ENDL et al v. STATE OF NEW JERSEY et al
Filing
66
MEMORANDUM OPINION. Signed by Judge Kevin McNulty on 3/13/14. (DD, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
SUSAN ENDL et al,
Civ. No. 2:12-3564
(KM)(MAH)
Plaintiff,
MEMORANDUM OPINION
STATE OF NEW JERSEY et al,
Defendants.
KEVIN MCNULTY, U.S.D.J.:
This matter comes before the Court on motions to dismiss the Second
Amended Complaint (“SAC”) brought by Defendants State of New Jersey, New
Jersey Department of Corrections, Northern State Prison, Gary M. Lanigan,
George Hayman, and Paul Lagana (collectively, “Corrections Defendants”)
(Docket No. 34), and by the University of Medicine & Dentistry of New Jersey,
John Godinsky, M.D., Sharmalie Perera, M.D., Veronica Nendze, R.N., Maria
Delgado, R.N., Theresa Jocen Boblick, L.P.N., Bernice Picerno-Jones, R.N.,
David Maxey, PhD, Alan Kay M.D., and Anasuya Salem, M.D. (collectively,
“Medical Defendants”) (Docket Nos. 35, 48).1 For the reasons set forth below,
these motions are GRANTED in part and DENIED in part.
I.
BACKGROUND
This action arises out of the death of Eli Endi, which occurred when he
was an inmate of Northern State Prison. Plaintiffs, Mr. Endi’s survivors, bring
the action against the State of New Jersey, the New Jersey Department of
As to Docket No. 35, the Notice of Motion and Proposed Order list only the
University, and the accompanying Brief lists only the individual medical providers. I
will assume that this motion is intended to be asserted on behalf of all the Medical
Defendants.
The oppositions and replies submitted by the Plaintiffs’ attorney, Fred M.
Zemel, and Medical Defendants’ attorney, David C. Donohue, are not consistently
clear as to which motions and/or Parties they address. I have considered all of the
arguments raised as they apply to all Parties.
1
1
Corrections, the University of Medicine & Dentistry of New Jersey, and
affiliated medical personnel. They allege that Defendants’ collective failure to
provide adequate medical care caused the death of Eli Endi. The Second
Amended Complaint (“SAC”) asserts constitutional claims pursuant to 42
U.S.C. § 1983 and the New Jersey Civil Rights Act (“NJCRA”), as well as state
law claims under the New Jersey Tort Claims Act (“TeA”).
For purposes of these motions only, I assume the truth of the following
facts, which are taken from the SAC. At this procedural stage, however, they
have the status of allegations, and have not been tested by any fact finder.
Eli Endi, now deceased, was an inmate at Northern State Prison in
Newark, Essex County, New Jersey. SAC ¶ 1. Plaintiffs, Susan and Anthony
Endi, are the natural parents of Eli Endi. Id. ¶ 2. Susan Endl is the designated
administrator ad prosequendum for the benefit of Eli Endl’s estate. Id. 3.
¶
Defendant New Jersey Department of Corrections (“DOC”) is a
subdivision of Defendant State of New Jersey (“New Jersey”). DOC operates
Northern State Prison. Id. ¶f 4-6. Defendant Gary M. Lanigan is the
Commissioner of the DOC. Id. ¶ 8. Defendant George Hayman is the former
Commissioner of the DOC. Id. ¶ 9. Defendant Paul Lagana is the Administrator
of Northern State Prison. Id. ¶ 10. These three individuals are sued in their
official capacities. Collectively these Defendants are referred to as the
“Corrections Defendants.”
2
Defendant University of Medicine and Dentistry of New Jersey (“UMDNJ”)
is a state university contracted by New Jersey to provide medical care and
attention, and health and hospital services, to inmates housed at Northern
State Prison. Id. ¶ 7. Defendants John Godinsky, M.D., Sharmalie Perera,
M.D., Veronica Nendze, R.N., Maria Delgado, R.N., Theresa Jocen Boblick,
L.P.N. Defendants Bernice Picerno-Jones, R.N., David Maxey PhD, Alan Kay,
M.D., and Anusuya Salem, M.D. are current or former employees of UMDNJ,
DOC, or Northern State Prison who provided medical care and attention to
The SAC also names John Does 1 10, who are identified only as employees of
the DOC “charged with the responsibility for the housing, care and detention of
inmates at Northern State prison.” Id. 11. Plaintiffs allege that John Does 1 10 would
have been responsible for communicating with Eli Endl so that if he complained about
a medical problem, they would ensure he received appropriate medical care and
attention, including making sure he was attended to by an appropriate medical care
provider. Id. ¶ 13.
2
—
—
2
inmates at the prison, including Eli Endi. Id.
¶J 15-18. Collectively, these
Defendants are referred to as the “Medical Defendan
3
ts.”
Between approximately March 21, 2010, and Marc
h 25, 2010, Eli Endi
became ill and required medical care. Id.
21-23. At 9:20 pm on March 21,
¶J
2010, Bernice Picerno-Jones, R.N., documented that
Endi complained of chest
cavity pain from his shoulders past his abdomen. Id.
¶ 23. She reported that he
had been given 650 mg of Tylenol at 9:00 pm, but alleg
edly no medical workup
followed. Id. On March 22, 2010, Endi required
medical attention for a
complaint of bil[ateralj flank pain, tenderness, and
chest pain. Id. ¶22. On
March 24, 2010, Endl had an office visit for bloo
d in sputum, excessive
sputum, cough, wheezing, and “bronchitis-c/o coug
h with excessive sputum
and blood.” Id. At 8:56 pm the same day, Endi was foun
d unresponsive in his
cell by a corrections officer. Id. Endl died on March 25,
2010. Id. ¶ 26.
Plaintiffs allege that Defendants denied or deprived Endl
of “proper and
necessary medical care and attention” by:
1. Failing to provide a medical workup following Endi
’s documented
March 21, 201.0 complaint of chest cavity pain;
2. Misdiagnosing bronchitis when Endi suffered from cong
estive heart
failure;
3. Misdiagnosing kidney stone-related pain and respirator
y infection;
4. Failing to diagnose potential aortic dissection;
5. Failing to diagnose Marfanoid symptoms;
6. Failing to timely treat a dissecting aortic aneurysm;
7. Failing to address prior diagnoses of schizophrenia
and mood
disorder;
8. Failing to properly diagnose several pain symptoms; and
9. Failing to insure that Endl was properly medicated.
Id. ¶ 23. Plaintiffs allege that the care Endi did receive
was provided “carelessly,
recklessly and negligently.” Id.
