# REAVIS v. HICKS

> District Court, D. New Jersey · June 5, 2020

URL: https://www.frixlaw.com/law-library/cases/10268305

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** June 5, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

CARL O. REAVIS, :
: CIV. NO. 19-21711 (RMB-AMD)
PLAINTIFF, :
:
v. : OPINION
:
MARCUS O. HICKS, et al., :
:
DEFENDANT. :

BUMB, DISTRICT JUDGE
Plaintiff Carl O. Reavis, a prisoner incarcerated in South
Woods State Prison (“SWSP”) in Bridgeton, New Jersey, filed this
civil action, on December 20, 2019. Plaintiff asserts jurisdiction
under 42 U.S.C. § 1983 and the Rehabilitation Act, 29 U.S.C. § 701
et seq. and brings claims the New Jersey Civil Rights Act, N.J.S.A.
10:6-1 et seq. (“NJCRA). (Compl., ECF No. 1). Plaintiff has
established his financial eligibility to proceed without
prepayment of the filing fee. His application to proceed in forma
pauperis (Dkt. No. 1-1) under 28 U.S.C. § 1915 is granted.
I. Sua Sponte Dismissal
When a prisoner proceeds without prepayment of the filing fee
or when the prisoner pays the filing fee for a civil action and
seeks redress from a governmental entity, officer or employee of
a governmental entity, the complaint must be screened by the Court.
28 U.S.C. §§ 1915(e)(2)(B), 1915A(b) and 42 U.S.C. § 1997e(c)
require courts to review the complaint and sua sponte dismiss any
claims that are (1) frivolous or malicious; (2) fail to state a

claim on which relief may be granted; or (3) seek monetary relief
against a defendant who is immune from such relief.
Pleadings that are filed pro se must be liberally construed
by the Courts. Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting
Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Thus, “a pro se
complaint, however inartfully pleaded, must be held to ‘less
stringent standards than formal pleadings drafted by lawyers.’”
Id. (internal quotation marks omitted). “Court personnel reviewing
pro se pleadings are charged with the responsibility of deciphering
why the submission was filed, what the litigant is seeking, and
what claims she may be making.” Higgs v. Atty. Gen. of the U.S.,
655 F.3d 333, 339-40 (3d Cir. 2011) (quoting Jonathan D.

Rosenbloom, Exploring Methods to Improve Management and Fairness
in Pro Se Cases: A Study of the Pro Se Docket in the Southern
District of New York, 30 Fordham Urb. L.J. 305, 308 (2002)).
A pleading 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). “To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the

misconduct alleged.” Id. (quoting Twombly, 550 U.S. at 556). Legal
conclusions, together with threadbare recitals of the elements of
a cause of action, do not suffice to state a claim. Id.
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. at
679. “While legal conclusions can provide the framework of a
complaint, they must be supported by factual allegations.” Id. If
a complaint can be remedied by an amendment, a district court may
not dismiss the complaint with prejudice but must permit the
amendment. Grayson v. Mayview State Hospital, 293 F.3d 103, 108
(3d Cir. 2002).

II. DISCUSSION
A. The Complaint
The complaint arises out of incidents that occurred in 2019
during Plaintiff’s detention in Ocean County Jail and his
incarceration in SWSP. Plaintiff alleges that while in Ocean County
Jail, his attorney provided jail officials with Plaintiff’s
personal health insurance card and permission from a judge for
Plaintiff to have hip surgery. (Compl., Count 3, ¶¶2-3, Dkt. No.
1 at 19.) Plaintiff’s request for surgery was denied by defendants
Warden Sandra Muellen, L.P.N. P.J. Holden, Medical Director Dr.
Santangello and Correct Care Solution, Inc. (“the Ocean County
Defendants.”) (Compl., Count 3, ¶3, Dkt. No. 1 at 19.)

Further, Plaintiff alleges he was incarcerated in SWSP on
August 13, 2019, when he was taken to University Hospital for an
operation. (Id. Count 3, ¶2 Dkt No. 1 at 18.) When he arrived at
University Hospital, he was advised there was no doctor on staff
who could perform the surgery, and it would cost too much to obtain
another specialist. (Id.)
Plaintiff alleges that he wrote a grievance to SWSP’s medical
ombudsmen, Anthony Thomas, named here as a defendant. (Id. ¶3.)
According to Plaintiff, Thomas told him that Dr. Shakir had advised
Plaintiff against surgery on January 29; Plaintiff saw Dr. Neal at
University Hospital on August 13, and Dr. Neal did not recommend
surgery but rather physical medicine rehabilitation (“PMR”) with

