GARCIA v. CORRECTIONAL MEDICAL SERVICE INC. et al

Filing 127

OPINION filed. Signed by Judge Anne E. Thompson on 12/16/2016. (mmh)

RECEIVED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

DEC 2 0 2016
AT 8:30
WILLIAM T. WALSH
CLERK

AGUSTIN GARCIA,

HONORABLE ANNE E. THOMPSON
Plaintiff,
Civil Action
No. 13-1250 (AET-DEA)

v.
CORRECTIONAL MEDICAL
SERVICE, INC.; RALPH WOODWARD,
M.D., individually and in hi~
official capacity; ABU AHSAN,
M.D., individually and in his
official capacity; DR. NUGGEN,
M.D. Urologist, individually
and in her official capacity;
DESPINA TERRIS, M.D.,
Oncologist, individually and
in her official capacity;
SAINT FRANCIS MEDICIAL CENTER;
CHARLES WARREN, JR., N.J.S.P.
ADMINISTRATOR, individually
and in his official capacity;
NEW JERSEY STATE PRISON; GARY
LANIGAN, N.J.D.O.C.
COMMISSIONER; NEW JERSEY
DEPARTMENT OF CORRECTION; NEW
JERSEY DEPARTMENT OF PUBLIC
SAFETY AND CORRECTIONAL
SERVICES; JOHN AND JANE DOES
1-30, individually and in
their official capacities,
Defendants.

OPINION

M

APPEARANCES:
MARK SALAH MORGAN, ESQ.
KEVIN J. DUFFY, ESQ.
DAY PITNEY LLP
One Jefferson Road
Parsippany, New Jersey 07054-2891
Attorneys for Plaintiff Agustin Garcia
STEVEN E. SIEGRIST, ESQ.
O'CONNOR KIMBALL LLP
51 Haddonfield Road, Suite 300
Cherry Hill, New Jersey 08002
Attorneys for Defendant Correctional Medical Service, Inc.
SHELBY L. FALCO, ESQ.
ORLOVSKY, MOODY, SCHAAFFF, CONLON & GABRYSIAK
Monmouth Park Corporate Center
187 Highway 36, Suite 110
West Long Branch, New Jersey 07764
Attorneys for.Defendant Abu Ahsan, M.D. ,
SUSAN K. O'CONNOR, ESQ.
LESLIE S. PARK, ESQ.
HOAGLAND, LONGO, MORAN, DUNST & DOUKAS, LLP.
40 Paterson Street, P.O. Box 480
New Brunswick, New Jersey 08903
Attorneys for Defendant Despina Terris, M.D.
ROBERT LOUGY, ACTING ATTORNEY GENERAL
GREGORY R. BUENO, DAG
OFFICE OF THE ATTORNEY GENERAL
DEPARTMENT OF LAW AND PUBLIC SAFETY
25 Market Street
P.O. Box 112
Trenton, New Jersey 08625-0112
Attorneys for Defendants Charles Warren, Gary Lanigan, New
Jersey Department of Corrections, and New Jersey State Prison

2

THOMPSON, District Judge:
I.

INTRODUCTION
This matter comes before the Court on Plaintiff Agustin

Garcia's ("Plaintiff") Second Motion to Amend the Complaint,
Docket Entry 113. Defendants Correctional Medical Services
("CMS"), Abu Ahsan, Despina Terris, Gary Lanigan, Charles
Warren, the New Jersey Department of Corrections ("DOC"), and
New Jersey State Prison

(~NJSP")

1

oppose the motion. CMS

Opposition, Docket Entry 120; Ahsan Opposition, Docket Entry
121; Terris Opposition, Docket Entry 122; State Opposition,
Docket Entry 123. Plaintiff submitted a response to the
opposition, Docket Entry 125. This motion is being considered on
the papers pursuant

to

Fed. R. Civ. P. 78(b). For the reasons

stated below, the motion is granted. Plaintiff shall have 7 days
to file an amended complaint in conformance with this Opinion
and Order.
II .

BACKGROUND
On February 25, 2013, Plaintiff filed a civil.rights action

against Defendants CMS, Ralph Woodward, M.D., Dr. Ahsan, Dr.
Nugent, Dr. Terris; Saint Francis Medical Center ("Saint
Francis"), the State Defendants, the New Jersey Department of

Defendants Lanigan, Warren, the DOC, and NJSP shall be
collectively referred to as the "State Defendants."

