PARKS v. CFG HEALTH SERVICES

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

NATHANIEL PARKS,

Case No. 19–cv–21984–ESK–MJS

Plaintiff,

v.

OPINION

CFG HEALTH SERVICES, et al.,

Defendants.

KIEL, U.S.D.J.

THIS MATTER comes before the Court on defendant David Kelsey’s

motion for summary judgment (Motion) (ECF No. 85.) Plaintiff opposes the

Motion. (ECF No. 94.) For the following reasons, I will grant the Motion and

enter judgment in Kelsey’s favor. I will also dismiss Kelsey’s cross-complaint

against defendants CFG Health Systems and Cheryl Dubose.1 (ECF No. 63.)

I. FACTS AND PROCEDURAL HISTORY

Plaintiff filed a pro se complaint on December 27, 2019 asserting claims

under 42 U.S.C. §  1983 relating to his detention at the Atlantic County Justice

Facility (Facility) in January and February of 2018. (ECF No. 1.) District

Judge Noel L. Hillman granted plaintiff’s in forma pauperis application on

December 31, 2019. (ECF No. 2.) Judge Hillman reviewed the complaint

pursuant to 28 U.S.C. § 1915 and dismissed the complaint without prejudice on

October 13, 2020. (ECF No. 5.)   The case was reopened on December 11,

2020 after plaintiff submitted an amended complaint. (ECF No. 6.) Judge

Hillman allowed the amended complaint to proceed on March 22, 2021. (ECF

No. 7.) Magistrate Judge Matthew J. Skahill appointed pro bono counsel to

1 Dubose’s last name is misspelled as “Dubois” in the second amended complaint.

represent plaintiff on February 8, 2022. (ECF No. 39.) Plaintiff filed a second

amended complaint on October 7, 2022 raising claims against defendants

Warden Kelsey, CFG Health Systems (CFG), and CFG administrator Cheryl

Dubose. (ECF No. 61.) Kelsey filed a cross-complaint against CFG and

Dubose with his answer to the second amended complaint. (ECF No. 63.)

A. Second Amended Complaint

The second amended complaint alleges that plaintiff was arrested and

detained at the Facility on January 28, 2018. (Id. ¶ 23.) At that time,

plaintiff was suffering from an infection due to gunshot wounds to his buttocks,

stomach, and intestines. (Id. ¶¶ 20, 22.) Plaintiff told the nurse conducting

his medical intake at the Facility that he “had chronic medical issues including

tibia  neuropathy and rectal discharges.” (Id. ¶ 24.) He also told the nurse

that “he had four perforations in his stomach requiring immediate surgical

intervention or they would become infected and endanger his life, as per

[p]laintiff’s primary care physician.” (Id.) Plaintiff alleges the Facility’s

medical staff, supervised by Dubose, took no action to provide him with care

despite his requests. (Id. ¶ 26.)

Plaintiff further alleges that he was pushed by another detainee from the

Facility’s mental health ward on January 7, 2019. (Id. ¶ 27.)  The fall caused

further injury to plaintiff’s leg neuropathy. (Id.) “The other detainee also

punched [p]laintiff in his abdomen, aggravating his stomach and bowel

injuries.” (Id. ¶ 28.) Plaintiff requested assistance from the Facility’s

medical staff but did not receive any. (Id. ¶ 29.)

Plaintiff was punched in the head by a mental health ward detainee on

January 15, 2019. (Id. ¶ 30.) The medical staff examined plaintiff and

concluded that he “suffered a contusion and whiplash.” (Id. ¶ 32.) An x-ray

was performed, and the “[s]taff claimed they did not find anomalies in the X-

ray results.” (Id. ¶ 33.) The staff determined that an MRI was not necessary

despite plaintiff’s request for one. (Id. ¶ 34.)

Plaintiff went to the AtlantiCare Regional Medical Center’s Trauma

Center for a “life-threatening high-grade bowel obstruction” on April 22, 2019.

(Id. ¶ 36.) Plaintiff alleges that he continues to suffer from the delayed

medical care, “including excruciating pain when attempting to digest food and

experiencing days without bowel movements.” (Id. ¶ 37.) After he was

released from the Facility, plaintiff received an MRI for his neck pain and was

diagnosed with a pinched nerve and herniated disk in his neck. (Id. ¶ 38.)

B. Kelsey’s Statement of Material Facts 2

Kelsey denies that he ordered medical treatment be withheld from

plaintiff. (ECF No. 95–1 ¶¶ 7, 13.) He states he is “not responsible for

inmates[’] medical care” at the Facility because “[t]here is a contract with CFG

… for medical care of inmates.” (Id. ¶ 13.) Dubose does not recall ever

meeting with Kelsey and CFG doctors about plaintiff’s medical care. (Id. ¶ 14.)