Dr. Stitik. (Id.) Plaintiff disagreed with Thomas, alleging he did
not see Dr. Neal on August 13, he saw Dr. Ferandiz, who concurred
with Dr. Neal’s recommendation for surgery. (Id. ¶4.) Plaintiff
alleges that he could not have surgery that day without medical
and dental clearance, so Dr. Ferandiz recommended PMR and for
Plaintiff to return if his symptoms worsened or failed to improve.
(Id.) Plaintiff’s request for surgery was denied by UCHC, Dr.
Latimore-Collier, Nurse Practitioner Victoria D’Amico and Medical
Ombudsman Anthony Thomas (“the SWSP Defendants”). (Id. ¶5.)
On August 17, 2019, Plaintiff requested a wheelchair
accessible cell at SWSP. (Compl., Count 1, ¶8, Dkt. No. 1 at 17.)
His request was denied by the SWSP Defendants (Id. ¶9.) As the

supervisors of these defendants, Plaintiff seeks to hold liable
the New Jersey Department of Corrections, Commissioner Marcus O.
Hicks, and Administrator John Powell (“the Supervisory
Defendants.”) (Id. ¶10.)
In Count 2, Plaintiff alleges the SWSP Defendants issued
Plaintiff a wheelchair, which he contends is evidence that they
knew he was in excruciating pain. (Id., Count 2, ¶¶1-2, Dkt. No.
1 at 18.) He further alleges “over the years numerous appointments
for operation were scheduled . . . [due] to Central Transportation
arriving late were cancelled.”1 (Id. ¶2.) Plaintiff seeks damages
for alleged violations of the Rehabilitation Act, the Eighth and
Fourteenth Amendments under 42 U.S.C. § 1983 and the New Jersey

Civil Rights Act. (Id., Relief, ¶7.)
B. Claims Under 42 U.S.C. § 1983 and the NJCRA
Plaintiff alleges violation of his constitutional rights
under 42 U.S.C. § 1983 and the NJCRA. 42 U.S.C. § 1983 provides,
in relevant part:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of

1 The Court does not construe as a separate claim this bare
allegation that Plaintiff had scheduled operations cancelled over
the years due to transportation problems but rather as a factual
basis to support his allegation of deliberate indifference.
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....

To state a claim for relief under § 1983, a plaintiff must
allege the violation of a right secured by the Constitution or
laws of the United States, and that the constitutional deprivation
was caused by a person acting under color of state law. West v.
Atkins, 487 U.S. 42, 48 (1998); Malleus v. George, 641 F.3d 560,
563 (3d Cir. 2011).
The NJCRA was modeled after § 1983. Lapolla v. County of
Union, 157 A.3d 458, 469 (N.J. Super. Ct. App. Div. 2017). Thus,
courts in New Jersey interpret the NJCRA analogously to § 1983.
O'Neal v. Middletown Twp., No. 3:18-CV-5269-BRM-LHG, 2019 WL
77066, at *8 (D.N.J. Jan. 2, 2019) (citing Chapman v. New Jersey,
No. 08–4130, 2009 WL 2634888, *3 (D.N.J. August 25, 2009)). Claims
under the NJCRA are generally subject to the same defenses and
immunities as those brought under § 1983. Id. (citing Trafton v.
City of Woodbury, 799 F. Supp. 2d 417, 443-44 (D.N.J. 2011)). The
Court will address Plaintiff’s § 1983 and NJCRA claims together.
1 . Eleventh Amendment Immunity
Plaintiff has named the New Jersey Department of Corrections
as a defendant to his claims under § 1983. The Eleventh Amendment
“protects a state or state agency from a suit brought in federal
court by one of its own citizens regardless of the relief sought,
unless Congress specifically abrogates the state’s immunity[,] or

the state waives its own immunity.” Thorpe v. New Jersey, 246 F.
App’x. 86, 87 (3d Cir. 2007) (per curiam) (citing MCI Telecom.
Corp v. Bell Atl.-Pa., 271 F.3d 491, 503-504 (3d Cir. 2001),
Edelman v. Jordan, 415 U.S. 651, 663 (1974)). “Section 1983 does
not abrogate states’ immunity.” Id. (citing Quern v. Jordan, 440
U.S. 332, 340–41 (1979)). New Jersey has not waived its immunity
from § 1983 suits. Mierzwa v. U.S., 282 F. App’x 973, 976 (3d Cir.
2008) (per curiam). Therefore, the New Jersey Department of
Corrections is immune from Plaintiff’s claims under § 1983 and the
NJCRA.
2. Fourteenth Amendment Claim
The Fourteenth Amendment Due Process Clause protects pretrial

detainees from conditions of confinement, including lack of
healthcare, that amount to punishment. Montgomery v. Aparatis
Dist. Co., 607 F. App'x 184, 187 (3d Cir. 2015) (per curiam). The
Eighth Amendment standard for addressing claims of inadequate
medical care by convicted prisoners serves as a guide for claims
brought by pretrial detainees under the Fourteenth Amendment. Id.
“Delay or denial of medical care violates the Eighth Amendment
where defendants are deliberately indifferent to a prisoner's
serious medical need.” Id. (quoting Rouse v. Plantier, 182 F.3d
192, 197 (3d Cir. 1999)). Under the Eighth or Fourteenth Amendment,
negligence is insufficient to support a constitutional claim.
Montgomery, 607 F. App’x at 187 (citing Daniels v. Williams, 474

