Parness v. Essex County Correctional Facility et al

Filing 10

OPINION. Signed by Judge Jose L. Linares on 4/25/2016. (seb)

*NOT FOR PUBLICATION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

MARTiN S. PARNESS,
Civil Action No. 15-2397 (JLL)

Plaintiff,
v.

:

OPINION

ESSEX COUNTY CORRECTIONAL
FACILITY, et al.,
Defendants.
LINARES, District Judge:
Plaintiff, Martin Parness, filed a complaint against Defendants in the Southern District of
New York on February 18, 2015. (ECF No. 1, 2). The Southern District transferred this matter
to the District of New Jersey on April 1, 2015. (ECF No. 5, 6). On June 2, 2015, this Court
granted Plaintiff’s application to proceed in forma pauperis. (ECF No. 9). At this time, the
Court must review the Complaint, pursuant to 28 U.S.C.

§ 1915(e)(2)(B) to determine whether it

should be dismissed as frivolous or malicious, for failure to state a claim upon which relief may
be granted, or because it seeks monetary relief from a defendant who is immune from such relief.
For the reasons set out below, this Court will permit Plaintiff’s claim for deliberate indifference to
medical needs to proceed at this time, but will dismiss that claim with prejudice as to the Essex
County Correctional Facility. Plaintiff’s remaining claims will be dismissed without prejudice as
to all Defendants.

I. BACKGROUND

Plaintiff, William Pamess, is an individual currently incarcerated in the Essex County
Correctional Facility.’ (ECF No. 2 at 11). Plaintiffs claims all arise out of the dental treatment,
or lack thereof, which he received during his incarceration in Essex County. At some point after
his initial incarceration in 2009, but prior to January 2013, Plaintiff filled out a sick call request
(“SCR”) form requesting to be seen by a dentist. (Id.). At that time, Plaintiff was seen by an

unknown female dentist who provided Plaintiff with a temporary fix for a cavity to one of his
tooth, but informing Plaintiff that she could not perform a proper filling as she was missing certain
necessary materials which would soon arrive. (Id.). After providing the temporary filling, the
dentist informed Plaintiff that it “should hold.” (Id.). When asked to explain that statement,
Plaintiff was told that the clinic at the jail only did “as much to make one comfortable” as it was
not a private clinic. (Id.). Plaintiff also asserts that, when reporting his dental issues, he was
asked when he would be leaving, as the dental clinic would apparently not prioritize the issues of
those soon to be released. (Id. at 12).
On October 4, 2012, Plaintiff filled out another SCR after one of his fillings had fallen out
of his teeth. (Id.). Petitioner was brought to see Dr. Gertzman. (Id.). Gertzman told Plaintiff
that if the tooth was not causing him pain and was not bothering him, the clinic would not fill the
cavity. (Id.). After Plaintiff apparently expressed his exasperation with the situation, Gertzman
Plaintiff claims that he was “illegally arrested and {hasj been illegally incarcerated since April
2009.” (ECF No. 2 at 11). Plaintiff does not elaborate further in this complaint. Plaintiff,
however, filed another complaint in April 2015 which has since been transferred to this Court in
which he makes it clear that he is currently incarcerated for his failure to pay an allegedly
fraudulent judgment owed his ex-wife arising out of their divorce. (See Parness v. Christie,
Civil Action No. 15-3505, ECF No. 1 at 13).
2

told him that Motrin could be provided if pain resulted, and that antibiotics would be given in the
event that an infection arose. (Id.). Gertzman allegedly also told Plaintiff that she could either
pull his teeth or make him comfortable, but could do no more for him.

(Id.).

Gertzman

apparently further elaborated and informed Plaintiff that the contract between her employer,
Defendant CFG Health Systems, and Essex County did not call for the filling of cavities, root
canals, or the installation of caps and crowns. (Id. at 13).
Plaintiff filled out another SCR on October 24, 2012, again asserting that his filling had
fallen out and that he was suffering pain as a result. (Id.). Plaintiff was seen by Dr. Gertzman
on November 26, 2012. LId.). The dentist ordered an X-ray of the tooth, after which Gertzman
told Plaintiff that the tooth and nerve were dead and needed to be pulled. (Id.). Plaintiff refused,
and demanded that he be given a prescription for pain killers, but was told that he could only be
given Motrin or Tylenol.

