STILE v. HOLLINGSWORTH et al
OPINION. Signed by Judge Renee Marie Bumb on 10/23/2017. (tf, n.m.)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JAMES T. STILE,
Civ. No. 17-2693 (RMB)
UNITED STATES OF AMERICA, et
BUMB, District Judge
Plaintiff James T. Stile seeks to bring a civil rights
complaint pursuant to Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971) against the
United States of America, past and present wardens of FCI Fort
Dix, FCI Fort Dix employee Brian Womack, and Dr. Ravi Sood,
alleging that the conditions of confinement at FCI Fort Dix and
the inadequate medical care provided to him violate the Eighth
(Compl., ECF No. 1.)
He has filed an application to
(IFP App., ECF No. 1-1.)
28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b) require courts to
review a prisoner’s complaint in a civil action and sua sponte
dismiss any claims that are (1) frivolous or malicious; (2) fail
to state a claim on which relief may be granted; or (3) seek
monetary relief against a defendant who is immune from such
relief. For the reasons discussed below, the Court grants the
against the United States, Brian Womack and Ravi Sood in their
official capacities; dismisses the Eighth Amendment failure to
without prejudice; and permits the Eighth Amendment conditions
of confinement claims to proceed, subject to briefing by the
parties of the effect of Ziglar v. Abbasi, 137 S.Ct. 1843 (2017)
on the Bivens remedy.
Sua Sponte Dismissal
Courts must liberally construe pleadings that are filed pro
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle
v. Gamble, 429 U.S. 97, 106 (1976)).
(internal quotation marks omitted).
Thus, “a pro se complaint,
“Court personnel reviewing
deciphering why the submission was filed, what the litigant is
seeking, and what claims she may be making.”
See Higgs v. Atty.
Gen. of the U.S., 655 F.3d 333, 339-40 (3d Cir. 2011) (quoting
Jonathan D. Rosenbloom, Exploring Methods to Improve Management
and Fairness in Pro Se Cases: A Study of the Pro Se Docket in
the Southern District of New York, 30 Fordham Urb. L.J. 305, 308
review complaints filed by persons proceeding in forma pauperis
in civil actions, and dismiss any claim that is frivolous or
granted, or seeks monetary relief from a defendant who is immune
identical screening for “a complaint in a civil action in which
a prisoner seeks redress from a governmental entity or officer
or employee of a governmental entity.”
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[.]”
Legal conclusions, together
with threadbare recitals of the elements of a cause of action,
conclusions, are not entitled to the assumption of truth.”
“While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.”
If a complaint can be remedied by an amendment, a district court
may not dismiss the complaint with prejudice, but must permit
Grayson v. Mayview State Hospital, 293 F.3d 103,
108 (3d Cir. 2002).
The United States as a Defendant
Plaintiff names the United States of America as a defendant
in this Bivens Action, alleging his conditions of confinement at
FCI Fort Dix violate the Eighth Amendment, and that he received
inadequate medical care in violation of the Eighth Amendment.
Plaintiff also sues two federal employees, Brian Womack and Dr.
Ravi Sood, in their official capacities.
“Absent a waiver, sovereign immunity shields the Federal
Government and its agencies from suit.” FDIC v. Meyer, 510 U.S.
See Hines v. Irvington Counseling Center, 933 F.Supp.
382, 388 (D.N.J. Jan. 23, 1996) (dismissing suit against federal
officer in his official capacity is actually a suit against the
Plaintiff’s Bivens claims against the United
States, and against Brian Womack and Dr. Ravi Sood in their
official capacities, are dismissed with prejudice because they
are immune from Bivens liability.
The United States is a proper defendant to an FTCA claim
based on negligent acts of federal employees, but there is a
jurisdictional prerequisite that a plaintiff must first present
the claim to the appropriate agency in writing, and request a
sum certain for damages.
Hoffenberg v. U.S., 504 F. App’x 81,
83 (3d Cir. 2012) (citing 28 U.S.C. § 2675(a); Deutsch v. United
Ziglar v. Abbasi
On June 19, 2017, the U.S. Supreme Court held that when a
Constitution, courts must not extend Bivens to a new context1 if
there are “special factors counseling hesitation in the absence
of affirmative action by Congress.”
Ziglar v. Abbasi, 137 S.Ct.
reasons to think Congress might doubt the efficacy or necessity
of a damages remedy as part of the system for enforcing the law
and correcting a wrong, courts must refrain from creating the
Id. at 1858.
