HUGHES v. TAYLOR et al

Filing 2

OPINION. Signed by Judge Renee Marie Bumb on 2/22/2017. (rtm, )

NOT FOR PUBLICATION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

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Plaintiff,
v.
WARDEN TAYLOR, et al,
Defendants.

CIV. NO. 16-8660 (RMB)

OPINION

RENÉE MARIE BUMB, U.S. District Judge
This matter comes before the Court upon Plaintiff’s submission
of a civil rights complaint under 42 U.S.C. § 1983, and his
application to proceed in forma pauperis. (Compl., ECF No. 1; IFP
App., ECF No. 1-1.) Plaintiff is either a pretrial detainee or a
convicted prisoner confined in Camden County Correctional Facility.
(Id. at 2, ¶1(b)).1
I.

IFP APPLICATION
28 U.S.C. § 1915(a) provides that a prisoner seeking to bring

a civil action without prepayment of fees shall submit an affidavit
indicating the person is unable to pay such fees, and shall also
1

If Plaintiff files an amended complaint, he should indicate whether
he was a pretrial detainee or a convicted and sentenced prisoner at
the time of his injury on November 14, 2016. This will govern whether
his § 1983 claims arise under the Fourteenth or the Eighth Amendment
of the U.S. Constitution.
1

“submit a certified copy of the trust fund account statement for the
prisoner for the 6-month period immediately preceding the filing of
the complaint . . . obtained from the appropriate official of each
prison at which the prisoner is or was confined.” Plaintiff’s IFP
application does not contain a certified copy of his six-month trust
fund account statement.

(IFP App., ECF No. 1-1 at 3.)

Plaintiff

wrote, “[f]acility refuses to provide copy. They say that ‘they will
not help me sue them.’ Please order that they turn over my 6-month
account statement per 28 U.S.C. § 1915.” (Id.)
To excuse the statutory requirement of providing a certified
copy of the prisoner’s trust account statement, Plaintiff must file
an affidavit stating from whom he requested the account statement,
when he requested it, and the response he received. See Massaro v.
Balicki, Civ. No. 13–6958 (NLH), 2015 WL 3545233 at *1 (D.N.J. June
8, 2015) (requiring affidavit of prisoner describing steps taken to
obtain certified trust account statement). The Court will deny
Plaintiff’s IFP application without prejudice, subject to reopening
if he files the requisite affidavit or a certified copy of this trust
account statement.
II.

SCREENING PURSUANT TO 28 U.S.C. § 1915(e)(2)(b) and § 1915A

2

The Court is required to review a prisoner’s civil rights
complaint under 28 U.S.C. § 1915(e)(2)(b) and § 1915A.2

The Court

must dismiss any claims that are: (1) frivolous or malicious; (2)
fail to state a claim on which relief may be granted; or (3) seek
monetary relief against a defendant who is immune from such relief.
28 U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A.
III. DISCUSSION
A.

The Complaint

Plaintiff named the following defendants in his complaint:
Warden Taylor of the Camden County Correctional Facility (“CCCF”);
Cheryl Esposito, Regional Director of CFG Health Services, Inc. (as
an employee of the medical contract provider for CCCF); John Doe,
Chief Physician at CCCF, employed by CFG Health Services, Inc.; K.
Bohnberger, nurse at CCCF employed by CFG Health Services, Inc.;
Camden County Department of Corrections, John Does 1-10, and Jane
Does 1-10. (Compl., ECF No. 1, ¶4.) Plaintiff stated that he exhausted
the administrative remedies for his § 1983 claims and complied with
the requirements of the New Jersey Tort Claims Act.

2

(Id., ¶5.)

This Court’s conclusive screening of Plaintiff’s claims is reserved
until he pays the filing fee or properly obtains in forma pauperis
status. See Izquierdo v. New Jersey, 532 F. App’x 71, 72-73 (3d Cir.
July 25, 2013) (district court may decide whether to dismiss the
complaint under 28 U.S.C. § 1915(e)(2) after leave to proceed IFP
is granted).
3

Plaintiff alleged the following facts in support of his claims
under 42 U.S.C. § 1983 and the New Jersey Tort Claims Act. (Id., ¶6.)
On November 14, 2016, while performing his work assignment as a hot
water runner at CCCF, a hot water jug malfunctioned and hot water
splashed on Plaintiff’s feet, causing second-degree burns.

