GAMBINO v. AHSA CASSANO

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

DAVID A. GAMBINO, Civil No. 17-0830 (NLH) AMD)

Plaintiff,

v. OPINION

AHSA CASSANO, et al.,

Defendants.

APPEARANCES:

David A. Gambino

19757055

115 Shepard Ave

Kenmore, NY 14217

Plaintiff Pro Se

Rachael A. Honig, Acting United States Attorney

Susan Millensky, Assistant United States Attorney

U.S. Attorney’s Office for the District of NJ

970 Broad Street

Suite 700

Newark, NJ 07102

Attorneys for Defendant AHSA Cassano, Bureau of Prisons

Central Office, Counselor Centeno, Counselor Jose, Ibe, IDC RN

Copeland, Medical Officer K. Engert, Northeast Office Bureau of

Prisons, Officer Hamel, RN Fletcher, RN Maruska, RN Wawrzyniak,

RN West, Unit Manager O’Cone, Warden Ortiz

HILLMAN, District Judge

Plaintiff David Gambino is proceeding on a second amended

complaint raising a litany of claims against various federal

persons and entities. ECF No. 135. Defendants AHSA Cassano,

Bureau of Prisons Central Office, Counselor Centeno, Counselor

Jose, Ibe, IDC RN Copeland, Medical Officer K. Engert, Northeast

Office Bureau of Prisons, Officer Hamel, RN Fletcher, RN

Maruska, RN Wawrzyniak, RN West, Unit Manager O’Cone, Warden

Ortiz (collectively “Defendants”) now move to dismiss the

amended complaint in part. ECF No. 120. Plaintiff opposes the

motion and moves to stay the proceedings for thirty days. ECF

Nos. 151 & 157. For the following reasons, the Court will grant

the motion to dismiss in part. The motion for a stay will be

dismissed as moot.

I. BACKGROUND

Plaintiff filed a pro se complaint. ECF Nos. Docket No. 1

& 14. At that time, Plaintiff was an inmate at FCI Fort Dix in

New Jersey. The Court permitted the complaint to proceed in

part on March 20, 2017. ECF No. 3.

Defendants filed a motion for summary judgment on July 7,

2017 seeking dismissal on the grounds that Plaintiff failed to

exhaust his administrative remedies. ECF No. 12. Shortly

thereafter, Plaintiff filed a motion to amend the complaint and

a “supplemental” complaint which consisted of 45 defendants, was

95 pages long, and asserted claims pursuant to Bivens v. Six

Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388

(1971), the Federal Tort Claims Act, and the Americans with

Disabilities Act. ECF No. 14. The Court granted the motion to

amend as Defendants conceded Plaintiff was permitted to amend

his complaint under Federal Rule of Civil Procedure 15. ECF No.

36. The Court indicated it would treat the “supplemental”

complaint as the operative pleading. Id. ¶ 2.

Defendants moved to dismiss the amended complaint on May

14, 2018. ECF No. 69. On July 19, 2018, Plaintiff moved to

amend his complaint again and requested the appointment of pro

bono counsel. ECF No. 88. Magistrate Judge Donio granted

Plaintiff’s requests to amend the complaint and for the

appointment of pro bono counsel. ECF No. 99. The appointment

of counsel was limited to the purpose of addressing the motion

to dismiss. Id. All pending motions were denied without

prejudice until counsel could be appointed for Plaintiff. ECF

No. 100.

Once counsel had been appointed, Defendants refiled their

motion to dismiss on March 29, 2019. ECF No. 120. Pro bono

counsel filed opposition to the motion to dismiss and requested

permission to file a second amended complaint if the Court were

inclined to grant the motion to dismiss. ECF No. 124. Finding

that a streamlined complaint would be in the interests of

justice, the Court dismissed Defendants’ motion without

prejudice and granted Plaintiff leave to file a third amended

complaint. ECF No. 131. Pro bono counsel then requested to be

relieved as counsel as the appointment had been limited to

opposing the motion to dismiss. ECF No. 132. In response, on

October 28, 2019, Plaintiff filed a letter requesting, among

other things, that his case move forward without appointed pro

bono counsel, and that he be provided with 60 days to file a

second amended complaint. ECF No. 133. Plaintiff filed his

second amended complaint on November 21, 2019. ECF No. 135.

