ROGERS v. NJDOC et al
OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 1/12/16. (js)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
MARTIN LUTHER ROGERS,
HONORABLE JEROME B. SIMANDLE
No. 15-7005 (JBS-JS)
NEW JERSEY DEPARTMENT OF
CORRECTIONS, et al.,
Martin Luther Rogers, Plaintiff Pro Se
#405519 SBI# 473602B
Northern State Prison
168 Frontage Road
Newark, NJ 07114-2300
SIMANDLE, Chief Judge:
Before the Court is Plaintiff Martin Luther Rogers’
(“Plaintiff”), submission of a civil rights complaint pursuant
to 42 U.S.C. § 1983; the Americans with Disabilities Act
(“ADA”), 42 U.S.C. §§ 12101, et seq.; and state tort law, all
arising during his confinement at South Woods State Prison. At
this time, the Court must review the complaint pursuant to 28
U.S.C. § 1915 to determine whether it should be dismissed as
frivolous or malicious, for failure to state a claim upon which
relief may be granted, or because it seeks monetary relief from
a defendant who is immune from such relief. For the reasons set
forth below, the Court concludes that the complaint will be
dismissed in part and permitted to go forward in part.
Plaintiff brings this civil rights action against
Defendants New Jersey Department of Corrections (“DOC”), South
Woods State Prison (“SWSP”) Administrator Robert Buechele,
Willie Bonds, Sergeant J. Cisrow, Sergeant Kuhlen, Officer
Velez, Officer Castro, Officer Schemelia, Officer Waters,
Officer Hunter, and Officer Ralph (collectively “DOC
Defendants”), as well as Rutgers University Behavioral &
Correctional Health Care (“RUCHC”) and its employees Nurse
Tsakiris, Nurse Simkins, Nurse Mills, Nurse Valentino, Nurse
DiBartolo (collectively “Rutgers Defendants”). (Complaint ¶¶ 220). Plaintiff also names John and Jane Does 1-10, who “are
employed by the NJDOC and RUCHC . . . .” (Complaint ¶ 20). The
following factual allegations are taken from the complaint and
are accepted for purposes of this screening only.
The Court has
made no findings as to the veracity of Plaintiff’s allegations.
Plaintiff is a convicted and sentenced state prisoner
currently confined at Northern State Prison. While he was
incarcerated at SWSP in 2014, he was accepted into the
Scholarship and Transformative Education in Prisons program
(“STEP”). (Complaint ¶¶ 22-23). In early 2015, he was
transferred to a housing unit designated for STEP participants.
(Id. ¶ 24). Plaintiff, who has a “back disorder,” had previously
been restricted to the ground floor of the prison, but the new
cell was on the second floor. (Id. ¶ 24). He later found out
that the restriction requiring him to be on the first floor had
expired despite it being in place for several years prior to
2015. (Id. ¶ 24). Plaintiff states he lost access to the only
handicapped-accessible shower in the building as other inmates
reached the shower before he was able to climb down the stairs.
(Id. ¶ 24).
On January 13, 2015, Plaintiff requested to have his
“ground floor only” medical restriction renewed, and Nurse
Tsakiris granted his request. (Id. ¶ 25). He thereafter asked
Sergeant Cisrow and Officer Velez to move him back to the ground
floor as they had been the officers who had moved him to the
second floor. (Id. ¶ 26). They informed Plaintiff that changes
would be made to accommodate each inmate “‘once all the inmates
were transferred’” to the STEP unit. (Id. ¶ 26). Plaintiff
alleges that as a result of remaining on the second floor, “he
could not shower regularly, participate in programs, recreation,
and other activities because of the pain he experience in his
leg and back when forced to travel the stairs.” (Id. ¶ 26).
On January 16, 2015, another inmate assaulted Plaintiff in
his cell during the evening mess movement. Plaintiff called for
assistance from the officers; however, he sustained injuries to
his face and arm before Officer Castro discovered Plaintiff in
his cell. (Id. ¶¶ 27-28). Sergeant Kuhlen and Officer Doe 1
arrived later and ordered Plaintiff to his knees before
handcuffing him and taking him to a holding cell. (Id. ¶ 28).
Nurse Caudill evaluated Plaintiff’s injuries and discovered a
“superficial scrape” on Plaintiff’s left wrist from the
handcuffs. (Id. ¶ 28). After she left, Sergeant Kuhlen and
Officer Doe 1 handcuffed Plaintiff again and “placed him in a
tortuous position by suspending him in the air from his armpits
while forcing him to kneel on his knees – causing pain – as
shackles were placed on his ankles.” (Id. ¶ 29). Plaintiff
alleges he was left in the holding cells for hours in the
restraints, “which caused additional pain and his hands to
numb.” (Id. ¶ 29). Plaintiff was placed in temporary close
custody on the ground floor later that evening. (Id. ¶ 30).
Another nurse visited Plaintiff a few days later and noted in
his medical records that he “‘takes Tylenol as needed for
discomfort.’” (Id. ¶ 31).
Nurse Simkins visited Plaintiff on January 21, 2015. (Id. ¶
32). After examining Plaintiff, he wrote in Plaintiff’s chart
that “patient ‘says vision today is fine, feels well, has no jaw
pains or face pains; mild dark [discoloration] under the left
orbit from old bruising . . . .’” (Id. ¶ 32 (omission in
original)). Nurse Simkins indicated no further treatment was
needed. (Id. ¶ 32). Plaintiff alleges that Nurse Simkins’
statements were false, and that in fact he told the nurse that
he had “excruciating” pain, and that his Tylenol and Robaxin1
were not helping with the pain. (Id. ¶ 32).
Plaintiff was released from close custody and transferred
to another housing facility in SWSP on January 27, 2015. (Id. ¶
27). Officer Schemelia ordered Plaintiff to report to his
assigned cell on the second floor. (Id. ¶ 33). When Plaintiff
told Officer Schemelia that he was restricted to the ground
floor, Officer Schemelia accused Plaintiff of lying and stated
that he “did not ‘see any medical restriction for [the] ground
floor.’” (Id. ¶ 33). Plaintiff alleges his housing on the second
floor of the new facility caused him pain and deprived him of
access to the handicapped-accessible shower on the ground floor.
(Id. ¶ 33).
The next morning, Officer Waters asked Plaintiff about his
bruises in the presence of other officers and inmates. When
Plaintiff told her that he had been assaulted, she “yell[ed] . .
. ‘You need to learn how to fight!’” (Id. ¶ 34). She transferred
Robaxin is a muscle relaxant used “to treat skeletal muscle
conditions such as pain or injury.” Robaxin, DRUGS.COM,
http://www.drugs.com/robaxin.html (last visited Dec. 3, 2015).
Plaintiff indicates he had already been taking Robaxin at the
time of the assault. (Docket Entry 1 ¶ 32).
Plaintiff to the ground floor and placed him in a handicappedaccessible cell on January 29, 2015. (Id. ¶ 35). Plaintiff filed
a grievance form regarding the assault and subsequent treatment
by Sergeant Kuhlen and Officer Doe 1. (Id. ¶ 36). Officer Waters
transferred Plaintiff to a different cell on the ground floor
two days later and told him “‘You can walk around naked in that
cell if you want.’” (Id. ¶ 37). “She then smiled at Plaintiff
and walked away.” (Id. ¶ 37).
