SCOTT v. MANENTI et al
Filing
118
OPINION. Signed by Judge Jerome B. Simandle on 11/27/2018. (tf, n.m.)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JOSEPH SCOTT,
HONORABLE JEROME B. SIMANDLE
Plaintiff,
Civil Action
No. 15-7213 (JBS-AMD)
v.
JOHN MANENTI, et al.,
OPINION
Defendants.
APPEARANCES:
JOSEPH SCOTT, Plaintiff pro se
04194-015
FCI Fort Dix
PO Box 2000
Joint Base MDL, New Jersey 08640
CRAIG CARPENITO, United States Attorney District of New Jersey
By: JESSICA O’NEILL, Assistant United States Attorney
Office of the United States Attorney General
401 Market Street, 4th Floor
Camden, New Jersey 08101
Attorneys for Defendants John Manenti, Ruben Morales, and the
United States of America
SIMANDLE, District Judge:
INTRODUCTION
This matter comes before the Court on the motion of
Defendants Dr. John Manenti, Dr. Ruben Morales, and the United
States of America for summary judgment. Docket Entry 110.
Plaintiff Joseph Scott opposes the motion. Docket Entries 113,
115. The motion is being considered on the papers pursuant to
Federal Rule of Civil Procedure 78(b).
The principal issues to be decided are (1) whether Drs.
Manenti and Morales exercised their medical judgment in their
treatment of Plaintiff’s right shoulder injury, and (2) whether
Plaintiff’s expert report by Registered Nurse Monica Scott
complies with the “enhanced credential requirements” of New
Jersey’s affidavit of merit statute. The Court finds that there
are no triable issues of fact as to whether Drs. Manenti and
Morales were deliberately indifferent to Plaintiff’s medical
needs. The Court also finds that Plaintiff has not complied with
New Jersey’s requirements for an affidavit of merit in a
malpractice action. Therefore, the Court will grant the summary
judgment motion and dismiss the complaint with prejudice.
BACKGROUND
A. Procedural History
On September 30, 2015, Plaintiff submitted a civil
complaint alleging Defendants violated his Eighth Amendment
right to adequate medical care by, among other things, denying
him an MRI of his shoulder after experiencing excruciating pain
for nearly two years. Complaint, Docket Entry 1. The Court
administratively terminated the complaint on October 14, 2015,
for failure to pay the filing fee or submit an application to
proceed in forma pauperis. Docket Entry 4. Plaintiff paid the
2
filing fee on October 21, 2015, and the Court reopened the case
for review.
Prior to this Court’s review of the complaint pursuant to
28 U.S.C. § 1915A,1 Plaintiff filed two motions to amend the
complaint seeking to add a “deliberate indifference” claim as
well as a claim under the Federal Tort Claims Act (“FTCA”), 28
U.S.C. §§ 1346(b), 2671–2680. First Motion to Amend, Docket
Entry 11; Second Motion to Amend, Docket Entry 13. The Court
permitted the complaint to proceed in part against Drs. Manenti
and Morales, and the remainder of the defendants were dismissed.
The Court denied Plaintiff’s motions to amend without prejudice
as the proposed amendments did not state valid claims. Order,
Docket Entry 18. Plaintiff filed a third motion to amend
containing a notice of claim form received by the Federal Bureau
of Prisons (“BOP”) on October 5, 2015 for $5000 due to the
alleged negligence of FCI Fairton personnel. Third Motion to
Amend, Docket Entry 27 at 7-10. The Court denied the motion as a
FTCA claim may not be brought against an individual, only the
United States. April 13, 2016 Order, Docket Entry 45. A fourth
motion to amend seeking to add a FTCA claim against the United
1
“The court shall review, before docketing, if feasible or, in
any event, as soon as practicable after docketing, a complaint
in a civil action in which a prisoner seeks redress from a
governmental entity or officer or employee of a governmental
entity.” 28 U.S.C. § 1915A(a).
3
States was filed on May 6, 2016. Docket Entry 47. The Court
granted the motion on June 27, 2016. Docket Entry 49. See
Amended Complaint, Docket Entry 50.
In addition to his motions to amend the complaint,
Plaintiff also filed a motion for a preliminary injunction
requiring the BOP to perform an MRI of his right shoulder.
Motion for Preliminary Injunction, Docket Entry 43. Once the
United States was served with the amended complaint, the Court
ordered a response to the motion. Order of November 18, 2016,
Docket Entry 68. The motion was dismissed as moot on December 9,
2016 as Plaintiff had received the requested relief,
arthroscopic surgery, on August 17, 2016. Docket Entry 73.
Drs. Manenti and Morales now move for summary judgment on
Plaintiff’s Eighth Amendment claim, and the United States moves
for summary judgment on the FTCA claim. Plaintiff asserts there
are factual questions requiring resolution by a jury. The Court
decides the motion on the basis of the papers submitted, without
oral argument, pursuant to Rule 78, Fed. R. Civ. P.
