BRAGG v. PETRILLO et al

Filing 15

MEMORANDUM ORDER that the Original 1 Complaint is dismissed as MOOT due to Plaintiff's transfer from MCCC; Plaintiff's 3 motion for a TRO is likewise denied as MOOT; Defendant Patricia Hundley is terminated; the Clerk of the Court shall file the Amended Complaint; the Fourteenth Amendment medical privacy claim, as stated in the Amended Complaint, shall PROCEED against Defendants Petrillo and the John Doe Defendants at this time; the First Amendment retaliation claim shall PROCEED a gainst Defendant Petrillo; the §1983 conspiracy claim is dismissed WITHOUT PREJUDICE as to all Defendants; the Monell claim is dismissed WITHOUT PREJUDICE as to Defendant Petrillo and the County of Mercer; Plaintiff may submit a second amended complaint within 30 days with respect to the claims that the Court has dismissed without prejudice; the Clerk shall mail to Plaintiff a USMS transmittal letter and 285 Forms. Signed by Judge Freda L. Wolfson on 7/19/2017. (km)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
BRIAN KEITH BRAGG,

Civil Action No. 16-8751 (FLW)

Plaintiff,
v.

MEMORANDUM AND ORDER

JENNIFER PETRILLO, et al.,
Defendants.

This matter has been opened to the Court by Plaintiff’s filing of a Complaint, a Motion
for a Temporary Restraining Order (“TRO”), and an Amended Complaint. (ECF Nos. 1, 3, 7.)
The Court previously granted Plaintiff’s application to proceed in forma pauperis. (ECF No. 2.)
Federal law requires this Court to screen Plaintiff’s Complaint and Amended Complaint
for sua sponte dismissal prior to service, and to dismiss any claim if that claim fails to state a
claim upon which relief may be granted under Fed. R. Civ. P. 12(b)(6) and/or to dismiss any
defendant who is immune from suit. See 28 U.S.C. § 1915(e)(2)(B).
At the time he filed his Original Complaint, Plaintiff was incarcerated at Mercer County
Correctional Center (“MCCC”). Plaintiff’s Original Complaint and motion for a TRO (ECF
Nos. 1, 3) alleged that Defendants Jennifer Petrillo and Patricia Hundley, who are medical
personnel at MCCC, violated Plaintiff’s civil rights by providing inadequate medical care;
Plaintiff sought only injunctive relief. (See id.) Plaintiff specifically sought a court order
requiring Defendants to send Plaintiff to an outside specialist for an examination and/or
colonoscopy due to unexplained bleeding from his rectum. (ECF No. 1, Compl. at 6; ECF No. 3,
TRO Application at 1-2.)

Plaintiff subsequently provided a notice of change of address, informing the Court that he
was no longer incarcerated at MCCC (ECF No. 4); his most recent notice of change of address
states that he is currently incarcerated at Northern State Prison, which is a state facility. (ECF
No. 12.)
Because Plaintiff sought only injunctive relief in his Original Complaint, the Court will
dismiss the Original Complaint as moot in light of Plaintiff’s transfer to a state prison and will
likewise deny his motion for a TRO. Generally, requests for injunctive relief for claims
involving adverse prison administrative actions, regardless of their possible merits, become moot
once the prisoner is no longer subject to the challenged action. See Abdul-Akbar v. Watson, 4
F.3d 195, 206–07 (3d Cir. 1993) (vacating injunctive relief ordered by district court in favor of
inmate in Delaware's Maximum Security Unit who had been released from the unit five months
prior to trial; after the date of the inmate's release from the maximum security unit, “the district
court could not provide [him] with meaningful relief by entering an injunctive order respecting
the [maximum security unit] in which [he] no longer was incarcerated”);Weaver v. Wilcox, 650
F.2d 22, 27 n.13 (3d Cir. 1981) (prisoner's transfer from prison mooted claim for injunctive and
declaratory relief with respect to prison conditions, but not claim for damages); Prater v. City of
Philadelphia, 542 F. App'x 135, 138 (3d Cir. 2013) (“to the extent that Prater's complaint seeks
prospective injunctive relief, the Sixth Amendment claim is moot, as Prater is no longer housed
at CFCF.” (citing Ortiz v. Downey, 561 F.3d 664, 668 (7th Cir. 2009)).
That is not the end of the matter, however, as Plaintiff submitted an Amended Complaint
on April 12, 2017. 1 (ECF No. 7.) In his Amended Complaint Plaintiff alleges that Defendant