A nurse from Rutgers evaluated Plaintiff on February 1,
2015. (Id. ¶ 38). Plaintiff told her about his continuing pain
in his head and back, the numbness in his hand, and that he had
not received his cholesterol medication since “shortly after the
incident.” (Id. ¶ 38). The nurse ordered x-rays of Plaintiff’s
left orbit and frontal bone. (Id. ¶ 38). A few days later,
Plaintiff spoke to Lieutenant Taylor about the assault and the
possibility of rejoining the STEP program.2 (Id. ¶ 39).
Lieutenant Taylor told Plaintiff that STEP “would not be
available to him at that time, and that [Plaintiff would remain
on Phase II until further notice from the Supervisor of
Education.” (Id. ¶ 39).
Plaintiff filed a grievance against Officer Waters,
claiming she had harassed him and “order[ed] him not to use the
The complaint does not indicate why Plaintiff was removed from
the STEP program.
‘book shelves’ inside his assigned cell and to ‘get rid of the
books’ and other ‘property’ because he had ‘too much stuff.’”
(Id. ¶ 40). Two days after he filed this grievance, Waters
yelled at Plaintiff for using more than one cup even though
inmates are permitted to have one cup of coffee and one cup of
milk. (Id. ¶ 41). She allegedly told Plaintiff “that she would
write a threatening charge against him if he decided to write a
complaint against her.” (Id. ¶ 41). Plaintiff submitted another
grievance against her later that evening. (Id. ¶ 41). A few days
later, Waters transferred Plaintiff to a different SWSP
facility, which impacted Plaintiff’s job assignment. (Id. ¶ 42).
Plaintiff filed another grievance against her for retaliation.
(Id. ¶ 43).
Plaintiff states that his filed grievances were either not
returned to him, or were returned attached to “Redirection
Forms.” (Id. ¶ 44). He wrote to the Office of the Ombudsman and
DOC claiming that the prison staff was retailing against him due
to the grievances and another lawsuit pending in this district,
Rogers v. McKishen, No. 13-3771 (D.N.J. filed June 19, 2013).
The Ombudsman’s office responded that Plaintiff’s complaints had
been referred to the Special Investigations Division (“SID”) and
the Administrator of SWSP for review and any appropriate action.
(Id. ¶ 45). Plaintiff was moved a different cell on March 15,
2015. (Id. ¶ 46).
On March 26, 2015, another Rutgers nurse, Nurse Curtis,
examined Plaintiff’s head. (Id. ¶ 47). As there was a lump on
Plaintiff’s head and he was complaining about persistent
headaches, she ordered a CT scan. (Id. ¶ 47). Plaintiff
submitted an Inmate Inquiry form on April 11, 2015, about his
head injury, and was moved to a different cell on April 30,
2015. (Id. ¶¶ 48-49).
Plaintiff fell inside his cell while moving his property on
May 5, 2015. (Id. ¶ 50). He had been experiencing head and back
pain at the time. (Id. ¶ 50). He submitted a medical service
request form and was seen by Nurse Valentino the next day. (Id.
¶¶ 50-51). Nurse Valentino indicated she would “‘flag the
doctor,’ but she also told Plaintiff to ‘order pain pills from
commissary.’” (Id. ¶ 51). Plaintiff went to the medication line
on several occasions during the next couple of weeks and was
told that his order for Tylenol had expired. His prescription
for Robaxin had been renewed, however. (Id. ¶ 52). He was
supposed to have an appointment on May 13, 2015, but that
appointment was cancelled. (Id. ¶ 52).
Plaintiff filed a grievance regarding his medical concerns
on May 26, 2015. (Id. ¶ 54). On June 5, 2015, the form was
returned to Plaintiff with a “Redirection Form” indicating that
Plaintiff had to submit a Health Services Request Form for his
complaints. (Id. ¶ 55). He submitted the form on June 10, 2015,
and was seen by Nurse DiBartolo on June 13. (Id. ¶ 56).
Plaintiff informed Nurse DiBartolo that he had not been
receiving his cholesterol or pain medications. (Id. ¶ 56). Nurse
DiBartolo “told Plaintiff she would ‘flag the doctor.’” (Id. ¶
56). Ten days later, Plaintiff submitted another Health Services
form asking to be seen by the doctor and have his pain
medication renewed. (Id. ¶ 57). He stated that the excruciating
pain caused him to fall and injure his knee and elbow. (Id. ¶
57). He was seen by Nurse Valentino three days after he
submitted his request. (Id. ¶ 58). She provided Plaintiff with
ice and indicated he would be able to see the doctor soon. (Id.
Plaintiff had another medical appointment on July 1, 2015,
this time with Rutgers Nurse Mills. (Id. ¶ 59). He informed her
about not receiving his cholesterol and pain medications, and
she prescribed Tylenol for the pain. (Id. ¶ 59). She ordered
physical therapy to help with the back and head pain. (Id. ¶
59). She did not follow-up on the prior order for a CT scan,
renew Plaintiff’s cholesterol medication, or examine Plaintiff.
(Id. ¶ 59).
Plaintiff was working in the SWSP law library on July 20,
2015, when he was assaulted by another paralegal. (Id. ¶ 60).
The other inmate became “loud and aggressive” when Plaintiff
approached to ask him a question. (Id. ¶ 60). Officer Hunter
arrived on the scene and ordered Plaintiff out of the hallway.
(Id. ¶ 60). As Plaintiff turned towards Officer Hunter and began
to walk towards him, the other inmate struck Plaintiff from
behind. (Id. ¶ 60). The blow to the head rendered Plaintiff
unconscious, and he was taken to the infirmary. (Id. ¶¶ 60-61).
The next day, while Plaintiff was still in the infirmary, he was
served with disciplinary charges from Officer Hunter and
Sergeant Sheppard. (Id. ¶ 61).
Plaintiff’s disciplinary hearing took place on July 23,
2015, before Disciplinary Hearing Officer Ralph. (Id. ¶ 62). The
hearing was postponed after Plaintiff requested a polygraph
examination from Administrator Bonds and the right to confront
and cross-examine Officer Hunter. (Id. ¶ 62). Plaintiff sent a
letter to DOC Commissioner Gary Lanigan four days later to
inform him about the July 20 assault and subsequent charges.
(Id. ¶ 63).3 Plaintiff’s request for a polygraph examination was
denied on July 29, 2015, and the hearing took place on August 3,
2015. (Id. ¶ 66). Plaintiff was permitted to cross-examine
Officer Hunter at the hearing and had submitted a written
statement arguing that the charges were retaliation for filing
grievances and lawsuits. (Id. ¶¶ 65-66). Plaintiff was
Plaintiff received a response on August 4, 2015, indicating
that his letter had been forwarded to the SID. (Docket Entry 1 ¶
ultimately found guilty of the disciplinary infractions; the
other inmate was found not guilty. (Id. ¶ 66). Plaintiff
appealed, but the findings were upheld on appeal. (Id. ¶ 68).
