SZEMPLE v. CORRECTIONAL MEDICAL SERVICE INC. et al

Filing 5

MEMORANDUM filed. Signed by Judge Peter G. Sheridan on 1/27/2014. (eaj)

*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CRAIG FRANCIS SZEMPLE,
Plaintiff,
v.
CORR. MED. SERV. INC., et al.,
Defendants.

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Civil Action No. 13-1058 (PGS)

MEMORANDUM

APPEARANCES:
CRAIG FRANCIS SZEMPLE, Plaintiff pro se
PRISON 263906
Northern State Prison
P.O. Box 2300
Newark, N.J. 07114
SHERIDAN, District Judge:
Plaintiff Craig Francis Szemple (“Plaintiff”), a prisoner currently confined at Northern
State Prison in Newark, New Jersey, has filed the instant civil rights action. At this time, the
Court must review the complaint pursuant to 28 U.S.C. § 1915A 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. For the
reasons set forth below, the Court concludes that the complaint should be dismissed.
I. BACKGROUND
The following factual allegations are taken from the complaint, and are accepted for
purposes of this screening only. The Court has made no findings as to the veracity of Plaintiff’s
allegations.

Plaintiff names the following parties as defendants: Correctional Medical Services
(“CMS”); University of Medicine and Dentistry of New Jersey, University Correctional Health
Care (“UMDNJ/UCHC”); Dr. Abu Ashan; Dr. Wu; Dr. Hochberg; Dr. Talbot; Dr. Acherbe; Dr.
Herbert Smyczek; Dr. Herschkowitz; Gary Lanigan; Dr. Richard Cevasco; Thomas Farrell;
Michelle Ricci; Eric Stokes; Bruce Hauck; Donald Mee; Cynthis Sweeney; Loillard Inc.; R.J.
Reynolds, Inc.; Phillip Morris, Inc.; Brown and Williamson Inc.; American Tobacco Co.; and John
and Jane Does 1-10.
Plaintiff alleges that he was placed in the custody and care of the New Jersey Department
of Corrections in or around 1994. (Compl. ¶ 27.) At that time, Plaintiff was placed in New
Jersey State Prison, where he was consistently exposed to second and third hand smoke.

(Id.)

Plaintiff alleges that the exposure caused him to suffer from Severe Coronary Artery Disease,
which required open heart surgery. (Id.) Plaintiff states that in 2001, “after almost dying as a
result of being exposed,” Plaintiff was asked by the defendants whether he smoked or had ever
smoked. (Id.) Plaintiff alleges that “the defendants could of [sic], but refused to place plaintiff
in a single man cell away from smokers.” (Id.) According to the complaint, Plaintiff’s diagnosis
of an irregular heartbeat should have been a “prime indicator for any doctor worth his salt” and the
failure to schedule Plaintiff for an appointment with a cardiologist was due to deliberate
indifference. (Id.)
In May 2010, Plaintiff re-entered New Jersey State Prison after spending approximately
two years in East Jersey State Prison and approximately eighteen months at Northern State Prison.
(Id. at ¶ 29.) During the time Plaintiff spent at East Jersey and Northern State prisons, he was
placed in cells with other men who smoked non-stop. (Id.) When Plaintiff was housed at New
Jersey State Prison in 2009 and 2010, he was also forced to be confined in a wing where he was
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“doubled locked” with six consecutive smokers, despite Plaintiff’s written and verbal complaints.
(Id.) Plaintiff alleges that even though the Department of Corrections had a rule forbidding
smoking inside the buildings, that rule was rarely, if ever, enforced. (Id.) Plaintiff alleges that
due to the exposure and lack of medical care, he has “lost cardiac function, is plagued with loss of
weight and muscle, and was forced to undergo open heart surgery, and multiple subsequent
angiograms.” (Id.) Plaintiff is seeking compensatory and punitive damages and injunctive
relief.
II. DISCUSSION
A. Legal Standard
1. Standards for a Sua Sponte Dismissal
Per the Prison Litigation Reform Act, Pub. L. No. 104-134, §§ 801-810, 110 Stat. 1321-66
to 1321-77 (April 26, 1996) (“PLRA”), district courts must review complaints in those civil
actions in which a prisoner is proceeding in forma pauperis, see 28 U.S.C. § 1915(e)(2)(B), seeks
redress against a governmental employee or entity, see 28 U.S.C. § 1915A(b), or brings a claim
with respect to prison conditions, see 28 U.S.C. § 1997e. The PLRA directs district courts to 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. This
action is subject to sua sponte screening for dismissal under 28 U.S.C. § 1915A because Plaintiff is
a prisoner.
According to the Supreme Court’s decision in Ashcroft v. Iqbal, “a pleading that offers
‘labels or conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’”
556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To

