HARLEY v. WARREN et al

Filing 20

OPINION. Signed by Judge John Michael Vazquez on 10/4/17. (DD, ) N/M

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

COREY IZEIL HARLEY,
Plaintiff,
v.
CHARLES E. WARREN, Jr., et al.,
Defendants.

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Civil Action No. 13-7656(JMV)

OPINION

APPEARANCES:
Corey Izeil Harley, #576446/221018C
Northern State Prison
168 Frontage Rd.
P.O. Box 2300
Newark, NJ 07114
Plaintiff pro se

VAZQUEZ, District Judge
Plaintiff Corey Izeil Harley, an inmate confined in Northern State Prison in Newark, New
Jersey, filed this civil rights action on December 16, 2013. (ECF No. 1.) The case was
administratively terminated because Plaintiff failed to pay the filing fee or submit a properly
completed application to proceed in forma pauperis (“IFP”) under 28 U.S.C. § 1915. (ECF No.
2.) On February 6, 2014, Plaintiff filed an IFP application, which was granted. (ECF Nos. 4, 6.)
Plaintiff filed an Amended Complaint on October 30, 2014. (ECF No. 7.) Subsequently, the Court
dismissed Plaintiffs’ First and Second Amended Complaints without prejudice pursuant to 28
U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1), for failure to state a claim upon which relief may be

granted. (ECF Nos. 10, 11, 13, 14.) This matter comes before the Court for screening of Plaintiff’s
Third Amended Complaint. (ECF No. 19.)
I.

BACKGROUND AND THIRD AMENDED COMPLAINT
The following factual allegations are taken from the Third Amended Complaint (ECF No.

19) and are accepted as true for purposes of this screening only. The Court has made no findings
as to the veracity of Plaintiff’s allegations.
On July 27, 2013, Plaintiff was in a fight with another inmate, Maurice Mosley, who had
murdered Plaintiff’s brother. (ECF No. 19, ¶19.) The warden of New Jersey State Prison, Charles
E. Warren, was notified of the history between Mr. Mosely and Plaintiff, and he placed a “Keep
Separate Flag” on both of their files. (Id.) Nevertheless, the inmates were placed on the same
housing unit, and the fight ensued. (Id.) Plaintiff further alleges:
The defendants were notified prior to the incident by Administrator
Beverly Hastings verbally and/or in writing of the risk factors of
housing both [Plaintiff] and inmate Maurice Mosely, but the
defendants deliberately did nothing to alleviate the probability of
injury.
(Id., ¶39.)
Plaintiff injured his hand during the fight with Mosely, and his hand became infected. (Id.,
¶19.) His requests to see a doctor or to go to a hospital were denied by Lance Carver, a nurse
practitioner at New Jersey State Prison. (Id.) As a result of this denial, the infection became worse,
and Plaintiff had to undergo surgery on August 19, 2013. (Id.) After surgery, Dr. Shakir signed a
written order for Plaintiff to receive physical therapy. (Id.) The New Jersey State Prison Medical
Department denied the order for physical therapy, and Plaintiff’s finger healed improperly and is
paralyzed. (Id.)

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Plaintiff alleges he notified Warden Charles E. Warren, Associate Administrator Kenneth
Nelson, Assistant Superintendent Jim Barnes, Assistant Superintendent Suzanne Lawrence, Lt.
Kennedy, Nurse Practitioner Lance Carver, CMS employee Nurse Gallagher, CMS employee
Nurse Milroy, CMS employee Dr. Abu Ahsan, Defendant Sharon Niery, and Defendant Ms. West
of the problems he had with the medical department not providing treatment. (ECF No. 19, ¶¶917, 20-30.) They did nothing to rectify the problem, according to Plaintiff, in violation of the First,
Fourth, Eighth and Fourteenth Amendments. (Id.)
II.
A.

DISCUSSION

Sua Sponte Dismissal
Under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b), district courts must screen complaints

filed by prisoners in civil actions and dismiss any claim that is frivolous or malicious, fails to state
a claim upon which relief may be granted, or seeks monetary relief from a defendant who is
immune from such relief.
“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.’” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Id. (quoting
Twombly, 550 U.S. at 556.). “[A] court must accept as true all of the allegations contained in a
complaint” but need not accept legal conclusions as true.” Id. Legal conclusions, together with
threadbare recitals of the elements of a cause of action, do not suffice to state a claim. Id. Thus,
“a court considering a motion to dismiss can choose to begin by identifying pleadings that, because
they are no more than conclusions, are not entitled to the assumption of truth.” Id. at 679. “While

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legal conclusions can provide the framework of a complaint, they must be supported by factual
allegations.” Id.
B.

Section 1983 claims
A plaintiff may assert a cause of action under 42 U.S.C. § 1983 for 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[.]
42 U.S.C. § 1983.
To state a claim for relief under § 1983, a plaintiff must allege the violation of a right
secured by the Constitution or laws of the United States, and that the constitutional deprivation
was caused by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1998);
Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
1.

