MILLER v. UMDNJ et al

Filing 41

OPINION. Signed by Judge Claire C. Cecchi on 8/10/2015. (anr)

*NOT FOR PUBLICATION*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

SHAWN MILLER,
Civil Action No. 12-4045 (CCC)
Plaintiff,
v.

OPINION

UMDNJ, et al.,
Defendants.

CECCHL District Judge:

Pro se Plaintiff Shawn Miller (“Plaintiff’) is proceeding, in forma pauperis, with the
instant Complaint, alleging that Defendants University of Medicine & Dentistry of New Jersey
(“UMDNJ”), Nurse James (“James”), and Paul Lagana

—

the Administrator of Northern State

Prison (“Lagana”) (collectively referred to as “Defendants”) are liable to Plaintiff for violations of
his Eighth Amendment rights, pursuant to 42 U.S.C.

§ 1983. Presently before the Court are two

motions for summary judgment filed by Defendants, one by Defendants UMDNJ and James and
one by Defendant Lagana, asserting various defenses against Plaintiffs claims. Plaintiff did not
file an opposition to either motion. For reasons stated below, the Court denies summary judgment
on the claim against Lagana for failure to provide Plaintiff with the special diet as required by his
diabetic condition, grants summary judgment in favor of Lagana on Plaintiffs prison conditions
claim against him, and dismisses the balance of the claims.’

The Motion for Summary Judgment by Defendants UMDNJ and James is denied as moot
in light of the Court’s sua sponte dismissal of all claims against them. See infra.

I.

FACTUAL BACKGROUND

For the purposes of this Opinion, the Court construes all facts most favorable to the nonmoving party, and recites only relevant facts. Plaintiff is a diagnosed diabetic who requires
continuing medication, including periodic injections of insulin. (ECF No. 40-2, Ex. B, Deposition
of Shawn Miller, Jan. 28, 2014 (“Dep.”) at 12:2-14:9.) Plaintiff was also prescribed, by a doctor,
a special diabetic diet. Id. at 61:11-20. On April 22, 2012, James visited Plaintiff at his cell for
the purposes of giving him two injections of insulin. (Defs.’ Statement of Material Facts, ECF
No. 7 at ¶ 5.) James was able to administer the first injection, but after injecting about half of the
content of the second injection, James withdrew the syringe and attempted to place it in again. Id.
at

¶

6. Plaintiff refused to let James re-inject the syringe, because he believed that it was not

medically appropriate to do so, and James should have used a new needle. (Dep. at 24:8-23.) After
some back and forth, James, apparently out of frustration, sprayed the remaining content of the
second injection onto Plaintiffs face. Id. at 24:24-25-5. The evidence of this incident is consistent
with Plaintiffs allegations in the Complaint, that “Nurse James was supposed to deliver two shots
of insulin to plaintiff on the date in question, however he pulled the syringe out of plaintiffs arm
before delivering the dosage,” and that James assaulted him by “spray{ing] the contents of the
syringe in plaintiffs face and departed the unit without providing plaintiff with his insulin shot.”2
(ECF No. 1 at 7-8.)
Plaintiff also contends that he was not provided with the special diet prescribed by a doctor.
(ECF No. I at 6.) According to Plaintiffs deposition testimony, he submitted numerous remedy
forms to notify the prison of this problem, (Dep. at 30:15-21, 59:14-17, 63:20-64:6), including

2

The Court includes these allegations from the Complaint for purposes of its sua sponte
screening, infra.
2

several letters to Lagana. Id. at 30:15-21, 59:14-17, 63:20-64:6. Despite his complaints, Plaintiff
did not receive his special diet. Id. at 64:8-65:5.
In addition, Plaintiff claims in the Complaint that he suffered health complications with
permanent debilitating effects, including life-threatening blood sugar levels and multiple diabetic
seizures, due to having to consume non-diabetic food. (ECF No. I at 6.) Furthermore, Plaintiff
asserts that he was housed in units that had deplorable living conditions. Id. at 7. Plaintiff claims
that the showers did not have running water, and were dirty enough to cause inmates to have fungus
on their feet; there was no light in his cell; and the toilet in the cell leaked to such an extent that
the cell floor was covered with waste water. Id. Plaintiff asserts that he also made repeated
complaints about the living conditions. Id.
II.