U.S. 327, 333 (1986)).
Plaintiff alleges the Ocean County Defendants violated his
rights under the Fourteenth Amendment by denying his request for
hip surgery. Although Plaintiff alleges that he had permission for
the surgery from a judge and that he could pay with his own health
insurance, Plaintiff fails to state a constitutional claim because
he does not allege that a physician ordered that it was medically
necessary for him to have surgery immediately. See id. at 188
(finding allegations did not state a constitutional claim where
the plaintiff did not allege that an MRI was necessary
immediately). Moreover, Plaintiff does not allege that he was not
provided any treatment for pain. The Court will deny Plaintiff’s

Fourteenth Amendment claim against the Ocean County Defendants and
Supervisory Defendants without prejudice.
3. Eighth Amendment Claim
For his Eighth Amendment claim, Plaintiff alleges the SWSP
and Supervisory Defendants denied him hip surgery, as recommended
by Dr. Neal and Dr. Ferandiz. Accepting the allegations as true,
as the Court must, Plaintiff fails to state an Eighth Amendment
claim. Plaintiff alleges he did not have medical or dental
clearance for surgery on August 13, 2019, so Dr. Ferandiz
recommended PMR and to return if his symptoms worsened or failed
to improve. “‘Where a prisoner has received some medical attention
and the dispute is over the adequacy of the treatment, federal

courts are generally reluctant to second guess medical judgments
and to constitutionalize claims which sound in state tort law.’”
Montilla v. Prison Health Servs., Inc., 457 F. App'x 212, 214 (3d
Cir. 2012) (per curiam) (quoting United States ex rel. Walker v.
Fayette Cnty., 599 F.2d 573, 575 n. 2 (3d Cir. 1979) (internal
quotation marks omitted)).
Plaintiff does not allege that Dr. Ferandiz ordered that
surgery was medically necessary. Even if one doctor recommends
surgery, a prisoner does not state an Eighth Amendment claim when
other doctors disagree with the necessity for surgery and prescribe
an alternative treatment. Id. (“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.’” (quoting Inmates of Allegheny Cnty. Jail v. Pierce,
612 F.2d 754, 762 (3d Cir.1979) (internal alterations, quotation
marks omitted)). The Court will dismiss the Eighth Amendment claim
against the SWSP and Supervisory Defendants without prejudice.
C. The Rehabilitation Act Claim
The Rehabilitation Act and the Americans with Disabilities
Act (“ADA”) provide 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.’” Matthews v. Pennsylvania

Dep't of Corr., 613 F. App'x 163, 169–70 (3d Cir. 2015) (quoting
42 U.S.C. § 12132)). Only “public entities” are subject to suit
under the ADA or Rehabilitation Act. Id. (citing 42 U.S.C. §
12131). Therefore, the New Jersey Department of Corrections is the
only proper defendant to Plaintiff’s Rehabilitation Act claim. See
id. at 170 (finding individual state officials and private
corporations contracting with state agencies are not subject to
suit under the Rehabilitation Act.)
Plaintiff alleges Defendants violated his rights under the
Rehabilitation Act by denying him a wheelchair accessible room at
SWSP after he was issued a wheelchair. To state a claim under the
Rehabilitation Act, a plaintiff “must allege that he is a qualified

individual with a disability, who was precluded from participating
in a program, service, or activity, or otherwise was subject to
discrimination, by reason of his disability.” Furgess v.
Pennsylvania Dep't of Corr., 933 F.3d 285, 288–89 (3d Cir. 2019).
If the plaintiff seeks compensatory damages, he must also show
“intentional discrimination under a deliberate indifference
standard[.]” Id. at 289.
Plaintiff’s allegations lack sufficient detail to state a
claim under the Rehabilitation Act. Plaintiff has not alleged any
facts showing that he was discriminated against based on his
disability or that he was “precluded from participating in a
program, service, or activity” by reason of his disability. Furgess

933 F.3d at 288–89. Therefore, the Court will dismiss the
Rehabilitation Act claim without prejudice.
III. CONCLUSION
For the reasons stated above, the Court will dismiss the
complaint without prejudice. An appropriate order follows.

Date: June 5, 2020
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10268305. Public record. Not legal advice.