B. Allegations in Pleadings
Plaintiff alleged in his amended complaint that a torn
rotator cuff in his right shoulder went undiagnosed for over 24
months. Amended Complaint at 3. He stated the only treatment he
received was cortisone injections. Id. He asserted he “was
examined regularly by Medical Staff but there [was] a ongoing
4
pattern of ignoring” his condition as well as “arbitrary and
burdensome procedures that resulted in interminable delays for
long periods of time in order to provid[e] care.” Id. at 5.
Plaintiff alleged he suffered excruciating pain in his
right shoulder for two years that prevented him from sleeping,
moving his arm, or leaving his cell for simple activities. Id.
at 6. He filed a notice of claim with the BOP Northeast Regional
Office on September 30, 2015. Id. at 7.
C. Defendants’ Statement of Material Facts
Joseph Scott was a federal inmate at FCI Fairton, New
Jersey during the relevant time period. Defendants’ Statement of
Material Facts (“DSOF”), Docket Entry 110-2 ¶ 1. The BOP is
responsible for providing inmate medical care. Id. ¶ 2. Dr.
Morales, a physician, was the Clinical Director at Fairton. Id.
¶ 4. Dr. John Manenti was the Northeast Regional Medical
Director. Id. ¶ 6.
Plaintiff first went to Health Services complaining of pain
in his right shoulder on October 18, 2013. Id. ¶ 7. He told the
nurse practitioner that he had been doing “dips” when “‘when his
shoulder gave out with a weird noise.’” Id. ¶ 9. He had been
experiencing pain for about six months before coming to Health
Services. Id. ¶ 8. He had history of pain in his left shoulder
for two years “on-and-off” with pain down the arm. Id. ¶ 12. He
denied having pain in his right shoulder most of the time,
5
except for when he slept. Id. ¶ 13. Plaintiff stated he lifted
weights among other exercises, and the nurse practitioner
described Plaintiff as “‘heavily muscled.’” Id. ¶¶ 10-11. He
wanted a cortisone shot in his right shoulder. Id. ¶ 14. The
nurse practitioner noted Plaintiff had a normal range of motion
and had a normal examination. Id. ¶ 15. She recommended
Indomethacin, an x-ray, and an evaluation for a cortisone shot.
Id. ¶ 26. Dr. Morales agreed with this treatment plan and
ordered an x-ray, which was conducted on November 5, 2013. Id.
¶¶ 17-19. The radiologist concluded the findings were negative.
Id. Dr. Morales performed a shoulder arthrocentesis on
Plaintiff’s right shoulder on November 27, 2013. Id. ¶ 20.
Plaintiff did not return to Health Services until February
11, 2014. Id. ¶ 21. Another nurse practitioner examined him. Id.
¶ 22. He complained that he was still having pain in his right
shoulder. Id. ¶ 23. He asked for Indomethacin and for the x-ray
results. Id. ¶ 24. The nurse practitioner examined Plaintiff and
noted that he had a “normal active range of right shoulder
motion, and his neurovascular status was intact.” Id. ¶ 26. She
did note that his shoulder was tender and described Plaintiff’s
shoulder condition as chronic. Id. ¶ 27. Plaintiff received a
prescription for 50 milligrams of Indomethacin a day and was
advised to stop lifting weights for six weeks. Id. ¶ 28.
6
Plaintiff requested a copy of his x-ray records on February 27,
2014 as he was “in excruciating pain.” Id. ¶ 29.
Plaintiff’s next visit to Health Services was six months
later on August 14, 2014. Id. ¶ 31. A physician’s assistant
conducted the examination; Dr. Morales was not present. Id. ¶
32. Plaintiff asserted the steroid injection he had received
made his right shoulder pain worse. Id. ¶ 34. He denied working
out, but the physician’s assistant “noted that his upper body
looked muscular with good definition.” Id. ¶ 35. Plaintiff was
provided a sling at his request. Id. ¶ 37.
Plaintiff requested to visit Health Services on October 22,
2014 and was seen on October 31 by the physician’s assistant.
Id. ¶¶ 38-39. His shoulder showed no improvement. Id. ¶ 40. He
stated that he had not been using the sling provided at his last
visit and “demanded an MRI.” Id. ¶¶ 41-42. The physician’s
assistant recommended that Plaintiff have an orthopedic
consultation. Dr. Morales agreed with and co-signed this
recommendation. Id. ¶ 43. Plaintiff requested permission to
visit Health Services again on December 22, 2014. Id. ¶ 44. A
mid-level practitioner examined him on January 8, 2015. Id. ¶
45. Plaintiff received a prescription for Meloxicam and was told
that his request for the consult was pending. Id. ¶ 46.
