SANKO v. LANIGAN et al
Filing
9
OPINION. Signed by Judge Noel L. Hillman on 3/24/2021. (dmr)(n.m.)
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UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JOSEPH SANKO,
No. 18-CV-05725 (NLH)(JS)
Plaintiff,
v.
OPINION
GARY LANIGAN, et al.
Defendants.
APPEARANCE:
Joseph Sanko
# OS01729711
Northern State Prison
168 Frontage Road
Newark, NJ 07114
Plaintiff, Pro se
HILLMAN, District Judge
Plaintiff Joseph Sanko, a New Jersey state inmate at South
Woods State Prison (“South Woods”) at the time of the underlying
events, 1 seeks to commence a civil action pursuant to 42 U.S.C. §
1983 against New Jersey Governor Phil Murphy, New Jersey
Department of Corrections (“NJDOC”) Commissioner Gary Lanigan,
According to a letter filed September 21, 2020, Plaintiff was
transferred to Northern State Prison. ECF No. 8. Accordingly,
the Court will direct the Clerk to update Plaintiff’s mailing
address.
1
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South Woods Administrator Willie Bond (collectively the “NonMedical Defendants”), NJDOC Health Services Unit Director Dr.
Hesham Soliman, South Woods Medical Director Dr. Robert
Woodward, NJDOC Acting Statewide Patient Advocate Margret Reed,
MA, South Woods Doctor “Dr. Diaz,” South Woods Nurse
Practitioner (“N.P.”) Renee Mills (collectively the “South Woods
Medical Defendants”), “St. Frances” Hospital, 2 and St. Francis
surgeon Dr. Scott Miller (collectively the “St. Francis
Defendants”). 3
Plaintiff, proceeding in forma pauperis, alleges various
constitutional and statutory violations and negligence by
Defendants; essentially, Plaintiff alleges that he fell and hurt
his knee after administration of the wrong medicine made him
dizzy, and that the resulting knee surgery and treatment was
substandard and resulted in pain and infection.
No. 1; IFP Order, ECF No. 7.
Complaint, ECF
For the reasons below, after
screening pursuant to 28 U.S.C. § 1915(e)(2)(B), the Complaint
will be dismissed.
The Court presumes that Plaintiff refers to St. Francis Medical
Center in Trenton.
2
Plaintiff brings the claims against each non-institutional
defendant in their individual and official capacities. ECF No.
1, p. 13, ¶ 16.
3
2
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I.
BACKGROUND 4
In May 2014, after receiving the wrong medication,
Plaintiff fell and injured his knee on a shower tile.
1, ¶¶ 17-18.
ECF No.
Because there was no external bleeding, no
“emergency code” was called and no nurse and medical staff were
called.
Id. at ¶ 19.
Plaintiff was returned to his cell, where
he “completely passed out...until the next morning.”
Id. at ¶
20.
After Plaintiff submitted a sick call request, a nurse
examined Plaintiff and scheduled him for x-rays.
Id. at ¶ 21.
N.P. Mills examined the x-rays, diagnosed a broken patella, and
prescribed Tylenol.
Id. at ¶ 22.
After Plaintiff complained of
continued pain, South Woods medical staff scheduled Plaintiff
for a total knee replacement at St. Francis with Defendant Dr.
Miller.
Id. at ¶ 23.
Plaintiff alleges that Dr. Miller
“knowingly placed inferior parts inside [P]laintiff’s knee per
NJDOC policy[.]”
Id. at ¶ 24.
Plaintiff also alleges that
unsanitary hospital conditions caused multiple post-operative
infections; Plaintiff recalls, for example, “Dr. Miller standing
over [Plaintiff] in the hallway outside the operating room with
his [scalpel] raised over his leg asking if he was ready to get
this done.”
Id. at ¶ 25.
After surgery, Dr. Miller
The Complaint’s allegations are presumed to be true for
screening purposes.
4
3
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characterized Plaintiff’s knee as “really messed up” and “the
worst he had ever seen.”
Id. at ¶ 28.
After Plaintiff returned to South Woods, Plaintiff
complained of pain, numbness, headaches, nausea, spasms, and
mobility issues.
Id. at ¶¶ 29-30.
After meeting with N.P.
