BAKER v. CAMARILLO et al

Filing 73

OPINION filed. Signed by Judge Peter G. Sheridan on 09/09/2021. (jdb)

Case 3:17-cv-12095-PGS-DEA Document 73 Filed 09/09/21 Page 1 of 10 PageID: 715

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
SCOTT BAKER,
Plaintiff,

—

Civ. No. 17-12095 (PGS) (DEA)

v.
JOY CAMARILLO, et al.,

OPINION

Defendants.

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

INTRODUCTION
Plaintiff, Scott Baker (“Plaintiff’ or “Baker”), is a state prisoner currently incarcerated at

the New Jersey State Prison (“NJSP”) in Trenton, New Jersey. He is proceeding through
appointed counsel with a civil rights complaint against several remaining defendants, namely: (1)
Joy Camarillo; (2) Ihuoma Nwachukwu; (3) University Behavioral Health; and (4) Rutgers, the
State University of New Jersey (hereinafter collectively the “Moving Defendants”). Presently
pending before this Court is the Moving Defendants’ motion for summary judgment. For the
following reasons, the motion is granted.
II.

FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff initially filed suit pro se in state court in June, 2017. That state case was

removed to this Court in November, 2017. As this Court previously noted in a prior opinion, the
complaint alleges as follows:
According to the Complaint, Plaintiff has been incarcerated since
at least 2016 and has been taking Lisinopril for high blood
pressure. He was taken to UMDNJ on May 13, 2016 for a spinal
injection procedure unrelated to his high blood pressure, at which
time a surgeon told him Lisinopril was a “bad drug.” (Compi. ¶
17). The surgeon told Plaintiff he should be taken off Lisinopril as

Case 3:17-cv-12095-PGS-DEA Document 73 Filed 09/09/21 Page 2 of 10 PageID: 716

it “was dangerous and was not working.” (Compi. ¶ 18). Plaintiff
asked defendant Joy Camarillo, an APN at NJSP, to prescribe a
different medication and she agreed. (Compl. ¶ 19). Plaintiff
alleges that instead of giving him a different medicine, Camarillo
doubled his dosage of Lisinopril. (Compi. ¶ 20).
On June 9, 2016, Plaintiffs lip began to swell and he had difficulty
swallowing. He had a headache and trouble breathing. He assumed
he was getting sick and went to bed early. He awoke early the next
morning unable to breathe. (Compi. ¶[ 21-22). A nurse saw
Plaintiffs distress and notified the Wing Officer that Plaintiff had
to go to the prison clinic immediately. (Compi. ¶J 23-24). The
Wing Officer called defendant Supervising Officer Doe, who told
Plaintiff he could not go to the clinic until after count ended
approximately one hour later. (Compi. ¶ 25). Plaintiff went to the
clinic at the conclusion of count at roughly 6:30 a.m. on an
emergency pass. (Compi. ¶ 27). Plaintiff needed assistance to the
clinic because he collapsed on his way there. (Compl. ¶ 29).
Plaintiff passed out shortly after arriving at the clinic and had an
oxygen mask on his face and IV tube when he woke up. The
medical staff sent him to St. Francis where he was treated for an
allergic reaction to Lisinopril. (Compi. ¶J 30-31). He alleges he
suffers from recurring nightmares and PTSD and is afraid to take
any medication. (Compi. ¶ 32). He claims this incident was never
reported or written up properly. (Compi. 34).
Baker v. Camarillo, No. 17-12095, 2019 WL 2743964, at *1 (D.N.J. July 1, 2019). The claims
remaining against the Moving Defendants are:
1. Deliberate indifference to plaintiffs medical needs pursuant to the New Jersey Civil
Rights Act (“NJCRA”
2. Deliberate indifference to plaintiffs medical needs pursuant to Section 1983
3. Failure to protect plaintiff pursuant to Section 1983
4. Failure to protect plaintiff pursuant to the NJCRA
5. Medical malpractice under the New Jersey Tort Claims Act (“NJTCA”)

