JEFFERSON v. DEAMER et al

Filing 2

OPINION. Signed by Judge Renee Marie Bumb on 2/28/17. (jbk, )

NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
WESLEY JEFFERSON,
Plaintiff,
v.

DARLENE DEAMER, et al.,
Defendants.

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Civil Action No. 16-9489(RMB)

OPINION

BUMB, District Judge:
Plaintiff Wesley Jefferson, a prisoner confined at Southern
State Correctional Facility in Delmont, New Jersey, seeks to
bring this civil rights action in forma pauperis.
affidavit

of

indigence,

the

Court

will

grant

Based on his
Plaintiff's

application to proceed in forma pauperis pursuant to 28 U.S.C. §
1915(a), and order the Clerk of the Court to file the Complaint.
At this time, the Court must review the Complaint pursuant
to 28 U.S.C. § 1915(e)(2)(B) 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.
I. BACKGROUND

1 

Plaintiff’s Statement of Claims is as follows:
On [December 7, 2016], I went to the
infirmary because I wasn’t feeling well.
I’m a diabetic and it was determined that my
sugar was too high.
The nurse practitioner
overmedicated me with insulin.
911 was
called and an ambulance took me to Vineland
Hospital for 24 hours.
(Compl.,

ECF

defendants

No.

in

1,

the

¶6.)

Plaintiff

Complaint:

named

Darlene

the

following

Deamer,

Nurse

Practitioner; Dr. Jeffrey Pomerantz, supervisor of the medical
staff at Southern State Correctional Facility; Southern State
Correctional

Facility

Nurse

Staff;

and

Rutgers

University.

(Id., ¶4 and caption.)
II. STANDARDS FOR A SUA SPONTE DISMISSAL
A pleading must contain a “short and plain statement of the
claim showing that the pleader is entitled to relief.”
Civ. P. 8(a)(2).

Fed. R.

“To survive a motion to dismiss, a complaint

must contain sufficient factual matter, accepted as true, to
‘state

a

Ashcroft

claim
v.

to

Iqbal,

relief
556

that

U.S.

is

662,

plausible
678

(2009)

on

its

(quoting

Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
has

facial

plausibility

when

the

plaintiff

face.’”

pleads

Bell

“A claim
factual

content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
(quoting Twombly, 550 U.S. at 556.)

2 

Id.

“[A]

court

must

accept

contained in a complaint.”
conclusions

as

true.

as

Id.

Id.

true

all

of

the

allegations

A court need not accept legal

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,

entitled to the assumption of truth.” Id. at 679.

are

not

“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 Cir.
2002).

A court must liberally construe a pro se complaint.

Erickson v. Pardus, 551 U.S. 89, 94 (2007).
III. SECTION 1983 CLAIMS
A plaintiff may have a cause of action under 42 U.S.C. §
1983

for

certain

violations

of

his

constitutional

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
3 

rights.

in an action at law, suit in equity,
other proper proceeding for redress.

or

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.

West v. Atkins, 487 U.S. 42, 48

(1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255–56 (3d
Cir. 1994).
A.

Darlene Deamer

Petitioner

alleges

Nurse

Deamer

overmedicated

him

when

treating his diabetes, causing him to be taken to the hospital
for 24 hours.
and

unusual

The Eighth Amendment’s prohibition against cruel
punishment

adequate medical care.

requires

that

inmates

are

provided

Estelle v. Gamble, 429 U.S. 97, 103-05

(1976); Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).

To

state a claim of inadequate medical care in violation of the
Eighth

Amendment,

medical

need;

an
and

inmate
(2)

must
a

set

prison

forth:

official’s

indifference to that serious medical need.
106.
of

(1)

a

serious

deliberate

Estelle, 429 U.S. at

A serious medical need includes a need for which “denial
treatment

would

result

in

the

unnecessary

and

wanton

infliction of pain” or a “life-long handicap or permanent loss.”

4 

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).
A

claim

deliberate

of

overmedication

indifference.

Acosta

sounds
v.

in

United

malpractice,
States

Serv., 445 F.3d 509, 514–15 (1st Cir. 2006).

Marshal's

Therefore, the

Court will dismiss Plaintiff’s § 1983 claim against Deamer.1
Plaintiff

seeks

to

bring

a

malpractice

claim

not

against

If

Deamer

under the New Jersey Tort Claims Act, N.J.S.A. 59:1–1 et seq.,
he must file his complaint in state court after meeting the
notice requirements of the Act, N.J.S.A. 59:8-8(a).
B.

Dr. Jeffrey Pomerantz

1

Dismissal of this claim will be without prejudice.
If
Plaintiff can allege facts that plausibly suggest Nurse Deamer
intentionally overmedicated him to cause him pain and suffering,
he may state a § 1983 claim for deliberate indifference to his
serious medical needs. If Plaintiff can allege a viable § 1983
claim, this Court may exercise supplemental jurisdiction over
any state law malpractice claims.
5 

Plaintiff asserts that Dr. Pomerantz oversees all of the
medical staff at Southern State Correctional Facility.
ECF No. 1, ¶4(c).

(Compl.,

There is no respondeat superior liability

under § 1983.

See Iqbal, 556 U.S. 662, 676 (2009) (“Government

officials

not

conduct

may

of

superior.”)

their

be

held

liable

subordinates

under

for
a

the

unconstitutional

theory

of

respondeat

Therefore, the Court will dismiss the claim against

Dr. Pomerantz.2

If Plaintiff seeks to hold Dr. Pomerantz liable

for Nurse Deamer’s alleged malpractice, he should file his tort
claim in state court.
C.

Southern State Correctional Facility Nurse Staff and
Rutgers University

Plaintiff has not alleged any basis for liability of the
Southern

State

University.

Correctional

Facility

Nurse

Staff

or

Rutgers

The only fact Plaintiff alleged in support of his

Complaint is that Nurse Deamer overmedicated him for diabetes.
If

Petitioner

seeks

to

hold

these

entities

liable

for

the

alleged malpractice of Nurse Deamer, he should bring his claims
in state court under the New Jersey Tort Claims Act.

The Court

2

Dismissal of this claim will also be without prejudice.
If
Plaintiff can allege a viable § 1983 claim against Nurse Deamer,
and he can allege facts showing Dr. Pomrantz was personally
involved in the unconstitutional conduct, he may bring these
claims in an amended complaint. See Sample v. Diecks, 885 F.2d
1099, 1114-118 (3d Cir. 1989) (describing elements of a claim
for liability of a supervisor based on personal involvement in
constitutional misconduct).
6 

will

dismiss

the

claims

against

these

defendants

without

prejudice.
IV.

CONCLUSION
The Court will grant Plaintiff’s IFP application.

Pursuant

to 28 U.S.C. § 1915(e)(2)(B) and § 1915A, the Court will dismiss
the § 1983 claims without prejudice.

An appropriate order follows.
Dated:

February 28, 2017
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

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