ORTIZ v. THE STATE OF NEW JERSEY et al
OPINION. Signed by Judge Robert B. Kugler on 6/15/2015. (tf,n.m.)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civ. No. 13-5372 (RBK)
STATE OF NEW JERSEY, et al.,
ROBERT B. KUGLER, U.S.D.J.
Plaintiff, Carlos Ortiz, is a former state prisoner who was previously incarcerated at the
South Woods State Prison. 1 In September, 2013, he filed a counseled civil rights complaint
pursuant to 42 U.S.C. § 1983 as well as under state law. Presently pending before the Court is a
motion to dismiss from one defendant and a motion for judgment on the pleadings from three
defendants. For the following reasons, the motions will be granted.
Mr. Ortiz’s complaint was initially filed by his counsel of record, Vikrant Pawar, Esq. He
names several defendants in his complaint; specifically: (1) the State of New Jersey; (2) the New
Jersey Department of Corrections (“DOC”); (3) South Woods State Prison (“SWSP”); (4) the
University of Medicine and Dentistry (“UMDNJ”); (5) Judith Bender; (6) St. Francis Hospital;
(7) Lisa Renee Mills; and (8) John and Jane Does.
The complaint states that Mr. Ortiz is a prisoner held at the SWSP, which is part of the
DOC. He states that he has a pre-existing condition that was documented and recorded by
Mr. Ortiz is now out of prison on parole as of October, 2014.
defendants that required him to not be placed on a top bunk inside his jail cell. Mr. Ortiz states
that the defendants violated this rule and, as a result, he fell and suffered injuries on September
19, 2011. Mr. Ortiz also claims that the defendants failed to adequately treat him after his injury.
In an apparent separate incident, Mr. Ortiz states that he was given an insulin shot in July,
2012. However, Mr. Ortiz explains that he does not require an insulin shot. He states that
defendants admitted to this mistake and told him that he would likely be in a vegetative state for
the rest of his life.
Mr. Ortiz raises six causes of action. First, he states that defendants failed to provide him
with an adequate accommodation for his pre-existing condition and were deliberately indifferent
to his medical condition. Accordingly, he claims that the defendants subjected him to cruel and
unusual punishment. Second, Mr. Ortiz claims that the defendants violated his procedural and
substantive due process rights under the Fourteenth Amendment by subjecting him to injuries.
Third, Mr. Ortiz argues that the defendants failed to adequately train and discipline their
employees such that it fostered an environment that was deliberately indifferent to his rights
under the Constitution. Fourth, Mr. Ortiz asserts that defendants have a pattern, practice and
custom by disregarding pervasive discrimination in the workplace, ignoring rampant
occurrences, failing to take corrective action and tolerating the actions alleged in the complaint.
Fifth, Mr. Ortiz claims that the defendants were deliberately indifferent to the rights owed to him
under the New Jersey Constitution. Finally, sixth, Mr. Ortiz alleges that the defendants failed to
adequately supervise their employees, and, as a result, he suffered injuries.
Mr. Ortiz seeks monetary damages as well as prospective and injunctive relief on his
On June 20, 2014, B. Michael Rubenstein, Esq. entered a notice of appearance as cocounsel for Mr. Ortiz. However, on October 28, 2014, this Court granted plaintiff counsels’
motion to withdraw as counsel. Accordingly, Mr. Ortiz is now proceeding in this action pro se. 2
As Mr. Ortiz’s representation issues were ongoing, his case continued to progress.
Indeed, in February, 2014, the State of New Jersey, the DOC and the SWSP (hereinafter the
“State Defendants”) answered the complaint. (See Dkt. No. 9.) On October 9, 2014, St. Francis
Hospital filed a motion to dismiss the complaint. (See Dkt. No. 32.) The UMDNJ answered the
complaint on October 5, 2014. (See Dkt. No. 33.) The State Defendants filed a motion for
judgment on the pleadings and/or summary judgment on November 21, 2014. (See Dkt. No. 38.)
Mr. Ortiz did not file a response to the outstanding motions from the defendants.
Nevertheless, on May 20, 2015, this Court held a status conference where counsel for the
defendants as well as Mr. Ortiz appeared. Subsequently, the Court issued an order that gave Mr.
Ortiz until June 2, 2015 to file a response to the defendants’ outstanding motions. Additionally,
Mr. Ortiz was given until June 2, 2015 to demonstrate that he made service of process on Judith
Bender and Lisa Renee Mills. To date, Mr. Ortiz has not filed a response to the defendants’
outstanding motions, nor has he made any demonstration whatsoever that he has made service of
process on Bender or Mills.
