WADE v. MILLS

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

WILLIE WADE, No. 19-CV-21501(NLH)(AMD)

Plaintiff,

v. OPINION

MS. LISA MILLS, L. MSV,

Defendant.

APPEARANCES:

Willie Wade

Inmate #: 549521A

South Woods State Prison

215 Burlington Road South

Bridgeton, NJ 08302

Plaintiff, Pro se

HILLMAN, District Judge

Plaintiff Willie Wade, a former New Jersey state inmate at

South Woods State Prison (“South Woods”),1 filed this civil rights

action against Defendant Lisa Mills, a nurse practitioner at

South Woods, pursuant to 42 U.S.C. § 1983. Plaintiff argues that

Defendant has known that Plaintiff had Hepatitis C since 1995 but

refused to treat Plaintiff or provide his medical records despite

1 Plaintiff filed this action while incarcerated. The New Jersey

Department of Corrections website indicates that Plaintiff was

incarcerated at South Woods from September 9, 2016 until his

release on October 24, 2020, while this screening was pending.

multiple administrative requests, or ignored the requests.2

Complaint, ECF No. 1, ¶¶ 4(b), 5-6. Plaintiff seeks an order

directing the production of his records, damages for the “long

delay of treatment and liver damage[] caused,” and punitive

damages totaling $400,000, and declaratory and injunctive relief,

including an order enjoining retaliation against Plaintiff for

filing this Complaint. ECF No. 1, ¶ 7.

This Court permitted Plaintiff to proceed in forma pauperis.

ECF No. 2. Pursuant to 28 U.S.C. § 1915(e)(2), the Court must

review the Complaint to determine whether it should be dismissed

as frivolous or malicious or for failure to state a claim upon

which relief may be granted. For the reasons below, the

Complaint is dismissed without prejudice as to the Eighth

Amendment/deliberate indifference claims, and with prejudice as

to all other claims.

I. BACKGROUND

Accepting as true the claims in the Complaint and supporting

documents, Plaintiff claims that Defendant knew of Plaintiff’s

1995 Hepatitis C diagnosis, yet failed to treat the disease or

disclose Plaintiff’s medical records, including information

regarding Plaintiff’s viral load, despite requests dating back to

2018. ECF No. 1, ¶¶ 5-7. Plaintiff attaches several requests to

2 According to Plaintiff, obtaining the records “is the only way

Plaintiff can find out the condition of his liver.” ECF No. 1, ¶

7.

the Complaint: (1) an August 5, 2019 record request for “blood

work ... done in May 2019 checking ... Hep. C viral load”; (2) an

identical August 27, 2019 follow-up request; (3) an August 27,

2019 Health Services Request form indicating that Plaintiff has

“suffered [from] Hepatitis C ... for ... years” and requesting

treatment; (4) a September 9, 2019 Inmate Inquiry Form following

up on the August 27, 2019 Health Services Request; (5) a

September 15, 2019 inmate inquiry form regarding the prior record

requests; (6) a November 6, 2019 follow-up to the prior record

requests; and (7) a November 6, 2019 follow-up to the prior

treatment requests. ECF No. 1-1, pp. 1-9. The Court interprets

the Complaint as asserting two claims: one for deliberate

indifference, and a second for the failure to respond to

Plaintiff’s request for medical records or grievances regarding

treatment.

II. STANDARD OF REVIEW

The Prison Litigation Reform Act, Pub. L. No. 104-134, §§

801-810, 110 Stat. 1321-66 to 1321-77 (April 26, 1996) (“PLRA”),

requires district courts to review complaints in those civil

actions in which a prisoner is proceeding in forma pauperis,

seeks redress against a governmental employee or entity, or

brings a claim with respect to prison conditions. See 42 U.S.C.

§ 1997e(c); 28 U.S.C. §§ 1915(e)(2)(B), 1915A(b).

To survive sua sponte screening for failure to state a

claim, the complaint must allege “sufficient factual matter” to

show that the claim is facially plausible. Fowler v. UPMC

Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). “‘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)). “[A]

pleading that offers ‘labels or conclusions’ or ‘a formulaic

recitation of the elements of a cause of action will not do.’”

