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NOT FOR PUBLICATION [Dkt. No. 36] 

IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY 

CAMDEN VICINAGE 

BORIS SHUSTER, 

Plaintiff, 

v. 

DR. ROBERT CABANAS, DR. ABIGAIL 

LOPEZ DE LASALLE,IBE CHIGOZIE, 

P.A., LIEUTENANT KENNETH PERNELL, 

and UNITED STATES OF AMERICA, 

Defendants. 

Civil Action No. 

11-1764(RMB/JS) 

OPINION 

Appearances: 

Charles P. Montgomery 

Earp Cohn P.C. 

20 Brace Road, 4th Floor 

Cherry Hill, NJ 08034 

 Attorneys for the Plaintiff 

Colette R. Buchanan 

Office of the United States Attorney 

970 Broad Street, Suite 700 

Newark, NJ 07102 

 Attorneys for Defendants 

Bumb, UNITED STATES DISTRICT JUDGE: 

 

 Plaintiff Boris Shuster (“Plaintiff”) brings this suit 

against individual defendants Dr. Robert Cabanas (“Cabanas”), 

Dr. Abigail Lopez de LaSalle (“LaSalle”), Ibe Chigozie (“Ibe”), 

P.A., and Lieutenant Kenneth Pernell (“Pernell”) (collectively, 

the “Individual Defendants”) and the United States of America 

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(collectively, the “Defendants”). Defendants have moved to 

dismiss the claims and, in the alternative, summary judgment. 

For the reasons that follow, the Defendants’ motion is GRANTED 

in part and DENIED in part. 

I. Background

A. Factual

Plaintiff is a former inmate at the Federal Correctional 

Institution at Fort Dix, New Jersey (“FCI”). [Docket No. 2, 

First Amended Complaint (“FAC” or the “Complaint”) at ¶ 18]. 

 On December 5, 2008, Defendant Cabanas, a dentist and 

Captain in Public Health Services, performed a dental procedure 

to remedy the plaintiff’s dental pain. Plaintiff alleges that 

Cabanas either: (1) failed to properly supervise the inmates who 

served as his assistants and were responsible for sterilizing 

his dental instruments; or (2) Cabanas was negligent in 

performing the actual operation. (FAC at ¶¶ 19, 42). Plaintiff 

alleges that, as a consequence of the procedure, he experienced 

post-operative pain and swelling necessitating hospitalization 

on December 17, 2008. (FAC at ¶¶ 21-22). There, the Plaintiff 

was diagnosed with an infection and had two teeth extracted. 

(FAC at ¶ 23). 

 Plaintiff was discharged from the hospital and returned to 

FCI on January 5, 2009. [FAC at ¶ 30]. LaSalle, the medical 

coordinator of FCI, recommended that Plaintiff be housed in 

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sanitary conditions and treated for 19 days with intravenous 

antibiotic. (FAC at ¶¶ 29-30). According to LaSalle, the 

observatory room was the “only place the necessary sanitary 

conditions could be assured” and LaSalle ordered that Plaintiff 

be held in the observatory room. (FAC at ¶ 30). LaSalle’s 

directive was followed and Plaintiff was placed in the 

observatory room. (FAC at ¶ 30). However, after one night in 

the observatory room, Defendant Pernell, a Lieutenant at FCI, 

ordered the plaintiff moved to a disciplinary room in the 

Special Housing Unit (“SHU”). (FAC at ¶ 31). Plaintiff alleges 

that this room was “dirty,” that “a constant dust cloud blew 

into the cell from the vents” and that “it stank of dried 

urine.” (FAC at ¶ 31). Although the Plaintiff petitioned 

Defendant LaSalle for relocation back to the observatory room, 

he received no response and continued to be lodged in the SHU. 

(FAC at ¶ 31.) 

 Plaintiff experienced headaches and vomiting during his 

confinement and also appears to have requested morphine from 

Defendant Ibe, a physician assistant, to assist in pain 

management. (FAC at ¶¶ 32, 49). While the Plaintiff continued 

to complain of nausea and difficulty eating, the medical staff 

took no action. (FAc at ¶¶ 34-35). In the interim, the 

Plaintiff alleges that his i.v. was not cleaned until January 

13, 2009, roughly two weeks from the moment of his discharge. 

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(FAC at ¶ 36). On February 5, 2009, the medical staff discovered 

that the i.v. antibiotics had eaten at his stomach lining. (FAC 

at ¶ 37). And, on June 8th, 2009, the Plaintiff was examined by 

an oral surgeon as a follow up for his infection and it was 

determined that the Plaintiff would require years of 

rehabilitation. (FAC at ¶ 38). 

