NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

_______________________________

 :

RAFAEL FONTANEZ, :

 : Civil Action No. 

Plaintiff, : 11-2573 (RMB)

 :

v. : 

 :

ABIGAIL LOPEZ et al., : MEMORANDUM OPINION

 :

Defendants. :

_______________________________:

 

This matter comes before the Court upon Rafael Fontanez’s

(“Plaintiff”) filing of his amended complaint, see Docket Entry No.

9. Plaintiff’s original complaint was received on May 5, 2011. 

See Docket Entry No. 1. The original complaint arrived accompanied

by Plaintiff’s duly executed in forma pauperis application. See

Docket Entry No. 1-1.

On July 12, 2011, this Court issued an order and accompanying

opinion which: (a) granted Plaintiff in forma pauperis status for

the purposes of the instant matter; and (b) dismissed Plaintiff’s

claims, with some challenges being dismissed with prejudice and

others with leave to amend. See Docket Entries Nos. 2 and 3.

In response, Plaintiff filed not an amended pleading but a

motion raising, mostly, allegations against this Court and, in

addition, asserting new challenges, some of which were in

contradiction with those stated in the original complaint. See

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Docket Entry No. 4. The Court denied Plaintiff’s motion and, out

of abundance of caution, allowed Plaintiff additional time to file

his amended pleading. See Docket Entry No. 6.

The instant pleading followed. See Docket Entry No. 9. The

amended pleading requested this Court to disregard Plaintiff’s

prior filings for all purposes other than the statute of

limitations, and to address Plaintiff’s substantive challenges

raised in the instant pleading entirely anew. See id. The

facts asserted by Plaintiff in his amended pleading are as

follows:

A. July 12, 2009:

1. Plaintiff, playing a game of softball, is hit by a ball thrown

by one of the inmates. The ball hits Plaintiff’s right arm,

causes pain and an instantaneous swelling ensues. Plaintiff

becomes unable to move his lower right arm or his right hand. 

2. A few minutes later, Plaintiff is taken to the prison medical

department and seen by Defendant Burton (“Burton”), a nurse. 

Burton visually examines Plaintiff’s arm from a few feet away

and concludes that the swelling must be a normal effect of the

injury. Burton informs Plaintiff that the swelling would

continue increasing for awhile, spreading through the arm and

hand. Burton directs Plaintiff to apply ice on the injured

area for at least two days, gives Plaintiff a large amount of

pain killers and issues him a three-day release from work

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duties. When Plaintiff inquires whether an x—ray should be

taken, Burton concludes that no such measure is needed. 

Burton closes that visit by directing Plaintiff to return to

the medical department if the pain and inability to move the

arm persist for more than three days.

B. July 15, 2009:

1. Plaintiff’s condition has worsened in the sense that the

swelling and pain have increased, and Plaintiff cannot raise

his right arm entirely. 

2. Plaintiff comes to the medical department and learns that,

since it is a Wednesday, no medical appointments are

conducted. Plaintiff, however, approaches Defendant Elias

(“Elias”), a doctor. Elias informs Plaintiff that no medical

appointments are made on that day and directs Plaintiff to

return the next day. Plaintiff, however, insists on Elias

taking a look at Plaintiff’s arm. Accordingly, Elias takes a

look and tells Plaintiff that an x-ray should have been

conducted on the day of the injury. Making an emergency

exception to the no-appointments-on-Wednesday rule, Elias

directs an immediate x-ray of Plaintiff’s right arm and

determines that Plaintiff’s bone was fractured. 

Correspondingly, Elias places a cast on Plaintiff’s right arm

and informs Plaintiff that the cast has to be worn for 4 to 6

week and that Plaintiff should be examined by an orthopedic

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specialist. 

C. July 30, 2009:

The swelling of Plaintiff’s arm has reduced, and the cast has

become loose. Plaintiff keeps checking the list of

appointments with an orthopedic specialist, expecting to be

called for such appointment the latest by August 6, 2009,

because Elias mentioned that date as the later option of the

date of possible appointment.

D. August 6, 2009:

Plaintiff, not being placed on the list of inmates to be seen

by an orthopedic specialist, shows up at the medical

department and learns that the next round of orthopedic

specialist appointments would take place by the end of August

2009. Plaintiff approaches Elias complaining about the delay

and the cast becoming loose on his arm; Elias places Plaintiff

for August 11, 2009, x-ray in order to determine whether the

fractured bone healed and if a continued wearing of the cast

is needed. 

E. August 9, 2011:

Another x-ray is taken; it reveals that the healing is in

progress but the bone has not fully healed. Plaintiff is

directed to continue wearing the cast, as it was originally

applied, for two more weeks. Elias informs Plaintiff that he

will be seen by an orthopedic specialist on August 27, 2009. 

