SCOTT v. MANENTI et al
Filing
72
MEMORANDUM OPINION. Signed by Chief Judge Jerome B. Simandle on 12/8/2016. (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.,
Defendants.
MEMORANDUM OPINION
SIMANDLE, Chief Judge:
This matter comes before the Court on Plaintiff Joseph
Scott’s (“Plaintiff”) motion for preliminary injunction and
temporary restraining order (Docket Entry 43); motion for order
to show cause (Docket Entry 53); and motion for extension of
time to file certificate of merit (Docket Entry 66). Defendants
John Manenti, Ruben B. Morales, and United States’
(collectively, “Defendants”) Response in Opposition was filed on
November 29, 2016 (Docket Entry 70).
For the reasons set forth below, Plaintiff’s motion for
preliminary injunction and temporary restraining order is
dismissed as moot, Plaintiff’s motion for order to show cause is
dismissed as moot, and Plaintiff’s motion for extension of time
to file certificate of merit is dismissed without prejudice and
may be renewed at the appropriate time.
BACKGROUND & PROCEDURAL HISTORY
1. Previously, this Court reviewed Plaintiff’s original
Complaint (Docket Entry 1, filed on Sep. 30, 2015) pursuant to
29 U.S.C. § 1915A. The Court permitted Plaintiff’s claim under
the Eighth Amendment—that his right to adequate medical care was
violated—to proceed in part against Drs. John Manenti and Ruben
Morales. (Order, Docket Entry 18.) The remainder of the
defendants were dismissed. (Id.)
2. On January 26, 2016, Plaintiff filed a motion to amend
his Complaint to add a Federal Tort Claims Act (“FTCA”), 28
U.S.C. §§ 1346 (b), 2671-2680, against all defendants, including
those the Court dismissed in its January 7, 2016 Opinion and
Order. (Third Motion to Amend, Docket Entry 27.) The Court
denied that motion on the grounds that a FTCA claim may not be
brought against an individual, only the United States. (April
13, 2016 Order, Docket Entry 45.)
3. Plaintiff subsequently filed a motion to amend on May 6,
2016 seeking to add an FTCA claim against the United States.
(Fourth Motion to Amend, Docket Entry 47.) The Court found
Plaintiff had sufficiently pled a FTCA claim against the United
States and granted the motion on June 27, 2016. (Docket Entry
48.)
4. Plaintiff has brought suit against Defendant Dr. Ruben
Morales and Medical Director Dr. John Manenti in their
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individual capacities pursuant to Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Plaintiff has also brought suit against the United States under
the FTCA for “negligence in the excessive delay in providing
adequate care.” (Docket Entry 50, Amended Complaint, filed May
6, 2016.) Plaintiff is a convicted and sentenced federal
prisoner currently confined at FCI Fairton, New Jersey. The
following factual allegations are as Plaintiff has pled in his
original and amended Complaint; the Court has made no finding as
to the veracity of Plaintiff’s allegations.
7. Plaintiff states that on October 13, 2013, he submitted
a request for medical attention to his right shoulder and in
response Dr. Morales gave Plaintiff a cortisone injection on
November 27, 2013. (Cl. ¶ 1, 2.) Plaintiff alleges that he
informed Dr. Morales that he was in “excruciating pain” in
October, 2013, but Dr. Morales delayed referring Plaintiff to
the orthopedist. (Cl. ¶ 12.) Approximately one year later, an
unidentified physician’s assistant determined Plaintiff’s
shoulder had not improved and arranged for a consultation with
an orthopedic surgeon. (Cl. ¶ 3.) The evaluation occurred on
January 27, 2015, at which time the orthopedist diagnosed
Plaintiff with a torn rotator cuff and gave him a cortisone
injection. (Cl. ¶ 4.) The orthopedist indicated a MRI might be
necessary if Plaintiff remained in pain. (Cl. ¶ 4.)
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8. After a few months, Plaintiff’s shoulder pain had not
improved and the orthopedic surgeon recommended Plaintiff have a
MRI. (Cl. ¶ 5.) Medical Director Dr. Manenti denied Plaintiff’s
request for a MRI on June 16, 2015. (Cl. ¶ 6.) Plaintiff asked
Dr. Morales for assistance obtaining the MRI, who instructed
Plaintiff to submit a grievance in order to get authorization
from the Region. (Cl. ¶ 7.) As of the filing of the Complaint,
Plaintiff has not received a MRI for his shoulder.
MOTION FOR INJUNCTIVE RELIEF
9. Plaintiff requests a preliminary injunction and a
temporary restraining order requesting that the Court compel
Defendants to provide him with “proper treatment” for his torn
rotator cuff, specifically in the form of a second MRI and/or
surgery. (Motion for Preliminary Injunction, Docket Entry 43.)
Plaintiff’s request for a temporary restraining order is
subsumed by his request for a preliminary injunction and will be
analyzed by this Court as a single motion. Here, Plaintiff
relies on his original and amended Complaint with respect to
this application for injunctive/emergent relief.
10. Defendants’ Response includes an affidavit dated
November 29, 2016 and accompanying medical records indicating
that Plaintiff received arthroscopic surgery on the right
shoulder, including rotator cuff repair and SLAP repair, on
August 17, 2016. (Docket Entries 70-1 to -4.) Defendants’
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submission also includes a report indicating that Plaintiff
received post-surgical follow-up care at Premier Orthopaedic
Associates in Mullica Hill, New Jersey on August 24, 2016.
(Docket Entry 70-4.)
11. Defendants’ Response and Exhibits indicate Plaintiff
has received the relief he requested in his Motion for
Preliminary Injunction, namely, surgery on his shoulder. The
Court can grant no further relief on that motion. It shall
therefore be dismissed as moot.
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MOTION FOR EXTENSION OF TIME TO FILE CERTIFICATE OF MERIT
12. Plaintiff requests the Court to grant him an extension
of time to file a certificate of merit. (Docket Entry 66.) Under
applicable New Jersey law, Plaintiff must provide an affidavit
of merit within sixty days of the date the answer is filed, with
one 60-day extension permissible for good cause shown. In lieu
of an affidavit, Plaintiff “may provide a sworn, written
statement that, after written request, the defendant failed to
provide the plaintiff with records that have a substantial
bearing on the preparation of the affidavit.” See N.J. Stat.
1 The Court will also dismiss as moot Plaintiff’s Motion to Show
Cause pursuant to 28 U.S.C. § 2243. A motion to show cause under
§ 2243 is to be directed to the person having custody of the
person detained, not as a vehicle to request a Court to issue an
opinion. Furthermore, Plaintiff has received the relief he
sought. Accordingly, Plaintiff’s motion is dismissed as moot.
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Ann. §§ 2A:53A-27 to -28 (West 2016); Lee v. Thompson, 163 Fed.
Appx. 142, *1 (3d Cir. 2006).
13. Plaintiff’s motion was filed on November 9, 2016,
twenty days before Defendants filed their answer on November 29,
2016. Plaintiff’s motion was accordingly premature, and is
dismissed without prejudice for that reason.
14. Plaintiff has sixty days from November 29, 2016--until
Monday, January 30, 2017--within which to provide an affidavit
of merit (or the above-described sworn statement), or in the
alternative, to request a 60-day extension for good cause.
CONCLUSION
15. For the foregoing reasons, the Court dismisses as moot
Plaintiff’s motion for injunctive relief and his
mischaracterized motion to show cause. Plaintiff’s motion for
extension of time is dismissed without prejudice.
16. An accompanying Order will be entered.
December 8, 2016
Date
s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge
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