SANDERS v. OCEAN COUNTY BOARD OF FREEHOLDERS et al

Filing 16

MEMORANDUM OPINION filed. Signed by Judge Michael A. Shipp on 11/2/2016. (eaj)

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MICHOLE SANDERS,
Civil Action No. 16-5380 (MAS) (LHG)
Plaintiff,

v.

MEMORANDUM OPINION

OCEAN COUNTY BOARD OF
FREEHOLDERS, et al.,
Defendants.

SHIPP, District Judge

Pro se Plaintiff Michele Sanders brings this action pursuant to 42 U.S.C. § 1983, alleging
violations of his constitutional rights and other state law claims. The Court previously granted
Plaintiff informa pauperis status. (Order, Sept. 27, 2016, ECF No. 5.) At this time, the Court
must review the Complaint 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. See 28 U.S.C. § 1915(e)(2)(B) (in forma
pauperis actions). For the reasons stated below, all claims in the Complaint are dismissed. 1
I.

FACTUAL BACKGROUND

For the purposes of this Opinion, the Court construes all facts alleged in the Complaint as
true, and in the light most favorable to Plaintiff. This matter concerns the medical treatment

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The Court notes that certain defendants have already filed responsive pleadings, including a
motion to dismiss, to the Complaint, even though the Court has not yet screened the Complaint
nor ordered service of process. (See Answer, ECF No. 6; Mot. to Dismiss, ECF No. 15.)
Nevertheless, the Court is still required to sua sponte screen the Complaint. In light of the Court's
dismissal of all claims, the motion to dismiss is dismissed as moot.

Plaintiff received while incarcerated at the Ocean County Jail ("OCJ") and, later, the South Woods
State Prison ("SWSP"), the latter being where Plaintiff is currently confined.

The medical

treatment seems to have started in May of 2009, after Plaintiff was allegedly assaulted by five
individuals that resulted in "a broken left arm, broken left wrist, head and left shoulder injuries."
(Compl. 7, ECF No. 1.)
According to the Complaint, Plaintiff was incarcerated at the OCJ from May 24, 2009 to
July 30, 2013 as a pretrial detainee. (See Compl. 7, 9.) Plaintiff asserts that while he was initially
receiving treatment for his injuries during his incarceration, it was eventually determined that he
needed surgery on his left shoulder, which the OCJ never provided. (Id. at 8.) The exact reason
for the refusal of surgery was unclear, but it appears that Plaintiffs own medical insurance
company denied his claim. 2 (Id.) Plaintiff also asserts that he was not given pain medication, and
was told at one time to buy his own medication from the commissary. (Id.)
After his transfer to the SWSP, Plaintiff continued to receive treatment for his injuries. He
alleges that he received Pamelor/Nortriptyline, and sometimes steroid injections, for his pain. (Id.
at 9-10.) He was also given Metaprolol/Lopressor for "fast pounding/irregular heart beat and
pulse." (Id. at 10.) As was the case while at the OCJ, eventually it was determined that Plaintiff
required surgery on his left shoulder, and this time, he received the surgery. (Id.) Plaintiff alleges
that at some point he was told by a physician and a specialist that Pamelor/Nortriptyline was an
antidepressant and not used to relieve pain. (Id. at 11.) Plaintiff wrote to the manufacturer of
Pamelor/Notriptyline and received a package insert from the manufacture regarding the drug. (Id.
at 12.) The package insert stated that possible side effects of Pamelor/Notriptyline includes "fast

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The Court is unsure why Plaintiff, a pretrial detainee, was required to have his own medical
insurance before receiving treatment from the jail.
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pounding irregular heart beat and pulse, stiffness in the limbs, depression, agitation and
restlessness." (Id.) On October 11, 2015, Plaintiff informed the prison that he no longer wish to
take Pamelor/Nortriptyline. (Id.) The instant suit followed, wherein Plaintiff names nineteen
defendants, including officials from the OCJ and the SWSP, Ocean County officials, New Jersey
state officials, and various medical contractors who provided medical treatment to Plaintiff.

II.