1

3

Public Safety and Correctional Services ("DPS"), and John and
Jane Does Nos. 1-30. Complaint, Docket Entry 1.
Plaintiff alleged he had been experiencing testicular pain
and fatigue since February 2002, but in spite of his frequent
requests he was not evaluated by an urologist until July 2011.

Id.

~

20. Consequentially, Plaintiff's "Gleason level 6"

prostate cancer remained undiagnosed until a biopsy was
conducted in 2011. Id.

Plaintiff alleged a course of forty-four

radiation sessions was required to treat the cancer due to its
advanced stage and that a less aggressive course of treatment
co~ld have been utilized had NJSP referred him to the urologist

in a timely manner; Id. He states that Saint Francis and NJSP
medical personnel did not supply him with any medication after
the biopsy and that various infections resulted from their
neglect. Id.

~~

21, 25. The complaint further alleged Plaintiff

was denied the opportunity to seek a second opinion regarding
his prostate diagnosis before Dr. Nugent performed prostate
marking in preparation for radiation therapy. Id.

~

29.

Plaintiff submitted a notice of tort claim, after which
Plaintiff's radiation therapy, supervised by Dr. Terris, was
suddenly discontinued for months.

Id.

~

30. When he did receive

radiation, he only received "60 minutes of defective continued
therapy in place of prescribed 15 minutes session." Id.

4

"Consequently, radiation failed to accomplish its objective of
eradicating all cancer cells." Id. This complaint followed.
Pursuant to 28 U.S.C. § 1915, the Honorable Peter G.
Sheridan, D.N.J., dismissed without prejudice all of Plaintiff's
Eighth Amendment claims against the DOC, DPS, NJSP, CMS,
Woodward, Ahsan, Warren, Lanigan, and Saint Francis. Garcia v.
Corr. Med. Serv., No. 13-1250, 2014 WL 346625, at *3-4 & n.2

(D.N.J. Jan. 30, 2014). The Eighth Amendment claims against Dr.
Terris and Jane Does 1 and 4 were permitted to proceed.

Id. at

*4. Plaintiff's state medical malpractice claims were permitted
to proceed against all defendants, but Judge Sheridan dismissed
the remainder of Plaintiff's claims.

Id. at *5-7.

Defendants filed motions to dismiss and for summary
judgment on the grounds that Plaintiff had failed to state a
valid claim against under § 1983 and had failed to serve an
affidavit of merit as required for malpractice actions under New
Jersey law. After oral argument, Judge Sheridan granted Saint
Francis' motion for summary judgment on the medical malpractice
claim, Dr. Terris' motion for summary judgment on the medical
malpractice claims, and the DOC's, DPS' and NJSP's motion to
dismiss for lack of jurisdiction. December 17, 2014 Minute Entry
Docket Entry 39. Plaintiff moved for reconsideration, and Judge
Sheridan reinstated the medical malpractice claims against Dr.
Terris.

5

Further motions for dismissal and for summary judgment were
filed by Defendants in March and April 2015 as Plaintiff still
had not submitted the affidavit of merit. Plaintiff filed a
motion to amend his complaint on June 1, 2015 stating that he
had been able to ascertain the identities of some of the Jane
Doe defendants: Donique Ivery, Patricia Wood, Nurse Lance, Paula
Azara, Diane Krause, and Tracy McLaughlin. First Motion to
Amend, Docket Entry 73 at 2. Defendants opposed the motion. The
matter was transferred to this Court on August 20, 2015. The
Court denied the motion on December 24, 2015 as futile as
Plaintiff had not corrected any of the deficiencies noted by
Judge Sheridan. In the interests of justice, the Court sua
sponte reconsidered Plaintiff's request for pro bono counsel.
Defendants refiled their respective dispositive motions,
which had been dismissed without prejudice pending resolution of
the motion to amend, in early 2016. Pro bono counsel was
appointed and filed the present motion to amend on May 27, 2016
in accordance with a scheduling order issued by Magistrate Judge
Douglas Arpert. This Court administratively terminated the
pending dispositive motions for case management purposes.
III. DISCUSSION