Plaintiff saw the orthopedist, Dr. Peter Sarkos, on January
20, 2015. Id. ¶ 47. Dr. Sarkos found a “slight tenderness with
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deep palpation over the right bicipital groove.” Id. ¶ 48. He
determined that Plaintiff’s shoulder was “positive O’Brien test
for cuff and SLAP.” Id. His impression was that Plaintiff had a
“right shoulder rotator cuff tear and a possible labral tear.”
Id. ¶ 49. Dr. Sarkos recommended a second cortisone shot even
though Plaintiff had not improved with the first one. Id. ¶ 50.
He gave Plaintiff an injection of Depo-Medrol and Lidocaine and
indicated Plaintiff should be seen again in one month for a
follow-up. Id. ¶¶ 50-51. He did not order an MRI scan at this
visit. Id. ¶ 52. Dr. Morales reviewed Dr. Sarkos’ report on
January 28, 2015. Id. ¶ 53.
On February 17, 2015, Plaintiff returned to Health Services
and was examined by a nurse practitioner. Id. ¶ 55. Plaintiff
“reported increased shoulder pain, which was worse with movement
and with raising his arm. He [] requested anti-inflammatory
medication.” Id. ¶ 56. He was prescribed more Meloxicam. Id. ¶
57. He returned on February 23, 2015 claiming continuing pain.
Id. ¶¶ 59-60. A mid-level practitioner examined him and found
Plaintiff to have a normal range of motion but some tenderness
in the right shoulder area. Id.
Plaintiff requested to go back to Health Services on March
1, 2015, claiming that he did not receive the prescribed
Meloxicam. Id. ¶ 61. A mid-level practitioner saw him on March
9, 2015 and told him that “the pharmacy only issued a seven-day
8
supply for a 30-day period. Scott was advised to purchase overthe-counter medications from the commissary for other times as
needed.” Id. ¶ 63.
Dr. Sarkos re-evaluated Plaintiff on March 31, 2015. Id. ¶
64. His “impression was right shoulder pain with a probable
rotator cuff tear.” Id. ¶ 65. He recommended an MRI of
Plaintiff’s right shoulder. Id. ¶ 66. The recommendation went to
Fairton’s Utilization Review Committee (“URC”), which Dr.
Morales chaired. Id. ¶¶ 67-68. “Pursuant to BOP policy, the URC
was required to submit the request for an MRI to the Regional
Medical Office for review and approval if applicable.” Id. ¶ 69.
“The Regional Medical Office uses a criteria-based system called
InterQual to conduct reviews, and approves of requests if they
meet the InterQual criteria.” Id. ¶ 70. The URC submitted the
request for Plaintiff’s MRI to the Regional Medical Office for
approval. Id. ¶ 71.
Plaintiff requested a Health Services appointment for his
shoulder on May 6, 2015 and was seen by a nurse practitioner on
May 18, 2015. Id. ¶¶ 72-73. “At that visit, Scott said he could
not perform exercises and refused exercise. Scott said he wanted
an MRI and surgery.” Id. ¶ 74. He was still waiting for regional
approval of the MRI request. Id. ¶ 75. The Regional Medical
Office denied the MRI request on June 16, 2015. Id. ¶ 76. “The
reason for the decision not to approve was, in summary, that
9
‘current evidence does not support testing in this clinical
scenario.’” Id. ¶ 78 (quoting BOP000113).2 “Specifically, the
primary reviewer noted that the criteria for MRI testing were
not met, because Scott had not met the criteria of documented
exercise, physiotherapy, and occupational therapy trial for six
weeks or more.” Id. ¶ 79. Dr. Manenti, the secondary reviewer,
agreed that Plaintiff’s “clinical management” was incomplete.
Id. ¶ 80.
Plaintiff requested a Health Services visit on August 4,
2015 to discuss the denial of the MRI. Id. ¶ 83. He saw a nurse
practitioner on August 11, 2015 and complained of pain in his
right shoulder. Id. ¶¶ 84-85. The nurse practitioner noted the
recommendation of Dr. Manenti that Plaintiff attempt
occupational therapy and physiotherapy before receiving an MRI.
Id. ¶ 86. She initiated a consult request for the therapy. Id. ¶
87. Plaintiff was scheduled to return on August 14, 2015 to
learn the exercises, but he failed to appear. Id. ¶¶ 88-89. He
submitted a complaint on August 15, 2015 “indicating his belief
2
Plaintiff’s medical records, Docket Entry 111, were sealed to
protect his privacy. Order to Seal, Docket Entry 116. The Court
will refer to these documents using their “BOP” Bates numbers.
Subsequent to the Court’s Order to Seal, Plaintiff filed a
motion to unseal waiving his right to privacy and arguing that
his medical records should be publicly accessible. Motion to
Unseal, Docket Entry 117. The Court notes that Plaintiff did not
file a timely objection to the motion to seal but will grant his
motion.
