ALEXIS v. SESSIONS et al

Filing 28

OPINION. Signed by Judge Robert B. Kugler on 2/4/2021. (rss, n.m.)

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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
VINCENT P. ALEXIS,
Plaintiff,
v.

Civ. Nos.

18-2099 (RBK) (KMW)
18-13464 (RBK) (JS)

JEFF SESSIONS, et al.,

OPINION

Defendants.

=
VINCENT P. ALEXIS,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

ROBERT B. KUGLER, U.S.D.J.
Before the Court are Plaintiff’s motions to reopen and for leave to amend in the above
matters. (ECF No. 271; Alexis II, No. 18-13464, ECF No. 16.) Plaintiff filed an identical Proposed
Amended Complaint in both matters. (ECF No. 27-2; Alexis II, No. 18-13464, ECF No. 17.) Both
cases address the same underlying set of events, but Alexis II is a Federal Tort Claims Act
(“FTCA”) claim against the United States, while Alexis I sued the individual actors.
The Court had dismissed Alexis I, without prejudice, for failure to state a claim, primarily
on statute of limitations grounds. (ECF No. 5.) In Alexis II, Plaintiff had filed a motion to amend

For ease of reference, the Court will treat Civil Action No. 18-2099, “Alexis I,” as the primary
case, and Civil Action No. 18-13464, “Alexis II,” as the secondary case. The Court will include
the case name and docket number for citations to the record in Alexis II.
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prior to the Court’s initial screening, and the Court terminated the matter pending submission of
an amended complaint. (Alexis II, No. 18-13464, ECF No. 14.) For the reasons stated below, the
Court will grant Plaintiff’s motions to reopen and for leave to amend, and then dismiss the
Amended Complaints.
I. FACTUAL BACKGROUND
As set forth in the Court’s earlier Opinion in Alexis I:
This case arises from Plaintiff’s medical treatment while
incarcerated at FCI Fort Dix, for his septic sinus infection and
chronic Lyme disease. According to the complaint, Plaintiff became
ill with a septic sinus infection on March 19, 2014. Plaintiff, who
holds a doctorate in veterinary medicine, alleges that he sought
treatment for the infection, but through a series of misdiagnoses,
delays, and refusals to send him to the hospital, his infection
remained untreated, until it significantly worsened.
Prison officials ultimately sent Plaintiff to Defendant Saint Francis
Medical Center on March 22, 2014, where his diagnostic tests
revealed that a bacterial infection had spread through his body. In
order to gain control over the sepsis, hospital physician Dr. Samir
Undavia performed sinus surgery to remove the infection sites and
establish drainage on March 27, 2014. Dr. Undavia encountered
tremendous inflammation and observed that the “case became very
difficult given how much necrotic tissue was everywhere,” as a
result of the earlier misdiagnoses and delays in Plaintiff’s treatment.
While recovering at the hospital, on March 31, 2014, both of
Plaintiff’s lungs collapsed, requiring hospital staff to install
emergency chest tubes. Plaintiff contends that the staff member
negligently positioned the chest tubes, which required a second
procedure to reposition those tubes. The repositioning failed and
required Plaintiff to undergo major thoracic surgery. The hospital
discharged Plaintiff on May 5, 2014.
According to Plaintiff, from the date of his discharge until
September 15, 2015, prison officials and medical staff misdiagnosed
his residual sinus issues and Lyme disease, withheld medical
documents, and negligently failed to prescribe antibiotics on a
number of occasions. Additionally, Plaintiff takes issue with the
staff’s failure to schedule some of his post-surgery follow-ups with
Dr. Undavia, instead “negligently” scheduling him to meet with
other ear, nose, and throat specialists.
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In response to those failures, Plaintiff filed his grievances and
appeals thereof, on November 6, 2014, November 20, 2014, January
12, 2015, and March 5, 2015, amending his appeal each time to
include new alleged failures of prison officials and medical staff.
He received a response to each of those appeals on November 17,
2014, January 6, 2015, February 25, 2015, and September 7, 2015,
from a number of the Defendant wardens, directors, and
administrators, who ultimately concluded that Plaintiff received
proper and adequate medical care and treatment and denied the
appeals.
Plaintiff finally met with Dr. Undavia for his first post-operative
check on November 9, 2015 but contends that prison officials and
medical staff unnecessarily delayed two of four subsequent
meetings with Dr. Undavia. During those meetings, Dr. Undavia
recommended that Plaintiff undergo a second surgery to alleviate
his residual sinus and related issues. Dr. Undavia performed the
second surgery on May 4, 2017.
Although the second surgery alleviated some of Plaintiffs
afflictions, he alleges that he still experiences difficulty draining his
sinuses, trouble sleeping, and nosebleeds. Additionally, he
experiences significant pain and restrictions on activity, as a result
of the thoracotomy after his first sinus surgery.
(ECF No. 5, at 2–4 (citations omitted).)
Plaintiff raised Eighth Amendment deliberate indifference claims, alleging that Defendants
refused to provide proper treatment, delayed necessary treatment, prevented him from receiving
treatment, or some combination of the three, and corresponding state law claims. The Court
dismissed the majority of the complaint on statute of limitations grounds. Additionally, the Court
dismissed the claims against Defendants Sessions, Inch, Samuels, Smith, and Santana, as Plaintiff
failed to include any allegations against those Defendants. (Id. at 6–7.) The Court offered Plaintiff
an opportunity to submit an amended complaint to address those issues.
In Alexis II, Plaintiff submitted a complaint detailing the same events discussed above but
styled it as an FTCA complaint against the United States, rather than suing the individual actors.

