MAQBOOL v. UNIVERSITY HOSPITAL OF MEDICINE & DENTISTRY OF NEW JERSEY et al
Filing
44
OPINION. Signed by Judge Mary L. Cooper on 6/13/2012. (gxh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
:
:
CIVIL ACTION NO. 11-4592 (MLC)
Plaintiff,
:
:
O P I N I O N
v.
:
:
UNIVERSITY HOSPITAL OF MEDICINE & :
DENTISTRY OF NEW JERSEY, et al., :
:
Defendants.
:
:
TARIQ MAQBOOL,
COOPER, District Judge
Plaintiff, a prisoner confined at New Jersey State Prison
(“NJSP”), brought a civil action in state court against Defendants:
(1) University of Medicine and Dentistry of New Jersey (“UMDNJ”);
(2) Correctional Medical Services (“CMS”); (3) New Jersey
Department of Corrections (“DOC”); (4) former Commissioner George
Hayman; (5) current Commissioner Gary Lanigan; (6) Dr. Jose
Fuentes; (7) Dr. Alan Martin; (8) Dr. Ronald Schliftman; (9) Dr.
Abu Ahsan; (10) Nurse Patricia Voss; (11) Nurse Donique Ivey;
(12) Dr. Ihuoma Nwachukwu; (13) Warden Michelle Ricci; (14) a
certain Joanne Howell; (15) Assistant Superintendent Christopher
Holmes; (16) Nurse Brown; (17) Dr. Glick; and (18) ten
unspecified “John/Jane Doe(s), 1-10”.
(See dkt. entry no. 1-1.)
On August 9, 2011, Lanigan filed a Notice of Removal.
dkt. entry no. 1.)
(See
By September 29, 2011, three filings reflected
appearances by UMDNJ, Ahsan, Howell, Nwachukwu, and Brown.
dkt. entries nos. 4, 5, 6.)
(See
On October 13, 2011, Plaintiff filed
a document purporting to operate as a notice of claim required by
state law.
(See dkt. entry no. 7.)
CMS appeared in the action on October 27, 2011.
entry no. 10.)
(See dkt.
Plaintiff filed a letter on the same day opposing
removal, alleging that he commenced his action in state court on
June 22, 2011, verifying that he was still striving to serve all
defendants, and requesting appointment of counsel.
entry no. 11.)
(See dkt.
On October 28, 2011, Plaintiff sought entry of
default against Ricci, Hayman, Holmes, Voss, and Ivey, asserting
that he “mailed summons and a copy of [his] complaint” to Ricci
and Hayman by “inter-department” mail, and to Holmes, Voss, and
Ivey by “prison institutional mail.”
(Dkt. entry no. 12.)
Glick filed an Answer on November 3, 2011.
no. 14.)
(See dkt. entry
Plaintiff moved for remand on November 9, 2011, arguing
that his knowledge of state law was better than that of federal
law.
(See dkt. entry no. 15.)
Defendants, inter alia, argued in
opposition that (1) removal was proper, and (2) Plaintiff could
litigate this action pro se since he had filed papers and
motions, his command of English was such that he tutored English
to others, and he averred that he had extensively studied
pertinent state law governing the bulk of his claims and took
additional training in legal research.
(See dkt. entry no. 23.)
Brown, Howell, Lanigan, DOC, and UMDNJ moved to dismiss the
Complaint on December 9, 2011. (See dkt. entry no. 24.) Plaintiff
then filed a motion wherein he conceded that he failed to file a
2
timely notice of claim required by state law, and sought leave to
file such notice out of time. (See dkt. entry no. 25.)
On
December 20, 2011, CMS also moved to dismiss the Complaint.
dkt. entry no. 26.)
(See
The parties then filed additional papers
concerning the pending motions and requests.
(See dkt. entry
nos. 29, 34, 36, 39, 40, 42 and 43.)
The Magistrate Judge denied Plaintiff’s requests for
counsel.
(See dkt. entry no. 41.)
Now, for the reasons detailed
below, (1) the Complaint will be dismissed, and (2) the requests
for remand, entry of default, and to file a late notice of claim
will be denied.
I.
BACKGROUND
The Complaint lists events taking place since 2005.
Compl. at 10.)
(See
According to Plaintiff, on an unspecified date
in “late 2005”, he fell and hurt his right wrist while playing
soccer in the prison gym.
(See id. ¶ 23.)
fall to the condition of the gym floor.
He attributed his
(See id.)
He maintains
that, after the fall, a certain Jane Doe examined his wrist, gave
him pain-reducing medication and informed him that, in order to
be diagnosed and treated, his wrist had to be x-rayed.
¶ 24.)
(See id.
According to the Complaint, the wrist was x-rayed in
March 2006, and Fuentes assessed the x-ray concluding that the
wrist appeared normal.