10
that the clinical director had failed to carry out the medical
recommendations of the regional medical director because Scott
had yet to receive physical therapy.” Id. ¶ 90. He submitted
another complaint about not receiving physical therapy on August
17, 2015. Id. ¶ 91. On August 18, 2015, he was given a copy of
the American Academy of Orthopedic Surgeons’ shoulder exercises
at an appointment with a nurse practitioner. Id. ¶¶ 92-93. He
was instructed on how to perform these exercises and told he
would be given a follow-up evaluation in six weeks. Id. ¶¶ 9294.
Plaintiff’s shoulder pain had not improved by the time of
his follow-up appointment on September 22, 2015 in spite of
performing the exercises. Id. ¶ 95. The nurse practitioner
indicated she would resubmit the request for the MRI and
recommend another consult with the orthopedist. Id. ¶ 96. Dr.
Morales co-signed this recommendation. Id. ¶ 97. The URC
submitted a new request for an MRI of Plaintiff’s right shoulder
on October 2, 2015. Id. ¶ 98. The request was approved on
November 20, 2015. Id. ¶ 100. In the interim, Plaintiff had his
Meloxicam prescription refilled at his request. Id. ¶ 99.
The MRI was performed on January 27, 2016. Id. ¶ 103. Dr.
Sarkos reviewed the MRI and examined Plaintiff on March 1, 2016.
Id. ¶¶ 104-05. He concluded Plaintiff “had a right shoulder SLAP
tear with a partial rotator cuff tear.” Id. ¶ 106. Dr. Sarkos
11
recommended Plaintiff follow-up with a surgical consultant, Dr.
McAlpin. Id. ¶ 107. A Fairton mid-level practitioner reviewed
Dr. Sarkos’ recommendations on March 2, 2016 and submitted a
consultation request to send Plaintiff to Dr. McAlpin. Id. ¶
108. Dr. Morales reviewed Dr. Sarkos’ report on March 7, 2016
and co-signed the request for a consultation with Dr. McAlpin
the next day. Id. ¶¶ 109-10.
Plaintiff had an appointment with orthopedics on May 27,
2016 after which Dr. Morales submitted a request for surgery.
Id. ¶¶ 111-12. “Regional review of a request for consultation
can take up to 90 days. If consultation with a subspecialist is
requested, regional review can take up to 90 days.” Id. ¶¶ 11314. Dr. McAlpin performed surgery on Plaintiff’s right shoulder
on August 17, 2016, repairing “a large SLAP tear and bursal and
articular side rotator cuff tear.” Id. ¶¶ 115-16. According to
Dr. McAlpin, the biceps looked to be in good condition, so he
did not perform a biceps repair or tenodesis. Id. ¶ 117.
Plaintiff received discharge instructions and pain medication.
Id. ¶ 118.
He saw a physician’s assistant on August 24, 2016 for a
follow-up appointment. Id. ¶ 119. The incision site was doing
well, and the sutures were removed. Id. ¶ 120. Plaintiff was
instructed on pendulum exercises. Id.
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D. Plaintiff’s Statement of Material Facts
Plaintiff states he was first seen for shoulder pain on
October 18, 2013. Declaration of Joseph Scott (“Plaintiff
Dec.”), Docket Entry 113 at 12, ¶ 4. Plaintiff concedes he
received an x-ray of his right shoulder at some point.
Plaintiff’s Statement of Facts (“PSOF”), Docket Entry 113 at 14,
¶ 1. He also concedes Dr. Morales gave him a cortisone injection
“to alleviate his excruciating right shoulder pain.” Id. ¶ 2.
See also Plaintiff Dec. ¶ 5. Between November 2013 and January
20, 2015, Plaintiff “was informed by Fairton medical staff to
try to do physical therapy home exercises.” Plaintiff Dec. ¶ 6.
He began filing grievances requesting consultation with an
orthopedic surgeon and an MRI scan because the pain was not
subsiding. Id. ¶ 7.
Plaintiff alleges that Dr. Morales “refused to order any
follow-up care and treatment to confirm the diagnosis of rotator
cuff tear” and that “Defendants failed to follow accepted
protocol for assessing their patient right shoulder chronic pain
history.” PSOF ¶¶ 3-4. He states that “Defendants failed to make
a proper and timely assessment of the risk that the Plaintiff
had developed a permanent injury” and “delayed access to a[n]
Orthopedic Specialist to determine cause of pain.” Id. ¶¶ 5-6.
13
Plaintiff submitted an expert affidavit from Monica Scott,
R.N., M.S.N., opining that the medical care deviated from the
standard of care. Id. ¶ 9; Declaration of Monica Scott (“Nurse
Scott Dec.”), Docket Entry 113 at 19. He further asserts that
“Defendants denied prescribed treatment by the Orthopedic
requesting a MRI be schedule” which caused him “irreparable
injury due to the delayed access to a[n] Orthopedic, MRI, and
surgery.” PSOF ¶¶ 10-11.
