Shepherd v. PALMER et al

Filing 36

OPINION. Signed by Judge Noel L. Hillman on 9/25/2015. (tf,n.m.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
:
:
Plaintiff,
:
:
v.
:
:
FEDERAL BUREAU OF PRISONS, et al., :
:
Defendants.
:
___________________________________:
ARTHUR E. SHEPHERD,

Civ. No. 14-2992 (NLH)
OPINION

APPEARANCES:
Surinder K. Aggarwal,
One University Plaza
Suite 617
Hackensack, NJ 07601
Attorney for Plaintiff
Anne B. Taylor
Office of the U.S. Attorney
401 Market Street, 4th Floor
P.O. Box 2098
Camden, NJ 08101
Attorney for Defendants

HILLMAN, District Judge
This matter is presently before the Court on a Motion to
Dismiss (ECF No. 27) filed by Defendants.

For the reasons set

forth below, Defendants’ Motion to Dismiss will be DENIED.
I.

PROCEDURAL HISTORY AND FACTUAL BACKGROUND

A. PROCEDURAL HISTORY
On or about March 3, 2014, Plaintiff Arthur E. Shepherd,
formerly a prisoner confined at the Federal Correctional

Institution (“FCI”) in Fairton, New Jersey, filed this civil
action asserting claims pursuant to Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619
(1971). (ECF No. 1).

The case was initially filed in the United

States District Court for the Western District of Louisiana.
On May 9, 2014, the case was transferred to the District of
New Jersey. (ECF No. 8).

In an Order dated June 25, 2014, this

Court granted Plaintiff’s request to proceed in forma pauperis,
dismissed without prejudice Plaintiff’s equal protection claim,
and dismissed without prejudice Plaintiff’s claims against the
United States and the Federal Bureau of Prisons. (ECF No. 10).
Plaintiff’s Eighth Amendment claim for inadequate medical care
was permitted to proceed against Defendants Lieutenant Palmer,
Lieutenant K. Hampton, Dr. Morales, Warden J.T. Shartle, and the
Unknown Medical Employees. (Id.).

Summons issued as to those

defendants.
On or about August 18, 2014, Plaintiff filed a motion
requesting the appointment of pro bono counsel. (ECF No. 14).
The Court granted his request on September 15, 2014 (ECF No.
19), and on October 3, 2014, Surinder K. Aggarwal, Esq. filed a
Notice of Appearance (ECF No. 21).
On December 9, 2014, Defendants were granted an extension
of time to respond to the Complaint. (ECF No. 25).

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On January

30, 2015, Defendants filed the instant Motion to Dismiss. (ECF
No. 27).
B. FACTUAL BACKGROUND
The factual background of this case does not appear to be
in dispute.

The following information is taken from the

allegations of the Complaint (ECF No. 1), the Amended Complaint 1
and its attachments (ECF No. 15), as well as from the procedural
history outlined in Defendants’ Motion to Dismiss (ECF No. 27).
Plaintiff’s Complaint involves incidents which occurred
while Plaintiff was incarcerated at FCI Fairton.

On or about

May 15, 2012, Plaintiff was involved in a physical altercation
with other inmates during which he sustained injury in and
around his right eye.

The day of the injury, Plaintiff was

taken to an outside facility in Vineland, New Jersey for
emergency medical treatment, and was diagnosed with an orbital
fracture, closed head injury, and lip laceration.

He was also

examined by medical staff at FCI Fairton upon his return.
On May 21, 2012, Plaintiff was examined again by prison
medical personnel, at which time it was noted that he was

1

On August 7, 2014, the Court granted Plaintiff leave to file an
amended complaint. (ECF No. 13). Thereafter, Plaintiff
submitted an “Affidavit.” (ECF No. 15). In an Order dated
September 4, 2014, the Court construed Plaintiff’s “Affidavit”
as the Amended Complaint permitted by the prior Order. Further,
the Court construed the Amended Complaint as incorporating, by
reference, the original Complaint (ECF No. 1).
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scheduled for reconstructive plastic surgery for his facial
fracture.

On June 1, 2012, he went to an appointment at Cooper

Oral and Maxillofacial Surgery and was again examined by prison
medical staff upon his return to FCI Fairton.
On July 5, 2012, Plaintiff was examined at Health Services
at FCI Fairton for an optometry encounter, in response to
Plaintiff’s complaints about his vision.