Plaintiff raises claims of excessive force, denial of
medical care, failure to protect, conditions of confinement, Due
Process violations, retaliation, and Title II violations against
the DOC Defendants, as well as state law claims of negligence
and gross negligence. (Id. ¶¶ 69-77). He also alleges the
Rutgers Defendants had policy or custom of delaying medical
care, were deliberately indifferent or grossly negligent for
allowing his pain medications and ground-floor restriction to
lapse, were deliberately indifferent or grossly negligent by
failing to provide adequate medical care, and violated Title II
of the ADA. (Id. ¶¶ 78-81).
III. STANDARD OF REVIEW
A. Standards for a Sua Sponte Dismissal
Per the Prison Litigation Reform Act, Pub. L. No. 104-134,
§§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996)
(“PLRA”), district courts must review complaints in those civil
actions in which a prisoner is proceeding in forma pauperis, see
28 U.S.C. § 1915(e)(2)(B), seeks redress against a governmental
employee or entity, see 28 U.S.C. § 1915A(b), or brings a claim
with respect to prison conditions, see 42 U.S.C. § 1997e.
PLRA directs district courts to sua sponte dismiss any claim
that is frivolous, is malicious, fails to state a claim upon
which relief may be granted, or seeks monetary relief from a
defendant who is immune from such relief. This action is subject
to sua sponte screening for dismissal under 28 U.S.C. §§ 1915
and 1915A because Plaintiff is a prisoner proceeding in forma
pauperis and is seeking relief from a governmental employee or
entity, and under § 1997e as he is bringing a claim concerning
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93–94 (2007)
(following Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also
United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
According to the Supreme Court’s decision in Ashcroft v.
Iqbal, “a pleading that offers ‘labels or conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will
not do.’” 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). To survive sua sponte
screening for failure to state a claim,4 the complaint must
allege “sufficient factual matter” to show that the claim is
“[T]he legal standard for dismissing a complaint for failure to
state a claim pursuant to § 1915A is identical to the legal
standard employed in ruling on 12(b)(6) motions.” Courteau v.
United States, 287 F. App'x 159, 162 (3d Cir. 2008) (citing
Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)).
facially plausible. Fowler v. UPMS Shadyside, 578 F.3d 203, 210
(3d Cir. 2009) (citation omitted). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Fair Wind
Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014)
(quoting Iqbal, 556 U.S. at 678). Moreover, while pro se
pleadings are liberally construed, “pro se litigants still must
allege sufficient facts in their complaints to support a claim.”
Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013)
(citation omitted) (emphasis added).
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 ... 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 in an action at law, suit in equity, or other
proper proceeding for redress ....
§ 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 West v. Atkins, 487 U.S.
42, 48 (1988); Malleus v. George, 641 F.3d 560, 563 (3d Cir.
2011); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir.
C. The Americans with Disabilities Act
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.
A. Claims Against DOC Defendants
1. Eleventh Amendment Immunity
To the extent Plaintiff seeks monetary damages against the
DOC Defendants in their official capacities, those claims must
be dismissed as barred by the Eleventh Amendment. The Eleventh
Amendment to the United States Constitution provides: “The
Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State,
or by Citizens or Subjects of any Foreign State.” U.S. Const.
amend. XI. Plaintiff’s claims against the DOC Defendants in
their official capacities are in fact a suit against the State,
see Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989);
Printz v. United States, 521 U.S. 898, 930–31 (1997), therefore
the Eleventh Amendment bars suit for damages absent a waiver of
Here, Congress did not expressly abrogate sovereign
immunity when it passed § 1983, see Will, 491 U.S. at 66, and
there is no indication New Jersey has consented to Plaintiff's
suit. Plaintiff’s § 1983 claims for damages against the DOC
Defendants in their official capacities must be dismissed.
Additionally, Plaintiff’s claims for monetary damages from the
DOC must be dismissed as it is not a “person” within the meaning
of § 1983. See Grabow v. S. State Corr. Facility, 726 F. Supp.
537, 538–39 (D.N.J. 1989) (state department of corrections and
state prison facilities are not “persons” under § 1983).
2. Denial of Medical Care
Plaintiff alleges Sergeant Cisrow, and Officers Velez and
Schemelia were deliberately indifferent to Plaintiff’s serious
medical needs when they housed him on the second floor with
limited access to the handicapped-accessible showers. (Id. ¶
70). The Eighth Amendment proscription against cruel and unusual
punishment requires that prison officials provide inmates with
adequate medical care for serious medical needs. 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.
“Because society does not expect that prisoners will have
unqualified access to health care, deliberate indifference to
medical needs amounts to an Eighth Amendment violation only if
those needs are ‘serious.’” Hudson v. McMillian, 503 U.S. 1, 9
(1992). The Third Circuit has defined a serious medical need as:
(1) “one that has been diagnosed by a physician as requiring
treatment;” (2) “one that is so obvious that a lay person would
recognize the necessity for a doctor's attention;” or (3) one
for which “the denial of treatment would result in the
unnecessary and wanton infliction of pain” or “a life-long
handicap or permanent loss.” Atkinson v. Taylor, 316 F.3d 257,
272-73 (3d Cir. 2003)(internal quotations and citations
omitted). Plaintiff has sufficiently alleged his “back disorder”
constitutes a serious medical need as he states it has been
diagnosed by a doctor as requiring treatment. (Id. ¶ 24).
“Deliberate indifference describes a state of mind more
blameworthy than negligence.” Farmer v. Brennan, 511 U.S. 825,
835 (1978). Deliberate indifference may be found where the
prison official (1) knows of a prisoner's need for medical
treatment but intentionally refuses to provide it; (2)
intentionally delays necessary medical treatment based on a nonmedical reason; or (3) deliberately prevents a prisoner from
receiving needed medical treatment. See Pierce v. Pitkins, 520
F. App'x 64, 66 (3d Cir. 2013) (citing Rouse v. Plantier, 182
F.3d 192, 197 (3d Cir. 1999)).
Plaintiff has sufficiently alleged facts warranting an
inference that Sergeant Cisrow and Officer Velez were
deliberately indifferent to his serious medical needs. According
to the complaint, the medical restriction requiring Plaintiff to
be housed on the ground floor expired prior to Officer Velez and
Sergeant Cisrow executing his reassignment to the second floor.
(Id. ¶¶ 24, 26).5 Once Plaintiff informed them that the
restriction had been renewed, they indicated Plaintiff would not
be accommodated until all of the STEP program participants were
Plaintiff does not allege that these officers made the decision
to transfer him, only that they carried out the transfer.
transferred to the STEP unit. (Id. ¶ 26). Construing all
reasonable inferences in Plaintiff’s favor, as the Court must do
at this preliminary stage, the Complaint sufficiently alleges
that Officer Velez and Sergeant Cisrow intentionally delayed
necessary medical treatment based on a non-medical reason.
Plaintiff’s claims against these defendants shall proceed at
Plaintiff’s claim fails against Officer Schemelia, however.
