HYMAN v. FEDERAL BUREAU OF PRISONS et al

Filing 11

OPINION. Signed by Judge Renee Marie Bumb on 2/19/2016. (drw)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

Randolph Levy Hyman, Jr.,
Plaintiff,
v.
Michael Melsky, Counselor,
Defendant.

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CIV. ACTION NO. 15-8149(RMB)

OPINION

_______________________________
RENÉE MARIE BUMB, U.S. District Judge
I.

BACKGROUND
Plaintiff, a prisoner in FCI-Fort Dix, in Fort Dix, New Jersey,

filed a civil action under Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971) on November 19, 2015,
seeking an injunction preventing him from being moved to a new room
at FCI-Fort Dix. (ECF No. 1.) After the Court granted Plaintiff’s
IFP application and dismissed his Complaint without prejudice for
failure to state a claim upon which relief may be granted (ECF No.
6), Plaintiff filed an amended motion requesting a temporary,
emergency, medical injunction (ECF No. 10), which this Court
construes as an Amended Complaint and reviews pursuant to 28 U.S.C.
§ 1915(e)(2)(b).
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II.

DISCUSSION
Plaintiff alleged he was diagnosed with depression and severe

anxiety. (ECF No. 10, ¶4.) Plaintiff’s Unit Counselor at FCI Fort
Dix, Michael Melsky, recently informed Plaintiff he would be required
to move to a new room in FCI Fort Dix because he does not qualify
for the first floor room he currently occupies. (Id. at ¶5.) Plaintiff
alleges the move will be harmful to his mental health, and he asks
the Court to prevent Defendant from moving him. (Id. at ¶¶6,7.)
Plaintiff has not alleged facts stating a constitutional
violation. To state a claim of inadequate medical care in violation
of the Eighth Amendment, an inmate must set forth: (1) a serious
medical need; and (2) a prison official's deliberate indifference
to that serious medical need. Estelle v. Gamble, 429 U.S. 97, 106
(1976). Deliberate indifference is a reckless disregard of a known
risk of harm; negligent conduct does not meet the standard. Farmer
v. Brennan, 511 U.S. 825, 836 (1994).
Plaintiff alleged his depression and severe anxiety are a
serious medical need that require treatment. (ECF No. 1, ¶4.) See
Goodrich v. Clinton County Prison, 214 F. App’x 105, 111 (3d Cir.
2007) (a mental illness diagnosed by a psychiatrist as requiring
treatment constitutes a serious medical need.) As this Court noted
in a prior Order, Plaintiff’s allegation that he should remain in

2

a

first

floor

room

due

to

his

mental

illness

constitutes

a

disagreement with Counselor Melsky’s professional judgment that he
does not qualify for such. Disagreement with a professional medical
opinion does not rise to the level of a constitutional violation.
See DeFranco v. Wolf, 387 F. App’x 158-59 (3d Cir. 2010) (where some
medical professionals believed the plaintiff should be prescribed
a

single-cell

and

others

believed

there

was

no

harm

in

double-celling, disagreement among doctors did not rise to the level
of

deliberate

indifference).

Plaintiff

does

not

allege

facts

constituting deliberate indifference to his anxiety and depression.
III. CONCLUSION
Plaintiff has been given several opportunities to amend his
complaint to allege facts that state a plausible claim for relief,
but he has failed to do so. Therefore, for the reasons discussed
above, in the accompanying Order filed herewith, the Court will
dismiss Plaintiff’s Amended Complaint (ECF No. 10) with prejudice
for failure to state a claim upon which relief may be granted.

s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
Dated: February 19, 2016

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