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The Court had terminated that matter for Plaintiff’s failure to provide the Court with his new
address. Plaintiff had remedied that failure, but before the Court could complete its initial
screening in that case, Plaintiff requested leave to file a motion to amend. The Court granted
Plaintiff’s request. (Alexis II, 18-13464, ECF No. 14.)
Now before the Court are Plaintiff’s motions to reopen and for leave to amend. Plaintiff
submitted an identical Proposed Amended Complaint (hereinafter “Amended Complaint”) in both
matters. (ECF No. 27-2; Alexis II, No. 18-13464, ECF No. 17.) The Amended Complaint
resubmits his claims from the earlier complaints and contains some new allegations related to
Plaintiff’s medical treatment after 2016. The pleading also contains a section devoted to the statute
of limitations.
II. STANDARD OF REVIEW
A. Standard for Sua Sponte Dismissal
District courts must review complaints in civil actions in which a plaintiff is proceeding in
forma pauperis. See 28 U.S.C. § 1915(e)(2)(B). District courts may sua sponte dismiss any claim
that is frivolous, is malicious, fails to state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune from such relief. See id. According to the
Supreme Court’s decision in Ashcroft v. Iqbal, “a pleading that offers ‘labels or conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will not do.’” 556 U.S. 662, 678 (2009)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)).
To survive sua sponte screening for failure to state a claim,2 the complaint must allege
“sufficient factual matter” to show that the claim is facially plausible. See Fowler v. UPMC

“The legal standard for dismissing a complaint for failure to state a claim pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6).” Schreane v. Seana, 506 F. App’x 120, 122 (3d Cir. 2012) (per curiam) (citing
2

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Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). “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 [alleged] misconduct.” Iqbal, 556 U.S. at 678. Moreover, while courts liberally
construe pro se pleadings, “pro se litigants still must allege sufficient facts in their complaints to
support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation
omitted).
B. Bivens Actions
Section 1983 of Title 42 created a remedy for monetary damages when a person acting
under color of state law injures another, but “Congress did not create an analogous statute for
federal officials. Indeed, in the 100 years leading up to Bivens, Congress did not provide a specific
damages remedy for plaintiffs whose constitutional rights were violated by agents of the Federal
Government.” Ziglar v. Abbasi, 137 S. Ct. 1843, 1854 (2017). The Supreme Court created an
implied cause of action in Bivens when federal officers violated a person’s Fourth Amendment
rights. Bivens, 403 U.S. at 397. The Court extended the Bivens remedy twice more in: Davis v.
Passman, 442 U.S. 228 (1979) (holding administrative assistant fired by Congressman had a
Bivens remedy for her Fifth Amendment gender discrimination claim), and Carlson v. Green, 446
U.S. 14 (1980) (holding that prisoner’s estate had a Bivens remedy against federal jailers for failure
to treat his asthma under the Eighth Amendment). “These three cases—Bivens, Davis, and
Carlson—represent the only instances in which the Court has approved of an implied damages

Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)); see also Malcomb v. McKean, 535 Fed.
App’x 184, 186 (3d Cir. 2013) (finding that the Rule 12(b)(6) standard applies to dismissal of
complaint pursuant to 28 U.S.C. § 1915A for failure to state a claim).