STANDARD OF REVIEW
Every complaint must comply with the pleading requirements of the Federal Rules of Civil

Procedure. Rule 8(a)(2) requires that a complaint contain "a short and plain statement of the claim
showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). "Specific facts are not
necessary; the statement need only 'give the defendant fair notice of what the ... claim is and the
grounds upon which it rests."' Erickson v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted).
While a complaint ... does not need detailed factual allegations, a
plaintiffs obligation to provide the "grounds" of his "entitle[ment]
to relief' requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do . . . .
Factual allegations must be enough to raise a right to relief above
the speculative level.
Bell At!. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted).
In determining the sufficiency of a pro se complaint, the Court must be mindful to accept
its factual allegations as true, see James v. City of Wilkes-Barre, 700 F.3d 675, 679 (3d Cir. 2012),
and to construe it liberally in favor of the plaintiff. See Haines v. Kerner, 404 U.S. 519, 520-21
(1972); United States v. Day, 969 F.2d 39, 42 (3d Cir. 1992).

III.

DISCUSSION
A plaintiff can pursue a cause of action under § 1983 for certain violations of his

constitutional rights. Section 1983 provides in relevant part:

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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 immunities 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.
42 U.S.C. § 1983. Thus, to state a claim for relief under § 1983, a plaintiff must establish, first,
the violation of a right secured by the 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. Am.

Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999); Morrow v. Balaski, 719 F.3d 160, 16667 (3d Cir. 2013).

A.

Federal Claims
i.

Claims against OCJ-related defendants

All of Plaintiffs claims for medical treatment, or the lack thereof, while incarcerated at the
OCJ are time-barred. Federal courts look to state law to determine the limitations period for§ 1983
actions.

Wallace v. Kato, 549 U.S. 384, 387-88 (2007); Estate of Lagana v. Bergen Cty.

Prosecutor's Office, 769 F.3d 850, 859 (3d Cir. 2014). Civil rights or constitutional tort claims
are best characterized as personal injury actions and are governed by the applicable state's statute
of limitations for personal injury actions. Lagana, 769 F.3d at 859. Accordingly, New Jersey's
two-year limitations period on personal injury actions governs Plaintiffs claims. Id. Under New
Jersey state law, an action for an injury caused by a wrongful act, neglect, or default must be
commenced within two years of accrual of the cause of action. N.J.S.A. § 2A:14-2; Lagana, 769
F.3d at 859.
The statute of limitations defense is an affirmative defense that the defendants generally
must plead and prove. See Schmidt v. Skolas, 770 F.3d 241, 249 (3d Cir. 2014). While a plaintiff

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is not required to plead that the claim has been brought within the statute of limitations, Stephens
v. Clash, 796 F .3d 281, 288 (3d Cir. 2015), if the allegations of a complaint "show that relief is
barred by the applicable statute of limitations, the complaint is subject to dismissal for failure to
state a claim." Jones v. Bock, 549 U.S. 199, 215 (2007); see Stephens, 796 F.3d at 288.
Here, Plaintiff was transferred out of the OCJ on July 30, 2013. Thus, whatever treatment,
ongoing or otherwise, he was receiving from the OCJ and its employees/contractors ended on that
date. Given that Plaintiffs claims against OCJ-related defendants are for failure to provide pain
medication and refusal to prescribe shoulder surgery, there was nothing preventing Plaintiff from
asserting his claims against OCJ-related defendants at least after that date. Therefore, the statute
of limitations for Plaintiffs claims against OCJ-related defendants expired two years after that
date, or on July 30, 2015. The instant Complaint, dated July 15, 2016, (Compl. 37), was not filed
until August 29, 2016, making these claims untimely. As such, all federal claims against the OCJrelated defendants are dismissed without prejudice.
In the interest of justice, within thirty days of the date of entry of the accompanying Order,
Plaintiff may submit, along with an amended complaint, arguments as to why the claims against
the OCJ-related defendants should be construed as timely. Failure to raise any such argument will
result in those claims being dismissed with prejudice.
ii.

Claims against SWSP-related defendants

Next, the Court addresses Plaintiffs federal claims against the SWSP-related defendants.
According to the Complaint's allegations, Plaintiff received on-going treatment for his injuries
while at SWSP, including all required surgeries. The Court, therefore, construes Plaintiffs federal
claims against the SWSP-related defendants as relating only to the alleged improper prescription
of Pamelor/Nortriptyline.

