ABDUL-AZIZ v. HICKS

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

SHAROB ABDUL-AZIZ,

: Civil Action No. 20-10265-SDW-AME

:

Plaintiffs,

:

v. : OPINION and ORDER

:

:

MARCUS O. HICKS, et al.,

:

:

Defendants.

:

THIS MATTER is before the Court on the motion of pro se Plaintiff Sharob Abdul-

Aziz (“Plaintiff”) for leave to amend and supplement the complaint pursuant to Rule 15.1 [D.E.

63]. Defendants oppose the motion. [D.E. 67, 68]. The Court has reviewed the motion papers

and finds oral argument unnecessary. See Fed. R. Civ. P. 78(b). For the following reasons, the

motion is granted in part and denied in part.

I. RELEVANT BACKGROUND

On August 10, 2020, Plaintiff, a convicted state prisoner, filed a complaint asserting

civil rights claims against prison officials for injuries he allegedly sustained while riding in a

prison transport van. [D.E. 1]. Plaintiff alleges prison officials classified him as requiring

transport to a hospital for surgery in what he describes as a “wheelchair van” due to his

medical conditions. [Id. at 6]. He asserts that, for certain related trips, prison officials

transported him in what he describes as a “dog kennel van,” despite three John Doe

Defendants—i.e., two transporting officers and an unnamed supervisor—knowing he was to be

1 Unless otherwise stated, the “Rules” shall refer to the Federal Rules of Civil Procedure.

transported in a “wheelchair van.” [Id. at 7]. During one of those “dog kennel van” rides, the

transport was involved in an accident, which resulted in injuries to Plaintiff. [Id.].

On September 15, 2020, the District Court screened the complaint, permitted the

deliberate indifference claims to proceed against the three John Doe Defendants, and dismissed

the remaining claims without prejudice. [D.E. 4]. Specifically, the Court dismissed Plaintiff’s

Rehabilitation Act (“RA”) claims as improperly raised against individuals in their individual

capacity. [Id. ¶ 8 (holding that Plaintiff failed to plead a proper defendant—i.e., a state entity—

for liability under the RA)]. The Court also dismissed the deliberate indifference claims

against Defendants Hicks, Kastanis, and Lynch for failure to plead a proper connection to the

claims. [Id. ¶¶ 10-11 (holding that these officials cannot be held liable based on a vicarious

theory of liability because Plaintiff’s injuries cannot be traced to the prison’s policies)].

On October 5, 2020, Plaintiff filed a first amended complaint, which included new

factual allegations and re-asserted the previously dismissed claims.2 [D.E. 7]. On January 25,

2021, the District Court screened the first amended complaint, permitted the deliberate

indifference claims to proceed against Defendant Lynch and the John Doe Defendants, and

dismissed the remaining claims without prejudice. [D.E. 8]. The Court dismissed the deliberate

indifference claims against Defendants Hicks and Kastanis for the same reasons stated in the

September 15 Order. [Id. ¶ 10]. It also dismissed the RA claims asserted against Defendants

Hicks in his official capacity for monetary damages on state immunity grounds. [Id. ¶ 7

(stating that such claim is only viable for purposes of obtaining prospective injunctive relief)].

With respect to the dismissed claims asserted against Defendant Kastanis under the Eight

2 The first amended complaint identified the first John Doe Defendant as “Ofc. Kemp.” [D.E. 7].

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Amendment, the RA, and the American with Disabilities Act (“ADA”), the Court held

Plaintiff failed to allege personal involvement, directly or in a supervisory capacity. [Id. ¶ 8].

On February 19, 2021, Plaintiff filed a second amended complaint in which he re-

asserted the previously permitted claims against the John Doe Defendants and Defendant

Lynch, pressed an ADA claim against the New Jersey Department of Corrections

(“NJDOC”),3 and attempted to re-assert his deliberate indifference claims against Defendants

Hicks and White (in place of Defendant Kastanis).4 [D.E. 11]. On April 15, 2021, the Court

screened the second amended complaint, permitted the ADA claims to proceed against the

NJDOC and the deliberate indifference claims against the three John Doe Defendants and

Defendant Lynch,5 and dismissed the remaining claims without prejudice.6 [D.E. 12].

