¶ 24-26.)
Indeed, Plaintiff specifically alleges that
Dr. Nugent failed to him inform him of any of “the consequences
of the surgery,” much less its potential impact on his ability
Under White v. Napoleon, supra, these
allegations state a cognizable Fourteenth Amendment claim under
Defendant’s motion will, accordingly, be denied
to the extent it seeks dismissal of Plaintiff’s Fourteenth
Amendment Claim, Count Two of the Amended Complaint.
Dismissal Without Prejudice
Before dismissing a complaint for failure to state a claim
upon which relief may be granted, the Court must grant leave to
amend the complaint unless amendment would be futile. See
Grayson v. Mayview State Hosp., 293 F.3d 03, 114 (3d Cir. 2002).
Because it is possible that Plaintiff may be able to amend the
Amended Complaint with regard to his Eighth Amendment claim
under Section 1983 and his related New Jersey Constitutional
claim with facts sufficient to overcome the deficiencies noted
above, the dismissal of these claims in the Amended Complaint
will be without prejudice.
Any motion to amend the Eighth
Amendment claim under Section 1983 and/or the New Jersey
Constitutional claim must be filed within ninety (90) days.
For the reasons set forth above, Defendant’s Motion to
Dismiss is denied in part with respect to the medical
malpractice claim and Fourteenth Amendment claim of denial of
the right of medical information necessary for informed consent,
and granted in part with respect to the Eighth Amendment and New
Jersey Constitutional claims for deliberate indifference to a
serious medical condition.
Plaintiff may file a motion for
leave to file a Second Amended Complaint to address the
deficiencies of the Amendment Complaint with respect to the
claims dismissed herein, within ninety (90) days hereof.
An Order consistent with this Opinion will be entered.
s/Jerome B. Simandle
JEROME B. SIMANDLE, Chief Judge
United States District Court
Dated: December 30, 2014
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