WILSON v. CORRECT CARE SOLUTION et al

Filing 8

MEMORANDUM OPINION. Signed by Judge Peter G. Sheridan on 4/17/2014. (gxh)

~ECEIVED

APR 17 2014
*NOT FOR PUBLICATION*

AT 8:30

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

M

WILLIAM T. WALSH CLERK

. RAYMOND WILSON,
Civil Action No. I2-I543 (PGS)
Plaintiff,

v.

MEMORANDUM OPINION

CORRECT CARE SOLUTION, et al.,
Defendants.

THE COURT having issued an Opinion and Order on August I4, 20I3 dismissing
Plaintifrs complaint for failure to state a claim upon which relief may be granted but allowing
Plaintiff to file an amended complaint (ECF Nos. 5-6); and Plaintiff having filed said amended
complaint (ECF No.7); and
IT APPEARING that the Prison Litigation Reform Act, Pub.L. No. I04-134, §§ 80I-810,
II 0 Stat. I32I-66 to I321-77 (April 26, I996), requires a district court to review a complaint in a
civil action in which a prisoner is proceeding in forma pauperis or seeks redress against a
governmental employee or entity; and it further appearing that the Supreme Court held that to
I

prevent a summary dismissal, a civil complaint must allege "sufficient factual matter" to show that
the claim is facially plausible [which] then "allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged," Fowler v. UPMC Shadyside, 578 F.3d 203,
2IO (3d Cir. 2009)(citing Ashcroft v. Iqbal, 556 U.S. 662, I29 S.Ct. 1937, I73 L;Ed.2d 868
(2009)); and it further appearing that "[a] complaint must do more than allege the p1aintiffs
entitlement to relief. A complaint has to 'show' such an entitlement with its facts," Fpwler, 578
F.3d at 211 (citing Phillips v. County ofAllegheny, 515 F.3d 224,234-35 (3d Cir. 2008)); and

THE COURT finding that in his amended complaint, Plaintiff names Correct Care
Solution ("CCS") and Cosmo DeFazio as defendants; against CCS, Plaintiff alleges ,that "there
[sic] policy or customary practice dictates that nurses are the initial first responders anddiagnosers
[sic] in emergencies.

This leads to a misdiagnosis," (Am. Compl.

~

4(b)); against Cosmo

DeFazio, Plaintiff alleges that "on or about 12-9, [Plaintiff] requested to see a doctor because [he]
had blood in [his] pants. Nurse DeFazio said '[i]t was nothing but hemorroids [sic]. I have 20
years experience I know!' About 3 hours later [Plaintiff] needed 12 blood transfusions and two
major operations. [Plaintiff] almost died because DeFazio told the C.O. Garafola [Piaintifrs]
problem wasn't serious and left, (Am. Compl. ~ 6);" and
THE COURifurther finding_fuat for the reasons stated in this Court's August 14th Opinion
and Order, Plaintiffs claim against Defendant CCS will again be DISMISSED WITHOUT
PREJUDICE; Plaintiff has failed to allege facts to suggest that the misdiagnosis by Nurse DeFazio
and the failure to have a doctor, rather than a nurse, were the result of a custom or policy of CCS;
and
THE COURT further finding that in order to state a Fourteenth Amendment claim of
inadequate medical attention upon which relief may be granted, a plaintiff must allege that a
defendant acted with deliberate indifference to his serious medical needs, Lenhart v. Pa., 528 F.
App'x 111, 115 (3d Cir. 2013) (citing City ofRevere v. Mass. Gen. Hosp., 463 U.S. 239,243-44,
103 S.Ct. 2979, 77 L.Ed.2d 605 ( 1983 ); see also Natale v. Camden Cnty. Corr. Facility, 318 F.3d
575, 581 (3d Cir. 2003) (noting that a pretrial detainee's claim of inadequate medical care is
evaluated under the same standard as a convicted prisoner's Eighth Amendment claim of

2

inadequate medical care); Everettv. Nort, 2013 WL 6108053, at* 2 (3d Cir. Nov. 21, 2013) (using
the Estelle "deliberate indifference'' test to evaluate a pretrial detainee's medical claim); and
THE COURT further finding that the Estelle test requires an irunate to show that prison
officials acted with deliberate indifference to his serious medical need, see Natale, 318 F.3d at 582
(finding deliberate indifference requires proof that the official knew of and disregarded an
excessive risk to irunate health or safety); and an inmate's disagreement with medical professionals
"as to the proper medical treatment" does not support an 'Eighth Amendment violation, Monmouth

Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987); .and even if judgment
· concerning the proper course of a prisoner's treatment ultimately is shown to be mistaken, at most
_ _ _ _ :what w.ould_b_e_proven is medical malpractice and not an Eighth Amendment violation, Estelle,
429 U.S. at 105-06; White, 897 F.3d at 110; and
THE COURT further finding that as alleged in the Amended Complaint, Plaintiff received
medical attention from Nurse DeFazio, wherein he concluded that Plaintiffs condition was caused
by hemorrhoids; even if Nurse DeFazio's diagnosis turned out to be incorrect, as it appears was the
case based on Plaintiffs allegations, Plaintiff would have only proven malpractice at best, not a
constitutional violation; and Plaintiff fails to allege any facts to indicate that Nurse DeFazio was
deliberately indifferent to his serious medical need; as such, the claim against Defendant DeFazio
is DISMISSED WITHOUT PREJUDICE; however, because it is conceivable that Plaintiff may be
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 this case and to file a second amended
complaint; 1 and the Court having considered the matter without oral argument pursuant to Rule

1

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
3

(

78(b) and Local Civil

Rul~

7.l(i); and for good cause appearing, the Court will issue an

appropriate order.
Dated:

Peter G. Sheridan, U.S.D.J.

--------------------

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. /d. To avoid
confusion, the safer course is to file an amended complaint that is complete in itself. Jd.

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