One hour

after being injured, Plaintiff was sent to the medical department
at CCCF, where he asked Nurse K. Bohnberger to have him transported
to an outside hospital. Bohnberger refused his request. She treated
him with ointment, wrapped the burn in gauze, prescribed Motrin, and
gave Plaintiff an excuse from work for two days.
Plaintiff complained to CCCF’s chief physician [named as a John
Doe] and to Warden Taylor that Bohnberger had denied his request for
outside medical treatment, and his injury was causing unbearable pain
and difficulty walking. Plaintiff also informed Cheryl Esposito, the
Regional Director for CFG Health Services, Inc., that he needed
outside medical treatment. These requests were ignored. Plaintiff
was forced to work in his job3 as a hot water runner after suffering
second-degree burns. Plaintiff seeks monetary and injunctive relief.
(Compl., ECF No. 1, ¶7.)
B.

Standard of Review

3

Plaintiff does not allege who forced him to continue working or
when.
4

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 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

5

Cir. 2002). A court must liberally construe a pro se complaint.
Erickson v. Pardus, 551 U.S. 89, 94 (2007).
C.

Claims Under 42 U.S.C. § 1983

42 U.S.C. § 1983 provides in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any
State ... 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.
“[A] plaintiff seeking to hold an individual liable under § 1983 must
establish that she was deprived of a federal constitutional or
statutory right by a state actor.” Kach v. Hose, 589 F.3d 626, 646
(3d. Cir. 2009).
Assuming Plaintiff was a convicted and sentenced prisoner at
the time his claims arose, his § 1983 claims concerning his medical
treatment arise under the Eighth Amendment.4 The Eighth Amendment’s
prohibition against cruel and unusual punishment requires that
inmates are provided adequate medical care. Estelle v. Gamble, 429
U.S. 97, 103-05 (1976); Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.
4

If Plaintiff was a pretrial detainee at the time his § 1983 claims
for inadequate medical care arose, his claims fall under the Due
Process Clause of the Fourteenth Amendment. Inmates of Allegheny
County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979).
6

1999). 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, 429 U.S. at 106. A serious
medical need includes a need for which “denial of treatment would
result in the unnecessary and wanton infliction of pain” or a
“life-long handicap or permanent loss.” Atkinson v. Taylor, 316 F.3d
257, 273 (3d Cir. 2003) (internal quotations and citations omitted).
The second element of the Estelle test is subjective and
requires an inmate to show that a prison official acted with
deliberate indifference to a serious medical need. Natale v. Camden
County Correctional Facility, 318 F.3d 575, 582 (3d Cir. 2003).
Conduct that constitutes malpractice or negligence does not rise to
the level of deliberate indifference; deliberate indifference is a
reckless disregard of a known risk of harm. Farmer v. Brennan, 511
U.S. 825, 836 (1994). Courts will not second guess “the adequacy a
particular course of treatment” in the exercise of sound professional
judgment. Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754,
762 (3d Cir. 1979) (quoting Bowring v. Godwin, 551 F.2d 44, 48 (4th
Cir. 1977)).
A non-physician defendant is not deliberately indifferent to
a prisoner’s serious medical needs in violation of the Eighth

7

Amendment if she fails to respond to an inmate’s administrative
complaint regarding medical treatment while the inmate is already
receiving treatment by the prison doctor. Durmer, 991 F.2d at 69.
“Once

a

prison

grievance

examiner

becomes

aware

of

possible

mistreatment, the Eighth Amendment does not require him or her to
do more than ̔review[ ] ... [the prisoner's] complaints and verif[y]
with the medical officials that [the prisoner] was receiving
treatment.’” Glenn v. Barua, 252 F. App’x 493, 498 (3d Cir. 2007)
(quoting Greeno v. Daley, 414 F.3d 645, 655–56 (7th Cir. 2005))
(citing Spruill, 372 F.3d at 236).
1.

Nurse Bohnberger

Plaintiff alleged Nurse Bohnberger placed ointment on his burn,
wrapped it in gauze, and prescribed Motrin.