24. They further allege that as a “direct and
¶
proximate result” of Defendants’ refusal to provide the
required medical care
attention, Endi sustained substantial pain and suffe
ring, and died. Id. ¶J 25,
26.
The SAC also names John Does 11
20, who are medical, nursing, and/or
health care providers identified as “employees, agents,
and/or representatives of
Defendant UMDNJ and/or [DOC].” Id. 20.
¶
3
—
3
Plaintiffs Susan Endl (individually and
as administrator ad
prosequendum of the Estate of Eli Endl), Anth
ony Endi, and Eli Endl
(deceased), bring this complaint against the Defe
ndants alleging 10 counts:
deliberate indifference to serious medical need
s (Count 1), cruel and unusual
punishment (Count 2), deprivation of life, liberty,
and the pursuit of happiness
(Count 3), and a separate “Monell claim” (Count
4) pursuant to 42 U.S.C. §
1983; deprivation of right to life, liberty, and the purs
uit of happiness (Count 5)
and cruel and unusual punishment (Count
6) under the New Jersey
Constitution; and state-law claims of negligence
and/or medical malpractice
(Count 7), intentional infliction of emotional distress
4 (Count 8), wrongful death
(Count 9), and the New Jersey Survivorship Statu
te (Count 10).5 SAC ¶{ 28-65.
The original complaint was filed on March 21,
2012, in New Jersey
Superior Court, Essex County; removed to this distr
ict court on June 13, 2012;
and assigned to Hon. William J. Martini. (Doc
ket No. 1). The Corrections
Defendants moved to dismiss the initial complain
t on June 20, 2012 (Docket
No. 4), but that motion, overtaken by procedur
al developments, was not
decided. The case was reassigned to me on Aug
ust 1, 2012, and the First
Amended Complaint was filed the same day. (Docket
Nos. 9, 10). UMDNJ filed
an Answer to the First Amended Complaint on Aug
ust 14, 2012. (Docket No.
13). Less than a month later, on September 10,
2012, the Plaintiffs moved to
amend the complaint a second time. (Docket No.
14). Magistrate Judge Mark
Falk granted the motion to amend and terminate
d the pending motion to
dismiss the earlier complaint. (Docket No. 19).
Plaintiffs filed the SAC on
November 26, 2012. (Docket No. 20).
None of the Defendants has filed an Answer to the
SAC. The Corrections
Defendants moved to dismiss the SAC pursuant
to Fed. R. Civ. P. 12(b)(6) on
December 10, 2012. (Docket No. 34). The Medical
Defendants also moved to
dismiss the SAC on December 18, 2012. (Docket
No. 35). On April 11, 2013,
the Medical Defendants made a second motion to
dismiss the SAC pursuant to
This count, titled “Outrage,” probably refers to the tort
of intentional infliction
of emotional distress (“lIED”), which requires that the
defendant’s conduct be “extreme
and outrageous.” Buckley v. Trenton Saving Fund Soc., 544
A.2d 857, 863 (N.J. 1988);
SAC ¶{ 57-58. This tort requires that the defendan
t intend both the act and the
production of emotional distress. Id.
Count 10 is pleaded separately under the survivorship
statute, N.J.S.A. 2A: 15-3
(Count 10). The survivorship statute does not create
a separate basis for relief, but
provides that an administrator or executor of an estat
e may bring an action on behalf
of the intestate or testator. Id.
5
4
Rule 12(b)(6) based on Plaintiff’s failure to comply
with the
requirement of an affidavit of merit. (Docket No. 48).
II.
state-law
DISCUSSION
Defendants move to dismiss the complaint pursuant to Fed.
R. Civ. P.
12(b)(6) for failure to state a claim. Finding that the Correc
tion Defendants’
motion and the SAC also raise issues of sovereign immunity
and standing, I
also consider the SAC’s viability pursuant to Fed. R. Civ. P.
12(b)(1). See Corr.
Def. Br. at 8.
A. Lack of Subject Matter Jurisdiction Under Rule 12(b)(1
)
The Court’s subject-matter jurisdiction is considered pursuant
to Fed. R.
Civ. P. 12(b)(1). Rule 12(b)(1) challenges may be either facial
or factual attacks.
See 2 MOORE’S FEDERAL PRACTICE § 12.30[4] (3d ed. 2007);
Mortensen v.
First Fed. Say. & Loan Ass’n, 549 F.2d 884, 891 (3d Cir.
1977). A facial
challenge asserts that the complaint does not allege suffici
ent grounds to
establish subject matter jurisdiction. Iwanowa v. Ford Motor
Co., 67 F. Supp.
2d 424, 438 (D.N.J. 1999). A court considering such a facial challen
ge assumes
that the allegations in the complaint are true, and may dismis
s the complaint
only if it nevertheless appears that the plaintiff will not be able
to assert a
colorable claim of subject matter jurisdiction. Cardio—Med
. Assoc., Ltd. v.
Crozer—Chester Med. Ctr., 721 F.2d 68, 75 (3d Cir. 1983); Iwanow
a, 67 F.
Supp. 2d at 438. A factual challenge, however, attacks subjec
t-matter
jurisdiction by challenging the truth (or completeness) of the
jurisdictional
allegations set forth in the complaint. Mortensen, 549 F.2d
at 891. Thus a
factual jurisdictional challenge may not go forward unless
and until the
plaintiff’s allegations have been controverted. Id. at 891 n. 17.
For purposes of
this motion to dismiss, the Defendants’ jurisdictional arguments
are treated as
facial attacks.
1. Standing
This action is brought by Eli Endi’s parents, Susan and Anthon
y Endi,
and in Eli Endi’s name. The Plaintiffs’ standing has not been
raised by the
Parties. Nevertheless, because it potentially implicates the
Court’s subject
matter jurisdiction, I briefly discuss it here. Ballentine v. U.S.,
486 F.3d 806,
810 (3d Cir. 2007); Coastal Outdoor Advertising Group, LLC v.
