NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

SERGIO OROZCO-BARAJAS, :

: Civil Action No. 11-3628 (NLH)

Plaintiff, :

:

v. : OPINION

:

DONNA ZICKEFOOSE, Warden, :

et al., :

:

Defendants. :

APPEARANCES:

Plaintiff pro se

Sergio Orozco-Barajas

Federal Correctional Center - Fort Dix

Fort Dix, New Jersey 08640

HILLMAN, District Judge

Plaintiff Sergio Orozco-Barajas, a prisoner confined at the

Federal Correctional Institution at Fort Dix, New Jersey, seeks

to bring this action pursuant to Bivens v. Six Unknown Fed.

Narcotics Agents, 403 U.S. 388 (1971), alleging violations of his

constitutional rights. Plaintiff paid the filing fee.

At this time, the Court must review the Complaint to

determine whether it should be dismissed as frivolous or

malicious, for failure to state a claim upon which relief may be

granted, or because it seeks monetary relief from a defendant who

is immune from such relief.

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I. BACKGROUND

The following factual allegations are taken from Plaintiff’s

Complaint and are accepted as true for purposes of this review.

Plaintiff alleges that in 2009, while he was a pre-trial detainee

in the custody of the U.S. Marshal in Kingsville, Texas, he was

taken to Defendant Christus Spohn Hospital Kleberg in Kingsville. 

He alleges that Defendant Dr. Flores performed surgery to his 1

leg which was supposed to replace some metallic hardware

installed in his femur in 1999. Plaintiff alleges that Dr.

Flores did not replace the metallic hardware, but just removed

one or more screws from the metallic hardware. Plaintiff alleges

that he then developed abscesses and bone infections. Plaintiff

alleges that Dr. Flores then performed additional surgeries to

drain the abscesses and clean the bone infections. Defendant

Christus Spohn Hospital Kleberg and Dr. Flores are collectively

referred to hereinafter as the “Texas Defendants.”

Plaintiff alleges that sometime thereafter he was sentenced

and transferred to the Federal Correctional Institution at

Ashland, Kentucky. He alleges that, while there, he developed an

abscess in the area of the incision on his leg. He alleges that

on June 1, 2010, an X-ray revealed a fracture still present in

his thigh and problems with his metallic hardware resulting from

 Dr. Flores appears to be a physician in the private 1

practice of medicine in Kingsville, Texas.

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the alleged failure of Dr. Flores to replace the metallic

hardware in his leg. Plaintiff alleges that, instead of taking

him to an outside specialist surgeon, Defendants Dr. Ralph I.

Touma, Dr. Kenneth J. Gomez, and physician’s assistant Laura

Bradley, all in the Health Services department at F.C.I. Ashland,

performed three surgeries to drain the abscesses, which remained

open and draining. Plaintiff alleges that he requested a

referral to a specialist surgeon to remove the metallic hardware,

but that Dr. Gomez told him that he would die with this

infection. Plaintiff alleges that he began the administrative

remedy process, but was transferred to the Federal Correctional

Institution at Fort Dix in November, 2010. Hereinafter, this

Court will refer to Defendants Touma, Gomez, and Bradley,

collectively, as the “Kentucky Defendants.”

Finally, Plaintiff alleges that while at F.C.I. Fort Dix, he

has developed three additional abscesses. He alleges that the

abscesses were observed by the following defendants: 1) Defendant

Dr. Abigail Lopez de Lasalle, a clinical director at the Health

Services department at F.C.I. Fort Dix, (2) Defendant nurse Ed

Eichel, employed as a nurse at F.C.I. Fort Dix, and allegedly

responsible for referrals to specialty consultants as CoChairperson of the Utilization Review Committee, (3) Defendant

Jose Ravago, an MLP at the Health Services department of F.C.I.

Fort Dix, who has allegedly been treating Plaintiff, 4) Defendant

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Dr. Williams, described as an orthopedic surgeon consulting with

the Health Services department at F.C.I. Fort Dix, and

(5) Defendant Dr. Sulayman, a physician at the Health Services

department at F.C.I. Fort Dix, all of whom will be collectively

referred to hereinafter as the “New Jersey Medical Defendants.” 

