DORSAINVIL v. PEIM et al

Filing 71

OPINION. Signed by Judge Esther Salas on 3/24/2020. (lag, )

Not for Publication
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

WEDPENS DORSAINVIL,
Plaintiff,
v.
STUART L. PEIM, et al.,
Defendants.

:
:
:
:
:
:
:
:
:
:
:

Civil Action No. 15-3035 (ES)
OPINION

SALAS, DISTRICT JUDGE
This matter is before the Court upon separate motions to dismiss filed by defendant Carol
Gallagher (D.E. No. 60) and defendant Alejandrina Sumicad (D.E. No. 61). Defendants Gallagher
and Sumicad (collectively, “Defendants”) seek to dismiss the second amended complaint (D.E.
No. 56 (“SAC”)) filed by plaintiff Wedpens Dorsainvil (“Plaintiff”) pursuant to Federal Rule of
Civil Procedure 12(b)(6). Plaintiff filed oppositions to the motions to dismiss (D.E. Nos. 62 & 67)
and Defendants filed replies (D.E. Nos. 65 & 70). Having considered the parties’ submissions, the
Court decides this matter without oral argument. See Fed. R. Civ. P. 78(b); L. Civ. R. 78.1.
As set forth below, the Court DENIES Defendants’ motions to dismiss.
I.

Background 1
On or about December 16, 2012, while confined at New Jersey State Prison, Plaintiff

awoke with the left side of his face, neck, and upper chest paralyzed. (SAC ¶ 9). Plaintiff was
given an emergency medical pass to the infirmary, and upon arrival, Plaintiff was examined by

1

The Court must accept Plaintiff’s factual allegations as true for purposes of resolving the pending motions to
dismiss. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bistrian v. Levi, 696 F.3d 352, 358 n.1 (3d Cir. 2012).

Nurse Carver. (Id. ¶¶ 11– 12). Nurse Carver informed Plaintiff that he was suffering from Bell’s
palsy, and that he would have to wait until Monday because doctors do not work on weekends at
New Jersey State Prison. (Id. ¶ 11). On Monday, because he had not been called to the medical
department to be seen by medical personnel, Plaintiff complained to the shift officer about strokelike symptoms and was given an emergency medical pass. (Id. ¶¶ 12–13). Defendant Gallagher
again diagnosed Plaintiff with Bell’s palsy and explained that Plaintiff had a swelling of a cranial
nerve caused by a virus. (Id. ¶ 14). Defendant Gallagher gave Plaintiff an eye patch, eye drops,
and medication that allegedly had no effect on Plaintiff’s condition. (Id. ¶ 15).
Plaintiff continued to experience extreme pain coupled with an inability to chew food. (Id.
¶ 16). After a few weeks, Plaintiff was referred back to medical for a follow-up. (Id. ¶ 17).
Because there were no noticeable signs of improvement, Plaintiff asked if there were any other
medications he could take because he had been informed of a “second medication.” (Id. ¶ 18).
Defendant Gallagher stated, “no” but assured Plaintiff that Plaintiff had nothing to worry about
because the condition normally corrects itself in 2 weeks to 6 months. (Id. ¶ 19). Nevertheless,
Plaintiff was given another cycle of prednisone. (Id. ¶ 19). In late February 2013, Plaintiff
demanded that he be given Acyclovir, a drug which had been prescribed to other inmates with the
same condition and resulted in their full recoveries. (Id. ¶ 20). Plaintiff finally received Acyclovir
in late March 2013. (Id. ¶ 21). Within 2 weeks of taking that medication, Plaintiff partially
regained some muscle movement of the face and neck area. (Id. ¶ 21).
On or about June 2013, Plaintiff was again scheduled for a follow-up treatment at the
conclusion of the 90-day cycle of Acyclovir. (Id. ¶ 22). Although there was a little improvement,
Plaintiff complained of involuntary facial movements, as well as extreme pain when he talked and
chewed. (Id. ¶ 23). Plaintiff then requested physical therapy to strengthen facial and neck muscles