On September 27, 2021, the NJDOC and Defendant Hicks (collectively the “State

Defendants”) filed a Rule 12(b)(6) motion to dismiss. [D.E. 22]. On January 5, 2022, the

District Court granted in part and denied in part the motion as follows: (i) denying the motion

to dismiss the ADA claim against the NJDOC because sovereign immunity was not available;

(ii) denying, as moot, the request for dismissal of the remaining ADA or RA claims; (iii)

dismissing, without prejudice, the deliberate indifference claims under the New Jersey Civil

3 The ADA claims were construed as being asserted against the NJDOC because claims asserted against

state officials in their official capacity should be treated as against the state. [D.E. 12 at 6 n. 4].

4 The second amended complaint was construed as also re-asserting the dismissed ADA and RA claims.

5 The District Court made clear that the deliberate indifference claims against these Defendants would

proceed “based solely on Defendants’ either refusal to comply with wheelchair only transport status or

refusal to order such status for further medical treatment.” [D.E. 12 at 4 n. 1 (holding that any such claim

“premised on poor driving or the like fails to state a deliberate indifference claim”)].

6 The District Court dismissed the deliberate indifference claims against Defendants Hicks and White for

the same reasons stated in the September 15 and January 25 Orders. [D.E. 12 ¶¶ 9-12]. It also dismissed

Plaintiff’s RA claims for the same reasons stated in the January 25 Order and further dismissed such

claim against the NJDOC because Plaintiff failed to allege that it receives federal assistance. [Id. ¶ 13].

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Rights Act (“NJCRA”) against Defendant Hicks in his individual capacity for failure to state a

claim of supervisory liability; (iv) dismissing, with prejudice, the NJCRA deliberate

indifference claims for monetary damages against Defendant Hicks in his official capacity

because he is not a person amenable to suit under the NJCRA. [D.E. 27 at 4-6].

After the remaining Defendants filed answers to the second amended complaint, on

August 19, 2022, the Court issued a Pretrial Scheduling Order, which set March 17, 2023 and

July 2, 2023 deadlines to complete fact and expert discovery, respectively, and a January 13,

2023 deadline to move to amend pleadings.7 [D.E. 46].

On May 15, 2023, Plaintiff filed this motion to amend and supplement.8 [D.E. 63].

First, he seeks to identify “Ofc. Kemp” as “Justin Kemps” (“Kemps”), who was previously

identified as the first John Doe Defendant, and to name the second John Doe Defendant as

“Thomas Meades” (“Meades”). [Id. at 1, 3, 7]. Second, Plaintiff proposes the filing of a third

amended complaint that re-asserts previously permitted and dismissed claims.9 [Id. at 3-13].

Third, he requests leave to supplement the complaint by asserting deliberate indifference,

ADA, and RA claims against new parties—i.e., “Rutgers, The State University of New Jersey

7 To date, no party has requested an extension of any of those deadlines.

8 Plaintiff filed a motion for leave to supplement the second amended complaint on March 10, 2023 [D.E.

56], which this Court construed as a motion to amend [D.E. 59]. Because Plaintiff later filed this motion

to amend, the Court terminated the previous motion as moot. [D.E. 65]. However, Plaintiff’s motion is

procedurally defective because it fails to comply with Local Civil Rule 15.1 and this Court’s Civil Case

Management Order, which require the filing of a black- or red-lined version of the proposed pleading. In

light of Plaintiff’s pro se status, the Court will excuse this failure. See Dunne v. Twp. of Springfield, Civ.

No. 08-5605, 2011 WL 2269963, at *14 (D.N.J. Jan. 31, 2011), aff’d, 500 F. App’x 136 (3d Cir. 2012)

(“Courts generally will relax pleading requirements for pro se litigants ….”); see also Naderi v.

Concentra Health Servs., Inc., Civ. No. 21-18958, 2023 WL 4896773, at *2 (D.N.J. Aug. 1, 2023)

(collecting cases relaxing Local Civil Rules in pro se matters).

9 In the proposed amended complaint, Plaintiff states he “has included matters this Court has dismissed”

for the purpose of preserving “issues” for appellate review. [D.E. 63 at 4].