Plaintiff seeks to amend his complaint to reinstate the
Eighth Amendment claims that had been dismissed without
prejudice, add a negligence claim against Defendants, and
6

include newly named defendants: University Correctional
Healthcare ("UCH"), Nurse Donique Ivery, Nurse Patricia Wood,
Nurse Lance Carver, Nurse Paula Azara, Radiation Therapist Diane
Krause, and Radiation Therapist Tracy McLaughlin. Defendants
assert the motion should be denied due to prejudice, undue
delay, futility, and the statute of limitations. See also Shane

v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000)

(noting grounds on

which leave to amend a pleading may be denied) . Where there is
an absence of undue delay, bad faith, prejudice or futility, a
motion for leave to amend a pleading should be granted freely in
the interests of justice. Fed. R. Civ. P. 15 (a) (2); see also
Long v. Wilson,

393 F.3d 390, 400

(3d Cir. 2004).

A. Undue Delay and Prejudice
Defendants argue the motion to amend should be denied as
Plaintiff has unduly delayed in seeking to amend his complaint.
Essentially, they assert that a significant period of time has
elapsed since the filing of the complaint in 2013 and that
Plaintiff could have moved to amend the complaint sooner.
Combined with Plaintiff's allegations of injures beginning in
2002, they argue it is too late to amend the complaint. See
Ashan Opposition at 14; CMS Opposition at 9.
The mere passage of time does not require that a motion to
amend a complaint be denied on grounds of delay. Adams v. Gould

Inc., 739 F.2d 858, 868 (3d Cir. 1984). In fact, delay alone is
7

an insufficient ground to deny leave to amend. Cornell & Co.,
Inc. v. Occupational Safety & Health Review Comm'n., 573 F.2d
820, 823 (3d Cir. 1978). Rather, the question is whether
Defendants would be prejudiced by any such delay. Dole v. Arco
Chem. Co., 921 F.2d 484, 488

(3d Cir. 1990)

("[P]rejudice to the

nonmoving party is the touchstone for the denial of the
amendment." (internal quotation marks omitted)).
The Court finds that Plaintiff has not unduly delayed in
moving to amend his complaint. Although the complaint was filed
in February 2013, it was not permitted to proceed until after
Judge Sheridan's § 1915 review was completed in January 2014.
Since that time, Plaintiff has been actively pursuing this
litigation and attempting to obtain relevant documents and
information. Additionally, it cannot be said that Plaintiff
delayed in moving to amend his complaint because this is not the
first time Plaintiff has tried to make some of the amendments
sought here. His first motion to amend was filed in June 2015,
just a little over a year after his complaint was permitted to
proceed, after he ascertained through discovery the identities
of some of the fictitious parties. First Motion to Amend at 2.
Defendants have been on notice since the beginning of this
matter that there were John and Jane Doe defendants involved,
and aware of the alleged identities of some of those fictitious
parties since June 2015. Insofar as the Court denied the first
8

motion, it was because Plaintiff had not addressed the
deficiencies noted by Judge Sheridan, not because of any delay
by Plaintiff in moving to amend.
Even if the amendment could be considered "delayed,"
Defendants have not shown they will be prejudiced by the
amendment. See Dole, 921 F.2d at 488; Boileau v. Bethlehem Steel
Corp., 730 F.2d 929, 938-39 (3d Cir.)

(holding district court

abused its discretion in denying leave to amend complaint ten
years after filing when defendants had not shown they would be
prejudiced by amendment), cert. denied,

469 U.S. 871 (1984). "To

justify the denial of a motion to amend, the asserted prejudice
must amount to more than mere inconvenience to the non-moving
party." Phillips v. Borough of Keyport, 179 F.R.D. 140, 144
(D.N.J. 1998)

(citing Cuffy v. Getty Ref. & Mktg. Co., 648

F.

