BROWN v. UNITED STATES OF AMERICA et al

Filing 2

OPINION filed. Signed by Judge Renee Marie Bumb on 11/24/2015. (drw)n.m.

NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
Andrew Brown,
Plaintiff,
v.
United States of America,
Jane and John Doe,
Dr. Ruben Morales, Marilyn Angud,
Maria Martinez, Satish Limbekar,
J.T. Shartle, J.L. Norwood,
Harrell Watts
Defendants.

:
:
:
:
:
:
:
:
:
:
:
:
:
:

Civ. No. 15-7734(RMB)
OPINION

BUMB, District Judge:
Plaintiff is a prisoner incarcerated in the Federal
Correctional Facility in Fairton, New Jersey (“FCI-Fairton”). He
brought this civil action under 42 U.S.C. § 1983, and the
Federal Tort Claims Act, 28 U.S.C. § 2671 et seq. on October 27,
2015. (Compl., ECF No. 1.) Plaintiff seeks to proceed in forma
pauperis (“IFP”), and requests appointment of pro bono counsel.
(ECF No. 1-2 and 1-3.)
Plaintiff has established that he is unable to prepay the
filing fee for a civil action, and the Court will grant his IFP
application. When a prisoner is granted IFP status, he must pay

1

the $350.00 filing fee in installments, as set forth in 28
U.S.C. § 1915(b). Additionally, the Court is required to review
the Complaint and dismiss the case if it is frivolous or
malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief against a defendant who is
immune from such relief. Id. § 1915(e)(2)(B). Having screened
the complaint, Plaintiff’s FTCA claim may proceed, and
Plaintiff’s Bivens claims will be dismissed.
I.

BACKGROUND
In his Complaint, Plaintiff alleges he was diagnosed with a

hernia by medical staff at FCI-Fairton on January 29, 2013. (ECF
No. 1 at 14.) The medical records attached to the Complaint1
indicate that Plaintiff was diagnosed with a small hernia that
was “reducible” and nontender. (ECF No. 1-1 at 19.) He was
treated with a hernia belt. (Id. at 20.) In April 2013,
Plaintiff insisted on surgery, and medical staff member Marilyn
Angud told him that surgery was elective and would be
“prioritized based on presentation.” (Id. at 23.) They would
monitor him on a regular basis. (Id.)

1

In deciding whether to dismiss a complaint for failure to state
a claim upon which relief may be granted, a court should
consider only the allegations in the complaint, exhibits
attached to the complaint, and matters of public record. Pension
Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d
1192, 1196 (3d Cir. 1993), cert. denied, 510 U.S. 1042 (1994)
(citations omitted).
2

Plaintiff was shown how to use his hernia support with
prescribed exercises, and he was given a restriction on nonweight bearing. (Id.) The next month, medical staff member Maria
Martinez entered a general surgery consultation request for
Plaintiff. (Id. at 27-28.) In June 2013, when Plaintiff
continued to complain of hernia pain with no relief, he was
prescribed Naproxen. (Id. at 24-25.)
On July 29, 2013, Dr. Ruben Morales performed a surgical
evaluation for Plaintiff. (Id. at 28.) He wrote in the medical
record, “left inguinal hernia is small, easily reducible and no
report that the condition has interfered with his activities of
daily living. Will reevaluate condition in 6 months.” (Id.) Dr.
Morales concluded that “surgical repair does not need to be done
right away.” (Id.) He noted that Plaintiff’s case was discussed
by the Utilization Review Committee (“URC”). (Id.)
On September 20, 2013, Plaintiff’s hernia measured at 8cm
by 4cm, and he complained his pain was off and on. (Id. at 2930.) Approximately one month later, medical staff member Maria
Martinez noted the Clinical Director, Dr. Morales, recommended a
surgical consultation for Plaintiff. (Id. at 32.)
On January 15, 2014, Plaintiff asked medical staff member
Satish Limbekar whether his surgery had been approved. (Id. at
33-34.) Limbekar advised that surgery was approved by the

3

“regional reviewer” and was “pending scheduling.” (Id. at 34.)
Plaintiff was treated with pain medication. (Id. at 33.)
Plaintiff saw an outside surgeon on May 8, 2014, and the
surgeon recommended elective hernia repair. (Id. at 41.) The
surgery was performed on October 3, 2014. (Id. at 49.)
Plaintiff alleges his hernia increased in size until it was
the size of a goose egg. (Compl., ECF No. 1 at 14.) Due to delay
in surgery, Plaintiff suffered unnecessary pain, embarrassment,
and weight gain. (Id. at 15-16.) Dr. Morales told Plaintiff the
delay was due to the costs of surgery, and “his hands were
tied.” (Id. at 16.) According to Plaintiff, medical staff
blocked his access to an outside doctor. (Id. at 17.) Plaintiff
constantly complained to medical staff and filed grievances, to
no avail. (Id. at 15.)
Plaintiff alleged the following Defendants are familiar
with his medical records and treated only the symptoms of his
medical condition, rather than the underlying condition, which
caused him to suffer pain and embarrassment, and subjected him
to the possibility of death from delayed treatment of inguinal
hernia: Marilyn Angud, Health Service Administrator at FCI
Fairton; Satish Limbekar, MLP2; Maria Martinez, PA;3 John and
Jane Does, URC.4 (Id. at 10-12.)

