OWENS v. RUTGERS UNIVERSITY BEHAVIORAL HEALTH et al.

Filing 42

OPINION. Signed by Chief Judge Jerome B. Simandle on 12/23/2016. (TH, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

RICHARD OWENS,

HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 15-4730 (JBS-TJB)

v.
RUTGERS UNIVERSITY BEHAVIORAL
HEALTH CARE, et al.,

OPINION

Defendants.

APPEARANCES:
William B. Hildebrand, Esq.
Law Offices of William B. Hildebrand L.L.C.
36 Tanner Street, Suite 300
Haddonfield, New Jersey 08033
Attorneys for Plaintiff Richard Owens
Margaret Raymond Flood, Esq.
Norris McLaughlin & Marcus, P.A.
721 Route 202-206, Suite 200
Bridgewater, New Jersey 08807-5933
Attorneys for Defendants Rutgers University Behavioral
Health Care, William Briglia, D.O., and Monica Tsakiris, APN.

SIMANDLE, Chief Judge:
INTRODUCTION
Before the Court is the motion of Defendants Rutgers
University Behavioral Health Care (“Rutgers”), William Briglia,
D.O., and Monica Tsakiris, APN (collectively “Defendants”) to
dismiss Plaintiff Richard Owens’ civil rights complaint.
(Briglia/Tsakiris Motion, Docket Entry 22; Rutgers Motion,

Docket Entry 30.) Plaintiff opposes the motion. (Opposition,
Docket Entry 40.) These motions are being decided on the papers
pursuant to Federal Rule of Civil Procedure 78. For the reasons
set forth below, the motions are granted in part.
II. BACKGROUND
Plaintiff is a convicted and sentenced state prisoner
currently confined at South Woods State Prison (“SWSP”),
Bridgeton, New Jersey. Since 2008, he has been diagnosed as
having a bulging disc, chronic back pain, chronic sciatica in
his left leg, degenerative disc disease, and arthritis in his
spine. Complaint, Docket Entry 3 ¶¶ 16-19. As a result, he has
been prescribed a back-brace, walker, cane, wheelchair, nonnarcotic pain medication, and muscle relaxers. Id. ¶¶ 20, 22. He
is restricted to the ground floor and bottom bunk. Id. ¶ 20.
In September 2013, Plaintiff visited SWSP’s medical
facilities, which are run by Rutgers under a contract with the
New Jersey Department of Corrections, in order to request a
renewal of his medical equipment and to discuss spinal surgery
in order to treat his sciatica, degenerative disc disease, and
arthritis. Id. ¶¶ 10, 25-26. Nurse Tsakiris, the nurse
practitioner on duty, informed Plaintiff in October 2013 that
there was no surgery for spinal arthritis. Id. ¶ 27. Plaintiff
filed a grievance against her with Dr. Woodward, SWSP’s medical
director. Id. ¶ 28.
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Plaintiff met with Nurse Tsakiris again on November 21,
2013 and again inquired into surgery for his sciatica. Id. § 29.
He provided her with some medical records from a previous
lawsuit regarding his disability, but Nurse Tsakiris “deemed it
irrelevant” and “‘warned’ the Plaintiff in a verbally aggressive
manner to ‘stop’ writing grievances against her.” Id. Plaintiff
filed another grievance against her two weeks later. Id. ¶ 30.
In February 2014, Plaintiff experienced constant lower back
pain and numbness radiating down his left leg. Id. ¶ 31. He
requested stronger pain medication and asked for a renewal of
his muscle relaxant. Id. ¶¶ 31-32. He additionally requested
that Dr. Woodward provide him with transportation in accordance
with the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§
12101, et seq., to a court hearing on May 29, 2014 and provided
documents supporting his request. Id. ¶ 33. Plaintiff filed
another “sick call slip” on February 18, 2014 indicating that he
had not been seen by medical for his back pain and numbness and
again requested a renewal of his muscle relaxant. Id. ¶ 34. He
was seen by a nurse the next day and was told that the
prescription would be renewed “for an extended period”; however,
he was later informed the muscle relaxant had only been renewed
for a seven-day period. Id. ¶¶ 35-36. Additionally, he alleges
no prescription had been written when he went to pick up the
promised medication at “PM Pill Call” on February 21. Plaintiff
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repeatedly requested Nurse Tsakiris renew the prescription as he
was in severe pain. Id. ¶¶ 37-40. He was allegedly told on a few
occasions that the medication had been ordered, but the PM Pill
Call Nurse denied any prescription for muscle relaxation had
been placed. Id. ¶¶ 41, 43. On March 25, 2014, the PM Pill Call
Nurse told Plaintiff he would not be getting any muscle
relaxant. Id. ¶ 46. According to the complaint, “[Nurse
Tsakiris] was continuously manufacturing false information or
claims about him in his ‘medical records,’ e.g., ‘that he can
bend and life his leg in full range motion without pain and that
he is carrying his cane as he walks.’” Id. ¶ 42.
Plaintiff filed a grievance about the lack of medical care
with Dr. Woodward and requested that Dr. Woodward switch
Plaintiff’s non-narcotic pain medication to Tramadol.1 He alleges
that Nurse Tsakiris “was still manufacturing false information
about him in his medical records and/or undermining the severity
of his medical problems for retaliation for his grievances
against her and not to have [Rutgers] undertake the cost of
‘specialists,’ up-dated diagnostic testing and/or an extremely
expensive medical procedure and/or spinal surgery.” Id. ¶ 49.
Plaintiff continued to ask for a pain management specialist and