Supp. 802, 806 (D. Del. 1986)). "In order to make the requ£red
showing of prejudice, regardless of the stage of the
proceedings,

[the non-moving party] is required to demonstrate

that its ability to present its case would be seriously impaired
were amendment allowed." Dole, 921 F.2d at 488. Here, Defendants
have not satisfied their burden as they have only provided
conclusory assertions of prejudice.
CMS and Dr. Ashan simply assert that it is "obvious" they
will be prejudiced by amendment since fourteen years have passed
since the beginning of the alleged misconduct in 2002. CMS
9

Opposition at 11; Ashan Opposition at 14. However, Plaintiff's
allegations that Defendants' malpractice, negligence, and
deliberate indifference began in 2002 is not a new claim; he
made this allegation in the original complaint. See Complaint

~~

19-20. Defendants have been aware of Plaintiff's position that
the relevant time period extended back to 2002 since the start
of this litigation; therefore, Defendants cannot claim they are
prejudiced by the inclusion of that factual allegation in the
amended complaint.
The State Defendants and Dr. Terris further argue the
inclusion of a new negligence claim is unduly prejudicial as it
would result in needing to conduct new discovery and a change in
strategy. State Opposition at 6-7; Terris Opposition at 13.
"[T]he need for additional discovery does not conclusively
establish prejudice." Dole, 921 F.2d at 488. Defendants have not·
identified what additional discovery would be needed or the
burdens it would impose. See Butcher
F.R.D. 450, 453 (D. Del. 1984)

&.

Singer v. Kellam, 105

("This Court will not deny a

moving party's amendment unless the nonmoving party specifically
·shows that it was 'deprived of the opportunity to present facts
or evidence which it would have offered' had the moving party's
amendments been timely filed."). Moreover, a negligence claim is
not so different from a medical malpractice claim such that it
is clear a different defense strategy will be necessary. See
10

Dole 921 F.2d at 488

(noting that where the "proposed amended

complaint is based upon facts and circumstances which do not
differ significantly from those underlying [movant's] original
allegations .

.

. reference to an additional legal standard is

not prejudicial" (internal citation and quotation marks
omitted) ) .
Defendants have not demonstrated they will be prejudiced by
permitting amendment of the complaint, whereas Plaintiff would
be prejudiced if he were denied the ability to seek relief from
potentially liable persons. See Cornell & Co. v. Occupational

Safety & Health Review Comm'n, 573 F.2d 820, 824

(3d Cir. 1978)

("In evaluating the extent of prejudice, courts may inquire into
the hardship to the non-moving party if leave t6 amend is
denied."). The Court will not deny the motion to amend on the
basis of undue delay or prejudice.

B. Futility
Defendants also argue amendment of the complaint is futile.
In determining whether a proposed amendment is futile,

"the

court looks only to the-pleadings." "'Futility' means that the
complaint, as amended, would fail to state a claim upon which
relief could be granted." Shane v. Fauver, 213 F.3d 113, 115 (3d
Cir. 2000). The Court applies the same standard of legal
sufficiency as applies under Rule 12(b) (6). "All allegations in
the complaint must be accepted as true, and the plaintiff must
11

be given the benefit of every favorable inference to be drawn
therefrom." Kulwicki v. Dawson, 969 F.2d 1454, 1462 (3d Cir.
1992).
1. Negligence
Dr. Ashan argues Plaintiff has not stated a negligence
claim because Plaintiff cannot allege both negligence and
medical malpractice. Without citing any authority for his
position, he asserts the negligence claim is merely duplicative
of the medical malpractice claim and should be disregarded.
Ashan Opposition at 25. Rule 8 permits parties to "set out 2 or
more statements of a claim or defense alternatively or
hypothetically, either in a single count or defense or in
separate ones . . . . A party may state as many separate claims
or defenses as it has, regardless of consistency." Fed. R. Civ.
P. 8 (d) (2) - (3). To the extent Dr. Terris argues that "a
negligence claim against a licensed professional is a
malpractice claim," Terris Opposition at 17, New Jersey's
affidavit of merit statute indicates it applies "[i]n any action
for damages for personal injuries, wrongful death or property
damage resulting from an alleged act of malpractice or
negligence by a licensed person in his profession or occupation
•

•

•

• II

N. J.

Stat. Ann. § 2A:53A-27

(emphasis added). This

suggests it is possible to bring a simple negligence claim

12

against a licensed professional as well as a malpractice claim.
This argument is without merit.
"[A] negligence cause of action requires the establishment
of four elements:

(1) a duty of care,

(2) a breach of that duty,

(3) actual and proximate causation, and (4) damages." Davis v.