The complaint alleges that Officer Schemelia ordered Plaintiff
to report to his cell on the second floor after Plaintiff was
released from close custody status. (Id. ¶ 33). Plaintiff
objected to being placed on the second floor, and Officer
Schemelia responded that there was nothing in Plaintiff’s file
that required him to be on the first floor. (Id. ¶ 33). The
facts as set forth in the complaint indicate that Officer
Schemelia was not aware of the requirement that Plaintiff be on
the ground floor, therefore there is no indication he knew of,
but was indifferent to, Plaintiff’s serious medical need. This
claim shall be dismissed at this time.
3. Failure to Protect
Plaintiff also alleges Officers Castro and Hunter and Does
1-3, as well as Sergeant Kuhlen, were “deliberat[ly]
indifferent, gross[ly] negligent, and/or committed willful
misconduct” when they failed to protect Plaintiff from assaults.
(Id. ¶ 71).
“[T]he Eighth Amendment's Cruel and Unusual Punishments
Clause imposes on prison officials ‘a duty to protect prisoners
from violence at the hands of other prisoners.’” Bistrian v.
Levi, 696 F.3d 352, 366 (3d Cir. 2012) (quoting Farmer, 511 U.S.
at 833). However, not “every injury suffered by one prisoner at
the hands of another . . . translates into constitutional
liability for prison officials responsible for the victim's
safety.” Farmer, 511 U.S. at 834. To make out a failure-toprotect claim, “an inmate must plead facts that show (1) he was
incarcerated under conditions posing a substantial risk of
serious harm, (2) the official was deliberately indifferent to
that substantial risk to his health and safety, and (3) the
official's deliberate indifference caused him harm.” Bistrian,
696 F.3d at 367.
Plaintiff has not sufficiently alleged a failure-to-protect
claims against these defendants. The complaint does not allege
facts that would indicate “a sufficiently substantial danger” to
Plaintiff existed prior to the assaults. Id. The complaint
suggests that these were two random assaults, not the product of
“longstanding, pervasive, well-documented, or previously noted
tensions between” Plaintiff and other inmates. Blackstone v.
Thompson, 568 F. App'x 82, 84 (3d Cir. 2014). Moreover, nothing
in the complaint supports a reasonable inference that Castro,
Hunter, Does 1-3, and Kuhlen were aware of, and deliberately
indifferent to, “any specific incident or cause of tension
between the [inmates] from which a greater inference of risk
could be drawn.” Id. This claim shall be dismissed without
prejudice at this time.
As the federal claim is being dismissed, the Court declines
to exercise supplemental jurisdiction over the state law claims
raised in this ground for relief for failure to protect
Plaintiff from assaults by other inmates.
4. Excessive Force
Plaintiff alleges Sergeant Kuhlen and John Does 1-3 were
“deliberat[ly] indifferent, gross[ly] negligent, and/or
committed willful misconduct” when they handcuffed Plaintiff
tightly and left him handcuffed for a prolonged period of time.
(Id. ¶ 72). The Court construes this as an excessive force claim
under the Eighth Amendment. See Young v. Martin, 801 F.3d 172,
180 (3d Cir. 2015) (holding excessive force test, not
conditions-of-confinement test, applies in use-of-mechanicalrestraints cases).
Under the Eighth Amendment, prison officials may not use
excessive force against an inmate. Hudson v. McMillian, 503 U.S.
1, 6–7 (1992). “While not every malevolent touch by a prison
guard gives rise to a federal cause of action, the [a]pplication
of force by . . . prison guards exceeding that which is
reasonable and necessary under the circumstances may be
actionable.” Young, 801 F.3d at 180 (internal citations and
quotation marks omitted) (alteration and omission in original).
“To recover on a claim of excessive force under the Eighth
Amendment, a plaintiff must show that his treatment amounted to
an ‘unnecessary and wanton infliction of pain.’” Smith v. Price,
610 F. App'x 113, 115 (3d Cir. 2015) (quoting Whitley v. Albers,
475 U.S. 312, 320 (1986)). Force applied in “a good faith effort
to maintain or restore discipline” does not implicate the Eighth
Amendment. Giles v. Kearney, 571 F.3d 318, 326 (3d Cir. 2009).
Construing all inferences in Plaintiff's favor, as the
Court must do at this preliminary screening stage, this Court
preliminarily finds that Plaintiff has pled facts sufficient to
state a plausible claim for relief necessary to withstand
summary dismissal at this time. In particular, the facts, as
alleged by Plaintiff in his complaint, are sufficient to
question the use of force exercised by Sergeant Kuhlen and
Officer Doe 1 in restraining Plaintiff after he was assaulted,
and by keeping him in those restraints for hours after the
immediate threat had passed.6
Although Plaintiff alleges John Does 1-3 used excessive force,
only one John Doe is mentioned in the factual portion of the
The Court will exercise supplemental jurisdiction over
Plaintiff’s state law gross negligence and willful misconduct
5. Due Process
Plaintiff alleges he was denied due process when
Disciplinary Hearing Officer Ralph failed to conduct a “fair and
impartial hearing.” (Id. ¶ 73). This claim may not proceed at
this time as it is barred by Heck v. Humphrey, 512 U.S. 477
(1994), and its progeny.
In Heck, the Supreme Court held that before a § 1983
plaintiff may “recover damages for allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions
whose unlawfulness would render a conviction or sentence
invalid,” he must first “prove that the conviction or sentence
has been reversed on direct appeal, expunged by executive order,
declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court's
issuance of a writ of habeas corpus[.]” Id. at 486-87.
The Court extended Heck's “favorable termination” rule to
prison disciplinary sanctions which alter the duration of a
prisoner's term of incarceration, including the loss of good
time credits. Edwards v. Balisok, 520 U.S. 641, 646-48 (1997).
complaint. (Docket Entry 1 ¶¶ 28-29). This claim shall only
proceed against John Doe 1.
Plaintiff states that he was sanctioned with 120-days in
administrative segregation and the loss of 120-days of
commutation credits as a result of the procedurally deficient
hearing. (Id. ¶ 66). He alleges Officer Ralph denied him his
confrontation and cross-examination rights and failed to
properly weigh the evidence in the record. (Id. ¶ 66). Were
Plaintiff to succeed on this claim, the validity of his
disciplinary sanctions would be called into question. See
Edwards, 520 U.S. at 646 (“The principal procedural defect
complained of by [Plaintiff] would, if established, necessarily
imply the invalidity of the deprivation of his good-time
credits.”). Plaintiff concedes in his complaint that his
administrative appeal was denied. (Id. ¶ 68). In the absence of
a prior order reversing the disciplinary charge, this claim
cannot proceed at this time.
Plaintiff alleges Administrator Bond violated New Jersey
state law when he denied Plaintiff’s request for a polygraph
examination. (Id. ¶ 77). The Court declines to exercise
supplemental jurisdiction over this claim.
Plaintiff alleges Defendants Kuhlen, Cisrow, Velez, Castro,
Waters, Schemelia, Hunter, Ralph, John Does 1-10, and Jane Does
1-10 all retailed against him by
placing him on a second-floor level; by failing to
protect him from assaults; by applying handcuffs tightly
and leaving him for a prolonged period of time; by
placing him in a tortuous position; by harassing him; by
transferring him to different cells, housing units, and
facilities; by writing false disciplinary reports; and
by depriving him of a fair and impartial disciplinary
hearing because he engaged in his constitutionally
protected right of filing grievances and a Civil Rights
lawsuit . . . .