A. St. Francis Hospital’s Motion to Dismiss
St. Francis Hospital has moved to dismiss the complaint. It argues that it has never been
served with a summons and complaint as required by Federal Rule of Civil Procedure 4(m).
Mr. Ortiz paid the filing fee at the time when counsel filed the complaint on his behalf in
September, 2013. However, Mr. Ortiz has filed an application to proceed in forma pauperis now
that he is appearing pro se. The application to proceed in forma pauperis will be granted based
on the information provided therein.
Federal Rule of Civil Procedure 12(b)(5) allows a defendant to challenge “departures
from the proper procedure for serving a summons and complaint.” 5B Charles Alan Wright &
Arthur R. Miller, Federal Practice & Procedure § 1353 (3d ed. 2015). Rule 4 sets forth the
requirements for service of process in all civil actions in United States District Courts, and Rule
12(b) incorporates them. See id. Under Rule 4(c)(1), a summons must be served with a copy of
the complaint, and “[t]he plaintiff is responsible for having the summons and complaint served
within the time allowed by Rule 4(m)…” FED. R. CIV. P. 4(c)(1). Rule 4(c)(2) provides that “any
person who is at least 18 years old and not a party may serve a summons and complaint.” FED. R.
CIV. P. 4(c)(2).
Rule 4(m) provides that if a defendant is not served within 120 days after the complaint is
filed, the court “must dismiss the action without prejudice against that defendant or order that
service be made within a specified time.” FED. R. CIV. P. 4(m). If a plaintiff shows “good cause”
for the failure to timely serve, the court “must extend” the time for service. See id. Good cause
exists where there is a “demonstration of good faith on the part of the party seeking an
enlargement and some reasonable basis for noncompliance within the time specified in the
rules.” MCI Telecomm. Corp. v. Teleconcepts, Inc., 71 F.3d 1086, 1097 (3d Cir. 1995) (citing
Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1312 (3d Cir. 1995) (Becker, J., concurring
in part and dissenting in part)); see also Mathies v. Silver, 450 F. App’x 219, 222 (3d Cir. 2011)
(per curiam). “Some of the factors courts examine in determining whether good cause exists
include: (1) the reasonableness of the plaintiff’s efforts to serve, (2) the prejudice that may befall
a defendant as a consequence of untimely service, and (3) whether plaintiff moved for an
enlargement of time to serve.” See McCray v. Unite Here, No. 13-6540, 2015 WL 1279694, at
*2 (D.N.J. Mar. 20, 2015) (citing MCI Telecomm., 71 F.3d at 1097).
Even if good cause does not exist, the court may consider whether to grant a discretionary
extension of time. See Petrucelli, 46 F.3d at 1305. Among the factors a district court should
consider in deciding whether to extend time for service in the absence of good cause are whether
the refiled action would be barred by the statute of limitations or if the defendant has evaded
service or is concealing a defect in attempted service. See id. at 1305–06. If service is put in issue
by a defendant, a plaintiff has “the burden of proving proper service” or explaining the lack
thereof. See Rivera Lopez v. Municipality of Dorado, 979 F.2d 885, 887 (1st Cir. 1992); see also
Grand Entm’t Grp., Ltd. v. Star Media Sales, Inc., 988 F.2d 476, 488 (3d Cir. 1993).
In this case, service was raised as an issue by St. Francis. Mr. Ortiz bears the burden of
proving sufficient service of process. See Anderson v. Mercer Cnty. Sheriff's Dep't, No. 11-7620,
2013 WL 5703615, at *3 (D.N.J. Oct. 17, 2013) (citing Grand Entm’t Grp., 988 F.2d at 488). As
explained above, Mr. Ortiz has never responded to St. Francis’ argument in its motion to dismiss
that it was never served. Accordingly, Mr. Ortiz fails to show that St. Francis was actually
served. Furthermore, as Mr. Ortiz never responded to St. Francis’ motion to dismiss for failure to
serve, he has failed to make any showing whatsoever that there is good cause to extend the time
to serve. Indeed, Mr. Ortiz has already had twenty-one months to serve St. Francis.
Finally, this Court will not use its discretion to extend the time for Mr. Ortiz to serve St.
Francis. The Court notes that Mr. Ortiz’s claims against St. Francis may be barred by the statute
of limitations if the complaint is dismissed as the statute of limitations is two years for Section
1983 claims in New Jersey. See Patyrak v. Apgar, 511 F. App’x 193, 195 (3d Cir. 2013) (per
curiam) (citing Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir. 2010)). In this case, the
actions giving rise to plaintiff’s claims occurred in 2011 and 2012, respectively. Despite the
potential statute of limitations bar if the claims against St. Francis are dismissed, this Court still
retains discretion to refuse to extend the time to serve the complaint on St. Francis. See Boley v.
