DASTAS v. CICCHI et al
Filing
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OPINION. Signed by Judge Freda L. Wolfson on 10/24/2011. (gxh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
LUIS DASTAS,
Plaintiff,
v.
EDMOND C. CICCHI, et al.,
Defendants.
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Civil Action No. 11-1473 (FLW)
OPINION
APPEARANCES:
Plaintiff pro se
Luis Dastas
MCACC
P.O. Box 266
New Brunwsick, NJ
08903
WOLFSON, District Judge
Plaintiff Luis Dastas, a prisoner confined at Middlesex
County Adult Correctional Center in New Brunswick, New Jersey,
seeks to bring this action in forma pauperis pursuant to 42
U.S.C. § 1983, alleging violations of his constitutional rights.
Based on his affidavit of indigence and the absence of three
qualifying dismissals within 28 U.S.C. §1915(g), the Court will
grant Plaintiff’s application to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915(a) and order the Clerk of the Court
to file the Complaint.
At this time, the Court must review the Complaint 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.
I.
BACKGROUND
The following factual allegations are taken from Plaintiff’s
Complaint and are accepted as true for purposes of this review.
Plaintiff alleges that on eight separate occasions between
November 15, 2010, and March 6, 2011, he asked to see medical
personnel for itching.
He was seen on several, but not all, of
these occasions, when he was told that he did not have scabies,
and he was given several one-time doses of medication.
The
medication did not relieve his itching for the long term and, on
the last time he was itching, an officer refused to forward his
request to see medical personnel, and he scratched until he bled.
Plaintiff names as defendants Warden Edmond C. Cicchi and
C.F.G. Health Systems, L.L.C.
He seeks monetary damages for pain
and suffering, including emotional and mental stress.
II.
STANDARDS FOR A SUA SPONTE DISMISSAL
This Court must dismiss, at the earliest practicable time,
certain in forma pauperis and prisoner actions that are
frivolous, malicious, fail to state a claim, or seek monetary
relief from a defendant who is immune from such relief.
See 28
U.S.C. § 1915(e)(2) (in forma pauperis actions); 28 U.S.C.
§ 1915A (actions in which prisoner seeks redress from a
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governmental defendant); 42 U.S.C. § 1997e (prisoner actions
brought with respect to prison conditions).
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff.
Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United
States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
The Court must
“accept as true all of the allegations in the complaint and all
reasonable inferences that can be drawn therefrom, and view them
in the light most favorable to the plaintiff.”
Morse v. Lower
Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997).
In addition, any complaint must comply with the pleading
requirements of the Federal Rules of Civil Procedure.
Rule 8(a)(2) requires that a complaint contain “a short and
plain statement of the claim showing that the pleader is entitled
to relief.”
A complaint must plead facts sufficient at least to
“suggest” a basis for liability.
218, 236 n.12 (3d Cir. 2004).
Spruill v. Gillis, 372 F.3d
“Specific facts are not necessary;
the statement need only ‘give the defendant fair notice of what
the ... claim is and the grounds upon which it rests.’” Erickson
v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted).
While a complaint ... does not need detailed factual
allegations, a 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, see Papasan v. Allain, 478 U.S. 265, 286, 106
S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to
dismiss, courts “are not bound to accept as true a
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legal conclusion couched as a factual allegation”).
Factual allegations must be enough to raise a right to
relief above the speculative level ... .
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citations omitted).
The Court of Appeals for the Third Circuit has held, in the
context of a § 1983 civil rights action, that the Twombly
pleading standard applies outside the § 1 antitrust context in
which it was decided.
See Phillips v. County of Allegheny, 515
F.3d 224, 234 (3d Cir. 2008) (“we decline at this point to read
Twombly so narrowly as to limit its holding on plausibility to
the antitrust context”).