(See id. ¶ 25.)
Plaintiff asserts that, in mid-2006, he met Ricci during a
public reception and informed her that, about a year prior, he
3
fell in the gym because of a defect in the floor, and Ricci
promised to “look into that matter.”
(See id. ¶ 27.)
Plaintiff also asserts that, because he kept complaining
about pain in the wrist to unspecified individuals, another x-ray
was conducted in July 2006, and a hairline fracture was detected.
(See id. ¶¶ 28-30.)
The diagnostic report of that second x-ray
was produced by Schliftman and Martin; the report did not direct
a follow-up diagnostic procedure, such as an MRI.
31.)
(See id. ¶
Plaintiff was not informed about the hairline fracture
diagnosis and, instead, he was directed by an unspecified John
Doe to treat the wrist with ice.
(See id. ¶¶ 32-35.)
But Plaintiff concedes that in 2008, upon being examined by
Ivey, he was informed that the wrist had a hairline fracture.
(See id. ¶ 36.)
As Plaintiff kept complaining about wrist pain,
in June 2008 an MRI was performed, which verified the existence
of the hairline fracture, and Plaintiff was supplied with a wrist
wrap and referred to an orthopedic surgeon.
(Id. ¶¶ 38-39.)
A
surgeon examined Plaintiff also in 2008 and recommended surgery
out of concern that Plaintiff could develop complications in the
event he develops arthritis; Plaintiff, therefore, had the wrist
operated on in 2008.
(See id. ¶¶ 40-42.)
He asserts that the
surgeon recommended a post-surgical casting of the wrist and
physical therapy.
(See id. ¶ 43.)
Plaintiff’s wrist was set in a cast after surgery.
The cast
was removed by Glick in either April or May 2009, and allegedly
4
during the process of removing the cast, Glick (a) speculated that
the wrist might have healed on its own had it been placed in a
cast right after the injury, and (b) informed Plaintiff that some
loss of maneuverability of the wrist might remain, although this
loss might be diminished by physical therapy. (See id. ¶¶ 44-49.)
Plaintiff, therefore, requested physical therapy.
(Id. ¶ 52.)
Plaintiff further alleges that another x-ray of the wrist
was conducted in January 2009, and Ivey signed the diagnostic
report assessing what the x-ray disclosed.
(See id. ¶ 50.)
One
more x-ray was conducted in April 2009, and Ahsan executed a
diagnostic report on the basis of that x-ray.
(See id. ¶ 53.)
Plaintiff asserts that he again requested physical therapy
and, on an unspecified date in 2008 or 2009, was “scheduled to go
to the clinic”, apparently to have a meeting with Ivey about his
requests for physical therapy.
But Ivey did not see Plaintiff
and merely advised him, through Brown, that he needed no physical
therapy.
(See id. ¶ 55.)
Consequently, Plaintiff complained
about Ivey’s findings and requested physical therapy by means of
an official remedy form; in response to this grievance, he was
informed that physical therapy was deemed unnecessary by a
“physician”.
(See id. ¶¶ 56-57.)
Since Ivey and Brown were
nurses, Plaintiff filed an appeal asserting that the “physician”
to whom he spoke last was Glick, and Glick recommended to him to
explore the benefits of physical therapy.
5
(See id. ¶ 58.)
Plaintiff’s wrist was x-rayed again in August 2009, and he
was indeed scheduled for physical therapy.
(See id. ¶¶ 59-60.)
According to Plaintiff, during the therapy sessions, a therapist
speculated that the therapy might have been more effective had it
been administered right after the surgery.
(See id. ¶¶ 62-64.)
Plaintiff received a response in December 2009 as to his
appeal requesting physical therapy (that is, his appeal filed
before Plaintiff began receiving the therapy); the response was
issued by Holmes and stated, correctly, that – by the time of
Holmes’s response – Plaintiff had already received physical
therapy.
(See id. ¶¶ 65-68.)
Plaintiff maintains that he is now being denied a support
wrap for the wrist by unspecified individuals.
He also alleges
that he was receiving pain-reducing over-the-counter medication
in November 2010 from unspecified individuals without being
provided with a warning as to potential side effects, and – upon
Plaintiff’s inquiry – Ahsan recommended to him to reduce intake
of these medications in the event they cause Plaintiff an
irritated bowel.
(See id. ¶¶ 70-76; compare ¶ 79.)
Plaintiff’s final allegations pertain to events on November
2 through November 4, 2010, when (a) he allegedly asked a nurse
not named as a Defendant in this action for a “soft cuff” to wrap
the wrist to protect it during Plaintiff’s trip to a state court,
(b) the soft cuff was allegedly not provided, and (c) the wrist
6
allegedly suffered swelling and pain because he was handcuffed
during the trip.
(See id. ¶¶ 79-84.)
