CAMPS v. SCHOLTZ

Filing 188

OPINION. Signed by Judge Renee Marie Bumb on 3/23/2020. (dmr)(n.m.)

NOT FOR PUBLICATION

ECF No. 149

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

CALVIN CAMPS,
Plaintiff

Civ. No. 17-1895 (RMB-JS)

v.
MILLIE SCHOLTZ, et al.,

OPINION

Defendants
APPEARANCES:
CALVIN CAMPS
MQ 1920
SCI Phoenix
P.O. Box 244
Collegeville, PA 19426
Plaintiff, pro se
STEPHEN D. HOLTZMAN, Esq.
JEFFREY S. MCCLAIN, Esq.
HOLTZMAN & MCCLAIN, PC
524 Maple Ave., Suite 200
Linwood, NJ 08221
On behalf of Defendants CFG Health Systems, LLC; Dr.
Grace Nugent [Dr. Jane Doe], Christina Owens, LPN; Lynn
Johnson, NP; Mary Quinn-Murphy, LPN; and Stacey Chase,
RN
BUMB, United States District Judge
This matter comes before the Court upon the summary judgment
motion of Defendants CFG Health Systems, LLC; Dr. Grace Nugent
[Dr. Jane Doe], Christina Owens, LPN; Lynn Johnson, NP; Mary QuinnMurphy, LPN; and Stacey Chase, RN (collectively, the “Medical

Defendants”) (Medical Defs’ Mot. for Summ. J., ECF No. 149); Brief
in Supp. of Summ. J. (“Medical Defs’ Brief, ECF No. 149-11); the
Medical Defs’ Statement of Undisputed Material Facts (“Medical
Defs’ SOMF,” ECF No. 149-2); and Plaintiff’s Brief in Opposition
to the Medical Defendants’ Motion for Summary Judgment (Pl’s Opp.
Brief, ECF No. 160.)
Pursuant to Federal Rule of Civil Procedure 78(b), the Court
will determine the motion for summary judgment on the briefs
without oral argument.
I.

BACKGROUND
Plaintiff’s original complaint was filed in the New Jersey

Superior Court, Burlington County on February 29, 2016. (Compl.,
ECF No. 1 at 8.) Defendant Mildred Scholtz removed the action to
this Court on March 22, 2017. (Notice of Removal, ECF No. 1.) On
December

18,

2018,

Plaintiff

was

granted

leave

to

amend

the

complaint to add Defendants CFG Health Systems, LLC; Dr. Grace
Nugent (identified in Plaintiff’s Third-Party Complaint as Doctor
Jane

Doe);

Christina

Owens,

LPN;

Mary

Quinn-Murphy,

LPN

(identified in Plaintiff’s Third-Party Complaint as Nurse Murphy);
Lynn Johnson, NP (identified in Plaintiff’s Third-Party Complaint

2

as Nurse Johnson) and Stacey Chase, RN as defendants. (Order, ECF
No. 92; Am. Compl., ECF No. 93.) 1
Plaintiff’s Amended Complaint was filed on December 18, 2018.
(Am. Compl., ECF No. 93.) The Medical Defendants filed their Answer
on March 6, 2019. (Answer, ECF No. 110.) The Medical Defendants
set

forth

applicable

affirmative

defenses

statute

limitations

of

including
and

violation

failure

to

of

the

exhaust

grievances. (Id.)
II.

THE AMENDED COMPLAINT
Plaintiff alleges the following facts against the Medical

Defendants in the Amended Complaint. (Am. Compl., ECF No. 93.)
Plaintiff was a pre-trial detainee in Burlington County Jail at
all relevant times alleged in the Complaint. (Id., ¶4.) CFG Health
Systems, LLC is contracted to provide medical services for inmates
confined

in

Burlington

County

Jail.

(Id.,

¶9.)

Plaintiff

is

suffering from Hepatitis C, genotype 1b. (Id. at 7.) Before he was
arrested and taken to Burlington County Jail, Plaintiff was taking
medication for his ongoing liver condition. (Id. at 12.)
Upon admission to Burlington County Jail on the night of
December 15, 2014, Plaintiff was seen by Nurses Quinn-Murphy,
Johnson and Owens. (Id. at 8.) He alleges that he told them about

