ROGERS v. NJDOC

NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT

COURT FOR THE DISTRICT OF NEW

JERSEY CAMDEN VICINAGE

MARTIN LUTHER ROGERS, :

: Civ. No. 15-7005(RMB-MJS)

Plaintiff :

:

v. : OPINION (Redacted)

:

NJDOC, et al., :

:

Defendants

APPEARANCES:

Charles Harry Landesman,

Esq. LAW, FROELICH &

LANDESMAN

P.O. Box 474

Hillsdale, NJ

07642

On behalf of Plaintiff

Margaret M. Raymond Flood,Esq.

Candice Huber Rienzo, Esq.

NORRIS MCLAUGHLIN, P.A.

400 Crossing Boulevard, 8th Floor

P.O. Box 5933

Bridgewater, NJ

08807

On behalf of Defendants Rutgers University Behavioral

and Correctional Healthcare, Laurie Valentino, Christopher

Simkins, Tina Montgomery, University of Medicine and Dentistry,

and Roni J. Feldman

BUMB, United States District Judge

This matter comes before the Court upon the motion for summary

judgment (Med. Defs’ Mot. for Summ. J., Dkt. No. 179) by Defendants

Rutgers University Behavioral and Correctional Healthcare

(“RUCHC”), Laurie Valentino, Christopher Simkins, Tina

Montgomery, University of Medicine and Dentistry (“UMDNJ”), and

Roni J. Feldman (collectively the “Medical Defendants”). The Court

has also addressed the motion for judgment on the pleadings and for summary

judgment by the New Jersey Department of Corrections Defendants (Dkt. No. 172)

in a companion Opinion and Order. For the reasons discussed below, the

Court will grant summary judgment to the Medical Defendants on

Plaintiff’s federal claims and reserve the issue of supplemental

jurisdiction over Plaintiff’s state law claims pending resolution

of the claims against unserved defendants.

I. PROCEDURAL HISTORY

Plaintiff initiated this action pro se by filing a civil

rights complaint on September 22, 2015. (“Compl.” Dkt. No. 1.) The

Court granted Plaintiff’s application to proceed in forma pauperis

under 28 U.S.C. § 1915(a), dismissed certain claims pursuant to

§ 1915(e)(2)(B), based on immunity and failure to state a claim,

and permitted the remaining claims to proceed. (Opinion and

Order, Dkt. Nos. 5, 6.) After discovery, Plaintiff filed an

amended complaint on March 23, 2018. (“Am. Compl.” Dkt. No. 135.)

On October 11, 2018, Charles H. Landesman, Esq. entered an

appearance as counsel for Plaintiff in this matter. (Letter, Dkt.

No. 124.) After service of the amended complaint on the

defendants, the Medical Defendants filed a motion for summary

judgment on November 5, 2019. (“Med. Defs’ Mot. for Summ. J.”

Dkt. No. 179.) Plaintiff filed his brief in opposition to the

Medical Defendants’ motion for summary judgment on December 31,

2019 (“Pl’s Opp. Brief” Dkt. No. 187), and the Medical Defendants

filed a reply brief on April 6, 2020. (“Med. Defs’ Reply Brief”

Dkt. No. 198.)

II. THE AMENDED COMPLAINT

Plaintiff is a prisoner who was incarcerated at South Woods

State Prison (“SWSP”) and subsequently at Northern State Prison

(“NSP”) in New Jersey when the events giving rise to this action

occurred between 2012 and 2016. (Am. Compl., Dkt. No. 135.)

Plaintiff alleges that the Medical Defendants were deliberately

indifferent to his serious medical needs when they allowed his

ground-floor housing restriction and pain medications to lapse;

improperly discontinued his cholesterol medication; and failed

to provide adequate medical treatment for his head, left eye,

back, and knee injuries. Plaintiff further alleges that he was

excluded from participation in or denied the benefits of the

services, programs, or activities of the New Jersey Department of

Corrections (“NJDOC”) as a direct result of RUCHC’s deliberate

indifference. Plaintiff also brings claims against the Medical

Defendants under the New Jersey Civil Rights Act, N.J.S.A. 10:6-

2 et seq., and negligence claims under the New Jersey Tort Claims

Act, N.J.S.A. 59:1-1 et seq.

III. UNDISPUTED MATERIAL FACTS

The following facts are undisputed by the parties. (See Med.

Defs’ Statement of Undisputed Material Facts (“Med. Defs’ SUMF”),

Dkt. No. 179-1; Pl’s Responsive Statement of Material Facts (“Pl’s

SOMF”), Dkt. No. 187-2; Med. Defs’ Response to Pl’s SOMF, Dkt. No.

198-1.)

•

Between January 18, 2011 and August 13, 2015, Plaintiff, a

convicted and sentenced state prisoner, was incarcerated in

SWSP. (Cert. of Martin Luther Rogers in Supp. of Responsive

Statement (“Second Rogers’ Cert.”), Exs. 1 and 2; Dkt. No.

187-1 at 7-8.) Plaintiff has been incarcerated in NSP since

August 13, 2015. (Cert. of Margaret Raymond-Flood ("Raymond-

Flood Cert.") Ex. A at T1 1:17-15:18; Dkt. No. 179-3.)

•

Plaintiff filed an Amended Complaint in this action against

several defendants, including RUCHC, UMDNJ, Nurse Laurie

Valentino, Nurse Christopher Simkins, Nurse Tina Montgomery

and Nurse Roni J. Feldman. (Am. Compl., Dkt. No. 135.)

•

Between January 2011 and June 30, 2013, UMDNJ was the medical

provider for the NJDOC. (Second Rogers’ Cert., Exs. 3-4; Dkt.

No. 187-1 at 9-10.) On July 1, 2013, RUCHC was the successor

to the healthcare agreement between NJDOC and UMDNJ and became

the medical provider for the NJDOC. Pursuant to the express

statutory provisions of the New Jersey Medical and Health

Sciences Education Restructuring Act, N.J.S.A. 18A:64M-1,

et. seq., the former UMDNJ entity was merged into Rutgers,

the State University of New Jersey ("Rutgers”).1 By virtue

of the statutory merger, Rutgers is defending this action.

•

Nurse Laurie Valentino (“Nurse Valentino”) is a registered

nurse employed by RUCHC. (Med. Defs’ Answer to Am. Compl.

¶26, Dkt. No. 173.)

1 Based on the statutory merger, the Court will refer to

Plaintiff’s claims against UMDNJ as claims against RUCHC. Nurse

Feldman and Plaintiff would discuss his medical issues, and Nurse

Feldman renewed medications and medical restrictions based on

Plaintiff’s medical needs. (Id.)

•

Nurse Christopher Simkins (“Nurse Simkins”) is a registered

nurse who was employed by RUCHC. (Med. Defs’ Answer to Am.

Compl. ¶23, Dkt. No. 173.)

•

Nurse Tina Montgomery (“Nurse Montgomery”) is a registered

nurse employed by RUCHC. (Med. Defs’ Answer to Am. Compl.

¶29, Dkt. No. 173.)

•

Nurse Roni J. Feldman (“Nurse Feldman”) is a licensed

practical nurse who was employed by the UMDNJ. (Med. Defs’

Answer to Am. Compl. ¶22, Dkt. No. 173.)

•

Plaintiff had a ground-floor housing restriction at SWSP

until February 2012. (Raymond-Flood Cert., Ex. A, “Rogers.

Depo. Aug. 25, 2016,” at 29:24-25; Dkt. No. 179-3.)

•

Between January 2011 and February 2012, including various

dates thereafter, Plaintiff had scheduled chronic care

medical appointments with Nurse Feldman at SWSP. (Second

Rogers’ Cert, Exs. 5-11; Dkt. No. 187-1 at 11-17.) In

general, Nurse Feldman and Plaintiff would discuss his

medical issues, and Nurse Feldman renewed medications and

medical restrictions based on Plaintiff’s medical needs.

(Id.)

•

On February 4, 2012, Plaintiff went to “Sick-call” and saw

Nurse Valentino. (Raymond-Flood Cert., Ex. B at D000216,

D000218-D00220; Dkt. No. 177 at 50, 52-54.) Plaintiff

requested to see a doctor regarding renewal of his medical

restrictions and pain medication. (Id.)