(Id. ¶ 74). With the exception of Officer Waters, Plaintiff has
failed to state a claim of retaliation.
“[R]etaliation for the exercise of constitutionally
protected rights . . . ‘is itself a violation of rights secured
by the Constitution actionable under section 1983.’” Miller v.
Mitchell, 598 F.3d 139, 147 (3d Cir. 2010) (quoting White v.
Napoleon, 897 F.2d 103, 111–12 (3d Cir. 1990)). Plaintiff must
allege “(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.” Fantone v. Latini, 780
F.3d 184, 191 (3d Cir. 2015), as amended (Mar. 24, 2015).
“[T]he filing of grievances and lawsuits against prison
officials constitutes constitutionally protected activity.”
Mearin v. Vidonish, 450 F. App’x 100, 102 (3d Cir. 2011) (per
curiam). Construing all inferences in Plaintiff’s favor,
Plaintiff has sufficiently alleged Officer Waters retaliated
against him for filing grievances against her. (Id. ¶¶ 40-43).
His claims against her are supported by the temporal proximately
between his filed grievances and her actions against him, e.g.,
transferring him to another facility. (Id. ¶ 42). This
distinguishes his retaliation claims against Officer Waters from
the remainder of his retaliation claims.
Nothing in the complaint reasonably suggests the other
officers knew about Plaintiff’s lawsuit prior to any of their
alleged actions, or that those actions were substantially
motivated by the filing of the lawsuit or Plaintiff’s
grievances. Plaintiff’s conclusory allegation “that prison staff
were retaliating against him because of his grievances and Civil
Rights lawsuit” is insufficient to state a claim for relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The Court also notes that Plaintiff’s claims of retaliation
based on “writing false disciplinary reports; and by depriving
him of a fair and impartial disciplinary hearing” are barred by
Edwards v. Balisok, 520 U.S. 641 (1997). “For the First
Amendment retaliation claim to be barred by the Heck doctrine,
the alleged [retaliatory action] must impugn [Plaintiff’s]
conviction.” Ashton v. City of Uniontown, 459 F. App'x 185, 188
(3d Cir. 2012) (barring plaintiff’s retaliation claims under
Heck because litigation over the allegedly retaliatory criminal
charges would constitute a parallel litigation over whether
plaintiff's conduct warranted the charges). “[I]f [the Court]
were to hear the claim, [the Court] necessarily would have to
decide whether [Plaintiff’s] conviction was valid or was an act
of retaliation.” Id. at 189. Plaintiff may not bring these
retaliation claims unless and until his disciplinary charges
have been overturned.
Plaintiff’s federal and state retaliation claims against
Officer Waters may proceed at this time. The remainder of his
retaliation claims are dismissed without prejudice.7
7. Supervisory Liability
Plaintiff also alleges Administrators Buechele and Bonds
“had a policy, custom, practice and/or procedure of assigning
cells to disabled inmates with limited access to the
handicapped-accessible showers,” in violation of the Eighth
Amendment. (Id. ¶ 69). He also alleges Administrator Buechele
“personally directed, had actual knowledge of, and/or acquiesced
in housing inmates with ground-floor restrictions on secondfloor levels . . . .” (Id. ¶ 76).
“[L]iability under § 1983 may be imposed on an official
with final policymaking authority if that official establishes
As the remainder of Plaintiff’s claims against the DOC
Defendants cannot be read to reasonably include Officer Ralph,
she shall be dismissed from the case at this time.
an unconstitutional policy that, when implemented, injures a
plaintiff.” Chavarriaga v. N.J. Dep't of Corr., 806 F.3d 210,
223 (3d Cir. 2015) (citing Sample v. Diecks, 885 F.2d 1099, 1118
(3d Cir. 1989)). “[T]o establish a claim against a policymaker
under § 1983 a plaintiff must allege . . . that the official
established or enforced policies and practices directly causing
the constitutional violation.” Id. In this case, Plaintiff
alleges an underlying conditions-of-confinement claim.8
“Notwithstanding a state's broad powers to determine where
to place inmates, the Constitution does not permit their
inhumane treatment because ‘the treatment a prisoner receives in
prison and the conditions under which [the prisoner] is confined
are subject to scrutiny under the Eighth Amendment.’” Id. at 226
(quoting Helling v. McKinney, 509 U.S. 25, 31 (1993))
To the extent the complaint could be interpreted to assert an
underlying constitutional violation based on the denial of
medical care, Plaintiff has not established that the policy
enacted by Administrators Buechele and Bonds directly caused
Sergeant Cisrow’s and Officer Velez’s actions. Chavarriaga v.
N.J. Dep't of Corr., 806 F.3d 210, 223 (3d Cir. 2015). Plaintiff
alleges the relevant policy was “assigning cells to disabled
inmates[.]” (Docket Entry 1 ¶ 69). The action forming the basis
of the Eighth Amendment claim the Court has allowed to proceed
is not the placement of Plaintiff into a second-floor cell as
Plaintiff’s medical restriction had expired at that point in
time, but rather it was their failure to put Plaintiff into a
ground-floor cell once his medical restriction had been renewed.
Their answer to Plaintiff’s request that he be given a groundfloor cell does not indicate a policy enacted by Administrators
Buechele and Bonds dictated their response. (Docket Entry 1 ¶¶
25-26). Plaintiff has therefore not sufficiently pled that the
alleged policy directly caused the denial of his medical needs.
(alteration in original). “Conditions of confinement are
unconstitutional where a prisoner is denied the ‘minimal
civilized measure of life's necessities’ through prison
officials' deliberate indifference to a condition posing a
substantial risk of serious harm. Only ‘extreme deprivations’
meet this standard.” Freeman v. Miller, 615 F. App'x 72, 77-78
(3d Cir. 2015) (quoting Farmer v. Brennan, 511 U.S. 825, 834
(1994); Hudson v. McMillian, 503 U.S. 1, 9 (1992)); see also
Chavarriaga, 806 F.3d at 226 (“[A]n inmate must show that the
deprivation was ‘sufficiently serious’ so that it reached the
level of an Eighth Amendment violation.”).
Other courts have found that the failure to provide access
to handicapped-accessible bathroom facilities may give rise to a
constitutional claim under the Eighth Amendment. See Muhammad v.
Dep't of Corr., 645 F. Supp. 2d 299, 316-17 (D.N.J. 2008)
(citing cases). The facts as alleged in this particular case,
however, do not rise to the level of a constitutional violation.
