MCFADDEN v. PASSAIC COUNTY
Filing
65
OPINION. Signed by Judge Katharine S. Hayden on 3/1/19. (cm, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
KENDELL SHAREEK MCFADDEN,
Plaintiff,
v.
PASSAIC COUNTY, et al.,
Defendants.
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Civil Action No. 17-11670 (KSH/CLW)
OPINION
HAYDEN, United States District Judge:
I.
INTRODUCTION
This matter comes before the Court upon separate motions to dismiss filed by: (i)
Defendants Corizon Health of New Jersey, Corizon Health, and CHI Company (collectively,
“Corizon”) (at ECF No. 31); and (ii) Defendant Joseph Girone (“Girone”) (at ECF No. 56). In
their respective motions, Corizon and Girone each move, pursuant to Federal Rule of Civil
Procedure 12(b)(6), to dismiss Counts III and IV of Plaintiff Kendell Shareek McFadden’s
(“McFadden’s”) Fourth Amended Complaint (at ECF No. 30). For the reasons detailed below,
both motions as to Count III only; that is the lone federal claim asserted in McFadden’s Fourth
Amended Complaint and dismissal of that claim is with prejudice. The Court will not exercise
supplemental jurisdiction over McFadden’s additional state law claims, including Count IV, and
will instead remand this matter to state court.
II.
BACKGROUND
On June 8, 2015, McFadden, then a Passaic County Jail (“PCJ”) inmate, sustained
significant burns after a pot of boiling water accidentally fell on him while he was working in
PCJ’s kitchen. (See, e.g., Corizon’s Br. in Supp. of Mot. to Dismiss, ECF No. 31-5 at PageID:
1031). By way of this lawsuit, McFadden seeks monetary compensation for, inter alia, the
purported lack of appropriate medical treatment he subsequently received from PCJ-affiliated
medical personnel, including Corizon and Girone. (See, generally, ECF No. 30). The Honorable
Cathy L. Waldor, U.S.M.J., succinctly summarized the less-than-straightforward procedural
history culminating in McFadden’s filing of his current complaint as follows:
[McFadden initiated this lawsuit via the filing of his original
complaint] in New Jersey Superior Court on February 24, 2017,
alleging state and federal claims . . . . On April 6, 2017, [Corizon]
removed that action to federal court. [(See Civil Action No. 172332 at ECF No. 1).] The case was remanded to state court because
all Defendants did not unanimously consent to the removal, and
[that earlier, related] federal action was terminated. [(See Civil
Action No. 17-2332 at ECF No. 8).] Subsequently, [Defendants
Passaic County, Anthony J. De Nova III, Passaic County Sheriff
Richard H. Berdnick, Michael Tolerico, Richard A. Ashley, Joshua
S. Rojas, Joseph Greco, and Gregory DeFranco (the “Passaic
County Defendants”)] filed a Motion to Dismiss [in state court],
which was partially granted without prejudice, with leave to amend
the complaint. (ECF No. 20-20). [McFadden] filed an Amended
Complaint in state court on November 13, 2017. (ECF No. 20-1 at
p. 3). On November 15, 2017, [McFadden] filed a Second
Amended Complaint in the state court action, which [purportedly]
clarified that certain counts applied only to [Corizon]. (ECF No.
20-1 at p. 4).
On November 16, 2017, the Passaic County Defendants, with the
consent of all Defendants, removed the Amended Complaint to this
Court. (ECF No. 1). On November 29, 2017, [Corizon], with the
consent of all Defendants, removed [McFadden’s] Second Amended
Complaint to this Court. (ECF No. 3). [McFadden responded by
filing a motion to remand this matter to state court on December 11,
2017. (ECF No. 4). In addition, subsequent] to the removal of the
action to this Court, [McFadden] filed a Third Amended Complaint
in state court. (ECF No. 20-1 at p. 6). This Third Amended
Complaint [was never] filed in the instant federal action.
[McFadden] then filed a Motion for Leave to File a Fourth Amended
Complaint in this action on February 5, 2018. (ECF No. 13). On
February 21, 2018, [Judge Waldor] terminated [McFadden’s]
Motion[s for Leave to File a Fourth Amended Complaint and to
remand this matter to state court] and directed [McFadden] to refile
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[those] Motion[s] consistent with this Court’s local rules and
protocols.
(ECF No. 29). Thereafter, on April 11 and 12, 2018, respectively, McFadden filed renewed
motions: (i) for leave to file the Fourth Amended Complaint (at ECF No. 20); and (ii) to remand
this matter to state court (at ECF No. 21). Corizon opposed both motions (at ECF Nos. 23 and
24). Judge Waldor granted McFadden’s motion to file his amended pleading on June 20, 2018
(at ECF No. 29), and thereafter denied McFadden’s remand motion (at ECF No. 38).