(See ECF 70 at 1).
On July 1, 2019, this Court appointed Plaintiff an atoméy. (See ECF 29). On August 31,
2020, Moving Defendants filed a motion for summary judgment. (See ECF 58). Moving
Defendants do not contest the underlying facts giving rise to Plaintiffs complaint. Instead, their
motion for summary judgment makes three procedural arguments:
2

Case 3:17-cv-12095-PGS-DEA Document 73 Filed 09/09/21 Page 3 of 10 PageID: 717

1. Plaintiff failed to exhaust his administrative remedies.
2. Plaintiff failed to comply with the requirements of the affidavit of merit statute under
state law.
3. Plaintiff failed to comply with the notice requirements of the New Jersey Tort Claims
Act.
Plaintiff filed a response to the motion for summary judgment on September 21, 2020.

(See ECF 60-62). Plaintiff’s response though only addressed Moving Defendants’ failure to
comply with the affidavit of merit statute. (See ECF 62).
On October 16, 2020, Moving Defendants filed a reply brief in support of their motion
for summary judgment. (See ECF 67). Moving Defendants’ reply brief noted Plaintiff’s response
did not oppose their motion for summary judgment with respect to the affidavit of merit statute
nor their lack of administrative exhaustion argument. (See id.)
On October 20, 2020, Plaintiff filed a letter, which this Court construes as a sur-reply.
While sur-replies are typically only permitted with leave of court, see L. Civ. R. 7.l(d)(6), this
Court will permit the sur-reply in this instance. Plaintiff’s sur-reply continued to ignore Moving
Defendants’ lack of administrative exhaustion argument. Instead, Plaintiff argued Moving
Defendants’ affidavit of merit argument was inconsistent with previous orders entered by
Magistrate Judge Arpert.
On June 8, 2021, this Court ordered the parties to supplement their briefs. Most relevant
to this opinion, Plaintiff states he is not conceding that he failed to exhaust his administrative
remedies. (See ECF 70 at 1).
III.

SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where “the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). A fact is material if it “might affect the outcome of the suit under the governing
3

Case 3:17-cv-12095-PGS-DEA Document 73 Filed 09/09/21 Page 4 of 10 PageID: 718

law” and a dispute about a material fact is genuine “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.s. 242,
248 (1986). Disputes over irrelevant or unnecessary facts will not preclude the Court from
granting a motion for summary judgment. See id.
A party moving for summary judgment has the initial burden of showing the basis for its
motion and must demonstrate that there is an absence of a genuine issue of material fact. See
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). “A party asserting that a fact [is not]
genuinely disputed must support the assertion by
record, including depositions, documents

...,

...

citing to particular parts of materials in the

affidavits or declarations, stipulations (including

those made for purposes of the motion only), admissions, interrogatory answers, or other
materials.” Fed. R. Civ. P. 56(c)(1)(A). After the moving party adequately supports its motion,
the burden shifts to the nonmoving party to “go beyond the pleadings and by her own affidavits,
or by the depositions, answers to interrogatories, and admissions on file, designate specific facts
showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324 (internal quotation
marks omitted). To withstand a properly supported motion for summary judgment, the
nonmoving party must identify specific facts and affirmative evidence that contradict the moving
party. See Anderson, 477 U.S. at 250. “[IJf the non-movant’s evidence is merely ‘colorable’ or is
‘not significantly probative,’ the court may grant summary judgment.” Messa v. Omaha Prop. &
Cas. Ins. Co., 122 F. Supp. 2d 523, 528 (D.N.J. 2000) (quoting Anderson, 477 U.S. at 249-50)).
“If reasonable minds could differ as to the import of the evidence,” however, summary judgment
is not appropriate. See Anderson, 477 U.S. at 250-51.
“In considering a motion for summary judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence; instead, the nonmoving party’s

4

Case 3:17-cv-12095-PGS-DEA Document 73 Filed 09/09/21 Page 5 of 10 PageID: 719

evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.” Marino v.
Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255). The
Court’s role in deciding a motion for summary judgment is simply “to determine whether there is
a genuine issue for trial.” Anderson, 477 U.S. at 249. Ultimately, there is “no genuine issue as to
any material fact” if a party “fails to make a showing sufficient to establish the existence of an
element essential to that party’s case.” Celotex, 477 U.S. at 322.
IV.

