SELLOW v. BYRD et al

Filing 11

MEMORANDUM OPINION filed. Signed by Judge Peter G. Sheridan on 4/28/2016. (mmh)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DAVID SELLOW,
Civil Action No. 15-2736 (PGS)
Plaintiff,
v.

MEMORANDUM OPiNION

JEREMY BYRD, et al.,
Defendants.

IT APPEARING THAT:
1. On March 31, 2015, Plaintiff David Sellow (“Plaintiff), a prisoner currently confined
at New Jersey State Prison in Trenton. New Jersey, filed a complaint pursuant to 42 U.S.C.

§ 1983

against Defendants Jeremy Byrd and Donique Ivery for violating his rights under the Eighth
Amendment. (ECF No. 1.)
2. According to the allegations of the Complaint, on May 16, 2013, Plaintiff injured his
leg while working in the prison commissary. Plaintiff submitted an emergency pass for medical
attention and was seen by Defendant Byrd. Defendant Byrd acknowledged the swelling in
Plaintiffs leg and determined that the naproxen which Plaintiff was already prescribed would be
sufficient for pain.

He also told Plaintiff to apply a cold compress/ice to the swollen area.

After about a week of pain and discomfort, Plaintiff sought medical attention again and
was seen by Defendant Ivery, who ordered an x-ray and blood test for possible infection. Plaintiff
was also given an ace bandage and told to use an ice compress for two days. On June 6, 2013,

Plaintiffs injured leg was x-rayed and on June 7,2013, Plaintiff saw Defendant Ivery again, who

informed Plaintiff that his leg was fractured. Defendant Ivery had not seen the x-ray herself but
simply conveyed the results of the x-rays which were read by a radiologist. Defendant Ivery
informed Plaintiff that the fractured bone was starting to heal and there was nothing more she
could do.
3. After conducting its sua sponte screening, the Court dismissed the Complaint in its
entirety for failure to state a claim pursuant to 28 U.S.C.

§ 1915, 1915A. (ECF Nos.

2-3.) After

granting Plaintiff leave to amend, the Court dismissed the Amended Complaint in its entirety for
the same reasons. (ECF Nos. 7-8). Specifically, the Court held that Plaintiff had failed to allege
deliberate indifference on the part of either defendant. Id. (citing Estelle v. Gamble, 429 U.S. 97,
106 (1976) (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)). However, the Court granted Plaintiff permission to file a second
amended complaint addressing the deficiencies identified. Id.
4. On December 23, 2015, Plaintiff submitted his Second Amended Complaint. (ECF No.
9). Plaintiffs Second Amended Complaint contains identical allegations as both the original
Complaint and the Amended Complaint. At most, Plaintiff argues that Defendant Byrd was
negligent in not referring Plaintiff to a doctor immediately, causing a week’s worth of unnecessary
suffering. However, “deliberate indifference” is the standard required to state an Eighth
Amendment claim and it is well-settled that claims of negligence or medical malpractice, without
some more culpable state of mind, do not constitute ‘deliberate indifference.” Rouse v. Plantier,
182 F.3d 192, 197 (3d Cir. 1999); see also White v. Napoleon, 897 F.2d 103, 108 (3d Cir. 1990)
(concluding that mere medical malpractice cannot give rise to a violation of the Eighth
Amendment).
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5. Because Plaintiff has still failed to allege deliberate indifference on the part of either
Defendant, the Second 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.

§ 1915(e)(2)(B)(ii) and

1915A(b)(l). Because, upon screening the Amended Complaint, the Court granted Plaintiff “a
final opportunity” to cure the Amended Complaint’s deficiencies, and the Second Amended
Complaint fails to do so, the Second Amended Complaint is now dismissed in its entirety with
prejudice. (See ECF No. 7 at 3). An appropriate order follows.

Peter G. Sheridan, U.S.D.J.

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