On November 27, 2019, the Defendants filed a letter noting

that Plaintiff’s second amended complaint is identical to the

first four claims included in the nine-count complaint that was

filed in 2017. ECF No. 136. They asked the Court to reopen

their prior moving brief, Docket No. 120, so that they could

renew that motion to dismiss as to Counts One through Four of

the pleading. Defendants stated that they made this request

because a newly filed motion would be identical to the one

previously filed, save for deletion of the parts that solely

address claims Five through Nine, and if Plaintiff had intended

to refile his prior amended complaint in full, the Government’s

motion would be wholly identical to its prior one. The Court

granted pro bono counsel’s withdrawal request and directed the

Defendants to decide how to proceed on their motion within 30

days. ECF No. 137. Defendants renewed their motion on December

16, 2019. ECF No. 140.

In early 2020, Plaintiff moved for the appointment of new

pro bono counsel and for a stay of proceedings until October

2020 when he would be released from Bureau of Prisons (“BOP”)

custody. ECF Nos. 139, 141-42. He alleged that BOP officials

were denying him stamps to send mail. ECF No. 139 at 1. The

Court denied a stay of the proceedings but granted an extension

of time for Plaintiff to submit opposition to the renewed motion

to dismiss. ECF No. 143. That extension was granted with the

understanding that the motion to dismiss, ECF No. 120, would be

reinstated on July 24, 2020, the date Plaintiff’s opposition was

due. The Court “acknowledge[d] that access to the law library

may be limited due to steps taken to prevent the spread of the

COVID-19 virus, but reminds Defendants that prisoners have a

First Amendment right of access to the courts, which includes

reasonable access to legal research materials. Moreover,

prisons must provide prisoners with ‘paper and pen to draft

legal documents and stamps to mail them.’” ECF No. 143 at 3

(quoting Bruce v. Samuels, 136 S. Ct. 627, 632 (2016)).

Magistrate Judge Donio later denied Plaintiff’s pro bono

request. ECF No. 150.

Instead of filing opposition to the motion to dismiss,

Plaintiff filed a letter stating that the BOP was retaliating

against him for pursuing this litigation and would prevent his

release if he continued with the complaint. ECF No. 147. He

therefore stated he wanted to voluntarily dismiss the case

“under duress.” Id. at 4. The Court denied the request under

Federal Rule of Civil Procedure 41(a)(1) as Plaintiff had been

released to a halfway-house facility and was no longer under the

supervision of FCI Gilmer officials whom – he as alleged –

interfered with his ability to file opposition to Defendants’

motion. ECF No. 148.

Plaintiff submitted his opposition to the motion shortly

thereafter. ECF No. 151. Defendants filed their reply. ECF

No. 154.1 After the motion was fully briefed, Plaintiff filed a

motion for a thirty-day abeyance as he was diagnosed with COVID-

19. ECF No. 157.

II. STANDARD OF REVIEW

Courts must liberally construe pro se pleadings. Higgs v.

Atty. Gen. of the U.S., 655 F.3d 333, 339 (3d Cir. 2011) (citing

Estelle v. Gamble, 429 U.S. 97, 106 (1976)). However, to

survive a motion to dismiss, pro se litigants must still comply

with federal pleading standards. See Thakar v. Tan, 372 F.

App’x 325, 328 (3d Cir. 2010).

When considering a motion to dismiss for failure to state a

claim under Fed. R. Civ. P. 12(b)(6), Courts accept all well-

pleaded allegations in the complaint as true and view them in

the light most favorable to the non-moving party. Connelly v.

1 The Court will not consider Plaintiff’s sur-reply as Plaintiff

did not seek leave to file to file one. ECF No. 155. See Local

Civ. R. 7.1 (d)(6).

Lane Const. Corp., 809 F.3d 780, 790 (3d Cir. 2016). A Court

may grant a motion to dismiss only if the plaintiff fails to

allege sufficient factual matter, to “state a claim to relief

that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S.

444, 570 (2007)). A claim is facially plausible when “the

plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the

misconduct alleged.” Id.