(Id.).

Plaintiff also insisted that he be taken to the University of

Medicine and Dentistry of New Jersey in Newark for a second opinion.

(Id. at 14).

Dr.

Gertzman, however, refused that request. (Id.). She then informed Plaintiff that he would be
called back in a week. (Id.).
Plaintiff received no such call back, and therefore filled out further dental SCRs on
December 12, 2012, and January 5, 2013, requesting help with “two teeth that require fillings
immediately[, t]hree teeth that require root canal[s] and caps, and one broken tooth that may
require root canal and caps.” (Id.). Plaintiff also again insisted on being taken to the University
for a second opinion. (Id.). On January 8, 2013, Plaintiff filled out an additional SCR asserting
that his lower jaw hurt and that he had cavities and five molars in need of attention. (Id. at 15).
Plaintiff thereafter made an additional SCR request on January 18, 2013, again asserting jaw pain
3

and painful cavities. (Id.). After receiving no response, Plaintiff wrote a memo to Defendant
Hendricks and the jail’s Internal Affairs unit detailing his negative experience with the dentist
ry
clinic and reiterating the interactions relayed above.

(Id. at 15-18).

In the memo Plaintiff

apparently also relayed his belief that his treatment was the result of an unwritten jail policy not
to
provide full dental care but to instead only pull teeth once the teeth had become beyond help, and
thereby save money on the supplies necessary to fill cavities or perform root canals. (Id.).
Plaintiffs memo apparently received no response, and he thereafter filled out another SCR
on February 12, 2013. (Id. at 18). Again, Plaintiff insisted he receive fillings for several of his
teeth, and that he be taken to UMDNJ “if the personnel at the jail are not capable.” (Id.). On
April 22, 2013, Plaintiff repeated his request for treatment of his molars in an additional SCR
seeking a referral to UMDNJ. (Id. at 18-19). Plaintiff elaborated in further SCRs on May 3 and
May 7. 2013, in which he asserted that his molars were decaying “at an alarming rate,” that his
gums were bleeding, that he was suffering jaw and headache pain, and that he had “a cavity that
goes up through to the nose.

.

.

that.

.

.

may be infected which may be [a]ffecting [his] hearing.”

(Id. at 19).
Plaintiff was seen by Dr. Gertzman in the dental clinic on May 15, 2013. During that visit,
Plaintiff was told that the CFG contract did not permit referrals to UMDNJ. (Id.). When Plainti
ff
again insisted he be given a referral, Dr. Gertzman refused as “she was in charge and she would
not allow a consult.” (Id.). Gertzman, however, also informed Plaintiff that she had put in
a
request to Dr. Anicette, her supervisor within CFG, to have Plaintiff seen at UMDNJ, but
that
request had apparently been denied.

(Id. at 20).

Plaintiff again insisted that he be given

prescription medication for the pain in his teeth, but Gertzman again told him she could
only
4

provide him with Motrin or Tylenol. (Id.). It is unclear what actual dental treatment may have
been performed during this visit.
On July 15, 2013, Plaintiff submitted a further SCR, claiming that two of his lower right
teeth needed attention, and that he had gumline cavities requiring treatment. (Id.). Plainti
ff
submitted an additional SCR on July 27, 2013, claiming that the issue had developed to the point
that the right side of his face had become swollen. (Id.). This swelling was apparently the result
of an infection of Plaintiff’s teeth, and was treated by regular medical staff through the use of
intravenous antibiotics. (Id.). Plaintiff was apparently seen by Gertzman again the follow
ing
day, who told Plaintiff his right upper incisor would need to be pulled. (Id.). Plaintiff again
refused to have any teeth pulled and demanded he be sent to UMDNJ as other inmates had
been.
(Id.).

