SZEMPLE v. UNIVERSITY OF MEDICINE & DENTISTRY OF NEW JERSEY et al

Filing 143

OPINION. Signed by Judge John Michael Vazquez on 10/11/2017. (ek)

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CRAIG FRANCIS SZEMPLE,

Plain tff
Civil Action No. 10-00258
(JMV)(JBC)

v.
UNIVERSITY OF MEDIC1NE & DENTISTRY
OF NEW JERSEY et a!,

OPINION

Defendants.

John Michael Vazguez, U.S.D.J.
This case concerns allegations of medical malpractice, and related constitutional claims,
made by Plaintiff, Craig Francis Szemple, an imnate at New Jersey State Prison in Trenton.
Plaintiff filed suit against two groups of defendants in connection with a tooth extraction
performed while Plaintiff was in state custody.1 The first group is the medical professionals who
treated Plaintiff: University of Medicine and Dentistry of New Jersey (“UMDNJ”), University
Correctional Healthcare (“UCHC”), Dr. Charles Geztoff, Sharon Aker, and Dr. Abu Ashan
(“Medical Defendants”). The second group is affiliated with the New Jersey Department of
Corrections (“DOC”): New Jersey DOC, George Hayman, Richard Cevasco, Thomas Farrell,
Michelle Ricci, Sergeant Bundy, Senior Corrections Officer (“SCO”) McCray, SCO Spiewak,
SCO Albano, and unnamed John and Jane Does (“DOC Defendants”). Both groups of
defendants have filed motions for summary judgment. The Court reviewed submissions made in

Claims against two initially named defendants, Dr. Richard Mann and Sandoz, Inc., have since
been terminated.

support of the motions and considered the motions without oral argument pursuant to Fed. R.
Civ. P. 78(b) and L. Civ. R. 78.1(b). For the reasons that follow, the Medical Defendants’
motion is GRANTED in part and DENIED in part, and the DOC Defendants’ motion is
GRANTED.
I.

Background

The following facts are taken from the Amended Complaint (“Compi.”) and the Parties’
respective statements of material fact.2 D.E. 25, 130, 131, 133. Plaintiff has been incarcerated
since 1994. Plaintiffs Medical Response at 1. Plaintiff went to the prison dental clinic on
September 15, 2009 so that Dr. Charles Geztoff, an oral surgeon, could extract tooth #31, a
molar. Id. at 2. During the procedure, Dr. Geztoff sneezed, mistakenly cutting the underside of
Plaintiffs tongue. Medical $OMF at 10.
The parties dispute whether Dr. Getzoff, Ms. Aker, or Plaintiff was aware of the cut—
Plaintiff admits that he did not know “the extent of the damage,” but that Dr. Getzoff
acknowledged the cut when he said, “Oops.” Plaintiffs Medical Response at 6. The Medical
Defendants deny that either Dr. Getzoff or Ms. Aker, his assistant, realized Plaintiff had been
cut. Medical SOMF at 11. Plaintiff also alleges that neither Dr. Getzoff nor Ms. Aker checked
under Plaintiffs tongue, though the Medical Defendants allege that Dr. Getzoff did examine
Plaintiff before discharging him. Plaintiffs Medical Response at 6, Medical $OMF at 12. After
the procedure was finished, Dr. Getzoff gave Plaintiff gauze, prescribed aspirin, and put a stich
in the extraction site. Medical $OMF at 12. Plaintiff claims he was still bleeding heavily and

2

The Medical Defendants’ Statement of Material Fact will be referred to hereinafter as “Medical
SOMF,” and the DOC Defendants’ Statement of Material Fact will be referred to hereinafter as
“DOC SOMF.” The Plaintiffs Responses to the Defendants’ Statements of Material Fact will be
referred to hereinafter as “Plaintiffs Medical Response” and “Plaintiffs DOC Response.”
2

that he requested more gauze from Ms. Aker, who refused to give it to him until Dr. Getzoff
directed her to. Plaintiffs Medical Response at 14. Plaintiff claims that SCO McCray was
present in the clinic during the procedure, and saw Plaintiff was bleeding as he left, but did
nothing. Plaintiffs Medical Response at 2, 7.
On his walk back to the housing unit, Plaintiff passed a number of corrections officers—
none of whom are the named defendants—and that at no point did any of them stop him, despite
blood dripping from his mouth. DOC SOMF at 5. Once back in his cell, Plaintiffs cell-mate
alerted an officer that Plaintiff was bleeding, and Plaintiff was given a pass to return to the clinic.
Plaintiffs Medical Response at 6.
When Plaintiff arrived back at the clinic, SCO McCray told Plaintiff the dental staff was
gone for the day, so he should come back the next day. DOC SOMF at 15-16. Plaintiff was then
escorted back to his cell by Sergeant. Bundy. Id. at 17. During the walk, Plaintiff alleges that
Sgt. Bundy told Plaintiff not to get blood on him, or Bundy would “kick his ass.” Plaintiffs
DOC Response at 7.
After returning to his housing unit, Plaintiff was once again sent back to the clinic at the
recommendation of Sgt. Bundy, SCO Albano and SCO Spiewak. DOC SOMF at 19. Once
there, Dr. Ashan examined Plaintiff, and ordered a nurse to call 9-1-1. Plaintiffs DOC Response
at 8. Plaintiff alleges he was taken to a hospital in leg shackles and handcuffs while being
further restrained by a “black box.”3 Plaintiffs DCC Response at 8-9. Plaintiff alleges that at
no point did the clinic staff or the guards take into account that his medical condition might
cause excessive bleeding or that the restraints were painful. Id.

