WATFORD v. NEW JERSEY STATE PRISON et al
OPINION filed. Signed by Judge Brian R. Martinotti on 1/11/2017. (mps)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 16-7878
NEW JERSEY STATE PRISON, et al.,
MARTINOTTI, DISTRICT JUDGE:
Before this Court is the Amended Complaint of Plaintiff Irone Watford (“Plaintiff”),
raising claims pursuant to 42 U.S.C. § 1983, against several supervisory officials, doctors, and
nurses at New Jersey State Prison. 1 (ECF No. 8.) Also before the Court is Plaintiff’s Motion for
the Appointment of Pro Bono Counsel. (ECF No. 7.) Because Plaintiff has been granted in forma
pauperis status and is a prisoner seeking redress from state employees, the Court is required to
screen the Amended Complaint pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A. These statutes
require the Court to dismiss Plaintiff’s claims if they are frivolous, malicious, fail to state a claim
for relief, or seek damages from a defendant who is immune. For the reasons set forth below, the
Amended Complaint is DISMISSED WITHOUT PREJUDICE in its entirety for failure to state
a claim for which relief can be granted and Plaintiff’s Motion for the Appointment of Pro Bono
Counsel is DENIED WITHOUT PREJUDICE.
The Court previously dismissed Plaintiff’s original Complaint (ECF No. 1) for failure to state a
claim, and gave Plaintiff leave to amend the Complaint to cure the deficiencies identified in the
Court’s Opinion. (ECF Nos. 4 & 5.)
Plaintiff is a prisoner currently incarcerated in New Jersey State Prison in Trenton, New
Jersey. (ECF No. 1 at 5.) In 2009, Plaintiff was diagnosed with Hepatitis C. (Id. at 8.) In early
2016, he learned that the government had recently approved a drug called Harvoni for use in the
treatment of Hepatitis C. (Id.) Plaintiff alleges that this drug would cure him of the disease if it
were administered to him. (Id.) Plaintiff contacted the prison’s medical staff in January 2016 and
asked to see a specialist doctor, so he could procure treatment with the drug. (Id.) Plaintiff saw a
doctor 3 on January 30, 2016, but the doctor did not prescribe Harvoni, instead providing Plaintiff
with drug tests, vaccinations against Hepatitis A and B, and radiological testing. (Id.) According
to Plaintiff, the doctor conducted these tests “with the promise of starting treatment after testing”
was completed. (Id.)
On February 17, 2016, Plaintiff again requested to see a specialist. (Id.) Plaintiff was taken
to see a specialist doctor, but again received further diagnostic testing rather than immediate
treatment with the drug. (Id. at 8-9.) Plaintiff continued to request further treatment in March 2016,
ultimately leading to a meeting with a prison doctor on March 15, 2016. (Id. at 9.) In that meeting,
Plaintiff was told that prison doctors and the specialist doctor had discussed the diagnostic tests,
but that the specialist doctor “wanted a second MRI test done before starting the treatment with
Harvoni.” (Id.) Plaintiff was therefore scheduled for an MRI in April 2016. (Id.) After this second
MRI was conducted, however, Plaintiff was told by medical staff that the doctors had decided that
a third such test was necessary, and it was scheduled for “sometime next year.” (Id.)
The following factual allegations are taken from Plaintiff’s Complaint and Amended Complaint,
and are assumed as true for the purposes of this Opinion.
It is not clear from the pleadings if the doctor seen on January 30, 2016 was a specialist.
Plaintiff, dissatisfied with that decision, filed medical grievances with the prison
administration. (Id.) When Plaintiff did not receive a response, he continued to file grievances and,
in June 2016, sent letters to the Commissioner of the New Jersey Department of Corrections (the
“DOC”) and the head of the DOC’s medical staff. (Id. at 10.) Ultimately, the prison’s medical staff
sent Petitioner to another specialist doctor, where he was questioned about his background and his
health, but did not receive further treatment. (Id.) Unhappy with his treatment, on October 26,
2016, Plaintiff filed his original Complaint in this matter alleging the above facts. (Id. at 11.) On
November 21, 2016, the Court dismissed the Complaint for failure to state a claim, but gave
Plaintiff leave to amend the Complaint to cure the deficiencies identified in the Court’s Opinion.
(ECF Nos. 4 & 5.)
On December 8, 2016, Plaintiff filed the Amended Complaint; the bulk of which is a reallegation of the above facts, but which does contain certain new facts. (ECF No. 8 at 8-13.)
