HARRIS v. NEW JERSEY DEPARTMENT OF CORRECTIONS

Filing 14

OPINION filed. Signed by Judge Peter G. Sheridan on 6/12/2015. (eaj)

*NOT FOR PUBLICATION*
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
GOLDA D. HARRIS,
Civil Action No. 14-3 869 (PGS)
Plaintiff,
v.

:

OPINION

N.J. DEP’T OF CORR., et al.,
Defendants.

SHERIDAN, District Judge:

This is a civil action filed by Plaintiff Golda Harris (“Plaintiff’) pursuant to 42 U.S.C.

§

1983. The Court dismissed Plaintiffs Complaint on November 18, 2014 for failure to state a
claim. (ECF No. 7.) Plaintiff thereafter filed an Amended Complaint (ECF No. 8.) The Court
must now review the Amended Complaint pursuant to 28 U.S.C.

§ 1915(e)(2)(B) and 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 suit. For the reasons set forth below, the Amended Complaint will be dismissed without
prejudice in its entirety.
I. BACKGROUND

Plaintiff brings this civil rights action, pursuant to 42 U.S.C.

§ 1983, against Defendants

New Jersey Department of Corrections Gary Lanigan; Michelle Ricci; Dr. Ralph Woodard; Dr.
;
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Sandra Braimbridge; Dominque Ivery; Margaret Cocuzzo; Valerie Arthur; University Correctional

The New Jersey Department of Corrections is not a “person” under § 1983. See Ewing v.
CurnberlandCnty., No. 09—5432, 2015 WL 1384374, at *25 (D.N.J. Mar. 25, 2015); Brown v. New
Jersey Dep’t of Corr., No. 12—5069, 2014 WL 4978579, at *2 (D.N.J. Oct. 3,2014); Grabow v. S.
State Corr. Facility, 726 F.Supp. 537, 538—39 (D.N.J. 1989) (state department of corrections and
state prison facilities are not “persons” under § 1983). Therefore, the Department of Corrections
will be dismissed from this action with prejudice.

Health Center; Dan DiBenedetti; Karen Varecous; Margaret Lebak; Linda Hausold; and Gregory
Bueno. The following factual allegations are taken from the Amended Complaint and are accepted
for purposes of this screening only. The Court has made no findings as to the veracity of Plaintiffs
2
allegations.
Plaintiff alleges that Defendant Lanigan “violated the Terhune Agreement to provide
identified inmates with mental health services” and failed to supervise and train his staff. (Am.
Compl.

¶

5•)3

Plaintiff alleges that Defendant University Correctional Health Center made an

“arbitrary decision” to “remove” Plaintiff’s cane.

(Id. at

¶ 5(b).) Plaintiff alleges that Dr.

Woodward did not hold a hearing to prevent the removal of Plaintiff’s cane. (Id.) Plaintiff alleges
that Dr. Bainbridge “falsely altered the medical report of 1/8/14” and ‘provided false compiled
medical records to deceive the court that [Plaintiff] used medical devices which were removed for
violations and security reasons.” (Id.) Plaintiff further states that Dr. Bainbridge did not ‘order
pain medication or therapy with a chiropractor or follow up with her own recommendations.” (Id.)
With regard to Defendants Ivery and Cocuzzo, nurses at New Jersey State Prison, Plaintiff
alleges they have no licenses to perform medical acts, yet they “arbitrarily created a false record to
exist without a due process hearing or stating in the record 1. who authorized them to remove
[Plaintiffs] cane; 2. alter the time [Plaintiff] can use it; 3. state to dlc [sic] cane and for long distance
use only; 4. created an arbitrary record to exist without a due process hearing.” (Id.) Plaintiff

2

The Court notes that Plaintiffs 2 1-page Amended Complaint, and accompanying 33 pages of
exhibits, contain many facts, written in a stream-of-consciousness manner, most of which are
conclusory and seemingly unrelated to the crux of Plaintiff’s claims. The Court identifies and
addresses Plaintiffs claims to the best of its ability.
These exact allegations are also raised against Defendant Lanigan in the Amended Complaint
filed in Civil Action No. 13-3806. The Court will address these allegations in the opinion and
order screening that Amended Complaint.
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alleges that Defendant Ricci denied her a due process hearing and acted with deliberate indifference
to Plaintiff’s medical needs.

