# WADE v. MILLS

> District Court, D. New Jersey · February 23, 2021

URL: https://www.frixlaw.com/law-library/cases/10270003

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** February 23, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10270003

## How later opinions describe it (automated extraction)

- finding that shredding an inmate’s medical file to harass and threaten him violates the Eighth Amendment

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10270003. Public record. Not legal advice.