1

As a general matter, an amended complaint “‘supersedes the original and renders it of no legal
effect, unless the amended complaint specifically refers to or adopts the earlier pleading.’” W.
Run Student Hous. Associates, LLC v. Huntington Nat. Bank, 712 F.3d 165, 171 (3d Cir. 2013)

Petrillo violated his civil rights by enacting a “policy” of conducting Plaintiff’s medical exams at
MCCC in the presence of Defendant John Doe corrections officers. (ECF No. 7, Compl. ¶ 7.)
Plaintiff clarifies that MCCC does not have a policy, written or otherwise, requiring correctional
personnel to be present during medical examinations. (Id. at ¶ 8.) Plaintiff further alleges that he
poses no security risk at MCCC that would justify the presence of the corrections officers. (Id. at
¶ 9.) Plaintiff also alleges that the John Doe corrections officers subsequently told inmates and
other corrections personnel that Plaintiff suffers from hemorrhoids. Plaintiff contends that this
disclosure caused inmates and corrections officers to harass and torment him. (Id. at ¶ 12.)
When Plaintiff asked Defendant Petrillo why corrections officers must be present during his
exams, Petrillo allegedly told Plaintiff that “as long as [Plaintiff] keep[s] filing grievances and
lawsuits against [Petrillo] and her medical staff, [Plaintiff would] have no legal right to medical
privacy as long as she is the medical director at [MCCC].” (Id. at ¶ 14.)
The Court construes Plaintiff’s Amended Complaint to allege violations of his civil rights
pursuant to 42 U.S.C. § 1983. Specifically, Plaintiff alleges that (1) Defendant Petrillo and the
John Doe Defendants violated his Fourteenth Amendment right to medical privacy; and that (2)
Defendant Petrillo violated Plaintiff’s First Amendment rights by denying him medical privacy

(citing New Rock Asset Partners, L.P. v. Preferred Entity Advancements, Inc., 101 F.3d 1492,
1504 (3d Cir. 1996) (emphasis added); see also 6 Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1476 (3d ed. 2008). 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 clear and explicit. Id. To avoid confusion, the safer course is
to file an amended complaint that is complete in itself. Id.; see also Stevenson v. County Sheriff's
Office of Monmouth, No. 13-5953, 2015 WL 512423, at *8 n.2 (D.N.J. Feb. 6, 2015) (explaining
same). Although Plaintiff alleges in the Original Complaint that he was provided with
inadequate medical care, the Court does not construe Plaintiff to allege a claim of inadequate
medical care in his Amended Complaint, as his Amended Complaint provides no facts regarding
the adequacy of the care he received and does not clearly incorporate the earlier pleading.
Rather, as explained in this Memorandum and Order, the Amended Complaint focuses on
alleged violations of his right to medical privacy and acts of retaliation.

in retaliation for his filing of grievances. 2 The Court will permit these claims to proceed at this
time against Defendant Petrillo and the John Doe Defendants.
It appears that Plaintiff is also attempting to state a claim for conspiracy under § 1983. In
order to state a claim of conspiracy pursuant to 42 U.S.C. § 1983 a plaintiff “must make specific
factual allegations of a combination, agreement, or understanding among all or between any of
the defendants to plot, plan, or conspire to carry out the alleged chain of events in order to
deprive plaintiff of a federally protected right.” Fioriglio v. City of Atlantic City, 996 F. Supp.
379, 385 (D.N.J. 1998)). Here, Plaintiff has not sufficiently alleged agreement or concerted
action. As such, the Court will dismiss this claim without prejudice as to all Defendants.
Although it is not entirely clear, Plaintiff may also be attempting to state a Monell claim
against Defendant Petrillo and the County of Mercer based on Defendant Petrillo’s “policy” of
requiring Plaintiff to be examined in front of corrections officers. Under § 1983, a municipality
may be held liable when it causes a constitutional violation through the implementation of a
policy, custom, or practice. Monell v. Dep't of Soc. Servs. of New York, 436 U.S. 658, 691
(1978) (emphasis added); see also Adamo v. Jones, No. CV 15-1073 (MCA), 2016 WL 356031,
at *11 (D.N.J. Jan. 29, 2016). As explained by the Third Circuit in Natale v. Camden Cty. Corr.
Facility, 318 F.3d 575, 584 (3d Cir. 2003), “[n]ot all state action rises to the level of a custom or
policy. A policy is made “when a decisionmaker possess[ing] final authority to establish
municipal policy with respect to the action issues a final proclamation, policy or edict.” Id.
(citing Kneipp v. Tedder, 95 F.3d 1199, 1212 (3d Cir.1996)). “A custom is an act “that has not

