MASSARO v. BALICKI et al

Filing 22

OPINION. Signed by Judge Noel L. Hillman on 8/5/2016. (dmr)(n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
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:
:
Plaintiff,
:
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v.
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:
KAREN BALICKI, et al.,
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Defendants.
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___________________________________:
LAWRENCE MASSARO,

Civ. No. 13-6958 (NLH)
OPINION

APPEARANCES:
Lawrence Massaro, # 578722/SBI 903523
Northern State Prison
P.O. Box 2300
Newark, NJ 07114
Plaintiff Pro se
HILLMAN, District Judge
Plaintiff Lawrence Massaro, a prisoner confined at Northern
State Prison in Newark, New Jersey, filed this civil rights
action pursuant to 42 U.S.C. § 1983. (ECF No. 1).

The case was

administratively terminated three times due to Plaintiff’s
failure to satisfy the filing fee requirement. (ECF Nos. 3, 12,
15).

On March 28, 2016, this Court denied Plaintiff’s

application to proceed in forma pauperis. (ECF No. 19).
Thereafter, Plaintiff paid the filing fee and the case was
reopened for review by a judicial officer.
At this time the Court must screen the Complaint to
determine whether it should be dismissed as frivolous or

malicious, for failure to state a claim upon which relief may be
granted, or because it seeks monetary relief from a defendant
who is immune from suit pursuant to 28 U.S.C. § 1915A(b).

For

the reasons set forth below, the Court will dismiss the claims
against Defendants Baliki, Soliman, Martin, Correctional Medical
Services, Shrager, and Mehta for failure to state a claim upon
which relief can be granted.

The remaining claims and

defendants will not be dismissed at this time.
I.

BACKGROUND

Plaintiff asserts that Defendants acted with deliberate
indifference to his serious medical need in violation of his
Eighth Amendment rights.

Specifically, Plaintiff explains that

he was diagnosed with multiple incisional hernias which required
corrective surgery. (Compl. 4, ECF No. 1).

Approximately four

months after the surgery, Plaintiff experienced pain,
obstruction of his bowls and a distended abdomen.
additional medical treatment. (Id. at 4-5).

He sought

More than a year

after the initial surgery, another surgery was performed and his
condition was addressed. (Id. at 6).

Plaintiff contends that

defendants acted with deliberate indifference by failing to
provide “reasonable, timely and adequate medical care” after he
experienced complications, and by failing to take “immediate
corrective action.” (Id.).

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II.

STANDARDS OF REVIEW

A. Sua Sponte Dismissal
Per the Prison Litigation Reform Act, Pub.L. 104–134, §§
801–810, 110 Stat. 1321–66 to 1321–77 (Apr. 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 42 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.

This action is subject to sua

sponte screening for dismissal under 28 U.S.C. § 1915A because
Plaintiff is a prisoner and is seeking relief from government
employees.
Every complaint must comply with the pleading requirements
of the Federal Rules of Civil Procedure.

Rule 8(a)(2) 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).
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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 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.” Fair
Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir.
2014) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
“The plausibility determination is ‘a context-specific task that
requires the reviewing court to draw on its judicial experience
and common sense.’” Connelly v. Lane Const. Corp., 809 F.3d 780,
786-87 (3d Cir. 2016) (quoting Iqbal, 556 U.S. at 679); see also
Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012) (citations
omitted).

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

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conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678
(citations omitted).
In general, where a complaint subject to statutory
screening can be remedied by amendment, a district court should
not dismiss the complaint with prejudice, but should permit the
amendment. Denton v. Hernandez, 504 U.S. 25, 34 (1992); Grayson
v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir. 2002)
(noting that leave to amend should be granted “in the absence of
undue delay, bad faith, dilatory motive, unfair prejudice, or
futility of amendment”), cited in Thomaston v. Meyer, 519 F.
App’x 118, 120 n.2 (3d Cir. 2013); Urrutia v. Harrisburg County
Police Dept., 91 F.3d 451, 453 (3d Cir. 1996).
Finally, 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).
Nevertheless, “pro se litigants still must allege sufficient
facts in their complaints to support a claim.” Mala v. Crown Bay
Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation
omitted).