Twp. of Union
N.J., 676 F. Supp. 2d 337, 343 (D.N.J. 2009).
5
Plaintiffs generally may not vindicate the rights of others.
McCain v.
Abraham, 337 Fed. App’x 141, 142 (3d Cir. 2009). Nevertheless,
a plaintiff who
acts in a representative capacity may assert claims of the
deceased under
Section 1983. Such a Section 1983 cause of action will
survive the
complainant’s death if it would do so under state law. See
Robertson v.
Wegmann, 436 U.S. 584, 593 (1978); Giles v. Campbell, 698 F.3d
153, 156 (3d
Cir. 2012). Under New Jersey law, an executor or administrator
may pursue an
action based on “the wrongful act, neglect, or default of another, where
death
resulted from injuries for which the deceased would have had a cause
of action
if he lived.” N.J.S.A. 2A: 15-3. More specifically, a wrongful death
action for
damages will be available when “the death of a person is caused by
a wrongful
act, neglect or default, such as would, if death had not ensued, have
entitled
the person injured to maintain an action for damages resulting
from the
injury.” N.J.S.A. 2A:3 1-1. An action under this statute must be brough
t in the
name of an administrator ad prosequendum of the decedent. N.J.S.A. 2A:31
-2.
An action under either statute must be commenced within two years after
the
death of the decedent. N.J.S.A. 2A:15-3; 2A:31-3.
This action was originally filed on March 21, 2012, within two years after
the death of Eli Endl. Eli Endi’s mother, Susan Endi, as administrato
r ad
prosequendum, is entitled to bring claims based on the wrongful death
of Eli
Endi. There does not, however, appear to be any basis for Anthony
Endl’s
standing as plaintiff under New Jersey state law. Under the New Jersey
Survivorship and Wrongful Death statutes, the class of persons entitled to
sue
is restricted to the administrator ad prosequendum or executor. N.J.S.A
.
2A:3 1-2; 2A: 15-3. Section 1983 incorporates these state law limitations
on
representative capacity. All of the claims in this action are asserted on behalf
of
the deceased, Eli Endl. I will therefore dismiss Anthony Endi (who sues
as an
individual) and Susan Endi (in her individual capacity) as plaintiffs. This action
will go forward with Susan Endi, administrator ad prosequendum, as plainti
ff.
No change to the substance of the action is intended or should be inferred.
2. Sovereign Immunity
Among the Defendants named in the SAC are the State of New Jersey
and certain entities that do or may share the State’s Eleventh Amendment
protection. To the extent that those parties are protected by sovere
ign
immunity, the claims against them will be dismissed.
The Eleventh Amendment to the Constitution guarantees the states’
immunity from certain claims: “The Judicial power of the United States shall
6
not be construed to extend to any suit in law or equity
, commenced or
prosecuted against one of the United States by Citizens of
another State, or by
Citizens or Subjects of any Foreign State.” U.S. Const. Amend
. XI. Despite the
limited scope of its wording, the Eleventh Amendment has
for over a century
been held to incorporate a more general principle of sovereign
immunity that
bars citizens from bringing suits for damages against any state
in federal court.
Pennhurst State School & Hosp. v. Halderrnan, 465 U.S. 89,
100-101 (1984);
Kelley v. Edison Twp., No. 03—4817, 2006 WL 1084217, at *6
(D.N.J. Apr. 25,
2006) (citing Bennett v. City of Atl. City, 288 F. Supp. 2d 675,
679 (D.N.J.
2003)); see also Seminole Tribe of Florida v. Florida, 517 U.S.
44, 54 (1996);
Edelman v. Jordan, 415 U.S. 651, 662-63 (1974); Hans v. Louisi
ana, 134 U.S. 1
(1890).
Monetary claims for deprivations of civil liberties under 42 U.S.C.
§ 1983
are subject to that sovereign immunity bar. Will v. Michigan
Dept. of State
Police, 491 U.S. 58, 66 (1989). Section 1983 provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or the
District of Columbia, 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.
42 U.S.C. § 1983 (emphasis added). A state is not considered a “perso
n” for
purposes of Section 1983 because it is protected by sovereign immun
ity. Will,
491 U.S. at 67-70.
In Section 1983 actions, the protection of the Eleventh Amendment
extends to arms of a state—including agencies, departments, and
officials—
when the state is the real party in interest. See Pa. Fed’n of Sportsmen’s
Clubs,
Inc. v. Hess, 297 F.3d 310, 323 (3d. Cir. 2002). To determine
whether a
defendant is an arm of the state, the Court considers three factors: (1)
whether
payment of a judgment resulting from the suit would come from
the state
treasury, (2) the status of the entity under state law, and (3) the entity’
s degree
of autonomy. See Fitchik v. New Jersey Transit Rail Operations, Inc.,
873 F.2d
655, 659 (3d Cir.1989) (en banc).
7
The same sovereign immunity reasoning has been applied to claims for
damages against the state and its entities pursuant to the NJCRA. Szemple v.
Corr. Med. Servs., 493 Fed. App’x 238, 241 (3d Cir. 2012); Stroby v. Egg Harbor
Twp., 754 F. Supp.2d 716, 721 n. 5 (D.N.J. 2010) (quoting Chapman v. State of
New Jersey, Civ. A. No. 08—4 130, 2009 U.S. Dist. LEXIS 75720, at *7, 2009 WL
2634888 (Aug. 25, 2009)). NJCRA is construed nearly identically to Section
1983. In particular, the definitions of “person” under the two statutes have
been interpreted in parallel. Didiano v. Balicki, 488 Fed. App’x 634, 638 (3d Cir.
2012) (explaining that “person” as defined in the New Jersey Code does not
encompass the state or its functional equivalents).
a. Corrections Defendants
Defendants New Jersey, the DOC, and the named Corrections Officers
(who are sued in their official capacities) are immune from suit under Section
1983 and the NJCRA (Counts 1-6 of the SAC).
The DOC is considered an “arm of the state” because it enjoys minimal
autonomy. DOC operates under a Commissioner appointed by the Governor
with the consent of the Senate. Grabow v. Southern State Corr. Facility, 726 F.