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The Eighth Amendment proscription against cruel and unusual punishment requires that
prison officials provide inmates with adequate medical care. See Estelle v. Gamble, 429 U.S. 97,
103-04 (1976); Barkes v. First Corr. Med., Inc., 766 F.3d 307, 328 (3d Cir. 2014), rev'd on other

grounds, 135 S. Ct. 2042 (2015). Under Estelle, in order to state a valid claim for denial of 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. See Estelle, 429 U.S. at 106; Barkes,
766 F .3d at 321; Natale v. Camden Cty. Corr. Facility, 318 F .3d 575, 582 (3d Cir. 2003). Mere
allegations of medical malpractice are not sufficient to establish a constitutional violation. Allah

v. Hayman, 442 F. App'x 632, 635-36 (3d. Cir. 2011) (citing Spruill, 372 F.3d 218, 235 (3d Cir.
2004)).
To satisfy the first prong of the Estelle inquiry, the inmate must allege that his medical
needs are serious. "Because society does not expect that prisoners will have unqualified access to
health care, deliberate indifference to medical needs amounts to an eighth amendment violation
only if those needs are 'serious."' Hudson v. McMillian, 503 U.S. 1, 9 (1992). The Third Circuit
has defined a serious medical need as: ( 1) "one that has been diagnosed by a physician as requiring
treatment"; (2) "one that is so obvious that a lay person would recognize the necessity for a doctor's
attention"; or (3) one for which "the denial of treatment would result in the unnecessary and wanton
infliction of pain or a life-long handicap or permanent loss." Atkinson v. Taylor, 316 F.3d 257,
272-73 (3d Cir. 2003) (citations and quotations omitted); see Monmouth Cty. Corr. Institutional

Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987); Rand v. New Jersey, No. 12-2137, 2015
WL 1116310, at *14 (D.N.J. Mar. 11, 2015).
The second element of the Estelle test requires an inmate to allege that prison officials
acted with deliberate indifference to his serious medical need. See Natale, 318 F .3d at 582 (holding

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that deliberate indifference requires proof that the official knew of and disregarded an excessive
risk to inmate health or safety). "Deliberate indifference" is more than mere malpractice or
negligence; it is a state of mind equivalent to reckless disregard of a known risk of harm. See
Farmer v. Brennan, 511 U.S. 825, 837-38 (1994).

The Third Circuit has found deliberate

indifference when a prison official: "(l) knows of a prisoner's need for medical treatment but
intentionally refuses to provide it; (2) delays necessary medical treatment for non-medical reasons;
or (3) prevents a prisoner from receiving needed or recommended treatment." Velasquez v.
Hayman, 546 F. App'x 94, 97 (3d Cir. 2013) (quoting Rouse v. Plantier, 182 F.3d 192, 197 (3d

Cir. 1999)).
Here, Plaintiff does not assert that the SWSP-related defendants deliberately ignored his
medical needs. Instead, he merely asserts that their alleged prescription of Pamelor/Nortriptyline
for off-label use amounted to deliberate indifference. Off-label use of medicine, however, does
not prove deliberate indifference. "Federal law prohibits drug manufacturers from marketing a
drug for an off-label purpose, but it does not preclude medical professionals from prescribing a
drug for uses that are different than those approved by the FDA." Cox v. Levenhagen, No. 120320, 2013 WL 3322034, at *5 (N.D. Ind. July 1, 2013) (citing Buckman Co. v. Plaintiffs' Legal
Comm., 531 U.S. 341, 350 (2001)). "The allegations that the FDA did not approve the alleged off-

label use ... in administering ... treatment [is] not enough to give rise to a constitutional violation
absent allegations of deliberate indifference to [Plaintiff]'s medical needs." Morgan v. Tex. Dep 't
of Criminal Justice McConnell Unit, 537 F. App'x 502, 507 (5th Cir. 2013). "[Plaintiff] does not

allege or point to circumstances that would suggest that [the doctor] prescribed [treatment] with
knowledge that [it] would pose 'a substantial risk of serious harm,' or that such a risk would have

