POLYNICE v. NEW JERSEY DEPARTMENT OF CORRECTIONS

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

EDWIN POLYNICE, Civil Action No. 19-16875 (MCA)

Plaintiff,

v. MEMORANDUM OPINION

NEW JERSEY DEPARTMENT OF

CORRECTIONS,

Defendants.

This matter has been opened to the Court by Plaintiff’s filing of a motion pursuant to Fed.

R. Civ. P. 60(b), seeking relief from the Magistrate Judge’s October 25, 2021 Order denying his

Second Motion to Amend on the basis of undue delay. For the reasons explained in this

Memorandum Opinion, the Court will deny the motion, enter judgment in favor of Defendant

Robinson, and close this matter accordingly.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

On August 19, 2019, Plaintiff filed his initial complaint in the United States District

Court, Newark Vicinage, asserting civil rights claims pursuant to 42 U.S.C. § 1983 and

negligence claims pursuant to the New Jersey Tort Claims Act (“NJTCA”) against the NJDOC,

Northern State Prison, Administrator George Robinson and Sergeant Gibson. The Original

Complaint was filed by Joseph D. Lento, Esquire. See id.

Plaintiff’s Complaint arises from his fall from an upper bunk bed at Northern State Prison

on October 1, 2017. On October 2, 2019, Defendants NJDOC and Robinson (“DOC

Defendants”) moved to dismiss the Complaint pursuant to Rule 12(b)(6) of the Federal Rules of

Civil Procedure. ECF No. 9. On March 6, 2020, Plaintiff’s current counsel, Michael Poreda,

Esquire, entered an appearance. See ECF No. 13. On May 28, 2020, the Court granted the

motion to dismiss in part and denied it in part. The Court denied the motion to dismiss with

respect to the § 1983 supervisory liability claim against Robinson in his personal capacity

premised on policymaking and failure to train or supervise. See ECF Nos. 14, 15. The Court

otherwise granted the motion to dismiss as to NJDOC and Robinson, including the dismissal of

the NJTCA claims against the DOC Defendants for failure to allege that Plaintiff filed a Tort

Claims Notice.

Plaintiff filed a motion to amend on or about August 23, 2020. See ECF No. 22. As in

his Original Complaint, Plaintiff alleged that John Doe corrections officers ordered him to take a

top bunk even after Plaintiff informed the officers that he had a bottom bunk pass. ECF No. 22-

2, First Proposed Amended Complaint at ¶¶ 21-23. Plaintiff further alleged that the order to take

the top bunk had come from a Sergeant Gibson. See id. at ¶¶ 26-27. In his First Proposed

Amended Complaint, Plaintiff reasserted the negligence claims against the DOC Defendants and

pleaded compliance with the NJTCA Tort Claims Notice requirements. See First Proposed

Amended Complaint ¶¶ 64-65. Plaintiff also added ADA/Rehabilitation Claims against the DOC

Defendants. See id. at ¶¶ 97-97.

The First Proposed Amended Complaint also included new and seemingly unrelated

negligence claims against University Correctional Health Care (“UCHC”) Defendants regarding

the failure to refill Plaintiff’s chronic care medication in July 2020, which resulted in Plaintiff’s

kidney failure. See id. at ¶¶ 37-56,106-10. The UCHC Defendants1 opposed the motion to

1 The motion to amend sought to add University Correctional Health (“UCHC”) and Defendant

Sherita Latimore-Collier, M.D.

amend, and, on October 2, 2020, the Magistrate Judge, the Honorable Leda D. Wettre (“Judge

Wettre”), terminated the motion to amend without prejudice. ECF Nos. 27, 31.

In his Certification in support of the Rule 60(b) motion, Poreda avers that at the

conference on October 2, 2020, he agreed to terminate the first motion to amend at the request of

Judge Wettre in order to conduct pre-amendment discovery to name the unidentified parties and

avoid unnecessary motion practice. See Certification of Michael Poreda, Esq. (“Poreda Cert.”)

¶¶ 49-52.

Poreda further contends that it was not until the NJDOC provided Plaintiff’s medical

records in November 24, 2020,2 that he learned that that Polynice’s bottom bunk restriction had

actually been revoked by Latifa Fedai, APN, before Plaintiff suffered his injury, which could

account for the DOC’s decision to place him on the top bunk.3 See ECF No. 50, Reply at 6.

Counsel states that he circulated a new motion to amend on December 17, 2020, which named

Fedai, but the UCHC Defendants objected. See Poreda Cert. at ¶¶ 55-57.

On December 23, 2020, Poreda wrote Judge Wettre a letter asking, among other things,

for the Court to schedule the filing of a motion to amend at the January 20, 2020 status

conference, but the January 21, 2020 Scheduling Order did not schedule the motion to amend.

Poreda Cert. ¶¶ 58-59 (citing Exhibit I).

