NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________ No. 10

- 4736

___________ ALEX MICHEL , Appellant

v. DENNIS LEVINS ON, Atlantic County Executive; GARY MERLIN, Warden Atlantic Count y Jail; JOHN DOE, Director (head) of The Center For Family Guedence Health Systems;

NURSE MARIE; NURSE KAREN

____________________________________ On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 0 7

- cv
- 0 1466 ) District Judge: Honorable Noel L. Hillman

____________________________________ Submitted Pursuant to Third Circuit LAR 34.1(a)

July 12, 2011 Before: BARRY, JORDAN AND GARTH , Circuit Judges

(Opinion filed : July 12, 2011 )

___________ OPINION

___________ PER CURIAM
Alex Michel appeals from an order of the District Court granting summary judgment on his claims that he suffered emotional injury when he was allegedly exposed2

to Tuber culosis (“TB”) while incarcerated at the Atlantic County Justice Facility (“ACJF”)

. 1 For the following reasons, we will affirm

. I.
Michel is one of numero u s inmates/former inmates alleging violations of federal
and state law in connection with a TB outb reak at ACJF originating with the
incarceration of Mateen Dennis

. 2 On October 7, 2006, Dennis was admitted to ACJF and given a medical screening. He informed ACJF medical staff that he had previously been
treated for TB but “ran out of meds.” Dennis was given a test for TB, which was read as negative, released into the general population , and housed in an area of the facility known

as F Left. On October 27, 2006, Dennis was taken to a nearby hospital where he was diagnosed with and treated for active TB ; he was returned to the jail once doctors determined that he was no longer contagious. Upon learning that Dennis had active TB, ACJF worked with the Atlantic County Department of Health to test inmates determined
to be at risk because they were housed ne ar Dennis. Inmates found to have been exposed were taken to the hospital or offered other treatment based on the extent of their
exposure.

1 TB is an i nfectious disease caused by a bacteria, Mycobacterium Tuberculosis. Individuals with active TB will show symptoms of the disease while those with latent TB are infected but asymptomatic. An individual with latent TB has a small possibility of developing active TB at a later point in time

. (Stipulated Statement of Material Facts ¶ 3 .)

2 Michel was incarcerated at ACJF at the time he filed the instant lawsuit but has3

Several lawsuits stemming from the outbreak were filed against the ACJF and other defendants by inmates seeking dam ages based on their exposure or fear of exposure to TB. Those cases brought by plaintiffs who developed active or latent TB as a result of their exposure to Dennis were settled. Michel, however, i s among those plaintiffs who neither developed active TB o r latent TB nor sustained any physical injury as a result of
defendants‟ handling of the situation

. Instead, Michel sought to recover compensatory and punitive damages for the emotional injury he allegedly sustained due to defendants‟ failure to protect h im from exposure to TB. His case was one of several consolidated
with the lead case of Brown v. County of Atlantic , Civil Action No. 07

- 0824. Pro bono counsel was assigned to represent those plaintiffs who desired counsel, including Michel

. D efendants m oved for su mmary judgment against those plaintiffs whose claims
ha d not been settled or dismissed

– all of whom sought recovery so lely for emotional injury

– and organized their motion by separating the remaining plaintiffs into one of several categories. Michel, through counsel, stipulated to his inclusion in the category of
inmates who had been housed in F Left, but not with Dennis during a time when he was contagious

. It is undisputed that inmates in that category were never exposed to TB.
The Distr ict Court granted summary judgment , issuing one opinion that disposed
of the claims of all remaining plaintiffs . T he District Court held that : (1) plaintiffs‟ federal constitutional claims were barred by the Prison Litigation Reform Act and

since been released.4

applicable law pertaining to 42 U.S.C. § 1983 ; (2) Michel an d similarly situated plaintiffs
could not recover on their state law claims because they had never been exposed to TB , rendering any fear of exposure unreasonable ; (3) even if those plaintiffs had somehow
been exposed, they lacked any proof of emotional damages; and (4 ) there was no basis for plaintiffs‟ punitive damages claims. T he District Court recognized that Michel had
submitted a letter in support of his claims, but concluded that nothing in the letter

es tablished that he was exposed to TB from being housed with Dennis while Dennis was contagious or “specifically explain [ed] the emotional injury he suffered. ” (June 11, 2010 Mem. 12 n.9.) Michel timely appealed to this Court

. II. The District Court had j urisdiction over Michel‟s complaint pursuant to 28 U.S.C. §§ 1331 & 1367. We have jurisdiction under 28 U.S.C. § 1291. 3 We review a district court‟s grant of summary judgment de novo. Pichler v. UNITE , 542 F.3d 380, 385 (3d Cir. 2008). Summary judgment is appropriate “if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” 4 Fed. R.