Supp. 537, 539 (D.N.J. 1989); Simrin v. Con-. Med. Servs., Civ. No. 05-2223
(RBK), 2006 WL 469677 *2 (Feb. 24, 2006) (dismissing claims against NJ DOC
pursuant to Eleventh Amendment and Section 1983); Didiano, 488 Fed. Appx
at 638-39 (affirming grant of summary judgment on Section 1983 and NJCRA
claims in favor of DOC and DOC official sued in official capacity). DOC
therefore stands in the shoes of New Jersey for sovereign immunity purposes.
The motion to dismiss Counts 1-6 will be granted as to the State and DOC.
6
The “Monell” theory of liability in Count 4 does not circumvent the sovereign
immunity bar. Under Section 1983, a municipality is a “person” subject to suit, but its
liability cannot be vicarious; that is, it will not be held liable via respondeat superior
for the acts of municipal employees. A municipality may, however, be liable to the
extent that its own policies and practices led to a deprivation of constitutional rights.
See Moriell v. Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658 (1978) (local
government units are “persons” for purposes of Section 1983 and can be held liable
when a constitutional deprivation arises from a governmental custom or policy). Count
4, invoking Monell, alleges that the DOC “maintained policies, practices and customs
with regard to the operation of Northern State Prison” that failed to provide reasonable
and adequate care to inmates at the prison. SAC ¶ 40. As established above, however,
the premise for Monell liability is lacking: DOC is not a “person” whose acts will
6
8
Similarly, the Section 1983/NJCRA claims against Defend
ants Lanigan,
Hayman, and Lagana, brought against them in their officia
l capacities, must
fail. SAC ¶J 8-10 (specifically naming each of these Defend
ants in his official
capacity). Under Will, “a suit against a state official in
his or her official
capacity is not a suit against the official but rather
is a suit against the
officials office.” 491 U.S. at 71 (citing Brandon v. Holt,
469 U.S. 464, 471
(1985)); Hafer v. Melo, 502 U.S. 21, 25 (1991). Such a suit
is thus no different
from a suit against the State itself. Id. (citing Kentucky v.
Graham, 473 U.S.
159, 165-166 (1985)); Monell v. New York City Dept. of Social
Servs., 436 U.S.
658, 690 (1978). None of the Corrections Defendants, sued
in their official
capacities, are “persons” subject to suit under Section 1983
or the NJCRA.
Counts 1-6 of the SAC are thus barred by sovereign immun
ity as against the
Corrections Defendants, and must be dismissed pursuant to
Rule 12(b)(1).
Finally, I consider the New Jersey Tort Claims Act (TCA), which
underlies
Counts 7-10 of the SAC. Under the TCA, public entities are genera
lly immune
from liability for an injury arising out of an act or omission of
the public entity,
a public employee, or any other person. N.J.S.A. 59:2-1; Greenw
ay Dev. Co.,
Inc. v. Borough of Paramus, 163 N.J. 546, 552, 750 A.2d 764
(2000). A public
entity is also not liable under a vicarious liability theory for a public
employee’s
willful misconduct, crime, fraud, or malice. N.J.S.A. 59:2-10. I will
therefore
dismiss Counts 7-10 as against New Jersey and the DOC.
I turn to the individual Defendants’ potential immunity from suit
under
the TCA. A public employee may generally share the State’s immun
ity, but is
not shielded from claims based on the employee’s willful misconduct.
N.J.S.A.
59:3-14 (“Nothing in this act shall exonerate a public employee from
liability if
it is established that his conduct was outside the scope of his employ
ment or
constituted a crime, actual fraud, actual malice or willful miscon
duct.”).
Plaintiff’s negligence/malpractice claim in Count 7 does not
allege willful
misconduct in so many words, but it could encompass such conduc
t; within its
scope are not just errors in medical judgment, but claims of
deliberate or
reckless indifference. At any rate, the lIED claim (Count 8) and wrong
ful death
claim (Count 9) more clearly allege conduct that may lie outside
the scope of
these officers’ employment or that may constitute willful miscon
duct. See
N.J.S.A. 59:3-14; Clarke v. Twp. of Mt. Laurel, 815 A.2d 502,
507-08 (N.J.
Super. App. Div. 2003) (reversing entry of summary judgment
in wrongful
subject it to a Section 1983 claim. Therefore, this “Monell” style claim,
like the others
in Counts 1-6, is barred and will be dismissed for this additional reason
.
9
death action in favor of police officer defendant where officer may have engaged
in willful misconduct). Counts 7-10, then, will not be dismissed at this stage.
Accordingly, the SAC is dismissed in its entirety against New Jersey and
the DOe, and Counts 1-6 are dismissed as to Defendants Lanigan, Hayman,
and Lagana, pursuant to Rule 12(b)(1).
b. UMDNJ & Individual Medical Defendants
(i.)
UMDNJ
As to Defendant UMDNJ, sovereign immunity from suit under Section
1983 is less certain. Whether UMDNJ qualifies as a state entity for purposes of
Section 1983 is an unsettled question. The Third Circuit has implied that a
Section 1983 action can be maintained against UMDNJ. See Mauriello v.
University of Medicine & Dentistry, 781 F.2d 46 (3d Cir. 1986). See also Fuchilla
v. Layman, 537 A.2d 652, 655-57 (N.J. 1988) (citing Mauriello and holding that
UMDNJ was not alter ego of the state). More recently, however, courts in this
district have disagreed as to UMDNJ’s proper status. See e.g. Simmons v. New
*5, n. 5 (D.N.J. Oct. 8, 2009)
Jersey, No. 09—1067 (JAP), 2009 WL 3260602, at
(assuming, for purposes of motion to dismiss, that prison doctor and UMDNJ
are “state actors” subject to suit under Section 1983); Green v. Corzine, No. 09*7 (D.N.J. Mar. 22, 2010) (concluding that
1600 (AET), 2010 WL 1133445, at
“UMDNJ is an instrumentality of the state” protected by the Eleventh
*5
Amendment); Overton v. Shrager, No. 09-6299 (MLC), 2011 WL 2937363
(D.N.J. July 19, 2011) (acknowledging conflicting authority).