Plaintiff alleges that the New Jersey Medical Defendants have

refused to open and drain these abscesses and have disregarded

radiology reports about his fracture and problems with his

metallic hardware. Plaintiff alleges that the New Jersey Medical

Defendants have persisted in an easy but ineffective course of

treatment with antibiotic medications. Plaintiff also names

Warden Donna Zickefoose as a Defendant.

Plaintiff alleges that all of the named Defendants have been

deliberately indifferent to his serious medical needs. He seeks

compensatory damages from all and injunctive relief, in the form

of an order directing Defendant Warden Zickefoose to evaluate and

treat his serious medical needs.2

 During the pendency of this action, Plaintiff has advised 2

the Court that he was transferred to the Federal Medical Center -

Devens, at Ayer, Massachusetts, for a short time, and that he was

then transferred back to F.C.I. Fort Dix. To the extent the

transfer was for treatment of the medical condition at the heart

of this Complaint, the claim for injunctive relief against Warden

Zickefoose may have become moot. Nevertheless, based upon the

allegations of the Complaint, the claim for injunctive relief

will be permitted to proceed at this time.

4

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II. STANDARDS FOR A SUA SPONTE DISMISSAL

This Court must dismiss, at the earliest practicable time,

certain in forma pauperis and prisoner actions that are

frivolous, malicious, fail to state a claim, or seek monetary

relief from a defendant who is immune from such relief. See 28

U.S.C. § 1915(e)(2) (in forma pauperis actions); 28 U.S.C.

§ 1915A (actions in which prisoner seeks redress from a

governmental defendant); 42 U.S.C. § 1997e (prisoner actions

brought with respect to prison conditions).

In determining the sufficiency of a pro se complaint, the

Court must be mindful to construe it liberally in favor of the

plaintiff. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); United

States v. Day, 969 F.2d 39, 42 (3d Cir. 1992). The Court must

“accept as true all of the allegations in the complaint and all

reasonable inferences that can be drawn therefrom, and view them

in the light most favorable to the plaintiff.” Morse v. Lower

Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997).

In addition, any complaint must comply with the pleading

requirements of the Federal Rules of Civil Procedure.

Rule 8(a)(2) requires that a complaint contain “a short and

plain statement of the claim showing that the pleader is entitled

to relief.” A complaint must plead facts sufficient at least to

“suggest” a basis for liability. Spruill v. Gillis, 372 F.3d

218, 236 n.12 (3d Cir. 2004). “Specific facts are not necessary;

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the statement need only ‘give the defendant fair notice of what

the ... claim is and the grounds upon which it rests.’” Erickson

v. Pardus, 551 U.S. 89, 93 (2007) (citations omitted).

While a complaint ... does not need detailed factual

allegations, a plaintiff’s obligation to provide the

“grounds” of his “entitle[ment] to relief” requires

more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will

not do, see Papasan v. Allain, 478 U.S. 265, 286, 106

S.Ct. 2932, 92 L.Ed.2d 209 (1986) (on a motion to

dismiss, courts “are not bound to accept as true a

legal conclusion couched as a factual allegation”). 

Factual allegations must be enough to raise a right to

relief above the speculative level ... .

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citations omitted).

The Court of Appeals for the Third Circuit has that the

Twombly pleading standard applies in the context of a civil

rights action. See Phillips v. County of Allegheny, 515 F.3d

224, 234 (3d Cir. 2008).

More recently, the Supreme Court has emphasized that, when

assessing the sufficiency of any civil complaint, a court must

distinguish factual contentions -- which allege behavior on the

part of the defendant that, if true, would satisfy one or more

elements of the claim asserted -- and “[t]hreadbare recitals of

the elements of a cause of action, supported by mere conclusory

statements.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). 