•

On February 17, 2012, Plaintiff had a scheduled chronic care

medical visit with Nurse Feldman. (Raymond-Flood Cert, Ex.

B at D000211-D 000216; Dkt. No. 177 at 45-50.)

•

According to the “Health Services Unit Internal Management

Procedure MED.HCR.004, Sharing of Information (Essential)”,

"The nursing/physician staff [at SWSP] shall notify the

correctional staff of any changes in activity level, and

housing unit requirements that the inmate may need as a result

of his/her health status." (Cert. of Martin Luther Rogers

in Supp. of Responsive Statement of Material Facts, (“First

Rogers Cert.”) Exs. 66-68; Dkt. No. 180-4 at 5-7.)

•

From February 2012 until January 10, 2015, Plaintiff remained

in a ground-floor cell at SWSP, #1049 D. (Second Rogers Cert.,

Exs. 1-2; Dkt. No. 187-1 at 7-8.)

•

In September 2014, Plaintiff began taking college classes

in the Scholarship and Transformative Education in Prisons

(“NJSTEP”) program at SWSP. (First Rogers Cert., Exs. 3-4;

Dkt. No. 180-2 at 16-17.)

•

On January 10, 2015, Plaintiff was transferred from his

ground-floor cell to a second-floor cell in a new housing

unit that housed prisoners enrolled in NJSTEP. (Am. Compl.

¶¶3, 32-33, Dkt. No. 135.) An unidentified NJDOC officer

informed Plaintiff that his medical restriction for ground-

floor housing had expired. Prior to that time, Plaintiff

was unaware that his ground-floor restriction had expired.

(First Rogers Cert. ¶8, Dkt. No. 180-2 at 2.)

•

On January 13, 2015, Plaintiff requested and was granted a

renewed ground-floor housing medical restriction but he was

not transferred to the ground-floor. (Raymond-Flood Cert.,

Ex. B, D000078; Dkt. No. 177 at 44.) On January 16, 2015,

Plaintiff was involved in a physical altercation in his

second-floor cell with another inmate, James Barlow. (Am.

Compl. ¶40, Dkt. No. 135.)

•

On January 16, 2015, a nurse came to Plaintiff in the holding

cell and noted that he had multiple non-life threatening

injuries including slight swelling on the upper forehead;

moderate swelling on the mid-forehead; left eye swelling; and

superficial scrapes. The open areas were cleansed with wound

cleaner and Plaintiff was given Ibuprofen. Plaintiff was

advised to drop a Sick-call slip to see a medical provider

the next morning. (Raymond-Flood Cert., Ex. B, D00076-77;

Dkt. No. 177 at 42-43.)

•

On January 21, 2015, Plaintiff was seen in Sick-call by Nurse

Simkins who examined Plaintiff’s eye and noted “mild

discoloration under the left orbit from old bruising; no pains

on facial palpation; subconjunctival hematoma still

exists.” Nurse Simkins opined that no further treatment was

needed and Plaintiff could apply ice for pain. (Raymond-Flood

Cert., Ex. B at D000072-74; Dkt. No. 177 at 38-40.) This

was the only occasion Plaintiff saw Nurse Simkins for these

injuries. (Raymond-Flood Cert., Rogers Depo. Sept. 9, 2019,

Ex. C at 26:21-24; Dkt. No. 179-3 at 17.)

•

On January 22, 2015, Nurse Montgomery noted in Plaintiff’s

electronic medical chart that Plaintiff had refused his

cholesterol medication, Lipitor. (Raymond-Flood Cert., Ex.

B, D000072; Dkt. No. 177 at 38.) Plaintiff admits that he

refused Lipitor on January 22, 2015. (Raymond-Flood Cert.,

Ex. C at 46:3-6; Dkt. No. 179-3 at 18.)

•

On January 31, 2015, ten days after Plaintiff was seen by

Nurse Simkins, Plaintiff submitted a Sick-call slip to be

evaluated for pain in his left eye. (Raymond-Flood Cert., Ex.

B, D000069; Dkt. No. 177 at 35.)

•

On February 1, 2015, Plaintiff saw a nurse in Sick-call.

The nurse noted that Plaintiff had mild swelling and

bruising to the left orbital region and frontal lobe.

Plaintiff reported pain and discomfort. Plaintiff also said

that he had not asked for his Lipitor to be stopped, and he

wanted it to be renewed. Plaintiff admitted that he had

refused his Lipitor a few times while in detention. The nurse

advised Plaintiff that he would be sent for an x-ray of his

left eye region, and that Plaintiff would subsequently be

scheduled to see another medical provider. (Id. at D000066-

68; Dkt. No. 177 at 33-34.)

•

The x-ray of Plaintiffs left eye orbit was performed on

February 4, 2015, and there was no abnormality. (Id. at

D000065-66; Dkt. No. 177 at 31-32.)

•

On February 19, 2015, Plaintiff completed a Sick-call slip

for head and eye pain. (Id. at D000064, Dkt. No. 177 at 30.)

•

On February 20, 2015, Plaintiff was advised that he had an

appointment with an optometrist for February 24, 2015. (Id.

at D000063; Dkt. No. 177 at 29.)

•

On March 12, 2015, Plaintiff submitted a Sick-call slip for

head pain. (Id. at D00060; Dkt No. 177 at 26.)

•

Plaintiff was seen by Nurse Valentino on March 13, 2015,

who noted that Plaintiff had a small lump above the bridge

of his nose, and his neurological exam was within normal

limits. Plaintiff was advised to take his medication as

prescribed and to rest when his headaches occurred.

(Raymond-Flood Cert., Ex. B, D000057-60; Dkt. No. 177 at

23-26.) During the same visit, Plaintiff requested a chronic

care appointment, telling Nurse Valentino that he had been

taken off the chronic care roster for refusing his

cholesterol medication. (Id.)

•

Nurse Valentino ordered lab work to evaluate whether

Plaintiff should be returned to the chronic care roster. (Id.

at D000056-57; Dkt. No. 177 at 22-23.)

•

Plaintiff’s lab work, including a complete metabolic panel

and lipid panel with cholesterol/HDL ratio, was performed

on March 23, 2015. (Id. at D000053-55; Dkt. No. 177 at 19-

21.)

•

On March 26, 2015, Plaintiff appeared for a Sick-call follow-

up visit. A CT scan of his head was recommended to evaluate

persistent headaches. (Id. at D000052-53; Dkt. No. 177 at 18-

19.)

•

On May 5, 2015, Plaintiff fell and hurt his knee. (Am. Compl.

¶¶ 64-65, Dkt. No. 135.)

•

On May 6, 2015, Nurse Valentino saw Plaintiff, who requested

renewal of his pain medication for his chronic back pain.

Nurse Valentino noted that she would flag a nurse practitioner

to refill Plaintiff’s pain medication. (Raymond-Flood Cert.,

Ex. B, D000049-51; Dkt. No. 177 at 15-17.)

•

On May 8, 2015, Plaintiff’s prescription for Robaxin, a muscle

relaxant, was renewed by Nurse Melissa Curtis. (Id. at

D000048-49; Dkt. No. 177 at 14-15.) Prior to this visit,

325 mg of Acetaminophen (Tylenol) was also on Plaintiff’s

current medication list. (Dkt. No. 177 at 15.) Nurse Curtiss

did not order Tylenol.

•

On June 12, 2015, Plaintiff was scheduled for a Sick-call

visit for complaints of back pain and headaches. (Id. at

D000047-48; Dkt. No. 177 at 13-14.) He was seen the next day.

(Id. at D000046-47; Dkt. No. 177 at 12-13.)

•

On June 25, 2015, Plaintiff was scheduled for a Sick-call

visit for complaints of back pain and headaches. (Id. at

D000045-46; Dkt. No. 177 at 11-12.) He saw Nurse Valentino

the next day. Plaintiff requested Tylenol #3, because Robaxin

was not providing relief. Nurse Valentino said she would

notify the nurse practitioner of Plaintiff’s request. (Id.,

D000043-45; Dkt. No. 177 at 9-11.)

•

Plaintiff was seen by a nurse practitioner on July 1, 2015,

at which time she prescribed Tylenol with Codeine #4.

