GAMBINO v. AHSA CASSANO et al

Filing 197

OPINION. Signed by Judge Noel L. Hillman on 9/19/2022. (mag, N.M.)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
______________________________
:
DAVID A. GAMBINO,
:
:
Plaintiff,
:
Civ. No. 17-0830 (NLH) (AMD)
:
v.
:
OPINION
:
:
AHSA CASSANO, et al.,
:
:
Defendants.
:
:
______________________________:
APPEARANCES:
David A. Gambino
19757055
115 Shepard Ave
Kenmore, NY 14217
Plaintiff Pro Se
John M. Hockin Jr., Esq.
Ronan, Tuzzio & Giannone
4000 Route 66
One Hovchild Plaza
Tinton Falls, NJ 07753
Attorneys for Defendant Diane Schifano, RN
Philip R. Sellinger, United States Attorney
Susan Millensky, Assistant United States Attorney
U.S. Attorney’s Office for the District of NJ
970 Broad Street
Suite 700
Newark, NJ 07102
Attorneys for Defendant AHSA Cassano, Bureau of Prisons
Central Office, Counselor Centeno, Counselor Jose, Ibe, IDC RN
Copeland, Medical Officer K. Engert, Northeast Office Bureau of
Prisons, Officer Hamel, RN Fletcher, RN Maruska, RN Wawrzyniak,
RN West, Unit Manager O’Cone, Warden Ortiz

HILLMAN, District Judge
Defendant Diane Schifano moves for summary judgment on
Plaintiff David Gambino’s second amended complaint.
183.

ECF No.

Plaintiff has not filed any opposition.
For the reasons stated below, the Court will grant

Defendant Schifano’s motion and enter judgment in her favor.
The Court will also dismiss her crossclaims against the
remaining Defendants.
I.

BACKGROUND
On February 8, 2017, Plaintiff filed a pro se complaint

alleging inadequate medical care for acute infections, among
other claims, by various prison officials at FCI Fort Dix, New
Jersey.

The Court granted his in forma pauperis application and

permitted the complaint to proceed in part on March 20, 2017.
ECF No. 3.

Specifically, it permitted Plaintiff’s Bivens1 claims

against Defendants AHSA Cassano, Dr. Ibe, RN West, K. Engert,
and IDC RN Copeland (“the Federal Defendants”) to proceed while
dismissing Plaintiff’s claims against John Doe employees of
Robert Wood Johnson University Hospital (“RWJ”).

Id. at 4.

Defendants filed a motion for summary judgment on July 7,
2017 seeking dismissal on the grounds that Plaintiff failed to
exhaust his administrative remedies.

1

ECF No. 12.

Shortly

Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971).
2

thereafter, Plaintiff filed a motion to amend the complaint and
a “supplemental” complaint which consisted of 45 defendants, was
95 pages long, and asserted new claims under Bivens and added
claims under the Federal Tort Claims Act (“FTCA”) and the
Americans with Disabilities Act (“ADA”).

ECF No. 14.

The Court

granted the motion on February 1, 2018 as Defendants conceded
Plaintiff was permitted to amend his complaint under Federal
Rule of Civil Procedure 15.

ECF No. 36.

The Court indicated it

would treat the “supplemental” complaint as the operative
pleading.

Id. ¶ 2.

Defendant Schifano was served on March 20,

2018, ECF No. 65, and filed an answer with crossclaims on May
25, 2018, ECF No. 73.
The Federal Defendants moved to dismiss the amended
complaint on May 14, 2018.

ECF No. 69.

On July 19, 2018,

Plaintiff moved to amend his complaint in order to correct an
error on the first page of his complaint and requested the
appointment of pro bono counsel.

ECF No. 88.

Magistrate Judge

Donio granted both requests; however, the appointment of counsel
was limited to addressing the Federal Defendants’ motion to
dismiss.

ECF No. 99.

All pending motions were “denied without

prejudice to the parties’ right to refile their motions after
counsel for Plaintiff has entered an appearance.”

ECF No. 100.

Counsel entered an appearance on October 9, 2018, ECF No. 104,
and the parties agreed to hold all deadlines “in abeyance for a
3

period of thirty (30) days to give pro bono counsel time to meet
and confer with” Plaintiff, ECF No. 105 at 2.

Magistrate Judge

Donio conducted a case management conference via telephone on
November 8, 2018.

ECF No. 108.

Subsequent telephone

conferences took place on November 29, 2018 and February 11,
2019.

ECF Nos. 109, 113.

