ELLERMAN v. WOODWARD et al

Filing 2

MEMORANDUM, OPINION and ORDER IFP is DENIED and Clerk shall administratively terminate this matter. ORDERED Clerk shall close this matter and send Plaintiff a copy of this Order with a blank IFP application and a blank prisoner civil rights complaint form. Signed by Judge Renee Marie Bumb on 2/19/2015. (nz, )n.m.

NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
:
:
:
Plaintiff,
:
:
v.
:
:
Ralph Woodward, M.D., et al., :
:
Defendants.
:
:
Ronald Ellerman,

Civil Action No. 15-476(RMB)
MEMORANDUM, OPINION AND ORDER

BUMB, District Judge:
On January 23, 2015, the Clerk received Plaintiff’s civil
complaint and a coversheet with certified prison trust account
statements.

(Doc. No. 1.)

In his complaint, Plaintiff, an

inmate incarcerated at Southern State Correctional Facility in
Delmont, New Jersey, asserted claims against individual
defendants and their employer (“Defendants”) under 42 U.S.C. §
1983, for violations of the Eighth and Fourteenth Amendments of
the United States Constitution, violation of the New Jersey
Constitution, and violation of the Americans with Disabilities
Act.
Plaintiff alleges that Defendants discontinued certain of
his pain medications for his chronic conditions; ignored his

1

pleas for medical treatment when he fell out of an upper bunk,
reinjuring his spine and suffering a new injury to his foot;
refused him a pen, thus prohibiting him from seeking medical
treatment by writing a Medical Request Slip; destroyed his
Medical Request Slips so he would not receive medical attention;
transferred him to another prison without first conducting a
medical examination; ignored his pleas for treatment of chronic
pain; prescribed medications without performing a medical
examination; and delayed requests to change his pain medications
until he could see a neurologist thirty days later.
16-55.)

(Compl. ¶¶

Plaintiff seeks money damages, suspension of the

Defendants’ licenses to practice medicine for twenty-four
months,1 costs and fees, and all other relief for which he may be
entitled.

(Id. at 17.)

The Clerk will not file a civil complaint unless the person
seeking relief pays the entire applicable filing fee in advance
or the person applies for and is granted in forma pauperis
status pursuant to 28 U.S.C. § 1915.

By filing a cover letter

and his prison trust account statements, Plaintiff seeks to
proceed without prepaying fees (in forma pauperis or “IFP”,

1

The Court notes The Medical Practices Act vests the New Jersey
State Board of Medical Examiners with the authority to regulate
the practice of medicine in the State of New Jersey. In re
License Issued to Zahl, 895 A.2d 437, 444 (N.J. 2006)(citing
N.J.S.A. 45:9–1 to –27).
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pursuant to 28 U.S.C. § 1915.

See Local Civil R. 5.1(f).2

If a

prisoner seeks permission to file a civil rights complaint with
IFP status, the statute requires him to file an affidavit of
poverty and prison account statements for the six-month period
preceding the filing of the complaint.

28 U.S.C. § 1915(a)(1),

(2).
Here, Plaintiff submitted his prison account statements but
failed to submit his affidavit of poverty.

Therefore, the IFP

application is insufficient, and the Court will deny it without
prejudice, allowing Plaintiff to file a properly completed IFP
application, pursuant to 28 U.S.C. § 1915(a)(1) and (2).

In the

event Plaintiff cures the deficiency in his IFP application, 28
U.S.C. § 1915(e)(2) requires the Court to review the complaint
and dismiss the case if it finds that the action is: (1)
frivolous or malicious; (2) fails to state a claim upon which
relief may be granted; or (3) seeks monetary relief against a
defendant who is immune from such relief.
1915(e)(2)(B).

28 U.S.C. §

If the Court dismisses the case for any of these

reasons, the Act does not permit the prisoner to have his filing
fee returned.

2

The entire fee to be paid in advance of filing a civil
complaint is $400, including a filing fee of $350 plus an
administrative fee of $50. A prisoner who is granted IFP status
will, instead, be assessed a filing fee of $350, paid in
installment payments, and will not be responsible for the $50
administrative fee.
3

The present complaint is deficient in several respects.

If

Plaintiff chooses to resubmit a complaint with his properly
completed IFP application, he may wish to correct these
deficiencies to avoid summary dismissal of certain of his claims
under § 1915(e)(2)(B) and 42 U.S.C. § 1997e.
I.

BACKGROUND
Plaintiff names as Defendants Rutgers University Behavioral

Health Center a/k/a Rutgers University Correctional Health Care,
Dr. Ralph Woodward, Dr. William Briglia, Dr. Chenna Reddy, Dr.
Francis Mao, Nurse Donna Caudill, and John and Jane Does who
allegedly discontinued his prescription for the medication
Neurontin while he was housed in South Woods Prison.
5-10.)

