WASHINGTON v. THOMAS et al

Filing 12

OPINION. Signed by Chief Judge Jerome B. Simandle on 1/4/2017. (tf, n.m.)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

ANDRE T. WASHINGTON,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
Civil Action
No. 16-0992 (JBS-AMD)

v.
JEFF THOMAS, R.N.; DR.
NICOLETTA TURNER-FOSTER,

OPINION

Defendants.

APPEARANCES:
Andre T. Washington, Plaintiff Pro Se
18664 Joann Street
Detroit, MI 48205
SIMANDLE, Chief Judge:
INTRODUCTION
Before the Court is Plaintiff Andre T. Washington’s
(“Plaintiff”), submission of a civil rights complaint pursuant
to Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971), Docket Entry 1. At this time,
the Court must review the complaint, pursuant to 28 U.S.C. §
1915A 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 shall proceed in part.

II. BACKGROUND
Plaintiff brings this civil rights action against Nurse
Jeff Thomas and Dr. Nicoletta Turner-Foster, medical personnel
at FCI Fort Dix, New Jersey. 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.
At the time Plaintiff filed the complaint, he was a
convicted and sentenced federal prisoner confined at Fort Dix.1
Plaintiff states he submitted a request for medical attention
for his large toes on both feet on October 4, 2014. Complaint at
5. Nurse Thomas examined the toes and informed Plaintiff they
were not infected. Id. According to the complaint, “[t]his
medical encounter was not entered into the system to update
[Plaintiff’s] file[] to [receive] a[n] appointment to be
treated.” Id. Plaintiff requested another medical appointment on
November 10, 2014, but “this encounter was not entered in the
system to [receive] a[n] appointment, this was also done with RN
Jeff Thomas.” Id. at 5-6.
Plaintiff saw Nurse Thomas again on November 13, 2014, at
which time he received Band-Aids for his toes. Id. at 6. Nurse

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Plaintiff informed the Court that he will be released from
custody on January 11, 2017. Notice of Change of Address, Docket
Entry 11.
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Thomas again told Plaintiff his toes were not infected and again
did not include this appointment in Plaintiff’s medical file.
Id.
Plaintiff returned to medical on January 16, 2015 as his
blisters were causing “severe pain and yellowish, greenish
fluid” was discharging from his right foot. Id. Once again,
Nurse Thomas told Plaintiff his toes were not infected and did
not provide any medication or treatment to Plaintiff other than
instructing Plaintiff to purchase antibiotic ointment and
Ibuprofen from the commissary. Id. This visit also was not
included in Plaintiff’s medical files. Id. On January 20, 2015,
Plaintiff returned to medical and was seen by a different
medical professional. He was thereafter transferred to Robert
Wood Johnson University Hospital. Id. The hospital determined
that Plaintiff’s right metatarsal bone was infected and had to
be amputated along with his big toe. Id. The amputation occurred
on February 22, 2015. Id. Plaintiff returned to Fort Dix on
April 5, 2015. Id.
Upon his return to Fort Dix, Plaintiff requested a
wheelchair as his wound was still “open.” Id. Dr. Turner-Foster
denied the request. Id. A nurse later made another request for a
wheelchair, but Dr. Turner-Foster denied that request as well.
Id. “As a result the wound bled for 3 ½ months causing the
prolonged pain and suffering from the 1 ½ mile walk to the
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dining hall. Also request Physical Therapy and was told the best
therapy was to walk on it.” Id.
This complaint followed in February 2016.
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. The
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 §§ 1915, 1915A, and
1997e because Plaintiff is a prisoner proceeding in forma
pauperis seeking redress from a government official regarding
the conditions of his confinement.
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)

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(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,2 the complaint must
allege “sufficient factual matter” to show that the claim is
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, they “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).

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“[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)).
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B. Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics
In Bivens, the Supreme Court created a federal counterpart
to the remedy created in 42 U.S.C. § 1983. See Egervary v.
Young, 366 F.3d 238, 246 (3d Cir. 2004) (“Bivens actions are
simply the federal counterpart to § 1983 claims brought against
state officials”), cert. denied, 543 U.S. 1049 (2005). In order
to state a claim under Bivens, a plaintiff must allege: (1) a
deprivation of a right secured by the Constitution and laws of
the United States; and (2) that the deprivation of the right was
caused by a person acting under color of federal law. See Couden
v. Duffy, 446 F.3d 483, 491 (3d Cir. 2006); see also Collins v.
F.B.I., Civ. No. 10–3470, 2011 WL 1627025, at *6 (D.N.J. Apr.
28, 2011) (“The Third Circuit has recognized that Bivens actions
are simply the federal counterpart to § 1983 claims brought
against state officials and thus the analysis established under
one type of claim is applicable under the other.”).
IV. ANALYSIS
Plaintiff alleges Nurse Thomas and Dr. Turner-Foster
violated the Eighth Amendment’s proscription against cruel and
unusual punishment by denying him adequate medical care. In
order to set forth a cognizable claim for a violation of the
right to adequate medical care, an inmate must allege: (1) a
serious medical need; and (2) behavior on the part of prison

