SELLOW v. BYRD et al
MEMORANDUM OPINION filed. Signed by Judge Peter G. Sheridan on 12/1/2015. (mmh)
NOT FOR PUBLiCATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 15-2736 (PGS)
JEREMY BYRD, et al.,
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.
against Defendants Jeremy Byrd and Donique Ivery for violating his rights under the Eighth
Amendment. (Compi., 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 is starting to heal and there is nothing more she could
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.)
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
However, the Court granted Plaintiff permission to file an amended complaint
addressing the deficiencies identified. Id.
4. On April 15, 2015, Plaintiff submitted his Amended Complaint. (ECF No. 4.) His
Amended Complaint contains identical allegations as the original Complaint, except that he now
alleges that Defendants Byrd and Ivery’s actions “deviated from the accepted medical care
ordinarily provided by members in the health care field.” (Am. Compl.
8, 10.) However,
“deviation from acceptable medical care” is the standard for a medical malpractice claim under
New Jersey state law, not an Eighth Amendment violation. See iVicholas v. Mynster, 213 N.J.
463, 478 (2013) (to prevail in a medical malpractice action, “ordinarily, a plaintiff must present
expert testimony establishing (1) the applicable standard of care; (2) a deviation from that standard
of care; and (3) that the deviation proximately caused the injury”) (internal quotation marks and
“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).
5. Because Plaintiff has still failed to allege deliberate indifference on the part of either
Defendant, 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.
1915(e)(2)(B)(ii) and 1915A(b)(l).
However, the Court will grant Plaintiff a final opportunity to file an amended complaint which
cures the deficiencies noted herein.’
An appropriate order follows.
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 Acannot 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.
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