Context matters in notice pleading. Fair notice under
Rule 8(a)(2) depends on the type of case -- some
complaints will require at least some factual
allegations to make out a “showing that the pleader is
entitled to relief, in order to give the defendant fair
notice of what the ... claim is and the grounds upon
which it rests.” Indeed, taking Twombly and the
Court’s contemporaneous opinion in Erickson v. Pardus,
127 S.Ct. 2197 (2007), together, we understand the
Court to instruct that a situation may arise where, at
some point, the factual detail in a complaint is so
undeveloped that it does not provide a defendant the
type of notice of claim which is contemplated by
Rule 8. Put another way, in light of Twombly, Rule
8(a)(2) requires a “showing” rather than a blanket
assertion of an entitlement to relief. We caution that
without some factual allegation in the complaint, a
claimant cannot satisfy the requirement that he or she
provide not only “fair notice,” but also the “grounds”
on which the claim rests.
Phillips, 515 F.3d at 232 (citations omitted).
More recently, the Supreme Court has emphasized that, when
assessing the sufficiency of any civil complaint, a court must
4
distinguish factual contentions -- which allege behavior on the
part of the defendant that, if true, would satisfy one or more
elements of the claim asserted -- and “[t]hreadbare recitals of
the elements of a cause of action, supported by mere conclusory
statements.”
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009).
Although the Court must assume the veracity of the facts asserted
in the complaint, it is “not bound to accept as true a legal
conclusion couched as a factual allegation.”
Id. at 1950.
Thus,
“a court considering a motion to dismiss can choose to begin by
identifying pleadings that, because they are no more than
conclusions, are not entitled to the assumption of truth.”
Id.
Therefore, after Iqbal, when presented with a
motion to dismiss for failure to state a claim,
district courts should conduct a two-part analysis.
First, the factual and legal elements of a claim should
be separated. The District Court must accept all of
the complaint's well-pleaded facts as true, but may
disregard any legal conclusions. Second, a District
Court must then determine whether the facts alleged in
the complaint are sufficient to show that the plaintiff
has a “plausible claim for relief.” In other words, a
complaint must do more than allege the plaintiff's
entitlement to relief. A complaint has to “show” such
an entitlement with its facts. See Phillips, 515 F.3d
at 234-35. As the Supreme Court instructed in Iqbal,
“[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.’”
This “plausibility” determination will be “a
context-specific task that requires the reviewing court
to draw on its judicial experience and common sense.”
Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009)
(citations omitted).
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Where a complaint can be remedied by an amendment, a
district court may not dismiss the complaint with prejudice, but
must permit the amendment.
Denton v. Hernandez, 504 U.S. 25, 34
(1992); Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d
Cir. 2002) (dismissal pursuant to 28 U.S.C. § 1915(e)(2)); Shane
v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000) (dismissal
pursuant to 42 U.S.C. § 1997e(c)(1)); Urrutia v. Harrisburg
County Police Dept., 91 F.3d 451, 453 (3d Cir. 1996).
III.
SECTION 1983 ACTIONS
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 ... .
Thus, to state a claim for relief under § 1983, a plaintiff must
allege, first, the violation of a right secured by the
Constitution or laws of the United States and, second, that the
alleged deprivation was committed or caused by a person acting
under color of state law.
West v. Atkins, 487 U.S. 42, 48
(1988); Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir.
1994).
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IV.
A.
ANALYSIS
The Due Process Claim
A liberty interest protected by the Due Process Clause may
arise from either of two sources:
or State law.
the Due Process Clause itself
See Hewitt v. Helms, 459 U.S. 460, 466 (1983);
Asquith v. Department of Corrections, 186 F.3d 407, 409 (3d Cir.
1999).
Pre-trial detainees and convicted but unsentenced prisoners
retain liberty interests firmly grounded in the Due Process
Clause of the Fourteenth Amendment.1
F.3d 150
See Hubbard v. Taylor, 399
(3d Cir. 2005); Fuentes v. Wagner, 206 F.3d 335, 341
(3d Cir. 2000).