 B. Procedural

On April 5, 2010, the Plaintiff filed a claims notice under 

the Federal Tort Claims Act with the Federal Bureau of Prisons 

(“BOP”). [Docket No. 43]. In the notice, Plaintiff alleged 

that: (1) he had suffered physical injuries as a result of 

“deprivation of medical care, negligence, mal-practice, and 

deliberate indifference to [his] medical needs under the . . . 

Federal Tort Claims Act”; (2) LaSalle was deliberately 

indifferent to his medical needs; (3) he complained of pain to 

Ibe of pain, but his complaint was ignored; (4) he was moved, by 

Pernell, to SHU despite the fact that he was supposed to remain 

in the observatory because it was a clean and sterile 

environment; (5). Id. On October 1, 2010, Regional Counsel for 

BOP denied Plaintiff’s tort claim and indicated that Plaintiff 

was free to pursue his claim in federal district court. 

Plaintiff subsequently filed this action. 

In this action, Plaintiff’s alleges that: (1) the 

Individual Defendants violated Plaintiff’s Eight Amendments 

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rights by exercising deliberate indifference to Plaintiff’s 

serious medical needs and are liable under Bivens v. Six Unknown 

Fed. Narcotics Agents, 403 U.S. 388 (1971); and (2) that the 

United States is liable for medical malpractice under the 

Federal Tort Claims Act. Defendants have moved to dismiss under 

Federal Rule of Civil Procedure 12(b)(6) and, in the 

alternative, for summary judgment. Defendants submitted 

extrinsic evidence in support of their motion. 

II. Standard

 Defendants moved for dismissal under Federal Rules of Civil 

Procedure 12(b)(1) and 12(b)(6) and, in the alternative, for 

summary judgment. Because Defendants submitted evidence in 

support of their motion, and that evidence was extrinsic to 

Plaintiff’s Complaint, this Court must treat Plaintiff’s motion 

for summary judgment if it is to consider any of the extrinsic 

evidence. See Fed. R. Civ. Pro. 12(d)(stating “if on a motion 

under Rule 12(b)(6) or 12(c), matters outside the pleadings are 

presented to and not excluded by the court, the motion must be 

treated as one for summary judgment.”); Johnson v. N.J. Dep’t of 

Corr., 2013 U.S. Dist. LEXIS 64853 (D.N.J May 7, 2013)(citing 

Reyes v. Sobina, 333 F. App’x 661, 662 n.1 (3d Cir. 2009)). This 

Court can, and will, do so here because Plaintiff was on notice 

that this Court could treat Defendants’ motion as one for 

summary judgment, given the Defendants’ submission of outside 

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materials and their invitation to treat their motion as one for 

summary judgment. Latham v. United States, 306 F. App’x 716, 

718 (3d Cir. 2009)(holding that court may do so, so long as the 

Plaintiff had sufficient notice that this Court could treat 

Defendants’ motion as one for summary judgment). 

 Summary judgment is appropriate only if the record shows 

that “there is no genuine issue as to any material fact and that 

the movant is entitled to judgment as a matter of law.” Fed. R. 

Civ. Pro. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 

(1986). A dispute is genuine if “the evidence is such that a 

reasonable jury could return a verdict for the non-moving 

party.” See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 

(1986). In evaluating the evidence, the Court must view the 

inferences to be drawn in the light most favorable to the 

nonmoving party. Curley v. Klem, 298 F. 3d 271, 276-77 (3d Cir. 

2002). However, the non-moving party must “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 Corp., 477 U.S. at 324. 

III. Discussion

Defendants have moved for dismissal of all of Plaintiffs’ 

claims. The Court first addresses the claims against the 

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Individual Defendants. It then addresses the claim against the 

United States. 

 A. Claims Against The Individual Defendants

Defendants argue that all of the claims against the 

Individual Defendants must be dismissed for failure to exhaust 

administrative remedies and on other grounds. Because this 

Court agrees that Plaintiff’s failure to exhaust administrative 

remedies bars these claims, it only addresses Plaintiff’s 

failure to exhaust and does not address Defendants’ other 

grounds for dismissal. 

