BAKER v. FISHMAN et al

Filing 49

MEMORANDUM AND ORDER granting Plaintiff's application to proceed in forma pauperis; the Third Amended Complaint shall be filed; Plaintiff is assessed a filing fee of $350.00 and shall pay the entire filing fee in the manner set forth in thi s Order pursuant to 28 U.S.C. § 1915(b)(1) and (2), regardless ofthe outcome of the litigation; the Clerk shall DISMISS all defendants currently listed on the docket, but are not listed in Paragraph One above, from the case; the Clerk shall also ADD any defendants listed in Paragraph One that are not on currently listed on the docket; all claims that accrued before December 5. 2012, all § 1983 claims against NJDOC, and all claims regarding medical clemency, are hereby DISMISSED WITH PR EJUDICE; UMDNJ, Rutgers, Lanigan, and Johnson are hereby DISMISSED from the case; pursuant to 28 U.S.C. § 19 15(d), the Clerk shall issue summons and the United States Marshal shall serve summons, the Third Amended Complaint and this Order upon the remaining defendants, with all costs of service advanced by the United States. Signed by Judge Peter G. Sheridan on 6/30/2017. (seb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

RALPH BAKER,,

Civil Action No. 14-7583 (PGS) (TJB)
Plaintiff,
v.

:

MEMORANDUM AND ORDER

PAUL FISHMAN, et al.,
Defendants.

This case has come before the Court on a civil rights Complaint filed by Plaintiff Ralph
Baker, asserting that his constitutional rights have been violated by Defendants. The Court had
rejected two previous pleadings by Plaintiff for failure to state a claim and improper joinder, but
afforded him opportunities to amend. Presently before the Court is Plaintiffs Third Amended
Complaint (“TAC”).

ECF No. 44.

Also before the Court is Plaintiffs in forma pauperis

application, filed together with the original Complaint but apparently has yet to be ruled upon,
which the Court now grants. ECF No. 1-1. Because Plaintiff is proceeding informapauperis, the
Court must review the TAC pursuant to 28 U.S.C.

§ 1915(e)(2)(B) 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. It
appearing,
1. Plaintiff names as defendants (1) Steven Johnson, Administrator of the New Jersey State
Prison (“NJSP”); (2) Doctor Ihumma Naachuku, M.D., head of the Medical Clinic at NJSP; (3)
Doctor Russell Freid, M.D., a physician at the St. Francis Medical Center; (4) Michael Piecuch
and (5) Barman Vladislav, medical residents at the University Hospital in Newark, New Jersey;
(6) Marci L. Marsker, Clinician Administrator at the University of Medicine and Dentistry of New

Jersey (“UMDNJ”); (7) Kathy Trillo, employee of UMDNJ; (8) Doctor Abu Ahsan, M.D.,
employee of UMDNJ; (9) UMDNJ; (10) Rutgers University; (11) New Jersey Department of
Corrections (“NJDOC”); (12) Gary Lanigan, Commissioner ofNJDOC; (13) Jeremy Burg, a nurse
employed by Rutgers; (14) Lace Carter, a nurse employed by Rutgers; (15) Correctional Medical
Services (“CMS”), a provider of inmate healthcare for the NJSP; (16) Alejandrina Sumicad,
employee of UMDNJ; (17) Susan Spangler, employee of UMDNJ; and (18) St. Francis Medical
Center (“St. Francis”). These are defendants Plaintiff lists in the body of the TAC. To the extent
any other defendants are listed in the case caption but not listed herein, the Court deems Plaintiffs
claims against such defendants abandoned on the account of the newly filed amended complaint.
See Fla. Dep’t of State v. Treasure Salvors, Inc., 458 U.S. 670, 705 n.2 (1982) (Brennan, J.,
concurring in judgment) (“[O]nce accepted, an amended complaint replaces the original.”); Snyder
v. Pasack Valley Hosp., 303 F.3d 271, 276 (3d Cir. 2002) (“An amended complaint supercedes the
original version in providing the blueprint for the future course of a lawsuit.”).
2. According to the TAC, Plaintiff has been in and out of the New Jersey prison system since
at least 1990, with his latest stint in the NJSP since 2009. During this latest stint, Plaintiff was
diagnosed with prostate cancer. The TAC alleges that not only has Plaintiff received inadequate
medical care during his current stint of incarceration for a variety of ailments including his cancer,
he also received inadequate medical care during his previous incarcerations because his cancer
should have been detected earlier. Plaintiff also alleges that he is seeking a medical clemency
from the governor.
3. The Court dismisses all