She did not prescribe

antibiotics and refused to send him to a medical facility outside
the CCCF for additional treatment. A prisoner is not entitled to the
medical treatment of his choice. See Reed v. Cameron, 380 F. App’x
160, 162 (3d Cir. 2010) (dissatisfaction with prison medical care
is insufficient to show deliberate indifference) (citing Monmouth
County Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir.
1987)). Plaintiff’s claim against Nurse Bohnberger, at best, rises
to the level of a malpractice claim. The claim would not survive
screening under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A.

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2.

Warden Taylor

Plaintiff alleged he filed a grievance with Warden Taylor when
Nurse Bohnberger treated his burn and refused to send him to an
outside medical facility for additional treatment.

The warden

ignored his grievance. A non-physician defendant is not deliberately
indifferent to a prisoner’s serious medical needs in violation of
the Eighth Amendment if she fails to respond to an inmate’s
administrative complaint regarding medical treatment while the
inmate is already receiving treatment by the prison doctor. Durmer
v. O’Caroll, 991 F.2d 64, 69 (3d Cir. 1993). “Once a prison grievance
examiner

becomes

aware

of

possible

mistreatment,

the

Eighth

Amendment does not require him or her to do more than ̔review[ ] ...
[the prisoner's] complaints and verif[y] with the medical officials
that [the prisoner] was receiving treatment.’” Glenn v. Barua, 252
F. App’x 493, 498 (3d Cir. 2007) (quoting Greeno v. Daley, 414 F.3d
645, 655–56 (7th Cir. 2005)) (citing Spruill, 372 F.3d at 236)).
Plaintiff

further

alleged

that

Warden

Taylor

failed

to

institute a policy “requiring that members of the medical department,
in their individual and official capacities, properly assess and
evaluate the needs of plaintiff, who was seriously injured performing
inmate work duty . . .” A supervisor may be liable under § 1983, in
his or her role as a policymaker, if the supervisor “with deliberate

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indifference to the consequences, established and maintained a
policy,

practice

or

custom

which

directly

caused

[the]

constitutional harm.” A.M. ex rel. J.M.K. v. Luzerne County Juvenile
Detention Center, 372 F.3d 572, 586 (3d Cir. 2004) (alteration in
original) (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d
720, 725 (3d Cir. 1989)). The claim must be supported by factual
allegations that the policy [or lack of policy alleged here], caused
the Plaintiff’s injuries. Id. Plaintiff’s claim fails to allege facts
showing that the lack of such a policy caused Nurse Bohnberger to
refuse to send Plaintiff to an outside medical facility. Nurse
Bohnberger may well have believed she had properly assessed and
evaluated Plaintiff’s medical needs.

The claims against Warden

Taylor for failure to institute a policy for proper assessment and
evaluation of an inmate’s medical needs would not survive screening
under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A.
3.

Chief Physician John Doe

Plaintiff alleged he filed a grievance with the chief physician
at CCCF, complaining that Nurse Bohnberger would not send him to an
outside medical facility for further treatment of his second degree
burn, and he was suffering severe pain. The chief physician ignored
his grievance. Plaintiff seeks to hold the chief physician liable
under

the

Eighth

Amendment

because

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he

or

she

did

not

order

correctional staff to transport Plaintiff to an outside medical
facility.
Like his claim against Nurse Bohnberger, this claim does not
rise to the level of deliberate indifference because the chief
physician was aware Plaintiff received treatment for his injury. See
Diaz v. Warden Lewisburg USP, (prisoner failed to state an Eighth
Amendment claim against Health Services Director who, at most,
received letters from the prisoner expressing disagreement with his
medical care). Plaintiff’s § 1983 claim against the chief physician
at CCCF would not survive screening under 28 U.S.C. §§ 1915(e)(2)(B)
and 1915A.
4.

Cheryl Esposito, Regional Director of CFG Health
Services, Inc.

Plaintiff alleged Regional Director Esposito’s failure to train
her medical staff “led to Plaintiff only receiving palliative medical
care after he was severely burned . . .” (Compl, ECF No. 1. ¶4(c)).
To establish deliberate indifference for failure to train, a
plaintiff must show that a supervisor was on actual or constructive
notice that flaws in training caused employees to violate a citizen’s
constitutional

rights,

and

such

notice

generally

requires

contemporaneous knowledge of an incident or knowledge of a prior
pattern of similar incidents and circumstances. Connick v. Thompson,
563 U.S. 51, 62 (2011).