DISCUSSION

A. Notice Requirement of NJTCA
One of Moving Defendants’ argument is that plaintiff failed to meet the notice
requirement of the NJTCA to proceed with his medical malpractice claim. At the outset, the
parties conceded during oral argument that the notice requirement of the NJTCA only applies to
plaintiff’s medical malpractice claim, not his federal and state constitutional claims.
The NJTCA requires that notice of a claim of injury against a
public entity be provided “no later than the 90th day after accrual
of the cause of action.” N.J. Stat. Ann. § 59:8—8. The NJTCA
notice requirement has several rationales. It “allows the public
entity time to review the claim and to promptly investigate the
facts and prepare a defense; provides them an opportunity to settle
meritorious claims before bringing suit; grants them an opportunity
to correct the conditions which gave rise to the claim; and allows
them to inform the State in advance as to the expected liability.”
Evans v. Gloucester Twp., 124 F. Supp. 3d 340, 354 (D.N.J. 2015)
(citing Velez v. City ofJersey City, 180 N.J. 284, 290, 850 A.2d
1238 (2004)).
Failure to comply with the NJTCA notice requirement precludes
recovery against both a public employee and a public entity. See
Velez, 180 N.J. at 296, (“Although we note that the better practice
is for a potential plaintiff lo give notice to both the public entity
and the public employee, N.J. Stat. Ann. § 59:8—8 only requires
that notice be given to the public entity.). A plaintiff who fails to
file such a claim within the 90-day period is “forever barred from
recovering against a public entity or public employee.” N.J. Stat.
Ann. § 59:8—8.
5

Case 3:17-cv-12095-PGS-DEA Document 73 Filed 09/09/21 Page 6 of 10 PageID: 720

There is a potential avenue of relief from the 90-day deadline.
A plaintiff can file a motion with the court requesting permission
to file a late notice of claim, which will be granted if
“extraordinary circumstances” excuse late filing. N.J. Stat. Ann. §
59:8—9. An application to file a late notice must be filed within one
year after the accrual of the claim. See id.
Lozano v. New Jersey, No. 17-6581, 2020 WL 3542374, at *14 (D.N.J. June 29, 2020).
Plaintiff admits he did not file his notice of tort claim within ninety days. Instead, he
argues he filed a notice of tort claim on June 6, 2017, or within one year of the date of the
incident. Therefore, according to Plaintiff, he satisfied the late notice requirement. With respect
to not complying with filing a notice of tort claim within ninety days, the relevant New Jersey
statute permits as follows:
A claimant who fails to file notice of his claim within 90 days as
provided in section 59:8-8 of this act, may, in the discretion of a
judge of the Superior Court, be permitted to file such notice at any
time within one year after the accrual of his claim provided that the
public entity or the public employee has not been substantially
prejudiced thereby. Application to the court for permission to file a
late notice of claim shall he made upon motion supported by
affidavits based upon personal knowledge of the affiant showing
sufficient reasons constituting extraordinary circumstances for his
failure to file notice of claim within the period of time prescribed
by section 59:8-8 of this act or to file a motion seeking leave to file
a late notice of claim within a reasonable time thereafter; provided
that in no event may any suit against a public entity or a public
employee arising under this act be filed later than two years from
the time of the accrual of the claim.
N.J. Stat. Ann.

§ 59:8-9.

Filing a late notice of tort claim, as plaintiff did in this case, without leave of court is a
nullity and does not constitute substantial compliance with

§ 59:8-9. See Rogers v.

