BULLOCK v. COHEN et al

Filing 6

OPINION. Signed by Judge Noel L. Hillman on 1/8/2018. (dmr)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
:
:
:
Plaintiff,
:
:
v.
:
:
WARDEN GERALDINE COHEN, et al.,
:
:
Defendants.
:
___________________________________:
THOMAS L. BULLOCK,

Civ. No. 16-8067(NLH)(KMW)
OPINION

APPEARANCES:
Thomas L. Bullock
524 E. Pine Street
Millville, NJ 08330
Plaintiff Pro se

HILLMAN, District Judge
Plaintiff Thomas L. Bullock (“Plaintiff”) seeks to bring a
civil rights complaint pursuant to 42 U.S.C. § 1983.
1.)

(ECF No.

Based on his affidavit of indigence (ECF No. 1-2), the

Court previously granted Plaintiff leave to proceed in forma
pauperis and ordered the Clerk of the Court to file the
Complaint.

(ECF No. 2.)

At this time, the Court must review the Complaint, pursuant
to 28 U.S.C. § 1915(e)(2), 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 should be dismissed without prejudice.
I. BACKGROUND
Plaintiff brings this civil rights action, pursuant to 42
U.S.C. § 1983, against the following Defendants: (1) Geraldine
Cohen, Warden of Atlantic County Justice Facility (“ACJF”); (2)
CFG, which this Court understands to be CFG Health Systems LLC,
a for-profit limited liability company which has contracted with
ACJF to provide medical services to ACJF inmates; (3) Cheryl
DeBoise, a CFG supervisor working on-site at ACJF; (4) off-site
physician Dr. Lawre Ognibene; (5) Atlantic County Freeholders of
the State of New Jersey; (6) Atlantic County Freeholder Frank
Formica; and (7) Atlantic County Executive Dennis Levinson.
The following factual allegations are taken from the
Complaint, and are accepted for purposes of this screening only.
The Court makes no findings as to the veracity of Plaintiff’s
allegations.
In the Complaint, Plaintiff alleges that he has been
detained at ACJF for over 17 months. 1

(Compl. ¶ 4, ECF No. 1.)

Plaintiff complained about stomach issues for approximately 9 to

1

On June 23, 2017, the Court received a letter from Plaintiff
requesting that all correspondence from the Court in this matter
be sent to the Millville, New Jersey address listed above. (See
ECF No. 5.) It therefore appears that Plaintiff may no longer
be detained at ACJF.
2

10 months.

(Id.)

Plaintiff’s pleading does not provide any

additional details about when, how, and to whom he made these
complaints. 2

(See, generally, Compl.)

Plaintiff was informed

that he was scheduled to receive a colonoscopy in April 2016.
(Id. at ¶ 4.)

Plaintiff does not provide any specific details

about when, how, and from whom he learned that he was scheduled
for this procedure, nor does he set forth any specific medical
diagnosis which warranted the scheduling of this procedure.
(See, generally, id.)

It is also unclear why the procedure did

not go forward as scheduled.

(Id.)

On September 6, 2016, Plaintiff made an emergency medical
request to Warden Cohen and Cheryl DeBoise.

(Compl. at ¶ 4.)

On September 9, 2016, Plaintiff was transferred from ACJF to an
off-site medical center where Dr. Lawre Ognibene performed a
colonoscopy on Plaintiff.

(Id.)

During that procedure, Dr.

Ognibene also removed a newly-discovered growth from Plaintiff.
(Id.)

Dr. Ognibene removed this growth while Plaintiff was

anesthetized and did so without first discussing the same with
Plaintiff.

(Id.)

On September 15, 2016, an unnamed ACJF facility doctor
advised Plaintiff of the events which transpired while Plaintiff

2

Plaintiff does, however, generally allege that Defendant
Cheryl DeBoise provided “no response to several medical issues
directed to her.” (Compl. at Attached Sheet, ECF No. 1-1 at p.
3.)
3

was anesthetized.