On May 26, 2021, approximately six months after Poreda learned of Fedai’s involvement

in revoking the bunk pass and within the time provided by the Scheduling Order dated May 4,

2 The Reply brief lists the date as November 24, 2021, but the year appears to be a typo given

that the Reply Brief was filed on June 18, 2021.

3 The First Proposed Amended Complaint did not include allegations that Latifa Fedai, APN or a

John Doe or Unknown Person improperly revoked Plaintiff’s bunk pass. Curiously, Poreda

appears to contend that Plaintiff was not aware that his bottom bunk restriction had been revoked

by Fedai, or anyone, and that he was under the belief that he still had the bottom bunk restriction,

which contradicts his deposition testimony and Answers to Interrogatories. See id.

2021, Plaintiff filed a Second Motion to Amend. See ECF Nos. 43, 44. Plaintiff’s Second

Proposed Amended Complaint once again names NJDOC and Defendant Robinson as

Defendants, as well as newly named Defendants UCHC, Latifa Fedai, APN, Defendant Sergeant

Christopher Gibbons (previously misidentified as Sergeant Gibson), and correctional officers

Ryan Molloy, Raymond Reyes, who were previously identified as John Does.4 See Second

Proposed Amended Complaint at ¶¶ 5-11.

The Second Proposed Amended Complaint provides the following relevant facts:

14.) Plaintiff is known to have diabetes, diabetic

neuropathy in his feet as well as a history of a torn Achilles tendon.

These disabilities substantially limit his activities of daily living, to

wit, his ability to climb and jump.

15.) These are disabilities are therefore within the

meaning of the New Jersey Law Against Discrimination, the

Rehabilitation Act, and the Americans with Disabilities Act.

16.) Due to Plaintiff’s disabilities, he was given a

permanent bottom bunk restriction in 2013, when he arrived at

South Woods State Prison.

17.) Plaintiff often experienced dizziness from fluctuations

in blood sugar due to the diabetes. The bottom bunk restriction

served to protect him during dizzy spells.

18.) In January 2017, he was transferred to Northern State

Prison, after having spent several months in New Jersey State

Prison.

19.) Plaintiff requested the continuation of his standing

bottom bunk order.

20.) This was denied without genuine cause by Latifa

Fedai, APN on January 24, 2017. This was supposedly based on

Polynice “not meeting the requirements,” however she never

articulated the requirements to him, and future acts by UCHC

employees would prove that this was a sadistic and deliberate lie.

4 In his certification submitted with his Rule 60(b) motion, Plaintiff’s counsel indicates “there

were actually no substantive allegations against UCHC [in the Second Proposed Amended

Complaint]. The only allegation related to Rutgers was the deliberate indifference against its

employee, Latifa Fedai[.]” Poreda Certification at ¶ 76(d) n.1.

21.) Plaintiff formally grieved the denial of the bottom

bunk through the kiosk system at Northern State Prison, but his

grievance was either denied or not responded to.

22.) Plaintiff was nevertheless able to secure a bottom bunk

informally.

23.) On September 30, 2017, Plaintiff was living in Delta

Unit 1-E at Northern State Prison, assigned to a bottom bunk.

24.) For unknown reasons, on September 30, 2020, Plaintiff

was told by a corrections officer, either Molloy or Reyes, to move

out of his bottom bunk and move to cell 104 and sleep in a top

bunk.

25.) Polynice told Molloy or Reyes that he needed to be on

the bottom bunk due to his disabilities.

26.) When Molloy or Reyes protested that Polynice was no

longer entitled to the accommodation, Polynice told him that the

accommodation was for the remainder of his incarceration.

27.) Plaintiff’s right to a safe place to sleep is clearly

established law. N.J.A.C. 10A:31-3.6 states: “A qualified inmate

with a disability shall be housed in a manner that provides for his

or her safety, security and accessibility to facility programs or

activities. Rooms, sleeping units, or housing units shall be

designed for use by qualified inmates with disabilities.”

28.) Following his explanation, Polynice was ordered to

utilize the top bunk, in clear violation of DOC regulation, state

law, and federal law.

29.) Molloy or Reyes reiterated that this order had come

from Sergeant Gibbons.

30.) Polynice was compelled to follow the order.

31.) On October 1, 2017, at approximately 12:35pm, while

attempting to dismount the top bunk to take a daily shower,

Plaintiff Edwin Polynice became extremely dizzy from a drop in

his blood sugar and fell.

32.) During this fall, Plaintiff, Edwin Polynice attempted to

land on a stool, but slipped. He fell, striking his head on the toilet

and his leg against the stool.

Second Proposed Amended Complaint ¶¶ 14-32.

In Count One of the Second Proposed Amended Complaint, Plaintiff asserts claims of

deliberate indifference under the Eighth Amendment against Fedai for her failure to renew the

bottom bunk pass. Count One provides incorporates the facts above and adds these additional

facts about Fedai’s refusal to renew Plaintiff’s bottom bunk pass:

45.) When Latifa Fedai refused to give Plaintiff the bottom bunk

that he requested, it was without genuine basis.