The Court assumes that by “black box,” Plaintiff is referring to a handcuff cover, which is
placed over the chain portion of the cuffs to prevent tampering with the lock.
3

Plaintiff claims the doctors at the hospital found the cut under his tongue. Plaintiff’s
Medical Response at 9-10. He also alleges that at that point, he had lost 1.5 liters of blood. Id. at
9. Plaintiff claims that the doctors at the hospital gave instructions to the DOC staff about
Plaintiffs care once he was back in prison, but that they were not followed, leading to a second
incident on September 25, 2009. DOC SOMF at 26-27. However, Plaintiff admits that he was
examined by Dr. Getzoff on September 16, 2009, and “other dental and medical providers”
thereafter. Plaintiffs Medical Response at 10.
On September 25, 2009, Plaintiffs “digestive system broke down,” and he was rushed to
the prison clinic. Compi. at ¶73. After insisting that he be transferred to the hospital, Plaintiff
fainted. Id. at ¶20. As a result, Plaintiff hit his head on the sink or toilet in the infirmary,
resulting in a “gash” on his forehead. Id. at ¶j80-8 1. Prison staff brought Plaintiff to the
hospital, again in restraints. Id. at ¶82. Plaintiff spent four days at the hospital, and received
seventeen blood transfusions. Id. at ¶87.
Plaintiff returned to prison on September 30, 2009. Id. at ¶92. The next day, October 1,
2009, Plaintiff was placed in the Management Control Unit (“MCU”) by Defendant Ricci. DOC
SOMF at 33. The DOC Defendants claim that Plaintiff was placed in the MCU because his
supporters sent a $250 fruit basket to the doctors who treated him at the hospital; Plaintiff claims
it was to deter him from filing a lawsuit over his treatment. DOC SOMF at 34-3 6, Plaintiffs
DOC Response at 13. Plaintiff remained in the MCU for sixty days in “virtual isolation.”
Plaintiffs DOC Response at 15, Compi. at ¶94.
Plaintiff has proffered the expert testimony of Dr. Martin Giniger, DMD, PhD, on the
issue of medical malpractice related to the tooth extraction. Exs. D and E to the Certification of
Anna Kitsos (hereinafter “Kitsos Cert”), D.E. 130-1. Dr. Giniger has been a practicing and

4

licensed dentist in New Jersey since 1984. Ex E to Kitsos Cert. at 1. He also holds a Specialty
Certificate as well as a Master of Science in Dentistry in Oral Medicine, and a PhD in
Biomedical Science with a concentration in Oral Biology. Id. He taught at various schools of
dentistry including Louisiana State University Medical Center and UNDNJ. Id. at 2. He has
also received awards for his work and “done extensive basic research.” Id.
Dr. Giniger submitted an expert report and was deposed. Exs. D and E to Kitsos Cert.
He also performed a brief examination of Plaintiff. Ex. E. to Kitsos Cert. at §V. Dr. Giniger’s
report and deposition testimony relate only to the standard of care, the deviation therefrom, and
damages as to Dr. Getzoff. Dr. Giniger specifically did not testify as to the standard of care as it
relates to either Dr. Ashan or Ms. Aker. Ex. D to Kitsos Cert. at 96:14-24.
II.

Procedural History

Plaintiff filed his original Complaint on January 14, 2010. D.E. 1. After his application
to file informapauperis was denied, Plaintiff re-filed his Complaint on August 6, 2010. D.E. 3,
5. The Complaint was dismissed on October 15, 2010. D.E. 9. Plaintiff filed a motion to
reopen his case which in turn was denied on January 19, 2011. D.E. 11, 12. Plaintiff appealed
the denial to the Third Circuit Court of Appeals, which vacated the denial and remanded the case
for further proceedings. D.E. 14.
On March 5, 2013, Plaintiff filed the Amended Complaint. D.E. 25. The Amended
Complaint alleges the following counts (unless otherwise noted, the count is asserted as to all
Defendants): Count One
Two

—

—

violation of Eighth Amendment pursuant to 42 U.S.C.

breach of contract (against UMDNJ and UCHC); Count Three

(against the Medical Defendants); Count Four

—

—

§ 1983; Count

medical malpractice

negligence (against the Medical Defendants, the

New Jersey DOC, Cevasco, and Farrell); Count Five breach of N.J.S.A. 30:4-91; Count Six
-

5

—

breach of NJ.S.A. 1OA:16; Count Seven —negligent and/or reckless development of policies,
procedures or investigations; Count Eight

—

negligent development, implementation and

supervision of policies, procedures, and investigations; Count Nine
U.S.C. § 1983; Count Ten

—

—

—

—

intentional infliction

violation of the New Jersey Constitution; Count Thirteen

federal constitutional tort; Count Fourteen

Count Sixteen

municipal violations of 42

violation of 42 U.S.C. § 1986; Count Eleven

of emotional distress; Count Twelve
—

—

—

state constitutional tort; Count Fifteen

—

fraud; and

violation of 42 U.S.C. § 1985. After several applications, Plaintiff was

appointed pro bono counsel on October 11, 2013. D.E. 51.
On December 2, 2014, the Medical Defendants filed a motion to dismiss the claims of
medical and dental malpractice. D.E. 84. The motion was converted by Judge McNulty into a
motion for summary judgment under F.R.C.P. 12(d), and denied on February 8, 2016. D.E. 108,
109.
The instant motions for summary judgment were filed by the Medical Defendants and the
DOC Defendants on February 23, 2017. D.E. 130, 131. Plaintiff filed his opposition to both
motions on Mach 21, 2017. D.E. 133. Defendants filed their reply briefs on April 6, 2017.
D.E. 138, 139.
III.

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.

