CAMPBELL v. UNION COUNTY CHIEF OF MEDICAL STAFF DR. JOHN DOE/DR. JANE DOR, UNION COUNTY CORRECTIONAL FACILITY INDIVIDUALLY AND OFFICIALLY

Filing 86

OPINION. Signed by Judge Susan D. Wigenton on 1/24/17. (sr, )

*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

HYDEACARR CAMPBELL,
Plaintiff,
v.
DR. JOHN DOE/DR. JANE DOE NEW
JERSEY STATE PRISON CHIEF OF
MEDICAL STAFF, et al.,
Defendants.

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Civil Action No. 12-2750 (SDW)

OPINION

WIGENTON, District Judge:
Presently before the Court is the motion to dismiss or in the alternative for summary
judgment brought by Defendant Corizon/Correctional Medical Services, Inc. (CMS), pursuant to
Federal Rules of Civil Procedure 12(b)(6) and 56, seeking the dismissal of Plaintiff’s first amended
complaint. (ECF No. 71). Plaintiff filed a response to the motion (ECF No. 80), to which
Defendant CMS has replied. (ECF No. 81). For the following reasons, this Court will grant the
motion to dismiss and dismiss Plaintiffs claims against CMS as time barred.

I. BACKGROUND
In a recent opinion on another Defendant’s motion to dismiss, this Court summarized
Plaintiff’s basic factual allegations and the history of this matter as follows:
On or about May 7, 2012, Plaintiff, Hydeacarr Campbell, filed a

complaint asserting that various officials at New Jersey State Prison
and several related facilities had violated his constitutional rights by
failing to properly treat him following a pair of surgeries to remove
a cyst under his right armpit and to combat an inflammatory
infection in his right buttock area. (ECF No. 1). On January 22,
2013, this Court entered an order and opinion screening the
complaint and permitting Plaintiff’s claim that the New Jersey State
Prison medical staff had failed to treat him following his surgeries
to proceed as a claim for deliberate indifference to medical needs in
violation of the Eighth Amendment pursuant to 42 U.S.C. § 1983.
(ECF No. 2-3). Plaintiff made several attempts to serve the chief
of medical staff of the prison, but was unsuccessful until after the
appointment of counsel on June 20, 2014. (ECF No. 16).
....
On August 19, 2015, new counsel was assigned to Plaintiff.
(ECF No. 32). Following several extensions, new counsel filed an
amended complaint on October 8, 2015. (ECF No. 38). Although
the amended complaint was based on the same facts as the original
– i.e. the failure to provide Plaintiff with proscribed medical
treatment after his surgeries – the amended complaint specifically
named [several new] Defendants[.]
(ECF No. 53 at 2-3).
While several of the Defendants in Plaintiff’s amended complaint, such as the named
doctors, were intended to replace fictitious John Doe Defendants in the original complaint,
Defendants were not previously named, either fictitiously or otherwise, including moving
Defendant CMS. (ECF No. 1; ECF No. 38). According to Plaintiff’s amended complaint, CMS,
alongside another entity, specifically the University of Medicine and Dentistry of New Jersey
(UMDNJ), is a corporation which was contracted to provide medical services within the New
Jersey Prison System, who employed at least some of the remaining John and Jane Doe medical
staff. (ECF No. 38 at 2-3). As to CMS, Plaintiff essentially pleads that CMS and its employees
were made aware of the after care needs of Plaintiff following his surgeries, and then provided him

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none of the prescribed after care, thus depriving him of treatment in violation of the Eighth
Amendment.

(Id. at 5-7).