III. STANDARD OF REVIEW
Under the Federal Rules of Civil Procedure, “[s]ummary
judgment is appropriate only if ‘the movant shows that there is
no genuine issue as to any material fact and the movant is
entitled to judgment as a matter of law.’ In making that
determination, a court must view the evidence ‘in the light most
favorable to the opposing party.’” Tolan v. Cotton, 134 S. Ct.
1861, 1866 (2014) (quoting Fed. R. Civ. P. 56(a); Adickes v.
S.H. Kress & Co., 398 U.S. 144, 157 (1970)). A “genuine” dispute
of “material” fact exists where a reasonable jury’s review of
the evidence could result in “a verdict for the non-moving
party” or where such fact might otherwise affect the disposition
of the litigation. Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). “To defeat a motion for summary judgment, the
nonmoving party must show that there is more than merely ‘a
scintilla of evidence’ supporting his position, or ‘some
14
metaphysical doubt as to the material facts.” Transamerica
Occidental Life Ins. Co. v. Total Sys. Inc., 513 F. App’x 246,
249 (3d Cir. 2013) (quoting Anderson, 477 U.S. at 252;
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986)).
IV. ANALYSIS
Because Plaintiff does not dispute the Defendants’
statement of facts regarding his medical history,3 the Court
deems Defendants’ Statement of Facts undisputed for purposes of
summary judgment. See Fed. R. Civ. P. 56(e)(2); see also N.J.
Carpenters Pension Fund v. Hous. Auth. & Urban Dev. Agency of
the City of Atl. City, 68 F. Supp. 3d 545, 549 (D.N.J. 2014).
A.
Eighth Amendment Claim
Drs. Manenti and Morales argue they are entitled to summary
judgment on Plaintiff’s Eighth Amendment claim as Plaintiff
cannot prove they were deliberately indifferent to his serious
medical needs. Alternatively, they argue they are entitled to
qualified immunity.
3
Plaintiff’s “statement of facts” contain more legal conclusions
than statements of facts. He also did not submit a responsive
statement, as required by the Local Civil Rules. See Local Civ.
R. 56.1(a) (“The opponent of summary judgment shall furnish,
with its opposition papers, a responsive statement of material
facts, addressing each paragraph of the movant's statement,
indicating agreement or disagreement and, if not agreed, stating
each material fact in dispute and citing to the affidavits and
other documents submitted in connection with the motion. . .
.”).
15
“The Eighth Amendment, through its prohibition on cruel and
unusual punishment, prohibits the imposition of ‘unnecessary and
wanton infliction of pain contrary to contemporary standards of
decency.’” Pearson v. Prison Health Serv., 850 F.3d 526, 534,
(3d Cir. 2017) (quoting Helling v. McKinney, 509 U.S. 25, 32
(1993)). “[P]rison officials violate the Eighth Amendment when
they act deliberately indifferent to a prisoner's serious
medical needs by ‘intentionally denying or delaying access to
medical care or interfering with the treatment once
prescribed.’” Id. (quoting Estelle v. Gamble, 429 U.S. 97, 10405 (1976)). To succeed on his Eighth Amendment claim, Plaintiff
“must make (1) a subjective showing that ‘the defendants were
deliberately indifferent to [his] medical needs’ and (2) an
objective showing that ‘those needs were serious.’” Id. (quoting
Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)). Defendants
do not argue Plaintiff’s shoulder injury was not a “serious
medical need,” but rather that he has failed to prove the
subjective element of deliberate indifference.
The Third Circuit has distinguished between “cases where
the complaint alleges a complete denial of medical care and
those alleging inadequate medical treatment.” U.S. ex rel.
Walker v. Fayette Cty., Pa., 599 F.2d 573, 576 n.2 (3d Cir.
1979); accord Pearson, 850 F.3d at 535. “[M]ere allegations of
malpractice do not raise issues of constitutional import. Nor
16
does mere disagreement as to the proper medical treatment
support a claim of an eighth amendment violation.” Monmouth Cty.
Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 346 (3d
Cir. 1987) (internal citations omitted).
Plaintiff argues Drs. Manenti and Morales were deliberately
indifferent to his shoulder pain because they “‘fail[ed]’ to
provide any treatment beyond medication, and delay[ed] any
referral to a specialist, who could provide or recommend a
course of treatment.” Plaintiff’s Brief at 3. Accepting
Plaintiff’s construction of his claim as a delay or denial of
care type of deliberate indifference claim, there is no
presumption that defendants acted properly. Pearson, 850 F.3d at
537. “All that is needed is for the surrounding circumstances to
be sufficient to permit a reasonable jury to find that the delay
or denial was motivated by non-medical factors.” Id.