The DOC Defendants’ brief and Medical Defendants’ brief will be referred to hereinafter as
“DOC Brief,” and “Medical Brief,” and their replies will be referred to as “DOC Reply” and
“Medical Reply.”
Plaintiffs Opposition Briefs will be referred to hereinafter as “DOC Opposition” or “DOC
Opp.” and “Medical Opposition” or “Medical Opp.”
6

fed. R. Civ. P. 56(a); Abraham v. Raso, 183 F.3d 279, 287 (3d Cir. 1999). A fact in dispute is
material when it “might affect the outcome of the suit under the governing law” and is genuine
“if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over irrelevant or

unnecessary facts will not preclude granting a motion for summary judgment. Id. “In
considering a motion for summary judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence; instead, the nonmoving party’s
evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.” Marino
Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255)). A
court’s role in deciding a motion for summary judgment is not to evaluate the evidence and
decide the truth of the matter but rather “to determine whether there is a genuine issue for trial.”
Anderson, 477 U.S. at 249.

A party moving for summary judgment has the initial burden of showing the basis for its
motion and must demonstrate that there is an absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). After the moving party adequately supports its
motion, the burden shifts to the nonmoving party to “go beyond the pleadings and by her own
affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate
specific facts showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks
omitted). To withstand a properly supported motion for summary judgment, the nonmoving
party must identify specific facts and affirmative evidence that contradict the moving party.
Anderson, 477 U.S. at 250. “[I]f the non-movant’s evidence is merely ‘colorable’ or is ‘not

significantly probative,’ the court may grant summary judgment.” Messa v. Omaha Prop. &
Cas. Ins. Co., 122 F. Supp. 2d 523, 528 (D.N.J. 2000) (quoting Anderson, 477 U.S. at 249-50)).

7

Ultimately, there is “no genuine issue as to any material fact” if a party “fails to make a
showing sufficient to establish the existence of an element essential to that party’s case.”
Celotex Corp., 477 U.S. at 322. “If reasonable minds could differ as to the import of the

evidence,” however, summary judgment is not appropriate. See Anderson, 477 U.S. at 250-5 1.
IV.

Discussion

At the outset, Plaintiff did not oppose the Defendants’ motion for summary judgnient as to
counts II, IV, V, VI, Vil-IX, X, XV, and XVI. Those counts are therefore dismissed.
As to the remaining counts, Plaintiff raised claims pursuant to both 42 U.S.C.

§ 1983 and

state tort law. The Court will first analyze the Section 1983 contentions.
a. 42 U.S.C.

§

1983 Eighth Amendment
-

Section 1983 provides in relevant part:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory. subjects, or causes to
be subjected, any citizen of the United States or other person within
the jurisdiction thereof to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable
to the party injured in an action at law, suit in equity, or other proper
proceeding for redress[.]
.

.

Section 1983 does not provide substantive rights; rather, Section 1983 provides a vehicle
for vindicating violations of other federal rights. Graham v. Connor, 490 U.S. 386, 393-94
(1989). In order to state a valid claim for relief under Section 1983, a plaintiff must first allege a
violation of a right secured by the Constitution or laws of the United States and, second, a
plaintiff must contend that the violation was caused or committed by a person acting under color
of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
The Eighth Amendment protects against the imposition of cruel and unusual punishment.
See U.S. const. amend. VIII. The Eighth Amendment’s prohibition against cruel and unusual

8

punishment can include deficient medical care for irnuates. Estelle v. Gamble, 429 U.S. 97, 10304 (1976); Roitse v. Plantier, 182 f.3d 192 (3d Cir. 1999). To state a claim of inadequate
medical care in violation of the Eighth Amendment, an inmate must prove: (1) a serious medical
need; and (2) a prison official’s deliberate indifference to that serious medical need. Estelle, 429
U.S. at 106. A serious medical need includes a need for which “denial of treatment would result
in the unnecessary and wanton infliction of pain” or a “life-long handicap or permanent loss.”
Atkinson v. Taylor, 316 F.3d 257, 273 (3d Cir. 2003) (internal quotations and citations omitted).
The second, subjective element of the Estelle test requires an inmate to show that a prison
official acted with deliberate indifference to a serious medical need. Natale v. Camden County
Correctional facility, 318 F.3d 575, 582 (3d Cir. 2003). Conduct that merely constitutes
malpractice or negligence does not rise to the level of deliberate indifference. Instead,
deliberate indifference requires a reckless disregard of a known risk of harm. farmer V.
Brennan, 511 U.S. 825, 836 (1994). Courts will not second guess “the adequacy a particular
course of treatment” in the exercise of sound professional judgment. Inmates v. Allegheny
County Jail v, Pierce, 612 F.2d 754, 762 (3d Cir. 1979)(quotingBowringv. Godwin, 551 F.2d
44, 48 (4th Cir. 1977)). Thus, “medical malpractice does not become a constitutional violation
merely because the victim is a prisoner.” Estelle, 429 U.S. at 106. The standard set byEstelle
prohibits second-guessing of medical decisions made by prison staff that “later prove
inappropriate or negligent.’ Hankey v. Wexford Health Sources, Inc., 383 F. App’ x. 165, 168
(3d Cir. 2010). Even when medical care “arguably falls below the generally accepted standard
of care, that medical care is often sufficient to rebut accusations of deliberate indifference.” Id. at
169. In other words, the provision of medical care itself can usually refute a claim of deliberate
indifference.

9

A non-physician defendant is not deliberately indifferent to a prisoner’s serious medical
needs in violation of the Eighth Amendment if she fails to respond to an inmate’s complaint
regarding medical treatment when the inmate is already receiving treatment by a prison doctor.
Durmer v. O’Caroll, 991 F.2d 64, 69 (3d Cir. 1993). Non-medical personnel are entitled “to

presume the competence of medical staff in treating a prisoner.” Davis v. Superintendent of
Somerset SCI, No. 14-3746, 2015 WL 75260, at *2 (3d Cir. Jan 7, 2015) (citing Spritill v. Gulls,
372 F.3d 218, 236 (3d Cir. 2004)).
Eighth Amendment claims against non-medical personnel based on an unmet need for
medical care are limited to circumstances where the non-medical personnel had “a reason to
believe (or actual knowledge) that prison doctors or their assistants are mistreating (or not
treating) a prisoner.” Spruill, 372 F.3d at 236. If non-medical staff were justified in believing
the prisoner was “in capable hands” with medical experts, dismissal of the Eighth Amendment
claim is proper. Id.; Mines v. Levi, Civil Action No. 07-1739, 2009 WL $39011, at *6 (E.D. Pa.
March 26, 2009) (failing to respond to a grievance sent by a prisoner is not sufficient to
demonstrate personal involvement of a prison supervisor) (citation omitted)).
i.