Dr. Gertzman refused that request.

(Id.).

Plaintiff thereafter requested that the

correctional officers move him to the medical ward, but that request did not result in his transfer.
(IcL).
On July31, 2013, Plaintiff filled out an additional SCR. (Id. at 21-22). In the request for
treatment, Plaintiff relayed the information regarding his infection and Gertzman’s earlier refusal
to fill any cavities, which Plaintiff asserted was the cause of his current problems. (Id.
at 22).
Plaintiff again requested to be sent to UMDNJ. (Id.). Although no trip to medical appare
ntly
resulted from that request, the intravenous antibiotics alleviated both Plaintiffs tooth pain
and
infection after approximately one week. (Id.).
Several months later, on October 20, 2013, Plaintiff again submitted an SCR. (Id.). This
time, Plaintiff claimed that his lower right tooth needed a filling urgently, and claimed that
Dr
Gertzman had improperly assessed the tooth to have a dead nerve and to therefore require pulling.
5

(Id.). Plaintiff filled out an additional request on December 29, 2013, adding that his right molar
had split in half and his upper left tooth had broken, leaving him in need of “pain relief.” (Id.).
On January 16, 2014, Plaintiff submitted a further SCR, noting that it had been several weeks
2
since his last request and he had not been seen, despite his ongoing dental issues. (Id. at 22-23)
.
Plaintiff also made copies of this request form and submitted those copies to both Defend
ants
Hendricks and Anicette. (Id. at 23). Plaintiff subsequently, on January 30, 2014, submit
ted a
memorandum to Hendricks and Anicette reiterating his complaints regarding dental treatm
ent at
the jail. (Id. at 23).
On January 27, 2014, Plaintiff was called to the dental unit and seen by Dr. Gertzman. (Id.
at 23-24). After an X-ray, the dentist offered Plaintiff Motrin or Tylenol for his pain and inform
ed
him that as she could not perform a root canal, six of his teeth would need to be pulled.
(Id. at
24-25), Plaintiff refused, and once again insisted he be taken to UMDNJ for a second opinio
n.

(Id. at 25). Plaintiff asserts that he again asked whether the dental clinic would fill his cavitie
s,
and received “when will you be going home” as a response. (Id.). Dr. Gertzman alleged
ly told
Plaintiff that if he wanted a root canal or caps, he would need to wait until he left the jail,
as the
jail’s contract did not call for those forms of treatment. (Id.). Dr. Gertzman then had Plainti
ff
sign a form noting his refusal to have his teeth pulled. (Id.). Gertzman then appare
ntly filled a
single gum line cavity on one of Plaintiff’s teeth.

(Id.).

Although he had initially refused,

Plaintiff ultimately allowed his seven teeth to be pulled by an oral surgeon on Februa
ry 12, 2014.

2

Plaintiff states that in his January 16 SCR he stated that his previous request had been
made on
December 16, 2013. (ECF No. 2 at 22). His own pleadings, however, give the previo
us
request a date of December 29, 2013. (Id.).
6

(Id. at 26-27).

II. DISCUSSION
A.

Legal Standard

Per the Prison Litigation Reform Act, Pub. L. No. 104-134,

§ 801-810, 110 Stat. 1321-

66 to 1321-77 (April 26, 1996) (“PLRA”), district courts must review complaints in those civil
actions in which the plaintiff is proceeding in forma pauperis, see 28 U.S.C.

§ 1915(e)(2)(B).

The PLRA directs district courts to sua sponte dismiss any claim that is frivolous, is 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. This action is subject to sua sponte screening for dismissal
under 28 U.S.C.

§ 1915(e)(2)(B) as Plaintiff is proceeding informapauperis.

