# DURHAM v. DAVIS

> District Court, D. New Jersey · May 26, 2021

URL: https://www.frixlaw.com/law-library/cases/10654936

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** May 26, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

TREMAYNE DURHAM,
Plaintiff, Civil Action No. 19-19126 (MAS) (TJB)
OPINION
B. DAVIS, et al.,
Defendants.

SHIPP, District Judge
This matter comes before the Court on the Court’s sta sponte screening of pro se Plaintiff
Tremayne Durham’s civil rights complaint (ECF No. 1) pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(i1)
and 1915A. Also before the Court is Plaintiff's motion seeking a preliminary injunction. (ECF
No. 7.) For the reasons set forth below, the Court will dismiss Plaintiff's complaint without
prejudice and will deny his motion without prejudice.
I. BACKGROUND
Plaintiff is a convicted prisoner of the State of Oregon who is currently housed in New
Jersey State Prison pursuant to an interstate compact agreement. (ECF No. | at 3.) In January
2018, Plaintiff was diagnosed with lumbar stenosis, a condition which causes him back pain. (de.
at 7-8.) In May 2019, a prison doctor ordered that Plaintiff be provided a cane to assist him in
walking. (/d. at 7.) On June 18, 2019, Plaintiff reported to the prison’s medical clinic for a sick
call appointment. (/d, at 8.) When he arrived, Defendant Lewis instructed Piaintiff to wait in the
clinic’s holding room until he was called in for his appointment. (/d.) Defendant Merriel.

however, ordered Plaintiff to leave his walking cane in the clinic as prison security regulations do
not permit such devices to be taken into the holding room where prisoners might interact with one
another while awaiting their appointments. (/d. at 8; ECF No. 1-2 at 10.) Prisoners needing aid
in entering the holding room are instead permitted to use the clinic’s handrails to walk without
their equipment, although the holding room itselfis not apparently equipped with such rails. (ECF
No. 1-2 at 10.)

Following the officers’ instructions, Plaintiff left his cane and walked into the holding
room, where he remained until it was time for his appointment. (ECF No. | at 8.) When Plaintiff
tried to stand to walk to his appointment, Plaintiff's “legs suddenly gave out and he fell to the
floor.” (/d.) The clinic officers called an emergency medical! code, and Plaintiff was taken by
stretcher into the infirmary where he was provided medical treatment and pain medication. (/d. at
8-9.) Plaintiff now seeks to hold the officers and their supervisors liable for the injuries he suffered
as result of attempting to stand without his cane.

Il. LEGAL STANDARD
This Court is required to screen Plaintiffs complaint pursuant to 28 U.S.C. § I9I5A
because Plaintiff is a convicted state prisoner suing employees of New Jersey State Prison.
Pursuant to § 1915A, this Court must sua sponte dismiss any claim that is frivolous, malicious,
fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant
who is immune from such relief. “The legal standard for dismissing a complaint for failure to state
a claim pursuant to 28 U.S.C. § 1915(e}(2)(B)(ii) [or § 1915A] is the same as that for dismissing
a complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).” Schreane v. Seana, 506 F.
App’x 120, 122 (3d Cir, 2012) (citing Aélah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)).

In deciding a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a district court is
“required to accept as true all factual allegations in the complaint and draw all inferences in the
facts alleged in the light most favorable to the [Plaintiff].” Phillips v. Cnty. of Allegheny, 515 F.3d
224, 228 (3d Cir. 2008). “[A] complaint attacked by a... motion to dismiss does not need detailed
factual allegations.” Bell Atlantic v, Twombly, 550 U.S. 544, 555 (2007). However, the Plaintiff's
“obligation to provide the ‘grounds’ of his *entitle[ment] to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will not do.” /d. (citing
Papasan v. Allain, 478 U.S. 265, 286 (1986)}. A court is “not bound to accept as true a legal
conclusion couched as a factual allegation.” Papasan, 478 U.S. at 286. Instead, assuming the
factual allegations in the complaint are true, those “[fJactual allegations must be enough to raise a
right to relief above the speculative level.” Twombly, 550 U.S. at 555.
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to “state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (citing Twombly, 550 U.S, at 570). “A claim has facial plausibility when the
pleaded factual content allows the court to draw the reasonable inference that the defendant is
liable for misconduct alleged.” /d. “Determining whether the allegations in a complaint are
plausible is a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” /d. at 679. “[W ]here the well-pleaded facts do not permit the court
to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—‘that the pleader is entitled to relief.’ fd. (citing Fed. R. Civ. P. 8(a)(2)). Moreover,
while pro se pleadings are liberally construed, “pro se litigants still must allege sufficient facts in .
their complaints to support a claim.” Mala v. Crown Bay Marina, Ine,, 704 F.3d 239, 245 (3d Cir.
2013) (citation omitted) (emphasis added).
Il. DISCUSSION

