BURT v. CFG HEALTH SYSTEMS et al

Filing 2

MEMORANDUM and ORDER Clerk shall administratively terminate this matter. ORDERED Plaintiff has 30 days from the entry of this Memorandum and Order to submit a completed IFP application. ORDERED Plaintiff may also file a new "Prisoner Civil Rights Complaint." ORDERED Clerk shall send this Memorandum and Order, a blank IFP application, and a blank Prisoner Civil Rights Complaint form to Plaintiff. Signed by Judge Renee Marie Bumb on 4/14/2015. (nz, )n.m.

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

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Steven C. Burt Sr.,
Plaintiff,
v.
CFG Health Systems,
and Camden County Jail
Defendants.

Civil Action No. 15cv2279(RMB)
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MEMORANDUM AND ORDER

BUMB, District Judge:
Plaintiff is a pretrial detainee in Camden County Jail.
(Compl. at ¶3, Doc. No. 1.)

On March 31, 2015, the Clerk

received Plaintiff’s civil rights complaint form, and an
application to proceed without prepayment of fees. (Doc. No. 1.)
It appears that Plaintiff wishes to proceed without
prepaying a filing fee, but his IFP application is not properly
completed.

28 U.S.C. § 1915(a) requires a prisoner who seeks to

proceed without prepaying filing fees to complete an affidavit
of poverty and to submit his or her certified prison trust fund
account statements.

Plaintiff submitted the affidavit of

poverty but did not submit his certified prison trust fund
account statements.

Plaintiff will be given the opportunity to

correct this deficiency by filing a new IFP application.
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II.

THE COMPLAINT
If Plaintiff files a properly completed IFP application and

the application is granted, the Court will be required to review
the Complaint and dismiss it if it is frivolous or malicious,
fails to state a claim upon which relief may be granted or seeks
monetary relief against a defendant who is immune.
U.S.C. § 1915(e)(2)(b).

See 28

Plaintiff’s present complaint is

deficient is several respects.

If Plaintiff wishes to avoid

summary dismissal, he may wish to amend his complaint when he
files a new IFP application.
First, in the caption of the Complaint, Plaintiff names CFG
Health Systems and Camden County Jail as defendants.

(Compl.)

Later in the Complaint, in listing the defendants, Plaintiff
names Dr. Band as the first defendant and CFG Health Systems as
the second defendant.

(Id. at ¶4(b) and (c)).

If Dr. Band is a

defendant, Plaintiff should include him in the caption of the
Complaint.
Plaintiff alleges Dr. Band refused to provide a stable
cast for his right little finger fracture, and denied Plaintiff
surgery that was recommended by an outside “ortho.”
¶4(b)).

(Id. at

Dr. Band examined Plaintiff on August 29, 2014, and

Plaintiff was wearing a splint on his finger at that time.
at ¶6.)

(Id.

Dr. Band left the splint on for 26 days but did not

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“restabilize” Plaintiff’s finger fracture or place a cast on it.
(Id.)
Plaintiff was sent for evaluation by Dr. Fuller in “Cooper
Plaza” Camden, New Jersey in January 2015.

(Id.)

Dr. Fuller

recommended “PT/surgery,” and Dr. Band did not approve the
surgery.

(Id.)

Plaintiff alleged Dr. Band’s failure to treat

him left his finger deformed and in constant pain.

(Id.)

Plaintiff may not have exhausted his administrative
remedies.

He alleged that he filed many inmate grievance forms

without a response, and he requested medical records without a
response.

(Id. at ¶5.)

He has been unable to speak to the

Medical Administrator, and he does not have “one on one” access
to the law library.

(Id.)

For relief, Plaintiff asks the court

to find the defendant negligent and award Plaintiff a settlement
under the malpractice laws.
I.

(Id. at ¶7.)

DISCUSSION
Exhaustion of administrative remedies prior to bringing a §

1983 claim is mandatory under the Prison Litigation Reform Act
(“PLRA”) of 1995.

Smith v. Merline, 719 F.Supp.2d 438, 444

(D.N.J. 2010)(citing 42 U.S.C. § 1997e(a)).

“[T]he procedures

set out in a prison's administrative grievance program serve as
the measure for whether an inmate has exhausted his
administrative remedies.”

Id. at 445 (citing Spruill v. Gillis,

372 F.3d 218, 231 (3d Cir.2004)).
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In the present Complaint,

Plaintiff alleged that he filed grievances and was ignored, but
he did not allege that he followed all of the grievance
procedures of the jail before filing the present Complaint.
Next, Plaintiff appears to allege only that Dr. Band was
negligent and violated malpractice laws.