Medical Defendants

Before discussing the merits of Plaintiffs claims against the individual Medical
Defendants, the Court must determine whether UMDNJ and UCHC are subject to suit under

§ 1983. States and “arms of the state” are shielded from such claims because they are entitled to
sovereign immunity under the Eleventh Amendment. U.S. const. amend. XI; Will v. Michigan
Dept. ofState Police, 491 U.S. 5$, 66 (1989). However, municipalities may still be liable under
§1983 if Plaintiff can show the violation of his rights was caused by a municipal policy, practice,
or custom. Monell v. Dep ‘t ofSoc. $ervs. ofN. Y. C. 436 U.S. 658, 690-91(1978). As of 2015,

10

the Third Circuit has not determined whether UMDNJ is an “arm of the state” or whether it is
better considered a “private corporation performing state functions.” Miller v. UMDNJ, 2014
WL 4742287, at *n.3 (D. NJ. Aug. 10, 2015). Neither party addresses this question, as to either
UMDNJ or UCHC. Regardless, the Court need not reach the issue, as Plaintiff has not posited
any facts to show that either UMDNJ or UCHC are liable for a policy, custom, or practice,
subjecting them to liability under Monell. Thus, as to the Medical Defendants, the only claims
that remain are against Dr. Getzoff, Ms. Aker, and Dr. Ashan, in their individual capacities.6
As noted, showing a violation of the Eighth Amendment requires more than mere
negligence; the standard is one of recklessness. Plaintiffs seem to acknowledge this distinction
in their briefs. In fact, Plaintiff on several occasions refers to the Medical Defendants’ actions as
“negligent.” See, e.g., Medical Opp. at 1 (“Specifically, Plaintiff alleges that Dr. Getzoff was
negligent in the performance of the [tooth] extraction”). In short, Plaintiff has apparently stated
a claim of medical negligence against Dr. Getzoff, but the alleged facts fall short of setting forth
a potentially valid Section 1983 claim even when viewed in a light most favorable to Plaintiff.
Compare Pearson v. Prison Health Services, 850 F.3d 526, 540 (3d Cir. 2017) (reinstating

§ 1983 claim against prison nurse who refused to examine plaintiff, forced him to crawl across
his cell to his wheelchair before she would treat him, and placed him in the infirmary despite
recognizing that plaintiff could be suffering from appendicitis) and Spruill, 372 f.3d at 237
(reinstating § 1983 claim against a doctor who was alleged to have acted “maliciously and
sadistically” with an intention “to inflict pain.

.

.

without any medical justification”) with

6

Plaintiff does not address how the Medical Defendants could be liable in their official
capacities, given they are potentially state officials. See Jones v. Hashagen, 512 F ed.App’x. 179,
182 (3d Cir. 2013) (finding that a doctor charged with an Eighth Amendment violation while he
“contracted with the state to provide medical services to inmates was a ‘state actor”).
11

Stewart v. Pennsylvania Dep ‘t of Corrs., 677 F.App’x 816, 820 (3d Cir. 2017) (affirming district

court’s dismissal of19$3 claim for initial misdiagnosis and delay in treatment for five days
while plaintiff was in “significant pain” because of a broken ankle that the prison medical team
believed to be a mere sprain).
At the outset, Plaintiff has not cited to any facts suggesting a deliberate indifference to his
medical needs when he was hospitalized the second time over gastrointestinal issues. He has
also not provided reliable evidence that the second hospitalization was related to the tooth
extraction. Instead, the record reflects that when Plaintiff complained of stomach pain, he was
taken to the hospital and treated.
As to the tooth extraction, and as in Stewart, Plaintiff saw multiple medical professionals
in the month of September 2009—he was seen at the on-site prison clinic on site at the prison
and was sent to the hospital. As to Dr. Ashan, when he examined Plaintiff following the tooth
extraction, the doctor caused an ambulance to take Plaintiff to the hospital for immediate
treatment. Ms. Aker, a non-physician who was under the direct supervision of Dr. Getzoff, is
similarly not liable under Section 1983. finally, while Dr. Getzoff is apparently responsible for
the accidental laceration to Plaintiffs tongue, the doctor did continue to see and treat Plaintiff
when he returned from the hospital the first time. As such, Plaintiff does not raise a genuine
issue of material fact precluding summary judgment as to the individual Medical Defendants vis
à-vis Section 1983.
ii.

DOC Defendants

At the outset, as to the New Jersey DOC, plaintiff has not presented evidence of an
improper policy, custom, or practice, so the claims against the New Jersey DOC are dismissed.
As to the supervisory DOC Defendants, § 1983 claims cannot be brought under a theory of

12

respondeat superior. Folk County v. Dodson, 454 U.S. 312, 325 (1981). Rather, Plaintiff bears
the burden of showing “personal involvement in the alleged wrongs.

.

.

[which] can be shown

through allegations of personal direction or of actual knowledge and acquiescence.” Rode v.
Detlarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). Here, Plaintiffs Eighth Amendment against
New Jersey DOC Commissioner George Hayman, Assistant Director of Health Services for the
New Jersey DOC Dr. Richard Cevasco, Supervisor of the Health Services Unit at the New Jersey
DOC Thomas Farrell, and prison Administrator Michelle Ricci7 are dismissed. None of these
four Defendants were personally involved in Plaintiffs medical care, nor is there any evidence
demonstrating that they had actual knowledge of, and acquiesced to, any such violation of his
rights. Baker v. Monroe Township, 50 F. 3d 1186, 1190-91 (3d Cir. 1995).
The remaining DOC Defendants are Sgt. Bundy, SCO McCray, SCO Spiewak, and SCO
Albano.8 Generally, “[i]f a prisoner is under the care of medical experts.