2

The Court assumes “MLP” stands for Mid-level practitioner. See
e.g. Bramson v. Sulayman, 251 F. App’x 84 (3d Cir. 2007).
4

Plaintiff also sued Warden J.T. Shartle, Regional Director
J.L. Norwood, and Central Office Administrator Harrell Watts for
“rubber-stamping” the medical claims in his grievances against
medical staff. (Id. at 12-13.) Plaintiff exhausted his
administrative remedies under the Federal Tort Claims Act. (ECF
No. 1-1 at 2.) He also appears to have exhausted his
administrative remedies under the Prisoner Litigation Reform
Act. (Id. at 4.) See Small v. Camden County, 728 F.3d 265, 26869 (3d Cir. 2013) (describing PLRA exhaustion requirement under
42 U.S.C. § 1997e(a)). Plaintiff sued the individual defendants
in their individual capacities, and he seeks money damages (ECF
No. 1 at 8, 18.)
II.

DISCUSSION
A.

Standard of Review

A pleading must contain a “short and plain statement of the
claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). “To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim
3

The Court assumes “PA” stands for Physician Assistant. See e.g.
Murchison v. Warden Lewisburg, USP, 542 F. App’x 93 (3d Cir.
2011).
4
“URC” stands for Utilization Review Committee. (ECF No. 1 at
8.)
5

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.” Id.
(quoting Twombly, 550 U.S. at 556.)
“[A] court must accept as true all of the allegations
contained in a complaint.” Id. A court need not accept legal
conclusions as true. Id. Legal conclusions, together with
threadbare recitals of the elements of a cause of action, do not
suffice to state a claim. Id. Thus, “a court considering a
motion to dismiss can choose to begin by identifying pleadings
that, because they are no more than conclusions, are not
entitled to the assumption of truth.” Id. at 679. “While legal
conclusions can provide the framework of a complaint, they must
be supported by factual allegations.” Id. If a complaint can be
remedied by an amendment, a district court may not dismiss the
complaint with prejudice, but must permit the amendment. Grayson
v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir. 2002).
B.

FTCA Claim
An action shall not be instituted upon a
claim against the United States for money
damages for . . . personal injury . . .
caused by the negligen[ce] . . . of any
employee of the Government while acting
within the scope of his . . . employment,
unless the claimant shall have first
presented the claim to the appropriate
Federal agency and his claim shall have been
finally denied by the agency in writing and
sent by certified or registered mail.
6

26 U.S.C. § 2675(a). Plaintiff attached to his Complaint the
BOP’s written denial of his tort claim where he alleged
negligent medical care while incarcerated in FCI-Fairton,
beginning in January 2013 through October 2014. (ECF No. 1-1 at
2.) Therefore, Plaintiff exhausted his FTCA claim, and it will
be allowed to proceed.
C.

Bivens Claims

The U.S. Supreme Court, in Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971)
recognized a private cause of action to recover damages against
federal actors for constitutional violations. A Bivens claim is
the federal counterpart to an action under 42 U.S.C. § 1983, and
courts apply the same legal principles. See Brown v. Philip
Morris Inc., 250 F.3d 789, 800 (3d Cir. 2001.) The elements of a
Bivens claim are that the defendant, acting under color of
Federal law, deprived Plaintiff of a right secured by the
Constitution or laws of the United States. Id.

D.