1

The Medical Defendants corrected their names and titles,
misidentified in the Amended Complaint. The Court will refer to
the corrected names.
3

his medical conditions and asked them to call the Philadelphia
Veteran’s Hospital about his ongoing treatment, but they did not
do so. (Am. Compl., ECF No. 93 at 8-9.) Plaintiff alleges he told
all of the Medical Defendants about his medical conditions and
that he needed medication, but they failed to put this information
in his medical records. (Id. at 9.) The Medical Defendants did not
order any tests or seek to find out what medications Plaintiff was
taking. (Id.) Plaintiff alleges the failure to treat him aggravated
his pre-existing medical conditions. (Id. at 11.)
Plaintiff asserts the Medical Defendants, by failing to treat
his Hepatitis C, violated his rights under the Fourteenth Amendment
Due Process Clause, the New Jersey Constitution and under New
Jersey state law. Plaintiff alleges supervisory liability against
CFG Health Systems, LLC; Dr. Grace Nugent; and Stacey Chase, Health
Services Administrator, who is the final policymaker for CFG Health
Systems, LLC. (See generally Am. Compl., ECF No. 93.)
III. DISCUSSION
A.

Summary of Arguments
1.

The Medical Defendants’ Brief

The Medical Defendants contend they are entitled to summary
judgment for several reasons. First, they argue that the undisputed
material facts establish their lack of deliberate indifference to
Plaintiff’s serious medical needs; thus, Plaintiff fails to state
a claim under 42 U.S.C. § 1983. (Medical Defs’ Brief, ECF No. 1494

11 at 10-12.) The Medical Defendants assert Plaintiff’s claims are
based on his belief that he should have received continued medical
treatment

upon

his

detention,

but

there

is

no

evidence

that

Plaintiff advised the Medical Defendants that he was receiving
HCV 2 treatment when he was incarcerated at Burlington County Jail
nor is there evidence that he actually was receiving HCV treatment
at that time. (Id. at 11-12.) Moreover, the Medical Defendants
argue that Plaintiff cannot maintain a claim for future injury
because he concedes that he no longer has HCV. (Id. at 15.)
Further, they maintain that the lack of expert testimony is fatal
to Plaintiff’s § 1983 claims. (Id.) Second, the Medical Defendants
contend that Plaintiff failed to exhaust administrative remedies
under the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). (Id.
at 13-15.) Third, and the argument this Court addresses infra, the
Medical Defendants assert Plaintiff’s claims are barred by the
two-year statute of limitations. (Id. at 17-19.)
In support of their motion for summary judgment, the Medical
Defendants offer the following undisputed material facts with
respect to their statute of limitations defense:
•

Plaintiff was released from Burlington County Jail on
July 24, 2015.

•

Plaintiff’s initial complaint was filed on February
29, 2016.

2

HCV refers to the Hepatitis C virus. See Merriam-Webster Medical
Dictionary,
available
at
https://www.merriamwebster.com/medical/HCV.
5

•

Plaintiff’s original complaint fails to identify any
of the medical defendants, fails to utilize fictitious
party pleading and fails to provide any description
of the individual defendants.

•

Plaintiff’s complaint named as defendants Warden
Mildred Scholtz, Captain McDonnelly, Sargeant Davis
and the Board of Chosen Freeholders of Burlington
County.

•

In the complaint, Plaintiff identified a number of
his medical conditions, including “heart, lung,
C.O.P.D., Liver “C”, diabetes, high blood pressure,
back, lower 4-V-BRA, shoulder, left side, arm, hand”,
but not HCV, and alleged they were aggravated while
he was confined in Burlington County Jail.

•

Plaintiff did not allege that any medical provider
denied him treatment for any serious medical need.

•

On December 18, 2018, Plaintiff was granted leave to
amend to add Defendants CFG Health Systems, LLC; Dr.
Grace
Nugent
(incorrectly
identified
in
the
Plaintiff’s Third-Party Complaint Doctor Jane Doe);
Christina
Owens,
LPN;
Mary
Quinn-Murphy,
LPN
(incorrectly identified in the Plaintiff’s ThirdParty Complaint Nurse Murphy); Lynn Johnson, NP
(incorrectly identified in the Plaintiff’s ThirdParty Complaint as Nurse Johnson) and Stacey Chase,
RN as defendants.

•

Plaintiff’s Amended Complaint was filed on December
18, 2018.

•

Defendants’ Answer was filed on March 6, 2019.
Defendants
denied
negligence
and
deliberate
indifference and set forth affirmative defenses
including violation of the applicable statute of
limitations and failure to exhaust grievances.

•

Plaintiff’s Burlington County Jail medical records
show that Plaintiff reported having a medical history
of Hepatitis C. (Exhibit E, ECF No. 149-8 at 2, 9.)

6

•

There is no evidence in the record that Plaintiff was
undergoing HCV treatment at the time he was
incarcerated at the jail in Burlington County, from
December 15, 2014 to July 24, 2015.