.

.

a non-medical

prison official will generally be justified in believing that a prisoner is in capable hands.”
Spruill, 372 F.3d at 236. None of the four were the corrections officers that Plaintiff claims saw
him walking from the clinic, dripping blood. Compl. at ¶44. On the contrary, when Defendants
Spiewak, Albano, and Bundy saw the blood, they rushed to Plaintiffs cell. Compl. at ¶45.
SCOs Spiewak and Wilson gave Plaintiff an emergency pass to return to the prison clinic on the
day of the extraction. Id. at ¶48. Additionally, all four asked about Plaintiffs health between
September 6, 2009 and September 25, 2009. Ex. A to Kitsos Cert. at 149:21-24.

‘

The § 1983 retaliation claim against Ms. Ricci is discussed infra at §c.

8

The individual DOC Defendants are not entitled to qualified immunity; the Eighth
Amendment’s prohibition against deliberate indifference to a serious medical need is a clear and
well-established constitutional right. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
13

The two main claims Plaintiff makes are against Defendants Bundy and McCray. Bundy,
Plaintiff alleges, ordered Plaintiff not to spit blood on him while Bundy escorted Plaintiff to and
from the clinic, “otherwise it will be your ass.” Id. at 131:3-4. This comment was allegedly
made directly after three officers, Bundy, Albano, and $piewak, had agreed to take Plaintiff back
to the clinic for the third time that day. Id. at 130-131. While arguably an insensitive comment,
it is not relevant to the issue of whether Bundy deprived Plaintiff of necessary medical care. To
the contrary, the alleged statement was made while Bundy was escorting Plaintiff to the clinic.
Thus the statement does not raise a genuine issue of material fact that would preclude summary
judgment.
SCO McCray is alleged to have turned Plaintiff away from the dental clinic when
Plaintiff returned for the second time on September 15, 2009. Id. at 125-126. While in close
proximity, the dental clinic is distinct from the medical clinic. See Id. at 57-62. Plaintiffs own
deposition states that the dental staff had left by the time he was brought back to the clinic on
Sept. 15, 2009. Id. at 59-60. Plaintiff stated McCray said: “You can come back tomorrow. The
dentist will be in tomorrow.” Id. at 60:1-2. Given this account, and viewing the evidence in a
light most favorable to Plaintiff, SCO McCray did not turn Plaintiff away because he was
deliberately indifferent to Plaintiffs predicament; rather, he told Plaintiff to come back when
someone with appropriate medical training would be available to help him. Plaintiff has not
presented credible evidence that dental staff were in fact available but McCray nonetheless
turned him away. Moreover, shortly thereafter, Plaintiff was brought to the medical clinic,
examined by Dr. Ashan, and transported to the hospital for treatment.

14

b. Medical Malpractice

To properly state a claim for medical malpractice, Plaintiff must show: (1) a deviation
from the standard of care; (2) an injury proximately caused by that deviation; and (3) damages
suffered as a result. Komlodi v. Picciano, 217 N.J. 327, 409 (2014). The elements are the same
for a claim of dental malpractice. Id. Generally, to “prove the first two elements, a plaintiff
must present testimony of an expert witness.” Lewis v. Brown, 2010 WL 1371939, at *12 (D.
N.J. 2010). The expert must testify as to “the applicable standard of care.

..

[and] whether the

defendant’s conduct was unreasonable under the circumstances.” Id. However, expert testimony
may not be necessary if the negligence is so plain that a jury would not need more than lay
understanding to determine that there was a deviation from the standard of care. Id. at 13. This
basis, known as the common knowledge doctrine, is applicable for example when a surgeon
operates on the wrong body part. Id. Expert testimony is likewise not required if plaintiff can
show that the doctrine of res ipsa loquitur applies, that is, where negligence can be inferred if:
“the occurrence itself ordinarily bespeaks negligence, the instrumentality was within the
defendant’s exclusive control, and there is no indication in the circumstances that the injury was
the result of the plaintiffs own voluntary act or neglect.” Jerista v. Murray, 125 N.J. 175, 192
(2005). Res ipsa loquitor may apply, for instance, when a surgeon nicks an artery during
surgery.
Pursuant to New Jersey’s Torts Claims Act (“TCA”), N.J.S.A. 59:1-1 etseq., Plaintiff
can recover for pain and suffering against a public entity but there must be a “permanent loss of a
bodily ffinction{.]”9 N.J.S.A. 59:9-2(d). Plaintiff must show (1) and objective permanent injury;

Economic and consequential damages are not limited by the TCA, but Plaintiff has not
provided evidence of such damages. The Medical Defendants note that Plaintiff cannot claim his
15

and (2) a permanent loss of bodily function that is substantial.” Gihooley v. County of Union,
164 N.J. 533, 541 (2000). Additionally, Plaintiff bears the burden of showing, with “objective
medical evidence,” that the injury suffered is permanent. Brown v. City ofNew Jersey, 2015 WL
586022, at *12 (D.N.J. Feb. 10, 2015) aff’d inpart, vac’d in part, 644 Fed. App’x 139 (3d Cir.
2016).
Plaintiff makes two claims regarding the medical care he received which, while close in
time, are distinct. First, Plaintiff claims Dr. Getzoff cut the underside of his tongue during the
extraction resulting in “numbness, oral pain, difficulty eating, difficulty speaking, and loss of
taste and temperature sensation.” Plaintiffs Medical Response at 2. Plaintiff also claims that he
suffered from a “gastrointestinal bleed” that was either caused or exacerbated by the cut under
his tongue. Id. Plaintiff has presented no evidence showing that his gastrointestinal injuries
were caused, or exacerbated by, medical negligence. Thus, the medical malpractice claim as it
relates to Plaintiffs gastrointestinal difficulties is dismissed. As a result, the Court will only
address the claim of the tongue injury and the alleged effects.
I.