Cape May

Cty. Office ofPublic Defender, 31 A.3d 934, 941-42 (N.J. 2011). Thus, merely because plaintiff
filed a notice of tort claim after ninety days, but within one year as opposed to an application for

6

Case 3:17-cv-12095-PGS-DEA Document 73 Filed 09/09/21 Page 7 of 10 PageID: 721

permission to file a late notice of tort claim, is insufficient in and of itself to comply with the
statute.
Plaintiff’s alternative argument is to grant him leave nunc pro tunc to seek such a request
to file a latenotice of tort claim. Plaintiff Provides no caselaw to permit this Court to grant such a
request nunc pro tunc so many years after the purported tort occurred. Furthermore, even if this
Court were inclined to consider such a request, plaintiff would still need to show extraordinary
circumstances for this Court to grant such a late request. “What constitutes “extraordinary
circumstances” is inherently imprecise and must be determined on a case-by-case basis.” Jeffrey
v. State, No. A-1187-18, 2021 WL 1975175, at *3 (N.J. Super. Ct. App. Div. May 18, 2021)
(citing O’Donnell v. New Jersey Tpk. Auth., 236 N.J. 335, 347, 199 A.3d 786 (2019). While
extraordinary circumstances are not defined by the statute, Plaintiff makes no argument
whatsoever regarding what constituted extraordinary circumstances to warrant this Court
granting his request to consider his request to excuse his late notice of tort claim nunc pro tunc.
Accordingly, Moving Defendants are entitled to summary judgment on Plaintiff’s medical
malpractice claim.’
B. Exhaustion
Moving Defendants next argue they are entitled to summary judgment because plaintiff’s
federal and state constitutional claims are unexhausted. Under the Prison Litigation Reform Act,
(“PLRA”), prisoners must exhaust ‘such administrative remedies as are available’ before

‘Given that this Court is granting Moving Defendants motion due to plaintiffs lack of tort claim
notice, this Court need not analyze Moving Defendants’ alternative argument that they are
entitled to summary judgment on plaintiff’s medical malpractice claim due to plaintiffs
purported failure to complete an affidavit of merit.

7

Case 3:17-cv-12095-PGS-DEA Document 73 Filed 09/09/21 Page 8 of 10 PageID: 722

bringing suit to challenge prison conditions.”2 Ross v. Blake, 136 S. Ct. 1850, 1854—55 (2016)
(quoting 42 U.S.C.

§

1997e(a)). “[T]hat language is ‘mandatory’: An inmate ‘shall’ bring ‘no

action’ (or said more conversationally, may not bring any action) absent exhaustion of available
administrative remedies.” Id. at 1856 (citing Woodfordv. Ngo, 548 U.S. 81, 85 (2007)). “There
is no question that exhaustion is mandatory under the PLRA and that unexhausted claims cannot
be brought in court.” Jones v. Bock, 549 U.S. 199, 211(2007). This includes constitutional
claims, Woodford, 548 U.S. at 91 n.2, and “applies to all inmate suits about prison life, whether
they involve general circumstances or particular episodes, and whether they allege excessive
force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002).
Exhaustion must be proper, meaning “prisoners must ‘complete the administrative review
process in accordance with the applicable procedural rules,’ rules that are defined not by the
PLRA, but by the prison grievance process itself.” Jones, 549 U.S. at 218 (quoting Woodford,
548 U.S. at 88). “A prisoner must exhaust these remedies ‘in the literal sense[;]’ no further
avenues in the prisons grievance process should be available.” Smith v. Lagana, 574 F. App’x
130, 131 (3d Cir. 2014) (quoting Spruill v. Gillis, 372 F.3d 218, 232 (3d Cir. 2004)). A district
court may decide whether a plaintiff exhausted his administrative remedies without a jury even if
there are disputed facts after providing notice to the parties and an opportunity to submit further
evidence. Paladino v. Newsome, 885 F.3d 203, 211 (3d Cir. 2018); Small v. Camden Cty., 728
F.3d 265, 270 (3d Cir. 2013). “Failure to exhaust is an affirmative defense the defendant must
plead and prove; it is not a pleading requirement for the prisoner-plaintiff.” Small, 728 F.3d at
268.

