NIBLACK v. RUTGERS UNIVERSITY et al

Filing 53

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

NOT FOR PUBLICATION
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
NEWARK VICINAGE

STANLEY L. NIBLACK,
Plaintiff,
v.
RUTGERS UNIVERSITY, et al.,
Defendants.

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Civil Action No. 16-504 (JMV)

OPINION

Plaintiff filed this civil rights action in Hudson County Superior Court in New Jersey on
December 14, 2015. (ECF No. 1 at 8-13.) Defendants removed the action to this Court on January
28, 2016 (ECF No. 1 at 1-5), and filed an answer on February 4, 2016. (ECF No. 3.) Discovery
commenced. (ECF No. 43.) This matter comes before the Court upon Plaintiff’s motion for leave
to file an amended complaint (ECF No. 45), and Plaintiff’s motion to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915, because he seeks assistance with service on additional defendants.
(ECF No. 41.) For the reasons discussed below, the Court denies Plaintiff’s IFP application,
dismisses the § 1983 claims with prejudice pursuant to 42 U.S.C. § 1997e(c)(1), denies the motion
for leave to file an amended complaint, and remands the State law claims to State court.
I.

IN FORMA PAUPERIS APPLICATION
On May 17, 2017, Plaintiff filed an application to proceed in forma pauperis, pursuant to

28 U.S.C. § 1915. (ECF No. 41.) 28 U.S.C. § 1915(g) provides:
(g) In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section if the
prisoner has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a court of the

United States that was dismissed on the grounds that it is frivolous,
malicious, or fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious physical
injury.
Plaintiff has at least three prior matters that bring him within the strictures of Section
1915(g), and he has not alleged that he is in under imminent danger of serious injury. See Niblack
v. Osterbye, Civ. No. 97-1529 (MLC) (D.N.J.); Niblack v. Miller, Civ. No. 97-1530 (MLC)
(D.N.J.); Niblack v. Osterbye, Civ. No. 98-3083(MLC). The Court therefore denies Plaintiff’s
motion to proceed in forma pauperis under 28 U.S.C. § 1915.
II.

SCREENING THE COMPLAINT
A.

42 U.S.C. § 1997e(c)(1)

Plaintiff’s complaint is subject to screening pursuant to 42 U.S.C. § 1997e(c)(1), which
provides:
(c) Dismissal
(1) The court shall on its own motion or on the motion of a
party dismiss any action 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 if the court is satisfied that the
action is frivolous, malicious, fails to state a claim upon
which relief can be granted, or seeks monetary relief from a
defendant who is immune from such relief.
(emphasis added). See Grayson v. Mayview State Hosp., 293 F.3d 103, 109 n. 11 (3d Cir. 2002)
( noting that the screening provision of § 1997e(c)(1) is applicable “throughout the entire litigation
process.”)
Plaintiff asserts he has a constitutional right, under the United States Constitution, the New
Jersey Constitution, and the New Jersey Civil Rights Act, to have accurate information in his
medical records. (Id. at 11, ¶32.) Plaintiff brings this action under 42 U.S.C. § 1983, alleging the

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defendants violated his Eighth Amendment right to adequate medical care, and he asserts
supplemental state law claims. (Id., ¶1.) The medical treatment a prisoner receives is a “condition
of confinement.” See e.g. Inmates of Allegheny County Jail v. Pierce, 612 F.2d 754 (3d Cir.
1979). Therefore, the court must screen the complaint pursuant to 42 U.S.C. § 1997e(c)(1).
C.

The Complaint

Plaintiff alleges he was not given a physical examination “for the assessment
center/halfway house application” on August 22, 2013 or January 9, 2013, as noted in his medical
records by Dr. Joseph Bentivegna. (ECF No. 1, ¶¶20, 21.) Furthermore, Plaintiff contests Dr.
Bentivegna’s statement that Plaintiff did not have work limitations, because Dr. Bentivegna had
entered work restrictions in Plaintiff’s files prior to making this statement. (Id., ¶22.)
Plaintiff further alleges Dr. Beverly Timmons conducted a medication spot check on him
for trazadone on April 3, 2014, but she failed to record this spot check in Plaintiff’s medical
records. (Id., ¶¶ 23, 24.) Plaintiff complained, to no avail, about these inaccuracies in his medical
records to the following defendants: John Powell, Ralph Woodward, Gary M. Lanigan, Dr. Jeffrey
Dickert, Dr. Arthur Brewer, Robert Barchi, Margaret Reed, and Cindy Romano. (Id., ¶26.)
Plaintiff alleges the defendants failed to keep accurate medical records, and failed to correct
inaccurate medical records, in violation of the United States and New Jersey Constitutions; New
Jersey Civil Rights Act of 2004, §§ 10:6-1, 10:6-2; and New Jersey Administrative Code 10A.
(Id., ¶¶1-2, 27-40.)
D.