(Id.)

Plaintiff alleges that Defendant Arthur failed to provide

Plaintiff with her cane for over two years and falsely reported that Plaintiff used her cane as a
weapon. (Id.) Plaintiff states that Defendant Arthur allows other prisoners to use their canes, but
denies cane usage to Plaintiff.

(Id.)

Plaintiff alleges that Defendant Hausold, an executive

assistant and legal specialist for Edna Mahon Correctional Facility, “prepared the report and signed
Dr. Brainbridge [sic] name.” (Id.) Plaintiff alleges that this defendant conspired to submit false
reports and certifications to the court. (Id.) Plaintiff further alleges that Defendant Bueno, a
deputy attorney general, conspired with the other defendants to “alter the physical therapist report,
changed the report and then proceeded to submit the false and perjured report to the court as a
‘Confidential Appendix to Third Party’s [sic] of Respondents Department of Corrections.” (Id.)
Plaintiff alleges that he denied her a “fair trial and relief by false certifications causing pain and
suffing [sic].” (Id.) Finally, Plaintiff alleges that Defendants DiBenedetti, Boyd and Lebak, who
all work for the Ombudsman’s Office, failed to provide Plaintiff with assistance when she contacted
them for help. (Id.) Plaintiff is seeking an injunction to allow her to use her cane at all times, as
well as monetary damages. (Id. at ¶ 9.)
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 132 1-77 (April 26, 1996) (“PLRA”). district courts must review complaints in those civil actions
in which a prisoner is proceeding informa pauperis, see 28 U.S.C.
against a governmental employee or entity, see 28 U.S.C.
3

§

§

1915(e)(2)(B), seeks redress

1915A(b), or brings a claim with respect

to prison conditions, see 28 U.S.C.

§

1997e. The PLRA directs district courts to suasponte 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.

§

1915(e)(2)(B) and

§

1915A because Plaintiff

is proceeding as an indigent and 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
survive sua sponte screening for failure to state a claim the complaint must allege “sufficient
,
4
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.” Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d
Cir. 2014) (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

“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)).
4

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.
42, 48 (1988); Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).
B. Analysis

1. Denial of Hearing
It appears that Plaintiff is raising a claim for denial of her procedural due process rights
based upon the failure of Defendants Ricci, Arthur, Di Benedetti, Boyd and Lebak to provide her
with a due process hearing where she could challenge the denial of usage of her cane in the cell.
In 2009, the Department of Corrections had found that Plaintiff could use her cane both inside and
outside the confines of her cell. Harris v. New Jersey Dep ‘t ofCorr., No. A-U 130-11 T2, 2013 WL
6063249, at *1 (N.J. Super. Ct. App. Div. Nov. 19, 2013). Then, on March 11, 2011, the ADA
Coordinator for the Department of Corrections, Division of Operations, wrote in a letter to Plaintiff
that on November 15, 2010, a University Correctional Heath Care medical doctor had evaluated
Plaintiff and concluded that she no longer required the use of a cane. Id.

In a second letter, dated

June 14, 2011, the Coordinator stated that Plaintiff was evaluated by a medical professional again
on April 1, 2011, who concluded that Plaintiff only needed the use of a cane outside of her cell and
for long-distance transport. Id.

On May 7, 2011, Plaintiff submitted an Inmate Remedy System
5

Form (IRSF) to the prison administration, requesting the name of the person who concluded she no
longer required in-cell cane use. Id.

She asserted that she needed her cane at all times and had

received no medical evaluation indicating otherwise.