Analysis of whether such a detainee or
unsentenced prisoner has been deprived of liberty without due
process is governed by the standards set out by the Supreme Court
in Bell v. Wolfish, 441 U.S. 520 (1979).
Hubbard, 399 F.3d at
157-60, 164-67; Fuentes, 206 F.3d at 341-42.
In evaluating the constitutionality of conditions
or restrictions of pretrial detention that implicate
only the protection against deprivation of liberty
without due process of law, we think that the proper
inquiry is whether those conditions amount to
punishment of the detainee. For under the Due Process
Clause, a detainee may not be punished prior to an
adjudication of guilt in accordance with due process of
law. ...
1
Although Plaintiff does not state that he is a pre-trial
detainee, the Court notes that the New Jersey Department of
Corrections Inmate Locator reflects that Plaintiff was sentenced
on August 1, 2011, after the dates of the events described in the
Complaint.
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Not every disability imposed during pretrial
detention amounts to “punishment” in the constitutional
sense, however. Once the government has exercised its
conceded authority to detain a person pending trial, it
obviously is entitled to employ devices that are
calculated to effectuate this detention. ...
A court must decide whether the disability is
imposed for the purpose of punishment or whether it is
but an incident of some other legitimate governmental
purpose. Absent a showing of an expressed intent to
punish on the part of detention facility officials,
that determination generally will turn on “whether an
alternative purpose to which [the restriction] may
rationally be connected is assignable for it, and
whether it appears excessive in relation to the
alternative purpose assigned [to it].” Thus, if a
particular condition or restriction of pretrial
detention is reasonably related to a legitimate
governmental objective, it does not, without more,
amount to “punishment.” Conversely, if a restriction
or condition is not reasonably related to a legitimate
goal--if it is arbitrary or purposeless--a court
permissibly may infer that the purpose of the
governmental action is punishment that may not
constitutionally be inflicted upon detainees qua
detainees. ...
441 U.S. at 535-39 (citations omitted).
The Court further
explained that the government has legitimate interests that stem
from its need to maintain security and order at the detention
facility.
“Restraints that are reasonably related to the
institution’s interest in maintaining jail security do not,
without more, constitute unconstitutional punishment, even if
they are discomforting and are restrictions that the detainee
would not have experienced had he been released while awaiting
trial.”
441 U.S. at 540.
Retribution and deterrence, however,
are not legitimate nonpunitive governmental objectives.
8
441 U.S.
at 539 n.20.
Nor are grossly exaggerated responses to genuine
security considerations.
Id. at 539 n.20, 561-62.
Here, Plaintiff alleges that he requested medical attention
for itching on eight occasions over almost four months, that he
was seen on several occasions, that he was diagnosed as not
suffering from scabies, that he received medication on several
occasions.
These facts do not state a claim for unconstitutional
punishment with respect to a medical issue.
To the extent Petitioner was a sentenced prisoner at the
time of the events complained of, the result would be the same
under an Eighth Amendment analysis.
The Eighth Amendment to the United States Constitution,
applicable to the individual states through the Fourteenth
Amendment, prohibits the states from inflicting “cruel and
unusual punishments” on those convicted of crimes.
Chapman, 452 U.S. 337, 344-46 (1981).
Rhodes v.
This proscription against
cruel and unusual punishment requires that prison officials
provide inmates with adequate medical care.
429 U.S. 97, 103-04 (1976).
Estelle v. Gamble,
In order to set forth a cognizable
claim for a violation of his right to 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.
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To satisfy the first prong of the Estelle inquiry, the
inmate must demonstrate that his medical needs are serious.
“Because society does not expect that prisoners will have
unqualified access to health care, deliberate indifference to
medical needs amounts to an Eighth Amendment violation only if
those needs are ‘serious.’”
(1992).
Hudson v. McMillian, 503 U.S. 1, 9
Serious medical needs include those that have been
diagnosed by a physician as requiring treatment or that are so
obvious that a lay person would recognize the necessity for
doctor’s attention, and those conditions which, if untreated,
would result in lifelong handicap or permanent loss.