Eighth Amendment Claims

Plaintiff alleges violation of his Eighth Amendment right
against cruel and unusual punishment. To state an inadequate
medical care claim under the Eighth Amendment, an inmate must

7

allege facts showing the defendant’s conduct constituted
“unnecessary and wanton infliction of pain” or that the
defendant was deliberately indifferent to the inmate’s serious
medical needs. Estelle v. Gamble, 429 U.S. 97, 104 (1976). “A
medical need is “serious,” in satisfaction of the second prong
of the Estelle test, if it is “one that has been diagnosed by a
physician as requiring treatment or one that is so obvious that
a lay person would easily recognize the necessity for a doctor's
attention.” Monmouth County Corr. Inst. Inmates v. Lanzaro, 834
F.2d 326, 347 (3d Cir. 1987) (quoting Pace v. Fauver, 479
F.Supp. 456, 458 (D.N.J. 1979), aff'd, 649 F.2d 860 (3d Cir.
1981)). Denial of or delay in treatment that causes unnecessary
and wanton infliction of pain may also constitute a serious
medical need. Id. (citing Estelle, 429 U.S. at 103).
An allegation of medical malpractice or simple negligence
does not rise to the level of a constitutional violation.
Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004).
Disagreement as to the proper medical treatment is also
insufficient to state a constitutional violation. Id. (citing
Lanzaro, 834 F.2d at 346 (3d Cir. 1987) (citations omitted);
White v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990)).
Deliberate indifference against a particular defendant may
exist under a variety of situations. Durmer v. O’Carroll, 991
F.2d 64, 68 (3d Cir. 1993). Deliberate indifference exits where
8

“̔knowledge of the need for medical care [is accompanied by the]
. . . intentional refusal to provide that care’” or where
“[s]hort of absolute denial . . . ‘necessary medical treatment
[i]s ... delayed for non-medical reasons,’ ” or where “‘prison
authorities prevent an inmate from receiving recommended
treatment.’” Id. (quoting Lanzaro, 834 F.2d at 346) (citations
omitted).
1.

Claims against prison administrators

Plaintiff had a serious medical need because he was
diagnosed with a hernia. See e.g. Williams v. Pennsylvania, 289
F. App’x 483, 485 (3d. Cir. 2008) (finding the plaintiff
suffered a serious injury of hernia but he failed to establish
defendant was deliberately indifferent). “Correctional
defendant-administrators who are not themselves physicians
cannot ‘be considered deliberately indifferent simply because
they failed to respond directly to the medical complaints of a
prisoner who was already being treated by the prison doctor.’”
Davis v. Norwood, 614 F. App’x 602, 605 (3d Cir. 2015) (per
curiam) (quoting Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir.
1993)). “If the non-medical prison official has no actual
knowledge that prison doctors are mistreating a prisoner, he or
she ‘will not be chargeable with the Eighth Amendment scienter
requirement of deliberate indifference.’” Id. (quoting Spruill
v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004)).
9

Browns’ allegations that the Warden and BOP Administrators
denied his grievances when he complained that he needed surgery
for his painful hernia are insufficient to show deliberate
indifference. According to the medical records attached to the
Complaint, Plaintiff received ongoing monitoring of his
condition, treatment with a hernia belt, exercises, and pain
medication. There is nothing in the Complaint or the attached
medical records that suggest the prison administrators were
deliberately indifferent. The prison administrators were
entitled to rely on the medical professionals’ sound judgment in
recommending treatment. Amendment of the complaint to state a
claim against these defendants would be futile. Therefore, the
Bivens claims against Defendants Shartle, Norwood and Watts will
be dismissed with prejudice.
2.

Claims against URC members

Plaintiff does not allege that the URC members delayed his
hernia surgery for non-medical reasons. Documents Plaintiff
attached to the Complaint indicate that the URC referred
Plaintiff to the Clinical Director, Dr. Ruben Morales, for an
initial surgical consultation on March 14, 2013. (ECF No. 1-1 at
50.) The next month, Dr. Morales performed the consultation and
recommended deferring surgery. (Id. at 51.) The URC ordered
another medical review on July 26, 2013. (Id. at 52.) In
December 2013, the URC submitted a request to the Regional
10

Reviewer for Plaintiff to have surgical hernia repair. (Id. at
53.)
The Regional Reviewer approved a medical consultation for
hernia repair on December 30, 2013. (Id. at 54.) The local URC
approved surgical consultation on August 8, 2014. (Id. at 55.)
Nothing in the complaint suggests deliberate indifference to
Plaintiff’s need for treatment of his hernia by any URC member.
See Blaise v. Ebbert, Civil No. 3:12–CV–2298, 2015 WL 1400878,
at *7 (M.D. Pa. Mar. 26, 2015) (URC members did not make
decision to deny surgery request.) The claims against John and
Jane Doe URC members will be dismissed with prejudice because
amendment of the Complaint against non-treating URC members for
deliberate indifference is futile.
3. Claims against Dr. Ruben Morales
Plaintiff alleged Dr. Morales deferred Plaintiff’s hernia
surgery based on the cost, rather than on medical need. Although
a physician may be deliberately indifferent to a prisoner’s
serious medical need if he denies or delays treatment for a nonmedical reason, the medical records Plaintiff attached to his
Complaint suggest otherwise. When Dr. Morales evaluated
Plaintiff for hernia surgery on July 29, 2013, he did not
recommend surgery because he found “left inguinal hernia is
small, easily reducible and no report that the condition has

