GARCIA v. CORRECTIONAL MEDICAL SERVICE INC. et al
Filing
90
OPINION filed. Signed by Judge Anne E. Thompson on 12/29/2015. (mmh)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
AGUSTIN GARCIA,
HONORABLE ANNE E. THOMPSON
Plaintiff,
Civil Action
No. 13-1250 (AET-DEA)
v.
CORRECTIONAL MEDICAL SERVICE,
et al.,
OPINION
Defendants.
APPEARANCES:
AGUSTIN GARCIA, Plaintiff Pro Se
822642B/428336
New Jersey State Prison
P.O. BOX 861
Trenton, New Jersey 08625
RECEIVED
A!8:3o
THOMAS B. LEYHANE, ESQ.
HOAGLAND LONGO MORAN, DUNST & DOUKAS, LLP.
4 0 P9-terson Street, P. 0. Box 4 8 0
New Brunswick, New Jersey 08901
Attorney for Defendant Despina Terris, M.D.
0
ROSHAN D. SHAH, ESQ.
OFFICE OF THE ATTORNEY GENERAL
DEPARTMENT OF LAW AND PUBLIC SAFETY
25 Market Street
P.O. Box 112
Trenton, New Jersey 08625-0112
Attorney for Defendants Charles Warren and Gary Lanigan
M
W!LUAM T. WALSHC~1::?K
THOMPSON, District Judge:
I .
INTRODUCTION
This matter comes before the Court on Plaintiff Agustin
Garcia's ("Plaintiff") Motion to Amend the Complaint.
(Docket
Entry 73). Defendants Despina Terris, Gary Lanigan, and Charles
Warren oppose the motion.
(Docket Entries 74 and 76). Plaintiff
submitted a response to the opposition.
(Docket Entry 77). This
motion is being considered on the papers pursuant to Fed. R.
Civ. P. 78(b). For the reasons stated below, the motion is
denied. The Court will sua sponte appoint counsel.
II.
BACKGROUND
On February 25, 2013, Plaintiff filed this civil rights
action against Defendants Correctional Medical Service ("CMS");
Ralph Woodward, M.D.; Abu Ahsan, M.D.; Dr. Nuggen, M.D.; Despina
Terris, M.D.; Saint Francis Medical Center ("Saint Francis");
Charles Warren, Jr.; New Jersey State Prison ("NJSP"); Gary
Lanigan; New Jersey Department of Correction ("DOC"); New Jersey
Department of Public Safety and Correctional Services ("DPS");
and John and Jane Does Nos. 1-30.
(Docket Entry 1).
The complaint alleged that beginning in February 2002,
Plaintiff repeatedly complained about symptoms such as
testicular pain and lack of energy. NJSP medical staff, however,
waited over ten years before ordering a consultation with an
urologist.
(Docket Entry 1
~
20). Plaintiff alleges that the
2
urology consult lead to a prostate biopsy which revealed the
"presence of prostate cancer at the Gleason level 6." (Docket
Entry 1 ! 20). According to an oncologist, a course of fortyfour radiation sessions was required to treat the cancer.
(Docket Entry 1 ! 20). Plaintiff alleges that his cancer could
have been treated less aggressively had NJSP more quickly
referred him to the urologist.
(Docket Entry 1 ! 20). Plaintiff
was later diagnosed with "(1) E. coli sepsis status post
prostate biopsy;
Hyponatremia;
(2) Cholelithiasis and cholecystitis;
(4) Normocitic anemia; and (5)
(3)
Protastic
adenocarcinoma, Gleason Score 6 out of 100." (Docket Entry 1 !
25) . Plaintiff received treatment at Saint Francis for blood
contamination until December 23, and was thereafter transferred
to the NJSP infirmary for two weeks of antibiotic treatment.
(Docket Entry 1 ! 26). On February 9, 2012, he returned to Saint
Francis for gall bladder removal due to inflammation caused by
the biopsy.
(Docket Entry 1 ! 26).
Approximately a month later, Plaintiff was brought to Saint
Francis where he was informed that he would be able to obtain a
second opinion regarding his prostate diagnosis.