This Court lacks

subject matter jurisdiction over solely state law claims, and
malpractice is a state law claim.

See Genelink Biosciences,

Inc. v. Colby, 722 F.Supp.2d 592, 601 (D.N.J. 2010)(finding no
basis for federal court jurisdiction over case involving missed
deadlines in legal malpractice.)

If Plaintiff wishes to proceed

solely with a malpractice claim against Dr. Band and his
employers, he should file his claim in New Jersey state court.
Although Plaintiff has not specifically pled a
constitutional violation, he may have intended to do so by
alleging he was denied medical treatment.

Pretrial detainees

may state a constitutional claim under the Fourteenth Amendment1
by alleging facts to support a claim that acts or omissions by
prison officials indicate deliberate indifference to a serious
medical need.

Natale v. Camden County Correctional Facility,

318 F.3d 575, 582 (3d Cir. 2003).
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Plaintiff should be aware

Pretrial detainees are entitled to at least as great of
protection of the right to adequate medical care under the
Fourteenth Amendment as prisoners are entitled to under the
Eighth Amendment’s ban against cruel and unusual punishment.
Natale v. Camden County Correctional Facility, 318 F.3d 575, 582
(3d Cir. 2003)(citing City of Revere v. Massachusetts Gen.
Hosp., 463 U.S. 239, 244 (1983)).
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that “a dispute over the adequacy of the treatment or the need
to pursue one course of treatment over another . . . generally
fails to state a claim for relief under the Eighth Amendment.”
Tenon v. Dreibelbis, No. 13–4640, 2015 WL 1434439 (3d Cir. March
31, 2015)(citing United States v. Fayette County, 599 F.2d 573,
575 n. 2 (3d Cir.1979)(per curiam)(“When a prisoner had received
some medical attention and the dispute is over the adequacy of
the treatment, federal courts are generally reluctant to second
guess medical judgments and to constitutionalize claims which
sound in state tort law.”))
If Plaintiff wishes to allege a constitutional violation,
he may bring the claim pursuant to 42 U.S.C. § 1983.

See Groman

v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir. 1995)(“A
prima facie case under § 1983 requires a plaintiff to
demonstrate: (1) a person deprived him of a federal right; and
(2) the person who deprived him of that right acted under color
of state or territorial law.”)

This Court has subject matter

jurisdiction over § 1983 claims.

See 28 U.S.C. § 1331 (“The

district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the
United States.”)
If Plaintiff alleges a federal law claim, this Court may
also exercise supplemental jurisdiction over Plaintiff’s related
state law claims.

See 28 U.S.C. § 1367(a)(“the district courts
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shall have supplemental jurisdiction over all other claims that
are so related to claims in the action within such original
jurisdiction that they form part of the same case or controversy
under Article III of the United States Constitution.”)

If

Plaintiff intended to allege a claim arising under § 1983, he
should plainly state such claim in a new complaint.
Plaintiff, however, should be aware that to plead a
Fourteenth Amendment constitutional violation for inadequate
medical care, the only defendant in the present complaint who is
a proper defendant is Dr. Band, the individual who was
personally involved in the denial of care.

See Rode v.

Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)(“A defendant
in a civil rights action must have personal involvement in the
alleged wrongs”). Under § 1983, employers are not liable for the
constitutional violations of their employees.
II.

Id.

CONCLUSION
Plaintiff’s IFP application will be denied as insufficient,

and the case will be terminated.

Plaintiff, however, may reopen

the case by filing a properly completed IFP application, and may
also choose to submit a new complaint, in light of the screening
requirements of 28 U.S.C. § 1915(e)(2)(b).
IT IS, therefore, on this 14th day April of 2015,
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 this Memorandum
and Order shall be construed as withdrawal of this Court’s
jurisdiction over this matter; and it is further
ORDERED that Plaintiff may renew his application in this
matter by submitting, within thirty days from the date of entry
of this Memorandum and Order, a properly executed IFP
application for a prisoner civil rights case; and he may
accompany that submission with a new “Prisoner Civil Rights
Complaint” completed in accordance with the guidance provided
herein; and it is further
ORDERED that the Clerk shall serve this Memorandum and
Order upon Plaintiff by regular U.S. Mail, together with the
following blank forms:

“Prisoner Applying To Proceed In Forma

Pauperis In A Civil Rights Case”; “Prisoner Civil Rights
Complaint.”
Renée Marie Bumb
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RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

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