STANDARDS OF REVIEW

A. Summary Judgment

Summary judgment is appropriate where the Court is satisfied that “there is no genuine
issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.
R. Civ. P. 56(c); Cetotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A factual dispute is genuine
only if there is “a sufficient evidentiary basis on which a reasonable jury could find for the nonmoving party,” and it is material only if it has the ability to “affect the outcome of the suit under
governing law.” Kaucher v. Cnty. ofBucks, 455 F.3d 418, 423 (3d Cir. 2006); see also Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over irrelevant or unnecessary facts
will not preclude a grant of summary judgment. Anderson, 477 U.S. at 248. “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 non-moving party’s evidence ‘is to be believed and
all justifiable inferences are to be drawn in his favor.” Marino v. Indus. Crating Co., 358 F.3d

3

241, 247 (3d Cir. 2004) (quoting Anderson, 447 U.S. at 255); see also Matsushita Etec. Indus. Co.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Curley v. Kiem, 298 F.3d 271, 276—77 (3d Cir.
2002).

The burden of establishing that no “genuine issue” exists is on the party moving for
summary judgment. Celotex, 477 U.S. at 330. “A nonmoving party has created a genuine issue
of material fact if it has provided sufficient evidence to allow a jury to find in its favor at trial.”
Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001), abrogated on other grounds,

Ray Hatuch Gravel Co. v. Central Pension Fund of Int’l Union of Operating Engineers and
Participating Employers, 134 S. Ct. 773 (2014). The non-moving party must present “more than
a scintilla of evidence showing that there is a genuine issue for trial.”

Woloszyn v. Cnty. of

Lawrence, 396 F.3d 314, 319 (3d Cir. 2005) (quotations omitted). Under Anderson, Plaintiffs’
proffered evidence must be sufficient to meet the substantive evidentiary standard the jury would
have to use at trial. 477 U.S. at 255. To do so, the non-moving party must “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.” Celotex,
477 U.S. at 324 (quotations omitted); see also Matsushita, 475 U.S. at 586. In deciding the merits
of a party’s motion for summary judgment, the court’s role is not to evaluate the evidence and
decide the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson,
477 U.S. at 249. Credibility determinations are the province of the factfinder. Big Apple BMW,
Inc.

V.

BMWofN. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).

There can be “no genuine issue as to any material fact,” however, if a party fails “to make
a showing sufficient to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322—23. “[A] complete

4

failure of proof concerning an essential element of the nonmoving party’s case necessarily renders
all other facts immaterial.” Id. at 323; Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir.
1992).
B. Sua Sponte Dismissal
Per the Prison Litigation Reform Act, Pub. L. No. 104—134,

§ 801—810, 110 Stat. 1 321—

66 to 132 1—77 (April 26, 1996) (“PLRA”), district courts must review complaints in those civil
actions in which a plaintiff is proceeding in forma pauperis, see 2$ U.S.C.

§ 1915(e)(2)(B), or a

prisoner seeks redress against a governmental employee or entity, see 28 U.S.C.

§ 1915A(b). The

PLRA directs district courts to sua sponte dismiss any claim that is frivolous, malicious, falls to
state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is
immune from such relief. Id. This action is subject to sua sponte screening for dismissal under
these statutes because Plaintiff is proceeding in forma pauperis, he is a prisoner, and he seeks
redress from a governmental entity.
“[A] pleading that offers ‘labels or conclusions’ or ‘a formulaic recitation of the elements
of a cause of action will not do.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombty, 550 U.S. 544, 555 (2007)). To survive sua sponte screening for failure
to state a claim, the complaint must allege “sufficient factual matter” to show that the claim is
facially plausible. 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.” Belmont v.
MB mv. Partners, Inc., 708 f.3d 470, 483 n.17 (3d Cir. 2012) (quoting Iqbal, 556 U.S. at 678).
Moreover, while pro se pleadings are liberally construed, “pro se litigants still must allege

5

sufficient facts in their complaints to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d
239, 245 (3d Cir. 2013) (citation omitted).
III.

DISCUSSION

A plaintiff can pursue a cause of action under 42 U.S.C.

§ 1923 for certain violations of his

constitutional rights. 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
.

.

.

Thus, to state a claim for relief under

§ 1983, a plaintiff must establish, first, the violation of a

right secured by the Constitution or laws of the United States and, second, that the alleged
deprivation was committed or caused by a person acting under color of state law. Am. Mfrs. Mut.
Ins. Co. v. Sullivan, 526 U.S. 40, 50-1 (1999); Morrow v. Balaski, 719 F.3d 160, 166-7 (3d Cir.
2013).