(Raymond-Flood Cert., Ex. B, D000041-43; Dkt. No. 177 at 7-

9.)

•

On August 13, 2015, Plaintiff was transferred to Northern

State Prison. (Am. Compl. ¶84, Dkt. No. 135.)

•

On March 16, 2016, Plaintiff requested his blood work results.

(Raymond-Flood Cert., Ex. B, D000005; Dkt. No. 177 at 6.)

•

On March 25, 2016, Plaintiff was seen by a nurse practitioner

for a Sick-call visit, at which time his pain medication

was renewed. (Id. at D00000l-4; Dkt. No. 177 at 2-5.)

IV. DISCUSSION

A. Summary Judgment Standard of Review

Summary Judgment is proper where the moving party “shows that

there is no genuine dispute as to any material fact,” and the

moving party is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(a); Daubert v. NRA Group, LLC, 861 F.3d 382, 388 (3d

Cir. 2017). The burden then shifts to the nonmovant to show, beyond

the pleadings, “‘that there is a genuine issue for trial.” Id.

at 391 (quoting Celotex Corp. v. Catrett, 447 U.S. 317, 324

1986) (emphasis in Daubert)). “At the summary judgment stage,

facts must be viewed in the light most favorable to the nonmoving

party only if there is a ‘genuine’ dispute as to those facts.”

Scott v. Harris, 550 U.S. 372, 380 (2007) (citing Fed. Rule Civ.

Proc. 56(c)). “‘[A] dispute about a material fact is ‘genuine’

if the evidence is sufficient to permit a reasonable jury to

return a verdict for the non-moving party.’” Pearson v. Prison

Health Serv., 850 F.3d 526, 534 (3d Cir. 2017) (quoting Lamont

v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011)).

B. Statute of Limitations

The Medical Defendants contend that Plaintiff’s § 1983 Eighth

Amendment claims for failing to renew Plaintiff’s ground-floor

housing restriction in February 2012 should be dismissed based

on the two-year statute of limitations. (Med. Defs’ Brief at 5,

Dkt. 179-2.) In opposition, Plaintiff invokes New Jersey’s

discovery rule, alleging that he did not discover the violation

of his rights until he was transferred to a second floor cell.

(Pl’s Opp. Brief, Dkt. No. 187 at 9-10.) In reply, the Medical

Defendants submit that Plaintiff knew the medical restriction

had lapsed in February 2012, and cannot now claim that he was

unaware the restriction was not renewed. (Med. Defs’ Reply Brief,

Dkt. No. 198 at 2.)

In New Jersey, there is a two-year statute of limitations for

constitutional tort claims under § 1983. Dique v. New Jersey State

Police, 603 F.3d 181, 185 (3d Cir. 2010). To analyze a statute

of limitations defense under § 1983, courts first look to federal

law, which governs when a cause of action accrues. Id. at 185–86

(3d Cir. 2010) (quoting Wallace v. Kato, 549 U.S. 384, 388 (2007.))

A “‘tort cause of action accrues, and the statute of limitations

commences to run, when the wrongful act or omission results in

damages.’” Id. (quoting Wallace, 549 U.S. at 391 (quoting 1 Calvin

Corman, Limitation of Actions § 7.4.1 (1991)). Thus, accrual of

the claim is the first step in the statute of limitations

analysis, and accrual is when the wrongful act results in

damages. Plaintiff’s claims did not accrue until he was

transferred to a second-floor cell. Until then there was no

“wrongful act” as Defendants did not act on the lapsed order.

The damages alleged are the consequences of having to climb

stairs while suffering from a back disorder. The discovery rule,

which serves to postpone accrual of the statute of limitations

when the plaintiff was unaware of the injury, is irrelevant here

because his claims against Nurse Feldman and RUCHC did not accrue

until January 10, 2015, when Defendants failed to abide by the

restriction, and Plaintiff filed his complaint within the two-

year statute of limitations. See Dique, 603 F.3d at 185

(describing accrual of § 1983). Therefore, the Court will

address the merits of these claims.

C. Standard of Law, Eighth Amendment Claims under § 1983

“Prison officials violate the Eighth Amendment when they act

deliberately indifferent to a prisoner's serious medical needs by

‘intentionally denying or delaying access to medical care...’”

Pearson v. Prison Health Serv., 850 F.3d 526, 534 (3d Cir. 2017)

(quoting Estelle v. Gamble, 429 U.S. 97, 104-05 (1976)). To

establish an Eighth Amendment claim for inadequate medical care in

prison “a plaintiff must make (1) a subjective showing that “the

defendants were deliberately indifferent to [his or her] medical

needs’ and (2) an objective showing that ‘those needs were

serious.’” Id. (quoting Rouse v. Plantier, 182 F.3d 192, 197 (3d

Cir. 1999)). A medical need is serious “if it has been diagnosed

by a physician as requiring treatment.” Id. at 534 (quoting

Atkinson v. Taylor, 316 F.3d 257, 266 (3d Cir. 2003). Deliberate

indifference may exist

where (1) prison authorities deny reasonable

requests for medical treatment, (2)

knowledge of the need for medical care is

accompanied by the intentional refusal to

provide it, (3) necessary medical treatment

is delayed for non-medical reasons, and (4)

prison authorities prevent an inmate from

receiving recommended treatment for serious

medical needs.

Id. at 538 (quoting Monmouth Cty. Corr. Inst. v. Lanzaro, 834 F.2d

326, 347 (3d. Cir. 1987)). Expert testimony may be required, in

some instances, to establish whether a medical need is serious or

whether a medical provider who provided inadequate medical care

did so with deliberate indifference. Pearson, 850 F.3d at 535.

1. Eighth Amendment claim against Nurse Feldman

In Count 6 of the Amended Complaint, Plaintiff alleges that

Nurse Feldman was deliberately indifferent to his chronic back

pain because she failed to renew Plaintiff’s ground-floor housing

restriction at SWSP. (Am. Compl., ¶95, Dkt. No. 135.) The Medical

Defendants argue that Nurse Feldman is entitled to summary judgment

because (1) Plaintiff knew that if his ground-floor restriction

lapsed, he could ask for a renewal; (2) in February 2012, Plaintiff

requested a renewal of his lower bunk restriction but did not

ask to renew his ground-floor restriction; (3) the ground-floor

restriction was not permanent, so the medical providers were under

no obligation to renew it; and (4) when Plaintiff was moved to a

second-floor cell in January 2015, his request for a ground-floor

restriction was granted on the day he requested renewal. (Med.

Defs’ Brief at 19, Dkt. No. 179-2.) Furthermore, the Medical

Defendants submit that Nurse Feldman is entitled to summary

judgment because Plaintiff has not established that he had a

serious medical need, he has not established deliberate

indifference by Nurse Feldman, and he has not obtained medical

expert testimony that Nurse Feldman deviated from the professional

standard of care. (Id., Dkt. No. 179-2 at 17-19.)

In opposition to summary judgment for Nurse Feldman,

Plaintiff contends his back disorder is a serious medical need.

(Pl’s Opp. Brief at 9-10, Dkt. No. 187.) Plaintiff also asserts

a disputed issue of fact. He claims that on February 17, 2012,

he requested that Nurse Feldman renew his ground-floor housing

restriction, and Nurse Feldman told him not to worry about it

because the officers knew about his restriction. (Pl’s Opp. Brief

at 10, Dkt. No. 187.) Plaintiff acknowledges that he remained in

a ground-floor cell from February 2012 until January 10, 2015.

(Second Rogers Cert. ¶19, Dkt. No. 187-1, Ex. 2.) On January 11,

2015, after he was transferred to another cell, Plaintiff was

advised that his ground-floor housing restriction had lapsed.

(Id., ¶¶10-11.) During the time Plaintiff was briefly housed on

the second-floor, he was injured by another inmate. (Pl’s Opp.

Brief at 10, Dkt. No. 187.) Additionally, Plaintiff allegedly

suffered pain in his leg and back when climbing stairs. (Id.)

Plaintiff contends that Nurse Feldman was deliberately indifferent

by failing to keep his ground-floor housing restriction up to date.