1

“Tramadol is a narcotic-like pain reliever . . . used to treat
moderate to severe pain.” Tramadol, available at
https://www.drugs.com/tramadol.html (last visited Dec. 20,
2016).
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a stronger pain medication throughout April 2014. Id. ¶¶ 50-55.
Plaintiff alleges he was unable to participate in physical
therapy due to his back and leg pain on at least three
occasions. Id. ¶¶ 53, 58, 63.
Plaintiff saw Nurse Tsakiris on May 6, 2014 at which time
she “down-graded” his pain medication and refused to renew his
muscle relaxant. Id. ¶ 57. According to the complaint, Nurse
Tsakiris would “‘thrust’ the Plaintiff’s left leg up while he
was laying on the examination table ‘already in pain to begin
with’ and/or against his wishes for her to please stop and/or
despite the fact he was overwhelmed with pain.” Id. ¶ 57. She
would then note in his medical records “that he had mobility in
his left leg and exhibited no pain during the examination and
was ambulating problem free and carrying his cane.” Id.
On May 23, 2014, Plaintiff was instructed by SWSP officials
to get ready for his court trip. Id. ¶ 59. Plaintiff was placed
in a holding cell awaiting transport; however, he was unable to
get into the van as it was not ADA-accessible. Id. He was
charged with refusing a scheduled trip. Id. ¶ 61. He was found
guilty of the offense “because the APN documented to the
courtline officer that despite Plaintiff’s medical problems,
ADA-transportation wasn’t warranted.” Id. ¶ 64. Plaintiff
appealed the decision, but it was upheld by the associate
administrator. Id. ¶ 65. He appealed that decision to the New
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Jersey Superior Court Appellate Division. Id. ¶ 68. The Attorney
General’s Office moved to remand the appeal in order to vacate
the charge and sanctions. Id. ¶ 71.
In October 2014, Plaintiff wrote to Dr. Woodward and
requested a bed wedge, offering to pay for it if necessary. Id.
¶ 70. He made another request for the wedge in December 2014
after receiving no response from Dr. Woodward. Id. ¶ 72.
Plaintiff further alleges that in March 2015, an inmate with a
staph infection was moved into Plaintiff’s cell despite having
open wounds. Id. ¶ 72(a). He states that as a result of sharing
the cell, he contracted a skin infection, diarrhea, nausea,
vomiting, and stomach problems. Id. ¶ 72(b). He asserts he is
afraid to seek treatment “out of fear of retaliation and/or a
manufactured disciplinary charge.” Id. This complaint followed
in June 2015. Counsel was appointed in September 2015.
Defendants originally filed these motions in November and
December 2015, however they were administratively terminated by
Magistrate Judge Tonianne Boniovanni pending resolution of an
issue raised by Plaintiff. Letter Order, Docket Entry 32. The
motions were reopened in March 2016.
The complaint alleges Defendants violated the Eighth
Amendment by failing to provide necessary medical treatment.
Complaint ¶¶ 79-81. He further alleges violations of the ADA and
§ 504 of the Rehabilitation Act (“RA”), codified at 29 U.S.C. §
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794, by failing to provide Plaintiff with a reasonable
accommodation, specifically an accessible van, id. ¶¶ 73-78;
intentionally discriminating against him by filing disciplinary
charges against him, id. ¶¶ 82-84; and retaliating against him
“in the form of deliberate indifference,” id. ¶¶ 85-87. He also
alleges Defendants conspired to deny him medical care out of
“‘invidiously discriminatory animus . . . .’” Id. ¶¶ 88-90.
Defendants ask that the complaint be dismissed with
prejudice for failure to state a claim upon which relief could
be granted. Fed. R. Civ. P. 12(b)(6).
III. STANDARD OF REVIEW
When considering a motion to dismiss a complaint for
failure to state a claim, Fed. R. Civ. P. 12(b)(6), the Court
must accept all well-pleaded allegations in the complaint as
true and view them in the light most favorable to the non-moving
party. A motion to dismiss may be granted only if the plaintiff
has failed to set forth fair notice of what the claim is and the
grounds upon which it rests that make such a claim plausible on
its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
Although Rule 8 does not require “detailed factual allegations,”
it requires “more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Twombly, 550 U.S. at 555).

