VOGT v. RUTGERS UNIVERSITY HEALTH DEPARTMENT FOR THE DEPARTMENT OF CORRECTIONS

Filing 11

OPINION filed. Signed by Judge Anne E. Thompson on 1/19/2016. (mmh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
COREY VOGT,
Civil Action
No. 15-3056 (AET-DEA)

Plaintiff,
v.

OPINION

RUTGERS UNIVERSITY HEALTH
DEPARTMENT FOR THE DEPARTMENT
OF CORRECTIONS,
Defendant.

APPEARANCES:

RECEIVED

Corey Vogt, Plaintiff Pro Se
#676974/885841C
Bayside State Prison
4293 Route 47
Leesburg, New Jersey 08327

JAN 2 9 2016
AT 8:30
WILLIAM T. WALSH
CLERK

1\1

THOMPSON, District Judge:

I.

INTRODUCTION

Before the Court is Plaintiff

Co~ey

Vogt's ("Plaintiff"),

motion for leave to file an amended complaint.

(Docket Entry

10). By Order dated August 24, 2015, this Court dismissed
Plaintiff's original complaint for failure to state a claim upon
which re 1 i e f may be granted, 2 8 U. S . C .

§

1915 ( e ) ( 2 ) ( B) ( ii ) .

(Docket Entry 8). The Court also granted leave to file a
proposed amended complaint within 30 days.

(Docket Entry 8).

Plaintiff submitted a proposed amended complaint on September
21, 2015.

(Amended Complaint, Docket Entry 10). For the reasons

set forth below, the motion will be granted, and the Clerk of
the Court shall file the amended complaint. The amended
complaint shall be dismissed in part and shall proceed in part.
I I . BACKGROUND

Plaintiff brings this civil rights action against
Defendants Rutgers University Health Department for the
Department of Corrections ("Rutgers"), Dr. Briglia, Dr.
Pomerantz, the Central Reception and Assignment Facility
("CRAF") medical staff, and the Bayside State Prison ("BSP")
medical staff. 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 truth
of Plaintiff's allegations.
Plaintiff was admitted to CRAF on or about January 9, 2015.
(Amended Complaint at 2). The attending medical staff, who were
employed by Rutgers University and acting on behalf of the
Department of Corrections, evaluated Plaintiff at the time of
his admission.

(Ibid.). Plaintiff informed the staff members of

his "pre-existing medical conditions" that were documented in
his records.

(Ibid.). He also had a "recent [trauma]" which

necessitated the use of a cane to walk.

(Ibid.). He states that

he required unidentified medication in order to relieve pain and
to allow "daily mobility[,]" but the medical staff would not

2

provide it even after they were informed he could not use the
stairs due to the pain.

(Ibid.).

Plaintiff states that he filed a grievance with the
American Disability Association coordinator, who "[enforced] a
move to the second floor due to [his] disability." (Ibid.). He
filed other request forms asking the medical staff to obtain his
medical records from his orthopedic specialist, Dr. Miller.

(Ibid.). The staff received the records, which allegedly
contained MRI scans confirming Plaintiff's condition and a
prescription for Norco, 1 but they continued to refuse to provide
the medication.

(Ibid.). As a result, Plaintiff was unable to

perform his normal activities.

(Ibid.).

Plaintiff was transferred to Southern State Correctional
Facility ("SSCF") on or about March 13, 2015.

(Id. at 3). Upon

his arrival at SSCF, he informed Dr. Pomerantz, a Rutgers
employee, of his mobility issues, including limitations on
"walking more than 3 minutes, bending over,

[tying] shoes,

showering, sitting for more than 10 minutes at a time and
standing more than five minutes at a time." (Ibid.). Dr.
Pomerantz transferred Plaintiff to the medical wing of SSCF, but
did not provide Plaintiff with his medication.

1

(Ibid.).

A combination of acetaminophen and hydrocodone, a narcotic pain
medication, that is used to relieve moderate to severe pain.
Norco, http://www.drugs.com/norco.html (last visited January 28,
2016) .
3

Plaintiff told Dr. Pomerantz that if he did not provide
Plaintiff with his medication, he "would be forced to contact .
.

. the medical services [patient] advocate ombudsman." (Ibid.).

He was thereafter "thrown out" of Dr. Pomerantz's office, and
Dr. Pomerantz filed an intuitional charge against Plaintiff for
"faking an injury." (Ibid.). Plaintiff explained the entire
situation to the disciplinary hearing officer, who instructed
Plaintiff not to "go to any recreation movements," but did not
sanction Plaintiff.