III. DISCUSSION

Plaintiff’s opposition asserts he is proceeding on nine

claims. Plaintiff’s second amended complaint that was docketed

on November 21, 2019 is divided into four “claims” each with

several subparts. ECF No. 135. “[A]n amended pleading . . .

supersedes the earlier pleading and renders the original

pleading a nullity.” Palakovic v. Wetzel, 854 F.3d 209, 220 (3d

Cir. 2017) (citing W. Run Student Hous. Assocs., LLC v.

Huntington Nat’l Bank, 712 F.3d 165, 171 (3d Cir. 2013); 6

Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 1476 (3d ed. 2010)). “[T]he original pleading, once

superseded, cannot be utilized to cure defects in the amended

pleading, unless the relevant portion is specifically

incorporated in the new pleading.” Wright & Miller § 1476.

The second amended complaint is captioned as an “amended

complaint” and states Plaintiff wished to “start all over” due

to his frustration with his court-appointed counsel. Id. at 2.

Because Plaintiff did not specifically incorporate the first

amended complaint into the second amended complaint, the first

amended complaint is null and void. The second amended

complaint is the operative pleading.

A. Count One

Plaintiff brings this claim against Warden Ortiz, Special

Housing Unit (“SHU”) Officers John Does 1-4, SHU Lieutenant John

Doe, SHU Intake Psychologist Jane Doe, and Unit Manager O’Cone.

ECF No. 135 at 9. He captions this claim as “Special Housing

Unit Conditions of Confinement, Religious Violations,

Sanitation, Lack of Panic Button and Oversight, Failure to

Protect, Abuse of Mental Health Patient.” Id. Defendants seek

to dismiss this claim on the grounds that Ziglar v. Abbasi, 137

S. Ct. 1843 (2017) cautions against the extension of the Bivens

remedy, they are entitled to qualified immunity on the claims,

any claim for equitable relief is moot, and he has failed to

state a claim under the Federal Tort Claims Act. ECF No. 120 at

15.

1. Access to the Courts

Plaintiff alleges Defendants violated his right to access

the courts by “denying needed Grievance forms needed to be filed

‘timely’ for access to the Courts according to the Prison

Litigation Reform Act . . . . Defendants denials caused

constructive denial of accessing the court by PLRA barring that

occurs after the Defendants denials are exhausted.” ECF No. 135

at 10. The Court will dismiss this claim. “Prisoners do not

have a constitutional right to prison grievance procedures.

Thus, defendants’ alleged obstruction of such procedures is not

independently actionable.” Heleva v. Kramer, 214 F. App’x 244,

247 (3d Cir. 2007)(citing Massey v. Helman, 259 F.3d 641, 647

(7th Cir. 2001)). Failure to provide grievance forms or respond

to properly filed grievances may impact the availability of the

remedies under the PLRA, but that is an issue for another time

as exhaustion is not a PLRA pleading requirement. For purposes

of the motion to dismiss, Plaintiff has failed to state a claim

for alleged interference with prison remedies.

The Court will also dismiss Plaintiff’s access claim based

on denial of access to the law library. The Supreme Court’s

decision in Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) “created a

funnel through which plaintiffs alleging constitutional

violations by federal officials must pass.” Alexander v. Ortiz,

No. 15-6981, 2018 WL 1399302, at *4 (D.N.J. Mar. 20, 2018),

aff’d, 807 F. App’x 198 (3d Cir. 2020). First, the Court must

determine whether the cause of action presents a “new context”

for Bivens cases. If it does, the Court must determine whether

there are special factors counselling against extending the

Bivens remedy to the new cause of action. “[E]xpanding the

Bivens remedy is now a ‘disfavored’ judicial activity.” Abbasi,

137 S. Ct. at 1857.

“[T]he ‘proper test’ for determining whether a case

presents a new Bivens context is if the Supreme Court has not

previously recognized a claim in that context. A context is

‘new’ if it implicates a constitutional right not previously

recognized by the Supreme Court.” Mack v. Yost, 968 F.3d 311,

320 (3d Cir. 2020). The Supreme Court has never recognized a

Bivens remedy for First Amendment claims. See Reichle v.