According to the Supreme Court’s decision in Ashcrofl v. Iqbal, “a pleading that offers
‘labels or conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not
do.” 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007)). To survive sua sponte screening for failure to state a claim, the complaint must allege
3
“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
“The legal standard for dismissing a complaint for failure to state a claim pursuant to 28
U.S.C. § 191 5(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6).” Schreane v. Seana, 506 F. App’x 120, 122 (3d Cir. 2012)
(citing Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)); Mitchell v. Beard, 492 F. App’x
230, 232 (3d Cir. 2012) (discussing 28 U.S.C. § 1997e(c)(1)); Courteau v. United States, 287 F.
App’x 159, 162 (3d Cir. 2008) (discussing 28 U.S.C. § 1915A(b)).
7

that the defendant is liable for the misconduct alleged.” Fair Wind Sailing, Inc. v. Dempster,
764 F.3d 303, 308 n. 3 (3d Cir. 2014) (quoting Iqbal, 556 U.S. at 678). Moreover, while prose
pleadings are liberally construed, ‘pro se litigants still must allege 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) (emphasis added).

B.

Plaintiffs RICO and Fraud Claims

Plaintiff first asserts civil claims against Defendants for violations of the Racketeer
Influenced and Corrupt Organization (“RICO”) Act. 18 U.S.C.

§ 1962(c) “makes it unlawful ‘for

any person employed by or associated with any enterprise engaged in, or the activities of which
affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the
conduct of such enterprise’s affairs through a pattern of racketeering activity.”

In re Ins.

Brokerage Antitrust Litig., 618 F.3d 300, 362 (3d Cir. 2010) (quoting 18 U.S.C.

§ 1962(c)).

Section 1962(d) expands liability under the statute by making it “unlawful for any person to
conspire to violate [18 U.S.C.

§ 1962(c))”. 18 U.S.C. § 1962(d). “The RICO statute provides

for civil damages for any person injured in is business or property by reason of a violation of
[
1962).” Amos v. Franklin Fin. Servs. Corp., 509 F. App’x 165, 167 (2013) (quoting Tabas v.
Tabas, 47 F.3d 1280, 1289 (3d Cir. 1995)).
A violation of the statute
requires (1) conduct (2) of an enterprise (3) through a pattern (4) of
racketeering activity. The plaintiff must, of course, allege each of
these elements to state a claim. Conducting an enterprise that
affects interstate commerce is obviously not in itself a violation of §
1962, nor is the mere commission of the predicate offenses. In
8

addition, the plaintiff only has standing if, and can only recover to
the extent that, he has been injured in his business or property by the
conduct constituting the violation.
Id. Physical or emotional harm to a person is insufficient to show that a person was injured in his
business or property under the act. Magnum v. Archdiocese of Philadelphia, 253 F. App’x 224,
227 (3d Cir. 2007). “Similarly, losses which flow from personal injuries are not [damage to]

property under RICO.” Id. (internal quotations omitted).
A pattern of racketeering activity “is established by showing that the defendants engaged
in at least two predicate acts within ten years of each other.” Amos, 509 F. App’x at 168.
Included among potential predicate acts are “federal mail fraud under 18 U.S.C.
wire fraud under 18 U.S.C.

§ 1341 or federal

§ 1343.” Id. “[Mjail or wire fraud consists of: ‘(I) a scheme to

defraud; (2) use of the mails [or wires] to further that scheme; and (3) fraudulent intent.” Id.
(quoting United States v. Pharis, 298 F.3d 228, 234 (3d Cir. 2002)). No defendant can be found
liable under RICO unless he participated in “two or more predicate offenses sufficient to constitute
a pattern.” Id. (quoting Banks v. Wolk, 918 F.2d 418, 421 (3d Cir. 1990)).
Where the alleged predicate acts asserted include mail or wire fraud, a plaintiff must meet
the heightened pleading requirements of Rule 9(b) in order to state a claim for relief. CareOne,
LLC v, Burns, Civil Action No. 10-2309, 2011 WL 2623503, at *8 (D.N.J. June 28, 2011); see
also Waden v. Mcelland, 288 F.3d 105, 114 (3d Cir. 2002). Under Rule 9(b), “a party must state
with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). In order
to satisfy this pleading requirement, a plaintiff must “identify[] the purpose of the [mailing or use
of wires] within the defendant’s fraudulent scheme and specify[] the fraudulent statement, the time,
place, and speaker and content of the alleged misrepresentation.” Burns, 2011 WL 2623503 at
9