On February 15, 2019, Defendant

Schifano filed a letter asking permission to file a motion to
dismiss with prejudice for Plaintiff’s failure to timely serve
an Affidavit of Merit.

ECF No. 117.

The Federal Defendants refiled their motion to dismiss on
March 29, 2019.

ECF No. 120.

Pro bono counsel filed opposition

to the motion to dismiss and requested permission to file a
second amended complaint if the Court were inclined to grant the
motion to dismiss.

ECF No. 124.

Finding that a streamlined

complaint would be in the interests of justice, the Court
dismissed the Federal Defendants’ motion without prejudice and
granted Plaintiff leave to file a second amended complaint.
No. 131.

ECF

Pro bono counsel then requested to be relieved as

counsel as the appointment had been limited to opposing the
motion to dismiss.

ECF No. 132.

In response, on October 28,

2019, Plaintiff filed a letter requesting, among other things,
that his case move forward without appointed pro bono counsel,
and that he be provided with 60 days to file a second amended
complaint.

ECF No. 133.

Plaintiff filed his second amended
4

complaint on November 21, 2019.

ECF No. 135.

He later filed a

supplement alleging that the Federal Defendants were interfering
with his ability to exhaust his FTCA remedies.

ECF No. 138.

On November 27, 2019, the Federal Defendants filed a letter
noting that Plaintiff’s second amended complaint is identical to
the first four claims included in the nine-count complaint that
was filed in 2017.

ECF No. 136.

They asked the Court to reopen

their prior moving brief, Docket No. 120, so that they could
renew that motion to dismiss as to Counts One through Four of
the pleading.

The Federal Defendants stated that they made this

request because a newly filed motion would be identical to the
one previously filed, save for deletion of the parts that solely
address claims Five through Nine, and if Plaintiff had intended
to refile his prior amended complaint in full, the Government’s
motion would be wholly identical to its prior one.

The Court

granted pro bono counsel’s withdrawal request and directed the
Federal Defendants to decide how to proceed on their motion
within 30 days.

ECF No. 137.

The Federal Defendants renewed

their motion on December 16, 2019.

ECF No. 140.

On March 30, 2021, the Court granted the motion to dismiss
in part.

ECF No. 159.

It dismissed Counts One and Two in their

entirety and Plaintiff’s ADA claim in Count Three.
Defendant Copeland was dismissed based on immunity.

Id.
Id.

Three was permitted to proceed against Defendants Ortiz,
5

Count

Cassano, and the Central Office of the Federal Bureau of
Prisons.

Id.

The United States was substituted for the BOP on

Plaintiff’s FTCA claim.

Id.

After a period of discovery, Defendant Schifano filed the
instant motion for summary judgment.

ECF No. 183.

She asserts

the sole claim against her, a medical malpractice claim,2 should
be dismissed as Plaintiff cannot meet his burden of proof at
trial.

Id.

Plaintiff has not submitted any opposition to the

motion.
II.

STANDARD OF REVIEW
Summary judgment should be granted when the pleadings,

depositions, answers to interrogatories, admissions on file, and
affidavits show that there is no genuine dispute as to any
material fact and that the moving party is entitled to a
judgment as a matter of law.

Fed. R. Civ. P. 56(c).

A disputed

fact is material when it could affect the outcome of the suit
under the governing substantive law.
Inc., 477 U.S. 242, 248 (1986).

Anderson v. Liberty Lobby,

A dispute is genuine if the

evidence is such that a reasonable jury could return a verdict
for the non-moving party.

Id. at 250.

The Court should view

the facts in the light most favorable to the non-moving party

The Court has supplemental jurisdiction over this related state
law claim. 28 U.S.C. § 1367(a).
6
2

and make all reasonable inferences in that party’s favor.

Hugh

v. Butler County Family YMCA, 418 F.3d 265, 267 (3d Cir. 2005).
Initially, the moving party must show the absence of a
genuine issue concerning any material fact.
v. Carrett, 477 U.S. 317, 323 (1986).

See Celotex Corp.

Once the moving party has

satisfied its burden, the non-moving party, “must present
affirmative evidence in order to defeat a properly supported
motion for summary judgment.”

Anderson, 477 U.S. at 257.

“While the evidence that the non-moving party presents may be
either direct or circumstantial, and need not be as great as a
preponderance, the evidence must be more than a scintilla.”
Hugh, 418 F.3d at 267 (citing Anderson, 477 U.S. at 251).
“An unopposed summary-judgment motion is not tantamount to
a default judgment, because the court still must find for itself
that there is no genuine dispute of material fact and that the
movant deserves judgment as a matter of law.”

United States v.