(Id. at 10-11.) Plaintiff argues that medical expert testimony

is not required to establish breach of the professional standard

of care because it is within a lay person’s common sense to

understand that Nurse Feldman failed to provide him with adequate

medical care by not renewing his ground-floor housing restriction

for his back disorder.

In reply, the Medical Defendants contend that, according to

the medical records, Plaintiff only requested that Nurse Feldman

renew his lower bunk restriction, and that she did so. (Med. Defs.

Reply Brief, Dkt No. 198 at 4-5.) Further, the Medical Defendants

submit that Nurse Feldman was under no obligation to renew the

ground-floor housing restriction because it was not a permanent

restriction. (Id.) Finally, the Medical Defendants claim Plaintiff

requires expert testimony to establish a deviation from the

accepted standard of care, the common knowledge exception is

inapplicable. (Id.)

a. Serious medical need

The Third Circuit has defined a “serious medical need,” as

a condition diagnosed by a medical provider that requires

treatment, a standard that Plaintiff has met by establishing that

he was prescribed a ground-floor housing restriction and pain

medication for chronic back pain from a back disorder. Plaintiff

alleges that Nurse Feldman denied his request for renewal of his

ground-floor housing restriction for a non-medical reason, that

staff already knew about the restriction. Survival of this claim

against Nurse Feldman turns on two issues, the need for medical

expert testimony to establish deviation from the standard of care,

and whether there is a genuine issue of disputed fact as to

deliberate indifference to his need for a ground-floor housing

restriction.

b. Disagreement with medical treatment

Plaintiff’s claim is that Nurse Feldman refused to renew

his ground-floor housing restriction, not that he did not

receive any treatment for his back disorder. The Third Circuit

has explained

[b]ecause “mere disagreement as to the proper

medical treatment” does not “support a claim

of an eighth amendment violation,” Monmouth

Cty. Corr. Inst. v. Lanzaro, 834 F.2d 326,

346 (3d. Cir. 1987), when medical care is

provided, we presume that the treatment of a

prisoner is proper absent evidence that it

violates professional standards of care. See

Brown v. Borough of Chambersburg, 903 F.2d

274, 278 (3d Cir. 1990) (“[I]t is well

established that as long as a physician

exercises professional judgment his behavior

will not violate a prisoner's constitutional

rights”).

…[T]he mere receipt of inadequate medical

care does not itself amount to deliberate

indifference—the defendant must also act

with the requisite state of mind when

providing that inadequate care. Durmer [v.

O’Carroll, 991 F.2d [64,] 69 n.13 [3d Cir.

1993] (noting

a plaintiff can only proceed to trial when

there is a genuine issue of fact regarding

both the adequacy of medical care and the

defendant's intent). This observation is

critical because it makes clear that there

are two very distinct subcomponents to the

deliberate indifference prong of an adequacy

of care claim. The first is the adequacy of

the medical care—an objective inquiry where

expert testimony could be helpful to the jury.

The second is the individual defendant's

state of mind—a subjective inquiry that can

be proven circumstantially without expert

testimony.

Based upon these observations, we think that

medical expert testimony may be necessary to

establish deliberate indifference in an

adequacy of care claim where, as laymen, the

jury would not be in a position to determine

that the particular treatment or diagnosis

fell below a professional standard of care.

As is the case with evaluating whether the

prisoner is suffering from a serious medical

need, evaluating whether medical treatment

is adequate presents an objective question

typically beyond the competence of a non-

medical professional. Likewise, it makes

sense to require a prisoner to offer

extrinsic proof regarding the quality of

medical care in adequacy of care cases when,

to defeat our presumption that the medical

care provided to him or her was adequate, the

prisoner must show that the medical official

did not exercise professional judgment. See,

e.g., Celotex Corp. v. Catrett, 477 U.S. 317,

331,

106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (holding

that when the burden of persuasion at trial

would be on the nonmoving party, “the party

moving for summary judgment may satisfy Rule

56” by demonstrating that “the nonmoving

party's evidence is insufficient to

establish an essential element of [its]

claim”); Durmer, 991 F.2d at 67 (“[P]rison

authorities are accorded considerable

latitude in the diagnosis and treatment of

prisoners.”); Brown, 903 F.2d at 278 (“[A]s

long as a physician exercises professional

judgment his behavior will not violate a

prisoner's constitutional rights.”)

Pearson, 850 F.3d at 535-36.

c. The professional standard of care

Assuming Nurse Feldman gave a nonmedical reason for not

renewing Plaintiff’s ground-floor housing restriction, she did not

act with deliberate indifference if Plaintiff cannot show that the

professional standard of care required renewal of the restriction.

Plaintiff was diagnosed with “back disorder,” a very non-specific

condition that does not lend itself to interpretation by

a layperson. (Raymond-Flood Cert., Ex. B, D000211-220; Dkt. No.

177 at 45-53.) During his Sick-call visit on February 4, 2012,

Plaintiff asked Nurse Valentino for a medication renewal, lower

bunk restriction renewal, and, according to Plaintiff but not

recorded in the medical record, he asked for a ground-floor housing

restriction renewal. (D000218-19, Dkt. No. 177 at 51-52.) At that

time, Plaintiff was taking Tylenol with codeine for pain. (Id.)

Nurse Valentino made note of his requests for medication and lower

bunk renewals, and also noted that he had no other complaints.

(Id.)

When Nurse Feldman saw Plaintiff on February 17, 2012, it was

for a “Cardiac HTN Follow-Up Visit.” (Id. at D000212; Dkt. No. 177

at 46.) Nurse Feldman performed a musculoskeletal examination

and noted that Plaintiff walked with a cane but did not put

weight on it. (Id. at D000213; Dkt. No. 177 at 47.) There were

no abnormalities of his spine, and he had normal range of motion

and strength in both legs. (Id.) Plaintiff was not in any distress

during the examination. (Raymond-Flood Cert., Ex. B, at D000212;

Dkt. No. 177 at 46.) There was no order given for a ground-floor

housing restriction, but there were restrictions for work,

recreation and lower-bunk housing. (Raymond-Flood Cert., Ex. B,

D000216, Dkt. No. 177 at 50.)

Moreover, the evidence demonstrates that upon the expiration

of the ground-floor restriction, renewal was not guaranteed.

Therefore, it is incumbent on Plaintiff to demonstrate that the

professional standard of care in treating Plaintiff’s back

disorder required Nurse Feldman to renew Plaintiff’s ground-floor

restriction. It is not enough to demonstrate that the usual

practice at SWSP had been to automatically renew the restriction.

Nurse Feldman’s deliberate indifference to a serious medical need

is determined by her knowledge that renewal of Plaintiff’s

ground-floor restriction was necessary to prevent his pain and

suffering or further injury to his back. Thus, it is significant

that when she examined Plaintiff, she noted that he did not place

weight on his cane when he walked, he did not appear to be in

pain, and his musculoskeletal examination yielded normal results.

Under the circumstances, it is not obvious to a layperson that

Plaintiff required renewal of his ground-floor restriction to

avoid pain and suffering or further injury to his back. Thus,

medical expert testimony is necessary to establish that Nurse

Feldman was deliberately indifferent by failing to renew the

restriction. Plaintiff has presented no evidence whatsoever, including

that the professional standard of care required renewal of a

ground-floor housing restriction, to show that Defendant Feldman

deviated from the standard of care. Therefore, the Court will

grant summary judgment to Nurse Feldman on Count 1 of the Amended

Complaint.

d. Deliberate indifference

In addition, Plaintiff has not established a genuine issue

of disputed fact as to deliberate indifference by Nurse Feldman,

whom he alleges responded to his request for renewal of the ground-

floor restriction by telling him not to worry because custody staff

were aware of the restriction. Implicit in this alleged statement

by Nurse Feldman is that she believed, albeit erroneously,

Plaintiff’s ground-floor housing would continue, so it was

unnecessary to provide a medical renewal. Plaintiff has not

presented evidence indicating Nurse Feldman knew Plaintiff would

be transferred out of his ground-floor cell and that climbing

stairs would aggravate his back condition before the restriction

could be renewed. In fact, Plaintiff was not transferred out of

his ground-floor cell for nearly three years, and in 2015, his

cell transfer was instigated by his participation in a program

provided in a different housing area, whereupon staff discovered

the housing restriction had expired. Also relevant to the issue

of Nurse Feldman’s state of mind is that when Plaintiff requested

renewal of the restriction from the medical staff on January 13,

2015, the renewal was provided immediately. The evidence in the

record would not permit a jury to find, as Plaintiff alleges, that

Nurse Feldman was deliberately indifferent by not providing a

medical renewal of his ground-floor housing restriction in

February 2012. Thus, the Court will grant summary judgment to Nurse

Feldman on the Eighth Amendment claim under § 1983 in Count 6 of

the Amended Complaint.