Iqbal, 556 U.S. at 678 (quoting Bell Atlantic Corp. v. Twombly,

550 U.S. 544, 555 (2007)).

“[A] pro se complaint, however inartfully pleaded, must be

held to less stringent standards than formal pleadings drafted by

lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (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.” See 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)).

However, while pro se pleadings are liberally construed, “pro se

litigants still must allege sufficient facts in their complaints

to support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d

239, 245 (3d Cir. 2013).

III. ANALYSIS

A. Prospective/Injunctive Relief

As an initial matter, all claims for prospective relief are

denied because Plaintiff is no longer an inmate at South Woods.

Bragg v. Petrillo, No. CV 16-8751, 2017 WL 3075155, at *1 (D.N.J.

July 19, 2017) (“Generally, requests for injunctive relief for

claims involving adverse prison administrative actions,

regardless of their possible merits, become moot once the

prisoner is no longer subject to the challenged action.”) (citing

Abdul–Akbar v. Watson, 4 F.3d 195, 206–07 (3d Cir. 1993)); see

also McAlpine v. Thompson, 187 F.3d 1213, 1215 (10th Cir. 1999)

(“... inmate's parole or supervised release status does not,

absent some exceptional showing, bring that claim under the

narrow ‘capable of repetition, yet evading review’ exception to

the mootness doctrine.”). Accordingly, the claims for injunctive

relief, including any claims to enjoin retaliation by Defendant

or other prison officials, to cease violation of Eighth and

Fourteenth Amendment constitutional rights, or to produce medical

records, will be denied. Only Plaintiff’s retrospective claims

remain - that Defendant’s deliberate indifference and failure to

provide medical records injured Plaintiff.

B. Grievances and Medical Record Requests

Plaintiff claims that his grievances relating to treatment

and medical record requests were denied or ignored. However,

there is no federal remedy available for either.

First, even assuming that Defendant did, indeed, ignore

Plaintiff’s grievances regarding treatment, any claim regarding

the grievance process itself is not cognizable. See Allah v.

Thomas, 679 F. App'x 216, 219 (3d Cir. 2017) (“…[W]e have never

held that a prison is required by the Constitution to offer a

grievance procedure to answer submitted grievances. Instead,

when the claim underlying the administrative grievance involves a

constitutional right, the prisoner’s right to petition the

government for redress is the right to access the courts, which

is not compromised by the prison’s refusal to entertain his

grievance.” ...[A]ny alleged failure on the part of prison

officials here to consider [plaintiff’s] grievances does not in

itself give rise to a constitutional claim, as he was free to

bring a civil rights claim in the District Court, as he did

here.”) (internal quotations omitted). Phrased differently, as

long as a plaintiff can petition a court to address the

underlying substance of the grievance, the sufficiency of the

grievance process itself does not give rise to a constitutional

claim. Accordingly, this claim will be dismissed with prejudice.

Similarly, Plaintiff’s claim that Defendant failed to

provide Plaintiff’s medical records (or ignored his requests)

also fails to state a claim. A New Jersey state regulation

affords inmates a means to obtain their medical files. See,

e.g., N.J. Admin. Code § 10A:22-2.7(a) (“... [A]n inmate may

obtain a copy of his or her medical records by submitting a

written request, on Form MR-022, to the Medical Department”); see

also N.J. Admin. Code § 10A:22-2.7(e) (permitting medical staff

to withhold medical reports under certain circumstances).3 The

regulation was adopted in response to the New Jersey Supreme

Court’s direction, in J.D.A. v. New Jersey Dep't of Corr., that

NJDOC

expeditiously enact comprehensive rules and

regulations codifying its obligations for

medical care and record keeping, and the

methods by which they will be satisfied[,

including] DOC's duty to notify inmates of

any serious medical condition requiring

treatment; to keep complete and accurate

medical records (electronic or paper)

including all test results and lab reports

and to make those complete medical records

available to each inmate; and to provide a

procedure pursuant to which an inmate may,

within a reasonable time after a request,

access medical records and seek correction of

them.

3 Given Plaintiff’s recent release from prison, a separate

provision directs officials to provide Plaintiff a medical

discharge summary, and permits Plaintiff to obtain the records

later at no charge. N.J. Admin. Code § 10A:22-2.8.

