KAYE v. REEVES

Not for Publication

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

____________________________________

:

CURTIS CAMPBELL, :

: Civil Action No. 17-4183 (ES)

Plaintiff, :

:

v. : MEMORANDUM OPINION

:

NELSON, et al., :

:

Defendants. :

____________________________________:

SALAS, DISTRICT JUDGE

It appearing that:

1. Plaintiff Curtis Campbell, (“Plaintiff”), a convicted and sentenced state prisoner at the

time of filing, brings this civil rights action in forma pauperis. (D.E. No. 1). In an Opinion and

Order dated March 6, 2018, the Court dismissed the initial Complaint for failure to state a claim

upon which relief may be granted pursuant to 28 U.S.C. §§ 1915, 1915A. (D.E. Nos. 6 & 7).

The Court granted Plaintiff permission to file an amended complaint, and after several extensions,

Plaintiff filed the instant Amended Complaint. (D.E. No. 13, Amended Complaint (“Am.

Compl.”)).

2. At this time, the Court must review the Amended Complaint, pursuant to 28 U.S.C. §§

1915(e)(2)(B) and 1915A, 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.

3. Plaintiff alleges the following facts in the Amended Complaint:1

Plaintiff was incarcerated for a non-violent criminal charges (drug

charge) and plaintiff was sentence[d] on 10/14/2016.

Do [sic] to diabetes complication plaintiff became legally blind

(with slight [sic] only, in the right eye) and eventually totally blind

by the time he was process through Reception (CRAFT) and

assigned to a particular prison (initially Bayside State Prison), yet

and still was denied ADA Medical Care there and discriminatory

treatment as also; and Bayside State Prison is where plaintiff was

assaulted (got assaulted by cell-mate, sent to Northern State Prison

Ad. Seg.) and found guilty for fighting. Despite plaintiff's prior

complaints that he can not [sic] see (in each prison thus far that listed

herein this complaint, totally and legally blind) and that he was

being threaten by his then unstable cell-mate, this was told to various

supervisors (initially it was all verbal altercation before he put his

hands on me I never touched him outside trying to get him off me)

and felled [sic] on death [sic] ears.

Plaintiff suffered cuts to his face/head area, then, the cell-mate

allegedly claim plaintiff hit the corner of the bed and caused the

injuries by jumping on him. (yet, plaintiff is totally blind and can

not [sic] see to hit anyone, let alone fight back)

Plaintiff was transfer[red] to Ad Seg. in Northern State Prison and

tried his best to file an Administrative Disciplinary Appeal but same

felled [sic] on death [sic] ears. Same for plaintiff wanting to file

charges on the individual whom physically assaulted him.

Plaintiff was placed on the top bunk with a medical boot on his foot

and legally blind in solitary confinement cell for the 91 days.

Plaintiff was suffering from a lack of adequate access to proper

medical and mental health care, any form of rehabilitative therapy,

programming and other necessities for individuals with disability

like him. (Totally blind) Plaintiff was as well yet and still denied

ADA ACT Medical Care and/or Rehabilitative ACT medical care

and unfortunately con-tinue[s] to experience the discriminatory

treatment thus date.

Once plaintiff Northern State Prison Ad. Seg. Time (plaintiff was

sanction to punitive sanctions of: 15 Days LORP; 91 Days Ad. Seg;

60 Days LOCT) was completed, plaintiff was transfer[red] to

1 The following factual allegations are taken from the Amended Complaint, and are accepted for purposes of

this screening only. The Court has made no findings as to the veracity of Plaintiff’s allegations.

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Southern State Prison. Still being denied properly ADA ACT

Medical Care and Rehabilitative ACT Medical Care and once again

a continuation of the common practices of discriminatory treatment

there; eventually plaintiff was transfer[red] to Southwoods State

Prison, yet and still denied ADA ACT Medical Care, as

Rehabilitative ACT Medical Care, here, too, as the ongoing

discriminatory treatment thus date.

(Am. Compl. ¶¶ 17–22).

4. In his Amended Complaint, Plaintiff re-raises his § 1983 denial of medical care claim,

which was dismissed in the Court’s prior Opinion, and also raises claims under the Americans

with Disabilities Act (“ADA”), the Rehabilitation Act (“RA”) and the New Jersey Law Against

Discrimination (“NJLAD”).

5. With regards to his Eighth Amendment denial of medical care claim, it is again

insufficient. 2 He makes various references to unspecified defendants being deliberately

indifferent to his medical needs, but does not state exactly what medical care he was denied, who

denied him the care, or when he was denied said care. As such, any intended § 1983 claim for

denial of medical care must be dismissed without prejudice.

2 The Eighth 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 prison officials provide inmates with adequate medical care. Estelle v. Gamble, 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 his medical needs are serious.

Serious medical needs include those that have been diagnosed by a physician as requiring treatment or are so obvious

a lay person would recognize the necessity for a doctor's attention, and those conditions which, if untreated, would

result in lifelong handicap or permanent loss. Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 834 F.2d 326, 347 (3d

Cir. 1987).

The second element of the Estelle test requires an inmate to show prison officials acted with deliberate

indifference to his serious medical need. “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. 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 Cty., 95 F. Supp. 2d 217, 228 (D.N.J. 2000).