Monmouth
County Correctional Institutional Inmates v. Lanzaro, 834 F.2d
326, 347 (3d Cir. 1987), cert. denied, 486 U.S. 1006 (1988).
The second element of the Estelle test requires an inmate to
show that prison officials acted with deliberate indifference to
his serious medical need.
“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.
Brennan, 511 U.S. 825, 837-38 (1994).
Farmer v.
Furthermore, a prisoner’s
subjective dissatisfaction with his medical care does not in
itself indicate deliberate indifference.
Andrews v. Camden
County, 95 F.Supp.2d 217, 228 (D.N.J. 2000); Peterson v. Davis,
551 F.Supp. 137, 145 (D. Md. 1982), aff’d, 729 F.2d 1453 (4th
Cir. 1984).
Similarly, “mere disagreements over medical judgment
10
do not state Eighth Amendment claims.”
F.2d 103, 110 (3d Cir. 1990).
White v. Napoleon, 897
“Courts will disavow any attempt
to second-guess the propriety or adequacy of a particular course
of treatment ... [which] remains a question of sound professional
judgment.
Implicit in this deference to prison medical
authorities is the assumption that such informed judgment has, in
fact, been made.”
Inmates of Allegheny County Jail v. Pierce,
612 F.2d 754, 762 (3d Cir. 1979) (internal quotation and citation
omitted).
Even if a doctor’s judgment concerning the proper
course of a prisoner’s treatment ultimately is shown to be
mistaken, at most what would be proved is medical malpractice and
not an Eighth Amendment violation.
Estelle, 429 U.S. at 105-06;
White, 897 F.2d at 110.
“Where prison authorities deny reasonable requests for
medical treatment, however, and such denial exposes the inmate
‘to undue suffering or the threat of tangible residual injury,’
deliberate indifference is manifest.
Similarly, where ‘knowledge
of the need for medical care [is accompanied by the] ...
intentional refusal to provide that care,’ the deliberate
indifference standard has been met.
...
Finally, deliberate
indifference is demonstrated ‘[w]hen ... prison authorities
prevent an inmate from receiving recommended treatment for
serious medical needs or deny access to a physician capable of
evaluating the need for such treatment.”
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Monmouth County Corr.
Inst. Inmates v. Lanzaro, 834 F.2d at 346 (citations omitted).
“Short of absolute denial, ‘if necessary medical treatment [i]s
... delayed for non-medical reasons, a case of deliberate
indifference has been made out.”
Id. (citations omitted).
“Deliberate indifference is also evident where prison officials
erect arbitrary and burdensome procedures that ‘result[] in
interminable delays and outright denials of medical care to
suffering inmates.’”
Id. at 347 (citation omitted).
Compare
Durmer v. O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993) (summary
judgment properly granted to prison warden and state commissioner
of corrections, the only allegation against whom was that they
failed to respond to letters from prisoner complaining of prison
doctor’s treatment decisions) with Sprull v. Gillis, 372 F.3d
218, 236 (3d Cir. 2004) (a non-physician supervisor may be liable
under § 1983 if he knew or had reason to know of inadequate
medical care).
The facts alleged by Plaintiff establish neither a serious
medical need nor deliberate indifference on the part of personnel
at the Middlesex County Adult Correctional Center.
Plaintiff has
alleged that he has itching on only an intermittent, not
constant, basis.
He has alleged no facts suggesting that the
itching arises from a serious medical condition or from any
conditions at the jail; to the contrary, he alleges that medical
personnel have evaluated the itching and determined that he does
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not suffer from scabies.
Moreover, he alleges that medical
personnel have provided him with medications for his itching.
In
short, he alleges only a difference of opinion about what
treatment he should be receiving, plainly an insufficient basis
for a claim that his Eighth Amendment right to medical care has
been violated.
For all the foregoing reasons, the Complaint must be
dismissed.
B.