189 N.J. 413, 418–19 (2007).

Notably, the J.D.A. Court issued the directive after

determining that NJDOC’s concession that “it, indeed, has a non-

delegable duty to assure adequate medical care...includ[ing]...

maintaining and making available complete and accurate medical

records” rendered moot “the need...to grapple with J.D.A.'s

claims of entitlement under the Federal Constitution.” 189 N.J.

413, 418 (2007). Since the regulation’s adoption in 2008, the

only court to address whether a defendant’s failure to comply

rises to a constitutional violation has found that it does not.

Hearns v. Johnson, No. CV 16-3284, 2016 WL 4690386, at *6 (D.N.J.

Sept. 6, 2016) (“It is clear...that a violation of those statutes

would not qualify as a constitutional violation sufficient to

support a claim raised under 42 U.S.C. § 1983 or its state

analog.”). This Court agrees with the Hearns Court that nothing

in the regulation creates a private cause of action, and that no

New Jersey state or federal court has recognized any

constitutional right to access medical records which would

support a § 1983 claim. See also Ball v. Famiglio, No. 1:CV-08-

0700, 2011 WL 1304614, at *9 (M.D. Pa. Mar. 31, 2011) (“While

inmates have a constitutional right to access to medical care,

there is no authority for an Eighth Amendment right to review

medical records.”) (citation omitted); Smith v. Myers, No. 2:16-

CV-919, 2019 WL 9904324, at *5 (M.D. Ala. Dec. 30, 2019)

(collecting cases holding that Fourteenth Amendment does not

create an unrestricted property right to inspect and copy one’s

own medical records), report and recommendation adopted, No.

2:16CV919, 2020 WL 4819535 (M.D. Ala. Aug. 19, 2020); cf. Wesley

v. Davis, 333 F. Supp. 2d 888, 894 (C.D. Cal. 2004) (finding that

shredding an inmate’s medical file to harass and threaten him

violates the Eighth Amendment). Accordingly, the Court will

dismiss this claim as well.

In dismissing this claim, the Court expresses no opinion as

to whether Plaintiff has a cause of action against state persons

or entities in state court or before state administrative bodies

for failures to abide by the New Jersey Administrative Code. See

Reed v. Williams, No. 3:18-CV-00377, 2020 WL 6158304, at *11

(M.D. Pa. Oct. 21, 2020) (finding that state statute ensuring the

rights of patients to access their own medical records was

applicable and declining to exercise supplemental jurisdiction

over that claim).

C. Deliberate Indifference

Plaintiff alleges that Defendant failed to treat his

Hepatitis C, including the refusal to honor sick call requests,

but that portion of the Complaint also fails to state a claim for

relief. Plaintiff asserts claims pursuant to 42 U.S.C. § 1983,

which provides in pertinent 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.

“By its terms, of course, the statute creates no substantive

rights; it merely provides remedies for deprivations of rights

established elsewhere.” City of Oklahoma City v. Tuttle, 471

U.S. 808, 816 (1985). Thus, “[t]o establish a claim under 42

U.S.C. § 1983, [a plaintiff] must demonstrate a violation of a

right secured by the Constitution and the laws of the United

States [and] that the alleged deprivation was committed by a

person acting under color of state law.” Moore v. Tartler, 986

F.2d 682, 685 (3d Cir. 1993). To properly plead a civil rights

claim against an individual government defendant, the complaint

must indicate how that defendant had personal involvement in the

alleged wrongdoing, which can be shown through allegations of

personal direction or of actual knowledge and acquiescence.4

Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005).

4 Plaintiff may not sue the State in federal court unless Congress

has expressly abrogated New Jersey’s sovereign immunity or the

State has consented to being sued in federal court. Will, 491

U.S. at 66; U.S. Const. Amend. XI. “[A] suit against a state

official in his or her official capacity is not a suit against

the official but rather is a suit against the official’s office.”

Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989).

The Eighth Amendment to the United States Constitution,

applicable to 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, 429 U.S. 97, 103–04

(1976). To state a claim for a violation of the 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.

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 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).

Hepatitis C is generally a serious medical need. Hubbard v.