Brickman Landscaping, Ltd., 98 A.3d 1173, 1178-79 (N.J. 2014)
(alteration in original)

(internal quotation marks omitted). The

proposed amended complaint alleges Defendants were negligent in
diagnosing and treating Plaintiff's cancer and that their
negligence caused further injury to Plaintiff. Accepting the
factual allegations in the complaint as true and giving
Plaintiff the benefit of all reasonable inferences, he has
sufficiently alleged Defendants were negligent in their care of
Plaintiff . 2 It is therefore not futile to amend the complaint to
include this claim.

2. Deliberate Indifference
Defendants assert Plaintiff has failed to state a claim of
deliberate indifference under the Eighth Amendment. In order to
set forth a cognizable claim for a violation of the right to
adequate medical care, a convicted and sentenced inmate must
allege:

(1) a serious medical need; and (2) behavior on the part

2

Plaintiff concedes he cannot pursue negligence claims against
NJDOC or NJSP in federal court and that Warren and Lanigan are
immune in their official capacities. Response at 13.
13

of prison officials that constitutes deliberate indifference to
that need. See Estelle v. Gamble, 429 U.S. 97, 106 (1976);
Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582

(3d

Cir. 2003). Defendants do not assert that Plaintiff has not
sufficiently alleged a serious medical need.
The State Defendants assert Plaintiff has failed to state a
claim against Warren and Lanigan because "[p]rison
administrators cannot be considered deliberately indifferent to
an inmate's serious medical needs when they simply fail to
respond to a complaint and the inmate was under the care of
medical professionals.'i State Opposition at 14. Dr. Ashan argues
Plaintiff has not sufficiently alleged an Eighth Amendment
violation against him. Ashan Opposition at 15-18. Accepting
Plaintiff's allegations as true and giving him the benefit of
all reasonable inferences, the complaint sufficiently alleges an
Eighth Amendment violation by Warren, Lanigan, and Dr. Ashan.
Deliberate indifference has been found in "situations where
there was 'objective evidence that [a] plaintiff had serious
need for medical care,' and prison officials ignored that
evidence." Natale,

318 F.3d at 582 (quoting Nicini v. Morra, 212

F.3d 798, 815 n.14

(3d Cir. 2000)). Generally, however,

"[c]orrectional defendant-administrators who are not themselves
physicians cannot 'be considered deliberately indifferent simply
because they failed to respond directly to the medical
14

complaints of a prisoner who was already being treated by the
prison doctor.'" Davis v. Norwood, 614 F. App'x 602,
Cir. 2015)

605 (3d

(quoting Durmer v. O'Carroll, 991 F.2d 64, 69 (3d

Cir. 1993)).
According to the proposed amended complaint, Plaintiff
began notifying Warren, Lanigan, Dr. Woodward, and Dr. Ashan, of
his testicular pain and fatigue as early as February 2002, but
did not receive medical treatment for his condition until July
2011. Proposed Amended Complaint

<JI<JI

28-31. In other words,

Plaintiff is alleging that from 2002 to 2011 the necessary
medical care was nonexistent as opposed to merely inadequate.
Accepting Plaintiff's allegations as true and giving him the
benefit of all reasonable inferences, a reasonable factfinder
could conclude Plaintiff was not "being treated by the prison
doctor" for his developing cancer at the time he was alerting
the prison administrators.
Moreover, the allegations in the amended complaint go
beyond one or two submitted grievances. Plaintiff has alleged
that Defendants ignored his complaints and requests for
treatment for nine years.3 It is therefore not unreasonable to

3 Dr. Ashan argues Plaintiff has failed to correct the original
complaint's deficiencies as h.e has not set forth "specific
incidents where he was specifically denied medical treatment
between 2002 and 2011." Ashan Opposition at~--18. The proposed,.
amended complaint specifies that the requests for medical
attention were made through the Inmate Remedy System and Inmate
15

infer they knew of the need for medical care during that time
and intentionally refused to provide it. See Chavez v. Cady, 207
F.3d 901, 906 (7th Cir. 2000)

("[Plaintiff] did his part to let

the officers know he was suffering . . . .