(Ibid.). Dr. Pomerantz instructed the

medical staff to seize Plaintiff's cane, leaving Plaintiff
unable to walk or stand without extreme pain. Plaintiff
submitted a grievance form about the situation, and he was
transferred to BSP two days later.

(Ibid.).

Plaintiff informed the BSP medical staff, whom Plaintiff
alleges were employed by Rutgers, of his conditions, but he was
again denied "proper pain management." (Id. at 4). He had knee
surgery on March 21, 2015, after which Dr. Miller ordered
hydrocodone for Plaintiff.

(Ibid.). Dr. Pomerantz, however,

provided Plaintiff with Tylenol 3. 2 (Ibid.). Plaintiff states he
was unable to leave his bed for three days.

2

(Ibid.). He was

The Court presumes Plaintiff is referring to Tylenol with
Codeine 3, which is "a combination medicine used to relieve
moderate to severe pain." Tylenol with Codeine #3,
http://www.drugs.com/mtm/tylenol-with-codeine-...3.html (last
visited January 28, 2016).
4

thereafter placed on the second floor, forcing him to use the
stairs all day in spite of the pain it caused.

(Ibid.). Dr.

Miller had also ordered Plaintiff to begin physical therapy
within two weeks, but it took a month after Plaintiff filed an
inmate grievance for it to start.

(Ibid.). Once he began

physical therapy, he was unable to fully participate in the
program because of the "improper pain management." (Ibid.). The
BSP staff took Plaintiff's new cane that had been given to him
by Dr. Miller causing Plaintiff to fall.

(Ibid.). No fractures

were found on an x-ray conducted after the fall.

(Ibid.).

Plaintiff asked for a MRI, but the staff refused to provide one.

(Ibid.) .
Plaintiff contacted Rutgers' regional medical director and
was scheduled for another visit with the orthopedic surgeon. The
surgeon agreed with an unidentified neurologist's decision "that
surgery would be [too] risky," 3 and that the risk outweighed any
benefit to Plaintiff.

(Id. at 5). The orthopedic surgeon

recommended Plaintiff be sent to a pain management specialist,
but the BSP medical staff refused to do so.

(Ibid.).

Plaintiff seeks $1,500,000 in damages, as well as a "full
review of [Rutgers'] procedures and responsibilities .

3

,,

The complaint does not set forth the circumstances under which
he was referred to a neurologist or when the consultation took
place.
5

(Ibid.). He also asks for injunctive relief in the form of an
order requiring defendants to immediately administer "proper
pain management" and physical therapy.

(Ibid.).

III. STANDARD OF REVIEW
Rule 15(a) of the Federal Rules of Civil Procedure permits
a party to amend a pleading once as a matter of course twentyone (21) days after serving the pleading or twenty-one (21) days
"after a responsive pleading or service of a motion under Rule
12 (b)-,

(e), or (f), whichever is earlier." Fed. R. Civ. Pro.

lS(a) (1) (A)-(B). "In all other cases, a party may amend its
pleading only with the opposing party's written consent or the
court's leave. The court should freely give leave when justice
so requires." Fed. R. Civ. Pro. 15(a) (2).
Leave to amend a pleading may be denied where the court
finds:

(1) undue delay;

(2) undue prejudice to the non-moving

party;

(3) bad faith or dilatory motive; or (4) futility of

amendment. Shane v. Fauver, 213 F.3d 113, 115 (3d Cir. 2000).
"'Futility' means that the complaint, as amended, would fail to
state a claim upon which relief could be granted." Ibid. The
Court applies the same standard of legal sufficiency as applies
under Rule 12(b) (6). "Accordingly, if a claim is vulnerable to
dismissal under Rule 12(b) (6), but the plaintiff moves to amend,
leave to amend generally must be granted unless the amendment
would not cure the deficiency." Ibid.
6

IV. ANALYSIS

A. Denial of Adequate Medical Care
Plaintiff has named

Rutger~,4

Dr. Briglia, 5 and Dr.

Pomerantz, and John Doe Medical Staff from CRAF and BSP as
defendants, alleging they violated his Eighth Amendment rights.
(Amended Complaint at 1). The Eighth Amendment proscription
against cruel and unusual punishment requires that prison
officials provide inmates with adequate medical care. Estelle v.

Gamble, 429 U.S. 97, 103-04 (1976). In order to set forth a
cognizable claim for a violation of his right to adequate
medical care, an inmate must allege:

(1) a serious medical need;

and (2) behavior on the part of prison officials that
constitutes deliberate indifference to that need.

Id. at 106.