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via its University Correctional Health Care” (“Rutgers UCHC”) and “Dr. Swarnalatha

Asokan” (“Dr. Asokan”), a physician who treated Plaintiff in prison—based on the alleged

denial of medical care, including “proper” medical transportation, with respect to medical

symptoms he began experiencing in 2022, after filing this action. [Id. at 14-19].

On June 6, 2023, the remaining Defendants filed opposition to Plaintiff’s motion. [D.E.

67, 68]. Defendant Lynch argues the motion should be denied because (i) the new proposed

claims against Dr. Asokan and Rutgers UCHC are futile, and (ii) Plaintiff failed to satisfy his

burden of showing he diligently sought the proposed amendment. [D.E. 67 at 7-12]. The State

Defendants also argue the proposed claims asserted against NJDOC are futile. [D.E. 68 at 8-

14]. None of these parties expressly opposed Plaintiff’s proposed amendment to name Kemps

and Meades in place of the John Doe Defendants. [See generally D.E. 67, 68].

II. DISCUSSION

As Plaintiff seeks to amend and supplement the operative complaint, both Rules

15(a)(2) and 15(d) apply. Motions to amend pleadings are generally governed by the liberal

standard of Rule 15(a)(2), which provides that “[t]he court should freely give leave [to amend

a pleading] when justice so requires.” Fed. R. Civ. P. 15(a)(2). In turn, Rule 15(d), which

governs motions to supplement pleadings, states that, “[o]n motion and reasonable notice, the

court may, on just terms, permit a party to serve a supplemental pleading setting out any

transaction, occurrence, or event that happened after the date of the [operative] pleading.” Fed.

R. Civ. P. 15(d); see also Planker v. Christie, Civ. No. 13-4464, 2018 WL 4639197, at *3

(D.N.J. Sept. 27, 2018) (“The purpose of Rule 15(d) is to promote as complete an adjudication

of the dispute between the parties as possible by allowing the addition of claims which arise

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after the initial pleadings are filed.” (quotation marks and citations omitted)). However, when

such motions are filed after the deadline set by a scheduling order, they are subject not only to

Rule 15 but also to the more stringent standard of Rule 16(b)(4), under which a party must

demonstrate “good cause” exists to modify the Court’s scheduling order and that it has acted

with reasonable diligence despite the failure to comply with that order. Fed. R. Civ. P. 16(b)(4)

(“A schedule may be modified only for good cause and with the judge’s consent.”); see also

Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 614 F.3d 57, 84 (3d Cir. 2010) (“Rule

16(b)(4) focuses on the moving party’s burden to show due diligence.”). If good cause and

diligence are demonstrated, the Court then proceeds to analyze the motion under Rule 15.

A. Good Cause under Rule 16(b)(4)

Good cause to bring a late motion to amend turns on the movant’s diligence; thus, the

Court considers whether Plaintiff “possessed, or through the exercise of reasonable diligence

should have possessed, the knowledge necessary” to file the motion before the deadline. See

Fermin v. Toyota Material Handling, U.S.A., Inc., Civ. No. 10-3755, 2012 WL 1393074, at *3

(D.N.J. Apr. 23, 2012) (citations omitted). Here, Plaintiff first sought leave to supplement the

complaint with the new allegations and claims on March 10, 2023 [D.E. 56], and to formally

name Kemps and Meades as the first two John Doe Defendants on May 15, 2023 [D.E. 63].

Plaintiff did not seek this relief before the expiration of the January 13, 2023 deadline to move

to amend pleadings. [D.E. 46]. However, whether Plaintiff exercised sufficient diligence in

seeking the proposed amendment requires more than merely comparing the Court’s scheduling

order to the dates of his requests to amend. Considering the facts and law in light of Plaintiff’s

pro se status, the outcome is a close call.

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Defendant Lynch asserts Plaintiff has “offered no justification for the delay and/or

failure to amend sooner.” [D.E. 67 at 12]. Specifically, because the proposed new claims

appear to have arisen on December 6, 2022, on the date when Plaintiff was allegedly not

provided “medical transport” to an appointment [D.E. 63 at 17], Plaintiff could have but failed

to seek leave to amend or supplement before the January 13, 2023 deadline. Similarly, Plaintiff

does not state when he obtained sufficient information—in discovery or otherwise—to name

Kemps and Meades. Thus, Plaintiff’s conduct appears to fall short of meeting the standard

necessary to satisfy his burden under Rule 16(b)(4).