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remedy under the Constitution itself.” Ziglar, 137 S. Ct. at 1855. As is relevant in the present case,
the Supreme Court has recognized an implied cause of action for Eighth Amendment inadequate
medical care claims against a federal actor who is personally involved in the deprivation. Carlson,
446 U.S. at 19.
In order to state a claim under Bivens, a plaintiff must allege: (1) a deprivation of a right
secured by the Constitution or laws of the United States; and (2) that the deprivation of the right
was caused by a person acting under color of federal law. See Couden v. Duffy, 446 F.3d 483, 491
(3d Cir. 2006).
III.

DISCUSSION

A. Sovereign Immunity
As a preliminary matter, Plaintiff asserts Bivens claims against the United States, as well
as the individual Defendants, both in their official and individual capacities. To be liable under
Bivens, a defendant must be a “person.” The Third Circuit has held in Jaffee v. United States, 592
F.2d 712, 717–18 (3d Cir. 1979), that sovereign immunity bars Bivens claims against the United
States and its agents unless the United States explicitly waives its immunity, and accordingly, they
are not “persons” amenable to suit under Bivens. See, e.g., Corr. Servs. Corp. v. Malesko, 534 U.S.
61, 72 (2001); Lewal v. Ali, 289 F. App’x 515, 516 (3d Cir. 2008) (“An action against government
officials in their official capacities constitutes an action against the United States; and Bivens
claims against the United States are barred by sovereign immunity, absent an explicit waiver.”).
Here, the United States is immune from suit under Bivens because it has not explicitly
waived sovereign immunity. Similarly, as the individual Defendants are employees or former
employees of FCI Fort Dix, or the Federal Bureau of Prisons, or both, which are federal entities,
they are immune from suit, at least in their official capacities. See, e.g., Webb v. Desan, 250 F.

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App’x 468, 471 (3d Cir. 2007). Accordingly, the Court will dismiss with prejudice the Bivens
claims against the United States and the individual Defendants, in their official capacities.
B. Statute of Limitations
As discussed in the Court’s prior Opinion, the Court can raise statute of limitations issues
sua sponte, at the screening stage. See Ostuni v. Wa Wa’s Mart, 532 F. App’x 110, 111–12 (3d
Cir. 2013) (per curiam) (“Although the running of the statute of limitations is ordinarily an
affirmative defense, where that defense is obvious from the face of the complaint and no
development of the record is necessary, a court may dismiss a time-barred complaint sua sponte
under § 28 U.S.C. § 1915(e)(2)(B)(ii) for failure to state a claim.”).
Our jurisprudence takes the statute of limitations for a Bivens claim from the forum state’s
personal injury statute. See Hughes v. Knieblher, 341 F. App’x 749, 752 (3d Cir. 2009) (per
curiam) (citing Kost v. Kozakiewicz, 1 F.3d 176, 190 (3d Cir. 1993). New Jersey’s statute of
limitations for personal injury actions is two years. See N.J. Stat. § 2A:14–2. “While state law
provides the applicable statute of limitations, federal law controls when a Bivens claim accrues.”
Peguero v. Meyer, 520 F. App’x 58, 60 (3d Cir. 2013) (citing Wallace v. Kato, 549 U.S. 384, 388
(2007). Under federal law, a Bivens claims accrues when a plaintiff knows of or has reason to
know of the injury. See Hughes, 341 F. App’x at 752 (citing Sameric Corp. v. City of Phila., 142
F.3d 582, 599 (3d Cir. 1998)).
Here, Plaintiff complains of denials and delays in his medical care which may fall under
the Eighth Amendment’s prohibition against cruel and unusual punishment. For the delay or denial
of medical care to rise to a constitutional violation, a prisoner must demonstrate “(1) that
defendants were deliberately indifferent to [his] medical needs and (2) that those needs were
serious.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999). Deliberate indifference requires

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proof that the official “knows of and disregards an excessive risk to inmate health or safety.”
Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003) (quoting Farmer v.
Brennan, 511 U.S. 825, 837 (1994)).
Courts have found deliberate indifference where a prison official: “(1) knows of a
prisoner’s need for medical treatment but intentionally refuses to provide it; (2) delays necessary
medical treatment based on a nonmedical reason; or (3) prevents a prisoner from receiving needed
or recommended treatment.” Rouse, 182 F.3d at 197.
Courts give deference to prison medical authorities in the diagnosis and treatment of
patients and will not “second-guess the propriety or adequacy of a particular course of treatment
... [which] remains a question of sound professional judgment.” Inmates of Allegheny Cnty. Jail v.
Pierce, 612 F.2d 754, 762 (3d Cir. 1979).