2

Although Plaintiff mentions “state law claims” at the end of his Amended Complaint (ECF No.
7, Am. Compl. at ¶ 34), he does not specify what these state law claims are, and the Court does
not construe Plaintiff to raise any state law claims for relief. Any state law claims must be raised
by way of a second amended complaint.

been formally approved by an appropriate decisionmaker,” but that is “so widespread as to have
the force of law.” Id. (citing Bd. of County Comm'rs of Bryan County, Oklahoma v. Brown, 520
U.S. 397, 404 (1997)). Here, Plaintiff alleges that Dr. Petrillo enacted a “policy” requiring
Plaintiff to be examined in the presence of non-medical personnel, but he does not sufficiently
allege that Petrillo is a final policymaker or that the practice at issue was so widespread as to
have force of law. In fact, he appears to allege that Petrillo’s conduct contravened the policies at
MCCC, which do not require corrections officers to be present during inmates’ medical
examinations. As such, although the Court will permit the First and Fourteenth Amendment
claims, described above, to proceed against Defendant Petrillo, the Court will dismiss without
prejudice Plaintiff’s policy or custom claim under Monell against Petrillo and the County of
Mercer.
IT IS therefore on this 19th day of July, 2017,
ORDERED that the Original Complaint (ECF No. 1) is dismissed as MOOT due to
Plaintiff’s transfer from MCCC; and it is further
ORDERED that the Plaintiff’s motion for a TRO (ECF No. 3) is likewise denied as
MOOT; and it is further
ORDERED that the Clerk of the Court shall terminate Defendant Patricia Hundley from
the docket as there are no live claims against this Defendant; and it is further
ORDERED that the Clerk of the Court shall file the Amended Complaint; and it is
further
ORDERED that the Fourteenth Amendment medical privacy claim, as stated in the
Amended Complaint, shall PROCEED against Defendants Petrillo and the John Doe Defendants
at this time; and it is further

ORDERED that the First Amendment retaliation claim, as stated in the Amended
Complaint, shall PROCEED against Defendant Petrillo at this time; and it is further
ORDERED that the § 1983 conspiracy claim, as stated in the Amended Complaint, is
dismissed WITHOUT PREJUDICE as to all Defendants; and it is further
ORDERED that the Monell claim is dismissed WITHOUT PREJUDICE as to Defendant
Petrillo and the County of Mercer; and it is further
ORDERED that Plaintiff may submit a second amended complaint within 30 days with
respect to the claims that the Court has dismissed without prejudice; and it is further
ORDERED that the Clerk shall mail to Plaintiff a transmittal letter explaining the
procedure for completing Unites States Marshal (“Marshal”) 285 Forms (“USM-285 Forms”); and
it is further
ORDERED that, once the Marshal receives the USM-285 Form(s) from Plaintiff and the
Marshal so alerts the Clerk, the Clerk shall issue summons in connection with each USM-285
Form that has been submitted by Plaintiff, and the Marshal shall serve summons, the Complaint
and this Order to the address specified on each USM-285 Form, with all costs of service advanced
by the United States 3; and it is further
ORDERED that Defendant(s) shall file and serve a responsive pleading within the time
specified by Federal Rule of Civil Procedure 12; and it is further

3

Alternatively, the U.S. Marshal may notify Defendant(s) that an action has been commenced
and request that the defendant(s) waive personal service of a summons in accordance with Fed.
R. Civ. P. 4(d).

ORDERED that, pursuant to 28 U.S.C. § 1915(e)(1) and § 4(a) of Appendix H of the Local
Civil Rules, the Clerk shall notify Plaintiff of the opportunity to apply in writing to the assigned
judge for the appointment of pro bono counsel; and it is further
ORDERED that, if at any time prior to the filing of a notice of appearance by Defendant(s),
Plaintiff seeks the appointment of pro bono counsel or other relief, pursuant to Fed. R. Civ. P. 5(a)
and (d), Plaintiff shall (1) serve a copy of the application by regular mail upon each party at his
last known address and (2) file a Certificate of Service 4; and it is further
ORDERED that the Clerk of the Court shall serve Plaintiff with copies of this
Memorandum and Order via regular mail.

s/Freda L. Wolfson
Freda L. Wolfson
United States District Judge

4

After an attorney files a notice of appearance on behalf of a Defendant, the attorney will
automatically be electronically served all documents that are filed in the case.