However, as Plaintiff moved for this relief just a few months after the deadline, and

considering his pro se status, the Court cannot conclude that Plaintiff’s conduct was dilatory or

lacked the requisite diligence required to meet the Rule 16(b)(4) standard. In the interest of

addressing the motion on the merits under Rule 15, in accordance with the Third Circuit’s

expressed preference “that cases be disposed of on the merits whenever practicable,” Hritz v.

Woma Corp., 732 F.2d 1178, 1181 (3d Cir. 2004), the Court will exercise its discretion, in this

instance, to relax the deadline for filing motions to amend.

B. Leave to Amend or Supplement under Rule 15

The standard under Rule 15(d) is “essentially the same as that under Rule 15(a).”

Strenger v. Miner, Civ. No. 17-3332, 2021 WL 1207474, at *4 (D.N.J. Mar. 31, 2021)

(quotation marks and citations omitted). While Rule 15(a)(2) provides that leave to amend

should be freely granted, it is well established that courts retain discretion to deny such leave

for equitable reasons, including “undue delay, bad faith or dilatory motive on the part of the

movant, repeated failure to cure deficiencies …, undue prejudice to the opposing party …,

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[and/or] futility of amendment ….” Foman v. Davis, 371 U.S. 178, 182 (1962); see also Arthur

v. Maersk, Inc., 434 F.3d 196, 204 (3d Cir. 2006) (“[P]rejudice to the non-moving party is the

‘touchstone for the denial of an amendment.’” (citation omitted)). In the case of a motion to

supplement, leave “should be granted ‘if it will promote the just disposition of the case, will

not cause undue prejudice or delay and will not prejudice the rights of any parties.’” Planker,

2018 WL 4639197, at *3 (citation omitted). Such a motion may also be denied “where the

proposed amendment or pleading is futile.” Bd. of Trustees of Nat’l. Elevator Indus. Health

Ben. Plan v. McLaughlin, Civ. No. 12-4322, 2013 WL 4788190, at *4 (D.N.J. Sept. 6, 2013)

(citation omitted). As in the case of a motion to amend, the decision is ultimately “left to the

sound discretion of the court.” Planker, 2018 WL 4639197, at *3 (citation omitted).

Here, while the opposition focuses on the futility of the proposed amendment,

Defendant Lynch argues it should also be denied on grounds of undue delay and prejudice.

[D.E. 67 at 11-12]. Undue delay, as a basis for denial, focuses on whether the party seeking

leave has inexplicably failed to take advantage of previous opportunities to amend, resulting in

unfair burdens to the Court and the opposing party. Arthur, 434 F.3d at 204 (citations omitted);

see also Mullin v. Balicki, 875 F.3d 140, 151 (3d Cir. 2017) (stating delay is “undue” if it is

“protracted and unjustified” and “can place a burden on the court or counterparty” or “indicate

a lack of [sufficient] diligence”). The mere passage of time is insufficient. Cureton v. Nat’l

Collegiate Athletic Ass’n, 252 F.3d 267, 273 (3d Cir. 2001). Undue prejudice focuses on

whether the non-moving party will face hardship if the amendment is permitted. Id. Examples

include situations where the proposed amendment will “require the opponent to expend

significant additional resources to conduct discovery and prepare for trial” or will

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“significantly delay the resolution of the dispute.” Long v. Wilson, 393 F.3d 390, 400 (3d Cir.

2004); Cureton, 252 F.3d at 273 (considering “whether allowing an amendment would result

in additional discovery, cost, and preparation to defend against new facts or new theories”).