Specifically, Plaintiff alleges he was originally diagnosed with Hepatitis C in 2009 by Dr. Ahsan,
who recommended he receive unspecified treatments for his condition. (ECF No. 8 at 10-11.)
According to Plaintiff, during the subsequent years from 2009 to 2013, he received vaccination
shots for Hepatitis A and B. (ECF No. 8 at 10-11.) It is unclear from the Amended Complaint what
additional treatments were prescribed, denied, or offered to Plaintiff between 2009 and 2016.
Additionally, although Plaintiff alleges that he began seeking further treatment for Hepatitis C in
2013, Plaintiff alleges no facts regarding any actions he may have taken prior to his initial request
in January 2016. (See id. at 11.) Plaintiff adds as defendants Dr. Ahsan and several John and Jane
Doe nurses from New Jersey State Prison. (ECF No. 8 at 8-10.) Plaintiff also newly alleges that
original defendants Mary Lang, Gary Lanigan, and Steven Johnson are all responsible for the
policies and procedures at New Jersey State Prison, that he requested each investigate his failure
to receive Harvoni, and that none have taken any action to give him further treatment. (Id.)
Pursuant to the Prison Litigation Reform Act, Pub. L. No. 104-134, §§ 801-810, 110 Stat.
1321-66 to 1321-77 (April 26, 1996) (the “PLRA”), district courts must review the complaints in
all civil actions in which a prisoner is proceeding in forma pauperis, see 28 U.S.C. § 1915(e)(2)(B),
or seeks damages from a state employee. See 28 U.S.C. § 1915A. The PLRA directs district courts
to sua sponte dismiss any claim that is frivolous, malicious, fails to state a claim upon which relief
may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28
U.S.C. § 1915(e)(2)(B); 28 U.S.C. § 1915A. This action is subject to sua sponte screening for
dismissal, because Plaintiff is a federal prisoner who has been granted in forma pauperis status
and is seeking redress from a governmental employee. Id.
“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. 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)).
In deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a district court is
“required to accept as true all factual allegations in the complaint and draw all inferences in the
facts alleged in the light most favorable to the [Plaintiff].” Phillips v. Cnty. of Allegheny, 515 F.3d
224, 228 (3d Cir. 2008). “[A] complaint attacked by a . . . motion to dismiss does not need detailed
factual allegations.” Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007). However, the Plaintiff’s
“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.” Id. (citing
Papasan v. Allain, 478 U.S. 265, 286 (1986)). A court is “not bound to accept as true a legal
conclusion couched as a factual allegation.” Papasan, 478 U.S. at 286. Instead, assuming the
factual allegations in the complaint are true, those “[f]actual allegations must be enough to raise a
right to relief above the speculative level.” Twombly, 550 U.S. at 555.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 570). “A claim has facial plausibility when the
pleaded factual content allows the court to draw the reasonable inference that the defendant is
liable for misconduct alleged.” Id. “Determining whether the allegations in a complaint are
plausible is a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Id. at 679. “[W]here the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—‘that the pleader is entitled to relief.’” Id. (citing Fed. R. Civ. P. 8(a)(2)). 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) (citation omitted) (emphasis added).
Plaintiff asserts claims for alleged violations of his constitutional rights, pursuant to 42
U.S.C. § 1983. “To establish a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate a
violation of a right protected by the Constitution or laws of the United States that was committed
by a person acting under the color of state law.” Nicini v. Morra, 212 F.3d 798, 806 (3d Cir. 2000);
see also Woodyard v. Cnty. of Essex, 514 F. App’x 177, 180 (3d Cir. 2013) (explaining § 1983
provides “private citizens with a means to redress violations of federal law committed by state
[actors]”). “The first step in evaluating a section 1983 claim is to ‘identify the exact contours of
the underlying right said to have been violated’ and to determine ‘whether the plaintiff has alleged
a deprivation of a constitutional right at all.’” Nicini, 212 F.3d at 806 (quoting County of
Sacramento v. Lewis, 523 U.S. 833, 841 n.5 (1998)). Here, Plaintiff again attempts to assert a claim
for deliberate indifference to his medical needs, based on Defendants’ failure to provide him with
the drug Harvoni for his Hepatitis C. Plaintiff also seeks to bring a state law claim against
Defendants on that same basis.