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F. August 19, 2011:

Plaintiff, who has begun noticing a rash around the area

covered by cast and feels itching, removes the cast and

observes an even more noticeable rush in the area covered by

the cast and, in addition, a large lump in the area of the

fraction.

G. August 20, 2009:

Elias examined Plaintiff and explains to him that the

deformity of tissue is a natural part of the healing process

and prescribes Plaintiff anti-rush cream. Plaintiff requests

an additional examination, expressing concern that the bone

got misaligned at the fracture point. Another x-ray is taken,

and a misalignment is detected. Elias places a detachable

cast on Plaintiff’s arm to be worn until Plaintiff is seen by

an orthopedic specialist and informs Plaintiff that the

orthopedic specialist would have to operate Plaintiff’s arm in

order to realign the misaligned bone. In response to

Plaintiff’s inquiry as to whether the misalignment could have

been avoided, Elias responds by stating that he, i.e., Elias,

committed an error in medical judgment and points out that, in

Elias’ prior experiences, placement of a cast, as the one that

has been worn by Plaintiff, usually prevented misalignment. 

H. August 21, 2009:

Plaintiff places a request for his medical records. Examining

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those records, Plaintiff learns that his examination by an

orthopedic specialist was pending approval until Elias could

conduct more clinical tests and detect information warranting

such examination.

I. August 27, 2009:

Plaintiff is examined by an orthopedic specialist. The

orthopedic specialist concludes that a surgery is needed to

correct the misalignment. The orthopedic specialist’s

conclusions are made harder to reach due to temporary

misplacement of some of Plaintiff’s prior medical records. 

J. September 18, 2009:

Plaintiff has begun noticing a “mild scraping sound from his

right elbow every time the elbow would bend.” Plaintiff,

therefore, is seen by Elias who directs Plaintiff to bend the

elbow slowly and to inform the orthopedic specialist about

that “scraping sound” development.

K. October 15, 2009:

Plaintiff’s arm is taken to a hospital and gets operated; his

arm is placed in a splint.

L. October 16, 2009:

Plaintiff is returned to the prison; Elias instructs Plaintiff

to return on October 19, 2009, to have the sutures examined. 

M. October 29, 2009:

Plaintiff is examined by the orthopedic specialist and

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complains about the pain in his wrist. The orthopedic

specialist opines that the pain might be a result of a

cartilage damage and informs Plaintiff that another x-ray

would be taken in a month. He directs Plaintiff to continue

wearing the splint and recommends physical therapy exercises. 

N. November 19, 2009:

Plaintiff has an analogous examination by another orthopedic

specialist. 

O. December 8, 2009:

Plaintiff is examined by Elias. Plaintiff states his concern

that a certain protruding point on the arm might be indicative

of a connecting screw that went through the entire bone and

created a basis for bone tissue to develop around that screw. 

Elias schedules an x-ray to address Plaintiff’s concerns.

P. December 29, 2009:

Another x-ray is taken and reveals certain complications in

the healing of Plaintiff’s bone.

Q. January 26, 2010:

Plaintiff is examined by a physician’s assistant whose medical

conclusions and style of interactions Plaintiff finds

unpleasant. Plaintiff, therefore, seeks and obtains an

examination from Defendant Lopez (“Lopez”), a clinical

director. Lopez scheduled Plaintiff for another x-ray and

examination by an orthopedic specialist. Lopez explains to

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Plaintiff that his examination by an orthopedic specialist was

approved after Elias provided Lopez with clinical data of

Plaintiff’s injury showing that such examination was needed.

R. January 28, 2010:

Plaintiff is examined by an orthopedic specialist, who 

informs Plaintiff that the injury has fully healed but a

certain range of movements might be proven to be lost. The

orthopedic specialist prescribes physical therapy. 

S. February 9, 2010:

Plaintiff, who suffers pain practicing the physical therapy

and still continues having certain movement limitations, seeks

medical attention. He is scheduled for a medical appointment.

T. February 17, 2010:

Plaintiff is seen by a doctor who opines that Plaintiff’s full

recovery might be achieved in only five to ten years. The

doctor recommends that Plaintiff not to lift any weight in

excess of 20 pounds.

U. July 29, 2010:

Plaintiff is examined by an orthopedic specialist who

prescribes continued physical therapy and directs reexamination in order to determine when the fixation plate and

screws holding it could be removed.

V. November 18, 2010:

Plaintiff is reexamined by the orthopedic specialist who

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recommends removal of the fixation plate and screws while

opines that certain pains and limitations in movement might

continue after said removal.

W. June 22, 2011:

Plaintiff undergoes a surgery in order to remove the fixation

plate and screws.

X. September 9, 2011:

Plaintiff is seen by a doctor. Plaintiff complains to the

doctor that, due to his injury, he is unable to conduct his

usual exercise routine; Plaintiff states that he lost 17

pounds over the two years and two months since the injury. 