An alternative remedial structure may
also limit the Judiciary's power to infer a new Bivens cause of
First, courts must determine whether a claim arises in a
different in a meaningful way from the previous Bivens cases
differences may include,
the rank of the officers involved; the
constitutional right at issue; the extent of
conduct]; the statutory or other legal
operating; the risk of disruptive intrusion
by the Judiciary into the functioning of
other branches; or the presence of potential
There are only three instances where the Supreme Court has
found an implied cause of action for a Constitutional violation
by agents of the Federal Government:
Bivens, 403 U.S. 388
(Fourth Amendment unlawful search and seizure); Davis v.
discrimination); and Carlson v. Green, 446 U.S. 14 (1980)(Eighth
Amendment claim of inadequate medical care in prison).
special factors that previous Bivens cases
did not consider.
Id. at 1860.
Second, courts must conduct the special factors analysis to
whether a damages action should be allowed.
Id. at 1857.
example, a Bivens action is not a proper vehicle for altering
high-level executive policy.
Id. at 1860.
Third, courts must
consider whether there were other alternative forms of judicial
relief available, including injunctions and habeas petitions.
Id. at 1849; see also Vanderklok v. United States, 868 F.3d 189,
Bivens remedy—is appropriate in many cases.”
Hernandez v. Mesa,
137 S.Ct. 2003, 2007 (2017).
Eighth Amendment Conditions of Confinement Claim
Brennan, 511 U.S. 825, 832 (1994) (citing Helling v. McKinney,
509 U.S. 25, 31 (1993)).
“[P]rison officials must ensure that
inmates receive adequate food, clothing, shelter, and medical
care, and must “take reasonable measures to guarantee the safety
of the inmates.” Id. (quoting Hudson v. Palmer, 468 U.S. 517,
[A] prison official cannot be found liable
under the Eighth Amendment for denying an
inmate humane conditions of confinement
unless the official knows of and disregards
an excessive risk to inmate health or
safety; the official must both be aware of
facts from which the inference could be
drawn that a substantial risk of serious
harm exists, and he must also draw the
Id. at 837.
Hudson v. McMillian, 503 U.S.
1, 8 (1992). “[O]nly those deprivations denying ‘the minimal
civilized measure of life's necessities’ are sufficiently grave
to form the basis of an Eighth Amendment violation.”
Id. at 9
(quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991) (quoting
Rhodes v. Chapman, 452 U.S. 337, 347 (1981) (citation omitted).
infliction of pain, nor may they be grossly disproportionate to
the severity of the crime warranting imprisonment.”
U.S. at 347.
The first aspect of judicial decisionmaking
in this area is scrutiny of the actual
conditions under challenge. It is important
to recognize that various deficiencies in
together.” Holt v. Sarver, 309 F.Supp.[362,]
affects the other; and taken together they
[may] have a cumulative impact on the
inmates.” Ibid. Thus, a court considering an
Eighth Amendment challenge to conditions of
confinement must examine the totality of the
circumstances. Even if no single condition
of confinement would be unconstitutional in
itself, “exposure to the cumulative effect
of prison conditions may subject inmates to
cruel and unusual punishment.” Laaman v.
Helgemoe, 437 F.Supp. 269, 322–323 (NH
Rhodes, 452 U.S. at 362-63; Nami v. Fauver, 82 F.3d 63, 66 (3d
Cir. 1996) (finding district court erred by failing to consider
conditions of confinement as a whole.)
In his complaint, Plaintiff alleges he has been housed for
two years in a twelve-man room with only 43 square feet of space
Plaintiff also complains of daily exposure to asbestos and
mastic glue since June 2015 (Ground One); three day exposure to
friable asbestos during a demolition job in the rear of the law
library in September 2016 (id.); constant exposure to black mold
in Building 5811; contaminated drinking water as evidenced by
sludge and sediment in the water pipes, and as evidenced by a
March 2017 news story about contamination of the water supply at
ventilation because the window size was reduced and air handlers
are used only in the summer, causing exposure to jet engine
fumes where the housing unit is in close proximity to an active
frequent exposure to diesel generator fumes when FCI Fort Dix
conditions including dripping of toilet drain pipes and shower
bacteria and viruses (unnumbered).