Under the Prison Litigation Reform Act, inmates are 

required to exhaust their administrative remedies for all suits 

based on prison life, including Bivens suits. Perez v. Turner, 

2013 WL 3216147, at *7 (D.N.J. June 25, 2013). Exhaustion of 

administrative remedies requires the completion of a four step 

process: (1) an inmate must first attempt to informally resolve 

his claim; (2) if dissatisfied, he must then file a written 

request to the warden within 20 days of the event at issue; (3) 

if dissatisfied with the warden’s response, he must then appeal 

his complaint to the Regional Director of the Bureau of Prisons 

within 20 days of the warden’s response; and (4) if dissatisfied 

with the Regional Director’s response, he must then appeal to 

the BOP’s General Counsel within 30 days of the response. 

Paulino-Duarte v. U.S., No. 11-1764, 2003 WL 22533401, at *3 

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(S.D.N.Y. Nov. 7, 2003); 28 C.F.R. §§ 542.13, 542.14, 542.15. 

Extensions of time are permitted where the inmate demonstrates a 

valid reason for delay. 28 C.F.R. §§ 542.14 and 542.15. 

Here, Defendants argue, and Plaintiff does not dispute, 

that Plaintiff failed to follow the required administrative 

procedure. Plaintiff instead argues that: (1) he substantially 

complied with the administrative procedure; (2) his lack of 

compliance should be excused because, for a portion of the 

period at issue, until he was released from SHU, he was 

physically unable to avail himself of his administrative 

remedies; and (3) his lack of compliance should be excused 

because he erroneously believed, based on the BOP’s denial 

notice’s direction that he could pursue an action in federal 

district court, that he had exhausted his administrative 

remedies. With respect to Plaintiff’s first argument, while 

“compliance with the administrative remedy scheme will be 

satisfactory if it is substantial” Plaintiff’s compliance was 

not substantial. Nyhuis v. Reno, 204 F.3d 65, 77-78 (3d Cir. 

2000). Plaintiff failed to avail himself of the second and 

fourth steps in the exhaustion process. While courts have 

relaxed the administrative exhaustion requirement where the 

merits were “fully examined” by the “ultimate administrative 

authority,” Plaintiff’s claims never reached the BOP’s General 

Counsel’s Office, the ultimate authority in the administrative 

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process. See Camp v. Brennan, 219 F.3d 279, 281 (3d Cir. 

2000)(only excusing failure to administratively exhaust where 

allegations had been fully examined by “ultimate administrative 

authority”). Instead, Plaintiff’s sole administrative effort 

was his filing of the FTCA notice, which was fielded by the 

BOP’s Regional Counsel. That notice is insufficient to 

establish administrative exhaustion of a Bivens claim. Thrower 

v. United States, No. 12-4386, 2013 WL 2392823, at *2 n.3 (3d 

Cir. 2013)(finding that submission of FTCA claim, and response 

by Regional Counsel, was insufficient to satisfy administrative 

exhaustion requirement on Bivens claim). With respect to 

Plaintiff’s second argument, courts will excuse compliance where 

inmates are rendered “unavailable” due to physical incapacity. 

See Barrick v. PrisonHealth Systems/Medical, 335 F. App’x 153, 

155 (3d Cir. 2009). However, Plaintiff has failed to 

demonstrate why his alleged physical incapacity, which was 

limited in duration, should excuse his failure to follow the 

administrative process, given the regulations’ accommodation for 

delay for “valid reason.” With respect to Plaintiff’s third 

argument, while courts will excuse a failure to exhaust if 

“special circumstances . . . justify the prisoner’s failure to 

comply with administrative procedural requirements,” no such 

special circumstances are present here. Dicks v. Chow, 382 F. 

App’x 28, 31 (2d Cir. 2010). Plaintiff does not explain why he 

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failed to attempt to avail himself of administrative remedies in 

the period after his alleged physical incapacity had ended, but 

before he received the notice from the Regional Counsel that 

allegedly led him astray. Plaintiff does not contend that he 

was unaware of the proper administrative process. 

Accordingly, Plaintiff’s Bivens claims are DISMISSED based 

on Plaintiff’s failure to exhaust his administrative remedies. 

 B. Medical Malpractice Claim

Defendants raise two arguments for dismissal of Plaintiff’s 

medical malpractice claim. First, Defendants argue that 

Plaintiff has partially failed to exhaust this claim. Second, 

Defendants argue that Plaintiff has failed to establish the 

elements of a medical malpractice claim. The Court addresses 

each argument in turn. 