3 The District Court‟s order granting summary judgment was not appea lable until the District Court modified that order by disposing of the cross

- claims remaining in the litigation. See Owens v. Aetna Life & Cas. Co. , 6 5 4 F.2d 218, 220 n.2 (3d Cir. 1981). Since Michel filed his notice of appeal within 30 days of the Distr ict Court‟s modifie d order, his appeal is timely.

4 The text of Rule 56 changed as of December 1, 2010, but we will apply the5

Civ. P. 56(c)(2) (2 010) . We must “view all evidence and draw all inferences in the light
most favorable to the non

- movi ng party,” Startzell v. City of Phila. , 5 33 F.3d 183, 192 (3d Cir. 2008), and may affirm on any ground supported by the record. Berardi v.
Swanson Mem‟l L odge No. 48 , 920 F.2d 198, 201

- 02 (3d Cir. 1990). On appeal, Michel argues that the District Court failed to consider his allegations that he was exposed to Bernard Snead ( who had apparently become infected by Dennis )
but was not tested for TB despite his requests to see the doctor

. Michel therefore suggests that he was placed in the i ncorrect category of inmates since he was, in fact, exposed to TB , and contends that the District Court simply lumped him in with other plaintiffs because of the consolidate d nature of the proceedings

. Defendants respond that
even if Michel should have been classified with those inmates exposed to TB as a result
of their incarceration in F Left with Dennis

– as was another plaintiff who alleged exposure to an individual infe cted by Dennis

– there is still no basis for his claims. Specifically, t hey argue that summary judgment was warranted because Michel failed to
submit sufficient evidence of emotional injury to survive summary judgment

. S ummary judgment was warranted o n Michel‟s state law claims for emotional
distress regardless of whether the District Court placed him in the proper category

. New Jersey precludes recovery for emotional injuries absent physical injury unless the plaintiff
can establish “emotional distre ss „so severe that no reasonable man could be expected to

version of the rule in effect at the time the District Court granted defendants‟6

endure it.‟” Schillaci v. First Fid. Bank , 709 A.2d 1375, 1380 (N.J. Super. Ct. App. Div. 1998) (quoting Buckley v. Trenton Sav. Fund Soc‟y , 544 A.2d 857, 865 (N.J. 1988)) (internal quotations omit ted); see also Gendek v. Poblete , 654 A.2d 970, 973 (N.J. 1995).
Furthermore , a plaintiff who has not been physically injured but who seeks damages for emotional distress based on exposure to disease must establish “a reasonable concern that
he or she has an enhanced risk of future disease.” Ironbound Health Rights Advisory
Comm‟n v. Diamond Shamrock Chem. Co. , 578 A.2d 1248, 1250 (N .J. Super. Ct. App. Div. 1990); s ee also Williamson v. Waldman , 696 A.2d 14, 23 (N.J. 1997) (“Emotional

distress damages mus t be based on the fears experienced by a reasonable and well

informed person.”). It is undisputed that Michel was never exposed to Dennis while Dennis was contagious. Furthermore, t here are no affidavits nor any other evidence in the record establishing t hat Michel wa s exposed to Snead while Snead was allegedly infected

. Accordingly, Michel has not established that he was actually exposed to TB or that his
TB

- related concerns were reasonable

. Additionally, Michel has not produced sufficient evidence of severe and
substantial distres s to create a jury question

. The only evidence of Mich el‟s alleged emotional injury is a January 24, 2007 medical request slip seeking a chest x

- ray “due to TB concern,” and an April 11, 2007 medical request slip seeking m ental health treatment

motion.7

because he was experiencing insomnia, anxiety , and nightmares. Yet d espite his claims
of anguish and distress, Michel acknowledges that he never experienced “any problem in [his] ability to function on a daily basis or in [his] abil ity to carry out [his] every

- day activities as a result of any alleged mental or emotional injuries.” (Stipulated Statement
of Material Facts ¶ 21.) We conclude that Michel‟s concern and anxiety