2. Eighth Amendment claim against Nurse Simkins

The Medical Defendants seek summary judgment for Nurse

Simkins on Count 9 of the Amended Complaint. (Med. Defs’ Brief

at 20-21, Dkt. No. 179-2.) Plaintiff alleges that Nurse Simkins

was deliberately indifferent to his need for medical care for

injuries to his left eye, head, and back. (Am. Compl. ¶98, Dkt.

No. 135.) The facts, undisputed except where otherwise indicated,

are as follows. On January 21, 2015, five days after Plaintiff

was assaulted by another inmate, Plaintiff saw Nurse Simkins in

response to his Sick-call request. (Raymond-Flood Cert., Ex. B,

D000072-74; Dkt. No. 177 at 38-40.) Plaintiff disputes Nurse

Simkins’ notation in the medical chart that Plaintiff reported

he was not in pain and his vision was fine. (Raymond-Flood Cert.,

Ex. B, D000072-74; Dkt. No. 177 at 38-40.) Nurse Simkins examined

Plaintiff’s left eye and recommended icing for soreness. (Id.)

Plaintiff disputes Nurse Simkins’ notation that Plaintiff agreed

with the treatment plan. (Id.)

It is, however, undisputed that Plaintiff requested medical

treatment again on January 31, 2015, and he was seen the next

day for his complaint of left eye pain. (Id. at D000066-69; Dkt.

No. 177 at 32-35.) Plaintiff’s left eye orbit appeared normal on

x-ray. (Id. at D000065; Dkt. No. 177 at 31.) On February 19,

2015, Plaintiff requested another medical appointment for head

and eye pain. (Id. at D000064; Dkt. No. 177 at 30.) In Sick-call

the following day, Nurse Mildred Johanson notified him that he

was scheduled for an appointment with an optometrist. (Id. at

D00063; Dkt. No. 177 at 29.)

The Medical Defendants contend that Plaintiff’s eye and head

injuries, suffered during an altercation with another inmate, were

not serious medical needs because the injuries did not cause him

to suffer a life-long handicap or permanent loss. (Med. Defs’ Brief

at 13-15; Dkt. No. 179-2.) Further, they argue Plaintiff cannot

establish deliberate indifference by Nurse Simkins because

Plaintiff was provided with appropriate examinations, diagnostic

testing, and prescription pain medication for his complaints.

(Med. Defs’ Brief at 13-15; Dkt. No. 179-2.)

Plaintiff opposes summary judgment for Nurse Simkins. He

alleges that he did not tell Nurse Simkins he was not in pain, but

rather that the pain medication was not helping, and Nurse Simkins’

response was that Plaintiff was already on pain medication. (Pl’s

Opp. Brief at 11, Dkt. No. 187-2.) Plaintiff did not have another

medical visit for twelve days; therefore, he attributes his pain

and suffering for twelve days to Nurse Simkins’ refusal to provide

additional treatment. (Id.)

In reply, the Medical Defendants state that after Nurse

Simkins evaluated Plaintiff, he did not submit a request for Sick-

call until ten (10) days later, January 31, 2015. (Med. Defs’ Reply

Brief, Dkt. No. 198 at 5-6.) Plaintiff was evaluated on February

1, 2015, and x-ray of his left eye orbit revealed no abnormality.

(Id.) If Plaintiff required medical treatment during the ten-day

span after he saw Nurse Simkins, the Medical Defendants maintain

that he could have submitted another Sick-call slip. (Id.) Further,

any disagreement Plaintiff had with Nurse Simkins’ professional

assessment of his medical needs is not deliberate indifference,

the Medical Defendants contend. (Id.)

It is well settled that negligence “in diagnosing or treating

a medical condition does not state a valid [Eighth Amendment]

claim[.]” Estelle, 429 U.S. at 106. Deliberate indifference

requires a mental state that is “more than ordinary lack of due

care for the prisoner's interests or safety.” Whitley v. Albers,

475 U.S. 312, 319 (1986). It is undisputed that Nurse Simpkins

evaluated Plaintiffs’ complaints, Plaintiff was prescribed pain

medication,2 and Nurse Simkins told Plaintiff to use ice if he

was sore. Though Plaintiff disagrees that using ice for his pain was an

adequate treatment plan when his pain medication was not improving his

symptoms, the record does not establish that Nurse Simkins denied or delayed

necessary medical care to Plaintiff for non- medical reasons. Moreover,

Nurse Simkins did not prevent Plaintiff from seeking follow-up

care sooner if ice did not relieve his pain. See Ryle v. Fuh, 820

F. App'x 121, 123 (3d Cir. 2020) (mere disagreement with

treatment plan does not constitute deliberate indifference). On

this record, a reasonable jury could not find that Nurse Simkins

acted with deliberate indifference to Plaintiff’s left eye, head

2 The fact that Plaintiff was prescribed pain medication for

treatment indicates that he had a serious medical need for purposes

of an Eighth Amendment claim. See Monmouth Cty. Corr. Institutional

Inmates v. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (“A medical

need is serious, in satisfaction of the second prong of the Estelle

test, if it is one that has been diagnosed by a physician as

requiring treatment[.]” (internal quotations omitted).

and back pain. Accordingly, the Court will grant summary judgment

to Nurse Simkins on the Eighth Amendment claim under § 1983 in

Count 9 of the Amended Complaint.

3. Eighth Amendment claim against Nurse Montgomery

Plaintiff alleges in Count 10 of the Amended Complaint that

Nurse Montgomery was deliberately indifferent to his need for

treatment of hypercholesterolemia because when he refused to take

Lipitor on January 21, 2015, she noted his refusal in his medical

chart. (Med. Defs’ Brief at 21-22, Dkt. No. 179-2.) While Plaintiff

admits that he refused to take his Lipitor on January 21, 2015,

his refusal resulted in discontinuation of the medication one week

later, which he alleges demonstrates deliberate indifference to

his serious medical needs. (Id.) The Medical Defendants assert

that Nurse Montgomery was not deliberately indifferent simply by

recording Plaintiff’s refusal to take Lipitor in his chart,

therefore, Nurse Montgomery should have summary judgment.

Plaintiff responds that Nurse Montgomery misrepresented his

refusal to take the medication, because she did not explain that

he was upset after being assaulted by another inmate. (Pl’s Opp.

Brief at 12, Dkt. No. 187, citing Rogers’ Depo. Aug. 25, 2016 at

44:23-25; 45:1-10, Dkt. No. 172-3 at 32.) When his cholesterol

medication was discontinued, Plaintiff was discharged from the

chronic care clinic. (Pl’s Opp. Brief at 12, Dkt. No. 187.)

Plaintiff alleges that his cholesterol levels remained high, as

confirmed by lab reports. (Pl’s Opp. Brief at 12, Dkt. No. 187.)

He claims the lack of medication caused him to suffer dizziness

and headaches, and he fell twice, suffering a knee injury. (Id.)

It is undisputed that Plaintiff refused the cholesterol

medication, Lipitor, on January 22, 2015, and Nurse Montgomery

recorded this in his medical chart. (Raymond-Flood Cert., Ex. B,

D000072; Dkt. No. 177 at 38.) Nurse Montgomery did not discontinue

Plaintiff’s cholesterol medication after this incident, nor is

there evidence that she recommended discontinuing it. The record

shows that she simply noted Plaintiff’s refusal. In fact, the

medical records show that on January 28, 2015, Nurse Judith Bender

discontinued Plaintiff’s Lipitor and his place in the chronic care

roster, noting in his chart that his last lipid panel was within

normal limits. (Raymond-Flood Cert., Ex. B, D000070; Dkt. No.