The Court finds that no reasonable jury could conclude that
any delay or denial of care by Drs. Manenti and Morales was
motivated by non-medical factors. Dr. Manenti stated he denied
the first request for an MRI of Plaintiff’s right shoulder in
early 2015 “because the clinical management of Scott’s
condition, including a documented trial of physical therapy, had
not been completed.” Manenti Declaration (“Manenti Dec.”) Docket
Entry 110-7 ¶ 15. Dr. Manenti certified that his decision was
based on and “consistent with both the relevant InterQual
17
criteria as well as BOP’s national clinical practices concerning
shoulder injuries, which advise that common reasons for inmates
not to show improvement include failure to stop aggravating
activities and failure to perform rehab exercises for a long
enough period of time.” Id. ¶ 16. See also BOP Clinical Practice
Guidelines, Management of Chronic Shoulder Pain (Dec. 2012),
Docket Entry 110-6 at 6 (“Common reasons for inmates NOT to show
improvement include failure to stop aggravating activities and
failure to perform rehab exercises long enough (minimum of 8-12
weeks).”). He approved the MRI request once Plaintiff completed
the physical therapy regime without improvement in his
condition. Manenti Dec. ¶ 17. He stated that his “review of the
requests for outside medical services for Scott’s right
shoulder, and [his] decisions associated with that review, were
grounded in BOP’s policies and clinical practice guidelines as
well as [his] experience as a physician and Regional Medical
Director.” Id. ¶ 21.
Likewise, Dr. Morales provided evidence that he used his
professional judgment to treat Plaintiff’s shoulder. When
Plaintiff initially came to Dr. Morales for treatment for his
chronic shoulder pain in 2013, Dr. Morales took an x-ray of
Plaintiff’s shoulder and later performed a shoulder
arthrocentesis when the x-ray had a negative result. Declaration
of Dr. Ruben Morales (“Morales Dec.”), Docket Entry 110-8 ¶¶ 1418
15; BOP000001 (describing Plaintiff’s complaint as “chronic rt
shoulder pain”). Plaintiff did not return for treatment until
February 2014. BOP000024-25. He was informed of the x-ray
results and advised to stop lifting weights for the time being.
Id. He returned in August, at which time he was given a sling to
wear for 8 weeks. BOP 000022-23. According to the provider,
Plaintiff denied working out “yet his upper [body] looks
muscular and with good definition.” BOP000022. An exam revealed
he had “full range of motion.” Id. He came back in October and
“demanded” an MRI. BOP000018. The notes for this encounter
indicate Plaintiff stated he not been using the sling because
“the velcro is damaged.” Id. At this time, Dr. Morales co-signed
a recommendation for Plaintiff to see an outside orthopedist,
Dr. Sarkos. Morales Dec. ¶ 16. See also BOP000019-20. Dr. Sarkos
did not recommend an MRI at this initial orthopedic consultation
on January 20, 2015. DSOF ¶ 52; BOP000123-24.
Dr. Sarkos did not recommend an MRI until March 31, 2015.
BOP000118. Dr. Morales agreed with that recommendation and
submitted a request for approval to the Regional Medical Office
on April 17, 2015 through the URC. Morales Dec. ¶ 20; BOP000117.
That request was denied because Plaintiff had not completed a
physical therapy regimen. When Nurse Rodriguez resubmitted the
request for the MRI in September 2015 after Plaintiff completed
physical therapy with no signs of improvement, Dr. Morales again
19
co-signed the recommendation. BOP000048. The MRI was approved on
November 20, 2015 and conducted on January 27, 2016. BOP000104,
BOP000148.
On March 1, 2016, Dr. Sarkos recommended that Plaintiff
consult with a surgeon. BOP000148. Dr. Morales reviewed that
recommendation on March 8, 2016, BOP000149, and submitted the
recommendation for surgery, which included “arthroscopic
subacromial decompression, possible rotator cuff, SLAP repair,
and possible bicep tenodesis.” DSOF ¶ 112; BOP000135. Plaintiff
had rotator cuff surgery on his right shoulder on August 17,
2016. BOP000152-53.
“[I]t is well established that as long as a physician
exercises professional judgment his behavior will not violate a
prisoner's constitutional rights.” Brown v. Borough of
Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990). In support of
their motion for summary judgment on Plaintiff’s deliberate
indifference claim, Drs. Manenti and Morales have provided
evidence to support they were using their medical judgment. They
have provided declarations describing their reasons behind their
actions and the medical justifications behind requiring
Plaintiff to complete physical therapy before approving his MRI.
Plaintiff’s medical records indicate that he was continuously
being attended to by Fairton medical personnel. Notably,
Plaintiff does not contest Defendants’ statement of facts
20
describing his general course of treatment. The record before
the Court indicates that Plaintiff was being given regular
medical care for his shoulder and Drs. Manenti and Morales used
their medical judgments to treat him.