46.) Fedai knew that the Plaintiff had health conditions that

rendered the top bunk dangerous. She nevertheless denied him the

request without genuine reason, rendering the decision

deliberatively indifferent.

Second Proposed Amended Complaint ¶¶ 45-46.

Count One also asserts deliberate indifference claims against Defendants Robinson in his

supervisory capacity based on his failure to implement policies, procedures, and customs, and his

failure to supervise and train his subordinates Gibson, Molloy, and Reyes. See Second Proposed

Amended Complaint ¶¶ 47-51.

In Count Two, Plaintiff pleads a negligence claim against all DOC Defendants. See

Second Proposed Amended Complaint at ¶¶ 52-57. Relatedly, Count Six pleads a negligent

training and supervision claim against the DOC Defendants. See Proposed Amended Complaint

at ¶¶ 70-77. Plaintiff’s Second Proposed Amended Complaint also pleads compliance with the

New Jersey Tort Claims Act. See Second Proposed Amended Complaint at ¶ 43 (On or about

December 19, 2017, Plaintiff, or his then-counsel, Jean Ross, filed a Notice of Tort Claim

seeking $100,000 for the injuries sustained in the fall.).

Count Three pleads a New Jersey Law Against Discrimination Claim (“New Jersey

LAD”) against the DOC Defendants, and Counts Four and Five plead ADA/Rehabilitation Act

Claims against the DOC Defendants. See Proposed Amended Complaint at ¶¶ 58-66.

After briefing, Judge Wettre denied the motion to amend on October 25, 2021, on the

basis of undue delay, finding that Plaintiff had not adequately explained the delay in seeking to

amend his Complaint to add new five new Defendants, given that he had seemingly abandoned

the prior motion to amend and agreed to proceed in discovery on a single claim against

Robinson. See ECF No. 59 at 3-4. Judge Wettre also noted that the extensive amendments

meant that new defendants would need to be served, obtain counsel, and take discovery, thus

extending the resolution of a case that had been pending for more than two years. See id. at 4.

Plaintiff did not appeal that determination to this Court within the time provided by L. Civ. R.

72.1.

Thereafter, pursuant to the Scheduling Order dated November 10, 2021, ECF No. 61,

Defendant Robinson filed a motion for summary judgment on January 25, 2022. ECF No. 62.

Plaintiff did not submit a brief opposing summary judgment and instead filed what he

characterized as a “cross motion” to alter judgment under Rule 60, which sought relief from the

Magistrate’s October 25, 2021 Order denying his motion to amend. See ECF No. 63.

Thereafter, the Judge Wettre entered a text order stating that Plaintiff’s motion to alter judgment

“does not respond to defendant Robinson’s pending motion for summary judgment or

affirmatively seek summary judgment on the claim against Robinson, it will be treated as a

separate motion and not a cross motion.” See ECF No. 65.

On August 31, 2022, this Court granted summary judgment to Defendant Robinson on

Plaintiff’s § 1983 supervisory liability claims and administratively terminated the matter pending

the Court’s resolution of the instant motion. See ECF Nos. 74-75.

II. STANDARD OF REVIEW

Plaintiff brings his motion pursuant to Fed. R. Civ. P. 60(b) and seeks relief from the

October 25, 2021 Order denying his Second Motion to Amend on the basis of undue delay. A

court may relieve a party from a final judgment, order, or proceeding for any reason that justifies

relief. Fed. R. Civ. P. 60(b)(6).5 A party must make such a motion within a reasonable time.

Fed. R. Civ. P. 60(c)(1). As the Third Circuit explained in Torres v. Chater, 125 F.3d 166, 168

(3d Cir. 1997), Rule 60(b) applies only to “final” judgments, orders, and proceedings, so that

“purely interlocutory” orders are “not within the scope of Rule 60(b).”6 “Apart from Rule 60(b),

the District Court has the inherent power to reconsider prior interlocutory orders,” as long as it

retains jurisdiction over the case. State Nat’l Ins. Co. v. County of Camden, 824 F.3d 399, 406

(3d Cir. 2016).

Once judgment has been entered, Rules 59 and 60 govern the opening of final judgments.

Ahmed v. Dragovich, 297 F.3d 201, 207–08 (3d Cir. 2002). When a party requests post-

judgment amendment of a pleading, a court will normally conjoin the Rule 60(b) and Rule 15(a)

motions to decide them simultaneously, as it would be a needless formality for the court to grant

the motion to reopen the judgment only to deny the motion for leave to amend. S. Jersey Gas

Co., 429 Fed. App’x. at 131 (internal citation and quotations omitted).