Howards, 566 U.S. 658, 663 n.4 (2012) (“We have never held that

Bivens extends to First Amendment claims.”).

Plaintiff cites to this Court’s reference to Bruce v.

Samuels, 136 S. Ct. 627, 632 (2016) for the proposition that

Bivens extends to claims alleging failure to provide access to

the law library and legal materials. ECF No. 151 at 6.

Plaintiff misunderstands. Bivens is not a source of substantive

rights; it is a remedy. To say something is a Bivens claim is

simply to identify the method by which a plaintiff seeks relief

from violations of federal rights by federal employees. Abbasi

instructs courts to only extend that remedy to new rights in

rare circumstances. Prisoners do have rights to legal materials

and access to law libraries, but Bruce did not extend the Bivens

remedy for damages to claims of violations of those rights.

Plaintiff’s claim presents a new context, and the Court must

consider whether special factors counsel against extending the

Bivens remedy.

Post-Abbasi, the Third Circuit has concluded that “[t]wo

special factors are ‘particularly weighty’: the availability of

an alternative remedial structure and separation-of-powers

concerns.” Mack, 968 F.3d at 320. An alternative remedial

structure exists for Plaintiff’s access claim because Plaintiff

can petition the Court for injunctive relief. See Abbasi, 137

S. Ct. at 1862 (noting “detainees may seek injunctive relief”

for claims concerning conditions of confinement). Therefore, it

is not “damages or nothing.” Id. “The Supreme Court has noted

that ‘when alternative methods of relief are available, a Bivens

remedy usually is not. Thus, the availability of an alternative

remedial structure may, on its own, prevent courts from

expanding Bivens.” Mack, 968 F.3d at 320 (quoting Abbasi, 137

S. Ct. at 1863). The Court concludes the availability of

injunctive relief is a special factor that precludes extending

the Bivens damages remedy to an access to the court’s claim such

as Plaintiff’s. In this case Plaintiff’s request for injunctive

relief is moot because he has been released from BOP custody,

but that does not justify extending Bivens to this kind of

claim. The Court will dismiss this claim.

2. Religious Claims

Plaintiff also alleges in Count One that Defendants denied

his request for a towel so he could clean himself before his

daily prayers. “Plaintiffs religion was burdened when forced to

pray on a dirty floor that smelled of urine and feces.

Defendants violated Plaintiff’s rights to practice his religion

of Judaism by forcing him to pray dirty 5 times a day for over 4

weeks.” ECF No. 135 at 10. A First Amendment Free Exercise

claim is also a new Bivens context. The Court concludes that

the availability of relief under the Religious Freedom

Restoration Act of 1993 (“RFRA”) 42 U.S.C. § 2000bb is a special

factor counselling hesitation in extending the Bivens remedy.

See Mack v. Warden Loretto FCI, 839 F.3d 286, 305 (3d Cir. 2016)

(declining to extend Bivens to Muslim inmate’s Free Exercise

claim since there was an alternative remedial scheme available

to inmate under the RFRA).

RFRA permits Plaintiff to seek injunctive relief and

monetary damages for violations of his religious rights. Tanzin

v. Tanvir, 141 S. Ct. 486 (2020). Any request for injunctive

relief would be moot due to his release, but a damages remedy

would still be available. “Congress enacted RFRA in order to

provide greater protection for religious exercise than is

available under the First Amendment.” Holt v. Hobbs, 574 U.S.

352, 357 (2015). RFRA “prohibits the Federal Government from

taking any action that substantially burdens the exercise of

religion unless that action constitutes the least restrictive

means of serving a compelling government interest.” Burwell v.

Hobby Lobby Stores, Inc., 573 U.S. 682, 690–91 (2014).

To state a RFRA claim, Plaintiff must allege facts that

indicate that the federal government substantially burdened a

sincerely held religious belief. “[A] substantial burden exists

where: 1) a follower is forced to choose between following the

precepts of his religion and forfeiting benefits otherwise

generally available to other inmates versus abandoning one of

the precepts of his religion in order to receive a benefit; OR

2) the government puts substantial pressure on an adherent to

substantially modify his behavior and to violate his beliefs.”