(Compl. ¶¶

Plaintiff alleges jurisdiction under 42 U.S.C. § 1983

and § 19883 (for violations of the Eighth and Fourteenth
Amendments), New Jersey Constitution Art. 1, ¶ 12, federal
diversity jurisdiction, and the Americans with Disabilities Act.
(Id., ¶¶ 11, 14.)
II.

DISCUSSION
Plaintiff properly asserted jurisdiction based on subject

matter of his federal constitutional claims under 42 U.S.C. §
1983 and for violation of the Americans with Disabilities Act
3

42 U.S.C. § 1988 does not create an independent cause of
action. Roundtree v. City of New York, 778 F.Supp. 614, 617
(E.D.N.Y. 1991).

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(“ADA”), 42 U.S.C. § 12132.

Plaintiff also asserts diversity

jurisdiction for his state law claims.

Under 28 U.S.C. § 1332,

however, there must be complete diversity of citizenship among
the parties, meaning each Plaintiff is domiciled in a different
state than each defendant, and the amount in controversy exceeds
$75,000.

In § 1983 cases, an inmate is domiciled, for purposes

of jurisdiction, in the state in which he was domiciled before
he was incarcerated, unless the inmate plans to be domiciled in
another state upon release.

Gay v. Unipak, Inc., Civ. Action

No. 10-6221(FSH), 2011 WL 5025116, at *4 (D.N.J. Oct. 20, 2011).
A plaintiff must specifically plead each party’s citizenship and
show that the plaintiff is domiciled in a different state from
each defendant.

Id. (citing American Motorists Ins. Co. v.

American Employers' Ins. Co., 600 F.2d 15, 16 (5th Cir.1979);
see also Universal Reinsurance Co., Ltd. v. St. Paul Fire &
Marine Ins. Co., 224 F.3d 139, 141 (2d Cir. 2000).
Here, Plaintiff has not alleged facts to establish
diversity jurisdiction, and he may wish to cure this deficiency
if he resubmits a complaint.

Moreover, if diversity of

citizenship does not exist, unless at least one of Plaintiff’s
federal law claims survives dismissal, the Court will not be
required to exercise supplemental jurisdiction over Plaintiff’s
state law claims.

Aruanno v. Main, 467 F. App’x 134, 138 (3d

Cir. 2012).
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Finally, Plaintiff may choose to cure the deficiencies in
the present complaint by pleading sufficient facts against each
defendant to survive dismissal based on failure to state a claim
upon which relief may be granted.

To state an inadequate

medical care claim under the Eighth Amendment’s proscription
against cruel and unusual punishment, as applied to the states
through the Fourteenth Amendment, an inmate must allege facts
showing the defendant’s conduct constituted “unnecessary and
wanton infliction of pain” or that the defendant was
deliberately indifferent to the inmate’s serious medical needs.
Estelle v. Gamble, 429 U.S. 97, 104 (1976).

“A medical need is

“serious,” in satisfaction of the second prong of the Estelle
test, if it is “one that has been diagnosed by a physician as
requiring treatment or one that is so obvious that a lay person
would easily recognize the necessity for a doctor's attention.”
Monmouth County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326,
347 (3d Cir. 1987)(quoting Pace v. Fauver, 479 F.Supp. 456, 458
(D.N.J.1979), aff'd, 649 F.2d 860 (3d Cir.1981)).

Denial of or

delay in treatment that causes unnecessary and wanton infliction
of pain may also constitute a serious medical need.
Estelle, 429 U.S. at 103).

Id. (citing

“In addition, where denial or delay

causes an inmate to suffer a life-long handicap or permanent
loss, the medical need is considered serious.”

Id. (citations

omitted); Andrews v. Camden County, 95 F.Supp.2d 217, 227
6

(D.N.J. 2000)(same); Price v. Corr. Med. Serv., 493 F.Supp.2d
740, 745 (D.Del. 2007)(same).
An allegation of medical malpractice or simple negligence,
however, does not rise to the level of a constitutional
violation.

Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004).

Nor does a disagreement as to the proper medical treatment state
a constitutional violation.

Id. (citing Lanzaro, 834 F.2d at

346 (3d Cir. 1987)(citations omitted).

See White v. Napoleon,

897 F.2d 103, 110 (3d Cir. 1990)(by itself, physician’s decision
to substitute medications or withhold a particular medication,
without knowledge that another physician had indicated treatment
would fail without the particular medication, does not indicate
deliberate indifference.)
Deliberate indifference against a particular defendant may
exist under a variety of situations.
F.2d 64, 68 (3d Cir. 1993).

