FOX v. BAYSIDE STATE PRISON et al
OPINION. Signed by Judge Robert B. Kugler on 3/10/2017. (TH, )
NOT FOR PUBLICATION
(Doc. No. 53)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civil No. 14-5344 (RBK)
BAYSIDE STATE PRISON, et al.,
KUGLER, United States District Judge:
This matter comes before the Court on Plaintiff Anthony Fox’s (“Plaintiff”) Complaint
against Defendants Bayside State Prison, New Jersey Department of Corrections, Rutgers
University f/k/a the University of Medicine and Dentistry of New Jersey, John Powell, Gary M.
Lanigan, and John Does 1–25 of Bayside State Prison (“Defendants”) asserting violations of the
Fourth, Fifth, Eighth, and Fourteenth Amendments of the United States Constitution; battery;
lack of informed consent; and medical malpractice (Doc. No. 8). Currently before the Court is
Defendant Rutgers University f/k/a University of Medicine and Dentistry of New Jersey’s
Motion for Summary Judgment (“Rutgers”) Motion for Summary Judgment (Doc. No. 53). For
the reasons expressed below, Rutgers’s Motion is GRANTED.
Plaintiff is an inmate at Bayside State Prison. See Def.’s Statement of Undisputed
Material Facts (“Def.’s SMF”) ¶ 9.1 On August 27, 2012, Plaintiff appeared for an emergency
visit at the medical office for chest pain. Id. ¶¶ 9–12; Def.’s Mot. for Summ. J. (“Def.’s MSJ”),
Schaaff Decl. Ex. K, at 513. The medical office performed an EKG on Plaintiff, and Nurse
Rosemary McMenamin ordered an injection of 50 mg of Vistaril to calm him down. Id. ¶ 13;
Def.’s MSJ, Schaaff Decl. Ex. L, at 17. According to Plaintiff, he initially stated that he did not
want to receive the injection. Def.’s MSJ, Schaaff Decl. Ex. J, at 63. Upon the nurse asking a
second time, however, Plaintiff put his arm out and leaned over the table. Id. at 63–64.
Following five to eight minutes, Nurse Dana Fisher observed Plaintiff stand up from his
chair. Def.’s SMF ¶ 15. She instructed Plaintiff to sit back down, but Plaintiff fainted onto the
floor. Id. She shouted for Nurse McMenamin’s immediate assistance. Id. ¶ 16. They stabilized
him, rolled him over, tried to stop the bleeding from his nose, and assessed his condition. Id. ¶¶
16–17. The office also performed a second EKG. Id. ¶ 18. Nurse McMenamin called 911, and
emergency medical technicians helicopter evacuated Plaintiff out of the prison. Id. ¶ 19; Def.’s
MSJ, Schaaff Decl. Ex. K, at 514.
Plaintiff’s sole expert witness, Joelene Boiano, RN, CCHP, authored a report concluding
that the staff at Rutgers deviated from the accepted standards of care to a reasonable degree of
nursing certainty. Def.’s MSJ, Schaaff Decl. Ex. C, at 1–2. She stated that Vistaril alone causes
drowsiness and dizziness, and in combination with Plaintiff’s other medications has an extremely
high potential for sedation, drowsiness, and dizziness. Id. at 2. The report also indicated that it is
standard nursing practice to place patients who have received Vistaril on a stretcher with the side
rails up. Id.
The Court will cite Rutgers’s Statement of Undisputed Material Facts because Plaintiff did not
respond to Rutgers’s Motion for Summary Judgment.
Plaintiff brought a Complaint on August 26, 2014 against Defendants Bayside State
Prison, New Jersey Department of Corrections, Rutgers University f/k/a the University of
Medicine and Dentistry of New Jersey, John Powell, Gary M. Lanigan, and John Does 1–25 of
Bayside State Prison (Doc. No. 1). Plaintiff filed an Amended Complaint on November 17, 2014
(Doc. No. 8). Following Motions to Dismiss filed by Defendants (Docs. No. 9, 23), the Court
issued an Opinion and Order on August 18, 2015 (Docs. No. 31, 32) dismissing all Defendants
except Rutgers and denying Rutgers’s Motion to Dismiss. Rutgers filed a Motion for Partial
Summary Judgment on August 21, 2015, arguing that Plaintiff’s affidavit of merit was
insufficient (Doc. No. 33), and the Court denied the Motion on February 11, 2016 (Docs. No. 44,
45). On October 26, 2016, Rutgers filed the present Motion for Summary Judgment (Doc. No.
