NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

 

:

TERRANCE ROSS, :

: Civil Action No. 11-2620 (FSH)

Plaintiff, :

:

v. : O P I N I O N

:

UMDNJ, et al., :

:

Defendants. :

 

APPEARANCES:

TERRANCE ROSS, Pro Se

598623

Bayside State Prison

4293 Route 47, P.O. Box F1

Leesburg, NJ 08327

HOCHBERG, District Judge

Plaintiff, Terrance Ross, currently confined at the Bayside

State Prison, Leesburg, New Jersey, has submitted this civil

complaint which alleges violations of his constitutional rights

and seeks damages, pursuant to 42 U.S.C. § 1983. Plaintiff also

applied to proceed in forma pauperis, pursuant to 28 U.S.C. §

1915.

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, pursuant to 28 U.S.C. §§ 1915(e) and

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1915A. For the following reasons, the complaint will be

dismissed, without prejudice.

BACKGROUND

Plaintiff seeks to sue various medical staff at the Northern

State Prison concerning his medical care while housed there. 

Plaintiff asserts that on March 18, 2010, he developed a boil

under his armpit. On April 9, 2010, he was able to receive

treatment from the doctor for the boil, and was prescribed an

antibiotic. Five days later, the boil returned, and four days

after that, the boil burst. Plaintiff told the Sergeant, who

told Plaintiff to sign up for sick call. The next day, Plaintiff

showed the nurse the boil. The nurse deemed Plaintiff’s

condition a medical emergency, and Plaintiff was taken to

medical, and prescribed an extra week of antibiotics. (Complt.,

¶ 6).

Plaintiff asks for monetary relief due to a violation of his

Eighth Amendment right to receive adequate medical care. 

(Complt., ¶ 7).

DISCUSSION

A. Standard of Review

The Prison Litigation Reform Act (“PLRA”), Pub. L. No.

104-134, §§ 801-810, 110 Stat. 1321-66 to 1321-77 (April 26,

1996), requires a district court to review a complaint in a civil

action in which a prisoner is proceeding in forma pauperis or

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seeks redress against a governmental employee or entity. The

Court is required to identify cognizable claims and to sua sponte

dismiss any claim that is frivolous, malicious, fails to state a

claim upon which relief may be granted, or seeks monetary relief

from a defendant who is immune from such relief. See 28 U.S.C.

§§ 1915(e)(2)(B) and 1915A. This action is subject to sua sponte

screening for dismissal under both 28 U.S.C. § 1915A, because

plaintiff is a prisoner.

Recently, the Supreme Court refined this standard for

summary dismissal of a complaint that fails to state a claim in

Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). The Court examined

Rule 8(a)(2) of the Federal Rules of Civil Procedure which

provides that a complaint must contain “a short and plain

statement of the claim showing that the pleader is entitled to

relief.” Fed. R. Civ. P. 8(a)(2). Citing its recent opinion in 1

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

proposition that “[a] pleading that offers ‘labels and

conclusions' or ‘a formulaic recitation of the elements of a

cause of action will not do,’” Iqbal, 129 S. Ct. at 1949 (quoting

Twombly, 550 U.S. at 555), the Supreme Court identified two

Rule 8(d)(1) provides that “[e]ach allegation must be

1

simple, concise, and direct. No technical form is required.” Fed.

R. Civ. P. 8(d).

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working principles underlying the failure to state a claim

standard:

First, the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to

legal conclusions. Threadbare recitals of the elements of a

cause of action, supported by mere conclusory statements, do

not suffice ... . Rule 8 ... does not unlock the doors of

discovery for a plaintiff armed with nothing more than

conclusions. Second, only a complaint that states a

plausible claim for relief survives a motion to dismiss. 

Determining whether a complaint states a plausible claim for

relief will ... be a context-specific task that requires the

reviewing court to draw on its judicial experience and

common sense. But where 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.” Fed.

Rule Civ. Proc. 8(a)(2).

Iqbal, 129 S. Ct. at 1949-1950 (citations omitted). The Court

further explained that:

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.

While legal conclusions can provide the framework of a

complaint, they must be supported by factual allegations.

When there are well-pleaded factual allegations, a court

should assume their veracity and then determine whether they

plausible give rise to an entitlement to relief.

Id. at 1950.

Thus, to prevent a summary dismissal, a civil complaint must

now allege “sufficient factual matter” to show that the claim is

facially plausible. This then “allows the court to draw the

reasonable inference that the defendant is liable for the

misconduct alleged. See id. at 1948. The Supreme Court’s ruling

in Iqbal emphasizes that a plaintiff must demonstrate that the

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allegations of his complaint is plausible. See id. at 1949-50;

see also Twombly, 505 U.S. at 555, & n.3; Fowler v. UPMC

Shadyside, 578 F.3d 203 (3d Cir. 2009).

Consequently, the Third Circuit observed that Iqbal provides

the “final nail-in-the-coffin” for the “no set of facts” standard

set forth in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that 2

applied to federal complaints before Twombly. See Fowler, 2009

WL 2501662 at *5. Now, after Iqbal, the Third Circuit requires

that a district court must conduct the two-part analysis set

forth in Iqbal when presented with a motion to dismiss:

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. [Iqbal, 129 S. Ct. at 1949-50]. 

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.” [Id.] 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.’” Iqbal, [129 S. Ct. at

1949-50]. This “plausibility” determination will be “a

context-specific task that requires the reviewing court to

draw on its judicial experience and common sense.” Id.

In Conley, as stated above, a district court was permitted

2

to summarily dismiss a complaint for failure to state a claim only

if “it appear[ed] beyond doubt that the plaintiff can prove no set

of facts in support of his claim which would entitle him to

relief.” Conley, 355 U.S. at 45-46. Under this “no set of facts”

standard, a complaint could effectively survive a motion to

dismiss so long as it contained a bare recitation of the claim’s

legal elements.