Allegations of negligent treatment or medical

malpractice do not trigger constitutional protections. Estelle v. Gamble, 429 U.S. 97, 105–06
(1976); Pierce v. Pitkins, 520 F. App’x 64, 66 (3d Cir. 2013) (per curiam).
With those principles in mind, this Court dismissed the majority of Alexis I as time barred:
In the present case, determining when Plaintiff knew of or had
reason to know of his Eighth Amendment injuries is a somewhat
unusual task in light of Plaintiff’s advanced medical knowledge.
According to Plaintiff, he became ill with a septic sinus infection on
March 19, 2014. Plaintiff contends that his symptoms “should have
been alarming to any health care professional” and that the prison
medical staff should have sent him to the hospital at his request.
Instead, he alleges that the staff failed to diagnose and treat him,
until his infection worsened, which required him to undergo sinus
surgery on March 27, 2014, at Saint Francis Medical Center. During
his recovery at the medical center, both of his lungs collapsed, which
necessitated a major thoracotomy.
The complaint then alleges, in impressive detail, that Plaintiff
notified the prison medical staff of issues arising from his surgeries
and pre-existing Lyme disease and then advised them of the proper
course of medical treatment. For example, on a number of instances,
Plaintiff received his medical test results, such as his radiographs,
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and alleges that he was able to properly diagnose himself and request
the proper treatment. With his medical knowledge in mind, he
explains that on many occasions over approximately eighteen
months, until September 15, 2015, the medical staff refused to
provide proper treatment, delayed necessary medical treatment, and
prevented him from receiving medical treatment. Plaintiff then
faults the medical directors and prison administrators, directors, and
wardens for denying his administrative grievances and appeals, and
for failing to provide him with the requested relief.
Plaintiff filed those grievances and appeals, on November 6, 2014,
November 20, 2014, January 12, 2015, and March 5, 2015,
complaining of the denied, delayed, and prevented treatment, in
impressive detail. Thus, at the latest, Plaintiff was aware of his
injury and had a complete cause of action as of March 5, 2015, as to
his deliberate indifference claims preceding that date. To the extent
that exhausting administrative remedies could have tolled the statute
of limitations, Plaintiff received a denial to the last of those appeals
on September 7, 2015. Consequently, the statute of limitations
required3 Plaintiff to file a complaint raising those claims by
September 7, 2017.
Plaintiff’s allegations after filing his last appeal through September
15, 2015, generally pertain to Defendant Sood’s refusal to treat a
flare-up of Plaintiff’s Lyme disease, and the failure of Defendants
to schedule a follow-up with Dr. Undavia, who performed the first
surgery, instead scheduling Plaintiff to see a different ear nose and
throat doctor. Plaintiff states that he was well-aware of his Lyme
disease and the need for a follow-up with Dr. Undavia each time
Defendants denied his requests.
Thus, he had a complete cause of action, and the statute of
limitations required him to file a complaint as to those claims by
September 15, 2017, at the latest. Accordingly, because Plaintiff
did not file the instant complaint until February of 2018, the statute
of limitations bars these claims and any claim that arose prior to
February of 2016.
(ECF No. 5, at 7–11. (emphasis in original) (citations omitted).)

3

To the extent that the Court could interpret Plaintiff’s claims as medical malpractice or ordinary
negligence claims, a two-year statute of limitations would also apply to such claims. See N.J. Stat.
§ 2A:14-2; Montgomery v. DeSimone, 159 F.3d 120, 126 n. 4 (3d Cir. 1998); McGrogan v. Till,
744 A.2d 255, 260 (N.J. Super. Ct. App. Div. 2000), aff’d as modified, 771 A.2d 1187 (2001).
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In the Amended Complaint, Plaintiff contends that the Court should excuse his late filing
because: (1) under the discovery rule, he only discovered the extent of his injuries on December
8, 2017, and (2) because Defendants deliberately withheld his medical records at various times.
(ECF No. 27-2, at 47, 76–78.)
More specifically, Plaintiff alleges that he was unaware of the severity of the damage to
his lungs until he received his thoracic surgery report, many years later, on December 8, 2017.
The report revealed that Plaintiff’s lungs had multiple large abscesses.

