SINGLETON v. NEW JERSEY DEPARTMENT OF CORRECTIONS et al

Filing 54

MEMORANDUM filed. Signed by Judge Peter G. Sheridan on 11/19/2018. (mmh)

Case 3:16-cv-02585-PGS-DEA Document 54 Filed 11/19/18 Page 1 of 10 PageID: 427

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ELIJAH SINGLETON,
Civ. No. 16-2585 (PGS-DEA)

Plaintiff,
V.

NEW JERSEY
DEPARTMENT OF CORRECTIONS, et al.,

MEMORANDUM

Defendants.

PETER C. SHERIDAN, U.S.D.J.
This matter comes before the Court on a motion to dismiss the amended complaint filed
by Dr. Marco Zarbin, Lois Fiore, O.D., University Hospital Newark, and the New Jersey
Department of Corrections (“NJDOC”). (ECF No. 39). Plaintiff Elijah Singleton opposes the
motion. (ECF No. 47). For the following reasons, Defendants’ motion is granted in part.
I.
Plaintiff filed a pro se complaint under 42 U.S.C.

§

1983 against defendants on May 9,

2016. (ECF No. 1). His claims arose out of allegedly deficient medical care he received while
incarcerated at Northern State Prison (“NSP”) in Newark, New Jersey. Plaintiff alleged that he
began experience vision complications as a side-effect of his diabetes in December 2012. (Id. at
6). He filed numerous medical requests and was seen by the medical department on several
occasions but was always told there was nothing they could do at the prison. (Id.). He was sent to
Dr. Zarbin, a specialist, after several weeks. (Id.). Dr. Zarbin told Plaintiff he would need surgery
but assured Plaintiff that he would be able to see clearly after the surgery. (Id.). Plaintiff alleged

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that Dr. Zarbin failed to inform him that he would lose his vision if the surgery failed. (Id.).
Plaintiff stated that he is went blind in his left eye as a result of the surgery and that he would not
have consented to the surgery had he known that blindness was a possible outcome of the
surgery. (Id. at 6-7). Dr. Zarbin wanted to perform the same surgery on Plaintiff’s right eye, but
Plaintiff refused because “[Dr. Zarbin] lied to me and made me blind.” (Id. at 7).
Plaintiff further alleges defendant Fiore also misled him and “caused [his] treatment to be
postponed to the point where the damage is now unable to be fixed.

.

.

.“

(Id.). Plaintiff states

Fiore told him that “it is not a question of if he will go blind in his right eye but when.

.

.

(Id.). He asked Fiore to refer him to a doctor other than Dr. Zarbin, but she refused to do so
allegedly based on an exclusive NJDOC contract. (Id.). By the time Plaintiff saw another
specialist, Dr. Shah, the damage to Plaintiff’s vision was too far along. (Id. at 8). Dr. Shah then
sent Plaintiff to Dr. Green, who told him that Dr. Zarbin “never should have performed that
surgery on [his] left eye because it only made matters worse and he should have been more
upfront about the consequences of performing such a ‘high-risk’ procedure. Dr. Green then
declared [Plaintiff] to be legally blind.” (Id.). Dr. Green contradicted Fiore’s statement that the
NJDOC had an exclusive contract with UMDNJ. (Id.).’
On June 30, 2016, the Court permitted the complaint to proceed in part. (ECF No. 2). It
dismissed the Eighth Amendment claims against the NJDOC and Fiore in her official capacity
with prejudice. (Id.). The Eighth Amendment claims against Dr. Zarbin and University Hospital
were dismissed without prejudice. (Id.). The Court permitted the Eighth Amendment claims
against Fiore in her individual capacity and the state law claims against University Hospital and
Dr. Zarbin to proceed. (Id.). Dr. Zarbin and University Hospital filed a motion to dismiss the

Neither Dr. Shah nor Dr. Green are named as defendants.
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state law claims on September 28, 2016 because Plaintiff had not filed a notice of tort claim
form. (ECF No. 13). The Court conducted oral argument November 9, 2016, (ECF No. 18), and
granted the motion to dismiss on December 6, 2016, (ECF No. 19). The state law claims against
Dr. Zarbin and University Hospital were dismissed with prejudice, terminating Dr. Zarbin and
University Hospital from the case. (Id.).

2

Magistrate Judge Arpert appointed pro bono counsel on August 7, 2017. (ECF No. 21).
Counsel filed an amended complaint on January 31, 2018 with leave of Court. (ECF No. 29).
The amended complaint alleges that Plaintiff made several requests for treatment for his diabetes
while incarcerated in NSP. (Id.

¶ 2).

He was sent to University Hospital in December 2012,

where Dr. Zarbin told Plaintiff that he would need eye surgery. (Id.
the plaintiff that the surgery would repair his vision.” (Id.