Fuchilla held that UMDNJ’s relative autonomy and blend of public and
private funding, along with other factors, dictated the conclusion that UMDNJ
was not the alter ego of the state. The issue potentially remains open, however,
because Fuchilla predated the en banc Third Circuit’s definitive formulation of
the controlling three-part test of Fitchik, see p. 7, supra. Ftwhilla, in 1988,
discussed the functional autonomy as well as the financial independence of
UMDNJ. 537 A.2d 652 at 655. In doing so, it was applying pre-Fitchik law,
specifically, Urbano v. Bd. of Managers of N.J. State Prison, 415 F.2d 247, 25051 (3d Cir. 1969).7 Nevertheless, the New Jersey Supreme Court’s analysis in
Urbano contained more complex criteria for determining the alter ego issue. In
addition to autonomy and financial independence, the factors to be considered
included local law defining the status and nature of the agency, whether the agency
was performing a governmental or proprietary function, whether it was separately
10
Fuchilla is far from irrelevant; it provides
a detailed description of UMDNJ’s
status, and is instructive here. Indeed, the
Fuchilla analysis, supplemented by
consideration of the status of the entity under
state law, would seemingly cover
the three factors found dispositive by Fitchik,
873 F.2d at 659.
Nevertheless, Fuchilla is 26 years old. The law,
and perhaps even the
facts as to UMDNJ’s status, have evolved. Fuch
illa suggests, but does not firmly
establish, that dismissal of these claims
is appropriate. Based on the
pleadings, however, I cannot perform anew the
fact-intensive review that would
be necessary to determine whether UMDNJ
is an arm of the state. See Bowers
v. Nat’l Collegiate Athletic Ass’n, 475 F.3d 524,
546 (3d Cir. 2007). Subject to
reconsideration after appropriate discovery, then
, I will deny UMDNJ’s motion
to dismiss the Section 1983 and NJCRA claim
s in Counts 1-6.
One thing, however, is clear. UMDNJ is considere
d a state entity immune
from liability under the TCA. Lowe v. Zargham
i, 731 A.2d 14, 19 (N.J. 1999);
Tulli-Makowski v. Community Educ. Centers,
Inc., Civ. No. 12-06091 (WJM)
2013 WL 1987219 *4 (D.N.J. May 13, 2013)
(citing same and dismissing state
law claims against UMDNJ). I will therefore gran
t the motion to dismiss the
TCA claims (Counts 7-10) as against UMDNJ.
(ii.)
Individual Medical Defendants
The status of the individual medical providers
named in the SAC is also
murky under Section 1983. The SAC does
not specify whether it brings its
claims against the individual Medical Defendan
ts (Godinsky, Perera, Nendze,
Delgado, Boblick, Picerno-Jones, Maxey, Kay,
and Salem) in their official or
individual capacities. The SAC also does not
specify, for example, whether
these medical professionals were actually emp
loyees of the DOC or Northern
State Prison, or whether they were employe
es of UMDNJ who performed
services at the prison under contract. SAC
¶J 16, 18. If the providers were
state (or DOC) employees, any claims for damages
against them in their official
capacities would be barred under Section 1983
. Claims brought against them
in their personal capacities, however, would not
be barred. Hafer v. Melo, 502
U.S. 21, 30-32, 112 S. Ct. 358, 116 L.Ed.2d 301
(1991) (state officials sued in
their individual capacities are “persons” within
the meaning of Section 1983).
At any rate, the allegations in the SAC are suffi
cient to support a claim
that the medical providers responsible for Endi
acted outside the scope of their
incorporated, whether it could enter into contracts
and sue/be sued, and whether it
was immune from state taxation. 415 F.2d at 250-51.
11
employment and would therefore be personally liable for damages under
Section 1983. See SAC ¶ 22-23. Of course, I do not prejudge the merits. But
pending some development of the record in discovery, the Section 1983 and
NJCRA claims alleged in Counts 1-6 of the SAC cannot be dismissed on
sovereign immunity grounds against the individual Medical Defendants
For purposes of the TCA, as noted above, there is no immunity shield for
an employee who acted outside the scope of his employment, or where the
actionable conduct constituted a crime, actual fraud, actual malice, or willful
misconduct. N.J.S.A. 59:3-14. The SAC’s claims under the TCA include a claim
based on negligence or medical malpractice (Count 7). It also, however, alleges
intentional conduct (Count 8 for lIED and Count 9 for wrongful death). Count
7, as I have said, could encompass willful conduct. Counts 8 and 9 allege
intentional conduct, or conduct outside the scope of employment. The motion
to dismiss Counts 7108 as against the individual Medical Defendants is
therefore denied.
In sum, the motion to dismiss the SAC on grounds of immunity from suit
is denied for the most part as to the Medical Defendants. It is granted only as
to Counts 7-10 with respect to UMDNJ.
B. Failure to State a Claim
Defendants move to dismiss the complaint for failure to state a claim
upon which relief can be granted. Motions to dismiss a complaint on this
ground are considered under Fed. R. Civ. P. 12(b)(6). The defendant, as the
moving party, bears the burden of showing that no claim has been stated.
Hedges v. United States, 404 F.3d 744, 750 (3d Cir. 2005). In deciding a Rule
12(b)(6) motion, a court must take the allegations of the complaint as true and
draw reasonable inferences in the light most favorable to the plaintiff. Phillips v.
County of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008) (established “reasonable
inferences” principle not undermined by subsequent Twombly case).
Pursuant to Fed. R. Civ. P. 8(a), a complaint must contain a “short and
plain statement of the claim showing that the pleader is entitled to relief.” That
rule does not require that a complaint contain detailed factual allegations.
Nevertheless, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement
As noted above, Count 10 does not really plead a separate cause of action, but
purports to establish a basis for Plaintiff Susan Endl’s standing as administrator ad
prosequendum, pursuant to N.J.S.A. 2A: 15-3, to assert the state law tort claims. In
ruling either way on Count 10, I do not mean to imply that such standing is lacking.
On the contrary, I have found such standing to be appropriate. See p. 6, supra.
8
12
to relief’ requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). Thus, the complaint’s factual allegations must be
sufficient to raise a plaintiff’s right to relief above a speculative level, stating a
claim that is “plausible on its face.” Id. at 570; see also Umland v. PLANCO Fin.