As the Court explained in the November 21, 2016 Opinion, in order to set forth a plausible
claim for relief based on a defendant’s deliberate indifference to the plaintiff’s medical needs in
violation of the Eighth Amendment, a plaintiff must allege both “(i) a serious medical need and
(ii) acts or omissions by prison officials that indicate deliberate indifference to that need.” Natale
v. Camden Cty. Corr. Facility, 318 F.3d 575, 582 (3d Cir. 2003). An act or omission amounts to
deliberate indifference where the defendant “knows of and disregards an excessive risk to inmate
health or safety.” Id. (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). A medical need is
sufficiently serious where it “has been diagnosed as requiring treatment or [is a need that] is so
obvious that a lay person would easily recognize the necessity of a doctor’s attention.” Monmouth
Cnty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987), cert denied, 486 U.S. 1006
(1988). “‘Where a prisoner has received some medical attention and the dispute is over the
adequacy of treatment, federal courts are generally reluctant to second guess medical judgments
and to constitutionalize claims which sound in state tort law.’” Everett v. Nort, 547 F. App’x 117,
121 (3d Cir. 2013) (quoting United States ex rel. Walker v. Fayette Cnty., 599 F.2d 573, 575 n.2
(3d Cir. 1979)). As such, neither a prisoner’s personal, subjective dissatisfaction with the care he
has been provided, nor his disagreement with the professional judgment of trained medical staff,
is sufficient to establish deliberate indifference. See Hairston v. Director Bureau of Prisons, 563
F. App’x 893, 895 (3d Cir. 2014); White v. Napolean, 897 F.2d 103, 110 (3d Cir. 1990); Andrews
v. Camden Cnty., 95 F. Supp. 2d 217, 228 (D.N.J. 2000).
First, as in the original Complaint, the Amended Complaint again alleges Plaintiff is not
receiving Harvoni, the treatment he prefers, and is instead being subjected to numerous diagnostic
tests and has been sent to see several Hepatitis specialists, all with the promise of eventually
receiving Harvoni, if warranted by the tests. Rather than show a denial of treatment, these
allegations instead establish that Plaintiff has been treated, continues to receive treatments, and
may well receive his desired medication once his doctors are satisfied that such a course is
warranted by the diagnostics. As the Court previously ruled, Plaintiff’s subjective dissatisfaction
with the slow course of his treatment is insufficient to support a claim for relief for a violation of
his constitutional rights. See Everett, 547 F. App’x at 121; Hairston, 563 F. App’x at 895; White,
897 F.2d at 110; Andrews, 95 F. Supp. 2d at 228. Therefore Plaintiff’s § 1983 claims on this basis
must once again be dismissed without prejudice as to all Defendants.
Second, to the extent Plaintiff also wishes to raise claims regarding his treatment between
2009 and 2013, Plaintiff has not clearly alleged that he was denied treatment for his Hepatitis C
during that time period. According to the Amended Complaint, “[i]n 2009 Dr. Ahsan
recommended that Plaintiff begin the treatments for Hep. C.” (ECF No. 8 at 11.) However, Plaintiff
does not allege specifically what these recommended treatments were. (Id.) Instead, Plaintiff
vaguely alleges that “[t]his treatment went unheeded by NJSP Medical staff.” (Id.)
Contradictingly, however, Plaintiff also pleads that, at the very least, between 2009 and 2013,
Plaintiff was treated with Hepatitis A and B vaccines. (Id.) It is unclear from the Amended
Complaint if these vaccines were intended to aid in the treatment of Plaintiff’s Hepatitis C or were
the treatments recommended by Dr. Ahsan. (Id.) Consequently, without more specific allegations
identifying which of Dr. Ahsan’s recommended treatments Defendants failed to implement and
clarifying that the vaccines were unrelated to Plaintiff’s Hepatitis C treatment, the Amended
Complaint does not support a plausible claim that Plaintiff received no treatment for his condition
from 2009 to 2013. See Iqbal, 556 U.S. at 678. Additionally, to the extent Plaintiff’s claims
covering 2009 to 2013 are separate from his Harvoni-based claim, those claims may be timebarred, because claims brought pursuant to § 1983 are subject to a two-year statute of limitations,
and Plaintiff did not file his initial Complaint until late 2016. See, e.g., Patyrak v. Apgar, 511 F.
App’x 193, 195 (3d Cir. 2013).
