COLEMAN et al v. UNITED STATES OF AMERICA et al

Filing 16

OPINION. Signed by Judge Robert B. Kugler on 3/30/2016. (tf, ) (Main Document 16 replaced on 3/30/2016) (tf, ).

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
____________________________________
DAVID R. COLEMAN,
:
:
Plaintiff,
:
Civ. No. 15-1942 (RBK) (KMW)
:
v.
:
:
OPINION
UNITED STATES OF AMERICA, et al., :
:
Defendants.
:
____________________________________:
ROBERT B. KUGLER, U.S.D.J.
I. INTRODUCTION
Plaintiff was a federal prisoner incarcerated at the Federal Correctional Institution at Fort
Dix in Fort Dix, New Jersey (“F.C.I. Fort Dix”). He filed a civil rights complaint pursuant to 42
U.S.C. § 1983 on March 16, 2015. (ECF No. 1.)
On June 19, 2015, Defendant the United States of America (“Defendant”) filed the
current motion to dismiss Plaintiff’s Complaint. (ECF No. 6.) On August 17, 2015, Plaintiff filed
a Brief in Opposition to Defendant’s motion. (ECF No. 13.) Lastly, Defendant filed a Reply
Brief in response to Plaintiff’s Response on August 21, 2015. (ECF No. 15.)
For the following reasons, Defendant’s motion will be granted in full.
II. BACKGROUND
In his Complaint, Plaintiff names as Defendants the United States, John Does 1-10, Jane
Does 10-30, and ABC Corporation. The motion at issue is on behalf of the United States, as it
was the only party served with a summons.
Plaintiff alleges that, on January 21, 2013, he was taking a shower at F.C.I. Fort Dix and
was struck in the head and knocked unconscious when a “iron/metal grate . . . fell from the wall.”

(ECF No. 1 at 7.) Plaintiff then notified a Lieutenant Kennar that he needed medical attention.
Upon this request, Lieutenant Kennar allegedly “slammed [Plaintiff] up against a wall and
handcuffed [him] to a chair for several hours….” (Id. at 8.) Lt. Kennar also threatened to send
Plaintiff to the Special Housing Unit (the “SHU”) if he did not cooperate. The next morning,
Plaintiff was accompanied to Health Services (“HS”) by two nurses, Ms. Robinson and Ms.
Parker. (Id.) At HS, Plaintiff was diagnosed with a concussion and given Tylenol. After
continuing to experience “blurred vision and neck pain,” Plaintiff was ultimately sent to St.
Francis Medical Center (“SFMC”) where he was diagnosed with a concussion and a C-6 spine
facture. (Id.) Plaintiff was hospitalized for four (4) days and was discharged on January 25, 2013,
with a prescription for Decadron 1 and a cervical collar. (Id.) When Plaintiff arrived back at F.C.I.
Fort Dix he was told by Physician Assistant (“PA”) Gibbs that Decadron was unavailable at the
prison. (Id. at 8-9.)
The next day, January 26, 2013, Plaintiff was transported to HS by wheelchair because he
could not move either his right arm or leg. The on call MD instructed PA Gibbs to put Plaintiff
on a very low dose of prednisone because Decadron was still unavailable in the prison pharmacy.
(Id. at 9.) The following day, January 27, 2013, Plaintiff was still unable to move his right side
and was suffering severe pain. PA Gibbs took Plaintiff to Lieutenant Kael’s office on a stretcher,
going “the long way” in order to “increase Plaintiff’s pain and discomfort.” (Id.) Upon seeing
Plaintiff, Lt. Kael, not believing Plaintiff was actually unable to walk, sent Plaintiff to the SHU
for lying. (Id. at 10.)
Once in the SHU, Plaintiff claims that he lay on the floor (still unable to walk) in his
“own urine, saliva, and vomit” until the next day. (Id. at 10-11.) The next morning Plaintiff was