Seru., Inc., 542 F.3d 59, 64 (3d Cir. 2008). That facial-plausibility standard is
met “when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).
While “[t]he plausibility standard is not akin to a ‘probability requirement’.
it asks for more than a sheer possibility.” Iqbal, 556 U.S. at 678.
The SAC alleges (1) constitutional claims under Section 1983 and the
NJCRA, and (2) tort claims under New Jersey law. All counts are brought
against all Defendants. These two categories are considered separately.
1. Violations of 42 U.S.C.
§ 1983 and NJCRA (Counts 1
-
6)
The SAC alleges violations of Section 1983 and the NJCRA for (1)
deliberate indifference to serious medical needs under the Fifth and Fourteenth
Amendment (Count 1); cruel and unusual punishment under the Eighth
Amendment and New Jersey Constitution (Counts 2 and 6); deprivation of “life,
liberty, and the pursuit of happiness” under the Fifth and Fourteenth
Amendment and New Jersey Constitution (Counts 3 and 5); and a “Monell
Claim” based on the DOC’s policies and customs (Count 4). SAC ¶J 28-42. As
established above, sovereign immunity and the Eleventh Amendment require
dismissal of Counts 1-6 on jurisdictional grounds as to the State actors. The
analysis in this Section is therefore confined to the Medical Defendants.
a. Counts 1, 2 and 6
I first discuss Count 1 (deliberate indifference to serious medical needs
under the Fifth and Fourteenth Amendments) and Counts 2 and 6 (cruel and
unusual punishment under the Eighth Amendment and New Jersey
Constitution Article I, § 12).
Counts 1 and 2 are asserted pursuant to Section 1983. To state a claim
under Section 1983, a plaintiff must allege facts sufficient to show (1) a
deprivation of a federal constitutional right or a federal statutory right, and (2)
that the conduct at issue occurred “under color of law.” Parratt v. Taylor, 451
U.S. 527 (1981); Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000).
13
To determine whether the SAC alleges a deprivation of a federal
constitutional right, the Court must first “identify the exact contours of the
underlying right said to have been violated” and second, determine “whether
the plaintiff has alleged a deprivation of a constitutional right at all.” Nicini, 212
F. 3d at 806 (citing Cnty. of Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998)).
Plaintiff’s
due
process/deliberate
indifference
claim
Eighth
and
Amendment/cruel and unusual punishment claim are both premised on the
failure to afford adequate medical treatment. See SAC ¶J 29, 34. Failure to
provide adequate medical care to inmates is cognizable as unconstitutional
cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97, 103-05 (1976).
Because Endi was incarcerated at the time of this alleged violation, the claim is
most naturally analyzed under the Eighth Amendment.
9
To establish such a claim, the plaintiff must show (1) deliberate
indifference on the part of the prison officials and (2) that the prisoner’s
medical needs are serious. Monmouth Cnty. Corr. Institutional Inmates u.
Lanzaro, 834 F. 326, 346 (3d Cir. 1987). A plaintiff can show deliberate
indifference where knowledge of the need for medical care is accompanied by
the intentional refusal to provide that care. Id. at 346 (citing Ancata v. Prison
Health Servs., 769 F.2d 700, 704 (11th Cir. 1985)). This prong can also be met
when prison authorities prevent an inmate from receiving recommended
treatment for serious medical needs or deny access to a physician capable of
evaluating the need for such treatment. Id. at 347 (citing Inmates of Allegheny
Cnty. Jail, 612 F.2d 754, 762 (3d. Cir. 1979)). The seriousness of the medical
need can be measured by the effect of denying the particular treatment—
“unnecessary and wanton infliction of pain,” a life-long handicap, or permanent
loss. Id. at 347 (citing Estelle, 429 U.S. at 103).
The SAC alleges that each of the individual Medical Defendants was
“situate{dl at Northern State Prison” and was responsible for the care and
treatment of the inmates at the prison, including Endi. SAC ¶j 15, 17. With
the exception of naming Bernice Picerno-Jones, R.N., as the individual who
first documented Endi’s complaint of chest pain, the SAC does not specify
which of the named Defendants were responsible for what treatment during the
This right is cognizable under the Eighth Amendment for inmates. It is
cognizable as a due process claim under the Fourteenth Amendment for pre-trial
detainees. Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 581 (3d Cir. 2003)
(applying similar standard). Thus the due process theory is probably redundant in this
case, but I will not dismiss it on that basis at this time.
14
relevant time period.’ Id. ¶ 23. Similarly, no specific knowledge or action is
0
attributed to particular medical providers (again, other than Picerno-Jones).
The SAC does allege generally, however, that Endl was misdiagnosed by his
medical providers, that they failed to treat various ailments and symptoms, and
that they failed to properly medicate him. Id. ¶ 23. Further, the SAC clearly
alleges that the failure to render adequate medical care was connected to
Endi’s suffering and death. See id. ¶ 22-26.
As to acting “under color of law,” the SAC alleges that the individual
Medical Defendants were “authorized agents and/or representatives and/or
employees” of UMDNJ and/or the DOC and/or Northern State prison. Id. ¶
16, 18. There is a certain lack of clarity here, as the SAC fails to state whether
any individual was technically employed by DOC or by the hospital. Those facts
are, of course, within Defendants’ control and may easily be established in the
discovery process. In any event, the SAC does allege that all of the individually
named medical providers physically worked on the premises of Northern State
Prison. It alleges that UMDNJ contracted with New Jersey to provide “medical
care and attention, and health and hospital services” to inmates at Northern
State Prison. SAC ¶ 7. It alleges that these medical providers were “charged
with the responsibility of providing medical care and attention to inmates at
Northern State Prison,” including Eli Endl. SAC ¶J 15-18. It alleges that Eli
Endi required medical care from March 22, 2010 to March 25, 2010, was
denied or deprived of the proper and necessary care and attention by those
responsible for providing it, and as a result sustained significant pain and
suffering and died. Id. ¶{ 22-26. Under the circumstances, that is enough.