177 at 36.) Based on these records, a reasonable jury could not

find Nurse Montgomery was deliberately indifferent to Plaintiff’s

need for Lipitor, and she is entitled to summary judgment on

Plaintiff’s Eighth Amendment claim under § 1983 in Count 10 of

the Amended Complaint.

4. Eighth Amendment claims against Nurse Valentino

The Medical Defendants seek summary judgment for Nurse

Valentino on Plaintiff’s Eighth Amendment claims in Counts 12 and

13 of the Amended Complaint. (Med. Defs’ Brief at 22, Dkt. No.

179-2.) Plaintiff alleges Nurse Valentino failed to refer him

to a doctor for renewal of his ground-floor housing restriction,

for cholesterol and pain medications, and for injuries to his head

and knee. (Am. Compl. ¶¶101-102, Dkt. No. 135.) To the contrary,

the Medical Defendants submit that Nurse Valentino referred

Plaintiff to a doctor or nurse practitioner upon his request,

and that Plaintiff received evaluation and treatment for his

medical complaints. (Med. Defs’ Brief at 22, Dkt. No. 179-2.)

a. Renewal of ground-floor restriction

Accepting as true Plaintiff’s allegation that he told Nurse

Valentino, on February 4, 2012, that he wanted a renewal of his

ground-floor housing restriction, there is nothing in the record

to suggest that Nurse Valentino intentionally left this request

out of her notes when she wrote that Plaintiff had requested

renewal of his medication and lower-bunk restriction. (Raymond-

Flood Cert., Ex. B, D000218-19; Dkt. No. 177 at 51-52.) Even if

her failure to note Plaintiff’s request for renewal of his housing

restriction violated the professional standard of care, without

more, negligence does not give rise to an Eighth Amendment

violation. Estelle, 429 U.S. at 106.

b. March 13, 2015 medical visit

Plaintiff also alleges that during his visit with Nurse

Valentino on March 13, 2015, he asked to see a doctor about his

head pain and about the discontinuation of his cholesterol

medication. The medical chart for this visit shows that Nurse

Valentino noted Plaintiff’s specific complaints, examined him and

found that he was neurologically intact, and recommended that

Plaintiff continue to take his medication as prescribed, rest when

headaches occurred, and that he should return to medical if his

symptoms did not improve. (Raymond-Flood Cert., Ex. B, D000057-

59; Dkt. No. 177 at 23-25.) Finally, she noted that Plaintiff

requested a chronic care visit, and that she informed a nurse

practitioner of his request. (Id.) According to Plaintiff’s

medical chart, on March 13, 2015, Nurse Practitioner Lisa Renee

Mills wrote “hx of hyperlipidemia. pt. was refusing meds. so he

was taken out of ccc. now wants to reconsider. will order labs

to evaluate need.” (Raymond-Flood Cert., Ex. B, D000056; Dkt. No.

177 at 22.) A reasonable jury could not find deliberate

indifference by Nurse Valentino because she evaluated his

complaints on March 13, 2015, and referred him for a chronic care

visit with a nurse practitioner.

c. May 6, 2015 medical visit

Plaintiff also alleges deliberate indifference by Nurse

Valentino in response to his complaints of head, back and knee

pain on May 6, 2015. He claims that he requested refill of his

pain medication, but it was not refilled until July 1, 2015. Nurse

Valentino, however, recorded Plaintiff’s request for medication

renewal, specifically for Robaxin and Tylenol, in his medical

chart. (Raymond-Flood Cert., D000050-51; Dkt. No. 177 at 16-17.)

She also recorded his complaints of back pain, joint pain, joint

swelling and stiffness, and wrote “will flag NP for pain med

refill.” (Id.) When Nurse Practitioner Melissa Curtis transcribed

the order for refill of Plaintiff’s medications on May 8, 2015,

she ordered Robaxin but not Tylenol, which Nurse Valentino had

specifically requested. (Raymond-Flood Cert., D000049, Dkt. No.

177 at 15.) On June 26, 2015, Plaintiff’s Robaxin had been renewed

but he continued to complain of headache and back pain, and

requested Tylenol #3 [with codeine] not the regular Tylenol [325mg

Acetaminophen] which he had been prescribed earlier. (Id. at

D000044; Dkt. No. 177 at 10.) Nurse Valentino referred his request

for Tylenol with codeine to a nurse practitioner. (Id.) On July

1, 2015, the order for Plaintiff to receive Tylenol #3 was

transcribed by Nurse Practitioner Lisa Renee Mills. (Id. at

D000043, Dkt. No. 177 at 9.) Based on this record, no reasonable

juror could find that Nurse Valentino was deliberately

indifferent to Plaintiff’s medical needs by failing to refer him

to a doctor or a nurse practitioner who could prescribe

medication, and the Court will grant summary judgment for Nurse

Valentino on the Eighth Amendment claims under § 1983 in Counts

12 and 13 of the Amended Complaint.

5. Eighth Amendment Claim based on RUCHC’s Health

Service Request form policy

The Medical Defendants seek summary judgment for RUCHC on

Count 1 of the Amended Complaint. Plaintiff alleges that RUCHC’s

policy or custom of requiring inmates to submit multiple Health

Service Request forms before examination by a doctor violates

the Eighth Amendment. (Med. Defs’ Brief at 23-24, Dkt. No. 179-

2.) The Medical Defendants argue that Plaintiff was scheduled

for medical visits within 24 hours whenever he submitted Sick-

call request slips.

In opposition to summary judgment on Count 1 of the Amended

Complaint, Plaintiff alleges “the Internal Management Procedures

between Rutgers and NJDOC require inmates to be seen by a physician

or nurse practitioner within 24-hours for non-emergent health

issues.” (Pl’s Opp. Brief at 15-16, Dkt. No. 187.) Based on several

medical appointment cancellations, February 24, February 27, March

3, and March 10, 2015,3 Plaintiff seeks to hold RUCHC responsible

for failing to enforce this policy. (Pl’s Opp. Brief at 15-16,

Dkt. No. 187.)

In reply, the Medical Defendants explain that the policy

Plaintiff refers to is for Sick-call procedures, but the cancelled

appointments that Plaintiff complains of were not scheduled based

on Sick-call slips submitted by Plaintiff. Therefore, the

cancelled appointments do not constitute a violation of the policy

requiring a nurse practitioner or physician to see an inmate for

3 The parties dispute whether Plaintiff or the medical provider

canceled Plaintiff’s medical appointment on March 10, 2015.

a nonemergency health issue in Sick-call within 24-hours. (Med.

Defs. Reply Brief, Dkt No. 198 at 6-8, citing Med. Def’s SUMF ¶¶10,

19, 24-25, 27-28, 30-31, 35, 39-42, 46-47.)

The parties do not dispute that RUCHC is a state actor subject

to liability under 42 U.S.C. § 1983. To hold RUCHC liable,

plaintiff “must provide evidence that there was a relevant [RUCHC]

policy or custom, and that the policy caused the constitutional

violation [Plaintiff] allege[s].” Natale v. Camden Cty. Corr.

Facility, 318 F.3d 575, 584 (3d Cir. 2003). The policy cited by

Plaintiff provides that the MR-007 Health Service Request form

will be used to request non-emergent healthcare. (Pl’s Ex. 31,

Dkt. No. 187-1 at 37-41.) The inmate must place the form in the

Sick-call box, which is picked up daily. (Id.) The inmate will

be seen by a medical provider within 24-hours of receipt of the

form. (Id.) This is the procedure for Sick-call. (Id.)

Plaintiff has not established a violation of this policy, as

the records indicate his cancelled appointments were not scheduled

pursuant to the Sick-call procedures. (Raymond-Flood Cert., Ex. B,

D000061-63; Dkt. No. 177 at 27-29.) Furthermore, Plaintiff has

failed to provide any other evidence of deliberate indifference by

RUCHC in the cancellation and rescheduling of these appointments.