Here, Plaintiff alleges he was denied access to handicappedaccessible showers for a period of ten days: January 10-16 and
27-29. (Id. ¶¶ 24-27, 33-35). Although Plaintiff alleges he was
transferred between cells and housing facilities after January
29, 2015, nothing in the complaint suggests his subsequent
housing assignments rendered the handicapped accessible showers
inaccessible. (Id. ¶¶ 35, 46, 49). The limited deprivation of
access to the showers, while undoubtedly unpleasant, is not
sufficiently serious to satisfy the first element of an Eighth
Amendment claim. Compare Adderly v. Ferrier, 419 F. App'x 135,
139–40 (3d Cir. 2011) (holding denial of toiletries, mail, and
shower for seven days failed to satisfy first element) and
Fortune v. Hamberger, 379 F. App'x 116, 122 (3d Cir. 2010)
(holding inmate’s inability to shower and exercise for fifteen
days insufficient to sustain Eighth Amendment violation), with
LaFaut v. Smith, 834 F.2d 389, 392-93 (4th Cir. 1987) (finding
prison officials' three-month delay in responding to an inmate's
request for handicapped-accessible facilities amounted to an
Eighth Amendment violation), and Muhammad, 645 F. Supp. 2d at
317 (depriving handicapped inmate of reasonable access to
handicapped-accessible restroom facilities and bunk for five
months sufficiently serious to state an Eighth Amendment claim).
Plaintiff has therefore failed to sufficiently allege an Eighth
As Plaintiff has not sufficiently pled a constitutional
violation arising from the brief period of time he was denied
access to accessible showers, he has not sufficiently pled that
a policy or practice enacted by Administrators Buechele and
Bonds directly caused a constitutional violation. Chavarriaga v.
N.J. Dep't of Corr., 806 F.3d 210, 223 (3d Cir. 2015).
Furthermore, Administrator Buechele cannot have directed, had
actual knowledge of, and/or acquiesced in violating Plaintiff’s
Eighth Amendment rights as are no facts in the complaint that
support Plaintiff’s assertion that Administrator Buechele
“directed, had actual knowledge of, and/or acquiesced in” the
violation. In the absence of such factual support, the claim
must be dismissed. See Fowler v. UPMC Shadyside, 578 F.3d 203,
211 (3d Cir. 2009) (“[A] complaint must do more than allege the
plaintiff's entitlement to relief. A complaint has to ‘show’
such an entitlement with its facts.”).
Plaintiff’s Eighth Amendment claims against Administrators
Buechele and Bonds must be dismissed.
Americans with Disabilities Act
Plaintiff additionally alleges various violations of Title
II of the ADA. Specifically, he alleges the DOC and
Administrators Buechele and Bonds violated the ADA through their
policy of “assigning cells to disabled inmates with limited
access to the handicapped-accessible showers,”(Id. ¶ 69), and
the DOC Defendants “excluded Plaintiff from participation in the
NJ-STEP program; denied Plaintiff the benefits of the services
and activities of the public entity; and subjected him to
discrimination by reason of his disability . . . . .” (Id. ¶
The ADA does not create private causes of action against
individuals, see Boggi v. Med. Review and Accrediting Council,
415 F. App'x 411, 415 (3d Cir. 2011) (individual defendants
cannot be sued in their individual capacities under the ADA);
Emerson v. Thiel Coll., 296 F.3d 184, 190 (3d Cir. 2002)
(holding there was no individual liability under Titles I, II,
or III of the ADA); Garcia v. S.U.N.Y. Health Sciences Ctr., 280
F.3d 98, 107 (2d Cir. 2001) (holding Title II does not allow
suits against individuals). Thus, Plaintiff may only bring an
ADA claim against the DOC Defendants in their official
capacities, where the true party in interest is the New Jersey
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) (per curiam) (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).
A “qualified individual with a disability” is defined as
an individual with a disability who, with or without
practices, the removal of architectural, communication,
or transportation barriers, or the provision of
auxiliary aids and services, meets the essential
eligibility requirements for the receipt of services or
the participation in programs or activities provided by
a public entity.
28 C.F.R. § 35.104 (2015). “Disability” is defined as “a
physical or mental impairment that substantially limits one or
more of the major life activities of such individual; a record
of such an impairment; or being regarded as having such an
impairment.” 28 C.F.R. § 35.104 (2015). Plaintiff alleges he
suffers from a back disorder that limits his ability to
participate in life activities, such as walking and using
stairs. See Matthews v. Pa. Dep't of Corr., 613 F. App'x 163,
167 (3d Cir. 2015) (noting if plaintiff’s “impairment
substantially limited his ability to walk, he suffered a
‘disability’” for purposes of the ADA”). Plaintiff has therefore
alleged sufficient facts for this Court to find for screening
purposes only that he is a qualified person with a disability.
A state prison is unquestionably a public entity. Pa. Dep't
of Corr. v. Yeskey, 524 U.S. 206, 209-10 (1998). Plaintiff
alleges that as a result of being housed on the second floor of
the NJ-STEP program housing unit, in spite of requesting to be
placed on the ground-floor in accordance with his medical
restriction, he was unable to participate in STEP as traversing
the stairs caused him leg and back pain. (Id. ¶ 26). Plaintiff
has therefore sufficiently alleged he was denied the benefit of
a public entity’s programs or services by virtue of his
disability. This claim shall proceed at this time.
Plaintiff’s claims for damages against the DOC Defendants
in their official capacities under 42 U.S.C. § 1983 must be
dismissed with prejudice as barred by the Eleventh Amendment.
Plaintiff’s constitutional claims against the DOC must be
dismissed with prejudice as it is immune from suit under § 1983.
Plaintiff’s deliberate indifference to medical needs claims
against Sergeant Cisrow and Officer Velez shall proceed.
Plaintiff’s deliberate indifference to medical needs claim
against Officer Schemelia is dismissed without prejudice.
Plaintiff’s failure to protect claim against Officers Castro and
Hunter, Sergeant Kuhlen, and John Does 1-3 is dismissed without
prejudice, and the Court will not exercise supplemental
jurisdiction over the attendant state law claims. Plaintiff’s
excessive force claim against Sergeant Kuhlen and Officer Doe 1
shall proceed, and the Court will exercise supplemental
jurisdiction over the related state law claims. The due process
claim against Disciplinary Hearing Officer Ralph is dismissed
without prejudice as barred by Edwards v. Balisok, 520 U.S. 641
(1997), and the Court will not exercise supplemental
jurisdiction over the related state law claim against
Administrator Bond. Plaintiff’s federal and state retaliation
claims may proceed at this time only against Officer Waters.
Plaintiff’s Eighth Amendment claims against Administrators
Buechele and Bonds are dismissed without prejudice. His ADA
claim may proceed against the DOC Defendants in their official
capacities at this time.
B. Claims Against Rutgers Defendants
1. Individual Nurses
a. Nurse Tsakiris
Plaintiff alleges Nurse Tsakiris was deliberately
indifferent to Plaintiff’s serious medical needs when she
allowed his pain medication and ground-floor restriction to
lapse. (Id. ¶ 80). He also alleges these actions violated Title
The only mention of Nurse Tsakiris in the complaint relates
to Plaintiff’s medical visit on January 13, 2015. (Id. ¶ 25).