*8 (quoting Annul/i v. Panikkar, 200 F.3d 189, 200 n. 10 (3d Cir. 1999), overruled
on other
grounds by Rote/la v. Wood, 528 U.S. 549 (2000)). A plaintiff pleading fraud must therefore
allege the “who, what, when, and where details of the alleged fraud” in order to meet the
requirements of Rule 9. District 11 99P Health and W4fare Plan v. Janssen, L. P., 784 F. Supp.
2d 508, 527 (D.N.J. 2011).

“The purpose of Rule 9(b) is to provide notice of the precise

misconduct with which defendants are charged’ in order to give them an opportunity to respond
meaningfully to the complaint, ‘and to prevent false or unsubstantiated charges.” Id. (quoting
Rob v. City of Investing Co. Liquidating Trust, 155 F.3d 644, 658 (3d Cir. 1998)). A plaintiff
must therefore allege “must state the circumstances ofthe alleged fraud with sufficient particularity
to place the defendant on notice of the precise misconduct with which [it is] charged.” Frederico
v. Home Depot, 507 F.3d 188, 200 (3d Cir. 2007) (quoting Lum v. BankofAm., 361 F.3d 217, 22324 (3d Cir, 2004), abrogated in part on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S.

544, 557 (2007)).
Plaintiff alleges that Defendants Anicette, Gertzman, Divincenzo, Ortiz, Hendricks, and
John Does 1-15 knowingly and intentionally engaged in a RICO conspiracy or, as Plaintiff asserts
in Counts three and four of his complaint, aided and abetted that conspiracy whose intent was
apparently to profit by refusing to provide full dental care to Plaintiff and other prisoners in the
Essex County Correctional Facility.

(ECF No. 2 at 40-42).

To support his assertion that

Defendants engaged in acts which would establish a civil RICO claim, Plaintiff asserts that
Defendants engaged in numerous acts of wire or mail fraud by mailing or wiring the contract
between the facility and CFG Health Systems through which CFG provided dental services to the
facility.

(ECF No. 2 at 42). Plaintiff further alleges that further acts of mail or wire fraud
10

occurred when Defendants mailed or sent the various purchase orders for dental supplies. (ECF
No. 2 at 42-46). In so asserting, Plaintiff asserts that these purchase orders, whose dates he does
not know, would have numbered at least sixteen if sent quarterly or at least forty eight if sent

monthly to the facility. (ECF No. 2 at 45). In so asserting, Plaintiff inadvertently establishes
that he has provided no information as to who specifically sent the orders and/or contract, where
or to whom they were sent, what information was contained in those orders, or how that
information was false other than to speculate that the orders did not request sufficient supplies to
treat all dental needs within the facility. Indeed, Petitioner’s statements establish that he doesn’t
know, and therefore has failed to allege, how many of the alleged documents exist, or how
frequently they are produced.

Plaintiff provides no more than speculation, and certainly no

particular details as to any alleged fraud that may have been contained within the contract or
purchase orders. As Plaintiff has not properly pled the “who, what, when, and where details of
the alleged fraud,” he has failed to plead fraud with particularity, and has therefore not met the
pleading requirements of Rule 9(b). District 1199P Health and We(fare Plan, 784 F. Supp. 2d at
527. As such his RICO claims, and the related fraud claims, must be dismissed without prejudice

for failure to state a claim for which relief can be granted. Id.
Additionally, this Court notes that Plaintiff has not sufficiently pled damage to his business
or property. Petitioner’s alleged damages arise entirely out of the decay and loss of certain teeth
as a result of the allegedly insufficient dental treatment provided at the Essex County facility. As
such, he has pled only personal injury damages and damages which flow from personal injury,
neither of which are sufficient to support a RICO claim, and neither of which are sufficient
to
provide Plaintiff with standing to bring such a claim. Amos, 509 F. App’x at 167; Magnum,
253
11

F. App’x at 227. Thus, even had Plaintiff pled fraud with sufficient particularity, he would lack
standing to bring a civil RICO claim based upon the allegations contained in his complaint.
Petitioner’s civil RICO claims, and the related fraud aiding and abetting claims, will therefore
be
dismissed without prejudice.