[A]n inmate's letters

to officials setting out his medical condition put the officials
on notice of his potential problem, and that the question as to
whether the officers drew the inference that certain things
should be done for the inmate could be determined by a jury on
the basis of circumstantial evidence." (citing Reed v. McBride,
178 F.3d 849 (7th Cir. 1999))); Rouse v. Plantier, 182 F.3d 192,
197 (3d Cir. 1999); Cardona v. Warden - MDC Facility,. No. 127161, 2013 WL 6446999, at *5 (D.N.J. Dec. 6, 2013)

(holding

plaintiff stated a valid denial of medical services claim
against prison warden because plaintiff alleged an ongoing
constitutional violation that the warden was made aware of
through repeated written requests). There are sufficient factual
allegations in the proposed amended complaint to reasonably
infer personal involvement by Warren and Lanigan. 4

Remedy Forms and at routine medical appointments as opposed to
the original complaint's vague assertion that requests were
made. Compare Complaint ~ 20 with Proposed Amended Complaint ~
28. The specific dates when Plaintiff requested or sought
medical attention should be sufficiently identifiable.
4 Warren and Lanigan assert Plaintiff has failed to set forth
whether he exhausted his administrative remedies, State
Opposition at 16 n.2, however such a statement is not a pleading
requirement. Ray v. Kertes, 285 F.3d 287, 297 (3d Cir. 2002)
16

Plaintiff's claims against the medical defendants employed
by NJDOC, CMS, UCH, and Saint Francis are also sufficient to
state a claim for Eighth Amendment violations. 5 Plaintiff alleges
that his radiation treatments would be interrupted without
explanation. Proposed Amended Complaint

<JI<JI

60-62. · Deliberate

indifference may be found where necessary medical treatment is
delayed or denied for a non-medical reason. Rouse, 182 F.3d at
197. Giving Plaintiff the benefit of all reasonable inferences,
Plaintiff has sufficiently alleged Eighth Amendment violations.

6

Plaintiff has also sufficiently alleged Eighth Amendment
violations by UHC and CMS. For purposes of claims under § 1983,
UHC and CMS "cannot be held responsible for the acts of [their]
employees under a theory of respondeat superior or vicarious
liability." Natale v. Camden Cty. Corr. Facility, 318 F.3d 575,
583 (3d Cir. 2003). Instead, Plaintiff must set forth sufficient
facts indicating that a policy or custom of those entities

("[N]o provision of the PLRA requires pleading exhaustion with
particularity.").
5 Although certain medical defendants are employed by private
hospitals, they are considered "state actors" within the meaning
of § 1983 when they provide medical services to inmates pursuant
to a contract with the state. See West v. Atkins, 487 u~s. 42,
56 (1988); Natale v. Camden Cty. Corr. Facility, 318 F.3d 575,
582 (3d Cir. 2003) ("Because [Prison Health Services] is a state
actor, employees of [Prison Health Services] are considered
prison officials.").
6 Plaintiff concedes NJSP and the NJDOC are not "persons" within
the meaning of § 1983 and that Warren and Lanigan are immune in
their official capacities. Response at 9.
17

caused the alleged constitutional violation. Id. at

583~84

(citing Bd. Of Cnty. Comm;rs of Bryan Cnty. Oklahoma v. Brown,
520 U.S. 397, 404 (1997)). Plaintiff alleges that "it was the
custom and/or policy of the NJDOC, NJSP, CMS, and UCH to ignore
and fail to respond to a significant percentage of 'Request
System and Remedy Forms' submitted by NJSP inmates pertaining to
medical concerns." Proposed Amended Complaint

~

73. He further

alleges this custom or policy resulted in unconstitutional
denial of medical care, ultimately causing the aggravation of
his cancer. His Eighth Amendment claim against CMS and UHC can
proceed at this time.
The only entity the medical malpractice and Eighth
Amendment claims cannot proceed against is Saint Francis. Judge
Sheridan dismissed the Eighth Amendment claim against Saint
Francis without prejudice and the medical malpractice claim with
prejudice. Garcia v. Corr. Med. Serv., No. 13-1250, 2014 WL
346625, at *3-4 & n.2 (D.N.J. Jan. 30, 2014); December 23, 2014
Order, Docket Entry 38. "When a party seeks leave to amend a
complaint after judgment has been entered, it must also move to
set aside the judgment pursuant to Federal Rule of Civil
Procedure 59(e) or 60(b), because the complaint cannot be
amended while the judgment stands." Jang v. Boston Sci. Scimed,
Inc., 729 F.3d 357, 367-68

(3d Cir. 2013). Plaintiff has not

moved to set aside the judgment against Saint Francis, therefore
18

the complaint cannot be amended to include the medical
malpractice claim against the hospital. Furthermore, he has not
sufficiently alleged a policy or custom of Saint Francis caused
his injuries, preventing him from proceeding on the Eighth
Amendment claim. The negligence claim may proceed against it,
however. See supra Part III.B.1.