1. Exhaustion

Claims under the FTCA, like Plaintiff’s Bivens claims must 

be administratively exhausted prior to suit. Miller v. United 

States, No. 12-2745, 2013 WL 1397163, at *1 (3d Cir. Apr. 8, 

2013). A plaintiff may do so by presenting his claim to the 

appropriate federal agency and receiving a final denial in 

writing. Id. Notice is sufficient if the claimant gives the 

agency “written notice of his or her claim sufficient to enable 

the agency to investigate” and “places a value on his or her 

claim.” Roma v. United States, 344 F.3d 352, 362-63 (3d Cir. 

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2003). Plaintiffs may not, however, present “one claim to the 

agency and then maintain suit on the basis of a different set of 

facts.” Id. at 362. 

Here, Defendants do not dispute that Plaintiff followed the 

proper procedure by submitting a written notice to the Regional 

Counsel. Rather, they argue that Plaintiff failed to provide 

notice of his complaints of nausea, inability to eat, stomach 

cramps, or damage to Plaintiff’s stomach lining. They argue 

that, as a result, to the extent Plaintiff’s claims are premised 

on these stomach-related issues, Plaintiff failed to exhaust 

these claims. While it is true that Plaintiff failed to detail 

these issues, Plaintiff’s submission plainly described the 

alleged medical negligence that is purportedly at the root of 

these ailments. As such, Plaintiff put Defendants on notice of 

his claims sufficient to enable agency investigation of them. 

Accordingly, Defendants’ motion for summary judgment on this 

basis is DENIED. 

2. Medical Malpractice Elements

In suits under the FTCA, courts apply the substantive law 

of the state where the acts or omissions occurred. See Richards 

v. United States, 369 U.S. 1, 6 (1962); Ciccarone v. United 

States, 486 F. 2d 253, 257 (3d Cir. 1973); McLoyd v. United 

States, 2006 WL 2135837 (D.N.J. July 27, 2006). Because the 

alleged malpractice here occurred at FCI-Fort Dix in New Jersey, 

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New Jersey malpractice law governs. New Jersey law requires a 

malpractice claim plaintiff to show that: 

1) a duty of care existed; 

2) the Defendant breached that duty; 

3) that breached caused his or her injures; and 

4) that he or she suffered damages. 

Natale v. Camden Correctional Facility, 318 F. 3d 575, 579 (3d 

Cir. 2003). 

Defendants argue that Plaintiff failed to offer evidence of 

medical negligence and failed to offer evidence that he suffered 

an injury caused by that negligence, as required to establish 

medical malpractice under New Jersey law. In support of this 

argument, Defendants cite to medical records and a declaration 

from LaSalle questioning the cause, severity, and even the 

existence of some of Plaintiff’s claimed injuries. See Brief in 

Support of Summary Judgment at pg. 27 (citing to LaSalle Decl.). 

Plaintiff argues that summary judgment should be denied because 

no discovery has been completed and he therefore has not had the 

opportunity to investigate the medical documents, retain his own 

medical expert, and depose the medical experts.1

 

Under Federal Rule of Civil Procedure 56(d), a party 

opposing summary judgment on the basis that additional discovery 

 

1

 Plaintiff will also be required to timely submit an affidavit of merit. 

Olivares v. United States, 447 F. App’x 347, 353 (3d Cir. 

2011)(requiring affidavit of merit for FTCA medical malpractice claim). 

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is warranted must “show by affidavit or declaration that . . . 

it cannot present facts essential to justify its opposition” and 

“indicate to the district court its need for discovery, what 

material facts it hopes to uncover and why it has not previously 

discovered the information.” Abulkhair v. Citibank & Associates, 

434 F. App’x 58, 61-62 (3d Cir. 2011); Fed. R. Civ. P. 56(d). 

 Here, Plaintiff has provided an affidavit indicating that 

he needs discovery to have the relevant medical records reviewed 

by a medical expert and the opportunity to depose the Individual 

Defendants. That discovery is: (1) necessary to enable 

Plaintiff to support his malpractice claim; and (2) largely 

unavailable to Plaintiff because key information is solely in 

the possession of the Defendants and Plaintiff has not had an 

opportunity to conduct any discovery. Accordingly, Plaintiff 

has satisfied the requirement that he demonstrate by affidavit 

or declaration that he cannot present facts essential to justify 

its opposition and summary judgment is not warranted at this 

time. Accordingly, Defendants’ motion for summary judgment on 

this basis is DENIED. 

II. Conclusion

 For the foregoing reasons, Defendants’ motion is GRANTED, 

in part, and DENIED, in part, as described above. 

s/Renée Marie Bumb 

RENÉE MARIE BUMB 

UNITED STATES DISTRICT JUDGE 

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Dated: July 19, 2013 

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