(Docket Entry 1
! 29). Instead, Dr. Nuggen performed prostate marking in
preparation for radiation therapy.
(Docket Entry 1 ! 29).
Plaintiff states he never received his requested second opinion.
3
On March 21, 2012, Plaintiff submitted a "tort
notification" to the New Jersey Department of Treasury regarding
the "biopsy blood contamination issue." (Docket Entry 1 ! 30).
Plaintiff's radiation therapy began under Dr. Terris'
supervision; however, it was suddenly discontinued for months
after the submission of the tort notificatioti.
(Docket Entry 1 !
30). When he did receive radiation, he only received "60 minutes
of defective continued therapy in place of prescribed 15 minutes
session." (Docket Entry 1 !
30). "Consequently, radiation failed
to accomplish its objective of eradicating all cancer cells."
(Docket Entry 1 !
30). This complaint followed.
Pursuant to 28 U.S.C. § 1915, the Honorable Peter G.
Sheridan, D.N.J., dismissed 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. Judge Sheridan also
dismissed Plaintiff's conspiracy, breach of contract,
intentional infliction of emotional distress, and unspecified
"constitutional" and "tort" claims against all defendants.
at *5-7. Plaintiff's state medical malpractice claims were
permitted to proceed against all defendants. Id. at *6.
4
Id.
The DOC, DPS, and NJSP moved to dismiss the complaint for
lack of jurisdiction on October 2, 2014, arguing that
Plaintiff's medical malpractice claim, the only claim against
them that survived screening under § 1915, was barred under the
Eleventh Amendment.
(Docket Entry 25). Shortly thereafter, Saint
Francis and Dr. Terris moved for summary judgment on the medical
malpractice claim as Plaintiff had failed to serve an affidavit
of merit as required under New Jersey law.
(Docket Entries 27
and 28). Saint Francis additionally argued that Plaintiff had
failed to state a valid claim against it under § 1983.
(Docket
Entry 27-1 at 4-5). Dr. Terris also argued she was not a state
actor within the meaning of § 1983.
(Docket Entry 28-1 at 19-
22). Plaintiff opposed the motions, arguing that he was unable
to obtain an affidavit of merit as the defendants had failed .to
answer his interrogatories.
(Docket Entries 29 and 30).
Plaintiff thereafter filed motions for an extension of time to
serve certain defendants and for the issuance of new summonses.
(Docket Entries 33 and 34).
Judge Sheridan held telephonic oral argument on the pending
motions on December 17, 2014.
(Docket Entry 39). He granted
.Saint Francis' motion for summary judgment in its entirety,
terminating the hospital from the case.
(Docket Entry 38). He
also granted Dr. Terris' motion for summary judgment on the
medical malpractice claims, but denied summary judgment on the
5
Eighth Amendment claim.
(Docket Entry 38). On December 23, 2014,
he granted the DOC's, DPS' and NJSP's motion to dismiss for lack
of jurisdiction.
(Docket Entry 38). Plaintiff filed a motion for
reconsideration on Deceinber 31, 2014, arguing the court had
overlooked the responsive papers he filed in opposition to the
motions.
(Docket Entries 40 and 41) . 1
On January 29, 2015, Magistrate Judge Douglas Arpert
granted in part Plaintiff's motion for an-extension of time to
serve certain defendants.
(Docket Entry 48). He granted
Plaintiff's motion for new summonses as to Defendants CMS,
Warren, and Nugent, but denied the motion as to Defendants NJSP,
DPS, and DOC.
(Docket Entry 48). Plaintiff's motion to compel
discovery was denied, but Magistrate Arpert ordered Dr. Terris
to answer the third set of interrogatories within thirty days.
(Docket Entry 48).
Judge Sheridan conducted oral argument via telephone on
February 25, 2015, regarding the motion for reconsideration.
(Docket Entry 58). He granted reconsideration on the medical
malpractice claims against Dr. Terris, and denied
reconsideration as to the other claims and defendants.
(Docket
Entry 59) . Plaintiff was ordered to provide an affidavit of
1 The Court notes that these "responsive papers" do not appear on
the docket prior to Judge Sheridan's order. They first appear as
an exhibit to the motion for reconsideration. (Docket Entry 41-
1) •
6
merit on the medical malpractice claims within sixty (60) days.