§ 1983 claims regarding the failure to detect his cancer during his

previous incarcerations. To state a denial of medical services claim under the Eighth Amendment,
it is not enough a plaintiff alleges that he received inadequate care—he must also establish that the

2

defendants acted with deliberate indifference with regard to the provision of inadequate care. See
Estelle v. Gamble, 429 U.S. 97, 106 (1976); Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575,
582 (3d Cir. 2003). As such, mere allegations of medical malpractice are not sufficient to establish
a constitutional violation. Allah v. Hayinan, 442 F. App’x 632, 635-36 (3d. Cir. 2011).
4. Here, Plaintiffs allegations regarding the failure to detect his cancer falls far short of
establishing a constitutional violation. There is no allegation that any defendant deliberately
ignored clear warning signs of cancer before 2009, or that they had actual knowledge of the cancer
and simply hid that fact from Plaintiff. Plaintiff asserts the various doctors that treated him during
his previous incarcerations should have detected his cancer, but that amounts to at best a medical
malpractice claim, not a constitutional claim. As such, all denial of medical services claims
regarding the failure to detect his cancer are dismissed without prejudice.

5. The TAC further alleges that various defendants violated his constitutional rights when
they interfered and impeded his attempts to obtain a medical clemency from the governor. The
Court dismisses these claims because a convict has no constitutional right to clemency for any
reason. “There is no right under the Federal Constitution to be.

.

.

released before the expiration

of a valid sentence[.]” Swarthout v. Cooke, 131 S. Ct. 859, 862 (2011). The allegations do not
state a constitutional violation, because the right asserted does not exist.
6. The Court also dismisses any denial of medical services claims that may have accrued
before December 5, 2012, two years prior to the filing of the original Complaint, as time-barred.
Under New Jersey law, an action for an injury caused by a wrongful act, neglect, or default must
be commenced within two years of accrual of the cause of action. N.J.S.A.

§ 2A: 14-2; Estate of

Lagano v. Bergen Cty. Prosecutor’s Office, 769 F.3d 850, 859 (3d Cir. 2014). Federal courts look
to state law to detennine the limitations period for

.3

§ 1983 actions. Wallace v. Kato, 549 U.S. 384,

387-88 (2007); Lagano, 769 F.3d at 859.

Civil rights or constitutional tort claims are best

characterized as personal injury actions and are governed by the applicable state’s statute of
limitations for personal injury actions. Lagano, 769 F.3d at 859. Accordingly, New Jersey’s twoyear limitations period on personal injury actions governs Plaintiffs claims. Id. Here, any claims
regarding incidents of inadequate medical care that accrued before December 5, 2012 should have
been raised earlier, and because they were not, Plaintiffs claims of inadequate medical care must
be limited to claims that accrued within the two years prior to the filing of the original Complaint.
Any earlier-accrued claims are dismissed with prejudice as time-barred.
7. The Court additionally dismisses state-law tort claims against all defendants except CMS,
St. Francis, and Freid. Under the New Jersey Tort Claims Act (“NJTCA”), when asserting a state
tort claim against a public entity or a public employee, a plaintiff must give notice of the claim
within ninety days after the cause of action has accrued. See N.J.S.A.