Washington v. Klem, 497 F.3d 272, 280 (3d Cir. 2007). Plaintiff

has sufficiently alleged that not being able to wash before

praying substantially burdened his religious beliefs, but he has

not sufficiently alleged the personal involvement of any of the

Defendants.

“[A] plaintiff must plead that each Government-official

defendant, through the official’s own individual actions, has

violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662,

676 (2009). Plaintiff has not identified Defendants’ personal

involvement by stating what actions each Defendant took that

violated his religious right. In his opposition papers,

Plaintiff argues that the names of specific officers are being

withheld from him. ECF No. 151 at 17. However, Plaintiff does

not use fictious identities to identify the actions, for example

alleging that Officer John Doe refused to provide Plaintiff with

a towel on a certain date, nor does he identify the actions of

persons whose names he clearly knows, such as Warden Ortiz and

Unit Manager O’Cone. Since Plaintiff has not met this pleading

requirement, this claim shall be dismissed. Fed. R. Civ. P.

12(b)(6).

3. Conditions of Confinement

Plaintiff further alleges that he was placed into the SHU

upon his arrival at Fort Dix and was “subjected to a filthy room

that smelled of urine and feces: and was “dim like a dungeon . .

. .” ECF No. 135 at 9. Id. He claims the room was freezing

and wet and only had 1 blanket and sheet. Id. Plaintiff also

alleges that inmates were housed in overcrowded conditions. Id.

Courts are divided as to whether the Supreme Court has

extended the Bivens remedy to Eighth Amendment conditions of

confinement claims. See Schwarz v. Meinberg, 761 F. App’x 732,

733–34 (9th Cir.), cert. denied, 140 S. Ct. 468 (2019) (holding

“unsanitary cell conditions. . . claims do not fall within

claims authorized by the Supreme Court.”); Walker v. Schult, 463

F. Supp. 3d 323, 330 (N.D.N.Y.) (“prison condition case does not

present a ‘new context’”), appeal filed 20-2415 (2d Cir. July

30, 2020). The Third Circuit has not ruled on this precise

issue, but it did hold that Farmer v. Brennan, 511 U.S. 825

(1994) extended Bivens to failure to protect claims under the

Eighth and Fifth Amendments. “[A]n inmate’s claim that prison

officials violated his . . . rights by failing to protect him

against a known risk of substantial harm does not present a new

Bivens context.” Bistrian v. Levi, 912 F.3d 79, 90 (3d Cir.

2018). The Supreme Court recognized a Bivens remedy for

violations of the Eighth Amendment right to adequate medical

care in Carlson v. Green, 446 U.S. 14 (1980). An Eighth

Amendment challenge to the conditions of confinement uses the

same deliberate indifference standard articulated in Carlson and

Farmer. Therefore, the Court concludes the Bivens remedy

extends to Eighth Amendment conditions of confinement claims.

To state an Eighth Amendment conditions of confinement

claim, Plaintiff must provide facts suggesting “that (1) the

deprivation alleged was objectively, ‘sufficiently serious’ such

that the prison officials’ acts or omissions resulted in the

denial of ‘the minimal civilized measure of life’s necessities’;

and (2) that the prison officials exhibited a ‘deliberate

indifference’ to his health and safety.” Barndt v. Wenerowicz,

698 F. App’x 673, 677 (3d Cir. 2017) (quoting Farmer, 511 U.S.

at 834). As with his other Count One claims, Plaintiff does not

provide factual allegations as to Defendants’ personal

involvement. Plaintiff’s arguments in his opposition papers are

insufficient as the allegations must be in the second amended

complaint.

Moreover, Plaintiff has not provided any facts that would

support an inference of deliberate indifference. “[T]he

standard for determining deliberate indifference in a conditions

of confinement case is whether a prison official knew of and

disregarded an excessive risk to an inmate’s health or safety.”

Mitchell v. Dodrill, 696 F. Supp. 2d 454, 467 (M.D. Pa. 2010)

(citing Farmer, 511 U.S. at 837). In the absence of facts

setting forth what actions each Defendant did or did not take,

the Court cannot infer that Defendants were deliberately

indifferent to Plaintiff’s health or safety.