On June 22, 2018, McFadden filed his four-count, Fourth Amended Complaint (at ECF
No. 30). Count I (negligence by public entities), Count II (willful, wanton, and reckless conduct
by public entities), and Count IV (denial of medical care in violation of N.J. Const. art. 1, ¶ 12),
all seek relief under state law; Count III (denial of medical care in violation of U.S. Const. amend.
VIII) is the only count which asserts a cause of action under federal law. (Id. at p. 17). Count
III is asserted against Corizon and Girone only. (Id.; see also ECF No. 60).
McFadden’s pleading contains the following pertinent factual allegations: Corizon is a
for-profit private entity that provides medical services to jails and prisons, including PCJ. (ECF
No. 30 at ¶¶ 22-23). Girone is an agent, servant and/or employee of Corizon who provides
medical care to PCJ inmates. 1 (Id. at ¶¶ 24-26). On June 8, 2015, Plaintiff was an inmate
confined at PCJ. (Id. at ¶ 31). At an unspecified time on that day, a large pot of boiling water
tipped over and severely burned McFadden while he was working in PCJ’s kitchen. (Id. at ¶¶ 33,
45). In response, McFadden “ran to the jail infirmary” for medical treatment. (Id. at ¶ 48).
Girone and another Corizon-affiliated nurse, identified in McFadden’s pleading as Tom Roe, were
McFadden’s pleading fails provide any further details about Girone’s professional background
and specific roles within Corizon and at PCJ. It is nonetheless clear that Girone is a Corizonaffiliated doctor who works in PCJ’s infirmary. (See ECF Nos. 31 and 56).
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present in the infirmary at that time. (Id. at ¶¶ 50-51). Neither Girone nor Nurse Roe examined
McFadden, notwithstanding that they were “aware that [McFadden] had been burned [on] much
of his body including his legs, hands and forearms.” (Id. at ¶¶ 53-54). Girone and Roe instead
“advised [McFadden] to put ice packs [stet] and/or ice on his burns.” (Id. at ¶ 56). “Neither
[Corizon nor Girone further] acted to secure medical treatment [for McFadden.]” (Id. at ¶ 59).
At the “sole direction and/or instigation [of Roe or another individual named Enid Mitchell], an
ambulance was called” and McFadden “was taken via ambulance to [to the emergency center] at
St. Joseph’s Regional Medical Center in Paterson[, New Jersey].” (Id. at ¶¶ 58-61). McFadden
“remained approximately thirty minutes at St. Joseph’s” for medical treatment. (Id. at ¶ 66).
While there, McFadden’s “burns were only partially dressed and or bandaged” and he “was
supplied only with painkillers[.]” (Id. at ¶¶ 64-65).
Upon arriving back to PCJ from Saint Joseph’s on June 8th, Girone and Roe were advised
“of blistering and other evidence of burns on [McFadden’s] legs, forearms and hands” and
McFadden himself told Girone and Roe about the “severe pain” he was then experiencing. (Id.
at ¶¶ 69-70). At that time, an individual in the infirmary – possibly Girone – took McFadden’s
pulse. (Id. at ¶ 72). McFadden was not otherwise “examined upon his return to [PCJ on June
8th]” and “was not treated in accordance with his discharge instructions [from Saint Joseph’s.]”
(Id. at ¶¶ 71-72). Girone and Roe left PCJ on June 8th without giving pain medication to
McFadden and without changing McFadden’s dressings. (Id. at ¶¶ 73-75).
On the following day, June 9, 2015, McFadden “observed blisters on the uncovered
portions of his arms, hands and legs.” (Id. at ¶ 78). McFadden notified an unnamed corrections
officer of that condition at “roughly nine in the morning.” (Id. at ¶ 80). “[A] nurse employed by
[Corizon] saw” McFadden “at noon.”
(Id. at ¶ 82).
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That nurse “removed [McFadden’s]
bandages and/or dressings and commenced the first examination of [McFadden’s] burns [by a
Corizon-affiliated individual].” (Id. at ¶ 88). McFadden’s injuries were subsequently examined
by a “female doctor . . . employed by [Corizon].” (Id. at ¶ 89). Thereafter, at an unspecified time
on that same day, McFadden was taken “to the burn center at Saint Barnabas [in Livingston, New
Jersey,] where he remained from June 9, 2015 until June 22, 2015.” (Id. at ¶ 96). McFadden
claims that Corizon “had a pecuniary motive to avoid sending [McFadden] to St. Barnabas”
because that hospital “does not have a contract to supply care to inmates at [PCJ.]” (Id. at ¶ 97).
McFadden avers that this is the reason he was initially sent to Saint Joseph’s, notwithstanding that
“St. Joseph’s Regional Medical Center lacks even a self-designated burn unit, while Saint
Barnabas has a burn unit verified by the American Burn Association and the American College of
Surgeons.” (Id. at ¶ 94).
