JEFFERSON v. DEAMER et al
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NOT FOR PUBLICATION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
DARLENE DEAMER, et al.,
Civil Action No. 16-9489(RMB)
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.
Based on his
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
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.
called and an ambulance took me to Vineland
Hospital for 24 hours.
Practitioner; Dr. Jeffrey Pomerantz, supervisor of the medical
staff at Southern State Correctional Facility; Southern State
(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).
“To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as true, to
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
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.)
contained in a complaint.”
A court need not accept legal
threadbare recitals of the elements of a cause of action, do not
suffice to state a claim.
Thus, “a court considering a
motion to dismiss can choose to begin by identifying pleadings
entitled to the assumption of truth.” Id. at 679.
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
Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d Cir.
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. §
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,
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.
West v. Atkins, 487 U.S. 42, 48
(1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255–56 (3d
treating his diabetes, causing him to be taken to the hospital
for 24 hours.
The Eighth Amendment’s prohibition against cruel
adequate medical care.
Estelle v. Gamble, 429 U.S. 97, 103-05
(1976); Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).
state a claim of inadequate medical care in violation of the
indifference to that serious medical need.
Estelle, 429 U.S. at
A serious medical need includes a need for which “denial
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.
Camden County Correctional Facility, 318 F.3d 575, 582 (3d Cir.
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).
Serv., 445 F.3d 509, 514–15 (1st Cir. 2006).
Court will dismiss Plaintiff’s § 1983 claim against Deamer.1
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).
Dr. Jeffrey Pomerantz
Dismissal of this claim will be without prejudice.
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.
Plaintiff asserts that Dr. Pomerantz oversees all of the
medical staff at Southern State Correctional Facility.
ECF No. 1, ¶4(c).
There is no respondeat superior liability
under § 1983.
See Iqbal, 556 U.S. 662, 676 (2009) (“Government
Therefore, the Court will dismiss the claim against
If Plaintiff seeks to hold Dr. Pomerantz liable
for Nurse Deamer’s alleged malpractice, he should file his tort
claim in state court.
Southern State Correctional Facility Nurse Staff and
Plaintiff has not alleged any basis for liability of the
The only fact Plaintiff alleged in support of his
Complaint is that Nurse Deamer overmedicated him for diabetes.
alleged malpractice of Nurse Deamer, he should bring his claims
in state court under the New Jersey Tort Claims Act.
Dismissal of this claim will also be without prejudice.
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
The Court will grant Plaintiff’s IFP application.
to 28 U.S.C. § 1915(e)(2)(B) and § 1915A, the Court will dismiss
the § 1983 claims without prejudice.
An appropriate order follows.
February 28, 2017
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
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