Mills, Plaintiff began physical therapy, which only exacerbated
the pain.
Id. at ¶ 31.
Plaintiff’s complaints “fell on deaf
ears,” and the pain and unsanitary treatment continued,
including medical staff examining Plaintiff without changing
gloves.
Id. at ¶¶ 31-32.
In November 2017, after Plaintiff complained, Plaintiff was
transferred to an administrative segregation medical unit at
Trenton State Prison, where he received the wrong medication to
treat infection.
Id. at ¶ 32.
Plaintiff experienced more
swelling, immobility, and heat in his knee, subsequently
diagnosed as another infection.
Id. at ¶ 33.
ultimately endured six surgeries.
Plaintiff
Id. at p. 10, ¶ 4.
Plaintiff alleges that Defendants’ actions have resulted in
“extreme pain and difficulty in movement due to a degenerative
leg injury,” including “the threat of possible amputation.”
at ¶ 6.
Id.
Plaintiff asserts violations of his federal and state
constitutional and statutory rights, specifically deliberate
indifference to his medical needs and cruel and unusual
punishment.
Id. at ¶¶ 37-41.
Plaintiff seeks declaratory,
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injunctive, compensatory, and punitive relief; essentially,
Plaintiff seeks better medical treatment, compensation for the
injuries suffered, and protection from retaliation and poor
treatment resulting from this Complaint.
II.
STANDARD OF REVIEW
The Prison Litigation Reform Act (“PLRA”) requires district
courts to review complaints in those civil actions in which a
prisoner is proceeding in forma pauperis, seeks redress against
a governmental employee or entity, or brings a claim with
respect to prison conditions.
See 42 U.S.C. § 1997e(c); 28
U.S.C. §§ 1915(e)(2)(B), 1915A(b).
To survive sua sponte screening for failure to state a
claim, the complaint must allege “sufficient factual matter” to
show that the claim is facially plausible.
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).
Fowler v. UPMC
“‘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 misconduct alleged.’”
Fair Wind
Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
“[A]
pleading that offers ‘labels or conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’”
Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 555 (2007)).
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“[A] pro se complaint, however inartfully pleaded, must be
held to less stringent standards than formal pleadings drafted
by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(internal quotation marks omitted).
“Court personnel reviewing
pro se pleadings are charged with the responsibility of
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
(2002)).
However, while pro se pleadings are liberally
construed, “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).
III. DISCUSSION
A.
Non-Medical Defendants
The Complaint fails to state a claim against the Non-
Medical Defendants in their official capacities because the
Eleventh Amendment bars suit against states, and claims made
against state officials in their official capacities are treated
as claims made against the state.
Anderson v. Pennsylvania, 196
F. App'x 115, 117 (3d Cir. 2006).
Accordingly, all claims
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against the Non-Medical Defendants in their official capacities
will be dismissed.
Plaintiff’s claims against the Non-Medical Defendants in
their individual capacities are also incognizable because claims
against “supervisory officials who do not participate in
individual medical care decisions,” and “simply fail[] to
intervene in ... medical care ... [are] not viable under the
Eighth Amendment.”
Stewart v. Pennsylvania Dep't of Corr., 677
F. App'x 816, 819 (3d Cir. 2017) (citing Spruill v. Gillis, 372
F.3d 218, 236 (3d Cir. 2004) (“[A]bsent a reason to believe (or
actual knowledge) that prison doctors or their assistants are
mistreating (or not treating) a prisoner, a non-medical prison
official...will not be chargeable with the Eighth Amendment
scienter requirement of deliberate indifference.”)).
“If a
prisoner is under the care of medical experts ..., a non-medical
prison official will generally be justified in believing that
the prisoner is in capable hands.”
Id. at 236.
Thus, medical grievances to a non-medical prison official
when the prisoner is being treated by a prison doctor will not
subject the non-medical prison official to liability under §
1983.
Id. (citing Durmer v. O'Carroll, 991 F.2d 64, 69 (3d Cir.
1993)); see Natale v. Camden County Correctional Facility, 318
F.3d 575, 581-82 (3d Cir. 2003) (analyzing Fourteenth Amendment
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claim for inadequate medical care under the standard used to
evaluate similar Eighth Amendment claims).