Plaintiff speculates that al these 17 pounds might consist of

only muscle tissue. The doctor prescribes Plaintiff a

nutrition supplement and schedules an x-ray.

Y. September 22, 2011, and October 13, 2011:

Surgical staples are removed. Additional x-rays are taken.

Plaintiff continues complaining of pain and limited range of

movement. Therefore, an MRI is directed.

Z. November 22, 2011, and December 1, 2011:

An MRI is taken, it reveals arthritis in the area affected by

the injury.

Docket Entry No. 9, at 9-29.

Naming Burton, Elias, Lopez and Dr. Sulayman (“Sulayman”) as

defendants in this action, Plaintiff’s amended complaint asserts

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claims under Bivens v. Six Unknown Named Agents, 403 U.S. 388

(1971), and under the Federal Tort Claims Act (“FTCA”). See Docket

Entry No. 9, at 4-6. Plaintiff maintains that he filed his first

FTCA claim on September 27, 2009, seeking $100,000 in damages, and

his second FTCA claim on March 1, 2010, seeking $10,000,000 in

damages. Plaintiff asserts that he did not receive any response to

his filings. See id. at 7. He now seeks $3,500,000 in

compensatory and punitive damages.

Because this Court already extensively detailed to Plaintiff

the pleading requirement and governing substantive tests, see

Fontanez v. Lopez, 2011 U.S. Dist. LEXIS 74856 (D.N.J. July 12,

2011), another detailed recital of the same is unnecessary. 

Therefore, the Court will focus its attention only on those points

that are controlling for the purposes of the sua sponte review at

hand.

A. Bivens challenges:

As this Court already explained to Plaintiff, claims based on

pure respondeat superior theory are not cognizable for the purposes

of Bivens challenges against individual defendants. See id. at

*14-15. Here, Plaintiff’s amended complaint asserts that Sulayman

is liable to Plaintiff because “[h]is duties and responsibilities

encompass clinical oversight for primary care providers,

consultation with those providers, training and m[o]ntoring of

those providers,” Docket Entry No. 9, at 5, and Plaintiff’s amended

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pleading mentions Sulayman only twice (that is, in terms of factual

allegations): (a) when Sulayman directed that Plaintiff, although

not being placed on the list of the inmates to be seen by an

orthopedic specialist, would still be seen by such specialist on

August 27, 2009, see id. at 17; and (b) that Sulayman was

technically designated, in Plaintiff’s medical paperwork, as a

primary care physician, but no contact, meetings, treatment or any

other form of interactions took place between Sulayman and

Plaintiff. See id. at 30. Since the amended complaint makes it

abundantly clear that Sulayman had no personal involvement in

Plaintiff’s situation except for aiding Plaintiff in obtaining an

examination by an orthopedic specialist on an emergent basis (which

aid cannot qualify as a wrong of any kind), Plaintiff’s challenges

against Sulayman are subject to dismissal as being based solely on

the respondeat superior theory.1

Plaintiff’s amended complaint also asserts that Defendant 

Lopez is liable to Plaintiff because Lopez conditioned her

authorization for Plaintiff’s examination by an orthopedic

specialist upon Elias providing her with clinical information

showing that Plaintiff needed such examination. That allegation

does not assert deliberate indifference on the part of Lopez,

since Plaintiff had no constitutional right in being examined by

1

 In fact, Plaintiff’s allegations do not suggest even a

negligence claim against Sulayman. 

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a medical professional of his choice. Being now armed with 20/20

hindsight, Plaintiff maintains that the very fact that he

eventually was shown to be in need for assistance of an orthopedic

specialist must necessarily mean that he was entitled to such

assistance right upon his injury. However – until and unless

Lopez got clinical information from Elias verifying Plaintiff’s

need for assistance of an orthopedic specialist – she could not

have been deliberately indifferent to what, at that juncture, was

merely a hypothetical danger. See, e.g., Dawson v. Frias, 2010

U.S. Dist. LEXIS 30513 at *8 (D.N.J. Mar. 30, 2010) (“speculation

as to what might or might not happen in the future” cannot serve

as a basis for a valid claim) (citing Rouse v. Pauliilo, 2006 U.S.

Dist. LEXIS 17225 (D.N.J. Apr. 5, 2006) (dismissing speculative

claim as to hypothetical future development and citing Kirby v.

Siegelman, 195 F.3d 1285 (11th Cir. 1999)); Pilkey v. Lappin, 2006

U.S. Dist. LEXIS 44418, at *45 (D.N.J. June 26, 2006)

(“Plaintiff’s [anxiety paraphrased as his claim of] fail[s] to

state a claim upon which relief may be granted”); Patterson v.

