DALTON v. SAINT BARNABAS MEDICAL CENTER

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

Civil Action No. 21-cv-05354-JXN-SDA

ROBERT C. DALTON,

Plaintiff,

OPINION

vs.

September 30, 2025

SAINT BARNABAS MEDICAL CENTER, et

al.,

Defendants.

STACEY D. ADAMS, United States Magistrate Judge

THIS MATTER comes before the Court on the motion of pro se Plaintiff Robert C. Dalton

(“Plaintiff”) for Leave to File a Third Amended Complaint (“TAC”). (ECF No. 130). Defendants

Rutgers University (“Rutgers”), Jonathan S. Holloway, Brian L. Strom, Bill Troy, and John Jay

Hoffman (collectively, the “Rutgers Defendants”) oppose the motion at ECF No. 131. Defendants

Hackensack Meridian Health (“HMH”), HMH JFK University Medical Center, Robert C. Garrett,

Amie Thornton, Dr. Jamie M. Levine, and Thomas Flynn (collectively, the “HMH Defendants”)

oppose the motion at ECF No. 132. Defendants RWJBarnabas Health (“RWJ”), Saint Barnabas

Medical Center (“Barnabas Medical Center”), Andy Anderson, Barry H. Ostrowsky, and Mark E.

Manigan (collectively, the “RWJBH Defendants”) oppose at ECF No. 133. Defendant State of

New Jersey (“NJ”) notified the Court it did not oppose the motion at ECF No. 134.1 The Court

1 There are eight additional defendants named in the caption of the proposed TAC: Kimberly

Pastva, Rachael Honig, Cassy Wood, Adrienne Simonds, Anthony Cuzzola, New Jersey

Department of Human Services, Hackensack Meridian JFK Johnson Rehabilitation Institute, and

Hackensack Meridian Neuroscience Institute at JFK University Medical Center. (ECF No. 130-3).

As these defendants have not been served, they did not respond to Plaintiff’s motion. The Court

decides this motion without oral argument pursuant to Fed. R. Civ. P. 78. After considering the

submissions of the parties, and for the reasons stated below, Plaintiff’s motion for leave to file a

TAC is DENIED without prejudice.

BACKGROUND

Plaintiff filed his original complaint in this matter on March 15, 2021. (ECF No. 1). Before

anyone was served, Plaintiff filed a First Amended Complaint on July 15, 2021. (ECF No. 5). The

only named defendants in the First Amended Complaint were Barnabas Medical Center, RWJ,

Nicole Centrella and Lauren Curato. Defendants Centrella, Barnabas Medical Center, and RWJ

filed a motion to dismiss the First Amended Complaint on August 12, 2021. (ECF No. 16).

Defendant Curato filed a motion to dismiss the First Amended Complaint on September 25, 2021.

(ECF No. 19).

The Honorable Julien Xavier Neals, U.S.D.J., issued an Order and Opinion on the motions

on November 6, 2023. (ECF Nos. 34-35). He dismissed the First Amended Complaint against

Curato and Centrella in its entirety with prejudice. (Id.). With regard to Barnabas Medical Center

and RWJ (together, the “Barnabas Defendants”), Judge Neals dismissed with prejudice Plaintiff’s

claims under Titles II and III of the Americans with Disabilities Act (“ADA”) and under the Fifth

and Fourteenth Amendments to the United States Constitution. (Id.). However, he denied the

motion with respect to Plaintiff’s claims under Section 504 of the Rehabilitation Act. (Id.). Thus,

the only claim that remained after the motion to dismiss was decided was Plaintiff’s Section 504

claim against the Barnabas Defendants. (Id.). Judge Neals afforded Plaintiff a limited opportunity

to amend the complaint, solely “to plead claims raised for the first time in Plaintiff’s oppositions

notes that there are no allegations in the proposed TAC that explain why these individuals are

named or what wrongful conduct they engaged in towards Plaintiff. Accordingly, there is no basis

for adding them to the TAC.

(ECF No. 24, 29)” by December 6, 2023. (ECF No. 35). The Court specifically identified

Plaintiff’s newly raised claims as: (i) a consent order that was allegedly violated by the Barnabas

Defendants and Curato; (ii) an alleged violation of 42 U.S.C. § 12203 by the Barnabas Defendants

and Curato; (iii) claims against the Barnabas Defendants and Curato under 42 U.S.C. §§ 1983,

1985, 1986 and N.J.S.A. 30:4-27. (ECF No. 34 at 6).

Plaintiff filed his Second Amended Complaint (“SAC”) on January 3, 2024. (ECF No. 46).2

He added 14 defendants in the SAC. (Id.). Before any of the defendants had a chance to respond,

on April 15, 2024, Plaintiff filed a Third Amended Complaint (“TAC”) (ECF No. 81) which was

struck on April 25, 2024 because Plaintiff failed to request leave in violation of Fed. R. Civ. P. 15.

(ECF No. 86). Plaintiff then filed the instant motion on July 8, 2024 seeking leave to file a TAC.

(ECF No. 108). The motion was administratively terminated without prejudice and a new briefing

schedule was entered. (ECF No. 113). The motion was fully briefed and filed on January 6, 2025.

(ECF Nos. 130-134). Plaintiff failed to timely submit a reply.3

2 Plaintiff also filed an “Amended Second Amended Complaint” (ECF No. 81), that was struck

by the Court as violating Fed. R. Civ. P. 15 because it was filed without leave.