¶ 5).

¶J 4-5). “Dr.

Zarbin assured

According to the amended

complaint, Plaintiff did not provide informed consent for the surgery. (id). Plaintiff lost sight in
his left eye after the surgery. (Id.

¶ 6).

Plaintiff asked NSP officials, including Fiore, for treatment for his “dwindling vision,”
but they failed to provide diabetes treatment. (Id.
right eye and was declared legally blind. (Id.

¶ 7-8). Plaintiff eventually lost sight in his

¶J 9-10). He alleges he “is blind in both eyes as a

result of the defendants’ negligence” and that the defendants “intentionally denied and
unreasonably delayed access to medical treatment.” (Id.

¶ 11-12).

Dr. Zarbin, University Hospital, and Fiore moved to dismiss the amended complaint on
March 28, 2018. (ECF No. 39). The NJDOC joined in the motion. (ECF No. 44). The Court
conducted oral argument on July 18, 2018. The matter is now ripe for decision.

2

The December 6, 2016 Order also vacated a Clerk’s Entry of Default against University
Hospital and Fiore.
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II.

When considering a motion to dismiss a complaint for failure to state a claim, Fed. R.
Civ. P. 1 2(b)(6), the Court must accept all well-pleaded allegations in the complaint as true and
view them in the light most favorable to the non-moving party. A motion to dismiss may be
granted only if the plaintiff has failed to set forth fair notice of what the claim is and the grounds
upon which it rests that make such a claim plausible on its face. Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007). Although Rule 8 does not require “detailed factual allegations,” it requires
“more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcrofl v. Jqbal,
556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555).
In reviewing the sufficiency of a complaint, the Court must “tak[e] note of the elements
[the] plaintiff must plead to state a claim. Second, it should identify allegations that, because they
are no more than conclusions, are not entitled to the assumption of truth. Finally, [w]hen there
are well-pleaded factual allegations, [the] court should assume their veracity and then determine
whether they plausibly give rise to an entitlement to relief.” Connelly v. Lane Const. Corp., 809
F.3d 780, 787 (3d Cir. 2016) (alterations in original) (internal citations and quotation marks
omitted). “[A] complaint’s allegations of historical fact continue to enjoy a highly favorable
standard of review at the motion-to-dismiss stage of proceedings.” Id. at 790.
III.

The amended complaint seeks to raise deliberate indifference and state tort claims against
defendants. The Court dismissed some of these claims with prejudice in its prior opinions.
“When a party seeks leave to amend a complaint after judgment has been entered, it must also
move to set aside the judgment pursuant to Federal Rule of Civil Procedure 5 9(e) or 60(b),
because the complaint cannot be amended while the judgment stands.” Jang v. Boston Sci.

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Scimed, Inc., 729 F.3d 357, 367—68 (3d Cir. 2013). “Dismissal with prejudice constitutes an

adjudication of the merits as fully and completely as if the order had been entered after trial.”
Gambocz v. Yelencsics, 468 F.2d 837, 840 (3d Cir. 1972). Plaintiff has not moved to set aside the

judgment; therefore, the amended complaint may not proceed on claims that have already been
dismissed with prejudice by the Court3. The Court will address each defendant individually.
A. New Jersey Department of Corrections
The Court dismissed the Eighth Amendment claims against the NJDOC with prejudice in
its screening opinion of June 30, 2016. (ECF No. 4). As a state agency, the NJDOC has
immunity from suit in federal court under 42 U.S.C.

§

1983. U.S. Const. Amend. XI. See also

Pennhurst State School & Hosp., 465 U.S. 89, 100 (1984) (“It is clear, of course, that in the
absence of consent a suit in which the State or one of its agencies or departments is named as the
defendant is proscribed by the Eleventh Amendment.”).
Likewise, any state law negligence claims Plaintiff may have against the NJDOC under
the New Jersey Tort Claims Act may not proceed in federal court. “The TCA, which allows suits
against public entities and their employees in state courts, does not expressly consent to suit in
federal courts and thus is not an Eleventh Amendment waiver.” Hyatt v. Cly. ofPassaic, 340 F.
App’x 833, 837 (3d Cir. 2009) (citing N.J.S.A.

§ 59:2—2(a)). The state law claims against the

NJDOC are dismissed without prejudice to Plaintiff’s ability to raise them in a court of
competent jurisdiction.
The NJDOC is dismissed from this litigation.

Given the fact that counsel may have been appointed after the dismissal, this may require reconsideration.