53). Plaintiff did not file any opposition.
The Court should grant a motion for summary judgment when the moving party “shows
that there is no genuine dispute as to any material fact and that the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). An issue is “material” to the dispute if it could alter the
outcome, and a dispute of a material fact is “genuine” if “a reasonable jury could return a verdict
for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986);
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First
Nat’l Bank of Az. v. Cities Serv. Co., 391 U.S. 253, 289 (1968)) (“Where the record taken as a
whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine
issue for trial.’”). In deciding whether there is any genuine issue for trial, the court is not to
weigh evidence or decide issues of fact. Anderson, 477 U.S. at 248. Because fact and credibility
determinations are for the jury, the non-moving party’s evidence is to be believed and
ambiguities construed in its favor. Id. at 255; Matsushita, 475 U.S. at 587. Even when the motion
is unopposed, as it is here, the court must still determine whether the motion for summary
judgment is appropriate. See Fed. R. Civ. P. 56(e). The Court must review the unopposed record
to determine if the movant is entitled to judgment as a matter of law, notwithstanding the nonmovant’s silence. See Anchorage Assoc. v. Virgin Islands Bd. of Tax Rev., 922 F.2d 168, 175 (3d
Although the movant bears the burden of demonstrating that there is no genuine issue of
material fact, the non-movant likewise must present more than mere allegations or denials to
successfully oppose summary judgment. Anderson, 477 U.S. at 256. The non-moving party must
at least present probative evidence from which the jury might return a verdict in his favor. Id. at
257. Where the non-moving party 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,” the movant is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317,
Motion to Withdraw as Counsel
Before discussing the merits of Rutgers’s Motion for Summary Judgment, the Court first
must address the conduct of Plaintiff’s counsel, James R. Radmore. Mr. Radmore informed the
Court that he intended to withdraw as counsel from the case, and the Court discussed the matter
during a phone conference on October 13, 2016. During the call, the Court instructed Mr.
Radmore to submit a motion to withdraw as counsel. The Court also specifically noted to Mr.
Radmore his ongoing duty to respond timely to dispositive motions filed by Rutgers: “The
pendency of plaintiff’s motion [to be relieved as counsel] will not excuse the obligations of
plaintiff’s counsel to timely respond to defendant’s motion” (Doc. No. 51). To date, despite the
passage of almost five months, Mr. Radmore has yet to file a motion to withdraw. Neither has
counsel filed any response to Rutgers’s Motion for Summary Judgment.
Members of the bar of New Jersey are subject to the New Jersey Rules of Professional
Conduct. L. Civ. R. 103.1(a). It is an elementary duty of an attorney to provide competent
representation to her client, as well as act with reasonable diligence and promptness. N.J. Rules
of Prof’l Conduct r. 1.1, 1.3. The Court has powers to impose sanctions on lawyers who violate
the Rules of Professional Responsibility, Local Civil Rules, and general obligations of attorneys
practicing in the federal courts to work towards a just, speedy and efficient resolution of claims.
Eash v. Riggins Trucking Inc., 757 F.2d 557, 561 (3d Cir. 1985). The Court is not taking action
at this time; it is apparently necessary, however, for the Court to remind Mr. Radmore of the
importance of his duties to his client and this Court under the New Jersey Rules of Professional
Conduct, New Jersey Local Rules, and Federal Rules of Civil Procedure.
Count One — Constitutional Claims
Plaintiff alleges that Rutgers failed to provide proper medical treatment and that such
failure violated the Fourth, Fifth, Eighth, and Fourteenth Amendments of the United States
The Eighth Amendment to the United States Constitution, applicable to individual states
through the Fourteenth Amendment, prohibits the states from inflicting “cruel and unusual
punishments” on those convicted of crimes. Rhodes v. Chapman, 452 U.S. 337, 344–46 (1981).
This 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 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. 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 a doctor’s attention, and those conditions which, if untreated, would result in
lifelong handicap or permanent loss. Monmouth Cty. Corr. 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 (1994). Furthermore, a prisoner’s
subjective dissatisfaction with his medical care does not in itself indicate deliberate indifference.
