GAINES v. BUSNARDO et al

Filing 33

OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 12/23/14. (js)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_______________________________
:
HERMAN GAINES,
:
:
Plaintiff,
:
:
v.
:
:
BRAD BUSNARDO, et al.,
:
:
Defendants.
:
:

Civil Action No. 13-6566(JBS)

OPINION

APPEARANCES:
Herman Gaines, Pro Se
429989/233523C
New Jersey State Prison
P.O. Box 861
Trenton, NJ 08625
Thomas B. Reynolds, Esq.
Reynolds & Horn
750 Route 73 South, Suite 202A
Marlton, NJ 08053
Attorney for Defendants Busnardo, Green

SIMANDLE, Chief Judge
This matter comes before the Court upon Plaintiff’s Motion
for Summary Judgment, to appoint counsel, and for a Writ of
Habeas Corpus ad testificandum (Docket Item 26), filed on March
4, 2014, and Defendants’ Motion for Summary Judgment (Docket
Item 31). The Court has carefully considered the Parties’
motions, oppositions, and arguments.

For good cause shown,

Plaintiff’s motion will be denied. Defendants’ motion will be
granted in part, denied in part. Plaintiff’s Eighth Amendment
claims will be permitted to proceed; however, Plaintiff’s
medical malpractice claims will be dismissed.
I.

Background
Plaintiff argues that on or about September 10-16, 2011, he

suffered a ruptured Achilles’ tendon while he was a prisoner at
the South Woods State Prison (“SWSP”). He states that he
informed Defendants Busnardo and Green that he “felt a pop” at
the back of his left ankle while playing basketball (see

Docket

Item 18, Plaintiff’s Pretrial Memorandum). Plaintiff was in
intense pain and his ankle was swollen. Neither Defendant
performed a Range of Motion test, according to Plaintiff. They
gave Plaintiff Motrin and an ACE bandage. Plaintiff notes that
while Defendants claim they gave him a “brace,” the actual item
given to him was an ankle “sleeve,” that did not provide enough
support for him while walking on a ruptured tendon. (Id.).
Plaintiff argues that Defendants, “to avoid the workload”
deliberately mischaracterized his injury as a sprained ankle;
however, Plaintiff believes Defendants knew that the injury was
much more serious than that. Plaintiff contends that he should
be permitted to present his case to a jury to prove that
Defendants “lied.” (Id.). Plaintiff continued to have pain until
he was finally given crutches. He states in his pretrial
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memorandum that he wanted to procure an expert to “deliver
testimony concerning whether Motrin, and ACE bandage, and an
ankle sleeve (brace) can address the serious medical need of
walking on a ruptured Achilles’ tendon and to also testify as to
the physical ramifications and what occurs when a person bears
his weight on a ruptured tendon.” (Id.).
Defendants’ Statement of Material Facts (Docket Item 31-5)
reiterates Plaintiff’s statements in the Complaint and in answer
to interrogatories.
II.

Plaintiff’s Summary Judgment Motion
This Court has reviewed Plaintiff’s Motion (Docket Item

26), filed pro se. It does not appear to be a motion at all, but
instead, opposition to a previously-filed Motion for Summary
Judgment by Defendants which was withdrawn on September 10, 2014
(see Docket Item 32). In the opposition/motion, Plaintiff argues
that the previously-filed Motion for Summary Judgment should
have been denied, and summary judgment granted to him, instead.
Plaintiff argues that Defendants “admitted themselves in the
medical reports which they prepared that they were aware of
plaintiff’s pain and they’ve made no argument, in their motion,
showing that an expert is required to prove the existence of
pain (which defendants were deliberately indifferent to).”
(Plaintiff’s Brief, Docket Item 26-1).

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Plaintiff also reasserts his Eighth Amendment claim, states
that “it’s abundantly clear that plaintiff is way out of his
league and has no idea what he’s doing.” (Brief, p. 12).
In response to the opposition/motion filed by Plaintiff,
Defendants submitted a Reply Brief (Docket Item 27), which
points out that Plaintiff admittedly knew that he needed an
Affidavit of Merit and attempted to secure one, and that
Plaintiff’s argument that he does not need a medical expert to
prove the existence of his pain is meritless under Third Circuit
law. (Docket Item 27 at p. 3).
III. Defendants’ Motion for Summary Judgment
Defendants filed a Motion for Summary Judgment on June 2,
2014 (Docket Item 31). They argue that Plaintiff’s state law
claims must be dismissed for failure to serve an appropriate
Affidavit of Merit, and that Plaintiff’s Eighth Amendment claims
must be dismissed for failure to serve an expert report.
Plaintiff did not respond to Defendants’ motion.
IV.

Legal Standard & Analysis
1.

