HILARIO v. RUPPER

Filing 39

OPINION. Signed by Judge Noel L. Hillman on 9/19/2014. (dmr)

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

:
:
:
Plaintiff,
:
:
v.
:
:
RUPPER, Correctional Officer, :
et al.,
:
:
Defendants.
:
:
JOSE MIGUEL HILARIO,

Civil Action No. 13-1757(NLH)

OPINION

APPEARANCES:
Jose Miguel Hilario
FCI Berlin
P.O. Box 9000
Berlin, NJ 03570
Plaintiff pro se
John Andrew Ruymann, Esq.
Office of the U.S. Attorney
402 East State Street
Trenton, NJ 08608
Counsel for Defendants Rupper and Lopez

HILLMAN, District Judge
This matter is presently before the Court pursuant to the
submission of Motions [23, 29] to Dismiss by Defendants
Correctional Officer Rupper and PA Nurse Lopez, and a Motion
[31] for Summary Judgment by Plaintiff Jose Miguel Hilario.

For the reasons state below, the Motions to Dismiss will be
granted and the Motion for Summary Judgment will be denied.
I.

BACKGROUND

This matter was originally opened to the Court by
Plaintiff’s submission of a Complaint [1], pursuant to Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics, 403
U.S. 388 (1971), 1 asserting violations of his constitutional
rights. 2
Plaintiff alleges that on February 8, 2012, while confined
at the Federal Correctional Institution at Fort Dix, New Jersey,
he fell while climbing down from his upper bunk.

He states that

he incurred “minor painful injuries on his body and his neck had
some pain too.

Plaintiff also had many knots on his body.”

(Complaint at 5.)

Plaintiff alleges that he asked Correctional

Officer Rupper for help, but she told Plaintiff, “Let me finish
my work first!”

(Complaint at 6.)

Plaintiff states that

another correctional officer then contacted PA Nurse Lopez.
According to Plaintiff, PA Nurse Lopez talked with him about

1

In Bivens, the Supreme Court held that a violation of the
Fourth Amendment by a federal agent acting under color of his
authority gives rise to a cause of action against that agent,
individually, for damages. The Supreme Court has also implied
damages remedies directly under the Eighth Amendment. See
Carlson v. Green, 446 U.S. 14 (1980).
2

In a separate Letter [17] to the Court, Plaintiff explicitly
stated that he was proceeding against three individual federal
employees pursuant to Bivens.
2

what had happened, then told Plaintiff that she would see him
after her rounds.

A correctional officer took Plaintiff from

his housing unit to the examination room, where PA Nurse Lopez
examined Plaintiff and prepared a report of his injuries.
Plaintiff requested something for his pain and PA Nurse Lopez
reportedly told Plaintiff that she would try to get some ice for
him in his cell.

She then scheduled an appointment for an X-ray

and sent Plaintiff back to his cell.
did not receive any ice.

Plaintiff contends that he

Plaintiff states that he did not

receive any pain medication until February 10, after he
submitted an “Inmate Request” form.

Plaintiff was taken for an

X-ray of his neck on February 10, but did not receive the
results for two months, at which time Staff Nurse Elizabeth
suggested a second X-ray, because the first was not clear.
Staff Nurse Elizabeth scheduled a second X-ray, which was taken,
but Plaintiff has never been given the results.
Plaintiff asserts that Defendants Correctional Officer
Rupper, PA Nurse Lopez, and Staff Nurse Elizabeth have violated
his civil rights, (Complaint at 6(c)), which this Court
construes as an allegation that they have violated his Eighth
Amendment right to adequate medical treatment.

He seeks

compensatory and punitive damages.
Defendants Lopez and Rupper have moved to dismiss on the
grounds that Plaintiff has failed to state a claim under the
3

Eighth Amendment, as the facts alleged demonstrate neither a
“serious medical need” nor “deliberate indifference” to
Plaintiff’s medical needs.

Plaintiff has not responded to the

merits of the Motions to dismiss, but has opposed them, and
moved for summary judgment, on the ground that the Motions were
not filed timely.
This Court has considered the Motions and the various
submissions of the parties and will decide the Motions on the
briefs, pursuant to Federal Rule of Civil Procedure 78(b).
II.