The injuries Plaintiff alleges to have suffered from these
exacerbation of COPD and emphysema which causes him to use an
from exposure to dangerous substances; cold, flu and E Coli
infections; and fear of future development of cancer based on
(Compl., ECF No. 1.)
Warden Jordan Hollingsworth and Warden David Ortiz were aware of
but failed to do anything about these conditions for the period
from June 2015 to the present.
(Compl., ECF No. 1, ¶¶2, 3 and
probability of recidivism and future incarceration,’ the court
Rhodes, 452 U.S. at 364 (quoting Laaman v. Helgemoe, 437 F.Supp.
269, 323 (D.N.H. 1977)). Plaintiff has sufficiently pled that
the combination of his conditions of confinement exacerbated his
potential to cause serious damage to his future health, and
caused him emotional distress about his health.
Although the Court will allow the conditions of confinement
claim is a new Bivens claim, subject to the analysis set forth
in Ziglar. Defendants may choose to file a motion to dismiss in
lieu of an answer if they wish to assert that this Court should
hesitation in implying a cause of action.
Eighth Amendment Inadequate Medical Care Claims
Plaintiff brings individual capacity Bivens claim against
his primary care physician at FCI Fort Dix, Dr. Ravi Sood, for
inadequate medical care in violation of the Eighth Amendment.
(Compl., ECF No. 1 at 20.)
The Court notes this is not a new
Bivens context under Ziglar.
The Supreme Court has recognized
medical care claims against a federal actor who is personally
involved in the deprivation.
Carlson v. Green, 446 U.S. 14
Plaintiff alleges the following facts: (1) Dr. Sood failed
to prescribe antibiotics to Plaintiff to treat E. Coli for more
Plaintiff; (2) Dr. Sood failed to review Plaintiff’s medical
Plaintiff suffered for a year or longer; (3) Dr. Sood failed to
prescribe antibiotics to Plaintiff for two months while Dr. Sood
had laboratory records indicating Plaintiff had E Coli; (4) Dr.
Sood did not properly treat Plaintiff’s longstanding symptoms of
constant diarrhea and urinary infections, and told Plaintiff to
drink more water, but the water is contaminated; (5) Dr. Sood
(Compl, ECF No. 1 at 20.)
Twice, the Plaintiff has submitted to a
urine test and was not apprised of the
positive results of bacterial infection for
longer than a full month after the test
Defendants, then the Plaintiff was not
dispensed antibiotics for as long as a week
thereafter, all of which contributed to the
unnecessary suffering both physically and
psychologically of the Plaintiff.
(Id. at 19.)
To state an inadequate medical care claim under the Eighth
Amendment’s proscription against cruel and unusual punishment,
constituted “unnecessary and wanton infliction of pain” or that
(1976). “A medical need is “serious,” in satisfaction of the
second prong of the Estelle test, if it is “one that has been
diagnosed by a physician as requiring treatment or one that is
necessity for a doctor's attention.” Monmouth County Corr. Inst.
Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (quoting
Pace v. Fauver, 479 F.Supp. 456, 458 (D.N.J.1979), aff'd, 649
F.2d 860 (3d Cir. 1981)).
Denial of or delay in treatment that causes unnecessary and
wanton infliction of pain may also constitute a serious medical
Id. (citing Estelle, 429 U.S. at 103).
or delay causes an inmate to suffer a life-long handicap or
permanent loss, the medical need is considered serious.” Id.
(citations omitted); Andrews v. Camden County, 95 F.Supp.2d 217,
F.Supp.2d 740, 745 (D. Del. 2007) (same).
An allegation of
medical malpractice or simple negligence does not rise to the
level of a constitutional violation.
Spruill v. Gillis, 372
F.3d 218, 235 (3d Cir. 2004).
Most of Plaintiff’s allegations concerning his medical care
amount to disagreement with the treatment he received from Dr.
For example, the failure to review Plaintiff’s medical
records to look for a cause of the frequent bacterial infections
Plaintiff suffered is a disagreement with how Dr. Sood evaluated
and treated Plaintiff’s bacterial infections.
The failure to
order a bladder ultrasound is also disagreement with the medical
The failure to prescribe antibiotics for E Coli is not
deliberate indifference unless no other treatment was provided,
unnecessary infliction of pain.