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survive sua sponte screening for failure to state a claim 1, the complaint must allege “sufficient
factual matter” to show that the claim is facially plausible. Fowler v. UPMS Shadyside, 578 F.3d
203, 210 (3d Cir. 2009) (citation omitted). “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.” Belmont v. MB Inv. Partners, Inc., 708 F.3d 470, 483 n.17 (3d
Cir. 2012) (quoting Iqbal, 556 U.S. at 678). Moreover, while pro se pleadings are liberally
construed, “pro se litigants still must allege sufficient facts in their complaints to support a claim.”
Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation omitted) (emphasis
added).
2. 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. See West v. Atkins, 487 U.S.
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“The legal standard for dismissing a complaint for failure to state a claim pursuant to 28 U.S.C.
§ 1915(e)(2)(B)(ii) is the same as that for dismissing a complaint pursuant to Federal Rule of Civil
Procedure 12(b)(6).” Schreane v. Seana, 506 F. App’x 120, 122 (3d Cir. 2012) (citing Allah v.
Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)); Mitchell v. Beard, 492 F. App’x 230, 232 (3d Cir.
2012) (discussing 28 U.S.C. § 1997e(c)(1)); Courteau v. United States, 287 F. App’x 159, 162 (3d
Cir. 2008) (discussing 28 U.S.C. § 1915A(b)).
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42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40 (1988); Malleus v. George, 641 F.3d 560, 563 (3d Cir.
2011).
B. Analysis
1. Merits of the Complaint
It appears that Plaintiff is raising the following federal claims: (1) deliberate indifference to
his medical needs; (2) failure to train/supervise; and (3) conspiracy under 42 U.S.C. §§ 1985,
1986. However, he has failed to plead sufficient facts under Iqbal to allow any of these claims to
proceed.
For the purposes of Eighth Amendment challenges asserting denial of medical care, the
court must determine whether the asserted facts show: “(i) a serious medical need, and (ii) acts or
omissions by prison officials that indicate deliberate indifference to that need.” Natale v. Camden
Cnty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003); see also Rouse v. Plantier, 182 F.3d 192,
197 (3d Cir. 1999); Estelle v. Gamble, 429 U.S. 97, 103, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976);
White v. Napoleon, 897 F.2d 103, 109 (3d Cir. 1990); Monmouth Cnty. Corr. Inst. Inmates v.
Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987). The Estelle test requires an inmate 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 inmate health or safety). “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. Farmer v. Brennan, 511 U.S. 825, 837–38 (1994). 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, 834 F.2d at 346. “Courts will disavow any
attempt to second-guess the propriety or adequacy of a particular course of treatment ... [which]
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remains a question of sound professional judgment.” Inmates of Allegheny Cnty. 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.3d at 110.
Here, Plaintiff provides virtually no details regarding any denial of medical treatment. He
provides a list of his various ailments, however he does not provide any specific instances where
he sought medical attention and was denied. Plaintiff generally alleges that Defendants should
have discovered his heart problems sooner and referred him to a specialist, but he provides no facts
in support of that general statement. He also does not allege any actions by any specific
Defendants. The allegations of the complaint regarding his Eighth Amendment medical claim
fall far short of the requirements under Iqbal.
With regard to his apparent failure to train/supervise allegations, Plaintiff has failed to state
a claim. Where a need for “more or different training ... is so obvious, and the inadequacy so
likely to result in constitutional violations, that the failure to train ... can fairly be said to represent
official policy,” City of Canton v. Harris, 489 U.S. 378, 390 (1989), and that failure to train
“actually causes injury,” a supervisor or municipality may be held liable, Id. Similarly, a
supervisor or municipality may be liable for failure to supervise, “only if it reflects a policy of
deliberate indifference to constitutional rights.” Jewell v. Ridley Twp., No. 11–4231, 2012 WL
4096259, at *3 (3d Cir. Sept. 19, 2012) (citing Montgomery v. DeSimone, 159 F.3d 120, 126–27
(3d Cir. 1998)). Here, however, Plaintiff fails to state a claim for a constitutional injury; thus, he
fails to state a claim for failure to train or supervise. Moreover, as with his other claims, Plaintiff
provides no specific facts or allegations to support this claim.
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Plaintiff also fails to allege sufficient facts to sustain a claim under 42 U.S.C. §§ 1985 and
1986. The elements of a § 1985(3) claim are “(1) a conspiracy; (2) for the purpose of depriving,
either directly or indirectly, any person or class of persons of the equal protection of the laws, or of
equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4)
whereby a person is injured in his person or property or deprived of any right or privilege of a
citizen of the United States.” Farber v. City of Paterson, 440 F.3d 131, 134 (3d Cir. 2006)
(internal quotations and citations omitted). To state a claim under § 1986, a plaintiff must show:
“(1) the defendant had actual knowledge of a § 1985 conspiracy, (2) the defendant had the power
to prevent or aid in preventing the commission of a § 1985 violation, (3) the defendant neglected or
refused to prevent a § 1985 conspiracy, and (4) a wrongful act was committed.” Clack v.
Clabaugh, 20 F.3d 1290, 1295 (3d Cir. 1994).
Plaintiff has alleged no facts to support a claim for a conspiracy. He simply states in a
conclusory manner that Defendants conspired to deprive him of his rights.