3 Plaintiff submitted a 21-page letter entitled “Notice of Criminal Complaints” on January 6, 2025.

(ECF No. 135). The Court could not decipher what relief Plaintiff sought in the letter. It appeared

Plaintiff was seeking an indefinite stay of his deadline to reply while he pursued criminal

complaints against the Defendants (none of which, to this Court’s knowledge, have materialized

since that time). Indeed, in the relief sought section of the letter, Plaintiff admitted “I cannot ask

the Court for specific relief sought at this time, except for an adjournment of time until I provide

the court with the document requesting relief after I file the criminal complaint....” (Id.). To the

extent the letter was a request by Plaintiff for an extension of time to submit his reply, the Court

denied the request, emphasizing that Plaintiff had been attempting to amend his complaint since

April 15, 2024; that a briefing schedule had been set on July 16, 2024, which required Plaintiff to

serve his reply by September 16, 2024 (ECF No. 113); and that those deadlines were thrice

extended to October 15, 2024 (ECF No. 117), November 6, 2024 (ECF No. 121), and January 2,

2025 (ECF No. 128). (ECF No. 137). The Court further noted that its final extension Order

explicitly stated “no further extensions will be granted absent exigent circumstances” and that the

request was not made until 4 days after the extended filing deadline had passed. (Id.).

LEGAL DISCUSSION AND ANALYSIS

Motions to amend filed prior to the entry of a pretrial scheduling order are governed by

Fed. R. Civ. P. 15, which requires the court to “freely give leave when justice so requires.” The

Third Circuit has adopted a “liberal” approach to amendments of pleadings. DLJ Mortg. Cap., Inc.

v. Sheridan, 975 F.3d 358, 369 (3d. Cir. 2020). A court may deny a motion to amend only where

there is (1) undue delay; (2) bad faith or dilatory motive; (3) undue prejudice; (4) repeated failures

to cure deficiencies; or (5) futility of amendment. Foman v. Davis, 371 U.S. 178, 182 (1962);

Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 1984). These factors “are not

exhaustive, allowing a court to ground its decision, within reason, on consideration of additional

equities, such as judicial economy/burden on the court and the prejudice denying leave to amend

would cause to the plaintiff.” Mullin v. Balicki, 875 F. 3d 140, 149-50 (3d Cir. 2017). However,

the most important factor is prejudice to the non-moving party. Id. Applying these factors to the

instant matter, the Court finds that Plaintiff’s motion to file a TAC should be denied for three

principle reasons: (i) it is impossible to decipher; (ii) it goes beyond the scope of Judge Neals’

November 6, 2023 Order; and (iii) it is futile. Each of these reasons will be addressed in turn below.

1. Procedural Deficiencies

As an initial matter, the Court notes several procedural deficiencies with Plaintiff’s filing.

Plaintiff failed to provide a red-line, as required by Local Civil R. 15.1(a)(2), or otherwise

articulate the changes between his SAC and his proposed TAC. While this Court affords deference

to pro se litigants, the expansion of the 39-page SAC to the 145-page proposed TAC,

unaccompanied by a red-line or even a summarization of the changes, is unduly burdensome on

the Court. Further, the proposed TAC is nearly impossible to understand, contains five different

“claim sets” without any separately pled counts and does not clearly state what claims apply to

what defendants. (ECF No. 130-3). Plaintiff does not provide a brief addressing the Foman factors

or otherwise explain the basis for seeking leave. (ECF No. 130). Instead, he provides a 17-page

narrative as part of his Notice of Motion, which begins with a “Statement of Protest.” These

technical deficiencies, alone, warrant denying Plaintiff’s motion. Nevertheless, the Court will

address the application on its merits.

2. Plaintiff’s Proposed Amended Complaint is Confusing, Impossible to Decipher

and Does Not Cleary and Succinctly State His Claims

Plaintiff’s proposed TAC is a behemoth 145-page, rambling stream of conscious document.

(ECF No. 130-3). The Court cannot ascertain what claims are being asserted against which

defendants. It includes five “Claim Sets,” A, B, C, D, and G (there is no Claim Set E or F) and

adds eight new defendants, on top of the fourteen already added to the SAC. (Id.).

Plaintiff’s proposed TAC fails to comply with F.R.C.P. 8 because it is an impermissible

group pleading. Rule 8(a)(2) requires a complaint to include “a short and plain statement of the

claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what

the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

545 (2007) (internal quotation marks and citations omitted). The Court recognizes that because

Plaintiff is pro se “the Court has a special obligation to construe the complaint liberally.” Wright

v. Castle Point Mortg., No. 05-CV-4851 (DMC), 2006 WL 1468678, at *2 (D.N.J. May 24, 2006)

(citing United States v. Miller, 197 F.3d 644, 648 (3d Cir. 1999)). Nonetheless, the Court should

not permit the filing of the TAC “if the pro se complaint is so confusing or unintelligible that no

party could possibly understand or reply to it.” Cole v. Commonwealth Federal, No. 94-6099, 1994

WL 618464, *1 (E.D.Pa. 1994) (first citing King v. Fayette County, 92 F.R.D. 457, 458 (W.D.Pa.

1981) (finding a pro se plaintiff’s complaint legally defective under Rule 8(a) because no party

could possibly understand and reply to them); then citing Brown v. Califano, 75 F.R.D. 497, 499

(D.D.C. 1977) (dismissing a pro se plaintiff’s complaint because it was “a confused and rambling

narrative of charges and conclusions concerning numerous persons, organizations and agencies”)).

After hours of review, the Court is unable to comprehend what Plaintiff is saying, what claims he

is asserting or the nature of each defendant’s involvement. It is not the Court’s burden to unravel

Plaintiff’s claim. He must make his complaint clear, succinct and reasonably comprehendible.

Additionally, Plaintiff cannot “provide only conclusory allegations against Defendants as

a group, failing to allege the personal involvement of any Defendant.” Galicki v. New Jersey, No.

14-CV-169 (JLL), 2015 WL 3970297, at *2 (D.N.J. June 29, 2015). Reading Plaintiff’s TAC, it is

nearly impossible for the Court to glean which claims are alleged against which defendants.