Although the Court must assume the veracity of the facts asserted

in the complaint, it is “not bound to accept as true a legal

6

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conclusion couched as a factual allegation.” Id. at 1950. Thus,

“a court considering a motion to dismiss can choose to begin by

identifying pleadings that, because they are no more than

conclusions, are not entitled to the assumption of truth.” Id.

Therefore, after Iqbal, when presented with a

motion to dismiss for failure to state a claim,

district courts should conduct a two-part analysis. 

First, the factual and legal elements of a claim should

be separated. The District Court must accept all of

the complaint's well-pleaded facts as true, but may

disregard any legal conclusions. Second, a District

Court must then determine whether the facts alleged in

the complaint are sufficient to show that the plaintiff

has a “plausible claim for relief.” In other words, a

complaint must do more than allege the plaintiff's

entitlement to relief. A complaint has to “show” such

an entitlement with its facts. See Phillips, 515 F.3d

at 234-35. As the Supreme Court instructed in Iqbal,

“[w]here the well-pleaded facts do not permit the court

to infer more than the mere possibility of misconduct,

the complaint has alleged-but it has not

‘show[n]’-‘that the pleader is entitled to relief.’” 

This “plausibility” determination will be “a

context-specific task that requires the reviewing court

to draw on its judicial experience and common sense.”

Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009)

(citations omitted).

Where a complaint can be remedied by an amendment, a

district court may not dismiss the complaint with prejudice, but

must permit the amendment. Denton v. Hernandez, 504 U.S. 25, 34

(1992); Grayson v. Mayview State Hospital, 293 F.3d 103, 108 (3d

Cir. 2002) (dismissal pursuant to 28 U.S.C. § 1915(e)(2)); Shane

v. Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000) (dismissal

7

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pursuant to 42 U.S.C. § 1997e(c)(1)); Urrutia v. Harrisburg

County Police Dept., 91 F.3d 451, 453 (3d Cir. 1996).

III. Bivens v. Six Unknown Agents

In Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics, 403 U.S. 388, 389 (1971), the Supreme Court held that

a violation of the Fourth Amendment by a federal agent acting

under color of his authority gives rise to a cause of action

against that agent, individually, for damages. The Supreme Court

has also implied damages remedies directly under the Eighth

Amendment, see Carlson v. Green, 446 U.S. 14 (1980), and under

the equal protection component of the Fifth Amendment’s Due

Process Clause, see Davis v. Passman, 442 U.S. 228 (1979). 

Relying upon Bivens, several lower federal courts have implied a

damages cause of action against federal officers, under the Due

Process Clause of the Fifth Amendment, for claims by federal pretrial detainees alleging inadequate medical care or

unconstitutional conditions of confinement. See, e.g., Lyons v.

U.S. Marshals, 840 F.2d 202 (3d Cir. 1988); Magluta v. Samples,

375 F.3d 1269 (11th Cir. 2004); Loe v. Armistead, 582 F.2d 1291

(4th Cir. 1978), cert. denied, 446 U.S. 928 (1980).

The Supreme Court has not addressed whether supervisors in

Bivens actions may be held liable on a theory of respondeat

superior. Most courts to address the issue, however, have held

that liability may not be based on respondeat superior. See,

8

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e.g., Ruiz Rivera v. Riley, 209 F.3d 24, 28 (1st Cir.

2000)(collecting cases); Laswell v. Brown, 683 F.2d 261, 268 &

n.11 (8th Cir. 1982), cert. denied, 459 U.S. 1210 (1983) (basing

its conclusion on the fact that the Supreme Court has looked to

42 U.S.C. § 1983 cases in evaluating the nature of defendant

officials’ qualified immunity); Kite v. Kelly, 546 F.2d 334,

337-38 (10th Cir. 1976). See also Parker v. U.S., 197 Fed.Appx.