While Plaintiff could have likely filed the motion earlier, granting his application is

unlikely to result in unfair burdens to the Court or Defendants, particularly as discovery

formally commenced just over a year ago, and a trial date has not been set. Further, even if

additional discovery were required, it does not appear that such discovery will so expand the

scope of this action as to unduly prejudice Defendants, especially since the proposed

amendment will be granted only to permit Plaintiff to name Kemps and Meades in place of the

first two John Doe Defendants. See Diebler v. SanMedica Int’l, LLC, Civ. No. 19-20155, 2021

WL 5013617, at *4 (D.N.J. Oct. 28, 2021), aff’d, 2022 WL 16552777 (D.N.J. Oct. 31, 2022)

(“[T]he expenditure of time, money, and effort alone is not grounds for a finding of prejudice.”

(citations and quotation marks omitted)). Moreover, the Court finds that granting Plaintiff’s

application will not “impair the [Defendants’] ‘ability to present [their] case.’” Id.

Finally, futility, in the context of a Rule 15 motion, “means that the complaint, as

amended, would fail to state a claim upon which relief could be granted.” In re Burlington

Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). In assessing futility, the Court

“applies the same standard of legal sufficiency as applies under Rule 12(b)(6).” Id. As noted

earlier, it appears Plaintiff seeks to re-assert dismissed claims and to assert new deliberate

indifference, ADA, and RA claims against the new proposed parties. As an initial matter, this

Court need not address the sufficiency of the claims the District Court already screened and

permitted to proceed—i.e., the ADA claims against the NJDOC and the deliberate indifference

9

claims against the John Doe Defendants and Defendant Lynch. In connection with those

claims, Plaintiff seeks to name Kemps and Meades as party defendants in place of the John

Doe Defendants. Defendants do not expressly oppose such proposed amendment based on

futility, and based on the current record, the Court cannot assess whether such proposed

amendment is clearly futile.10 Moreover, to the extent Plaintiff seeks to re-assert previously

dismissed claims, such proposal is futile because he does not allege new facts that address or

correct the deficiencies previously noted by the District Court.11

Finally, the Court concludes the proposed supplement to the second amended

complaint, including the new allegations and claims against Dr. Asokan and Rutgers UCHC, is

also futile. Plaintiff seeks to hold Dr. Asokan liable for “deliberate indifference” of his medical

needs and for denying proper medical transport, solely based on the allegation that she treated

Plaintiff on or about October 12, 2022. [D.E. 63 at 15-16]. Plaintiffs seeks to hold Rutgers

UCHC similarly liable for the “acts and actions of its employees.” [Id. at 15].

The proposed claims against Dr. Asokan are legally insufficient because Plaintiff fails

to allege Dr. Asokan’s personal involvement in his medical treatment, transport, or the like.

See Chavarriaga v. N.J. Dep’t of Corr., 806 F.3d 210, 222 (3d Cir. 2015) (stating that personal

involvement in the alleged wrongs is a required element of a claim under section 1983 (citation

omitted)). Plaintiff fails to allege (i) any facts supporting the claim that Dr. Asokan was

10 In granting Plaintiff leave to amend the second amended complaint to name Kemps and Meades, this

Court does not opine on whether the amendment relates back to the date of the earlier pleadings. To the

extent Defendants Kemps and Meades believe Plaintiff’s claims against them fail, they shall have an

opportunity to seek their dismissal in due course and as provided by the Rules.

11 The NJDOC’s futility arguments are moot because Plaintiff does not seek to assert new claims against

the NJDOC. The District Court has addressed the viability of such claims in prior Orders.

10

deliberately indifferent to his medical needs, and (ii) that Dr. Asokan had any role or

responsibility for determining his medical transportation. Cf. id. (“A plaintiff makes sufficient

allegations of a defendant’s personal involvement by describing the defendant’s participation

in or actual knowledge of and acquiescence in the wrongful conduct.”). While pro se pleadings

are liberally construed, “pro se litigants still must allege sufficient facts in their complaints,”

Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation omitted), and

Plaintiff’s supplemental allegations do not “allow[] the [C]ourt to draw the reasonable

inference that [Dr. Asokan] is liable for [the] misconduct alleged.” See Ashcroft v. Iqbal, 556

U.S. 662, 678-79 (2009) (stating that there “mere possibility of misconduct” is insufficient to

plausibly allege a claim); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“While a

complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual

allegations, … a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’

requires more than labels and conclusions …. (citations omitted)).12

The proposed claims against Rutgers UCHC are similarly futile. Those claims rest

solely on a theory of vicarious liability. However, Rutgers UCHC “cannot be held responsible

for the acts of its employees under a theory of respondeat superior or vicarious liability.”