(Docket Entry 59).
On March 9, 2015, CMS filed a motion to dismiss the
complaint for failure to state a claim. CMS asserted that as its
contract to provide medical services for the DOC ended on
September 30, 2008, it cannot have been responsible for
Plaintiff's medical care in 2011.
(Docket Entry 61). Plaintiff
filed a motion for service on Dr. Ashan, motion for waiver of
the affidavit of merit requirement, and renewed his motion for
the appointment of counsel.
(Docket Entry 63). Defendants Warren
and Lanigan filed a motion for summary judgment on March 19,
2015, on the only remaining claim against them, medical
malpractice.
(Docket Entry 67). On April 28, 2015, Dr. Terris
filed a motion for summary judgment as Plaintiff had not
submitted the affidavit of merit as required by Judge Sheridan's
February 25, 2015 order.
(Docket Entry 70).
On June 1, 2015, Plaintiff filed the instant motion for
leave to amend his complaint.
(Docket Entry 73). He states that
he has ascertained the identities of some of the Jane Doe
defendants: Donique Ivory, Patricia Wood, Nurse Lance, Paula
Azara, Diane Krause, and Tracy McLaughlin.
(Docket Entry 73 at
2). He further indicated that the original complaint had omitted
people with direct participation in the facts underlying the
·complaint: Joseph Michelli, University Correctional Healthcare,
7
University of Medicine & Dentistry of New Jersey, the New Jersey
Office of the Attorney General, and Stephen D'Lio.
(Docket Entry
73 at 2). Plaintiff also added a state law claim arguing that
the Defendants' failure to obtain informed consent before
engaging in prostate marking and radiation therapy, as well as
denying Plaintiff the opportunity to obtain a second opinion,
constituted common law battery.
(Docket Entry 73-1 at 24-25).
Dr. Terris, Lanigan, and Warren filed opposition to the
motion. They argue the proposed amended complaint is futile as
it reasserts claims and rejoins parties that were dismissed by
Judge Sheridan without providing any additional facts that would
justify their reinstatement.
(Docket Entries 74 and 76). They
also argue that Plaintiff's motion was filed in bad faith in
order to reset the litigation to its starting point and evade
the affidavit of merit requirement.
On August 20, 2015, Judge Sheridan recused himself from the
proceedings, and the matter was reassigned to this Court.
(Docket Entry 86) . For case management purposes, this Court
dismissed the motions for summary judgment and to dismiss the
complaint pending the resolution of Plaintiff's motion to amend.
(Docket Entry 87).
8
III. DISCUSSION
A. Motion to Amend
Plaintiff seeks leave to amend his complaint to add new
parties and a new claim of "Medical Mal-practice and Assault and
Battery." (Docket Entry 73-1 at 24). Rule 15(a) of the Federal
Rules of Civil Procedure permits a party to amend a pleading
once as a matter of course twenty-one (21) days after serving
the pleading or twenty-one (21) days "after a responsive
pleading or service of a motion under Rule 12(b),
(e), or (f),
whichever is earlier." Fed. R. Civ. Pro. 15(a) (1) (A)-(B). "In
all other cases, a party may amend its pleading only with the
opposing party's written consent or the court's leave. The court
should freely give leave when justice so requires." Fed. R. Civ.
Pro. 15(a) (2). As more than twenty-one days have elapsed since
the first responsive pleading was filed and Defendants do not
consent, Plaintiff may only amend his complaint with leave of
court.
Leave to amend a pleading may be denied where the court
finds:
(1) undue delay;
(2) undue prejudice to the non-moving
party;
(3) bad faith or dilatory motive; or (4) futility of
amendment. Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000).
"'Futility' means that the complaint, as amended, would fail to
state a claim upon which relief could be granted." Ibid. The
Court applies the same standard of legal sufficiency as applies
9
under Rule 12(b) (6). "Accordingly, if a claim is vulnerable to
dismissal under Rule 12(b) (6), but the plaintiff moves to amend,
leave to amend generally must be granted unless the amendment
would not cure the deficiency." Ibid.