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In reviewing the sufficiency of a complaint, the Court must
“tak[e] note of the elements [the] plaintiff must plead to state
a claim. Second, it should identify allegations that, because
they are no more than conclusions, are not entitled to the
assumption of truth. Finally, [w]hen there are well-pleaded
factual allegations, [the] court should assume their veracity
and then determine whether they plausibly give rise to an
entitlement to relief.” Connelly v. Lane Const. Corp., 809 F.3d
780, 787 (3d Cir. 2016) (alterations in original) (internal
citations and quotation marks omitted).
IV. ANALYSIS
A. Dr. Briglia
The ADA and RA do not create private causes of action
against individuals.2 See Matthews v. Pa. Dep't of Corr., 613 F.
App'x 163, 170 (3d Cir. 2015) (citing Garcia v. S.U.N.Y. Health

2

Under Title II of the ADA, “no qualified individual with a
disability shall, by reason of such disability, be excluded from
participation in or be denied the benefits of the services,
programs, or activities of a public entity, or be subjected to
discrimination by any such entity.” 42 U.S.C. § 12132. To
establish a violation of Title II, Plaintiff must allege: “(1)
that he is a qualified individual; (2) with a disability; (3)
who was excluded from participation in or denied the benefits of
the services, programs, or activities of a public entity, or was
subjected to discrimination by any such entity; (4) by reason of
his disability.” Dahl v. Johnston, 598 F. App'x 818, 819-20 (3d
Cir. 2015) (citing 42 U.S.C. § 12132); see also Bowers v. Nat'l
Collegiate Athletic Ass'n, 475 F.3d 524, 553 n.32 (3d Cir.
2007). For purposes of this motion only, the Court presumes
Plaintiff is a qualified person with a disability.
8

Sciences Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001);
Alsbrook v. City of Maumelle, 184 F.3d 999, 1005 n.8 (8th Cir.
1999) (en banc)). Therefore, the ADA and RA claims against Dr.
Briglia are dismissed with prejudice.
Plaintiff alleges Dr. Briglia violated the Eighth Amendment
by denying his right to adequate medical care, the First
Amendment by retaliating against him for exercising his
constitutional rights, and 42 U.S.C. §§ 1985, 1986 by conspiring
to deprive him of adequate medical care. In order to set forth a
cognizable claim for a violation of the 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. See Estelle v.
Gamble, 429 U.S. 97, 106 (1976); Natale v. Camden Cnty. Corr.
Facility, 318 F.3d 575, 582 (3d Cir. 2003). To state a First
Amendment retaliation claim, Plaintiff must plead facts
indicating (1) he engaged in constitutionally-protected
activity; (2) he suffered, at the hands of a state actor,
adverse action “sufficient to deter a person of ordinary
firmness from exercising his [constitutional] rights;” and (3)
the protected activity was a substantial or motivating factor in
the state actor's decision to take adverse action. Rauser v.
Horn, 241 F.3d 330, 333–34 (3d Cir. 2001) (quoting Allah v.
Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)).
9