Natale v. Camden Cnty. Corr. Facility, 318 F.3d 575, 583-84 (3d Cir. 2003) (citing Monell v.

N.Y.C. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)). Instead, to state a civil rights claim

against Rutgers UCHC, Plaintiff must have alleged the existence of a relevant policy or custom

that caused the alleged violations. Id. However, Plaintiff fails to allege the existence of any

12 To the extent Plaintiff seeks to assert a RA claim against Dr. Asokan, such claim is legally insufficient

for the same reasons stated in the District Court’s September 15 Order: individual liability is not

contemplated under section 504 of the RA. [D.E. 4 ¶ 8 (citation and quotation marks omitted)].

11

such policy or custom held by Rutgers UCHC or sufficient facts that would create a reasonable

inference that Rutgers UCHC could be responsible for such a policy or custom.13

III. CONCLUSION AND ORDER

For the foregoing reasons, the Court finds, in its discretion, that the relief sought in the

motion for leave to amend and supplement is warranted only in part. Accordingly,

IT IS on this 22nd day of November, 2023,

ORDERED that Plaintiff’s motion for leave to amend and supplement the second

amended complaint [D.E. 63] is GRANTED in part and DENIED in part; and it is further

ORDERED that no later than December 29, 2023, Plaintiff shall file a third amended

complaint consistent with the Court’s rulings herein. For the avoidance of doubt, the third

amended complaint shall identify Defendants Kemps and Meades in place of the first two John

Doe Defendants and shall expressly exclude the proposed supplement and all other claims

previously dismissed by the District Court. The only claims that shall proceed in the litigation

shall consist of the ADA claims against the NJDOC and the deliberate indifference claims

against Defendant Lynch, Kemps, Meades, and the third John Doe Defendant; and

ORDERED that within twenty-one days of Plaintiff filing the third amended

complaint, Defendant Lynch and the State Defendants shall respond to the third amended

complaint as provided by the Rules; and it is further

ORDERED that no later than January 22, 2024, the parties shall file a joint letter

setting forth the status of this matter and stating whether any additional discovery is necessary;

13 Importantly, despite the District Court previously noting the deficiency, Plaintiff again fails to allege

that Rutgers UCHC “provide[d] services to the prison in which [he] is detained.” [D.E. 8 ¶ 8 n. 2].

12

and it is further

ORDERED that the Clerk of Court shall mail to Plaintiff—at the address listed on the

docket by regular U.S. mail14—(i) a copy of this Order, and (ii) a transmittal letter explaining

the procedure for completing a USM-285 Form; and it is further

ORDERED that within fourteen days of receiving the transmittal letter, Plaintiff shall

complete USM-285 Forms for Defendant Kemps and Meades and return them to the Office of

the Clerk of Court, Martin Luther King Building & U.S. Courthouse, 50 Walnut Street,

Newark, NJ 07102; and it is further

ORDERED that upon receiving the completed USM-285 Form, the Clerk of Court

shall add Defendants Justin Kemps and Thomas Meades to the caption of this matter, in place

of John Doe #1 and #2, respectively, and issue the appropriate summons; and it is further

ORDERED that upon the issuance of the summons, the United States Marshals

Service shall serve a copy of the filed third amended complaint, summons, and this Order upon

Defendants Justin Kemps and Thomas Meades pursuant to 28 U.S.C. § 1915(d), with all costs

of services advanced by the United States; and it is further

ORDERED that Defendants Justin Kemps and Thomas Meades shall file and serve a

responsive pleading within the time specified in Rule 12; and it is further

ORDERED that the Clerk of Court shall terminate the motion at D.E. 63.

/s/ André M Espinosa

ANDRÉ M. ESPINOSA

United States Magistrate Judge

14 This address was provided by Plaintiff as his mailing address. While Plaintiff appears to suggest he has

not received certain correspondence from the Court [see D.E. 69], the Court notes there has been no

docket entry reflecting that any mailing has been returned to this District’s Office of the Clerk of Court.

13