After his release from Saint Barnabas on June 22, 2015, McFadden “was admitted to the
infirmary at [PCJ], where he stayed for two months.” (Id. at ¶ 103). During that time, McFadden
“was not treated in accordance with his discharge instructions from Saint Barnabas.” (Id. at ¶ 99).
Corizon and Girone, among others, “prevented [McFadden] from having any [of his scheduled]
follow up visits at Saint Barnabas.” (Id. at ¶ 101). In addition, “[t]he medication Saint Barnabas
gave to [McFadden] was confiscated upon his return to [PCJ].” (Id. at ¶ 108). Corizon and
Girone, among others, “only supplied [McFadden] with an oral pain medication a week after his
return to [PCJ]” and “waited a month to provide [McFadden] with any topical medication[.]” (Id.
at ¶¶ 112, 114). In his first week in PCJ’s infirmary, McFadden was “denied any pain medication
at all” notwithstanding that he “described his immense pain to[, inter alia, Corizon, Girone, and
Roe].” (Id. at ¶¶ 110-11).
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McFadden claims that the foregoing alleged failures of Corizon and Girone “to provide
medical care constituted deliberate indifference to [his] serious medical needs in violation of U.S.
Const. amend. VIII.” (Id. at ¶ 150). McFadden asserts that “[a]s a direct and proximate result of
the denial of medical care, [he] suffered injuries causing permanent disability, permanent
significant disfigurement, [and] permanent loss of bodily function.” (Id. at ¶ 163). He further
claims that he has been harmed by Corizon and Girone’s general policy and custom “[to deny]
medical care[,]” and by those defendants’ simultaneous failure to properly train and supervise
other Corizon personnel. (Id. at ¶¶ 157-62).
On July 16, 2018, Corizon filed its current Rule 12(b)(6) motion to dismiss Counts III and
IV of McFadden’s Fourth Amended Complaint. (See ECF No. 31). Corizon asserts that vague
and conclusory allegations in that pleading “are insufficient to state a civil rights claim for failure
to provide medical care.” (Id. at PageID: 1037). McFadden filed opposition to Corizon’s motion
on September 14, 2018. (ECF No. 41). On January 17, 2019, Girone – after obtaining leave
from the Court to do so – filed a separate Rule 12(b)(6) motion; Girone’s motion advances the
same legal arguments that Corizon did in its earlier-filed motion to dismiss. (ECF No. 56).
McFadden filed opposition to Girone’s motion on February 25, 2019; McFadden’s February 25th
opposition brief reiterates substantially the same arguments that he previously advanced in his
September 14, 2018 brief opposing Corizon’s earlier-filed motion to dismiss. (ECF No. 63.)
III.
STANDARD OF REVIEW
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move for
dismissal of a “claim for relief in any pleading” that “fail[s] to state a claim upon which relief can
be granted.” When ruling on such a motion, a district court is “required to accept as true all factual
allegations in the complaint and draw all inferences in the facts alleged in the light most favorable
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to the plaintiff.” Phillips v. County of Alleghany, 515 F.3d 224, 233 (3d Cir. 2008). “[A]
complaint attacked by a . . . motion to dismiss does not need detailed factual allegations.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). However, the plaintiff’s “obligation to provide
the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Id. (citing Papasan v. Allain,
478 U.S. 265, 286 (1986)). Instead, “[f]actual allegations must be enough to raise a right to relief
above the speculative level.” Twombly, 550 U.S. at 555. Furthermore, a court is “not bound to
accept as true a legal conclusion couched as a factual allegation.” Papasan, 478 U.S. at 286.
To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570). “A claim has facial plausibility
when the pleaded factual content allows the court to draw the reasonable inference that the
defendant is liable for misconduct alleged.” Id. “Determining whether the allegations in a
complaint are plausible is a context-specific task that requires the reviewing court to draw on its
judicial experience and common sense.” Id. at 679. “[W]here the well-pleaded facts do not
permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—
but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Id. (citing Fed. R. Civ. P. 8(a)(2)).
IV.
ANALYSIS
a. Section 1983, Generally
As noted above, McFadden asserts that Corizon and Girone acted with deliberate
indifference to his serious medical needs after he was burned in PCJ’s kitchen on June 8, 2015.
This claim is actionable under federal law pursuant to 42 U.S.C. § 1983. Section 1983 provides
in relevant part:
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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 obtain relief under this statute, a plaintiff must establish: (i) that one of his
rights secured by the Constitution or laws of the United States was violated; and (ii) that this
violation was caused or committed by a person acting under color of state law. See West v. Atkins,
487 U.S. 42, 48 (1988); Graham v. Connor, 490 U.S. 386, 393-94 (1989) (noting that Section 1983
does not provide substantive rights; rather, it provides a vehicle for vindicating violations of other
federal rights).
b. Section 1983 Denial of Medical Care Claims, Specifically
In the seminal decision of Estelle v. Gamble, 429 U.S. 97 (1976), the United States
Supreme Court made clear that: (i) “the government [is obligated] to provide medical care for
those whom it is punishing by incarceration[;]” (ii) “deliberate indifference to serious medical
needs of prisoners constitutes the ‘unnecessary and wanton infliction of pain’ proscribed by the
Eighth Amendment[;]” and (iii) “deliberate indifference to a prisoner’s serious illness or injury
states a cause of action under § 1983.”2 Id. at 103-05.