(Id.)

Plaintiff continues to “experience

difficulties and pain” as a result of the foregoing. 3

(Id.)

Other than specifically alleging that Plaintiff directed
his September 6, 2016 emergency medical request to, inter alia,
Warden Cohen, Plaintiff’s claims against Warden Cohen are not
based on any direct interactions Plaintiff had with that
defendant; they instead arise from Warden Cohen’s supervisory
responsibilities at ACJF to “make sure all inmates get proper
[medical] care.”

(See Compl. ¶ 3; accord id. (“[Warden Cohen]

allows POD officers to determine inmate’s medical issues”).)
Plaintiff’s claims against Atlantic County Executive Dennis
Levinson similarly arise out of his supervisory responsibilities
as the executive of Atlantic County; Plaintiff does not make any
specific factual allegations against Defendant Levinson.

(See

Compl. at Attached Sheet.)
Likewise, Plaintiff’s claims against the Atlantic County
Freeholders and its chairman, Frank Formica (collectively, the
“Freeholder Defendants”), appear to stem from the Freeholders
Defendants’ role as the governing body of Atlantic County;
again, Plaintiff fails to allege any specific actions undertaken
by the Freeholder Defendants which have caused him harm.

3

(Id.)

Although Plaintiff’s Complaint refers to his “inmate
medical record for additional information”, (see Compl. at ¶ 4),
that document does not appear to have been appended to his
pleading.
4

Finally, while Plaintiff lists ACJF’s third-party medical
provider, CFG, as a defendant in the caption of his pleading, he
fails to make any specific factual allegations against that
entity.

(See, generally, Compl.)

Plaintiff requests an award of $5,000,000.00 in monetary
damages based on defendants’ “failure to diagnose, misdiagnose,
pain, suffering, anxiety, stress, and un-reasonable delay in
getting medical attention.” 4

(Id. at ¶ 5.)

II. DISCUSSION
A. Legal Standard
1. Standards for a Sua Sponte Dismissal
District courts must review complaints in those civil
actions in which a person is proceeding in forma pauperis.
28 U.S.C. § 1915(e)(2)(B).

See

This statute 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.

Id.

This action is subject to sua sponte screening for

dismissal under 28 U.S.C. §§ 1915(e)(2)(B) because Plaintiff is
proceeding as indigent.

4

The Court deems Plaintiff’s additional request for “a second
opinion on the finding of Dr. Ognibene Lawre and the cause for
surgery”, (see Compl. at ¶ 5), as being related to and
derivative of Plaintiff’s failure to diagnose and misdiagnose
claims.
5

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, 5 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.”

Belmont v. MB

Inv. Partners, Inc., 708 F.3d 470, 483 n.17 (3d Cir. 2012)
(quoting Iqbal, 556 U.S. at 678).
Moreover, while pro se pleadings are liberally construed,
“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).
2.

Section 1983 Actions
A plaintiff may have a cause of action under 42 U.S.C. §

5

“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)).
6

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 . . . .
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).
In light of the factual allegations detailed supra, this
Court deems Plaintiff’s Complaint as attempting to assert a
Section 1983 denial of adequate medical care claim.

For the

reasons detailed infra, Plaintiff’s Complaint will be dismissed
without prejudice for failure to state a claim.
B. Analysis
The Eighth Amendment prohibits the states from inflicting
“cruel and unusual punishments” on those convicted of crimes.
Rhodes v. Chapman, 452 U.S. 337, 344–46 (1981).

This

proscription against cruel and unusual punishment requires that
prison officials provide inmates with adequate medical care.

7

Estelle v. Gamble, 429 U.S. 97, 103–04 (1976).

Pre-trial

detainees also have a constitutional right to receive adequate
medical care; this right, however, is grounded in the due
process protections the Fourteenth Amendment, as opposed to the
Eighth Amendment. 6

See Natale v. Camden Cty. Corr. Facility, 318

F.3d 575, 581 (3d Cir. 2003).