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officials that constitutes deliberate indifference to that need.
Estelle v. Gamble, 429 U.S. 97, 106 (1976).
Accepting the factual allegations in the complaint as true
and giving Plaintiff the benefit of all reasonable inferences,
he has sufficiently pled an Eighth Amendment violation by Nurse
Thomas. Plaintiff alleges Nurse Thomas examined his visibly
infected toes on four occasions, failed to provide any
treatment, and failed to document Plaintiff’s visits. As a
result, the infection spread and ultimately necessitated the
amputation of portion of Plaintiff’s right foot. Based on the
facts provided in the complaint and assuming their truth for
screening purposes only, it is reasonable to infer for screening
purposes that Nurse Thomas was indifferent to Plaintiff’s
infection.
Plaintiff has not sufficiently pled an Eighth Amendment
violation by Dr. Turner-Foster, however. According to the
complaint, Dr. Turner-Foster denied Plaintiff’s request for a
wheelchair and physical therapy. Complaint at 7. He further
states he was not given a wheelchair until a physician’s
assistant ordered one for him in July 2015, and that Dr. TurnerFoster told him that “‘the best physical therapy is to walk on
it.’” Id. at 7-8. “[D]isagreements over medical judgment do not
amount to an Eighth Amendment claim. Courts defer to prison
doctors' professional judgment, which will be presumed valid
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‘unless it is such a substantial departure from professional
judgment, practice or standards as to demonstrate that the
doctor did not base the decision on such a judgment.’” SotoMuniz v. Martin, No. 15-1874, 2016 WL 7157996, at *2 (3d Cir.
Dec. 8, 2016) (quoting White v. Napoleon, 897 F.2d 103, 110, 113
(3d Cir. 1990)).
Here, there is nothing in the complaint that suggests
anything other than Plaintiff disagrees with Dr. Turner-Foster’s
decisions. In the absence of further facts, the fact that a
physician’s assistant later ordered a wheelchair to assist with
healing is insufficient to state a deliberate indifference claim
as “mere disagreements of professional opinion do not amount to
deliberate indifference.” Id. at *3. There is nothing in the
complaint that reasonably suggests Dr. Turner-Foster refused to
provide necessary medical treatment out of indifference to
Plaintiff’s needs as the complaint only indicates she denied
requests for a wheelchair and believed walking was sufficient
physical therapy. As Plaintiff may be able to provide facts that
would support a deliberate indifference claim, however, his
claim against Dr. Turner-Foster is dismissed without prejudice.3

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The Court declines to construe the claim against Dr. TurnerFoster as a negligence claim against the United States under the
Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671–
2680, as Plaintiff has not submitted the required notice of tort
claim form that is a pleading requirement under the FTCA. 28
U.S.C. § 2675(b).
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Plaintiff may move to amend his complaint to address the
deficiencies noted by the Court.4
Plaintiff also requests the appointment of pro bono
counsel. Appointment of counsel is a privilege, not a statutory
or constitutional right. Brightwell v. Lehman, 637 F.3d 187, 192
(3d Cir. 2011). Courts, in deciding whether to appoint pro bono
counsel, first must consider whether plaintiff's claim “has some
merit in fact and law.” Tabron v. Grace, 6 F.3d 147, 155 (3d
Cir. 1993) (quotation omitted). If the court finds that it does,
the court should consider the following factors:
(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;

4

Plaintiff should note that when an amended complaint is filed,
the original complaint no longer performs any function in the
case and cannot be utilized to cure defects in the amended
complaint unless the relevant portion is specifically
incorporated in the new complaint. 6 Wright, Miller & Kane,
Federal Practice and Procedure 1476 (2d ed. 1990) (footnotes
omitted). An amended complaint may adopt some or all of the
allegations in the original complaint, but the identification of
the particular allegations to be adopted must be clear and
explicit. Id. To avoid confusion, the safer course is to file an
amended complaint that is complete in itself. Id.
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(6) whether the plaintiff can attain and afford counsel
on his own behalf.

Parham v. Johnson, 126 F.3d 454, 457 (3d Cir. 1997) (citing
Tabron, 6 F.3d at 155–56, 157 n.5). This list of factors is not
exhaustive, nor is a single factor determinative. Id. at 458. As
the Court has permitted Plaintiff’s complaint to proceed in
part, there is sufficient merit to continue analyzing the Tabron
factors.
Plaintiff states the appointment of counsel is warranted
because he is unable to “attain and afford counsel” and “lacks
the understanding of the rules of the laws to present an
adequate case to the Court.” Motion for Counsel ¶ 3. He further
indicates he is “unable to pursue a[n] investigation to
[retrieve] the necessary proofs for the case.” Id. Plaintiff has
pled sufficient facts to withstand summary dismissal, indicating
he is able to present the issues to the Court. Additionally, he
will shortly be released from custody, enabling him to seek out
the services of an attorney on his own and to otherwise fully
participate in the litigation and investigation. Based on the
face of the complaint, it does not appear the issues are overly
complex. The Court therefore finds that the appointment of
counsel is not warranted at this time; Plaintiff may submit a
new motion for the appointment of counsel in the future.

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V.

CONCLUSION
For the reasons stated above, Plaintiff’s Eighth Amendment

claim against Nurse Thomas shall proceed at this time. The
Eighth Amendment claim against Dr. Turner-Foster is dismissed
without prejudice at this time for failure to state a claim upon
which relief may be granted. 28 U.S.C. § 1915A(b)(1).
An appropriate order follows.

January 4, 2017
Date

s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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