OLIVER v. MAIN et al
Filing
60
OPINION. Signed by Judge Dennis M. Cavanaugh on 9/24/13. (jd, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
LORENZO OLIVER
Plaintiff.
v.
:
:
:
Hon. Dennis M. Cavanaugh
OPINION
Civil ActionNo. 2:12-cv-03757 (I)MC) (JAD)
MERILL MAIN, Ph.D., JENNIFER
VELEZ, LYNN KOVICH, GARY M,
LANIGAN, HERBERT SMYCZEK.
M.D., KATHLEEN SZOKE, R.N.,
FUNKE KANJI-OJELADE, R.N., NEW
JERSEY DEPARTMENT OF HUMAN
SERVICES. NEW JERSEY
DEPARTMENT OF MENTAL
SERVICES, NEW JERSEY
DEPARTMENT OF CORRECTIONS,
UNIVERSITY OF MEDICINE AND
DENTISTRY OF NEW JERSEY, and
John/Jane Does 1-40, individually and in
their official capacities
Defendants.
DENNIS M. CAVANAUGH. U.S.D,J,
This matter comes before the Court upon the motion of Defendants Menu Main, Ph.D..
Jennifer Velez. Lynn Kovich, Gary M. Lanigan. Herbert Smvczek. M.D., Kathleen Szoke. R.N..
Funke Kanji-Ojelade. R.N., New Jersey Department of Human Services (“DES”). Nc\\ Jersc
Division of Mental Services (“DMS”), New Jersey Department of Corrections (“I)OC”),
University of Medicine and Dentistry of New Jersey (“UMDNJ”), and John/Jane Does 1-40,
individually and in their official capacities (collectively “Defendants”) to dismiss the Complaint
of Plaintiff Lorenzo Oliver (“Plaintiff’) pursuant to FED. R. Civ. P. 12(b)(6). Pursuant to FED. R.
Civ, P. 78, no oral argument was heard. Based on the following and for the reasons expressed
herein. Defendant’s Motion is granted in part and denied in part.
I.
BACKGROUND’
Plaintiff currently resides in Rahwa
.
New Jersey in a Special Treatment Unit. an
involuntary and indefinite civil commitment treatment program designed for “sexually violent
predators” who have been released from state prison. Plaintiff alleges that on or about May 13.
2011 through May 1 5 or 1 6, 201 1, he suffered strokes and serious illness. Plaintiff claims that he
sought medical treatment and care from Defendants and was not provided with adequate care or
treatment for over three days. During that time, PlaintifT alleges that he continued to sulYcr
additional strokes with great pain, discomfort, and fear, and was at times unable to move, speak.
stand, sit, see, or breathe. He claims that he
left to lie helpless in his own vomit, and at other
times, was left pleading for help. According to Plaintiff, medical/paramedical personnel named
Herbert Smyczek, M.D., Kathleen Szoke, R.N., and Funke Kanji-Ojelade, R.N., as well as other
medical/paramedical personnel and physicians whose identities are presently unknown to
Plaintiff were responsible for his care at all pertinent times. Plaintiff also claims that Merrill
Main. Ph.D.. clinical director of the Special Treatment Unit. Jennifer Velez, commissioner of the
DHS, Lynn Kovich, director of the DMS, and Gary M. Lanigan, commissioner of the DOC were
negligent in the hiring, training, and supervision of employees, and failed to promulgate
procedures and necessary guidelines to protect Plaintiff
Plaintiff claims that, as a result of the alleged misconduct, he suffered physical pain,
mental terror, partial paralysis, psychological terror, and limitations on ambulation, eating,
hearing, vision, speech, and thinking.
The facts from this section are taken from the parties’ pleadings.
2
Plaintiff filed his first Complaint on June 21. 2012 (ECF No. 1). PlaintiiYiiled an
Amended Complaint on October 9, 2012, alleging negligence, medical malpractice, and
violations of 42 U.S.C.
§
1983, and asking for punitive damages (“Compi.,” ECF No. I 7).
Defendants filed this Motion to Dismiss on January 7, 2013 (“Def.’s Mot.,” ECF No. 32),
Plaintiff filed a Brief in Opposition on February 5, 2013 (“P1’s Opp’n,” ECF No. 40).
Defendants tiled a Reply Brief on February 11, 2013 (“DeE’s Reply,” ECF No. 43).
IL
STANDARD OF REVIEW
In deciding a motion under FED. R. Civ. P. 12(b)(6). the District Court is “required to
accept as true all factual allegations in the complaint and draw all inferences in the facts alleged in
the light most favorable to the [plaintiffi.” Phillips v. Cntv. of Allegheny. 515 F.3d 224. 228 (3d
Cir. 2008). “[A] complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed
factual allegations.” Bell AtI. Corp. v. Twomblv. 550 U.S. 544. 555 (2007). However, the
plaintiffs “obligation to provide the ‘grounds’ of his entitle[mentj to relief requires more than
labels and conclusions and a formulaic recitation of the elements of a cause of action will not do.”