Plaintiff states that at that visit, Nurse Tsakiris “renewed
Plaintiff’s medical restriction for ‘Housing-Ground Floor
Only.’” (Id. ¶ 25). He does not allege that his pain medication
had lapsed at that point; indeed as of January 18, 2015,
Plaintiff was able to take Tylenol as needed. (Docket Entry ¶
31). Nothing in the complaint suggests Nurse Tsakiris was
personally responsible for any lapse in Plaintiff’s medication
or ground floor restriction. The fact that she renewed the
ground-floor restriction when it was brought to her attention
indicates that there is not a factual ground for the allegation
that she was deliberately indifferent to Plaintiff’s needs. His
Eighth Amendment claim against Nurse Tsakiris shall be dismissed
Plaintiff’s Title II claims against Nurse Tsakiris in her
official capacity for failing to keep the medication and
restrictions current must also be dismissed. Plaintiff does not
provide facts to support an inference that Nurse Tsakiris was
personally responsible for allowing the housing restriction to
lapse, or that he was denied the benefit of a service because of
his disability when his medication lapsed.
As Plaintiff’s federal claims against Nurse Tsakiris are
being dismissed, the Court declines to exercise supplemental
jurisdiction over the state negligence and medical malpractice
claims. Plaintiff’s claims against Nurse Tsakiris are dismissed
in their entirety without prejudice.
b. Nurse Mills
Plaintiff alleges Nurse Mills was deliberately indifferent
to Plaintiff’s serious medical needs when she allowed his pain
medication and ground-floor restriction to lapse. (Id. ¶ 80). He
also alleges her actions violated Title II.
Plaintiff only saw Nurse Mills at his July 1, 2015 medical
appointment. (Id. ¶ 59). He states that he informed her about
not receiving his cholesterol and pain medications, at which
time she prescribed Tylenol for the pain. (Id. ¶ 59). By this
time, his ground-floor restriction was in place. There is no
factual support in the complaint to support his assertion that
Nurse Mills allowed his medication to lapse or that she was
deliberately indifferent to his medical needs, especially
considering she renewed the pain medication prescription upon
Plaintiff’s request.9 As Plaintiff’s ground-floor restriction was
active at the time of his appointment with Nurse Mills, there is
no factual support for Plaintiff’s allegations that she is
responsible for its lapse.
Plaintiff further asserts Nurse Mills was deliberately
indifferent to his medical needs when she “failed to provide
adequate medical care; failed to keep adequate medical records;
and failed to follow-up on CT scan order/diagnosis[.]” (Id. ¶
81). Plaintiff alleges she failed to follow-up on the CT scan
when he discussed it with her on July 1, 2015. (Id. ¶ 59). He
does not allege, however, that she did so for non-medical
reasons, and he admits that she provided Tylenol and ordered
Plaintiff’s complaint does not allege the failure to keep his
cholesterol medication current was unconstitutional, negligent,
or malpractice. The Court presumes this was intentional given
the specificity of the stated claims.
physical therapy for him. (Id. ¶ 59). “[W]here a prisoner has
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.” DeJesus
v. Corr. Med. Servs., Inc., 574 F. App'x 66, 68–69 (3d Cir.
2014) (internal quotation marks and citations omitted) “[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) (citing
Peterson v. Davis, 551 F. Supp. 137, 145 (D.Md. 1982), aff'd,
729 F.2d 1453 (4th Cir. 1984)). Plaintiff may have state claims
against Nurse Mills; as the federal claims against her are being
dismissed, however, the Court declines to exercise supplemental
jurisdiction over those claims.
Plaintiff’s Title II claim against Nurses Mills must also
be dismissed. He does not provide facts to support an inference
that she was personally responsible for allowing the restriction
to lapse, or that he was denied the benefit of a service because
of his disability when his medication lapsed.
Plaintiff’s claims against Nurse Mills are dismissed in
their entirety, without prejudice.
c. Nurse Simkins
Plaintiff alleges Nurses Simkins was deliberately
indifferent to his medical needs when he “failed to provide
adequate medical care; failed to keep adequate medical records;
and failed to follow-up on CT scan order/diagnosis[.]” (Id. ¶
81). Plaintiff alleges Nurse Simkins wrote in Plaintiff’s
medical file after the first assault that his “‘vision today is
fine, feels well, has no jaw pains or face pains; mild dark
[discoloration] under the left orbit from old bruising[,]’” and
that no further treatment was needed. (Id. ¶ 32). Plaintiff
further alleges that Nurse Simkins’ statements were false, and
that in fact he told Nurse Simkins that he had “excruciating
pain in his left eye, head, and back . . . .” (Id. ¶ 32). Since
Plaintiff’s factual allegations are regarded as true for
purposes of this screening, this is sufficient to support a
reasonable inference that Nurse Simkins deliberately prevented
Plaintiff from receiving needed medical treatment. The Court
will also exercise supplemental jurisdiction over Plaintiff’s
state law claims against Nurse Simkins.
d. John Doe 4-5 and Jane Doe 1-210
Plaintiff refers to these Defendants as John Doe 1-2 and Jane
Doe 1-2. The Court will refer to them as John Doe 4-5 and Jane
Doe 1-2 to avoid confusion with the DOC John Does 1-3 Plaintiff
Plaintiff alleges John Doe 4-5 and Jane Doe 1-2 were
deliberately indifferent to Plaintiff’s serious medical needs
when they allowed his pain medication and ground-floor
restriction to lapse. (Id. ¶ 80). He also alleges these actions
violated Title II.
There are insufficient factual allegations in the complaint
to suggest John Doe 4-5 and Jane Doe 1-2 were deliberately
indifferent to Plaintiff’s serious medical needs when they did
not keep his ground-floor restriction and pain medications
current. Deliberate indifference may be found where the official
(1) knows of a prisoner's need for medical treatment but
intentionally refuses to provide it; (2) intentionally delays
necessary medical treatment based on a non-medical reason; or
(3) deliberately prevents a prisoner from receiving needed
medical treatment. See Pierce v. Pitkins, 520 F. App'x 64, 66
(3d Cir. 2013) (citing Rouse v. Plantier, 182 F.3d 192, 197 (3d
Cir. 1999)). Nothing in the complaint supports a reasonable
inference that the alleged failure to keep Plaintiff’s
medications and restrictions current was intentional, therefore
Plaintiff’s Eighth Amendment claims based on the alleged failure
to keep Plaintiff’s medications and restrictions current will be
dismissed. The Court declines to exercise supplemental
jurisdiction over the state negligence and medical malpractice
claims against John Doe 4-5 and Jane Doe 1-2 for these actions.
Plaintiff further asserts John Doe 4-5 and Jane Doe 1-2
were deliberately indifferent to his medical needs when they
“failed to provide adequate medical care; failed to keep
adequate medical records; and failed to follow-up on CT scan
order/diagnosis[.]” (Id. ¶ 81). In the absence of factual
grounds, the Court must disregard mere labels such as “failure
to provide adequate medical care.” Plaintiff’s denial of
adequate medical care claims fail against John Doe 4-5 and Jane
Doe 1-2 for similar reasons as his claims against Nurse Mills.
Plaintiff does not allege the CT scan was denied for non-medical
reasons, nor does he allege the Doe defendants knew of his need
for medical treatment and either intentionally refused to
provide it, or deliberately prevented him from receiving it. He
has therefore failed to state a violation of the Eighth
Plaintiff’s Title II claims against John and Jane Does 1-2
for failing to keep the pain medication current must also be
dismissed as he does not provide facts to support an inference
that he was denied the benefit of a service because of his
disability when his medication lapsed. He shall, however, be
permitted to proceed against them in their official capacities
for failing to keep his ground-floor restriction current. The
Court will exercise supplemental jurisdiction over the state law
claims against John Doe 4-5 and Jane Doe 1-2.