She “testified that in the day-to-day operations … her staff does not go to the

[w]arden when deciding medical treatment of inmates.” (Id.) She further

“testified that the [w]arden does not put any limitations on inmate treatment

and/or care.” (Id.)

Plaintiff testified at his deposition that he submitted grievances but has

not produced documentary support. (Id. ¶ 7.) Plaintiff also testified that

2 Kelsey’s Statement of Material Facts did not initially comply with Local Civil

Rule 56.1(a) because it was filed as part of the brief instead of as a separate document.

(ECF No. 85 p. 5.) The Court will excuse this non-compliance because Kelsey

corrected the error and there is no evidence Kelsey acted in bad faith. (ECF No. 95–

1.) See Fowler v. Borough of Westville, 97 F. Supp. 2d 602, 607 (D.N.J. 2000) (“Because

there is no evidence of bad faith on the part of the defendants, the Court will deny

defendants’ motion on the merits, rather than on this procedural ground.”)

Kelsey had meetings with the medical department and that he was “pretty

sure” that Kelsey was responsible for denying him medical treatment. (Id.

¶ 9.) He admitted that he does not know if “[Kelsey] is a medical doctor, if he

is a medical professional[,] or whether [Kelsey] made any direct decisions on his

medical care.” (Id. ¶ 10.) Plaintiff also testified that he informed CFG

employees of his complaints regarding his medical care and “assumed they

would inform [Kelsey] and that [Kelsey] was involved in meetings regarding his

medical care.” (Id. ¶ 12.) Plaintiff stated that he did not tell Kelsey about the

surgery recommendation during intake. (Id. ¶ 15.)

C. Plaintiff’s Counter Statement of Material

Facts

Plaintiff asserts he had several conversations with Dr. Raymundo Tagle,

a CFG employee, during his time at the Facility. (ECF No. 94–1 ¶ 8.) During

one of those conversations, Tagle informed plaintiff that Dubose and Kelsey had

spoken and made the determination that plaintiff would not be receiving

abdominal surgery. (Id. ¶ 9.) Plaintiff states he filed grievances about his

medical care but never received a response. (Id. ¶ 10.)

II. LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment is

appropriate “if the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A fact is material

if it “might affect the outcome of the suit under the governing law” and a dispute

about a material fact is genuine “if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248.

The moving party has the initial burden of showing the basis for its motion

and that there is no genuine dispute of material fact. See Celotex Corp., 477

U.S. at 323. The moving party must cite specific materials in the record. Fed.

R. Civ. P. 56(c)(1)(A). “[T]he burden on the moving party may be discharged

by “‘showing’ … that there is an absence of evidence to support the nonmoving

party’s case.” Celotex Corp., 477 U.S. at 325. Once the moving party has

satisfied its burden, the non–moving party, “must present affirmative evidence

in order to defeat a properly supported motion for summary judgment.”

Anderson, 477 U.S. at 257. “While the evidence that the non–moving party

presents may be either direct or circumstantial, and need not be as great as a

preponderance, the evidence must be more than a scintilla.” Hugh v. Butler

Cnty. Fam. YMCA, 418 F.3d 265, 267 (3d Cir. 2005) (citing Anderson, 477 U.S.

at 251).

III. DISCUSSION

Kelsey moves for summary judgment on plaintiff’s claims in the second

amended complaint that Kelsey violated the Eighth and Fourteenth

Amendments by “denying [plaintiff] access to competent, adequate medical

care.” (ECF No. 61 ¶ 53.)3 Claims by pretrial detainees for failure to provide

adequate medical care arise under the Fourteenth Amendment Due Process

Clause and are analyzed “under the standard used to evaluate similar claims

brought under the Eighth Amendment[.]” Natale v. Camden Cty. Corr.

Facility, 318 F.3d 575, 582 (3d Cir. 2003).4

3 Kelsey also refers to a claim that alleges Kelsey failed to protect plaintiff from

being assaulted, (ECF No. 85 p. 12), and an argument that Kelsey is immune from suit

pursuant to the New Jersey Tort Claims Act, N.J.S.A. 59:5-2(b)(4) (id. p. 17.) The

second amended complaint contains neither a failure-to-protect-claim nor a Tort

Claims Act claim. (ECF No. 61 pp. 6-9.)

4 The Supreme Court has applied an “objectively unreasonable” standard to

analyze an excessive force claim under the Fourteenth Amendment. Kingsley v.

