FREEMAN v. MCDONNELL

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

:

DONNELL FREEMAN, :

: Civil Action No. 18-7802 (BRM) (ZNQ)

Plaintiff, :

:

v. : OPINION

:

KEVIN MCDONNELL, et al., :

:

Defendants. :

:

MARTINOTTI, DISTRICT JUDGE

Before this Court is an opposed Motion to Dismiss (ECF No. 59), filed by Defendants

Wellpath, LLC, and Kabeeruddin Hashmi, M.D., seeking to dismiss Plaintiff Donnell Freeman’s

(“Plaintiff”) Second Amended Complaint filed pursuant to 42 U.S.C. § 1983, with prejudice (ECF

No. 55). Also pending before the Court is Plaintiff’s motion to amend to permit a third amended

complaint (ECF No. 67), which Defendants oppose (ECF No. 68).

The third amended complaint lists the following defendants: Monmouth County

Correctional Institution (“MCCI”), Warden Donald Sutton, MCCI Supervisors John Does A-E,

Correct Care Solutions, LLC d/b/a/ Wellpath, Kabeeruddin Hashmi, M.D., Kevin McDonell,1

M.D., Daniel Unachukwu, and County of Monmouth. (ECF No. 67-2 ¶¶ 5–12.)

Plaintiff alleges federal violations under 42 U.S.C. § 1983; the American with Disabilities

Act, the New Jersey Law Against Discrimination; and tort claims under New Jersey law. Plaintiff

seeks “judgment” together with court costs, attorneys’ fees and any other appropriate relief. (Id. at

17.) Pursuant to Fed. R. Civ. P. 78, no oral argument was heard. For the reasons sets forth below,

1 Kevin McDonnell, M.D. was initially terminated from this matter on February 5, 2019.

Plaintiff’s motion to amend the second amended complaint is GRANTED, and Defendants’

motions to dismiss the second amended complaint is ADMINISTRATIVELY TERMINATED.2

I. BACKGROUND

A. Factual Background

This action arises out of events which occurred during Plaintiff’s detention at MCCI in

Freehold, New Jersey. (Third Am. Compl. (ECF No. 67-2).) On or about June 29, 2015, Plaintiff

was taken to MCCI following his release from Bayshore Hospital after a car crash.3 (Id. at ¶¶ 21–

26.) At MCCI, Petitioner advised medical providers the medication they were providing was

insufficient for his pain. (Id. at ¶¶ 27–29.) Petitioner experienced involuntarily leg jerking,

numbness in his leg, and “feel his hip pop out of place.” (Id. at ¶¶ 30–33.) Plaintiff experienced

issues with his mobility including difficulty using stairs and showering, due to pain. (Id. at ¶¶ 35–

37.) Plaintiff submits the pain resulted in him developing mental issues resulting in him being

given psychiatric drugs. (Id. at ¶ 35.) After six months of experiencing the aforementioned pain,

an x-ray was taken. (Id. at ¶ 38.) Kevin McDonnel, M.D., interpreted the x-ray as a “deformity of

the left hip acetabulum. Chronic. Severe degenerative changes.” (Id. at ¶ 39.) Plaintiff contends,

“Hashmi and Unachukwu lied about the x-ray, telling Plaintiff that the pain he was experiencing

was just the result of an old fracture that had healed.” (Id. at ¶ 40.) He also submits, Defendants

“Hashmi and/or Unachukwu wrote off Plaintiff’s limping as the result of ‘mild’ pain and refused

2 Notwithstanding the Court’s decision to administratively terminate Defendants’ motion to

dismiss the second amended complaint in light of granting Plaintiff’s motion to amend, the Court’s

ultimate disposition with respect to either the second or third amended complaints would not have

been materially different as this Court’s screening applies a Rule 12(b)(6) standard.

3 Prior to the car crash, Petitioner was experiencing hip pain and issues stemming from a hip injury

when he was fourteen years old, which was treated by surgically implanting a screw in his hip, and

a subsequent fall in 2011, where he began to experience hip pain. (ECF No. 55 ¶¶ 14, 16-17).

to pursue any remedial treatments other than medication which he knew were totally ineffective.”