Durmer v. O’Carroll, 991

Deliberate indifference exits where

“̔knowledge of the need for medical care [is accompanied by the]
... intentional refusal to provide that care’” or where “[s]hort
of absolute denial ... ‘necessary medical treatment [i]s ...
delayed for non-medical reasons,’ ” or where “‘prison
authorities prevent an inmate from receiving recommended
treatment.’” Lanzaro, 834 F.2d at 346 (citations omitted);
Barkes v. First Corr. Med. Inc., 766 F.3d 307, 320-25) (3d Cir.

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2014)(describing deliberate indifference standard applicable to
supervisory prison officials).
In order for a government entity (assuming the entity is
not entitled to sovereign immunity under the Eleventh Amendment)
to be liable under § 1983 for the actions or inactions of its
employees, a plaintiff must allege that policy or custom of that
entity caused the alleged constitutional violation.

Natale v.

Camden County Corr. Facility, 318 F.3d 575, 583 (3d Cir. 2003)
(citing Bd. Of County Comm’rs of Bryan County Oklahoma v. Brown,
520 U.S. 397, 404 (1997)).

Plaintiff seeks to hold Rutgers

University Correctional Health Care (UCHC) liable under § 1983
for the alleged constitutional violations by its employees.
Plaintiff, however has not alleged a relevant policy or custom
that violated his constitutional rights.

Nor has he

alternatively alleged an action by a government employee that
may be deemed to have been taken pursuant to a policy or custom
of the employer.

Id. (describing three situations where a

government employee’s acts may be deemed to be the result of a
policy or custom of the governmental entity for whom the
employee works, thereby rendering the entity liable under §
1983).
Plaintiff’s specific allegations against Dr. Chenna Reddy,
for reducing or discontinuing an unspecified pain medication
without performing a physical examination, do not, without more,
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rise to the level of a constitutional violation.
21.)

(Compl. ¶¶ 19-

See White, 897 F.2d at 110 (mere disagreement with medical

treatment does not state a constitutional violation).
The allegations in Paragraph 42 of the present complaint
are also deficient.

Plaintiff alleged “the aforenamed

defendants” gave clearance for Plaintiff to be transported to
another prison without first seeing a certified medical doctor.
First, it is unclear who allegedly gave the clearance or even
whether clearance was necessary.

Second, it is unclear how

giving clearance for transportation even states deliberate
indifference to a serious medical need.
The allegations in Paragraph 48 are deficient because
Plaintiff does not allege facts to establish deliberate
indifference by any particular defendant involved with the
decision not to renew his prescription for Norco.

The

allegations in Paragraphs 51 are also deficient because the
“Mental Health Department” or its employees at Northern State
Prison had no constitutional duty to “step in and make
[recommendations]” to the “Medical Department” on Plaintiff’s
behalf.

Spruill, 372 F.3d at 236. (non-physician defendant is

not deliberately indifferent to an inmate’s serious medical
needs when inmate is being treated by a prison doctor, unless
the non-physician has reason to believe the inmate is being
mistreated or not treated).

Additionally, it is unclear what
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the John and Jane Doe Defendants, who were allegedly
phycologists and psychiatrists, in the Northern State Prison
Mental Health Department, knew about Plaintiff’s serious medical
needs, and what they should have, but failed to do, to alleviate
Plaintiff’s pain.
Plaintiff alleges constitutional and other violations by
John and Jane Doe Defendants.

(Compl. ¶¶ 31, 52.)4

If Plaintiff

refiles a complaint containing allegations against unnamed Doe
Defendants, Plaintiff will be given a discrete period of time to
discover the names of those defendants, and to amend his
complaint to substitute the defendant(s)’ name(s), and plead
specific facts sufficient to establish the deliberate
indifference of the defendant(s), or the elements of any other
asserted cause of action.

See Singletary v. Penn. Dept. of

Corr., 266 F.3d 186, 202, n.5 (3d Cir. 2001)(discussing proposed
amended complaints that seek to replace a “John Doe” in an
original complaint with a defendant’s real name).
Finally, to state a claim of supervisory liability for
inadequate medical care in violation of the Eighth Amendment, a
plaintiff must plead facts establishing that a prison official,
“by virtue of his or her own deliberate indifference to known

4

It appears that Plaintiff intends to state a “John or Jane Doe”
claim in Paragraph 32 of the complaint, against the unidentified
nurse who would not give him a pen to complete a written request
for medical treatment after he fell and injured himself.
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deficiencies in a government policy or procedure, has allowed to
develop an environment in which there is an unreasonable risk
that a constitutional injury will occur, and that such an injury
does occur.”

Barkes v. First Corr. Med. Inc., 766 F.3d 307, 320

(3d Cir. 2014).