Id. On a motion to dismiss, courts are “not bound to accept as true a legal conclusion couched as
a factual allegation.” Papasan v. Aflain, 478 U.S. 265, 286 (1986). Plaintiffs complaint is subject
to the heightened pleading standard set forth in Ashcroft v. Iqbal:
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted
as true, to “state a claim to relief that is plausible on its face.” 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
Determining whether
a complaint states a plausible claim for relief will
be a context-specific task that requires
the reviewing court to draw on its judicial experience and common sense. But where the
well pleaded facts do not permit the court to infer more than the mere possibility of
misconduct. the complaint has alleged but it has not “show[n]” “that the pleader is
entitled to relief”
.
.
-
.
.
.
.
-
Ashcrofi v. lqbal, 556 U.S. 662, 678-679 (2009) (quoting Twomblv. 550 U.S. at 557. 750).
III.
DISCUSSION
A. Negligence Claims
Count I of the Complaint alleges that all Defendants were negligent in their care,
treatment, and diagnosis of Plaintiff or are legally liable to Plaintiff for the negligence of their
employees, agents and/or servants. Count II alleges that Defendants Main, Velez, Kovich,
Lanigan, Smyczek, DHS, DMS, DOC, and UMDNJ were negligent in the hiring, training, and
supervision of their employees, agents, and/or servants. Count H additionally alleges that these
Defendants were negligent in failing to promulgate procedures and guidelines necessary for the
protection of Plaintiff and permitted, encouraged, tolerated, and ratified a pattern and practice of
unreasonable and illegal behavior. Plaintiff has stipulated that these claims cannot be brought
against Defendants DHS, DMS, DOC, UMDNJ, Main, Velez, Kovich, and Lanigan due to the
2
Eleventh Amendment (Defs Opp’n., Ex. A, C). Thus, this claim will be analyzed with respect to
the remaining Defendants.
Defendants’ Motion to Dismiss initially included an argument that the negligence claims
should be dismissed because Plaintiff failed to file a notice of tort claim as required under the
New Jersey Tort Claims Act, N.JS.A
§
59:8-3. Defendants have since withdrawn this argument
(ECFN0, 34, Jan. 17, 2013).
Defendants additionally argue that Plaintiffs negligence claims fail to meet the threshold
requirement under the Tort Claims Act, which provides the following:
No damages shall be awarded against a public entity or public employee for pain
and suffering resulting from any injury; provided, however, that this limitation on
the recovery of damages for pain and suffering shall not apply in cases of permanent
loss of a bodily function, permanent disfigurement or dismemberment where the
The DMS was not expressly included in the parties’ agreement. However, because it is a state agency and because
no arguments were subsequently raised with respect to this agency, this Court will assume that the parties intended
to include it here and in all other relevant parts of its Opinion.
2
4
medical treatment expenses are in excess of $3,600.00.
N.J.S.A.
§
59:9-2(d).
Plaintiffs Complaint alleges that, as a result of Defendants’ conduct. he suffered, among
other things. “partial paralysis.” This is a sufficient injury under the Tort Claims Act. ge
(jilhooley v county of Union, 753 A 2d 1137 1142 (N J 2000) Plamtiffs Complaint howcvLr
does not allege that his incurred expenses are in excess of $3,600. In R.K. v. Y.A.L.E. Schools.
Inc.. 621 F. Supp. 2d 188. 201 (D.N.J. 2008). the plaintiffs claimed to have suffered severe
depression as a result of the defendants’ conduct, but did not demonstrate in their pleadings that
they incurred expenses in excess of $3,600. The court held that due to the nature of the plaintiffs
claims, it could not “conclude that [the plaintiffs] have not
.
.
.
incurred medical expenses in
excess of $3,600.00.” Id. Therefore, the court found that this issue was better suited for summary
judgment. See id. (“Of course, if upon a later motion for summary judgment, Plaintiffs fail to
adduce evidence of a permanent
injury
and medical expenses exceeding $3.600.00. Plaintiffs’
claim for pain and suffering damages will be dismissed
). Similarly, in the present case. due
to the severity of the injuries Plaintiff claims to have suffered, the Court cannot conclude at this
point that Plaintiffs injuries are not in excess of $3,600. Accordingly, Defendants’ motion to
dismiss this claim is denied.
B. Medical Malpractice Claim
Count III of the Complaint alleges medical malpractice against all Defendants.
Defendants do not specifically address this claim in their Motion to Dismiss. It can arguably be
construed that Defendants intended to include this claim in their argument as to why Plaintiff’s
negligence claims should be dismissed. However, even if this were true, as discussed
that
argument fails. Nonetheless. Plaintiffs medical malpractice claim is improper to the extent that
Plaintiff seeks to bring this cause of action against any Defendant other than those who allegedly
treated him medically and the hospital where the treatment took place. which includes
Defendants Smyczek, Szoke, Kanji-Ojelade, and UMDNJ. Therefore Defendants’ motion to
dismiss should be denied with respect to the claims against Smyczek, Szoke, Kanji-Ojelade, and
UMDNJ and granted with respect to all other Defendants.