•

Plaintiff only advised staff that he was taking
Metformin 500 mg daily for diabetes and Lisinporil 20
mg daily for high blood pressure/heart failure.
(Exhibit E, ECF No. 149-8 at 1.)

•

Plaintiff received these medications throughout his
entire incarceration. (Exhibit E, ECF No. 149-8 at 7,
10, 11; 149-9 at 5, 6, 8, 9, 10.)

•

There is no evidence that Plaintiff advised the
Medical Defendants of any ongoing medical treatment
for HCV. (Exhibit E, ECF No. 149-8 at 1.)

•

Plaintiff submitted several inmate request forms
seeking medical attention, but none dealt with HCV.
(Exhibit E, ECF Nos. 3, 4, 5, 6, 9.)

•

Plaintiff did not file an administrative grievance
seeking treatment of HCV. (Exhibit E, ECF Nos. 149-8
and 149-9.)

•

Plaintiff wrote to the Court and parties on July 14,
2019 to advise that he does not have or no longer has
HCV as per Temple University Hospital. (Exhibit F,
ECF No. 149-10.)

At the outset, the Court notes that the Medical Defendants do
not appear to have construed the amended complaint to contain state
law claims, as they have not specifically addressed state law
claims in their motion for summary judgment. Plaintiff, however,
refers generally
Constitution

in

to
the

state

law

amended

violations

complaint.

and

Courts

the
must

New

Jersey

liberally

construe pleadings by pro se litigants. Erickson v. Pardus, 551

7

U.S. 89, 94 (2007). Thus, the Court will address whether the
Medical

Defendants’

statute

of

limitations

defense

precludes

Plaintiff’s state law claims under the New Jersey Tort Claims Act
(“NJTCA”), N.J.S.A. 59:1-1 et seq. and/or the New Jersey Civil
Rights Act (“NJCRA”), §10A:6-1 et seq., as well as his § 1983
claims.
2.

Plaintiff’s Opposition Brief

Plaintiff opposes summary judgment. (Pl’s Opp. Brief, ECF No.
160.) He submits that he filed grievances over his concerns about
conditions

at

the

Burlington

County

Jail

and

obtained

final

administrative review. (Id. at 2.) He reasserts his allegation
that on December 15, 2014, he requested and was denied anti-viral
medications to treat Hepatitis C. (Id. at 3.) Plaintiff also
complains

that

he

has

not

received

responses

to

all

of

his

discovery requests, which he needs to create a genuine issue of
material fact for trial. (Id. at 5-9.)
Pursuant to Federal Rule of Civil Procedure 56(c)(3), “[t]he
court need consider only the cited materials, but it may consider
other materials in the record.” Thus, the Court considers the
following materials pertinent to Plaintiff’s opposition to the
Medical Defendants’ motion for summary judgment, submitted by
Plaintiff throughout the course of this litigation for filing in
the record.

8

Plaintiff provided a copy of a letter he sent to Warden
Mildred Scholtz of Burlington County Jail, dated October 6, 2015,
which purports to be a final appeal for purposes of exhaustion of
administrative remedies. (ECF No. 6 at 6.) Among other things,
Plaintiff appealed the issue of having been denied requested
medical care. (ECF No. 6 at 6.) The appeal did not specify what
medical care was denied, by whom, or when, except that the appeal
was applicable to the entire time Plaintiff was in Burlington
County Jail, beginning on December 15, 2014. (Id.)
Plaintiff also submitted to the Court a “Notice of Claim for
Damages Against Burlington County,” which he purportedly mailed on
October 9, 2015. (ECF No. 13 at 62-67.) The notice did not name
any Medical Defendants nor did it allege that Plaintiff was denied
anti-viral medication to treat Hepatitis C while in Burlington
County Jail. (Id.)
Plaintiff also submitted for filing on the docket a letter
dated November 17, 2019, which he sent to Dr. Francis Lo at
Department of Veterans Affairs-Medical Center, 3900 Woodland Ave.,
Philadelphia, Pa. (ECF No. 41 at 1.) In this letter, Plaintiff
asked Dr. Lo for copies of medical records indicating that he was
treated at the Veterans Hospital from 2011 until December 2014,
“for Methadone TREATMENT six days a week for this Medication and
Treatment….” (Id.)

