POWELL v. CITY OF OCEAN CITY et al

Filing 72

OPINION FILED. Signed by Judge Joseph H. Rodriguez on 12/1/15. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________
____
Norma Powell,
:
:
Plaintiff,
:
Hon. Joseph H. Rodriguez
:
v.
:
Civil Action No. 14-4365
:
City of Ocean City, et. al.
:
:
Opinion
Defendants.
:
_______________________ :
These matters come before the court on separate motions for
Summary Judgment and to Dismiss, filed on behalf of Defendants Shore
Memorial Hospital [47] and Kathryn Page, R.N. [53] and on Cross Motion
to Dismiss and for Summary Judgment of Defendant Jessica Ruiz, A.P.N..
The Court has considered the written submissions without oral argument.
For the reasons that follow, Defendants’ motions are denied.
I.

Background

On July 11, 2012 Plaintiff Norma Powell was arrested and detained
for driving under the influence. At the police station, Powell’s lung disease
prevented her from producing a reading on a breathalyzer. She was also
unable to produce a sufficient urine specimen despite being given and
having consumed ten cups of water. As a result, she was taken to the Shore
Memorial Hospital, where Defendant nurse Kathryn Page, R.N. drew her
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blood and then inserted a catheter. Powell alleges that Defendant Officer
Hall was present during and participated in the catheterization. Powell
contracted an infection as a result of the catheter.
On July 11, 2014, Powell filed a sixteen (16) count Complaint alleging
various causes of action against the City of Ocean City, Office Laura Hall,
and Sergeant D. Dubbs (Ocean City Defendants) and the Shore Memorial
Hospital, Nurse Page, and Nurse Ruiz (Hospital Defendants). The Court
granted partial summary judgment in favor of the Ocean City Defendants
on April 28, 2015. Now, the Hospital Defendants argue they are entitled to
immunity pursuant to N.J.S.A. 2A:62A-10 because they catheterized Powell
and took a blood sample at the direction of the Ocean City Defendants. In
addition, the Hospital Defendants argue that the specimens were obtained
in a medically acceptable manner.
II.

Standards of Review

A. Motion to Dismiss
Federal Rule of Civil Procedure 12(b)(6) allows a defendant to move
for dismissal of a complaint based on failure to state a claim upon which
relief can be granted. Fed. R. Civ. P. 12(b)(6). A complaint should be
dismissed pursuant to Rule 12(b)(6) if the alleged facts, taken as true, fail to
state a claim. Fed. R. Civ. P. 12(b)(6). When deciding a motion to dismiss
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pursuant to Rule 12(b)(6), ordinarily only the allegations in the complaint,
matters of public record, orders, and exhibits attached to the complaint, are
taken into consideration. 1 See Chester County Intermediate Unit v. Pa.
Blue Shield, 896 F.2d 808, 812 (3d Cir. 1990). It is not necessary for the
plaintiff to plead evidence. Bogosian v. Gulf Oil Corp., 561 F.2d 434, 446
(3d Cir. 1977). The question before the Court is not whether the plaintiff
will ultimately prevail. Watson v. Abington Twp., 478 F.3d 144, 150 (2007).
Instead, the Court simply asks whether the plaintiff has articulated enough
facts to state a claim to relief that is plausible on its face. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).
A claim has facial plausibility 2 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, 129 S. Ct. 1937, 1949 (2009) (citing Twombly, 550 U.S. at 556). Where
there are well-pleaded factual allegations, a court should assume their

Although a district court may not consider matters extraneous to the pleadings, a document
integral to or explicitly relied upon in the complaint may be considered without converting the
motion to dismiss into one for summary judgment. U.S. Express Lines, Ltd. v. Higgins, 281 F.3d
383, 388 (3d Cir. 2002) (internal quotation marks and citations omitted) (emphasis deleted).
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This plausibility standard requires more than a mere possibility that unlawful conduct has
occurred. When a complaint pleads facts that are merely consistent with a defendant’s liability,
it stops short of the line between possibility and plausibility of entitlement to relief. Id.
2