No Vicarious Liability
In addition, the claims against the named defendants appear
to be based solely upon an untenable theory of vicarious
liability, seeking to hold the named defendants liable for the
actions of individual nurses and/or correctional officers.
Municipal corporations and supervisors are not liable under
§ 1983 solely on a theory of respondeat superior.
See City of
Oklahoma City v. Tuttle, 471 U.S. 808, 824 n.8 (1985); Monell v.
New York City Department of Social Services, 436 U.S. 658, 69091, 694 (1978) (municipal liability attaches only “when execution
of a government’s policy or custom, whether made by its lawmakers
or by those whose edicts or acts may fairly be said to represent
official policy, inflicts the injury” complained of); Natale v.
Camden County Correctional Facility, 318 F.3d 575, 583-84 (3d
Cir. 2003).
“A defendant in a civil rights action must have
personal involvement in the alleged wrongs, liability cannot be
13
predicated solely on the operation of respondeat superior.
Personal involvement can be shown through allegations of personal
direction or of actual knowledge and acquiescence.”
Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citations
omitted).
Accord Robinson v. City of Pittsburgh, 120 F.3d 1286,
1293-96 (3d Cir. 1997); Baker v. Monroe Twp., 50 F.3d 1186, 119091 (3d Cir. 1995).
To establish municipal liability under § 1983, “a plaintiff
must show that an official who has the power to make policy is
responsible for either the affirmative proclamation of a policy
or acquiescence in a well-settled custom.”
Bielevicz v. Dubinon,
915 F.2d 845, 850 (3d Cir. 1990), quoted in Blanche Rd. Corp. v.
Bensalem Twp., 57 F.3d 253, 269 n.16 (3d Cir.), cert. denied, 516
U.S. 915 (1995), and quoted in Woodwind Estates, Ltd. v.
Gretkowski, 205 F.3d 118, 126 (3d Cir. 2000).
A plaintiff must
demonstrate that, through its deliberate conduct, the
municipality was the moving force behind the plaintiff’s injury.
Monell, 436 U.S. at 689.
A policy is made “when a decisionmaker possess[ing]
final authority to establish municipal policy with
respect to the action issues a final proclamation,
policy or edict.” Kneipp v. Tedder, 95 F.3d 1199, 1212
(3d Cir. 1996) (quoting Pembaur v. City of Cincinnati,
475 U.S. 469, 481, 106 S.Ct. 1292, 89 L.Ed.2d 452
(1986) (plurality opinion)). A custom is an act “that
has not been formally approved by an appropriate
decisionmaker,” but that is “so widespread as to have
the force of law.” [Bd. of County Comm’rs of Bryan
County, Oklahoma v. Brown, 520 U.S. 397, 404 (1997).]
14
There are three situations where acts of a
government employee may be deemed to be the result of a
policy or custom of the governmental entity for whom
the employee works, thereby rendering the entity liable
under § 1983. The first is where “the appropriate
officer or entity promulgates a generally applicable
statement of policy and the subsequent act complained
of is simply an implementation of that policy.” The
second occurs where “no rule has been announced as
policy but federal law has been violated by an act of
the policymaker itself.” Finally, a policy or custom
may also exist where “the policymaker has failed to act
affirmatively at all, [though] the need to take some
action to control the agents of the government ‘is so
obvious, and the inadequacy of existing practice so
likely to result in the violation of constitutional
rights, that the policymaker can reasonably be said to
have been deliberately indifferent to the need.’”
Natale, 318 F.3d at 584 (footnote and citations omitted).
The same standard applies to claims against a private
corporation that is functioning as a “state actor.”2
See Weigher
2
Private parties may be liable under § 1983 only when they
have acted under color of state law. Mark v. Borough of Hatboro,
51 F.3d 1137, 1141 (3d Cir.), cert. denied, 516 U.S. 858 (1995)
(quoting Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156 (1978)).
The “under color of state law” requirement of 42 U.S.C. § 1983
has been treated identically to the “state action” requirement of
the Fourteenth Amendment. See Mark, 51 F.3d at 1141 (citing
United States v. Price, 383 U.S. 787, 794 n.7 (1966)); Lugar v.