(Id. at ¶ 59.) Plaintiff’s requests for follow-up care as well as to be housed in a medical wing which

accommodated disabled inmates, was denied. (Id. at ¶¶ 41-44.) Moreover, Plaintiff’s requests for

a wheelchair, cane, or permission to use the bottom bunk were denied. (Id. at ¶ 45.) Almost two

years later, in April 2017, Plaintiff was transferred to South Woods State Prison. (Id. at ¶ 47.) At

South Woods, an x-ray was taken after a nurse observed Plaintiff’s “attempt to walk.” (Id. at ¶ 48.)

The x-ray reflected Plaintiff’s hip was severely deformed, the screw in his hip had come loose,

and he needed a complete hip replacement. (Id. at ¶ 48.) On December 12, 2017, Plaintiff

underwent a total hip replacement at St. Francis Hospital. (Id. at 50.)

B. Procedural Background

Plaintiff filed his initial complaint pro se in this Court on April 16, 2018. (ECF No. 1.) On

June 26, 2018, the Court issued an order and opinion granting Plaintiff’s in forma pauperis

application and dismissed the complaint without prejudice for failure to state a claim. (ECF No.

2.)4 Both of Plaintiff’s motions for pro bono counsel were denied. (ECF Nos. 8, 20.) Plaintiff’s

subsequent motion to amend was granted. (ECF No. 9.) Plaintiff filed additional motions for leave

to amend (ECF Nos. 10, 14, 22), which were subsequently terminated to allow Plaintiff’s newly

retained counsel an opportunity to file an amended complaint. (ECF No. 29.) On July 23, 2019,

Plaintiff filed an amended complaint. (ECF No. 30.) Defendants Wellpath and Hashmi filed a

motion to dismiss the amended complaint on July 10, 2019. (ECF No. 48.) On December 29, 2010,

Plaintiff, through counsel, filed a second amended complaint, without leave of the Court. (ECF

No. 55.) On January 27, 2020, the Court entered an order terminating Defendants’ Motion to

4 Plaintiff’s initial complaint solely named Kevin McDonnell, M.D. as a defendant.

Dismiss in light of Plaintiff’s second amended complaint. (ECF No. 57.) Defendants Wellpath and

Hashmi then filed a motion to dismiss the second amended complaint. (ECF No. 59.)5

II. MOTION TO AMEND SECOND AMENDED COMPLAINT

Plaintiff filed a motion to amend the second amended complaint while Defendants’ motion

to dismiss the second amended complaint was pending. (ECF No. 67.) Plaintiff argues he recently

obtained discovery which allowed him to name a defendant previously identified as John Doe,

M.D. (Id. at ¶¶ 6-7.) Plaintiff submits that, as a result of the discovery he just received close to

eight months after Defendants’ instant motion to dismiss was filed, he has learned John Doe, M.D.

is nurse practitioner, Daniel Unachukwu. (Id. at ¶ 6.) Moreover, the proposed third amended

complaint changes the Eighth Amendment deliberate indifference claim to a Fourteenth

Amendment deliberate indifference claim, as Plaintiff was a pretrial detainee. (Id. at ¶ 8.)

A court has discretion to strike or allow an amended complaint that is filed after the

deadline to make an amendment as a matter of course under Rule 15(a)(1) has passed. Plaintiff’s

instant motion to amend was clearly filed after the twenty-one-day amendment “as a matter of

course” period had expired and he already amended his pleading once. Therefore, he may only

amend the pleading “with the opposing party’s written consent or the court’s leave.” Fed. R. Civ.

P. 15(a)(2).

The court’s leave to amend “shall be freely given when justice so

requires.” Id. A general presumption exists in favor of allowing a

party to amend its pleadings. Boileau v. Bethlehem Steel Corp., 730

F.2d 929, 938 (3d Cir. 1984). Leave to amend a complaint should

be granted freely in the absence of undue delay or bad faith on the

part of the movant as long as the amendment would not be futile and

the opposing party would not suffer undue prejudice. Foman v.

Davis, 371 U.S. 178, 182 (1962); Jang v. Boston Scientific Scimed,

Inc., 729 F.3d 357, 367 (3d Cir. 2013) (citation omitted). “Futility

5 The parties entered a stipulation of dismissal with prejudice as to defendants Scott Miller, M.D.,

and St. Francis Medical Center. (ECF Nos. 51-54.)

means that the complaint, as amended, would fail to state a claim

upon which relief could be granted.” Travelers Indem. Co. v.