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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 ... 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 . . . .
42 U.S.C. § 1983.
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. West v. Atkins, 487 U.S. 42, 48, 108
S. Ct. 2250, 2255, 101 L.Ed.2d 40 (1988); Malleus v. George, 641
F.3d 560, 563 (3d Cir. 2011).
C. Eighth Amendment Deliberate Indifference Claim
The Eighth Amendment proscription against cruel and unusual
punishment requires that prison officials provide inmates with
adequate medical care. Estelle v. Gamble, 429 U.S. 97, 103–04
(1976).

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
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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.’” Hudson v. McMillian, 503 U.S. 1, 9,
112 S. Ct. 995, 1000, 117 L. Ed. 2d 156 (1992)
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
doctor's attention, and those conditions which, if untreated,
would result in lifelong handicap or permanent loss. See Johnson
v. Stempler, 373 F. App'x 151, 153 n.1 (3d Cir. 2010) (citing
Monmouth County Correctional Institutional Inmates v. Lanzaro,
834 F.2d 326, 347 (3d Cir. 1987), cert. denied, 486 U .S. 1006
(1988)).
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, 114 S. Ct. 1970, 128 L. Ed. 2d
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811 (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.” White v. Napoleon, 897 F.2d
103, 110 (3d Cir. 1990).
Rather, 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 v. Camden Cnty. Corr.
Facility, 318 F.3d 575, 582 (3d Cir. 2003).

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 Pierce v. Pitkins, 520 F. App'x 64, 66 (3d Cir.
2013) (citing Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.
1999)).
D. Personal Involvement
The Third Circuit has “consistently held that ‘[a]
defendant in a civil rights action must have personal
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involvement in the alleged wrongs; liability cannot be
predicated solely on the operation of respondeat superior.’”
Batts v. Giorla, 550 F. App'x 110, 112 (3d Cir. 2013) (quoting
Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)); see
also Tenon v. Dreibelbis, 606 F. App'x 681, 688 (3d Cir. 2015)
(§ 1983 claims may not be based on vicarious liability, each
defendant must have “personal involvement, including
participation, or actual knowledge and acquiescence, to be
liable”).
III. DISCUSSION
The crux of Plaintiff’s Complaint is that Defendants, upon
learning of Plaintiff’s failed surgical procedure, failed to
take immediate corrective action. See (Compl. 6, 7, 8, ECF No.
1).

However, Plaintiff does not make specific allegations that

Defendants Baliki, Soliman, Martin, Correctional Medical
Services, Shrager, or Mehta had any involvement in, or knowledge
of, Plaintiff’s post-surgery treatment.
First, Plaintiff does not plead any facts with respect to
Defendant Baliki.

Next, with respect to Defendants Martin and

Soliman, Plaintiff states only that “Dr. Soliman approved
emergency transport” when Plaintiff experienced pain after his
surgery; and that Dr. Martin placed Plaintiff in the Extended
Care Unit for observation. (Compl. 5, ECF No. 1).

These limited

factual allegations do not suggest that these Defendants acted
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with deliberate indifference; and, to the contrary, suggest that
he received adequate care.

Moreover, Plaintiff explains that

his claims against Defendants Baliki, Soliman, and Martin are
predicated on their roles as supervisors (Compl. 2-3, ECF No.
1), and on their “lack of administrative oversight” (id. at 6).
As explained above, however, a supervisor may not be personally
liable absent any personal involvement or actual knowledge. See,
e.g., Ramos v. Lt. Daye, No. 16-0050, 2016 WL 482019, at *4
(D.N.J. Feb. 8, 2016) (dismissing claims against supervisors
where plaintiff pled no more than a conclusory allegation of
supervisory liability).
Similarly, the only factual allegation as to Defendants
Shrager and Mehta is that they participated in Plaintiff’s
initial surgery.

However, Plaintiff’s claims are based on his

post-surgery treatment and Defendants’ alleged failure to take
immediate corrective action when he experienced complications
nearly four months after his initial surgery.

Nothing in the

Complaint suggests that Defendants Shrager or Mehta had any
knowledge of, or personal involvement in, Plaintiff’s postsurgery treatment.
Finally, in order to establish liability as to Correctional
Medical Services, Plaintiff would have to allege that the
medical staff’s actions were the result of some policy or
custom, the implementation of which resulted in a violation of
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Plaintiff’s constitutional rights. Natale v. Camden Cty. Corr.
Facility, 318 F.3d 575, 584 (3d Cir. 2003) (citing Monell v.
Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 98 S.
Ct. 2018, 56 L. Ed. 2d 611 (1978)).