5 Rule 60(b) applies when a motion is filed within one year following entry of a judgment. Rule

60(b) provides for relief from judgment based on “(1) mistake, inadvertence, surprise or

excusable neglect; (2) newly discovered evidence; (3) fraud, misrepresentation or other

misconduct of an adverse party; (4) a void judgment; (5) the satisfaction, release or discharge of

a judgment or inequity in the prospective application of the judgment; or (6) any other reason

justifying relief from operation of the judgment.” Garland v. Malinich, 181 F. App’x. 276, 278

(3d Cir. 2006). Plaintiff appears to rely on subsection six.

6 Indeed, the Third Circuit has disapproved of the filing of Rule 60(b) motions prior to the entry

of a final judgment. See, e.g., State National Insurance Company v. Cnty. of Camden, 824 F.3d

399, 406, 411 n.47 (3d Cir. 2016) (“Thus, because the underlying dismissal of Whiteside was not

a ‘final judgment, order, or proceeding,’ State National’s Rule 60(b)(6) motion was not a proper

avenue by which to challenge her dismissal.”) (We do not suggest that State National could

never have sought Rule 60(b) relief—only that it could not do so before a “final judgment, order,

or proceeding.”). The Third Circuit suggests that Fed. R. Civ. P. 59(e) may be used to challenge

a nonfinal order; however, a Rule 59 motion is timely when it is filed within twenty-eight days of

the order or judgment for which reconsideration is sought. State National Insurance Company,

824 F.3d at 410. Plaintiff did not file a motion for reconsideration within 28 days of the decision

he challenges.

Finally, motions to amend are government by Fed. R. Civ. P. 15(a). Pursuant to that

Rule, leave to amend pleadings “shall be freely given when justice so requires.” Leave shall be

freely given in the absence of undue delay, bad faith or dilatory motive on the part of the movant,

repeated failure to cure deficiencies in previous amendments, undue prejudice or futility of the

amendment. Foman v. Davis, 371 U.S. 178 (1962). See also Shane v. Fauver, 213 F.3d 113,

115 (3d Cir. 2000); Long v. Wilson, 393 F.3d 390, 400 (3d Cir.2004) (“[A]bsent undue or

substantial prejudice, an amendment should be allowed under Rule 15(a) unless ‘denial [can] be

grounded in bad faith or dilatory motive, truly undue or unexplained delay, repeated failure to

cure deficiency by amendments previously allowed or futility of amendment.”) (quoting Lundy v.

Adamar of New Jersey, Inc., 34 F.3d 1173, 1196 (3d Cir.1994)).

III. ANALYSIS

From the outset, Plaintiff offers no explanation for why he did not appeal Judge Wettre’s

denial of his motion to amend. Under L. Civ. R. 72.1(c)(1), “[a]ny party may appeal from a

Magistrate Judge’s determination of a non-dispositive matter within 14 days after the party has

been served with a copy of the Magistrate Judge’s order[.]”7 The Federal Magistrates Act of

1968 (“FMA”) provides that a District Court reviewing a Magistrate Judge’s decision on a non-

dispositive motion may reverse a Magistrate Judge’s determination if it is “clearly erroneous or

contrary to law.” Id. (citing 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a); L.Civ.R.

72.1(c)(1)). When a Magistrate Judge’s decision on a non-dispositive motion reaches legal

conclusions, those legal conclusions are subject to a de novo review. Id. Plaintiff should have

7 Where a motion for reargument of the matter pursuant to L.Civ.R. 7.1(i) has been timely filed

and served, the time to appeal will begin to run when the parties are served with a copy of the

Magistrate Judge’s order rendering a determination on the merits of such a motion. See id.

filed an appeal of Jude Wettre’s decision to this Court rather than wait for Defendants to seek

summary judgment on the final remaining claim and seek relief under Rule 60.

In his motion for relief, Plaintiff argues that Judge Wettre erred when she denied his

second motion to amend on the basis of undue delay and that his arguments for amending should

be reviewed on the merits. As noted above, the Court has inherent authority to review its

interlocutory orders.

The Court begins with the § 1983 deliberate indifference claim against Fedai. Plaintiff

filed his motion to amend to add Fedai on May 26, 2021, which was well after the two-year

statute of limitations on his § 1983 claims expired. Because the statute of limitations bars

Plaintiff’s proposed claims against Fedai, plaintiff cannot amend his Complaint unless it “relates

back” to the date the original complaint was filed. Fed. R. Civ. P. 15(c) addresses when an

amended pleading relates back to the date of a timely filed original pleading:

(c) Relation Back of Amendments.

(1) When an Amendment Relates Back. An amendment to a

pleading relates back to the date of the original pleading when:

(A) the law that provides the applicable statute of limitations

allows relation back;

(B) the amendment asserts a claim or defense that arose out of the

conduct, transaction, or occurrence set out--or attempted to be set

out--in the original pleading; or

(C) the amendment changes the party or the naming of the party

against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied

and if, within the period provided by Rule 4(m) for serving the

summons and complaint, the party to be brought in by amendment:

(i) received such notice of the action that it will not be prejudiced

in defending on the merits; and

(ii) knew or should have known that the action would have been

brought against it, but for a mistake concerning the proper party's

identity.