During that

appointment, he was found to have a macular hole, an orbital
fracture, and reduced vision secondary to the macular hole.
Plaintiff was referred to ophthalmology for management of the
macular hole.
On July 23, 2012, Plaintiff was sent to an outside facility
for an ophthalmologist consult where he was diagnosed with a
detached retina and surgery was recommended.

Plaintiff was seen

by another outside specialist on July 26, 2012 who again
diagnosed him with a retinal detachment in his right eye.
On August 10, 2012 Plaintiff was referred again to an
ophthalmologist for another follow-up and a second opinion.
Plaintiff was seen on two more occasions before his transfer
from FCI Fairton on September 24, 2012.
In his Complaint, Plaintiff alleges that Dr. Morales and
the other medical professionals at FCI Fairton disregarded
Plaintiff’s serious medical need.

Specifically, Plaintiff

asserts that Defendants did not permit Plaintiff to receive
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proper medical treatment, did not permit Plaintiff to attend a
scheduled optometrist’s visit, and did not provide Plaintiff
with medical attention in the form of a “check up, eye test,
swelling of head, retina area, etc. until 94 days later.” 2
(Compl. 3, ECF No. 1).

Plaintiff contends that, due to the

medical staff’s delay in treatment, his “injuries had progressed
and reached a point where they were irreversable [sic].” (Id.).
Plaintiff contends that he notified Defendants Lieutenant
Palmer, Lieutenant K. Hampton, Dr. Morales, Warden J.T. Shartle,
and the Unknown Medical Employees on multiple occasions of his
pain and of his need to see a specialist. (Compl. 4, ECF No. 1).
Plaintiff states that Defendants ignored his requests.
Plaintiff further alleges that Defendants attempted to conceal
their disregard for Plaintiff’s condition by supplementing their
files with notes and creating a paper trail. (Am. Compl. 2-3,
ECF No. 15).
II.

DISCUSSION

The Court notes that this motion is labeled on the docket
as a “Motion to Dismiss,” and is described in Defendants’ Notice
of Motion as a motion “for an Order dismissing this action for
failure to exhaust administrative remedies and failure to state
a claim against the non-medical defendants.” (Notice of Mot. 1-

2

Plaintiff later changes this timeframe to “68 days after the
incident.” (Am. Compl. 3, ECF No. 15).
5

2, ECF No. 27).

However, the title of Defendants’ brief

describes the motion as a “Motion to Dismiss the Complaint or,
in the Alternative, for Summary Judgment[.]” (Mot. 1, ECF No.
27-1).

Furthermore, Defendants concede that they rely on

evidence outside of the pleadings; therefore, they more
accurately seek a summary judgment ruling pursuant to Federal
Rule of Civil Procedure 56. (Mot. 9, ECF No. 27-1).
For the reasons set forth below, the motion will considered
as a motion to dismiss and will be DENIED.
A. STANDARD
Defendants have filed a “Motion to Dismiss the Complaint
or, in the Alternative, for Summary Judgment.” (Mot. 1, ECF No.
27-1).

When considering a motion to dismiss pursuant to Federal

Rule of Civil Procedure 12(b)(6) 3, a court must accept all wellpleaded allegations in the complaint as true and view them in
the light most favorable to the plaintiff. Evancho v. Fisher,
423 F.3d 347, 351 (3d Cir. 2005).

It is well settled that a

pleading is sufficient if it contains “a short and plain
statement of the claim showing that the pleader is entitled to

3

Although Defendants do not specify the federal rule upon which
their Motion to Dismiss is premised, their second argument for
relief has a caption which reads: “Claims Against the NonMedical Defendants Should be Dismissed Because Plaintiff Fails
to State a Claim Against Them.” (Mot. 14, ECF No. 27-1). Thus,
it appears that the basis for the motion to dismiss aspect of
their hybrid motion is Rule 12(b)(6). See FED. R. CIV. P. 12(b)(6)
(“failure to state a claim upon which relief can be granted”).
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relief.” FED. R. CIV. P. 8(a)(2).

Under the liberal federal

pleading rules, it is not necessary to plead evidence, and it is
not necessary to plead all the facts that serve as a basis for
the claim. Bogosian v. Gulf Oil Corp., 562 F.2d 434, 446 (3d
Cir. 1977).