C, Plaintiff’s 42 U.S.C.

§ 1983 claims

Plaintiff seeks to sue Defendants for violations of his Fourteenth Amendment rights. 42
U.S.C.

§ 1983 provides “private citizens with a means to redress violations of federal law

committed by state individuals.” Woodyard v. Cnty. Of Essex, 514 F. App’x 177, 180 (3d
Cir.
2013), To assert a claim under the statute, a plaintiffmust show that he was a deprived
of a federal

constitutional or statutory right by a state actor. Id. When evaluating the merits of a

§ 1983

claim, the Court must identify the contours of the underlying right Plaintiff claims was violate
d
and determine whether Plaintiff has successfully alleged a violation of that right. Nicini v. Morra,
212 F.3d 798, 806 (3d Cir. 2000).
Here, Plaintiff brings claims against all Defendants for deliberate indifference to his
medical needs under the Fourteenth Amendment to the United States Constitution. Althou
4
gh
this Court discerns no basis to dismiss this claim at this time as to most Defendants, Plaintiff’s

§

Depending on one’s status, as either a convicted prisoner or an un-convicted, most often pre
trial, detainee, a claim for deliberate indifference arises out of one’s Eighth or Fourteenth
Amendment rights respectively. See King v. Cnty. of Gloucester, 302 F. App’x 92, 96
(3d Cir.
2008). As Petitioner does not appear to have been convicted of a crime based on the
information currently available, his claim would arise under the Fourteenth Amendment.
As the
Fourteenth Amendment standard is at least as strict as that considered under the Eighth
Amendment, this Court’s opinion would be no different were Petitioner a convicted prisoner.
id.
12

1983 claims against the Essex County Correctional Facility must be dismissed. As this Court
recently explained:
A County jail. is not a person amenable to suit under the statute.
See Kitchen v. Essex Cnty. Corr. Facility, No. 12-2199, 2012 WL
1994505, at *3 (D.N.J. May 31, 2012); Ingram v. Ati. Cnty. Justice
Facility, No. 10-1375, 2011 WL 65915, at *3 (D.N.J. Jan. 7, 2011);
see also Marsden v. Federal B.O.P., 856 F. Supp. 832, 836
(S.D.N.Y. 1994); Powell v. Cook County Jail, 814 F. Supp. 757, 758
(N.D. Ill. 1993); McCoy v. Chesapeake Corr. Cntr., 788 F. Supp.
890, 893-894 (E.D. Va. 1992). The correct entity subject to suit
under § 1983 for claims against the jail would be the county which
operates the facility. See Kitchen, 2012 WL 1994505; Vance v.
CnIy. Of Santa Clara, 928 F. Supp. 993, 996 (N.D. Cal. 1996) (the
county “Department of Corrections is an agency of the County...
[t]he County is a proper defendant in a § 1983 claim, an agency of
the County is not”).
.

.

Harris v. Hudson Cnty. Jail, No. 14-6284, 2015 WL 1607703, at *5 (D.N.J. April 8, 2015). As
the Essex County Correctional Facility serves as the county jail for Essex County, it is not a person
amenable to suit under

§ 1983. The Correct defendant would instead be Essex County itself,

which Plaintiff has named as a defendant. Plaintiff’s

§ 1983 claim against the Essex County

Correctional Facility must therefore be dismissed with prejudice. Id.
Plaintiff also attempts to assert a claim for First Amendment retaliation under

§ 1983.