First and Fourth Amendment Claims

The First Amendment states:
Congress shall make no law respecting an establishment of religion,
or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of
grievances.
The Fourth Amendment provides:
The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.

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Plaintiff’s allegations do not implicate the First or Fourth Amendment. Therefore, the
Court dismisses with prejudice Plaintiff’s § 1983 claims under the First and Fourth Amendments,
and the identical claims under the New Jersey Constitution and New Jersey Civil Rights Act. See
Coles v. Carlini, 162 F.Supp.3d 380, 404 (D.N.J. 2015) (“[c]ourts have repeatedly construed the
NJCRA in terms nearly identical to its federal counterpart: Section 1983”) (quoting Chapman v.
New Jersey, No. 08–4130, 2009 WL 2634888, at *3 (D.N.J. Aug. 25, 2009)).
2.

Claims Against Remote Supervisory Officials

Plaintiff named as defendants to this action Governor Chris Christie; Gary M. Lanigan,
Commissioner of the New Jersey Department of Corrections; and Bruce Hauck, Director of the
New Jersey Department of Corrections. (ECF No. 19, ¶¶6-8.) Plaintiff seeks to hold them liable
based on their supervisory roles over the New Jersey Department of Corrections. (Id.)
Under 42 U.S.C. § 1983, “government officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of respondeat superior.” Iqbal, 129
S.Ct. at 676. Plaintiff has failed to allege facts indicating Governor Christie’s, Commissioner
Lanigan’s or Director Hauck’s personal involvement in a constitutional violation. Therefore, the
Court dismisses the § 1983 claims against Christie, Lanigan and Hauck. Dismissal is with
prejudice because, after three opportunities to amend his pleadings to include allegations of their
personal involvement in a constitutional violation, Plaintiff has failed to do so. Thus, the Court
concludes these supervisory defendants were not personally involved, and amendment is futile.
The claims against them are dismissed with prejudice.
3.

Eighth Amendment Failure to Protect Claims

The Eighth Amendment requires prison officials to take reasonable measures “to protect
prisoners from violence at the hands of other prisoners.” Farmer v. Brennan, 511 U.S. 825, 833

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(1994) (internal quotations omitted). To state a claim for damages against a prison official for
failure to protect from inmate violence, an inmate must plead facts that show (1) he was
incarcerated under conditions posing a substantial risk of serious harm, (2) the official was
deliberately indifferent to that substantial risk to his health and safety, and (3) the official’s
deliberate indifference caused him harm. Id. at 834; Hamilton v. Leavy, 117 F.3d 742, 746 (3d
Cir. 1997). Negligent failure to prevent an attack by an inmate is insufficient to establish violation
of the Eighth Amendment. Davidson v. Cannon, 474 U.S. 344, 345-49 (1986) (finding failure to
heed prisoner’s notification of threats from another inmate, followed by an assault, is not a
violation of the Due Process Clause of the Fourteenth Amendment); Schwartz v. Cnty of
Montgomery, 843 F.Supp. 962, 971 (E.D. Pa.) aff’d 37 F.3d 1488 (3d Cir. 1994) (stating failure to
observe institutional policies regarding supervision of dangerous inmates constitutes negligence
and does not support a § 1983 action for violation of the Eighth or Fourteenth Amendments).
Plaintiff has not alleged facts plausibly showing deliberate indifference to his safety by any
of the defendants. Plaintiff acknowledges that a “Keep Separate Flag” was put in his and
Moseley’s prison files in response to the information that Moseley had killed Plaintiff’s brother.
The fact that the “Keep Separate” order was not followed sounds in negligence rather than
deliberate indifference. Negligent failure to protect an inmate from an attack does not violate the
Eighth Amendment. See Bracey v. Pennsylvania Dep’t of Corr., 571 F. App’x 75, 78-79 (3d Cir.
2014) (violation of prison policy “is insufficient by itself to support an argument for deliberate
indifference”) (quoting Longoria v. Texas, 473 F.3d 586, 593 n. 9 (5th Cir. 2006)). The Court
dismisses the Eighth Amendment claim with prejudice because amendment is futile where
deliberate indifference cannot be established. See Rex v. Lehigh County Prison, 516 F. App’x 102,
104 (3d Cir. 2013) (affirming dismissal of Eighth Amendment claim with prejudice because

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conduct alleged did not provide any basis for deliberate indifference). The Court also dismisses
Plaintiff’s identical claims under the New Jersey Constitution and New Jersey Civil Rights Act.
See Rand v. New Jersey, Civ. No. 12–2137 (FLW), 2015 WL 1116310, at *8-10, n.8 (D.N.J. Mar.
11, 2015) (analyzing state and federal constitutional claims based on failure to protect an inmate
from violence under the same standard).
4.