The complaint is devoid of any factual allegations against
Dr. Briglia whatsoever. In other words, Plaintiff has not
specifically set forth what Dr. Briglia did or did not do that
violated Plaintiff’s rights. As Plaintiff has not set forth
viable claims for relief, the claims against Dr. Briglia are
dismissed in their entirety. Since he may be able to allege a
set of facts in which Dr. Briglia would be liable for violating
the Eighth or First Amendments, the dismissal of those claims is
without prejudice.
Plaintiff also has not sufficiently alleged conspiracy
claims against Dr. Briglia. “Section 1985(3) establishes a cause
of action against any person who enters into a private
conspiracy for the purpose of depriving the claimant of the
equal protection of the laws.” Rogin v. Bensalem Twp., 616 F.2d
680, 696 (3d Cir. 1980), cert. denied, 450 U.S. 1029 (1981). To
properly allege a civil rights conspiracy under § 1985(3),
Plaintiff must allege the existence of:
(1) a conspiracy; (2) for the purpose of depriving,
either directly or indirectly, any person or class of
persons of the equal protection of the laws, or of equal
privileges and immunities under the laws; and (3) an act
in furtherance of the conspiracy; (4) whereby a person
is injured in his person or property or deprived of any
right or privilege of a citizen of the United States.
Kirkland v. DiLeo, 581 F. App'x. 111, 118 (3d Cir. 2014)
(quoting Farber v. City of Paterson, 440 F.3d 131, 134 (3d Cir.
2006)). “Section 1986 is a companion to § 1985(3) and provides
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the claimant with a cause of action against any person who,
knowing that a violation of § 1985 is about to be committed and
possessing power to prevent its occurrence, fails to take action
to frustrate its execution.” Rogin, 616 F.2d at 696. Plaintiffs
must allege: “(1) the defendant had actual knowledge of a § 1985
conspiracy, (2) the defendant had the power to prevent or aid in
preventing the commission of a § 1985 violation, (3) the
defendant neglected or refused to prevent a § 1985 conspiracy,
and (4) a wrongful act was committed.” Clark v. Clabaugh, 20
F.3d 1290, 1295 (3d Cir. 1994). Plaintiff has not sufficiently
alleged facts supporting a reasonable inference that Dr. Briglia
agreed with others to violate Plaintiff’s civil rights or that
he knew about a conspiracy but failed to take action. This claim
is also dismissed without prejudice. Plaintiff will be given one
last opportunity to correct these important pleading
deficiencies, if he can do so consistent with the applicable law
and factual circumstances.
B. Nurse Tsakiris
Plaintiff alleges Nurse Tsakiris violated the ADA and RA by
failing to make reasonable accommodations for his disability and
intentionally discriminating against him. He further alleges she
conspired with Rutgers, Dr. Briglia, and Dr. Woodward to subject
him to deliberate indifference. Nurse Tsakiris argues that all
claims besides the Eighth Amendment deliberate indifference and
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First Amendment retaliation claims must be dismissed. The Court
agrees.
As previously noted, there is no cause of action against
individuals under the ADA and RA. Even if there were such an
action, Plaintiff would have failed to state a claim against
Nurse Tsakiris for reasonable accommodation under the ADA as the
complaint only alleges Plaintiff requested the accommodation, an
accessible van, from Dr. Woodward, SWSP’s ADA Coordinator.3
Complaint ¶¶ 14, 33. Nothing in the complaint supports a
reasonable inference that Nurse Tsakiris was involved in denying
the ADA-accessible van or knew that Plaintiff would be charged
with a disciplinary infraction. The ADA and RA claims against
Nurse Tsakiris are dismissed with prejudice.
Plaintiff also has not sufficiently alleged Nurse Tsakiris
conspired with the other defendants to violate his civil rights.
There no facts reasonably supporting an inference that there was
an agreement between Defendants to deprive Plaintiff of medical
care for a discriminatory reason. Plaintiff’s assertion that
there was “‘invidiously discriminatory animus’ behind the