He contends that

unspecified Defendants concealed this report and other medical records for a number of years.
(ECF No. 27-2, at 38–39, 47, 77.) As a result, Plaintiff argues that he had “filed the complaint just
eight months after becoming aware of the presence of permanent lung damage,” and that the
discovery rule renders his first complaint timely. (ECF No. 27-2, at 47.)
Under our jurisprudence, the discovery rule in New Jersey permits a delay of the two-year
statute of limitations where a “plaintiff is reasonably unaware that he has suffered an injury or,
even though he is aware of the injury, that it was the fault of an identifiable person.” Dique v. New
Jersey State Police, 603 F.3d 181, 185 (3d Cir. 2010) (citing Caravaggio v. D’Agostini, 765 A.2d
182, 187 (N.J. 2001)).
The rule postpones accrual until the “injured party discovers, or by exercise of reasonable
diligence and intelligence should have discovered[,] that he may have a basis for an actionable
claim.” Id. Once a potential claimant becomes aware of the injury and that someone was at fault,
however, then the statute of limitations begins to run. See Grunwald v. Bronkesh, 621 A.2d 459,
463 (N.J. 1993).
Critically, a “plaintiff’s ignorance regarding the full extent of his injury is irrelevant to the
discovery rule’s application, so long as the plaintiff discovers or should have discovered that he

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was injured.” Stephens v. Clash, 796 F.3d 281, 288 (3d Cir. 2015) (citing Kach v. Hose, 589 F.3d
626, 635 (3d Cir. 2009)). Stated differently, the statute of limitations begins to run “even though
the full extent of the injury is not then known or predictable.” Kach, 589 F.3d at 635.
In the present case, the discovery rule does not change the Court’s conclusion that the
majority of Plaintiff’s claims are untimely. Although Plaintiff contends that he learned the full
extent of his injuries upon receiving the surgery report on December 8, 2017, he was keenly aware
that certain Defendants had caused him some amount of harm before and shortly after the surgery.
Indeed, Plaintiff became ill with his septic sinus infection on March 19, 2014, and alleges
that certain Defendants misdiagnosed him, delayed treatment, or refused to send him to the
hospital, or some combination of the three, until his condition significantly worsened. (ECF No.
27-2, at 6–12.) According to Plaintiff, these failures necessitated numerous medical procedures,
including major thoracic surgery, from March 31, 2014, through April 7, 2014.
Consequently, those delays and denials of medical treatment already inflicted an injury on
Plaintiff when they caused his condition to worsen. Similarly, in that sense, the fact that Plaintiff
needed multiple procedures at the hospital or major thoracic surgery at all, was itself a harm
resulting from the failures of those Defendants.
As a result, the Amended Complaint demonstrates that Plaintiff was cognizant that the
Defendants in question had violated his rights and that he was harmed in some way, as early as
March and April of 2014. Accordingly, at that point, Plaintiff had a complete cause of action as
to those claims, “regardless of . . . any additional” injuries revealed during his thoracic surgery.
See Stephens, 796 F.3d at 288. Once again, the statute of limitations begins to run “even though
the full extent of the injury is not then known or predictable.” Kach, 589 F.3d at 635.

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In any event, as discussed in the Court’s earlier Opinion, Plaintiff filed numerous
grievances and appeals from November of 2014 through March of 2015, alleging, in impressive
detail, that Defendants denied, delayed, and prevented medical treatment, resulting in substantial
suffering. (ECF No. 1, at 32, 34, 39, 42; ECF No. 27-4 (containing some of Plaintiff’s grievances
and appeals)).
For example, in Plaintiff’s November 5, 2014, BP-8 grievance he stated: “since March 20,
2014, and currently, I’ve received grossly negligent medical care. In addition, my Eighth
Amendment Rights have been violated. As a result, I’ve experienced unnecessary pain and
suffering, and ongoing medical problems.” (ECF No. 1-3, at 1.)