The Court construes the Complaint as raising these claims: (1) denial of medical services
by James, Lagana, and UMDNJ3 for failing to provide proper insulin shots to Plaintiff; (2)
excessive force by James, Lagana, and UMDNJ; (3) deplorable prison conditions against Lagana;
and (4) denial of medical services by Lagana and UMDNJ for failure to provide Plaintiff with a

The Court acknowledges that the question whether UMDNJ is an arm of the state entitled
to Eleventh Amendment immunity or a private corporation susceptible to suits under § 1983, is
unsettled. See Endl v. New Jersey, SF. Supp. 3d 689, 699 (D.N.J. 2014) (summarizing conflicting
authorities on whether UMDNJ is an alter ego of the state entitled to sovereign immunity).
However, as the Court is dismissing all claims against UMDNJ, infra, the Court need not reach a
conclusion on this issue, and assumes, for the purposes of this Opinion, that UMDNJ is a private
corporation performing state functions.
6

proper diabetic diet.4 The Court addresses each of the claims below; on some claims, the Court
exercises its power to dismiss sua sponte pursuant to 28 U.S.C.

§ 1915(e)(2), while other claims

are addressed through the summary judgment motions.5
A. Denial of Insulin

Plaintiff asserts that, when James did not fully administer the insulin shot, Plaintiff was
denied proper medical services in violation of the Eighth Amendment. James counters, in his
summary judgment motion, that Plaintiff has not exhausted administrative remedies; specifically,
Plaintiff did not appeal the administrative decisions issued in response to the Inmate Remedy
System forms that Plaintiff filed. Without addressing James’s defense, which appears tenuous,6
the Court instead dismisses all claims on this issue under

§ 1915.

The Eighth Amendment proscription against cruel and Unusual punishment also requires
that prison officials provide inmates with adequate medical care. See Estelle v. Gamble, 429 U.S.
97, 103—04 (1976); Rouse v. F/antler, 182 F.3d 192 (3d Cir. 1999). Under Estelle, in order to state
a valid claim for denial of medical care, an inmate must allege: (1) a serious medical need; and (2)

Defendants, in their briefs, raise an immunity defense under the Eleventh Amendment for
claims against them in their official capacity. Plaintiff does not state in the Complaint whether his
claims are against Defendants in their individual or official capacity. The Eleventh Amendment
bars suits for monetary damages by private parties against a state or state agencies, including
officials acting in their official capacity. Siluk v. Men’vin, 783 f.3d 421, 423 n.5 (3d Cir. 2015)
(citing Melo v. Hafer, 912 f.2d 628, 635 (3d Cir. 1990)). As such, the Court construes the
Complaint, which seeks monetary damages under § 1983 against Defendants, as raising individual
capacity claims only.

§ 1915(e)(2) provides that a district court may dismiss a claim “at any time” if the Court
finds dismissal is warranted as described above. 2$ U.S.C. § 1915(e)(2).
6

For example, in one of the Inmate Remedy System Forms submitted by Defendants with
their motions, the response to Plaintiffs complaint about James was “[y]our complaint is referred
to the nurse manager.” (ECF No. 39-3 at 12.) It is not clear to the Court that there was an
appealable issue for the purposes of exhaustion. See infra, pp. 13-14.
7

behavior on the part of prison officials that constitutes deliberate indifference to that need. See
Estelle, 429 U.S. at 106; Natale v. Camden Cnty. Corr. facility, 318 F.3d 575, 582 (3d Cir. 2003).
To satisfy the first prong of the Estelle inquiry, the inmate must allege that his medical
needs are serious. “Because society does not expect that prisoners will have unqualified access to
health care, deliberate indifference to medical needs amounts to an Eighth Amendment violation
only if those needs are ‘serious.” Hudson v. Mcliullian, 503 U.S. 1, 9 (1992). The Third Circuit
has defined a serious medical need as: (1) one that has been diagnosed by a physician as requiring
treatment; (2) one that is so obvious that a lay person would recognize the necessity for a doctor’s
attention; or (3) one for which the 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,
272—73 (3d Cir. 2003) (internal quotations and citations omitted); see also Monmouth Cnty. Corr.
Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987).
The second element of the Estelle test requires an inmate to allege that prison officials
acted with deliberate indifference to his serious medical need. See Natale, 318 F.3d at 582 (finding
deliberate indifference requires proof that the official knew of and disregarded an excessive risk
to inmate health or safety). “Deliberate indifference” is more than mere malpractice or negligence;
it is a state of mind equivalent to reckless disregard of a known risk of harm. See Farmer v.
Brennan, 511 U.S. 825, 837—38 (1994). The Third Circuit has found deliberate indifference where
a prison official: (1) knows of a prisoner’s need for medical treatment but intentionally refuses to
provide it; (2) delays necessary medical treatment for non-medical reasons; or (3) prevents a
prisoner from receiving needed or recommended treatment. See Rouse, 182 F.3d at 197.
Here, Plaintiff does not satisfy the second prong of the Estelle test. The Complaint states
that “Nurse James was supposed to deliver two shots of insulin to plaintiff on the date in question,