In accordance with Estelle and its progeny, McFadden, as an incarcerated plaintiff asserting
a Section 1983 claim for inadequate medical care, must show the existence of a serious medical
2
Non-convicted pretrial detainees are afforded substantially the same protections under the Due
Process Clause of the Fourteenth Amendment. See Hubbard v. Taylor, 399 F.3d 150, 166 (3d
Cir. 2005) (“pretrial detainees’ [are protected] from ‘punishment’ under the Fourteenth
Amendment, and convicted inmates’ [are protected] from punishment that is ‘cruel and unusual’
under the Eighth Amendment.”).
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need and that facility staff demonstrated deliberate indifference to that medical need. 3 Pearson
v. Prison Health Serv., 850 F.3d 526, 534 (3d Cir. 2017); Mattern v. City of Sea Isle, 657 F. App’x
134, 138 (3d Cir. 2016); Giles v. Kearney, 571 F.3d 318, 330 (3d Cir. 2009). Serious medical
needs include “one[s] . . . diagnosed by a physician as requiring treatment or one[s] that [are] so
obvious that a lay person would easily recognize the necessity for a doctor’s attention.” Mattern,
657 F. App’x at 139 (quoting Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347
(3d Cir. 1987)). A prison official acts with deliberate indifference to those needs if he “knows
that inmates face a substantial risk of serious harm and disregards that risk by failing to take
reasonable measures to abate it.” Parkell v. Danberg, 833 F.3d 313, 335 (3d Cir. 2016) (citation
omitted).
Here, the Court agrees with the parties that McFadden’s current pleading demonstrates that
his medical needs were sufficiently serious for purposes of obtaining relief under Section 1983.
(See, generally, ECF Nos. 31, 41, and 56). Indeed, McFadden indicates that he “was admitted to
the burn center at Saint Barnabas where he remained from June 9, 2015 until June 22, 2015 [to
McFadden’s Fourth Amended Complaint specifically indicates that his Section 1983 claim
arises under the Eighth Amendment (see ECF No. 30 at ¶ 150); this implicitly suggests that
McFadden was a convicted prisoner in and around June 2015. In his September 14, 2018
opposition brief, however, McFadden avers that his federal claim is rooted in the Fourteenth
Amendment, thus indicating that he was instead a pretrial detainee during that period. (ECF No.
41 at PageID: 1096-97). While this apparent drafting error is concerning, particularly as this is
McFadden’s fourth revised pleading, it is also largely immaterial to the Court’s current analysis.
Ultimately, regardless of whether McFadden was a pretrial detainee or a convicted prisoner, his
Section 1983 denial of medical care claim is analyzed under Estelle’s deliberate indifference
standard. Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 581 (3d Cir. 2003); accord Boring
v. Kozakiewicz, 833 F.2d 468, 472 (3d Cir. 1987) (“decisions interpreting the Eighth Amendment
serve as ‘useful analogies’ [for similar claims that instead arise under the Fourteenth
Amendment].”) (quoting Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1080 (3d Cir.
1976)); but see Inmates of Allegheny Cty. Jail v. Pierce, 612 F.2d 754, 762 (3d Cir. 1979) (“at a
minimum, the ‘deliberate indifference’ standard of Estelle v. Gamble, must be met” at an
institution housing pretrial detainees).
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receive medical treatment].” (ECF No. 30 at ¶ 96). Whether McFadden has sufficiently alleged
that Corizon and Girone acted with constitutionally violative “deliberate indifference” to those
serious medical needs is a far closer call, particularly because his complaint unequivocally
indicates that he received extensive and long-term medical treatment for his burns.
“Where a prisoner has received some amount of medical treatment, it is difficult to
establish deliberate indifference, because prison officials are afforded considerable latitude in the
diagnosis and treatment of prisoners.” Palakovic v. Wetzel, 854 F.3d 209, 227–28 (3d Cir. 2017)
(citing Durmer v. O’Carroll, 991 F.2d 64, 67 (3d Cir. 1993)). Indeed, “‘[w]here a prisoner has
received some medical attention and the dispute is over the adequacy of treatment, federal courts
are generally reluctant to second guess medical judgments and to constitutionalize claims which
sound in state tort law.’” Id. at 227 (3d Cir. 2017) (quoting United States ex rel. Walker v. Fayette
Cnty., 599 F.2d 573, 575 n.2 (3d Cir. 1979)). Courts accordingly afford deference to prison
medical authorities in the diagnosis and treatment of patients, and “disavow any attempt to secondguess the propriety or adequacy of a particular course of treatment . . . [which] remains a question
of sound professional judgment.” Id. (quoting Inmates of Allegheny Cty., 612 F.2d at 762 (3d Cir.
