BARBER v. SGT. STASSER et al
OPINION. Signed by Chief Judge Jose L. Linares on 8/29/17. (sr, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
RONALD JAMES BARBER,
Civil Action No. 16-47 10 (JLL)
SGT. STASSER, eta!.,
LINARES, Chief District Judge.
This matter comes before the Court by way of a motion to dismiss this action, which motion
was filed by Defendants Edith Feldman, R.N. (“Nurse Feldman”) and Rosalind Gratts, L.P.N.
(“Nurse Gratts”) (collectively, the “Nursing Defendants”). (ECF No. 29). Pro se Plaintiff, Ronald
James Barber, has not timely opposed the Nursing Defendants’ motion to dismiss. The Court
decides this motion on the papers and without oral argument, pursuant to Federal Rule of Civil
Procedure 7$. For the reasons stated herein, the Nursing Defendants’ motion to dismiss is denied.
Plaintiff, Ronald James Barber, is an inmate presently confined at the East Jersey State
Prison, Special Treatment Unit, in Avenel, New Jersey. (ECF No. 1, “Cornpl.” at 3). On August
2, 2016, Plaintiff filed a complaint in this matter against a number of Defendants associated with
the Prison, based upon an incident that occurred in the Prison on June 28, 2016.
Plaintiff alleges that on that date, at about 6:40 a.m., Plaintiff was “assigned to serve the North
Unit breakfast.” (Compl. at 12). According to Plaintiff, while he was serving breakfast, a “resident
started arguing and threatening [Plaintiffs] physical being because [Plaintiff] didn’t give him extra
portions.” (Id.). Plaintiff alleges that certain Corrections Officers witnessed the argument, but did
not intervene. (Id.).
According to the Complaint, at 7:10 a.rn. that same morning, the resident who argued with
Plaintiff about the extra breakfast portions “threw an extremely hot substance on [Plaintiff].” (Id.).
Thereafter, Plaintiff began taking his clothes off and yelling out, at which point a code was called
and Plaintiff was handcuffed and taken to medical. (Id.). Plaintiff alleges that “Nurse
Shift Nurse-[Gratts] overlooked [his] skin bubbling.” (Id.). According to Plaintiff, Nurse
Feldman overlooked his skin bubbling “even though she.
was told that the hot substance was
scalding hot water, mixed with bleach.” (Id. at 13). Plaintiff maintains that as a result of the
Nursing Defendants overlooking his burns, he was placed back in lockup without further medical
attention for approximately 11.5 hours. (Id. at 12-13).
On the evening of June 28, 2016, Plaintiff was admitted to Robert Wood Johnson Hospital
for his burns, and was then transferred to Saint Barnabas Hospital. (Id. at 13-14). According to
Plaintiff, a doctor advised him that he had third degree burns on his face, neck, cheek and back.
(Id. at 15). As treatment for his burns, Plaintiff was placed in a hydrotherapy tank and received
pain medication. Plaintiff alleges that he returned to the Prison on July 14, 2016. (Id.). Plaintiff
further alleges that even though Saint Barnabas prescribed him pain medication for his burns, the
medical unit of the Prison took him off the prescribed medication and gave him Tylenol instead,
explaining that the prescription medication was not within the Prison’s budget. (Id. at 15-17). The
Complaint further alleges that the medical unit at the Prison failed to change the dressing on
Plaintiffs burns for a week. (Id.). Plaintiff pleads that he continued to suffer from severe pain
while at the prison because he was not given the prescribed pain medication. (Id. at 17-18).
As to Nurse Feldman in particular, Plaintiff alleges that this Nurse is liable for “not giving
[him] proper medical attention [and thereby] causing [his] burns to elevate to 3 degree burns”
and for “telling the D.O.C. that [Plaintiff] was ok, when [he] wasn’t and refus[ing] to acknowledge
the pain [Plaintiff] was in.” (Id. at 7). As to Nurse Gratts, Plaintiff alleges that she “overlooked
[his] skin bubbling up when rounds [were] made in lock up” and “refused to write a report letting
the higher ups know of [his] skin peeling off.” (Id. at 8).
Against this backdrop, Plaintiff filed the instant action on or about August 2, 2016,
asserting claims against a number of Defendants associated with the Prison, including the Nursing
Defendants, pursuant to. 42 U.S.C.
§ 1983. On August 1, 2017, the Nursing Defendants moved to
dismiss Plaintiffs Complaint. (ECF No. 29, “Defs.’ Br.”). The Nursing Defendants contend that
Plaintiffs claims under Section 1983 must be dismissed because they fail to state a claim under
that statute and that, to the extent Plaintiff is asserting tort claims against the Nursing Defendants,
those claims are barred by Plaintiffs failure to file a timely notice of claim against the Nursing
Defendants under the New Jersey Tort Claims Act.’ Plaintiff has not timely opposed the Nursing
Defendants’ motion. Notwithstanding Plaintiffs failure to oppose this motion, the court finds
that the denial of said motion is warranted at this stage of the litigation.
The Court is guided by the following standards in resolving the Nursing Defendants’
motion to dismiss.