Plaintiff has provided no evidence in opposition to summary
judgment that the doctors’ decisions were based on something
other than their medical judgment. Nurse Scott’s declaration
does not create any factual issues. She does not assert the
doctors did not exercise their medical judgment in treating
Plaintiff or in requiring Plaintiff complete physical therapy
before an MRI was ordered. See generally Nurse Scott Dec. “If a
plaintiff's disagreement with a doctor's professional judgment
does not state a violation of the Eighth Amendment, then
certainly no claim is stated when a doctor disagrees with the
professional judgment of another doctor. There may, for example,
be several acceptable ways to treat an illness.” White v.
Napoleon, 897 F.2d 103, 110 (3d Cir. 1990) (emphasis in
original). There is nothing in Nurse Scott’s affidavit such that
a reasonable jury could conclude Drs. Manenti and Morales were
deliberately indifferent to Plaintiff’s medical needs.
Plaintiff’s “disagreement about his course of treatment,
namely, that an MRI should have been immediately ordered, does
not demonstrate the defendants were deliberately indifferent to
his medical needs.” Rhines v. Bledsoe, 388 F. App'x 225, 227 (3d
21
Cir. 2010) (per curiam). The actions taken by Drs. Morales and
Manenti “undisputedly indicate that [they] employed professional
judgment, and did not act with the ‘obduracy and wantonness’
necessary to sustain an Eighth Amendment violation.” Gaines v.
Busnardo, 735 F. App'x 799, 804 (3d Cir. 2018) (per curiam)
(quoting Whitley v. Albers, 475 U.S. 312, 319 (1986)) (internal
citation omitted). Thus, they are entitled to summary judgment
upon Plaintiff’s claim of their deliberate indifference to his
serious medical needs in violation of the Eighth Amendment’s
prohibition of cruel and unusual punishment.
B. Federal Tort Claims Act – Medical Negligence
The United States moves for summary judgment on the FTCA
claim, arguing that Nurse Scott’s affidavit of merit is
deficient under New Jersey law. “The FTCA waives sovereign
immunity and grants district courts jurisdiction over tort
claims against the United States ‘under circumstances where the
United States, if a private person, would be liable to the
claimant in accordance with the law of the place where the act
or omission occurred.’” Gould Elecs. Inc. v. United States, 220
F.3d 169, 179 (3d Cir. 2000) (quoting 28 U.S.C. §
1346(b)(1))(emphasis in original), modified on other grounds by
Simon v. United States, 341 F.3d 193 (3d Cir. 2003). “[T]he
court must evaluate whether the United States would be liable
under the ‘whole law’ of the state in which the act or omission
22
occurred.” Id. (citing Richards v. United States, 369 U.S. 1, 6
(1962)). FCI Fairton is in New Jersey; therefore, New Jersey
substantive law governs Plaintiff’s FTCA claim. See also In re
Orthopedic Bone Screw Prod. Liab. Litig., 264 F.3d 344, 362 (3d
Cir. 2001), as amended (Oct. 10, 2001) (“[T]he FTCA does not
itself create a substantive cause of action against the United
States; rather, it provides a mechanism for bringing a state law
tort action against the federal government in federal court.”).
New Jersey’s affidavit of merit statute requires, in
relevant part, that a plaintiff bringing a professional
malpractice or negligence claim
provide each defendant with an affidavit of an
appropriate licensed person that there exists a
reasonable probability that the care, skill or knowledge
exercised or exhibited in the treatment, practice or
work that is the subject of the complaint, fell outside
acceptable professional or occupational standards or
treatment practices. . . .
N.J. Stat. Ann. § 2A:53A-27 (“Section 27”). The Patients First
Act, N.J. Stat. Ann. § 2A 53A-41 (“Section 41”), later amended
Section 27 to require “[i]n the case of an action for medical
malpractice, the person executing the affidavit shall meet the
requirements of a person who provides expert testimony or
executes an affidavit as set forth in [Section 41].” N.J. Stat.
Ann. § 2A:53A-27. Section 41, in turn, “‘establishes
qualifications for expert witnesses in medical malpractice
actions’ and ‘provides that an expert must have the same type of
23
practice and possess the same credentials, as applicable, as the
defendant health care provider, unless waived by the court.’”
Meehan v. Antonellis, 141 A.3d 1162, 1171 (N.J. 2016) (quoting
Assembly Appropriations Comm., Statement to Assembly No. 50, at
2 (2004)). Because Dr. Manenti and Morales are physicians, these
“enhanced credential requirements” apply to Plaintiff’s
affidavit of merit.
