# GAMBINO v. AHSA CASSANO

> District Court, D. New Jersey · March 30, 2021

URL: https://www.frixlaw.com/law-library/cases/10270402

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** March 30, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10270402

## How later opinions describe it (automated extraction)

- recognizing that “reasonable access to safe bathing ... constitute[s] a component of civilized living” for purposes of a disabled prisoner's Eighth Amendment claim
- declining to extend Bivens to Muslim inmate’s Free Exercise claim since there was an alternative remedial scheme available to inmate under the RFRA
- noting “detainees may seek injunctive relief” for claims concerning conditions of confinement

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10270402. Public record. Not legal advice.