1979)). In that respect, neither a prisoner’s personal, subjective dissatisfaction with the care he
has been provided, nor his disagreement with the professional judgment of trained medical staff,
is sufficient to establish deliberate indifference. See Hairston v. Director Bureau of Prisons, 563
F. App’x. 893, 895 (3d Cir. 2014); White v. Napolean, 897 F.2d 103, 110 (3d Cir. 1990); Andrews
v. Camden Cnty., 95 F. Supp. 2d 217, 228 (D.N.J. 2000).
That said, “there are circumstances in which some care is provided yet it is insufficient to
satisfy constitutional requirements.” Palakovic, 854 F.3d at 228. “[P]rison officials may not,
with deliberate indifference to the serious medical needs of the inmate, opt for an easier and less
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efficacious treatment of the inmate’s condition.” Id. (citations and internal quotations omitted).
They cannot “deny reasonable requests for medical treatment . . . [when] such denial exposes the
inmate ‘to undue suffering or the threat of tangible residual injury.’” Id. (citing Monmouth
County Corr. Inst. Inmates, 834 F.2d at 346 (quoting Westlake v. Lucas, 537 F.2d 857, 860 (6th
Cir. 1976)). And, “knowledge of the need for medical care may not be accompanied by the
intentional refusal to provide that care.” Id. (citations and alterations in original omitted).
c. Application
Again, there is no dispute that McFadden sustained burns on June 8, 2015 while working
in PCJ’s kitchen.4 McFadden’s Fourth Amended Complaint likewise indicates that his resulting
injuries were serious. That said, the factual allegations in McFadden’s present pleading preclude
the Court from drawing the reasonable inference that Corizon or Girone acted with constitutionally
violative “deliberate indifference” to those serious medical needs.
The core allegations regarding the medical treatment McFadden received in response to his
June 8, 2015 accident include the following: McFadden was initially sent to the emergency room
at Saint Joseph’s Hospital for medical treatment the same day that he was injured; McFadden was
discharged from that hospital after thirty minutes and returned to PCJ; on June 9th, McFadden
woke up in PCJ’s infirmary, and was examined by a Corizon nurse within three hours of telling a
PCJ corrections officer that he had blisters on his arms, hands, and legs; shortly thereafter, an
unnamed Corizon doctor examined McFadden, at which point he was sent Saint Barnabas – which
has a specialized burn unit – for additional off-site treatment; McFadden stayed at Saint Barnabas
from June 9, 2015 through June 22, 2015; McFadden thereafter stayed in PCJ’s infirmary for an
4
In his September 14th opposition brief, McFadden expressly indicates that he sustained seconddegree burns on 40% of his body. (see ECF No. 41 at PageID: 1096). This specific information,
however, is not alleged in McFadden’s Fourth Amended Complaint.
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additional two months.
The foregoing allegations demonstrate that McFadden received prompt and extensive
medical treatment in response to his June 8th injuries; this remains true notwithstanding that much
of that care was provided off-site by individuals unaffiliated with Corizon and notwithstanding
that a significant portion of the care administered to McFadden at PCJ was provided by Corizonaffiliated personnel other than Girone. This fundamental consideration fails to support – and in
fact wholly undermines – McFadden’s efforts to obtain relief under Section 1983 based on Corizon
and Girone’s purported deliberate indifference to his serious medical needs. See Wisniewski v.
Frommer, --- F. App’x ---, 2018 WL 4776165, at *2-3 (3d. Cir. Oct. 3, 2018) (affirming Rule
12(b)(6) dismissal of Section 1983 medical care claim where “[plaintiff’s] allegations confirmed
that he had been seen many times by medical providers who exercised professional judgment with
respect to his care[.]”) (quotations and alterations in original omitted); Romero v. Ahsan, No. 137695, 2018 WL 6696782, at *18 (D.N.J. Dec. 20, 2018) (no constitutional violation where “the
evidence before the Court demonstrate[d] that [plaintiff] received extensive and generally prompt
medical treatment for his knee injury.”); Battle v. McGann, No. 17-12041, 2018 WL 5263279, at
*4 (D.N.J. Oct. 23, 2018) (“In light of Plaintiff’s multiple treatments and evaluations, it is apparent
that the complaint shows only a [non-actionable] difference in opinion over the course of proper
medical treatment rather than a complete denial of medical care.”).
The only facts alleged by McFadden that even marginally suggest that Corizon and Girone
acted with deliberate indifference center around his claims that Girone and other Corizonpersonnel refused to give him pain medication in response to his requests upon returning from
Saint Joseph’s on June 8th5 and during his first week in PCJ’s infirmary upon returning from Saint
5
The Court observes that the veracity of this claim is undermined by the copy of the Encounter
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Barnabas.