Dammann & Co., Inc., 594 F.3d 238, 243 (3d Cir. 2010) (quoting In

re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir.

1997)) (further citation omitted).

“[A] refusal of a motion for leave to amend must be justified,” Riley

v. Taylor, 62 F.3d 86, 90 (3d Cir. 1995), and the Third Circuit has

identified the following as permissible justifications: “(1) undue

delay; (2) bad faith or dilatory motive; (3) undue prejudice to the

opposition; (4) repeated failures to correct deficiencies with

previous amendments; and (5) futility of the amendment.” Id. (citing

Foman, 371 U.S. at 182). “Amendment of the complaint is futile if

the amendment will not cure the deficiency in the original complaint

or if the amended complaint cannot withstand a renewed motion to

dismiss.” Jablonski v. Pan Am. World Airways, Inc., 863 F.2d 289,

292 (3d Cir. 1988). For that reason, the Court applies the

“plausibility” standard which applies to motions to dismiss under

Rule 12(b)(6), Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007) and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Hunter v. Dematic, Civ. Action No. 16-00872, 2016 WL 2904955 at *3-4 (D.N.J. May 18, 2016).

Plaintiff argues the Defendants would not suffer any prejudice by this amendment because

the factual allegations against the previously unnamed defendant have not changed. (Id. at ¶ 9.)

He further argues, the proposed amendment would not alter Defendants’ arguments in their motion

to dismiss because if the claims against Hashmi and Wellpath LLC fail, so do the claims against

the newly-identified defendant, Unachukwu. (Id. at ¶ 10.) Although Plaintiff does not address the

additional matter of his recharacterizing his deliberate indifference claim as a Fourteenth

Amendment violation, the Court does not view this as being prejudicial to the moving Defendants

because the deliberate indifference claim can rightfully be assessed under a Fourteenth

Amendment or Eighth Amendment standard. See Natale v. Camden Cnty. Corr. Facility, 318 F.3d

575, 581-82 (3d Cir. 2003).

The Court notes Plaintiff has now filed multiple amendments both as a pro se litigant and

with representation.6 In light of Plaintiff’s representation, that he recently received discovery

which allowed him to clarify John Doe M.D.’s identity, the Court will permit the third amended

complaint and order the Clerk to have it filed. Furthermore, the only substantive changes to the

proposed amended third complaint are the addition of Unachukwu’s name and the replacement of

the Eighth Amendment deliberate indifference claim with a Fourteenth Amendment claim. (ECF

No. 67-2.) Therefore, Plaintiff’s motion to amend is granted. Nevertheless, this Court must still

screen the third amended complaint given that Plaintiff is proceeding in forma pauperis. See 28

U.S.C. § 1915(e)(2)(B).

III. LEGAL STANDARD

A. Screening Standard

Per the Prison Litigation Reform Act, Pub.L. 104–134, §§ 801–810, 110 Stat. 1321–66 to

1321–77 (Apr. 26, 1996) (“PLRA”), district courts must review complaints in those civil actions

in which a prisoner is proceeding in forma pauperis, see 28 U.S.C. § 1915(e)(2)(B), seeks redress

against a governmental employee or entity, see 28 U.S.C. § 1915A(b), or brings a claim with

respect to prison conditions, see 42 U.S.C. § 1997e. The PLRA directs district courts to sua sponte

dismiss any claim that is frivolous, is 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. This action is

subject to sua sponte screening for dismissal under 28 U.S.C. §§ 1915(e)(2)(b) and 1915A because

6 Moving Defendants also ask the Court to deny Plaintiff’s second amended complaint, as it was

filed without the moving defendants’ consent and without leave of court while a previous motion

to dismiss was pending. (ECF No. 55 at 18-19.) Although leave was not sought and Plaintiff’s

counsel’s actions were technically improper, the Court would have granted leave under the

circumstances. Nevertheless, the Court may not be so forgiving of future delayed filings and

amendments.

Plaintiff is a prisoner proceeding in forma pauperis and is seeking relief from government

employees.

Every 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.” “Specific facts are not necessary; 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 . . . . 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).

