MONTALVO v. DESHAWN et al
OPINION. Signed by Judge Jerome B. Simandle on 6/20/2017. (tf, n.m.)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
No. 16-9274 (JBS-AMD)
DR. DESHAWN; DR. JEFFREY
POMERANTZ; S.S.C.F. MEDICAL
Rafael Montalvo, Plaintiff Pro Se
505 Bergen Ave. Apt. 2
Jersey City, New Jersey 07304
SIMANDLE, District Judge:
Before the Court is Plaintiff Rafael Montalvo’s
(“Plaintiff”), submission of a civil rights complaint pursuant
to 42 U.S.C. § 1983. Complaint, Docket Entry 1. Plaintiff also
requests the appointment of pro bono counsel.
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 the
complaint will be dismissed for lack of jurisdiction.
Plaintiff filed this complaint against various medical
personnel at Southern State Correctional Facility (“SSCF”)
including Dr. DeShawn, Dr. Jeffrey Pomerantz, as well as Rutgers
and the New Jersey Department of Corrections (“DOC”). Complaint
¶ 4. 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
Plaintiff alleges he received an overdose of estrogen1 while
confined in SSCF. Id. ¶ 6. He states his levels went to 745 when
they should have been between 100 and 200. Id. He then refused
further treatment due to the resulting mental trauma. Id. He
alleges that the high estrogen levels “ate” at his stomach,
preventing him from eating solid foods, and weakened his bones.
Id. He states he no longer wishes to transition due to the
traumatic experience. Id. ¶ 4(b). He seeks relief in the form of
$120,000,000 for the medical malpractice of the medical staff.
Id. ¶ 7. He further requests the appointment of pro bono
The complaint references “extrogent.” The Court interprets this
as estrogen given Plaintiff’s reference to transitioning.
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 28 U.S.C. §
1915(e)(2)(b) because Plaintiff is proceeding in forma pauperis.
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
“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
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).
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:
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)).
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 ....
§ 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.
Plaintiff seeks to pursue medical malpractice claims
against defendants. This Court lacks jurisdiction over the
claims as raised in the complaint, however.3
Federal district courts “shall have original jurisdiction
of all civil actions arising under the Constitution, laws, or
treaties of the United States.” 28 U.S.C. § 1331. Medical
“A federal court is bound to consider its own jurisdiction
preliminary to consideration of the merits.” Trent Realty
Assocs. v. First Fed. Sav. & Loan Ass'n of Phila., 657 F.2d 29,
36 (3d Cir. 1981); see also Fed. R. Civ. P. 12(h)(3). If
jurisdiction is lacking, the court must dismiss the action,
regardless of the stage of the litigation. Trent Realty Assocs.,
657 F.2d at 36.
malpractice is a state law claim; therefore, there is no federal
question jurisdiction.4 Even if the Court were to liberally
construe the complaint, it would still have to be dismissed as
Plaintiff has failed to state a claim an Eighth Amendment
violation. See 28 U.S.C. § 1915(e)(2)(B)(ii).
The Eighth Amendment proscription against cruel and unusual
punishment requires that prison officials provide inmates with
adequate medical care. 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.
Here there is no indication any defendant acted with
deliberate indifference to Plaintiff’s medical needs. “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)
There also is no diversity jurisdiction as Plaintiff and at
least one defendant, Rutgers, the State University of New
Jersey, are both New Jersey residents. 28 U.S.C. § 1332.
(quoting White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990)).
The complaint only alleges that defendants gave Plaintiff too
much estrogen. Nothing suggests there was the “unnecessary and
wanton infliction of pain.” Estelle v. Gamble, 429 U.S. 97, 104
The Court will therefore dismiss the complaint for lack of
jurisdiction. The dismissal will be without prejudice to
Plaintiff’s right to pursue an action in state court.5 As the
complaint is being dismissed, Plaintiff's request for pro bono
counsel is denied. See Tabron v. Grace, 6 F.3d 147, 155 (3d Cir.
For the reasons stated above, the complaint is dismissed
for lack of jurisdiction.
An appropriate order follows.
June 20, 2017
s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge
The Court expresses no opinion as to whether Plaintiff
otherwise meets the requirements for filing in state court.
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