McFadden’s pleading, however, fails to contain any factual allegations which
plausibly suggest that Corizon and McFadden’s purported refusal to immediately administer pain
medicine to him was motivated by unconstitutional considerations, e.g., because it was the easier
course of action, or that McFadden experienced any tangible residual injuries as a result.
Palakovic, 854 F.3d at 228; accord Wilson v. Jin, 698 F. App'x 667, 671 (3d Cir. 2017)
(“Deliberate indifference . . . requires obduracy and wantonness which has been likened to conduct
that includes recklessness or a conscious disregard of a serious risk.”) (internal citations and
quotations omitted); McGinnis v. Hammer, --- F. App’x ---, 2018 WL 4334104, at *3 (3d. Cir.
Sept. 11, 2018) (“conclusory allegation that [physician’s assistant] denied [inmate] ibuprofen [for
improper motive], rather than for the reasons apparent on the face of the complaint, fails to state a
plausible claim for relief.”).
Furthermore, McFadden’s allegations regarding Corizon and Girone’s failure to administer
pain medication to him on June 8th and between June 22nd and 29th must be considered within
the broader context of McFadden’s other factual claims – which, again, make clear that he received
prompt and extensive medical care for his burns. It is against this backdrop that the Court
concludes that McFadden’s complaint fails to plausibly suggest that Corizon and Girone acted
with constitutionally-violative deliberate indifference to McFadden’s serious medical needs.
Taylor v. Spraga, 741 F. App’x 884, 887 (3d Cir. 2018) (concluding that “under the circumstances
of this case[,]” in which plaintiff, inter alia, undisputedly “received alternative treatment for his
pain” and was continuously and regularly monitored by prison medical personnel, “the
Summary Report prepared by Girone on June 30, 2015 appended to McFadden’s February 25th
opposition brief at Exhibit B; that document indicates that McFadden was “given Toradol &
Percocet” upon his return from Saint Joseph’s. (ECF No. 63-5 at PageID: 1554.) Ultimately,
however, this evidence, which falls outside of the pleadings, does not impact the Court’s current
Rule 12(b)(6) analysis.
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discontinuation of [a] medication to treat [plaintiff’s] neuropathic pain condition [was] not
actionable as a constitutional violation”). Indeed, in this broader context, it wholly appears that
the administration of pain medication by Girone and other Corizon-affiliated medical personnel to
McFadden – or lack thereof – speaks to their professional judgment in opting for a particular course
of treatment. See, e.g., Romero, 2018 WL 6696782, at *15 (“When the plaintiff received some
medical care, the court will presume that the care was proper in the absence of evidence that it fell
short of professional norms.”).
There are a number of other pleading deficiencies in McFadden’s Fourth Amended
Complaint further support dismissal of Count III.
First, McFadden’s pleading omits many
specific factual details that could potentially bolster – or further undermine – the viability of his
Section 1983 claim. McFadden, for example, fails to detail the precise times that any of events
on June 8th occurred, including when he, inter alia, sustained his injuries, arrived at PCJ’s
infirmary, had an ambulance called on his behalf, was transported in that ambulance from PCJ,
arrived at Saint Joseph’s emergency center, and was returned to PCJ’s infirmary. This dearth of
specific information is particularly glaring when all of McFadden’s factual allegations indicate
that each of the foregoing events occurred when Girone was on-site at PCJ, i.e., in a period that
would appear to be far less than twenty-four hours. McFadden’s pleading likewise provides no
temporal details regarding Girone’s alleged actions on that date, i.e., there are no times alleged as
to when Girone, among other things, first learned about McFadden’s injuries and left PCJ for the
day.
The limited temporal details that McFadden does provide, i.e., that on June 9th, he
complained to a PCJ prison guard about blistering on his body at approximately 9:00 a.m., and
was first evaluated by a Corizon-affiliated nurse in response approximately three hours later, at
around 12:00 p.m., do not suggest to the Court that McFadden’s constitutional rights were violated,
14
particularly when in the remaining twelve hours of that same day, McFadden was – at unspecified
times – subsequently evaluated by a Corizon-affiliated doctor and ultimately transferred to Saint
Barnabas’s burn treatment unit.
McFadden’s pleading also contains conclusory statements that are at odds with the specific
facts alleged therein. For example, while McFadden asserts that he received inadequate medical
attention in PCJ’s infirmary on June 8th, he simultaneously avers that he was transported to Saint
Joseph’s for emergency medical treatment on that same day. This suggests that McFadden
received appropriate and prompt care for his injuries,6 notwithstanding that McFadden received
minimal treatment at the PCJ infirmary before being sent to Saint Joseph’s. That McFadden was
treated and discharged from that hospital within thirty minutes suggests to the Court that his burns
did not initially appear to be as severe as they ultimately turned out to be, 7 particularly as
McFadden has not named Saint Joseph’s as a defendant and his pleading otherwise fails to clearly
state that the medical treatment he received at Saint Joseph’s was deficient.