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6. Plaintiff also raises a First Amendment retaliation claim.3 Specifically, he states that

the ADA liaison at South Woods State Prison, Mrs. Luz Torres, “told plaintiff personally to his

face . . . that plaintiff went over her head, (written to down town Central Office of N.J. Dept. of

Corr., along to other parties) which, plaintiff explained that he did not need her permission for him

to write (of course with some assistance) outside her authority, if you will and/or without checking

with her first and foremost.” (Am. Compl. ¶ 42). Assuming Plaintiff’s writing to the “down

town Central Office” is constitutionally protected activity, see Mitchell v. Horn, 318 F.3d 523, 530

(3d Cir. 2003) (explaining that the filing of a prison grievance “implicates conduct protected by

the First Amendment”), Plaintiff has nevertheless failed to allege any adverse action. He merely

states that Mrs. Torres told him that she knew he “went over her head;” there is no indication that

she took any action against him at all as a result. As such, his retaliation claim must be dismissed.

7. His remaining claims, i.e. violations of the ADA, RA, and NJLAD, are somewhat

unclear. However, for screening purposes, he has sufficiently alleged that his rights under these

statutes were violated by Defendants: denying him a bottom bunk at Northern State Prison;

denying him a sign indicating his blindness on his cell door to alert staff members at all facilities;

denying him access to adequate shower facilities at South Woods State Prison; and denying him a

reliable way to read/be apprised of the “daily lodge/pass list.”4 These claims will be permitted to

3 In order to state a prima facie case of First Amendment retaliation, a prisoner must plausibly allege that: (1)

he engaged in constitutionally protected conduct; (2) he suffered an adverse action sufficient to deter a person of

ordinary firmness from exercising his constitutional rights; and (3) the constitutionally protected conduct was “a

substantial or motivating factor” for the adverse action. See Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001).

4 Title II of the ADA prohibits discrimination in connection with access to public services, requiring that “no

qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied

the benefits of the services, programs, or activities of a public entity or be subjected to discrimination by any such

entity.” 42 U.S.C. § 12132. It is well established that state prisons are “public entities” as defined by Title II of the

ADA. See Pennsylvania Dep’t of Corrections v. Yeskey, 524 U.S. 206, 210 (1998); Brown v. Pennsylvania Dep’t of

Corr., 290 F. App'x 463, 467 (3d Cir. 2008). The same standards govern the RA, ADA and NJLAD claims. See

Chisolm v. McManimon, 275 F.3d 315, 324 n. 9 (3d Cir. 2001) (confining discussion to ADA Title II “with the

understanding that the principles will apply equally to the Rehabilitation Act and NJLAD claims”); Royster v. New

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proceed.

8. In light of the Court’s finding that several of Plaintiff’s claims will proceed, the Court

will also sua sponte reconsider its prior decision to deny Plaintiff’s application for appointment of

pro bono counsel. (D.E. No. 11). In determining whether to appoint counsel, a court considers

the following: (1) the plaintiff's ability to present his or her own case; (2) the complexity of the

legal issues; (3) the degree to which factual investigation will be necessary and the ability of the

plaintiff to pursue such investigation; (4) the amount a case is likely to turn on credibility

determinations; (5) whether the case will require the testimony of expert witnesses; and (6)

whether the plaintiff can attain and afford counsel on his own behalf. See Tabron v. Grace, 6

F.3d 147, 155–56 (3d Cir. 1993).

9. After consideration of the Tabron factors, the Court finds that Plaintiff’s ability to

present his own case is limited due to his blindness and, while the legal issues are not particularly

complex, factual investigation will be necessary and it is unlikely Plaintiff will be able to undertake

such investigation. It is likely the case will turn on credibility determinations and expert

testimony may be necessary. Lastly, Plaintiff is unable to attain and afford counsel on his own.

In sum, a balancing of the Tabron factors favors appointment of counsel at this time.

10. Finally, the Court notes that Plaintiff submitted a notice of motion for a preliminary

injunction with his Amended Complaint. (D.E. No. 13 at 1–4). However, he does not attach a

supporting brief and his Amended Complaint does not address the requirements to obtain a

preliminary injunction. See Reilly v. City of Harrisburg, 858 F.3d 173, 176 (3d Cir. 2017) (noting

that to obtain a preliminary injunction, the moving party must show: “(1) a reasonable probability

Jersey State Police, 152 A.3d 900, 910 (N.J. 2017) (“The requirements for failure to accommodate claims under New

Jersey's LAD have been interpreted in accordance with the Americans with Disabilities Act”) (internal citation

omitted).

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of eventual success in the litigation, and (2) that it will be irreparably injured if relief is not granted.

In addition, the district court, in considering whether to grant a preliminary injunction, should take

into account, when they are relevant, (3) the possibility of harm to other interested persons from

the grant or denial of the injunction, and (4) the public interest” (internal citations and quotation

marks omitted)). As such, his Motion will be denied without prejudice.

11. An appropriate Order follows.5

s/Esther Salas

Esther Salas, U.S.D.J.

5 The Court notes that the sixth claim in the Amended Complaint appears to be against Rutgers Healthcare, as

it refers to third party contracts. (Am. Compl. ¶¶ 49–55). However, the allegations are disjointed, and he references

requirements that do not appear relevant to Plaintiff and the facts he has alleged (i.e. the Individuals with Disabilities

Education Act (“IDEA”) and a free and public education (a “FAPE”)). Because the Court is unable to identify his

exact claim, it will be dismissed without prejudice.

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