C. Punitive Damages Claim
Count IV of the Complaint seeks punitive damages against all Defendants with respect to
the allegations in Counts I, II, and Ill, Defendants do not address this claim in their Opposition.
However, to the extent that Defendants’ motion to dismiss is granted for Count III with respect
to Defendants other than Smyczek, Szoke, Kanji-Ojelade, and LTMDNJ. Defendants Motion to
Dismiss must also be granted regarding the punitive damages claim against those Defendants.
D. Plaintiffs 42 U.S.C.
1982 Claims
1) Defendants DFIS, DM5 DOC, and UMDNJ
Counts V and VI of the Complaint allege that all Defendants violated Plaintitis
constitutional rights under 42 U.S.C.
§
1983. P laitiff stipulates that this action cannot be
maintained against Defendants DHS, DMS DOC, and UMDNJ due to the Eleventh Amendment
(Def’s Opp’n., Ex, A, C). Therefore, Defendants’ Motion to Dismiss is granted with respect to
the claims against these state agencies.
2) Defendants Main, Velelz, Kovich, and Lanigan
Plaintiff stipulates that this action cannot be maintained against Defendants Main. Velcz.
Kovich, and Lanigan under a theory of respondeat superior (Id.). However, Plainti IT alleges that
these Lefendants are liable under a theory of supervisory liability (Def’s Opp’n. at 6).
Personal involvement in a civil rights action “can be shown through allegations of
personal direction or of actual knowledge and acquiescence,” Rode v. Dellarciprete. 845 F.2d
6
1195, 1207 (3d Cir. 1988). However, these allegations “must be made with appropriate
particularly.” Id. Plaintiff alleges no facts in his Complaint that indicate that Main, Velez,
kovich. or Lanigan had any actual knowledge of wrongdoing or acquiesced an wrongdoing.
Plaintiffs conclusory allegations are insufficient to withstand a motion to dismiss. Se
ici
at
1208 (stating that the claim was properly dismissed because the plaintiff failed to show that the
defendant “had the necessary personal knowledge to sustain the civil rights action as to him”):
Simonton v. Tennis, 437 F’Appx 60, 63 (3rd Cir. 2011) (stating that the plaintiff “failed to show
that [the defendant] had the necessary personal involvement in the underlying unconstitutional
conduct”). Accordingly. Defendants’ Motion to Dismiss is granted with respect to these
Delndants.
3) 1)cfendants Smyzek, Szoke, and Kanji-Ojealade
It initially appears from the parties’ emails to one another that there was no agreement to
dismiss the
1983 claims against Defendants Smyzek, Szoke, and Kanji-Ojealade. Defendants’
counsel states the following in a letter to Plaintiffs Counsel:
Would you be willing to sign a stipulation of dismissal as to Defendants Main,
Velez, Kovich, Langian, DHS, DOC, and UMDNJ? This would prevent
unnecessary motion practice on behalf of these Defendants and would leave in
those you have identi1ed in the Amended Complaint as “malfactors”. Svmczek.
Szoke, Kanji-Ojelade.
(Pl.’s Opp’n, Ex. A).
Plaintiffs counsel subsequently wrote a letter to Defendants’ counsel slating the
following: “I agree that the referenced state agencies and employees cannot be sued in their
official capacity”
(, Ex.
C).
While this exchange does not appear to agree to a dismissal of the
§
1893 claims
against Defl.ndants Smyzek. Szoke. and Kanji-Ojealade. section 1 of Defendants’ Motion
to I)ismiss argues that the
§
1983 claims against “Defendants DOC. DHS, UMDNJ. and
7
DOC Commissioner Lanigan, DHS Director Main, DHS Commissioner Velez, DHS
Director Kovich, UMDNJ Dr. Syrnczek, UMDNJ Nurse Szoke, and UMDNJ Nurse Karji
Okelade, in their official capacities” should be dismissed (Def. ‘s Mot. At 7) (emphasis
added). Plaintiff states in his Opposition that section I of Defendants’ motion should be
stricken because “everything sought by defendants
.
.
.
has been conceded by plaintiffs”
(P1’s Opp’n at 4). Thus, it appears that Plaintiff has agreed to dismiss the
§
1983 claims
against all Defendants. Accordingly, Defendants’ Motion to Dismiss is granted with
respect to all Defendants.
I
CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss is granted in part and
denied in part. An appropriate order follows this Opinion.
Date:
Original:
cc:
September 2Ol3
Clerk’s Office
Hon. Joseph A. Dickson, U.S.M.J.
All Counsel of Record
File
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