Hendrickson, 576 U.S. 389, 398 (2015). However, the Third Circuit has declined to

“The Eighth Amendment, through its prohibition on cruel and unusual

punishment, prohibits the imposition of ‘unnecessary and wanton infliction of

pain contrary to contemporary standards of decency.’” Pearson v. Prison

Health Serv., 850 F.3d 526, 534 (3d Cir. 2017) (quoting Helling v. McKinney,

509 U.S. 25, 32 (1993)). “In order to sustain this claim under 42 U.S.C. § 1983,

a plaintiff must make (1) a subjective showing that ‘the defendants were

deliberately indifferent to [his or her] medical needs’ and (2) an objective

showing that ‘those needs were serious.’” Id. (alteration in original) (footnote

omitted) (quoting Rouse v. Plantier, 182 F.3d 192, 197 (3d Cir. 1999)). Kelsey

does not dispute that plaintiff had a serious medical need, so the only question

is whether there is evidence in the record from which a reasonable factfinder

could conclude that Kelsey was deliberately indifferent to that need.

The Third Circuit has found deliberate indifference “where the prison

official (1) knows of a prisoner’s need for medical treatment but intentionally

refuses to provide it; (2) delays necessary medical treatment based on a non–

medical reason; or (3) prevents a prisoner from receiving needed or

recommended medical treatment.” Parkell v. Danberg, 833 F.3d 313, 337 (3d

Cir. 2016) (internal citations omitted). “Deliberate indifference can also be

found ‘where the prison official persists in a course of treatment in the face of

resultant pain and risk of permanent injury.’” Conrad v. De Lasalle, 2021 WL

4593273, at *3 (D.N.J. Oct. 6, 2021) (quoting McCluskey v. Vincent, 505 F. App’x

199, 202 (3d Cir. 2012)).

I find that Kelsey has shown that plaintiff cannot establish Kelsey was

deliberately indifferent to plaintiff’s medical needs. See Celotex Corp. v.

Catrett, 477 U.S. 317, 325 (1986). “[A]bsent a reason to believe (or actual

knowledge) that prison doctors or their assistants are mistreating (or not

address whether the “objectively unreasonable” standard applies to a deliberate

indifference to medical need analysis. Moore, 767 F. App’x at 340 n. 2.

treating) a prisoner, a non–medical prison official … will not be chargeable with

the Eighth Amendment scienter requirement of deliberate indifference.”

Spruill v. Gillis, 372 F.3d 218, 236 (3d Cir. 2004).

Kelsey denied meeting with Dubose and Tagle about plaintiff’s treatment.

(ECF No. 85–9 ¶ 7.) He also denied having any involvement with withholding

or approving any medical treatment for plaintiff and stated he “never ordered

specific medical treatment or withheld medical treatment of [plaintiff].” (Id.

¶¶ 5, 6.) He certified that he never received “any letters, resolution forms or

grievances forms from [p]laintiff regarding his medical treatment … .” (Id.

¶ 9.) Plaintiff testified during his deposition that he did not know if Kelsey

was responsible for his medical treatment. (ECF No. 85–3 p. 29.)

Kelsey has also presented evidence that he was unaware that plaintiff

believed he was not receiving medical attention. Plaintiff testified that he had

never met Kelsey and would not be able to identify him. (Id. p. 35.) Plaintiff

never gave Kelsey any grievances about his medical treatment. (Id. p. 35.)

He did not know if Kelsey was a medical professional or if Kelsey made any

direct decisions about his health care. (Id. p. 36.)

Dubose testified in her deposition that she did not recall ever speaking

with Kelsey about plaintiff, (ECF No. 85–6 p. 16), or having a meeting with

Kelsey and Tagle about plaintiff’s surgery, (id. p. 17.) Dubose specifically

denied that she or her employees would ever “go to the warden for assistance

when deciding what type of medical care and/or treatment to render to an

inmate.” (Id.) When asked if she was “ever advised by the warden that there

is a limitation on the treatment and/or care that you’re supposed to give to an

inmate,” she answered “[n]o, never.” (Id.) Dubose testified that “[t]he

treating physician” has final say over medical treatment, not the warden. (Id.

p. 6) Therefore, Kelsey has satisfied his burden on summary judgment.

Plaintiff argues there is a factual dispute as to Kelsey’s participation in

his medical care. (ECF No. 94 pp. 8, 9.) Plaintiff asserts Kelsey was aware of

his serious medical need because “[p]laintiff informed the intake staff when he

was admitted to [the Facility], and further, staff noted [p]laintiff had trouble

walking unassisted.” (Id. p. 8). “More importantly, [p]laintiff had a direct

conversation with one of his doctors, Dr. Tagle, who informed him [d]efendants

Kelsey and Dubose had decided he would not be receiving his surgery.” (Id.

p. 9.) Plaintiff has not produced any evidence that Kelsey was aware of the

intake staff’s observations.