3. Statute of Limitations
Dr. Terris asserts the statute of limitations has expired
for Plaintiff to bring a new claim of negligence. Terris
Opposition at 17-18. This argument is also without merit as
newly filed claims relate back to the date of the original
complaint when "the amendment asserts a claim or defense that
arose out of the conduct, transaction, or occurrence set out .

.

. in the original pleading." Fed. R. Civ. P. 15(c) (1) (B). This
requirement is clearly met.
Defendants also argue Plaintiff is time-barred from raising
any claims pertaining to events that occurred prior to February
25, 2011, two years prior to the submission of the original
complaint. State Opposition at 19; Terris Opposition at 17-18.
Plaintiff invokes the discovery rule, arguing his claims did not
accrue until December 2011. Response at 6. "As a general rule, a
cause of action accrues, and the statute of limitations begins
to run, when the alleged injury occurred. The discovery rule,
however, functions to delay the beginning of the statutory
19

limitations period 'until the plaintiff discovers or in the
exercise of reasonable diligence should have discovered the
basis for her claim against the defendant.'" Meyer v. PHH Mortg.
Corp., No. 16-2255, 2016 WL 5934691, at *3 (D.N.J. Oct. 11,

2016)

(quoting Cunningham v. M

&

T Bank Corp., 814 F.3d 156, 162

(3d Cir. 2016)). It is not clear from the face of the proposed
amended complaint that it is barred by the statute of
limitations; therefore, the Court cannot conclude amendment
would be futile. See Ostuni v. Wa Wa's Mart, 532 F. App'x 110,
111 ( 3d Cir. 2013)

(per curiam)

(noting finding of futility

based on statute of limitations only appropriate "where that
defense is obvious from the face of the complaint and no
development of the record is necessary") . 7
C. Interests of Justice

"Rule 15(a) declares that leave to amend 'shall be freely
given when justice so requires'; this mandate is to be heeded.
If the underlying facts or circumstances relied upon by a
plaintiff may be a proper subject of relief, he ought to be
afforded an opportunity to test his claim on the merits." Foman
v. Davis, 371 U.S. 178, 182 (1962)

15 (a) (2))

(quoting Fed. R. Civ. P.

(internal citation omitted).

Likewise, the Court presumes for purposes of the motion to
amend only that the substitution of named parties for the Jane
Doe defendants relates back to the original pleadings. See Fed.
R. Civ. P. 15(c).
7

20

Plaintiff's allegations, if true, may entitle him to relief
from Defendants. In the absence of undue delay, prejudice, or
futility,. the Court finds that it is in the iriterests of justice
·to grant the motion to amend in order to enable Plaintiff to
pursue the merits of his complaint. Plaintiff shall have 7 days
from the date of this Opinion and Order

~o

file an amended

complaint that conforms to this Opinion. tJpon filing, the
Clerk's Office shall be instructed to provide Plaintiff with
U.S. Marshal Form 285 so Plaintiff can serve the newly named
defendants.

D. Affidavit of Merit
Defendants argue the motion to amend should be denied as
Plaintiff has not provided an affidavit of merit. Terris
Opposition at 20; Ashan Opposition at 26. The affidavit is not a
pleading requirement, see Nuveen Mun. Trust ex rel. Nuveen High
Yield Mun.

Bond Fund v.

WithumSmith Brown,

P.C.,

692 F.3d 283,

303 n.13 (3d Cir. 2012), therefore the failure to provide one
does not make amendment futile. To the extent Plaintiff argues
an affidavit of merit is unnecessary under New Jersey law, Court
declines to decide the issue at this time as it is not properly
before the Court on a motion to amend the complaint.

21

IV. CONCLUSION
For the reasons stated above, the motion to amend the
complaint is granted. Plaintiff shall file a conforming amended
complaint within 7 days.

An accompanying Order will be entered.

Date

ANNE

U.S. District Judge

22