To the extent that Plaintiff names only Defendant and alleges

only her personal actions, the Court interprets Plaintiff’s claim

as a suit against Defendant only in her individual, not official,

capacity.

Lanigan, No. CV 18-2055, 2018 WL 1905804, at *3 (D.N.J. Apr. 23,

2018).

The second prong requires an inmate to prove that a prison

official: “(1) knows of a prisoner’s need for medical treatment

but intentionally refuses to provide it; (2) delays necessary

medical treatment based on a non-medical reason; or (3) prevents

a prisoner from receiving needed or recommended medical

treatment.” Parkell v. Danberg, 833 F.3d 313, 337 (3d Cir. 2016)

(internal quotation omitted). “Because vicarious liability is

inapplicable to ... § 1983 suits, a plaintiff must plead that

each Government-official defendant, through the official’s own

individual actions, has violated the Constitution.” Iqbal, 556

U.S. at 676. To establish deliberate indifference, a plaintiff

must show that the defendant was subjectively aware of the unmet

serious medical need and failed to reasonably respond to that

need. Farmer v. Brennan, 511 U.S. 825, 837 (1994); Natale v.

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

“[T]he deliberate indifference standard of Estelle does not

guarantee prisoners the right to be entirely free from the cost

considerations that figure in the medical-care decisions made my

most non-prisoners in our society.” Reynolds v. Wagner, 128 F.3d

166, 175 (3d Cir. 1997). Nonetheless, and while “administrative

convenience and cost may be, in appropriate circumstances,

permissible factors for correctional systems to consider in

making treatment decisions, the Constitution is violated when

they are considered to the exclusion of reasonable medical

judgment about inmate health.” Allah, 679 F. App'x at 218–20

(quoting Roe v. Elyea, 631 F.3d 843, 863 (7th Cir. 2011)).

To plead deliberate indifference in the Hepatitis C

treatment context, an individual must plead a lack of necessary

treatment. Allah, 679 F. App'x at 220 (permitting claim where

plaintiff “alleged that he did not receive any treatment for his

Hepatitis C condition, that he was not placed on a newly

developed Hepatitis C treatment regimen solely because it was

cost-prohibitive, and that he was suffering medical complications

as a result”) (emphases in original); Baker v. Barnes, No. CIV.

11-0992, 2012 WL 95363, at *4 (D.N.J. Jan. 12, 2012) (“[W]hether

anti-viral treatment for chronic liver disease is medically

warranted is a question of medical judgment.”).

Numerous courts have held that newly developed direct-acting

antiviral medications, such as Harvoni, are the “standard of

care” for chronic Hepatitis C. Abu-Jamal v. Kerestes, No. 3:15-

CV-00967, 2016 WL 4574646, at *9-14 (M.D. Pa. Aug. 31, 2016)

(denying preliminary injunction but holding, in dicta, that the

prison’s policy of delaying DAA medications “until the inmate

faces the imminent prospect of ‘catastrophic’ rupture and

bleeding out of the esophageal vessels ... exposes inmates to

[significant health risks], despite knowing that the standard of

care is to treat patients with chronic Hepatitis C with DAA

medications ... regardless of the stage of disease.”). But such

decisions addressed complaints in which the plaintiff alleged a

specific diagnosis and treatment which would prevent (or would

have prevented) worsening symptoms. See, e.g. Hubbard v.

Lanigan, No. CV 18-2055, 2018 WL 1905804, at *3 (D.N.J. Apr. 23,

2018) (permitting claim where plaintiff was on Hepatitis C

treatment list, and alleged that prison authorities had a policy

of waiting to treat patients until “significant liver damage” for

budgetary reasons); Doughty v. LeBlanc, No. CV 17-1377, 2018 WL

4496659, at *8 (M.D. La. Aug. 28, 2018) (recommending denial of

motion to dismiss where complaint “can be fairly read to allege

that he is currently receiving no treatment for Hepatitis C,

continues to have symptoms, and that the denial of treatment with

Harvoni was due to cost”) (emphasis added)(citing Allah, 679 Fed.