“In order to plead a retaliation claim under the First Amendment, a plaintiff must allege: (1)
constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary
firmness from exercising his constitutional rights, and (3) a causal link between the constitutionally
protected conduct and the retaliatory action.” Thomas v. Independence Twp., 463 F.3d 285, 296
(3d Cir. 2006). The central question required to determine whether a First Amendment retaliation
claim is cognizable is “whether ‘the alleged retaliatory conduct was sufficient to deter a person
of
13

ordinary firmness from exercising his First Amendment rights.” Id. (quotingMcKee v. Hart, 436
F.3d 165, 170 (3d Cir. 2006)). As a threshold matter, Plaintiff is required to identify the protected
activity that he alleges spurred a defendant to retaliate against him. George v. Rehiel, 738 F.3d
562, 585 (3d Cir. 2013); Eichenlaub v. Twp. OfIndiana, 385 F.3d 274, 282 (3d. Cir. 2004).
As to the retaliation claim, Plaintiff alleges that Dr. Gertzman retaliated against him for the
tiling of grievances against her. Although the filing of a grievance is a protected activity which
can be the subject of a plausible retaliation claim, see Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir.
2003). Plaintiff does not allege what specific grievance he may have filed against Dr. Gertzman.
Plaintiff certainly filed many Sick Call Requests related to his dental treatment, and on two or
three occasions appears to have written letters and memos to Warden Hendricks and Dr. Anicet
te
about his treatment, but his complaint is otherwise devoid of any allegations regarding any filed
grievances. Even assuming that these letters and SCRs are sufficiently similar to the grievances
in Horn to be considered a protected activity, Plaintiff doesn’t plead sufficient retaliatory conduct.
As to retaliatory conduct, Plaintiff pleads only that Gertzman refused to provide him with
prescription strength pain medication, and refused to send him to UMDNJ. The problem with
those allegations serving as retaliation is that Gertzman had already engaged in those behavi
ors in
regard to Plaintiff before he began his flurry of SCRs and letters. Plaintiffs own allegations serve
to refute his claim: the alleged retaliatory conduct arose before the protected activity, not
in
response to it, and therefore to the extent that that activity could be said to harmful, it
was not
taken in retaliation to Plaintiffs reports. Even were that not the case however, it is questio
nable
at best whether refusing to provide an outcall or offer prescription strength pain medica
tion, as
opposed to the Tylenol and Motrin Gertzman frequently offered to Plaintiff even after he began
to
14

complain, would be sufficient to deter a person of ordinary firmness. Clearly, these actions
did
not deter Plaintiff from continuing to pursue his desired course of dental treatment. Dr. Gertzm
an
did not threaten nor attack Plaintiff, but rather refused him an outpatient referral and did not
give
him pain medication stronger than Motrin or Tylenol, neither of which are actions Plainti
ff has
clearly alleged were within Gertzman’s power to grant. Indeed, Plaintiff’s pleadings sugges
t that
Gertzman specifically told him that those actions were beyond her authority. Becaus Plainti
e
ff
has not properly alleged that Gertzman’s actions were in retaliation to his alleged protect
ed
conduct, and because he has not alleged that the “retaliation” was sufficiently severe to
deter a
person of ordinary firmness, Plaintiff’s First Amendment retaliation claim will be dismis
sed
without prejudice. Iqbal, 556 U.S. at 678; Thomas, 463 F.3d at 296.

ft Plaintiffs Intentional Infliction of Emotional Distress and Remaining State Law Claims
Plaintiff also seeks to bring a state law claim for intentional infliction of emotional distres
s
against Defendants. In order to plead a cognizable claim for intentional infliction of emotio
nal
distress under New Jersey law, a plaintiff must allege that the defendant intended
to cause
emotional distress, engaged in conduct that was extreme and outrageous, that this
conduct
proximately caused emotional distress to Plaintiff, and that the emotional distress was
severe.
Witherspoon v. Rent-A-Center, Inc., 173 F. Supp. 2d 239, 242 (D.N.J. 2001); see
also Smart v.
Santiago, Civil Action No. 15-1065, 2015 WL 2226207, at *6 (D.N.J. May 12, 2015);
Taylor v.