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Decadron is a corticosteroid used to control cervical and cerebral swelling.
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transferred to SFMC for evaluation. He was kept at SFMC for another four (4) days and
diagnosed with a “deformity of cervical 5th vertebrae.” (Id. at 11.) Plaintiff was returned to F.C.I.
Fort Dix on January 31, 2015, and told to continue taking Decadron, using his cervical collar,
and to start physical therapy to avoid further complications. (Id.) When he returned, however,
Plaintiff was put back in the SHU until March 21, 2013. While in the SHU, Plaintiff routinely
went without his medication, was “chained up” to a shower, and never received physical therapy.
(Id.) Between June 25 and June 30, 2013, Plaintiff was transferred back and forth between F.C.I.
Fort Dix and SFMC due to complaints of seizures. On June 30, 2013, Plaintiff was diagnosed
with a seizure disorder and was not discharged from SFMC until July 6, 2013. (Id. at 12.)
Plaintiff finally alleges that F.C.I. Fort Dix never afforded him his prescribed physical therapy or
Decadron and, as a result, Plaintiff was constantly in excruciating pain and confined to his
wheelchair for eighteen (18) months. (Id.) Plaintiff did not receive “proper medical treatment”
until he was released from prison in August 2014. (Id.)
III. CLAIMS
Plaintiff brings the following claims against Defendant:
Count One: Negligence under the Federal Tort Claims Act;
Count Two: Deliberate Indifference to Serious Medical Needs under § 1983;
Count Three: Cruel and Unusual Punishment under § 1983;
Count Four: Excessive Force under § 1983;
Count Five: Violation of the Americans with Disabilities Act;
Count Six: Negligent Hiring, Supervision, Training and Retention of Employees under
the Federal Tort Claims Act;
Count Seven: Conspiracy pursuant to 42 U.S.C. § 1983; and
Count Eight: On behalf of co-plaintiff, Mrs. Tania Coleman, per quod.

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IV. STANDARD OF REVIEW
A. Federal Rule of Civil Procedure 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), the court must “accept all factual
allegations as true, construe the complaint in the light most favorable to the plaintiff, and
determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled
to relief.” Phillips v. Cty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (internal quotations
omitted). However, “the tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (internal citations omitted). If the “well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct,” the complaint should be dismissed for
failing to show “that the pleader is entitled to relief” under Rule 8(a)(2). Id. at 679.
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 or the District of Columbia, 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…
See 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. See Harvey v.

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Plains Twp. Police Dep’t, 635 F.3d 606, 609 (3d Cir. 2011) (citations omitted); see also West v.
Atkins, 487 U.S. 42, 48 (1988).
IV. DISCUSSION
A. § 1983 Claims Against Defendant United States of America are Dismissed with Prejudice
Plaintiff asserts all three Eighth Amendment claims (Count Two, Count Three, and Count
Four), brought under 42 U.S.C. § 1983, against Defendant the United States of America, as well
as a claim of conspiracy (Count Seven).
To be liable within the meaning of 42 U.S.C. § 1983, a defendant must be a “person.”
The Supreme Court held in Will v. Michigan Dep’t. of State Police, 491 U.S. 58 (1989), that a
State or an official of a State acting in his or her official capacity is not a “person” within the
meaning of § 1983. A § 1983 claim does not apply to the United States because the United States
has not consented to be sued under § 1983. See Brown v. Philip Morris, Inc., 250 F.3d 789, 800
(3d Cir. 2001). Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics is the federal
corollary to § 1983. See 403 U.S. 388, 410 (1971). However, even if Plaintiff’s claims were
construed as arising under Bivens, they would still fail against the United States because “[t]he
purpose of Bivens is to deter individual federal officers from committing constitutional
violations.” Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70 (2001) (emphasis added); see Albert
v. Yost, 431 F. App’x 76, 81 (3d Cir. 2001) (“A Bivens claim can be maintained only against
individual federal officers, not against a federal entity.”).
Here, the United States has not waived its sovereign immunity for claims brought under
either § 1983 or Bivens, nor have any individual federal officers been named. Therefore, because
the United States is not a “person” under either § 1983 or Bivens, and because the United States

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has not waived its sovereign immunity, Plaintiff’s claims Two, Three, Four, and Seven are
dismissed with prejudice as to Defendant United States.