9

Plaintiff submitted his affidavit, dated May 16, 2018, in
support of his claims. (Aff., ECF No. 68 at 1-4.) Plaintiff
declared that on December 15, 2014, in Burlington County Jail, he
requested treatment for Hepatitis C. (Id. at 2.) He states:
I was … seen by Nurse christien [sic] Owens
and NURSE Johnson, Nurse Jane Doe, and made
out a sick call slip to the MEDICAL Department
as to my illness, told the doctor about my
LIVER condition and that I would like to
Request said Medication for this Ongoing
Illness, She did not do anything [n]or did she
ORDER any kind of TEST for my condition, I was
made to deal WITH my condition without being
prescribed any kind of Medical TREATMENT by
those said employees or the Prison Officials,
While I was housed in Burlington County Jail….
I have a Condition which has Caused me
Symptoms…. I also requested said treatment for
my Condition [from] all the Nurses on duty on
the date of December 15, 2014 which was not
put in The records by those said Nurses that
he was on METHADONE at VETERAN’S Hospital and
had Hepatitis C. I Requested that the Nurses
contact the Veteran[’]s hospital to the
treatment I was under …. This was never done
by the Employees from CFG Health Systems, LLC,
Or the Prison Officials at Burlington County
Jail. [A]s to my grievances I also Filed my
NOTICE OF CLAIM with the Burlington County
office Of the Solicitor….
(Aff., ECF No. 68 at 1-4.)
Plaintiff submitted a second affidavit, dated January 28,
2020. (Aff., ECF No. 172.) In addition to alleging that on December
15, 2014 he told the Medical Defendants about his Hepatitis C
diagnosis and his treatment by Dr. Francis Lo at the Veteran’s
Hospital of Philadelphia, Plaintiff also alleges he was later

10

treated with anti-viral medications when he was moved into the
state prison system, and that he still suffers injuries from the
Medical Defendants failure to treat him. (Id., ¶6.)
Plaintiff

submitted

to

the

Court

a

medical

record

from

Southern State Correctional Facility, dated December 13, 2015,
after he left Burlington County Jail, which indicated his diagnosis
of chronic Hepatitis C, genotype 1b, for which he was receiving
Hepatitis A and B immunizations. (ECF No. 75 at 19.) The record,
signed by Dr. Syed Husain, states “Patient candidate for HCV
treatment. Consider administrative approval.” (Id.)
Plaintiff also submitted a copy of a letter dated September
15, 2015, after he left Burlington County Jail, which he received
from

the

Burlington

acknowledging

County

Plaintiff’s

Board

possible

of

Chosen

claim

and

Freeholders,
enclosing

a

questionnaire. (ECF No. 179 at 4.) The letter, however, does not
refer

to

HCV,

but

rather

“Claimant

alleges

injury

from

skin

infection and foot infection.” (Id.) The Court also received a
copy of a letter from Plaintiff, which he received from Burlington
County’s Insurer, denying Plaintiff’s claim on October 27, 2015.
(Id. at 5.)
Finally, the Court notes that on February 3, 2020, Plaintiff
filed a motion to appoint pro bono counsel, which was denied by
the Honorable Magistrate Judge Joel Schneider on February 27, 2020.

11

(Mot. Appoint Counsel, ECF No. 171; Order, ECF No. 181.) In his
motion, Plaintiff stated:
Claims unfiled, filed on record and unfiled
being timely by those illegal acts as to his
not being able to file complaints and
answering parties of records, access to
research material of PA, N.J., Maryland,
denied to file Complaints under two year
statutes, while he is being moved from
facility to facility and jurisdiction to out
of state jurisdictions were [sic] he has filed
inmate grievances on those illegal acts … as
to serious medical needs.
B.

Summary Judgment Standard of Review

Summary Judgment is proper where the moving party “shows that
there is no genuine dispute as to any material fact,” and the
moving party is entitled to judgment as a matter of law. Fed. R.
Civ. P. 56(a); Daubert v. NRA Group, LLC, 861 F.3d 382, 388 (3d
Cir. 2017). “A dispute is “genuine” if ‘a reasonable jury could
return a verdict for the nonmoving party,’” Baloga v. Pittston
Area Sch. Dist., 927 F.3d 742, 752 (3d Cir. 2019) (quoting Santini
v. Fuentes, 795 F.3d 410, 416 (3d Cir. 2015) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “[A] fact is
‘material’ where ‘its existence or nonexistence might impact the
outcome of the suit under the applicable substantive law.’” Id.
(citing Anderson, 477 U.S. at 248).
The burden then shifts to the nonmovant to show, beyond the
pleadings, “‘that there is a genuine issue for trial.” Daubert,
861 F.3d at 391 (quoting Celotex Corp. v. Catrett, 447 U.S. 317,
12