“Alleging that ‘Defendants’ undertook certain illegal acts—without more—injects an inherently

speculative nature into the pleadings, forcing both the Defendants and the Court to guess who did

what to whom when. Such speculation is anathema to contemporary pleading standards.”

Japhet v. Francis E. Parker Mem’l Home, Inc., No. 14-CV-01206 (SRC), 2014 WL 3809173, at

*2 (D.N.J. July 31, 2014).

Every claim in the TAC is alleged against multiple defendants, with little to no distinction

as to what wrongful conduct was allegedly engaged in by each individual defendant. While “[i]t

may at times be appropriate and convenient for a pleading to use the short-hand term

‘Defendants,’” when the Complaint named numerous defendants “who occupied different

positions and presumably had distinct roles in the alleged misconduct, Plaintiffs cannot merely

state that ‘Defendants did x’–they must specifically allege which Defendants engaged in what

wrongful conduct.” Falat v. Cnty. of Hunterdon, No. 12-CV-6804 (SRC), 2013 WL 1163751, at *3

(D.N.J. Mar. 19, 2013) (emphasis in original). The TAC frequently groups the Defendants together

and merely alleges that, collectively, Defendants acted improperly. For example, Claim Set B is

asserted against at least twenty defendants, and beyond identifying Dr. Levine and the location

where Plaintiff’s appointments occurred, the allegations are vague and do not explain each

defendants’ involvement:

• All said Defendants in this Claim Set B violated the Plaintiff’s

rights under the N.J. Administrative Code 8:42G-41(a)(31).

because “concussion clinic” did not allow Dr. Levine to follow

the TBI-disabled Plaintiff’s civil right under N.J.A.C. §8:43G-

4.1(a)(31) (TAC at 70) 4 (emphasis added).

• Regardless, all said Defendants in the Claim Set B did not care

about the TBI-disabled Plaintiff’s preferred method of effective

communication and continued to unlawfully discriminate

against the TBI-Disabled Plaintiff on the basis of disability

regarding accessibility by denying the Plaintiff’s preferred

method of effective communication by using an auxiliary

service, an email, for all communications, too. (TAC at 71)

(emphasis added).

• I never received the written explanation from said Defendants

of Claim set B as to why I could not use by aid as required by

Law, 28 CFR §35.164. Therefore, said Defendants acted with

deliberate indifference. (TAC at 72) (emphasis added)

(Typographical errors in original).

This pattern of impermissible group pleading continues throughout the TAC. Claim Set A

contains “claims” 1 through 8 which are alleged against Defendants Barnabas Medical Center,

RWJ, Mark Manigan, and Barry Ostrowsky. (TAC pg. 52-68). There are no individual allegations

against Defendants Manigan or Ostrowsky, and every claim in Claim Set A generally states

“Defendants” violated either the NJCRA, § 1983, or the Rehabilitation Act of 1973, without any

indication as to the specific conduct of each individual defendant that was wrongful under each

referenced law.

4 The Court refers to page numbers instead of specific paragraphs when citing to the TAC, because

the paragraph numbers are out of order and duplicative.

Further, there are no individualized allegations against the five new individual defendants

in the TAC, Kimberly M. Pastva, Racheal Honig, Cassy Wood, Adrienne Simonds, nor Anthony

Cuzzola. Defendant Cuzzola is not even mentioned anywhere in the TAC beyond the caption.

(TAC at 1). There is nothing that indicates how Defendants Pastva, Honig, Wood, or Simonds were

involved or that otherwise identifies any wrongful act taken by them, other than blanket statements

that they are a part of the leadership of the corporate defendants. (TAC at 47-48).

Simply put, the proposed TAC fails to comply with basic pleading standards. It does not

provide defendants with enough information to ascertain what claims are being asserted against

them and allow them to meaningfully respond. Plaintiff’s TAC leaves it to the Court to speculate

as to which defendants are associated with which factual assertions and which assertions in the

145-page TAC are intended to support any given legal claim. “It is not the Court’s job to

laboriously search the Complaint for factual assertions that could, in theory, be used to support one

legal claim or another”. Falat v. Cnty. of Hunterdon, No. 12-CV-6804 (SRC), 2013 WL 1163751,

at *3 (D.N.J. Mar. 19, 2013). It would be an impossible task for this Court to sift through Plaintiff’s

impermissibly vague and conclusory group pleadings to determine which are viable and which are

not. The Court will not accept a pleading prepared in this fashion and, therefore, will not grant

leave for Plaintiff to file the TAC in its current form.

3. Plaintiff’s Proposed Amended Complaint Goes Beyond the Scope of Judge

Neals’ Opinion

Judge Neals’ November 6, 2023 Order made it clear that Plaintiff was permitted to amend

his complaint solely to add the claims raised in his Opposition to the motion to dismiss against the

Defendants included in Plaintiff’s amended complaint. (ECF Nos. 34-35). His Opinion clearly

delineated what those three claims were: (i) a consent order that was allegedly violated by the

Barnabas Defendants and Curato; (ii) an alleged violation of 42 U.S.C. § 12203 by the Barnabas

Defendants and Curato; and (iii) claims under 42 U.S.C. §§ 1983, 1985, 1986 and N.J.S.A. 30:4-

27. (Id.). Judge Neals did not give Plaintiff free reign to add brand new claims or parties, attempt

to revive his dismissed claims, wholly amend the complaint, or otherwise take a second bite at the

apple. Instead, the Opinion clearly stated “the Court permits Plaintiff to file a second amended

complaint, as to those claims not pled in the Amended Complaint but raised in the oppositions

(ECF Nos. 24, 29) only.” (ECF No. 34 at 17) (emphasis added). He did not authorize the addition

of new parties or the filing of any pleadings beyond the SAC.

