SOUTH v. NEW JERSEY DEPARTMENT OF CORRECTIONS et al

Filing 12

MEMORANDUM OPINION filed. Signed by Judge Freda L. Wolfson on 4/30/2019. (km)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
_________________________________________
JEREMY D. SOUTH,
:
:
Plaintiff,
:
Civ. No. 17-13387 (FLW) (LHG)
:
v.
:
:
NEW JERSEY DEPARTMENT OF
:
MEMORANDUM OPINION
CORRECTIONS et al.,
:
Defendants.
:
_________________________________________ :

FREDA L. WOLFSON, U.S.D.J.
Plaintiff pro se, Jeremy D. South (“South” or “Plaintiff), a state prisoner presently
incarcerated at South Woods State Prison, in Bridgeton, New Jersey, filed a Complaint alleging
claims under 42 U.S.C. § 1983 and the New Jersey Civil Rights Act. (ECF No. 1.) The Court
initially terminated the action, as the Complaint was accompanied by a defective application to
proceed in forma pauperis. (ECF No. 3.) South subsequently filed a proper in forma pauperis
application. (ECF No. 5.)
On October 31, 2018, the Court screened the Complaint under 28 U.S.C. §§ 1915(e) and
1915A, and dismissed it without prejudice for failure to state a claim upon which relief could be
granted. 1 (ECF Nos. 6 & 7.) The Complaint’s dismissal resulted from, among other problems,
South’s failure to plead that any defendant had shown deliberate indifference to his medical
conditions. (See ECF No. 6 at 8–11.) Indeed, the Court noted that “defendants did, in fact,
provide significant medical care to South,” and that South had not alleged “that defendants
refused to treat [him], prevented him from receiving the care required or delayed treatment in
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The Court additionally dismissed claims against the defendants in their official capacities with
prejudice. (See ECF Nos. 6 & 7.)

such a way that exacerbated his medical condition.” (Id. at 10.) South was given leave to submit
a proposed amended complaint to cure the Complaint’s deficiencies within thirty days. (ECF
No. 7.)
On February 4, 2019, the Court received a letter from South inquiring as to the status of
his action and indicating that he had mailed the Court an amended complaint on November 20,
2018. (ECF No. 8.) As the Court had not received any Amended Complaint, South was
provided another 30 days to re-submit that pleading accompanied by proof that he had originally
mailed it within the 30-day period permitted. (ECF No. 9.)
South thereafter resubmitted his November 20, 2018 filing, along with a postage remit
bearing the same date. (See ECF No. 10 at 4–5.) What South describes as his “first amended
complaint,” is a one-page letter in which he indicates that he is “requesting that the abovecaptioned matter be dismissed, without prejudice.” (ECF No. 10 at 4.) Among the reasons given
for requesting dismissal of the action is the fact that South underwent additional surgery after
filing the Complaint and “[i]t is too early to determine whether or not the recent surgery has
corrected the medical issues that were raised in [his] initial complaint.” (Id.) South also
contends that “[d]ismissal of this matter at this time, without prejudice, will result in little, if any,
prejudice to the named defendants.” (Id.)
Somewhat confusingly, the three-page cover letter accompanying this filing seems to
indicate a desire to continue litigating this action. 2 (See ECF No. 10 at 1–3.) South alleges that
his second surgery did not improve his symptoms and, if anything, aggravated them. (Id. at 1–
2.) South divides his grievance into three categories: (1) the original misdiagnosis of his

2

In the concluding paragraph, South describes it as a “letter-motion in lieu of amended pleading
to proceed in a complaint towards defendants that w[]ere dismissed without prejudice.” (ECF
No. 10 at 3.)
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condition, resulting in unnecessary surgery; (2) the pain and discomfort caused by subsequent
procedures; and (3) the ultimate failure to remedy his original symptoms. (Id. at 2.)
South also submitted an additional follow-up letter in which he reports that his symptoms
are continuing and that he has not recovered from surgery as quickly as doctors said he would.
(ECF No. 11.) He seems to request court leave to obtain a second opinion regarding his
condition. (Id.)
It is somewhat ambiguous from these submissions whether South seeks to continue this
action or to voluntarily withdraw it. Regardless of his intent, however, it is clear that South has
not met the conditions for reopening set in the Court’s October 31, 2018, Order—specifically, he
has not submitted a proposed amended complaint that addresses the deficiencies that resulted in
the dismissal of the original Complaint. (See ECF No. 7.) Even if South’s allegations in his
recent letters formed part of a proposed amended complaint, they do not correct the original
deficiencies, but, instead, seek to raise new factual allegations regarding subsequent events. (See
ECF Nos. 10–11.) Furthermore, South has still not included any factual allegations to suggest
that defendants refused to treat him or otherwise prevented or unduly delayed treatment. (See
ECF Nos. 10–11.) Accordingly, to the extent that South seeks voluntary dismissal of his action,
that request is granted, and, to the extent South seeks to amend his Complaint, that request is
denied. As to South’s requests in his most recent letter, (ECF No. 11), it is the role of this Court
to determine what medical treatment South can or should receive.

DATED: April 30, 2019

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

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