Plaintiff further asserts that CMS “failed to adopt, formulate,

maintain, and enforce customs, policies, and procedures to insure that Plaintiff was not subjected
to deliberate indifference” to his serious medical needs, that CMS’s employees were provided the
prescriptions for after care treatment, that those employees failed to provide it, and that CMS was
therefore in turn deliberately indifferent to Plaintiff’s needs. (Id.at 8-9). Plaintiff does not
identify what policies, practices, or customs CMS had or failed to create, nor does he otherwise
specify how CMS itself, rather than through its employees, was otherwise directly involved in his
denial of care.
Following service upon them, Defendant CMS filed the instant motion to dismiss or in the
alternative for summary judgment. (ECF No. 71). CMS argues that the claims against it are time
barred and that Plaintiff in any event has failed to plead a claim against CMS through means other
than respondeat superior. While Defendant asserts that its arguments are sufficient to establish
entitlement to a dismissal with prejudice, Defendants also move alternatively for summary
judgment, arguing that this matter must be time barred because the contract between CMS and
New Jersey expired in 2008, and that CMS has provided no services to New Jersey or its prisons
since that time. Defendants provide a copy of the final contract to their motion, which lists the
termination date of the contract between New Jersey and CMS as September 30, 2008.
(Document 6 attached to ECF No. 71).

II. DISCUSSION
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A. Legal Standard
In deciding a motion to dismiss under Rule 12(b)(6), the Court must “accept all factual
allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine
whether under any reasonable reading of the complaint, the plaintiff may be entitled to relief.”
Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n. 3 (3d Cir. 2014) (quoting Phillips v.
Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). 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 a motion to dismiss for
failure to state a claim, a complaint must allege “sufficient factual matter” to show that its claims
are facially plausible. Fowler v. UPMS Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citation
omitted). “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.”
Dempster, 764 F.3d at 308 (quoting Iqbal, 556 U.S. at 678).

B. Analysis
1. Whether this motion should be converted to a motion for summary judgment
A “district court properly converts a motion to dismiss into a motion for summary judgment
if (1) the materials submitted go outside of the pleadings and are not excluded by the court and (2)
the parties had adequate notice of the . . . intention to convert.” Brown v. U.S. Steel Corp., 462 F.
App’x 152, 155 (3d Cir. 2011); see also In re Rockefeller Ctr. Props., Inc. Sec. Litig., 184 F.3d
280, 287 (3d Cir. 1999). Thus, this Court need only treat the current motion as a motion for
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summary judgment to the extent that it must look beyond those documents appropriate at the
motion to dismiss stage to decide the issue before it. In deciding a motion to dismiss,
“. . . courts generally consider only the allegations contained in the
complaint, exhibits attached to the complaint and matters of public
record.” Pension Benefit Guar. Corp. v. White Consol. Indus., Inc.,
998 F.2d 1192, 1196 (3d Cir. 1993); see also Mayer v. Belichick,
605 F.3d 223, 230 (3d Cir. 2010). “However, an exception to the
general rule is that a ‘document integral to or explicitly relied upon
in the complaint’ may be considered ‘without converting the motion
to dismiss into one for summary judgment.’” In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (quoting
Shaw v. Digital Equip. Corp., 82 F.3d 1194, 1220 (1st Cir. 1996),
superseded on other grounds by PSLRA, 15 U.S.C. § 78u-4(b)(2)).
“The rationale underlying this exception is that the primary problem
raised by looking to documents outside the complaint – lack of
notice to the plaintiff – is dissipated ‘[w]here the plaintiff has actual
notice . . . and has relied upon these documents in framing the
complaint.” Id. (quoting Watterson v. Page, 987 F.2d 1, 3-4 (1st
Cir. 1993)). “[W]hat is critical is whether the claims in the
complaint are ‘based’ on an extrinsic document and not merely
whether the extrinsic document was explicitly cited.” Id.
Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014).
The document Defendants seek to have the Court consider in this matter is a copy of the
most recent contract between CMS and the State of New Jersey. Although that document may be
publically available, it is safe to say that such a contract goes beyond the type of matter of public
record that a court can consider in a motion to dismiss. Id. Likewise, there is no evidence that
Petitioner relied upon or otherwise considered the contract in drafting his complaint. This Court
therefore cannot consider the contract without converting this matter to a motion for summary
judgment. Id. Because this Court does not need to consider the contract to decide this motion,
however, the Court need not convert this pleading into a motion for summary judgment and will
instead decide the matter under the motion to dismiss standard provided above.