Defendants argue that Plaintiff’s proposed TAC should not be permitted because it goes

well beyond what was contemplated by Judge Neals’ Opinion and Order. See Glazewski v. Corzine,

No. 06-CV-4107, 2008 WL 2875331, at *2 (D.N.J. July 22, 2008) (barring a plaintiff’s attempt to

add new parties and claims in light of the District Judge’s prior decision that stated “leave to file

an amended complaint addressing the deficiencies in [plaintiff’s] Complaint was not a license to

add new claims. . . unrelated to the claims asserted in the Complaint”). Defendants are indeed

correct that the proposed TAC exceeds the scope of Judge Neals’ Order. First, Plaintiff adds eight

new parties, in addition to the fourteen new parties in the SAC, including Hackensack Meridian

JFK Johnson Rehabilitation Institute, Kimberly M. Pastva, Racheal Honig, Cassy Wood, Adrienne

Simonds, Anthony Cuzzola, New Jersey Department of Human Services, and Hackensack

Meridian Neuroscience Institute at JFK University Medical Center. (ECF No. 35). Second, as best

it can be understood, Plaintiff adds entirely new claims including the New Jersey Civil Rights Act,

N.J.S.A. 10:6-2 (NJCRA); N.J.A.C. 8:43G–4.1; 18 U.S.C. § 1035; N.J.S.A. 2C:13-3; and N.J.S.A.

§ 26:2H-12.8(2). Third, Plaintiff attempts to revive claims previously dismissed by Judge Neals,

such as his Rehabilitation Act against individual defendants and his Title II claim. Fourth, Judge

Neals only authorized the filing of the SAC, not a TAC.

The Court agrees. Plaintiff was afforded a limited opportunity to amend his complaint. He

was not given an unlimited invitation to enlarge his lawsuit to add new parties and claims. In short,

Plaintiff’s proposed TAC goes beyond the scope of Judge Neals’ Order. Plaintiff cannot use a

complaint amendment as a means “to salvage claims which [he] now perceives to be legally

defective.” Berk v. Ritz Carlton Condo. Assoc., 19-CV-20666 (NLH) (MJS), 2021 WL 5277459,

at *4 (D.N.J. Nov. 12, 2021). Plaintiff’s proposed TAC is barred for this reason as well.

4. Plaintiff’s Proposed Third Amended Complaint is Futile

Notwithstanding the limitations in Judge Neals’ Order, there is an argument to be made that

Plaintiff still has the right under Fed. R. Civ. P. 15 to seek leave to amend his complaint at any

time, provided he does not try to resuscitate any claims or defendants that were already dismissed

from this matter with prejudice and that he otherwise meets the five factors set forth in Foman,

371 U.S. at 182. Indeed, the Rules state that such leave should be freely given when justice

requires. See Fed. R. Civ. P. 15(a)(2). The Court is also mindful that there has not even been an

initial pretrial scheduling conference in this matter, so Plaintiff seeks to amend before discovery

has gotten underway, minimizing any prejudice. Accordingly, in the interest of completeness, the

Court also analyzes whether the proposed TAC should be permitted under Fed. R. Civ. P. 15,

applying the five Foman factors.

i. Undue Delay

The Court first addresses undue delay. Although a substantial amount of time has passed

since Judge Neals’ issued his decision on the motion to dismiss, there has been no undue delay by

Plaintiff. “The passage of time, without more, does not require that a motion to amend a complaint

be denied; however, at some point, the delay will become ‘undue,’ placing an unfair burden on the

opposing party.” Adams v. Gould, Inc., 739 F. 2d 858, 868 (3d. Cir. 1984) (citations omitted); see

also Cureton v. NCAA, 252 F.3d 267, 273 (3d Cir. 2001). Undue delay is one “that is protracted

and unjustified,” and “can indicate a lack of diligence sufficient to justify a discretionary denial of

leave.” Mullin, 875 F.3d at 151. Although there were multiple extensions, largely due to Plaintiff’s

disabilities, they were always timely requested and granted by the Court. Other than his failure to

timely file a reply (which is an optional brief), Plaintiff has not blown any significant deadlines.

Therefore, the Court does not find undue delay.

ii. Bad Faith or Dilatory Motive

The second factor, bad faith or dilatory motive, is not argued by any Defendant except the

Rutgers Defendants. They argue that the claims against the Rutgers Defendants were brought in

bad faith to revive Plaintiff’s dismissed claims by adding a state actor. (ECF No. 131 at 21). They

assert that Plaintiff has not alleged any plausible came against the Rutgers Defendants, so the

addition of them to the Third Amended Complaint is nothing more than an attempt to circumvent

the prior dismissal of those of Plaintiff’s claims that require a state actor. This argument is more

properly raised in the futility section, as it hinges upon whether or not Plaintiff has sufficiently

pled any plausible claims against the Rutgers Defendants.

Bad faith focuses on the motives of the moving party for not amending a pleading sooner.

Zelma v. Choice Energy, LLC, No. 19-CV-17535 (CCC)(MF), 2020 WL 5201341, at *2 (D.N.J.

Sept. 1, 2020). “Simply failing to add a claim a party had prior knowledge of does not, alone,

amount to bad faith.” Diallo v. Alo Enters. Corp., No. 12-CV-3762 (AET), 2013 WL 3772827, at

*3 (D.N.J. July 17, 2013) (citing Leased Optical Depts. v. Opti–Ctr., Inc., 120 F.R.D. 476 (D.N.J.

1988)).