This Court applies the Eighth

Amendment standard set forth in Estelle, 429 U.S. 97 (1976),
when evaluating a Fourteenth Amendment due process claim for
inadequate medical care by a detainee.

Banda v. Adams, 674 F.

App’x 181, 184 (3d Cir. 2017) (citing Natale, 318 F.3d at 581).
In order to set forth a facially plausible Section 1983
denial of adequate medical care claim, Plaintiff must allege:
(1) a serious medical need; and (2) behavior on the part of
prison officials that constitutes deliberate indifference to
that need.

Estelle, 429 U.S. at 106 (1976).

Serious medical needs which will satisfy the first prong of
Estelle include those that have been diagnosed by a physician as
requiring treatment or that are so obvious that a lay person
would recognize the necessity for a doctor's attention, and
those conditions which, if untreated, would result in lifelong
handicap or permanent loss.

Monmouth Cty. Corr. Inst. Inmates

6

The allegations in Plaintiff’s Complaint suggest – but fail
to expressly confirm – that Plaintiff is a non-convicted pretrial detainee.
8

v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987).
The second element of the Estelle test requires an inmate
to show that prison officials acted with deliberate indifference
to his serious medical need.

“Deliberate indifference” is more

than mere malpractice or negligence; it is a state of mind
equivalent to reckless disregard of a known risk of harm.
Farmer v. Brennan, 511 U.S. 825, 837–38 (1994).
Where prison authorities deny reasonable requests for
medical treatment, however, and such denial exposes the
inmate ‘to undue suffering or the threat of tangible
residual injury,’ deliberate indifference is manifest.
Similarly, where ‘knowledge of the need for medical care
[is accompanied by the] . . . intentional refusal to
provide that care,’ the deliberate indifference standard
has been met. . . . Finally, deliberate indifference is
demonstrated '[w]hen . . . prison authorities prevent an
inmate from receiving recommended treatment for serious
medical needs or deny access to a physician capable of
evaluating the need for such treatment.’
Monmouth Cty. Corr. Inst. Inmates, 834 F.2d at 346 (citations
omitted).
The Third Circuit has found “deliberate indifference” in a
myriad of situations, including:
‘where the prison official (1) knows of a prisoner's
need for medical treatment but intentionally refuses
to provide it; (2) delays necessary medical treatment
based on a non-medical reason; . . . (3) prevents a
prisoner from receiving needed or recommended medical
treatment;’ and (4) ‘where the prison official
persists in a particular course of treatment in the
face of resultant pain and risk of permanent injury.’
McCluskey v. Vincent, 505 F. App’x 199, 202 (2012) (citations
omitted).

9

It also, however, remains “well-settled that claims of
negligence or medical malpractice, without some more culpable
state of mind, do not constitute ‘deliberate indifference.’”
McCluskey, 505 F. App’x at 202 (citing Rouse v. Plantier, 182
F.3d 192, 197 (3d Cir. 1999).

Accord Andrews v. Camden Cty., 95

F. Supp. 2d 217, 228 (D.N.J. 2000) (citing White v. Napoleon,
897 F.2d 103, 110 (3d Cir. 1990) (“Even if a doctor's judgment
concerning the proper course of a prisoner's treatment
ultimately is shown to be mistaken, at most what would be proved
is medical malpractice and not an Eighth Amendment violation
unless deliberate indifference be shown.”).
Moreover, ”a prisoner's subjective dissatisfaction with his
medical care does not in itself indicate deliberate
indifference.”

Andrews, 95 F. Supp. 2d at 228 (D.N.J. 2000).

Similarly, “mere disagreements over medical judgment do not
state Eighth Amendment claims.”

White, 897 F.2d at 110 (3d Cir.

1990).
Taking the allegations of the Complaint as true, it is
clear that Plaintiff has pled sufficient facts to show that he
had a serious medical need as of September 2016.