171, 173 n.1 (3d Cir. 2006) (not precedential); Balter v. U.S.,

172 Fed.Appx. 401, 403 (3d Cir. 2006) (not precedential). This

Court finds persuasive the reasoning of those courts that have

declined to impose respondeat superior liability in Bivens

actions. Accordingly, as any damages claims against Warden Donna

Zickefoose appear to be based solely upon an untenable theory of

vicarious liability, such claims will be dismissed.3

 In addition, any damages claims against the Warden would 3

be meritless, as Plaintiff alleges only that she “disregarded

Plaintiff’s verbally and written requests for his serious medical

needs in the case below.” (Complaint, ¶ 1.) Compare Durmer v.

O’Carroll, 991 F.2d 64, 69 (3d Cir. 1993) (summary judgment

properly granted to prison warden and state commissioner of

corrections, the only allegation against whom was that they

failed to respond to letters from prisoner complaining of prison

doctor’s treatment decisions) with Sprull v. Gillis, 372 F.3d

218, 236 (3d Cir. 2004) (a non-physician supervisor may be liable

under § 1983 if he knew or had reason to know of inadequate

medical care).

9

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IV. ANALYSIS

A. Diversity Jurisdiction

In addition to asserting federal question jurisdiction under

28 U.S.C. § 1331 for his Bivens-type claims, Plaintiff also

asserts that this Court can exercise diversity jurisdiction under

28 U.S.C. § 1332. 

Section 1332 provides jurisdiction over state-law civil

actions if, in the provision pertinent here, the matter in

controversy exceeds the sum or value of $75,000, exclusive of

interest and costs, and is between “citizens of different

States.” It has long been recognized that, to found jurisdiction

upon § 1332, there must be complete diversity among all parties,

i.e., each plaintiff must be a citizen of a different state from

each defendant. Owen Equipment and Erection Co. v. Kroger, 437

U.S. 365 (1978).

A plaintiff, as the party asserting federal jurisdiction,

“must specifically allege each party’s citizenship, and these

allegations must show that the plaintiff and defendant are

citizens of different states.” American Motorists Ins. Co. v.

American Employers’ Ins. Co., 600 F.2d 15, 16 (5th Cir. 1979);

see also Universal Reinsurance Co., Ltd. v. St. Paul Fire &

Marine Ins. Co., 224 F.3d 139, 141 (2d Cir. 2000) (“The failure

to allege [the party’s] citizenship in a particular state is

10

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fatal to diversity jurisdiction”). Specifically with respect to

individuals, 

For purposes of determining diversity, state

citizenship is equated with domicile. Domicile,

however, is not necessarily synonymous with residence;

one can reside in one place and be domiciled in

another. Residence and an intent to make the place of

residence one’s home are required for citizenship and

to establish a new domicile. Although the analysis is

necessarily case specific, courts have looked to

certain factors, including state of employment, voting,

taxes, driver’s license, bank accounts and assets, and

civic and religious associations in determining the

citizenship of an individual. ...

McCracken v. Murphy, 328 F.Supp.2d 530, 532 (E.D. Pa. 2004)

(citations omitted), aff’d, 129 Fed.Appx. 701 (3d Cir. 2005). 

“For inmates, citizenship for diversity purposes is the state in

which the inmate was domiciled prior to incarceration, unless the

inmate plans to live elsewhere when he is released in which event

citizenship would be that state.” McCracken, 328 F.Supp.2d at

532 (citing Flanagan v. Shively, 783 F.Supp. 922, 935 (E.D. Pa.),

aff’d, 980 F.2d 722 (3d Cir. 1992)). 

Here, Plaintiff has alleged no facts that would permit this

Court to determine his citizenship. Thus, he has failed to

allege sufficient facts to permit any state-law claims to proceed

based upon diversity jurisdiction. This finding does not affect

this Court’s ability to exercise pendent jurisdiction over

certain state-law claims under 28 U.S.C. § 1367.

11

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A. Claims Against Kentucky and Texas Defendants

Plaintiff seeks to assert here state-law medical malpractice

claims against the Texas Defendants, who are not alleged to be

employees or officers of the United States, as well as Bivenstype claims for deprivation of his Eighth Amendment right to

adequate medical care against the Kentucky Defendants, all of

whom are alleged to be employees of the United States.