The Complaint closes with Plaintiff’s statement that, as of
now, the gym floor is still not fixed and “is hardly ever
cleaned.”
II.
(See id. ¶ 86.)
PARTIES’ POSITIONS
A.
Plaintiff’s Claims
Plaintiff asserts breach of contract as an intended third
party beneficiary by CMS and UMDNJ, as these entities failed to
fulfil their contractual obligations to DOC; medical malpractice
by CMS, UMDNJ, Fuentes, Martin, Schliftman, Howell, Nwachukwu,
Ivey, Ahsan, Brown, Glick, and the Doe defendants; negligence;
deliberate indifference ensuing from the condition of the gym
floor; deliberate indifference ensuing from Plaintiff’s medical
treatment; “breach of N.J. Stat. Ann. § 30:4-91.1 [and] N.J.
Admin. Code § 10A:16”; “unspecified” causes of action
(paraphrasing the negligence claim); “Title 42 U.S.C. § 1986”;
intentional infliction of emotional distress; “State
constitutional claim”; “federal constitutional tort”; “State
constitutional tort”; and fraud.
1.
(Id. at 19-51.)
Claims Facially Without Merit
Plaintiff has no standing to sue either CMS or UMDNJ for an
alleged breach of contract with DOC.
Plaintiff has no standing to sue for such violation: this
is so even if Plaintiff deems or designates himself as a
third-party beneficiary of this contract. See Brown v.
7
Sadowski, 2009 U.S. Dist. LEXIS 62718, at *13 (D.N.J. July
20, 2009) (“Plaintiff has no standing to seek enforcement
of any duties his prison officials might owe to the state,
since Plaintiff is not an expressly designated third party
beneficiary of the contracts, if any, that the state might
have with the prison officials”) (relying on Anza v. Ideal
Steel Supply Corp., 547 U.S. 451 (2006)); accord Glenn v.
Hayman, 2007 U.S. Dist. LEXIS 20092, at *34 (D.N.J. Mar.
20, 2007) (analogously relying on Anza for the observation
that, “[s]ince the State of New Jersey was the allegedly
defrauded party (and in no way designated Plaintiffs to
litigate the alleged RICO claim on behalf of the State),
Plaintiffs cannot bring this claim”).
Parker v. Gateway Nu-Way Found., 2010 U.S. Dist. LEXIS 115116, at
*14-15 (D.N.J. Oct. 26, 2010); see Binkley v. Rendell, 2012 U.S.
Dist. LEXIS 10795, at *15-16 n.5 (M.D. Pa. Jan. 30, 2012) (same).
Plaintiff also has no claim for “federal constitutional
tort” other than his 42 U.S.C. § 1986 claim.
If Plaintiff
intended to rely on the Federal Tort Claims Act, such a claim is
unavailable, since there are no federal defendants.
U.S.C. § 1346.
See 28
Furthermore, to the extent Plaintiff sought to
raise “State constitutional claims” or “State constitutional
tort” falling outside the New Jersey Tort Claims Act (“NJTCA”),
such challenges are duplicative of the Section 1983 claims, and
will be addressed as Section 1983 claims only.
N.J.S.A. § 30:4-91.1 and N.J.A.C. § 10A:16, both cited by
Plaintiff, are wholly inapposite to his circumstances and claims,
since Section 30:4-91.1 pertains to “the power to transfer
inmates from one institution to another,” Gibson v. Lynch, 652
F.2d 348, 354 (3d Cir. 1981), and no private cause of action
arises under Section 10A:16.
See Ali v. D.O.C., 2008 U.S. Dist.
8
LEXIS 96061, at *22-23 (D.N.J. Nov. 19, 2008) (stating DOC
Commissioner promulgated the regulation in accordance with
Estelle v. Gamble, which provides constitutional basis for claim
for failure to provide medical care, and thus plaintiff had no
separate private cause of action under N.J.A.C. § 10A:16).
2.
Remaining Groups of Plaintiff’s Causes of Action
The Court will address the remaining claims in clusters as
follows: (a) constitutional challenges asserting deliberate
indifference; (b) state-law personal injury claims; and (c)
state-law negligence challenges, such as medical malpractice.
B.
Defendants’ Arguments
Defendants collectively assert that the claims are untimely
and that the constitutional challenges fail to state a claim.
Brown, Howell, Lanigan, DOC and UMDNJ separately assert DOC was
improperly named as a Defendant; claims against UMDNJ and Lanigan
are insufficient being based solely on the theory of respondeat
superior; and the state law claims are procedurally defective and
insufficient.
Glick additionally asserts that Plaintiff’s
allegations did not pertain to him.
III. STANDARD OF REVIEW
A.
Summary Dismissal
The Court must identify cognizable claims and sua sponte
dismiss any claim that is frivolous, is malicious, fails to state
a claim upon which relief may be granted, or seeks monetary relief
from a defendant who is immune from such relief. See 28 U.S.C. §
9
1915(e)(2)(B).
