LITTLE v. IVERY et al
Filing
41
MEMORANDUM AND ORDER that the motion to dismiss the medical malpractice claims is denied without prejudice (ECF No. 29 ) because the Court has not construed Plaintiff's Complaint to raise state-law claims for medical malpractice; that the motio n for summary judgment directed at Plaintiff's § 1983 claims for deliberate indifference to his serious medical needs (ECF No. 29 ) is denied WITHOUT PREJUDICE AND Defendants may file a new motion for summary judgment with respect to these claims within 30 days of the date of this Order; that Plaintiff shall file opposition to Defendants' motion for summary judgment within 30 days of his receipt of that motion; if Plaintiff fails to file a response, the Court will treat the motion as unopposed; that Defendants may file a reply within 7 days of their receipt of Plaintiff's opposition. Signed by Judge Freda L. Wolfson on 8/16/2017. (mmh)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
AL-KASEEM LITTLE,
Civil Action No. 15-1815 (FLW)
Plaintiff,
v.
MEMORANDUM AND ORDER
DONIQUE IVERY, et al.,
Defendants.
This matter has been opened to the Court by Defendant Abu Ahsan and Donique Ivery’s
(“Defendants”) “Motion to Dismiss Plaintiff’s State Law Malpractice Claims with Prejudice and
for Summary Judgment with Respect to Plaintiff’s Constitutional Claims Pursuant to Fed. R.
Civ. P. 56(c)” (ECF No. 29). For the reasons explained below, the Court will deny without
prejudice the motion to dismiss because the Court, in its prior screening Order, did not construe
Plaintiff to raise any state law claims for medical malpractice. The Court will also deny without
prejudice Defendants’ hybrid motion for summary judgment on Plaintiff’s § 1983 claims for
deliberate indifference to his serious medical needs, and permit Defendants to refile their motion
for summary judgment within 30 days of the date of this Memorandum and Order. Plaintiff shall
file opposition to Defendants’ summary judgment motion within 30 days of his receipt of the
motion, and Defendants may file a reply brief within seven days of their receipt of Plaintiff’s
opposition.
Plaintiff Complaint was docketed on March 15, 2015. (ECF No. 1.) The Court screened
Plaintiff’s Complaint for dismissal pursuant to 28 U.S.C. 1915(e)(2)(B) and construed Plaintiff
to allege that Defendant medical professionals Donique Ivery (“Nurse Ivery”) and Dr. Abu
1
Ahsan (“Dr. Ahsan”) were deliberately indifferent to his serious medical needs in violation of the
Eighth Amendment. 1 (See ECF No. 5 at ¶ 4.) The Court did not construe the Complaint to raise
any state law claims for relief, including state law claims for malpractice. 2 Nurse Ivery and Dr.
Ahsan were served but failed to answer the Complaint, and Plaintiff sought and received an entry
of default, and subsequently filed a motion for default judgment. (See ECF Nos. 15, 18.) In the
interim, however, Defendants moved to set aside the entry of default (ECF No. 16), which was
granted on May 3, 2016. (ECF No. 23.) On that same date, Defendants Ivery and Ahsan filed
their Answer. (ECF No. 24.) On May 20, 2016, Plaintiff filed an application for pro bono
counsel, which was denied without prejudice by the Magistrate Judge on September 27, 2016.
(ECF Nos. 26-27.)
On January 5, 2017, Defendants filed a motion titled “Motion to Dismiss Plaintiff’s State
Law Malpractice Claims with Prejudice and for Summary Judgment with Respect to Plaintiff’s
Constitutional Claims Pursuant to Fed. R. Civ. P. 56(c)” (ECF No. 29.) Defendants’ motion is
best characterized as a hybrid motion seeking judgment on the pleadings under Fed. R. Civ. P.
12(c) with respect to Plaintiff’s state law malpractice claims, and summary judgment under Fed.