8

however he pulled the syringe out of plaintiffs arm before delivering the dosage.” (ECF No. 1 at
8.) However, there are no allegations that Plaintiff was denied proper insulin injections at any
other time before or after the alleged incident; indeed, Plaintiff acknowledges in the Complaint
that he has been receiving insulin shots from James “on a daily basis.” Id. at 7. Without more,

Plaintiff has failed to allege sufficient facts to establish that James intentionally refused to provide
Plaintiff with the needed medical service. “The occasional unavailability of medication does not
rise to the level of a constitutional violation.” Bundrick v. Hammond, 817 F. Supp. 470, 473 (D.
Del. 1993).
Furthermore, there are also no allegations that Plaintiff suffered any ill effects from this
one missed injection. “Actual injury is a prerequisite to any claim under

§ 1983.” Jackson v.

Taylor, No. 05-823, 2008 WL 4471439, at *4 (D. Del. Sept. 26, 2008); see 42 U.S.C.

§ 1997e(e)

(“No Federal civil action may be brought by a prisoner confined in a jail, prison, or other
correctional facility, for mental or emotional injury suffered while in custody without a prior
showing of physical injury”). As such, Plaintiff has failed to allege the elements of a valid denial
of medical services claim under the Eighth Amendment, and this claim against James is dismissed.
With regard to Plaintiffs claims against Lagana and UMDNJ for the denial of insulin,
those claims necessarily fail because the Court has not found an underlying constitutional
violation. Grazier ex ret. White v. City ofPhita., 328 f.3d 120, 124 (3d Cir. 2003) (holding that
when there are no underlying constitutional violations found, it precludes supervisory and policy
making liability, because such conclusion naturally follows from the principle that 1983 claims
§
require personal involvement); Muiholland v. Gov ‘t Cnty. ofBerks, Pa., 706 F.3d 227, 238 n. 15
(3d Cir. 2013) (“It is well-settled that, if there is no violation in the first place, there can be no
derivative municipal claim”); Arneault v. O’Toole, $64 F. Supp. 2d 361, 406 (W.D. Pa. 2012)

9

(“Because [plaintiffs have not] pled an actionable due process violation, however, there can be no
viable claim for policy-making liability as against [supervisors]”). Accordingly, the claims against
Lagana and UMDNJ on this issue are dismissed. Because the Court is dismissing sua sponte
Plaintiffs denial of medical care services claims, Defendants’ motions for summary judgment on
this claim are denied as moot.
B. Excessive Force
Next, Plaintiff asserts that James assaulted him after Plaintiff refused to let James finish
the insulin injections. Plaintiff alleges in the Complaint that “[w]hen plaintiff refused to allow
Nurse James to restick him with the used syringe Nurse James assaulted him.” (ECF No. 1 at 8.)
Plaintiff further alleges that James assaulted him by “spray[ing] the contents of the syringe in
plaintiffs face and departed the unit without providing plaintiff with his insulin shot.” Id. The
Court construes Plaintiffs claim as one of excessive force in violation of the Eighth Amendment,
and similarly dismisses all claims on this issue under