That is, a complaint must assert “enough facts to state a claim to relief that is plausible on

its face.” Id. at 570. “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.” Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n.3 (3d Cir. 2014) (quoting

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “The plausibility determination is ‘a context-specific

task that requires the reviewing court to draw on its judicial experience and common sense.’”

Connelly v. Lane Const. Corp., 809 F.3d 780, 786-87 (3d Cir. 2016) (quoting Iqbal, 556 U.S. at

679); see also Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012) (citations omitted). Thus, a court

is “not bound to accept as true a legal conclusion couched as a factual allegation,” and

“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Iqbal, 556 U.S. at 678 (citations omitted).

In general, where a complaint subject to statutory screening can be remedied by

amendment, a district court should not dismiss the complaint with prejudice, but should permit the

amendment. See Denton v. Hernandez, 504 U.S. 25, 34 (1992); Grayson v. Mayview State

Hospital, 293 F.3d 103, 108 (3d Cir. 2002) (noting that leave to amend should be granted “in the

absence of undue delay, bad faith, dilatory motive, unfair prejudice, or futility of amendment”),

cited in Thomaston v. Meyer, 519 F. App’x 118, 120 n.2 (3d Cir. 2013); Urrutia v. Harrisburg

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

“A claim has facial plausibility when the pleaded factual content allows the court to draw

the reasonable inference that the defendant is liable for misconduct alleged.” Id. This “plausibility

standard” requires the complaint allege “more than a sheer possibility that a defendant has acted

unlawfully,” but it “is not akin to a “probability requirement.’” Id. (citing Twombly, 550 U.S. at

556). “Detailed factual allegations” are not required, but “more than ‘an unadorned, the defendant-

harmed-me accusation’ ” must be pled; it must include “factual enhancements” and not just

conclusory statements or a recitation of the elements of a cause of action. Id. (citing Twombly, 550

U.S. at 555, 557).

“Determining whether a complaint states a plausible claim for relief [is] . . . a context-

specific task that requires the reviewing court to draw on its judicial experience and common

sense.” Iqbal, 556 U.S. at 678. “[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.’” Id. at 679. (quoting Fed. R. Civ. P. 8(a)(2)). Moreover, the

Court will employ its screening authority under the Prison Litigation Reform Act (“PLRA”). “[I]f

there is a ground for dismissal which was not relied upon by a defendant in a motion to dismiss,

the court may nonetheless sua sponte rest its dismissal upon such ground pursuant to the screening

provisions of the PLRA.” Banks v. Cnty. of Allegheny, 568 F. Supp. 2d 579, 589 (W.D. Pa. 2008).

B. Section 1983 Actions

A plaintiff may have a cause of action under 42 U.S.C. § 1983 for certain violations of his

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 . . . .

Therefore, to state a claim for relief under § 1983, a plaintiff must allege, first, the violation

of a right secured by the Constitution or laws of the United States and, second, that the alleged

deprivation was committed or caused by a person acting under color of state law. See West v.

Atkins, 487 U.S. 42, 48 (1988); Malleus v. George, 641 F.3d 560, 563 (3d Cir. 2011).

Although a county may be a proper defendant in a § 1983 action, a county jail is not. Hutton

v. Dep’t of Homeland Sec., Civ. A. No. 17-13393, 2018 WL 734666 at *2 (D.N.J. Feb. 5, 2018).

Consequently, all of Petitioner’s claims against MCCI are dismissed with prejudice.

IV. DECISION

A. Deliberate Indifference-Medical Care

In Count One of his third amended complaint, Plaintiff alleges a Fourteenth Amendment

deliberate indifference to his medical needs by Defendants Hashmi, McDonnell, Unachukwu,

Warden Donald Sutton and John Does A-E. (ECF No. 67-2 at ¶¶ 54-62.) Plaintiff provides very

few facts to support his deliberate indifference claim against the defendants.