Plaintiff also alleges Defendants were deliberately

indifferent to his mental health needs by placing him in a cell

without a panic button and frequently leaving him alone for 2

hours or more. ECF No. 135 at 9-10. He states this violated

his Eighth Amendment rights because he was placed into that cell

right after he came off suicide watch. Id. “Defendants left

Plaintiff in a cell with ‘no’ observation, and no frequent

observations - thus leaving the Plaintiff unsafe and unprotected

for 4 weeks.” Id. Again, Plaintiff has not provided any facts

setting forth how each Defendant was personally involved in the

alleged violation.

The Court will dismiss Count One in its entirety.

B. Count Two

In his second claim, Plaintiff alleges Warden Ortiz,

Officer Hamel, Unit Manager O’Cone, Counselor Centeno, and

Counselor Jose obstructed Plaintiff’s “Ability to Access the

Court Through Constructive Procedural Baring Pursuant to the

Prison Litigation Reform Act.” ECF No. 135 at 12.

Plaintiff alleges these defendants “refused to respond to

Grievance Requests verbally and in writing. Defendants also

gave ‘false’ information on ‘who’ and ‘when’ grievances can be

obtained, processed, and legally mailed.” Id. Plaintiff

asserts that Unit Manager O’Cone never responded to Plaintiff’s

requests for help filing grievances, Officer Hamel told

Plaintiff’s his counselor was responsible for giving Plaintiff

the forms, and Counselors Centeno and Jose denied his grievances

as being untimely. Id. As previously discussed, “[p]risoners

do not have a constitutional right to prison grievance

procedures. Thus, defendants’ alleged obstruction of such

procedures is not independently actionable.” Heleva v. Kramer,

214 F. App’x 244, 247 (3d Cir. 2007)(citing Massey v. Helman,

259 F.3d 641, 647 (7th Cir. 2001)). The Court will dismiss this

claim in its entirety as well.

C. Count Three

Plaintiff alleges in his third claim that AHSA Cassano and

Warden Ortiz failed to provide him with adequate medical

attention, causing him to contract a MRSA infection.2 ECF No.

135 at 14. “Plaintiff had explained to AHSA Cassano that when

he frequently falls and defecates in his adult diapers, he is

left with using his bare hands to wipe and scoop away feces that

gets squashed under and all around the Plaintiff’s buttocks,

legs, testicles and backside.” Id. “AHSA Cassano refused to

supply the patient with accommodations and stated that he would

‘be asking for toothpaste and toothbrush next.’” Id. Plaintiff

states Warden Ortiz “backed” AHSA Cassano’s decision. Id. He

alleges this violated the Americans with Disabilities Act and

the Eighth Amendment.

The Court will deny the motion to dismiss the Eighth

Amendment claim. Plaintiff has sufficiently alleged he had a

serious medical need that AHSA Cassano and Warden Ortiz knew of

intentionally refused to treat. This claim shall proceed.

Plaintiff has not stated a claim under the Americans with

Disabilities Act (“ADA”) as the ADA does not apply to the

executive branch. However, section 504 of the Rehabilitation

Act does apply. Under the Rehabilitation Act, “[n]o otherwise

qualified individual with a disability in the United States . .

2 Denial of adequate medical care is an established Bivens

action. Carlson v. Green, 446 U.S. 14 (1980).

. shall, solely by reason of her or his disability, be excluded

from the participation in, be denied the benefits of, or be

subjected to discrimination under any program or activity

receiving Federal financial assistance or under any program or

activity conducted by any Executive agency . . . .” 29 U.S.C. §

794(a). To state a Rehabilitation Act claim, a plaintiff must

allege that: (1) he is a qualified individual with a disability;

(2) he was either excluded from participation in or denied the

benefits of some public entity’s services, programs, or

activities; (3) such exclusion, denial of benefits, or

discrimination was by reason of his disability; and (4) the

program or activity received federal financial assistance.

Plaintiff alleges that Warden Ortiz and AHSA Cassano’s

refusal to accommodate his disability by providing him extra

toilet paper was discrimination. “[A] plaintiff can assert a

failure to accommodate as an independent basis for liability

under the . . . RA.” Muhammad v. Ct. of Common Pleas of

Allegheny Cty., Pa., 483 F. App’x 759, 763 (3d Cir. 2012).