The Court must be mindful to construe a pro se
complaint liberally in the plaintiff’s favor in determining its
sufficiency.
See Erickson v. Pardus, 551 U.S. 89, 93-94 (2007)
(citing Estelle v. Gamble, 429 U.S. 97, 106 (1976), and Haines v.
Kerner, 404 U.S. 519, 520-21 (1972)).
But a complaint must
contain “a short and plain statement of the claim showing that
the pleader is entitled to relief,” and “[a] pleading that offers
[merely] ‘labels and conclusions’ or ‘a formulaic recitation of
the elements of a cause of action will not do.’”
Ashcroft v.
Iqbal, 556 U.S. 662, 677-78 (2009) (relying on Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007)).
Therefore, “threadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice,” and “only a complaint
that states a plausible claim for relief survives.
. . .
Determining whether a complaint states a plausible claim for
relief . . . requires the reviewing court to draw on its judicial
experience and common sense.
[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.’”
Iqbal, 556 U.S. at
678-79 (cites omitted).
B.
Analysis
When screening the Complaint pursuant to § 1915(e)(2)(B),
the Court must accept all factual allegations contained therein
10
as true, construe the claims in the light most favorable to
Plaintiff, and determine whether Plaintiff may be entitled to
relief.
See Courteau v. United States, 287 Fed.Appx. 159, 162
(3d Cir. 2008); Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir.
2000); Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999);
see also Phillips v. Cnty. of Allegheny, 515 F.3d 224, 233 (3d
Cir. 2008).
The Complaint must “state a claim to relief that is
plausible on its face.
A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.”
See Iqbal, 556 U.S. at 678 (cites and
quotes omitted).
IV.
DISCUSSION
A.
Complaint Violates Rules 18 and 20
Rule 20(a)(2) of the Federal Rules of Civil Procedure limits
the joinder of defendants, while Rule 18(a) governs the joinder
of claims.
See Fed.R.Civ.P. 18(a), 20(a)(2).
Rule 18 (a) provides: “A party asserting a claim . . . may
join, as independent or alternative claims, as many claims as it
has against an opposing party.”
Fed.R.Civ.P. 18(a).
But Rule
20(a)(2) provides: “Persons . . . may be joined in one action as
defendants if: (A) any right to relief is asserted against them
jointly, severally, or in the alternative with respect to or
arising out of the same transaction, occurrence, or series of
11
transactions or occurrences; and (B) any question of law or fact
common to all defendants will arise in the action.” Fed.R.Civ.P.
20(a)(2).
Thus, all claims must be transactionally related and
involve a common question of law or fact.
20(a)(2).
See Fed.R.Civ.P.
Specifically, a prisoner may not join in one case all
defendants against whom he may have a claim, unless he satisfies
the requirements of Rule 20(a)(2):
[M]ultiple claims against a single party are fine,
but Claim A against Defendant 1 should not be joined
with unrelated Claim B against Defendant 2.
Unrelated claims against different defendants belong
in different suits, [so] to prevent the sort of
morass that this 50-claim, 24-defendant suit produced
. . . . A buckshot complaint that would be rejected
if filed by a free person - say, a suit complaining
that A defrauded the plaintiff, B defamed him, C
punched him, D failed to pay a debt, and E infringed
his copyright, all in different transactions - should
be rejected if filed by a prisoner.
George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007).
The Complaint, which Plaintiff asserts was filed on June 22,
2011, is a diary spanning 2005 to November 2010.
no. 11.)
(See dkt. entry
While the allegations pertaining to Plaintiff’s alleged
injury of his wrist and the following medical treatment could be
arguably combined into a chain of claims meeting the requirements
of Rules 18 and 20, Plaintiff’s final groups of challenges
(pertaining to his allegations about the November 2010 denial of
a “soft cuff” during his transportation to a state court, the
denial of a support wrap, and the current failure to maintain the
gym floor) cannot be grouped into his original chain of claims.
12
These latter claims will be dismissed without prejudice to
raising them by means of a distinct and separate civil complaint.1
The Court, therefore, will address only the claims
concerning injury of the wrist and defective medical treatment
taking place between 2005 and November 2010.
B.
Statute of Limitations
Civil rights claims are governed by the applicable state’s
statute of limitations for personal injury actions.
v. Garcia, 471 U.S. 261, 280 (1985).
See Wilson
Accordingly, New Jersey’s
two-year limitations period on personal injury actions governs
such claims.
See N.J.S.A. § 2A:14-2; Montgomery v. DeSimone, 159
F.3d 120, 126 & n.4 (3d Cir. 1998); Cito v. Bridgewater Township
Police Dep’t, 892 F.2d 23, 25 (3d Cir. 1989).