Andrews v. Camden Cty., 95 F. Supp. 2d 217, 228 (D.N.J. 2000). 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. Implicit in this deference to prison medical authorities is the assumption
that such informed judgment has, in fact, been made.” Inmates of Allegheny Cty. Jail v. Pierce,
612 F.2d 754, 762 (3d Cir. 1979) (internal quotations and citations 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. Estelle, 429 U.S. at 105–06; White, 897 F.2d at 110.
“Where prison authorities deny reasonable requests for medical
treatment, however, and such denial exposes the inmate ‘to undue
suffering or the threat of tangible residual injury,’ deliberate
indifference is manifest. Similarly, where ‘knowledge of the need
for medical care [is accompanied by the] . . . intentional refusal to
provide that care,’ the deliberate indifference standard has been
met. . . . Finally, 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.”
Monmouth Cty. Corr. Institutional Inmates, 834 F.2d at 346 (citations omitted). “Short of
absolute denial, if necessary medical treatment [i]s . . . delayed for non-medical reasons, a case
of deliberate indifference has been made out.” Id. (internal quotations and citations omitted).
“Deliberate indifference is also evident where prison officials erect arbitrary and burdensome
procedures that result in interminable delays and outright denials of medical care to suffering
inmates.” Id. at 347 (internal quotations and citation omitted).
In the instant matter, the Court will not address whether Plaintiff’s purported injury is a
serious medical need because Plaintiff fails to furnish any evidence of deliberate indifference.
The record shows that Nurse McMenamin ordered an injection of Vistaril because Plaintiff
exhibited signs of anxiety. Plaintiff’s own expert, however, states that Vistaril is used to treat
anxiety, and mere disagreement over the best course of medical treatment does not rise to an
Eighth Amendment violation. Furthermore, when Plaintiff fell over, the nurses immediately
worked to stabilize him, stop the bleeding from his nose, and assess his condition. The medical
office also performed a subsequent EKG and telephoned the paramedics. These facts suggest the
opposite of a denial of medical treatment. As for Plaintiff’s allegations that he was refused a
second surgery for his nose injury, he provides no evidence that an additional surgery was
necessary. He testified that the first operation “didn’t work,” but Plaintiff’s dissatisfaction with
his medical care is not sufficient to indicate deliberate indifference.
As for Plaintiff’s other constitutional claims, they too must fail. Failure to provide
medical care, asserted under the Fourteenth Amendment, is analyzed under the same Eighth
Amendment rubric. See Reynolds v. Wagner, 128 F.3d 166, 174 (3d Cir. 1997). Plaintiff also
alleges a violation of the right to bodily integrity. The Due Process Clause, however, “does not
impose an affirmative obligation on the state to protect its citizens, Phillips v. Cty. of Allegheny,
515 F.3d 224, 235 (3d Cir. 2008), and Plaintiff does not explain how this case qualifies for an
exception to this rule. Plaintiff also asserts a right to privacy, but the record contains no facts
implicating this right. As such, the Court dismisses all claims under the Fourteenth Amendment.
As for the Fourth Amendment right against unreasonable searches and seizures and the Fifth
Amendment right to procedural due process, Plaintiff presents no evidence that these rights have
been violated. In summary, the Court dismisses all claims under Count One.
Count Two appears to bring a claim for “negligent, reckless, intentional and outrageous
conduct.” It is unclear what causes of action Plaintiff attempts to invoke. The New Jersey
Supreme Court recognizes “several avenues of relief against a doctor: (1) deviation from the
standard of care (medical malpractice); (2) lack of informed consent; and (3) battery.” Howard v.
Univ. of Med. & Dentistry of New Jersey, 800 A.2d 73, 77 (N.J. 2002). Because Plaintiff asserts
these three types of claims in his other Counts, the Court will dismiss Count Two as duplicative.
Count Three — Battery
Battery is “the harmful or offensive touching of plaintiff’s person without his consent.”
Corradetti v. Sanitary Landfill, Inc., 912 F. Supp. 2d 156, 161 (D.N.J. 2012). In the medical
context, battery “is reserved for those instances where either the patient consents to one type of
operation but the physician performs a substantially different one from that for which
authorization was obtained, or where no consent is obtained.” Howard, 800 A.2d at 80. Here, the
record indicates that Plaintiff provided consent. In deposition testimony, Plaintiff states that he
initially stated he did not want the Vistaril injection but ultimately put his arm out and leaned
over to receive the injection. Evaluating such facts, no reasonable juror could conclude a lack of
consent on Plaintiff’s part. As such, the Court grants summary judgment in favor of Defendant
on the battery claim.