Conclusory allegations are insufficient to

state a claim upon which relief may be granted.

See Ashcroft v.

Iqbal, 556 U.S. 662, 681 (2009)(conclusory nature of allegations
“disentitled them” to the presumption of truth on motion to
dismiss).
Plaintiff’s allegations of supervisory liability against
Dr. Ralph Woodward, the Director of Health Services for the New
Jersey Department of Corrections, fail to meet this standard.
Although Plaintiff alleged certain defendants acted under the
direction of Dr. Woodward, these allegations were unsupported by
any facts to show the actions were taken under Dr. Woodward’s
direction.

(Compl. ¶¶ 5, 19, 37, 41, 43, 51, 52.)5

If Plaintiff

can allege facts to support his conclusion regarding Dr.
Woodward, he may wish to cure this deficiency to avoid dismissal
of the supervisory claims.
Plaintiff also named William Briglia, D.O., the Regional
Medical Advisor for Rutgers University Behavioral Health Care as
5

The Court also notes Paragraph 31 of the complaint is deficient
because it ambiguously refers to the “above named Medical
Provider” and the “aforenamed defendants.” It is not obvious
from the complaint which defendants Plaintiff is referring to in
this paragraph.
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a defendant.

(Compl. ¶ 6.)

Plaintiff did not allege any

specific illegal conduct by Dr. Briglia.

The Court can only

speculate that Plaintiff wanted to assert supervisory liability
against Dr. Briglia for the conduct of other employees of UCHC.
If Plaintiff wishes to pursue a claim against Dr. Briglia that
would survive summary dismissal, he may wish to plead facts
sufficient to establish supervisory liability, as discussed
above.
Plaintiff alleged that the Defendants’ conduct violated the
ADA.

(Compl. ¶¶ 31, 52.)

To state a claim for relief under

Title II of the ADA, “an inmate must allege that: (1) he is a
qualified individual with a disability; (2) he was either
excluded from participation in or denied the benefits of some
public entity's services, programs, or activities; and (3) such
exclusion, denial of benefits, or discrimination was by reason
of his disability.”

Brown v. Deparlos, 492 F. App’x. 211, 215

(3d Cir. 2012)(citing 42 U.S.C. § 12132).

Plaintiff has not

alleged that he is a qualified individual with a disability or
that he was denied adequate medical care based on discrimination
against him due to his disability.

Plaintiff may wish to cure

this deficiency if he brings a denial of medical care claim
under the ADA in a new complaint.
The Court further notes that Plaintiff entitled the
complaint “Civil Rights Complaint of Negligence, Deliberate
12

Indifference.”

(Compl. at 1.)

“malpractice” in the complaint.

Plaintiff also uses the word
(Compl. ¶ 52.)

As discussed

above, negligence and medical malpractice do not rise to the
level of an Eighth Amendment Constitutional violation.

It is

not clear that Plaintiff wishes to assert state law claims of
negligence or medical malpractice against any particular
defendant.

If Plaintiff intended to do so, and he submits a new

complaint, he may wish to cure the deficiency in the present
complaint by asserting the elements of a medical malpractice
claim under New Jersey law.

See Natale, 318 F.3d at 579

(describing elements of a New Jersey malpractice claim, and
holding expert affidavit was not required to be attached to the
complaint to avoid dismissal where common knowledge made the
malpractice claim apparent).
IT IS, therefore, on this 19th day of February 2015,
ORDERED that Plaintiff’s application seeking to proceed in
forma pauperis in this matter, Doc. No. 1-1, is denied.

Such

denial is without prejudice, and Plaintiff may renew that
application by submitting, within thirty days from the date of
entry of this Memorandum Opinion and Order, a properly executed
IFP application, executed in accordance with the guidance
provided herein; and it is further
ORDERED that the Clerk shall administratively terminate
this matter by making a new and separate entry reading, “CIVIL
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CASE TERMINATED.”

Such termination shall be subject to

reopening in the event Plaintiff timely submits a properly
executed IFP application; and no statement in the Memorandum
Opinion and Order shall be construed as withdrawal of this
Court’s jurisdiction over this matter; and it is further
ORDERED that, in the event Plaintiff elects to submit a
properly executed IFP application, he may accompany that
submission with a complaint that details the facts of his claims
in accordance with the guidance provided to him herein; and it
is finally
ORDERED that the Clerk shall serve this Order upon
Plaintiff by regular U.S. Mail, together with a blank form
“Prisoner Applying To Proceed In Forma Pauperis In A Civil
Rights Case” and a blank form “Prisoner Civil Rights Complaint.”

s/Renée Marie
RENÉE MARIE BUMB
United States District Judge

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