324 (1986) (emphasis in Daubert)). “With respect to an issue on
which the non-moving party bears the burden of proof, the burden
on

the

moving

party

may

be

discharged

by

‘showing’—that

is,

pointing out to the district court—that there is an absence of
evidence to support the nonmoving party’s case.” Conoshenti v.
Public Serv. Elec. & Gas, 364 F.3d 135, 145–46 (3d Cir. 2004)
(quoting Celotex, 477 U.S. at 323).
A party asserting that a fact cannot be or is
genuinely disputed must support the assertion
by:
(A) citing to particular parts of
materials
in
the
record,
including
depositions, documents, electronically
stored
information,
affidavits
or
declarations,
stipulations
(including
those made for purposes of the motion
only),
admissions,
interrogatory
answers, or other materials; or
(B) showing that the materials cited do
not establish the absence or presence of
a genuine dispute, or that an adverse
party cannot produce admissible evidence
to support the fact.
Fed. R. Civ. P. 56(c)(1).
“At the summary judgment stage, facts must be viewed in the
light most favorable to the nonmoving party only if there is a
‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S.
372, 380 (2007) (citing Fed. Rule Civ. Proc. 56(c)). The court’s
role is “‘not ... to weigh the evidence and determine the truth of
the matter but to determine whether there is a genuine issue for

13

trial.’” Baloga, 927 F.3d at 752 (quoting Anderson, 477 U.S. at
249)).
Plaintiff

alleges

he

has

not

received

all

discovery;

therefore, summary judgment for the defendants is improper. The
Court

disagrees.

The

Court

denied

Plaintiff’s

most

recent

discovery motion, noting “Plaintiff has had more than a sufficient
opportunity to conduct discovery and the discovery at issue was
served late.” (Order, ECF No. 180.) The fact discovery deadline
was extended twice after the Medical Defendants were joined in the
action. (Id. at 2.) No further discovery is permitted.
C.

Statute of Limitations
1.

Plaintiff

Undisputed Facts
submitted

his

original

complaint

to

prison

officials for mailing on February 21, 2016. (Compl., ECF No. 1 at
22.) To demonstrate administrative exhaustion, Plaintiff provided
a copy of an October 6, 2015 letter that he sent to Warden Mildred
Scholtz of Burlington County Jail, which purports to be a final
appeal for purposes of exhaustion of administrative remedies. (ECF
No. 6 at 6.) The Medical Defendants were not named as defendants.
However, there is no dispute that Plaintiff’s claims against the
Medical Defendants had arisen about fourteen months earlier on
December

15,

incarceration

2014,
in

and

the

allegedly

Burlington

continued
County

throughout

Jail.

his

Nonetheless,

Plaintiff did not add the Medical Defendants to the action until
14

he filed the Amended Complaint, by placing it in the prison’s legal
mail for filing on June 4, 2018. (Am. Compl., ECF No. 93 at 17.)
The Medical Defendants were served with the Amended Complaint on
February 6, 2019. (ECF No. 105.)
2.

Standard of Law

Plaintiff’s federal claims are brought under 42 U.S.C. § 1983.
Section 1983 does not create substantive rights but provides a
remedy for violation of federal rights. Dique v. New Jersey State
Police,

603

F.3d

181,

185

(3d

Cir.

2010).

Such

claims

are

characterized as personal injury claims, and state law provides
the statute of limitations. Id. (citing Cito v. Bridgewater Twp.
Police Dep't, 892 F.2d 23, 25 (3d Cir. 1989)). Under New Jersey
law, personal injury torts, including negligence, are subject to
a two-year statute of limitations. Id. (citing N.J.S.A. § 2A:142). 3 Claims under the New Jersey Civil Rights Act are also subject
to a two-year statute of limitations. Lapolla v. County of Union,
157 A.3d 458, 464 (N.J. Super. Ct. App. Div. 2017) (citing N.J.S.A.
§ 2A:14-2(a)).

3

N.J.S.A. § 2A:14-2, provides, in pertinent part:
Every action at law for an injury to the person
caused by the wrongful act, neglect or default
of any person within this State shall be
commenced within two years next after the
cause of any such action shall have accrued…
15

“[T]he accrual date of a § 1983 cause of action is a question
of federal law that is not resolved by reference to state law.”
Wallace v. Kato, 549 U.S. 384, 388 (2007). A claim accrues “when
the plaintiff knew or should have known of the injury upon which
its action is based.” Kach v. Hose, 589 F.3d 626, 634 (3d Cir.
2009) (quoting Sameric Corp. v. City of Philadelphia, 142 F.3d
582, 599 (3d Cir. 1998) (citation omitted)).
“The general rule is that state tolling principles also govern
§ 1983 claims.” Id. at 639 (citing Hardin v. Straub, 490 U.S. 536,
539, (1989)); Island Insteel Sys. v. Waters, 296 F.3d 200, 210 n.
4 (3d Cir. 2002)). New Jersey first adopted the federal continuing
violations doctrine to equitably toll the statute of limitations
in

hostile

workplace

claims,

see

Alexander

v.