Count Three — Lack of Informed Consent
An action for lack of informed consent concerns “the nondisclosure of medical
information.” Blazoski v. Cook, 787 A.2d 910 (N.J. Super. Ct. App. Div. 2002). A plaintiff must
prove four elements to prevail in an informed consent case. He must show that:
(1) the physician failed to comply with the [reasonably-prudentpatient] standard for disclosure; (2) the undisclosed risk occurred
and harmed the plaintiff; (3) a reasonable person under the
circumstances would not have consented and submitted to the
operation or surgical procedure had he or she been so informed;
and (4) the operation or surgical procedure was a proximate cause
of plaintiff’s injuries.
Howard, 800 A.2d 73 (N.J. 2002) (citations and emphasis omitted).
In order to show that an undisclosed risk existed, a plaintiff must show, through expert
testimony, that that the risk was recognized in the medical community. Chamberlain v.
Giampapa, 210 F.3d 154, 161–62 (3d Cir. 2000). Rutgers argues that such testimony must
always come from a physician expert, invoking Febus v. Barot, M.D., 616 A.2d 933, 936 (N.J.
Super. Ct. App. Div. 1992). The Court disagrees with Rutgers’s reading. The Febus court stated
that that expert testimony must originate from a physician, where the lack of consent claim in the
case implicated a physician. Where the lack of informed consent allegation was brought against a
nurse, the court has permitted expert opinion from a nurse. See Nelson v. Jersey City Med. Ctr.,
2006 WL 1000303, at *2 (N.J. Super. Ct. App. Div. Apr. 18, 2006). Here, the lack of consent
claim and thus the medical community at issue involves nurses. Plaintiff’s expert Nurse Boiano
reports that Vistaril poses a risk of drowsiness especially in combination with Plaintiff’s other
medications, and that the risk is part of standard nursing knowledge. As such, the Court declines
to find this testimony inadequate as a matter of law.
This Count, however, nonetheless fails on the causation element. A plaintiff must furnish
medical testimony to “establish that his injury was caused by the medical procedure for which
the informed consent was inadequate.” Posta v. Chung-Loy, 703 A.2d 368, 380 (N.J. Super. Ct.
App. Div. 1997). The testimony must be to “a reasonable medical probability.” Bondi v. Pole,
587 A.2d 285, 287 (N.J. Super. Ct. App. Div. 1991) (medical malpractice). Establishing the
cause of a medical condition, however, requires making a medical diagnosis, and nurses cannot
provide expert opinions on medical diagnoses. See State v. One Marlin Rifle, 30/30, 30 AS,
Serial No. 12027068, 725 A.2d 144, 149 (N.J. Super. Ct. App. Div. 1999). Here, Plaintiff’s only
expert report is from Nurse Boiano. She is not qualified to testify to the cause of Plaintiff’s injury
to a reasonable medical probability; in fact, her report states her findings to be only to a
reasonable degree of nursing certainty. Thus, Plaintiff’s lack of informed consent claim must fail
as a matter of law, and the Court grants summary judgment in favor of Rutgers on Count Three.
Count Four — Medical Malpractice
To prove a medical malpractice claim, the plaintiff must show: (1) the applicable
standard of care; (2) a deviation from that standard of care; and (3) that the deviation caused the
injury. See Teilhaber v. Greene, 727 A.2d 518 (N.J. Super. Ct. App. Div. 1999). As with the lack
of informed claim, a plaintiff must furnish expert witness testimony that establishes the causation
element to a reasonable medical probability. Vitrano by Vitrano v. Schiffman, 702 A.2d 1347,
1351 (N.J. Super. Ct. App. Div. 1997); see also Evers v. Dollinger, 471 A.2d 405, 415 (N.J.
1984). Because nurses cannot make medical diagnoses and thereby cannot provide expert
testimony on the proximate cause of an injury, Nurse Boiano’s expert reports are not sufficient
for Plaintiff to survive summary judgment on this Count.
For the reasons expressed above, Rutgers’s Motion for Summary Judgment is
s/ Robert B. Kugler
ROBERT B. KUGLER
United State District Judge
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