The SAC adequately alleges that, during the relevant period, the Medical
Defendants caused a deprivation of constitutional rights while acting under
color of state law. I will not, by dismissing claims, deny Plaintiff the opportunity
to identify, through discovery, the role (if any) played by each individual
Medical Defendant or to identify others involved in Eli Endi’s medical care. Of
course, should further information affect the alleged status of any of the named
Medical Defendants, additional motion practice, including a motion for leave to
amend the complaint, may be appropriate.
The named Defendants include Godinsky, Perera, Nendze, Delgado, Boblick,
Picerno-Jones, Maxey, Kay, and Salem. SAC ¶J 15, 17.
10
15
I will therefore deny the motion to dismiss the Section 1983 claims
asserted in Counts 1 and 2 as against the Medical Defendants. As discussed
’
1
above, the NJCRA hews closely to Section 1983; I will construe it in parallel
fashion and deny the motion to dismiss Count 6 as well.
b. Counts 3, 5, and 4
Counts 3 and 5 state claims under the U.S. and State Constitutions for
deprivation of “life, liberty and the pursuit of happiness.”
As to Count 3, I observe that Section 1983 does not grant a cause of
action for violations of the Declaration of Independence. True, aspects of life,
liberty and the pursuit of happiness may be protected by the U.S. Constitution
(e.g., the Due Process clauses of the Fifth and Fourteenth Amendments or the
Eighth Amendment). But there is no need to strain logic. Any such claim is
already adequately covered by Counts 1, 2 and 6. I will dismiss Count 3 as
superfluous.
Count 5 asserts a claim for deprivation of “life, liberty and the pursuit of
happiness” under the New Jersey State Constitution. That at least has some
textual basis:
1.
All persons are by nature free and independent, and have
certain natural and unalienable rights, among which are those of
enjoying and defending life and liberty, of acquiring, possessing,
and protecting property, and of pursuing and obtaining safety and
happiness.
N.J. Const. (1947) art. I, § 1. Like Count 3, Count 5 may turn out to be
superfluous in light of other claims, but I will not dismiss it at the threshold.
Count 4 (Monell liability against Doe), as established above, must be
dismissed on jurisdictional grounds under Rule 12(b)(1). (See p.8 & n.6, supra.)
A prerequisite for Monell liability is that the defendant be a “person” for
purposes of Section 1983, which DOC is not. To the extent this may be
regarded as a failure to state a claim, dismissal would be appropriate under
Rule 12(b)(6) as well.
In order for UMDNJ to be held liable, respondeat superior will not suffice.
Plaintiff will have to show that there was a relevant UMDNJ policy or custom, and that
the policy caused the constitutional violation alleged. Natale, 318 F.3d at 585 (citing
Bd. of County Comm’rs of Bryan County, Oklahoma v. Brown, 520 U.S. 397, 404, 117
S.Ct. 1382, 137 L.Ed.2d 626 (1997)).
11
16
The motion to dismiss as it pertains to the Medical Defendants, then,
then, is granted as to Counts 3 and 4, and denied as to Counts 1, 2, 5, and 6.
2. Malpractice & Negligence Claims
The remaining claims in the SAC consist of state law claims for medical
malpractice (Count 7), IIFD (Count 8), and wrongful death (Count 9). The SAC
also pleads a separate count pursuant to the survivorship statute, N.J.S.A.
2A: 15-3 (Count 10). As noted above, the survivorship statute does not create a
separate cause of action, and there is no independent challenge to the
appointment or standing of Susan Endl as administrator ad prosequendum
under the statute. For present purposes, then, Count 10 stands or falls with
the underlying causes of action. As discussed above, the State, DOC, and
UMDNJ are immune from suit under the TCA. N.J.S.A. 59:2-1; N.J.S.A. 59:210; Greenway Dev. Co., Inc. v. Borough of Paramus, 750 A.2d 764, 767, 163
N.J. 546 (2000). The following discussion, then, is confined to Counts 7-9 as
they apply to the individual Defendants.
a. Individual Corrections Defendants
As a general matter, the individual Corrections Defendants could be
subject to suit under Counts 7, 8, and 9. The facts alleged in the SAC,
however, do not in any way implicate Defendants Lanigan, Hayman, or Lagana
in Endl’s medical treatment prior to his death. Nor does the SAC attribute any
knowledge to them regarding those events. As to these three officers, then, the
SAC does not allege facts sufficient to state a medical malpractice, wrongful
death, or lIED claim under the TCA. Counts 7, 8 and 9 are therefore dismissed
as against Defendants Lanigan, Hayman, and Lagana for failure to state a
claim, pursuant to Rule 12(b)(6). Count 10, for the reasons stated in the
preceding paragraph, is also dismissed as to these Defendants.
b. Individual Medical Defendants
As to the Individual Medical Defendants, the SAC contains sufficient
allegations to sustain the medical malpractice, TIED and wrongful death claims
asserted in Counts 7, 8 and 9. As discussed above, the status and role (if any)
of each individual Medical Defendant is not entirely clear, and it is not easy at
present to discern whether the alleged conduct would best be characterized as
negligent, reckless, or willful; development of the facts in discovery may
therefore shed further light on the applicability of statutory immunity. At the
motion to dismiss stage, however, the allegations linking the actions and
inactions of these individual Medical Defendants with Endi’s death make out
17
claims under the TCA. See SAC ¶J 22-23, 59-60. As discussed in more detail
above, the individual medical providers were allegedly responsible for Endi’s
treatment and they allegedly failed to provide adequate medical care, resulting
in Endi’s severe emotional distress, pain, and suffering. SAC
¶J 25, 57.
The Medical Defendants also assert that dismissal of the medical
malpractice claims is appropriate under Rule 12(b)(6) because Plaintiffs have
failed to comply with New Jersey’s Affidavit of Merit Statute. (Docket No. 48 at
4). New Jersey law requires that a plaintiff provide the defendant such an
affidavit in actions of professional or medical malpractice or negligence.