Seton

Hall

University, 8 A.3d 198, 203 (N.J. 2010), and has applied it other
contexts, see Spethe v. Goode, Civ. No. 95–0264 (JBS/AMD), 2011 WL
221664, at *7 (D.N.J. Jan. 20, 2011) (noting that the continuing
violation doctrine is not necessarily limited to a particular
subject matter but it is confined to a particular framework.)
The continuing violation doctrine applies to toll the statute
of limitations “when a defendant's conduct is part of a continuing
practice … and the last act evidencing the continuing practice
falls within the limitations period.” Williams v. Borough of
Highland Park, 707 F. App'x 72, 76 (3d Cir. 2017) (quoting Brenner
v. Local 514, United Bhd. of Carpenters & Joiners of Am., 927 F.2d
16

1283, 1295 (3d Cir. 1991). To benefit from this tolling doctrine,
a plaintiff must

“show that all acts which constitute the claim

are part of the same unlawful ... practice and that at least one
act falls within the applicable limitations period.” Williams, 707
F. App’x at 76 (quoting Mandel v. M & Q Packaging Corp., 706 F.3d
157, 165–66 (3d Cir. 2013) (citing Nat'l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 122 (2002)).
New Jersey also has a general equitable tolling doctrine.
Under New Jersey law, equitable tolling is applicable if the
plaintiff “demonstrated that he ‘ha[d] been induced or tricked by
his adversary’s misconduct into allowing the filing deadline to
pass.” Bustamonte v. Borough of Paramus, 994 A.2d 573, 588 (App.
Div. 2010) (quoting Villalobos v. Fava, 775 A.2d 700 (quoting Dunn
v. Borough of Mountainside, 301 693 A.2d 1248 (App. Div.) (in turn
quoting Irwin v. Dept. of Veterans Affairs, 498 U.S. 89, 96
(1990)).
1. Application of state law tolling doctrines
If the Court liberally construes Plaintiff’s affidavit (ECF
No. 68 at 1-4) as stating that he continually requested anti-viral
drugs for HCV treatment and was denied by the Medical Defendants
the entire time he was confined in Burlington County Jail, the
continuing violation doctrine would serve to toll the two-year
statute

of

limitations

until

Plaintiff

was

released

from

Burlington County Jail on July 24, 2015. (See Burlington County
17

Defs’ Mot. for S.J., Ex. B, ECF No. 170-2 at 20 (showing Plaintiff
was released from Burlington County Jail on July 24, 2015); Pl’s
Request to File Documents, ECF No. 35 at 4 (showing Plaintiff was
no longer confined in Burlington County Jail on August 10, 2015.))
The prison mailbox rule governs when a pleading is filed for
purposes of the statute of limitations. Burns v. Morton, 134 F.3d
109, 112 (3d Cir. 1998). Plaintiff filed his Amended Complaint to
bring claims against the Medical Defendants on June 4, 2018, the
date he gave the Amended Complaint to prison officials for mailing
to the Court. Thus, the Amended Complaint was filed almost three
years after his release from Burlington County Jail on July 24,
2015.
A potential basis for equitable tolling in the record is delay
caused by exhaustion of administrative remedies. In New Jersey,
absent a showing of intentional inducement or
trickery by a defendant, the doctrine of
equitable tolling should be applied sparingly
and only in the rare situation where it is
demanded by sound legal principles as well as
the interests of justice. Freeman [v. State],
347 N.J. Super. [11], 31 [N.J. Super. Ct. App.
Div. 2002].
Harrell v. State of New Jersey Department of the Treasury, No. A3628-18T3, 2020 WL 898124, at *7 (N.J. Super. Ct. App. Div. Feb.
25,

2020).

Even

with

the

benefit

of

equitable

tolling

until

Plaintiff exhausted his administrative remedies under 42 U.S.C. §
1997e(a) on October 6, 2015, the statute of limitations would have

18

expired on October 6, 2017, well before Plaintiff added the Medical
Defendants to the Amended Complaint on June 4, 2018.