Metzger, 706 A.2d 685, 694-97 (N.J. 1998). In order to be extreme and outrageous,
a defendant’s
conduct must be “so outrageous in character and so extreme in degree as to go beyond
all possible
bounds of decency, and to be regarded as atrocious, and utterly intolerable
in a civilized
15

community.” Taylor, 706 A.2d at 694 (internal quotations omitted). As to intent, a plaintiff must
show that the defendant acted intentionally or recklessly “both to do the act and to
produce
emotional distress.” Id. at 696. Finally, in order to be actionable, the emotional distress must
be
‘so severe that no reasonable person could be expected to endure it.” Id. (internal quotat
ions
omitted).

Complaints which allege “nothing more than aggravation, embarrassment, an

unspecified number of headaches, and loss of sleep” are therefore insufficient to suppor
t a claim
of intentional infliction of emotional distress. Id. (internal quotations omitted). Cogniz
able
claims result from emotional distress that amounts to “severe and disabling emotional
or mental
condition[s] which may be generally recognized and diagnosed.

.

.

including.

.

.

posttraumatic

stress disorder.” Id. (internal quotations omitted).
Here, Plaintiff alleges that Defendants, in their mistreatment of Plaintiffs dental issues,
engaged in extreme or outrageous conduct intentionally designed to inflict emotio
nal distress
which resulted in Plaintiffs embarrassment, humiliation, and ridicule as a result of his
lost teeth.
This Court doubts whether the conduct involved, eschewing the use of fillings and
root canals in
favor of pulling teeth and offering over the counter medicine, is so severe and outrag
eous to
support Plaintiff’s claim. Regardless, even if this Court assumes that the conduc is
t sufficiently
outrageous, Plaintiffs allegations suffer from two further flaws. First, Plaintiffs allegat
ions are
that the policy not to provide fillings was intentionally designed and used to inflict
emotional
distress. Such a claim is dubious at best, asserting that a blanket policy was intenti
onally design

ed

and implemented to cause emotional distress rather than to save money, as Plainti
ff alleges
elsewhere in his complaint. More problematic for Plaintiff, however, is the
second issue: the
emotional distress he alleges is no more than the kind of aggravation, embarr
assment and fear of
16

ridicule that the New Jersey Supreme Court has established is patently insufficient to support
a
claim for intentional infliction of emotional distress. Id. As such, even if this Court were
to
assume that Plaintiff has alleged both outrageous conduct and that Defendants acted intenti
onally
to cause Plaintiff distress, Plaintiff has not alleged a sufficiently severe emotional or mental injury
to support the conclusion that his claim is plausible. As such, his claim must be dismissed withou
t
prejudice.
Finally, Plaintiffprovides a blanket assertion that, in addition to the specifically pled claims
discussed here, Plaintiff wishes to allege multiple claims under either “N.Y. State law and/or N.J.
State law” (ECF No. 2 at 75). Plaintiff does not specify, let alone plead, any claims beyond
those discussed above. To the extent that Plaintiff wishes to bring any other state law claims,
5
he
must plead those claims in an amended complaint, and may not merely assert that he has additional
claims. See Iqbal, 556 U.S. at 678.

While Plaintiff’s complaint contains several more counts, each is an extension of his
1983
claims, specifying alternative theories for the liabilities of the supervisory Defendants. §
This
Court construes those counts to be part of Plaintiffs previously discussed medical claim
under
1983.
17

§

III. CONCLUSION

For the reasons stated above, Plaintiff’s claim for deliberate indifference to medical needs
pursuant to 42 U.S.C.

§ 1983 will be permitted to proceed at this time, although that claim will be

dismissed with prejudice against the Essex County Correctional Facility. Plaintiff’s remain
ing
claims are all dismissed without prejudice as to all Defendants. An appropriate order follow
s.

Hon. sL. Linares, U.S.D.J.
Ap j,2Ol6

18