Indeed,

Plaintiff specifically claims that he made an emergency medical
complaint to Sheryl DeBoise and Warden Cohen on September 6,
2016, and that as of September 9, 2016, i.e., within three days,
Plaintiff had been sent off-site from ACJF and undergone

10

surgery.

(Compl. at ¶ 4.)

Plaintiff further notes that on

September 15, 2016, ACJF’s on-site physician followed-up with
Plaintiff about his September 9th medical procedure.

(Id.)

The foregoing facts, however, in no way suggest that any
defendant acted with constitutionally actionable “deliberate
indifference” to Plaintiff’s September 2016 request for
emergency medical treatment, i.e., that defendants knew of
Plaintiff’s need for medical treatment but intentionally refused
to provide it, or delayed necessary treatment for non-medical
reasons, or prevented Plaintiff from receiving needed or
recommended treatment, or persisted in a particular course of
treatment in the face of resultant pain or risk of permanent
injury.

McCluskey v. Vincent, 505 F. App’x 199, 202 (3d Cir.

1999); Pierce v. Pitkins, 520 F. App’x 64, 66 (3d Cir. 2013)
(listing factual scenarios in which the Third Circuit found
deliberate indifference).
Similarly, Plaintiff’s Complaint suggests that Dr.
Ognibene’s removal of a growth from Plaintiff’s body was
medically “necessary”, (see Compl. at ¶ 4), and was done based
solely on reasons of sound medical judgment, notwithstanding
that that this growth was removed while Plaintiff was
anesthetized and without Dr. Ognibene receiving Plaintiff’s
prior consent to remove that growth; there are no facts alleged
by Plaintiff which in any way suggest Dr. Ognibene’s actions on

11

September 9, 2016 were undertaken with constitutionally
actionable “deliberate indifference” to Plaintiff.

As such,

these factual allegations in no way support a cognizable Section
1983 claim.

See, e.g., Rouse v. Plantier, 182 F.3d 192, 197 (3d

Cir. 1999) (“claims of negligence or medical malpractice,
without some more culpable state of mind, do not constitute
‘deliberate indifference.’”).
In short, the facts alleged in Plaintiff’s Complaint fail
to show how any defendant acted with deliberate indifference to
Plaintiff’s serious medical needs in September 2016 (emphasis
added); these facts instead suggest that ACJF officials acted
appropriately and promptly in response to Plaintiff’s September
6, 2016 request for urgent medical care.

As such, the above-

referenced facts do not support a facially plausible Section
1983 claim under Estelle.
And while it appears that Plaintiff may be able to plead
additional facts and information which would suggest that he was
deprived of his constitutional right to receive adequate medical
care during his confinement at ACJF in the months leading up to
his September 2016 surgery, Plaintiff’s vague assertions in his
current pleading that he complained about stomach issues for
approximately 9 to 10 months to unspecified individuals on
unspecified dates and that he was scheduled to undergo a

12

colonoscopy in April 2016 are insufficient to support a facially
plausible Section 1983 claim under Estelle.
In sum, Plaintiff’s Complaint, as pled, fails to allege
sufficient facts demonstrating that the medical treatment he
received while confined at ACJF was constitutionally inadequate. 7