Here, Plaintiff makes essentially the same allegations
against non-medical Defendants Governor Murphy, NJDOC
Commissioner Lanigan, and South Woods Administrator Bond: that
they failed to respond to complaints from Plaintiff or his
family about Plaintiff’s treatment.
The Court interprets the
Complaint as alleging Eighth Amendment/deliberate indifference
claims, arguing that the Non-Medical Defendants failed to act
despite personal knowledge of Plaintiff’s medical condition
through “communications from [P]laintiff’s family,” “written
pleas,” and “prisoner grievances.”
ECF No. 1, ¶¶ 8-10.
However, if a prisoner is under the care of medical
experts, administrators who are not “themselves physicians
cannot be considered deliberately indifferent simply because
they failed to respond directly to the medical complaints of a
prisoner who was already being treated by the prison doctor.”
Davis v. Prison Health Servs., Inc., 558 F. App'x 145, 150 (3d
Cir. 2014) (quoting Spruill v. Gillis, 372 F.3d 218, 236 (3d
Cir. 2004) (dismissing claims after the point that plaintiff was
first under medical care because “absent a reason to believe (or
actual knowledge) that prison doctors or their assistants are
mistreating (or not treating) a prisoner, a non-medical prison
official ... will not be chargeable with the Eighth Amendment
8
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scienter requirement of deliberate indifference.”).
Without any
allegation of direct personal involvement, this is insufficient
to state a claim.
Foye v. Wexford Health Sources Inc., 675 F.
App'x 210, 214 (3d Cir. 2017) (denial of administrative remedies
by non-medical defendants was not actionable because it
constituted deference to the judgment of medical personnel).
Accordingly, all claims against the Non-Medical Defendants merit
dismissal.
B.
St. Francis Defendants
Plaintiff asserts claims against two private defendants:
St. Francis Hospital and surgeon Dr. Miller, presumably a St.
Francis employee.
Because the Complaint fails to allege
sufficient facts supporting an allegation that the St. Francis
Defendants “acted under color of state law,” the claims against
them will be dismissed.
An essential element of a § 1983 action is that the conduct
complained of was “committed by a person acting under color of
state law.”
1993).
Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d Cir.
“Although it is possible for a private party to violate
an individual’s § 1983 rights, the individual ...is not relieved
of the obligation to establish that the private party acted
under color of state law.
Id. (affirming dismissal where
defendant pharmacy did not contract directly with corrections
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entities to provide off-site prescription filling services and
had “no contact whatsoever with a state actor”).
“Private hospitals are not transformed into state actors
merely because they received federal and state funding and are
subject to accompanying regulations.”
White v. Willingboro
Twp., No. CV 18-10964 2020 WL 3604091, at *7 (D.N.J. July 2,
2020) (citing Schneller v. Crozer Chester Med. Ctr., 387 F.
App’x 289, 293 (3d Cir. 2010)).
Rather, a “nominally private
entity” is a “state actor when it is controlled by an agency of
the State, when it has been delegated a public function by the
State, when it is entwined with governmental policies, or when
government is entwined in [its] management or control[.]”
Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass'n, 531
U.S. 288, 296 (2001).
In determining the existence of a nexus between a doctor
and the state, “[i]t is the physician's function within the
state system, not the precise terms of his employment, that
determines whether his actions can fairly be attributed to the
State.”
West v. Atkins, 487 U.S. 42, 55–56 (1988).
For
example, a doctor is a state actor, even in the absence of a
contract with the state, where the doctor voluntarily agreed to
treat an inmate for orthopedic care on four separate occasions
over a six-month period.
(4th Cir. 1994).
Conner v. Donnelly, 42 F.3d 220, 225
Conversely, a private medical provider does
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not become a state actor merely by providing treatment in an
emergent care setting.
Rodriguez v. Plymouth Ambulance Serv.,
577 F.3d 816, 827 (7th Cir. 2009); see also Boyter v. Brazos
County, 2011 WL 1157455 (S.D. Tex. 2011) (private physician
entitled to summary judgment on Eighth Amendment claim alleging
insufficient medical care for a knee surgery while incarcerated
at a county jail where examinations of prisoner took place only
in defendant’s private office, and state or county officials had
no influence over defendant's treatment decisions); Hernandez v.