Third, while Plaintiff has now newly named several of his doctors and nurses as defendants,
he also again names three high-level supervisors as defendants, Mary Lang, Gary Lanigan, and
Steven Johnson (collectively “Supervisor Defendants”), based on their responsibility for the
policies and practices at the prison. As the Court previously explained in the November 21, 2016
Opinion, a defendant in a § 1983 case may not be held liable solely on the basis of a respondeat
superior theory of liability premised on his vicarious responsibility for the actions of his
subordinates. See Iqbal, 556 U.S. at 676; see also Rode v. Dellarciprete, 845 F.2d 1195, 1207-08
(3d Cir. 1988). Rather, a “defendant in a civil rights action must have personal involvement in the
alleged wrongs.” Rode, 845 F.2d at 1207-08. Generally, a plaintiff seeking to name supervisors as
defendants must show each supervisor’s participation in the alleged wrongs by pleading either that
the supervisor’s “establishment of policies, practices or customs . . . directly caused the
constitutional violation[,] personal liability based on the supervisor participating in the violation
of [the p]laintiff’s right, [that the supervisor] direct[ed] others to violate [the p]laintiff’s rights, or
[that the supervisor had actual] knowledge of and acquiesc[ed] to a subordinate’s conduct.” Doe
v. New Jersey Dep’t of Corr., Civ. No. 14-5284, 2015 WL 3448233, at *9 (D.N.J. May 29, 2015)
(quoting Barkes v. First Corr. Med., Inc., 766 F.3d 307, 316-20 (3d Cir. 2014), rev’d on other
grounds, 135 S. Ct. 2042 (2015)); see also Tenon v. Dreibelbis, 606 F. App’x 681, 688 (3d Cir.
2015) (§ 1983 Plaintiff pleading supervisory liability must establish defendant’s “participation [in
the alleged wrong], or actual knowledge and acquiescence, to be liable”).
Plaintiff once again alleges little in the way of facts showing Supervisor Defendants’
personal involvement in the alleged denial of Plaintiff’s treatment. Plaintiff alleges that he asked
Supervisor Defendants to investigate his lack of treatment, but received no response. Plaintiff also
pleads that each Supervisor Defendant was involved in the development of Hepatitis C treatment
policies, which caused the denial of his requests for Harvoni. Plaintiff, however, alleges no facts
regarding how any policy instituted by Supervisor Defendants actually “denied” him treatment
with Harvoni. And to the contrary, Plaintiff attaches a DOC official medical policy to his Amended
Complaint, which specifically states that all DOC facilities shall provide Hepatitis C education,
training, testing, and treatment to inmates. (See ECF No. 8 at 17-18.) Thus, the only policy
identified by Plaintiff directly undercuts Plaintiff’s claim, and suggests that the policy makers at
his prison have specifically made rules requiring treatment for Hepatitis C, not denying it.
Accordingly, Plaintiff’s claims against Supervisor Defendants are also dismissed without
prejudice for these additional reasons.
Finally, in his Amended Complaint, Plaintiff states an intention to seek relief for the alleged
denial of treatment by bringing a claim pursuant to state laws requiring the development of
Hepatitis C screening and treatment protocols, specifically N.J. Stat. Ann. § 26:2T-1 et seq. To the
extent that a private cause of action is permitted under that statute, the Court declines to exercise
supplemental jurisdiction over this state law claim as the Court has once again dismissed all of
Plaintiff’s federal claims over which the Court had original jurisdiction. See 28 U.S.C.
§ 1367(c)(3). The Amended Complaint is, therefore, dismissed without prejudice in its entirety.
Finally, for the same reasons the Court dismisses the Amended Complaint, the Court finds,
for the purposes of Plaintiff’s Motion for the Appointment of Pro Bono Counsel, that Plaintiff’s
claims lack arguable merit. See Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993) (“Before the court
is justified in exercising its discretion in favor of appointment, it must first appear that the claim
has some merit in fact and law.”); see also Parham v. Johnson, 126 F.3d 454, 457 (3d Cir. 1997).
Accordingly, the Court also denies without prejudice Plaintiff’s Motion for the Appointment of
Pro Bono Counsel (ECF No. 7).
For the reasons stated above, the Amended Complaint (ECF No. 8) is DISMISSED
WITHOUT PREJUDICE in its entirety for failure to state a claim for which relief may be
granted, and Plaintiff’s Motion for the Appointment of Pro Bono Counsel (ECF No. 7) is DENIED
WITHOUT PREJUDICE. An appropriate order will follow.
Date: January 11, 2017
/s/ Brian R. Martinotti
HON. BRIAN R. MARTINOTTI
UNITED STATES DISTRICT JUDGE
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