2

to aid in a full recovery. (Id. ¶ 24). The request for physical therapy was denied by medical staff,
and Plaintiff was told that “there was nothing more that could be done,” that he had to be “patient
and wait for self-recovery.” (Id. ¶ 25) (internal quotation marks omitted). Despite the fact that
her prediction of 2 weeks to 6 months for a full recovery was wrong, Defendant Gallagher assured
Plaintiff that “everything would go back to normal if he would just be patient.” (Id. ¶ 26). Further,
even though she claimed that physical therapy would not work, Defendant Gallagher advised
Plaintiff to “massage his face” in an upward motion to avoid any further drooping. (Id. ¶ 27). In
or about August 2013, Plaintiff again requested physical therapy because his condition had not
improved. (Id. ¶ 28). His request was denied again, and he was again advised to be patient. (Id.).
Plaintiff continued to request physical therapy over the next ten months, but his requests were
allegedly denied or ignored. (Id. ¶¶ 29–31).
Plaintiff was thereafter transferred to several different facilities and ultimately ended up at
East Jersey State Prison in June 2015. (Id. ¶ 38). At that time, Defendant Sumicad saw Plaintiff
for his Bell’s palsy, the extreme pain he suffered when chewing and talking, and the vision
problems and severe dryness of his left eye. (Id. ¶ 39). Defendant Sumicad prescribed an artificial
tears solution and a lubricant eye ointment to prevent dryness and possible blindness. (Id. ¶ 40).
However, she informed Plaintiff that she would not recommend physical therapy. (Id.). When
Plaintiff informed Defendant Sumicad that Plaintiff would “write the incident up,” Defendant
Sumicad said that it would not do any good because “they do not provide physical therapy.” (Id.
¶ 44).
In response to the SAC, both Defendants filed motions to dismiss. (D.E. Nos. 60 & 61).
Both Defendants argue that the SAC should be dismissed because it impermissibly included a

3

negligence claim for which Plaintiff did not seek permission. 2 (D.E. No. 60-1 (“Gallagher Mov.
Br.”) at 6; D.E. No. 61-1 (“Sumicad Mov. Br.”) at 4). Defendants also argue that the SAC fails to
state a claim upon which relief can be granted. (Gallagher Mov. Br. at 8; Sumicad Mov. Br. at 6).
In addition, Defendant Gallagher argues that the claim against her is time-barred. (Gallagher Mov.
Br. at 7).
II.

Legal Standard
To survive a motion to dismiss under Rule 12(b)(6), “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” See Iqbal,
556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when Plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. “The plausibility standard
is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. Determining whether there is “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.” Id. at 679.
“When reviewing a motion to dismiss, ‘[a]ll allegations in the complaint must be accepted
as true, and Plaintiff must be given the benefit of every favorable inference to be drawn
therefrom.’” Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011) (alteration in original) (quoting
Kulwicki v. Dawson, 969 F.2d 1454, 1462 (3d Cir. 1992)). But the court is not required to accept

2
In light of Plaintiff’s pro se status, the Court will not dismiss the SAC in its entirety even if Plaintiff failed
to strictly adhere to Magistrate Judge Dickson’s Orders issued on April 1, 2019, and July 2, 2019 (D.E. Nos. 45 & 55)
and asserts a claim for negligence for which Plaintiff had not specifically sought permission. See, e.g., Fed. R. Civ.
P. 15(a)(2) (leave to amend pleadings is to be freely given); Foman v. Davis, 371 U.S. 178, 182 (1962) (the decision
to grant leave to amend rests within the discretion of the court).

4

as true “legal conclusions,” and “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
The inquiry is “normally broken into three parts: (1) identifying the elements of the claim,
(2) reviewing the complaint to strike conclusory allegations, and then (3) looking at the wellpleaded components of the complaint and evaluating whether all of the elements identified in part
one of the inquiry are sufficiently alleged.” Malleus, 641 F.3d at 563.
Finally, “[i]n deciding a Rule 12(b)(6) motion, a court must consider only the complaint,
exhibits attached to the complaint, matters of the public record, as well as undisputedly authentic
documents if the complainant’s claims are based upon these documents.” Mayer v. Belichick, 605
F.3d 223, 230 (3d Cir. 2010); see also Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260 (3d
Cir. 2006) (“In evaluating a motion to dismiss, we may consider documents that are attached to or
submitted with the complaint, and any matters incorporated by reference or integral to the claim,
items subject to judicial notice, matters of public record, orders, and items appearing in the record
of the case.”) (internal quotation marks, textual alterations, and citations omitted).
III.

DISCUSSION
A.