Edmondson Oil Co., 457 U.S. 922, 928 (1982); Rendell-Baker v.
Kohn, 457 U.S. 830, 838 (1982)). State action exists under
§ 1983 only when it can be said that the government is
responsible for the specific conduct of which a plaintiff
complains. Mark, 51 F.3d at 1141-42. “Put differently, deciding
whether there has been state action requires an inquiry into
whether ‘there is a sufficiently close nexus between the State
and the challenged action of [the defendants] so that the action
of the latter may fairly be treated as that of the State
itself.’” Id. at 1142 (quoting Blum v. Yaretsky, 457 U.S. 991,
1004 (1982)).
A private entity can be sued under § 1983 only where (1) it
“has exercised powers that are traditionally the exclusive
15
v. Prison Health Services, 402 Fed.Appx. 668, 669-70, 2010 WL
4739701 (3d Cir. Nov. 23, 2010).
For purposes of this Opinion
and the accompanying Order, this Court will assume that C.F.G.
Health Systems, L.L.C., could be considered a “state actor” for
purposes of § 1983.
Nevertheless, here, where Plaintiff has alleged no facts
suggesting that the challenged events were the result of a
policy, practice, or custom, there is no basis to find the named
defendants liable.
V.
CONCLUSION
For the reasons set forth above, the Complaint will be
dismissed, pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and
1915A(b)(1) and 42 U.S.C. § 1997e(e), for failure to state a
claim.3
However, because it is conceivable that Plaintiff may be
prerogative of the State,” Mark, 51 F.3d at 1142; (2) the State
and the private party act in concert or jointly to deprive a
plaintiff of his rights, Adickes v. S.H. Kress & Co., 398 U.S.
144, 170-171 (1970); (3) the State has permitted a private party
to substitute his judgment for that of the State, Cruz v.
Donnelly, 727 F.2d 79, 81-82 (3d Cir. 1984); or (4) the private
party and the State have a symbiotic relationship as joint
participants in the unconstitutional activity, Edmonson v.
Leesville Concrete Co., Inc., 500 U.S. 614, 620 (1991); Mark, 51
F.3d at 1143.
3
The Court notes that “‘[g]enerally, an order which
dismisses a complaint without prejudice is neither final nor
appealable because the deficiency may be corrected by the
plaintiff without affecting the cause of action.’ ... The
dispositive inquiry is whether the district court’s order finally
resolved the case.” Martin v. Brown, 63 F.3d 1252, 1257-58 (3d
Cir. 1995) (quoting Borelli v. City of Reading, 532 F.2d 950, 951
(3d Cir. 1976)) (other citations omitted). In this case, if
16
able to supplement his pleading with facts sufficient to overcome
the deficiencies noted herein, the Court will grant Plaintiff
leave to move to re-open and to file an amended complaint.4
To
overcome the deficiencies noted herein, Plaintiff must be able to
assert facts establishing (1) a serious medical condition, and
(2) deliberate indifference, (3) by the named defendants.
An appropriate order follows.
s/Freda L. Wolfson
Freda L. Wolfson
United States District Judge
Dated: October 24, 2011
Plaintiff can correct the deficiencies of his Complaint, he may
file a motion to re-open these claims in accordance with the
court rules.
4
Plaintiff should note that when an amended complaint is
filed, the original complaint no longer performs any function in
the case and “cannot be utilized to cure defects in the amended
[complaint], unless the relevant portion is specifically
incorporated in the new [complaint].” 6 Wright, Miller & Kane,
Federal Practice and Procedure § 1476 (2d ed. 1990) (footnotes
omitted). An amended complaint may adopt some or all of the
allegations in the original complaint, but the identification of
the particular allegations to be adopted must be clear and
explicit. Id. To avoid confusion, the safer course is to file
an amended complaint that is complete in itself. Id.
17
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