Therefore, all

conspiracy claims are dismissed, as well as the claim pursuant to § 1986. See Rogin v. Bensalem
Twp., 616 F.2d 680, 696 (3d Cir. 1980) (a claim under § 1986 cannot survive without a valid §
1985(3) claim).
2. Statute of Limitations
Even if Plaintiff had pled sufficient facts to support his claims, the complaint still appears
to be time-barred. Although the statute of limitations is an affirmative defense which may be
waived by the defendant, it is appropriate to dismiss sua sponte a pro se civil rights claim whose
untimeliness is apparent from the face of the Complaint. See, e.g ., Jones v. Bock, 549 U.S. 199,
214–15 (2007) (if the allegations of a complaint, “for example, show that relief is barred by the
applicable statute of limitations, the complaint is subject to dismissal for failure to state a claim”).
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Civil rights claims are best characterized as personal injury actions and are governed by the
applicable state's general or residual statute of limitations for such actions. See Owens v. Okure,
488 U.S. 235 (1989) (cited in Wallace v. Kato, 549 U.S. 384, 387 (2007); Wilson v. Garcia, 471
U.S. 261, 280 (1985) (same). Accordingly, New Jersey's two-year limitations period on personal
injury actions, N.J. Stat. Ann. § 2A:14–2, governs Plaintiff's claims. See Dique v. New Jersey
State Police, 603 F .3d 181, 185 (3d Cir. 2010) (citing Montgomery v. DeSimone, 159 F .3d 120,
126 & n. 4 (3d Cir. 1998) and Cito v. Bridgewater Twp. Police Dep’t, 892 F.2d 23, 25 (3d Cir.
1989)). Under N.J. Stat. Ann. § 2A:14–2, an action for an injury to the person caused by a
wrongful act, neglect, or default must be commenced within two years of accrual of the cause of
action. Cito, 892 F.2d at 25; accord Brown v. Foley, 810 F.2d 55, 56 (3d Cir. 1987).
“[T]he accrual date of a § 1983 cause of action is a question of federal law that is not
resolved by reference to state law.” Wallace, 549 U.S. at 388. A claim accrues as soon as the
injured party “knew or had reason to know of the injury that constitutes the basis of his action.”
Sandutch v. Muroski, 684 F.2d 252, 254 (3d Cir. 1982). See also Oshiver v. Levin, Fishbein,
Sedran & Berman, 38 F.3d 1380, 1385 (3d Cir. 1994). “Plaintiff's actual knowledge is irrelevant.
Rather, the question is whether the knowledge was known, or through reasonable diligence,
knowable. Moreover, the claim accrues upon knowledge of the actual injury, not that the injury
constitutes a legal wrong.” Fassnacht v. United States, 1996 WL 41621 (E.D.Pa. Feb. 2, 1996)
(citing Oshiver, 38 F.3d at 1386).
Unless their full application would defeat the goals of the federal statute at issue, courts
should not unravel states' interrelated limitations provisions regarding tolling, revival, and
questions of application. Wilson, 471 U.S. at 269. New Jersey statutes set forth certain bases for
“statutory tolling.” See, e.g., N.J.S.A. § 2A:14–21 (detailing tolling because of minority or
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insanity); N.J.S.A. § 2A 14–22 (detailing tolling because of nonresidency of persons liable). New