However, “[t]he RA does not permit suits against defendants in

their individual capacities.” Iglesias v. True, 403 F. Supp. 3d

680, 688 (S.D. Ill. 2019). Although not listed as a defendant

in this claim, Plaintiff does list the Central Office of the

Bureau of Prisons as a defendant in the second amended

complaint. The Court will permit the Rehabilitation Act claim

to proceed against the Bureau of Prisons.

D. Count Four

Plaintiff describes his final claim as “Delay of Proper

Intervention of a Serious Infection, Denial of Emergency

Intervention, AND Abandonment of Needed Emergency Medical

Attention.” ECF No. 135 at 17. Plaintiff alleges that he

reported “unbearable pain” on January 16, 2016 and again on

January 26, 2016. Id. He asked for help from the officers on

“all shifts,” but everyone reported that Plaintiff was fine.

Id. He identifies actions taken wherein he attempted to get

medical treatment for his MRSA infection but was rebuffed.

Plaintiff has stated an Eighth Amendment claim for denial

of medical treatment against AHSA Cassano, Dr. Ibe, RN West,

Medical Officer K. Engert, and the John Doe officers and

lieutenants on shift at the relevant times. The Court will deny

the motion to dismiss this claim.

E. Nurse Copeland

Defendants argue all claims against Nurse Copeland should

be dismissed as he is immune from suit. Nurse Copeland

certifies he is a Quality Improvement Infection Control

Coordinator at FCI Fort Dix. ECF No. 120-1 ¶ 1.3 He joined the

3 “[I]n a factual attack under Rule 12(b)(1), the court may

consider and weigh evidence outside the pleadings to determine

Public Health Service (“PHS”) in 2013. Id. “In my position, I

am responsible for reporting statistics of the institution's

various infections to the Health Department and the Bureau of

Prisons. I also conduct infection prevention trainings for

staff. I do not provide clinical services to inmates unless

during a life-threatening emergency.” Id. ¶ 3

Section 233 of the Public Health Act states in relevant

part:

The remedy against the United States provided by

sections 1346(b) and 2672 of Title 28. . . for damage

for personal injury, including death, resulting from the

performance of medical, surgical, dental, or related

functions, including the conduct of clinical studies or

investigation, by any commissioned officer or employee

of the Public Health Service while acting within the

scope of his office or employment, shall be exclusive of

any other civil action or proceeding by reason of the

same subject-matter against the officer or employee (or

his estate) whose act or omission gave rise to the claim.

42 U.S.C. § 233(a). “Section 233(a) grants absolute immunity to

PHS officers and employees for actions arising out of the

performance of medical or related functions within the scope of

their employment by barring all actions against them for such

conduct.” Hui v. Castaneda, 559 U.S. 799, 806 (2010). “Even in

circumstances in which a Bivens remedy is generally available,

if it has jurisdiction.” Gould Elecs. Inc. v. United States,

220 F.3d 169, 178 (3d Cir. 2000).

an action under Bivens will be defeated if the defendant is

immune from suit.” Id. at 807.

Plaintiff alleges in Count Four that he approached Nurse

Copeland, who told Plaintiff he could have MRSA. ECF No. 135 at

18. “Nurse Copeland called over to the hospital, expressed

concern, and ordered Defendant West to immediately examine the

Plaintiff.” Id. Plaintiff argues that Nurse Copeland was aware

of the damage MRSA could do as thirteen inmates had died from

MRSA infections but failed to file the required Clinical Review

Complaint. Id. at 22. Plaintiff does not dispute that Nurse

Copeland is an officer of the PHS, instead he asserts that

“[a]bsolute Immunity does not let Copeland murder an inmate

while at the medical department. Copelands specific performance

requirements do not suggest he can commit murder - even if it’s

while working at the medical facility to which he is assigned.”

ECF No. 151 at 22. “Copelands emergency medical intervention

for a SARS3 infection being ignored falls under basic Nursing

and medical intervention. This is not part of his commission

for infectious disease training - it’s an emergency medical

intervention being done by an overly qualified medical

personal.” Id.