Plaintiff contends that amendment to add Fedai is permissible under Rule 15(c)(1)(A) and

(c)(1)(C).

Plaintiff argues that the discovery rule is applicable to his deliberate indifference claim

against Fedai and that New Jersey’s fictitious party practice rules permit the substitution of

Fedai/UCHC.

The Court disagrees that the discovery rule is applicable to Plaintiff’s claims against

Fedai. Federal law governs a cause of action’s accrual date. Kach v. Hose, 589 F.3d 626, 634

(3d Cir. 2009). Under federal law, a claim accrues when the facts which support the claim

reasonably should have become known to the plaintiff. Sameric Corp. v. City of Phila., 142 F.3d

582, 599 (3d Cir. 1998); Cetel v. Kirwan Fin. Grp., Inc., 460 F.3d 494, 507 (3d Cir. 2006)

(quoting Mathews v. Kidder Peabody & Co., 260 F.3d 239, 252 (3d Cir. 2001)); see also Large

v. County of Montgomery, 307 F. App’x. 606, 606 (3d Cir. 2009). “The determination of the

time at which a claim accrues is an objective inquiry; [courts] ask not what the plaintiff actually

knew but what a reasonable person should have known.” Kach, 589 F.3d at 634. Importantly,

accrual is not tied to whether the potential claimant knew or should have known that the injury

constitutes a legal wrong. Giles v. City of Philadelphia, 542 F. App’x. 121, 123 (3d Cir. 2013)

(citing Sandutch v. Muroski, 684 F.2d 252, 254 (3d Cir. 1982)). Rather, “a cause of action

accrues when the fact of injury and its connection to the defendant would be recognized by a

reasonable person.” Kriss v. Fayette Cty., 827 F. Supp. 2d 477, 484 (W.D. Pa. 2011) aff’d, 504

F. App’x. 182 (3d Cir. 2012). Accordingly, “[a]s a general matter, a cause of action accrues at

the time of the last event necessary to complete the tort, usually at the time the plaintiff suffers

an injury.” Kach, 589 F.3d at 634.

In addition, state law, unless inconsistent with federal law, governs whether a limitations

period should be tolled.8 See Dique v. N.J. State Police, 603 F.3d 181, 185 (3d Cir. 2010).

Under New Jersey law, a statute of limitations can be tolled based upon equitable principles,

such as the discovery rule. Freeman v. State, 347 N.J. Super. 11, 28 (N.J. App. Div. 2002). The

discovery rule postpones accrual of a claim where a plaintiff is reasonably unaware that he has

suffered an injury or, even though he is aware of the injury, [he is reasonably unaware] that it

was the fault of an identifiable person.” See Caravaggio v. D’Agostini, 166 N.J. 237, 246

(2001). “The question in a discovery rule case is whether the facts presented would alert a

reasonable person, exercising ordinary diligence, that he or she was injured due to the fault of

another.” Caravaggio, 166 N.J. at 246. In such a case, “the accrual of the claim will be

postponed until the ‘injured party discovers, or by exercise of reasonable diligence and

intelligence should have discovered[,] that he may have a basis for an actionable claim.’” Dique,

603 F.3d at 185 (quoting Lopez v. Swyer, 62 N.J. 267, 270 (1973)) (brackets in original); see also

Lapka v. Porter Hayden Co., 162 N.J. 545, 554 (2000). In other words, “[t]he discovery rule

prevents the statute of limitations from running when injured parties reasonably are unaware that

they have been injured, or, although aware of an injury, do not know that the injury is

attributable to the fault of another.” Kendall v. Hoffman-La Roche, Inc., 209 N.J. 173, 191 (N.J.

2012) (quoting Baird v. Am. Med. Optics, 155 N.J. 54, 66 (N.J. 1998)). In circumstances where

the relationship between a plaintiff’s injury and defendant’s fault is not self-evident, “it must be

8 Under federal law, tolling is extraordinary relief that is appropriate only “in three general

scenarios: (1) where a defendant actively misleads a plaintiff with respect to her cause of action;

(2) where the plaintiff has been prevented from asserting her claim as a result of other

extraordinary circumstances; or (3) where the plaintiff asserts her claims in a timely manner but

has done so in the wrong forum.” Lake v. Arnold, 232 F.3d 360, 370, n. 9 (3d Cir. 2000).

shown that a reasonable person, in plaintiff’s circumstances, would have been aware of such

fault in order to bar her from invoking the discovery rule.” Kendall, 209 N.J. at 192.

Here, Plaintiff seeks to delay the accrual of his claim against Fedai until November 2020,

the date his counsel received Plaintiff’s medical records showing that she revoked his bunk pass.