Kaymark, 123 F.3d 756, 759 (3d Cir. 1997) (district court still has discretion to refuse to extend
time to serve even if the statute of limitations has run). In this case, plaintiff has been on notice
since St. Francis filed its motion to dismiss in October, 2014, that service would be an issue.
Despite this, Mr. Ortiz has never even responded to the service issue on the record through filing
a response. Accordingly, based on these particular circumstances, the Court will not grant Mr.
Ortiz a discretionary extension of time to serve St. Francis. Thus, St. Francis’ motion to dismiss
will be granted and the complaint against it will be dismissed without prejudice.
B. Defendants Judith Bender & Lisa Renee Mills
In the May 20, 2015 Order, this Court ordered Mr. Ortiz to demonstrate by June 2, 2015
that he has made service of process on defendants Judith Bender and Lisa Renee Mills. As noted
above, Mr. Ortiz did not respond to this Court’s May 20, 2015 Order whatsoever.
This Court can raise the issue of improper service sua sponte. See Doe v. Dimone, No.
12-5825, 2013 WL 3772532, at *4 (D.N.J. July 17, 2013) (citing Reddy v. Medquist, No. 064410, 2009 WL 2413673, at *2 (D.N.J. Aug. 4, 2009) (citing FED. R. CIV. P. 4(m))). The May
20, 2015 Order put Mr. Ortiz on notice that the issue of service of process on Bender and Mills
needed to be addressed by him. See FED. R. CIV. P. 4(m) (“If a defendant is not served within
120 days after the complaint is filed, the court – on motion or on its own after notice to the
plaintiff – must dismiss the action without prejudice against that defendant or order that service
be made within a specified time.”) (emphasis added). For similar reasons as discussed in supra
Part III.A with respect to St. Francis, Mr. Ortiz fails to show that there is good cause to extend
the time for him to serve these two defendants. Furthermore, for the reasons discussed in supra
Part III.A., this Court will also not use its discretion to extend the time to serve Bender and Mills.
Accordingly, the complaint will be dismissed against Bender and Mills without prejudice for
failure to serve.
C. State of New Jersey, DOC and SWSP Motion for Judgment on the Pleadings/Summary
The State Defendants have also filed a motion for judgment on the pleadings and/or
summary judgment. These three defendants argue that all constitutional claims should be
dismissed against them because they are not “persons” amendable to suit under Section 1983.
Additionally, the State Defendants argue that they are entitled to judgment as a matter of law on
Mr. Ortiz’s claim for injunctive relief because he is no longer in custody of DOC. Finally, the
State Defendants assert that Mr. Ortiz fails to plead facts sufficient to warrant punitive damages.
Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss an action for failure
to state a claim upon which relief may be granted. In evaluating a motion to dismiss, ‘“courts
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.’” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009)
(quoting Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). In other words, a
complaint survives 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);
see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
In making this determination at the motion to dismiss stage, a court must take three steps.
See Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010). “First, the court must ‘tak[e]
note of the elements a plaintiff must plead to state a claim.’” Id. (quoting Iqbal, 129 S. Ct. at
1947). “Second, the court should identify allegations that, ‘because they are no more than
conclusions, are not entitled to the assumption of truth.’” Id. (citing Iqbal, 129 S. Ct. at 1950).
“Finally, ‘where there are well-pleaded factual allegations, a court should assume their veracity
and then determine whether they plausibly give rise to an entitlement for relief.’” Id. (quoting
Iqbal, 129 S. Ct. at 1950).
Where a defendant’s motion is one for judgment on the pleadings pursuant to Federal
Rule of Civil Procedure 12(c), it is treated under the same standards as a Rule 12(b)(6) motion
where it alleges that a plaintiff has failed to state a claim. See Turbe v. Gov’t of V.I., 938 F.2d
427, 428 (3d Cir. 1991) (citations omitted); see also Gebhart v. Steffen, 574 F. App’x 156, 158
(3d Cir. 2014).
Mr. Ortiz has failed to state a federal claim against the State Defendants. The State of
New Jersey is not a “person” subject to suit under Section 1983. See Hussein v. New Jersey, 403
F. App’x 712, 715 (3d Cir. 2010) (per curiam) (citing Will v. Mich. Dep’t of State Police, 491
U.S. 58, 66 (1989)); Calhoun v. Young, 288 F. App’x 47, 50 (3d Cir. 2008) (per curiam).
Similarly, the DOC is not a “person” subject to suit under Section 1983. See Adams v.