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2. Plaintiff’s Claims against CMS are time barred
All of Plaintiff’s claims against CMS in his current amended complaint are based on
Defendants’ alleged deliberate indifference to Plaintiff’s serious medical needs in violation of the
Eighth Amendment, and are therefore brought pursuant to 42 U.S.C. § 1983. Claims brought
pursuant to 42 U.S.C. § 1983 in New Jersey are subject to a two year statute of limitations. See,
e.g., Patyrak v. Apgar, 511 F. App’x 193, 195 (3d Cir. 2013). “Under federal law, a cause of
action accrues and the statute of limitations begins to run when the plaintiff knew or should have
known of the injury upon which its action is based.” Kach v. Hose, 589 F.3d 626, 634 (3d Cir.
2009). A deliberate indifference claim will therefore accrue, and the statute of limitations for that
claim will begin to run, when Plaintiff became aware of the fact that he wasn’t receiving
appropriate treatment. See, e.g., Hughes v. Kniebhlher, 341 F. App’x 749, 751-52 (3d Cir. 2009);
Baker v. Barnes, No. 11-992, 2012 WL 95363, at *4 (D.N.J. Jan. 12, 2012).
CMS argues that Plaintiff’s claims against it are time barred because Plaintiff knew he was
not receiving his aftercare treatment in 2008 after he failed to receive care following his surgery,
and thus was aware of his injuries. CMS therefore contends Plaintiff had to file his complaint by,
at the latest, October 2010 to comply with the two year statute of limitations. Plaintiff raises two
arguments in response – first, that a deliberate indifference claim does not accrue until the plaintiff
is released from prison, and that this Court cannot determine when Plaintiff knew of his injuries
without discovery. This Court will turn first to Plaintiff’s discovery argument.
Although Plaintiff is correct that it is not entirely clear when Plaintiff first discovered his
injuries, this Court need not await discovery to decide Defendant’s timeliness argument. Even if

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this Court were to assume that Plaintiff did not immediately discover the lack of treatment he
alleges, Plaintiff was clearly aware of this alleged lack of treatment by the time he filed his original
complaint in May of 2012, as evinced by his filing of that complaint. (ECF No. 1). Thus, absent
some argument for tolling or delaying accrual of the statute of limitations, Plaintiff’s claim had
accrued by May 2012, and his statute of limitations would have run, at the latest by May 2014,
more than a year before Plaintiff filed his amended complaint in which he first raised claims against
CMS. Absent some basis for tolling, Plaintiff’s claims are clearly time barred as to CMS. 1
The Court now turns to Plaintiff’s argument that the statute of limitations only accrued
when Plaintiff was released from prison in 2014. In support of his assertion that a claim for
deliberate indifference does not accrue until a plaintiff is released from prison, Plaintiff relies on
two cases – Heilman v. T.W. Ponessa & Assoc., No. 08-1667, 2009 WL 82707, at *4 (3d Cir. Jan.
14, 2009), and Wilson v. Lehman, 224 F. App’x 707 (9th Cir. 2007) – both of which are nonprecedential opinions, one of which is from outside this circuit. Plaintiff first incorrectly contends