JURISDICTION

This Court exercises subject matter jurisdiction over this
matter pursuant to 28 U.S.C. § 1331, in that the Complaint
alleges federal civil rights claims under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388
(1971).
III.

DISMISSAL FOR FAILURE TO STATE A CLAIM

Rule 12(b)(6) of the Federal Rules of Civil Procedure
permits a party to move to dismiss a claim in a civil action for
“failure to state a claim upon which relief can be granted.”

In

addition, this Court must dismiss, at any time, certain prisoner
actions that fail to state a claim.

See 28 U.S.C. § 1915A

(actions in which prisoner seeks redress from a governmental
defendant); 42 U.S.C. § 1997e (prisoner actions brought with
respect to prison conditions).

“The legal standard for
4

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) (citing Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.
2000)); Mitchell v. Beard, 492 F. App’x 230, 232 (3d Cir. 2012)
(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)).
Rule 8(a)(2) of the Federal Rules of Civil Procedure
requires that a complaint contain “a short and plain statement
of the claim showing that the pleader is entitled to relief.”
“Specific facts are not necessary; the statement need only ‘give
the defendant fair notice of what the ... claim is and the
grounds upon which it rests.’” Erickson v. Pardus, 551 U.S. 89,
93 (2007) (citations omitted).
While a complaint ... does not need detailed factual
allegations, a plaintiff’s obligation to provide the
“grounds” of his “entitle[ment] to relief” requires
more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will
not do ... . Factual allegations must be enough to
raise a right to relief above the speculative level
... .
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citations omitted).

That is, a complaint must assert “enough

5

facts to state a claim to relief that is plausible on its face.”
Id. at 570.
“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.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing

Twombly, 550 U.S. at 556).

Thus, a court is “not bound to

accept as true a legal conclusion couched as a factual
allegation,” and “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not
suffice.”

Ashcroft v. Iqbal, 556 U.S. at 678 (citations

omitted).
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff.

Haines v. Kerner, 404 U.S. 519, 520-21 (1972);

United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
Where the deficiencies in a complaint can be remedied by
amendment, a district court should not dismiss the complaint
with prejudice, but should permit amendment.

See, e.g., Denton

v. Hernandez, 504 U.S. 25, 34 (1992); Grayson v. Mayview State
Hospital, 293 F.3d 103, 108 (3d Cir. 2002) (dismissal pursuant
to 28 U.S.C. § 1915(e)(2)), cited in Thomaston v. Meyer, 519
F.App’x 118, 120 n.2 (3d Cir. 2013); Shane v. Fauver, 213 F.3d
113, 116-17 (3d Cir. 2000) (dismissal pursuant to 42 U.S.C.
6

§ 1997e(c)(1)); Urrutia v. Harrisburg County Police Dept., 91
F.3d 451, 453 (3d Cir. 1996).
IV.

SUMMARY JUDGMENT

A district court shall grant summary judgment, as to any
claim or defense, “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).

Thus,

summary judgment is appropriate where the Court is satisfied
that “‘the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of
law.’”

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)

(citing Fed.R.Civ.P. 56).
V.
A.

DISCUSSION

Plaintiff’s Motion for Summary Judgment
Plaintiff seeks summary judgment, and opposes the pending

Motions to dismiss, on the grounds that Defendants Lopez and
Rupper did not file their Motions timely.
Defendant Rupper was served on October 25, 2013.
Entry No. 14.)

(Docket

Pursuant to Rule 12(a)(3) of the Federal Rules

of Civil Procedure, he was required to answer, move, or
otherwise respond to the Complaint within 60 days thereafter, or
by December 26, 2013.

See Fed.R.Civ.P. 6(a).
7

On December 16,

2013, Defendant Rupper applied pursuant to Local Civil Rule
6.1(b) for an extension of time to answer, move, or otherwise
respond to the Complaint, which the Clerk granted, making
Defendant Rupper’s answer or motion to dismiss due on January 7,
2014.
2014.)

(Docket Entry No. 19; Clerk’s Text Order of December 17,
Defendant Rupper timely filed his Motion to Dismiss on

January 7, 2014.
Defendant Lopez was served on November 21, 2013.
Entry No. 16.)

(Docket

She was required to answer, move, or otherwise

respond within 60 days thereafter, or by January 21, 2014.
Fed.R.Civ.P. 6(a).