Under N.J.S.A. §
2A:14-2, an action for an injury to the person caused by a
wrongful act, neglect, or default must be brought within two
years of accrual.
See Cito, 892 F.2d at 25.
New Jersey law sets forth certain bases for “statutory
tolling.”
See, e.g., N.J.S.A. § 2A:14-21 (tolling for minority
or insanity); N.J.S.A. § 2A:14-22 (tolling for nonresidency of
1
The Court expresses no opinion as to the substantive or
procedural validity or invalidity of these claims. But the Court
notes that – if Plaintiff raises such claims before November 2012
– these claims could be timely within the meaning of the
applicable two-year statute of limitations, which, in turn, means
that Plaintiff would not be disadvantaged by the Court’s
dismissal of his claims violating Rules 18 and 20. Also, the
Court advises Plaintiff that he may bring the distinct and
separate action in state court, where it may remain if he
refrains from raising federal claims therein.
13
persons liable).
New Jersey law also permits “equitable tolling”
where “the complainant has been induced or tricked by his
adversary’s misconduct into allowing the filing deadline to
pass,” or where a plaintiff has “in some extraordinary way” been
prevented from asserting rights, or where a plaintiff has timely
asserted rights mistakenly either by defective pleading or in the
wrong forum.
See Freeman v. State, 347 N.J.Super. 11, 31 (N.J.
App.Div. 2002).
“However, absent a showing of intentional
inducement or trickery by a defendant, the doctrine of equitable
tolling should be applied sparingly and only in the rare
situation where it is demanded by sound legal principles as well
as the interests of justice.”
Id.
None of the available tolling options appear to apply to
Plaintiff’s pleading.
Thus, his constitutional challenges
warrant no equitable tolling and are governed strictly by the
two-year limitations period.
Medical malpractice claims also must be commenced within two
years of the alleged negligence.
See N.J.S.A. § 2A:14-2.
The Complaint states that Plaintiff fell and injured his
wrist in 2005, meaning that all his claims associated with that
fall and injury expired in 2007.
The alleged examination of his
wrist by Jane Doe, and Fuentes’s allegedly negligent assessment
of Plaintiff’s first x-ray, occurred in 2005 to 2006.
Since the
Complaint includes no statement suggesting fraudulent concealment
14
by Jane Doe or Fuentes, these claims expired in 2008.
Plaintiff’s claim against Ricci based on his complaining to her
about the gym floor arose from the events which, allegedly, took
place in mid-2006 and, thus, also expired in 2008.
The claims against Schliftman and Martin stem from an x-ray
performed in 2006, wherein Plaintiff concedes that Schliftman and
Martin arrived at the correct diagnosis (but maintains that they
erroneously did not direct an MRI).
Even if Plaintiff’s claims
had merit, those claims expired in 2008, and no statement made in
the Complaint suggests that Schliftman and Martin fraudulently
concealed their medical findings from Plaintiff.
Furthermore,
even if fraudulent concealment of Plaintiff’s diagnosis could,
somehow, be read into the actions of John Doe, Plaintiff’s claim
accrued when he was expressly informed about the nature of his
injury by Ivey, during her 2008 examination of the wrist.
Thus,
all of Plaintiff’s claims associated with his injury and
allegedly undue treatment that had taken place until Ivey’s
examination expired by 2010.
All of Plaintiff’s claims associated with the surgery of his
wrist, conducted in 2008, also expired in 2010.
Moreover, all of
Plaintiff’s claims associated with his next x-ray (assessed by
Ivey in January 2009), his requests for physical therapy that
were made after surgery, and his allegations based on Glick’s
removal of Plaintiff’s post-surgical cast (ensuing from the
events of April or May of 2009) also expired before or in May of
15
2011, i.e., prior to June 22, 2011, which is the date asserted by
Plaintiff as the date of his filing of the suit in a state forum.
Correspondingly, all of these claims are untimely and must be
dismissed.
Plaintiff’s claim that he did not “discover” his
injuries until September 2009 (see dkt. entry no. 1-1, ¶ 78), is
without merit, since the Complaint shows that he was well aware
of his injury since 2005, was apprised of the nature of this
injury since 2008 at the latest, and sought physical therapy in
2008.
While Plaintiff asserts that Defendants committed fraud,
the Complaint shows, in the clearest terms, that no fraudulent
action took place.
The only claims that do not appear facially untimely are:
(a) Ivey’s allegedly erroneous conclusion, conveyed to Plaintiff
through Brown, that Plaintiff needed no physical therapy; (b)
Ahsan’s execution of a diagnostic report on the basis of
Plaintiff’s September 2009 x-ray;2 (c) Holmes’s response to
Plaintiff’s grievance;3 (d) Plaintiff’s receipt of over-thecounter pain medication without clarification as to potential
side effects of these medications;4 and (e) Ahsan’s
2
As noted supra, Plaintiff concedes that Ahsan’s diagnosis
was correct.