§

59:8-8; Konah v. City of

Newark. No. L-962-10, 2011 WL 1598957, at *2 (N.J. Sup. Ct. App. Div. Apr. 29, 2011); Brown
v. Twp. ofNeptune, No. 11-7162, 2014 WL 3517776, at *7 (D.N.J. July 15, 2014).’ This notice
requirement applies to common law intentional tort claims, Ptaszynski v. Uwaneme, 371 N.J.
Super. 333, 343 (App. Div. 2004), as well as negligent conduct, Velez v. City ofJersey City, 180
N.J. 284, 292-93 (2004). This ninety-day notice period may be extended by a court upon a finding
of “sufficient reasons constituting extraordinary circumstances for [the plaintiffs] failure to file
notice of claim within the period of time prescribed,” but only if the plaintiff files a late notice
“within one year after the accrual of his claim[.]” N.J.S.A.

§

59:8-9; see Slater v. Hardin, No. L

8574-09, 2014 WL 923337, at *5 (N.J. Sup. Ct. App. Div. Mar. 11,2014). Plaintiffs who do not
1

Because CMS, St. Francis, and Freid are not public entities or public employees, NJTCA does
not apply to claims against them. Gomes v. Cly. ofMonmouth,No. L-2096-14, 2016 WL 1452892,
at *1 (N.J. Sup. Ct. App. Div. Apr. 14, 2016) (“We hold that the Tort Claims Act
does not
require service of such a notice upon a private government contractor.”).
.

4

.

.

comply with this requirement are “forever barred” from recovering on their claim. See N.J.S.A.

§

59:8-8. Notice is important because it provides state agencies the “opportunity to investigate the
claims, and take disciplinary or other appropriate action to rectify inappropriate behavior or flawed
*9 (D.N.J. June 22,
practices[.]” Mawhinney v. Francesco, No. 08-33 17, 2010 WL 2557713, at
2010) (quoting Velez, 180 N.J. at 293). Failure to file a notice of claim is a ground for dismissal
at the motion to dismiss stage. See William v. Westampton Police Dep’t, No. L-1144-13, 2014
WL 5393184, at *3 (N.J. Sup. Ct. App. Div. Oct. 24, 2014).2
8. Here, because Plaintiff claims relief under state law, he must follow established state
procedures. See Murphy v. Bloom, 443 F. App’x 668, 670 (3d Cir. 2011) (“The District Court

[]

properly recognized that Murphy did not follow the proper procedure for bringing a [state law]
claim

.

.

.

as required by state law.”). There is no allegation in the TAC that Plaintiff filed the

required notice of claims. Under New Jersey law, Plaintiff is required to file the notice of claims
before he initiates any state law tort action against the public defendants. See N.J.S.A.

§

59:8-3.

As such, Plaintiff must demonstrate, at the time he filed the original Complaint, that such notice
of claims had already been served. See Ptaszynski v. Uwaneme, 371 N.J. Super. 333, 343 (App.
Div. 2004) (holding that the notice requirement under the Tort Claims Act is a jurisdictional
precondition to filing suit). No such demonstration has been made in the TAC. See Fed. R. Civ.
P. 8(a) (“A pleading that states a claim for relief must contain

.

.

.

the grounds for the court’s

jurisdiction[.]”). Because there is no allegation that a notice of claims has been filed with the
public defendants, Plaintiff has failed to establish, under Rule 8, that this Court has jurisdiction
over Plaintiffs state law claims against them. Accordingly, Plaintiffs state law claims against the
UMDNJ, now a part of Rutgers, see http://integration.rutgers.edu (last visited June 23, 2017),
and Rutgers itself, are public entities protected by the NJTCA. See Fine v. Rutgers, State Univ. of
Ni, 163 N.J. 464, 468 (2000). Employees of public entities are also protected by the NJTCA.
See N.J.S.A. § 59:8-3.
2

5

public defendants are dismissed for lack ofjurisdiction. See Bethea v. Roizrnan, No. 11-254, 2012
WL 2500592, at *7 (D.N.J. June 27, 2012) (dismissing plaintiff’s state law tort claims for his
failure to plead compliance with the notice requirement under the Tort Claims Act).
9. Finally, the Court dismisses all