Brace, 1 F.4th 137, 143 (3d Cir. 2021) (citing Fed. R. Civ. P.
56(a); Anchorage Assocs. v. V.I. Bd. of Tax Rev., 922 F.2d 168,
175 (3d Cir. 1990)).

“The moving party is entitled to judgment

as a matter of law when the non-moving party fails to make ‘a
sufficient showing on an essential element of [his] case with
respect to which [he] has the burden of proof.’”

Groff v.

DeJoy, 35 F.4th 162, 168 n.10 (3d Cir. 2022) (quoting Celotex
Corp., 477 U.S. at 323).
7

III. DISCUSSION
The Court considers Defendant Schifano’s statement of
facts, ECF No. 183-9 at 7-11, to be undisputed for summary
judgment purposes.

Fed. R. Civ. P. 56(e)(2).

Defendant Schifano is a nurse employed by RWJ in Hamilton,
New Jersey.

ECF No. 135 at 6.

In his second amended complaint,

Plaintiff alleges he was taken to RWJ on January 22, 2017.
at 21-22.
Upon arrival at RWJ Hamilton Hospital, the Plaintiff was
known to be in an emergency need for immediate medical
intervention for sepsis meeting the SIR 3 Sepsis
evaluation — while in need of immediate surgical relief
of an infection that was so bad it had swollen the
Plaintiff’s anus closed days prior. Plaintiff also met
the sepsis criteria by having hypertension, accompanied
by a laboratory lactate result coming in at 4.4 mm/L.
Id. at 22.

He makes a general allegation that Defendants

“purposefully made false medical records to continue abuse,”
id., but the second amended complaint does not contain any
further specific allegations against Defendant Schifano.
Plaintiff claimed in his answers to Defendant United States’
interrogatories:
Plaintiff was released from the hospital with a 1 inch
open and weeping wound on his anus with instructions for
post recovery to be in a clean environment. Plaintiff
was transported by van and forced to sit directly on the
wound causing extreme pain and opening the wound. Upon
entrance to the facility the pain management proscribed
by the hospital was cancelled.
Medical staff at the
hospital where surgery took place, aided and assisted in
the abuse by altering and lowering the standard of care
8

Id.

that they already stated needed
complications and risk of death.

to

meet

to

avoid

Dr [Vulardo] and RN Schifano altered the records to
appease the BOP, and in doing so created a post-surgical
condition that did not protect the plaintiff from reinfection and allowed the BOP defendants to provide less
than needed care at great risk to complications and
reinfection. The result was an abusive transport that
opened and injured the wound at great and unnecessary
pain and suffering, and reinfection that put plaintiff’s
life at risk, and forced the plaintiff to undergo another
heavy dose of antibiotics harmful to his liver.
Plaintiff now suffers from a low liver count and common
antibiotics rarely work forcing the plaintiff into
higher dosages of antibiotic due to his unwanted high
tolerance to antibiotics.
Persons originally responsible for injury, injury, and
violation of rights that occurred: AHSA Cassano, Dr Iba,
Nurse, Officer Copeland, Muruska, Dr Patel, Nurse West,
Warden Ortiz,. Dr [Vulardo] and RN Schifano, Medical
officer K Engert, and Central Office ignored the true
condition of the infection, under reported the infection
as it was presented, purposely under medicated infection
and allowed the plaintiff to linger in severe pain that
lead to a severe life-threatening infection that
resulted in surgery, scaring, neurological damages,
emotional damages.
ECF No. 171 at 9-10.

When asked to “spell out the factual

allegations . . . against Nurse Schifano in this matter” during
his deposition, Plaintiff responded:
The factual allegations are that she changed and altered
her medical diagnosis and recommendation for treatment
based upon the needs of the Bureau of Prisons, you know,
desire to not spend the money needed to provide that
care and instead of just doing her job and saying this
is the care he needs, when the Bureau of Prisons said,
you know, well, we’re not gonna do that, she changed her
diagnosis to fit their needs which were fiscal rather
than medical, so she made a — she supported a fiscal, a
fiscal, a fiscal demand from the Bureau of Prisons to
save money at my expense.
9

ECF No. 183-6 at 111.
The Court notes that Plaintiff’s claim against Defendant
Schifano is subject to dismissal for failure to state a claim.
Plaintiff is proceeding in forma pauperis, ECF No. 3, and the in
forma pauperis statute requires the Court to “dismiss the case
at any time if the court determines that the action or appeal
fails to state a claim on which relief may be granted.”
U.S.C. § 1915(e)(2)(B)(ii).