Dr. Ashan & Ms. Aker

Turning to Plaintiffs tooth extraction and the resulting complications, Plaintiff proffered
no expert testimony as to the standard of care for either Dr. Ashan or Ms. Aker. Plaintiff instead
argues that the doctrines of common knowledge or res ipsa loquiur apply, and no expert
testimony is required. Medical Opp. at 10-12.
The common knowledge doctrine and res ipsa loquitor do not apply to the alleged actions
of either Dr. Ashan or Ms. Aker. Instead, expert testimony was necessary to establish the

medical expenses as part of his damages because such expenses are paid for by the State.
Medical Brief at 15. Plaintiff does not dispute this point.
16

standard of care and a deviation therefrom. Plaintiff admits that Dr. Ashan “ordered a nurse to
call 911 for an ambulance” when he saw Plaintiff for the first time on September 15, 2009.
Compi. at ¶53-54. All that Plaintiff alleges with respect to Ms. Aker is that she initially did not
want to give Plaintiff more gauze when he asked for it.10 Id. at ¶37. Thus, because Plaintiff has
failed to present expert testimony on the question of the standard of care, a subsequent deviation
from the standard, and causation, Plaintiffs claim of medical malpractice as to Dr. Ashan and
Ms. Aker fails.
ii.

Dr. Getzoff

Plaintiffi s expert, Dr. Giniger, testified that Dr. Getzoff “made errors before, during and
afler Plaintiffs treatment.

.

.

demonstrating.

.

.

that his treatment fell beneath the professional

standards of care in any community.” Ex. E to Kitsos Cert. at §VII. Dr. Giniger opined: “It is
reasonable to conclude.

.

.

that the laceration was caused by Dr. Getzoff during the course of a

difficult extraction.” Id. In his opinion, “Plaintiff has suffered permanent damage.
[including] numbness, oral pain, and his ability to eat/taste is compromised.” Id.
The Medical Defendants “do not dispute that Plaintiff has met the first element of his
dental negligence claim against Dr. Getzoff,” and instead they address whether Plaintiff and Dr.
Giniger have adequately plead causation and the required statutory elements of Plaintiffs injury,
i.e. whether Plaintiff has in fact suffered an objective permanent injury and a permanent loss of

bodily function that is substantial. Gilhooley, 164 N.J. at 541. The Medical Defendants’

10

Ms. Aker’s appropriate standard of care would also apparently have to take into account the
fact that she was under the supervision of the treating physician, Dr. Getzoff. As noted, Plaintiff
has presented no expert testimony as to Ms. Aker’s standard of care or deviation therefrom. Dr.
Giniger specifically stated that he did not offer his opinion as to the applicable standard of care
for other members of the medical staff. Ex. D to Kitsos Cert. at 96:14-24.
17

objection as to damages is twofold: they argue that the loss of bodily function Plaintiff alleges is
not permanent and that it has not been proven by objective medical tests. Medical Reply at 4-5.
The Medical Defendants first challenge whether Dr. Giniger was sufficiently certain as to
the causation of Plaintiffs injury. Medical Brief at 16-18. Dr. Giniger stated in his report that
Dr. Getzoff “caused the problem and then failed to diagnose the problem,” and that “[i]t is
reasonable to conclude from the data presented below that the laceration was caused by Dr.
Getzoff during the course of a difficult extraction.” Ex. E to Kitsos Cert. at §II, VII. He then
adds: “Plaintiff continues to suffer from the consequences of trauma caused by the deep
laceration that occurred.” Id. at §VII. Dr. Getzoff also provided sufficient reasoning to support
his opinions. The Court is therefore satisfied that Dr. Giniger is “reasonably confident of the
relationship between the plaintiffs injuries and his.

.

.

diagnosis and treatment.” Galvin v.

Mizuho Medical Corp., 2008 WL 4791023, at *7 (N.J. App. Div. Nov. 5, 2008). Dr. Getzoff is
not entitled to summary judgment on the issue of causation.
The permanency of Plaintiffs injury present a more difficult question. As noted,
Plaintiff must show both an objective permanent injury and a permanent loss of bodily function
that is substantial. Gihooley, 164 N.J. at 541. The New Jersey Supreme Court has stated that
“permanent

toss

ofeyesight, taste, and smell satisfy the statutory standard.” Brooks v. Odom,

150 N.J. 395, 403 (1997) (emphases added). In Gilhoolev, the Supreme Court of New Jersey
reiterated its prior ruling: “In Brooks, we identified a number of injuries that, if supported by
medical proof, obviously meet both prongs of the standard: injuries causing blindness, disabling
tremors, paralysis and loss of taste and smell.