Under Rule 4(e) of the Federal Rules of Civil Procedure, a

federal district court has personal jurisdiction over nonresident

defendants “to the extent authorized under the law of the forum

state in which the district court sits.” Sunbelt Corp. v. Noble,

Denton & Assoc., Inc., 5 F.3d 28, 31 (3d Cir. 1993). New

Jersey’s long-arm statute extends personal jurisdiction to the

boundaries of the Due Process Clause of the Fourteenth Amendment. 

See N.J.Ct.R. 4:4-4.

A federal district court may exercise either general or

specific jurisdiction over nonresident defendants. When a court

exercises jurisdiction over a defendant in a suit not arising out

of or related to the defendant’s contacts with the forum, the

Court is said to be exercising “general” jurisdiction over the

defendant. In such circumstances, due process is not offended if

the defendant has certain minimum contacts with the forum so that

traditional notions of fair play are not offended by the exercise

of jurisdiction. See generally Helicopteros Nacionales de

12

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Colombia, S.A. v. Hall, 466 U.S. 408, 414-15 (1984) (collecting

cases). Nothing in the Complaint suggests that this Court could

exercise general jurisdiction over the nonresident Texas

Defendants or Kentucky Defendants.

Under the Due Process Clause, a plaintiff asserting

“specific” jurisdiction over a nonresident defendant must

establish (1) that the defendant purposefully directed his

activities at the forum, (2) that the action arises out of or is

related to at least one of those activities, and (3) if the first

two requirements are met, that the court’s exercise of

jurisdiction otherwise comports with notions of fair play and

substantial justice. See generally D’Jamoos v. Pilatus Aircraft

Ltd., 566 F.3d 94, 102-03 (3d Cir. 2009) (collecting cases).

Again, based upon the allegations of the Complaint, the

claims asserted here do not arise out of any activities in or

directed at this forum by the Texas Defendants or the Kentucky

Defendants. Accordingly, this Court may not exercise specific

personal jurisdiction over the Texas Defendants or the Kentucky

Defendants. 

Pursuant to 28 U.S.C. § 1631, when a District Court finds

that it is lacking jurisdiction,

the court shall, if it is in the interest of justice,

transfer such action or appeal to any other such court

in which the action or appeal could have been brought

at the time it was filed or noticed, and the action or

appeal shall proceed as if it had been filed in or

noticed for the court to which it is transferred on the

13

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date upon which it was actually filed in or noticed for

the court from which it is transferred. 

Under this provision, a District Court may sever individual

claims and transfer them. See D’Jamoos v. Pilatus Aircraft Ltd.,

566 F.3d 94, 106-07, 109-111 (3d Cir. 2009). Factors warranting

transfer rather than dismissal include finding that a new action

would be time barred, that the claims are likely to have merit,

and that the original action was filed in good faith rather than

filed after the plaintiff either realized or should have realized

that the forum in which he or she filed was improper.

Here, it may be that the statute of limitations has run on

Plaintiff’s claims against the Texas and Kentucky Defendants. 

See, e.g., McSurely v. Hutchison, 823 F.2ed 1002 (6th Cir. 1987),

cert. denied, 485 U.S. 934 (1988) (Kentucky’s one-year “personal

injury” limitations period applies to Bivens claims); Compton v.

Follender, 61 Fed.Appx. 120 (5th Cir. 2003) (Texas limitations

period for medical malpractice claims is two years); V.T.C.A.,

Civil Practice & Liability Code § 74.251 (two year limitations

period for medical malpractice claims in Texas).4

In addition, this Court must consider whether the claims

would likely be meritorious. In the same vein, as Plaintiff is a

prisoner, the claims would be subject to screening, under 28

 The cover letter to this Complaint was dated June 24, 4

2011. Thus, it is not clear whether some or all of the claims

against the Texas and Kentucky Defendants would have been barred

at the time the Complaint was filed here.