3
As noted supra, Plaintiff concedes that the statements
made by Holmes were factually correct at the time of Holmes’s
execution of his response to Plaintiff’s grievance.
4
As noted supra, Plaintiff did not identify the individuals
who dispensed these medications.
16
recommendation to Plaintiff to reduce consumption of these
medications in the event Plaintiff observed certain side effects.
C.
Substantive Insufficiency of Constitutional Claims
Even if the Court were to factor out the untimeliness of
Plaintiff’s constitutional claims, the allegations fail to state
a claim upon which relief can be granted.
The claims against DOC
must be dismissed since it is not a “person” subject to liability
under § 1983.
See Grabow v. S. State Corr. Fac., 726 F.Supp.
537, 538-39 (D.N.J. 1989) (correctional facility not a person
under § 1983).
Therefore, even if Plaintiff’s claims against the
DOC were timely, they would still be subject to dismissal.
The claims against UMDNJ, CMS, Lanigan, and Ricci are based
solely on respondeat superior; the complaint makes it evident
that these defendants had no personal involvement in the
condition of the floor or in diagnosing Plaintiff’s injury, or in
the medical treatment provided to him or allegedly withheld.
Therefore, these claims are also subject to dismissal.
Absent a state’s consent, the Eleventh Amendment bars federal
suits for money damages against state officers in their official
capacities, see Kentucky v. Graham, 473 U.S. 159, 169 (1985), and
– in addition – supervising officials cannot be held liable for
actions of their subordinates unless the litigant asserts facts
showing personal involvement by the supervisors in the alleged
wrongs.
See Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978);
17
Rizzo v. Goode, 423 U.S. 362 (1976); Durmer v. O’Carroll, 991
F.2d 64, 69 n.14 (3d Cir. 1993).
Correspondingly, claims against
supervisors are subject to dismissal if based solely on the
respondeat superior theory.
See Natale v. Camden Cnty. Corr.
Fac., 318 F.3d 575, 584 (3d Cir. 2003).
Thus, even if Plaintiff’s
constitutional claims against UMDNJ, CMS, Lanigan and Ricci were
timely, the Court would still be constrained to dismiss them.
The claims against Voss, Nwachukwu, Howell and John/Jane
Does (other than Jane Doe who informed Plaintiff, in 2005, that
his wrist had to be x-rayed to be diagnosed and John Doe who, in
2008, recommended Plaintiff to apply ice to his wrist to reduce
the pain) are subject to dismissal for failure to assert personal
involvement in the alleged events.
A defendant in a civil rights
action must have personal involvement in the alleged wrongs to be
held liable.
2007).
See Baraka v. McGreevey, 481 F.3d 187, 210 (3d Cir.
Consequently, even if Plaintiff’s claims against Voss,
Nwachukwu, Howell and John/Jane Does were instituted in a timely
fashion, they would still be dismissed.
Also, the allegations
against Fuentes, Martin, Schliftman, Ahsan, Ivey, Brown, and
Glick fail to state a claim of any constitutional magnitude.
The Eighth Amendment proscription against cruel and unusual
punishment requires that prison officials provide inmates with
adequate medical care.
See Estelle, 429 U.S. at 103-04.
To set
forth a cognizable claim for a violation of this right, an inmate
18
must allege: (1) a serious medical need; and (2) behavior on the
part of prison officials that constitutes deliberate indifference
to that need. See id. at 106.
To satisfy the first prong of the
Estelle inquiry, the inmate must demonstrate that the 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.’”
McMillian, 503 U.S. 1, 9 (1992).
Hudson v.
Serious medical needs include
those that have been diagnosed by a physician as requiring
treatment or are so obvious that a lay person would recognize the
necessity for a doctor’s attention, and those conditions which,
if untreated, would result in lifelong handicap or permanent
loss.
See Monmouth Cnty. Corr. Inst’l 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.
See id.
For example, if
“unnecessary and wanton infliction of pain” results as a
consequence of a prolonged denial or delay in the provision of
adequate medical care, the medical need is of the serious nature
contemplated by the Eighth Amendment.
105.
See Estelle, 429 U.S. at
In addition, where denial or delay causes an inmate to
suffer a lifelong handicap or permanent loss, the medical need is
considered serious.
See, e.g., Archer v. Dutcher, 733 F.2d 14,
19
16 (2d Cir. 1984) (pregnant inmate who miscarried stated
cognizable claim where she alleged that defendants intentionally
delayed emergency medical aid for months).
Hence, a medical need
is serious where it “has been diagnosed by a physician as
requiring treatment or is . . . so obvious that a lay person
would easily recognize the necessity for a doctor’s attention.”
Lanzaro, 834 F.2d at 347.