Because Plaintiff has not

articulated any such policy or custom, he has failed to
adequately plead a cause of action against Correctional Medical
Services. See Dubois v. Vargas, 148 F. App'x 111, 114 (3d Cir.
2005) (affirming district court’s dismissal of claims against
Correctional Medical Services because plaintiff had not
articulated any policy or custom which resulted in a violation
of his constitutional rights).
As explained above, Plaintiff has not pled any facts which
suggest that these defendants were aware of, or involved in, the
specific medical treatment decisions or the failure to give
immediate corrective treatment which Plaintiff alleges violated
his constitutional rights.

Accordingly, he has not adequately

pled a cause of action against them.

Plaintiff’s general and

conclusory allegations that these defendants violated his Eighth
Amendment rights are insufficient to state a cause of action.
See Twombly, 550 U.S. at 555 (holding that entitlement to relief
requires more than labels and conclusions); Iqbal, 556 U.S. at
678 (“Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.”). For
these reasons, Plaintiff’s claims against Defendants Baliki,
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Soliman, Martin, Correctional Medical Services, Shrager, and
Mehta will be dismissed without prejudice.
However, with respect to Defendant Shah and the John Doe
Defendants, Plaintiff asserts that these defendants were aware
of his failed surgery and of his painful medical condition;
namely, his “recurrent ventral hernia.” (Compl. 4, ECF No. 1).
Plaintiff further asserts that Defendant Shah and the John Doe
Defendants failed to take immediate corrective action, and also
delayed treatment — a corrective surgery — for a period of over
three months.
this claim.

The Court makes no findings as to the merits of
Nevertheless, based on the factual allegations set

forth above, his Eighth Amendment claim against Defendant Shah
and the John Doe Defendants will not be dismissed at this time.
IV.

REQUEST FOR PRO BONO COUNSEL

Plaintiff attaches to his Complaint a request for the
appointment of pro bono counsel. (Compl. 11-16, ECF No. 1).
A. Standard
The court may, pursuant to § 1915(e), request an attorney
to represent an indigent plaintiff in a civil action. See 28
U.S.C. § 1915(e)(1) (“The court may request an attorney to
represent any person unable to afford counsel.”).

District

courts have broad discretion to request counsel for indigent pro
se litigants, but such appointment is a privilege, not a
statutory or constitutional right of the litigant. Brightwell v.
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Lehman, 637 F.3d 187, 192 (3d Cir. 2011) (citation omitted);
Montgomery v. Pinchak, 294 F.2d 492, 498 (3d Cir. 2002); see
also Speller v. Ciccero, No. 13-1258, 2013 WL 1121377, at *1
(D.N.J. Mar. 12, 2013).
The decision to appoint pro bono counsel involves a twostep analysis.

First, a court must determine as a threshold

matter whether plaintiff’s claim has “some merit in fact and
law.” Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993).

If a

court finds that the action arguably has merit, it should then
consider the following factors (hereafter, the “Tabron/Parham
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;
(6) whether the plaintiff can attain and afford
counsel on his own behalf.
Parham v. Johnson, 126 F.3d 454, 457 (3d Cir. 1997) (citing
Tabron, 6 F.3d at 155-56, 157 n.5).

This list is not

exhaustive, nor is any one factor determinative. Id. at 458.
Rather, the Tabron/Parham factors should serve as a guidepost to
ensure that courts will only appoint counsel in non-frivolous
matters. Id.

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If a pro se plaintiff is incarcerated, a court should
additionally consider constraints caused by detention, such as
whether photocopiers, telephones, and computers are made
available to the prisoner plaintiff’s use. Tabron, 6 F.3d at
156.

This factor weighs against appointing counsel if a court

ultimately concludes that a plaintiff has the baseline ability
to adequately present his case. See Gordon v. Gonzalez, 232 F.
App’x 153, 157 (3d Cir. 2007).
B. Analysis
Plaintiff addresses the Tabron factors in his request.