28

To withstand dismissal for failure

to state a claim, the complaint must allege “sufficient factual
matter” to show that the claim is facially plausible.
UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).

Fowler v.

‘‘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 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

“[A]n

unadorned, the defendant-unlawfully-harmed-me accusation” is not
enough.

Iqbal, 556 U.S. at 678.

The second amended complaint makes no specific factual
allegations against Defendant Schifano and does not refer to her
at all outside of the naming of the parties.
No. 135.

See generally ECF

The limited facts regarding Defendant Schifano’s

alleged tampering do not appear until Plaintiff’s interrogatory
10

answers and deposition testimony, and a liberal reading of the
second amended complaint cannot be said to include them.

As

such, the medical malpractice claim against Defendant Schifano
is subject to dismissal for failure to state a claim under §
1915(e)(2)(B)(ii).
Even if the second amended complaint did state a medical
malpractice claim, Defendant Schifano is entitled to judgment as
a matter of law.

“Where the movant is the defendant, or the

party without the burden on the underlying claim, the movant has
no obligation to produce evidence negating its opponent’s case.
The moving party merely has to point to the lack of any evidence
supporting the non-movant’s claim.”

Nat’l State Bank v. Fed.

Rsrv. Bank of New York, 979 F.2d 1579, 1581–82 (3d Cir. 1992)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).
“To prove medical malpractice, ordinarily, ‘a plaintiff must
present expert testimony establishing (1) the applicable
standard of care; (2) a deviation from that standard of care;
and (3) that the deviation proximately caused the injury.’”
Nicholas v. Mynster, 64 A.3d 536, 545 (N.J. 2013) (quoting
Gardner v. Pawliw, 696 A.2d 599, 608 (N.J. 1997)).

Here,

Defendant Schifano asserts that “[w]hile plaintiff has set forth
allegations, there is a lack of proofs to establish the claims
against Nurse Schifano.

Plaintiff failed to produce factual

11

evidence or expert testimony in support of the claims.”

ECF No.

183-9 at 13.
There is no evidence before the Court that Defendant
Schifano changed Plaintiff’s medical records or any orders at
the request of the BOP.

Plaintiff could not point to any

specific document supporting his allegations when questioned
during his deposition:
Question: And how did you know that [Defendant Schifano]
was
providing
recommendations
for
the
postsurgical wound care?
Answer:

When I had the record of the care that was
given I read through the record, saw that she
made recommendations and then saw that she
changed the recommendations to suit the BOP
rather than to provide the proper medical care
for me and aftercare, so basically in her own
notes she alters and changes her medical
diagnosis but there is no change in my
condition.
So basically my condition was
this, these were the notes, what I should do,
she talks to the BOP, all of a sudden the notes
deteriorate in what I’m supposed to get and
they give me less of a postsurgical care but
yet there was no change in my condition.

Question: So are you aware that Nurse Schifano spoke to
anybody at the BOP?
Answer:

I believe she did. I believe they were all in
correspondence with each other because they
were trying to make sure that I was —
originally they were trying to make sure I was
gonna get the proper care when I leave but
then all of a sudden it became less of the
care and something that they couldn’t do
anything about.
However, they could, by
sticking to their guns, which they did not and
instead they altered the medical records to
provide less care.
12

. . . .
Question: And are you aware of the original order that
you’re alluding to that she had changed?
Answer:

I can’t recall it as we speak here today but
it has been represented in the actual filing.

ECF No. 183-6 at 109-11.

He has not specified what the original

order was or how Defendant Schifano changed that order.

He also

has no evidence that Defendant Schifano communicated with the
BOP regarding his care, stating only that he “believed” she did,
and could not recall any specific conversation with Defendant
Schifano.

Id. at 110-11.

Moreover, Plaintiff acknowledged

during his deposition that Defendant Vulardo, who has never been
served with the amended complaint, ultimately approved
Plaintiff’s course of post-surgical treatment.

Id. at 110.

No

reasonable juror presented with this record could return a
verdict in Plaintiff’s favor.

Accordingly, the Court will grant

summary judgment in favor of Defendant Schifano.

The Court will

dismiss Defendant Schifano’s crossclaims with prejudice as she
may not seek contribution from other defendants when judgment
has been entered in her favor.

See Nora v. Livingston Tp., 410

A.2d 278, 582-83 (N.J. Super. Ct. App. Div. 1980).

13

IV.

CONCLUSION
For the reasons set forth above, the Court will grant

Defendant Schifano’s motion for summary judgment.

Her cross

complaint will be dismissed with prejudice.
An appropriate Order follows.

Dated: September 19, 2022
At Camden, New Jersey

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

14