R. Civ. P. 56 on Plaintiff’s Eighth Amendment § 1983 claims. (See ECF No. 29.)
Plaintiff did not file opposition to Defendants’ motion; instead, on January 9, 2017,
Plaintiff submitted a letter stating that he received Defendants’ motion to dismiss and did not
know that he needed to file an Affidavit of Merit or Notice of Tort claims, and did not intend to
1
The Complaint also alleged that Defendant Mary Lang violated Plaintiff’s constitutional rights
by failing to by failing to respond to his grievances about Nurse Ivery and Dr. Ahsan; the Court,
however, dismissed the claim against Defendant Lang under 28 U.S.C. § 1915(e)(2)(B) for
failure to state a claim for relief.
2
Plaintiff’s complaint contains no reference to medical malpractice or negligent conduct by
Defendants. (ECF No. 1.)
2
delay the matter in any way. (ECF No. 31, Letter at 1.) On February 27, 2017, Plaintiff filed
another application for pro bono counsel. (ECF No. 35.) On February 27, Plaintiff wrote
another letter to the Court, explaining that he did not know how to submit an Affidavit of Merit
and asking to stay the matter until his application for pro bono counsel is decided.
By way of background, a state law claim for medical malpractice or medical negligence
is distinct from a § 1983 claim alleging violations of the Eighth Amendment right to adequate
medical care, and the latter requires a more culpable state of mind. See, e.g., Bramson v.
Sulayman, 251 F. App'x 84, 86 (3d Cir. 2007). More specifically, the Eighth Amendment’s
prohibition on “cruel and unusual punishments” proscribes “deliberate indifference” to prisoners’
serious medical needs. See Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 50 L.Ed.2d 251
(1976). Therefore, to state a claim against a prison official under the Eighth Amendment, the
prisoner must allege both (1) the existence of serious medical needs; and (2) the official’s
deliberate indifference to those needs. See Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir.1999).
Malpractice is a type of state-law negligence claim “based on the improper performance
of a professional service that deviated from the acceptable standard of care.” Zuidema v.
Pedicano, 373 N.J. Super. 135, 145 (App. Div. 2004) (collecting cases). Thus, “[i]n a typical
medical malpractice action, a plaintiff must establish by expert testimony the applicable standard
of care owed by a physician to a patient, a deviation from that standard of care, and that the
deviation proximately caused the injuries.” Id. (citing Verdicchio v. Ricca, 179 N.J. 1, 23
(2004)).
3
In an action alleging professional malpractice, New Jersey also requires an Affidavit of
Merit. See N.J.S.A. §§ 2A:53A–26 to 29.4. The Affidavit of Merit requirement is triggered by
the filing of the defendant’s answer:
Within 120 days after the defendant files an answer, the
malpractice plaintiff must file such an affidavit from an
appropriate licensed professional. That [Affidavit of Merit] must
state, to a reasonable probability, that the defendant’s conduct fell
short of accepted standards in the relevant profession. If a proper,
timely [Affidavit of Merit] is not filed, the case will be dismissed.
Szemple v. Univ. of Med. & Dentistry of New Jersey, 162 F. Supp. 3d 423, 425–26 (D.N.J. 2016).
Here, the Court previously screened Plaintiff’s Complaint pursuant to § 1915(e)(2)(B),
and construed Plaintiff to allege that Moving Defendants were deliberately indifferent to his
serious medical needs in violation of the Eighth Amendment. 3 (ECF No. 5, at ¶¶ 4-6.) The
Court proceeded the Eighth Amendment § 1983 claims against Nurse Ivery and Dr. Ashan, but
dismissed the Eighth Amendment §1983 claim against Defendant Mary Lang. (Id. at ¶¶ 7-8.)
The Court did not construe Plaintiff’s Complaint to raise any state law claims for medical
malpractice. Plaintiff’s letters to the Court in response to Defendants’ motion express confusion
about the Affidavit of Merit requirement, but do not appear to suggest that he intended to raise
medical malpractice claims in addition to his § 1983 claims for inadequate medical treatment. 4
3
Construed liberally in Plaintiff favor, the Complaint alleged that Plaintiff has a keloid and a
cyst that are causing him significant pain and itching. Plaintiff further alleged that Defendant
Ivery refused to examine or treat his keloid and did not believe that the keloid was causing
Plaintiff pain because she also had a keloid that did not cause her pain. When Plaintiff saw
Defendant Abu Ashan for a second opinion, he allegedly told Plaintiff that he respected Ms.