Here, there is some merit to the Rutgers Defendants’ bad faith argument. Plaintiff candidly

admits that he named the Rutgers Defendants solely because Rutgers is a “vassal” of RWJ, which

renders it a state actor. (TAC at 46) (emphasis added). He then uses this as a basis for reviving his

previously dismissed claims. (Id.). This sort of tactical amendment, aimed at circumventing the

Court’s prior ruling, is tantamount to bad faith. See e.g. Berk, 2021 WL 5277459, at *4 (an

amendment cannot be used “to salvage claims that the [moving party] now perceives to be legally

deficient”); Reliford v. City of Tampa Hous. Auth., 190 F. App’x 928, 928 (11th Cir. 2006) (finding

bad faith when the proposed amendment complaint was “a transparent attempt to get around the. .

. problem raised by the motion to dismiss”). This factor thus weighs against allowing the TAC, at

least insofar as it pertains to the Rutgers Defendants.

iii. Undue Prejudice

The third Foman factor is undue prejudice, which requires the Court to assess whether the

amendment will create an undue hardship on the non-moving party. See Lorenz v. CSX Corp., 1

F.3d 1406, 1414 (3d. Cir. 1993) (“[P]rejudice to the non-moving party is the touchstone for the

denial of an amendment”) (quoting Cornell & Co. v. Occupational Safety & Health Rev. Comm’n,

573 F.2d 820, 823 (3d Cir. 1978)); Cureton v. NCAA, 252 F.3d 267, 273 (3d Cir. 2001) (in deciding

a motion for leave to amend, the court should “focus on the hardship to the [non-moving party] if

the amendment were permitted”) (citing Adams v. Gould, Inc., 739 F. 2d 858, 868 (3d Cir. 1984)).

In evaluating prejudice, the court should consider “whether allowing an amendment would result

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

Cureton, 252 F.3d at 273; see also Major Tours, Inc. v. Colorel, 720 F. Supp. 2d. 587, 614 (D.N.J.

2010) (“Prejudice may involve requiring the opponent to expend significant additional resources

to conduct discovery and prepare for trial or significantly delaying the resolution of the dispute.”);

Joy v. Perez, No. 10-CV-01636 (DMC)(JAD), 2011 WL 221700 at *2 (D.N.J. Jan. 21, 2011)

(“Unfair prejudice is usually found when there has been a significant unjustified delay in moving

to amend that creates an unfair disadvantage for the defendant.”).

Here, discovery has not yet even commenced. Therefore, there is no prejudice in terms of

prolonging the discovery process or elongating the trajectory of this case. Despite this, the Rutgers

Defendants argue that they will be unduly prejudiced if the TAC is permitted to proceed given the

extreme passage of time between the alleged incidents (which occurred from 2019-2021) and the

addition of them to the case in 2025. (ECF 131 at 23). The Rutgers Defendants argue that it is

improper to add new defendants when the litigation has already been pending for a significant

period of time. (Id. at 23-24). Plaintiff does not explain why he waited so long to add the Rutgers

Defendants nor does he address whether these parties could have been identified sooner if Plaintiff

exercised a modicum of diligence. Still, despite the filing of the original complaint in 2021, not

much has transpired in the case to date as a result of motion practice and multiple extensions.

While the Court appreciates that there may be some difficulty locating witnesses or documents due

to the passage of time, the Rutgers Defendants’ concerns speak in generalities and do not cite to

anything specific. Therefore, the Court does not find, based on the record before it, that the TAC

would pose an undue prejudice to defendants.

IV. Repeated Failure to Cure Deficiencies

The fourth factor requires the Court to assess whether there have been repeated failures by

Plaintiff to cure deficiencies. This factor weighs against amendment where the plaintiff has tried

unsuccessfully multiple times to cure deficiencies in his pleading. See Cal. Pub. Emps’ Ret. Sys. v.

Chubb Corp., 394 F.3d 126, 165 (3d. Cir. 2004) (affirming district court’s denial of leave to amend

where plaintiff, for the second time, failed to remedy the pleading deficiencies in their complaint

despite “clear guidance” given by the district court); In re Intelligroup Sec. Litig., 527 F. Supp. 2d

262, 383 (D.N.J. 2007) (denying leave to amend where plaintiffs “had three full opportunities to

state a claim and failed to do so, in spite of . . . [the court] providing [p]laintiffs with a detailed

roadmap in its previous opinion”).

Here, there have not been multiple failures by Plaintiff to cure any deficiencies in his

original pleading. Plaintiff filed his First Amended Complaint before Defendants were even

served. (ECF No. 5). He filed the SAC after Judge Neals specifically granted Plaintiff leave to file

an amended pleading (ECF No. 35). He seeks to file the TAC before any of the Defendants have

substantively responded to the SAC and before the Court has issued any rulings on the claims

contained in the SAC. Thus, there have not been repeated attempts by Plaintiff to cure his

deficiencies. He has made two attempts since Judge Neals’ Order, one of which was authorized

and the second which he attempts to do via this motion. Given his pro se status, the Court does not

find this to rise to the level of what is contemplated by the fourth Foman factor.

IV. Futility

The strongest argument advanced by defendants for denying the amendment is the fifth

factor, futility. Namely, defendants argue that the amendment should be denied because the claims

would not survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6). The standard for assessing

futility is the same standard of legal sufficiency that applies under Fed. R. Civ. P. 12(b)(6). Reardon

v. New Jersey, No. 13-CV-5363 (NLH), 2014 WL 2921030, at *6 (D.N.J. June 27, 2014) (citation

and quotation omitted). “An amendment is futile if the amended complaint would not survive a

motion to dismiss for failure to state a claim upon which relief could be granted.” Alvin v. Suzuki,

227 F.3d 107, 121 (3d. Cir. 2000). Rule 15 futility requires that the “newly asserted defense appear

to be sufficiently well-grounded in fact or law that it is not a frivolous pursuit.” Leach v. Applicant

Insight, Inc., No. 20-CV-1533 (JMV), 2021 WL 236492, at *1 (D.N.J. Jan. 25, 2021) (quoting

Harrison Beverage Co. v. Dribeck Importers, Inc., 133 F.R.D. 463, 468 (D.N.J. 1990)).