The fact of these cancellations alone does not establish deliberate

indifference by RUCHC to Plaintiff’s serious medical needs. See

Palakovic v. Wetzel, 854 F.3d 209, 232 (3d Cir. 2017) (“To state

a claim against a private corporation providing medical services

under contract with a state prison system, a plaintiff must allege

a policy or custom that resulted in the alleged constitutional

violations at issue”) (citing Natale v. Camden Cty. Corr. Facility,

318 F.3d 575, 584 (3d Cir. 2003)). Therefore, the Court will grant

summary judgment to RUCHC on the Eighth Amendment claim under §

1983 in Count 1 of the Amended Complaint.

6. Eighth Amendment claims Against RUCHC regarding

renewal of medication, record-keeping, follow-up

on orders and denial/or delay in providing

prescribed treatment

The Medical Defendants seek summary judgment for RUCHC on

Counts 2 and 8 of the Amended Complaint. In Count 2, Plaintiff

alleges RUCHC had policies concerning renewal of medications,

keeping medical records, and following up on CT scan orders that

violated the Eighth Amendment. (Am. Compl. ¶91; Dkt. No. 135.)

In Count 8, Plaintiff alleges RUCHC either denied or delayed

Plaintiff from receiving a CT scan, physical therapy, cholesterol

and pain medication, and treatment for his knee. (Id., ¶97.)

These claims were dismissed from the original complaint for

failure to state a claim, and the same claims were realleged in

the Amended Complaint without significant alteration. (Med. Defs’

Brief at 24-25, Dkt. No. 179-2.)

In support of Counts 2 and 8, Plaintiff points to evidence

that a CT scan was ordered to evaluate his headaches, and when

Plaintiff filed his brief in opposition to summary judgment, the

scan had not been done. (Pl’s Opp. Brief, Dkt. No. 187 at 16,

citing Raymond-Flood Cert., Ex. B at D000053; Dkt. No. 177 at 19.)

He also relies on the “health care policy on high blood

cholesterol, regarding both the delay in renewing his cholesterol

medication, including the improper discontinuation of said

medication.” (Pl’s Opp. Brief, Dkt. No. 187 at 22.) In reply,

the Medical Defendants contend that Plaintiff failed to explain

how the clinical guidelines for high blood cholesterol violate

the Eighth Amendment, and that Plaintiff does not rely on any

policy for his claims regarding medical record keeping or

following up on CT scan orders. (Med. Defs’ Reply Brief, Dkt. No.

198 at 8.)

Plaintiff’s claim based on delay in the provision of a CT

scan ordered by an RUCHC employee, in the absence of evidence that

an RUCHC policy caused the delay or that a pattern and practice

of such delays was known by RUCHC, cannot withstand summary

judgment because there is no respondeat superior liability for

employers under § 1983. See Chavarriaga v. New Jersey Dep't of

Corr., 806 F.3d 210, 223 (3d Cir. 2015) (finding that the

plaintiff impermissibly predicated her complaint against

defendants on a respondeat superior theory of liability).

Plaintiff’s claim that an RUCHC employee temporarily

discontinued his cholesterol medication, despite his lab results

allegedly indicating a continued need for the medication, also

relies on respondeat superior liability against RUCHC. Plaintiff

did not submit evidence that an RUCHC policy caused the temporary

discontinuation of his cholesterol medication or that RUCHC knew

of a pattern or practice of its employees discontinuing properly

prescribed medications. More to the point, Plaintiff overlooks the

fact that when Lipitor was discontinued, Nurse Judith Bender noted

that Plaintiff’s lipid panel was within normal limits, calling

into doubt any basis for an Eighth Amendment claim against an

employee of RUCHC based on discontinuation of Lipitor. (Raymond-

Flood Cert., Ex. B, D000070; Dkt. No. 177 at 36.)

Likewise, Plaintiff has not submitted evidence of an RUCHC

policy or practice that caused employees to violate Plaintiff’s

constitutional rights through inadequate medical record-keeping.

By all accounts, the medical records submitted in support of

summary judgment are quite detailed. (See generally, Dkt. No. 177).

An unconstitutional “custom is demonstrated by showing ‘practice

is so well settled and widespread that the policymaking officials

have either actual or constructive knowledge of it’”) (quoting

Silva v. Worden, 130 F.3d 26, 31 (1st Cir. 1997)). The Court will

grant summary judgment to RUCHC on the Eighth Amendment claims

under § 1983 in Counts 2 and 8 of the Amended Complaint for failure

to demonstrate a policy or custom of deliberate indifference to

Plaintiff’s serious medical needs.

7. Eighth Amendment Claim against RUCHC for failure

to renew ground-floor housing restriction

The Medical Defendants seek summary judgment for RUCHC on

Plaintiff’s Eighth Amendment claim in Counts 3, 4 and 5, that it

had a policy or custom which caused its employees failed to renew

his ground-floor housing restriction. (Med. Defs’ Brief at 25-

26, Dkt. No. 179-2.) Plaintiff testified that he immediately

advised NJDOC officers of the renewal of his ground-floor housing

restriction on January 13 or 14, 2015, but they did not immediately

transfer him to a ground-floor cell. (Med. Defs’ Brief, Dkt. No.

179-2 at 26, citing Med. Defs’ SUMF ¶14,4 Dkt. No. 179-1.) The

Medical Defendants submit there is no evidence that delay in the

cell transfer was caused by a policy of RUCHC.

In opposition to summary judgment on these claims, Plaintiff

states:

The Internal Management Procedure between

Rutgers and NJDOC provides, in relevant part,

the following:

The nursing and physician staff shall

notify the correctional staff of any

4 Paragraph 14 of the Med. Defs’ SUMF refers to a medical record

showing that Plaintiff requested a ground-floor housing

restriction renewal from the medical department on January 13,

2015, and Paragraph 15 of the Med. Defs’ SUMF states that Plaintiff

informed NJDOC officers of his renewed ground-floor restriction on

January 13 or 14, 2015, referring to Paragraph 39 of the Amended

Complaint. Pl’s Opp. Brief at 17-18, Dkt. No. 187.) Plaintiff

alleges staff failed to adhere to this policy because his ground-

floor housing restriction was renewed on January 13 or 14, 2015,

but he was not immediately transferred to a ground-floor cell.

(Id.)

physical limitations and/or requirements

the inmate may have. The

nursing/physician staff shall notify the

correctional staff of any changes in

activity level, and housing unit

requirements that the inmate may need as

a result of his/her health status.

It also appears that Plaintiff seeks to hold RUCHC liable for Nurse

Feldman’s failure to renew his ground-floor housing restriction in

2012. As discussed above, Plaintiff has not established that Nurse

Feldman was deliberately indifferent to Plaintiff’s need for a

ground-floor restriction renewal in 2012. Therefore, Feldman’s

employer was not deliberately indifferent when there was no

constitutional violation by its employee. See e.g. Tsakonas v.

Cicchi, 308 F. App'x 628, 632 (3d Cir. 2009) (“there was no

constitutional harm, as [the plaintiff] was provided with adequate

medical care.”) Moreover, RUCHC had no obligation to prevent a

medical restriction from lapsing if the restriction had an

expiration date.

As to the renewal of the ground-floor housing restriction

in January 2015, Plaintiff alleges custody staff were immediately

notified when his ground-floor housing restriction was renewed

on or about January 13, 2015. Based on the undisputed fact that

medical staff immediately communicated the renewed housing

restriction to custody staff, no reasonable juror could find the

internal management procedure described above caused staff to fail

to immediately transfer Plaintiff to a ground-floor cell. In other

words, something other than this policy caused the delay. The Court

will grant summary judgment to RUCHC on the Eighth Amendment claims

under § 1983 claims in Counts 3, 4 and 5 of the Amended Complaint.

8. Eighth Amendment failure to protect claim against

RUCHC

The Medical Defendants contend that RUCHC should have summary

judgment on Plaintiff’s Eighth Amendment failure to protect claim

in Count 7 of the Amended Complaint because Plaintiff provides

no factual basis to support his claim that RUCHC knew Inmate

Barlow had a history of assaults and posed an immediate risk of

harm to Plaintiff but failed to protect him. (Med. Defs’ Brief,

Dkt. No. 179-2 at 27-28.) Plaintiff did not oppose summary

judgment on his failure to protect claim against RUCHC. (Pl’s Opp.