In his complaint, Plaintiff seeks to hold several corrections officers and their superiors
responsible for his injuries through two theories of liability — first, a constitutional claim raised
pursuant to 42 U.S.C. § 1983 premised on his belief that Defendants were deliberately indifferent
to his medical needs in violation of the Eighth Amendment: and second, through a claim that the
denial of the use of his cane while in the holding area amounts to a violation of either the Americans
with Disabilities Act (“ADA”) or the related Rehabilitation Act. This Court will address each
claim in turn.
Turning first to Plaintiff's constitutional claim, a plaintiff seeking to hold a defendant liable
for a violation of the Eighth Amendment related to a medical condition must demonstrate that the
defendant was deliberately indifferent to his serious medical needs. Natale v. Camden Cnty. Corr.
Facility, 318 F.3d 575, 582 (3d Cir. 2003). To plead such a claim, a plaintiff must plead facts
indicating that he had a sufficiently serious medical need and that the named defendants engaged
in acts or omissions which indicate that they were deliberately indifferent to that need. /d. An act
or omission will amount to deliberate indifference where it indicates that the defendant “knows of
and disregards an excessive risk to inmate health or safety.” Jd. (quoting Farmer v. Brennan, 511
U.S. 825, 837 (1994)). An inmate’s medical need will in turn be sufficiently serious to support an
Eighth Amendment claim where the need “has been diagnosed . . . as requiring treatment or... is
so obvious that a lay person would easily recognize the necessity for a doctor's attention.”
Monmouth Cnty. Corr. Inst. Inmates vy. Lanzaro, 834 F.2d 326, 347 (3d Cir. 1987) (citation
omitted), cert. denied, 486 U.S. 1006 (1988).
In this matter, Plaintiff essentially pleads that he arrived at the clinic for a medical
appointment, and he was required to leave his cane outside of the room in which he was made to
wait to see medical staff. Although Plaintiff certainly pleads facts indicating a medical need — his
spinal issues and back pain — he pleads no facts which would indicate that any of the named

Defendants were in any way aware that he suffered from this condition, or that Plaintiff was unable
to walk even short distances without the use of his cane. Indeed, the facts Plaintiff does plead
undercut such a theory — Plaintiff states in his complaint that he was asked to leave his cane, did
so, and successfully walked to his seat in the holding room, and that he only experienced difficulty,
and ultimately injury, upon attempting to stand up sometime later, at which point Defendants took
immediate action to help him. The mere fact that Plaintiff possessed a cane does not alone suffice
to show that the officers knew or should have known that he would be unable to comply with their
instructions or that there was an excessive risk of harm to Plaintiff should he be required to walk
without his cane. Plaintiff has therefore failed to plead facts which would show that any of the
named Defendants were aware of an “excessive risk” to Plaintiff's “health or safety” that would
result from his walking a short distance without his cane, and Plaintiff therefore fails to plead that
any Defendant was deliberately indifferent to his medical needs. Natale, 318 F.3d at 582.
Plaintiff's § 1983 claim is therefore dismissed without prejudice as to all Defendants.
In his remaining claim, Plaintiff contends that a prison policy which does not permit him
to take a cane into a holding area in the prison’s medical department amounts to a violation of his
rights under either the ADA or Rehabilitation Act. “To state a claim under either the ADA or the
[Rehabilitation Act, a plaintiff] must allege that he is a qualified individual with a disability, who
was precluded from participating in a program, service, or activity, or otherwise was subject to
discrimination, by reason of his disability.” Furgess v. Pennsylvania Dep't of Corr.. 933 F.3d 285,
288-89 (3d Cir. 2019). Under the Rehabilitation Act, a plaintiff is also required to allege that the
entity which allegedly discriminated against him received federal funding. See, e.g, CG v. Pa.
Dep't of Educ., 734 F.3d 229, 235 n.10 (3d Cir. 2013); Owens v. Armstrong, 171 F. Supp. 316,
328 (D.N.J. 2016). To establish causation sufficient to state a claim for relief under the
Rehabilitation Act, a plaintiff must plead facts showing that his disability was “the sole cause of