{Brooks,

150 N.J.] at 403. Indeed such injuries,

by their very nature, are objectively permanent and implicate the substantial loss of a bodily
function (e.g., sight, smell,

taste,

and muscle control).” 164 N.J. at 540 (emphases added). Yet

1$

the Gilhooley Court further noted that not “every objective permanent injury results in
substantial loss of a bodily function[,]” such as a “completely healed fracture without any
objective evidence of permanent substantial impairment.” Id. (citation omitted).
Under the first prong, there must be an “objective injury,” Thorpe v. Cohen, 25$ N.J
Super. 523, 530 (App.Div.1992), established by “objective medical evidence in the record,”
Hammer v. Twp. ofLivingston, 31$ N.J Super. 298, 305 (App.Div. 1999). furthermore, “a

plaintiff must prove by objective medical evidence that the injury is penTlanent.” Brooks, 150
N.J at 402—03. A plaintiff cannot recover for “[t]emporary injuries, no matter how painful and

debilitating,” nor “for mere ‘subjective feelings of discomfort.” Id. at 403 (quoting Ayers v.
Twp. ofJackson, 106 N.J 557, 571 (1987)). Accordingly, a plaintiff may not recover if the
impact of his injury is limited to “lingering pain, resulting in a lessened ability to perform certain
tasks because of the pain.” Knowles v. Mantua Twp. Soccer Ass’n, 176 N.J. 324, 332 (2003).
The second prong imposes a substantiality requirement, meaning that the injury must be
substantial. The loss must be more than a mere limitation but does not have to constitute a total
loss of a body function. Brooks, 150 N.J at 406. There is no bright-line rule which “preclude[s]
finding a permanent and substantial loss of a bodily function merely because a claimant still is
able to function reasonably well at work and at home, irrespective of the nature or degree of the
impairment.” Fonte v. Overeem, 171 NJ 46, 53 (2002). Each case is fact-sensitive, focusing on
the “nature or degree of the ongoing impairmthit.” Knowles, 176 NJ at 331 (quoting Fonte,
171 N.J. at 53); Kahrar v. Borough of Wallington, 171 N.J. 3, 15 (2002) (identifying “the degree
of injury and impairment” as the appropriate query). Nevertheless, in every case, a plaintiff must
be able to identify some physical manifestation of permanency. See Fonte, 171 N.J. at 54.

19

The permanent injuries Plaintiff complains of are numbness, difficulty eating and
speaking, and loss of taste. Medical Opposition at 13. Dr. Giniger performed a limited
examination of Plaintiff which included a “2-point discrimination test” which “confirmed a mild
paresthesia.” Ex E. to Kistos Cert. at §V. Dr. Giniger also performed a visual inspection with a
mirror, explorer, periodontal probe, and disposable paper supplies. Id. To the extent the exam
was limited, it appears to be through no fault of Dr. Giniger. Instead, Dr. Giniger was limited by
the DOC as to which tools and instruments the doctor could bring into the facility to conduct the
examination. Dr. Giniger testified that the laceration under Plaintiffs tongue could cause nerve
damage, and that oral pain is a “strong possibility” when there is a trauma. Ex. E. to Kitsos Cert.
at 67-68. Dr. Giniger was unable to state, within a degree of medical certainty, that the
following were caused by Dr. Getzoffs negligence: mild trismus, temporomandibular joint
disorder, or decreased lower lip sensation.
In this case, the Medical Defendants do not perform much of an analysis concerning the
permanency issue. Instead, the Medical Defendants summarily state that “[a]s nothing more than
Plaintiffs subjective feelings of discomfort and minor ailments have been claimed as injury on
behalf of Plaintiff, [the Medical Defendants] are entitled to immunity for any damages.”
Medical Brief at 17-18. Plaintiff correctly notes that a permanent loss of taste can meet the
statutory requirement as per the New Jersey Supreme Court. In addition, Dr. Giniger performed
an examination of Plaintiff (including visual inspection, manual probe, and a two-point
discrimination test) despite the limitations imposed by the DOC. Because the Medical
Defendants, as the moving party, bear the burden of demonstrating that summary judgment is
appropriate and because their analysis is essentially conclusory, the Court declines to grant
summary judgment. The Medical Defendants have not met their burden.

20

Because Dr. Giniger testified to the standard of care, Dr. Getzoffs alleged deviation
therefrom, causation, and permanent damage, and the Medical Defendants have failed to
sufficiently rebut this evidence (or offer a proper analysis in the first instance), Plaintiff has
raised a genuine issue of material fact as to the medical malpractice claim against Dr. Getzoff.
c.

§1983 Retaliation Claim

“Section 1983 imposes liability for retaliatory conduct by prison officials if the conduct
was motivated ‘in substantial part by a desire to punish [an inmate] for the exercise of a
constitutional right.” Alexander v. fritch, 396 Fed. App’x 867, 871 (3d Cir. 2010) (citations
omitted). The elements of a retaliation claim are “(1) that the conduct leading to the alleged
retaliation was constitutionally protected; (2) that he suffered an adverse action sufficient to deter
a person of ordinary firmness from exercising his constitutional rights; and (3) that his protected
conduct was a substantial or motivating factor in the decision to discipline him.” Id.

But,

defendants may still prevail if they can prove “they would have made the same decision absent the
protected conduct for reasons reasonably related to a legitimate penological interest.” Id. As
noted, the plaintiff in a retaliation case “must prove that the conduct which lead to the alleged
retaliation was constitutionally protected.” Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001).
The Third Circuit has also added specific requirements for the causation element when an
inmate claims a violation of his First Amendment rights. Plaintiff must show: either “(1) an
unusually suggestive time proximity between the protected activity and the alleged retaliatory
action; or (2) a pattern of antagonism coupled with timing to establish a causal link.” De franco
v. Wolfe, 387 F.App’x 147, 154 (3d Cir. 2010) (affirming the district court’s dismissal of inmate’s
claim that he his cell assignment was changed because he threatened to sue prison officials).