Similarly, McFadden’s claim that he was not initially sent to Saint Barnabas for treatment
because Corizon wanted to save money disregards several key considerations. First, it wholly
“ignores the fact that St. Joseph’s is a five-minute drive from [PCJ], whereas St. Barnabas . . . is a
6
In his September 19, 2018 opposition brief, McFadden indicates that he arrived in the burn unit
of Saint Barnabas within “24 hours after the accident[.]” (ECF No. 41 at PageID: 1093). That
specific detail – which further bolsters the conclusion that McFadden received prompt medical
care – is, however, omitted from McFadden’s pleading.
In his earlier-filed opposition brief, McFadden confirms that he was diagnosed at Saint Joseph’s
as having first-degree burns only (see ECF No. 41 at PageID: 1093), i.e., “a mild burn
characterized by heat, pain, and reddening of the burned surface but not exhibiting blistering or
charring of tissues.”
See Merriam-Webster Online Dictionary, www.merriamwebster.com/dictionary. Although McFadden declined to add that specific detail to his pleading,
that additional fact, if true, would cut against any claim that Girone, Corizon, or any other PCJaffiliated individual acted with deliberate indifference to a “serious” medical issue on June 8th.
7
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thirty-five minute drive [away].” (See Corizon’s Br. in Supp. of Mot. to Dismiss 5 n.5, ECF No.
31-5). Second, in spite of Corizon’s purported pecuniary interest in preventing McFadden from
receiving treatment at Saint Barnabas, McFadden’s pleading makes clear that Corizon sent
McFadden to that hospital for treatment on June 9th, and that McFadden remained at Saint
Barnabas for in-patient care for approximately two weeks. It also bears noting that McFadden
has not named Saint Barnabas as a defendant and that McFadden’s pleading in no way alleges that
his medical treatment at Saint Barnabas was inappropriate or inadequate.
McFadden’s Fourth Amended Complaint also includes a number of conclusory statements
unsupported by any factual allegations whatsoever. Indeed, McFadden baldly claims that: (i)
“[a]s a direct and proximate result of the denial of medical care, [he] suffered injuries causing
permanent disability, permanent significant disfigurement, [and] permanent loss of bodily
function[;]” (ii) he has been harmed by Corizon and Girone’s general policy and custom “[to deny]
medical care[;]” and (iii) he has been harmed by those defendants’ simultaneous failure to properly
train and supervise other Corizon personnel. (See ECF No. 30 at ¶¶ 157-63). McFadden’s
complaint does not provide any specific information about the permanent and ongoing harm he
suffers from the burns he sustained on June 8, 2015. The specific factual allegations in that
pleading speak only to the blisters on his hands, arms, and legs as of June 9th; those facts do not
permit the Court to reasonably infer that he has any permanent disabilities or scarring from that
incident.
McFadden provides even less factual detail about Corizon and Girone’s policies,
customs, training practices, and supervision methods. Indeed, the conclusory sentences quoted
above represent the only allegations within McFadden’s pleading regarding supervisory liability.
For the foregoing reasons, it is clear that McFadden’s Fourth Amended Complaint fails to
suggest that he received inadequate medical care for June 8th injuries. That pleading similarly
16
fails to allege facts to suggest that McFadden or Corizon were deliberately indifferent to his serious
medical needs in a manner which violated McFadden’s rights under the United States Constitution.
McFadden accordingly fails to state a Section 1983 claim against Corizon or Girone. Watford v.
New Jersey State Prison, No. 16-7878, 2017 WL 131562, at *4 (D.N.J. Jan. 12, 2017) (dismissing
Section 1983 inadequate medical care claim where facts alleged in complaint “establish[ed] that
[p]laintiff has been treated, continues to receive treatments, and may well receive his desired
medication once his doctors are satisfied that such a course is warranted by the diagnostics” and
further reiterating that “[p]laintiff’s subjective dissatisfaction with the slow course of his treatment
is insufficient to support a claim for relief for a violation of his constitutional rights.”); see also
Grazier ex rel. White v. City of Philadelphia, 328 F.3d 120, 124 (3d Cir. 2003) (holding that when
there are no underlying constitutional violations found, it precludes supervisory and policy-making
liability).