B. Plaintiff Has Not Asserted a Valid Claim under the Americans with Disabilities Act
In Count Five of the Complaint, Plaintiff asserts that Defendant United States violated Title
II of the Americans with Disabilities Act. (See ECF No. 1 at 19-20.) Title II of the ADA “forbids
discrimination against persons with disabilities in . . . public services, programs and activities[.]”
Tennessee v. Lane, 541 U.S. 509, 516-17 (2004).
Although Plaintiff attempts to plead claims under Title II of the ADA against Defendant
United States, it is well-settled that the ADA does not apply to the federal government, its
agencies or employees. See Smith v. Pallman, 420 F. App’x 208, 214 (3d Cir. 2011); see also,
e.g., United States v. Wishart, 146 F. App’x 171, 173 (9th Cir.2005) (“By definition, the ADA
does not apply to the federal government.”); Luna v. Roche, 89 F. App’x. 878, 881 n.4 (5th Cir.
2004) (same); Dyrek v. Garvey, 334 F.3d 590, 597 n.3 (7th Cir. 2003) (same); Sarvis v. United
States, No. 99-0318, 2000 WL 1568230, at *2 (2d Cir. 2000) (same); Whooten v. Bussanich, No.
04-223, 2005 WL 2130016, at *7 (M.D. Pa. Sept. 2, 2005) (noting that the ADA does not contain
a waiver of sovereign immunity so it does not apply to the federal government); Wilson v. MVM,
Inc., No. 03-4514, 2004 WL 765103, at *11 (E.D. Pa. Apr. 1, 2004) (noting that the ADA does
not apply to any agency or branch of the federal government). Therefore, because the ADA does
not apply to the federal government, its agencies or employees, Plaintiff’s claim that Defendant
United States violated Title II of the ADA is dismissed with prejudice.

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C. Plaintiff’s FTCA Claim Alleging Negligent Hiring, Training, Supervision and Retention of
Employees against Defendant United States May Proceed
The Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2401(b), 2671-80,
“operates as a limited waiver of the United States’ sovereign immunity.” White-Square v. U.S.
Postal Serv., 592 F.3d 453, 456 (3d Cir. 2010). The FTCA allows claims against the United
States for money damages
for injury or loss of property, or personal injury or death caused by the negligent
or wrongful act or omission of any employee of the Government while acting
within the scope of his office or employment, under circumstances where the
United States, if a private person, would be liable to the claimant in accordance
with the law of the place where the act or omission occurred.
28 U.S.C. § 1346(b)(1).
For the federal district courts to have jurisdiction over FTCA claims, plaintiffs must
comply with a rather stringent exhaustion requirement. In order to properly present such a claim,
a plaintiff must provide the agency at issue with written notification of the incident involved
accompanied by a claim for money damages in a “sum certain.” Bruno v. U.S. Postal Serv., 264
F. App’x 248, 248 (3d Cir. 2008) (internal quotations omitted). The agency then must issue a
final denial of said claim. See McNeil v. United States, 508 U.S. 106, 110-111 (1993).
Because the requirements of presentation and a sum certain are among the terms defining the
United States' consent to be sued, they are jurisdictional in nature and cannot be waived. See
White-Square, 592 F.3d at 457 (citing United States v. Sherwood, 312 U.S. 584, 586 (1941)). It is
the plaintiff’s burden to persuade the court that he has complied with the FTCA’s exhaustion
requirement. See McNeil, 508 U.S. at 109.
In deciding a motion to dismiss, a court may (without converting the motion to one for
summary judgment) properly look beyond the complaint to documents referenced in the

