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

Filing 7

OPINION filed. Signed by Judge Anne E. Thompson on 8/23/2015. (eaj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
COREY VOGT,
Plaintiff,

Civil Action
No. 15-3056 (AET-DEA)

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

OPINION

Defendant.

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

SEP -1 2015
AT8:30
WILLIAM T. WALSH
CLERK

M

THOMPSON, District Judge:
I.INTRODUCTION

Before the Court is Plaintiff Corey Vogt's ("Plaintiff"),
submission of a civil rights complaint pursuant to 42 U.S.C.

§

1983. Plaintiff is a state prisoner currently confined at Bayside
Prison ("BSP"), Leesburg, New Jersey. By Order entered July 22,
2015, this Court granted Plaintiff's application to proceed in
forma pauperis and filed the complaint.

(Docket Entry 6). At this

time, the Court must review the complaint pursuant to 28 U.S.C.

§§

1915{e) (2) and 1915A 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 such relief. For the reasons set forth
below, the complaint will be dismissed for failure to state a claim
upon which relief may be granted.
:I. BACKGROUND

Plaintiff brings this civil rights action against Defendant
Rutgers University Health Department for the Department of
Corrections ("Rutgers") . The following factual allegations are
taken from the complaint and are accepted for purposes of this
screening only. The Court has made no findings as to the veracity
of Plaintiff's allegations.
Plaintiff was admitted to the Central Reception and Assignment
Facility ("CRAF") on or about January 9, 2015.

(Docket Entry 1 at

5). He informed unidentified staff members of his extreme pain "due
to medical problems both new and old" that were documented on his
records, but he did not receive any "pain management" or "physical
therapy." (Docket Entry 1 at 5).

Pla~ntiff

was transferred to

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

(Docket Entry 1 at 5).
Upon his arrival at SSCF, he informed Dr. Pomagrant 1 of his

"physical conditions," wh£ch included unspecified mobility issues,
and that he had a pain level of "10 out of 10 on a daily [basis]."
(Docket Entry 1 at 5). Once again, he did not receive any
treatment.

1

(Docket Entry 1 at 5). Dr. Pomagrant filed an

The complaint does not indicate by whom Dr. Pomagrant is employed.
2

intuitional charge against Plaintiff that was later dismissed.
(Docket Entry 1 at 5). Plaintiff was thereafter transferred to BSP,
where he was again denied "proper pain management" as well as
housing that accommodated his physical limitations.

(Docket Entry 1

at 5) .
Plaintiff had knee surgery on March 19, 2015.

(Docket Entry 1

at 5). The orthopedic surgeon prescribed Norco, 2 taken once a day,
and an anti-inflammatory medication, taken four times a day.
(Docket Entry 1 at 5). Plaintiff states he was never given the
recommended treatment, leaving him with extreme pain and limited
mobility.

(Docket Entry 1 at 5-6). He states that in spite of using

the Inmate Remedy System and contacting the Head Advocate for
Inmate Medical Problems, the medical staff have refused to provide
proper treatment for his pain.

(Docket Entry 1 at 6).

Plaintiff seeks unspecified monetary damages as well as
injunctive relief. He also asks this Court to revoke Dr.
Pomagrant's medical license.

(Docket Entry 1 at 7).

II. DISCUSSION

A. Standards for a Sua Sponte Dismissa1
Per the Prison Litigation Reform Act, Pub. L. No. 104-134, §§
801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996)

("PLRA"),

district courts must review complaints in those civil actions in

2

Norco is a combination of acetaminophen and hydrocodone, which is
a narcotic pain medication. Norco is used to relieve moderate to
severe pain and is potentially addictive. NoRco,
http://www.drugs.com/norco.html (last visited August 13, 2015).

3

which a prisoner is proceeding in forma pauperis, see 28 U.S.C. §
1915(e) (2) (B), seeks redress against a governmental employee or
entity, see 28 U.S.C. § 1915A(b), or brings a claim with respect to
prison conditions, see 42 U.S.C. § 1997e. The PLRA directs district
courts to sua sponte dismiss any claim that is frivolous,

is

malicious, fails to state a claim upon which relief may be granted,
or seeks monetary relief from a defendant who is irmnune from such
relief. This action is subject to sua sponte screening for
dismissal under 28 U.S.C. §§ 1915(e) (2) (b) and 1915A because
Plaintiff is a prisoner proceeding in forma pauperis.
In determining the sufficiency of a pro se complaint, the
Court must be mindful to construe it liberally in favor of the
plaintiff. See Erickson v. Pardus, 551 U.S. 89, 93-94

(2007)

(following Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also
United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).
According to the Supreme Court's decision in Ashcroft v.
Iqbal, "a pleading that offers 'labels or conclusions' or 'a
formulaic recitation of the elements of a cause of action will not
do.'" 55 6 U.S. 662,

678

( 2009)

(quoting Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007)). To survive sua sponte screening
for failure to state a claim,

3

the complaint must allege "sufficient

3

"The legal standard for dismissing a complaint for failure to
state a claim pursuant to 28 U.S.C. § 1915(e) (2) (B) (ii) is the same
as that for dismissing a complaint pursuant to Federal Rule of
Civil Procedure 12(b) (6) ." Schreane v. Seana, 506 F. App'x 120, 122
(3d Cir. 2012) (citing Allah v. Seiverling, 229 F.3d 220, 223 (3d
Cir. 2000)); Mitchell.v. Beard, 492 F. App'x 230, 232 (3d Cir.