A single constitutional violation can
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provide the basis for municipal liability for failure to train, but
only where “the need for more or different training is so obvious,
and

the

inadequacy

so

likely

to

result

in

the

violation

of

constitutional rights that the policymaker's inaction amounts to
deliberate indifference.”

City of Canton, Ohio v. Harris, 489 U.S.

378, 390 (1989).
Plaintiff’s bare allegation of failure to train falls far short
of the standard for liability. The § 1983 claim against Regional
Director Cheryl Esposito would not survive screening under 28 U.S.C.
§§ 1915 (e)(2)(B) and 1915A.
5.

Camden County Department of Corrections

Plaintiff alleged the Camden County Department of Corrections
violated the Eighth and Fourteenth Amendments by allowing him to
continue working as a hot water runner after suffering second-degree
burns, and by mandating him to perform work duty while seriously
injured, without first being cleared to work by an outside medical
facility. (Compl., ECF No. 1, ¶4(g)).
For purposes of § 1983 liability, a county department of
corrections is not a legally separate entity from the county itself,
and any actions by the agency are imputed to the county. See Smith
v. Grandsen, Civ. Action No. 08–4517 (JEI/KMW), 2011 WL 5526070, at
*4, n.5 (D.N.J. Nov. 14, 2011) (citing McLaughlin v. Cnty. of

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Gloucester, 2008 WL 700125, *2 (D.N.J. March 12, 2008) (dismissing
§ 1983 claim against sheriff's department because it is a branch of
the county); Bonenberger v. Plymouth Twp., 132 F.3d 20, 25 n. 4 (3d
Cir. 1997) (municipalities and police departments are treated as a
single entity under § 1983)).
“A municipality is liable under § 1983 when a plaintiff can
demonstrate that the municipality itself, through the implementation
of a municipal policy or custom, causes a constitutional violation.”
Colburn v. Upper Darby Tp., 946 F.2d 1017, 1027 (3d Cir. 1991) (citing
Monell v. New York City Dep't of Social Services, 436 U.S. 658, 691–
95 (1978)). For liability, the policy or custom must be the moving
force behind the constitutional tort of a municipal employee. Id.
(citing Polk County v. Dodson, 454 U.S. 312 (1981)).
For municipal liability, the Plaintiff must allege facts that
the policymaker’s “continued adherence to an approach that they know
or should know has failed to prevent tortious conduct by employees
may establish the conscious disregard for the consequences of their
action—the ‘deliberate indifference’—necessary to trigger municipal
liability.” Board of County Com'rs of Bryan County, Okl. v. Brown,
520 U.S. 397, 407 (1997) (quoting City of Canton, Ohio v. Harris,
489 U.S. 378, 390, n. 10 (1989). Typically, this will require
allegations of a pattern of constitutional violations linked to the

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policy. Id. at 408. It can also be shown in the context of a single
instance of a constitutional violation, if the obvious consequence
of its policy was to violate a specific constitutional right. Id.
at 409-410.
Plaintiff has not alleged a pattern showing that allowing
medical providers within the prison to evaluate an injured inmate
for work leads to unwanton infliction of pain or permanent injury
of inmates. Therefore, Plaintiff must allege facts indicating that
the obvious consequence of the policy is to inflict pain or permanent
injury on the inmate. See Natale, 318 F.3d at 584-85.

Plaintiff has

not alleged sufficient facts to support such a claim. Even if
Plaintiff were to substitute the County of Camden as the municipal
defendant, his present allegations fail to state a § 1983 claim for
municipal liability.
IV.

CONCLUSION
For the reasons discussed above, in the accompanying Order filed

herewith, the Court will deny Plaintiff’s IFP application without
prejudice and administratively terminate this action. If Plaintiff
chooses, he may reopen this action by curing the deficiency in his
IFP application. Plaintiff will be permitted to file an amended
complaint to avoid dismissal of his deficient claims pursuant to 28
U.S.C. §§ 1915(e)(2)(B) and 1915A.

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DATED: February 22, 2017

s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

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