21

Plaintiff claims that SCO Newsom (who is not a named Defendant) told him that Plaintiff
was being placed in MCU because of the fruit basket sent by his supporters but also said it was
to deter Plaintiff from filing a lawsuit. Ex. A to Kitsos Cert. at 1601:18-25, 175: 11-14, 178: 69.” Plaintiff suggests that his detention in the MCU violated his First Amendment right “to
speak out about his medical treatment,” in one line of his Opposition without subsequent
analysis. DOC Reply at 12-13. However, it is not alleged that Plaintiff actually did threaten to
sue, and it is not clear from Plaintiffs deposition or any other record that he was openly
complaining about his medical treatment, either. If Plaintiff is arguing that the protected activity
is his access to the courts—which is not made clear in the brief—clearly, he was not deterred.
Plaintiff obviously filed the case and has extensively litigated the action. See Docket No. 1025$. Plaintiff does not present evidence creating a genuine issue of material fact that he was
retaliated against for threatening to sue. As was the case in Defranco, “[tJhere is nothing in the
record that permits a reasonable inference the decision would have been any different absent the
threat to sue.” DeFranco, 387 F.App’x at 155. Critically, and as noted, Plaintiffs evidence is
not clear as to whether he voiced objections to his medical treatment, or that he even threatened
to sue, before he was placed in MCU.
Plaintiffs Reply also sets out the standard for placing an inmate in the MCU pursuant to
New Jersey DOC regulations. DOC Reply at 10-11 & n.4. However, a mere violation of
regulations (if true) does not necessarily equate to a constitutional violation. In addition,
Defendants offer an alternate explanation; Defendant Ricci in her deposition stated that inmates

11

SCO Newsom allegedly said: “You’re there because [Ricci] doesn’t want a lawsuit. She’s
trying to punish you. She wants to make an example of you. And she wants to quash all
litigation.” Ex. A to Kitsos Cert. 178:6-9. Plaintiff also claimed he was put in MCU as part of a
coverup. Id. at 180:1-12.
22

can be kept in the MCU during an investigation, and that Plaintiff was housed in the MCU while
the investigation concerning the fruit basked was conducted. DOC Brief at 26-27. Plaintiff does
not refute that the gifi was sent or that it can be a basis for an internal DOC investigation.
Plaintiff has not pointed to evidence which creates a genuine issue of material fact precluding
summary judgment on this claim.
d. Intentional Infliction of Emotional Distress

To establish a claim of intentional infliction of emotional distress, Plaintiff must plead
three elements: (1) intentional and outrageous conduct on the part of the Defendant; (2)
proximate cause—i.e. that the Defendant’s actions caused emotional distress; and (3) severe
emotional distress. Buckley v. Trenton Saving Fund Society, 111 N.J. 355, 366 (198$). The
emotional distress must be “so severe that no reasonable man could be expected to endure it.”
Id. Plaintiff has failed to present sufficient evidence of severe emotional distress. To be certain,
Plaintiff argues that Defendants’ actions caused him “severe distress,” but he points to physical,
not emotional, distress in support. Thus, Count XI is dismissed.12
e. Remaining Federal & State Constitutional Claims

Plaintiffs last remaining claims were brought against “all defendants” in their “individual
and official capacities” for violating Plaintiffs federal constitutional rights under the Fifth,
Eighth, and Fourteenth Amendments, and Plaintiffs rights under the New Jersey state
constitution. See Compi. at ¶147-161. Count XII appears to be a Monell claim that all
Defendants’ actions “constitute [sic] acts and a custom and/or policy to violate the constitutional
rights of Plaintiff.” Id. at ¶148. As stated above, Plaintiff has alleged no facts to show an

12

Because the Court finds the third element to be dispositive, this Opinion does not reach the
other two requirements. However, it also appears that Plaintiffs emotional distress claim would
be subject to summary judgment on the first two elements as well.
23

inappropriate custom or policy enacted by any Defendant. Count XIII is a claim for a federal
constitutional tort under the Fifth, Eighth, and Fourteenth Amendments. Plaintiffs Eighth
Amendment claim has been addressed above and dismissed. Plaintiff has otherwise fails to
articulate a fifth or Fourteenth Amendment violation. Count XIV is a claim for a state
constitutional tort under Article I

¶ 7 of the New Jersey Constitution, which guarantees the right

“of the people to be secure in their persons, houses, papers and effects.” Plaintiff has failed to
allege any facts that would give rise to a violation of this Fourth Amendment analog. Thus,
Counts XII, XIII, and XIV are dismissed.
f.

Supplemental Jurisdiction

Federal district courts have supplemental jurisdiction over state law claims related to
claims brought under federal statutes. 28 U.S.C. § 1367(a). The court can, in its discretion,
decline to exercise supplemental jurisdiction if it has dismissed the claims over which it had
original jurisdiction. 29 U.S.C. §1367(c)(3). In the exercise of that discretion, the court “should
take into account generally accepted principles of ‘judicial economy, convenience, and fairness
to the litigants.” Growth Horizons, Inc. v. Delaware Cry, Pa., 983 f.2d 1277, 1284 (3d Cir.
1993) (internal citations omitted).
Here, the only claim that has survived the instant motions is a state law claim for medical
malpractice against Dr. Getzoff’3 Rather than remand to state court, this Court will, in its
discretion, retain jurisdiction over the remaining state law claim.14 This matter has been litigated

13

The Court is aware that it can dismiss the remaining state law claim without prejudice and toll
the statute of limitations and permit Plaintiff to re-file in state court. See Hedges v. Musco, 204
F.3d 109, 123-4 (2d Cir. 2000).
14

See generally 28 U.S.C. §1367(a); Sarpotis v. Tereshko, 625 Fed.App’x. 594, 600-01 (3d. Cir.
2016) (stating “it is simply not the case that most courts accept that the proper course is to
remand whenever all federal claims are dismissed”).
24

thoroughly in this Court. In addition, the Court is aware that Plaintiff’s counsel did him (and the
Court) a tremendous service in accepting the matterpro bono. Thus, due to the Court’s
familiarity with the matter and in fairness to the litigants, it will retain jurisdiction.
V.

Conclusion

For the reasons stated above, the Medical Defendants’ motion for summary judgment is
GRANTED in part and DENIED in part, and the DOC Defendants’ motion for summary
judgment is GRANTED in its entirety. The Court will continue to exercise its supplemental
jurisdiction over the remaining claim against Dr. Getzoff. An appropriate Order accompanies
this Opinion.

Dated: October j, 2017

Johh Michael Vauez

25

.S.D.J.