See

On January 15, 2014, Defendant Lopez

applied, pursuant to Local Civil Rule 6.1(b) for an extension of
time to answer, move, or otherwise respond to the Complaint,
which the Clerk granted, making Defendant Lopez’s answer or
motion to dismiss due on February 4, 2014.
24; Clerk’s Text Order of January 15, 2014.)

(Docket Entry No.
Defendant Lopez

timely filed her Motion to Dismiss on January 31, 2014.
Although Plaintiff did object to the requests for extension
of time, by Local Civil Rule 6.1(b) such extensions are
essentially automatic, and may be granted with or without notice
to opposing parties.

See Hairston v. Samuels, Civil No. 06-

4894, 2008 WL 5117293, *2 n.2 (D.N.J. Dec. 4, 2008).

Defendants

Rupper and Lopez filed their Motions to Dismiss timely, and
Plaintiff has failed to demonstrate that he is entitled to
8

summary judgment.

Accordingly, Plaintiff’s Motion for Summary

Judgment will be denied.
B.

The Defendants’ Motions to Dismiss
Defendants Rupper and Lopez have moved to dismiss, for

failure to state a claim, on the grounds that the facts alleged
by Plaintiff demonstrate neither that he suffered from a serious
medical need nor that they were deliberately indifferent to his
medical needs.
The Eighth Amendment proscription against cruel and unusual
punishment is violated when prison officials are deliberately
indifferent to a prisoner’s serious medical needs.
Gamble, 429 U.S. 97, 103-04 (1976).

Estelle v.

To set forth a cognizable

claim for a violation of his right to adequate medical care, an
inmate must allege facts demonstrating: (1) a serious medical
need; and (2) behavior on the part of prison officials that
constitutes deliberate indifference to that need.

Id. at 106.

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.
(1992).

Hudson v. McMillian, 503 U.S. 1, 9

Serious medical needs include those that have been

diagnosed by a physician as requiring treatment or that are so
9

obvious that a lay person would recognize the necessity for
doctors attention, and those conditions which, if untreated,
would result in lifelong handicap or permanent loss.

Monmouth

County Correctional Institutional Inmates v. Lanzaro, 834 F.2d
326, 347 (3d Cir. 1987), cert. denied, 486 U.S. 1006 (1988),
cited in Brown v. Rozum, 453 F.App’x 127, 128 (3d Cir. 2011).
The second element of the Estelle test requires an inmate
to show that prison officials acted with deliberate indifference
to his serious medical need.

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.
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.

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.
Napoleon, 897 F.2d 103, 110 (3d Cir. 1990).

White v.

“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.

Implicit in this

deference to prison medical authorities is the assumption that
such informed judgment has, in fact, been made.’”
10

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.

Estelle, 429 U.S. at 105-06; White, 897 F.2d at 110.

“Where prison authorities deny reasonable requests for
medical treatment, ... and such denial exposes the inmate to
undue suffering or the threat of tangible residual injury,
deliberate indifference is manifest.

Similarly, where

‘knowledge of the need for medical care [is accompanied by the]
... intentional refusal to provide that care,’ the deliberate
indifference standard has been met.”

Monmouth County Corr.

Inst. Inmates v. Lanzaro, 834 F.2d 326, 346-47 (3d Cir. 1987),
cert. denied, 486 U.S. 1006 (1988) (citations omitted).
Here, Plaintiff himself has described his injuries as
“minor” knots.

(Complaint at 5.)

Although he alludes to some

pain in his neck, his vague reference is not sufficient to raise
his right to relief “above the speculative level.”
Atlantic Corp. v. Twombly, 550 U.S. at 555.

See Bell

Plaintiff does not

describe the pain as severe or prolonged, nor does he allege any
continuing problems.

Plaintiff has failed to allege facts

demonstrating a “serious medical need.”