Unless the

Amended Complaint relates back to the date of filing the original
complaint, all of Plaintiff’s claims are barred by the two-year
statute of limitations.
Finally,

as

to

Plaintiff’s

assertion

in

his

motion

for

appointment of pro bono counsel that he was prevented from filing
complaints under the two year statute of limitations because he
was transferred between jurisdictions, this assertion is too vague
to establish a basis for equitable tolling. See Heyert v. Taddese,
70 A.3d 680, 708 (N.J. Super. Ct. App. Div. 2013) (equitable
tolling

is

proper

where

the

defendant

actively

misleads

the

plaintiff; the plaintiff has been prevented from asserting his
rights in an extraordinary way; or the plaintiff timely asserted
his rights in the wrong forum). The Court notes that Plaintiff has
regularly made filings in this action since it was removed to this
Court on March 22, 2017, and he has never before asserted that he
was prevented from timely filing his Amended Complaint against the
Medical Defendants.
Moreover, even if Plaintiff did not have access to his legal
papers

while

transitioning

between

correctional

facilities,

Plaintiff need only be aware of the facts that caused him injury
in order to file a timely complaint, and Plaintiff is firm in his
assertion that he requested and was denied anti-viral medications
19

for

Hepatitis

C

on

December

15,

2014.

Even

if

Plaintiff,

a

recreational litigant who has three strikes under the Prison
Litigation Reform Act, 4 was unaware of the names of the Medical
Defendants before the statute of limitations expired, he could
have used fictitious names for defendants, as he has in other
cases, 5 in order to file a timely amended complaint. Had Plaintiff
done so and diligently sought to learn the Medical Defendants’
identities, he would have been entitled to amend the complaint
after the statute of limitations expired. See New Jersey Court
Rule 4:26-4. Plaintiff is not entitled to equitable tolling of the
statute of limitations.
2.

Relation back under FRCP 15(c)(1)(A)

“Rule 15(c) of the Federal Rules of Civil Procedure governs
when an amended pleading ‘relates back’ to the date of a timely
filed original pleading and is thus itself timely even though it
was filed outside an applicable statute of limitations.” Krupski
v. Costa Crociere S. p. A., 560 U.S. 538, 541 (2010). An amendment

4

See Opinion, ECF No. 20 at 5 n. 3 (listing three cases brought
by Plaintiff that were dismissed as frivolous).
5

The Court takes judicial notice of cases ranging over the course
of more than 20 years in which Plaintiff has sued unidentified
individuals using fictitious names “John and Jane Doe.” See Camps
v. James, Civ. Action No. 95-2603 (E.D. Pa. May 8, 1995); Camps v.
Doe, Civ. Action No. 06-2538 (E.D. Pa. June 15, 2006); Camps v.
Pierce, Civ. Action No. 06-2262 (E.D. Pa. May 30, 2006); Camps v.
Hughes, Civ. Action No. 16-5416 (D.N.J. Sept. 6, 2016). Available
at www.PACER.gov.
20

can relate back to the date of the original pleading when the law
that

provides

the

applicable

statute

of

limitations

allows

relation back, and the amendment asserts a claim or defense that
arose out of the conduct, transaction, or occurrence set out in
the original pleading. Fed. Rule Civ. P. 15(c)(1)(A),(B).
New Jersey Court Rule 4:26-4 applies to actions in which
fictitious parties are named when the defendant’s true name is
unknown to the plaintiff. It provides:
if the defendant’s true name is unknown to the
plaintiff, process may issue against the
defendant under a fictitious name, stating it
to be fictitious and adding an appropriate
description sufficient for identification.
Plaintiff shall on motion, prior to judgment,
amend the complaint to state defendant’s true
name, such motion to be accompanied by an
affidavit stating the manner in which that
information was obtained.
N.J. Ct. R. R. 4:26-4.
“The fictitious name designation [ ] must have appended to it
an

‘appropriate

description

sufficient

to

identify’

the

defendant.” DeRienzo v. Harvard Industries, Inc., 357 F.3d 348,
353 (3d Cir. 2004) (quoting Rutkowski v. Liberty Mut. Ins. Co.,
506

A.2d

1302,

1306–07

(1986)).

“The

purpose

of

providing

a

sufficient description under Rule 4:26–4 is two-fold: it gives
notice of the cause of action while also helping to identify the
unknown defendant.” Miles v. CCS Corp., No. A-5947-12T3, 2015 WL
5009883, at *6 (N.J. Super. Ct. App. Div. Aug. 18, 2015).