3

“[A] plaintiff can assert a failure to accommodate as an
independent basis for liability under the ADA . . . . To make
out such a claim, a plaintiff must show that the accommodation
he seeks is reasonable, i.e., that it is ‘necessary to avoid
discrimination on the basis of disability.’” Muhammad v. Court
of Common Pleas of Allegheny Cnty., Pa., 483 F. App'x 759, 763
(3d Cir. 2012) (quoting 28 C.F.R. § 35.130(b)(7))(internal
citations omitted).
12

conspirator’s actions” is the kind of conclusory allegation that
is not entitled to the assumption of truth. See Connelly v. Lane
Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (noting
allegations that are no more than conclusions are not entitled
to assumption of truth); see also Burtch v. Milberg Factors,
Inc., 662 F.3d 212, 224 (3d Cir. 2011) (“[M]ere restatements of
the elements of [a] claim [ ] ... are not entitled to the
assumption of truth.” (alterations and omissions in original)
(internal citations and quotation marks omitted)). Plaintiff may
be able to amend his complaint to sufficiently plead a
conspiracy claim, however. It will therefore be dismissed
without prejudice.
Finally, Nurse Tsakiris argues the retaliation claim should
be dismissed in part. To the extent the claim is based on
violating the ADA, Plaintiff has failed to state a claim for the
reasons previously stated. “[I]ndividual Defendants cannot be
held liable for retaliation under the ADA. While the Third
Circuit has not directly ruled on this issue, courts in this
district have found no individual liability exists.” Cottrell v.
Family Practice Assocs., No. 15-2267 2016 WL 3029921, at *2
(D.N.J. May 26, 2016) (citing P.N. v. Greco, 282 F. Supp. 2d
221, 243 (D.N.J. 2003)). To the extent the claim is based on the
First Amendment, Nurse Tsakiris concedes Plaintiff has stated a
claim, Briglia/Tsakiris Motion at 9-10, and the Court agrees.
13

The retaliation claim is dismissed with prejudice on the ADAcomponent, but may continue under the First Amendment.
C. Rutgers
Rutgers argues the complaint should be dismissed with
prejudice in its entirety.
The RA claims against Rutgers must be dismissed as
Plaintiff has not pled that Rutgers is a recipient of federal
financial assistance. 29 U.S.C. § 794(a). See Muhammad v. Court
of Common Pleas of Allegheny Cnty., Pa., 483 Fed. App’x 759,
762–63 (3d Cir. 2012) (noting that in addition to pleading the
same elements as under Title II of the ADA, plaintiffs making RA
claim must plead that “the violation was committed by a program
or activity receiving ‘Federal financial assistance.’” (quoting
29 U.S.C. § 794(a)). The RA claims are dismissed without
prejudice.
Plaintiff first alleges Rutgers failed to make reasonable
accommodations for his disability by providing him with an
accessible van to his court appearance. Complaint ¶¶ 73-78. He
has failed to state a failure to accommodate claim as there is
no factual support for the inference that Rutgers denied the
van. According to the complaint, Plaintiff requested the van
from SWSP employee Dr. Woodward. Id. ¶ 33. The reasonable
inference is that the only entity with the ability to provide
the requested accommodation is SWSP, not Rutgers, as the prison
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would be in charge of providing transportation to court
hearings. See id. ¶ 59. The failure to accommodate claim is
dismissed without prejudice.
Plaintiff alleges that Rutgers’ failure to provide muscle
relaxant and stronger pain medication caused Plaintiff to be in
such pain that he was unable to participate in various medical
and prison programs. Complaint ¶¶ 79-81. This claim is a medical
malpractice or Eighth Amendment claim, not an ADA claim.
“The treatment (or lack thereof) of a prisoner's medical
condition typically does not provide a basis upon which to
impose liability under the ADA.” McClintic v. Pa. Dep't of
Corr., No. 12-6642, 2013 WL 5988956, at *11 (E.D. Pa. Nov. 12,
2013); see also Iseley v. Beard, 200 F. App'x 137, 142 (3d Cir.
2006) (noting that denial of medical treatment for disabilities
“is not encompassed by the ADA's prohibitions”); Burger v.
Bloomberg, 418 F.3d 882, 883 (8th Cir. 2005) (concluding that a
lawsuit under the ADA “cannot be based on medical treatment
decisions”); Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134,
1144 (10th Cir. 2005) (medical decisions do not ordinarily fall
within the scope of the ADA); Rashad v. Doughty, 4 F. App'x 558,
560 (10th Cir. 2001) (“[T]he failure to provide medical
treatment to a disabled prisoner, while perhaps raising Eighth
Amendment concerns in certain circumstances, does not constitute
an ADA violation.”); Bryant v. Madigan, 84 F.3d 246, 249 (7th
15