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veracity and then determine whether they plausibly give rise to an
entitlement to relief. Iqbal, 129 S. Ct. at 1950.
The Court need not accept unsupported conclusions and unwarranted
inferences, Baraka v. McGreevey, 481 F.3d 187, 195 (3d Cir. 2007) (citation
omitted), however, and [l]egal conclusions made in the guise of factual
allegations . . . are given no presumption of truthfulness. Wyeth v. Ranbaxy
Labs., Ltd., 448 F. Supp. 2d 607, 609 (D.N.J. 2006) (citing Papasan v.
Allain, 478 U.S. 265, 286 (1986)); see also Kanter v. Barella, 489 F.3d 170,
177 (3d Cir. 2007) (quoting Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir.
2005) ([A] court need not credit either bald assertions or legal conclusions
in a complaint when deciding a motion to dismiss.)). Accord Iqbal, 129 S.
Ct. at 1950 (finding that pleadings that are no more than conclusions are
not entitled to the assumption of truth).
Although detailed factual allegations are not necessary, a plaintiff’s
obligation to provide the grounds of his entitlement to relief requires more
than labels and conclusions, and a formulaic recitation of a cause of action’s
elements will not do. Twombly, 550 U.S. at 555 (internal citations
omitted). See also Iqbal, 129 S. Ct. at 1949 (Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do
not suffice.).
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Thus, a motion to dismiss should be granted unless the plaintiff’s
factual allegations are enough to raise a right to relief above the speculative
level on the assumption that all of the complaint’s allegations are true (even
if doubtful in fact). Twombly, 550 U.S. at 556 (internal citations omitted).
[W]here the well-pleaded facts do not permit the court to infer more than
the mere possibility of misconduct, the complaint has alleged-but it has not
shown-that the pleader is entitled to relief. Iqbal, 129 S. Ct. at 1950
(quoting Fed. R. Civ. P. 8(a)(2)).
B. Summary Judgment
A court will grant a motion for summary judgment if there is no
genuine issue of material fact and if, viewing the facts in the light most
favorable to the non-moving party, the moving party is entitled to judgment
as a matter of law. Pearson v. Component Tech. Corp., 247 F.3d 471, 482
n.1 (3d Cir. 2001) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986));
accord Fed. R. Civ. P. 56 (c). Thus, this Court will enter summary judgment
only when “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
judgment as a matter of law.” Fed. R. Civ. P. 56 (c).

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An issue is “genuine” if supported by evidence such that a reasonable
jury could return a verdict in the nonmoving party’s favor. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if, under
the governing substantive law, a dispute about the fact might affect the
outcome of the suit. Id. In determining whether a genuine issue of
material fact exists, the court must view the facts and all reasonable
inferences drawn from those facts in the light most favorable to the
nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
Initially, the moving party has the burden of demonstrating the
absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477
U.S. 317, 323 (1986). Once the moving party has met this burden, the
nonmoving party must identify, by affidavits or otherwise, specific facts
showing that there is a genuine issue for trial. Id.; Maidenbaum v. Bally’s
Park Place, Inc., 870 F. Supp. 1254, 1258 (D.N.J. 1994). Thus, to withstand
a properly supported motion for summary judgment, the nonmoving party
must identify specific facts and affirmative evidence that contradict those
offered by the moving party. Andersen, 477 U.S. at 256-57. Indeed, the
plain language of Rule 56(c) mandates the entry of summary judgment,
after adequate time for discovery and upon motion, against a party who

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fails to make a showing sufficient to establish the existence of an element
essential to that party’s case, and on which that party will bear the burden
of proof at trial. Celotex, 477 U.S. at 322.
In deciding the merits of a party’s motion for summary judgment, the
court’s role is not to evaluate the evidence and decide the truth of the
matter, but to determine whether there is a genuine issue for trial.
Anderson, 477 U.S. at 249. Credibility determinations are the province of
the finder of fact. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d
1358, 1363 (3d Cir. 1992).

III. Analysis
Defendants argue that immunity under N.J.S.A 2A:62A-10 precludes
liability. That statute shields medical personnel and facilities involved in
obtaining bodily substance specimens from both from civil and/or criminal
liability under certain circumstances. See N.J.S.A 2A:62A-10. “The purpose
of N.J.S.A. 2A:62A–10 is to encourage medical personnel to cooperate with
law enforcement officers in obtaining bodily substance specimens.” Jiosi v.
Twp. of Nutley, 332 N.J. Super. 169, 176, 753 A.2d 132, 136 (App. Div.
2000) (citing Senate Law, Public Safety and Defense Committee, Statement

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to S. 1089 (enacted as L.1986, c.189)). In part, N.J.S.A. 2A:62A-10
provides:
a. When acting in response to a request of a law
enforcement officer, any physician, nurse or medical technician
who withdraws or otherwise obtains, in a medically accepted
manner, a specimen of breath, blood, urine or other bodily
substance and delivers it to a law enforcement officer, shall be
immune from civil or criminal liability for so acting, provided
the skill and care exercised is that ordinarily required and
exercised by others in the profession.
b. Any physician, nurse or medical technician who, for an
accepted medical purpose, withdraws or otherwise obtains, in a
medically accepted manner, a specimen of breath, blood, urine
or other bodily substance and subsequently delivers it to a law
enforcement officer either voluntarily or upon court order, shall
be immune from civil or criminal liability for so acting,
provided the skill and care exercised in obtaining the specimen
is that ordinarily required and exercised by others in the
profession.
c. The immunity from civil or criminal liability provided
in subsections a. and b. of this section shall extend to the
hospital or other medical facility on whose premises or under
whose auspices the specimens are obtained, provided the skill,
care and facilities provided are those ordinarily so provided by
similar medical facilities.
Application of immunity under N.J.S.A 2A:62A-10 is not appropriate
in all circumstances. For immunity to attach, the sample must either be
requested by a law enforcement officer or obtained for an accepted medical
purpose. Jiosi, 332 N.J. Super. at 176. Importantly, the sample must also
be obtained in a medically accepted manner. Id.
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Here, Plaintiff alleges a violation of her constitutional rights by the
Defendants Shore Memorial Hospital, Kathryn Page, R.N. and Jessica Ruiz,
A.P.N. Plaintiff claims that these Defendants allowed Officer Hall to assist
in her catheterization without her consent and performed the
catheterization in a humiliating and medically unacceptable manner. See
Compl. ¶52. Plaintiff claims that Officer Hall assisted in the procedure
without proper sterilization or dress and caused her to contract the
bacterial virus MRSA. Id.
Prior to being transported to Shore Memorial Hospital, Plaintiff was
given ten cups of water and attempted, but was unable, to produce a urine
sample at the police station. See Dep. Officer Hall, p. 19:13-22. According to
the Officer Hall, Plaintiff could not sufficiently urinate and was then taken
to the hospital where blood was drawn for analysis. See id., p. 19:2-6. After
the blood sample was procured, Plaintiff was catheterized so that a urine
sample could be collected. Id. Officer Hall testified that Plaintiff was not
given another opportunity to urinate at the hospital. Id. at p. 19:23-25.
Plaintiff contracted MRSA as a result of the catheterization. 3 Pursuant to
the New Jersey Appellate Division’s decision in Jiosi, summary judgment is