11

interfered with his activities of daily living. Will reevaluate
condition in 6 months.” (ECF No. 1-1 at 28.)
Less than six months later, when Plaintiff continued to
complain of hernia pain, Dr. Morales recommended a surgical
consultation. (Id. at 32.) And when the request for outside
surgical evaluation was approved and the surgeon recommended
elective hernia repair, Dr. Morales agreed.
Plaintiff’s Complaint does not plausibly allege Dr. Morales
was deliberately indifferent to Plaintiff’s need for surgical
hernia repair. At best, Plaintiff disagreed with Dr. Morales’
opinion, in July 2013, that surgery could be deferred because
Plaintiff’s hernia was small and “easily reducible.” See Winslow
v. Prison Health Services, 406 F. App’x 671, 674 (3d Cir. 2011)
(“the naked assertion that Defendants considered cost in
treating Winslow's hernia does not suffice to state a claim for
deliberate indifference, as prisoners do not have a
constitutional right to limitless medical care, free of the cost
constraints under which law-abiding citizens receive treatment”)
(citing Reynolds v. Wagner, 128 F.3d 166, 175 (3d Cir. 1997)
(“[T]he deliberate indifference standard of Estelle does not
guarantee prisoners the right to be entirely free from the cost
considerations that figure in the medical-care decisions made by
most non-prisoners in our society.”) The Court will dismiss the
Bivens claim against Dr. Morales without prejudice, allowing
12

Plaintiff to amend his claim if he can plead additional facts to
establish deliberate indifference by failing to recommend
surgery earlier.
4.

Claims against Angud, Martinez and Limbekar

Plaintiff’s deliberate indifference claims against Angud,
Martinez and Limbekar are also deficient. Plaintiff alleges only
that they should have provided surgery rather than treatment of
his symptoms. Disagreement with medical treatment does not rise
to a level of deliberate indifference. Winslow, 406 F. App’x at
674; Reed v. Cameron, 380 F. App’x 160, 162 (3d Cir. 2010)
(“dissatisfaction with prison medical care is not sufficient to
allege a violation of the Eighth Amendment”) (citing Monmouth
County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d
Cir. 1987)).

Therefore, Plaintiff’s Bivens claims against

Angud, Martinez and Limbekar will be dismissed without
prejudice. Plaintiff may amend his claim against any of these
treatment providers, if he can plead additional facts to
establish deliberate indifference by failing to recommend
surgery earlier.
E.

Application for Pro Bono Counsel

There is no statutory or constitutional right to counsel in
a civil action. Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir.
1997). Nonetheless, a court has discretion, under 28 U.S.C. §
1915(e), to request counsel to represent a party. Id. at 457. If
13

a court determines that a plaintiff’s claim has some merit, the
court should consider the following factors in determining
whether to request pro bono counsel: (1) the plaintiff's ability
to present his or her own case; (2) the complexity of the legal
issues; (3) the degree to which factual investigation will be
necessary and the ability of the plaintiff to pursue such
investigation; (4) the amount a case is likely to turn on
credibility determinations; (5) whether the case will require
the testimony of expert witnesses; (6) whether the plaintiff can
attain and afford counsel on his own behalf. Id. (quoting Tabron
v. Grace, 6 F.3d 147, 155-56, 57, n.5 (3d Cir. 1993)).
Plaintiff’s claim under the Federal Tort Claims Act has
some merit. Plaintiff’s complaint and his exhaustion of
administrative remedies show that he has an adequate ability to
represent himself at this early stage of the litigation. The
issues here are not factually or legally complex, the issue is
whether Plaintiff should have been provided surgery for his
hernia sooner. Plaintiff has already obtained copies of his
medical records. The Court will deny Plaintiff’s request for
appointment of counsel without prejudice. As the case
progresses, if it becomes apparent that counsel is needed,
Plaintiff may renew his request.
III. CONCLUSION

14

In the accompanying Order filed herewith, the Court will
grant Plaintiff’s IFP application; dismiss the Bivens claims
against John and Jane Doe, J.T. Shartle, J.L. Norwood and
Harrell Watts with prejudice; dismiss the Bivens claims against
Dr. Morales, Marilyn Angud, Maria Martinez and Satish Limbekar
without prejudice; and allow the FTCA claim to proceed against
the United States of America. The Court will deny Plaintiff’s
application for pro bono counsel without prejudice.

s/Renée Marie Bumb
Renée Marie Bumb
UNITED STATES DISTRICT JUDGE
Dated: November 24, 2015

15