Lilley, 2003 U.S. Dist. LEXIS 11097 (S.D.N.Y. June 20, 2003)

(defendants could only be found liable to violations ensuing from

an existing condition, not to a speculative future injury). 

Therefore, Plaintiff’s challenges against Lopez, be they based on

a respondeat superior theory or on Plaintiff’s assertion that

Lopez conditioned Plaintiff’s examination by an orthopedic

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specialist upon Elias’ furnishing her with clinical information

indicating need for such examination, are facially without merit

and must be dismissed. Indeed, Plaintiff’s allegations verify

that – once Lopez obtained such clinical information from Elias –

Lopez scheduled Plaintiff for an examination by the orthopedic

specialist. Correspondingly, Plaintiff’s allegations do not

suggest even a negligence claim against Lopez. 

Plaintiff’s allegations against both Burton and Elias state

a nearly text-book chain of negligence claims, since Plaintiff

asserts nothing but errors in medical judgment and tardiness in

preparation of Plaintiff’s clinical data. If anything,

Plaintiff’s amended complaint verifies that Plaintiff was treated

on a constant, usually weekly and often daily, basis. There is a

difference between: (a) “denial” of medical care; and (b) failure

to provide “adequate” care. For the purposes of a claim of

constitutional magnitude, the “deliberate indifference” test

cannot be met by an accumulation of purely negligence claims. See

Estelle, 429 U.S. at 106 (allegations of negligent treatment do

not trigger constitutional protections because “[m]edical

malpractice does not become a constitutional violation merely

because the victim is a prisoner”); Spruill v. Gillis, 372 F.3d

218, 235 (3d Cir. 2004) (allegations of medical malpractice or

mere disagreement as to proper medical treatment are insufficient

to establish a constitutional violation). 

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Since Plaintiff already had an opportunity to replead his

Bivens challenges, and stated the facts of these claims in great

detail, allowing Plaintiff another opportunity to replead his

Bivens allegations would be futile. Correspondingly, this Court

is constrained to dismiss Plaintiff’s Bivens claims with

prejudice. 

B. FTCA challenges:

As for his FTCA claims, Plaintiff’s amended pleading did not

name the United States as a defendant; rather, the amended

complaint named Burton, Elias, Lopez and Dr. Sulayman as defendants

for the purposes of Plaintiff’s FTCA challenges. Since it is

apparent from the face of the amended pleading that such

designation was made as a result of Plaintiff’s good faith

confusion as to the workings of the FTCA and the identity of proper

FTCA defendant, this Court will direct to the Clerk to add the

United States as a defendant in this matter and to terminate

Burton, Elias, Lopez and Dr. Sulayman as individual Defendants.

The Court now turns to the substance of Plaintiff’s FTCA

challenges based on the actions of Burton, Elias, Lopez and Dr.

Sulayman, i.e., the persons whom the Court presumes – without

making a factual finding to that effect – to be agents of the

United States within the meaning of the FTCA law.2

2

 Analogously, the Court presumes, without making a factual

finding to that effect, that Plaintiff’s FTCA challenges were

duly exhausted in all respects, including the “sum certain”

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As detailed supra, Plaintiff’s allegations against Lopez and

Dr. Sulayman do not assert any tortious conduct, including any acts

of negligence. Indeed, the pleading at bar makes it abundantly

clear that Dr. Sulayman’s “conduct” was limited to his holding of

a supervisory position, his being listed as Plaintiff’s official

physician on Plaintiff’s medical paperwork, and his arranging

Plaintiff’s unscheduled, emergent meeting with an orthopedic

specialist. However, the sole “supervisor” that could be liable

for the purposes of an FTCA claim, is the United States, and that

“supervisor” might be liable solely on the basis of the actual

tortious actions undertaken by agents of the United States in their

agency capacity. Here, even if Dr. Sulayman was a United States

agent, Plaintiff’s FTCA claims necessarily fail because Dr.

Sulayman committed no tortious conduct against Plaintiff. Thus,

this line of Plaintiff’s FTCA challenges must be dismissed.

Analogously, FTCA Plaintiff’s claims based on Lopez’s conduct

are facially meritless since, even if she were acting as a United

States agent, Lopez’s conduct could not be deemed tortious. Her

directive to Elias to supply her with Plaintiff’s medical

information (in order to determine whether Plaintiff’s healing was

progressing well or an examination by an orthopedic specialist was

needed) did not violate her duty of care. 

In contrast, Plaintiff’s FTCA allegations based on Burton and

aspect.

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Elias’ conduct meet the Iqbal plausibility standard for the

purposes of the FTCA. Therefore, the Court will direct service on

the United States with regard to these two line claims. 

Conclusion

 An appropriate Order accompanies this Memorandum Opinion.

s/Renée Marie Bumb 

RENÉE MARIE BUMB

United States District Judge

Dated: November 20, 2012

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