To survive dismissal, the complaint must be sufficient to state a claim that is plausible on

its face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is facially plausible “when the plaintiff

pleads factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id. To satisfy the plausibility standard, the pleading must “show

more than a sheer possibility that a defendant has acted unlawfully.” Connelly v. Lane Constr.

Corp., 809 F.3d 780, 786 (3d Cir. 2016) (quotation and citation omitted). Even if plausibly pled, a

complaint will not withstand a motion to dismiss if it fails to state a “legally cognizable cause of

action.” Turner v. J.P. Morgan Chase & Co., No. 14-CV-7148 (JLL)(JAD), 2015 WL 12826480,

at *2 (D.N.J. Jan. 23, 2015).

Here, Plaintiff’s proposed TAC fails to plead its claims with sufficient plausibility and fails

to state legally cognizable claims. Therefore, the proposed TAC is futile. Given how difficult it is

to follow the TAC, or decipher the claims being asserted and the defendants against whom they

are alleged, the Court will address in summary fashion why the TAC is futile. These claims are

legally insufficient and should not be included in any amended complaint that Plaintiff may seek

to file in the future.

1. Plaintiff’s Claims are Time-Barred

Most of Plaintiff’s claims are governed by a one or two year statute of limitations and are

therefore time-barred. See e.g. Cottrell v. Zagami, LLC, No. 08-CV-3340 (JEI), 2012 WL 479972,

at *3 (D.N.J. Feb. 14, 2012), aff’d, 537 F. App’x 46 (3d Cir. 2013) (recognizing that the statute of

limitations for the ADA is two years); Club 35, LLC v. Borough of Sayreville, No. 12-CV-2953

MAS, 2013 WL 1750037, at *2 (D.N.J. Apr. 23, 2013) (holding that the statute of limitations for

Section 1983 and 1985 claims are two years); Hilton v. Whitman, No. 04-CV-6420 (SDW), 2008

WL 5272190, at *12 (D.N.J. Dec. 16, 2008) (“the statute of limitations for a § 1986 claim is one

year”); Rayfield v. City of Paterson, No. 17-CV-5144 (ES)(SCM), 2019 WL 2959899, at *4 (D.N.J.

July 9, 2019) (recognizing the statute of limitations for NJCRA claims is two years from accrual);

Campfield v. New Jersey Transit, No. 19-CV-19794, 2023 WL 6387271, at *4 (D.N.J. Sept. 29,

2023) (applying a two year statute of limitations to a Rehabilitation Act claim).

The allegations in Plaintiff’s original amended complaint stem from treatment he received on

March 21, 2019 at St. Barnabas and the incidents that followed his car accident on March 15, 2019.

(ECF No. 5). Plaintiff’s TAC contains new allegations stemming from: an incident on June 6, 2019

at JFK Johnson Rehabilitation Institute; an incident on November 14, 2019 at JFK University

Medical Center; issues getting access to telehealth appointments from September to December

2020; an issue using MyChart in 2020 and 2021; and various other incidents throughout 2020 and

2021. (ECF 130-3 at 69, 83, 84, 107). For Plaintiff’s new allegations to be timely, they would have

to have occurred within one or two years prior to the filing date of Plaintiff’s TAC. Plaintiff’s new

claims stem from incidents from 2019 to 2021. Plaintiff filed the instant motion on July 8, 2024,

well beyond the applicable limitations’ period.

Plaintiff cannot avoid the application of the statute of limitations on the grounds that the

claims in the TAC “relate back” to the original claims. Rule 15(c)(1) provides that an amendment

relates back to the date of the original pleading if:

(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.

All three conditions set forth in Rule 15(c) must be satisfied for Plaintiff’s new claims to

relate back. Israel v. Smith, No. 13-CV-97 (JAP)(LHG), 2014 WL 12915232, at *6 (D.N.J. Oct. 7,

2014).

Applying this standard, Plaintiff fails to demonstrate that the claims in the TAC relate back

to his original complaint. By Plaintiff’s own admission, the proposed TAC “involves new claims

against new Defendants.” (ECF 130-3 at 1). Plaintiff’s First Amended Complaint concerned a

single incident on March 15, 2019 and was asserted against four parties. (ECF No. 5). The

proposed TAC adds 22 new parties, asserts more than 100 pages of new facts, involves issues from

different dates and time frames, and concerns different treatment issues. (ECF No. 130-3, passim).

Plaintiff’s new claims in the TAC have nothing to do with the incidents surrounding Plaintiff’s

March 2019 car accident that are described First Amended Complaint. (Compare ECF No. 5 with

ECF No. 130-3). Plaintiff’s new claims vary between subsequent unrelated medical issues and

appointments throughout 2019, 2020, and 2021 that are in no way connected to the allegations in

Plaintiff’s initial pleading. An amended complaint “does not relate back . . . when it asserts a new

ground for relief supported by facts that differ in both time and type from those in the original

pleading set forth.” Pintor v. Port Auth. of New York & New Jersey, No. 08-CV-2138 (SDW), 2009

WL 2595664, at *2 (D.N.J. Aug. 20, 2009) (quoting Mayle v. Felix, 545 U.S. 644, 650 (2005)).

Moreover, Plaintiff’s addition of 22 new defendants does not relate back to the original

complaint. Plaintiff did not identify any fictitious defendants in his First Amended Complaint.

(ECF. No. 5). The newly-added defendants did not receive notice of Plaintiff’s claims prior to

2025. These defendants did not know, nor should they have known, that this action would have

been brought against them, but for a mistake concerning their identity. These are entirely new

individuals and entities from those included in original pleading, and this provides yet another

reason why the claims in the TAC do not relate back as required by Fed. R. Civ. P. 15(c)(1)(C).