N.J.S.A. 2A:53A. The law provides in relevant part:
In any action for damages for personal injuries, wrongful death or
property damage resulting from an alleged act of malpractice or
negligence by a licensed person in his profession or occupation,
the plaintiff shall, within 60 days following the date offiling of the
answer to the complaint by the defendant, provide each defendant
with an affidavit of an appropriate licensed person that there exists
a reasonable probability that the care, skill or knowledge exercised
or exhibited in the treatment, practice or work that is the subject
of the complaint, fell outside acceptable professional or
occupational standards or treatment practices. The court may
grant no more than one additional period, not to exceed 60 days, to
file the affidavit pursuant to this section, upon a finding of good
cause.
In the case of an action for medical malpractice, the person
executing the affidavit shall meet the requirements of a person who
provides expert testimony or executes an affidavit as set forth in
section 7 of P.L.2004, c.17 (C.2A:53A-41). In all other cases, the
person executing the affidavit shall be licensed in this or any other
state; have particular expertise in the general area or specialty
involved in the action, as evidenced by board certification or by
devotion of the person’s practice substantially to the general area
or specialty involved in the action for a period of at least five years.
The person shall have no financial interest in the outcome of the
case under review, but this prohibition shall not exclude the
person from being an expert witness in the case.
18
N.J.S.A. 2A:53A-27 (emphasis added). Under state practice, non
compliance with the statute is deemed a failure to state a cause of action.
Id. atA-29.
The Affidavit of Merit statute was passed as part of a tort reform
package designed to balance the competing policies of weeding out
frivolous lawsuits early and ensuring that meritorious claims are heard.
Ferreira v. Rancocas Orthopedic Assocs., 836 A.2d 779, 782-83 (N.J.
2003). The statute was not intended to “create a minefield of hyper
technicalities in order to doom innocent litigants possessing meritorious
claims.” Id. at 783 (quoting Mayfield v. Community Med. Assocs., P.A.,
762 A.2d 237, 244 (N.J. Sup. Ct. App. Div. 2000)). I construe it in that
spirit.
The Affidavit of Merit requirement does not dictate dismissal here. The
time limits and requirements of the statute are triggered only by a defendant’s
filing of an answer to the complaint. Id. at A-27. Defendants have not answered
the SAC, but have moved to dismiss it.
True, on August 14, 2012, the Medical Defendants filed an Answer to the
First Amended Complaint. See Docket No. 13. The case, however, did not go
forward based on the FAC; the screening function of the Affidavit of Merit was
not implicated with respect to the FAC. Less than a month after the Medical
Defendants answered the FAC, Plaintiffs moved again to amend the complaint.
(Docket No. 14). Magistrate Judge Falk granted that motion, and on November
26, 2012, the Plaintiffs filed the Second Amended Complaint. See Docket Nos.
19, 20.
The apparent objective of having the Affidavit of Merit deadline run from
the filing of an Answer is to ensure that motions to dismiss, if any, have been
decided, the causes of action are settled, and any necessary discovery
preliminary to the filing of the Affidavit can be noticed and taken. Defendants
filed an Answer to the FAC, but Plaintiffs then quickly filed the SAC. In
response to the SAC the Defendants did not answer, but filed comprehensive
motions to dismiss. To treat the deadline for an Affidavit of Merit as running
from the Answer to the FAC would be pointless. That is not the operative
pleading. As to the Second Amended Complaint, the procedural posture of this
19
case is that no Answer has been filed. As to the SAC, the time limit to file an
Affidavit of Merit has not begun to run.’
2
I will deny the motion to dismiss for failure to file an Affidavit of Merit.
In sum, the motion to dismiss Counts 7, 8, 9, and 10 is granted as to the
individual Corrections Defendants but denied as to the individual Medical
Defendants.
III.
CONCLUSION
Defendants have moved to dismiss the Second Amended Complaint on
grounds properly asserted under Rules 12(b)(1) and 12(b)(6), Fed. R. Civ. P. The
SAC is dismissed in its entirety as to the Corrections Defendants, and
dismissed in part as to the Medical Defendants.
Accordingly, for the reasons set forth in this Opinion the motions to
dismiss the SAC (Dockets No. 34, 35, and 48) are:
1. GRANTED as to Counts 3 and 4 against all Defendants;
2. GRANTED as to Counts 1, 2, 5, 6, 7, 8, 9, and 10 against the state
entity Corrections Defendants, New Jersey and the DOC;
3. GRANTED as to Counts 1, 2, 5, 6, 7, 8, 9, and 10 against the
individual Corrections Defendants, Lanigan, Hayman, and Lagana,
who were sued solely in their official capacities;
4. GRANTED as to Counts 7, 8, 9, and 10 against UMDNJ;
5. DENIED as to Counts 1, 2, 5, and 6 against UMDNJ; and
If Plaintiffs had permitted the FAC Affidavit of Merit deadline to run, and then
attempted to resuscitate it by filing a new complaint, they might be viewed as trying to
have it both ways. Here, though, Plaintiffs moved to amend the FAC within just 30
days of Defendants’ answer to the FAG. When the motion to amend was granted,
Plaintiffs filed the SAC within 104 days of Defendants’ answer to the FAG. Both dates
were well within the 120—day deadline for an Affidavit of Merit, assuming it was
triggered by the Answer to the FAG. In short, Plaintiffs did not wait to see if
Defendants challenged the lack of an Affidavit of Merit and then try to restart a
deadline that had already expired.
12
Indeed, it may be the Medical Defendants who are trying to have it both ways
here. Generally speaking, there are two procedural options: one must answer or move
in response to a complaint. The Medical Defendants filed an Answer to the First
Amended Complaint, but in response to the Second, they revived their option to move
to dismiss. For purposes of the Affidavit of Merit deadline only, the Medical
Defendants are relying on their Answer to the First Amended Complaint, even as they
urge the Court to decide their “pre-answer” motion to dismiss as to the Second.
20
6. DENIED as to Counts 1, 2, 5, 6, 7, 8, 9, and 10 against
the individual
Medical Defendants, Godinsky, Perera, Nendze, Delgado,
Boblick,
Picerno-Jones, Maxey, Kay, and Anasuya.
Anthony Endi and Susan Endl, in her individual capaci
ty only, are
dismissed as plaintiffs in this matter for lack of standing.
The action will go
forward with Susan Endi, administrator ad prosequendum, as
the plaintiff.
An Order will be entered in accordance with this Opinion.
KEVIN MCNULTY
United States District Judge
Dated: March 13, 2014
21
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