14

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U.S.C. §§ 1915 or 1915A or 42 U.S.C. § 1997e. Here, Plaintiff

does not allege that he has complied with the procedural

prerequisites for bringing a medical malpractice claim against a

Texas health-care provider. More specifically, Texas law

requires written notice of a medical malpractice claim by

certified mail, return receipt requested, at least 60 days before

the filing of suit and requires, in subsequent filed pleadings,

that the plaintiff shall state that he has fully complied with

the pre-filing notice provision. V.T.C.A., Civil Practice &

Remedies Code § 74.051. Plaintiff does not plead that he has

complied with this provision. Section 74.351 of the Texas Civil

Practice & Remedies Code requires a plaintiff asserting a medical

malpractice claim to serve an expert report within 120 days of

filing suit. Nothing presently before this Court suggests that

Plaintiff has complied with the expert report provision, either. 

Failure to timely provide the expert report is grounds for

dismissal. See Otero v. Alonzo, 2011 WL 765673 (Tex. App. March

3, 2011).

Also, as Plaintiff has failed to allege facts regarding his

citizenship, it is not clear whether he would be able to proceed

in a federal district court sitting in Texas, under diversity

jurisdiction, in state-law medical malpractice claims against

Texas defendants.

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Moreover, with respect to the Kentucky Defendants, Plaintiff

has failed to allege facts demonstrating an Eighth Amendment

violation. As discussed more fully below, with respect to the

New Jersey Medical Defendants, mere disagreement over the course

of care is not sufficient to state a claim under the Eighth

Amendment. Here, Plaintiff alleges that the Kentucky Defendants

performed three operations to treat his continuing infections. 

Thus, it is clear from Plaintiff’s allegations that he was

receiving care for his medical problems. The fact that he

desired different care is not sufficient to state a claim for

violation of the Eighth Amendment.

Finally, and particularly with respect to the claims against

the Kentucky Defendants, Plaintiff admits that he abandoned his

administrative remedies when he was placed in the Special Housing

Unit and then transferred. Pursuant to 42 U.S.C. § 1997e, no 5

 “[T]he ... exhaustion requirement applies to all inmate 5

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) (citation omitted). In addition, a prisoner must

exhaust all available administrative remedies even where the

relief sought, such as monetary damages, cannot be granted

through the administrative process. Booth v. Churner, 532 U.S.

731 (2001).

Inmates are not required to specifically plead or

demonstrate exhaustion in their complaints; instead, failure to

exhaust is an affirmative defense that must be pled by the

defendant. Jones v. Bock, 549 U.S. 199 (2007). Nevertheless, a

district court has inherent power to dismiss a complaint which

facially violates this bar to suit. See, e.g., Bock, 549 U.S. at

214-15 (referring to the affirmative defense of a statute of

16

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claim can be brought in federal court, with respect to prison

conditions, if the prisoner has not exhausted his administrative

remedies.6

limitations bar); Lindsay v. Williamson, 271 Fed.Appx. 158, 159-

160, 2008 WL 902984, *1 (3d Cir. 2008); Ray v. Kertes, 285 F.3d

287, 293 n.5 (3d Cir. 2002); Nyhuis v. Reno, 204 F.3d 65 (3d Cir.

2000).

The Bureau of Prisons Administrative Remedy Program is a

multi-tier process that is available to inmates confined in

institutions operated by the BOP for “review of an issue which

relates to any aspect of their confinement.” 28 C.F.R. § 542.10. 

An inmate must initially attempt to informally resolve the issue

with institutional staff. 28 C.F.R. § 542.13(a). If informal

resolution fails or is waived, an inmate may submit a BP-9

Request to “the institution staff member designated to receive

such Requests (ordinarily a correctional counsel)” within 20 days

of the date on which the basis for the Request occurred, or

within any extension permitted. 28 C.F.R. § 542.14. An inmate

who is dissatisfied with the Warden’s response to his BP-9

Request may submit a BP-10 Appeal to the Regional Director of the

BOP within 20 days of the date the Warden signed the response. 

28 C.F.R. § 542.15(a). The inmate may appeal to the BOP’s

General Counsel on a BP-11 form within 30 days of the day the

Regional Director signed the response. Id. Appeal to the

General Counsel is the final administrative appeal. Id. 