This argument is misplaced because Plaintiff knew that he was injured at the time he fell out of

the top bunk and that the injury was attributable to the fault of another. Plaintiff need not know

the identity of every possible defendant, or even the correct one, for his Eighth Amendment

claims to accrue. Indeed, the Complaint itself alleges that Fedai denied Plaintiff’s request for a

continuation of his bottom bunk order prior to his fall because he did allegedly not meet the

requirements, and he grieved the revocation prior to his fall in October 2017:

18.) In January 2017, he was transferred to Northern State

Prison, after having spent several months in New Jersey State

Prison.

19.) Plaintiff requested the continuation of his standing

bottom bunk order.

20.) This was denied without genuine cause by Latifa

Fedai, APN on January 24, 2017. This was supposedly based on

Polynice “not meeting the requirements,” however she never

articulated the requirements to him, and future acts by UCHC

employees would prove that this was a sadistic and deliberate lie.

21.) Plaintiff formally grieved the denial of the bottom

bunk through the kiosk system at Northern State Prison, but his

grievance was either denied or not responded to.

See Second Proposed Amended Complaint at ¶¶ 18-21.

Moreover, Plaintiff is seeking relief from judgment under Rule 60(b) after the filing of a

summary judgment motion, and his arguments ignore the evidence submitted by the DOC

defendants at summary judgment. Plaintiff’s deposition testimony and answers to interrogatories

also show that he knew at or near the time of his injury in 2017 that Fedai or other medical

personnel at Northern State Prison had revoked his bunk pass, that he unsuccessfully grieved the

revocation, and that corrections officers had to comply with whatever medical personnel entered

into the system. Indeed, in his Answers to Interrogatories, Plaintiff stated the following:

Edwin Polynice will testify that he was assigned a bottom bunk

permanently in 2013 due to his uncontrollable high blood pressure,

diabetes, diabetic neuropathy in his feet, as well as a torn Achilles

tendon. These disabilities substantially limited his ability to climb

and jump. He often experienced dizzy spells from fluctuations in

blood sugar and from uncontrollable high blood pressure. On

January 24, 2017, Latifa Fedai, APN revoked his bottom bunk

restriction at Northern State Prison and didn’t tell the Plaintiff

why, except for a vague excuse that he didn’t meet the standards.

ECF No. 62-3, Exhibit C, Plaintiff’s Answer to Interrogatories at ¶ 2. Moreover, shortly after his

accident, a doctor told Plaintiff there was no active bunk restriction in his chart:

On October 2, 2017, Plaintiff told Dr. Connolly that he was

supposed to have been assigned to the bottom bunk due to diabetes

and Achilles tendon problems. She saw no active bottom bunk

restriction in his chart. She agreed that he should have been in the

bottom bunk and told him she would renew his bottom bunk

restriction.

Given these circumstances, a reasonable person in Plaintiff’s position would have known prior to

the expiration of the statute of limitations that he was injured by the person who revoked his

bottom bunk order. At the very least, Plaintiff should have pleaded a deliberate indifference

and/or negligence claim in his Original Complaint against a John or Jane Doe defendant(s) who

improperly revoked the bottom bunk order.9

9 In his briefing, Plaintiff claims he originally thought that corrections officers improperly denied

him a bottom bunk pass but later learned that Fedai had removed his bottom bunk restriction.

This is inconsistent with the Plaintiff’s Second Proposed Amended Complaint, his deposition

testimony, and his Answers to Interrogatories. The Court appreciates the difficulty of

representing an incarcerated plaintiff and acknowledges that Plaintiff may not have told his prior

or current counsel all the facts from the outset of the case, and that counsel may not have known

that Fedai revoked the bunk pass until November 2020. Nevertheless, Plaintiff’s situation is not

one where the discovery rule is applicable.

Plaintiff also contends his amendment is permissible to identify Fedai and/or UCHC, who

he contends were previously misidentified in the Original Complaint. Once again, the Court

disagrees. Civil rights claims may be asserted against fictitious defendants pursuant to New

Jersey’s fictitious defendant rule, which reads as follows:

In any action, ... if the defendant’s true name is unknown to the

plaintiff, process may issue against the defendant under a fictitious

name, stating it to be fictitious and adding an appropriate

description sufficient for identification.

N.J.R. 4:26–4. Thus, “[i]f a defendant is properly identified by a fictitious name before

expiration of the applicable limitations period, an amended complaint substituting a fictitiously

named defendant’s true name will relate back to the date of filing of the original complaint.”

Claypotch v. Heller, Inc., 823 A.2d 844, 848 (N.J. Super. Ct. App. Div. 2003). The rule is

unavailable “if a plaintiff should have known, by exercise of due diligence, [the] defendant's

identity prior to the expiration of the statute of limitations.” Id. “The fictitious party rule may be

used only if the plaintiff exercised due diligence to ascertain the defendant’s true name before

and after filing the complaint.” DeRienzo v. Harvard Industries, Inc., 357 F.3d 348, 353 (3d Cir.