However, “[a]lthough the Federal Rules of Civil

Procedure do not require a claimant to set forth an intricately
detailed description of the asserted basis for relief, they do
require that the pleadings give defendant fair notice of what
the plaintiff's claim is and the grounds upon which it rests.”
Baldwin Cnty. Welcome Ctr. v. Brown, 466 U.S. 147, 149–50 n. 3
(1984) (quotation and citation omitted).

Also, while pro se

pleadings are liberally construed, “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) (emphasis added). 4
A district court, in weighing a motion to dismiss, asks
“‘not whether a plaintiff will ultimately prevail but whether
the claimant is entitled to offer evidence to support the
claim.’” Bell Atlantic v. Twombly, 550 U.S. 544, 563 n. 8 (2007)
(quoting Scheuer v. Rhoades, 416 U.S. 232, 236 (1974)); see also

4

Although Plaintiff is now represented, his Complaint and
Amended Complaint were filed before the appointment of pro bono
counsel. Thus, the Court has a duty to construe these pro se
submissions liberally in favor of Plaintiff. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972); United States v. Day, 969
F.2d 39, 42 (3d Cir. 1992).
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Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009) (“Our decision in
Twombly expounded the pleading standard for ‘all civil
actions'....”); Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d
Cir. 2009) (“Iqbal ... provides the final nail-in-the-coffin for
the ‘no set of facts' standard that applied to federal
complaints before Twombly.”).
In reviewing a Rule 12(b)(6) motion, a court must only
consider the facts alleged in the pleadings, the documents
attached to or specifically referenced in the complaint if the
claims are based on those documents, and matters of judicial
notice. S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp.
Ltd., 181 F.3d 410, 426 (3d Cir. 1999); In re Bayside Prison
Litig., 190 F.Supp.2d 755, 760 (D.N.J. 2002); see also Winer
Family Trust v. Queen, 503 F.3d 319, 327 (3d Cir. 2007).
However, if any matters outside the pleadings are presented
to the court, and the court does not exclude those matters, a
Rule 12(b)(6) or Rule 12(c) motion must be treated as a summary
judgment motion pursuant to Rule 56. FED. R. CIV. P. 12(d).
The court has discretion to either convert a motion to
dismiss into a motion for summary judgment, or to ignore the
matters presented outside the pleadings and continue to treat
the filing as a motion to dismiss. See Edwards v. New Jersey,
No. 13-214, 2015 WL 5032680, at *3 (D.N.J. Aug. 25, 2015); Kelly
v. HD Supply Holdings, Inc., No. 14-372, 2014 WL 5512251, at *2
8

(D.N.J. Oct. 31, 2014); Kurdyla v. Pinkerton Sec., 197 F.R.D.
128, 131 (D.N.J. 2000); see also 5C CHARLES ALAN WRIGHT & ARTHUR R.
MILLER, FEDERAL PRACTICE

AND

PROCEDURE § 1366 Conversion of a Rule

12(b)(6) Motion Into a Summary Judgment Motion (3d ed. 2015)
(“As the language of the rule suggests, federal courts have
complete discretion to determine whether or not to accept the
submission of any material beyond the pleadings that is offered
in conjunction with a Rule 12(b)(6) motion and rely on it,
thereby converting the motion, or to reject it or simply not
consider it.”).

Also, it has been suggested that a “court

should not convert a motion to dismiss into a motion for summary
judgment when little discovery has taken place.” Bobo v.
Wildwood Pub. Sch. Bd. of Educ., No. 13-5007, 2014 WL 7339461,
at *4 (D.N.J. Dec. 23, 2014) (citing Kurdyla, 197 F.R.D. at 131,
131 n.8).
B. ANALYSIS
In this case, no discovery has been exchanged outside of
the various submissions filed by the parties.

Moreover,

Defendants’ motion does not include a “Statement of Material
Facts Not in Dispute” as required by Local Civil Rule 56.1(a).
See L. CIV. R. 56.1(a) (“On motions for summary judgment, the
movant shall furnish a statement which sets forth material facts
as to which there does not exist a genuine issue, in separately
numbered paragraphs citing to the affidavits and other documents
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submitted in support of the motion.”).