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complaint or essential to a plaintiff's claim which are attached to a defendant's motion. See
Pension Benefit Guar. Corp. v. White Consol. Indus., 998 F.2d 1192, 1196 (3rd Cir. 1993) (“[A]
court may consider an undisputedly authentic document that a defendant attaches as an exhibit to
a motion to dismiss if the plaintiff's claims are based on the document.”). It appears reasonable to
treat the documents offered by Defendants, i.e., Plaintiff’s administrative claim form and
Defendant’s own denial letter, as documents upon which Plaintiffs' claims are based and
therefore as properly considered on a motion to dismiss. See In re Honeywell Int'l, 2004 WL
3245931, at *1 (D.N.J. Sept. 14, 2004).
Here, Defendant United States argues that Plaintiff did not meet the FTCA’s exhaustion
requirement with regards to his Count Six, i.e., Negligent Training, Hiring, Supervision, and
Retention of prison personnel. (ECF No. 6-1 at 19-20.) Defendant concedes that Plaintiff
submitted a proper administrative claim to the Bureau of Prisons (“BOP”), and that it contained a
discrete claim and a sum certain. (Id. at 20.) Defendants argue, however, that the facts asserted
on the administrative claim form did not put BOP on notice of a potential claim for negligent
hiring, training supervision or retention. (Id.) The claim made to the BOP states, in full, “[o]n
January 21, 2013, claimant was in unite 5852 west side, taking a shower when he was struck in
the head by an iron gate that had fallen from the wall.” (ECF No. 6-2 at 11.) Defendants argue
that this statement, with nothing more, was insufficient to put Defendant on notice that Plaintiff
was raising a claim rooted in negligent supervision, training, hiring or retention. (ECF No. 6-1 at
20.) The Court agrees.
A panel of the Third Circuit has held that an administrative tort claim alleging negligence
and an administrative tort claim alleging negligent training or supervision are distinct and must
be alleged separately for the District Court to have jurisdiction under the FTCA. See Davila-

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Bajana v. Sherman, 278 F. App’x 91, 94 (3d Cir. 2008) (“Davila-Bajana . . . never initiated an
administrative claim alleging negligent implementation of policy and/or employee training.
Therefore, the District Court properly found that it lacked jurisdiction to hear this claim.”).
Therefore, because Plaintiff’s administrative tort claim only alleged negligence, the Court lacks
jurisdiction to hear Plaintiff’s claim of negligent hiring, training, supervision or retention under
the FTCA and Plaintiff’s Count Six is dismissed with prejudice. See Deutsch v. U.S., 67 F.3d
1080, 1091 (3d Cir. 1995); 28 U.S.C. §§ 2401(b), 2675(a).
D. The Court Must Dismiss Mrs. Coleman’s Claim for Loss of Consortium with Prejudice
Plaintiff’s wife, Tania Coleman, appends to Plaintiff’s complaint a claim for loss of
consortium as Count Eight. (See ECF No. 1 at 8.) A loss of consortium, or per quod, claim is
intended to compensate a person for the loss of a spouse's “society, companionship and services
due to the fault of another.” Wolfe v. State Farm Ins. Co., 540 A.2d 871 (N.J. Super. Ct. App.
Div. 1987), cert. denied, 546 A.2d 562 (N.J. 1988). Although a per quod claim is derivative of
the injured spouse's personal injury cause of action, “it is also independent, as the damages
which may be awarded to the spouse pursuant to the per quod claim are clearly different from
the damages which may be awarded to the spouse suffering the direct injury.” Kibble v. Weeks
Dredging & Const. Co., 735 A.2d 1142, 1149 (N.J. 1999) (internal citations omitted). As such,
“[e]ach claimant must submit an independent and separate claim to the appropriate
administrative agency for review and possible settlement.” Commonwealth of Pa. v. Nat’l Ass. of
Flood Ins., 520 F.2d 11, 23 (3d Cir. 1975).
In his Reply, Plaintiff argues that Milacci v. Mato Realty Co., Inc. stands for the
proposition that “no separate administrative claim [is] required” for Mrs. Coleman’s per quod
claim. (ECF No. 13 at 16.); see also 525 A.2d 1120 (N.J. Super. Ct. App. Div. May 7, 1987).