App'x 216), report and recommendation adopted, 2018 WL 4494980

(Sept. 19, 2018); Vaught v. Williams, No. CV 17-1693, 2018 WL

6137195, at *3 (C.D. Cal. Feb. 26, 2018) (permitting claim

alleging that defendant refused to treat Hepatitis C with desired

or alternative treatment, and would not do anything other than

wait five more years to conduct scan to determine extent of liver

damage) (citing Allah, 679 Fed. App'x at 220; Henderson v.

Tanner, No. CV 15-0804, 2017 WL 1017927, at *4 (M.D. La. Feb. 16,

2017) (collecting cases discussing the potentially curative

effects of Harvoni, a Hepatitis C medication, which the plaintiff

“specifically requested”), report and recommendation adopted,

2017 WL 1015321 (M.D. La. Mar. 15, 2017).

Here, Plaintiff alleges that he was diagnosed with Hepatitis

C in 1995, and that Defendant knew about the diagnosis. ECF No.

1, ¶¶ 4(b), 6. But beyond the fact, and Defendant’s awareness,

of Plaintiff’s diagnosis, Plaintiff does not allege any symptoms

(new or otherwise), or a factual basis for his conclusion that

Defendant’s action or inaction resulted in liver damage. To the

contrary, Plaintiff’s request for his 2019 blood work and viral

load information suggests that Defendant (or other medical

officials) did, in fact, respond to Plaintiff’s 2018 efforts “to

push hard for treatment.” ECF No. 1, p. 5. This implies

Plaintiff’s disagreement with a particular course of treatment,

which is not grounds for a deliberate indifference to serious

medical needs claim. Thomas v. Dragovich, 142 Fed. Appx. 33, 36

(3d Cir. 2005) (citing Monmouth County Corr. Institutional

Inmates v. Lanzaro, 834 F.2d 326, 346 (3d Cir. 1987); Whittington

v. Caldwell, No. CV 319-082, 2020 WL 2045286, at *6 (S.D. Ga.

Mar. 4, 2020) (dismissing amended complaint where plaintiff did

not allege “any specific deterioration in his condition since

entering the prison system, ... any resultant harm particular to

his situation, ... [or that] any physician, either before or

after he entered the prison system in 2019, has ordered treatment

beyond the monitoring program currently in place.”), report and

recommendation adopted, 2020 WL 2042367 (S.D. Ga. Apr. 28, 2020);

cf. Fisher v. Longtin, No. 3:19-CV-00769, 2019 WL 5694011, at *1

(M.D. Tenn. Nov. 4, 2019) (finding that plaintiff stated a claim

where he repeatedly asked for Hepatitis C treatment and “has not

received any blood work or monitoring to see the progression of

the disease or the damage progression of his liver.”) (internal

quotations omitted). Accordingly, Plaintiff’s complaint fails to

state a claim for relief.

D. Leave to Amend

Generally, “plaintiffs who file complaints subject to

dismissal under [§ 1915] should receive leave to amend unless

amendment would be inequitable or futile.” Grayson v. Mayview

State Hosp., 293 F.3d 103, 114 (3d Cir. 2002). As Plaintiff may

be able to provide facts supporting his deliberate indifference

claims, he may move to amend his complaint within 60 days of this

Opinion and Order.

Plaintiff should note that when an amended complaint is

filed, the complaint no longer performs any function in the case

and cannot be utilized to cure defects in the complaint, unless

the relevant portion is specifically incorporated in the new

complaint. 6 Wright, Miller & Kane, Federal Practice and

Procedure 1476 (2d ed. 1990) (footnotes omitted). The amended

complaint may adopt some or all of the allegations in the

complaint, but the identification of the particular allegations

to be adopted must be clear and explicit. Id. To avoid

confusion, the safer course is to file an amended complaint that

is itself complete. Id. Plaintiff’s new complaint may not

include claims that were dismissed with prejudice. In the event

Plaintiff does not move to amend his complaint within 60 days,

the dismissal without prejudice shall convert into a dismissal

with prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii), without

further action by the Court.

IV. CONCLUSION

For the above reasons, the Eighth Amendment/deliberate

indifference claim is dismissed without prejudice for failure to

state a claim, with leave to file an amended complaint within 60

days, and the remaining claims are dismissed with prejudice.

An appropriate order follows.

Dated: _February 23, 2021 __s/ Noel L. Hillman _____

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.