Accordingly, Plaintiff’s claims are time barred and they fail to satisfy Rule 15(c)(1)(B)

because they are do not arise out of the same “conduct, transaction, or occurrence” as his original

pleading. To allow Plaintiff to assert these claims in the TAC would therefore be futile.

2. Plaintiff’s Title II ADA Claims and Rehabilitation Act Claims Cannot Be

Maintained Against Non-Government Entities or Defendants That Did Not

Receive Federal Funds

Only public entities may be liable for violations of Title II of the ADA. Doe v. Div. of Youth

& Fam. Servs., 148 F. Supp. 2d 462, 489 (D.N.J. 2001). A “public entity” as defined by the statute

is “(A) any State or local government; (B) any department, agency, special purpose district, or

other instrumentality of a State or States or local government; and (C) the National Railroad

Passenger Corporation, and any commuter authority.” 42 U.S.C. § 12131(1). Similarly, a claim

under the Rehabilitation Act can only be maintained against a defendant who received federal

funds. Ridley Sch. Dist. v. M.R., 680 F.3d 260, 280 (3d Cir. 2012) (citing 28 U.S.C. § 794(a)).

None of the named defendants, with the exception of the newly-added Rutgers, State of NJ and NJ

Department of Human Services, are government agencies and, accordingly, they cannot be held

liable under Title II. See e.g. Matthews v. Pa. Dep’t. of Corr., 613 F. App’x. 163, 169-70 (3d Cir.

2015) (affirming the dismissal of Title II and ADA claims against defendants because they were

not public entities). Likewise, absent a cognizable claim of federal funding, the Rehabilitation Act

claims cannot be maintained against any of the newly-added defendants.

Plaintiff summarily asserts in the proposed TAC that all defendants received funds from

the federal government. (TAC at 13). Plaintiff sets forth three bases for this assertion. First, he

claims that “all Defendants including corporate entities and individuals receive federal funds

through Medicare and Medicaid.” (Id.). Second, he asserts that “[s]ome private corporate entities

and state entities receive federal funding for research.” (Id.). Third, he claims that several of the

hospital and medical entities are a “part” of Rutgers and, therefore, receive federal funds. (Id.).

None of these assertions are supported by any factual basis or additional details beyond these

summary statements. They fall far short of satisfying basic pleading standards to demonstrate that

these defendants were either state actors or received federal funds.

Plaintiff’s attempt to revive the claims against the private entity defendants that were

previously dismissed with prejudice by arguing that they contracted with a public entity, such as

Rutgers, is equally unavailing. “[A] private corporation is not a public entity merely because it

contracts with a public entity to provide some service.” Matthews, 613 F. App’x. at 170 (citing

Edison v. Douberly, 604 F. 3d 1307, 1310 (11th Cir. 2010)); see also Green v. City of New York,

465 F.3d 65, 79 (2d Cir. 2006) (holding that a private hospital performing government services by

contract is not an “instrumentality” of the government); Cox v. Jackson, 579 F.Supp.2d 831, 852

(E.D. Mich. 2008) (holding that a private medical provider with a contract to serve a prison was

not a government entity). Accordingly, even if the hospitals or medical entities worked with

Rutgers, this alone does not render them state actors. Plaintiff’s Title II claims and Rehabilitation

Act claims cannot be maintained against any defendant except the three government entities.5

Similarly, with the exception of Rutgers, State of NJ, NJ Department of Human Services, Barnabas

5 Even though the Title II claims are cognizable against the three government entities, they still

fail to survive because they are time-barred, for the reasons explained above.

Medical Center and RWJ, Plaintiff’s Rehabilitation Act claims fail because Plaintiff’s only proof

that the other defendants received federal funding are vague and conclusory statements that have

no basis in fact or law. See Langston v. Milton S. Hershey Med. Ctr., No. 15-CV-2027, 2016 WL

1404190, at *11 (M.D. Pa. Apr. 11, 2016) (dismissing a Title II ADA claim against a hospital

because the mere receipt of federal Medicaid funds was insufficient to demonstrate that it was an

“instrumentality of a State”). Accordingly, the Title II ADA and Rehabilitation Act claims asserted

against the vast majority of the defendants in the proposed TAC are futile.

3. There Is No Individual Liability Under Title II of the ADA or The

Rehabilitation Act

Plaintiff’s claims under Title II of the ADA and Section 504 the Rehabilitation Act also fail

to the extent alleged against the individual defendants, because these statutes do not provide for

liability against individuals. See, e.g. Matthews, 613 F. App’x. at 169-70 (dismissing claims against

individual defendants under Title II because there the statute does not allow for individual

liability); Rosenberg v. Whitehead, No. 10-CV-4419 (SDW), 2011 WL 868809, at *6-7 (D.N.J.

Mar. 10, 2011) (dismissing Title II and Rehabilitation Act claims against individual defendants for

failure to state a claim). Accordingly, these claims are also futile.

4. Certain Of Plaintiff’s Claims Fail Because There Is No Private Cause Of

Action

Several of Plaintiff’s purported claims fail because no private right of act exists. Plaintiff’s

claim under federal criminal statute 18 U.S.C. § 1035 fails because no private right of action exists.