He

contends that this case will be legally and factually complex
(Compl. 14-15, ECF No. 1); that his ability to investigate is
limited because he is incarcerated (Id. at 15); that he is
indigent and without legal training (Id.); that his claims are
meritorious (Id. at 16); and that the case will likely turn on
credibility (Id.).
As an initial matter, this Court notes that indigence is a
prerequisite for the appointment of pro bono counsel. See Bagby
v. Hooper, No. 16-686, 2016 WL 1046794, at *3 (D.N.J. Mar. 16,
2016) (“Being certified to proceed IFP meets a necessary
condition for having counsel appointed . . .”); see also Clinton
v. Jersey City Police Dep't, No. 07-5686, 2009 WL 2230938, at *1
(D.N.J. July 24, 2009) (holding that “indigence is a
prerequisite for the appointment of counsel”).
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Here, however,

Plaintiff was denied in forma pauperis status and, thus, has not
established his indigence.
Nevertheless, the Court notes that Plaintiff has put forth
a cogent argument in support of the appointment of counsel.

He

explains that he has only an eight grade education, demonstrates
only a third grade reading and writing level, and was assisted
in the preparation of his Complaint and other documents by an
inmate paralegal.
Additionally, as Plaintiff points out, a “case alleging
deliberate indifference to a prisoner’s serious medical needs
can raise sufficiently complex legal issues to require
appointment of counsel.” Montgomery v. Pinchak, 294 F.3d 492,
502 (3d Cir. 2002).

The Third Circuit explained in Montgomery

that deliberate indifference allegations can raise sufficiently
complex legal issues because “even where ‘the ultimate [legal]
issue appears relatively simple ... [s]implicity in the
allegation supporting the claim does not translate into
simplicity in the presentation of the claim.”’ Id. (citing
Parham, 126 F.3d at 459)).

Specifically, the plaintiff in

Montgomery had difficulty “complying with requirements for
formulating discovery requests [which] hindered the presentation
of his claim.” Id. at 503.
In this case, however, discovery has not yet begun.
Accordingly, the true legal and factual complexity of
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Plaintiff’s claims are unclear; and there is no indication, at
this time, that Plaintiff is hindered in his ability to pursue
necessary factual investigation.

Further, at this early stage

of the litigation, it is difficult to assess the merits of
Plaintiff’s claims.

Plaintiff asserts that he will need

assistance at trial but, at this early stage, it is unclear
whether the case will proceed to trial.

Moreover, although he

was assisted by an inmate paralegal, the contours of Plaintiff’s
underlying argument are clear and Plaintiff’s submissions
reference, with accuracy, relevant case law.

Where, as here,

Defendants have not yet filed a responsive pleading, discovery
has not begun, and the merits and complexity of Plaintiff’s
claims are unclear, the appointment of counsel is premature.
After considering the various Tabron factors, the Court will
deny Plaintiff’s request at this time. See, e.g., Barnes v.
Edwards, No. 13-4239, 2014 WL 3953189, at *2 (D.N.J. Aug. 13,
2014) (denying appointment of pro bono counsel at early stage in
the litigation).

This denial is without prejudice to

Plaintiff’s right to seek pro bono counsel at a later date.
V.

REQUEST FOR PRODUCTION OF DOCUMENTS

Plaintiff also submits a request for production of
documents with his Complaint. (Compl. 17-21, ECF No. 1), and he
lists the types of documents he seeks from each defendant.
Plaintiff’s request is denied as moot because he filed it before
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the Court’s sua sponte screening of the Complaint, before
serving Defendants with the Complaint, and before the
commencement of the Court-supervised discovery process.
Plaintiff may request discovery directly from Defendants during
the discovery process and, if he encounters any difficulties, he
may raise these issues with the Court at the appropriate time.
VI.

CONCLUSION

For the foregoing reasons, Defendants Baliki, Soliman,
Martin, Correctional Medical Services, Shrager, and Mehta will
be dismissed without prejudice from this action pursuant to 28
U.S.C. § 1915A.

Because it is possible that Plaintiff may be

able to amend or supplement his complaint with facts sufficient
to overcome the deficiencies noted herein, Plaintiff shall be
given leave to amend his Complaint pursuant to Federal Rule of
Civil Procedure 15. 1

See Denton, 504 U.S. at 34; Grayson, 293

F.3d at 108.
Plaintiff’s claims against Defendant Shah and the John Doe
defendants will not be dismissed at this time.

1

Plaintiff’s

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.
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request for pro bono counsel is denied; and Plaintiff’s request
for the production of documents is denied.
An appropriate Order will be entered.

__s/ Noel L. Hillman___
NOEL L. HILLMAN
United States District Judge

Dated: August 5, 2016
At Camden, New Jersey

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