Deliberate indifference to a prisoner's serious medical needs
may be £ound where the prison official (1)

knows of a prisoner's

4 Institutions and physicians who are under contract to provide
medical services to inmates at a state prison act "under color
of state law" for § 1983 purposes. See West v. Atkins, 487 U.S.
42, 54 (1988); Walker v. Horn, 385 F.3d 321, 332 (3d Cir. 2004).
The Court presumes for purposes of this screening opinion only
that Rutgers is not entitled to Eleventh Amendment immunity. See
Bowers v. Nat'l Collegiate Athletic Ass'n; 475 F.3d 524, 546 (3d
Cir. 2007) ("Whether a public university is entitled to Eleventh
Amendment immunity is a fact-intensive review that calls for
individualized determinations.") (citing Kovats v. Rutgers,
State Univ., 822 F.2d 1303 (3d Cir. 1987)).
5 Plaintiff's complaint is silent as to Dr. Briglia's involvement.
The complaint is therefore dismissed as to Dr. Briglia for failure
to state a claim.
7

need for medical treatment but intentionally refuses to provide
it;
on a

(2) intentionally delays necessary medical treatment based
non~medical

reason; or (3) deliberately prevents a prisoner

from receiving needed medical treatment. See Pierce v. Pitkins,
520 F. App'x 64, 66 (3d Cir. 2013)

(citing Rouse v. Pla.ntier,

182 F.3d 192, 197 (3d Cir. 1999)). "[A] prisoner's subjective
dissatisfaction with his medical care does not in itself
indicate deliberate indifference." Andrews v. Camden Ctny., 95
F. Supp. 2d 217, 228 (D.N.J. 2000)

(citing Peterson v. Davis,

551 F. Supp. 137, 145 (D. Md. 1982), aff'd, 729 F.2d 1453 (4th
Cir. 1984)).
In order for Rutgers, a government entity, to be

l~able

under § 1983 for the actions or inactions of its employees,
Plaintiff must allege that a Rutgers policy or custom caused the
alleged constitutional violation; it cannot be liable under §
1983 for the acts of its employees under a theory of respondeat
superior or vicarious liability. Natale v. Camden Ctny. Corr.
Facility, 318 F.3d 575, 583 (3d Cir. 2003)

(citing Bd. Of Cnty.

Comm'rs of Bryan Cnty. Oklahoma v. Brown, 520 U.S. 397, 404
(1997)); see also Defreitas v. Montgomery Cnty. Corr. Facility,
525 F. App' x 1 70, 177 ( 3d Cir. 2013)

(listing three ways a

policy or custom can be established) . Plaintiff has not alleged
there is a relevant Rutgers policy or custom that violated his
constitutional rights, that Rutgers, without a formally
8

announced policy, violated federal law itself, or that Rutgers
has failed to affirmatively act at all, even though the need for
it "to take some action to control [of its agents was] so
obvious, and the inadequacy of existing practice so likely to
result in the violation of constitutional rights, that [Rutgers]
can reasonably be said to have been deliberately indifferent to
the need." Defreitas, 525 F. App'x at 177 (internal citations
omitted) . His request that a "full review" of Rutgers' policies
and practices be conducted is not sufficient to allege
liability. Plaintiff has therefore failed to sufficiently allege
Rutgers was deliberately indifferent to his medical needs, and
the Eighth Amendment claims against Rutgers must be dismissed.
Construing the complaint liberally, and giving Plaintiff
the benefit of all reasonable inferences, the Court
preliminarily finds that Plaintiff has sufficiently pled Eighth
Amendment claims against the CRAF medical staff, Dr. Pomerantz,
and the BSP staff. Plaintiff alleges the CRAF medical staff
maliciously refused to provide him with his pain medication even
after receiving his medical records from Dr. Miller.

(Amended

Complaint at 2). Plaintiff alleges Dr. Pomerantz ordered the BSP
staff to seize Plaintiff's cane, which was part of his physical
therapy and was necessary for him to walk.

(Id. at 3-4).

Plainti£f also alleges the BSP medical staff refused to send him
to a pain management specialist as ordered by the orthopedic
9

surgeon, seized his cane, delayed access to his medication for
three days, and delayed access to his prescribed physical
therapy for a month.

(Id. at 4-5). These facts together with

their reasonable inferences permit these claims to proceed at
this time. To the extent the complaint could be read to allege
state medical malpractice and negligence claims against
Defendants,6 the Court will exercise supplemental jurisdiction
over those claims. 28 U.S.C. § 1367(a).
B. Retaliation
Plaintiff has also sufficiently pled a retaliation claim
against Dr. Pomerantz. "[R]etaliation for the exercise of
constitutionally protected rights .

