CREER et al v. CAMDEN COUNTY et al

Filing 25

OPINION. Signed by Judge Renee Marie Bumb on 9/10/2019. (rss, )

NOT FOR PUBLICATION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

LEON CREER and NAKETA
McPHERSON,

Civ. No. 18-1230 (RMB-AMD)

Plaintiffs
v.

OPINION

CAMDEN COUNTY, et al.,
Defendants
APPEARANCES:
Stephen Eric Raymond, Esq.
RAYMOND COLEMAN HEINOLD, LLP
325 New Albany Road
Moorestown, NJ 08057
On behalf of Plaintiffs
Howard Lane Goldberg, Esq.
OFFICE OF CAMDEN COUNTY COUNSEL
520 Market Street
Courthouse – 14th Floor
Camden, NJ 08102-1375
On behalf of Defendants

BUMB, United States District Judge
This matter comes before the Court upon Defendants Camden
County,

Camden

County

Correctional

Facility

(“CCCF”),

Camden

County Department of Corrections and Warden David S. Owens’ (“the
Camden County Defendants”) motion for summary judgment (Mot. for
Summ. J., ECF No. 15; Camden County Defs’ Brief, ECF No. 15-1);
Plaintiffs’ Brief in Opposition to the Camden County Defendants’

Motion for Summary Judgment (Pl’s Opp. Brief, ECF No. 18); Reply
Brief in Further Support of Motion of the Camden County Defendants
for

Summary

Judgment

(Defs’

Reply,

ECF

No.

19);

Plaintiffs’

Surreply (Pls’ Surreply, ECF No. 20); and the Camden County
Defendants’ Response to Surreply (Defs’ Response to Surreply, ECF
No. 23.) Pursuant to Local Civil Rule 56.1(a), the Court dismisses
the

motion

for

summary

judgment

because

the

Camden

County

Defendants failed to file a Statement of Material Facts Not in
Dispute in support of their motion for summary judgment.
I.

BACKGROUND
Plaintiffs filed their original complaint on September 28,

2016 in the Superior Court of New Jersey, Law Division, Camden
County, alleging CCCF staff and supervisors denied Plaintiff Creer
access to proper medical care, and that the inadequate medical
care provided to Creer at CCCF caused him irreparable harm. (Camden
County Defs’ Brief, Ex. I, ECF No. 15-13 at 4.) On June 14, 2017,
in state court, the Camden County Defendants filed a motion to
dismiss the complaint based on Plaintiffs’ failure to file an
affidavit of merit pursuant to N.J.S.A. 2A:53A-29. (Camden County
Defs’ Brief, ECF No. 15-1 at 12.) Plaintiffs filed a cross-motion
for leave to file an amended complaint to assert civil rights
violations pursuant to 42 U.S.C. § 1983 and N.J.S.A. 10:6-2(e).
(Id.) The state court denied Defendants’ motion to dismiss and
granted Plaintiffs’ motion to amend. (Id.) Plaintiffs filed an
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amended complaint on January 12, 2018, which Defendants removed to
federal court after engaging in discovery. (Camden County Defs’
Brief, ECF No 15-1 at 12.)
II.

THE AMENDED COMPLAINT
Plaintiffs to this action are Leon C. Creer and his alleged

spouse, Naketa McPherson. (Am. Compl., ECF No. 1-4 at 2, ¶¶1-2.)
The

defendants

are

Camden

County,

Camden

County

Correctional

Facility, T.R.I.–TELE. TECH., LLC (d/b/a Paintball Invasion), John
Doe 1-10 and ABC, Inc. 1-10. (Id. at 2-3, ¶¶3-7.) Warden David S.
Owens and Camden County Department of Corrections are named as
defendants in the caption of the amended complaint, although they
are not named under the heading “Parties” in the body of the
amended complaint. (Id., at 2-3.)
Plaintiffs make the following factual allegations. Plaintiff
Creer was hit in the hand while playing paintball at Paintball
Invasion on September 28, 2014. (Id. at 3, ¶¶8-12.) The next day,
Plaintiff Creer went to the emergency room at Kennedy Hospital in
Stratford, New Jersey, where he was diagnosed with cellulitis, a
skin infection, and treated with an antibiotic. (Id., ¶¶13-14.)
His finger was x-rayed and splinted. (Id. at 4, ¶15.) Per his
discharge instructions, he returned to the emergency room on
September 30, 2014, where his abscessed finger was drained. (Id.,
¶¶16-17.) Plaintiff Creer was instructed to follow up with a
specialist. (Id., ¶18.)
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On October 2, 2014, Plaintiff Creer was arrested and remanded
to CCCF. (Id., ¶19.) Upon admission to CCCF on October 3, 2014,
Plaintiff Creer advised staff of his medical condition and need
for follow up with a specialist. (Id., ¶¶20-21.) CCCF received his
records

from

Kennedy

Hospital.