“Deliberate indifference” exists “where [a] 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).
Furthermore,
deliberately delaying a necessary medical diagnosis for a long
period of time in order to avoid providing care constitutes
deliberate indifference that is actionable.
See Durmer, 991 F.2d
at 67-69. Deliberate indifference is also evident where officials
erect arbitrary and burdensome procedures that result in
interminable delays that deny medical care to suffering inmates.
See Lanzaro, 834 F.2d at 346-47.
However, inconsistencies or
differences in medical diagnoses, short delays unaccompanied by
arbitrary or unduly burdensome bureaucratic procedures, refusal
to consider an inmate’s self-diagnoses, to summon the medical
specialist of the inmate’s choice, or to perform tests or
20
procedures that the inmate desires, to explain to the inmate the
reason for medical action or inaction, or to train the inmate to
perform medical procedures cannot amount to cruel and unusual
punishment.
See White v. Napoleon, 897 F.2d 103 (3d Cir. 1990)
(mere disagreement over medical judgment or treatment not an
Eighth Amendment claim); Alsina-Ortiz v. Laboy, 400 F.3d 77 (1st
Cir. 2005) (doctor’s failure to respond to inmate’s certain
request for services, in context of doctor’s continued and
regular services, did not deprive inmate of meaningful
treatment); Smith v. Sator, 102 Fed.Appx. 907 (6th Cir. 2004)
(where prisoner alleged that defendants did not provide various
specialized medical tests that prisoner found to be necessary
based on his reading of medical literature, the complaint was
frivolous because refusal to provide specialized tests amounted
to nothing more than difference of opinion regarding medical
diagnosis and treatment and did not rise to level of Eighth
Amendment violation); Lopez v. Kruegar, 1990 U.S. Dist. LEXIS
6808 (E.D. Pa. June 4, 1990) (where plaintiff stated that he was
receiving medication but felt that additional medical tests
should be taken, his allegations were directed at wisdom or
quality of treatment and did not state claim).
Plaintiff’s claims here against Fuentes, Schliftman, Martin,
Ahsan, Ivey, Brown, and Glick are not of a constitutional
magnitude.
Even if the Court were to hypothesize that Plaintiff’s
hairline fracture amounted to a serious medical need, the actions
21
of these Defendants did not rise to the level of deliberate
indifference.
Indeed, the Complaint evinces continuous treatment
of Plaintiff’s injury, and Fuentes’s allegedly erroneous reading
of the first x-ray, Ivey’s observation that the wrist did not
require post-surgical physical therapy, or Ahsan’s recommendation
to reduce intake of pain relievers if Plaintiff suffered from
side effects could, at most, qualify as negligence.5
Moreover, Glick’s act of speculating about what should or
should not have been done by other medical practitioners, or
Brown’s act of conveying Ivey’s medical conclusions to Plaintiff
were not actions allowing for finding of any liability.
Also,
Ivey and Martin/Schliftman’s correct readings of Plaintiff’s xrays simply were not acts of deliberate indifference.
Correspondingly, all of these constitutional claims are facially
insufficient and will be dismissed.
D.
Procedural Deficiency of State Law Claims
While the above-discussed claims cannot serve as a basis for
cognizable constitutional claims, those claims that are timely and
allege negligent conduct could serve to support state law claims.
However, here, these claims are procedurally deficient on their
face.
5
Analogously, Plaintiff’s allegations that an unspecified
individual provided him with over-the-counter pain medication
without informing him about potential side effects could amount,
at most, to allegations of negligence.
22
The NJTCA governs tort claims against public entities and
employees.
N.J.S.A. § 59:1-1 et seq.
See Velez v. City of
Jersey City, 180 N.J. 284 (2004); Badalamente v. Monmouth Cnty.
Prosecutor’s Office, 2011 U.S. Dist. LEXIS 53457, at *25 (D.N.J.
May 17, 2011).
A notice of claim must be filed with the public
entity no later than the ninetieth day after accrual of the
underlying cause of action.
See N.J.S.A. § 59:8-8(a).6
Failure
to file the required notice will result in the dismissal of tort
claims.
See N.J.S.A. § 59:8-3 (“No action shall be brought
against a public entity or public employee under this act unless
the claim upon which it is based shall have been presented in
accordance with the procedure set forth in this chapter”).
It is undisputed that the Defendants at issue in these tort
claims are public entities and employees and, therefore, the
notice provisions of the NJTCA apply.