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However, at least one court in this Districthas held that “[t]his argument is unavailing as Milacci
relates to the New Jersey Tort Claims Act … not the FTCA.” Santiago v. United States, 2011
WL 4073865, at *3 (D.N.J. Sept. 13, 2011) (internal citations omitted). Because New Jersey law
treats loss of consortium and personal injury, though related, as separate and distinct entities, see
Hauck v. Danclar, 620 A.2d 479 (N.J. Super. Ct. Law Div. Jan. 15, 1993), Mrs. Coleman needed
to exhaust her own administrative remedies before filing a claim under the FTCA. See Bialowas
v. United States, 443 F.2d 1047, 1048-49 (3d Cir. 1971); see also Ferguson v. U.S., 793 F.Supp.
107, 110 (E.D. Pa 1992). Therefore, because Mrs. Coleman did not exhaust her administrative
remedies under the FTCA, her per quod claim is dismissed with prejudice.
E. Count One is Dismissed without Prejudice for Failure to State a Claim upon Which Relief
May be Granted
Defendant next argues that Plaintiff’s Count One, negligence, must be dismissed for
failure to state a claim upon which relief may be granted pursuant to FED. R. CIV. P. 12(b)(6).
(ECF No. 6-1 at 26.) Defendant argues in its motion that Count One of Plaintiff’s Complaint
“merely contains conclusory allegations,” and thus does not support a cognizable cause of action.
(Id.) Because Defendant’s alleged negligence occurred in New Jersey, New Jersey tort law
applies to Plaintiff’s claim under the FTCA. Ciccarone v. United States, 486 F.2d 253, 257 (3d
Cir. 1973). In order to establish negligence in New Jersey, Plaintiff must show, among other
things, that Defendant breached a duty of care owed to Plaintiff. Jersey Cent. Power & Light Co.
v. Melcar Utility Co., 59 A.2d 561, 571 (N.J. 2013). To demonstrate that the BOP breached its
duty of care, Plaintiff must show that the BOP employees had actual or constructive notice of the
alleged dangerous condition. See Nisivoccia v. Glass Gardens, Inc., 818 A.2d 314 (N.J. 2003).

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Here, Defendant points to the lack of evidence that the BOP had actual or constructive
notice of the alleged condition of the vent as reason for dismissal of the claim. Defendant is
correct. Plaintiff’s Complaint is devoid of any allegationsthat BOP employees knew that the vent
which fell onto Plaintiff’s head was in some dangerous condition. The Complaint also does not
aver that, in the exercise of reasonable case, the BOP employees should have discovered the
alleged hazard and/or that based on a pattern of past incidents, they should have known that the
existence of the hazard was probable. See Bozza v. Vornado, 200 A.2d 777 (N.J. 1964); see also
Kolos v. United States, 2009 WL 983030, at *3 (D.N.J. Apr. 13, 2009) (ruling for defendant post
office when plaintiff presented no evidence of actual or constructive notice of dangerous
condition on part of post office employees in FTCA negligence action). Plaintiff merely pleads
that “Defendant … [was] negligent, careless and reckless by failing to maintain its property . . .
.” (ECF No. 1 at 14.) Therefore, because Plaintiff’s claim of negligence rests on “naked
assertions” and mere “labels and conclusions,” Plaintiff’s Count One is dismissed without
prejudice for failure to state a claim upon which relief can be granted. Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009); see also FED. R. CIV. P. §§ 8(a), 12(b)(6); Wilson v. City of Philadelphia, 415 F.
App’x 434, 436 (3d Cir. 2011) (holding that, post-Iqbal, a “more exacting scrutiny” is required
of civil rights complaints).
V. JANE AND JOHN DOES
Plaintiff names in the body of his complaint the following parties: Lt. Kennar, Lt. Kael,
Lt. Monticello, Estella Richardson, Ms. Parker, James Gibbs, Cindy Dudley, Nicoletta TurnerFoster, R. Newland, Officer Echersin, Officer Archibald, and Mohammad Moubarek, M.D. (See
ECF No. 1 at 4-6.) However, the caption of Plaintiff’s Complaint only lists the United States and
Jane and John Does as defendants. Thus, claims against the above-mentioned parties are not

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presently before the Court as none of them have been served with summonses. Plaintiff should
note, if he wishes to amend his Complaint and serve the parties named in the body of the
Complaint, he must do so pursuant to the dictates of FED. R. CIV. P. 4(m).
VI. CONCLUSION

For the foregoing reasons, Defendant’s motion is granted. Plaintiff’s Counts Two, Three,
Four, Five, Six, Seven, and Eight are dismissed with prejudice as to Defendant United States.
Plaintiff’s Count One is dismissed without prejudice as to Defendant United States. For
Plaintiff’s claim that was dismissed without prejudice, Plaintiff may file an amended complaint
with the Court within thirty (30) days of the signing of this Opinion. Should plaintiff’s amended
complaint name defendants who were not previously named as defendants and served with the
original complaint, plaintiff shall serve those parties with the amended complaint pursuant to the
dictates of Federal Rule of Civil Procedure 4(m). An appropriate order will follow.

DATED:

______________________________
ROBERT B. KUGLER
United States District Judge

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