Thus, even if the Court

were to convert the motion, it would be dismissed for failure to
attach this required document. See id. (“A motion for summary
judgment unaccompanied by a statement of material facts not in
dispute shall be dismissed.”).
For the foregoing reasons, the Court declines to convert
the motion to dismiss into a motion for summary judgment
pursuant to Federal Rule of Civil Procedure 56.

Therefore, the

motion will be analyzed under the motion to dismiss standard
described above.
As their first ground for relief, Defendants seek dismissal
based on Plaintiff’s failure to exhaust his administrative
remedies.

However, exhaustion is an affirmative defense under

the Prison Litigation Reform Act (PLRA); therefore, Plaintiff is
not required to specially plead or demonstrate exhaustion in his
Complaint. See Jones v. Bock, 549 U.S. 199, 127 S. Ct. 910, 166
L. Ed. 2d 798 (2007).
This Court cannot determine based on the allegations of the
Complaint and its attachments that Plaintiff has failed to
exhaust his administrative remedies.

Accordingly, Defendants’

motion to dismiss based on failure to exhaust is denied. See
e.g., Edwards, No. 13-214, 2015 WL 5032680, at *3 (declining to
grant defendants’ motion to dismiss based on exhaustion, or to
convert defendants’ motion into a summary judgment motion);
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Livingston v. Appel, No. 11–2764, 2014 WL 6860539, at *3 (E.D.
Pa. Dec. 5, 2014) (same).
As their second ground for relief, Defendants seek
dismissal of the claims against the non-medical defendants based
on Plaintiff’s failure to state a claim.

Specifically,

Defendants rely on Spruill v. Gillis, 372 F.3d 218 (3d Cir.
2004) and assert that, if a prisoner is under the care of prison
medical personnel, non-medical prison officials cannot be liable
for deliberate indifference to a prisoner's serious medical
needs, under the Eighth Amendment, absent a reason to believe,
or actual knowledge, that prison doctors or their assistants are
mistreating or not treating the prisoner.

Defendants contend

that the allegations of the Complaint and the attachments
thereto sufficiently establish that “Plaintiff received an
amount of care which would make it unreasonable for any nonmedical staff member to conclude his care was insufficient.”
(Mot. 17, ECF No. 27-1).

Thus, Defendants assert that the

claims against the non-medical Defendants must be dismissed.
Indeed, the law is settled in the Third Circuit that nonmedical prison personnel are generally entitled to rely on the
advice and opinions of medical personnel with respect to a
prisoner's treatment and care. See Spruill, 372 F.3d 218.
However, if non-medical prison personnel have a reason to
believe, or actual knowledge, that prison doctors or their
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assistants are mistreating or not treating a prisoner, then they
may be liable. See id; see also Davis v. Prison Health Servs.,
Inc., 558 F. App'x 145, 150 (3d Cir. 2014); Simonds v. Delaware
Cnty., No. CIV.A. 13-7565, 2015 WL 289974, at *6 (E.D. Pa. Jan.
21, 2015) (“Thus, non-physician prison officials with actual
knowledge of mistreatment or non-treatment of an inmate's
serious medical need may be liable for deliberate indifference
under § 1983.”).
Here, Plaintiff asserts that for over 30 days — between
June 1, 2012 and the weekend of July 4, 2012 — he received no
medical care despite the fact that he informed non-medical staff
numerous times of worsening problems with his eye. (Am. Compl.
2, ECF No. 15).

Plaintiff further alleges that he “caused

disruptions, got [himself] maced, defied orders, went to safe
cells, and with[h]eld food trays to get attention to [his]
issue.” (Id.).