Palakovich, 2010 WL 4683822 (M.D. Pa. 2010) (holding no state
action when plaintiff was injured in a routine surgery to remove
a liquid fluid from his eye, prison officials transported
plaintiff but had no further involvement, and defendant is not
alleged to have any relationship to the prison or state); Urena
v. Wolfson, 2010 WL 5057208 (E.D.N.Y. 2010) (dismissing
complaint where private hospital is not a state or federal actor
and private physician had no contractual relationship or formal
ties with the Bureau of Prisons and treatment took place only in
his private office, never at prison).
Here, the only nexus asserted between the St. Francis
Defendants and the state is an assertion that NJDOC policy
mandated the use of “particular parts” in Plaintiff’s knee
surgery.
The Complaint does not assert the nature of this
mandate, including whether the St. Francis Defendants were
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actually bound by NJDOC policy.
The Complaint asserts a single
visit for surgery and a directive from Dr. Miller to return,
without any indication that any follow-up visit occurred.
Accordingly, no claim is stated against the St. Francis
Defendants and the Complaint will be dismissed against those
Defendants.
This dismissal is without prejudice, and Plaintiff may move
to amend the existing Complaint to expand upon his § 1983 claim
against the St. Francis Defendants to demonstrate that either
acted “under color of state law.”
Any amendment should also,
however, address the Court’s additional concerns below.
C.
Eighth Amendment claims against all Defendants
Plaintiff makes two substantive allegations encompassing
claims against all Defendants: that an unidentified prison
official caused Plaintiff’s knee injury by administering the
wrong medication, and that subsequent negligence or malpractice
by the other Defendants exacerbated the injury, including poor
infection-control practices.
Neither is actionable.
To state a cognizable Eighth Amendment claim, “a prisoner
must allege acts or omissions sufficiently harmful to evidence
deliberate indifference to serious medical needs.
It is only
such indifference that can offend ‘evolving standards of
decency’ in violation of the Eighth Amendment.”
Gamble, 429 U.S. 97, 106 (1976).
12
Estelle v.
“[T]o succeed under these
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principles, plaintiffs must demonstrate (1) that the defendants
were deliberately indifferent to their medical needs and (2)
that those needs were serious.”
192, 197 (3d Cir. 1999).
Rouse v. Plantier, 182 F.3d
The second prong is satisfied by the
extensive treatment, including surgery, implying Defendants’
acknowledgment of the severity of Plaintiff’s medical needs.
As to the first prong, the denial of medical care, when
based on non-medical factors, may violate the Eighth Amendment.
See Monmouth County Corr. Inst. Inmates v. Lanzaro, 834 F.2d
326, 346 (3d Cir. 1987) (“If necessary medical treatment is
delayed for non-medical reasons, a case of deliberate
indifference has been made out.”) (internal quotation marks and
alterations omitted).
However, a “naked assertion that
Defendants considered cost...does not suffice to state a claim
for deliberate indifference, as prisoners do not have a
constitutional right to limitless medical care, free of the cost
constraints under which law-abiding citizens receive treatment.”
Winslow v. Prison Health Servs., 406 F. App'x 671, 674 (3d Cir.
2011) (citing Reynolds v. Wagner, 128 F.3d 166, 175 (3d Cir.
1997) (“[T]he deliberate indifference standard of Estelle does
not guarantee prisoners the right to be entirely free from the
cost considerations that figure in the medical-care decisions
made by most non-prisoners in our society.”); Johnson v.
Doughty, 433 F.3d 1001, 1013 (7th Cir. 2006) (“The cost of
13
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treatment alternatives is a factor in determining what
constitutes adequate, minimum-level medical care, but medical
personnel cannot simply resort to an easier course of treatment
that they know is ineffective.”).
Moreover, any such allegation “must not be conclusory”;
that is, a complaint should identify: (1) relevant policies; (2)
the basis for concluding that cost-saving policy affected
treatment; and (3) the specific treatment that was denied
pursuant to that policy.
Winslow, 406 F. App'x at 674; cf.