On May 16, 2011, the Department of

Corrections denied her request and on May 25, 2011, Plaintiff instituted an internal administrative
appeal of the denial of the in-cell use of the cane and the failure to provide information on the
decision. Id. On July 5, 2011, in its final decision, the Department of Corrections replied that
Plaintiff was “permitted the cane to and from [her] cell per [medical],” and that she “[could] not
retain the cane inside [her] cell, Dr.’s orders.” Id. Plaintiff appealed to the Appellate Division,
which remanded to the Department, stating that
[wje are unable to determine if the DOC decision was supported by medical
evaluations because the DOC did not provide the evaluations it relied on to Harris
or include them in the record. Here, especially where Harris denies the medical
evaluations occurred, the record is incomplete without the medical evaluations
themselves. On remand, the DOC must provide Harris with a copy of the medical
evaluations on November 15, 2010, and April 1, 2011 within fourteen days. We
recognize that the last evaluation referenced in the record was two and one-half
years ago. If the DOC continues to prohibit Harris the use of her cane in her cell,
Harris continues to maintain that the use of her cane in her cell is medically
necessary, and no medical evaluations concerning ilarri& need for the cane have
occurred since the filing of this appeal, the DOC must have Harris reevaluated by
a medical professional within thirty days of this decision and provide a copy of the
evaluation to Harris within fourteen days. In the event that Harris contests the
results of the most current evaluation, she may proceed through the inmate remedy
appeal system.
. .

Id. at

*

2-3.
To the extent Plaintiff is arguing that she was entitled to a hearing pursuant to the prison’s

internal grievance procedures, Plaintiff has failed to point to any support for that contention.
Moreover, the Court notes that prisoners do not have a constitutional right to prison grievance
procedures. See, e.g., Massey v. Helman, 259 F.3d 641, 647 (7th Cir. 2001) (collecting cases).
Nor do they have a liberty interest protected by the due process clause in the grievance procedures.
6

See Antonelli v. Sheahan, 81 F.3d 1422, 1430 (7th Cir. 1996) (state’s inmate grievance procedures
do not give rise to a liberty interest protected by the Due Process Clause); Hoover v. Watson, 886
F.Supp. 410, 418 (D.Del. 1995) affd, 74 F.3d 1226 (3d Cir.1995) (holding that if a state elects to
provide a grievance mechanism, violations of its procedures do not give rise to a

§ 1983 claim). In

any event, Plaintiff was not deprived of any process here. She clearly availed herself of the prison
grievance procedures, appealing the decision to deny her usage of her cane in-cell all the way up to
the Appellate Division. This claim will be dismissed.
2.

Medical Care

It appears that Plaintiff is alleging an Eighth Amendment claim for denial of medical care
based on the prison’s decision not to permit usage of her cane within her cell.
To state a claim for deliberate indifference to a serious medical need in violation of the
Eighth Amendment, a plaintiff must show (1) deliberate indifference by prison officials to (2) the
prisoner’s serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50
L.Ed.2d 251 (1976). “To act with deliberate indifference to serious medical needs is to recklessly
disregard a substantial risk of serious harm.” Giles v. Kearney, 571 F.3d 318, 330 (3d Cir. 2009).
Where prison officials know of the prisoner’s serious medical need, deliberate indifference will be
found where the official “(1) knows of a prisoner’s need for medical treatment but intentionally
refuses to provide it; (2) delays necessary medical treatment based on a non-medical reason; or (3)
prevents a prisoner from receiving needed or recommended medical treatment.” Rouse v. Plantier,
182 F.3d 192, 197 (3d Cir. 1999). In order to find deliberate indifference, “the official must both
be aware of facts from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference.” Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct.
1970, 128 L.Ed.2d 811(1994). However, “[w]here aprisonerhas received some medical attention
7

and the dispute is over the adequacy of the treatment, federal courts are generally reluctant to second
guess medical judgments and to constitutionalize claims which sound in state tort law.” U5 ex
rel. Walker v. Fayette Cnty., Pa., 599 F.2d 573, 575 n. 2 (3d Cir. 1979) (internal quotation marks
omitted). Claims of negligence or medical malpractice do not constitute deliberate indifference.
Singletaiy v. Pa. Dep’t of Corr., 266 F.3d 186, 193 (3d Cir. 2001).

