KURTZ v. ATLANTIC COUNTY JUSTICE FACILITY et al

Filing 3

OPINION FILED. Signed by Chief Judge Jerome B. Simandle on 4/20/17. (js)

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

NICHOLAS W. KURTZ,
Plaintiff,

Civil Action
No. 16-4426 (JBS-JS)

v.
ATLANTIC COUNTY JUSTICE
FACILITY; WARDEN GERALDINE D.
COHEN; B.V. ROBINSON,

OPINION

Defendants.

APPEARANCES:
Nicholas W. Kurtz, Plaintiff Pro Se
#241563
Atlantic County Justice Facility
5060 Atlantic Avenue
Mays Landing, New Jersey 08330
SIMANDLE, Chief District Judge:
INTRODUCTION
Before the Court is Plaintiff Nicholas Kurtz’s
(“Plaintiff”), submission of a civil rights complaint pursuant
to 42 U.S.C. § 1983. Complaint, Docket Entry 1. Plaintiff is
currently confined at Atlantic County Justice Facility (“ACJF”),
At this time, the Court must review the complaint pursuant
to 28 U.S.C. §§ 1915(e)(2) and 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 the
complaint will be dismissed.
II. BACKGROUND
Plaintiff filed this complaint against ACJF Warden
Geraldine Cohen and Medical Director Robinson (collectively
“Defendants”). Complaint ¶ 3. 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
truth of Plaintiff’s allegations.
Plaintiff alleges he was injured on June 13, 2016 when he
fell off of the concrete cylinders in ACJF’s recreational yard
on which he was exercising. Id. ¶ 4, pg. 6. Medical staff
examined him on June 17 and referred Plaintiff to Dr. Robinson.
Id. at 6. Dr. Robinson examined Plaintiff on June 29 and
recommended Plaintiff have a MRI of his shoulder. Id. ¶ 4.
Plaintiff filed this complaint on July 5 alleging he has not yet
been scheduled for a MRI.
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
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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 28 U.S.C. §§
1915(e)(2)(b) and 1915A because Plaintiff is a prisoner
proceeding in forma pauperis and is seeking relief from
governmental employees, and under § 1997e because Plaintiff is
bringing claims regarding the conditions of his confinement.
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,1 the complaint must
allege “sufficient factual matter” to show that the claim is

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“The legal standard for dismissing a complaint for failure to
state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) is the
same as that for dismissing a complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6).” Schreane v. Seana, 506 F. App’x
120, 122 (3d Cir. 2012) (citing Allah v. Seiverling, 229 F.3d
220, 223 (3d Cir. 2000)); Mitchell v. Beard, 492 F. App’x 230,
232 (3d Cir. 2012) (discussing 42 U.S.C. § 1997e(c)(1));
Courteau v. United States, 287 F. App’x 159, 162 (3d Cir. 2008)
(discussing 28 U.S.C. § 1915A(b)).
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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).
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)
(following Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also
United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). However,
pro se litigants “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).
B. Section 1983 Actions
A plaintiff may have a cause of action under 42 U.S.C. §
1983 for certain violations of his constitutional rights.
Section 1983 provides in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory ... subjects, or causes to be subjected,
any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress ....
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§ 1983. Thus, to state a claim for relief under § 1983, a
plaintiff must allege, first, the violation of a right secured
by the Constitution or laws of the United States and, second,
that the alleged deprivation was committed or caused by a person
acting under color of state law. See West v. Atkins, 487 U.S.
42, 48 (1988); Malleus v. George, 641 F.3d 560, 563 (3d Cir.
2011).
IV. ANALYSIS
A. Denial of Medical Care
Plaintiff alleges he was denied adequate medical care
because he was not provided a MRI of his shoulder. The Eighth
Amendment proscription against cruel and unusual punishment
requires that prison officials provide inmates with adequate
medical care.2 Estelle v. Gamble, 429 U.S. 97, 103–04 (1976). In
order to set forth a cognizable claim for a violation of his
right to adequate medical care, an inmate must allege: (1) a
serious medical need; and (2) behavior on the part of prison
officials that constitutes deliberate indifference to that need.
Id. at 106.

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It is not clear whether Plaintiff is a pretrial detainee or
convicted prisoner. As the Due Process Clause of the Fourteenth
Amendment is at least as protective as the Eighth Amendment when
considering denial of medical care claims, Edwards v.
Northampton Cty., 663 F. App'x 132, 136 (3d Cir. 2016), the
Court will refer to the Eighth Amendment standard.
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To satisfy the first prong of the Estelle inquiry, the
inmate must demonstrate that his medical needs are serious.
“Because society does not expect that prisoners will have
unqualified access to health care, deliberate indifference to
medical needs amounts to an Eighth Amendment violation only if
those needs are ‘serious.’” Hudson v. McMillian, 503 U.S. 1, 9
(1992). The second element of the Estelle test requires an
inmate show that prison officials acted with deliberate
indifference to his serious medical need. “The hallmark of an
Eighth Amendment violation arises when such medical treatment,
or the withholding of medical treatment, is accompanied by
knowing indifference to the pain or risk of serious injury this
will cause, such as by ‘persistent conduct in the face of
resultant pain and risk of permanent injury.’” Andrews v. Camden
Cnty., 95 F. Supp. 2d 217, 228 (D.N.J. 2000) (quoting White v.
Napoleon, 897 F.2d 103, 109 (3d Cir. 1990)).
Here, Plaintiff has not provided enough facts to support a
reasonable inference of deliberate indifference. According to
the complaint, Dr. Robinson indicated on June 29, 2016 that
Plaintiff should have a MRI. Complaint ¶ 4. Plaintiff submitted
this complaint six days later on July 5. Nothing in the
complaint indicates this “delay” in treatment was the result of
intentional, deliberate indifference to Plaintiff’s medical
needs. Plaintiff’s disagreement with how his treatment is
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progressing does not amount to deliberate indifference. White,
897 F.2d at 110. At best, Plaintiff has alleged a medical
malpractice claim.
Plaintiff’s federal constitutional claim is dismissed
without prejudice. As Plaintiff may be able to allege facts that
would state a deliberate indifference claim and address the
complaint’s deficiencies, he shall be given leave to amend his
complaint.
B. State Law Claims
Plaintiff also raises state law negligence claims against
Warden Cohen and ACJF for “failure to post restrictions in the
recreations [sic] yard . . . .” Complaint at 6. The complaint
could also be construed as raising medical malpractice claims.
As the federal constitutional claim is being dismissed, the
Court declines to exercise supplemental jurisdiction over any
state law claims. 28 U.S.C. § 1367(c)(3).
C. Leave to Amend
As Plaintiff may be able to allege facts that would address
the deficiencies of his claims as noted by the Court, Plaintiff
may move for leave to file an amended complaint. Any motion to
amend the complaint must be accompanied by a proposed amended
complaint.
Plaintiff should note that when an amended complaint is
filed, the original complaint no longer performs any function in
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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.
V.

CONCLUSION
For the reasons stated above, the federal constitutional

claim is dismissed without prejudice. The Court declines to
exercise supplemental jurisdiction over the remaining state law
claims.
An appropriate order follows.

April 20, 2017
Date

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

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