6
The complaint did not
A “claimant shall be forever barred from recovering
against a public entity or public employee if . . . [h]e failed
to file his claim with the public entity within 90 days of
accrual of his claim except as otherwise provided in section
59:8-9.” N.J.S.A. § 59:8-8. The purpose of the notice
requirement under N.J.S.A. § 59:8-8 is: “(1) to allow the public
entity at least six months for administrative review with the
opportunity to settle meritorious claims prior to the bringing of
suit; (2) to provide the public entity with prompt notification
of a claim in order to adequately investigate the facts and
prepare a defense; (3) to afford the public entity a chance to
correct the conditions or practices which gave rise to the claim;
and (4) to inform the State in advance as to the indebtedness or
liability that it may be expected to meet.” Moon v. Warren Haven
Nursing Home, 182 N.J. 507, 514 (2005) (quoting Beauchamp, 164
N.J. 111, 121-22 (2000)) (quotes and cites omitted).
23
allege that he filed a notice in accordance with the NJTCA;
moreover, his subsequent filings unambiguously (and repeatedly)
indicated that no notice was filed.
But there is a limited exception to the 90-day requirement:
where “extraordinary circumstances” exist for the claimant’s
failure to timely file and, in addition, defendants are not
“substantially prejudiced” by such late filing.7
“Extraordinary circumstances” are determined by a court on a
case-by-case basis.
See Rolax v. Whitman, 175 F.Supp.2d 720,
730-31 (2001), aff’d, 53 Fed.Appx. 635 (2002); S.P. v. Collier High
Sch., 319 N.J.Super. 452, 465 (N.J. App. Div. 1999).
In that
regard, the purpose of the phrase “extraordinary circumstances”
in the NJTCA is not to “relax” the standard but to “raise the bar
for the filing of late notice from a ‘fairly permissive standard’
to a ‘more demanding one.’”
Beauchamp, 164 N.J. at 118.8
7
“A claimant who fails to file notice of his claim within
90 days as provided in section 59:8-8 of [the Act], may, in
discretion of a judge . . . be permitted to file such notice at
any time within one year after the accrual of his claim provided
that the public entity or the public employee has not been
substantially prejudiced thereby. Application to the court for
permission to file a late notice of claim shall be made upon
motion supported by affidavits based upon personal knowledge of
the affiant showing sufficient reasons constituting extraordinary
circumstances for his failure to file notice of claim within the
period of time prescribed by section 59:8-8 of [the NJTCA] or to
file a motion seeking leave to file a late notice of claim within
a reasonable time thereafter.” N.J.S.A. § 59:8-9.
8
Beauchamp explained that, “in determining whether a notice
of claim under N.J. Stat. Ann. § 59:8-8 has been timely filed, a
sequential analysis must be undertaken.” 164 N.J. at 118.
24
Plaintiff’s claims here kept accruing from 2005 to 2008, when
Plaintiff first learned of his injury upon falling and having his
wrist hurt, then upon learning the nature of his injury and
getting recommendations to follow surgery with physical therapy.
He faced no extraordinary obstacles: as the record shows, he
swiftly filed a grievance against Ivey right after she informed
him about her opinion that no physical therapy was needed and,
just as swiftly, filed an administrative appeal once his grievance
was denied.
The time-line of the events and Plaintiff’s conduct
indicates that, had he wished to commence a timely NJTCA claim by
filing his notices of claim, he could have easily done so.
However, he elected to sit on his rights for months and even
years.
Granting him an opportunity to file his notice of claim
now would fly in the face of both the letter and spirit of
relevant state law.
Therefore, Plaintiff’s application for
filing his notice of claim out of time will be denied, and these
state law challenges will be dismissed as procedurally defective.
First, the court must determine when the claim accrued. “The
discovery rule is part and parcel of such an inquiry because it
can toll the date of accrual.” Id. Once the date of accrual is
ascertained, the court must then determine whether a notice of
claim was filed within ninety days. See id. If not, the court
must then decide whether extraordinary circumstances exist
justifying a late notice. See id. Importantly, “[i]t is a
common and regrettable occurrence for accrual and extraordinary
circumstances to be treated as interchangeable and for courts and
litigants to overlook the primary question of accrual and
directly confront the ultimate question of extraordinary
circumstances. What is important is to understand the framework
of a Tort Claims notice analysis and to follow it.” Id.
25
E.
Residual Determinations
The Court has no reason to grant Plaintiff’s application for
remand.
Defendants’ removal of the action was proper.
Plaintiff
chose to include federal claims in the Complaint, thus providing
Defendants with a basis for removal.
V.
CONCLUSION
The Complaint will be dismissed with prejudice as to all
claims related to all events other than the alleged denial of a
“soft cuff” in November 2010, the current denial of a support
wrap, and the current condition of the gym floor.
Those three
aforementioned lines of allegations will be dismissed without
prejudice, pursuant to Rules 18 and 20, and Plaintiff can, if he
so desires, raise these challenges by means of a new and separate
complaint filed in the forum of his choice.
The Court will issue
an appropriate order and judgment.
s/ Mary L. Cooper
MARY L. COOPER
United States District Judge
Dated:
June 13, 2012
26
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