Given the alleged lapse in time between

Plaintiff’s medical treatment, and the lengths to which
Plaintiff went to draw attention to his medical issues, the
complaint sufficiently alleges that the non-medical staff had
reason to believe that the prison doctors or their assistants
were mistreating or not treating Plaintiff.
Thus, the allegations of the Complaint and the attachments
thereto do not, as Defendants suggest, sufficiently establish
that the non-medical Defendants are relieved of liability under
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Spruill, and their motion to dismiss on this basis will be
denied. See e.g., Douglas v. Doe, No. CIV.A. 10-5574, 2014 WL
4494969, at *6 (E.D. Pa. Sept. 12, 2014) (denying motion to
dismiss where plaintiff alleged that non-medical personnel knew
or should have known that plaintiff was being mistreated by the
prison medical staff); Montanez v. Pa Health Care Serv. Staffs,
No. CIV.A. 09-1547, 2011 WL 7417026, at *5 (W.D. Pa. Dec. 14,
2011) report and recommendation adopted, No. CIV.A. 09-1547,
2012 WL 602938 (W.D. Pa. Feb. 23, 2012) aff'd sub nom. ColonMontanez v. Pennsylvania Healthcare Serv. Staffs, 530 F. App'x
115 (3d Cir. 2013) (denying motion to dismiss claims against
non-medical prison officials because the record was not
adequately developed to conclusively determine that plaintiff
has failed to state a claim upon which relief may be granted);
cf. Williams v. Prison Health Sys., 470 F. App'x 59, 61-62 (3d
Cir. 2012) (finding that plaintiff’s claim was properly
dismissed where plaintiff had not asserted reasons why the nonmedical prison staff would have known, or had reason to believe,
that medical staff had mistreated or failed to treat his
condition).
Moreover, Plaintiff’s claims are, in part, based on the
allegation that if he had been treated sooner, the damage to his
eye may have been minimal. See (Compl. 3, ECF No. 1) (“At this
time plaintiff’s injuries had progressed and reached a point
13

where they were irreversable [sic].”); (Am. Compl. 2, ECF No.
15) (“[I] was told that [the hole in my retina] might not be
able to be fixed because it was larger now, but was also told
that if I had been seen early on when the trauma first happened
when the hole was smaller then it would have been a better
chance.”); (Am. Compl. 3, ECF No. 15) (“Fairton Administration
knew they had ignored and delayed my medical attention[.] . . .
I certainly had a macular hole that was too large to now be
fixed.”).

Based on a liberal interpretation of Plaintiff’s

claims — that the non-medical Defendants ignored Plaintiff’s
multiple requests for treatment for over 30 days and that the
delay in treatment allowed Plaintiff’s injuries to progress to a
point where they were irreversible — the Court determines that
it is prudent to permit the claims against the non-medical
Defendants to proceed at this time.
Finally, Plaintiff also asserts that he was denied proper
medical care because he was not taken to a scheduled
optometrist’s appointment. 5 (Compl. 3, ECF No. 1); (Am. Compl. 3,

5

Plaintiff attaches documentation to his Amended Complaint which
indicates that prison officials found a piece of paper in
Plaintiff’s cell which had a doctor’s name written on it. (Am.
Compl. 20, ECF No. 15). Prison officials considered this piece
of paper a security issue which ultimately resulted in the
missed doctor’s appointment. (Id.). However, Plaintiff contends
that it was around this time that prison officials recognized
the seriousness Plaintiff’s injury and the implications of their
failure to treat him. Thus, Plaintiff concludes that the
incident involving the piece of paper, and the fact that
14

ECF No. 15).

Although it is not entirely clear which Defendants

Plaintiff alleges are responsible for the missed appointment,
when viewing the allegations in the light most favorable to
Plaintiff, as the Court must, Evancho, 423 F.3d at 351, it
appears that Plaintiff has sufficiently plead a cause of action
against the non-medical Defendants for failure to take Plaintiff
to a scheduled doctor’s appointment. See Pierce v. Pitkins, 520
F. App'x 64, 66 (3d Cir. 2013) (finding deliberate indifference
where a 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 nonmedical reason; or (3) deliberately prevents a prisoner from
receiving needed medical treatment); see also Rouse v. Plantier,
182 F.3d 192, 197 (3d Cir. 1999).
Accordingly, the Court denies Defendants’ second basis for
relief.

Each of the aforesaid denials is without prejudice to

Defendants raising the same issues in a properly supported
motion for summary judgment at the appropriate time.
III. CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss
(ECF No. 27) is DENIED.

Defendants are permitted to raise the

information regarding this incident was included in prison
medical records, was a way for the Administration at FCI Fairton
to “cover for the negligence with [his] eye[.]” (Am. Compl. 3,
ECF No. 15).
15

issues presented in their motion to dismiss in the form of a
motion for summary judgment filed at the appropriate time.
An appropriate Order follows.

_____ s/ Noel L. Hillman_____
NOEL L. HILLMAN
United States District Judge

Dated: September 25, 2015
At Camden, New Jersey

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