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Plaintiff does not explicitly argue in his briefing that his amended complaint should relate back
to the date of his original complaint. Even if Plaintiff had attempted to raise such an argument,
Plaintiff’s claims against CMS could not relate back because he cannot meet the requirements of
Fed. R. Civ. P. 15(c)(3). Specifically, Plaintiff cannot show that CMS received notice of his
claims within the Rule 4(m) period following the proceeding of his complaint in January 2013, nor
that CMS should have known that it would have been sued but for a mistake as to a party’s identity
in the drafting of Plaintiff’s complaint as Plaintiff sought to make no claims against an entity or
fictitious party which could arguably be identified with CMS in that document. See, e.g., Fed. R.
Civ. P. 15(c)(3); Garvin v. City of Philadelphia, 354 F.3d 215, 220 (3d Cir. 2003); Singletary v.
Pennsylvania Dep’t of Corr., 266 F.3d 186, 196 (3d Cir. 2001) (describing when a newly added
Defendant can be construed to have received notice either because it shares an attorney with a
timely named and served party or is identical of interest to such a party). Because Plaintiff
mistakenly named no other party in place of CMS, nor provided notice to any Defendant who
shares a lawyer or an identity of interest with CMS, Plaintiff’s amended complaint cannot be said
to relate back to his original complaint for statute of limitations purposes. Singletary, 266 F.3d at
196-97.
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that Heilman stands for the proposition that a deliberate indifference claim accrues when a plaintiff
is released from prison. In Heilman the Third Circuit noted that a § 1983 cause of action accrues
“when the plaintiff knew or should have known of the injury” the action is based on, and that for
a denial of treatment claim, such a deprivation would have to have occurred between the date of
his incarceration and release. Heilman, 2009 WL 82707 at *4. The point of that observation was
not to create a new rule for accrual, but instead to assert that the Heilman plaintiff’s claim had to
have accrued by the time he was released, which, in that case, was more than two years before he
filed suit. The Third Circuit discussed the date of release only to show that Plaintiff factually
must have been time barred in that case, and in no way held that all Plaintiffs may wait until two
years after their release to raise any and all deliberate indifference claims.
The same is true for Lehman. In that case, the Ninth Circuit observed that the plaintiff’s
claim had to have accrued by the time he was released, and that a filing after more than three years
from a plaintiff’s release date must therefore have been time barred. 224 F. App’x at 707. The
release date was mentioned in both cases only to establish the latest possible date of accrual, not
to create any rule regarding accrual. The case law is clear – a deliberate indifference claim
accrues when a Plaintiff knows or should have known about his injury, which in this case had
certainly occurred prior to the filing of Plaintiff’s initial complaint. Heilman, 2009 WL 82707 at
*4; see also Kach, 589 F.3d at 634. Plaintiff’s argument misstates the holding of both of the cases
it relies upon and provides no basis for this Court to conclude that Plaintiff’s claims accrued at any
point after his original complaint was filed in May 2012.
Because Plaintiff’s claims accrued by, at the latest, May 2012, and he did not raise his
claims against CMS until more than a year after his two year limitations period had run, which

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occurred at the latest in May 2014, Plaintiff’s § 1983 claims against CMS are time barred.
Plaintiff has presented no valid argument for the tolling of the statute of limitations, 2 and this
Court perceives no such basis. Accordingly, Defendant’s motion to dismiss Plaintiff’s claims
against CMS with prejudice as time barred is granted. Because Plaintiff’s claims against CMS
are dismissed as time barred, this Court need not, and will not, address Defendant’s remaining
arguments.

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In his brief, Plaintiff does not attempt to argue that the continuing violation doctrine should apply
in this matter, and the Court will therefore not address that question in detail sua sponte. Suffice
it to say, application of the continuing violation theory is proper only where the defendant’s
conduct amounts to a regular series of acts which may be aggregated to make out a claim, some of
which occurred within the applicable limitations period. See, e.g., O’Connor v. City of Newark,
440 F.3d 125, 127 (3d Cir. 2006). Were Plaintiff to argue a continuing violation theory, this Court
would be required to convert this matter into a motion for summary judgment as the contract
provided by Defendant CMS in its motion indicates that CMS provided no services in the prisons
of New Jersey after September 30, 2008, and thus it is clear that no act by CMS could have
occurred in this matter within the two year limitations period. In sum, even had Plaintiff raised
the continuing violation doctrine, it would have been unavailing and Petitioner still would be
bound by the accrual date of his claim, which, in the absolute best of cases, could not have been
after May 2012 for the reasons discussed above. As Plaintiff has failed to raise the issue, this
Court need not convert this matter, and Plaintiff’s claims against CMS shall be dismissed for the
reasons discussed above.
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III. CONCLUSION
For the reasons stated above, this Court will grant Defendant’s motion to dismiss and will
dismiss Plaintiff’s claims against CMS with prejudice as time barred. An appropriate order
follows.

__/s/ Susan D. Wigenton____
SUSAN D. WIGENTON, U.S.D.J.

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