He further stated that

“immediately upon return from the hospital (& consistently since then) [he] made it clear that [he]
had problems that weren’t being properly addressed,” and that he had contacted Defendant Sood,
and other staff members regarding these problems. (Id.) Thereafter, in his administrative appeals
in November of 2014, January of 2015, and March of 2015, Plaintiff lists, in remarkable medical
detail, all the ways he believed that certain Defendants failed to treat him. (Id. at 8–9, 16–17.)
Accordingly, in his own words, Plaintiff had been alleging that Defendants committed
negligence, medical malpractice, and violated his Eighth Amendment rights, throughout the
administrative grievance process. The allegation that he only discovered the true extent of his
injuries, many years later, does not change the conclusion that he was aware of some injuries
traceable to the Defendants in question, and had a complete cause of action on March 5, 2015, at
the latest, as to the claims preceding that date.
To the extent that exhausting administrative remedies could have tolled the statute of
limitations, Plaintiff received a denial to the last of those appeals on September 7, 2015. See
Pearson v. Sec’y Dep’t of Corr., 775 F.3d 598, 603 (3d Cir. 2015). Consequently, the statute of

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limitations required Plaintiff to file a complaint raising those claims by September 7, 2017, at the
latest.
Accordingly, because Plaintiff did not file his initial complaint in Alexis I until February 8,
2018, the statute of limitations bars any claim that arose prior to February 8, 2016. Peguero, 520
F. App’x at 60. The discovery rule and the allegation that unnamed Defendants concealed his
surgery report and other documents do not change that conclusion. As a result, the Court will grant
Plaintiff’s motion to reopen and for leave to amend, and then dismiss with prejudice all claims that
began to accrue prior to February 8, 2016.
C. Rule 8 and the Remaining Claims in Alexis I
Although the majority of Plaintiff’s claims are time barred, he does allege that some
Defendants had violated his rights within two years of filing Alexis I, i.e., from February 8, 2016
and onwards. (See ECF No. 27-2, at 28–36.) For the following reasons, the Court will dismiss
those claims for failure to comply with Federal Rule of Civil Procedure 8 and for failure to state a
claim.
Under Federal Rule of Civil Procedure 8(a):
(a) A pleading that states a claim for relief must contain[:] (1) a short
and plain statement of the grounds for the court’s jurisdiction, unless
the court already has jurisdiction and the claim needs no new
jurisdictional support; (2) a short and plain statement of the claim
showing that the pleader is entitled to relief; and (3) a demand for
the relief sought, which may include relief in the alternative or
different types of relief.
“Thus, a pro se plaintiff’s well-pleaded complaint must recite factual allegations which are
sufficient to raise the plaintiff’s . . . right to relief beyond the level of mere speculation, set forth
in a ‘short and plain’ statement of a cause of action.” Johnson v. Koehler, No. 18-00807, 2019 WL
1231679, at *3 (M.D. Pa. Mar. 15, 2019). Stated differently, Rule 8 requires a showing that the

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plaintiff is entitled to relief in order to “give the defendant fair notice of what the . . . claim is and
the grounds upon which it rests.” Id. (quoting Erickson v. Pardus, 551 U.S. 89, 93 (2007)).
In the present case, the potentially timely allegations on pages 28 through 36 fail to directly
allege what Plaintiff’s claims are against each Defendant and fail to provide fair notice of the
grounds on which he intends to rest his claims. For the most part, these allegations are a collection
of “bare conclusions [against the Defendants]. . . which are insufficient as a matter of law to state
a claim for relief.” Kaplan v. Holder, No. 14-1740, 2015 WL 1268203, at *4 (D.N.J. Mar. 18,
2015) (citing Iqbal, 556 U.S. at 678). Additionally, on nearly every occasion, Plaintiff fails to
specify which of the many Defendants committed any particular wrong during this time period.
For example, in September of 2016, the Amended Complaint alleges that “the defendant
negligently continued to delay in arranging for [his] care with Dr. Undavia – due to
disorganization, laziness, cost-savings and retaliation.” (ECF No. 27-2, at 29.) Similarly, in May
of 2017, the Complaint alleges that “the defendant negligently failed (on no less than five
occasions) to arrange for these vital recheck appointments,” and that “the defendant negligently
failed to provide a specialist with necessary diagnostic results.” (Id. at 31.) Plaintiff also alleges
that the decision on “May 30, 2018, by the defendant to cancel an . . . appointment with [his]
surgeon,” was retaliation for filing a federal lawsuit. (Id. at 35.) Similarly, in June and July of
2019, Plaintiff contends that his new medication “was deliberately withheld from [him] by the
defendants.” (Id. at 38.)
In all of these instances, and in many others, the Amended Complaint fails to specify which
Defendant or combination of Defendants committed the alleged wrongs. (See id. at 28–36.)
Plaintiff also fails to identify how the denials occurred, i.e., under what circumstances a Defendant
chose to delay or deny Plaintiff’s medical care. (Id.)