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been obvious, and that [the doctor] 'disregard[ed] that risk by failing to take reasonable measures
to abate it."' Id. (quoting Farmer v. Brennan, 511 U.S. 825, 847 (1994)).
Indeed, Plaintiff makes no allegations that any defendant prescribed Pamelor/Nortriptyline
deliberately with knowledge of a substantial risk of serious harm, or that it was prescribed with
knowledge that it was so ineffective as to constitute no medical treatment at all. While Plaintiff
alleges that he suffered from some side effects of Pamelor/Nortriptyline cautioned by the
manufacturer, Plaintiff also alleges that he was given medication to treat those side effects. These
allegations do not amount to deliberate indifference, and disagreement with a doctor's course of
treatment does not state a denial of medical services claim. "Where 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." Fantone v. Herbik, 528 F. App'x 123, 125 (3d Cir. 2013) (quoting US. ex rel. Walker
v. Fayette Cty., Pa., 599 F.2d 573, 575 n.2 (3d Cir. 1979)). "A prisoner's subjective dissatisfaction

with his medical care does not in itself indicate deliberate indifference." Soto-Muniz v. Corizon,
Inc., No. 10-3617, 2015 WL 1034477, at *12 (D.N.J. Mar. 10, 2015).

Because Plaintiffs allegations fail to state a constitutional violation, all claims against
supervisors or policy related claims also necessarily fail. See Grazier ex rel. White v. City ofPhi/a.,
328 F.3d 120, 124 (3d Cir. 2003) (holding that when there are no underlying constitutional
violations found, it precludes supervisory and policy-making liability); Mulholland v. Gov 't Cty.
ofBerks, Pa., 706 F.3d 227, 238 n.15 (3d Cir. 2013) ("It is well-settled that, ifthere is no violation

in the first place, there can be no derivative municipal claim."); Arneault v. 0 'Toole, 864 F. Supp.
2d 361, 406 (W.D. Pa. 2012) ("Because [plaintiffs have not] pled an actionable due process
violation, however, there can be no viable claim for policy-making liability as against

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[supervisors]."). Accordingly, Plaintiffs federal claims against the SWSP-related defendants are
dismissed without prejudice. In the interest of justice, within thirty days of the date of entry of the
accompanying Order, Plaintiff may amend the Complaint to cure the defects identified herein.
Failure to amend will result in the SWSP-related claims being dismissed with prejudice.

B.

State Law Claims

Having dismissed all federal claims in the Amended Complaint, the Court now declines
supplemental jurisdiction over Plaintiffs state law claims. Federal law permits the district court,
within its discretion, to decline to exercise supplemental jurisdiction over a claim if "the district
court has dismissed all claims over which it has original jurisdiction." 28 U.S.C. 1367(c)(3).
Indeed, the Third Circuit has used even stronger language to describe the Court's obligations under
the provision.

"The power of the court to exercise pendent jurisdiction, though largely

unrestricted, requires, at a minimum, a federal claim of sufficient substance to confer subject
matter jurisdiction on the court." City of Pittsburgh Comm 'non Human Relations v. Key Bank
USA, 163 F. App'x 163, 166 (3d Cir. 2006) (quoting Tully v. Mott Supermarkets, Inc., 540 F.2d

187, 195 (3d Cir. 1976)). "[I]f it appears that all federal claims are subject to dismissal, the court
should not exercise jurisdiction over remaining claims unless 'extraordinary circumstances' exist."
Id. '" [W]here the claim over which the district court has original jurisdiction is dismissed before

trial, the district court must decline to decide the pendent state claims unless considerations of
judicial economy, convenience, and fairness to the parties provide an affirmative justification for
doing so.'" Id. (quoting Hedges v. Musco, 204 F.3d 109, 123 (3d Cir. 2000)).
Considering that this case is still before trial, that the Court has dismissed all of Plaintiffs
federal claims, and that no extraordinary circumstances exist to compel the Court to exercise

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jurisdiction, the Court declines to exercise supplemental jurisdiction over Plaintiffs state law
claims. Therefore, the Court dismisses those claims without prejudice.

IV.

CONCLUSION
For the reasons set forth above, all claims in the Complaint are DISMISSED WITHOUT

PREJUDICE. Plaintiff shall have thirty days from the date of entry of the accompanying Order to
amend the Complaint. 3 The Motion to Dismiss filed by Defendant Prison Health Services, Inc. is
DISMISSED as moot.

s/ Michael A. Shipp
MICHAEL A. SHIPP
UNITED STATES DISTRICT JUDGE

Date: November 2, 2016

If Plaintiff files an amended complaint, Defendants are hereby notified that no response should
be filed until the Court completes its screening of the amended complaint and orders Defendants
to answer.

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