(Id.,

¶22.)

Plaintiff

Creer’s

splint was replaced at CCCF but he was not given his prescribed
antibiotics. (Id., ¶¶24-25.)
Plaintiff

Creer

continually

complained

to

CCCF

staff,

verbally and in writing, that he needed to see a specialist and
his finger was getting worse. (Id. at 5, ¶¶26-28.) On October 31,
2014, CCCF medical staff recommended that Plaintiff Creer see a
specialist at Cooper University for a surgical consult, but the
appointment was not scheduled. (Id., ¶¶29-30.) Plaintiff McPherson
sent an e-mail to Warden David Owens on November 24, 2014, to ask
why her husband had not yet seen a specialist. (Id., ¶31.)
Plaintiff Creer saw a specialist at Cooper Medical on December
22, 2014, and the specialist recommended amputation. (Id., ¶32.)
Plaintiff Creer received a second opinion from Dr. John Taras at
Philadelphia Hand Center, who offered to do exploratory surgery
but felt that amputation would likely be necessary. (Id., ¶34.)
Plaintiff Creer posted bail on February 5, 2015. (Id., ¶35.)
Count One is alleged against T.R.I.–TELE. Tech., L.L.C., who
is not a party to the present summary judgment motion. (Id. at 6,
¶¶36-38.) Count Two is alleged against all remaining defendants.
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(Am. Compl., ECF No. 1-4 at 7, ¶¶39-45.) In Count Two, Plaintiffa
allege: (1) CCCF staff had a duty to provide Plaintiff Creer with
adequate medical care; (2) Plaintiff Creer informed CCCF medical
staff of his condition and provided medical records from Kennedy
emergency room; (3) CCCF staff and supervisors denied Plaintiff
Creer access to proper medical care; (4) despite Creer’s written
grievances and verbal complaints, he was not brought to a hand
specialist within a reasonable amount of time; (5) the delay in
bringing him to a hand specialist caused him irreparable harm; and
(6) the inadequate care Plaintiff Creer received at CCCF caused
him irreparable harm. (Id.)
In

Count

Three,

Plaintiffs

allege

the

lack

of

medical

treatment within CCCF violated Plaintiff Creer’s civil rights.
(Id. at 8, ¶47.) Plaintiffs allege “[t]his suit is brought under
42 U.S.C.A. § 1983.” (Id., ¶50.) In Count Four, Plaintiffs allege
the lack of medical treatment within CCCF violated Plaintiffs’
civil rights, and “[t]his suit is brought under N.J.S.A. 10:62(c).” (Id. at 8-9, ¶¶54-55.) In Count Five, Plaintiffs allege
Naketa McPherson is Plaintiff Creer’s wife and due to Defendants’
negligence,

she

has

been

deprived

of

the

care,

services,

companionship and consortium of her husband, Leon Creer. (Id. at
9, ¶¶56-59.)
III. NONCOMPLIANCE WITH LOCAL CIVIL RULE 56.1(a)
This Court’s Local Civil Rule 56.1(a) provides:
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(a) Statement of Material Facts Not in Dispute
On motions for summary judgment, the movant
shall furnish a statement which sets forth
material facts as to which there does not
exist a genuine issue, in separately numbered
paragraphs citing to the affidavits and other
documents submitted in support of the motion.
A motion for summary judgment unaccompanied by
a statement of material facts not in dispute
shall be dismissed. The opponent of summary
judgment shall furnish, with its opposition
papers, a responsive statement of material
facts, addressing each paragraph of the
movant's statement, indicating agreement or
disagreement and, if not agreed, stating each
material fact in dispute and citing to the
affidavits and other documents submitted in
connection with the motion; any material fact
not disputed shall be deemed undisputed for
purposes of the summary judgment motion. In
addition, the opponent may also furnish a
supplemental statement of disputed material
facts, in separately numbered paragraphs
citing to the affidavits and other documents
submitted in connection with the motion, if
necessary to substantiate the factual basis
for opposition. The movant shall respond to
any such supplemental statement of disputed
material facts as above, with its reply
papers. Each statement of material facts shall
be a separate document (not part of a brief)
and shall not contain legal argument or
conclusions of law.
The Camden County Defendants, in support of their motion for
summary judgment, did not submit a Statement of Material Facts Not
in Dispute in compliance with Local Civil Rule 56.1(a). Therefore,
the Court will dismiss the motion for summary judgment without
prejudice, subject to reopening upon submission by the Camden
County Defendants of a Statement of Material Facts Not in Dispute,

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in compliance with Local Civil Rule 56.1(a), filed within thirty
days of the accompanying Order.
IV.

CONCLUSION
For the reasons discussed above, the Court will dismiss

Defendants’ motion for summary judgment without prejudice.

An appropriate Order follows.

Date: September 10, 2019
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

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