§ 1915, and denies summary judgment on

this claim as moot.
In reviewing excessive force claims under the Eighth Amendment, courts must determine
whether the “force was applied in a good-faith effort to maintain or restore discipline, or
maliciously and sadistically to cause harm.” Monroe v. Phelps, 520 F. App’x 67, 70 (3d Cir. 2013)
(quoting Hudson v. Mcliullian, 503 U.S. 1, 8 (1992)). Whether the force applied was excessive
requires the weighing of several factors, including: (1) the need for force, (2) the relationship
between that need and the amount of force used, (3) the extent of the injury, (4) the extent of the
threat to safety “as reasonably perceived by responsible officials,” and (5) “any efforts made to
temper the severity of a forceful response.” Id. (quoting Whitley v. Albers, 475 U.S. 312, 231
(1986)). A finding that excessive force was used, or vice versa, must depend on the extent of the

10

force and the surrounding circumstances, not upon the resulting injury. Id. (citing Smith v.
Mensinger, 293 f.3d 641, 648 (3d Cir. 2002)).
Here, the Court finds that Plaintiff fails to allege that excessive force was used. Although
the Court recognizes the arbitrary nature of James’s alleged actions, the spraying of insulin onto
Plaintiffs face, which resulted in no evidence or allegations of physical injury, amounts to de
minimis force not to the level of a constitutional violation. See Hudson, 503 U.S. at 10 (“That is
not to say that every malevolent touch by a prison guard gives rise to a federal cause of action”);
Taylor v. Sanders, 536 F. App’x 200, 202 (3d Cir. 2013) (finding that alleged pushing and
punching by penitentiary employee was de minimis and not “repugnant to the conscience,” so did
not support an Eighth Amendment violation); Reyes v. Chinnici, 54 F. App’x 44, 48 (3d Cir. 2002)
(“There exists some point at which the degree of force used is so minor that a court can safely
assume that no reasonable person could conclude that a corrections officer acted maliciously and
sadistically”); Alt v. Kasprenski, 732 F. Supp. 2d 439, 447 (D. Del. 2010) (finding that sho.ving by
corrections officer was de minimis force, because “[t]he Eighth Amendment does not protect an
inmate against an objectively de minimis use of force, provided that the use of force is not
repugnant to the conscience of mankind”) (citation and quotation omitted); Johnson v. Glick, 481
F.2d 1028, 1033 (2d Cir. 1973) (“Not every push or shove, even if it may later seem unnecessary
in the peace of ajudge’s chambers, violates a prisoner’s constitutional rights”). Therefore, Plaintiff
has failed to state a claim for which relief can be granted, and Plaintiffs claim on this issue against
James is dismissed.
To the extent that Plaintiff asserts Lagana and UMDNJ are liable for failure to supervise
James, as stated above, there is no supervisory liability if there is no finding of a constitutional
violation in the first instance. Consequently, the claims against Lagana and UMDNJ on this issue

11

are also dismissed. Because the Court is dismissing sua sponte Plaintiffs excessive force claims,
Defendants’ motions for summary judgment on this claim are denied as moot.7
C. Prison Conditions
Next, Plaintiff asserts a claim against Lagana for the allegedly deplorable conditions of his
confinement. federal law requires that “[n]o action shall be brought with respect to prison
conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any
jail, prison, or other correctional facility until such administrative remedies as are available are
exhausted.” 42 U.S.C.

§ 1997e(a). Here, Lagana contends in his summary judgment motion that

Plaintiff has failed to exhaust his administrative remedies on this claim. The Court agrees, and
will grant summary judgment on this claim.
Undisputed evidence submitted by Defendants shows that Plaintiff did file an Inmate
Remedy System form regarding the lack of hot water in the shower, one of the conditions
complained of by Plaintiff. (ECF No. 39-3 at 13.) The reviewing officer responded by stating that
“[t]here was an issue with the hot water which was resolved and currently there is hot water in the
shower,” and that “cleaning of the showers are conducted.

.

.

on a weekly basis.” Id. Defendants

further submit by affidavit, which Plaintiff does not contest, that “Plaintiff did not administratively
appeal the Inmate Remedy System Form responses returned to him.” Id. at 3. The record shows