2004) (citing Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 299 A.2d 394, 396

(1973)). The fictitious name designation also must have appended to it “an appropriate

description sufficient to identify” the defendant. Id. (quoting Rutkowski v. Liberty Mut. Ins. Co.,

209 N.J. Super. 140, 506 A.2d 1302, 1306–07 (1986)).

Here, Plaintiff did not include a John or Jane Doe defendant who revoked his bottom

bunk pass in his Original Complaint (or in his First Proposed Amended Complaint), and he has

not shown that he was diligent in ascertaining the identity of Fedai (or UCHC) before and after

filing the Complaint. See, e.g., McGill v. John Does A-Z, 541 F. App'x 225, 228 (3d Cir. 2013)

(noting that the plaintiff’s efforts to identify John Doe after filing complaint could not make up

for lack of diligence for four years before filing complaint). The passing reference to the

medical department at Northern State Prison in the Original Complaint is insufficient to identify

Fedai, and even if it were sufficient to identify UCHC, Plaintiff has not pleaded any claims for

relief against this entity in his Second Proposed Amended Complaint.10

Plaintiff also argues that amendment is permissible under Rule 15(c)(1)(C). Relation

back under this subsection is available if a proposed defendant received actual or constructive

notice of the action within 90 days of the filing of a complaint. Browning v. Safmarine, Inc., 287

F.R.D. 288, 290 (D.N.J. 2012) (citing Fed. R. Civ. P. 4(m)). The Rule also requires that the

proposed defendant have actual or constructive knowledge that he or she would have been

named but for a “mistake” on the part of the plaintiff.11 Id.

Here, Plaintiff does not meet the notice requirement as to Fedai, who is the relevant

Defendant. Rule 15(c)(1)(C)(i), the notice requirement, does not require that the newly named

defendant receive notice of the original complaint by service of process; instead, “notice may be

deemed to have occurred when a party who has some reason to expect his potential involvement

as a defendant hears of the commencement of litigation through some informal means.”

Singletary v. Pennsylvania Dep’t of Corr., 266 F.3d 186, 195 (3d Cir. 2001). In the Third

Circuit, notice can be actual or constructive. Id. The Third Circuit recognizes two methods of

constructive notice. Id. at 196–97. The first is the “shared attorney” method which requires that

10 Although the Second Proposed Amended Complaint names UCHC, there are no claims

asserted against this entity and Plaintiff’s counsel appears to acknowledge this fact in his

certification.

11 The Third Circuit construes the “mistake” requirement broadly to encompass “John Doe”

amendments, as long as the other requirements of Rule 15(c) are satisfied. Varlack v. SWC

Caribbean, Inc., 550 F.2d 171, 175 (3d Cir.1977); Singletary v. Pennsylvania Dep’t of Corr.,

266 F.3d 186, 191 (3d Cir. 2001) (Rule 15(c)(1)(C) applies where a plaintiff seeks to replace a

“John Doe” or “Unknown Person” with the name of a real defendant).

the newly named defendant share an attorney with one of the defendants named in the original

complaint. Id. at 196. The second is the “identity of interest” method which requires that the

parties be “so closely related in their business operations or other activities that the institution of

an action against one serves to provide notice of the litigation to the other.” Id. at 197 (quoting

6A Charles A. Wright et al., Federal Practice & Procedure § 1499, at 146 (2d ed. 1990)). Thus,

in this case, to satisfy Rule 15(c)(1)(C)(i), Plaintiff must show that within the 90-day period after

the filing of the Original Complaint, that is by November 17, 2019, Fedai received actual or

constructive notice of his lawsuit. Plaintiff provides no evidence of actual or imputed notice

within the 90-day period for either Fedai (or UCHC), and suggests instead that the 90-day period

may be extended, which would defeat the purpose of the Rule.12

Because Plaintiff is unable to show that the deliberate indifference claims against Fedai

relate back to the filing of the original complaint pursuant to Rules 15(c)(1)(A) or (C), Plaintiff’s

proposed amendment as to Fedai are untimely and, thus, futile.

Count One also asserts deliberate indifference claims against Robinson based on his

failure to implement policies, procedures, and customs, and his failure to supervise and train his

subordinates Gibson, Molloy, and Reyes.13 The Court has already granted summary judgment to

Defendant Robinson on this claim, and declines to revisit that determination.

The Second Proposed Amended Complaint also sought to bring an ADA/Rehabilitation

Act claims against the DOC Defendants. The Court, however, agrees with the DOC Defendants

12 The time period was previously 120 days, but Rule 15 was amended in 2015 to permit an

extendable 90-day period.

13 The Second Proposed Amended Complaint does not allege deliberate indifference claims

against Gibson, Malloy, and Reyes, and even if it did, the conduct of these Defendants, as

pleaded in the Amended Complaint, amounts to no more than negligence.

that Plaintiff fails to state a claim for relief under the ADA/Rehabilitation Act. The ADA and the

Rehabilitation Act have the same standard for liability and are to be interpreted consistently.