d. Count III is Dismissed with Prejudice
In this case, McFadden has already received numerous opportunities to revise his pleading;
despite multiple amendments, his Fourth Amended Complaint still fails to state a cognizable claim
for relief under Section 1983. That fact alone supports prejudicial dismissal of Count III. Henry
v. City of Allentown, No. 12-1380, 2013 WL 6409307, *2 (E.D. Pa. Dec. 9, 2013) (“Although the
grant of a motion to dismiss is usually without prejudice, a District Court may exercise its
discretion and refuse leave to amend if such amendment would be futile, particularly when a
plaintiff has had multiple opportunities to improve the pleadings.”) (citing In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1434-35 (3d Cir. 1997)); accord Alston v. Parker, 363 F.3d
229, 235 (3d Cir. 2004) (“if a complaint is vulnerable to 12(b)(6) dismissal, a District Court must
permit a curative amendment, unless an amendment would be inequitable or futile.”) (emphasis
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added). The additional facts which McFadden belatedly chose to detail in his opposition brief
further demonstrate that Count III could not be amended in such a manner as to withstand a motion
to dismiss and, thus that further amendment is futile. See Burlington, 114 F.3d at 1434 (“‘Futility’
means that the complaint, as amended, would fail to state a claim upon which relief could be
granted.”)
In light of the foregoing considerations, the Court dismisses Count III with prejudice.
Haesler v. Novartis Consumer Health, Inc., No. 05-372, 2006 WL 2689830, at *5 (D.N.J. Sept.
18, 2006) (dismissing claim asserted in fourth amended complaint with prejudice in resolving Rule
12(b)(6) motion because “no amendment count make [that count] withstand a motion to dismiss”),
aff’d, 266 F. App’x 173 (3d Cir. 2008); Callaway v. New Jersey State Police Troop A, No. 125477, 2015 WL 1202533, at *8 (D.N.J. Mar. 17, 2015) (dismissing claim with prejudice where
plaintiff already received several opportunities to plead his claims and the underlying
circumstances giving rise to that lawsuit had “not substantially changed); see also In re New Jersey
Title Ins. Litig., 683 F.3d 451, 462 (3d Cir. 2012) (district court did not abuse its discretion by
dismissing action with prejudice on grounds that leave to amend would be futile).
e. The Court Declines to Exercise Supplemental Jurisdiction Over McFadden’s
Remaining State Law Claims
In resolving the present motions, the Court again emphasizes that Count III, which seeks
relief under federal law based on the purported violation of a right guaranteed by the United States
Constitution, is the only federal cause of action in McFadden’s pleading; Count IV seeks relief
under New Jersey law based on the purported violation of a right secured by New Jersey’s
Constitution. Were this Court to conclude that dismissal of Count III was inappropriate – and it
does not – the Court would likewise be compelled to conclude that dismissal of McFadden’s
parallel state law claim would be inappropriate. See Bayette v. Ricci, 489 F. App’x 540, 543 n. 2
18
(3d Cir. 2012) (utilizing same analysis for plaintiff’s state and federal denial of medical care claims
“because the test for cruel and unusual punishment under the New Jersey state Constitution ‘is
generally the same as that applied under the federal Constitution.’”) (citation omitted).
That said, for the reasons already detailed in this Opinion, the Court concludes that
prejudicial dismissal of the lone federal count in McFadden’s Fourth Amended Complaint is
appropriate.
When a “district court [dismisses] all claims over which it has original
jurisdiction[,]” it “may decline to exercise supplement jurisdiction” over any remaining state law
claims. 28 U.S.C. § 1367(c)(3). Furthermore, a court may “remand a properly removed case to
state court whenever all federal claims have been deleted.” Carnegie-Mellon Univ. v. Cohill, 484
U.S. 343, 359 (1988). The Court considers the following factors in determining whether remand
is proper: manipulation of the forum, judicial economy, convenience, fairness, and comity. Id.
The Court declines to exercise supplemental jurisdiction over McFadden’s remaining state
law claims, including Count IV, and accordingly declines to rule on Corizon and Girone’s motions
to dismiss with respect to that claim. McFadden’s pendent state law claims, including Count IV,
will instead be remanded to state court. The following considerations support this result: (i) it is
Corizon who – over McFadden’s objections – initially removed this matter to federal court; (ii)
Corizon’s removal in the first instance was improper – and this matter was accordingly already
remanded once – because Corizon did not obtain the consent of all defendants; (iii) after this action
was thereafter removed to federal court a second time – with Corizon’s consent – it was Corizon
who took the position that McFadden’s current pleading failed to adequately plead any federal
cause of action via the filing of its present Rule 12(b)(6) motion; (iv) McFadden has opposed
defendants’ removal of this matter from state court on both occasions; and (v) Girone has only
recently joined this litigation via his January 17, 2019 filing of the present Rule 12(b)(6) motion.
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V.
CONCLUSION
For the reasons detailed above, Corizon and Girone’s respective Rule 12(b)(6) motions to
dismiss are granted as to Count III of McFadden’s Fourth Amended Complaint only; that count is
dismissed with prejudice. The Court will not exercise jurisdiction over McFadden’s additional
state law claims, including Count IV, and will instead remand this matter for adjudication in state
court. An appropriate Order follows.
Date: March 1, 2019
At Newark, New Jersey
s/Katharine S. Hayden
KATHARINE S. HAYDEN
United States District Judge
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