Brief, Dkt. No. 187.) The Court will grant summary judgment to

RUCHC on the Eighth Amendment claim under § 1983 in Count 7 of

the Amended Complaint because Plaintiff failed to proffer any

evidence in support of this claim. See Federal Rule of Evidence

56(e)(3).

D. Plaintiff’s Claims under Title II of the Americans with

Disabilities Act Against RUCHC and Nurse Feldman

The Medical Defendants seek summary judgment for Nurse

Feldman and RUCHC on Plaintiff’s claims under Title II of the ADA.

(Med. Defs’ Brief at 28-29, Dkt. No. 179-2.) In Counts 3, 4 and

5 of the Amended Complaint, Plaintiff alleges RUCHC had a policy

or custom that caused his ground-floor housing restriction to

lapse, and that Nurse Feldman allowed the restriction to lapse,

in violation of Title II of the ADA. (Am. Compl., Dkt. No. 135.)

Plaintiff opposes summary judgment for RUCHC, arguing that he is

an individual with a disability of a back disorder; his housing

on the second-floor at SWSP caused him to suffer excruciating

pain and limited his access to recreational activities, showers,

and phones on the first floor, and he we was unable to participate

in the NJSTEP program for the entire year of 2015. (Pl’s Opp.

Brief at 25, Dkt. No. 187.) In reply, the Medical Defendants

contend that Plaintiff did not set forth evidence in support of

his claim that he lost participation in the NJSTEP program for

the year of 2015, that his back disorder is not a qualifying

disability, and that he failed to allege his limited access to

activities, showers and phones on the first floor violated Title

II of the ADA. (Med. Defs’ Reply Brief, Dkt. No. 198 at 9.)

Title II of the ADA, 42 U.S.C. § 12132 provides: “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.” A public entity

is defined as “any State or local government; any department,

agency, special purpose district, or other instrumentality of a

State or States or local government; and the National Railroad

Passenger Corporation, and any other commuter authority.” 42

U.S.C. § 12131(1)(A-C). A person sued in his or her individual

capacity is not a “public entity” who may be sued under Title II

of the ADA. Matthews v. Pennsylvania Dep't of Corr., 613 F. App'x

163, 170 (3d Cir. 2015). Further, the Third Circuit, in dismissing

a claim against a private contractor who provided medical services

to the Pennsylvania Department of Corrections, held “a private

corporation is not a public entity merely because it contracts

with a public entity to provide some service.” Id. at 170 (3d Cir.

2015) (citing Edison v. Douberly, 604 F.3d 1307, 1310 (11th

Cir.2010); see also Green v. City of New York, 465 F.3d 65, 79 (2d

Cir.2006) (holding that a private hospital performing government

services by contract is not an “instrumentality” of the

government); Cox v. Jackson, 579 F.Supp.2d 831, 852 (E.D. Mich.

2008) (holding that a private medical provider with a contract

to serve a prison was not a government entity)). Therefore, Nurse

Feldman and RUCHC are entitled to summary judgment on the Title

II, ADA claim in Counts 3, 4 and 5 of the Amended Complaint.

Moreover, the Court dismissed Plaintiff’s claim for

injunctive relief in his original complaint as moot because

Plaintiff’s ground-floor housing restriction was renewed and he

was returned to a ground-floor cell. (Opinion, Dkt. No. 5 at 45-

46.) Plaintiff realleged his claim for injunctive relief in the

amended complaint, but he did not allege that he was housed in a

ground-floor cell after January 29, 2015. Because Plaintiff’s

claim for injunctive relief is moot, he must establish deliberate

indifference to state a claim for compensatory damages under Title

II of the ADA. “[C]laims for compensatory damages under … § 202

of the ADA also require a finding of intentional

discrimination[,]” which is met by showing deliberate

indifference. S.H. ex rel. Durrell v. Lower Merion Sch. Dist.,

729 F.3d 248, 261, 263 (3d Cir. 2013). The “definition of

deliberate indifference in the … ADA context is consistent with

our standard of deliberate indifference in the context of § 1983

suits by prison inmates.” Id. at 263. For the reasons discussed

above, Plaintiff has not submitted evidence established that

NJDOC, through its employees, were deliberately indifferent to

Plaintiff’s inability to access services and programs on the

ground-floor of the prison for the several days that he was housed

in a second-floor cell. Therefore, Plaintiff’s ADA claim also

fails on the merits.

E. John and Jane Doe Defendants

Plaintiff named John Does 1-5 and Jane Does 1-5, employees

of RUCHC, NJDOC or UMDNJ, as defendants in the amended complaint,

filed on March 23, 2018. (Am. Compl. ¶30; Dkt. No. 135.) After

completion of discovery and expiration of the statute of

limitations for any claims that accrued as of March 23, 2016,

two years before the amended complaint was filed, Plaintiff never

substituted the true identity of any Doe Defendant. “If reasonable

discovery does not unveil the proper identities, … the John Doe

defendants must be dismissed.” Blakeslee v. Clinton Cty., 336 F.

App'x 248, 250 (3d Cir. 2009). Therefore, the Court will dismiss

the claims against the Doe Defendants. See Fed. R. Civ. P. 21 (“On

motion or on its own, the court may at any time, on just terms,

add or drop a party.”)

F. Unserved Defendants

The docket in this matter indicates Plaintiff has failed to

serve the Amended Complaint on Defendants Lisa Renee Mills, Judith

Bender, and Monica Tsakiris. Federal Rule of Civil Procedure 4(m)

states: “[i]f a defendant is not served within 90 days after the

complaint is filed, the court--on motion or on its own after

notice to the plaintiff--must dismiss the action without prejudice

against that defendant….”

The claims against Lisa Renee Mills and Monica Tsakiris were

dismissed without prejudice upon screening the original complaint

on January 12, 2016 (Order, Dkt. No. 6 at 3), and Plaintiff

realleged claims against them in the Amended Complaint on March

23, 2018. It appears from the docket that Plaintiff made no

attempts to serve the Amended Complaint on Lisa Renee Mills or

Monica Tsakiris, and thus abandoned his claims against these

defendants. Further, Judith Bender was a newly added defendant

to the Amended Complaint, and on March 5, 2019, Magistrate Judge

Schneider ordered counsel for RUCHC to provide Plaintiff with

Bender’s last known address. (Order, Dkt. No. 143.) The summons

was returned unexecuted as to Bender on May 3, 2019, because she

no longer resided at her last known address. (Dkt. No. 150.)

After discovery closed, the Medical Defendants brought this

motion for summary judgment on November 5, 2019, without any

further attempts by Plaintiff to serve Bender with the Amended

Complaint, suggesting that Plaintiff likewise abandoned his

claim(s) against her after failing to serve her at her last known

address. Plaintiff has the very heavy burden to show good cause

for not serving Mills, Tsakiris and Bender with the Amended

Complaint three years after it was filed. Plaintiff must show

good cause within fourteen days of the date of this Opinion and

accompanying Order or the Court will dismiss the claims against

these Defendants without prejudice.

G. Supplemental Jurisdiction Over Plaintiff’s State Law

Claims

If the Court dismisses the claims against the unserved

defendants upon Plaintiff’s failure to show good cause under

Federal Rule of Civil Procedure 4(m), no federal claims will

remain and the Court will decline to exercise supplemental

jurisdiction over Plaintiff’s state law claims pursuant to

Federal Rule of Civil Procedure 28 U.S.C. § 1367(c)(3). It is in

the interests of justice to decline supplemental jurisdiction

because Plaintiff’s state law claims raise issues within the

particular expertise of state courts concerning notice and expert

affidavit requirements of the New Jersey Tort Claims Act.

Moreover, litigants are experiencing delays in proceedings before

this Court, which has been in a state of judicial emergency with

judicial vacancies since February 2015.5

V. CONCLUSION

For the reasons discussed above, the Court grants the Medical

Defendants’ motion for summary judgment on Plaintiff’s § 1983 and

Title II, ADA claims.

An appropriate order follows.

DATE: March 18, 2021

s/Renée Marie Bumb

RENÉE MARIE BUMB

United States District Judge

5 See Judicial Vacancies, available at

https://www.uscourts.gov/judges-judgeships/judicial-

vacancies/judicial-emergencies (last visited March 9,

2021).