Plaintiff also asserts in the Complaint that James made sexual advances toward Plaintiff,
and when Plaintiff refused, James threatened, among other things, to stop providing Plaintiff with
medical services. (ECF No. 1 at 7.) However, there are no allegations in the Complaint that any
threats were actually carried out by James. Indeed, as stated above, Plaintiff asserts that he has
been receiving his daily insulin shots from James. Subjective fear is not enough to state a
constitutional claim under § 1983. See Runyon v. Danberg, No. 12002, 2012 WL 1657131, at *8
(D. Del. May 9, 2012) (finding that the plaintiffs subjective fear was insufficient to state an eighth
amendment claim); see also Turner v. Bunn, 107 F.3d 17, 18 (9th Cir. 1997) (holding that a general
fear of harm does not create a genuine issue of triable fact as to the risk of serious harm); Davis v.
Scott, 94 F.3d 444, 446—7 (8th Cir. 1996) (same).
12

that Defendants properly responded to Plaintiffs complaint, there is no evidence that Plaintiff
appealed the response, and there is also no evidence that Plaintiff filed subsequent complaints
about his conditions of confinement. Accordingly, the Court finds that Plaintiff has failed to
exhaust administrative remedies on this claim, and summary judgment is granted on this claim.
See Small v. Camden Cnty., 728 F.3d 265, 272 (3d. Cir. 2013) (“[Tb

properly exhaust

administrative remedies prisoners must complete the administrative review process in accordance
with the applicable procedural rules, rules that are defined not by the PLRA, but by the prison
grievance process itself’) (quoting Jones v. Bock, 549 U.S. 199, 218 (2007)).
D. Diabetic Diet
Lastly, with respect to Plaintiffs claims against Lagana and UMDNJ for the denial of a
proper diet to Plaintiff for his diabetic condition, the Court addresses this claim in the context of
Lagana’s motion for summary judgment. Before the Court addresses the merits of the claim, the
Court first addresses Lagana’ s affirmative defense that Plaintiff failed to exhaust administrative
remedies on this claim, a defense which the Court rejects.
Undisputed evidence shows that Plaintiff did indeed file an Inmate Remedy System Form
regarding his special diet needs. (ECF No. 39-3 at 10.) The response from the reviewing official
was that “[y]our diet order has been faxed to the Food Services Department.” Id. Lagana asserts
that because Plaintiff did not appeal the decision, he has failed to exhaust administrative remedies.
But as the official response makes clear, there is no appealable issue. The response shows that the
reviewing official agreed with Plaintiff and affirmatively held that Plaintiff should receive a special
diet for his conditions. According to Small, Plaintiff is not required to appeal a decision to satisfy
the administrative exhaustion requirement when there is no appealable issue. See Small, 728 f.3d
at 273 (finding that no appeal was necessary to exhaust administrative remedies when no decision

13

has been made on plaintiffs grievances, because “CCCF’s procedures discuss only the appeal of
a decision with which the inmate is not satisfied”). If the plaintiff in Small was not required to
appeal when no decision has been made, surely there cannot be a requirement to appeal when, as
it is here, a plaintiff received a favorable decision. As such, the Court rejects Defendants’
affirmative defense on exhaustion grounds.
The Court also finds that UMDNJ cannot be liable because there is no respondeat superior
liability in

§ 1983 claims. The prohibition against respondeat superior liability under Monell v.

Dep ‘t ofSoc. Servs., 436 U.S. 658 (1978), applies equally to private corporations performing state
functions. See Weigher v. Prison Health Sen’s., 402 F. App’x 668, 670 (3d Cir. 2010) (holding
that a private corporation providing medical services at a state correctional facility cannot be held
liable under a theory of respondeat superior in a

§ 1983 suit); Lassoffv. Ni, 414 F. Supp. 2d 483,

494 (D.N.J. 2006) (finding that other courts considering the issue have extrapolated the holdings
of Monell to apply to private companies performing state functions). As such, Plaintiff has failed
to state a claim for which relief can be granted, and Plaintiffs claim on this issue against UMDNJ
is dismissed.
However, with regard to Lagana’ s argument against respondeat superior liability, Lagana
misconstrues Plaintiffs claim

—

Plaintiffs claim against Lagana on this issue is not based on a

theory of respondeat superior, but on the notion that Lagana was personally and deliberately
indifferent to Plaintiffs medical needs. Courts have held that when a supervisor has personal
knowledge of an unconstitutional violation, but did not act to cure that violation, the supervisor is
deemed to have personal involvement in the violation, and

§ 1983 claims against him are proper.

See A.M. ex rel. iliK. v. Luzerne Cnty. Juvenile Detention Center, 372 F.3d 572, 586 (3d Cir.
2004) (“[A] supervisor may be personally liable under

14

§ 1983 if he or she

.

.