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Fowler, 578 F.3d at 210-11.

 This Court is mindful, however, that the sufficiency of this

pro se pleading must be construed liberally in favor of

Plaintiff, even after Iqbal. See Erickson v. Pardus, 551 U.S. 89

(2007). Moreover, a court should not dismiss a complaint with

prejudice for failure to state a claim without granting leave to

amend, unless it finds bad faith, undue delay, prejudice or

futility. See Grayson v. Mayview State Hosp., 293 F.3d 103, 110-

111 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 117 (3d Cir.

2000).

B. Section 1983 Actions

A plaintiff may have a cause of action under 42 U.S.C.

§ 1983 for certain violations of his or her constitutional

rights. Section 1983 provides in relevant part:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of any State

or Territory ... subjects, or causes to be subjected,

any citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any

rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other

proper proceeding for redress ... .

Thus, to establish a violation of 42 U.S.C. § 1983, a plaintiff

must demonstrate that the challenged conduct was committed by (1)

a person acting under color of state law and (2) that the conduct

deprived him of rights, privileges, or immunities secured by the

Constitution or laws of the United States. See Parratt v.

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Taylor, 451 U.S. 527, 535 (1981), overruled in part on other

grounds by Daniels v. Williams, 474 U.S. 327 (1986); Adickes v.

S.H. Kress & Co., 398 U.S. 144, 152 (1970); Piecknick v.

Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). 

C. Medical Care Claim

In this case, Plaintiff alleges that he has not received

proper medical care, in violation of his constitutional rights.

The Eighth Amendment proscription against cruel and unusual

punishment also requires that prison officials provide inmates

with adequate medical care. See Estelle v. Gamble, 429 U.S. 97,

103-04 (1976); Rouse v. Plantier, 182 F.3d 192 (3d Cir. 1999). 

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. 

Estelle, 429 U.S. at 106; Natale v. Camden County Correctional

Facility, 318 F.3d 575, 582 (3d Cir. 2003).

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). The Third Circuit has defined a serious medical need as:

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(1) "one that has been diagnosed by a physician as requiring

treatment;" (2) "one that is so obvious that a lay person would

recognize the necessity for a doctor’s attention;" or (3) one for

which "the denial of treatment would result in the unnecessary

and wanton infliction of pain" or "a life-long handicap or

permanent loss." Atkinson v. Taylor, 316 F.3d 257, 272-73 (3d

Cir. 2003)(internal quotations and citations omitted); see also

Monmouth County Correctional Institutional Inmates v. Lanzaro,

834 F.2d 326, 347 (3d Cir. 1987), cert. denied, 486 U.S. 1006

(1988).

The second element of the Estelle test requires an inmate to

show that prison officials acted with deliberate indifference to

his serious medical need. See Natale, 318 F.3d at 582 (finding

deliberate indifference requires proof that the official knew of

and disregarded an excessive risk to inmate health or safety). 

"Deliberate indifference" is more than mere malpractice or

negligence; it is a state of mind equivalent to reckless

disregard of a known risk of harm. See 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. See 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

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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." 

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. See Estelle, 429 U.S. at 105-06; White, 897 F.3d at

110.

The Court of Appeals for the Third Circuit has found

deliberate indifference where a prison official: (1) knows of a

prisoner’s need for medical treatment but intentionally refuses

to provide it; (2) delays necessary medical treatment for nonmedical reasons; or (3) prevents a prisoner from receiving needed

or recommended treatment. See Rouse, 182 F.3d at 197. 

In this case, assuming that Plaintiff’s medical need was

“serious,” Plaintiff has not alleged facts indicating deliberate

indifference on the part of the defendants. Plaintiff’s

complaint is replete with instances of the medical care provided

to him during the one-month period at issue. He was seen by

doctors and nurses and was treated at least twice with

antibiotics. While Plaintiff may not have been comfortable

during the experience, may have felt he could have received

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better care, may think that the doctors and nurses were not

providing him with exceptional treatment, or even that they made

errors in judgment concerning his treatment, Plaintiff has not

asserted any facts that rise to the level of deliberate

indifference. At most, Plaintiff may have pleaded a case of

medical malpractice, that does not warrant relief under § 1983.

As stated above, the Third Circuit has found deliberate

indifference where a prison official: (1) knows of a prisoner’s

need for medical treatment but intentionally refuses to provide

it; (2) delays necessary medical treatment for non-medical

reasons; or (3) prevents a prisoner from receiving needed or

recommended treatment. In this case, Plaintiff was not

intentionally refused medical treatment; Plaintiff’s medical

treatment was not delayed; and Plaintiff was not prevented from

receiving needed or recommended treatment.

Therefore, the complaint must be dismissed, pursuant to 28

U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1), for failure to state

a claim upon which relief may be granted. However, the dismissal

will be without prejudice to Plaintiff filing a motion to reopen

and submitting an amended complaint, in accordance with the

attached order, that addresses the deficiencies as outlined

above. In his amended complaint, Plaintiff must allege facts

indicating deliberate indifference by each defendant, not just

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use the term “deliberately indifferent” as a legal conclusion, as

he does in this complaint.

CONCLUSION

For the reasons set forth above, Plaintiff’s complaint will

be dismissed, without prejudice, for failure to state a claim

upon which relief may be granted, pursuant to 28 U.S.C. §§

1915(e)(2)(B)(ii) and 1915A(b)(1). An appropriate order

accompanies this opinion.

s/ Faith S. Hochberg 

FAITH S. HOCHBERG

United States District Judge

Dated: June 27, 2011 

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