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B. Lois Fiore

Defendant Fiore argues Plaintiff has failed to state a claim against her for deliberate
indifference under the Eighth Amendment.
To state a violation of the Eighth Amendment right to adequate medical care, a convicted
and sentenced inmate must plead facts indicating: (1) a serious medical need; and (2) behavior
on the part of prison officials that constitutes deliberate indifference to that need. See Estelle v.
Gamble, 429 U.S. 97, 106 (1976); Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 582 (3d
Cir. 2003). “Deliberate indifference is a ‘subjective standard of liability consistent with

recklessness as that term is defined in criminal law.” Natale, 318 F.3d at 582 (quoting Nicini v.
Morra, 212 F.3d 798, 811 (3d Cir. 2000) (en banc)). The Third Circuit has found deliberate
indifference “where the prison official (1) knows of a prisoner’s need for medical treatment but
intentionally refuses to provide it; (2) delays necessary medical treatment based on a nonmedical reason; or (3) prevents a prisoner from receiving needed or recommended medical
treatment.” Parkell v. Danberg, 833 F.3d 313, 337 (3d Cir. 2016) (quoting Rouse v. Plantier,
182 F.3d 192, 197 (3d Cir. 1999)).

Plaintiff has sufficiently alleged a claim against defendant Fiore. He alleges he
continuously pleaded with her to treat his failing eyesight caused by diabetes, but she did not
provide any treatment.4 “A prison official is deliberately indifferent if the official ‘knows that
inmates face a substantial risk of serious harm and disregards that risk by failing to take
reasonable measures to abate it.” Id. at 335 (quoting Chavarriaga v. NJ. Dep’t of Corr., 806
F.3d 210, 229 (3d Cir. 2015)). See also Mazariegos v. Monmouth Cnty Corr. Inst., 2014 WL
1266659, at *8 (D.N.J. Mar. 25, 2014) (permitting claim of “deliberate indifference to Plaintiffs
The Court has not considered Fiore’s certification in connection with the motion to dismiss as it
is outside of the pleadings.
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serious medical need for the timely care of an appropriate specialist,” resulting in blindness, to
proceed).
Fiore’s argument that the claims against her should be dismissed because she only
interacted with Plaintiff in her official capacity5 and not in her individual capacity is without
merit. “Personal-capacity suits.

.

.

seek to impose individual liability upon a government officer

for actions taken under color of state law. Thus, ‘[ojn the merits, to establish personal liability in
a

§ 1983 action, it is enough to show that the official, acting under color of state law, caused the

deprivation of a federal right.” Hafer v. Melo, 502 U.S. 21, 25 (1991) (quoting Kentucky v.
Graham, 473 U.S. 159, 166 (1985) (alteration and emphasis in original)). “[T]he phrase ‘acting
in their official capacities’ is best understood as a reference to the capacity in which the state
officer is sued, not the capacity in which the officer inflicts the alleged injury.” Id. at 26.
Defendant Fiore’s theory “would absolutely immunize state officials from personal liability for
acts within their authority and necessary to fulfilling governmental responsibilities.” Id. at 28.
Plaintiff’s Eighth Amendment claim against Fiore shall proceed.
C. Dr. Zarbin

Dr. Zarbin argues the amended complaint should be dismissed because the medical
malpractice claims were dismissed with prejudice on December 6, 2016. (ECF No. 19).
The original complaint included a claim that Dr. Zarbin failed to obtain Plaintiffs
informed consent before performing surgery on Plaintiffs left eye, (“Had I been informed that
there was a chance that I could have lost my eye sight completely as a result of this surgery, I

“[A] suit against a state official in his or her official capacity is not a suit against the official but
rather is a suit against the official’s office. As such, it is no different from a suit against the State
itself.” Will v. Michigan Dep’t ofState Police 491 U.S. 58, 71(1989). As the Court noted in its
screening opinion, Fiore is entitled to Eleventh Amendment immunity for § 1983 claims against
her in her official capacity.
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would not have consented to having it.

.

.

.

Dr. lied to me and made me blind.” (ECF No. 1 at 7)),

and claims that Dr. Zarbin violated the standard of care by failing to diagnose Plaintiff’s
condition and by “performing an experimental surgery on him.

..

.“

(Id. at 9). The Court

dismissed all these claims with prejudice because Plaintiff failed to provide a notice of claim
under New Jersey’s Tort Claims Act. (ECF No. 19). See also N.J.S.A.

§ 59:8—8; Ptaszynski v.

Uwaneme, 853 A.2d 288, 294 (N.J. Super. Ct. App. Div. 2004).
The amended complaint alleges: “Dr. Zarbin told.

.

.

the plaintiff that he required eye

surgery. Dr. Zarbin assured the plaintiff that the surgery would repair his vision. The plaintiff did
not provide informed consent.” (ECF No. 29

¶ 5). Plaintiff further alleges that “Dr. Zarbin

negligently performed the eye surgery causing the plaintiff to lose his vision in his left eye.” (Id.