§ 1983 claims against NJDOC, UMDNJ, Rutgers, CMS,

St. Francis, Lanigan, and Johnson. First, NJDOC claims are dismissed because of Eleventh
Amendment immunity. See Chavarriaga v. N.J Dep’t of Corr., 806 F.3d 210, 224 n.9 (3d Cir.
2015) (“{T]he Court correctly dismissed the NJDOC from this case on Eleventh Amendment
grounds.”). With regard to UMDNJ, Rutgers, CMS, St. Francis, Lanigan, and Johnson, there is
no respondeat superior liability against supervisors or employers in

§ 1983 suits. See Ashcroft v.

Iqbal, 556 U.S. 662, 676 (2009) (“Government officials may not be held liable for the
unconstitutional conduct of their subordinates[.]”); Weigher v. Prison Health Servs., 402 F. App’x
668, 670 (3d Cir. 2010) (holding that a private corporation providing medical services at a state
correctional facility cannot be held liable under a theory of respondeat superior in a

3
§ 1983 suit).

To state a claim against these defendants, Plaintiff must allege that they violated his constitutional

Although the Court is constrained to follow the Third Circuit’s non-precedential decision in
Weigher, some courts have decided differently. See, e.g., Hutchison v. Brookshire Bros., Ltd., 284
F. Supp. 2d 459, 472-73 (E.D. Tex. 2003); Groom v. Safeway, Inc., 973 F. Supp. 987, 991 n.4
(W.D. Wash. 1997). As another court in this district opined:
The policy considerations which prompted the Supreme Court to reject qualified
immunity for private prison guards are the same considerations which suggest that
private corporations providing public services, such as prison medical care, should
not be immune from respondeat superior liability under § 1983. In the context of
a claim that the deprivation of medical care amounted to a constitutional violation,
proof of such claim would almost certainly prove a case of ordinary state law
malpractice where respondeat superior would apply. it seems odd that the more
serious conduct necessary to prove a constitutional violation would not impose
corporate liability when a lesser misconduct under state law would impose
corporate liability.
Taylor v. Plousis, 101 F. Supp. 2d 255, 263 n.4 (D.N.J. 2000).
6

______

rights through they own actions, or promulgated specific policies that led to the constitutional
violations. See Ashcroji’, 556 U.S. at 676 (“[A] plaintiff must plead that each Government-official
defendant, through the official’s own individual actions, has violated the Constitution.”); Caidwell
v. Egg Harbor Police Dep’t, 362 F. App’x 250, 251 (3d Cir. 2010) (holding that to raise a policy
claim, a plaintiff must identify the specific policy in question, not simply state generally that an
unspecified policy exists).
Accordingly, all

Plaintiff has not done so here against any of these defendants.

§ 1983 claims against the aforementioned defendants are dismissed without

prejudice.
10. The balance of the TAC, which consists of (1) denial of medical services claims against
individual medical defendants with regard to Plaintiff’s current incarceration, and (2) state law tort
claims against non-public defendants, that accrued within the two years prior to the filing of the
original Complaint, are permitted to proceed past screening.
IT IS therefore on this

day of

,

2017,

ORDERED that Plaintiffs application to proceed in forma pauperis is hereby
GRANTED; it is further

ORDERED that the Third Amended Complaint shall be filed; it is further
ORDERED that, pursuant to 28 U.S.C.

§ 1915(b) and for purposes of account deduction

only, the Clerk of the Court shall serve a copy of this Order by regular mail upon the Attorney
General of the State of New Jersey and the Administrator of the New Jersey State Prison in
Trenton, New Jersey; it is further
ORDERED that Plaintiff is assessed a filing fee of $350.00 and shall pay the entire tiling
fee in the manner set forth in this Order pursuant to 28 U.S.C.