Although a pretrial detainee’s medical care claim is to be assessed through the Fourteenth

Amendment’s due process lens, the Third Circuit has found “no reason to apply a different standard

than that set forth in Estelle (pertaining to prisoners’ claims of inadequate medical care under the

Eighth Amendment) when evaluating whether a claim for inadequate medical care by a pre-trial

detainee is sufficient under the Fourteenth Amendment.” Natale v. Camden Cnty. Corr. Facility,

318 F.3d 575, 581-82 (3d Cir. 2003) (internal citations omitted). The Eighth Amendment

proscription against cruel and unusual punishment requires that prison officials provide inmates

with adequate medical care. Estelle v. Gamble, 429 U.S. 97, 103–105, 97 S. Ct. 285, 50 L.Ed.2d

251 (1976). However, in order to set forth a cognizable claim, an inmate must allege (i) a serious

medical need and (ii) acts or omissions by prison officials that indicate deliberate indifference to

that need. Estelle v. Gamble, 429 U.S. at 104; Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999).

A prison official is deliberately indifferent if he knows that a prisoner faces a substantial risk of

serious harm and fails to take reasonable steps to avoid the harm. Farmer, 511 U.S. at 837. A

prison official may manifest deliberate indifference by “intentionally denying or delaying access

to medical care.” Estelle, 429 U.S. at 104–05. See Coudriet v. Vardaro, 545 F. App’x 99, 104 (3d

Cir. 2013) (citing Singletary v. Pa. Dep’t of Corr., 266 F.3d 186, 193 (3d Cir. 2001)).

“Deliberate indifference,” therefore, requires “obduracy and

wantonness,” Whitley v. Albers, 475 U.S. 312, 319, 106 S. Ct. 1078,

89 L.Ed.2d 251 (1986), which has been likened to conduct that

includes recklessness or a conscious disregard of a serious risk. See

Farmer v. Brennan, 511 U.S. 825, 842, 114 S. Ct. 1970, 128 L.Ed.2d

811 (1994). Moreover, “[i]t is well-settled that claims of negligence

or medical malpractice, without some more culpable state of mind,

do not constitute ‘deliberate indifference.’”

Rouse, 182 F.3d at 197.

Plaintiff alleges facts that appear to suggest Defendants Hashmi, McDonnell and

Unuchokwu downplayed the severity of his condition. Plaintiff provides while he was provided

pain medication, the prison staff ignored his complaints that the medication was insufficient.

Moreover, he was eventually administered an x-ray, months after his detention at MCCI

commenced. The results of the x-ray indicated a potentially serious condition which may have

needed further medical attention, however, according to the Plaintiff, his cries for help continued

to go ignored. While Plaintiff has not clearly pled whether it was Hashmi or Unachukwu, or both,

who read Dr. McDonnell’s x-ray report, he does state that he informed Hashmi, McDonnell and

Unachukwu that he was in severe pain.

The facts of Plaintiff’s case are parallel to that of the state prisoner in Spruill v. Gillis, 372

F.3d 218, 224-225 (3d Cir. 2004), where the Plaintiff repeatedly expressed he was in severe pain

from a pre-existing back disorder that was exacerbated by two falls in one week at the correctional

facility. Spruill alleged he complained to prison officials that the pain medication he was provided

was insufficient. The United States Court of Appeals for the Third Circuit held Spruill adequately

pled deliberate indifference to survive a motion to dismiss. Here, like Spruill, the Plaintiff informed

the moving Defendants the pain medication he was provided was not alleviating his hip pain.

Plaintiff’s condition caused him mental anguish as well as decreased mobility. Contrasting the

prisoner in Spruill with the Plaintiff here, the medical defendants in Spruill accused him of

malingering and handled him in a rough manner when they were examining him. Id. at 225. While

Plaintiff here has not alleged such untoward conduct by the defendants, his condition and the

“threat of tangible residual injury” foreclose dismissal of the deliberate indifference claim at this

screening stage. Id. at 235.

Consequently, Plaintiff has adequately pled a deliberate indifference claim against

Defendant Hashmi, McDonnell and Unachokwu. Therefore, Plaintiff’s deliberate indifference

claim will PROCEED against those three defendants.

As for Plaintiff’s deliberate indifference claim against Warden Sutton and MCCI

Supervisors John Does A-E, Plaintiff states, they were “personally involved in the deliberate

indifference to Plaintiff’s serious medical condition by denying Plaintiff’s requests for treatment

and/or ratifying policies and/or decisions that forbid the doctors from attending to Plaintiff’s

severely painful condition.” (ECF No. 67-2 at ¶¶ 61-62.)