¶ 6). These are the same allegations that were previously dismissed with prejudice by the Court.
As Plaintiff has not filed for relief from the prior judgment, he cannot proceed on his claims
against Dr. Zarbin for allegedly causing blindness in his left eye.
The remainder of the amended complaint contains no factual allegations leading to a
plausible inference of Dr. Zarbin’s liability for the blindness in Plaintiff’s right eye. Dr. Zarbin is
therefore terminated from the litigation.
D. University Hospital

The Court will also dismiss University Hospital from the litigation. Plaintiff makes no
specific allegations against University Hospital and appears to base its liability “solely on a
theory of respondeat superior,” which is improper in a

§ 1983 action. Natale v.

Camden Cnty.

Corr. Facility, 318 F.3d 575, 583 (3d Cir. 2003). There are also no facts from which the Court
could plausibly infer negligence on the part of University Hospital.6
6

As with the claims against Dr. Zarbin, the malpractice claims against University Hospital for
allegedly causing the blindness in Plaintiffs left eye were dismissed with prejudice by the Court
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E. Statute of Limitations
Finally, defendants argue Plaintiff’s amended complaint is barred by the statute of
limitations. “[A] statute of limitations is an affirmative defense not normally decided on a motion
to dismiss.” Crump v. Passaic Cly., 147 F. Supp. 3d 249, 259 (D.N.J. 2015). “[T]he law of this
Circuit (the so-called ‘Third Circuit Rule’) permits a limitations defense to be raised by a motion
under Rule 12(b)(6), but only if ‘the time alleged in the statement of a claim shows that the cause
of action has not been brought within the statute of limitations.” Robinson v. Johnson, 313 F.3d
128, 135 (3d Cir. 2002) (quoting Hanna v. US. Veterans’Admin. Hosp., 514 F.2d 1092, 1094
(3d Cir. 1975)). “If the bar is not apparent on the face of the complaint, then it may not afford
the basis for a dismissal of the complaint under Rule 12(b)(6).” Id. (quoting Bethel v. Jendoco
Const. Corp., 570 F.2d 1168, 1174 (3d Cir. 1978)).
The statute of limitations for

§

1983 claims is two years. See Wilson v. Garcia, 471 U.s.

261, 276 (1985); Dique v. New Jersey State Police, 603 F.3d 181, 185 (3d Cir. 2010) (“[S]tate
law provides the statute of limitations applicable to a section 1983 claim.”); N.J.S.A.

§ 2A:14-

2(a). “Under federal law, a cause of action accrues ‘when the plaintiff knew or should have
known of the injury upon which the action is based.” Montanez v. Sec’y Pa. Dep’t of Corr., 773
F.3d 472, 480 (3d Cir. 2014) (quoting Kach v. Hose, 589 F.3d 626, 634 (3d Cir. 2009)). “State
law, unless inconsistent with federal law, also governs the concomitant issue of whether a
limitations period should be tolled.” Dique, 603 F.3d at 185.
“Under New Jersey law, a statute of limitations can be tolled based upon equitable
principles, including the discovery rule. The discovery rule postpones a claim from accruing if a

for failure to file a notice of tort claim. (ECF No. 19). These claims are barred absent a motion to
alter or amend a judgment.
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plaintiff is reasonably unaware that he has suffered an injury or, even though he is aware of the
injury, that it was the fault of an identifiable person.” Id. See also TRWInc. v. Andrews, 534 U.s.
19, 27 (2001) (noting the discovery rule was especially applicable in medical malpractice cases).
The face of the amended complaint does not contain any information as to when Plaintiff’s claim
accrued under federal law or whether any state tolling principles apply. The Court is therefore
unable to determine that the amended complaint is barred by the statute of limitations on its face.
See Snyder v. Pascack Valley Hosp., 303 F.3d 271, 276 (3d Cir. 2002) (“An amended complaint

supercedes the original version in providing the blueprint for the future course of a lawsuit.”);
see also W. Run Student Hous. Assocs., LLC v. Huntington Nat. Bank, 712 F.3d 165, 173 (3d Cir.

2013) (“[A]t the motion to dismiss stage, when the district court typically may not look outside
the four corners of the amended complaint, the plaintiff cannot be bound by allegations in the
superseded complaint.”).
Iv.

For the reasons stated above, the NJDOC is dismissed as it is immune from suit in federal
court. The medical malpractice claims against University Hospital and Dr. Zarbin based on the
loss of vision in Plaintiff’s left eye are dismissed with prejudice as barred by this Court’s prior
order, and claims based on the loss of vision in Plaintiff’s right eye are dismissed without
prejudice. The amended complaint shall proceed against Lois Fiore.
An appropriate order follows.

DATED:

a

19

(k

,2018

kj1L2

PETER G. SHERIDAN, U.S.D.J.

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