A. Rule 12(b)(6)
Because the Court construes Plaintiffs complaint as asserting a claim against the Nursing
Defendants under 42 U.S.C. § 1983, rather than a claim for medical malpractice and/or medical
negligence, the Court need not consider the Nursing Defendants’ argument that any claims
sounding in tort are barred under the New Jersey Tort Claims Act.
It is not necessary for the Court to restate the standard for resolving a motion made pursuant
to Rule 1 2(b)(6), because that standard has been already enunciated. See Marlotti v Marlotti Bldg.
Prods., Inc., 714 F.3d 761, 764—65 (3d Cir. 2013) (setting forth the standard; citing Belt Att. Corp.
Twombty, 550 U.S. 544 (2007)); fowler v. UPMC Shadyside, 578 F.3d 203, 209—12 (3d Cir.
2009) (setting forth the standard; citing Twombly and Ashcroft v. Iqbal, 556 U.S. 662 (2009)).
B. Unopposed Motion to Dismiss
Plaintiff has not opposed the pending motion to dismiss his Complaint. However, the Court
must still address said motion on the merits even though it is unopposed.
See Jones v.
Unemployment Compensation Bd. ofReview, 381 F ed.Appx. 187, 189 (3d Cir. 2010); Stackhouse
Mazurkiewicz, 951 F.2d 29, 30 (3d Cir. 1991).
C. Liberal Construction of Pro Se Pleadings
The Court, in addressing the instant motion: (1) construed the Pro se Plaintiffs claims
liberally; and (2) accepted all of Plaintiffs factual allegations as true, construed the claims in the
light most favorable to the plaintiff, and considered whether Plaintiff may be entitled to relief in
federal court under any reasonable reading of those claims. See Kisseti v. Dep ‘t of Corrs., 634
Fed.Appx. 876, 878—79 (3d Cir. 2015) (citing Iqbal, Twombty, Erickson v. Pardtts, 551 U.S. 89
(2007), and Phillips v. County ofAllegheny, 515 F.3d 224 (3d Cir. 2008)).
D. 42 U.S.C.
A plaintiff may have a cause of action under 42 U.S.C.
1983 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
§ 1983. Thus, to establish a cause of action under Section 1983, a plaintiff must
demonstrate that: (1) there was a violation of a right secured by the Constitution and laws of the
United States, and (2) the alleged violation was committed by a person acting under color of state
law. West v. Atkins, 487 U.S. 42, 48 (198$) (citations omitted).
In this case, Plaintiff relies upon 42 U.S.C.
§ 1983 as a basis for this Court’s subject matter
jurisdiction. (Compi. at 2). Although Plaintiff, a Pro se litigant, has not specifically identified the
causes of action he seeks to assert against each of the named Defendants, the court construe’s
Plaintiffs allegations of “deliberate indifference” to his medical needs (Compi. at 14,18) as
asserting a violation of his Eight Amendment right to be free from “cruel and unusual punishment.”
“The Eight Amendment prohibits the imposition of ‘ulmecessary and wanton infliction of
pain contrary to contemporary standards of decency.” Rouse v. P/antler, 182 F.3d 192, 197 (3d
Cir. 1999) (quoting Helling v. McKinney, 509 U.S. 25, 32 (1993)). As such, prison officials are
required “to provide basic medical treatment to those whom [are] incarcerated.” Id. (citing Estel/c
v. Gamble, 429 U.S. 97 (1976)). Thus, to state a claim for an Eight Amendment violation under
Section 1983, “a prisoner must allege acts or omissions sufficiently harmful to evidence deliberate
indifference to serious medical needs.” Estelle, 429 U.S. at 106; see also Rouse, 182 F.3d at 197.
Here, the Nursing Defendants argue that Plaintiff has failed to plead that they were
deliberately indifferent to Plaintiffs medical needs—a standard that, as the Nursing Defendants
note, requires more than medical negligence and/or medical malpractice. (Defs.’ Br. at 5-6).
Specifically, the Nursing Defendants contend that Plaintiffs allegations that they did
“proper” medical care and “overlooked” his injuries sound in tort claims of medical negligence
and/or malpractice rather than a claim for an Eight Amendment violation. (Id.). The Court
Reviewing Plaintiffs Complaint in its totality, and construing that Complaint liberally as
the Court must in the case of a Pro se Plaintiff, the Court finds that at this early stage in the
litigation, Plaintiff has sufficiently plead a claim against the Nursing Defendants for deliberate
indifference to his serious medical needs. In summary, Plaintiff has alleged that the Nursing
Defendants disregarded the fact that his skin was bubbling up from burns, therefore allowing
Plaintiff to remain in lockup without necessary medical treatment for over eleven hours. Further,
Plaintiff has alleged that the Nursing Defendants were aware of his bums at the time that they
failed to act. As the Supreme Court has noted, a plaintiff can satisfy the deliberate indifference
standard where the prison “official acted or failed to act despite [her] knowledge of a substantial
risk of serious hanm” Farmer v. Brennan, 511 U.S. 825, 842 (1994). Plaintiff has pled as such.
For the reasons stated herein, the Nursing Defendants’ motion to dismiss Plaintiffs
Complaint (ECF No. 29) is denied. An appropriate Order accompanies this Opinion.
IT IS SO ORDERED.
CHIEF JUDGE, U.S. DISTRICT COURT
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