GARCIA v. CORRECTIONAL MEDICAL SERVICE INC. et al
OPINION filed. Signed by Judge Anne E. Thompson on 12/16/2016. (mmh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
DEC 2 0 2016
WILLIAM T. WALSH
HONORABLE ANNE E. THOMPSON
No. 13-1250 (AET-DEA)
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.
and in his official capacity;
NEW JERSEY STATE PRISON; GARY
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,
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
THOMPSON, District Judge:
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
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
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
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."
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.
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
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.
Plaintiff submitted a notice of tort claim, after which
Plaintiff's radiation therapy, supervised by Dr. Terris, was
suddenly discontinued for months.
30. When he did receive
radiation, he only received "60 minutes of defective continued
therapy in place of prescribed 15 minutes session." Id.
"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.
*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.
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.
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
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
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
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
(citing Cuffy v. Getty Ref. & Mktg. Co., 648
Supp. 802, 806 (D. Del. 1986)). "In order to make the requ£red
showing of prejudice, regardless of the stage of the
[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
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
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
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
. 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.
Defendants also argue amendment of the complaint is futile.
In determining whether a proposed amendment is futile,
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
be given the benefit of every favorable inference to be drawn
therefrom." Kulwicki v. Dawson, 969 F.2d 1454, 1462 (3d Cir.
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
Stat. Ann. § 2A:53A-27
(emphasis added). This
suggests it is possible to bring a simple negligence claim
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
(1) a serious medical need; and (2) behavior on the part
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.
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
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
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
complaints of a prisoner who was already being treated by the
prison doctor.'" Davis v. Norwood, 614 F. App'x 602,
(quoting Durmer v. O'Carroll, 991 F.2d 64, 69 (3d
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
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