Macfarlan v. Ivy Hill SNF, LLC, 675 F.3d 266, 274 (3d Cir. 2012). They prohibit federally

funded state programs from discriminating against a disabled individual solely by reason of his

or her disability. Enforcing regulations require public entities to “make reasonable

modifications” to their programs and policies in order to avoid discrimination on the basis of

disability. 28 C.F.R. § 35.130(b)(7). To state a claim under these Acts, a plaintiff must show (a)

that he or she has a disability, (b) that he or she was either excluded from participation in or

denied the benefits of some public entity’s services, programs, or activities, and (c) that such

exclusion, denial of benefits, or discrimination was by reason of his or her disability. See 29

U.S.C. § 794; 42 U.S.C. § 12132.

To state a claim for relief, a plaintiff must allege that he or she has been denied

participation in or access to a public entity’s services, programs, or activities. In Matthews v.

Pennsylvania Dept. of Corrections, 613 F. App’x. 163, 165–66 (3d Cir. 2015), for example, the

plaintiff-prisoner was diagnosed and treated for Achilles tendinitis. See id. His treatment with

several casts and crutches made it difficult for him to manage stairs and his top bunk, and he

asked prison officials to recommend a reassignment to a bottom bunk or a bottom-tier cell and

also requested a wheelchair. Id. These requests, however, were ignored or denied. Id. Like

Plaintiff, Matthews subsequently fell from the top bunk of his cell and sustained injuries. See id.

at 166.

In addition to § 1983 claims, Matthews alleged claims under the ADA/Rehabilitation

Acts. Crucially, in his Complaint,

Matthews allege[d] that his inability to descend the stairs safely

limited his access to various programs and services. “[S]everal

times” he was unable to use the phones, he “frequently missed

meals due to his inability to reach the dining hall in time,” and he

“experienced diminished access” to the commissary, recreation,

and religious services.

Id. at 166. In reversing the dismissal of the ADA/Rehabilitation claims, the Third Circuit held

that “Matthews’s complaint sufficiently alleges that he was deprived of public benefits that, with

reasonable accommodation such as a lower bunk in a lower-tier cell, he would have been eligible

to receive.” Id. at 169. As further explained by the Third Circuit: “The provision of food was

surely a benefit Matthews was entitled to receive. While the complaint is, again, non-specific

about why and how often Matthews missed meals, we read his complaint to allege that his

Achilles tendinitis so limited him that, absent a relocation to a lower-tier cell, he was effectively

forced to choose between food and safety.” Matthews, 613 F. App’x. at 169.

In contrast, Plaintiff’s Complaint does not allege that he was excluded from participation

in any of Northern State Prison’s services, programs, and/or activities as a result of his disability,

as required to state a claim under the ADA/Rehabilitation Acts. Plaintiff conflates the

reasonable accommodation, i.e., the denial of the bottom bunk, with the denial of services,

programs, and/or activities and alleges that he was denied a safe place to sleep in violation of

N.J.A.C. 10A:31-3.6:

Plaintiff’s right to a safe place to sleep is clearly established law.

N.J.A.C. 10A:31-3.6 states: “A qualified inmate with a disability

shall be housed in a manner that provides for his or her safety,

security and accessibility to facility programs or activities. Rooms,

sleeping units, or housing units shall be designed for use by

qualified inmates with disabilities.”

The ADA/Rehabilitation Acts do not create a cause of action for violations of state regulations,

and the Court declines to find that “a safe place to sleep” is a service, program, or activity.

Absent facts showing that Plaintiff was denied access to Northern State Prison’s services,

programs, activities, he fails to state a claim for relief under the ADA/Rehabilitation Act against

the DOC Defendants, and the proposed amendments to assert ADA/Rehabilitation claims are

futile.!

Although Plaintiff also sought to amend to add negligence and negligent supervision

claims against the NJDOC, Robinson, Gibson, Malloy, and Reyes in Counts Two and Six as well

as New Jersey LAD claims in Ground Three, these claims arise solely under state law. Having

determined that proposed amendments as to the federal claims are futile, the Court declines to

review the merits of the state law claims.

IV. CONCLUSION

For the reasons expressed in this Memorandum Opinion, the Court finds that the

amendments as to the federal claims against Fedai and the DOC Defendants are futile. The

Court denies Plaintiff’s Rule 60(b) motion, enters judgment for Defendant Robinson, and directs

the Clerk to mark this matter CLOSED.

i, Jo

Hon. Madeline Cox Arleo

UNITED STATES DISTRICT JUDGE

DATED: September _30 , 2022.

As explained in Matthews, the individual defendants are not proper defendants in an

ADA/Rehabilitation Act claim. See Matthews v. Pennsylvania Dept. of Corrections, 613 F.

App’x. at 170 (“we agree with the Courts of Appeals for the Second and Eighth Circuits that

Title II of the ADA does not provide for suits against state officers in their individual

capacities”).

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