Response times for each level of review are set forth in 28

C.F.R. § 542.18. If responses are not received by the inmate

within the time allotted for reply, “the inmate may consider the

absence of a response to be a denial at that level.” 28 C.F.R.

§ 542.18.

 In addition, the Court notes that should Plaintiff wish to 6

proceed in two additional cases, as a prisoner, he would be

required to prepay two additional $350 filing fees, either

immediately or incrementally, if he is permitted to proceed in

forma pauperis. Should those courts dismiss these claims as

frivolous or malicious, or for failure to state a claim, they

could count as “strikes” under 28 U.S.C. § 1915(g) that would

impair Plaintiff’s ability to proceed in forma pauperis in

federal court in the future, which permits only three such

“strikes.” As a further consideration of the potential negative

impact, to Plaintiff’s future ability to litigate as a pauper in

federal court, of dismissal of any such severed and transferred

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Accordingly, it does not appear that it would be in the

interest of justice to sever and transfer the claims against the

Texas Defendants or the Kentucky Defendants. Although the claims

against those defendants may now be time-barred, the many

deficiencies noted above suggest that the claims are not

meritorious. This Court will dismiss without prejudice, for lack

of personal jurisdiction, all claims against the Texas Defendants

and the Kentucky Defendants.

B. Claims Against New Jersey Medical Defendants

The Eighth Amendment to the United States Constitution,

applicable to the individual states through the Fourteenth

Amendment, prohibits the states from inflicting “cruel and

unusual punishments” on those convicted of crimes. Rhodes v.

Chapman, 452 U.S. 337, 344-46 (1981). This proscription against

cruel and unusual punishment requires that prison officials

provide inmates with adequate medical care. Estelle v. Gamble,

cases, this Court notes that the Bureau of Prisons Inmate Locator

reflects an anticipated release date of July 26, 2027, so

Plaintiff will be incarcerated for many years to come. See also

United States v. Orozco-Barajas, Criminal No. 08-0190 (S.D.

Texas) (reflecting a sentence of 262 months). Moreover, the

medical issues regarding the proper treatment of Plaintiff’s leg

condition would have to be litigated in three different forums,

possibly requiring some degree of participation by the Texas

Defendants, the Kentucky Defendants, and the New Jersey Medical

Defendants, in all forums, and possibly leading to inconsistent

judgments. Plaintiff has offered no explanation for his failure

to timely bring his claims in the appropriate jurisdictions where

the courts could exercise personal jurisdiction over the

defendants.

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429 U.S. 97, 103-04 (1976). In order to set forth a cognizable

claim for a violation of his right to adequate medical care, an

inmate must allege: (1) a serious medical need; and (2) behavior

on the part of prison officials that constitutes deliberate

indifference to that need. Id. at 106.

To satisfy the first prong of the Estelle inquiry, the

inmate must demonstrate that his medical needs are serious. 

“Because society does not expect that prisoners will have

unqualified access to health care, deliberate indifference to

medical needs amounts to an Eighth Amendment violation only if

those needs are ‘serious.’” Hudson v. McMillian, 503 U.S. 1, 9

(1992). Serious medical needs include those that have been

diagnosed by a physician as requiring treatment or that are so

obvious that a lay person would recognize the necessity for

doctor’s attention, and those conditions which, if untreated,

would result in lifelong handicap or permanent loss. Monmouth

County Correctional Institutional Inmates v. Lanzaro, 834 F.2d

326, 347 (3d Cir. 1987), cert. denied, 486 U.S. 1006 (1988). 

This Court considers Plaintiff’s characterization of chronic

infections arising out of the injury to his leg as sufficient, at

this screening stage, to demonstrate a serious medical need.

The second element of the Estelle test requires an inmate to

show that prison officials acted with deliberate indifference to

his serious medical need. “Deliberate indifference” is more than

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mere malpractice or negligence; it is a state of mind equivalent

to reckless disregard of a known risk of harm. Farmer v.