Ivery’s decision and “never examined” the keloid. (ECF No. 1, Compl. at pages 3-4, 8-9.)
Plaintiff appears to allege that the medication prescribed was ineffective and that Defendant
Ashan refused to consider surgical removal of the keloid/cyst. (Id.)
4
Furthermore, even if the Court construed Plaintiff to raise medical malpractice claims in his
Complaint, the Third Circuit, in Nuveen Municipal Trust v. Withumsmith Brown, P.C., 692 F.3d
283, 303 (3d Cir. 2012), has expressly held that “the affidavit of merit is not a pleading
requirement” (citing Chamberlain v. Giampapa, 210 F.3d 154, 160, 3d Cir. 2000), and instructed
that such motions for dismissal are properly brought under Fed. R. Civ. P. 56 as motions for
4
Because the Court did not construe Plaintiff to raise medical malpractice claims against Moving
Defendants in its screening Order, and Plaintiff has not stated otherwise in his letters to the
Court, the Court will deny without prejudice Defendants’ motion to dismiss based on Plaintiff’s
failure to file an Affidavit of Merit, which is not required §1983 claims alleging deliberate
indifference to serious medical needs. 5
In light of Plaintiff’s pro se status and the confusion created by Defendant’s hybrid
motion, the Court will also deny without prejudice the motion for summary judgment directed at
Plaintiff’s § 1983 claims and permit Moving Defendants to refile that motion within 30 days.
Plaintiff shall file a response to Defendants’ summary judgment motion within 30 days of his
receipt of that motion. 6 Defendants may file a reply within 7 days of their receipt of Plaintiff’s
opposition.
IT IS, THEREFORE, on this 16th day of August, 2017,
ORDERED that the motion to dismiss the medical malpractice claims is denied without
prejudice (ECF No. 29) because the Court has not construed Plaintiff’s Complaint to raise state-
summary judgment. Id. at n.13 (“That the affidavit [of merit] is not a pleading requirement
counsels that a defendant seeking to ‘dismiss’ an action based on the plaintiff’s failure to file a
timely affidavit should file a motion for summary judgment under Rule 56, and not a motion to
dismiss for failure to state a claim under Rule 12(b)(6).”).
5
The Court does not construe Plaintiff to request leave to amend to add a claim for medical
malpractice. To the extent Plaintiff seeks and is granted permission to amend his complaint to
add a claim for medical malpractice and fails to provide an Affidavit of Merit within the
prescribed time period, the Court will permit Defendants to file a motion for summary judgment
with respect to that claim.
6
The Court notes that Plaintiff has filed a motion for pro bono counsel, which is pending before
the Magistrate Judge. (ECF No. 35.) The mere filing of an application for pro bono counsel
does not relieve Plaintiff of his obligation to submit a response to Defendants’ motion. If
Plaintiff does not submit a response to Defendants’ motion for summary judgment in the
timeframe specified in the Court’s Order, the Court will consider Defendants’ motion as
unopposed.
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law claims for medical malpractice; and it is further
ORDERED that the motion for summary judgment directed at Plaintiff’s § 1983 claims
for deliberate indifference to his serious medical needs (ECF No. 29) is denied WITHOUT
PREJUDICE for the reasons stated herein; Defendants may file a new motion for summary
judgment with respect to these claims within 30 days of the date of this Order; and it is further
ORDERED that Plaintiff shall file opposition to Defendants’ motion for summary
judgment within 30 days of his receipt of that motion; if Plaintiff fails to file a response, the
Court will treat the motion as unopposed; and it is further
ORDERED that Defendants may file a reply within 7 days of their receipt of Plaintiff’s
opposition; and it is further
ORDERED that the Clerk of the Court shall send a copy of this Memorandum and Order
to Plaintiff by regular mail.
/s/ Freda L. Wolfson
Freda L. Wolfson
United States District Judge
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