2. Rutgers University Correctional Health Care
Plaintiff also seeks to hold RUCHC directly responsible for
the lapse of his ground-floor restriction and pain medication,
(Id. ¶ 80); for requiring “inmates with serious medical needs to
submit multiple Healthcare Service Request Forms before being
examined by a doctor,” (Id. ¶ 78); and for failing to provide
adequate medical care, keep adequate medical records, and
follow-up on the CT scan order. (Id. ¶ 81).
In order for a government entity to be liable under § 1983
for the actions or inactions of its employees,11 a plaintiff must
allege that a policy or custom of that entity caused the alleged
constitutional violation. Natale v. Camden Cnty. Corr. Facility,
318 F.3d 575, 583 (3d Cir. 2003) (citing Bd. Of Cnty. Comm'rs of
Bryan Cnty. Oklahoma v. Brown, 520 U.S. 397, 404 (1997)).
The Third Circuit has recognized three ways in which a
policy or custom can be established:
(1) the entity or supervisor promulgates an applicable
policy statement and the act the plaintiff complains of
is the implementation of that policy; (2) the
policymaker, without a formally announced policy,
violates federal law itself; or (3) the “the policymaker
has failed to act affirmatively at all, [though] the
Institutions and physicians who are under contract to provide
medical services to inmates at a state prison act “under color
of state law” for § 1983 purposes. See West v. Atkins, 487 U.S.
42, 54 (1988); Walker v. Horn, 385 F.3d 321, 332 (3d Cir.
2004).The Court presumes for purposes of this screening opinion
only that Rutgers is not entitled to Eleventh Amendment
immunity. See Kovats v. Rutgers, State Univ., 822 F.2d 1303 (3d
need to take some action to control the agents of the
government is so obvious, and the inadequacy of existing
practice so likely to result in the violation of
reasonably be said to have been deliberately indifferent
to the need.”
Defreitas v. Montgomery Cty. Corr. Facility, 525 F. App'x
170, 177 (3d Cir. 2013) (quoting Natale, 318 F.3d at 584).
Plaintiff does not allege RUCHC has a policy regarding
renewal of pain medications, the keeping of adequate
medical records, or following-up on CT scan orders. The
facts alleged in the complaint do not support an inference
that RUCHC violates federal law in the absence of such
policies or that it has failed to act at all in spite of
there being an obvious need for action. See Id. Indeed with
the exception of Nurse Simkins, Plaintiff has failed to
sufficiently allege there was a constitutional violation by
RUCHC employees at all. He has therefore failed to
sufficiently allege RUCHC was deliberately indifferent to
his medical needs for these reasons.
Plaintiff alleges RUCHC “has a policy or custom for
issuing medical restrictions for ground-floor housing,
which violated Plaintiff’s Eighth-Amendment [sic] rights
and Title II of the ADA.” (Id. ¶ 79). Although Plaintiff
has stated a specific RUCHC policy, it is unclear how this
policy violates the Eighth Amendment and Title II when it
provides for restricting inmates to the ground floor.
Moreover, it is contradictory to claim this policy violates
the Eighth Amendment and Title II when Plaintiff
simultaneously alleges it was a violation of the Eighth
Amendment and Title II to fail to renew his ground floor
restriction. As he alleges there indeed is a formal policy
regarding issuing housing restrictions, he cannot allege
that RUCHC’s failure to renew his ground-floor restriction
was a violation of federal law in the absence of a formally
announced policy. Nothing in this complaint supports a
reasonable inference that there is an obvious need for
RUCHC “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
[RUCHC] 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 RUCHC was deliberately
indifferent to his medical needs by failing to renew his
ground-floor housing restriction.
A liberal reading of the complaint could allege a
violation of Title II by RUCHC for failing to renew his
ground floor restriction, however. The Court will permit
this Title II claim to proceed against RUCHC. He has also
sufficiently alleged a violation of the Eighth Amendment
based on RUCHC’s policy of requiring inmates with serious
medical needs to submit multiple requests for examination
by a doctor.12 (Id. ¶ 79). See Monmouth Cty. Corr. Inst.
Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987)
(“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.” (internal quotation
marks and citation omitted) (alteration in original)),
cert. denied, 486 U.S. 1006. The Court will exercise
supplemental jurisdiction over Plaintiff’s state law claims
against RUCHC as well.
Plaintiff’s claims against Nurse Mills and Nurse Tsakiris
are dismissed without prejudice in their entirety, and the Court
declines to exercise supplemental jurisdiction over the state
negligence and medical malpractice claims against them.
Plaintiff’s Eighth Amendment claims against Nurse Simkins shall
proceed, and the Court will exercise supplemental jurisdiction
over Plaintiff’s state law claims against him. Plaintiff’s
This does not state a Title II claim, however, as the
complaint does not suggest he was deprived of prison medical
services because of his disability.
Eighth Amendment claims against John Doe 4-5 and Jane Doe 1-2
are dismissed without prejudice; his Title II claim for failing
to keep his ground-floor restriction shall proceed against them
in their official capacities. His state law claims against them
shall also proceed. Plaintiff’s Eighth Amendment claims against
RUCHC are dismissed without prejudice, with the exception of his
claim based on RUCHC’s policy of requiring inmates with serious
medical needs to submit multiple requests for examination by a
doctor. Plaintiff’s Title II claim against RUCHC for failing to
keep his ground-floor restriction current will be permitted to
proceed, and the Court will exercise supplemental jurisdiction
over Plaintiff’s state law claims against RUCHC.
C. Injunctive Relief
Plaintiff seeks injunctive relief “as the Court deems
just.” (Id. ¶ 83). Plaintiffs requesting prospective injunctive
relief “must allege a real and immediate threat of future
injury.” Doe v. Div. of Youth & Family Servs., 148 F. Supp. 2d
462, 478 (D.N.J. 2001) (citing City of Los Angeles v. Lyons, 461
U.S. 95, 101 (1983)). “Allegations of exposure to illegal
conduct in the past alone, without a showing of continuing
adverse effects, do not demonstrate a case or controversy
entitling a plaintiff to prospective injunctive relief.” Id. at
479 (internal citations omitted). A plaintiff must be able to
show that a real and imminent harm will occur; a mere
possibility of future harm will not suffice. ZF Meritor, LLC v.
Eaton Corp., 696 F.3d 254, 300–01 (3d Cir. 2012), cert. denied,
133 S. Ct. 2025 (2013).
It is unclear to the Court what kind of injunctive relief
Plaintiff is seeking. His ground-floor restriction is in place,
and his medications appear to be up-to-date. Nothing in the
complaint suggests Plaintiff is at the risk of future injury.
Plaintiff’s request for injunctive relief shall be dismissed
without prejudice to Plaintiff’s ability to amend his complaint
to request a specific form of injunctive relief.
dismissed in part and shall proceed in part. An appropriate order
January 12, 2016
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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