Statute of Limitations

Defendant Gallagher argues that all allegations of wrongdoing by her in the SAC occurred
more than two years before the filing of the First Amended Complaint in December 3, 2015, and
therefore must be dismissed as barred by the statute of limitations. (Gallagher Mov. Br. at 7).
“[A] § 1983 claim is governed by the statute of limitations that applies to personal injury
tort claims in the state in which such a claim arises.” Kach v. Hose, 589 F.3d 626, 639 (3d Cir.
2009); accord Wallace v. Kato, 549 U.S. 384, 387 (2007); Cito v. Bridgewater Twp. Police Dep’t,
892 F.2d 23, 25 (3d Cir. 1989). Additionally, a state’s tolling principles also govern § 1983 claims

5

when they do not conflict with federal law. Kach, 589 F.3d at 639. Under New Jersey law, there
is a two-year statute of limitations period for personal-injury torts. N.J. Stat. Ann. § 2A:14-2 (West
2019). The date that a cause of action accrues under § 1983, however, is a matter of federal law.
See Kach, 589 F.3d at 634. Under federal law, a cause of action accrues, and the statute of
limitations begins to run, when the plaintiff knew or should have known of the injury. Id.
Defendant Gallagher argues that the only alleged wrongdoing Plaintiff attributes to her
occurred in December 2012 (and a few weeks after that) and in June 2013, and Plaintiff’s claim
against her therefore accrued at that time. (Gallagher Mov. Br. at 7). As a result, Plaintiff’s claim
against her was filed six months past the expiration of the two-year statute of limitations. (Id.).
In the SAC, Plaintiff specifically alleges that, in June 2013, he saw Defendant Gallagher
for a follow-up, at which time he requested physical therapy. (SAC ¶¶ 22–26). Defendant
Gallagher allegedly denied his request and advised him to “be patient.” (Id. ¶ 26). Plaintiff also
alleges that he again requested physical therapy in August 2013 and was told again to “be patient”
(Id. ¶ 28). Moreover, Plaintiff states that, in December 2013, he wrote a request for physical
therapy, but that request went unanswered. (Id. ¶ 29). While Defendant Gallagher is correct that
Plaintiff does not specifically use her name while discussing the events in or around December
2013, throughout this particular section of the SAC, Plaintiff is not making allegations against any
other defendants. (See Id. ¶¶ 22–29). Plaintiff does not identify another defendant until Paragraph
30, where he discussed Defendant Lang. While it would have been preferable for Plaintiff to
specifically use Defendant Gallagher’s name in connection with the allegation of continued
requests for physical therapy in December 2013, based on the surrounding paragraphs and liberally
construing the SAC, the Court finds that Plaintiff has sufficiently alleged that he was still seeking
and being denied physical therapy by Defendant Gallagher in December 2013. See Erickson v.

6

Pardus, 551 U.S. 89, 94 (2007) (courts must liberally construe pleadings that are filed pro se).
Because Defendant Gallagher does not address the allegation of wrongdoing in December 2013,
her request for dismissal of the medical care claim as untimely is denied.
B.

Denial of Medical Care

Both Defendants move to dismiss the SAC for failure to state a claim against them.
The Eighth Amendment’s proscription against cruel and unusual punishment requires that
prison officials provide inmates with adequate medical care. Estelle v. Gamble, 429 U.S. 97, 103–
04 (1976). In order to set forth a cognizable claim for the violation of adequate medical care, an
inmate must allege: (1) a serious medical need, and (2) behavior on the part of prison officials that
constitutes deliberate indifference to that need. Id. at 106; Natale v. Camden Cty. Corr. Facility,
318 F.3d 575, 582 (3d Cir. 2003).
“A medical need is serious if it ‘has been diagnosed by a physician as requiring treatment,’
or if it ‘is so obvious that a lay person would easily recognize the necessity for a doctor’s
attention.’” See Mitchell v. Beard, 492 F. App’x 230, 236 (3d Cir. 2012) (quoting Monmouth Cty.
Corr. Institutional Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987)). The seriousness of an
inmate's medical need “may also be determined by reference to the effect of denying the particular
treatment.” Monmouth Cty. Corr. Institutional Inmates, 834 F.2d at 347. “For instance, Estelle
makes clear that if ‘unnecessary and wanton infliction of pain’ results from denial or delay in the
provision of adequate medical care, the medical need is of the serious nature contemplated by the
eighth amendment.” Id. at 347 (quoting Estelle, 429 U.S. at 105).
“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. Farmer v. Brennan, 511 U.S. 825, 835–
36 (1994). The Third Circuit has found deliberate indifference where a prison official: “(1) knows