– the extent and duration of which are unspecified

– are in sufficient as a matter of law to warrant
recovery
. 5 See Buckley , 544 A.2d at 865 ( evidence of “aggravation, embarrassment, an unspecified number of headaches, and loss of sleep” did not constitute severe emotional distress sufficient to support recovery o n intentional infliction of emotional distress );
Trisuzzi v. Tabatchnik , 666 A.2d 543, 548 (N.J. Super. App. Div. 1995) (“ nightmares, anticipatory anxiety and feelings of guilt ” that did not significantly interfere in plaintiff‟s life did not equate to sev ere distress)

. We also conclude that the District Court correctly granted summary judgment on
Michel‟s federal constitutional claims to the extent he sought compensatory damages

.

5 In his brief, Michel suggests that he cannot establish a medical basis for his injury because ACJF staff did not respond to his requests for treatment. But our rejection of his claims is not based on the lack of medical records. Instead, it is apparent that the symptoms for which Michel sou ght treatment and his “TB concern” do not reflect that he was suffering from the type of severe mental distress compensable under New Jersey law. See Decker v. Princeton Packet, Inc. , 561 A.2d 1122, 1129 (N.J. 1989). We also note that, to the extent Mich el was pursuing medical malpractice claims, he failed to file an affidavit of merit in accordance with New Jersey law. See N.J. Stat. Ann. § 2A:53A

- 29; Chamberlain v. Giampapa , 210 F.3d 154, 160

- 61 (3d Cir. 2000).8

The PLRA states that “[n] o Federal civil action may be brought by a pri soner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a pri or showing of physical injury.” 42 U.S.C. § 1997e(e); see also
Mitchell v. Horn , 318 F.3d 523, 533 (3d Cir. 2003)

. Mic hel was incarcerated at ACJF
when he filed suit and stipulated that his claims for compensatory damages are limited to recovery for “mental or emotional injury.” (Stipulated Statement of Material Facts ¶ 12 .) Accordingly, § 1997e(e) bars him from recoveri ng compensatory damages on his federal
claims

. See Herman v. Holiday , 238 F.3d 660, 666 (5th Cir. 2001) (holding that § 1997e(e) barred damages claims based on emotional distress stemming from fear of asbestos exposure) ; Davis v. Dist. of Columbia , 158 F. 3d 1342, 1349 (D.C. Cir. 1998) (holding that § 1997e(e) barred claims for emotional injury despite physical manifestations of weight loss, appetite loss, and insomnia). Indeed, Michel appears to
have conceded as much in his opposition to defendants‟ motio n for summary judgment. (Pls.‟ Opp‟n 6 (“generally” agreeing with defendants‟ discussion of the PLRA and arguing only that state law claims and punitive damages claims are not barred).) Although § 1997e(e) d oes not preclude Michel from seeking punitive damages on his federal claims, Mitchell , 318 F.3d at 533, we agree with the District Court that there is nothing in the summary judgment record that would justify such recovery. 6 A plaintiff is

6 Section 1997e(e) also does not bar cl aims for nominal damages. See Allah v. Al

Hafeez , 226 F.3d 247, 251 (3d Cir. 2000). Michel does not request nominal damages in his complaint, but we have recognized that nominal damages need not9

not entitled to damages on a § 1983 claim for a deprivation o f constitutional rights absent a showing that a state official‟s conduct “is shown to be motivated by evil motive or intent” or “involves reckless or callous indifference to the federally protected rights of
others.” Smith v. Wade , 461 U.S. 30, 56 (1983). Even assuming that defendants exhibited negligence or gross negligence in connection with the TB outbreak, there is no evidence from which to infer that they acted maliciously or recklessly. See Savarese v. Agriss , 883 F.2d 1194, 1205 (3d Cir. 1989) (ob serving that “punitive damages in general represent a limited remedy, to be reserved for special circumstances”). In sum, we conclude that the District Court properly granted summary judgment
on Michel‟s claims. We will therefore affirm.

be pled. Id. However, nothing in Michel‟s opposition refl ects that he seeks nominal damages , nor has Michel made any suggestion on appeal that the District Court erred in disregarding such a claim. Accordingly, Michel has waived the issue by failing to pursue it. See Timson v. Sampson , 518 F.3d 870, 874 (11th Cir. 2008) (per curiam). For the same reasons, we conclude that Michel has waived any claims based on the New Jersey constitution

.