Cir. 1996) (“He is complaining about incompetent treatment of
his paraplegia. The ADA does not create a remedy for medical
malpractice.”). Plaintiff’s allegations that Rutgers and its
doctors did not sufficiently treat his disability, including
through physical therapy, is not properly brought under the ADA.4
This claim is therefore dismissed without prejudice for failure
to state a claim.
Plaintiff further claims Rutgers discriminated against him
by virtue of his disability by subjecting him to a disciplinary
charge. Complaint ¶¶ 82-84. This claim must also be dismissed as
there is no factual support in the complaint for a reasonable
inference that Rutgers, the medical provider, invited the
disciplinary charge, adjudicated the charge, or actually knew
that Plaintiff would be subjected to a disciplinary charge. See
Owens v. Armstrong, 171 F. Supp. 3d 316, 333 (D.N.J. 2016)
(noting intentional discrimination under ADA requires actual
knowledge (citing S.H. ex rel. Durrell v. Lower Merion Sch.
Dist., 729 F.3d 248, 263 (3d Cir. 2013))). The claim is
dismissed without prejudice.

4

To the extent the complaint alleges Plaintiff was denied the
ability to participate in recreation time and religious
services, the claim cannot proceed against Rutgers as it is not
the public entity that provides those services. Moreover, the
complaint does not contain any factual allegations about those
alleged denials.
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Plaintiff also brings retaliation claims against Rutgers.
The ADA prohibits retaliation, stating in relevant part:
No person shall discriminate against any individual
because such individual has opposed any act or practice
made unlawful by this chapter or because such individual
made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing
under this chapter.
42 U.S.C.A. § 12203. Plaintiff alleges Defendants falsified his
medical records and deprived him of medical care out of retaliation
for making ADA claims against them. Giving Plaintiff the benefit
of all reasonable inferences, he has sufficiently alleged an ADA
retaliation claim against Rutgers. Defendants’ motion to dismiss
is denied as to this claim.
In addition to his ADA claims, Plaintiff alleges Rutgers
violated his constitutional rights by engaging in retaliation in
violation of the First Amendment, denying him adequate medical
care in violation of the Eighth Amendment, and conspiring with
Drs. Woodward and Briglia and Nurse Tsakiris to deny him medical
care. These claims must also be dismissed without prejudice.
Plaintiff cannot rely on the doctrine of respondeat
superior to sustain § 1983 claims against Rutgers. In order for
Rutgers to be liable under § 1983 for the actions or inactions
of its employees, Plaintiff must allege that a policy or custom
of that entity caused the alleged constitutional violations.
Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 583 (3d

17

Cir.2003) (citing Bd. Of Cnty. Comm'rs of Bryan Cnty. Oklahoma
v. Brown, 520 U.S. 397, 404 (1997)); see also Defreitas v.
Montgomery Cnty. Corr. Facility, 525 F. App'x 170, 177 (3d Cir.
2013) (listing three ways a policy or custom can be
established). Plaintiff has not alleged there is a relevant
Rutgers policy or custom that violated his constitutional
rights, nor has he alleged that Rutgers violates federal law in
the absence of a formally announced policy. He also does not
allege that Rutgers has failed to act at all, in spite of the
fact that there is an obvious need for Rutgers “to take some
action to control [of its agents] ..., and the inadequacy of
existing practice [is] so likely to result in the violation of
constitutional rights, that [Rutgers] can reasonably be said to
have been deliberately indifferent to the need.” Defreitas, 525
F. App'x at 177 (internal citations omitted). Plaintiff has
therefore failed to sufficiently allege Rutgers itself engaged
in retaliation, denial of adequate medical care, or conspiracy.
These claims shall be dismissed without prejudice.
To summarize, all ADA and RA claims against Rutgers shall
be dismissed without prejudice with the exception of the ADA
retaliation claim which shall continue. All federal
constitutional claims shall be dismissed without prejudice.
V.

CONCLUSION

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For the reasons stated above, Defendants’ Motion to Dismiss
is granted in part. An appropriate order follows.

December 23, 2016
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

19