Cf. Tsakonas v. Cicchi,

308 F.App’x 628, 632 (3d Cir. 2009) (“In order to be considered
11

‘serious,’ ‘[t]he detainee’s condition must be such that a
failure to treat can be expected to lead to substantial and
unnecessary suffering, injury, or death.” (citation omitted));
Makenson v. Luzerne County Correctional Facility, Civil No. 132204, 2014 WL 3829894, *4 (M.D. Pa. July 31, 2014) (holding that
multiple bruises do not constitute a serious medical need);
Stroud v. Boorstein, Civil No. 10-3355, 2014 WL 2115499, *9
(E.D. Pa. May 20, 2014) (noting that mild discomfort resulting
from bruises and bleeding is not generally considered a serious
medical need) (collecting cases).
In addition, Plaintiff has failed to allege facts
demonstrating that either Defendant Rupper or Lopez was
“deliberately indifferent” to his needs.

The only allegation

against Defendant Rupper is that she told Plaintiff to wait for
her help until she finished what she was doing.

In light of

Plaintiff’s own description of his injuries as “minor,” and in
the absence of any allegations suggesting that Defendant Rupper
should have known that his needs were acutely serious, the
suggestion that he should wait a few minutes does not constitute
deliberate indifference.

The allegations regarding PA Nurse

Lopez are that she questioned Plaintiff about his injuries and
determined that examination could wait until she had completed
her rounds, that she then examined him and scheduled X-rays, and
that she told him she would try to get him some ice in his cell,
12

which never arrived.

The fact that ice did not arrive to

alleviate Plaintiff’s discomfort from his minor knots does not
demonstrate deliberate indifference to serious medical needs.
Cf., Cooper v. Casey, 97 F.3d 914, 916 (7th Cir. 1996) (“A
prison’s medical staff that refuses to dispense bromides for the
sniffles or minor aches and pains or a tiny scratch or a mild
headache or minor fatigue--the sorts of ailments for which many
people who are not in prison do not seek medical attention--does
not by its refusal violate the Constitution.”), quoted in
Whitehead v. Rozum, Civil No. 09-2201, 2010 WL 3885651, *4 (W.D.
Pa. Aug. 31, 2010), report and recommendation adopted, 2010 WL
3843749 (W.D. Pa. Sept. 28, 2010). 3
C.

Claim Against Staff Nurse Elizabeth
Although Nurse Elizabeth has not been served and has not

moved to dismiss, this Court is obliged to review the adequacy
of such prisoner claims, “on its own motion,” 42 U.S.C.
§ 1997e(c)(1), “as soon as practicable,” 28 U.S.C. § 1915A(a).
Here, the only allegations regarding Nurse Elizabeth are
that she gave Plaintiff the results of his first set of X-rays

3

It is not clear whether Plaintiff seeks to attribute to PA
Nurse Lopez the failure to receive pain medication for more than
a day. If so, that allegation fails to state a claim for the
same reasons as Plaintiff’s other allegations; that is, he has
failed to allege a serious medical need and the failure to
dispense pain medication for minor bumps and bruises does not
constitute deliberate indifference to a serious medical need.
13

and recommended a second set, which she scheduled, and which
were taken.

Although Plaintiff asserts that he has not been

given the results of the second set of X-rays, the simple
failure to provide the results of the X-rays cannot be said to
demonstrate deliberate indifference to a serious medical need,
especially where, as here, Plaintiff does not allege that he has
requested and been refused those records and he does not allege
that he alerted Nurse Elizabeth to any continuing symptoms
suggesting an injury to his neck.

Cf. Norris v. Lynch, Civil

No. 07-0907, 2009 WL 745360, *7 n.5 (M.D. Pa. March 18, 2009)
(holding that physician’s negligent failure to review medical
records does not rise to the level of “deliberate indifference”
without evidence of some more culpable state of mind).
VI.

CONCLUSION

For the reasons set forth above, Plaintiff’s Motion for
summary judgment will be denied and the Motions to dismiss of
Defendants Rupper and Lopez will be granted.

All claims against

Defendant Nurse Elizabeth will also be dismissed.

However,

because it is conceivable that Plaintiff may be able to
supplement his pleading with facts sufficient to state an Eighth
Amendment claim, the Court will grant Plaintiff leave to file an

14

application to re-open accompanied by a proposed amended
complaint. 4
An appropriate order follows.

At Camden, New Jersey

s/ Noel L. Hillman
Noel L. Hillman
United States District Judge

Dated: September 19, 2014

4

Plaintiff should note 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). To avoid confusion, the safer practice is to submit an
amended complaint that is complete in itself. Id.
15