Jersey law 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 his rights, or where a plaintiff has timely
asserted his rights mistakenly by either defective pleading or in the wrong forum. See Freeman v.
State, 347 N.J.Super. 11, 31 (citations omitted). “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.
When state tolling rules contradict federal law or policy, in certain limited circumstances,
federal courts can turn to federal tolling doctrine. See Lake v. Arnold, 232 F.3d 360, 370 (3d Cir.
2000). Under federal law, equitable tolling is appropriate in three general scenarios:
(1) where a defendant actively misleads a plaintiff with respect to her cause of
action; (2) where the plaintiff has been prevented from asserting her claim as a
result of other extraordinary circumstances; or (3) where the plaintiff asserts her
claims in a timely manner but has done so in the wrong forum.
Id. n. 9.
Based on these statute of limitations principles, Plaintiff's complaint is time-barred. All of
the dates provided by Plaintiff indicate that he knew about his medical condition and alleged lack
of medical care, at the earliest, in 2001, and, at the latest, in 2010. Plaintiff signed the Complaint
on January 20, 2013 and therefore even if this Court were to give Plaintiff the benefit that his
claims did not accrue until 2010, the complaint would still be timebarred. Moreover, Plaintiff has
failed to allege any facts suggesting a basis for tolling under N.J.S.A. § 2A:14–21, 2A:14–2, or any

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other equitable ground. Accordingly, in addition to failing to provide sufficient facts under Iqbal,
the complaint would also be dismissed as untimely.
III. CONCLUSION
For the reasons stated above, the complaint will be dismissed in its entirety for failure to
state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915A(b)(1). 2 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 an amended complaint. 3

An appropriate order follows.

Dated: January 27, 2014
s/Peter G. Sheridan
PETER G. SHERIDAN, U.S.D.J.

2

Plaintiff alleges several state law claims based on the same facts as the federal claims. Pursuant
to 28 U.S.C. § 1367(c)(3), where a district court has dismissed all claims over which it has original
jurisdiction, it may decline to exercise supplemental jurisdiction over a related state law claim.
The Court of Appeals for the Third Circuit has held that, where all federal claims are dismissed
before trial, “the district court must decline to decide the pendent state claims unless
considerations of judicial economy, convenience, and fairness to the parties provide an affirmative
justification for doing so.” Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000) (citations
omitted). As no such extraordinary circumstances appear to be present, this Court will dismiss the
state law claims without prejudice.
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Plaintiff should note that when an amended complaint is filed, the original complaint no longer
performs any function in the case and Acannot 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.
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