This Court analyzes supervisory claims using one of two theories. First, a supervisor can

be held liable if they “established and maintained a policy or custom which directly caused the

constitutional harm and another under which they can be liable if they participated in violating

plaintiff’s rights, directed others to violate them, or as the persons in charge, had knowledge of

and acquiesced in their subordinates’ violations.” Parkell v. Danberg, 833 F.3d 313, 330 (3d Cir.

2016) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 129 n.5 (3d Cir. 2010)). In order to

establish a claim in this context, Plaintiff would have to show that the prison official: (1) had

knowledge of the prisoner’s problem, (2) that the official either failed to act or took any ineffectual

action under circumstances indicating that his or her response to the problem was a product of

deliberate indifference, and that (3) a causal connection exists between the official’s response and

the harm. Sample v. Diecks, 885 F.2d 1099, 1110 (3d Cir. 1989) (holding that evidence was

insufficient to hold Commissioner of Corrections liable for constitutional violations).

Here, Plaintiff appears to be making both a policymaker claim and alternatively that Sutton

and John Does A-E had knowledge of the alleged violations. In order to establish supervisory

liability in the policymaker context, Plaintiff would have to show: (1) the existence of a policy or

practice that created an unreasonable risk of an Eighth Amendment violation; (2) the supervisor’s

awareness of the creation of the risk; (3) the supervisor’s indifference to the risk; and (4) that the

plaintiff’s injury resulted from this policy or practice. Sample v. Diecks, 885 F.2d 1099, 1118 (3d

Cir. 1989) (holding that evidence was insufficient to hold Commissioner of Corrections liable for

constitutional violations). Moreover, the Sample Court articulated that deliberate indifference

could be demonstrated by “evidence that the supervisory official failed to respond appropriately

in the face of a pattern of such injuries. Id.

In this case, the third amended complaint contains insufficient factual matter to suggest

that any policy or practice created the harm that Plaintiff alleges as the first Sample factor requires.

Assuming arguendo Plaintiff did demonstrate that a policy or practice that triggered Eighth

Amendment protections existed, Plaintiff has not demonstrated that these particular defendants

were aware of it. See Beers-Capitol v. Whetzel, 256 F.3d 120, 137 (3d Cir. 2001) (holding that

plaintiff did not establish that prison official was aware of “pattern” of violations by prison

employees). Plaintiff has not alleged that the defendants were aware of a pattern of behavior that

posed a risk to plaintiff. Therefore, the Court cannot proceed to the remaining requisite factors set

forth in Sample, because of Plaintiff’s failure to meet the first two factors.

Plaintiff’s claims against the warden and supervisors cannot succeed under his theory that

they denied his requests for treatment. See Ayala v. Terhune, 195 F. App’x 87, 91 (3rd Cir. 2006)

(“[P]rison administrators cannot be found deliberately indifferent under the Eighth Amendment

because they fail to respond to the medical complaints of an inmate being treated by a prison

physician, or because, as non-physicians, they defer to the medical judgment of prison

physicians.”) (internal citation omitted).

Accordingly, Plaintiff’s deliberate indifference claim against Defendants Sutton and John

Does A-E is DISMISSED WITHOUT PREJUDICE.

B. Americans with Disabilities Act Claim

In Count Three, Plaintiff alleges a violation by Defendants Hashmi, Unachukwu, John

Does A-E, Warden Sutton, MCCI, Monmouth County and the state of New Jersey7 of the

Americans with Disabilities Act (“ADA”). (ECF No. 67-2 at ¶¶ 66-74.) Plaintiff alleges several of

the defendants were “directly responsible for denying [him] reasonable accommodations.” (Id. at

¶¶ 69-71.)

In order to state a claim for relief under the ADA, a plaintiff must plead facts which would

show that he is a qualified individual with a disability, that he was denied the benefits of a program

or activity of a public entity, and that the exclusion from those benefits occurred by reason of his

disability. See, e.g., Calloway v. Boro of Glassboro Dep’t of Pol., 89 F. Supp. 2d 543, 551 (D.N.J.

2000); see also Ali v. Governor of Del., 777 F. App’x 584, 588-89 (3d Cir. 2019).