Eighth Amendment Inadequate Medical Care

The Eighth Amendment’s prohibition against cruel and unusual punishment requires that
inmates be provided adequate medical care. Estelle v. Gamble, 429 U.S. 97, 103-04 (1976); Rouse
v. Plantier, 182 F.3d 192 (3d Cir. 1999). To state a claim of inadequate medical care in violation
of the Eighth Amendment, an inmate must set forth: (1) a serious medical need; and (2) a prison
official’s deliberate indifference to that serious medical need. Estelle, 429 U.S. at 106. A serious
medical need includes a need for which “denial of treatment would result in the unnecessary and
wanton infliction of pain” or a “life-long handicap or permanent loss.” Atkinson v. Taylor, 316
F.3d 257, 273 (3d Cir. 2003) (internal quotations and citations omitted).
The second element of the Estelle test is subjective and requires an inmate to show that a
prison official acted with deliberate indifference to a serious medical need. Natale v. Camden
County Correctional Facility, 318 F.3d 575, 582 (3d Cir. 2003). Conduct that constitutes
malpractice or negligence does not rise to the level of deliberate indifference; deliberate
indifference is a reckless disregard of a known risk of harm. Farmer, 511 U.S. at 836. Courts will
not second-guess “the adequacy a particular course of treatment” in the exercise of sound
professional judgment. Inmates v. Allegheny County Jail v. Pierce, 612 F.2d 754, 762 (3d Cir.
1979) (quoting Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977)). A non-physician defendant
is not deliberately indifferent to a prisoner’s serious medical needs in violation of the Eighth

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Amendment if she fails to respond to an inmate’s administrative complaint regarding medical
treatment while the inmate is already receiving treatment by the prison doctor. Durmer v.
O’Caroll, 991 F.2d 64, 69 (3d Cir. 1993). Eighth Amendment claims against non-medical
personnel based on an unmet need for medical care are limited to circumstances where the nonmedical personnel had “a reason to believe (or actual knowledge) that prison doctors or their
assistants are mistreating (or not treating) a prisoner.” Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir.
2004).
In his Third Amended Complaint, Plaintiff alleges Defendant Lance Carver refused his
requests to see a doctor or to go to a hospital for treatment of the bite injury to his hand, which
then became infected to the bone. (ECF No. 19, ¶19.) 1 As a result of the denial of treatment,
Plaintiff had to undergo surgery on August 19, 2013. (Id.) These allegations plausibly state an
Eighth Amendment claim.
Plaintiff also alleges that the entire medical department at the prison refused to order
physical therapy for the rehabilitation of his hand, as prescribed by Dr. Shakir. (Id.) Further,
Plaintiff alleged he notified the prison official defendants that the entire medical department
refused to provide the prescribed physical therapy. (Id., ¶¶20-24.) Plaintiff asserts the failure to
provide physical therapy caused paralysis of his finger and improper healing. (Id.)

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In his First Amended Complaint, Plaintiff alleged Carver glued his wound shut but provided no
medication. (ECF No. 7, ¶22.) This Court rejected Plaintiff’s Eighth Amendment claims because
disagreement with Carver’s medical judgment does not constitute deliberate indifference. (ECF
No. 10 at 9-10.) The Third Amended Complaint supersedes the prior complaints. See West Run
Student Housing Associates, LLC v. Huntington Nat. Bank, 712 F.3d 165, 172 (3d Cir. 2013)
(contradictory factual allegation in amended complaint is permitted because earlier allegation is
no longer a binding judicial admission in light of amendment) (citations omitted). Therefore, the
Court, in screening the Third Amended Complaint, does not consider the previous allegation that
Carver examined Plaintiff and glued his wound shut.
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The Court will permit Plaintiff’s Eighth Amendment inadequate medical care claims to
proceed based on Plaintiff’s allegations that (1) he received no treatment at the prison for his bite
wound; (2) that his wound became infected to the bone, and he required surgery as a result of the
lack of treatment; (3) his please for prescribed physical therapy were ignored; (4) and his hand is
permanently damaged as a result of the failure to timely provide physical therapy. Plaintiff’s
identical claims under the New Jersey State Constitution and the New Jersey Civil Rights Act may
also proceed. See Gormley v. Wood-El, 218 N.J. 72, 97 (N.J. 2014) (“Section 1983 applies only
to deprivations of federal rights, whereas N.J.S.A. 10:6–1 to 2 applies not only to federal rights
but also to substantive rights guaranteed by New Jersey's Constitution and laws.”)
III.

CONCLUSION

For the reasons discussed above, Plaintiff’s Eighth Amendment inadequate medical care
claims may proceed 2 against Defendants Lance Carver, Charles E. Warren, Kenneth Nelson, Jim
Barnes, Suzanne Lawrence, Lt. Kennedy, Sharon Niery, Ms. Gallagher, Ms. Milroy, Ms. West,
and Dr. Abu Ahsan. Pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1), the remainder
of the Third Amended Complaint is dismissed with prejudice.

An appropriate order follows.
s/ John Michael Vazquez
JOHN MICHAEL VAZQUEZ
United States District Judge
Date: October 4, 2017
At Newark, New Jersey

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As noted, the Court is performing a screening function at this stage. Defendants are not
prohibited from litigating the case as they see fit, including filing a motion to dismiss if they
believe it appropriate.
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