Robinson v. Corizon Health, Inc., No. CV 12-1271, 2016 WL
7235314, at *12 (E.D. Pa. Dec. 13, 2016) (distinguishing Winslow
where the plaintiff was denied medical care outright on the
basis of cost considerations, not “simply claiming disagreement
with the treatment provided”).
The Complaint here does not satisfy that standard.
Where
Plaintiff does go beyond cursory mentions of “unlawful
conditions,” ECF No. 1, ¶¶ 7-15, the only intentional actions
alleged are “sub-standard” or “inferior” medical devices
knowingly implanted in Plaintiff’s knee.
ECF No. 1, ¶¶ 24, 28.
Nowhere in the Complaint does Plaintiff explain the basis for
the allegation that any medical devices were sub-standard, or
for concluding that there existed a NJDOC practice of utilizing
such devices.
Indeed, Plaintiff even acknowledges that Dr.
Miller made “no mention...about the use of sub-standard
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parts...or that he disapproved of using something that was
likely to be ineffective.”
ECF No. 1, ¶ 28.
Rather, the allegations center on poor operative and postoperative treatment by the Medical and St. Francis Defendants
leading to, and failing to remedy, infection.
et seq.
ECF No. 1, ¶ 29,
However, "...claims of negligence or medical
malpractice, without some more culpable state of mind, do not
constitute ‘deliberate indifference.’”
Franco-Calzada v. United
States, 375 F. App'x 217, 220 (3d Cir. 2010) (affirming sua
sponte dismissal of a “simple negligence claim” where plaintiff
alleged slip and fall from a ladder and deliberate indifference
delaying x-ray of broken fingers for several days and surgery
for two weeks); White v. Napoleon, 897 F.2d 103, 110 (3d Cir.
1990) (“If the doctor’s judgment is ultimately shown to be
mistaken, at most what would be proved is medical malpractice,
not an Eighth Amendment violation.”).
Only “unnecessary and
wanton infliction of pain” or “deliberate indifference to the
serious medical needs” of prisoners is sufficiently egregious to
rise to the level of a constitutional violation.
Id.
Plaintiff’s deliberate indifference claims are further
undermined by the Complaint’s acknowledgement of consistent
(albeit, according to Plaintiff, subpar) treatment.
The
Complaint alleges that Plaintiff, upon injuring his knee in May
2014, was seen promptly after submitting a sick call request
15
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and, after further complaints, was scheduled in June 2014 for
total knee replacement surgery at St. Francis.
14, ¶ 18-24.
Plaintiff acknowledges having been seen regularly
thereafter, including on his own initiative.
et seq.
ECF No. 1, p.
This, too, merits dismissal.
ECF No. 1, ¶ 27,
See Stewart, 677 F. App'x
at 820 (affirming summary judgment in favor of medical
defendants where plaintiff challenged the adequacy of
interventions but “received no less than seventeen
evaluations..., two orthopedic consultations, three physical
therapy consultations, numerous prescriptions for pain and antifungal medications, and five x rays, and...there is no evidence
that any [d]efendant failed to give him care when it was
requested.”).
Finally, to the extent that Plaintiff’s Complaint may
adequately allege state or common law medical malpractice,
negligence, or other claims, the Court declines to exercise
supplemental jurisdiction.
See 28 U.S.C. § 1367(c)(3) (stating
a district court “may decline to exercise supplemental
jurisdiction over a claim” if “the district court has dismissed
all claims over which it has original jurisdiction”); see also
Petrossian v. Cole, 613 F. App'x 109, 112 (3d Cir. 2015)
(“Because the Court dismisse[s] all claims over which it ha[s]
original jurisdiction, it ha[s] the authority to decline to
exercise supplemental jurisdiction ... over the remaining state16
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law claims.”).
The Court notes, however, that this dismissal is
without prejudice as to the right to assert any potential
negligence or malpractice claims under state law.
IV.
CONCLUSION
For the above reasons, the Court will dismiss the Complaint
without prejudice.
Plaintiff may move for leave to file an
amended complaint within 60 days of this Order addressing the
concerns expressed in this Opinion accompanying subject to this
Court’s review under § 1915(e)(2).
An appropriate order follows.
Dated: _March 24, 2021_
At Camden, New Jersey
__s/ Noel L. Hillman _____
NOEL L. HILLMAN, U.S.D.J.
17
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