.

. is itself a violation of

rights secured by the Constitution actionable under section
1983." Miller v. Mitchell, 598 F.3d 139, 117 (3d Cir. 2010)
(internal quotation marks omitted) . To sufficiently allege a
retaliation claim, plaintiff must state facts that indicate "(l)
he engaged in a constitutionally protected activity;

(2) he

6 Plaintiff's claims that he received the wrong medication and
was denied a MRI are not sufficient to state an Eighth Amendment
claim. He has, however, sufficiently alleged state negligence
and medical malpractice claims. See DeJesus v. Corr. Med.
Servs., Inc., 574 F. App'x 66, 68-69 (3d Cir. 2014) (" [W]here a
prisoner has received some medical attention 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."
(internal quotation marks omitted)); see also White v. Napoleon,
897 F.2d 103, 110 (3d Cir. 1990). ("[M]ere disagreements over
medical judgment do not state Eighth Amendment claims.").
10

suffered, at the hands of a state actor, adverse action
sufficient to deter a person of ordinary firmness from
exercising his constitutional rights; and (3) the protected
activity was a substantial or motivating factor in the state
actor's decision to take adverse action." Fantone v. Latini, 780
F.3d 184, 191 (3d Cir. 2015), as amended (Mar. 24, 2015).
According to the complaint, Plaintiff told Dr. Pomerantz that if
he did not provide Plaintiff with his medication, he "would be
forced to contact .

. . the medical services [patient] advocate

ombudsman." (Amended Complaint at 3). Dr. Pomerantz thereafter
filed an intuitional charge against Plaintiff for "faking an
injury." (Ibid.). Construing the complaint liberally and giving
Plaintiff the benefit of all reasonable inferences, the Court
preliminarily finds that Plaintiff has sufficiently pled a claim
of retaliation against Dr. Pomerantz.
C. Injunctive Relief
Plaintiff also seeks an order from this Court that would
require Defendants to "administer proper pain management and
physical therapy .

." (Id. at 5). Plaintiffs requesting

prospective injunctive relief "must allege a real and immediate
threat of future injury." Doe v. Div. of Youth & Family Servs.,

148 F. Supp. 2d 462, 478 (D.N.J. 2001)

(citing City of Los

Angeles v. Lyons, 461 U.S. 95, 101 (1983)). "Allegations of
exposure to illegal conduct in the past alone, without a showing
11

of continuing adverse effects, do not demonstrate a case or
controversy entitling a plaintiff to prospective injunctive
relief." Id. at 479 (internal citations

omitted)~

A plaintiff

must be able to show that a real and imminent harm will occur; a
mere possibility of future harm will not suffice. ZF Meritor,

LLC v. Eaton Corp., 696 F.3d 254, 300-01 (3d Cir. 2012), cert.
denied, 133 S. Ct. 2025 (2013) . 7
Plaintiff has alleged that he continues to be denied
"proper pain management," and that as a result, he cannot
participate in his required physical therapy.

(Amended Complaint

at 5). He state that an injunction is necessary "so I can fully
[participate] in my prevention of progressive injury's [sic] and
[extreme] pain." (Ibid.). Defendants shall be ordered to show
cause within 14 days of service why an injunction should not
issue. Fed. R. Civ. Pro. 65.
IV.

CONCLUSION

For the reasons stated above, Plaintiff's motion to amend
his complaint is granted, and the Clerk of the Court shall filed

Plaintiff must ultimately demonstrate "(l) a likelihood of
success on the merits; (2) that [he] will suffer irreparable
harm if the injunction is denied; (3) that granting preliminary
relief will not result in even greater harm to the nonmoving
party; and (4) that the public interest favors such relief." KOS
Pharms., Inc. v. Andrx Corp., 369 F.3d 700, 708 (3d Cir. 2004).
All four elements must be satisfied in order to grant the
injunction. Roberts v. Ferman, 448 F. App'x 254, 256 (3d Cir.
2011).
7

12

the amended complaint. The Eighth Amendment claims against
Rutgers are dismissed without prejudice for failure to state a
claim; however, the negligence and medical malpractice claims
shall proceed. The Eighth Amendment, negligence, retaliation,
and medical malpractice claims against Dr. Pomerantz shall
proceed. The Eighth Amendment, negligence, and medical
malpractice claims against John Does CRAF and BSP medical staffs
shall proceed. All claims against Dr. Briglia are dismissed for
failure to state a claim. Defendants shall show cause within 14
days of service why an injunction shall not issue. An
appropriate order follows.

~&~
T~OMPS¥<
ANNE E .

U.S. District Judge

13