In this case, Plaintiff alleges that on March 11, 2010, November 18, 2010 and April 1, 2011,
various nurses denied her usage of her cane. (Am. Compl.
been denied chiropractic services and therapy.

(Id.)

¶ 5.1.) She also alleges that she has

Finally, she alleges that “Defendants”

ignored Dr. Braimbridge’s December 2013 recommendation for therapy. (Id.) Even assuming
that Plaintiff has alleged a serious medical need, she has failed to allege sufficient facts under Iqbal
to show deliberate indifference on the part of any of Defendants.
Plaintiff alleges only that nurses denied her usage of her cane on three occasions, however
she fails to provide any further information, such as whether the usage was inside or outside of her
cell, who denied the usage, for how long she was denied usage, etc. This claim must be dismissed
under Iqbal. With regard to the recommendation for chiropractic therapy and services, Plaintiff
provides no further information other than to state that she was denied these services. Therefore,
this claim must be also dismissed under Jqbal.

Finally, with regard to the “therapy

recommendation” by Dr. Braimbridge in December 2013, the chart notation specifically states: “46
year old female with complaint of difficulties with mobilization and is requesting devices to get
around.

Please evaluate and recommend therapy.” (Am. Compl., Ex. Cra3.) Thereafter, on

January 8, 2014, Plaintiff did in fact receive that physical therapy evaluation, where it was
determined that Plaintiff should receive railings along the wall in her room and usage a cane for
trips outside of her cell. (Id. at Cra4.) Certainly, Dr. Braimbridge was not deliberate indifferent
8

since she almost immediately provided the physical therapy evaluation after it was recommended.
The fact that she did not agree with Plaintiffs assessment that the cane is necessary does not make
her deliberately indifferent.

See Spruill v. Gillis, 372 F.3d 218, 235 (3d Cir. 2004) (mere

disagreement as to the proper medical treatment is insufficient to state a constitutional violation).
This claim will also be dismissed.
3.

Conspiracy

Plaintiff alleges that Dr. Braimbridge, Arthur, Hausold and l3ueno ‘conspired to submit
false reports to the court.” (Am. Compi.

¶ 4.1-4.5.) Specifically, it appears that she is arguing

that these Defendants submitted false reports to the state court regarding the evaluation for the
necessity of the cane inside Plaintiffs cell. At the outset, the Court is unclear as to how these
allegation of submitting a “false” report about the cane usage would violate Plaintiffs constitutional
rights. Moreover, Plaintiff has provided absolutely no factual basis to support her contention that
the report is false. See Fowler. 578 F.3d at 210.
Additionally, in order to sufficiently allege a claim of a civil rights conspiracy, the complaint
must specifically set forth: (1) the conduct that violated the plaintiffs rights; (2) the time and the
place of the conduct; and (3) the identity of the officials responsible for the conduct. See Oatess
v. Sobolevitch, 914 F.2d 428, 431 n. 8 (3d Cir. 1990) (citing Colburn v. (Jpper Darby Twp., 838
F.2d 663, 666 (3d Cir.l 988)). The allegations of conspiracy must be grounded firmly in facts; they
caunot be conclusory nor can they hinge on bare suspicions and foundationless speculation. See
Young v. Kann, 926 F.2d 1396, 1405 n. 16 (3d Cir. 1991) (affirming dismissal of conspiracy claims
based upon mere suspicion and speculation). Here, Plaintiff does not state any facts which would
indicate a conspiracy among the Defendants. Consequently, these claims will be dismissed.
III.

CONCLUSION
9

III.

CONCLUSION
For the reasons stated above, the Amended 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.

§

I 915(e)(2)(B)(ii)

and l915A(b)(l). However, because it is conceivable that Plaintiff may be able to supplement her
pleading with facts sufficient to overcome the deficiencies noted herein, the Court will grant
5
Plaintiff leave to move to re-open this case and to file a second amended complaint.

An

appropriate order follows.
Dated:

/LlLçZ_

‘t,•/ ,(

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.
10