MILLER v. ORTIZ

Filing 2

OPINION. Signed by Judge Renee Marie Bumb on 3/22/17. (jbk, )

NOT FOR PUBLICATION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

WILLIAM C. MILLER,
Plaintiff,
v.
DAVID E. ORTIZ, WARDEN
Defendant.

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CIV. ACTION NO. 17-1675 (RMB)

OPINION

RENÉE MARIE BUMB, U.S. District Judge
This matter comes before the Court upon Plaintiff’s filing of
a self-styled “Emergency Motion for Temporary Order of Protection,”
which this Court construes as a prisoner civil rights complaint and
a motion for preliminary injunction. (ECF No. 1).
I. BACKGROUND
Plaintiff is a prisoner confined in FCI Fort Dix, due to be
released on March 15, 2017.

(ECF No. 1, ¶1.)

Plaintiff believes

the Utah Department of Corrections has a detainer on him.

(Id., ¶2.)

Plaintiff does not know how he will be transported to Utah.
¶3.)

(Id.,

He fears he will suffer irreparable harm to his health if he

is transported to Utah by van, especially if the trip is extended
by stopping to transport other prisoners along the way.
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(Id.,

¶¶6-8.)

Plaintiff suffers from the following medical conditions,

all of which require medication and could result in irreparable harm
if he does not receive his medication:

bleeding ulcers, enlarged

prostate, irritable bowel syndrome, arthritis, clinical depression
and panic attacks.

(Id.)

His requests for information about his

transport have gone unanswered.
II.

(Id., ¶3.)

DISCUSSION
A.

Motion for Preliminary Restraining Order

A request for injunctive relief in the prison context must be
“viewed with considerable caution.”

Rush v. Correctional Medical

Services, Inc., 287 F. App’x 142, 144 (3d Cir. 2008).

For such an

extraordinary remedy as a preliminary injunction, a plaintiff must
establish each of the following four elements:
(1) the plaintiff is likely to succeed on the
merits; (2) denial will result in irreparable
harm to the plaintiff; (3) granting the
injunction will not result in irreparable harm
to the defendant; and (4) granting the
injunction is in the public interest.
Id. (quoting NutraSweet Co. v. Vit-Mar Enters., Inc., 176 F.3d 151,
153 (3d Cir. 1999).
A plaintiff may assert a cause of action under 42 U.S.C. § 1983
for violations of his constitutional rights. Section 1983 provides,
in relevant part:

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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 . . . .
42 U.S.C. § 1983.
To state a claim for relief under § 1983, a plaintiff must allege
the violation of a right secured by the Constitution or laws of the
United States, and that the constitutional deprivation was caused
by a person acting under color of state law.

West v. Atkins, 487

U.S. 42, 48 (1998); Malleus v. George, 641 F.3d 560, 563 (3d Cir.
2011).
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, 103-04 (1976); Rouse v. Plantier,
182 F.3d 192 (3d Cir. 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

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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.
U.S. 825, 836 (1994).
a

particular

course

professional judgment.

Farmer v. Brennan, 511

Courts will not second guess “the adequacy
of

treatment”

in

the

exercise

of

sound

Inmates v. 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
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

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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))
(citation omitted).
Plaintiff cannot satisfy the first two elements required for
a preliminary injunction based on a prospective Eighth Amendment
violation.

First, Plaintiff does not know if he will be transported

by van to Utah.

Second, Plaintiff’s fear that he will not receive

his medications during his transportation is based on nothing more
than speculation.

Third, Plaintiff does not allege that he has been

provided a medical opinion that he cannot travel by van to Utah.
Under the circumstances, the Court will deny Plaintiff’s motion for
a preliminary injunction without prejudice.
B.

Administrative Termination of Action

Plaintiff’s motion, in which he seeks to initiate a civil action
in this Court in order to seek relief under the Eighth Amendment,
is unaccompanied by the $400.00 filing fee or an application to
proceed without prepayment of fees (“in forma pauperis” or “IFP”,
pursuant

to

28

U.S.C.

§

1915.

Therefore,

the

Court

will

administratively terminate this action, subject to reopening if

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Plaintiff submits either the $400.00 filing fee or a properly
completed IFP application, pursuant to 28 U.S.C. § 1915.
III. CONCLUSION
For the reasons discussed above, the Court will deny Plaintiff’s
motion for a preliminary injunction and administratively terminate
this action without prejudice.

An appropriate Order follows.
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
DATED: MARCH 22, 2017

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