The same is true of Plaintiff’s
results for bacterial infection from a urine test for one month,
and did not prescribe antibiotics for another week.
bacterial infections require treatment with antibiotics.
e.g. Stewart v. Kelchner, 358 F. App’x 291, 292 n. 1 (3d Cir.
antibiotics by draining the sores”) (quoting Kaucher v. County
of Bucks, 455 F.3d 418, 421 (3d Cir. 2006)).
failure to treat with antibiotics caused Plaintiff unnecessary
and wanton infliction of pain.
Plaintiff has not alleged the reason for the delay or how the
delay caused him unnecessary and wanton infliction of pain.
treatment, deliberate indifference cannot be shown.
v. Napoleon, 897 F.2d 103, 110 (3d Cir. 1990) (‘[n]o claim is
stated when a doctor disagrees with the professional judgment of
There may, for example, be several acceptable
ways to treat an illness”) (emphasis in original).
reasons, Plaintiff’s Eighth Amendment inadequate medical care
claims against Dr. Sood are dismissed without prejudice.
Eighth Amendment Failure to Protect Claim
claim against federal employee Brian Womack, in his individual
(Compl., ECF No. 1 at 21.)
Plaintiff alleges Womack
authorized the demolition of the “asbestos laden” floor in the
law library of Building 5842 in the West Compound of FCI Fort
Dix in September 2016.
(Id. at 4.)
Plaintiff was exposed to
breathing asbestos fibers and mastic glue for three days.
Womack conducted the asbestos removal “without proper
injury that arose over these three days, but he alleges that he
was exposed to a toxic substance that may cause future harm.
(Id. at 4-5.)
To state a claim for an Eighth Amendment violation based on
exposure to an environmental health risk, an inmate must show
that he is being exposed to unreasonably high levels that pose
an unreasonable risk of serious damage to his future health.
exposure to second hand tobacco smoke).
The objective factor of
considers the risk that the prisoner complains of to be so grave
that it violates contemporary standards of decency to expose
anyone unwillingly to such a risk.”
Exposure for three days to asbestos tile removal does not
violate contemporary standards of decency because it does not
create an unreasonable risk of serious damage to future health.
See Templeton v. Anderson, 607 F. App’x 784, 787 (10th Cir.
2015) (finding exposure to black mastic and asbestos-containing
tile for one hour did not violate contemporary standards of
(exposure to moderate levels of asbestos is common); compare
Goss v. American Cyanamid, Co., 278 N.J.Super. 227, 236 (N.J.
Super. Ct. App. Div. 1994) (in a product liability asbestos
demonstrated sufficient exposure to establish
medical causation) (quoting Sholtis v. American Cyanamid Co.,
238 N.J. Super 8 (N.J. Super. Ct. App. Div. 1989)).
failure to protect claim against Defendant Brian Mack in his
The three-day removal of asbestos tiles
from the law library may be considered as part of the conditions
of confinement claim.
Motion for Subpoena
Procedure 45, directing the non-party Labcorp Raritan to produce
(Mot. for Subpoena, ECF No. 2).
must submit a subpoena that complies with the form and contents
of a subpoena, as outlined in Federal Rule of Civil Procedure
Second, Federal Rule of Civil Procedure 45(a)(4) provides:
(4) Notice to Other Parties Before Service.
If the subpoena commands the production of
information, or tangible things or the
inspection of premises before trial, then
before it is served on the person to whom it
is directed, a notice and a copy of the
subpoena must be served on each party.
Defendants Jordan Hollingsworth and David Ortiz, Plaintiff must
serve the requisite notice of subpoena on them.
Plaintiff’s motion for subpoena is denied without prejudice.
For the reasons stated above, the Court grants the IFP
capacities; dismisses the Eighth Amendment failure to protect
prejudice; and permits the conditions of confinement claims to
proceed, subject to briefing by the parties of the effect of
The subpoena submitted by Plaintiff does not include the
attachment described in the subpoena: “The provisions of
Fed. R. Civ. P. 45(c), relating to your protection as a
person subject to a subpoena, and Rule of 5 (d) and e),
relating to your duty to respond to this subpoena and the
potential consequences of not doing so, are attached.”
Ziglar v. Abbasi, 137 S.Ct. 1843 (2017) on an implied Bivens
cause of action.
An appropriate order follows.
DATE: October 23, 2017
s/Renée Marie Bumb__________
RENÉE MARIE BUMB
United States District Judge
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?