Brennan, 511 U.S. 825, 837-38 (1994). Furthermore, a prisoner’s

subjective dissatisfaction with his medical care does not in

itself indicate deliberate indifference. Andrews v. Camden

County, 95 F.Supp.2d 217, 228 (D.N.J. 2000); Peterson v. Davis,

551 F.Supp. 137, 145 (D. Md. 1982), aff’d, 729 F.2d 1453 (4th

Cir. 1984). Similarly, “mere disagreements over medical judgment

do not state Eighth Amendment claims.” White v. Napoleon, 897

F.2d 103, 110 (3d Cir. 1990). “Courts will disavow any attempt

to second-guess the propriety or adequacy of a particular course

of treatment ... [which] remains a question of sound professional

judgment. Implicit in this deference to prison medical

authorities is the assumption that such informed judgment has, in

fact, been made.” Inmates of Allegheny County Jail v. Pierce,

612 F.2d 754, 762 (3d Cir. 1979) (internal quotation and citation

omitted). Even if a doctor’s judgment concerning the proper

course of a prisoner’s treatment ultimately is shown to be

mistaken, at most what would be proved is medical malpractice and

not an Eighth Amendment violation. Estelle, 429 U.S. at 105-06;

White, 897 F.2d at 110.

“Where prison authorities deny reasonable requests for

medical treatment, however, and such denial exposes the inmate

‘to undue suffering or the threat of tangible residual injury,’

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deliberate indifference is manifest. Similarly, where ‘knowledge

of the need for medical care [is accompanied by the] ...

intentional refusal to provide that care,’ the deliberate

indifference standard has been met. ... Finally, deliberate

indifference is demonstrated ‘[w]hen ... prison authorities

prevent an inmate from receiving recommended treatment for

serious medical needs or deny access to a physician capable of

evaluating the need for such treatment.” Monmouth County Corr.

Inst. Inmates v. Lanzaro, 834 F.2d at 346 (citations omitted). 

“Short of absolute denial, ‘if necessary medical treatment [i]s

... delayed for non-medical reasons, a case of deliberate

indifference has been made out.” Id. (citations omitted). 

“Deliberate indifference is also evident where prison officials

erect arbitrary and burdensome procedures that ‘result[] in

interminable delays and outright denials of medical care to

suffering inmates.’” Id. at 347 (citation omitted).

With respect to the New Jersey Medical Defendants, Plaintiff

has alleged that these defendants have engaged in a completely

ineffective course of treatment with antibiotics and that they

have refused to drain the abscesses that have resulted from the

ineffective antibiotic treatment. Consistent with its obligation

to construe pro se pleadings liberally, then, it appears to the

Court that Plaintiff is asserting that the New Jersey Medical

Defendants’ persistence in a repeatedly ineffective course of

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antibiotics, coupled with the failure to undertake any

alternative treatment such as draining the infections, amounts to

no meaningful treatment at all, and, thereby, to deliberate

indifference to his needs with respect to the recurrent

infections. While the claim here comes close to a mere

disagreement over the treatment delivered, it is also plausible

on the facts alleged that the defendants knowingly continued an

ineffective treatment. Such allegations are sufficient to state

a claim for inadequate medical treatment in violation of the

Eighth Amendment. Cf., e.g., Rouse v. Plantier, 182 F.3d 192,

197 (3d Cir. 1999) (prison officials who continue a course of

treatment they know is painful, ineffective, or entails a

substantial risk of serious harm act with deliberate

indifference); White v. Napoleon, 897 F.2d 103, 109 (3d Cir.

1990) (same).

V. CONCLUSION

For the reasons set forth above, the Eighth Amendment

medical-care claim may proceed as against the New Jersey Medical

Defendants. The claim for injunctive relief may proceed as

against Defendant Warden Donna Zickefoose. All other claims will

be dismissed without prejudice. 

An appropriate order follows.

 s/ Noel L. Hillman 

At Camden, New Jersey Noel L. Hillman

Dated: April 24, 2012 United States District Judge

 

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