4

factual matter" to show that the claim is facially plausible.

Warren Gen. Hosp. v. Amgen Inc., 643 F.3d 77, 84 (3d Cir. 2011). "A
claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged." Fair Wind

Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014)
(quoting Iqbal, 556 U.S. at 678). Moreover, while pro se pleadings
are liberally construed, "pro se litigants still- must allege
sufficient facts in their complaints to support a claim." Mala v.

Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013)
omitted)

(citation

(emphasis added) .

B. Section 1983 Actions
A plaintiff may have a cause of action under 42 U.S.C. § 1983
for certain violations of his constitutional rights. Section 1983
provides in relevant part:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory
... subjects, or causes to be subjected, any citizen of
the
United
States
or
other
person
within
the
jurisdiction thereof to the deprivation of any rights,
privileges, or inununities secured by the Constitution
and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding
for redress ....
§

1983. Thus, to state a claim for relief under § 1983, a plaintiff

must allege, first, the violation of a right secured by the

2012) (discussing 28 U.S.C. § 1997e(c) (1)); Courteau v. United
States, 287 F. App'x 159, 162 (3d Cir. 2008) (discussing 28 U.S.C.
§ 1915A(b)).
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Constitution or laws of the United States and, second, that the
alleged deprivation was committed or caused by a person acting
under color of state law. See West v. Atkins, 487 U.S. 42, 48
(1988); Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011);
Piecknick v. Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994).
C.

Eighth Amendment Claim

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. As Plaintiff has named Rutgers as the sole defendant,
he is presumably seeking to hold Rutgers responsible for all of the
doctors' actions. 4 His claims fail as a matter of law.
Plaintiff has not alleged that each of the various medical
doctors who allegedly denied him adequate medical care are
employees of Rutgers. Thus, this Court cannot infer from the
complaint that Rutgers had any supervisory authority over all of
the medical personnel at each institution in which Plaintiff was
housed. Furthermore, in order for a government entity to be liable

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, 487 U.S. at 54; Walker v.
Horn, 385 F.3d 321, 332 (3d Cir. 2004).

6

under § 1983 for the actions or inactions of its employees,

5

a

plaintiff must allege that a policy or custom of that entity caused
the alleged constitutional violation. Natale v. Camden Cnty. 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 170, 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, nor has he alleged that Rutgers violates federal law in the
absence of a formally announced policy. He also does not allege
that Rutgers has failed to act at all, in spite of the fact that
there is an obvious need for Rutgers "to take some action to
control [of its agents]

.

.

. , and the inadequacy of existing

practice [is] 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). Plaintiff has therefore
failed to sufficiently allege Rutgers was deliberately indifferent
to his medical needs.
To the extent Plaintiff attempts to assert denial of medical
care claims against the individual medical staff, such claims also

5

The Court presumes for purposes of this screening opinion only
that Rutgers is not entitled to Eleventh Amendment immunity. See
Kovats v. Rutgers, State Univ., 822 F.2d 1303 (3d Cir. 1987).

7

fail. Plaintiff cursorily states in the complaint that Dr.
Pomagrant denied him proper treatment without asserting a specific
"serious medical need." Estelle v. Gamble,

429 U.S. 97, 106 (1976).

He likewise fails to provide any non-conclusory facts regarding his
allegation that the medical personnel did not give him "proper
treatment." In order for this Court to reasonably infer a
constitutional violation took place, Plaintiff must provide more
factual detail regarding what treatment should have been provided.
"[A]n unadorned, the-defendant-unlawfully-harmed-me accusation" is
not sufficient for a complaint to state a claim. Ashcroft v. Iqbal,
556 U.S. 662,

678 (2009). The complaint must therefore be dismissed

at this point in time.
Plaintiff may, however, be able to set forth facts that would
permit his claims to go forward. He shall therefore be permitted to
move for leave to amend his complaint within thirty (30) days of
the date of this Opinion and Order. Any motion for leave to amend
must be accompanied by a proposed amended complaint. Plaintiff
should note that when an amended complaint is filed, the original
complaint no longer performs any function in the case and cannot be
utilized to cure defects in the amended complaint, unless the
relevant portion is specifically incorporated in the new complaint.
6 Wright, Miller & Kane,
ed. 1990)

Federal Practice and Procedure 1476 (2d

(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

8

clear and explicit. Id. To avoid confusion, the safer course is to
file an amended complaint that is complete in itself. Id.

III.

CONCLUSION
For the reasons stated above, the complaint is dismissed

without prejudice for failure to state a claim. Plaintiff shall be
granted leave to move to re-open this action and to file an amended
complaint on these claims. An appropriate order follows.

i~
U.S. District Judge

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