7

Even if Plaintiff alleged sufficient facts to support a
facially plausible Section 1983 claim against some of the
defendants named in this lawsuit – and he has not – the Court
would still dismiss Plaintiff’s Complaint against those
defendants who are not alleged to have any personal involvement
with Plaintiff’s medical care at ACJF, and who instead appear to
have been named as defendants solely based of their general
supervisory responsibilities over ACJF, i.e., the Atlantic
County Freeholders of the State of New Jersey, Atlantic County
Freeholder Frank Formica, Atlantic County Executive Dennis
Levinson, and CFG. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (“a
plaintiff must plead that each Government official defendant,
through the official’s own individual actions, has violated the
Constitution.”).
Indeed, as a general matter, “[g]overnment officials may
not be held liable for the unconstitutional conduct of their
subordinates under a theory of respondeat superior.” Id. The
Court notes that “a supervisor may [nonetheless] be personally
liable . . . if he or she participated in violating the
plaintiff’s rights, directed others to violate them, or, as the
person in charge, had knowledge of and acquiesced in his
subordinates’ violations.” Santiago v. Warminster Tp., 629 F.3d
121, 129 (3d Cir. 2010) (quoting A.M. ex rel. J.M.K. v. Luzerne
Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)).
The Court also recognizes that a supervisor may be liable
for an Eighth Amendment [or Fourteenth Amendment] violation if
the plaintiff “identif[ies] a supervisory policy or procedure
that the supervisor defendant failed to implement, and proves
that: (1) the policy or procedures in effect at the time of the
alleged injury created an unreasonable risk of a constitutional
violation; (2) the defendant-official was aware that the policy
created an unreasonable risk; (3) the defendant was indifferent
to that risk; and (4) the constitutional injury was caused by
the failure to implement the supervisory procedure.” Barkes v.
First Correctional Medical, Inc., 766 F.3d 307, 316 (3d Cir.
13

As such, Plaintiff has failed to state any federal claim for
relief.
Any remaining potential basis for this Court to consider
Plaintiff’s state law claims lies within the Court’s
supplemental jurisdiction pursuant to 28 U.S.C. § 1367.
However, when a court has dismissed all claims over which it had
federal question jurisdiction, it has the discretion to decline
to exercise supplemental jurisdiction over the remaining state
law claims.

See id. at § 1367(c)(3).

This Court will exercise

its discretion to decline supplemental jurisdiction over the

2015), rev’d on other grounds sub nom. Taylor v. Barkes, 135 S.
Ct. 2042 (2017).
Here, it clear that Plaintiff has not alleged any facts
that support a finding of supervisory liability against the
Atlantic County Freeholders of the State of New Jersey, Atlantic
County Freeholder Frank Formica, Atlantic County Executive
Dennis Levinson, and CFG. There are no factual claims which
even remotely suggest that any of these defendants should be
held liable for the unconstitutional acts committed by their
subordinates or for implementing policies and procedures which
violated Plaintiff’s constitutional rights. Indeed, Plaintiff’s
Complaint altogether fails to allege facts which suggest that
the medical care he received at ACJF was constitutionally
inadequate.
As such, this Court would still dismiss Plaintiff’s
Complaint as against the State of New Jersey, Atlantic County
Freeholder Frank Formica, Atlantic County Executive Dennis
Levinson, and CFG.
For substantially similar reasons, the Court would also
dismiss Plaintiff’s Complaint against Warden Cohen to the extent
Plaintiff’s claims against that defendant arise out Warden
Cohen’s alleged failure to properly supervise ACJF medical
personnel.

14

state law claims Plaintiff appears to be pursuing in his
Complaint.
III. CONCLUSION
For the foregoing reasons, Plaintiff’s Complaint will be
dismissed without prejudice as Plaintiff fails to state a
federal claim for relief and this Court declines to exercise
supplemental jurisdiction over Plaintiff’s state law claims.
Because it is conceivable that Plaintiff may be able to
supplement his pleading with facts sufficient to overcome the
deficiencies noted herein, Plaintiff shall be given the
opportunity to file a proposed amended complaint should he elect
to do so that shall also be subject to screening. 8

An

appropriate Order follows.

Dated: January 8, 2018
At Camden, New Jersey

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

8

Plaintiff should note that when an amended complaint is filed,
it supersedes the original and renders it of no legal effect,
unless the amended complaint specifically refers to or adopts
the earlier pleading. See West Run Student Housing Associates,
LLC v. Huntington National Bank, 712 F.3d 165, 171 (3d Cir.
2013)(collecting cases); see also 6 Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure § 1476 (3d ed. 2008).
To avoid confusion, the safer practice is to submit an amended
complaint that is complete in itself. Wright & Miller, supra,
at § 1476.
15