The Court finds that granting the motion to amend the
complaint would be futile. The proposed amended complaint seeks
to add parties that are immune from suit, e.g., the New Jersey
Office of the Attorney General. Plaintiff may not seek relief
from the OAG under § 1983 or state tort law as he is barred by
the Eleventh Amendment. Will v. Mich. Dep't of State Police, 491
U.S. 58, 70-71
(1989); Rabbitt v. Weinberg, No. A-3697-13, 2015
WL 8547436, at *7-8
(unpublished)
(N.J. Super. Ct. App. Div. Dec. 14, 2015)
(noting the OAG is not a "person" within the
meaning of § 1983 or the New Jersey Civil Rights Act) . Thus, the
Court would have to dismiss the claims against the OAG.
In addition to the fact that at least one of the proposed
defendants is immune to suit, Plaintiff's proposed amended
complaint fails to state a claim against the proposed
defendants. Plaintiff has merely inserted the new names into the
claims portion of his complaint without providing facts that
support his allegations against them and justify a reasonable
inference that his claims against them are meritorious. 2 See Fair
2
Some of the claims to which the new defendants were added were
dismissed by Judge Sheridan for failure to state a claim. The
10
Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir.
2014)
("'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.'" (quoting Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009))). It would not be in the interests of justice to
force these new parties to join the proceedings and restart the
litigation at this late stage without stronger grounds for their
inclusion.
Moreover, amendment of the complaint would be futile as the
proposed amended complaint incorporates claims and defendants
that
ha~e
already been dismissed by Judge Sheridan's opinion and
order dated January 27, 2014.
(Docket Entries 3 and 4).
Specifically, Judge Sheridan dismissed Plaintiff's Eighth
Amendment claims against the New Jersey Department of
Corrections, New Jersey Department of Safety, and New Jersey
State Prison as they are not "persons" within the meaning of
§
1983; the Eighth Amendment claims against Woodward, Ashan,
Warren, and Lanigan as they were premised on an impermissible
respondeat superior basis of liability; the Eighth Amendment
claims again CMS and St. Francis; the conspiracy claim; the
breach of contract claim; and the unidentified "state
addition of new parties to factually-deficient claims does not
warrant amendment of the complaint.
11
constitutional," "federal constitutional tort," and "state
constitutional tort" claims.
(See generally Docket Entries 3 and
4). Plaintiff's proposed amended complaint contains all of these
parties and claims but does not correct any of the deficiencies
noted by Judge Sheridan.
Permitting the proposed amended complaint to go forward as
submitted would reinstate all of the claims and defendants that
have already been dismissed. Those defendants would have to
rejoin this matter and once again move for dismissal. As the
amended complaint provides no new facts that would permit their
reinstatement, this Court would be required to grant those
motions. As these claims would once again be vulnerable to a
motion to dismiss, their amendment is futile.
Shane v. Fauver,
213 F.3d 113, 115 (3d Cir. 2000). It is not in the interests of
justice to start this litigation over again when the
overwhelming majority of the proposed amended complaint would be
dismissed under Rule 12(b) (1) or (6). Plaintiff's motion to
amend his complaint is denied.
B. Appointment of Counsel
At this juncture, the Court will sua sponte reconsider
Plaintiff's application for pro bona counsel. For the reasons
stated below, the Court will grant Plaintiff's application for
counsel.
12
Appointment of counsel is a privilege, not a statutory or
constitutional right, Brightwell v. Lehman, 637 F.3d 187, 192
(3d Cir. 2011), and is governed by the factors enumerated in
Tabron v. Grace,
6 F.3d 147 (3d Cir. 1993). After reviewing the
relevant factors, the Court finds that the appointment of pro
bono counsel· is warranted in this matter due to the complexity
of the medical and legal issues and the need for factual
investigation and expert testimony. The selected appointed
attorney from the Civil Pro Bono Panel shall enter a notice of
appearance within ten (10) days of the date of his appointment.
IV. CONCLUSION
For the reasons stated above, the motion to amend the
complaint is denied. The Court will sua sponte appoint counsel.
An accompanying Order will be entered.
/1~AC1--'ff
Date
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