Watson v. Cmty. Prop. Mgmt., No. 19-CV-2918, 2019 WL 3714529, at *3 (E.D. Pa. Aug. 6, 2019)

(dismissing a claim brought under § 1035 because it is a criminal statute, thus there is no private

right of action). Plaintiff’s claim under N.J.S.A. 2C:13-3, a state criminal statute, is futile for the

same reason. Itiowe v. Daniel, No. 16-CV-7777 (RMB)(KMW), 2017 WL 4179811, at *1 n. 4,

(D.N.J. Sept. 21, 2017) (finding that N.J.S.A. 2C:13-3 is a criminal statute and accordingly plaintiff

had no standing to assert a criminal action in a civil matter). Additionally, Plaintiff’s claims under

N.J.A.C. 8:43G–4.1(a) and N.J.S.A. § 26:2H-12.8(2) do not create a private right of action. Castro

v. NYT Television, 370 N.J. Super. 282, 294 (N.J. Super. Ct. App. Div. 2004) (holding that the

Patient Bill of Rights Act, N.J.S.A. § 26:2H-12.8(2) does not contain a private right of action);

Greenstein v. Sunitha Moonthungal, P.C., No. A-1233-11T1, 2013 WL 149658, at *2 (N.J. Super.

Ct. App. Div. Jan. 15, 2013) (finding that the remedy for a claim under N.J.A.C. 8:43G–4.1(a) is

with the hospital administration, not the courts). Thus, Plaintiff’s claims under each of these

statutes is futile because he cannot bring private cause of action.

5. Plaintiff Fails To Allege Any Facts To Plausibly Establish Liability By The

Individual Defendants

Every claim in the TAC is asserted against multiple defendants, with little to no distinction

as to what wrongful conduct was allegedly engaged in by each individual defendant. Plaintiff does

not plead any specific facts against any of the individual defendants (except Dr. Levine) other than

to sweeping statements the individuals were part of leadership of one of the corporate defendants.

The TAC provides only “conclusory allegations against Defendants as a group, failing to allege

the personal involvement of any Defendant” which fails to meet the pleading standard of Rule 8.

Galicki 2015 WL 3970297, at *2. Simply stated, Plaintiff fails to explain what each of the

defendants did that was wrong. As such, he fails to meet even the most basic of pleading standards,

rendering his claims futile.

6. Plaintiff’s Section 1983, 1985 and 19866 Claims Fail Because Defendants Were

Not Operating Under Color of State Law

6 Although Plaintiff mentions Sections 1985 and 1986 in the preamble section of his proposed

TAC, he does not actually mention them in any of his claim sets. (ECF 130-3). Accordingly,

Plaintiff does not articulate any viable claim under either of these statutory provisions and the court

will not address them further in this section other than to state that they are futile.

Plaintiff alleges that various defendants committed violations under § 1983. Section 1983

“provides private citizens with a means to redress violations of federal law committed by state

individuals.” Woodyard v. Cnty. of Essex, 514 F. App’x 177, 180 (3d Cir. 2013). A statutory

prerequisite to maintaining an action under § 1983 requires the defendants to have acted “under

color of state law” with conduct that “deprived the plaintiff of rights, privileges, or immunities

secured by the Constitution or laws of the United States.” Schneyder v. Smith, 653 F.3d 313, 319

(3d Cir. 2011). Only state actors can act “under color of law,” therefore non-state actors cannot be

held liable under § 1983 unless their conduct is “fairly attributable to the state.” Wolf v. Escala,

No. 14-CV-5985, 2015 WL 2403106, at *13 (D.N.J. May 20, 2015) (citation omitted).

Plaintiff makes no allegations in the TAC that would even arguably support a claim that

any of the private defendant acted under color of state law. Ludwig v. Carpenters Health & Welfare

Fund of Philadelphia And Vicinity, 383 F. App’x 224, 226 (3d Cir. 2010) (affirming dismissal of

Section 1983 claims against private actors because there were no allegations that their conduct was

fairly attributable to the state). Plaintiff’s conclusory statements that “all Defendants are either

state employees, state entities or licensed by the State and are working under the color of the law

in their official capacities and/or authorities” falls far short of demonstrating how each defendant

acted under color of state law. (TAC at 34). Indeed, this Court previously dismissed Plaintiff’s due

process and equal protection claims against private defendants finding “they are not state actors.”

(ECF No. 34 at 7).

Further, many of Plaintiff’s § 1983 claims are improperly based upon alleged violations of

state law. (See e.g. TAC at 64) (alleging claims “[u]nder 42 U.S.C §1983 regarding N.J.S.A. 2C:13-

3”). Section 1983 claims provide “a remedy for violations of federal, not state or local, law.”

McMullen v. Maple Shade Twp., 643 F.3d 96, 99 (3d Cir. 2011). Thus, to the extent Plaintiff’s 1983

claims are based upon violations of state laws, they cannot be maintained. Accordingly, Plaintiff’s

§ 1983 claims are futile against the non-state actors and to the extent they allege violations of state

law.

7. Plaintiff’s Claims Against Rutgers Fail

As the proposed TAC makes clear, the only reason why Rutgers was added was to try to

revive Plaintiff’s previously dismissed claims. (TAC at 46) (explaining that because Rutgers is a

state entity and Rutgers is a “part” of RWJ, the latter “must be subject to Title II of the ADA.”

Plaintiff’s proposed TAC does not reveal any basis for naming Rutgers in this case, other than its

unrelated dealings with the private entity defendants. Plaintiff cannot add an entirely new party

solely to revive an old claim. Plaintiff does not make any allegations to support a claim against

Rutgers beyond alleging some form of a business relationship with either HMH or RWJ. (TAC at

35). Even if such a relationship existed, that is not a basis for naming Rutgers as a defendant, when

there is no allegation that Rutgers personally participated in any of the alleged wrongful conduct.

Accordingly, Plaintiff’s claims against Rutgers are futile.

CONCLUSION

For the foregoing reasons and for good cause shown, Plaintiff’s Motion for Leave to File

a Third Amended Complaint is DENIED without prejudice.

s/ Stacey D. Adams

Stacey D. Adams

United States Magistrate Judge