.

as the person in

charge, had knowledge and acquiesced in the subordinate’s violations”); Evancho v. Fisher, 423
F.3d 347, 353 (3d Cir. 2005) (“Personal involvement can be shown through allegations of personal
direction or of actual knowledge and acquiescence”); Wenzke v. Corr. lied. Servs., 603 F. Supp.
2d 770, 776 (D. Del. 2009) (“A prison official is deliberately indifferent if he knows that a prisoner
faces a substantial risk of serious harm and fails to take reasonable steps to avoid the harm”) (citing
farmer, 511 U.S. at 837); Cardona v. Warden —MDCFacility, No. 12-7161, 2013 WL 6446999,
at *5 (D.N.J. Dec. 6, 2013) (holding that plaintiff has stated a valid denial of medical services
claim against the prison warden because plaintiff alleged an ongoing constitutional violation, and
alleged that the warden was made aware of the ongoing violation through repeated written
requests); Binsack v. Lackawanna Cnty. Prison, No. 10—535, 2010 WL 4973309, at *3 (M.D. Pa.
Oct.14, 2010) (“A prisoner’s grievance or complaint regarding ongoing abuse may be sufficient to
put a prison official on notice of such abuse by other prison staff and therefore may show actual
knowledge of an alleged constitutional violation and acquiescence in the events forming the basis
of a prisoner’s claims”) (citing Atkinson, 316 F.3d at 270—71), report and recommendation adopted
by, 2010 WL 4956329 (M.D. Pa. Dec. 1, 2010); Carter v. Smith, No. 08-279, 2009 WL 3088428,
at *6 (E.D. Pa. Sept. 23, 2009) (“Where a grievance alleges an ongoing constitutional violation, a
supervisory defendant who reviews it is personally involved in that violation because he is
confronted with a situation he can remedy directly”) (quoting Harnett v. Barr, 538 F. Supp. 2d
511, 524—25 (N.D.N.Y. 2008)); cf Alexander v. Gennarini, 144 F. App’x 924, 925 (3d Cir. 2005)
(holding that supervisor defendants are not liable because “allegations [that]

.

.

.

merely assert their

involvement in the post-incident grievance process” are insufficient to establish liability).
Here, Plaintiff has established the elements of a denial of medical services claim against
Lagana. With regard to the first prong of the Estelle test, undisputed evidence shows that a doctor

15

prescribed a special diet to Plaintiff for his diabetic conditions, (Dep. at 61:11-20), and Defendants
have not argued that this is not a serious medical need; indeed, the favorable response by prison
officials to Plaintiffs complaint, to fax Plaintiffs diet order to the Food Services Department,
suggests the recognition of a serious medical need. Hence, the Court finds that Plaintiff has
established the first element of the Estette test.
With regard to the second prong of the Estelle test, Lagana asserts that he cannot be
deliberately indifferent because Plaintiff was under the continuous care of medical personnel, and
he is not charged with the responsibility of providing medical care to imnates. (ECF No. 39-1 at
23.) Lagana relies on Durmer v. 0 ‘Caroti, 991 F.2d 64 (3d Cir. 1993), and Spruill v. Gulls, 372
F.3d 218 (3d Cir. 2004), for his assertion. However, in those cases, the Third Circuit rejected
supervisory liability despite personal knowledge on the proposition that supervisors can presume,
if a prisoner is under the care of a medical professional, the prisoner is in capable hands. Durmer,
991 F.2d at 69; Spruill, 372 F.3d at 236. This rationale makes sense because supervisors often
lack the expertise to determine what is or is not proper medical treatment. In contrast, here, no
argument can be made that Lagana lacked the expertise to direct the Food Services Department to
provide Plaintiff with the proper diet, nor can the Food Services Department be considered a
medical professional.
Instead, as stated above, deliberate indifference can be shown by demonstrating actual
knowledge and acquiescence on the part of Lagana, and the available record supports Plaintiffs
claim. Plaintiff testified that the alleged constitutional violation was on-going. (Dep. at 64:865:5.) Plaintiff also testified that he filed dozens of remedy forms, Id. at 29:23-31:15, including
many related to his need for a special diet. Jd. at 30:15-21, 59:14-17, 63:20-64:6. Plaintiff further
testified that he wrote directly to Lagana on several occasions. Id. at 40:16-21, 46:9-17, 50:18-24.