Analysis

Prisoners have a constitutional right under the Eighth Amendment of the United States
Constitution to adequate medical care. Estelle v. Gamble, 429 U.S. 97, 103 (1976). “[D]eliberate
indifference to serious medical needs of prisoners constitutes the ‘unnecessary and wanton

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infliction of pain,’ Gregg v. Georgia, [428 U.S. 153,] 173 [(1976)] ((joint opinion), proscribed by
the Eighth Amendment.” Id. at 104. Medical malpractice is not a constitutional violation. Id. at
105-6. Deliberate indifference can be demonstrated “where the prison official (1) knows of a
prisoner's need for medical treatment but intentionally refuses to provide it; (2) delays necessary
medical treatment based on a non-medical reason; or (3) prevents a prisoner from receiving needed
or recommended medical treatment.” Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999) (citing
Durmer v. O’Carroll, 991 F.2d 64, 68 (3d Cir. 1993)).
Here, Plaintiff does not complain about the care he received; he complains of the
information recorded in his medical records by his treating providers. Specifically, he alleges he
did not have a physical examination in connection with his halfway house application, and his
physician(s) failed to note that he had work limitations that had been recorded in earlier records.
These allegations do not demonstrate that Plaintiff had a serious medical need, and that the
defendants were deliberately indifferent to that need by refusing to provide treatment, delaying
treatment for non-medical reasons, or that they prevented him from receiving needed treatment.
Thus, the Court dismisses the § 1983 claims in the complaint pursuant to 42 U.S.C. § 1997e(c)(1)
because Plaintiff fails to state an Eighth Amendment claim.
III.

MOTION FOR LEAVE TO FILE AMENDED COMPLAINT
In the proposed amended complaint, Plaintiff alleges “as a result of defendants failure to

keep and maintain accurate medical records plaintiff was placed at serious risk of harm or injury
in violation of the Eighth and Fourteenth Amendments of the United States Constitution, New
Jersey Constitution and laws thereof further violated.” (ECF No. 45-3, ¶30.) In addition to the
allegations alleged in the original complaint, Plaintiff adds that Dr. Jeffrey Pomerantz did not
conduct a physical examination of Plaintiff in July or August 2015, as is stated in the medical

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records. (Id., ¶25.) Further, according to Plaintiff, Dr. Pomerantz falsely stated that Plaintiff did
not have work limitations. (Id.) Plaintiff alleges that on June 28, 2016, Dr. Lisa Renee Mills
informed Plaintiff that he may have carpal tunnel in his fingers, and therefore he should not write
or type, but she did not document this limitation in his medical records. (Id., ¶26.) In January
2017, Dr. Jennifer Farestad did not conduct a physical examination for Plaintiff’s halfway house
placement, and she falsely stated that Plaintiff had no work limitations although she was aware
that he did. (Id., ¶27.) Plaintiff alleges the defendants cut costs by not conducting office visits
and physical examinations prior to community release placement. (Id., ¶36.)
Leave to amend a complaint should be freely given as justice requires. Arthur v. Maersk,
Inc., 434 F.3d 196, 203 (3d Cir. 2006). Denial of leave to amend is justified when the amended
complaint fails to state a claim upon which relief may be granted. In re Burlington Coat Factory
Securities Litigation, 114 F.3d 1410, 1434 (3d Cir. 1997) (citation omitted).
The only medical condition Plaintiff has identified is the possibility of carpal tunnel in his
fingers. The only deficiency in treatment he complains of is failure to conduct a physical
examination for halfway house assessment and failure to put a work limitation (for not writing or
typing) in his medical records. Plaintiff has not identified a serious medical need or deliberate
indifference to that need. Even if carpal tunnel in the fingers is considered a serious medical need,
Plaintiff has not alleged he was not provided treatment, only that a work limitation was not placed
in his record. This amounts to no more than Plaintiff’s disagreement with his physicians’ medical
opinion. “Disagreements over medical judgment or treatment cannot form the basis of an Eighth
Amendment claim.” Quinn v. Palakovich, 204 F. App’x 116, 119 (3d Cir. 2006) (citing White v.
Napoleon, 897 F.2d 103, 110 (3d Cir. 1990)). Therefore, Plaintiff has not cured the deficiencies
in his § 1983 claims. Amendment of the § 1983 claims is futile because failure to provide a

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physical examination in connection with halfway house placement does not constitute
cosntitutional denial of a serious medical need. Therefore, dismissal of the § 1983 claims is with
prejudice. Because the complaint contains only state law claims, the Court declines to exercise
supplemental jurisdiction over the state law claims, and the Court will remand the case back to
state court. See Carlsbad Technology, Inc. v. HIF Bio, Inc., 556 U.S. 635, 640 (2009) (once a
court determines that a complaint fails to state a federal claim, the district court has discretion to
decide whether to exercise supplemental jurisdiction over state law claims under 28 U.S.C. § 1367)
(citing 13D C. Wright, A. Miller, E. Cooper, & R. Freer, Federal Practice and Procedure § 3567.3,
pp. 428–432 (3d ed. 2008)).
III.

CONCLUSION
For the reasons discussed above, (1) the Court denies Plaintiff’s application to proceed in

forma pauperis under 28 U.S.C. § 1915; (2) dismisses the § 1983 claims pursuant to 42 U.S.C. §
1997e(c)(1) for failure to state a claim upon which relief may be granted, (3) denies Plaintiff’s
motion for leave to file an amended complaint; and (4) declines to exercise supplemental
jurisdiction over Plaintiff’s state law claims and remands the matter to State court An appropriate
Order accompanies this Opinion.

s/ John Michael Vazquez
JOHN MICHAEL VAZQUEZ
United States District Court

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