SZEMPLE v. CORRECTIONAL MEDICAL SERVICE INC. et al

Filing 8

MEMORANDUM OPINION filed. Signed by Judge Peter G. Sheridan on 9/8/2015. (eaj)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CRAIG FRANCIS SZEMPLE,
Civil Action No. 13-1058 (PGS)
Plaintiff,
v.

:

MEMORANDUM OPINION

CORR. MED. SERV. INC., et a!.,
Defendants.

IT APPEARING THAT:
1. On February 19, 2013, Plaintiff Craig Francis Szemple (“Plaintiff’) filed a complaint
pursuant to 42 U.S.C.

§ 1983 alleging claims for: (1) deliberate indifference to his medical needs;

(2) failure to trainlsupervise; and (3) conspiracy under 42 U.S.C.

§ 1985, 1986. (ECF No. 1.)

On January 28, 2014, the Court screened the Complaint pursuant to 28 U.S.C.

§ 1915A and

dismissed it in its entirety for failure to plead sufficient facts under Iqbal, as well as the fact that
the claims appeared to be timebarred. (ECF Nos. 5-6.) The Court granted Plaintiff 30 days
within which to file an amended complaint. (Id.)
2. On February 27, 2015, nearly one year and 30 days after this Court entered its Opinion
and Order, Plaintiff filed an Amended Complaint. (ECF No. 7.) Plaintiff did not address the fact
that he filed his Complaint an entire year beyond the deadline set forth by this Court; in fact, for
unknown reasons, he specifically states that the Court’s Opinion and Order were entered on
January 28, 2015 instead of the actual date, January 28, 2014. (Pl.’s Decl.

¶ 1, ECFNo. 7-1.)

3. In his Amended Complaint, Plaintiff alleges that he was placed in the custody and care
of the New Jersey Department of Corrections (“NJDOC”) in 1994. (Am. Compl. 15.) Between
¶

1994 and the present, Plaintiff has been transferred to various facilities under the control of the
NJDOC, including New Jersey State Prison, East Jersey State Prison, Northern State Prison and
South Woods State Prison (“SWSP”). (Id. at

¶

16.) Plaintiff alleges that all of those facilities,

including SWSP, where he is currently incarcerated, purchase, sell and dispense tobacco produc
ts
for use by prisoners and staff. (Id. at ¶ 17.)
While in custody, Plaintiff states that he was diagnosed with coronary artery disease, which
required open heart surgery. (Id. at

¶

19.) As a result of his condition, Plaintiff was advised by

medical staff not to smoke tobacco products and to avoid any exposure to environmental tobacco
smoke (“ETS.”) (Id.) Between March 2010 and the present, Plaintiff alleges that he has been
sickened and his medical condition has been exacerbated as a result of being involuntarily exposed
to ETS from fellow prisoners as well as by prison staff working in NJDOC facilities. (Id. at 20.)
¶
As a direct result of his prolonged exposure to ETS, Plaintiff has suffered and continues to suffer
debilitating symptoms, including nausea, dizziness, shortness of breath, the inability to breathe
with associated panic, abnormal and irregular heartbeats, emotional distress, and the gradual
the
loss of forty percent of the functional capacity of his heart. (ld.)
4.

Tn his Amended Complaint, Plaintiff raises the following claims:

(1) Eighth

Amendment deliberate indifference claim against Defendants Lanigan, Ricci, Stokes, Hauck, Mee
and Sweeney based on Plaintiff’s exposure to ETS; and (2) state law claim for negligent failure
to
supervise and train against Defendant Lanigan. To state a civil right claim based on involuntary
exposure to ETS, Plaintiff must show that: (a) “he himself [was] exposed to unreasonably high
levels of ETS,” Helling v. McKinney, 509 U.S. 25, 35 (1993); (b) “the risk of which he complains
[was] not one that today’s society chooses to tolerate,” Id. at 36; and (c) certain identified
defendants were deliberately indifferent to the serious risk to Plaintiffs future health from
such
2

exposure. See id. at 35—36; see also Ford v. Mercer C’ty Corr. Center, 171 F. App’x 416 (3d Cir.
2006); Atkinson v. Taylor, 316 F.3d 257, 262 (3d Cir. 2003).
5. As with his initial Complaint, Plaintiff has failed to provide sufficient factual matter to
allow this claim to proceed. Plaintiff generally alleges that he has been housed in various NJDOC
facilities from 1994 until the present which allow prisoners to purchase tobacco products, but he
provides no details. He does not provide any information about the times and dates when he was
housed at each facility, nor does he identify with any specificity how he was exposed to
secondhand smoke at these prisons.

Rather, he simply states that he has been exposed to

secondhand smoke from 2010 until the present and it has affected his health.
6. Plaintiff does allege that between March 2010 and the present, Plaintiff was repeatedly
and involuntarily forced to double cell with prisoners who smoked, but he again provides no
specifics. He does not identify when or at which facilities this occurred, whether the cellmates
were actually smoking in the cells, or for how long he was forced to be exposed to secondhand
smoke from his ceilmates. Similarly, he states that he “repeatedly” complained to Defendants
Ricci, Stokes, Hauck, Mee, Sweeney and Lanigan, but does not give any further information as to
when and how he made such complaints.
7. Therefore, the Court will dismiss Plaintiff’s Eighth Amendment claim for failure to
provide sufficient factual matter under Jqbal.’ See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
The Court will also decline to exercise jurisdiction over the state law claim for failure to
trainlsupervise claim. Pursuant to 28 U.S.C.

§

1367(c)(3), where a district court has dismissed all

At this juncture, the Court makes no finding as to the timeliness of Plaintiffs claims, including
the effect, if any, of Plaintiff filing his Amended Complaint one year after the expiration of the 30
day period the Court had previously granted him.
3

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 ofjudicial 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.
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
2
to move to re-open this case and to file a second amended complaint.

An appropriate order

follows.
Dated:

c Q
,
6

4
Peter G. Sheridan, U.S.D.J.

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.
4
2