2

New Jersey has a similar exhaustion requirement under state law. See N.J. Admin. Code
IOA: 1-4.4(d).
8

§

Case 3:17-cv-12095-PGS-DEA Document 73 Filed 09/09/21 Page 9 of 10 PageID: 723

Moving Defendants previously unsuccessful sought summary judgment due to plaintiff’s
purported lack of exhaustion. In denying Moving Defendants’ previous motion for summary
judgment, this Court noted that:
[d]efendants have failed to meet their burden of proof [on their
lack of exhaustion argument]. Their statement of material facts do
not cite to any portion of the record supporting their statement that
Plaintiff failed to exhaust his remedies. (ECF No. 17-2 at 5 ¶ 21).
They have not submitted any admissible evidence by anyone with
knowledge of the prison’s grievance procedure and/or Plaintiffs
submissions. There is no evidence attesting to the reliability of
NJSP’s recordkeeping system. See Paladino, 885 F.3d at 211
(holding that success of failure to exhaust argument based on the
absence of any form “depends on the reliability of the Prison’s
recordkeeping system”).
Baker, 2019 WL 2743964. at *4•
As noted by Plaintiff’s counsel during oral argument on this motion, Moving Defendants
instant motion for summary judgment suffers from similar defects as did their previous attempt.
Indeed, Moving Defendants’ current statement of material facts again lacks any citation to the
record that plaintiff did not exhaust his administrative remedies. (See ECF 58-1). Moving
Defendants’ current motion also similarly lacks admissible evidence by anyone with knowledge
of NJSP’s grievance procedure. In their reply, Moving Defendants assert there is no challenge to
the reliability of the prisons record keeping. However, as an affirmative defense and as the
moving party in this motion for summary judgment, Moving Defendants have the burden to
prove lack of exhaustion. See Tormasi v. Lanigan, 363 F. Supp. 3d 525, 536 (D.N.J. 2019)
(citations omitted). Moving Defendants’ Exhibit B to their motion appears to be a list of
communications of Plaintiff’s grievances. However, this attachment lacks any corresponding
certification from a custodian of this recoid or even a certification from counsel that this exhibit
constitutes the full extent of Plaintiff’s grievances. Finally, as with Moving Defendants’ previous

9

Case 3:17-cv-12095-PGS-DEA Document 73 Filed 09/09/21 Page 10 of 10 PageID: 724

motion, Moving Defendants fail to include relevant information in the record regarding the
administrative exhaustion process at NJSP.

-

Given these continued deficiencies, this Court cannot grant Moving Defendants summary
judgment due to lack of exhaustion at this time. These continued deficiencies in Moving
Defendants’ motion require this Court to conclude the burden has not yet ever shifted to Plaintiff
because Moving Defendants have yet to adequately support their motion on lack of exhaustion.
Nevertheless, this Court will deny this portion of Moving Defendants’ motion without prejudice.
Moving Defendants shall be given one final opportunity to correct the deficiencies in their lack
of exhaustion argument, to the extent they can or elect to do so. Moving Defendants shall be
given thirty days to file such a motion.
CONCLUSION
For the foregoing reasons, Moving Defendants’ motion for summary judgment is granted
in part. Moving Defendants are granted summary judgment on plaintiffs medical malpractice
claim. The remainder of Moving Defendants’ motion is denied without prejudice. Moving
Defendants’ may attempt to reargue lack of exhaustion in another motion for summary judgment
that must be filed within thirty days. An appropriate order will be entered.

DATED:

PETER 0. SHERIDAN
United States District Judge

10