Summary Judgment Standard

Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A dispute is “genuine” if “the evidence is such that a
reasonable jury could return a verdict for the non-moving
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party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A fact is “material” only if it might affect the outcome
of the suit under the applicable rule of law. See id. Disputes
over irrelevant or unnecessary facts will not preclude a grant
of summary judgment. See id. The Court will view any evidence in
favor of the nonmoving party and extend any reasonable favorable
inferences to be drawn from that evidence to that party. See
Scott v. Harris, 550 U.S. 372, 378 (2007). 1
2.

Affidavit of Merit Issue

Plaintiff’s claim for medical malpractice in the diagnosis
and treatment of his injury arises under New Jersey law. This
Court has supplemental jurisdiction under 28 U.S.C. § 1367(a).
Defendants assert that this action must be dismissed
because Plaintiff failed to 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
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This Court will deny Plaintiff’s Motion for Summary
Judgment as Plaintiff has not shown in the motion that there is
no genuine dispute as to any material fact and that he is
entitled to judgment as a matter of law.
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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 cause.
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.

N.J.S.A. 2A:53A-27. However, under certain circumstances, a
sworn statement by the plaintiff may be provided in lieu of an
affidavit of merit. See N.J.S.A. 2A:53A-28.
The New Jersey affidavit of merit statute therefore
requires “plaintiffs to make a threshold showing” of merit,
Vitale v. Carrier Clinic, Inc., 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
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Burns v. Belafsky, 166 N.J. 466, 766 A.2d 1095, 1099 (2001)).
See also Fontanez v. United States, --- F. Supp.2d ----, 2014 WL
2608386, *2 (D.N.J. May 30, 2014). 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 cause[.]”

N.J.S.A. 2A:53A-27.

Failure to file a timely affidavit of merit generally
“requires dismissal of the action with prejudice.” Nuveen Mun.
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). 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-of-merit
requirement;” or (iv) “‘extraordinary circumstances’ that
warrant equitable relief.” Id. (citations omitted).
In this case, Plaintiff has failed to allege or support any
of the four limited exceptions to preclude dismissal with
prejudice of his medical negligence claim. Further, the mere
fact of Plaintiff’s pro se status does not constitute
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extraordinary circumstances to overcome the affidavit of merit
requirement. See Kant v. Seton Hall University, Civil No. 005204, 2009 WL 2905610 (D.N.J. Sep. 9, 2009).

See also Lee v.

Thompson, 163 F. App’x 142, 144 (3d Cir. 2006) (holding that
plaintiff’s status as a pro se litigant does not excuse his
failure to file an affidavit of merit); Allah v. MHSM, Inc.,
Civil No. 07-2916, 2008 WL 5115889, *3 (D.N.J. Dec. 2, 2008)
(same as applied to a pro se prisoner litigant).
Therefore, because Plaintiff has not filed an Affidavit of
Merit, or a substantial equivalent, and because the time to file
an Affidavit of Merit has now expired, the Court will grant
Defendants’ Motion for Summary Judgment on the medical
malpractice claim. This Court will order the dismissal of the
state medical malpractice claim to be without prejudice. The
Court notes, however, that Plaintiff’s Complaint alleges facts
that, if true, may support his Eighth Amendment denial of
medical care claim under 42 U.S.C. § 1983. Accordingly,
Plaintiff’s Eighth Amendment claims will proceed at this time.
3.

Eighth Amendment Claim

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
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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
(1992).
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,
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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 in addressing a serious medical
condition 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 non-medical
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
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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, the Court finds that there are material facts in
dispute as to Plaintiff’s treatment, and whether or not the
delay caused by Defendants in providing him crutches was
deliberately indifferent to his serious medical needs. As such,
this Court will allow the Eighth Amendment claims to proceed
through litigation.
4.

Appointment of Counsel

In addition, this Court has reviewed Plaintiff’s
application to proceed in forma pauperis, filed April 14, 2014,
and finds that Plaintiff qualifies for pauper status. Because
Plaintiff’s request for an attorney in his Motion for Summary
Judgment is incomplete, the Clerk will be requested to provide
Plaintiff with a blank form to be used by a prisoner filing an
application for pro bono counsel in a civil rights case (DNJProSe-001-04-(9/00)), and Plaintiff will be permitted to file a
renewed Motion to Appoint Counsel.

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IV.

Conclusion
For the reasons set forth above, and for other good cause

shown, it is hereby ordered that Plaintiff’s Motion for Summary
Judgment will be denied, without prejudice. Defendants’ Motion
for Summary Judgment will be granted as to Plaintiff’s medical
malpractice claim, which will be dismissed without prejudice.
The remaining constitutional claims under the Eighth Amendment
will proceed. Plaintiff’s application to proceed in forma
pauperis will be granted.
An Order consistent with this Opinion will be entered.

s/ Jerome B. Simandle
JEROME B. SIMANDLE, Chief Judge
United States District Court
Dated:

December 23, 2014

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