3

Defendants move to dismiss this claim on plausibility grounds. This motion is denied because, viewing the facts in
a light most favorable to Plaintiff, as is required on a motion to dismiss, the claim is plausible given the
circumstances of catheterization occurring in a state of her normal dress and the Officer’s presence and alleged
participation.

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not warranted at this time because questions of fact exist as to whether the
catheterization was necessary and whether the catheterization was
performed in a medically acceptable manner.
In Jiosi, the plaintiff was arrested and charged with driving under the
influence. Jiosi, 332 N.J. Super. 169. He was taken to the hospital where
blood was drawn with the plaintiff’s permission. Id. Like Powell, plaintiff
was involuntarily catheterized. Id. In reversing the trial court’s grant of
summary judgment, the Appellate Division opined:
In our view it is not enough to demonstrate that the procedure
can be accomplished without harm to the “patient.” Under the
present circumstances where the sample is being taken, not for
an accepted medical purpose but to further a criminal
prosecution, constitutional rights of privacy are implicated
“[b]ecause it is clear that the collection and testing of urine
intrudes upon the expectations of privacy that society has long
recognized as reasonable ... these intrusions must be deemed
searches under the Fourth Amendment.” Skinner v. Railway
Labor Executives' Assoc., 489 U.S. 602, 617, 109 S.Ct. 1402,
1413, 103 L. Ed.2d 639, 660 (1989). In this context the question
of whether the procedure was done in a “medically accepted
manner” entails more than the mechanics of the procedure. It
must also encompass the question of whether the procedure
was necessary for its intended purpose. The record before the
motion judge was not fully developed in this regard, but on the
proofs provided a jury could find that the period of time
plaintiff was given to voluntarily urinate was insufficient to
justify involuntary catheterization. The time lapse between
plaintiff's last glass of water and the involuntary catheterization
may have been as little as sixteen minutes. Overall, the time
between when plaintiff began taking water and the
catheterization was only around forty-six minutes. What
problems might have arisen by allowing plaintiff more time to
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voluntarily urinate were not explored at the summary judgment
hearing.
Jiosi v. Twp. of Nutley, 332 N.J. Super. at 177.
Here, there are questions of fact related to whether the procedure was
necessary. As in Jiosi, there is a dispute as to whether more time could
have been allotted for Powell to produce a urine sample without
catheterization. In addition, given that Powell contracted MRSA as a result
of the catheterization, there is a question of fact as to whether the
catheterization procedure was performed in a medically acceptable manner.
See Aff.of Cheryl McKnight, Ex. D. The presence of these disputes caused
the Appellate Division in Jiosi to remand the matter to the trial court for
further exploration. The Court finds the Appellate Division’s reasoning
persuasive and finds that questions of fact preclude N.J.S.A 2A:62A-10
immunity at this time.
As a result, the motions for summary judgment and to dismiss of both
Shore Memorial Hospital and Kathryn Page, R.N. are denied. Jessica
Ruiz’s cross motions are denied for the same reasons, but without prejudice
and with the right to refile upon the conclusion of discovery. 4

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Plaintiff argues that at the time of Defendant Ruiz’s cross- motion, discovery was not complete. Specifically,
Ruiz’s deposition had not occurred. Although this motion has been pending for some time, neither party
supplemented their arguments to include references to Ruiz’s deposition. In light of the incomplete record upon
which Ruiz moves, the Court will permit her to refile her motion. Plaintiff may then oppose the motion with the
benefit of the missing discovery.

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An appropriate Order accompanies this Opinion.

Dated: December 1, 2015

s/ Joseph H. Rodriguez
Hon. Joseph H. Rodriguez,
UNITED STATES DISTRICT JUDGE

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