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As a result, the potentially timely claims in the Amended Complaint, in their current form,
“would not provide any meaningful opportunity for the Defendants to decipher or answer the
vague allegations levied against them.” Koehler, 2019 WL 1231679, at *3; see Twombly, 550 U.S.
at 555. Accordingly, the Court will dismiss without prejudice the remainder of Alexis I under Rule
8 and for failure to state a claim.
The Court will provide Plaintiff with an opportunity to submit another proposed amended
complaint that only contains claims that began to accrue after February 8, 2016. Additionally, in
Plaintiff’s proposed pleading, he shall: 1) “refrain from repeating allegations, unless absolutely
necessary; (2) include allegations about each defendant in a single location rather than scattering
the allegations throughout the pleading; (3) refrain from going into detail about every single
discussion that may have occurred, unless absolutely relevant to the claims; (4) refrain from
discussing” background information or other events that “only have a tangential relation to the
underlying claims; (5) refrain from arguing and using conclusive allegations;” (6) refrain from
discussing reactions, feelings, conjecture, and thoughts, after each Defendant’s actions; and (7)
refrain from including citations to case law4 and other legal authorities. Mobley v. Wetzel, No. 1400035, 2016 WL 11452949, at *1–2 (M.D. Pa. Feb. 11, 2016).
D. Federal Tort Claims Act Claim in Alexis II
With regards to Plaintiff’s FTCA claim in Alexis II, a plaintiff must present the claim to
the appropriate agency within two years of the accrual of the claimant’s cause of action. See 28
U.S.C. § 2675(a); White-Squire v. U.S. Postal Serv., 592 F.3d 453, 457 (3d Cir. 2010). The agency
then has a six-month period within which to settle or deny the claim. See 28 U.S.C. § 2675(a). If
the agency denies the claim, a claimant then has six months from receiving a notice of final denial

4

Plaintiff may include such authorities in a brief accompanying his motion to amend.
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to bring suit in federal court. 28 U.S.C. § 2401(b). Failure to comply with either the two-year
window to submit an administrative claim or the six-month period to file suit renders a claimant’s
cause of action “forever barred.” See Seiss v. U.S ., 792 F. Supp. 2d 729, 732 (D.N.J. 2011).
In his Amended Complaint, Plaintiff fails to specify when or if he filed a notice of tort
claim with the appropriate agency or whether he received a denial. (ECF No. 27-2.) After sifting
through his exhibits, one exhibit indicates that Plaintiff filed his notice of tort claim on October 6,
2017. (ECF No. 27-4, at 127.) As discussed above, however, the statute of limitations required
Plaintiff to file a complaint raising the majority of his claims—at least the claims he exhausted in
his administrative remedies—by September 7, 2017, at the latest.
Since Plaintiff filed his notice of tort claim nearly a month later, on October 6, 2017, he
failed to present his claim to the appropriate agency within two years of the accrual of his cause of
action. See 28 U.S.C. § 2675(a); White-Squire, 592 F.3d at 457. As a result, the Court will grant
Plaintiff’s motion to reopen and for leave to amend in Alexis II, and then dismiss the FTCA claim
arising from his grievances as time barred.
If Plaintiff has an FTCA claim that began to accrue within two years of October 6, 2017,
he may file a motion to amend and pursue only those claims in Alexis II. In his proposed pleading,
Plaintiff shall attach copies of his notice of tort claim and any denials he received from the agency
in question.
IV.

CONCLUSION

For the reasons set forth above, in Alexis I, the Court will dismiss with prejudice: (1)
Plaintiff’s Bivens claims against the United States; (2) all claims against the individual Defendants,
in their official capacities; and (3) all claims that began to accrue prior to February 8, 2016.
Additionally, the Court will dismiss without prejudice all remaining claims that began to accrue
after February 8, 2016.
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In Alexis II, the Court will dismiss with prejudice the FTCA claim that encompassed
Plaintiff’s administrative grievances in 2014 and 2015, as time barred. If Plaintiff has any claims
that began to accrue within two years of October 6, 2017, he may file a motion to amend in
accordance with the instructions above. Finally, because Plaintiff filed an identical Amended
Complaint in both cases, the Court will dismiss the duplicative claims in each case. An appropriate
Order follows.

Dated: February 4, 2021

s/Robert B. Kugler
ROBERT B. KUGLER
United States District Judge

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