Plaintiff’s complaint alleges Nurse Copeland did not

respond appropriately to his MRSA infection and failed to file a

required form. He also asserts Nurse Copeland had special

knowledge about Plaintiff’s condition because Nurse Copeland

created a report about the other inmate MRSA-related deaths.

ECF No. 135 at 22. These allegations are all related to Nurse

Copeland’s position as an Infection Control Coordinator;

Plaintiff uses reports created by Nurse Copeland about MRSA’s

seriousness as evidence of deliberate indifference. The plain

text of § 233 provides Nurse Copeland with absolute immunity,

and the Court must dismiss all claims against him.

F. Federal Tort Claims Act

Plaintiff also invokes the Federal Tort Claims Act in his

complaint. “The FTCA waives sovereign immunity and grants

district courts jurisdiction over tort claims against the United

States ‘under circumstances where the United States, if a

private person, would be liable to the claimant in accordance

with the law of the place where the act or omission occurred.’”

Gould Elecs. Inc. v. United States, 220 F.3d 169, 179 (3d Cir.

2000) (quoting 28 U.S.C. § 1346(b)(1)) (emphasis omitted),

modified on other grounds by Simon v. United States, 341 F.3d

193 (3d Cir. 2003). “The Government is the only proper

defendant in a case brought under the FTCA.” CNA v. United

States, 535 F.3d 132, 138 n.2 (3d Cir. 2008).

Reviewing the second amended complaint in the light most

favorable to Plaintiff, the Court concludes he has stated FTCA

claims in Counts Three and Four. There are sufficient facts

from which this Court can infer the negligence elements of duty,

breach, causation, and damages. The Court will therefore order

the Clerk to add the United States as a defendant, and the FTCA

claims shall proceed against the United States.

G. Qualified Immunity

Defendants lastly assert they are entitled to qualified

immunity on Plaintiff’s claims. “[O]fficers are entitled to

qualified immunity . . . unless (1) they violated a federal

statutory or constitutional right, and (2) the unlawfulness of

their conduct was ‘clearly established at the time.’” D.C. v.

Wesby, 138 S. Ct. 577, 589 (2018) (quoting Reichle v. Howards,

566 U.S. 658, 664 (2012)). The first prong of the analysis

“asks whether the facts, [t]aken in the light most favorable to

the party asserting the injury, ... show the officer’s conduct

violated a [federal] right[.]” Tolan v. Cotton, 572 U.S. 650,

655-56 (2014) (internal quotation marks and citations omitted)

(alterations and omissions in original).

The Court denies qualified immunity at this time. The

second amended complaint, when read in the light most favorable

to Plaintiff, states claims for violations of the Rehabilitation

Act and Eighth Amendment. A reasonable person would know that

failing to accommodate disabilities and denying basic hygiene

materials violates the law. See Small v. Lanigan, No. 13-7642,

2019 WL 145628, at *6 (D.N.J. Jan. 9, 2019) (“Reasonable people

could find that requiring Plaintiff to remain trapped in his own

waste for days” violates the Eighth Amendment and ADA); Partelow

v. Massachusetts, 442 F. Supp. 2d 41, 50 (D. Mass. 2006)

(recognizing that “reasonable access to safe bathing ...

constitute[s] a component of civilized living” for purposes of a

disabled prisoner's Eighth Amendment claim). The Court will

deny qualified immunity without prejudice.

H. Motion to Stay

Plaintiff filed a motion to stay the proceedings for 30

days due to his COVID-19 diagnosis. ECF No. 157. The Court

will dismiss this motion as moot as more than 30 days have

elapsed since the motion was filed.

IV. CONCLUSION

For the reasons set forth above, the Court will grant

Defendant’s motion to dismiss in part. Claims One and Two shall

be dismissed entirely. Claim Three shall proceed against Warden

Ortiz and AHSA Cassano on the Eighth Amendment claim and against

the Bureau of Prisons Central Office on the Rehabilitation Act

claim. Nurse Copeland is dismissed as he is immune from suit;

Claim Four shall otherwise proceed. Plaintiff’s motion for a

stay shall be dismissed as moot.

An appropriate Order follows.

Dated: March 30, 2021 s/ Noel L. Hillman

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