Hunsberger, 262 F. App’x 478, 481 (3d Cir. 2008) (per curiam) (District Court properly
dismissed Section 1983 claims against state department of corrections as it is not a “person”
within the meaning of Section 1983) (citing Will, 491 U.S. at 71); Nadal v. Christie, No. 135447, 2014 WL 2812164, at *4 (D.N.J. June 23, 2014) (the New Jersey Department of
Corrections is not a “person” for purposes of Section 1983 liability) (citing Tulli-Makowski v.
Community Educ. Ctrs., Inc., No. 12-6091, 2013 WL 1987219, at *3 (D.N.J. May 13, 2013)
(citing Grabow v. Southern State Corr. Facility, 726 F. Supp. 537, 538-39 (D.N.J. 1989))).
Additionally, the SWSP is not a “person” subject to suit under Section 1983. See Cook v. Shah,
No. 09-6523, 2010 WL 5464234, at *5 (D.N.J. Dec. 28, 2010) (dismissing SWSP as a defendant
because it is not a “person” subject to suit under Section 1983) (citation omitted); Musto v.
Bugler Tobacco Co., No. 05-4781, 2006 WL 572827, at *3 (D.N.J. Mar. 2, 2006)) (citations
Additionally, it is worth noting that Mr. Ortiz would not be entitled to injunctive relief
against these State Defendants at this time. Mr. Ortiz admits that has been released from prison
on parole. (See Dkt. Nos. 36 & 37.)
A federal court does not have the power to decide moot questions.
See North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30
L.Ed.2d 413 (1971). Article III requires a live case or controversy
throughout the entire litigation; if no live controversy exists, the
court must dismiss the case for lack of jurisdiction. See Lusardi v.
Xerox Corp., 975 F.2d 964, 974 (3d Cir.1992). In general, an
inmate's claim for injunctive and declaratory relief becomes moot
on his release from prison. See Sutton v. Rasheed, 323 F.3d 236,
248 (3d Cir.2003); Abdul–Akbar v. Watson, 4 F.3d 195, 206 (3d
Cir.1993) (holding that once a prisoner was released, he could have
no continuing interest in the prison policies he was challenging).
Cobb v. Yost, 342 F. App'x 858, 859 (3d Cir. 2009) (per curiam). It is not entirely clear what
injunctive relief Mr. Ortiz is seeking in the complaint. However, his release from prison on
parole moots his claim for injunctive relief against the State Defendants. Accord Herder v. Biesh,
No. 09-2470, 2011 WL 861818, at *2 (M.D. Pa. Mar. 9, 2011) (“The only relief Herder seeks in
this case is a consultation with and evaluation by an unbiased physician. His release on parole
from DOC custody moots this request as DOC no longer has custody or control over him. While
it is possible that Herder could at some point in the future return to DOC custody, the mere
possibility of that occurring is too speculative to overcome the mootness of his claim.”) (citing
Abdul-Akbar, 4 F.3d at 207). Accordingly, Mr. Ortiz fails to state a federal claim against the
The complaint also raises state law claims against the State Defendants. The State
Defendants’ motion for judgment on the pleadings does not appear to discuss whether the state
law claims should be dismissed as well. As the State Defendants are entitled to judgment on Mr.
Ortiz’s federal claims, the remaining potential basis for this Court’s jurisdiction over Mr. Ortiz’s
claims against the State Defendants is supplemental jurisdiction pursuant to 28 U.S.C. § 1367.
When a court has dismissed all claims over which it had original federal-question jurisdiction, it
has the discretion to decline to exercise supplemental jurisdiction over the remaining state law
claims. See 28 U.S.C. § 1367(c)(3). Because Mr. Ortiz’s federal claims against the State
Defendants no longer remain, this Court will exercise its discretion to decline supplemental
jurisdiction over the state law claims against the State Defendants. 3
For the foregoing reasons, St. Francis’ motion to dismiss is granted and the complaint
will be dismissed without prejudice against it for failure to serve. The complaint will also be
dismissed without prejudice against defendants Bender and Mills. The State Defendants’ motion
for judgment on the pleadings is granted and judgment will be entered in favor of the State
Defendants on plaintiff’s federal claims. The Court declines to exercise supplemental jurisdiction
over plaintiff’s state law claims against the State Defendants. An appropriate Order will be
DATED: June 15, 2015
s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge
The State Defendants’ argument that Mr. Ortiz is not entitled to punitive damages need not be
considered by this Court in light of the dismissal of the federal claims against the State
Defendants and the decline of supplemental jurisdiction over Mr. Ortiz’s state law claims against
the State Defendants.
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