§ 1915(b)(1) and (2), regardless of

the outcome of the litigation, meaning that if the Court dismisses the case as a result of its sua

7

sponte screening, or Plaintiff’s case is otherwise administratively terminated or closed,

§

1915

does not suspend installment payments of the filing fee or permit refund to the prisoner of the
filing fee, or any part of it, that has already been paid; it is further
ORDERED that pursuant to Bruce v. Samuels, 136 S. Ct. 627, 632 (2016), if Plaintiff owes
fees for more than one court case, whether to a district or appellate court, under the Prison
Litigation Reform Act (PLRA) provision governing the mandatory recoupment of filing fees,
Plaintiff’s monthly income is subject to a simultaneous, cumulative 20% deduction for each case
a court has mandated a deduction under the PLRA; i.e., Plaintiff would be subject to a 40%
deduction if there are two such cases, a 60% deduction if there are three such cases, etc., until all
fees have been paid in full; it is further
ORDERED that pursuant to 28 U.S.C.

§

l915(b)(2), in each month that the amount in

Plaintiff’s account exceeds $10.00, the agency having custody of Plaintiff shall assess, deduct from
Plaintiff’s account, and forward to the Clerk of the Court payment equal to 20% of the preceding
month’s income credited to Plaintiff’s account, in accordance with Bruce, until the $350.00 filing
fee is paid; each payment shall reference the civil docket numbers of the actions to which the
payment should be credited; it is further
ORDERED that the Clerk shall DISMISS all defendants currently listed on the docket,

but are not listed in Paragraph One above, from the case; the Clerk shall also ADD any defendants
listed in Paragraph One that are not on currently listed on the docket; it is further
ORDERED that (1) all claims that accrued before December 5. 2012, (2) all

§

1983 claims

against NJDOC, and (3) all claims regarding medical clemency, are hereby DISMISSED WITH
PREJUDICE; it is further

8

ORDERED that (1) all claims regarding the failure to detect Plaintiff’s cancer prior to

2009, (2) all state law tort claims against all defendants except CMS, St. Francis and Freid, and
(3) all

§ 1983 claims against UMDNJ, Rutgers, CMS, St. Francis, Lanigan, and Johnson, are

hereby DISMISSED WITHOUT PREJUDICE; it is further
ORDERED that UMDNJ, Rutgers, Lanigan, and Johnson are hereby DISMISSED from
the case; it is further

§ 19 15(d), the Clerk shall issue summons and the

ORDERED that, pursuant to 28 U.S.C.

United States Marshal shall serve summons, the Third Amended Complaint and this Order upon
;
4
the remaining defendants, with all costs of service advanced by the United States it is further
ORDERED that, pursuant to 42 U.S.C.

§ 1997e(g)(2), defendants shall file and serve an

answer, see Fed. R. Civ. P. 12(a)(1)(A); it is further
ORDERED that, pursuant to 28 U.S.C.

§ 1915(e)(l) and § 4(a) of Appendix H of the Local

Civil Rules, the Clerk shall notify Plaintiff of the opportunity to apply in writing to the assigned
judge for the appointment of pro bono counsel; it is further
ORDERED that, if at any time prior to the filing of a notice of appearance by defendants,
Plaintiff seeks the appointment of pro bono counsel or other relief, pursuant to Fed. R. Civ. P. 5(a)
and (d), Plaintiff shall (1) serve a copy of the application by regular mail upon each party at his
5
last known address and (2) file a Certificate of Service; and it is further

Alternatively, the U.S. Marshal may notify defendants that an action has been commenced and
request that the defendants waive personal service of a summons in accordance with Fed. R. Civ.
P. 4(d).
After an attorney files a notice of appearance on behalf of a Defendant, the attorney will
automatically be electronically served all documents that are filed in the case.
9

ORDERED that the Clerk shall serve a copy of this Order upon Plaintiff by regular mail.

Peter G. Sheridan
United States District Judge

10