7

of a prisoner’s need for medical treatment but intentionally refuses to provide it; (2) delays
necessary medical treatment based on a nonmedical reason; or (3) prevents a prisoner from
receiving needed or recommended treatment.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).
Deliberate indifference can also be found “where the prison official persists in a particular course
of treatment ‘in the face of resultant pain and risk of permanent injury.’” Id. (quoting White v.
Napoleon, 897 F.2d 103, 109 (3d Cir. 1990)).

“Prison officials may not, with deliberate

indifference to the serious medical needs of the inmate, opt for an easier and less efficacious
treatment of the inmate’s condition.” Monmouth Cty. Corr. Institutional Inmates, 834 F.2d at 347
(internal quotation marks and citation omitted). Finally, Courts give deference to prison medical
authorities in the diagnosis and treatment of patients, and “disavow any attempt to second-guess
the propriety or adequacy of a particular course of treatment . . . (which) remains a question of
sound professional judgment.” Inmates of Allegheny Cty. Jail v. Pierce, 612 F.2d 754, 762 (3d
Cir. 1979) (alteration in original) (quoting Bowring v. Godwin, 551 F.2d 44, 48 (4th Cir. 1977)).
Both Defendants argue that Plaintiff has failed to allege that he suffered from a serious
medical need. (Gallagher Mov. Br. at 10; Sumicad Mov. Br. at 7). Specifically, Defendants
contend that Plaintiff has not “alleged any facts to show any denial of treatment by [Drs. Gallagher
or Sumicad] that caused him either a life-long handicap or permanent loss; or that [they]
unnecessarily and wantonly inflicted pain on Plaintiff.” (Gallagher Mov. Br. at 10; Sumicad Mov.
Br. at 7). Defendants are incorrect. Several times in his SAC, Plaintiff states that he was in
“extreme pain” when he talked and chewed. (SAC ¶¶ 16, 23 & 39). Certainly, allegations of
months of “extreme pain” would qualify as a serious medical need. See Estelle, 429 U.S. at 105.
Defendants also argue that Plaintiff has not alleged deliberate indifference. (Gallagher
Mov. Br. at 10–12; Sumicad Mov. Br. at 7–9). Relying on Green v. Mazzone, No. 99-3190, 2002

8

WL 1636709 (D.N.J. July 19, 2002), Defendants argue that Plaintiff merely disagrees with
Defendants’ medical decisions not to order physical therapy and to treat his condition in other
ways. (Gallagher Mov. Br. at 11–12; Sumicad Mov. Br. at 8–9). The Court again disagrees.
According to the allegations of the SAC, Defendants persisted in a treatment course (i.e. denial of
Acyclovir for two months and denial of physical therapy for two years), which resulted in “extreme
pain” for Plaintiff. (SAC ¶¶ 16, 23 & 39). Viewing the allegations in light most favorable to
Plaintiff, the SAC plausibly alleged that Defendants are deliberately indifferent to Plaintiff’s
medical needs. See White, 897 F.2d at 109. Additionally, when denying physical therapy, Dr.
Sumicad simply stated that “they do not provide physical therapy” (SAC ¶ 44), which could
suggest a decision by her to “opt for ‘an easier and less efficacious’ treatment of the inmate’s
condition.” See Monmouth Cty. Corr. Institutional Inmates, 834 F.2d at 347 (quotations omitted)
(quoting West v. Keve, 571 F.2d 158, 162 (3d Cir. 1978)). The Court is unable to conclude, at this
motion to dismiss stage, that Plaintiff is merely “disagreeing” with the treatment decisions by
Defendants. Defendants’ reliance on Green does not change this conclusion, because Green was
at the summary judgment stage, with the benefit of a full record. See Green, 2002 WL 1636709,
at *1–3. As such, the Court will deny Defendants’ motions to dismiss.
IV.

CONCLUSION
Based on the foregoing, Defendants’ motions to dismiss are DENIED. An appropriate

order follows.

s/Esther Salas
Esther Salas, U.S.D.J.

9