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Plaintiff does not merely assert that Lagana was involved in the grievance process; he asserts that
Lagana had personal knowledge because he has made repeated attempts to notify Lagana
personally. As the above caselaw makes clear, an ongoing constitutional violation, coupled with
Plaintiffs repeated attempts to notify the prison and Lagana, is enough to establish aprimafacie
case of an Eighth Amendment violation against Lagana.
Lagana has submitted no evidence to rebut Plaintiffs claim. Lagana does not dispute, let
alone provide any evidence to rebut, that the medical need was serious, or that the deprivation was
ongoing. While Lagana argues there is no direct evidence that he knew of the alleged ongoing
constitutional violation,8 nonetheless Lagana submitted no evidence, either in the form of an
affidavit, a declaration, or sworn testimony, that he did not have personal knowledge. On summary
judgment, it is Lagana’s burden to establish the absence of a genuine dispute of material facts, and
he has failed to do so. Accordingly, the Court finds that summary judgment is not warranted on
this claim against Lagana.9
E. Qualified Immunity

8

In these prisoner cases, it is frequently impossible to have direct evidence of personal
knowledge. Often times, as it is here, the inference of knowledge must be drawn from
circumstantial evidence. See Farmer, 511 U.S. at 842-43; Hamilton v. Leay, 117 F.3d 742, 747
(3d Cir. 1997) (“A prison official’s knowledge of a substantial risk is a question of fact and can, of
course, be proved by circumstantial evidence”).
Consistent with the holdings above, the Court denies summary judgment on the issue of
punitive damages. See In re Bayside Prison Litig., 341 F. App’x 796, 797 (3d Cir. 2009) (holding
that a finding of deliberate indifference based on knowledge and acquiescence is sufficient to
sustain an award of punitive damages); Tatsch-Corbin v. feathers, 561 F. Supp. 2d 53$, 545 (W.D.
Pa. 2008) (finding that in determining whether punitive damages are appropriate in a § 1983 action,
“deliberate indifference to a substantial risk of serious harm to a prisoner is the equivalent of
recklessly disregarding that risk,” and that punitive damages apply “even when the underlying
standard for liability for compensatory damages is one of recklessness”) (quoting Farmer, 511
U.S. at 836-37 and Smith v. Wade, 461 U.S. 30, 56 (1983)).
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4

Lastly, the Court briefly addresses Lagana’s claim of qualified immunity. The Supreme
Court very recently summarized the standard for qualified immunity, stating that:
Qualified immunity shields government officials from civil damages liability
unless the official violated a statutory or constitutional right that was clearly
established at the time of the challenged conduct. To be clearly established, a right
must be sufficiently clear that every reasonable official would have understood that
what he is doing violates that right. When properly applied, qualified immunity
protects all but the plainly incompetent or those who knowingly violate the law.
We do not require a case directly on point, but existing precedent must have placed
the statutory or constitutional question beyond debate.
Taylor v. Barkes, 135 S.Ct. 2042, 2044 (2015). To that end, the Third Circuit has held that a prison
supervisor’s knowledge and acquiescence of a prisoner’s serious medical need is a clearly
established Eighth Amendment violation. See Atkinson, 316 F.3d at 270-71.
Here, the alleged violation asserted against Lagana, if true, unquestionably violates a
clearly established constitutional right. Plaintiff was prescribed a diabetic diet by a doctor, and as
stated above, there is sufficient evidence in the record to support a conclusion that Lagana knew
about his medical need, but was deliberately indifferent toward it. Ignorance of a prisoner’s
obvious medical need by a prison official is the quintessential denial of medical services claim
under the Eighth Amendment. See Farmer, 511 U.S. at 842; Natale, 31$ F.3d at 582; Duran v.
Merline, 923 F. $upp. 2d 702, 729 (D.N.J. 2013). Indeed, even a lay person would recognize that
failure to provide a diabetic with the proper diet for his condition would result in serious medical
consequences. As such, the Court rejects Lagana’s claim of qualified immunity.
IV.

CONCLUSION

For the reasons set forth above, the Court DENIES summary judgment on the claim against
Lagana for failure to provide Plaintiff with the special diet as required by his diabetic condition,
GRANTS summary judgment for Lagana on Plaintiffs prison conditions claim, and DISMISSES

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the remainder of the claims pursuant to 28 U.S.C.

§ 1915(e)(2) for failure to state a claim on which

relief may be granted.

Claire C. Cecchi, U.S.D.J.

Dated: August 10, 2015

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