Plaintiff does not provide any additional facts as to how these individuals or entities were

responsible. Nor has he identified the nature of his disability, if any.

Consequently, Plaintiff’s ADA claim against Defendants Hashmi, Unachukwu, John Does

A-E, Warden Sutton, Monmouth County, and the state of New Jersey is DISMISSED.

C. Plaintiff’s State Law Claims

Plaintiff also alleges violations under New Jersey’s Law Against Discrimination and

medical malpractice laws.

7 Plaintiff does not list New Jersey as a party in this matter in the section of the complaint where

he lists all of the defendants, nevertheless, he raises an ADA claim against the state as well. (ECF

No. 67-2 at ¶ 74.)

1. Medical Malpractice

Plaintiff alleges medical malpractice by Defendants Hashmi, McDonnell and Unachokwu,

as well as Wellpath LLC under the doctrine of respondeat superior. (Am. Compl. (ECF No. 67-

2) at ¶ 187.)

Under New Jersey law, the plaintiff raising a medical malpractice claim has the burden of

proving the relevant standard of care governing the defendant-doctor, a deviation from that

standard, an injury proximately caused by the deviation, and damages suffered from the defendant-

doctor's negligence. Komlodi v. Picciano, 89 A.3d 1234, 1246 (N.J. 2014). Moreover, under New

Jersey law, “[w]here the physician is a direct employee, respondeat superior may be applied.”

Dunn v. Praiss, 606 A.2d 862, 869 (N.J. Super. Ct. App. Div., 1992).

In light of Plaintiff’s allegations against the medical personnel defendants, the Court will

allow the medical malpractice claim to proceed against Hashmi, McDonnell and Unachokwu.

Moreover, because Defendant Hashmi was employed by Wellpath during the relevant time period,

the Court will allow Plaintiff’s respondent superior theory at this stage. Therefore, Plaintiff’s

medical malpractice claim against Hashmi, McDonnell, Unachokwu and Wellpath, LLC will

PROCEED.

2. New Jersey Law Against Discrimination

Finally, Plaintiff raises a claim under the NJLAD, codified at N.J. Stat. Ann. §§ 10:5-1-49.

(ECF No. 67-2 at ¶¶ 75-82.) Plaintiff alleges Defendants Hashmi, Unachukwu, John Does A-E,

Warden Sutton and Monmouth County directly or vicariously violated his right under NJLAD by

denying his requests for reasonable accommodations. (Id.)

“To eliminate workplace discrimination against those with disabilities, [b]oth the [NJ]LAD

and ADA were enacted to protect the rights of those with disabilities, and to enable them to

vindicate those rights in court.” Caraballo v. City of Jersey City Police Dep’t., 204 A.3d 254, 260

(N.J. 2019) (internal quotation marks and citation omitted). Consequently, a plaintiff pleading a

NJLAD disability claim must first, show he is in a protected class, meaning he qualifies as an

individual with a disability. Second, the plaintiff must show he is “qualified to perform the

essential functions of the job, or was performing those essential functions either with or without a

reasonable accommodation.” Victor v. State, 4 A.3d 126, 142 (2010).

Here, however Plaintiff pleads nothing more than that the defendants denied him

reasonable accommodations. He does not articulate whether this purported discrimination was in

the context of employment, which is a central issue to whether he can raise a disability-related

NJLAD claim. Consequently, Plaintiff has not alleged enough factual content to adequately plead

a NJLAD violation. Plaintiff’s NJLAD claim against Defendants Hashmi, Unachukwu, John Does

A-E, Warden Sutton and Monmouth County is DISMISSED WITHOUT PREJUDICE.

V. CONCLUSION

For the foregoing reasons, Plaintiff’s Motion to Amend the Second Amended Complaint.

(ECF No. 67) is GRANTED; Defendants’ Motion to Dismiss the Second Amended Complaint,

(ECF No. 57), is ADMINISTRATIVELY TERMINATED; and Plaintiff’s Third Amended

Complaint (ECF No. 67-2) will PROCEED IN PART and is DISMISSED IN PART. An

appropriate order follows.

Dated: September 29, 2020

/s/ Brian R. Martinotti

HON. BRIAN R. MARTINOTTI

UNITED STATES DISTRICT JUDGE