discrimination” against him, while the ADA instead requires “but for” causation. Furgess, 933
F.3d at 291 n. 25; C.G., 734 F.3d at 236 n. Il. Neither statute provides a basis for individual
liability against specific officers, see Matthews v. Pennsylvania Dep't of Corr., 613 F. App’x 163,
170 (3d Cir. 2015), and state officers are immune from suit for money damages to the extent they
are named as Defendants in their official capacity. See, e.g., O'Donnell v. Pennsylvania Dep't of
Corr., 790 F. Supp. 2d 289, 305 (M.D. Pa. 2011).
Initially, the Court notes that as Plaintiff has named only individual defendants in their
individual and official capacities, and has not named the prison, N.J. Department of Corrections,
or other public entity as a defendant, all Defendants must be dismissed in their individual capacities
and any of Plaintiff's claims for money damages must in turn be dismissed. Matthews, 613 F.
App’x at 170; O'Donnell, 790 F. Supp. 2d at 305. Likewise, as Plaintiff has not pled that the
prison receives federal funding in his complaint, nor has he pled that the Defendants intentionally
discriminated against him, his official capacity claims seeking injunctive relief under the
Rehabilitation Act must likewise be dismissed. Furgess, 933 F.3d at 291 n. 25; C.G., 734 F.3d at
235 n. 10, 236 n. 11.
Turning to Plaintiffs only remaining claim - his claim seeking injunctive relief under the
ADA -— Plaintiff has failed to plead a cognizable basis for relief. Even assuming that Plaintiff has
a qualifying disability, Plaintiff has not actually pled facts indicating that he was denied the ability
to participate in a service or other provision of the prison by reason of his disability. It appears
that the only service in question in this matter is access to the medical department of the prison —
but Plaintiff was not denied such access. That he injured himself in standing is certainly
unfortunate, but he was not denied care — he instead received care, albeit for the injury that resulted
from his attempt to walk. Because Plaintiff has not clearly identified the program, service, or
activity which he was allegedly denied, nor has he pled facts showing he was denied any such

service, program, or activity because of his back issues, he has failed to plead a plausible claim for
relief under the ADA, Furgess, 933 F.3d at 288-89. Plaintiffs ADA claim seeking injunctive
relief is therefore dismissed without prejudice.

Finally, the Court notes that Plaintiff in October 2020 filed a motion seeking a preliminary
injunction. (ECF No. 7.) Injunctive relief is an “extraordinary remedy, which should be granted
only in limited circumstances.” Novartis Consumer Health v. Johnson & Johnson — Merck
Consumer Pharms. Co., 290 F.3d 578, 586 (3d Cir. 2002). In order to show that he is entitled to
such relief, a petitioner must
demonstrate that “(1) he is likely to succeed on the merits; (2) denial
will result in irreparable harm; (3) granting the injunction will not
result in irreparable harm to the defendants; and (4) granting the
injunction is in the public interest.” Maldonado v. Houston, 157
F.3d 179, 184 (3d Cir. 1998) (as to a preliminary injunction); see
also Ballas v. Tedesco, 41 F. Supp. 2d 531, 537 (D.N.J. 1999) (as to
temporary restraining order). A [petitioner] must establish that all
four factors favor preliminary relief. Opticians Ass'n of America v.
independent Opticians of America, 920 F.2d 187 (3d Cir. 1990).
Ward v, Aviles, No. 11-6252, 2012 WL 2341499, at *1 (D.N.J. June 18, 2012). For the reasons
expressed above, all of Plaintiff's claims will be dismissed without prejudice at this time. Plaintiff
has therefore failed to show a likelihood of success on the merits of his claims at this time, and his
motion seeking an injunction (ECF No. 7) is therefore denied.

IV. CONCLUSION
For the reasons expressed above, Plaintiff's complaint (ECF No. 1) is DISMISSED
WITHOUT PREJUDICE, and his motion seeking a preliminary injunction (ECF No. 7) is
DENIED WITHOUT PREJUDICE. An order consistent with this Opinion will be entered.

MICHAEL eare
UNITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10654936. Public record. Not legal advice.