21

New Jersey also has a general relation back rule, New Jersey
Court Rule 4:9-3. Rule 4:9-3 provides that an amendment changing
the party against whom a claim is asserted relates back to the
date of the original complaint if: (1) it arose out of the same
transaction or occurrence set forth in the original pleading; (2)
the proposed defendant received notice of the institution of the
action within the limitations period such that the party will not
be prejudiced in maintaining a defense; and (3) the proposed
defendant

knew

or

should

have

known

that,

but

for

the

misidentification of the proper party, the action would have been
brought against him or her. Arroyo v. Pleasant Garden Apartments,
14 F.Supp.2d 696, 701 (D.N.J. 1998) (citing Viviano v. CBS, Inc.,
101 N.J. 538, 503 A.2d 296, 304 (1986)); Davis v. Township of
Paulsboro, Civil No. 02-3659 (JEI), 2005 WL 8174849, at *3 (D.N.J.
May 24, 2005) (same). If a plaintiff seeks to add a defendant after
the expiration of the statute of limitations, she bears the burden
of proving that the proposed party received notice of such claims
within the statutory period. Arroyo, 14 F.Supp.2d at 701.
2.

Analysis

The original complaint did not name fictitious defendants.
(Compl., ECF No. 1 at 8.) Therefore, New Jersey Court Rule 4:26-4
is inapplicable. The Court looks, instead, to New Jersey’s general
rule governing relation back, Rule 4:9-3. The denial of medical
treatment claims against the Medical Defendants arose out of
22

Plaintiff’s

original

claims

that

his

pre-existing

medical

conditions were aggravated by the conditions under which he was
confined in the Burlington County Jail. (See Order, ECF No. 92 at
4.) Therefore, Plaintiff meets the first condition of New Jersey
Court Rule 4:9-3.
Plaintiff does not satisfy the second condition for relation
back under Rule 4:9-3 based on actual notice of the claims because
the Medical Defendants did not receive notice of the action until
the Amended Complaint was served on them on February 6, 2019. (ECF
No. 105.) Relation back, however, is also permitted under Rule
4:9-3 if the newly added parties share a sufficient identity of
interest with the originally named parties to justify treating
them as a single legal identity. Otchy v. City of Elizabeth Bd. of
Educ., 737 A.2d 1151, 1156 (N.J. Super. Ct. App. Div. Oct. 15,
1999) (citing Mears v. Economy, 188 A.2d 207 (N.J. Super. Ct. App.
Div. 1963)).
In

Otchy,

Elizabeth

was

the
a

Appellate

distinct

Division

entity

from

held
the

that

the

Elizabeth

City

of

Board

of

Education because the City and Board were separate political
entities,

each

with

separate

counsel

and

separate

insurance

coverage. Id. at 1157. Here, according to the allegations in the
Amended Complaint, the County Defendants are local government
entities and employees and the Medical Defendants are a private
entity and private employees under contract to provide services to
23

the county jail. See Gomes v. County of Monmouth, 134 A.3d 33, 40
(App. Div. Apr. 14, 2016) (noting that under the New Jersey Tort
Claims Act a private independent medical contractor “is not a
‘county, municipality, district, public authority, public agency,
[or] any other political subdivision or public body in the State.’”
(quoting N.J.S.A. 59:1-3.) The Medical Defendants, represented by
Stephen D. Holtzman, Esq. and Jeffrey S. McClain, Esq., do not
share an attorney with the County Defendants, represented by Daniel
Gee, Esq. and Evan H.C. Crook, Esq. Thus, the Court concludes that
Plaintiff has not shown the Medical Defendants share a sufficient
identity of interest with the County Defendants to impute notice
of the original pleading to the Medical Defendants within the
statute of limitations.
Even assuming Plaintiff could meet the second condition for
relation back under New Jersey Rule 4:9-3, Plaintiff has not met
the third condition, that the Medical Defendants knew or should
have known that, but for the misidentification of the proper party,
the action would have been brought against him or her. Plaintiff
did not name any medical defendants in the original complaint nor
did he make clear that he intended to bring medical claims based
on failure to provide anti-viral medication for HCV. Although
Plaintiff described his pre-existing medical conditions, albeit
without

naming

Hepatitis

C,

his

allegations

in

the

original

complaint were that the overcrowded and unsanitary conditions in
24

Burlington County Jail aggravated his pre-existing conditions.
This was insufficient to put CFG Health Systems or its employees
on notice that Plaintiff intended to sue them for failing to
provide him with anti-viral medication for HCV. See Lundy v. Adamar
of

New

Jersey,

Inc.,

34

F.3d

1173,

1182-83

(3d

Cir.

1994)

(plaintiff failed to show that but for a mistaken identity of the
proper party, the action would have been brought against the new
party).
IV.

CONCLUSION
Having determined that all of Plaintiff’s claims against the

Medical Defendants are barred by the statute of limitations, the
Court need not reach the remainder of the Medical Defendants’
arguments for summary judgment. The Court will grant the Medical
Defendants’ motion for summary judgment.

An appropriate Order follows.
Date:

March 23, 2020
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

25