“The basic principle behind [Section 41] is that ‘the
challenging expert’ who executes an affidavit of merit in a
medical malpractice case, generally, should ‘be equivalentlyqualified to the defendant’ physician.” Buck v. Henry, 25 A.3d
240, 247 (N.J. 2011) (quoting Ryan v. Renny, 999 A.2d 417, 436
(N.J. 2010)). See also Lomando v. United States, 667 F.3d 363,
382-83 (3d Cir. 2011). The New Jersey Supreme Court noted three
distinct categories created by Section 41: (1) physicians who
are specialists in a field but who are not board certified in
that specialty; (2) physicians who are specialists and who are
board certified in that specialty; and (3) “general
practitioners.” Buck, 25 A.3d at 247 (citing N.J. Stat. Ann. §
2A:53A–41(a),(b)). The necessary “enhanced qualifications” of
the affiant depends on which category the defendant physician
belongs.
Dr. Manenti is a Doctor of Osteopathic Medicine with a
degree from Ohio University. Manenti Dec. ¶ 3. He is board
24
certified by the American College of Osteopathic Family
Physicians. Manenti curriculum vitae, Docket Entry 110-7 at 6.
Dr. Morales has a medical degree from Perpetual Help College of
Medicine in the Philippines and had his residency in internal
medicine at Bergen County Medical Center. Morales Dec. ¶¶ 2-3.
Dr. Manenti does not state what field his certification is in;
therefore, the Court is unable to determine if Plaintiff’s
claims involved Dr. Manenti’s field of certification. The Court
therefore treats both doctors as general practitioners for
purposes of this motion.
For general practitioners, section 41 states:
If the party against whom or on whose behalf the
testimony is offered is a general practitioner, the
expert witness, during the year immediately preceding
the date of the occurrence that is the basis for the
claim or action, shall have devoted a majority of his
professional time to:
(1) active clinical practice as a general practitioner;
or active clinical practice that encompasses the medical
condition, or that includes performance of the
procedure, that is the basis of the claim or action; or
(2) the instruction of students in an accredited medical
school, health professional school, or accredited
residency or clinical research program in the same
health care profession in which the party against whom
or on whose behalf the testimony is licensed; or
(3) both.
N.J. Stat. Ann. § 2A:53A-41(b). Nurse Scott’s affidavit falls
short of these requirements. She states that she currently works
full time as a Nurse Educator at an unnamed nursing school.
25
Nurse Scott Dec. ¶ 1. It is not clear from her limited affidavit
that she was employed there “during the year immediately
preceding the date of the occurrence that is the basis for the
claim or action . . . .” N.J. Stat. Ann. § 2A:53A-41(b). In
addition, a nursing school is not “the same health care
profession in which the party against whom or on whose behalf
the testimony is licensed” in this instance as Drs. Manenti and
Morales are licensed physicians, not nurses. Id. § 2A:53A41(b)(2). She further certifies that “80 percent of [her] work
is providing nursing education to nursing students. . . . The
other 20 percent is working on the rehabilitation floor where
[she] provide[s] care to clients with joint issues, postoperative joint surgeries and stroke clients.” Nurse Scott Dec.
¶ 2. The majority of her practice is dedicated to education, not
“active clinical practice” as required by Section 41. N.J. Stat.
Ann. § 2A:53A-41(b)(1). Nurse Scott is therefore not qualified
under Section 41 to provide an affidavit of merit as to the
standard of care provided by Drs. Morales and Manenti. See also
Meehan, 141 A.3d at 1173 (“[S]ubsection [b] limits the expert or
affiant to a physician . . . .”).
26
Failure to provide a sufficient affidavit of merit requires
dismissal of the claim.4 Id. at 1169. The Court will therefore
grant the United States’ motion for summary judgment on the FTCA
claim.
C. Qualified Immunity
Defendants also argue they are entitled to summary judgment
under the doctrine of qualified immunity. “Qualified immunity
shields government officials from civil damages liability unless
the official violated a statutory or constitutional right that
was clearly established at the time of the challenged conduct.”
Taylor v. Barkes, 135 S. Ct. 2042, 2044 (2015) (internal
citation and quotation marks omitted). The first prong of the
analysis “asks whether the facts, [t]aken in the light most
favorable to the party asserting the injury, . . . show the
officer’s conduct violated a [federal] right[.]” Tolan v.
Cotton, 134 S. Ct. 1861, 1865 (2014) (internal quotation marks
and citations omitted) (alterations and omissions in original).
As the Court has already granted summary judgment to defendants
on the merits, it is unnecessary to address qualified immunity
4
The waiver provision of N.J. Stat. Ann. § 2A:53A-41(c) does not
apply as the Court has applied the more lenient general
practitioner standard.
27
beyond noting that Plaintiff has failed to prove a violation of
a statutory or constitutional right.
V. CONCLUSION
For the reasons stated above, summary judgment is granted.
An accompanying Order will be entered.
November 27, 2018
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
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