Dubose testified that detainees are assessed by the medical staff upon

entering the Facility. (ECF No. 85–6 p. 5) She also testified that detainees

entering the Facility with prior medical conditions are evaluated by a nurse

who determines whether “to accept or refuse that person and have them sent

back to the hospital for an evaluation.” (Id. p. 5) The nurse’s decision is not

subject to any oversight. (Id.)

Plaintiff’s deposition testimony that Kelsey, Dubose, and Tagle met about

plaintiff’s surgery is not enough to raise a dispute of material fact. (ECF No.

85–3 p. 29.) According to plaintiff, Tagle said “[s]omething to the effect that

they had a meeting about you; the warden, Cheryl [Dubose], Sergeant Keenan.

He was one of those like—I guess he was the—Sergeant Keenan. And he told

me that I’m not getting surgery. He said something to the effect you’re not

getting surgery.” (Id. p. 30.) Plaintiff asserts this is evidence that “obviously,

the warden … must have kn[own] what was going on with my treatment and

everything if [the warden] felt as though I didn’t need surgery also.” (Id.)

Plaintiff later testified that he did not have direct proof about the meeting. (Id.

p. 38.)

“Hearsay statements that would be inadmissible at trial may not be

considered for purposes of summary judgment.” Smith v. City of Allentown,

589 F.3d 684, 693 (3d Cir. 2009). Plaintiff’s “testimony is double hearsay

because it describes a statement that” Tagle made to plaintiff “about a

conversation that” Tagle “allegedly had with” Kelsey and Dubose. Id. If

Kelsey did make the comment to Tagle, “that statement would qualify as an

admission by a party opponent and would be admissible under Rule 801(d)(2)(A)

of the Federal Rules of Evidence.” Id. “However, [plaintiff] offers [Tagle’s]

repetition of that alleged statement for the truth of the matter asserted … .

[Tagle’s] repetition is itself therefore hearsay, and it appears to be beyond the

reach of any exception to the hearsay rule.” Id. at 693–94

Plaintiff’s testimony that he submitted grievances about his medical

treatment is also not enough to withstand summary judgment. Plaintiff

testified that he never gave Kelsey any grievances about his medical treatment

directly. (ECF No. 85–3 p. 35.) He testified that he may have given copies of

grievances about his medical care to his attorney, (id. p. 37), but has not

produced a copies in opposition to the Motion. Therefore, I cannot evaluate

whether the grievances constitute evidence that Kelsey was notified about

plaintiff’s concerns. Plaintiff was unable to state when he submitted these

grievances in the Facility, (id. p. 34), or identify to whom he gave them, (id.

p. 35.)

“The mere existence of a scintilla of evidence in support of the plaintiff’s

position will be insufficient; there must be evidence on which the jury could

reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 252 (1986). Plaintiff has not produced evidence that Kelsey knew or had

reason to believe that the Facility’s doctors or their assistants were mistreating

plaintiff. Absent such showing, no reasonable jury—even after viewing the

evidence in plaintiff’s favor—could conclude that Kelsey was deliberately

indifferent to plaintiff’s serious medical needs even after viewing the evidence

in plaintiff’s favor. Accordingly, I find that Kelsey is entitled to judgment as a

matter of law.5

I will dismiss Kelsey’s crossclaims with prejudice as he may not seek

contribution from other defendants when judgment has been entered in his

favor. See Fox Int’l Rels. v. Laucius, No. 04–05877, 2009 WL 5184487, at *13

(E.D. Pa. Dec. 22, 2009) (“[B]ecause judgment has been entered against

plaintiffs and in favor of Laucius on the claims asserted in the Third Amended

Complaint, Laucius has no basis for claiming contribution or indemnity.”); Nora

v. Livingston Tp., 410 A.2d 278, 582-83 (N.J. Super. Ct. App. Div. 1980).

IV. CONCLUSION

For the reasons stated above, I will grant Kelsey’s motion for summary

judgment. (ECF No. 85.) His cross complaint will be dismissed with

prejudice. An appropriate Order accompanies this Opinion.

/s/ Edward S. Kiel

EDWARD S. KIEL

UNITED STATES DISTRICT JUDGE

Dated: May 6, 2024

5 As summary judgment will be granted in favor of Kelsey, it is unnecessary to

address his qualified immunity argument beyond noting that the evidence viewed in

the light most favorable to plaintiff does not show that Kelsey violated a federal

statutory or constitutional right.